[G.R. No. 119602.

October 6, 2000]
WILDVALLEY SHIPPING CO., LTD. petitioner, vs. COURT OF APPEALS and PHILIPPINE
PRESIDENT LINES INC., respondents.
DECISION

Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial
Court of Manila, Branch III against Philippine President Lines, Inc. and Pioneer Insurance
Company (the underwriter/insurer of Philippine Roxas) for damages in the form of unearned
profits, and interest thereon amounting to US $400,000.00 plus attorney's fees, costs, and
expenses of litigation. The complaint against Pioneer Insurance Company was dismissed in
an Order dated November 7, 1988.[17]

BUENA, J.:
At the pre-trial conference, the parties agreed on the following facts:
This is a petition for review on certiorari seeking to set aside the decision of the Court of
Appeals which reversed the decision of the lower court in CA-G.R. CV No. 36821, entitled
"Wildvalley Shipping Co., Ltd., plaintiff-appellant, versus Philippine President Lines, Inc.,
defendant-appellant."
The antecedent facts of the case are as follows:

"1. The jurisdictional facts, as specified in their respective pleadings;

"2. That defendant PPL was the owner of the vessel Philippine Roxas at the time of the incident;
"3. That defendant Pioneer Insurance was the insurance underwriter for defendant PPL;

Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine

President Lines, Inc., private respondent herein, arrived in Puerto Ordaz, Venezuela, to load
iron ore. Upon the completion of the loading and when the vessel was ready to leave port, Mr.
Ezzar del Valle Solarzano Vasquez, an official pilot of Venezuela, was designated by the
harbour authorities in Puerto Ordaz to navigate the Philippine Roxas through the Orinoco
River.[1] He was asked to pilot the said vessel on February 11, 1988 [2] boarding it that night at
11:00 p.m.[3]

"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel Malandrinon, whose passage
was obstructed by the vessel Philippine Roxas at Puerto Ordaz, Venezuela, as specified in par. 4, page 2
of the complaint;

The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the bridge
together with the pilot (Vasquez), the vessel's third mate (then the officer on watch), and a
helmsman when the vessel left the port[4] at 1:40 a.m. on February 12, 1988.[5] Captain Colon
left the bridge when the vessel was under way.[6]

"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel;

The Philippine Roxas experienced some vibrations when it entered the San Roque
Channel at mile 172.[7] The vessel proceeded on its way, with the pilot assuring the watch
officer that the vibration was a result of the shallowness of the channel.[8]

"5. That on February 12, 1988, while the Philippine Roxas was navigating the channel at Puerto Ordaz,
the said vessel grounded and as a result, obstructed navigation at the channel;

"7. That at the time of the incident, the vessel, Philippine Roxas, was under the command of the pilot
Ezzar Solarzano, assigned by the government thereat, but plaintiff claims that it is under the command
of the master;
"8. The plaintiff filed a case in Middleburg, Holland which is related to the present case;
"9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by the defendant PPL;

Between mile 158 and 157, the vessel again experienced some vibrations. [9] These
occurred at 4:12 a.m.[10] It was then that the watch officer called the master to the bridge.[11]
The master (captain) checked the position of the vessel [12] and verified that it was in the
centre of the channel.[13] He then went to confirm, or set down, the position of the vessel on the
chart.[14] He ordered Simplicio A. Monis, Chief Officer of the President Roxas, to check all the
double bottom tanks.[15]
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,[16] thus
obstructing the ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner
Wildvalley Shipping Company, Ltd., was unable to sail out of Puerto Ordaz on that day.

"10. The Orinoco River is 150 miles long and it takes approximately 12 hours to navigate out of the said
river;
"11. That no security for the plaintiff's claim was given until after the Philippine Collier was arrested;
and
"12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship Mutual Underwriters
Ltd."[18]
The trial court rendered its decision on October 16, 1991 in favor of the petitioner,
Wildvalley Shipping Co., Ltd. The dispositive portion thereof reads as follows:

"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant Philippine President Lines,
Inc. to pay to the plaintiff the sum of U.S. $259,243.43, as actual and compensatory damages, and U.S.
$162,031.53, as expenses incurred abroad for its foreign lawyers, plus additional sum of U.S.
$22,000.00, as and for attorney's fees of plaintiff's local lawyer, and to pay the cost of this suit.
"Defendant's counterclaim is dismissed for lack of merit.

SAME HAS BEEN SUBSTANTIALLY PROVED IN THE TRIAL COURT

WITHOUT ANY OBJECTION FROM PRIVATE RESPONDENT, AND WHOSE
OBJECTION WAS INTERPOSED BELATEDLY ON APPEAL;
5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AWARDING
ATTORNEY'S FEES AND COSTS TO PRIVATE RESPONDENT WITHOUT
ANY FAIR OR REASONABLE BASIS WHATSOEVER;

"SO ORDERED."[19]
Both parties appealed: the petitioner appealing the non-award of interest with the private
respondent questioning the decision on the merits of the case.
After the requisite pleadings had been filed, the Court of Appeals came out with its
questioned decision dated June 14, 1994,[20] the dispositive portion of which reads as follows:
"WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is hereby rendered
reversing the Decision of the lower court. Plaintiff-appellant's Complaint is dismissed and it is ordered
to pay defendant-appellant the amount of Three Hundred Twenty-three Thousand, Forty-two Pesos and
Fifty-three Centavos (P323,042.53) as and for attorney's fees plus cost of suit. Plaintiff-appellant's
appeal is DISMISSED.
"SO ORDERED."[21]
Petitioner filed a motion for reconsideration[22] but the same was denied for lack of merit
in the resolution dated March 29, 1995.[23]
Hence, this petition.
The petitioner assigns the following errors to the court a quo:
1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT
UNDER PHILIPPINE LAW NO FAULT OR NEGLIGENCE CAN BE
ATTRIBUTED TO THE MASTER NOR THE OWNER OF THE "PHILIPPINE
ROXAS" FOR THE GROUNDING OF SAID VESSEL RESULTING IN THE
BLOCKAGE OF THE RIO ORINOCO;
2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN REVERSING
THE FINDINGS OF FACTS OF THE TRIAL COURT CONTRARY TO
EVIDENCE;

6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING

THAT PETITIONER'S CAUSE IS MERITORIOUS HENCE, PETITIONER
SHOULD BE ENTITLED TO ATTORNEY'S FEES, COSTS AND INTEREST.
The petition is without merit.
The primary issue to be determined is whether or not Venezuelan law is applicable to
the case at bar.
It is well-settled that foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any other fact, they must be
alleged and proved.[24]
A distinction is to be made as to the manner of proving a written and an unwritten
law. The former falls under Section 24, Rule 132 of the Rules of Court, as amended, the entire
provision of which is quoted hereunder. Where the foreign law sought to be proved is
"unwritten," the oral testimony of expert witnesses is admissible, as are printed and published
books of reports of decisions of the courts of the country concerned if proved to be commonly
admitted in such courts.[25]
Section 24 of Rule 132 of the Rules of Court, as amended, provides:
"Sec. 24. Proof of official record. -- The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by
a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied,
if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the
office in which the record is kept is in a foreign country, the certificate may be made by a secretary of
the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the
foreign service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office." (Underscoring supplied)
The court has interpreted Section 25 (now Section 24) to include competent evidence
like the testimony of a witness to prove the existence of a written foreign law.[26]

3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT

THE "PHILIPPINE ROXAS" IS SEAWORTHY;

In the noted case of Willamette Iron & Steel Works vs. Muzzal,[27] it was held that:

4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN

DISREGARDING VENEZUELAN LAW DESPITE THE FACT THAT THE

" Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the year 1918 under
oath, quoted verbatim section 322 of the California Civil Code and stated that said section was in force

at the time the obligations of defendant to the plaintiff were incurred, i.e. on November 5, 1928 and
December 22, 1928. This evidence sufficiently established the fact that the section in question was the
law of the State of California on the above dates. A reading of sections 300 and 301 of our Code of Civil
Procedure will convince one that these sections do not exclude the presentation of other competent
evidence to prove the existence of a foreign law.
"`The foreign law is a matter of fact You ask the witness what the law is; he may, from his
recollection, or on producing and referring to books, say what it is.' (Lord Campbell concurring in an
opinion of Lord Chief Justice Denman in a well-known English case where a witness was called upon to
prove the Roman laws of marriage and was permitted to testify, though he referred to a book containing
the decrees of the Council of Trent as controlling, Jones on Evidence, Second Edition, Volume 4, pages
3148-3152.) x x x.
We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant Harbor
Master and Chief of Pilots at Puerto Ordaz, Venezuela, [28] to testify on the existence of
the Reglamento General de la Ley de Pilotaje (pilotage law of Venezuela)[29] and
the Reglamento Para la Zona de Pilotaje N o 1 del Orinoco (rules governing the navigation of
the Orinoco River). Captain Monzon has held the aforementioned posts for eight years. [30] As
such he is in charge of designating the pilots for maneuvering and navigating the Orinoco
River. He is also in charge of the documents that come into the office of the harbour masters.
[31]

Nevertheless, we take note that these written laws were not proven in the manner
provided by Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial[32]of
the Republic of Venezuela. A photocopy of the Gaceta Oficial was presented in evidence as
an official publication of the Republic of Venezuela.
o

The Reglamento Para la Zona de Pilotaje N 1 del Orinoco is published in a book issued
by the Ministerio de Comunicaciones of Venezuela.[33] Only a photocopy of the said rules was
likewise presented as evidence.
Both of these documents are considered in Philippine jurisprudence to be public
documents for they are the written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers of Venezuela.[34]
For a copy of a foreign public document to be admissible, the following requisites are
mandatory: (1) It must be attested by the officer having legal custody of the records or by his
deputy; and (2) It must be accompanied by a certificate by a secretary of the embassy or
legation, consul general, consul, vice consular or consular agent or foreign service officer, and
with the seal of his office.[35] The latter requirement is not a mere technicality but is intended to
justify the giving of full faith and credit to the genuineness of a document in a foreign country.
[36]

It is not enough that the Gaceta Oficial, or a book published by the Ministerio de
Comunicaciones of Venezuela, was presented as evidence with Captain Monzon attesting it. It

is also required by Section 24 of Rule 132 of the Rules of Court that a certificate that Captain
Monzon, who attested the documents, is the officer who had legal custody of those records
made by a secretary of the embassy or legation, consul general, consul, vice consul or
consular agent or by any officer in the foreign service of the Philippines stationed in
Venezuela, and authenticated by the seal of his office accompanying the copy of the public
document. No such certificate could be found in the records of the case.
With respect to proof of written laws, parol proof is objectionable, for the written law itself
is the best evidence. According to the weight of authority, when a foreign statute is involved,
the best evidence rule requires that it be proved by a duly authenticated copy of the statute.[37]
At this juncture, we have to point out that the Venezuelan law was not pleaded before
the lower court.
A foreign law is considered to be pleaded if there is an allegation in the pleading about
the existence of the foreign law, its import and legal consequence on the event or transaction
in issue.[38]
A review of the Complaint [39] revealed that it was never alleged or invoked despite the
fact that the grounding of the M/V Philippine Roxas occurred within the territorial jurisdiction of
Venezuela.
We reiterate that under the rules of private international law, a foreign law must be
properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of a
foreign country, or state, will be presumed to be the same as our own local or domestic law
and this is known as processual presumption.[40]
Having cleared this point, we now proceed to a thorough study of the errors assigned by
the petitioner.
Petitioner alleges that there was negligence on the part of the private respondent that
would warrant the award of damages.
There being no contractual obligation, the private respondent is obliged to give only the
diligence required of a good father of a family in accordance with the provisions of Article 1173
of the New Civil Code, thus:
Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons, of the
time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance, that
which is expected of a good father of a family shall be required.

The diligence of a good father of a family requires only that diligence which an ordinary
prudent man would exercise with regard to his own property. This we have found private
respondent to have exercised when the vessel sailed only after the "main engine, machineries,
and other auxiliaries" were checked and found to be in good running condition; [41] when the
master left a competent officer, the officer on watch on the bridge with a pilot who is
experienced in navigating the Orinoco River; when the master ordered the inspection of the
vessel's double bottom tanks when the vibrations occurred anew.[42]
The Philippine rules on pilotage, embodied in Philippine Ports Authority Administrative
Order No. 03-85, otherwise known as the Rules and Regulations Governing Pilotage Services,
the Conduct of Pilots and Pilotage Fees in Philippine Ports enunciate the duties and
responsibilities of a master of a vessel and its pilot, among other things.
The pertinent provisions of the said administrative order governing these persons are
quoted hereunder:
Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory pilotage grounds, the Harbor
Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel or to life
and property at ports due to his negligence or fault. He can be absolved from liability if the accident is
caused by force majeure or natural calamities provided he has exercised prudence and extra diligence to
prevent or minimize the damage.
The Master shall retain overall command of the vessel even on pilotage grounds whereby he can
countermand or overrule the order or command of the Harbor Pilot on board. In such event, any damage
caused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shall
be the responsibility and liability of the registered owner of the vessel concerned without prejudice to
recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined by competent
authority in appropriate proceedings in the light of the facts and circumstances of each particular case.
x x x
Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The duties and
responsibilities of the Harbor Pilot shall be as follows:
x x x
f) A pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a
pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his responsibility
shall cease at the moment the Master neglects or refuses to carry out his order."
The Code of Commerce likewise provides for the obligations expected of a captain of a
vessel, to wit:
Art. 612. The following obligations shall be inherent in the office of captain:

x x x
"7. To be on deck on reaching land and to take command on entering and leaving ports, canals,
roadsteads, and rivers, unless there is a pilot on board discharging his duties. x x x.
The law is very explicit. The master remains the overall commander of the vessel even
when there is a pilot on board. He remains in control of the ship as he can still perform the
duties conferred upon him by law [43] despite the presence of a pilot who is temporarily in
charge of the vessel. It is not required of him to be on the bridge while the vessel is being
navigated by a pilot.
However, Section 8 of PPA Administrative Order No. 03-85, provides:
Sec. 8. Compulsory Pilotage Service - For entering a harbor and anchoring thereat, or passing through
rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shifting
from one berth or another, every vessel engaged in coastwise and foreign trade shall be under
compulsory pilotage.
xxx.
The Orinoco River being a compulsory pilotage channel necessitated the engaging of a
pilot who was presumed to be knowledgeable of every shoal, bank, deep and shallow ends of
the river. In his deposition, pilot Ezzar Solarzano Vasquez testified that he is an official pilot in
the Harbour at Port Ordaz, Venezuela, [44] and that he had been a pilot for twelve (12) years.
[45]
He also had experience in navigating the waters of the Orinoco River.[46]
The law does provide that the master can countermand or overrule the order or
command of the harbor pilot on board. The master of the Philippine Roxas deemed it best not
to order him (the pilot) to stop the vessel, [47] mayhap, because the latter had assured him that
they were navigating normally before the grounding of the vessel. [48] Moreover, the pilot had
admitted that on account of his experience he was very familiar with the configuration of the
river as well as the course headings, and that he does not even refer to river charts when
navigating the Orinoco River.[49]
Based on these declarations, it comes as no surprise to us that the master chose not to
regain control of the ship. Admitting his limited knowledge of the Orinoco River, Captain Colon
relied on the knowledge and experience of pilot Vasquez to guide the vessel safely.
Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different class from ordinary
employees, for they assume to have a skill and a knowledge of navigation in the particular waters over
which their licenses extend superior to that of the master; pilots are bound to use due diligence and
reasonable care and skill. A pilot's ordinary skill is in proportion to the pilot's responsibilities, and
implies a knowledge and observance of the usual rules of navigation, acquaintance with the waters
piloted in their ordinary condition, and nautical skill in avoiding all known obstructions. The character
of the skill and knowledge required of a pilot in charge of a vessel on the rivers of a country is very
different from that which enables a navigator to carry a vessel safely in the ocean. On the ocean, a
knowledge of the rules of navigation, with charts that disclose the places of hidden rocks, dangerous

shores, or other dangers of the way, are the main elements of a pilot's knowledge and skill. But the pilot
of a river vessel, like the harbor pilot, is selected for the individual's personal knowledge of the
topography through which the vessel is steered."[50]
We find that the grounding of the vessel is attributable to the pilot. When the vibrations
were first felt the watch officer asked him what was going on, and pilot Vasquez replied that
"(they) were in the middle of the channel and that the vibration was as (sic) a result of the
shallowness of the channel."[51]

negligence complained of; and (3) the accident must not have been due to any voluntary
action or contribution on the part of the person injured.[56]
As has already been held above, there was a temporary shift of control over the ship
from the master of the vessel to the pilot on a compulsory pilotage channel. Thus, two of the
requisites necessary for the doctrine to apply, i.e., negligence and control, to render the
respondent liable, are absent.
As to the claim that the ship was unseaworthy, we hold that it is not.

Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine Roxas as well
as other vessels on the Orinoco River due to his knowledge of the same. In his experience as
a pilot, he should have been aware of the portions which are shallow and which are not. His
failure to determine the depth of the said river and his decision to plod on his set course, in all
probability, caused damage to the vessel. Thus, we hold him as negligent and liable for its
grounding.
In the case of Homer Ramsdell Transportation Company vs. La Compagnie
Generale Transatlantique, 182 U.S. 406, it was held that:
x x x The master of a ship, and the owner also, is liable for any injury done by the negligence of the
crew employed in the ship. The same doctrine will apply to the case of a pilot employed by the master
or owner, by whose negligence any injury happens to a third person or his property: as, for example, by
a collision with another ship, occasioned by his negligence. And it will make no difference in the case
that the pilot, if any is employed, is required to be a licensed pilot; provided the master is at liberty to
take a pilot, or not, at his pleasure, for in such a case the master acts voluntarily, although he is
necessarily required to select from a particular class. On the other hand, if it is compulsive upon the
master to take a pilot, and, a fortiori, if he is bound to do so under penalty, then, and in such case,
neither he nor the owner will be liable for injuries occasioned by the negligence of the pilot ; for in
such a case the pilot cannot be deemed properly the servant of the master or the owner, but is forced
upon them, and the maxim Qui facit per alium facit per se does not apply." (Underscoring supplied)
Anent the river passage plan, we find that, while there was none, [52] the voyage has
been sufficiently planned and monitored as shown by the following actions undertaken by the
pilot, Ezzar Solarzano Vasquez, to wit:contacting the radio marina via VHF for information
regarding the channel, river traffic,[53] soundings of the river, depth of the river, bulletin on the
buoys.[54] The officer on watch also monitored the voyage.[55]
We, therefore, do not find the absence of a river passage plan to be the cause for the
grounding of the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because the
circumstances surrounding the injury do not clearly indicate negligence on the part of the
private respondent. For the said doctrine to apply, the following conditions must be met: (1) the
accident was of such character as to warrant an inference that it would not have happened
except for defendant's negligence; (2) the accident must have been caused by an agency or
instrumentality within the exclusive management or control of the person charged with the

The Lloyds Register of Shipping confirmed the vessels seaworthiness in a Confirmation

of Class issued on February 16, 1988 by finding that "the above named ship (Philippine
Roxas) maintained the class "+100A1 Strengthened for Ore Cargoes, Nos. 2 and 8 Holds may
be empty (CC) and +LMC" from 31/12/87 up until the time of casualty on or about
12/2/88."[57] The same would not have been issued had not the vessel been built according to
the standards set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any bearing at all to the
seaworthiness of the vessel?
"A Well, judging on this particular vessel, and also basing on the class record of the
vessel, wherein recommendations were made on the top side tank, and it was given
sufficient time to be repaired, it means that the vessel is fit to travel even with those
defects on the ship.
"COURT
What do you mean by that? You explain. The vessel is fit to travel even with defects? Is
that what you mean? Explain.
"WITNESS
"A Yes, your Honor. Because the class society which register (sic) is the third party looking
into the condition of the vessel and as far as their record states, the vessel was
class or maintained, and she is fit to travel during that voyage."
x x x
"ATTY. MISA
Before we proceed to other matter, will you kindly tell us what is (sic) the 'class +100A1
Strengthened for Ore Cargoes', mean?

"WITNESS

x x x

"A Plus 100A1 means that the vessel was built according to Lloyd's rules and she is
capable of carrying ore bulk cargoes, but she is particularly capable of carrying Ore
Cargoes with No. 2 and No. 8 holds empty.

"(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of
litigation should be recovered.
x x x

x x x
"COURT
The vessel is classed, meaning?

Due to the unfounded filing of this case, the private respondent was unjustifiably forced
to litigate, thus the award of attorneys fees was proper.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the
decision of the Court of Appeals in CA G.R. CV No. 36821 is AFFIRMED.

"A Meaning she is fit to travel, your Honor, or seaworthy."[58]

It is not required that the vessel must be perfect. To be seaworthy, a ship must be
reasonably fit to perform the services, and to encounter the ordinary perils of the voyage,
contemplated by the parties to the policy.[59]

[G.R. No. 109773. March 30, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELBERTO BASE, accusedappellant.
DECISION

As further evidence that the vessel was seaworthy, we quote the deposition of pilot
Vasquez:
"Q Was there any instance when your orders or directions were not complied with
because of the inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?

YNARES-SANTIAGO, J.:
In the early morning of February 8, 1990, a group of men arrived at the residence of Julianito
Luna y Tagle, Barangay Captain of Namunga, Rosario, Batangas. One of two men who
introduced themselves as policemen allegedly looking for a certain Hernandez suddenly shot
Julianito in the head with a .45 caliber pistol and immediately after, they sped away in an
owner-type jeep. Slxsc
Accused-appellant Elberto Base was among those identified on board the jeep and, together
with Conrado Guno, Frederick Lazaro and Eduardo Patrocinio, were indicted for Murder with
Direct Assault Upon a Person in Authority in a Second Amended Information [1] alleging that

"A. The vessel was navigating normally.[60]

Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an accident report
wherein he stated that on February 11, 1988, he checked and prepared the main engine,
machineries and all other auxiliaries and found them all to be in good running condition and
ready for maneuvering. That same day the main engine, bridge and engine telegraph and
steering gear motor were also tested.[61]Engineer Mata also prepared the fuel for consumption
for maneuvering and checked the engine generators.[62]
Finally, we find the award of attorneys fee justified.
Article 2208 of the New Civil Code provides that:
"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:

That on or about the 8th day of February 1990, at about 7:00 oclock in
the morning, in Barangay Namunga, Municipality of Rosario, Province of
Batangas, Philippines, and within the jurisdiction of this Honorable Court,
the above named accused, armed with a caliber .38 revolver and .45
caliber pistol, conspiring and confederating together, acting in common
accord and mutually helping one another, with treachery and evident
premeditation and by means of a motor vehicle which is a top down owner
type jeep colored green with Plate No. UV-CFU-178, and without
justifiable cause, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot with the said .45 caliber pistol, suddenly and
without warning, one Julianito Luna y Tagle known to them to be an
elected Barangay Captain (Punong Barangay) of the said Municipality
while in the performance of his official duties or on the occasion thereof,
or in connection therewith, thereby inflicting upon the latter [a] gun shot
wound, 1x1 cm., left temporal region, 2 cm. above the left ear, entry with
contusion collar, inwards, upwards and backwards, with exit at right
occipital region and with avulsion of brain, complete fracture of skull,
which directly caused his death.

Contrary to law.
Upon arraignment, accused Elberto Base and Conrado Guno pleaded not guilty [2] to the crime
charged. Frederick Lazaro and Eduardo Patrocinio have remained at large.
Trial thereafter ensued after which the court a quo rendered judgment, the dispositive portion
of which reads as follows:
WHEREFORE, in view of the foregoing, the Court finds accused Elberto
Base guilty beyond reasonable doubt of Murder, and he is hereby
sentenced to suffer the penalty of reclusion perpetua; to indemnify the
heirs of the deceased 50,000.00 for the death of Julianito Luna; the total
sum of P40,000.00 as actual damages; and the amount of P100,000.00,
by way of moral damages.
It appearing that accused Elberto Base is a detention prisoner, the
preventive imprisonment he had undergone should be taken into
consideration in the computation of his sentence. Sclaw
And for failure on the part of the prosecution to prove the guilt of accused
Conrado Guno beyond reasonable doubt of the charge against him in the
Information, he is hereby ACQUITTED.
SO ORDERED.[3]
Dissatisfied, accused Elberto Base interposed this appeal alleging that

men who introduced themselves as policemen and were looking for one
Hernandez.
Julianito told the two men that he did not know the man they were looking
for and told Arvin to accompany the two men to one Ka Prado. At that
juncture the man armed with a .45 pistol shot Julianito once hitting the
latter on his head and Julianito sprawled on the ground.
After the shooting the two men ran towards their top down owner jeep
colored green parked on the National Highway in front of the residence of
Julianito Luna and thereafter sped away towards the direction of the
Poblacion of Ibaan, Batangas. Sclex
Julianito Luna was rushed to a local hospital in Rosario, Batangas who
was given first aid and at a time when he was about to be brought to
Manila, he expired due to a gun shot wound, 1 x 1 cm. left temporal
region, 2 cm. above the left ear, entry with contusion collar, inwards,
upwards and backwards, with exit at right occipital region and with
avulsion of brain complete fracture of skull, which directly caused his
death.
Early reports having reached the 217th PC Co. in Masaya, Rosario,
Batangas a team of PC and Police elements was immediately dispatched
to track down the assassins of Julianito Luna and in due time the motor
vehicle of the assassins was recovered in the premises of the house of
Mrs. Amelia Quizon in Barangay Lodlod, Lipa City already parked but
without the assassins.
The motor vehicle was brought to the camp of the 217th PC Co., but was
immediately returned to the place based upon a notion that the assassins
would come back to the place to recover the same vehicle.

I
THE COURT ERRED IN CONVICTING ACCUSED-APPELLANT
ELBERTO BASE OF THE CRIME OF MURDER ON THE BASIS OF HIS
ALLEGED
EXTRA-JUDICIAL
CONFESSION
DESPITE
ITS
INADMISSIBILITY.
II
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF [THE] CRIME OF
MURDER.
The prosecutions version of the incident adopted the trial courts factual narration of what
transpired thus:
xxx around 7:00 oclock in the morning of February 8, 1990 three men
arrived in the residence of Julianito Luna in Namunga, Rosario, Batangas.
One was identified to be called Apple who knocked at the door and the
person who accompanied his two other companions. After Apple left,
Julianito Luna who was the Barangay Captain of the place together with
his wife and son Arvin went out and Julianito Luna talked with the two

As expected, not long thereafter Elberto Base one of the accused arrived
in the premises of the house of Mrs. Amelia Quizon in order to recover the
top down owner type jeep and it was then when he was collared by a
team of PC soldiers who were all in civilian clothes and brought to the
camp together with the motor vehicle.
In the camp in a line-up of several people Elberto Base was positively
identified by Amelia Quizon as one of the passengers of the jeep who
parked the jeep in her premises and also the person who tried to recover
the jeep when he was finally collared by the PC soldiers. What made her
so remember Base is the scar on the face of the latter.
It was also established that before the vehicle in question was brought to
Lodlod, Lipa City by the assassins, the latter passed by the house of the
brother of Leo Vale in San Jose, Batangas, and because the brother of
Leo Vale was not there, Leo Vale was requested by the passengers of the
jeep to accompany them to the house of the husband of Amelia Quizon in
Lodlod, Lipa City, to which request Leo Vale acceded.

And in a line-up of several people Leo Vale positively identified accused

Elberto Base as one of the passengers of the jeep whom he accompanied
to Lodlod, Lipa City, and which identification he reiterated when he
testified in Court. He also identified the subject vehicle, which the
passengers boarded and left in the premises of the residence of Amelia
Quizon. Xlaw
The owner of the jeep involved with Plate No. UV-CPU-170 which the
assassins used was established to be that of Loreto Angeles of
Paraaque, Metro Manila. It was established that on February 7, 1990
accused Frederick Lazaro known to him as a policemen of Paraaque
together with accused Eduardo Patrocinio borrowed from him the said
vehicle telling him that he was going to Carmen, Pangasinan, to which
request he acceded and promising him to return said jeep the following
day.
While in the camp of the 217th PC Company Elberto Base executed a
written Sworn Statement with the assistance and presence of Atty. Romeo
Reyes of Rosario, Batangas, who testified in court, to the effect that he
assisted the accused in the execution of his statement, by telling Elberto
Base of his constitutional rights before said execution. He further testified
that throughout the proceedings he was present and the accused read the
contents of his statement before swearing to the truth of the same.
A perusal of the statement of Elberto Base shows that he was well aware
of the intended plot to kill Julianito Luna, by admitting that a week before
the killing he was with the assassins surveiling the residence of Julianito
Luna.
He also admitted to be with accused Frederick Lazaro and Patrocinio
when the jeep in question was borrowed by the two and was with accused
Lazaro and Patrocinio when they left Kalayaan, Pasay City in proceeding
to San Juan, Batangas that day when Julianito Luna was shot.
Accused Base also admitted that he was left on a shed in Ibaan,
Batangas when Frederick Lazaro and Patrocinio returned to Rosario and
when they came back, he was fetched and was with them in going to San
Jose, Batangas in the house of one June Vale and later on in Barangay
Lodlod, Lipa City where they left the jeep in the premises of the house of
Amelia Quizon. And finally Base admitted in his statement that he was
told to recover the jeep in Lodlod, Lipa City.
Accused-appellant denied having anything to do with the fatal shooting of the victim and
alleges, in sum, that he was tortured to admit the crime. As culled from his testimony, at
around 5:00 to 6:00 p.m. in the afternoon of February 8, 1990, he had just disembarked at the
bus stop at Mataas na Lupa, Lipa City after visiting his uncle Mauro Espina, his sister-in-law
Perla Ronquillo and Opring Espina in Maricaban, Pasay City.[4] From there, he intended to
proceed on board a jeepney to the terminal near the market in Lipa City.[5] Xsc
However, he never reached his destination because he was picked up by three armed men in
civilian clothes who told him to come along with them as they would ask him some questions.
[6]
He was brought to Lodlod, Lipa City at the house of Amelia Quizon. [7] Upon their arrival at
Quizons place, a gun was poked at accused-appellant and he was ordered to lie down facing

the ground.[8] As he lay thus, he was trussed up at the neck, bound hand and foot
with abaca rope with his hands tied behind his back.[9] He was then loaded on a top down jeep
and brought to the 217th PC Company Detachment in Rosario, Batangas. [10]
Upon their arrival at the PC Detachment, accused-appellant was brought to the CAFGU
barracks and there he was mauled, pounded with gun barrels and gun butts [11] by fifteen (15)
persons[12] and forced to admit to the shooting of the victim. [13] As a result of the mauling, his
lips bled and he broke a tooth.[14] To underscore just how tightly his captors bound him,
accused-appellant likewise showed the court a quo a scar on his left arm allegedly caused by
the tying of the rope.[15]
As his lips bled because of the beating, accused wiped it across the leg of his trousers
pointing to a dark stain on the left leg of his pants he was wearing in court [16] which was
allegedly caused by brushing his bloodied lips thereon.[17] After wiping his bloodied mouth, the
physical abuse continued despite accuseds entreaties and protestations as to why he was
being beaten up.[18] He even informed them that he was a Barangay Council member, to no
avail.[19] After he was manhandled, he was interrogated by Sgt. Romulo Mercado who sat by a
typewriter and took down his statements.[20]
Accused-appellant, however, claimed that although Sgt. Mercado asked him questions, the
latter did not take down accuseds real answers and instead the said investigator typed what
he wanted to type therein.[21] Accused further testified that he was not given any opportunity to
read in whole or in part the typewritten statement [22] and that it was only upon arrraignment that
he came to know that the written statement taken from him which he was forced to sign was
actually a confession.[23] Scmis
With regard to the manner in which the custodial interrogation was conducted and the Sworn
Statement[24] was executed, accused-appellant testified that his pleas to his interrogators that
they observe his constitutional rights went unheeded. [25] He likewise claimed that although the
sworn statement bore the attesting signature of Atty. Romeo Reyes, he neither knew nor saw
Atty. Reyes at the 217th PC Detachment on February 8, 1990. [26] Accused-appellant denied
thet he knew his co-accused Conrado Guno, Frederick Lazaro and Eduardo Patrocinio. [27] He
likewise denied knowing Leo Valle and Erlinda Angeles.[28]
The crux of accused-appellants appeal hinges on the admissibility of the Sworn Statement
dated February 8, 1990. In challenging its probative value, he insists in sum that the document
is inadmissible in evidence because it was executed in violation of his constitutional rights,
firstly his right to counsel of his own choice.
We disagree.
Section 12, Article III of the Constitution embodies the mandatory safeguards afforded a
person under investigation for the commission of a crime and the concomitant duty of the
State and its agencies to enforce such mandate. It declares that:
SEC. 12. (1). Any person under investigation for the commission of an
offense shall have the right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.

(1).....No torture, force, violence, threat, intimidation

or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention
are prohibited.
(2).....Any confession or admission obtained in
violation of this or section 17 hereof shall be
inadmissible in evidence against him. Missc
(3).....The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to and rehabilitation of victims of
torture or similar practices, and their families.
Numerous decisions[29] of this Court rule that for an extrajudicial confession to be admissible, it
must be: 1.] voluntary; 2.] made with the assistance of competent and independent counsel;
3.] express; and 4.] in writing.[30]
The mantle of protection afforded by the above quoted constitutional provision covers the
period from the time a person is taken into custody for the investigation of his possible
participation in the commission of a crime or from the time he is singled out as a suspect in the
commission of the offense although not yet in custody.[31] The exclusionary rule is premised on
the presumption that the defendant is thrust into an unfamiliar atmosphere running through
menacing police interrogation procedures where the potentiality for compulsion, physical or
psychological is forcefully apparent.[32]

While the initial choice in cases where a person under custodial investigation cannot afford the
services of a lawyer is naturally lodged in the police investigators, the accused really has
the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer
provided by the investigators is deemed engaged by the accused where he never raised any
objection against the formers appointment during the course of the investigation and the
accused thereafter subscribes to the veracity of his statement before the swearing officer.[36]
Verily, to be an effective counsel "[a] lawyer need not challenge all the questions being
propounded to his client. The presence of a lawyer is not intended to stop an accused from
saying anything which might incriminate him but, rather, it was adopted in our Constitution to
preclude the slightest coercion as would lead the accused to admit something false. [37] The
counsel, however, should never prevent an accused from freely and voluntarily telling the
truth."[38]
A circumspect scrutiny of the records leaves this Court unconvinced of accused-appellants
claim that he was not adequately assisted by counsel during his custodial interrogation.
Noteworthy are the following excerpts of the testimony of the interrogating officer, Sgt. Romulo
Mercado:
ATTY. CRESCINI:
Q......Now, in connection with your investigation of the
death of Julianito Luna, do you remember if you ever
investigated a person, a certain person in the name
of Elberto Base y Malasmas?
WITNESS:

However, the rule is not intended as a deterrent to the accused from confessing guilt if he
voluntarily and intelligently so desires but to protect the accused from admitting what he is
coerced to admit although untrue.[33] It must be remembered in this regard that while the right
to counsel is immutable, the option to secure the services of counsel de parte is not absolute.
[34]
Indeed
The phrase "competent and independent" and "preferably of his own
choice"were explicit details which were added upon the persistence of
human rights lawyers in the 1986 Constitutional Commission who pointed
out cases where, during the martial law period, the lawyers made
available to the detainee would be one appointed by the military and
therefore beholden to the military.[35] Sc
xxx............................xxx............................xxx
Withal, the word "preferably" under Section 12 [1], Article 3 of the 1987
Constitution does not convey the message that the choice of a lawyer by
a person under investigation is exclusive as to preclude other equally
competent and independent attorneys from handling his defense. If the
rule were otherwise, then, the tempo of a custodial investigation will be
solely in the hands of the accused who can impede, nay, obstruct the
progress of the interrogation by simply selecting a lawyer who for one
reason or another, is not available to protect his interest. This absurd
scenario could not have been contemplated by the framers of the charter.

A......Yes, sir. Misspped

Q......Now, do you recall if he gave a written
statement ?
A......Yes, sir.
Q......Yes, but that written statement which the
accused Elberto Base gave you, will you be able to
recognize it ?
A......Yes, sir.
Q......I am showing you the original of a written
statement consisting of four pages, and found in the
possession of the public prosecutor, please go over
this written statement and tell us if you recognize it ?
WITNESS:
A......I was the one who took this that is why I know
the affidavit.

Q......It would appear from the face of this statement

on page one and again on page 4 that Elberto Base
was assisted by a lawyer in the person of Atty.
Romeo T. Reyes, is that correct ?
A......Yes, sir.
xxx............................xxx............................xxx
ATTY. CRESCINI :
Q......All these statements appears to be in question
and answer form, please tell the court who
propounded those questions ?

Q......And the aswer here appearing is "Opo." Who

gave that answer ?
A......Elberto, sir.
xxx............................xxx............................xxx
ATTY. CRESCINI:
Q......The first page also purports to show that you
have read and explain[ed] to the affiant Elberto Base
y Malasmas his contitutional rights. Did you actually
read that to him?
WITNESS:

WITNESS :
A......Yes, sir.
A......Yes, sir.
Q......and the answers appearing there, whose
answers were those ?
A......Those were the answers of Elberto Malasmas,
(sic) sir.

Q......Now there appears on page 3 marked as

Exhibit "B-2" this last question, the last question,
"Nakahanda ka bang lagdaan at sumpaan ang
salaysay na ito?" This is continued to page 4, did you
really ask him that question ?
A......Yes, sir.

xxx............................xxx............................xxx
Q......The questions and answer[s] appears to be in
Filipino. Before you reduce[d] the statement in
writing, did you explain or ascertain from him what
language or dialect he was conversant most? Scslx

Q......And the answer is here is "Opo". Who gave that

answer ?
A......Elberto Base, sir.
xxx............................xxx............................xxx

WITNESS :
ATTY. CRESCINI : Mesm
A......Yes, sir.
Q......What language did he prefer to be asked of
him ?
A......Tagalog, sir.
Q......Let me invite your attention to the question
appearing on page 2, "Narito si Atty. Romeo T. Reyes
na maari naming ibigay sa iyo. Nais mo ba na
asistihna ka niya ?" Did you ask him that question ?

Q......I will now address your attention to the

signature appearing on page 1 above the typewritten
name Elberto Base y Malasmas and below the
information regarding his constitutional rights and
second signature purports to be that of Elberto Base
y Malasmas also on page 1 and after he was offered
the servies of Atty. Romeo t. Reyes and after he has
also expressed his consent to be assisted by Atty.
Reyes, whose signature[s] are those both legibly
reading Elberto Base?
A......Those are the signatures of Elberto Base, sir.

A......Yes, sir.
xxx............................xxx........................................................xxx

ATTY. CRESCINI:
Q......Why do you know that those signatures marked
in evidence as Exhibits "V-6", "V-7" and "V-8" are the
signatures of Elberto Base?

A......He was in front of us, I and Atty. Reyes when he

affixed his signature.
Q......Did he sign it voluntarily?
A......Yes, sir.

WITNESS:
A......I was present when he affixed his signatures, sir.
Q......During the entire investigation you were
conducting of the witness Base, was Atty. Reyes
whom you delegated to assist Elberto Base present?

Q......This statement purports to have been

subscribed and sworn to before Captain Edmon
Zaide, Administering Officer on February 8, 1990. Do
you know that as a fact?
A......I know that, sir.

WITNESS:

Q......Why do you know that ?

A......He was there, sir.

A......Because Capt. Zaide was also there. We were

facing each other."[39]

Q......I will invite your attention to the signature

appearing on page one above the typewritten name
Romeo T. Reyes, opposite that of Elberto Base, as
well as another signature on the last page, below the
phrase, "assisted by" and above the typewritten name
Atty. Romeo T. Reyes. Whose signatures are those ?

Sgt. Mercado remained steadfast and unwavering with regard to the regularity in the conduct
of the investigation despite repeated attempts of defense counsel to throw him off track on
cross examination:

A......Those are the signatures of Atty. Reyes.

Q......Now, Mr. Witness, you are the investigator who

conducted an investigation on Elberto Base, is that
correct?

Q......Why do you say so?

A......Yes, sir.

A......When he signed that, we were facing each

other.

Q......How long have you been an investigator?

A......More or less eight years, sir.

xxx............................xxx............................xxx
ATTY. HERMOSO :
ATTY. CRESCINI:
Q......Before Elberto Base signed his statement
marked as Exhibits "V" to "V-3" respectively, did you
give him the opportunity to read the same?

Q......And approximately, before February 8, 1990, do

you rmember how many investgations have you
conducted ?
WITNESS :

WITNESS: Slx
A......I cannot remember anymore, sir.
A......Yes, sir.
Q......About one hundred Mr. Witness ?
Q......And after reading it out, did he sign his
statement?

A......Less, sir.

Q......Now, in your investigation conducted Mr.

Witness, would you agree with me that it is your
procedure that before proceeding with the
investigation, you usually reduced into writing the
rights of the accused to be investigated ? Sppedx
A......Yes, sir.
Q......And as a matter of fact, the right[s] were also
reduced to into writing when you investigated Elberto
Base, correct?
A......Yes, sir.
Q......Now, Mr. Witness, so you would agree with me
that before you started to investigate Mr. Elberto
Base, those rights of the accused were already
reduced into writing?
A......No, sir.
Q......So when did you reduce that (sic) rights into
writing ?

explain the significance of that written name Romeo

T. Reyes on the printed name Conrado T. Reyes?
WITNESS :
A......It was superimposed because I thought he was
Atty. Conrado Reyes. Jospped
ATTY. HERMOSO :
Q......So you will admit that you do not know that well
Atty. Romeo T. Reyes ?
A......I know him very well but I do not know his first
name.
Q......Alright, I noticed that before you conducted the
investigation on Elberto Base, the name Atty. Romeo
T. Reyes was already typewritten on the top portion of
your sworn statement. Is that correct ?
A......When he was in front of me and I was typing
that investigation, that was the time I put the name
Atty. Romeo T. Reyes.

WITNESS :
A......When he was in front of me, sir.
Q......Now, Mr. Witness, I noticed that in your
investigation conducted on Elberto Base, there is
already a name of a certain Atty. Romeo T. Reyes. Do
you know this Atty. Romeo T. Reyes? On the top
portion of that investigation you conducted on Elberto
Base ?
A......Yes, sir.
Q......How long have you known him?
A......More or less seven months, sir.
Q......And you know Atty. Reyes very well ?
A......Yes, sir.
Q......Now, Mr. Witness, I noticed that there is a
superimposition of the name Romeo T. Reyes on the
name printed as Conrado Reyes. Will you please

Q......So you will agree with me that even before you

started the investigation of Elberto Base, Atty. Reyes
name was already indicated at the start of
the salaysay?
ATTY. CRESCINI :
Objection, Your Honor. Misleading. Already answered.
COURT :
Sustained.
ATTY. HERMOSO:
Q......You will agree with me that before you reduced
the rights of the accused into writing, during the
custodial investigation the name Romeo T. Reyes
was already placed on the sworn statement?
ATTY. CRESCINI:
Same objection.

COURT:
Sustained.

Q......At the time that you inform[ed] the accused of

his constitutional rights particularly his right to be
assisted by counsel, did you personally inform him
that before you investigate him, he has the right to be
assisted by counsel of his choice ?

ATTY. HERMOSO:
WITNESS :
Q......Now, Mr. Witness, I noticed that there were
several signatures on this Exhibit "V" for the
prosecution marked as Exhibits "V-6", "V-7", V-9" on
page 1 and on Exhibit "V-3" submarkings "V-8", "V10" and "V-11" and "V-12", now will you please see
for yourself these markings. Now, these signatures
marked as "V-5", "V-6", "V-7" and "V-9" and "V-10",
"V-11" and "V-12" were affixed by the respective
names appearing therein simultaneously ?
WITNESS: Manikx

A......Yes, sir.
Q......And did he inform you that he will be assisted
by counsel ?
A......He told me he could not secure a services (sic)
of a lawyer during that time.
Q......But did he inform you [of] the name of his
lawyer whom he wanted to represent him? Nexold

A......Yes, sir.
A......No, sir.
Q......And these persons signed or affixed their
signatures after this statement of Elberto base was
typewritten, is it not, Mr. Witness?
A......Yes, sir.
COURT:
Q......Where was this statement taken?
A......In our headquarters, sir.
Q......Where was that?
A......At Barangay Masaya, Rosario, Batangas.
Q......And Atty. Reyes happened to be there?
A......We have him called (sic).
Q......Did you call Atty. Reyes before you investigated
this Base ?
A......Yes, sir.
COURT:

Q......How did the name of Atty. Reyes come into the

picture?
A......Because we know that said statement will not
be acceptable in court if the accused is to be
investigated and is not assisted by a lawyer, that is
why we have Atty. Reyes called and presented him to
the witness if he will accept Atty. Reyes.
COURT:
Q......And did the accused accept the services of Atty.
Reyes when you told him that?
A......Yes, sir.
Q......Did Atty. Reyes first confer with the accused ?
A......Yes, sir.
Q......During all the time ?
A......Yes, sir.
Q......Was there an occasion when Atty. Reyes would
advise the accused not to answer any question that
you profounded ?

A......I cannot remember, sir.

Objection Your Honor. Already

answered.

Q......Is there any occasion when the witness first

ask[ed] the opinion of Atty. Reyes whether he should
answer the question or not ?

COURT :

A......Yes, sir.

Q......It was upon your initiative and not the accused

that the services of Atty. Reyes [was secured] to
assist him in your investigation?

COURT:
WITNESS:
Proceed.
A......Yes, sir.
ATTY. HERMOSO:
ATTY. HERMOSO :
Q......You will admit Mr. Witness that Atty. Reyes
name came into the picture because of your
knowledge that this statement would not be
acceptable to court (sic) if the accused is not assisted
by counsel is it not ?

Q......So it is not the accused, would you agree with

me, it was you who requested ?
ATTY. CRESCINI:

WITNESS : Misox

Objection Your Honor. Already

answered.

A......Yes,sir. If he is a suspect.
ATTY. HERMOSO :
Q......So, did I get you right Mr. Witness that the
assistance of Atty. Romeo T. Reyes is through your
insistence and not thru the request of the accused ?
ATTY. CRESCINI :

follow-up

COURT :
Objection, Your honor. There is
no showing of insistence on the
part of the witness. It assumes a
fact not testified.

COURT :
Reform your question.
ATTY. HERMOSO :
Q......Do I get you right Mr. Witness that Atty. Romeo
T. Reyes name was brought to the 217th PC
Company to assist the accused Elberto Base
because of your knowledge that this statement is not
acceptable to court if not assisted by [a] lawyer?
ATTY. CRESCINI :

This is only a
question. Sppedjo

Reform and make it clear.

ATTY. HERMOSO :
Q......According to you a while ago, it is upon your
initiative that Atty. Romeo T. Reyes went to the 217th
PC Company to assist the accused ?
WITNESS :
A......I called for him. I was not yet sure if he will
assist the accused because he was not sure if the
accused will commit and the accused consented.
Q......Did the accused consented (sic) ?
A......He consented.

Q......Now, Mr. Witness, what was the condition, body

and mind of the accused at the time he was being
investigated ?
A......He was in good condition, sir.

Q......Did you go to the 217th PC Company?

A......Yes, sir.
Q......Were you able to see that person, Elberto
Base?

Q......Are you sure of that ?

A......Yes, sir.
A......Yes, sir.[40]
Q......Where in particular did you see him?
Even more revealing on the voluntariness in the taking of accused-appellants statement is the
following testimony of Atty. Romeo T. Reyes who was with the accused and assisted him
during the taking thereof:
ATTY. CRESCINI :
Q......Now, on that date, sometime at about 8:00 in
the evening, do you recall having been requested to
assist to (sic) a person under custodial investigation?

A......He was at the investigation room at the time I

arrived.
Q......If you see him again, will you be able to identify
him?
A......Yes, sir.

A......Yes, sir.

Q......Will you look inside this Courtroom and point to

him if he is present?

Q......And can you recall the name of that person

whom you assisted ?

A......Mr. Base is the one wearing a maong type shirt.

A......I think Elberto Base.

Q......And if you see that person and having so
requested, did you accommodate the request to
assist him?
A......Yes, sir.
Q......Who in particular requested you to give
assistance to Elberto Base? Maniks
A......I was made to understand that I was invited by
the company commander of the 217th PC Company
in Barangay Namunga, Rosario, Batangas and the
invitation was extended by a policeman and two (2)
PC soldiers whose name I can no longer recall.

Q......About what time in the evening of February 8,

1990 did they go to you when you went to the
headquarters to assist him? Oldmisox
A......The team that invited me arrived past 7:30 in the
evening, after having our supper.
Q......Were you able to talk to him?
A......Yes, sir.
Q......What about?
A......Well, I told him about the gravity of the offense
of which he is being investigated and also I informed
him of his constitutional right.

Q......But you can recall the name of the company

commander of the 217th PC Company?

Q......From whom in particular did you come to know

about the matter and gravity of his offense?

A......Well, I understand he is no longer the executive

officer who attended me and brought me to the place
where Base was. I cant recall the name.

A......The incident that took place was a public

knowledge in Rosario and I was apprised of the facts
and circumstances surrounding the commission of

the offense and I informed Mr. Base that you are

being investigated of a very grave offense.
Q......In what language did you confer with Mr. Base
more particularly as far as advising him of his
constitutional right is concerned?
A......In Tagalog, sir. Manikan

May I also invite your attention to

an initial appearing on the left
hand margin at the bottom of
page 2. Whose initial is that?
A......That is my initial, sir.
Q......How about this initial on page 3 at the left
bottom portion, whose initial is that?

Q......And after so advising him about the gravity of

the offense for which he is being investigated as well
as his constitutional right, what did Mr. Base tell you?

A......That is my initial.

A......Well, he insists that he is willing to give a

voluntary statement.

Q......And finally, I address your attention to the last

page to the signature appearing above the
typewritten name, Romeo Reyes, whose signature is
that?

Q......And did he in fact give a statement?

A......That is my signature.
A......Yes, sir.
Q......Were you present during the taking of his
statement?

Q......Do you know why you were required by the

investigator to affix your signatures on each and all
pages?
A......Yes, sir.

A......Yes, sir.
Q......Do you know if after the taking of the statement
if Mr. Base is given the opportunity to read such
written statement?

Q......Why?
A......Just to show that I was present when the
statement on each and every page were taken.

A......Yes, sir.
Q......I am showing to you the original of the
statement that purports to be the written statement of
Elberto Base consisting of four (4) pages, and may I
invite your attention to a signature appearing above
the typewritten name Atty. Romeo Reyes, do you
recognize that signature?

Q......I address your attention to the signatures

appearing on page 2 above the typewritten name
Elberto Base marked as Exhibits "B-6" and "B-7", so
you know whose signatures are those?
A......Yes, sir.
Q......Whose signatures are those?

A......Yes, sir.
A......Those are the signatures of Elberto Base.
Q......Whose signature is that?
A......That is my signature, sir.
ATTY. CRISCINI: Scncm
May I place on record that the
witness has identified Exh. "B-9".

Q......May I also invite your attention to the signature

appearing on the fourth page marked as Exh. "B-8"
above the typewritten name Elberto Base, whose
signature is that?
A......That is the signature of Elberto Base.

Q......Why do you know that Exhibits "B-6", "B-7" and

"B-8" are the signatures of the accused?
A......I was present when those signatures were
affixed by Elberto Base. Ncmmis
Q......It also appears that this statement was sworn to
on February 8, 1990 before Capt. Eduardo Zayde,
were you present when this was sworn to?

he was maltreated and that his lips were wounded,

he had a broken tooth and a broken bone at the
back. Now, in the course of your staying at the 217th
PC Company, he said you arrived at around 7:00 until
the conclusion of his statement, did you notice any
maltreatment of this accused Elberto Base?
A......I dont (sic) notice anything.
Q......Up to what time did you stay there Atty. Reyes
at the headquarters of the PC? Ncm

A......Yes, sir.
Q......Now, let us go back to the taking of the
statement. How did Elberto Base give this statement?
A......He gave it in the vernacular.
Q......And the manner in which he gave this
statement?

A......I stayed there past 12:00 oclock.

Q......From that time of your arrival sometime at 7:20
in the evening until your departure at past 12:00
oclock did you notice any force exerted or applied on
the person of Elberto Base in the course of the
investigation?
A......There is no force exerted against Base.

A......Casual manner.
Q......Did you notice any injury in (sic) his person?
Q......Was it voluntary?
A......I did not notice any injury, sir.[41]
A......Voluntary.
Q......The very first portion of this statement, Exh. "B",
started with a narration by the investigator for some
of the constitutional rights of Elberto Base. Were you
present when this was done?

Like Sgt. Mercado, Atty. Reyes remained constant and steadfast despite intense grilling by
defense counsel on cross-examination:
ATTY. HERMOSO :
Q......Alright, you said on February 8, 1990 at around
7:30 p.m. a team from the 217th PC Company came
to your house, is that correct ?

A......Yes, sir.
Q......And all the answers, was in the vernacular,
were these given by Elberto?
A......Yes, sir.

A......Yes, sir.
Q......How many persons came to your house then?

ATTY. CRISCINI:

A......I think more than five (5).

That will be all, Your Honor, just
two additional questions.

Q......Testifying before this Honorable Court in his

defense, the accused Elberto Base alleged not only
that he was not assisted by lawyer, that no lawyer
was presented and he also manifested that he was in
the investigation room and even in the course thereof

Q. .....You cannot say even the number of these

persons who came to your house ?
A......I cannot because 7:30 was dark and it was a
black out during that time they arrived.

Q......And these persons who came to your house,

did you allow them to enter your house ?

Q......Since when have you been aware of this

incident, Mr. Witness?

A......Yes, sir.

A......Since the very morning, that was the news

already in town.

Q......How many persons ?

xxx............................xxx............................xxx
A......I think three (3).
ATTY. HERMOSO:
Q......Do you know these persons who entered your
house ?
A......I can no longer remember the name, but I am
very sure there was one (1) policeman who was with
them.

Q......You went with them to the 217th PC Company?

A......Yes, sir.
Q......What vehicle did you use going to that
headquarters?

xxx............................xxx........................................................xxx
A......P.C. vehicle.
Q......Now, the moment these three (3) perosns
entered your house, what was their purpose in going
to your house, did they inform you what was their
purpose in going to your house? Sdaamiso

xxx............................xxx............................xxx
ATTY. HERMOSO :

A......Yes, sir.
Q......What ?
A......They extended to me an invitation to go to the
camp of the 217th PC Co. in Barangay Namunga,
Rosario, Batangas.
Q......So, the three policemen, what do you mean by
extended to you an invitation?
A......I was told that the company commander is
requesting my presence.
Q......Now, before this incident happened, before you
were invited to the 217th PC Co. do you already
know this incident?
A......Yes, sir, they informed me.

Q......Now, what happened when you arrived at the

217th PC Company? Scsdaad
A......I was introduced to Elberto Base.
Q......What happened after the introduction?
A......Well, I was told, that Elberto Base will give a
voluntary statement. I asked the investigating officer
in the person of Captain Zayde, if I can be allowed to
talk to Elberto Base before the actual taking of his
statement.
Q......So, Mr. Witness, when you said that you be
allowed to talk with Mr. Base before the actual taking
of the statement, when you arrived there, there was
no statement yet taken?
A......No statement yet.

Q......Before you were informed by these policemen

who came to your house are you aware already of
this incident of the killing of Julianito Luna?

Q......Now, Mr. Witness, who introduced you to Mr.

Elberto Base?

A......Yes, sir.

A......The company commander, whose name I forgot

and Capt. Zayde the investigating officer.

Q......And where was that introduction made?

A......Capt. Zayde was out in the room.

A......In the investigation room.

Q......How about the person who was typing?

Q......Who were present in the investigation room?

A......He was still there.

A......Mr. Base, Capt. Zayde and a PC officer also

who is in front of the typewriter.

Q......Aside from the person who was in front of the

typewriter, was there another person inside the
investigation room?

Q......What was that person doing in front of the

typewriter?

A......There was none.

A......Well, he was then ready to take the statement of

Mr. Base.

Q......And the accused while he

investigation room not in handcuffs?

Q......Do you know this person who is in front of the

typewriter?

A......He was not handcuff (sic).

A......Ya, yes.
Q......What is the name, Mr. Witness?
A......A certain Sgt. Mercado.
Q......How about you, do you know if he knows you,
this Sgt. Mercado?
A......Before the incident, I dont think so.

was

in

the

Q......Now, you said that you arrived there at 8:30 in

the evening of February 8, 1990, and according to
you the investigation officer have (sic) not yet taken
the statement of Elberto Base, is that correct?
A......Actually there were papers already in the
typewriter and I requested him to start all over again.
Q......And who was that person you informed to start
all over again?
A......Sgt. Mercado.

Q......Now, this Sgt. Mercado, is not included in the

person who fetched you in your house?

Q......And did he start all over again? Sdaad

A......I could not remember. SupremaX

A......Yes, sir, after I have conferred with Mr. Elberto

Base.

Q......Now, when you requested that you first talk with

Mr. Elberto Base, were your request granted?

Q......Where did you talk with Mr. Elberto Base?

Q......I am showing to you this alleged Extra-Judicial

Statement which was taken on February 8, 1990, at
217th PC Company at around 8:00 p.m. in the
presence of Atty. Romeo Reyes. Would you kindly tell
this Honorable Court if your statement a while ago
that your request from Sgt. Mercado to start all over
again was followed?

A......Well, inside the investigation room also.

A......Yes, sir.

Q......And inside the investigation room aside from

you and Mr. Elberto Base while you were talking
thereat, was there any person inside?

Q......So, actually the start of the giving of the

statement of the accused Elberto Base commenced
after 8:30?

A......Yes, sir.

ATTY. CRESCINI:

A......I am very certain, Your Honor.

Objection, if your Honor, please,
the witness did not fix the period
at exactly 8:30, he said around
8:30.
So
its
in
that
neighborhood. It would be or
should be around 8:30.

Q......And that was per your previous declaration 8:30

in the evening?.....
A......Yes, sir.
Q......After arriving in the camp you hate (sic) to talk
with the commanding officer and Capt. Zayde?

COURT:
To the best of your recollection,
at about what time did the
investigator I am referring to Sgt.
Mercado, start taking down the
written statement of Elberto
Base?
A......Sir, in my presence?
Q......In your presence?
A......It was past 8:00 oclock already, sir.
Q......Can you not give a more specific time
considering your previous testimony that you arrived
in the camp at around 8:30 in the evening?
A......Maybe past 8:30, Your Honor.

A......Yes, sir.
Q......And only after such conference were you
introduced with accused Elberto Base?
A......Conference with himself.
Q......With Capt. Zayde and the commanding officer?
A......I have no conference with Capt. Zayde with
Elberto Base, only.
Q......By conference, I meant that you talk (sic) with
the commanding officer and Capt. Zayde before you
had your conference with the accused?
A......Yes, sir.

Q......You are not certain?

Q......And for how long did your conference with the

accused last?

A......I am not very sure of the time, Your Honor.

A......About 20 minutes, sir.

Q......When the investigation started taking down the

statement of Elberto Base in your presence, you did
not consult your watch to determine what time the
investigation started?

Q......It was only after the conference with the

accused that his statement was taken again?

A......I did not, Your Honor, but I am very sure now

that because of my conference that I have with
Elberto Base the actual taking of the statement took
place about 8:30 to 9:00 oclock in the evening.

A......Yes, sir.
ATTY. HERMOSO:
Now, Mr. Witness, you said you
were able to talk with Mr. Base
after he was introduced to you?

COURT: Juris
So you are not certain as to the
exact time?

A......Yes, sir.

Q......And the first thing you utter (sic) when he was

introduced to you, is that, I am Atty. Reyes?

A......And that his statement that will be given will be

used against him. That is all that I informed the
accused, Your Honor.

A......Yes, sir, I introduced myself.

xxx............................xxx............................xxx
Q......That you were requested by Capt. Zayde to
help you in the investigation?
A......Thats not exactly (sic). Scjuris
Q......You said, that is not exactly, what was the exact
words? (sic)
A......I could not recall exactly the words that I used
but I told him that I was requested to assist you in the
conduct of the investigation.

Q......Now, I noticed in this alleged Extra-Judicial

investigation, Mr. Witness, that there was an erasure
in the name Conrado Reyes, do you have a hand in
the changing of your name in the first name, Mr.
Witness? Jurissc
A......Yes, sir, this is my correction.
Q......You requested correction of your name after it
was already typewritten?
A......Yes, sir.

COURT:
What else did you tell him?
A......And I told him if he has a counsel of his own.
And he said, none. I further asked him if he is willing
to be assisted by counsel in the giving of his
statement consider- (sic) the gravity of the offense for
which he is being investigated.
Q......Any further statement that you gave?
A......After saying that he is willing to make use of my
assistance, I informed him of his constitutional rights
and after I have informed him I asked him if he is still
willing to give a free and voluntary statement.
Q......You said that you informed him of his
constitutional rights, what constitutional rights did you
inform the accused?
A......That he is still presumed to be innocent, that he
is entitled to a lawyer of his own choice and that it is
his right to remain silent.
Q......The rights that you told him you explained to
him?
A......Yes, sir.
Q......Are those the rights that you explained to him?

ATTY. HERMOSO:
I think that would be all for the
witness, Your Honor.
COURT:
You said that you informed the
accused of his right to remain
silent, will you demonstrate to the
Court how you explained that
right of the accused to Elberto
Base?
A......Yes, sir, I told him in the vernacular that, "Ikaw
ay puedeng huwag magsalita at sumagot sa mga
katanungang (sic) ng investigador dito sa
imbistigasyong ito hanggang sa ikaw ay huwag na
(sic) magbigay ng salaysay sapagkat ito ay maaring
gamitin laban sa iyo."
Q......Thats how you explained to the accused?
A......Yes, Your Honor, on that particular right to
remain silent.
Q......For how many minutes did the investigation
last?
A......I think its almost three (3) hours.

Q......In the course of the investigation, when a

particular question is asked to the accused, you, as a
counsel, during that proceedings, did you at any
particular moment advise your client not to answer
that question because it will be very detrimental to
him?

A......Yes, Your Honor.

Q......And did you discuss this written statement to
the accused before he signed it?
A......Yes, sir.

A......There are times before the actual taking of the

statement, I interviewed Mr. Base and after narrating
to me the incident I told him if that will be the
substance of his testimony to be given to the
investigator and he told me, yes. And on the basis of
that assurance, will (sic) I allow him to answer
questions within the context of the narration that he
gave to me, although there are times when I have to
caution him during our conference that this is
dangerous. There are statements that are dangerous
and I cautioned him to beware. Sppedsc
Q......You have not yet answered my question.
Repeat the question.
Q......In the course of the investigation, when a
particular question is asked to the accused, you, as a
counsel, during that proceedings, did you at any
particular moment advise your client not to answer
that question because it will be very detrimental to
him?
A......I cautioned him to think first before he answer
(sic).
Q......But your observation was not included in the
investigation conducted by the investigator?
A......It was not included.
Q......You did not request that this advice to the
accused be given to the accused?
A......I did not, Your Honor.
Q......After the statement of the accused was taken
then by the investigator, you and the accused
together read the statement again?
A......Yes, Your Honor.
Q......Read the statement for the first time?

Q......And you advise him not to sign the statement?

A......Well, I told him if he is still willing to sign the
statement.
Q......You did not answer the question of the court?
A......I did not advise him to sign.[42]
The foregoing testimonial excerpts vividly shows that Atty. Reyes participation during the
custodial investigation of accused was anything but perfunctory. Much less could it be argued
that he was remiss in his duties to assist the accused. On the contrary, they in fact underscore
his active participation in the proceedings. Calrspped
To support his claim that his sworn statement was irregularly taken, accused-appellant further
insists that the same was obtained through force and paints a graphic picture of torture at the
hands of fifteen persons who repeatedly beat him up with gun barrels and butts [43] as a result
of which he allegedly lost a tooth and sustained contusions, a busted mouth and broken bones
at his back.[44]
We remain unpersuaded.
For all accused-appellants protestations to the contrary, his tale of coercion and torture in the
hands of his interrogators taxes credulity vis--vis his testimonial declarations that despite
supposedly being severely mauled and sustaining injuries as a result thereof he did not: 1.]
complain to the senior officer of his interrogators about how he was treated during his
custodial investigation;[45] 2.] tell his wife of his injuries when she arrived the next day nor did
he ask her to take him to a hospital for treatment; [46] 3.] inform his lawyer of the alleged injuries
he sustained at the hands of his interrogators although he had several opportunities to do so;
[47]
4.] inform his lawyer that he was forced to sign the sworn statement; [48] 5.] present any
medical certificate to prove the existence of his alleged injuries. Topping accused-appellants
incredible tale of torture is his almost two-year silence on the incident which only came to light
when he testified in court. [49] Accused-appellant explains away these lapses as the products of
his fear of his interrogators.[50] However, his failure to speak up and disclose his fear at the
earliest opportunity subjects to serious doubt the reality and substance of that supposed fear.
[51]
Along the same vein, accused-appellants unsupported claims of physical abuse in the
hands of his interrogators simply ring hollow in the absence of other proof to corroborate them.
Indeed Sccalr
" bare assertions of maltreatment by the police authorities in extracting
confessions from the accused are not sufficient in view of the standing
rule enunciated in the cases of People v. Mada-I Santalani;[52] People v.
Balane;[53] and People v. Villanueva,[54] that where the defendants did not
present evidence of compulsion, or duress nor violence on their person;

where they failed to complain to the officer who administered their oaths;
where they did not institute any criminal or administrative action against
their alleged intimidators for maltreatment; where there appeared to be no
marks of violence on their bodies; and where they did not have
themselves examined by a reputable physician to buttress their claim, all
these were considered by this Court as factors indicating voluntariness."[55]
Going by accused-appellants account, the Court likewise finds it odd for accused-appellants
interrogators who picked him up for questioning as he disembarked from a bus at Mataas na
Lupa, Lipa City[56]to take a detour by first bringing him to Lodlod, Lipa City at the house of
Amelia Quizon[57] where he was bound hand and foot at gun point, [58] loaded on a top down
jeep and then brought to the 217th PC Detachment in Rosario, Batangas [59] instead of being
forthwith taken to the PC Camp for questioning after being apprehended at the bus stop.
Settled is the rule that evidence, to be believed, must not only proceed from the mouth of a
credible witness, but must be credible in itself. [60] Suffice it to state in this regard that such
circumstances narrated by accused-appellant only tends to underscore the incongruity of his
tale of torture. Calrsc
[61]

A circumspect scrutiny of accused-appellants Sinumpaang Salaysay clearly shows how he

and his co-accused planned the killing of the deceased as well as the sequence of events
before and after the occurrence of the incident. These events could not have been supplied
either any of those interviewed by the peace officers or by the peace officers themselves
because the said statement is replete with details which only one who has an intricate
knowledge thereof can supply.[62] Verily
"It remains only to note that the extrajudicial statements of Romeo Jabil
and Rufo Llenarasas are replete with details and they corroborate and
complement each other so substantially that it is very difficult to suppose
that the statements had been merely derived from the creative
imagination of the police officers involved. The confessions, in other
words, have the ring of truth about them."[63]
When, as in this case, "[a]n extrajudicial statement satisfies the requirements of the
Constitution, it constitutes evidence of a high order because of the strong presumption that no
person of normal mind would deliberately and knowingly confess to a crime unless prompted
by truth and conscience.[64] The defense has the burden of proving that it was extracted by
means of force, duress, promise or reward."[65] Unfortunately for accused-appellant, he failed
to overcome the overwhelming prosecution evidence to the contrary.
Section 3, Rule 133 of the Rules of Court provides that "[a]n extrajudicial confession made by
an accused shall not be sufficient ground for conviction, unless corroborated by evidence
of corpus delicti." In this case the prosecution presented other evidence to prove the two
elements of corpus delicti, to wit: a.] a certain result has been proven, i.e. a man has died; and
2.] some person is criminally responsible.[66]
In this case, it is indubitable that a crime has been committed and that the other pieces of
prosecution evidence clearly show that accused-appellant had conspired with the other
accused to commit the crime.[67] In fact, he was seen by the prosecution witnesses in the
company of his other co-accused. Furthermore, Atty. Romeo T. Reyes and the interrogator,
Sgt. Romulo Mercado, testified to the voluntariness of his confession. In this regard, it must be
stressed that the aforementioned rule merely requires that there should be some other
evidence "tending to show the commission of the crime apart from the confession."[68] Scedp

All told, an overall scrutiny of the records of this case leads us to no other conclusion but the
correctness of the trial court in holding that the accused-appellant and his co-accused
committed murder. What remains to be determined is whether the elements of the crime have
been established.
Conspiracy is alleged in the information charging the accused-appellant of the crime.
Conspiracy
" exists when two or more persons come to an agreement conerning
the commission of a felony and decide to commit it. Direct proof is not
essential, for conspiracy may be inferred from the acts of the accused
prior to, during or subsequent to the incident. Such acts must point to a
joint purpose, concert of action or community of interest. Hence, the
victim need not be actually hit by each of the conspirators for the act of
one of them is deemed the act of all."[69]
A perusal of the Sinumpaang Salaysay[70] would readily show accused-appellants complicity in
the slaying of the victim. In the sworn statement, he narrated that a week before the killing, he
was with the assassins in conducting a surveillance of the victims residence. [71] He also
declared that he was with Frederick Lazaro and Eduardo Patrocinio when the jeep with Plate
Number CFU-178 was borrowed by the two accused [72] and that he was with them when they
left Pasay City bound for San Juan, Batangas, the day the victim was shot. [73] He likewise
averred that he was left on a shed in Ibaan, Batangas when Lazaro and Patrocinio returned to
Rosario, Batangas and that he was with them when they went to the house of Jun Vale at San
Jose, Batangas;[74] from there they proceeded to Lodlod, Lipa City where they left the jeep in
the premises of Amelia Quizons house. [75] Finally, accused-appellant admitted that he was told
to recover the jeep in Lodlod, Lipa City on the day he was arrested.[76]
The one-week interval when accused-appellant and his co-conspirators first cased the victims
house up to the actual date of the killing underscores the presence of evident premeditation.
For this aggravating circumstance to be considered, there must be proof of the following
elements thereof, i.e., 1.] the time the offenders determined to commit the crime; 2.] an act
manifestly indicating that they clung to their determination; and 3.] a sufficient lapse of time
between determination and execution to allow reflection upon the consequences of the act.
[77]
Sdjad
Treachery is also alleged in the information indicting the accused. There is treachery "[w]hen
the offender commits any of the crimes against persons, employing means, methods or forms
in the execution thereof which tend directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might make." [78] The essence
of alevosia is the swift and unexected attack on the unarmed victim without the slightest
provocation on the victims part.[79] The fact that treachery may be shown if the victim is
attacked from behind does not mean it can not also be appreciated if the attack is frontally
launched.[80] Even a frontal attack can be treacherous when it is sudden and the victim is
unarmed.[81] In this case, the suddenness of the shooting without the slightest provocation from
the victim who was unarmed and had no opportunity to defend himself, clearly qualified the
crime with treachery.[82]
At the time the crime was committed on February 8, 1990, murder was punishable
by reclusion temporal in its maximum period to death. Considering the presence of two
aggravating circumstances with no mitigating circumstance, the maximum penalty of death
would be imposable under Article 63 of the Revised Penal Code. However, since the offense
was committed during the suspension of the imposition of the death penalty and prior to its
reimposition under Republic Act No. 7659,[83] the imposable penalty is reclusion perpetua.

[84]

This penalty is single and indivisible, thus, it shall be imposed regardless of any attending
aggravating or mitigating circumstances.[85]
The sum of Fifty Thousand (P50,000.00) Pesos awarded by the court a quo as civil
indemnity ex delicto, without further need of proof of damage, is proper as it follows prevailing
jurisprudence and is in line with the policy of the Court. [86] With regard to actual damages, the
trial court found that the wife of the victim spent Twenty Five Thousand (P25,000.00) Pesos for
food and drinks during the deceaseds ten-day wake; Ten Thousand (P10,000.00) Pesos for
funeral services and transportation expenses of Five Thousand (P5,000.00) Pesos. [87] Since
accused-appellant does not question this finding of the trial court, he is liable to private
complainants in the said amount as actual damages.[88] Misact
This Court, however, can not sustain the award of moral damages in the absence of sufficient
evidence to support it.[89] It is elementary that for moral damages to be properly adjudicated in
criminal offenses resulting in physical injuries, there must be a factual basis for the award
thereof.[90]
WHEREFORE, with the sole MODIFICATION that the award of One Hundred Thousand
(P100,000.00) Pesos by way of moral damages be DELETED, the Decision appealed from is
hereby AFFIRMED in all other respects.
[G.R. No. 144656. May 9, 2002] THE PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. GERRICO VALLEJO Y SAMARTINO, accused-appellant.
DECISION
PER CURIAM:
This is an appeal from the decision [1] of the Regional Trial Court, Branch 88, Cavite City,
sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in
the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of
a 9-year old child, Daisy Diolola, in Rosario, Cavite on July 10, 1999.
The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with
Homicide alleged:
That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province
of Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named
accused, with lewd design, by means of force and intimidation, did then and there, willfully, unlawfully
and feloniously have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child
against the latters will and while raping the said victim, said accused strangled her to death.
CONTRARY TO LAW.[2]
Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded
not guilty to the crime charged, whereupon trial ensued.
Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victims mother;
Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of
Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorneys Office; Pet Byron Buan, NBI Forensic
Biologist; Aida Viloria-Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite
police station; and Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of the victim.

The victims mother, Ma. Nida Diolola, testified that at around 1:00 oclock in the afternoon of
July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their neighbors house in Pilapil,
Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with
her lessons. Aimees house, where accused-appellant was also staying, is about four to five meters
away from Daisys house. Ma. Nida saw her daughter go to the house of her tutor. She was wearing
pink short pants and a white sleeveless shirt. An hour later, Daisy came back with accusedappellant. They were looking for a book which accused-appellant could copy to make a drawing or a
poster that Daisy would submit to her teacher. After finding the book, Daisy and accused-appellant
went back to the latters house. When Ma. Nida woke up at about 5:30 oclock after an afternoon nap,
she noticed that Daisy was not yet home. She started looking for her daughter and proceeded to the
house of Aimee, Daisys tutor. Aimees mother told Ma. Nida that Daisy was not there and that Aimee
was not able to help Daisy with her lessons because Aimee was not feeling well as she had her
menstrual period. Ma. Nida looked for Daisy in her brothers and sisters houses, but she was not there,
either. At about 7:00 oclock that evening, Ma. Nida went back to her neighbors house, and there saw
accused-appellant, who told her that Daisy had gone to her classmates house to borrow a book. But,
when Ma. Nida went there, she was told that Daisy had not been there. Ma. Nida went to the dike and
was told that they saw Daisy playing at about 3:30 oclock in the afternoon. Jessiemin Mataverde also
told Ma. Nida that Daisy was playing in front of her house that afternoon and even watched television in
her house, but that Daisy later left with accused-appellant.
Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a
Saturday, until the early morning of the following day, June 11, 1999, a Sunday, but their search proved
fruitless. Then, at about 10:00 oclock in the morning of June 11, 1999, she was informed that the dead
body of her daughter was found tied to the root of an aroma tree by the river after the compuerta by a
certain Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her
daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied around her
neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario
police. The other barangay officers fetched accused-appellant from his house and took him to the
barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico Vallejo as the
probable suspect since he was with the victim when she was last seen alive.[3]
Another witness, Jessiemin Mataverde, testified that at around 3:00 oclock in the afternoon of
that day, she saw Daisy playing with other children outside her house. She asked Daisy and her
playmates to stop playing as their noise was keeping Jessiemins one-year old baby awake. Daisy
relented and watched television instead from the door of Jessiemins house. About five minutes later,
accused-appellant came to the house and told Daisy something, as a result of which she went with him
and the two proceeded towards the compuerta.
Jessiemin testified that at around 5:00 oclock that afternoon, while she and her daughter were in
front of a store across the street from her house, accused-appellant arrived to buy a stick of Marlboro
cigarette. Accused-appellant had only his basketball shorts on and was just holding his shirt. They
noticed both his shorts and his shirt were wet. After lighting his cigarette, accused-appellant left.[4]
Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 oclock
in the afternoon of July 10, 1999, while she and her husband and children were walking towards the
compuerta near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who
said that it was a good day for catching milkfish (bangus). For this reason, according to this witness,
they decided to get some fishing implements. She said they met accused-appellant Gerrico Vallejo near
the seashore and noticed that he was uneasy and looked troubled. Charito said that accused-appellant
did not even greet them, which was unusual. She also testified that accused-appellants shorts and
shirt (sando) were wet, but his face and hair were not.[5]
SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de
la Cruz, Jr. responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2
Lariza. When they arrived, Daisys body was already in the barangay hall. SPO1 Cuevas took
photographs of the body. At that time, Daisy was wearing pink short pants and a dirty white panty with
a dirty white sleeveless shirt wrapped around her neck. The body was afterwards taken to the Samson
Funeral Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie

Quinto was fishing near the compuerta when he accidentally hit the body of Daisy, which was in the
mud and tied to the root of an aroma tree.

Stomach, contains rice and other food particles.

Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond
and Esting, were also taken into custody because they were seen with accused-appellant in front of the
store in the late afternoon of July 10 1999. Later, however, the two were released. Based on the
statements of Jessiemin Mataverde and Charito Paras-Yepes, the policemen went to the house of
accused-appellant at about 4:00 oclock in the afternoon of July 11, 1999 and recovered the white
basketball shirt, with the name Samartino and No. 13 printed at the back, and the violet basketball
shorts, with the number 9 printed on it, worn by accused-appellant the day before. The shirt and shorts,
which were bloodstained, were turned over to the NBI for laboratory examination. [6]

CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 oclock in the
evening of July 11, 1999, he conducted a physical examination of accused-appellant. His
findings[7] showed the following:
PHYSICAL FINDINGS:
Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, right
anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x
3.0 cms. and left, 13.0 x 5.0 cms.
Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
Lacerations, left ring finger, posterior aspect, 0.3 cm.
(Living Case No. BMP-9902, p. 101, records)
At about 10:00 oclock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario,
Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following
postmortem findings:[8]
Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue
protruding, bloating of the face and blister formation.
Washerwomans hands and feet.
Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions,
forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior
aspect, 8.0 x 5.0 cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect,
upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0
cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x
4.0 cms. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and
middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect.
Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.
Fracture, tracheal rings.
Hemorrhages, interstitial, neck, underneath, nailmarks. Petechial hemorrhages,
subendocardial, subpleural.
Brain and other visceral organs are congested.

GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and
congested. Hymen, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00
oclock positions, edges with blood clots. [Autopsy Report No. BTNO-99-152]
Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape
and murder at past 10:00 oclock in the evening of June 11, 1999. The mayor said he immediately
proceeded to the municipal jail, where accused-appellant was detained, and talked to the
latter. Accused-appellant at first denied having anything to do with the killing and rape of the
child. The mayor said he told accused-appellant that he could not help him if he did not tell the
truth. At that point, accused-appellant started crying and told the mayor that he killed the victim by
strangling her. Accused-appellant claimed that he was under the influence of drugs. The mayor asked
accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as his
lawyer. When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house and
took him to the police station about 11:00 oclock that evening.[9]
Atty. Lupo Leyva corroborated Mayor Abutans testimony. He said that upon arriving at the
police station, he asked accused-appellant if he wanted his services as counsel in the
investigation. After accused-appellant assented, Atty. Leyva testified that he sort of discouraged the
former from making statements as anything he said could be used against him. But, as accusedappellant was willing to be investigated, Atty. Leyva said he advised him to tell the truth. PO2 Garcia,
the investigator, informed accused-appellant of his constitutional rights to remain silent and to be
assisted by counsel and warned him that any answer he gave could and might be used against him in a
court of law. PO2 Garcia asked questions from accused-appellant, who gave his answers in the presence
of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read it and afterwards
signed it. Atty. Leyva testified that he did not see or notice any indication that accused-appellant had
been maltreated by the police. In his sworn statement (Exh. M), accused-appellant confessed to killing
the victim by strangling her to death, but denied having molested her.[10]
Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood
samples from accused-appellant in his office for laboratory examination to determine his blood
type. Likewise, the basketball shorts and shirt worn by accused-appellant on the day the victim was
missing and the victims clothing were turned over to the Forensic Chemistry Division of the NBI by
PO1 Amoranto of the Rosario, Cavite police for the purpose of determining the presence of human
blood and its groups.[11]
The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to
belong to Group O. The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with
patches Grizzlies in front and SAMARTINO at the back; (2) one (1) violet no. 9 athletic basketball
short pants; (3) one (1) white small Hello Kitty T-shirt with reddish brown stains; (4) one (1) cut
pink short pants with reddish brown stains; (5) one (1) cut dirty white small panty with reddish brown
stains, were all positive for the presence of human blood showing the reactions of Group A. [12]
Pet Byron Buan also testified that before he took the blood samples, he had a conversation with
accused-appellant during which the latter admitted that he had raped and later killed the victim by
strangulation and stated that he was willing to accept the punishment that would be meted out on him
because of the grievous offense he had committed. Mr. Buan observed that accused-appellant was
remorseful and was crying when he made the confession in the presence of SPO1 Amoranto at the NBI
laboratory.[13]
When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of
July 13, 1999 in Cavite City, accused-appellant had with him a handwritten confession which he had
executed inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant admitted

not only that he killed the victim but that he had before that raped her. Accused-appellant said he laid
down the victim on a grassy area near the dike. He claimed that she did not resist when he removed her
undergarments but that when he tried to insert his penis into the victims vagina, she struggled and
resisted. Accused-appellant said he panicked and killed the child. He then dumped her body in the
shallow river near the compuerta and went home.[14]
Atty. Sikat Agbunag, a lawyer from the Public Attorneys Office, testified that at noon of July 13,
1999, while she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant
and some policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his
confession. Atty. Agbunag read the document, informed accused-appellant of his constitutional rights,
and warned him that the document could be used against him and that he could be convicted of the case
against him, but, according to her, accused-appellant said that he had freely and voluntarily executed the
document because he was bothered by his conscience. Accused-appellant, assisted by Atty. Agbunag,
then affixed his signature to the document and swore to it before Prosecutor Itoc. [15]
At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet
Byron Buan took buccal swabs and hair samples from accused-appellant, as well as buccal swabs and
hair samples from the parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The
samples were submitted to the DNA Laboratory of the NBI for examination.

1999 because of fear of reprisal by residents of their barangay.[18] According to accused-appellant,

Mayor Abutan and Atty. Leyva were not present when he gave his confession to the police and signed
the same. Accused-appellant claims that although Exhibit N was in his own handwriting, he merely
copied the contents thereof from a pattern given to him by the police.[19]
On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the
offense charged. The dispositive portion of its decision reads:
WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo
y Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the
Information, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is
directed to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and
P50,000.00 as moral damages.
SO ORDERED.[20]
Hence this appeal. Accused-appellant contends that:

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens
collected by Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during
the autopsy contained the DNA profiles of accused-appellant and the victim. [16]

I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY AND
WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION.

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee
Vallejo. Their testimonies show that at about 1:00 oclock in the afternoon of July 10, 1999, accusedappellant, Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario,
Cavite when Daisy Diolola came to ask accused-appellant to draw her school project. After making the
request, Daisy left.[17] Accused-appellant did not immediately make the drawing because he was
watching television. Accused-appellant said that he finished the drawing at about 3:00 oclock in the
afternoon and gave it to the victims aunt, Glory. He then returned home to watch television again. He
claimed he did not go out of the house until 7:00 oclock in the evening when he saw Ma. Nida, who
was looking for her daughter. Accused-appellant said he told her that he had not seen Daisy. After that,
accused-appellant said he went to the pilapil and talked with some friends, and, at about 8:00 oclock
that evening, he went home.

II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO

THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-APPELLANT
DESPITE ITS BEING HEARSAY IN NATURE.

At 9:00 oclock in the morning of July 11, 1999, barangay officials fetched accused-appellant
from his house and took him to the barangay hall, where he was asked about the disappearance of
Daisy. He claimed that he did not know anything about it. Accused-appellant was allowed to go home,
but, at 11:00 oclock that morning, policemen came and invited him to the police headquarters for
questioning. His mother went with him to the police station. There, accused-appellant was asked
whether he had something to do with the rape and killing of Daisy. He denied knowledge of the crime.

We find accused-appellants contentions to be without merit.

At 4:00 oclock that afternoon, accused-appellant accompanied the police to his house to get the
basketball shorts and shirt he was wearing the day before, which were placed together with other dirty
clothes at the back of their house. According to accused-appellant, the police forced him to admit that
he had raped and killed Daisy and that he admitted having committed the crime to stop them from
beating him up. Accused-appellant claimed the police even burned his penis with a lighted cigarette
and pricked it with a needle.
Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him
in the investigation room of the police station and told him that they would help him if he told the
truth. Atty. Leyva asked him whether he wanted him to be his counsel, and accused-appellant said he
answered in the affirmative. He said Atty. Leyva informed him of his constitutional rights. Accusedappellant claimed that, although he admitted to Mayor Abutan and Atty. Leyva the commission of the
crime, this was because the police had maltreated him. Accused-appellant said he did not tell the mayor
or Atty. Leyva that he had been tortured because the policemen were around and he was afraid of
them. It appears that the family of accused-appellant transferred their residence to Laguna on July 12,

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING

PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION OF
THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME WAS
OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE
LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION
DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL
ASSISTANCE.

First. An accused can be convicted even if no eyewitness is available, provided sufficient

circumstantial evidence is presented by the prosecution to prove beyond reasonable doubt that the
accused committed the crime.[21] In rape with homicide, the evidence against an accused is more often
than not circumstantial. This is because the nature of the crime, where only the victim and the rapist
would have been present at the time of its commission, makes the prosecution of the offense particularly
difficult since the victim could no longer testify against the perpetrator. Resort to circumstantial
evidence is inevitable and to demand direct evidence proving the modality of the offense and the
identity of the perpetrator is unreasonable.[22]
Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient
to sustain a 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 circumstances is such as to produce conviction beyond

reasonable doubt.[23]

In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the
guilt of accused-appellant:

1. The victim went to Aimee Vallejos house, where accused-appellant was residing, at
1:00 oclock in the afternoon of July 10, 1999, for tutoring.
2. At around 2:00 oclock in the afternoon, accused-appellant and Daisy went together to
the latters house to get a book from which the former could copy Daisys school
project. After getting the book, they proceeded to accused-appellants residence.
3. From accused-appellants house, Daisy then went to the house of Jessiemin Mataverde
where she watched television. Accused-appellant thereafter arrived and whispered
something to Daisy, and the latter went with him towards the compuerta.
4. At about 4:30 oclock in the afternoon, the spouses Iluminado and Charito Yepes saw
accused-appellant coming out of the compuerta, with his clothes, basketball shorts,
and t-shirt wet, although his face and hair were not. According to these witnesses, he
looked pale, uneasy, and troubled (balisa). He kept looking around and did not even
greet them as was his custom to do so.
5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish
with dynamite) was docked by the seashore.
6. A little before 5:00 oclock in the afternoon, Jessiemin Mataverde also saw accusedappellant buying a Marlboro cigarette from a store. Jessiemen also noticed that
accused-appellants clothes were wet but not his face nor his hair.
7. By 5:30 oclock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was
told by accused-appellant that Daisy had gone to her classmate Rosarios house. The
information proved to be false.
8. Daisys body was found tied to an aroma tree at the part of the river near the
compuerta.
9. During the initial investigation, accused-appellant had scratches on his feet similar to
those caused by the thorns of an aroma tree.
10.

11.
12.

The clothes which accused-appellant wore the day before were

bloodstained. The bloodstains on accused-appellants clothes and on Daisys clothes
were found positive of human blood type A.
Accused-appellant has blood type O.
The vaginal swabs from Daisys body contained her DNA profile as well as that
of accused-appellant.

Accused-appellant contends that the bloodstains found on his garments were not proven to have
been that of the victim as the victims blood type was not determined.
The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan
of both accused-appellants and the victims clothing yielded bloodstains of the same blood type A.
[24]
Even if there was no direct determination as to what blood type the victim had, it can reasonably be
inferred that the victim was blood type A since she sustained contused abrasions all over her body
which would necessarily produce the bloodstains on her clothing. [25] That it was the victims blood
which predominantly registered in the examination was explained by Mr. Buan, thus: [26]

A: It is possible when there is a huge amount of blood coming from the victim and the suspect,
Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one
which will register. For example, if there is more blood coming from the victim, that blood
will be the one to register, on occasions when the two blood mix.
Q: But in these specimens number 1 to 5, it is very clear now that only type A and no type O
blood was found?
A: Yes, sir.
Accused-appellant also questions the validity of the method by which his bloodstained clothes
were recovered. According to accused-appellant, the policemen questioned him as to the clothes he
wore the day before. Thereafter, they took him to his house and accused-appellant accompanied them to
the back of the house where dirty clothes were kept. [27] There is no showing, however, that accusedappellant was coerced or forced into producing the garments. Indeed, that the accused-appellant
voluntarily brought out the clothes sought by the police becomes more convincing when considered
together with his confessions. A consented warrantless search is an exception to the proscription in
Section 2 of Article III of the Constitution. As we have held, the consent of the owner of the house to
the search effectively removes any badge of illegality.[28]
The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned
by accused-appellant. He argues that the prosecution failed to show that all the samples submitted for
DNA testing were not contaminated, considering that these specimens were already soaked in smirchy
waters before they were submitted to the laboratory.
DNA is an organic substance found in a persons cells which contains his or her genetic
code. Except for identical twins, each persons DNA profile is distinct and unique.[29]
When a crime is committed, material is collected from the scene of the crime or from the victims
body for the suspects DNA. This is the evidence sample. The evidence sample is then matched with
the reference sample taken from the suspect and the victim.[30]
The purpose of DNA testing is to ascertain whether an association exists between the evidence
sample and the reference sample.[31] The samples collected are subjected to various chemical processes
to establish their profile.[32]The test may yield three possible results:
1) The samples are different and therefore must have originated from different sources
(exclusion). This conclusion is absolute and requires no further analysis or discussion;
2) It is not possible to be sure, based on the results of the test, whether the samples have similar
DNA types (inconclusive). This might occur for a variety of reasons including degradation,
contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be
repeated with the same or a different sample, to obtain a more conclusive result; or
3) The samples are similar, and could have originated from the same source (inclusion). [33] In
such a case, the samples are found to be similar, the analyst proceeds to determine the statistical
significance of the Similarity.[34]

ATTY. ESPIRITU

In assessing the probative value of DNA evidence, therefore, courts should consider, among
others things, the following data: how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure followed in analyzing the samples, whether
the proper standards and procedures were followed in conducting the tests, and the qualification of the
analyst who conducted the tests.

Q: But you will agree with me that more probably than not, if a crime is being committed, and it
results in a bloody death, it is very possible that the blood of the victim and the blood of the
assailant might mix in that particular item like the t-shirt, shorts or pants?

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant,
the smears taken from the victim as well as the strands of hair and nails taken from her tested negative
for the presence of human DNA,[35] because, as Ms. Viloria-Magsipoc explained:
PROSECUTOR LU:

Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim
and of the accused gave negative results for the presence of human DNA. Why is it
so? What is the reason for this when there are still bloodstains on the clothing?

Second. Accused-appellant challenges the validity of the oral and written confessions presented
as evidence against him. He alleges that the oral confessions were inadmissible in evidence for being
hearsay, while the extrajudicial confessions were obtained through force and intimidation.

A: After this Honorable Court issued an Order for DNA analysis, serological methods were
already conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he
also knew of this case, and we also interviewed the mother who came over to the laboratory
one time on how was the state of the specimens when they were found out. We found that
these specimens were soaked in smirchy water before they were submitted to the
laboratory. The state of the specimens prior to the DNA analysis could have hampered the
preservation of any DNA that could have been there before. So when serological methods
were done on these specimens, Mr. Byron could have taken such portion or stains that were
only amenable for serological method and were not enough for DNA analysis already. So
negative results were found on the clothings that were submitted which were specimens no.
1 to 5 in my report, Sir.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:

Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim also
proved negative for human DNA, why is it so?

(3) Any confession or admission obtained in violation of this or Section 17 shall be

inadmissible in evidence against him.

A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the slide
was very, very dry and could have chipped off. I already informed Dr. Vertido about it and
he confirmed the state of the specimen. And I told him that maybe it would be the swab that
could help us in this case, Sir. And so upon examination, the smears geared negative results
and the swabs gave positive results, Sir.

There are two kinds of involuntary or coerced confessions treated in this constitutional
provision: (1) coerced confessions, the product of third degree methods such as torture, force, violence,
threat, and intimidation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled
statements, given without the benefit of Miranda warnings, which are the subject of paragraph 1 of the
same section.[38]

Q: How about specimen no. 7, the hair and nails taken from the victim, why did they show
negative results for DNA?

Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and
to NBI Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights
as these were made by one already under custodial investigation to persons in authority without the
presence of counsel. With respect to the oral confessions, Atty. Leyva testified:[39]

A: The hair samples were cut hair. This means that the hair did not contain any root. So any hair
that is above the skin or the epidermis of ones skin would give negative results as the hair
shaft is negative for DNA. And then the nails did not contain any subcutaneous cells that
would be amenable for DNA analysis also, Sir.

(1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent
counsel, preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado,
or other similar forms of detention are prohibited.

PROSECUTOR LU:
Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him?

Q: So its the inadequacy of the specimens that were the reason for this negative result, not the
inadequacy of the examination or the instruments used?

A: Yes, Sir.

A: Yes, Sir.

Q: Did you ask him whether he really wants you to represent or assist him as a lawyer during that
investigation?

Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that
the samples had been contaminated, which accounted for the negative results of their examination. But
the vaginal swabs taken from the victim yielded positive for the presence of human DNA. Upon
analysis by the experts, they showed the DNA profile of accused-appellant:[36]

A: I did, as a matter of fact, I asked him whether he would like me to represent him in that
investigation, Sir.
Q: And what was his answer?

PROSECUTOR LU:

A: He said yes.

Q: So based on your findings, can we say conclusively that the DNA profile of the accused in this
case was found in the vaginal swabs taken from the victim?

Q: After agreeing to retain you as his counsel, what else did you talk about?

A: Yes, Sir.
Q: That is very definite and conclusive?
A: Yes, Sir."
In conclusion, we hold that the totality of the evidence points to no other conclusion than that
accused-appellant is guilty of the crime charged. Evidence is weighed not counted. When facts or
circumstances which are proved are not only consistent with the guilt of the accused but also
inconsistent with his innocence, such evidence, in its weight and probative force, may surpass direct
evidence in its effect upon the court.[37] This is how it is in this case.

A: I told him that in the investigation, whatever he will state may be used against him, so its a
sort of discouraging him from making any statement to the police, Sir.
Upon cross-examination, Atty. Leyva testified as follows:[40]
Q: You stated that you personally read this recital of the constitutional rights of the accused?
A: Yes, Sir.
Q: But it will appear in this recital of constitutional rights that you did not inform the accused that
the statement that he will be giving might be used against him in a court of justice?
A: I did that, Sir.

Q: But it does not appear in this statement?

PROSECUTOR LU
The best evidence will be the statement, your Honor.
ATTY ESPIRITU
The only thing that is stated here is that Maaaring gamitin pabor o laban sa iyo.
COURT
Let the witness answer.
A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the
truth.
The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan,
[41]
it is also confirmed by accused-appellant who testified as follows:[42]
ATTY. ESPIRITU:
Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are
supposed to have executed and signed?

spontaneous, free, and voluntary admissions of the guilt of the accused. We note further that the
testimony of Mayor Abutan was never objected to by the defense.
Indeed, the mayors questions to accused-appellant were not in the nature of an interrogation, but
rather an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan
testified:[49]
PROSECUTOR LU:
Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell
you?
A: At first he said that he did not do that. That was the first thing he told me. Then I told him
that I will not be able to help him if he will not tell me the truth.
Q: And what was the reply of the accused?
A: He had been silent for a minute. Then we talked about the incident, Sir.
Q: And what exactly did he tell you about the incident?
A: I asked him, Were you under the influence of drugs at that time?
Q: What else did he tell you?

A: Yes, Sir.

A: I told him, What reason pushed you to do that thing? x x x

Q: What did Atty. Leyva tell you?

Q: Please tell us in tagalog, the exact words that the accused used in telling you what happened.

A: That they are allowing me to exercise my constitutional right to reveal or narrate all what I
know about this case, Sir.

A: He told me that he saw the child as if she was headless at that time. That is why he strangled
the child, Sir. (Ang sabi niya po sa kin, nakita niya raw yung bata na parang walang ulo na
naglalakad. Kaya po sinakal niya.)

Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement?
A: Yes, Sir.
Q: And did he tell you that what you would be giving is an extra-judicial confession?
A: Yes, Sir.
Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the
statements he was to make as well as the written confessions he was to execute. Neither can he question
the qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an
effective counsel, a lawyer need not challenge all the questions being propounded to his client. The
presence of a lawyer is not intended to stop an accused from saying anything which might incriminate
him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the
accused to admit something false. Indeed, counsel should not prevent an accused from freely and
voluntarily telling the truth.[43]
Indeed, accused-appellant admitted that he was first asked whether he wanted the services of
Atty. Leyva before the latter acted as his defense counsel. [44] And counsel who is provided by the
investigators is deemed engaged by the accused where the latter never raised any objection against the
formers appointment during the course of the investigation but, on the contrary, thereafter subscribed to
the veracity of his statement before the swearing officer. [45]Contrary to the assertions of accusedappellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of
Mayor Renato Abutan.[46]
Accused-appellant contends that the rulings in People vs. Andan[47] and People vs. Mantung[48] do
not apply to this case. We disagree. The facts of these cases and that of the case at bar are similar. In
all these cases, the accused made extrajudicial confessions to the municipal mayor freely and
voluntarily. In all of them, the extrajudicial confessions were held admissible in evidence, being the

xxx

xxx

xxx

COURT:
Q: When you told the accused that you will help him, what kind of help were you thinking at that
time?
A: I told him that if he will tell the truth, I could help give him legal counsel.
Q: And what was the answer of the accused?
A: Yes, he will tell me the truth, Your Honor.
In People vs. Mantung,[50] this Court said:
Never was it raised during the trial that Mantungs admission during the press conference was coerced
or made under duress. As the records show, accused-appellant voluntarily made the statements in
response to Mayor Marquez question as to whether he killed the pawnshop employees. Mantung
answered in the affirmative and even proceeded to explain that he killed the victims because they made
him eat pork. These circumstances hardly indicate that Mantung felt compelled to own up to the
crime. Besides, he could have chosen to remain silent or to do deny altogether any participation in the
robbery and killings but he did not; thus accused-appellant sealed his own fate. As held inPeople v.
Montiero, a confession constitutes evidence of high order since it is supported by the strong
presumption that no person of normal mind would deliberately and knowingly confess to a crime unless
prompted by truth and his conscience.
And in People vs. Andan, it was explained:

Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a
spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary
manner whereby appellant orally admitted having committed the crime. What the Constitution bars is
the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are
guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit
something false, not prevent him from freely and voluntarily telling the truth.[51]
For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist
Pet Byron Buan is admissible. Accused-appellant would have this Court exclude this confession on the
ground that it was uncounselled and that Mr. Buan, who initiated the conversation with accusedappellant, was part of the NBI. The issue concerning the sufficiency of the assistance given by Atty.
Leyva has already been discussed. On the other hand, the questions put by Mr. Buan to accusedappellant were asked out of mere personal curiosity and clearly not as part of his tasks. As Buan
testified:[52]

will be considered as indicating voluntariness. [53] Indeed, extrajudicial confessions are presumed to be
voluntary, and, in the absence of conclusive evidence showing that the declarants consent in executing
the same has been vitiated, the confession will be sustained.[54]
Accused-appellants claim that he was tortured and subjected to beatings by policemen in order
to extract the said confession from him is unsupported by any proof:[55]
ATTY. ESPIRITU:
Q: Did they further interrogate you?
A: Yes, sir.
Q: What else did they ask you?
A: They were asking me the project, Sir.

PROSECUTOR LU:

Q: What else?

Q: What was the subject of your conversation with him?

A: That is the only thing, Sir.

A: It is customary when we examine the accused. During the examination, we talk to them for
me to add knowledge on the case, Sir.

Q: Who was doing the questioning?

Q: What did you talk about during your conversation?

A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.
Q: And what was the reply of the accused?
A: He said yes, Sir.
Q: What else did you ask the accused?
A: I remember that while asking him, he was crying as if feeling remorse on the killing, Sir.
....
Q: And it was you who initiated the conversation?
A: Yes, Sir.
Q: Do you usually do that?
A: Yes, Sir. We usually do that.
Q: Is that part of your procedure?
A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any information
either on the victim or from the suspect will help me personally. Its not an SOP, Sir.
The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is,
therefore, admissible as evidence.
Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on
the ground that these were extracted from him by means of torture, beatings, and threats to his life. The
bare assertions of maltreatment by the police authorities in extracting confessions from the accused are
not sufficient. The standing rule is that where the defendants did not present evidence of compulsion,
or duress nor violence on their person; where they failed to complain to the officer who administered
their oaths; where they did not institute any criminal or administrative action against their alleged
intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and
where they did not have themselves examined by a reputable physician to buttress their claim, all these

A: The investigator, Sir.

Q: How many were they inside that room?
A: Five, Sir.
Q: They are all policemen?
A: Yes, Sir.
xxx

xxx

xxx

Q: Until what time did they keep you inside that room?
A: Up to 11:00 in the evening, Sir.
Q: Between 10:30 in the morning up to 11:00 oclock in the evening, what did you do there?
A: They were interrogating and forcing me to admit something, Sir.
Q: In what way did they force you to admit something?
A: They were mauling me, Sir.
Q: The 5 of them?
A: Yes, Sir.
Q: The 5 of them remained inside that room with you throughout the questioning?
A: Yes, Sir.
Q: In what way did they hurt you?
A: They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir.
Q: Who did these things to you?
A: Mercado, Sir.

Q: Who is this Mercado?

Q: I am particularly interested in your findings hematoma on the left ring finger, posterior aspect
and laceration left ring finger posterior aspect, what could have caused those injuries on the
accused?

A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?
A: No, Sir.
Q: Were you asked to undress or you were forced to do that?
A: They forced me to remove my clothes, Sir.
Q: In what way did they force you to remove your clothes?
A: They were asking me to take off the pants which I was wearing at the time, Sir.
Q: Did they do anything to you to force you to remove your pants?
A: Yes, Sir.
Q: What?
A: They boxed me, Sir.
Q: What else, if any?
A: They hit me with a piece of wood, Sir.
Q: What did you feel when your private part was burned with a cigarette butt?
A: It was painful, Sir.
Q: In what part of your body were you pricked by a needle?
A: At my private part, Sir.
These bare assertions cannot be given weight. Accused-appellant testified that he was made to
stay in the municipal hall from 10:00 oclock in the morning until 11:00 oclock that night of July 10,
1999, during which time he was boxed, tortured, and hit with a piece of wood by policemen to make
him admit to the crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at
about 9:00 oclock in the evening of the same day. While the results show that accused-appellant did
sustain injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified:[56]
PROSECUTOR LU:
Q: What were your findings when you conducted the physical examination of the suspect?
A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, and I
also found hematoma on the left ring finger, posterior aspect and at the same time, a
laceration on the left ring finger.
xxx

xxx

A: My opinion to these hematoma and laceration found on the said left ring finger was that it was
caused by a bite, Sir.
If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have
found more than mere abrasions and hematoma on his left finger. Dr. Vertidos findings are more
consistent with the theory that accused-appellant sustained physical injuries as a result of the struggle
made by the victim during the commission of the rape in the compuerta.
At all events, even if accused-appellant was truthful and his assailed confessions are
inadmissible, the circumstantial evidence, as already shown, is sufficient to establish his guilt beyond all
reasonable doubt. The prosecution witnesses presented a mosaic of circumstances showing accusedappellants guilt. Their testimonies rule out the possibility that the crime was the handiwork of some
other evil mind. These witnesses have not been shown to have been motivated by ill will against
accused-appellant.
On the other hand, no other witness not related to accused-appellant was ever called to
corroborate his claim. The defense presented only accused-appellants sister, Aimee Vallejo, to
corroborate his story. We have held time and again that alibi cannot prosper if it is established mainly
by the accused and his relatives, and not by credible persons. [57] It is well settled that alibi is the weakest
of all defenses as it is easy to contrive and difficult to disprove. For this reason, this Court looks with
caution upon the defense of alibi, especially when, as in this case, it is corroborated only by relatives or
friends of the accused.[58]
Article 266-B of the Revised Penal Code provides that When by reason or on the occasion of the
rape, homicide is committed, the penalty shall be death. [59] Therefore, no other penalty can be imposed
on accused-appellant.
WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial
Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond
reasonable doubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of
DEATH and directing him to indemnify the heirs of the victim in the amount of P100,000.00 as civil
indemnity and P50,000.00 as moral damages, is hereby AFFIRMED.
In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon
the finality of this decision, let the records of this case be forthwith forwarded to the President of the
Philippines for the possible exercise of the pardoning power.
[G.R. No. 112229. March 18, 1997]
RAYMOND PE LIM, petitioner, vs. COURT OF APPEALS, JOANNA ROSE C. PE LIM,
Minor represented by her Natural Mother and Guardian, MARIBEL CRUZ y TAYAG,
respondents.
DECISION

xxx

Q: In your findings, it appears that the accused in this case suffered certain physical injuries on
his person like this abrasion on the thigh, right anterior lateral aspect lower third of the
knee, what could have caused this injury?
A: Abrasions are usually caused when the skin comes in contact with a rough surface, Sir.
Hematoma are usually caused by a blunt instrument or object and laceration is the forcible
contact of the skin from that blunt object.

ROMERO, J.:
All too often, immature men who allow their emotions to hold sway over their rational
minds come to grief when their passions cool off, but not before inflicting irreparable psychic
and spiritual damage on their victims and the fruits of their wanton acts. As they sow the
proverbial "wild oats," they are heedless of the dire consequences they heap on their heads.
When the inevitable confrontation explodes and they are helpless to extricate themselves from

the messy situation arising from their wrongdoing, eventually they invoke the help of the courts
as their final arbiter.
Before us is one of those cases where a man woos a maid, succeeds in seducing and
impregnating her, only to disclaim the paternity of the child when made to account for his
misdeeds.
DNA,[1] being a relatively new science, it has not as yet been accorded official
recognition by our courts. Paternity will still have to be resolved by such conventional evidence
as the relevant incriminating acts, verbal and written, by the putative father.
This petition for review on certiorari sprang from a complaint filed by Maribel Cruz for
child support on behalf of her daughter, private respondent Joanna Rose C. Pe Lim, against
petitioner Raymond Pe Lim who, Maribel claims, is Joanna's father.
Maribel's story unfolds, thus:
Maribel was sixteen years old in 1978 and a part-time student. She also worked as a receptionist at
Tonight's Club and Resthouse along Roxas Blvd., Manila. She met petitioner during her first night on
the job. Petitioner wooed her and Maribel reciprocated his love. They soon lived together, with
petitioner paying the rentals in a succession of apartments in Cubao, Quezon City, Tambo, Paraaque
and Makati, Metro Manila. Maribel left for Japan in July 1981, already pregnant, and returned to Manila
in October of the same year.

because she claimed that she could not face her relatives in her condition. Raymond got her an
apartment and paid its rentals until she gave birth to a baby girl on January 17, 1982. Raymond admits
paying the hospital bills but claims that Maribel was supposed to pay him back for it. When she failed
to do so, Raymond stopped seeing her.
Raymond denies being the father of Maribel's child, claiming that they were only friends
and nothing more.
The trial court rendered a decision on June 10, 1971, the dispositive portion of which
states:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant
ordering herein defendant, Raymond Pe Lim to give support to his natural daughter, minor Joanna Rose
Pe Lim in the amount of Ten Thousand Pesos (P10,000.00). Philippine Currency, per month for the
support, maintenance, education and well-being of said child, the same to be paid on or before the 5th
day of each month and monthly thereafter starting June, 1991, until the said minor Joanna Rose Pe Lim,
shall have reached the age of majority.
The defendant is further ordered to pay the plaintiff the sum of Seven Thousand Five Hundred
(P7,500.00) Pesos, Philippine Currency, for attorney's fees and other litigation expenses.
No costs.
SO ORDERED."

The couple never married because petitioner claimed that he was not financially stable. On January 17,
1982, Maribel gave birth to their daughter at the Cardinal Santos Memorial Hospital. The bills for
Maribel's three-day confinement at the hospital were paid for by Raymond and he also caused the
registration of the name Joanna Rose C. Pe Lim on the child's birth certificate. After Joanna Rose's
birth, the love affair between Maribel and petitioner continued.
Towards the latter part of 1983, Maribel noted that petitioner's feelings toward her started to wane. He
subsequently abandoned her and Joanna Rose. Maribel tried to support herself by accepting various jobs
and with occasional help from relatives, but it was never enough. She asked petitioner for support but,
despite promises to do so, it was never given. Maribel then filed a complaint against petitioner before
the Regional Trial Court of Manila for support.
Petitioner, on the other hand, has a different version: He claims that in 1978, he went to Tonight's Club
and Resthouse along Roxas Boulevard, Manila to relax after a hard day's work. There he met Maribel, a
pretty and aggressive hospitality girl. Raymond observed that while she had a pleasing personality, she
seemed to be quite experienced because she started to kiss him on the cheeks and neck, whispering to
him that they could go anywhere and rest. Raymond declined to take Maribel up on her offer saying that
he only wanted someone to talk to. They became friends after that first meeting, and while he often saw
her, there was no intimacy between them. He did admit giving Maribel sizeable tips because she
confided in him that she needed money.
Raymond alleged that he was not Maribel's only customer at the club. In 1980, she left for Japan to
work as an entertainer. In 1981, she returned to Manila pregnant, and appealed to Raymond for help

Petitioner then elevated his case to the Court of Appeals which affirmed the trial court's
findings.
Petitioner now argues before the Court that there is no clear and convincing evidence on
record to show that there was actual cohabitation between him and Maribel. In fact, petitioner
infers that Maribel became pregnant only when she went to Japan. In short, he denies that he
is the father of Joanna Rose. He further questions the awarded support of P10,000.00 per
month, saying that the same is beyond his means, considering that he has a family to support.
We find no merit in this petition.
In Alberto v. Court of Appeals,[2] we said:
"When a putative father manifests openly through words and deeds his recognition of a child, the courts
can do no less than confirm said acknowledgment. As the immortal bard Shakespeare perspicaciously
said: 'Let your own discretion be your tutor; suit the action to the word, the word to the action."
The evidence in the instant case shows that petitioner considered himself to be the
father of Joanna Rose as shown by the hand-written letter he wrote to Maribel:

"Hi Love,
I wrote you this letter because I would like to erase from your mind the thought of why I can not ever
[sic] you marriage right now is because I have no longer love or care for both Joanna & you.
Last night when we talked things over, I was in a stage wherein everything was happening so fast that I
was running out of time & works (sic) to make you understand me through this letter I would like to
explain my side in a more detailed way and I hope you could understand.
You know love, the main root of the problem of why marriage is impossible for us right now is not what
my parents or my family circle will say about you, but the financial side of it. Okay, let say I did marry
you right now disregarding my financial stability. Sooner or later they will come to know of it and I am
sure that they will not consent it. I have no alternative but to leave them & to stick it up with you. This
is where the financial side comes in. I can't allow myself walking away from my family making them
think that I can stand on my own two feet but the truth of the matter is not and seeing both of you suffer
for only one stupid mistake which is I was not yet financially ready to face the consequence.
My plan is that if you could only stick it out with me until I am ready to face whatever consequence that
might occur during our life or relation as husband and wife. You have already tried it before, why can't
you stress it a little longer. In return, I promise to be a loving & caring husband & father to both of you.
Love, I really don't want you to be taken away from me by anyone, whether he be single or married.
This is the reason why I am still trying to convince you. But if you really have decided things up and
really determined to push through with it. I guess I just have to respect your decision. Just remember I
wish you the best of luck and take extra-care of yourself & Joanna.
Remember, if the time comes when things get rough for you and you have no one to turn to, don't
hesitate to call on me. I am very much willing to be at your side to help you. I love you very much!
Love,

Do you know how glad I was to receive a letter from you yesterday? At least now I'm a little bit at ease
to know that everything is fine with you.
Love, in your letter you seem so much concern (sic) about my situation once here. I really appreciate it,
but please don't give too much thought about it because I'm physically o.k. here. The important thing is
that don't think too much and have a lot of rest during your spare time especially in the situation you're
in now. If you are feeling homesick just go out with your friends and try to enjoy yourself to the fullest
while you are there
Love, you said in your letter that you regret very much your going there & wishes ( sic) that you have
not left anymore. I understand your feelings to what had happened after you told me about it in the
telephone.
xxx

xxx

xxx

Love, I miss you so much that I always re-read those letters you had send me very often. At night I
always think of you and the times we're together before going to sleep.
xxx

xxx

xxx" (Underscoring supplied)

It was only after petitioner separated from Maribel that he started to deny paternity of
Joanna Rose. Until he got married to another woman, he did not object to being identified as
Joanna Rose's father as disclosed in the Certificate of Live Birth. The evidence on record
reveals that he even got a copy of the said Certificate when Joanna Rose started schooling,
as shown by a receipt in his name from the San Juan Municipal Office. His belated denial
cannot outweigh the totality of the cogent evidence which establishes beyond reasonable
doubt that petitioner is indeed the father of Joanna Rose.[3]
Under Article 175 of the Family Code, illegitimate filiation may be established in the
same way and on the same evidence as legitimate children.
Article 172 of the Family Code states:

Raymond" (Underscoring supplied by Raymond himself)

From the tenor of the letter and the statements petitioner made therein it is clear that,
contrary to his vehement assertion that he and Maribel were just friends, they were actually
lovers.

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

In an earlier letter, this time sent to Maribel while she was in Japan, petitioner lovingly
told her to take care of herself because of her "situation," obviously referring to the state of
pregnancy of Maribel:

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

"Aug. 11, 1981

Hi Love,

'(1)

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

"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
'(1)

The open and continuous possession of the status of a legitimate child; or

'(2)

Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a).'"

This article adopts the rule in Article 283 of the Civil Code that filiation may be proven by
"any evidence or proof that the defendant is his father."[4]
Petitioner has never controverted the evidence on record. His love letters to Maribel
vowing to be a good father to Joanna Rose; pictures of himself on various occasions cuddling
Joanna Rose and the Certificate of Live Birth say it all. Accordingly, his suit must fail.
WHEREFORE, the petition is DISMISSED and the decision of the Court of Appeals is
hereby AFFIRMED. Costs against petitioner.
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
DECISION

words, the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where entry into
the labiaor the lips of the female genitalia has not been established, the crime committed
amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been
committed either in its attempted or in its consummated stage; otherwise, no substantial
distinction would exist between the two, despite the fact that penalty-wise, this distinction,
threadbare as it may seem, irrevocably spells the difference between life and death for the
accused - a reclusive life that is not even perpetua but only temporal on one hand, and the
ultimate extermination of life on the other. And, arguing on another level, if the case at bar
cannot be deemed attempted but consummated rape, what then would constitute attempted
rape? Must our field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light of the view of those
who disagree with this ponencia?

BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita [1] finally did away with frustrated rape [2] and
allowed only attempted rape and consummated rape to remain in our statute books. The
instant case lurks at the threshold of another emasculation of the stages of execution of rape
by considering almost every attempt at sexual violation of a woman as consummated rape,
that is, if the contrary view were to be adopted. The danger there is that that concept may
send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to
better intrude with climactic gusto, sans any restraint, since after all any attempted fornication
would be considered consummated rape and punished as such. A mere strafing of the citadel
of passion would then be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal
knowledge of the victim since by it he attained his objective. All the elements of the offense
were already present and nothing more was left for the offender to do, having performed all
the acts necessary to produce the crime and accomplish it. We ruled then that perfect
penetration was not essential; any penetration of the female organ by the male organ,
however slight, was sufficient. The Court further held that entry of the labia or lips of the
female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to
warrant conviction for consummated rape. We distinguished consummated rape from
attempted rape where there was no penetration of the female organ because not all acts of
execution were performed as the offender merely commenced the commission of a felony
directly by overt acts.[3] The inference that may be derived therefrom is that complete or full
penetration of the vagina is not required for rape to be consummated. Any penetration, in
whatever degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into
the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of
the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the
lips of the female organ was considered synonymous with mere touching of the external
genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom line is
that touching must be inextricably viewed in light of, in relation to, or as an essential part of,
the process of penile penetration, and not just mere touching in the ordinary sense. In other

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced
by the court a quo to the extreme penalty of death,[5] hence this case before us on automatic
review under Art. 335 of the Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went
down from the second floor of their house to prepare Milo chocolate drinks for her two (2)
children. At the ground floor she met Primo Campuhan who was then busy filling small plastic
bags with water to be frozen into ice in the freezer located at the second floor. Primo was a
helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks,
she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7]prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel
whose pajamas or "jogging pants" and panty were already removed, while his short pants
were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she
cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block
his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and
an uncle who were living within their compound, to chase the accused. [8] Seconds later, Primo
was apprehended by those who answered Corazon's call for help. They held the accused at
the back of their compound until they were advised by their neighbors to call
the barangay officials instead of detaining him for his misdeed. Physical examination of the
victim yielded negative results. No evident sign of extra-genital physical injury was noted by
the medico-legal officer on Crysthels body as her hymen was intact and its orifice was only
0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence
and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will
against him for his refusal to run an errand for her.[9] He asserted that in truth Crysthel was in a
playing mood and wanted to ride on his back when she suddenly pulled him down causing
both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found
him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to
pay his victimP50,000.00 for moral damages, P25,000.00 for exemplary damages, and the
costs.

In People v. De la Pea [11] we clarified that the decisions finding a case for rape even if the
attackers penis merely touched the external portions of the female genitalia were made in the
context of the presence or existence of an erect penis capable of full penetration. Where the
accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which
could not fit into the victim's vagina, the Court nonetheless held that rape was consummated
on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his
penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt
his organ on the lips of her vulva,[12] or that the penis of the accused touched the middle part of
her vagina.[13] Thus, touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the
external layer of the victims vagina, or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeed touched the labias or slid into the female
organ, and not merely stroked the external surface thereof, for an accused to be convicted of
consummated rape.[14] As the labias, which are required to be "touched" by the penis, are by
their natural situs or location beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath the surface, hence, the
conclusion that touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured
with implausible statements and improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for him to commit the rape considering
that Crysthels younger sister was also in the room playing while Corazon was just downstairs
preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and
the fact that the episode happened within the family compound where a call for assistance
could easily be heard and responded to, would have been enough to deter him from
committing the crime. Besides, the door of the room was wide open for anybody to see what
could be taking place inside. Primo insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact when from where she stood she
could not have possibly seen the alleged touching of the sexual organs of the accused and his
victim. He asserts that the absence of any external signs of physical injuries or of penetration
of Crysthels private parts more than bolsters his innocence.

The pudendum or vulva is the collective term for the female genital organs that are visible in
the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty,
and is instantly visible within the surface. The next layer is the labia majora or the outer lips of
the female organ composed of the outer convex surface and the inner surface. The skin of the
outer convex surface is covered with hair follicles and is pigmented, while the inner surface is
a thin skin which does not have any hair but has many sebaceous glands. Directly beneath
the labia majora is the labia minora.[15] Jurisprudence dictates that the labia majora must
be entered for rape to be consummated,[16] and not merely for the penis to stroke the surface
of the female organ. Thus, a grazing of the surface of the female organ or touching the mons
pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing
of the slightest penetration of the female organ, i.e., touching of either labia of
the pudendum by the penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that
she saw Primo with his short pants down to his knees kneeling before Crysthel whose
pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis
into Crysthels vagina." The gravamen of the offense of statutory rape is carnal knowledge of a
woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code.
Crysthel was only four (4) years old when sexually molested, thus raising the penalty,
from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659,
Sec. 11, the offended party being below seven (7) years old. We have said often enough that
in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an
essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the
external genitalia by the penis capable of consummating the sexual act is sufficient to
constitute carnal knowledge.[10]But the act of touching should be understood here as inherently
part of the entry of the penis into the labias of the female organ and not mere touching
alone of the mons pubis or the pudendum.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of
the female organ,"[17] but has also progressed into being described as "the introduction of the
male organ into the labia of the pudendum,"[18] or "the bombardment of the drawbridge." [19] But,
to our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency,"
or as earlier stated, a "strafing of the citadel of passion."

them and became hysterical. Corazon slapped him and accused him of raping her child. He
got mad but restrained himself from hitting back when he realized she was a woman. Corazon
called for help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente
punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran
towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a
chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him
instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and
turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente
prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill
him.

A review of the records clearly discloses that the prosecution utterly failed to discharge
its onus of proving that Primos penis was able to penetrate Crysthels vagina however slight.
Even if we grantarguendo that Corazon witnessed Primo in the act of sexually molesting her
daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact
between Primo and Crysthel. When asked what she saw upon entering her childrens room
Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to enable her to see clearly and sufficiently,
in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon

Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described
thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the
accused is pinning down the victim, while his right hand is holding his
penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling position
rendered an unbridled observation impossible. Not even a vantage point from the side of the
accused and the victim would have provided Corazon an unobstructed view of Primos penis
supposedly reaching Crysthels external genitalia, i.e., labia majora, labia minora, hymen,
clitoris, etc., since the legs and arms of Primo would have hidden his movements from
Corazons sight, not to discount the fact that Primos right hand was allegedly holding his penis
thereby blocking it from Corazons view. It is the burden of the prosecution to
establish how Corazon could have seen the sexual contact and to shove her account into the
permissive sphere of credibility. It is not enough that she claims that she saw what was done
to her daughter. It is required that her claim be properly demonstrated to inspire belief. The
prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt
that inter-genital contactwas at all achieved. To hold otherwise would be to resolve the doubt in
favor of the prosecution but to run roughshod over the constitutional right of the accused to be
presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite
her timely appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain
where he is and persist in satisfying his lust even when he knows fully well that his dastardly
acts have already been discovered or witnessed by no less than the mother of his victim. For,
the normal behavior or reaction of Primo upon learning of Corazons presence would have
been to pull his pants up to avoid being caught literally with his pants down. The interval,
although relatively short, provided more than enough opportunity for Primo not only to desist
from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the
question of the court Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ?

A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question of
whether rape in this case was consummated. It has foreclosed the possibility of Primos
penis penetrating her vagina, however slight. Crysthel made a categorical statement denying
penetration,[21] obviously induced by a question propounded to her who could not have been
aware of the finer distinctions betweentouching and penetration. Consequently, it is improper
and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accused touched her organ there was sexual
entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered the labia of her pudendum as
the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel.
[22]
Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded
with an erection.[23] On the contrary, Corazon even narrated that Primo had to hold his penis
with his right hand, thus showing that he had yet to attain an erection to be able to penetrate
his victim.
Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by
the child's own assertion that she resisted Primos advances by putting her legs close
together;[24] consequently, she did not feel any intense pain but just felt "not happy" about what
Primo did to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases
where penetration was not fully established, the Court had anchored its conclusion that rape
nevertheless was consummated on the victim's testimony that she felt pain, or the medicolegal finding of discoloration in the inner lips of the vagina, or the labia minora was already
gaping with redness, or the hymenal tags were no longer visible.[26] None was shown in this
case. Although a child's testimony must be received with due consideration on account of her
tender age, the Court endeavors at the same time to harness only what in her story appears to
be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to
conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held
liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact between the
accused and the victim.[27]
In cases of rape where there is a positive testimony and a medical certificate, both should in
all respects complement each other; otherwise, to rely on the testimonial evidence alone, in
utter disregard of the manifest variance in the medical certificate, would be productive of
unwarranted or even mischievous results. It is necessary to carefully ascertain whether the
penis of the accused in reality entered the labialthreshold of the female organ to accurately
conclude that rape was consummated. Failing in this, the thin line that separates attempted
rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the
offender commences the commission of rape directly by overt acts, and does not perform all
the acts of execution which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance. All the elements of attempted rape - and
only of attempted rape - are present in the instant case, hence, the accused should be
punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death
for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2)
degrees lower isreclusion temporal, the range of which is twelve (12) years and one (1) day to
twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any
mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the
accused shall be taken from the medium period of reclusion temporal, the range of which is
fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months,
while the minimum shall be taken from the penalty next lower in degree, which is prision
mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of
its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY"
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay
damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an
indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days
of reclusion temporal medium as maximum. Costs de oficio.
[G.R. No. 131592-93. February 15, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN CASTILLO y LUMAYRO,
accused-appellant.
DECISION
PUNO, J.: JPUNO
With the passage of Republic Act No. 8294 on June 6, 1997, the use of an unlicensed
firearm in murder or homicide is now considered, not as a separate crime, but merely a
special aggravating circumstance.
In the case at bar, appellant JULIAN CASTILLO y LUMAYRO was charged with Murder and
Illegal Possession of Firearms in two (2) separate Informations, thus:
Criminal Case No. 45708:
"That on or about the 14th day of November, 1995 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, armed with a handgun,
with deliberate intent and without justifiable motive, with evident
premeditation, by means of treachery and with a decided purpose to kill,
did then and there wilfully, unlawfully and criminally shoot, hit and wound
Rogelio Abawag with the said gun, with which herein accused was then

provided at the time, thereby causing upon said Rogelio Abawag bullet
wounds on vital parts of his body, which caused his instantaneous death.
"CONTRARY TO LAW."[1]
Criminal Case No. 45709: HTML
"That on or about the 14th day of November, 1995 in the City of Iloilo,
Philippines and within the jurisdiction of this Court, said accused, with
deliberate intent and without justifiable motive, have in his possession and
control one (1) Homemade .38 caliber revolver without serial number
(and) three (3) live ammunitions without the authority and permit to
possess or carry the same.
"CONTRARY TO LAW."[2]
The scene of the crime was the then on-going construction site of Gaisano Building in Lapaz,
Iloilo City. On November 14, 1995, at about 8 a.m., ROBERTO LUSTICA, a construction
worker, was on the last rung of the stairs on the third floor of the Gaisano building when he
saw his co-worker ROGELIO ABAWAG being closely pursued by accused JULIAN
CASTILLO, a lead man in the same construction site. During the chase, the accused pointed
a gun at Abawag and shot him. Abawag, then about a half meter away from the accused, fell
on his knees beside a pile of hollow blocks.[3]
FRANKLIN ACASO, a mason working on the third floor of the Gaisano building, heard the first
shot. Initially, he did not pay attention to it as he thought that the sound came from one of their
construction equipments. Seconds later, he heard a second shot and a person screaming:
"Ouch, that is enough!" When he looked towards the direction of the sound, he saw the
accused in front of Abawag, about a meter away, pointing a .38 caliber revolver at the latter.
Abawag was then leaning on a pile of hollow blocks, pleading for mercy. The accused shot
Abawag a third time despite the latter's imploration. The accused then fled, leaving Abawag
lifeless.[4]
The management of Gaisano reported the shooting incident to the police authorities who
immediately rushed to the scene of the crime. JUN LIM, alias "Akoy," brother-in-law of the
victim and also a construction worker at the Gaisano, volunteered to go with the police and
assist them in locating the accused. yacats
The police, accompanied by Akoy, proceeded to Port San Pedro where they saw the accused
on board a vessel bound for Cebu. When they boarded the vessel, Akoy positively identified
the accused to the police as the assailant. The accused attempted to escape when the police
identified themselves but the police caught up with him. Upon inquiry, the accused denied
complicity in the killing of Abawag. The police found in his possession a .38 caliber handmade
revolver, three (3) empty shells and three (3) live ammunitions. Further inquiry revealed that
the accused owned the gun but had no license to possess it. The police then took the accused
into custody and charged him for the murder of Abawag and for illegal possession of firearm.[5]

The self-defense theory hoisted by the accused who testified solely for the defense was not
given credence by the trial court. Thus, he was convicted of Homicide, as the prosecution
failed to prove the alleged qualifying circumstances of evident premeditation and treachery,
and of Illegal Possession of Firearm, aggravated by homicide. The trial court disposed as
follows:
"WHEREFORE, premises considered and finding the accused guilty of
the crimes of homicide and illegal possession of firearm aggravated by
homicide beyond the shadow of the doubt, he is hereby sentenced as
follows:
"1) For the crime of homicide, he is sentenced to
an indeterminate penalty of imprisonment of
Twelve (12) years of prision mayor, as minimum,
to Seventeen (17) years and Four (4) months of
reclusion temporal, as maximum;

circumstance; second, as only a single crime (homicide or murder with the aggravating
circumstance of illegal possession of firearm) is committed under the law, only one penalty
shall be imposed on the accused.[8]
Prescinding therefrom, and considering that the provisions of the amendatory law are
favorable to herein appellant, the new law should be retroactively applied in the case at bar.
[9]
It was thus error for the trial court to convict the appellant of two (2) separate offenses, i.e.,
Homicide and Illegal Possession of Firearms, and punish him separately for each crime.
Based on the facts of the case, the crime for which the appellant may be charged is homicide,
aggravated by illegal possession of firearm, the correct denomination for the crime,
and not illegal possession of firearm, aggravated by homicide as ruled by the trial court,
as it is the former offense which aggravates the crime of homicide under the amendatory law.
The appellant anchors his present appeal on the assertion that his conviction was
unwarranted as no proof was adduced by the prosecution that he was not licensed to possess
the subject firearm. In their Manifestation and Motion in lieu of Appellee's Brief, the Solicitor
General joined cause with the appellant.[10] haideem

"2) For illegal possession of firearm which is

aggravated by homicide, he is sentenced to a
penalty of death;

We agree.

"3) To pay the family of his victim P50,000.00 as

indemnity and another P50,000.00 as moral
damages; and

Two (2) requisites are necessary to establish illegal possession of firearms: first, the existence
of the subject firearm, and second, the fact that the accused who owned or possessed the
gun did not have the corresponding license or permit to carry it outside his residence.
The onus probandi of establishing these elements as alleged in the Information lies with the
prosecution.[11]

"4) To pay the cost.

[6]

"SO ORDERED." (emphasis supplied)

On automatic review by this Court, appellant impugns solely his conviction for illegal
possession of firearm for which he was sentenced to the supreme penalty of death.
Prefatorily, we stress that although the appellant himself does not refute the findings of the trial
court regarding the homicide aspect of the case, the Court nevertheless made a thorough
examination of the entire records of the case, including the appellant's conviction for homicide,
based on the settled principle that an appeal in criminal cases opens the entire case for
review. Our evaluation leads us to conclude that the trial court's ruling on the homicide aspect
is clearly supported by the records. Thus, we shall concentrate on the appellant's lone
assignment of error with respect to his conviction for the crime of illegal possession of
firearm. olanski
P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6,
1997 by Republic Act 8294. Aside from lowering the penalty for said crime, R.A. 8294 also
provided that if homicide or murder is committed with the use of an unlicensed firearm,
such use shall be considered as a special aggravating circumstance.[7] This amendment
has two (2) implications: first,the use of an unlicensed firearm in the commission of homicide
or murder shall not be treated as a separate offense, but merely as a special aggravating

The first element -- the existence of the firearm -- was indubitably established by the
prosecution. Prosecution eyewitness Acaso saw appellant shoot the victim thrice with a .38
caliber revolver.[12] Appellant himself admitted that he did not turn over the gun to the security
guards in the building after the shooting. [13] The same gun was recovered from the appellant
and offered in evidence by the prosecution. However, no proof was adduced by the
prosecution to establish the second element of the crime, i.e., that the appellant was not
licensed to possess the firearm. This negative fact constitutes an essential element of the
crime as mere possession, by itself, is not an offense. The lack of a license or permit should
have been proved either by the testimony or certification of a representative of the PNP
Firearms and Explosives Unit that the accused was not a licensee of the subject firearm [14] or
that the type of firearm involved can be lawfully possessed only by certain military personnel.
[15]
Indeed, if the means of proving a negative fact is equally within the control of each party,
the burden of proof is on the party averring said negative fact. As the Information alleged that
the appellant possessed an unlicensed gun, the prosecution is duty-bound to prove this
allegation. It is the prosecution who has the burden of establishing beyond reasonable doubt
all the elements of the crime charged, consistent with the basic principle that an accused is
presumed innocent until proven guilty.[16] Thus, if the non-existence of some fact is
a constituent element of the crime, the onus is upon the State to prove this negative allegation
of non-existence.[17] kirsten

Hence, in the case at bar, although the appellant himself admitted that he had no license
for the gun recovered from his possession, his admission will not relieve the
prosecution of its duty to establish beyond reasonable doubt the appellant's lack of
license or permit to possess the gun. In People vs. Solayao,[18] we expounded on this
doctrine, thus:
"x x x (b)y its very nature, an 'admission is the mere acknowledgement of
a fact or of circumstances from which guilt may be inferred, tending to
incriminate the speaker, but not sufficient of itself to establish his guilt.' In
other words, it is a statement by defendant of fact or facts pertinent to
issues pending, in connection with proof of other facts or circumstances,
to prove guilt, but which is, of itself, insufficient to authorize conviction.
From the above principles, this Court can infer that an admission in
criminal cases is insufficient to prove beyond doubt the commission
of the crime charged.
"Moreover, said admission is extrajudicial in nature. As such, it does
not fall under Section 4 of Rule 129 of the Revised Rules of Court which
states:
'An admission, verbal or written, made by a party in
the course of the trial or other proceedings in the
same case does not require proof.'
"Not being a judicial admission, said statement by accused-appellant
does not prove beyond reasonable doubt the second element of
illegal possession of firearm. It does not even establish a prima facie
case. It merely bolsters the case for the prosecution but does not stand
as proof of the fact of absence or lack of a license." (emphasis
supplied) CODES
Additionally, as pointed out by both the appellant and the Solicitor General, the extrajudicial
admission was made without the benefit of counsel. Thus, we hold that the appellant may only
be held liable for the crime of simple homicide under Article 249 of the Revised Penal Code.

nine (9) days of reclusion temporal as maximum. However, the civil indemnity and moral
damages awarded by the trial court to the heirs of the victim in the total amount of one
hundred thousand (P100,000.00) pesos are affirmed.
[G.R. No. 127761. April 28, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO R. PASCUAL, accusedappellant.
DECISION
DE LEON, JR., J.:
Before us on appeal is the Decision [1] of the Regional Trial Court of Roxas, Isabela, Branch 23,
finding appellant Pedro Pascual y Reboca guilty of the crime of murder, in Criminal Case No.
Br. 23-636, for the killing of Dr. Maximino P. Picio, Jr. Spped
The appellant, Pedro R. Pascual, and a certain John Doe were charged with the crime of
murder, defined and penalized under Article 248 of the Revised Penal Code, as amended, in
an amended Information dated July 13, 1995, which reads: Misspped
That on or about the 14th day of March, 1995, in the municipality of San
Manuel, province of Isabela, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, together with John Doe, whose real
identity is still to be determined, conspiring, confederating together and
helping one another, with evident premeditation and treachery, did then
and there, willfully, unlawfully and feloniously, with intent to kill, suddenly
and unexpectedly and without giving him chance to defend himself,
assault, attack and shoot for several times with short firearms one Dr.
Maximino P. Picio, Jr., who as a result thereof, suffered multiple gunshot
wounds on the different parts of his body which directly caused his death.
CONTRARY TO LAW.[2]
Upon being arraigned on July 13, 1995, appellant Pedro Pascual, assisted by his counsel,
entered the plea of "Not guilty". Thereafter, trial on the merits ensued.

We come now to the penalty. The crime of homicide is penalized by reclusion temporal.
[19]
There being no aggravating or mitigating circumstance attendant to the commission of the
crime, the penalty ofreclusion temporal shall be imposed in its medium period, i.e., from
fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4)
months. Applying the Indeterminate Sentence Law, the imposable penalty shall be within the
range of prision mayor, i.e., from six (6) years and one (1) day to twelve (12) years, as
minimum, to reclusion temporal in its medium period of from fourteen (14) years, eight (8)
months and one (1) day to seventeen (17) years and four (4) months, as maximum.

The evidence adduced by the prosecution shows that the victim, Dr. Maximino Picio, Jr., was
the Municipal Health Officer of San Manuel, Isabela. On March 14, 1995 at around 7:00
oclock in the evening, Dr. Picio went to the house of Marissa Robles who served as a midwife
in the Rural Health Unit of San Manuel from January 26, 1994 until her services were
terminated on August 5, 1994 by Municipal Mayor Reynaldo P. Abesamis of San Manuel,
Isabela. While at the house of Marissa, Dr. Picio discussed with her certain matters concerning
the Rural Health Unit of San Manuel.[3]

IN VIEW OF THE FOREGOING, the assailed Decision is MODIFIED. Appellant Julian Castillo
y Lumayro is found guilty of Homicide. He is sentenced to imprisonment of from nine (9) years
and four (4) months of prision mayor as minimum to sixteen (16) years, five (5) months and

At around 9:00 oclock in the evening, Dr. Picio decided to go home. He was accompanied by
Marissa outside the house where his motor vehicle was parked at the roadside. After boarding
his vehicle, and while he was about to leave, two (2) unidentified persons who were armed
with short firearms suddenly appeared and walked toward Dr. Picio and Marissa. Alarmed,

Marissa called the attention of the unsuspecting Dr. Picio that the "enemies" were coming
("May dumarating na kalaban").[4] One of the unidentified men shoved Marissa and at the
same time told her to get out of the way. [5] Immediately thereafter, the two unidentified men
started firing their guns at Dr. Picio even as the latter pleaded to them in Ilocano not to shoot
for the reason that they were friends ("Saan kayo agkaskasta, agkakadua tayo.") Apparently
determined to kill their victim, the assailants pulled Dr. Picio out of his vehicle and continued to
shoot him several times as he laid helpless on the ground. The two assailants left only after
the victim was already dead.[6]
Prosecution eyewitness Marissa Robles recognized the assailants due to the electric light in
front of the house generated by the Isabela Electric Company (ISELCO) and the light
emanating from the headlights of the vehicle of Dr. Picio. There was also a moon that evening
when the shooting incident happened.[7] Upon the arrest of appellant Pedro Pascual on the
following day, March 15, 1995, Marissa pointed to him as one of the two assailants [8] whom
she described as small, with white complexion and sporting a brushed-up hair. She also
described the other assailant as tall, dark and slender.[9]
The said prosecution eyewitness disclosed that she had seen the appellant about one (1)
week prior to the shooting incident in the Rural Health Unit of San Manuel, Isabela when the
appellant arrived in the morning and stayed there briefly before he left the place.[10]
Dr. Bernardo Layugan, Municipal Health Officer of Roxas, Isabela conducted the post mortem
examination on the body of the victim on March 16, 1995. His findings as to the cause of death
of the victim are contained in the Post Mortem Certificate of Death, [11] to wit: 1. Gunshot wound
inlet left upper lip; 2. Gunshot wound inlet chin; 3. Gunshot wound anterior sternal portion; 4.
Gunshot wound inlet right armpit; and 5. Gunshot wound anterior abdominal portion. Missc
Rosalinda S. Picio, wife of the late Dr. Maximino Picio, Jr., testified on the civil aspect of the
case. She stated that they spent around P 300,000.00 for the wake and funeral service. She
also declared that her late husband used to receive a monthly salary of P13,000.00 as
municipal health officer in addition to the P 240,000.00 annual income he used to earn in his
farming and grains business.[12]
On the other hand, appellant Pedro Pascual denied that he killed Dr. Maximino Picio, Jr.
Appellant Pascual testified that he was released on recognizance from the provincial jail of
Isabela on March 3, 1995 after being detained there for almost three (3) years as a suspect in
an ambush that took place sometime in 1990 and for his past activities as a former member of
the New Peoples Army (NPA). On March 8, 1994, his services as carpenter were hired by his
kumpadre, Fernando Agaloos, in the construction of the house of a certain Napoleon Velasco.
He worked in the construction until he was arrested by the police on March 15, 1995 in
connection with the killing of Dr. Maximino Picio, Jr.[13]
Appellant Pascual claimed that he stayed in his house in Barangay Eden, San Manuel, Isabela
during the entire evening of March 14, 1995. At around 7:00 oclock in the evening of the said
date his neighbors, Guillermo Velasco and Santiago Casticon, arrived in his house. Shortly
thereafter, another neighbor, Elmer Velasco, also arrived. Among other matters, they talked

about his life as a detention prisoner in the provincial jail. After his visitors had left at past
10:00 oclock in the evening, Pascual went to sleep.[14]
On the following morning of March 15, 1995, appellant Pascual reported for work in the
construction site of the house of Napoleon Velasco. However, he failed to return in the
afternoon of the same date inasmuch as he was arrested by the police when he returned to
his house from work to take his lunch. Scmis
Upon his arrest, appellant Pedro Pascual was immediately brought by Police Senior Inspector
Dionisio Borromeo to the PNP Crime Laboratory Service in Santiago City, Isabela for paraffin
examination to determine the presence of gunpowder residue (nitrates) on the hands of the
appellant. Boiled wax was poured on his hands.[15] The result of the paraffin examination
however, did not show the presence of any gunpowder residue on the hands of the appellant.
[16]

The appellant denied that he knew Dr. Maximino Picio, Jr. as the Rural Health Officer of San
Manuel, Isabela. He also denied having gone to the Rural Health Unit of San Manuel, Isabela
one (1) week before Dr. Picio was killed.
Defense witnesses Elmer Velasco, Guillermo Velasco and Santiago Casticon corroborated the
testimony of appellant Pedro Pascual. The said defense witnesses respectively testified, in
substance, that they were in the house of appellant Pascual between 7:00 oclock to 10:00
oclock in the evening of March 14, 1995 to welcome him who had been away from their
barangay for almost three (3) years; and that they talked about the life of the appellant as a
detention prisoner in the Isabela provincial jail. They claimed that the appellant did not leave
his house where they all stayed that evening.[17]
After analyzing the evidence, the trial court rendered its Decision the dispositive portion of
which reads, to wit:
AS A CONSEQUENCE OF ALL THE FOREGOING, the Court finds
accused Pedro Pascual guilty beyond reasonable doubt of the crime of
murder provided for and penalized under Article 248 of the Revised Penal
Code, and hereby sentences him to suffer the penalty of reclusion
perpetua, to indemnify the heirs of the victim the sum of P 300,000.00, the
amount spent for the coffin, wake and burial of the victim, P 50,000.00 for
life, without however subsidiary imprisonment in case of insolvency, and
to pay the cost.
Considering that the other accused has not been apprehended, let this
case be archived to be revived upon apprehension of said accused and/or
upon motion of the public prosecutor.
SO ORDERED.[18]
In his appeal, appellant Pedro Pascual interposed the following assignments of error:

her alleged visit therein and to explain how and why she had particularly noticed and
recognized him. Xsc
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE
UNCORROBORATED TESTIMONY OF MARISSA ROBLES THAT SHE
SAW THE COMMISSION OF THE CRIME AND RECOGNIZED THE
ACCUSED-APPELLANT AS ONE OF THE KILLERS OF DR. MAXIMINO
PICIO, JR.
II

In addition, the appellant pointed out that the paraffin test conducted on his hands at the PNP
in Santiago City yielded negative results. According to him while gunpowder traces or nitrates
can be removed by acetic acid or the ordinary vinegar, there was no showing that he knew of
such fact, and that he used vinegar to remove gunpowder traces from his hands.
Article 248 of the Revised Penal Code, as amended, provides:

THE TRIAL COURT ERRED IN REJECTING THE TESTIMONIES OF

THE ACCUSED-APPELLANT AND WITNESSES ELMER VELASCO,
GUILLERMO VELASCO AND SANTIAGO CASTICON ON THE
GROUND THAT THEIR TESTIMONIES ARE "TOO GOOD TO BE
TRUE". Sc

Article 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.

III
THE TRIAL COURT ERRED IN NOT GIVING ANY EVIDENTIARY VALUE
TO THE RESULTS OF THE PARAFFIN TEST ON ACCUSEDAPPELLANT.
IV
THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSEDAPPELLANT WAS ONE OF THE KILLERS OF THE VICTIM.[19]
Appellant Pedro Pascual expressed grave doubt over the presence of Marissa Robles at the
scene of the crime. He stated that Marissa, who is a young and single lady from the barrio,
should have had enough time talking with the late Dr. Maximino Picio, Jr. for two (2) hours and
so it was not necessary for her to still accompany him outside her house at such an unholy
hour in the evening. Appellant also stated that if Marissa were indeed present at the crime
scene, then she could have been hit by bullets or she could have even been killed by the
assailants knowing that she was a potential witness against them.
The appellant further stated that even on the assumption that Marissa was beside the victim at
the time the shooting incident occurred, her uncorroborated identification of the appellant
allegedly because the scene of the crime was well-lighted is unreliable; and that the
suddenness of the attack could not have afforded her the time, calmness and presence of
mind to recognize the assailants.
Moreover, appellant Pascual opines that it was unlikely for prosecution witness Marissa
Robles to have been at the Rural Health Unit of San Manuel, Isabela and saw him one (1)
week prior to the shooting incident on March 14, 1995 inasmuch as she had been separated
from the service as early as August 5, 1994; and that Marissa failed to disclose the purpose of

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of
a vessel, derailment or assault upon a railroad, fall of an airship, or by
means of motor vehicles, or with the use of any other means involving
great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive
cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of
the victim, or outraging or scoffing at his person or corpse.
After a careful review of the record, we find that the decision of the trial court finding the
appellant guilty of the crime of murder is amply supported by the evidence. That the victim, Dr.
Maximino Picio, Jr., died of multiple gunshot wounds in the evening of March 14, 1995 in front
of the house of Marissa Robles in Barangay Villanueva, San Manuel, Isabela is not disputed.
Appellant Pedro Pascual claimed that the lower court erred in giving credence to the
uncorroborated testimony of prosecution eyewitness Marissa Robles while rejecting his alibi
which was corroborated by his neighbors, namely: Elmer Velasco, Guillermo Velasco and
Santiago Casticon. It should be emphasized however, that credibility does not go with
numbers.[20] The testimony of a single witness is sufficient to support a conviction even in a
charge of murder where it is positive and credible.[21]

The participation of appellant Pedro Pascual in the killing of Dr. Maximino Picio, Jr. was duly
established by the testimony of prosecution eyewitness Marissa Robles. During the trial
Marissa positively identified and pinpointed appellant Pascual, whom she earlier described to
the police authorities as small, with white complexion and sporting a brushed-up hair, as one
of the two assailants of Dr. Picio. Marissa testified that she had spotted the appellant and his
companion who were both carrying short firearms while they were walking toward Dr. Picio,
prompting her to warn him of the approaching enemies ("May dumarating na kalaban").
Appellant Pedro Pascual even ordered Marissa to get out of the way as the latter was directly
beside Dr. Picio who was then about to leave. Dr. Picio pleaded to the assailants not to shoot
him inasmuch as they were friends, but to no avail. She had actually witnessed the shooting of
the victim as well as recognized the two assailants due to the electric lights in front of her
house being generated by the ISELCO and the illumination from the headlights of the victims
vehicle which were already switched on. In addition, there was a moon on that evening when
the shooting incident happened. Xlaw
The testimony of Marissa was found by the lower court to be more credible, straightforward
and worthy of belief.[22] On the other hand, appellant did not present proof to show that she
was biased. There is also no evidence from which it can be inferred that the said prosecution
eyewitness was motivated by any ill-will in testifying against him. If at all, the arguments
advanced by the appellant in his attempt to cast doubt on the credibility of the said prosecution
eyewitness are based mainly on conjectures that cannot prevail over the positive identification
by the said eyewitness that the appellant was one of the two perpetrators of the crime.
It is not difficult to imagine why Marissa remained unscathed during the shooting incident. The
facts clearly show that she was not the object of the criminal act. That Marissas services in
the Rural Health Unit of San Manuel, Isabela had been severed as early as August 5, 1994
does not run counter to her claim that she saw the appellant one (1) week before Dr. Picio was
killed on March 14, 1995. The records of this case disclose that Marissa continued to visit Dr.
Picio at the Rural Health Center in San Manuel, Isabela despite her severance from the
service; a fact which prompted Mayor Reynaldo P. Abesamis, M.D., Municipal Mayor of San
Manuel, Isabela, to issue a written order dated February 23, 1995 addressed to Dr. Maximino
Picio, Jr. to bar Marissa Robles from the said office, otherwise he "will be constrained to
institute drastic action." [23] In any case, it is a settled rule that the Supreme Court will not
interfere with the findings and judgment of the trial court in determining the credibility of
witnesses, unless there appears in the record some fact or circumstance of weight and
influence which has been overlooked or the significance of which has been misinterpreted.[24]
Besides, appellant failed to show that it was physically impossible for him to be present at the
place where the crime was committed at the time of commission thereof. [25] Pascual claims
that he was in his house in Barangay Eden, San Manuel, Isabela when the killing of Dr. Picio
in Barangay Villanueva, San Manuel, Isabela took place. It should be noted that the distance
between the two barangays is only about three (3) kilometers. They are connected by an
irrigation road that can easily be negotiated by a motorized vehicle or even on foot.
[26]
Consequently, the defense of alibi by the appellant must fail. Sclex
Appellant Pascual likewise faults the trial court for not according evidentiary weight to the
result of the paraffin test per the Report issued by the police crime laboratory in Santiago City,
Isabela that shows appellant negative of any gunpowder residue (nitrates) on both his hands.

It is a well-settled rule that a negative paraffin test result is not a conclusive proof that one has
not fired a gun, because it is possible for a person to fire a gun and yet bear no traces of
nitrates or gunpowder, as when the hands are bathed in perspiration or washed afterwards.
[27]
Additionally, defense witness Leonora Camurao, forensic chemist at the PNP Crime
Laboratory, Camp Adduru, Tuguegarao, Cagayan specifically stated that gunpowder or nitrates
can be removed with the use of acetic acid or vinegar.[28]
The lower court correctly found that treachery attended the shooting to death of the victim. The
requisites for appreciating treachery (alevosia) in the commission of the crime of murder are:
(1) at the time of the attack, the victim was not in a position to defend himself; and (2)
appellant consciously and deliberately adopted the particular means, methods or forms of the
attack employed by him.[29] From the eyewitness account of Marissa Robles, appellant Pascual
and his companion who were both armed with short firearms approached Dr. Picio when the
latter was inside his vehicle and about to leave. Dr. Picio became aware of their presence only
after he was warned by Marissa. Immediately thereafter, appellant and his companion shot Dr.
Picio several times despite his plea to spare his life. Sclaw
It appears clear that the assailants purposely sought the opportunity so that their unarmed
victim was not in a position to defend himself when they simultaneously shot him to death
several times. The fact that Marissa called the attention of Dr. Picio upon noticing the
approaching assailants did not negate the finding of treachery for the reason that treachery
may still be appreciated even when the victim was forewarned of the danger to his person.
[30]
The essence of treachery is the suddenness and unexpectedness of the assault without the
slightest provocation on the part of the person attacked.[31]
The qualifying circumstance of evident premeditation, however, does not obtain in the case at
bench. The elements of evident premeditation are: (1) the time when the offender determined
to commit the crime; (2) an act manifestly indicating that he clung to his determination; and (3)
a sufficient lapse of time between determination and execution to allow himself time to reflect
upon the consequences of his act. [32] The evidence adduced by the prosecution does not
prove any of the said elements. Korte
The lower court correctly imposed the penalty of reclusion perpetua on the appellant in view of
the absence of any aggravating and mitigating circumstance.
In view of the death of the victim, Dr. Maximino P. Picio, Jr., his forced heirs are entitled to
P50,000.00 representing civil indemnity ex delicto. They are also entitled to P50,000.00 by
way of moral damages inasmuch as the widow of the victim, Rosalinda S. Picio, testified on
how she felt over the loss of her husband. [33] Additionally, the appellant is liable to pay to the
heirs of the victim damages for loss of earning capacity of the deceased. However, actual
damages may not be awarded in view of the absence of competent evidence to support the
same. Rtcspped
It appears that Dr. Maximino Picio, Jr. was 64[34] years old at the time of his death on March 14,
1995. Her widow testified that he used to receive a monthly salary of P13,000.00 as Municipal
Health Officer of San Manuel, Isabela. In accordance with the American Expectancy Table of

Mortality which was adopted by the Court,[35] the loss of earning capacity shall be computed as
follows: Sdaadsc

Samson as witnesses. From their testimonies may be culled the following factual antecedents
of the instant case:

Net Earning Capacity (X) = Life Expectancy x (Gross Annual Income

Living Expenses e.g. 50% of annual gross income)

Sometime in March of 1993, Jose Nuez, the Barangay Captain of Danao, San Jacinto,
Masbate made a report to the Chief/Station Commander of the Philippine National Police
(PNP) of San Jacinto, Masbate regarding the presence of persons who were seen carrying
arms and roaming around the vicinity of Danao. [4] On April 13, 1993, the Station Commander
of the PNP ordered a team of six (6) policemen headed by SPO4 Pascual Delavin to proceed
to Barangay Danao to verify the said report. [5] When they reached Barangay Danao, SPO4
Delavin requested Barangay Tanod Gomez Samson to guide them around the area as the
Barangay Captain was then in Masbate.[6] Not finding the malefactors in Danao, they moved
on to Sitio Toquip in the neighboring Barangay of Jagna-an. Along the trail to Sitio Toquip, they
encountered the five (5) accused who were all armed. Bartolata, Villanueva and Johnny Sola
were each carrying a homemade gun, locally known as lantaka [7] while Dagoy Sola was
armed with a shorter homemade gun locally known as sumpak, [8] and recovered from
Bobong Sola was a bolo. When asked to surrender, accused Bartolata and Villanueva laid
down their arms and surrendered to the team of SPO4 Delavin, but the other accused
immediately fled the scene of the crime and were able to evade apprehension. [9]

= 2 (80-64) x (156,000.00-78,000.00)
3
= 10.667 x 78,000.00
= P 832,026.00
WHEREFORE, the Decision of the Regional Trial Court of Roxas, Isabela, Branch 23,
convicting appellant Pedro R. Pascual of the crime of murder and imposing the penalty
of reclusion perpetua is hereby AFFIRMED subject to the MODIFICATION that the civil liability
of the appellant in favor of the forced heirs of the victim shall be as follows: P50,000.00
representing civil indemnity ex delicto; P50,000.00 by way of moral damages; and
P832,026.00 as damages for the loss of earning capacity of the deceased victim, Dr.
Maximino P. Picio, Jr.
[G.R. No. 118078. July 15, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR VILLANUEVA, accusedappellant.
DECISION
FRANCISCO, J.:
The five (5) accused namely Reynaldo Bartolata alias Tilo, Oscar Villanueva, Johnny
Sola alias Tangane, Dagoy Sola and Bobong Sola [1] were charged with the crime of illegal
possession of firearms allegedly committed as follows:
That on or about April 13, 1993, in the afternoon thereof, at Sitio Toquip, Barangay Jagnaan,
Municipality of San Jacinto, Province of Masbate, Philippines, within the jurisdiction of this Honorable
Court, the above-named accused, conspiring together and mutually helping one another, did then and
there willfully, unlawfully and feloniously have in their possession and control three (3) lantakas and
one (1) sumpak, without first having obtained the necessary permit and license from the competent
authority.[2]
Of the five accused mentioned above, only Reynaldo Bartolata and Oscar Villanueva
were apprehended by the police authorities while the Sola brothers, Johnny, Dagoy and
Bobong are at large up to the present. [3] At the arraignment, Bartolata and Villanueva pleaded
not guilty to the crime charged against them. Trial ensued during which the prosecution
presented SPO4 Pascual Delavin, Bgy. Captain Jose Nuez, and Bgy. Tanod Chief Gomez

In their defense, accused Villanueva and Bartolata denied the charges against them and
pleaded their respective alibis. According to Villanueva, he was at their farm in Sitio Toquip on
April 13, 1993, at around 3:00 oclock in the afternoon when a certain Toti Almoradie arrived
and asked him of the whereabouts of the Sola brothers. [10] Later, seven (7) policemen also
arrived and inquired about the location of the house of Bartolata. He informed the policemen
that the house of Bartolata was situated in Danao, San Jacinto, Masbate. The policemen then
requested him to accompany them to the house of Bartolata in Danao. Upon reaching the
house of Bartolata, the policemen started firing their guns, and from a distance of about eight
(8) arms length, Villanueva saw that the policemen had tied Bartolatas hands behind his back
and that one of them, later identified as Patrolman Relente boxed Bartolata. Thereafter, the
policemen ordered both Villanueva and Bartolata to go with them to San Jacinto. On the way
to San Jacinto, the group passed by a house and one of the policemen asked Villanueva who
the owner of the said house was. When Villanueva replied that it is his house, the policemen
showed him three (3) lantakas and a sumpak [11] and told him: Maybe you own these guns
because we took them from your house.[12] Villanueva persistently denied ownership of the
guns. However, during cross-examination, he pointed out that the homemade guns could have
been left in his house by Johnny Sola without his knowledge as his house was often left
unoccupied.[13]
For his part, accused Bartolata claimed that on the said date and time of the incident he
was with his wife, Josefa Villanueva, in their house in Sitio Toquip in Barangay Jagna-an, San
Jacinto, Masbate. He was roofing their house when Toti Almoradie and Patrolman Relente
arrived. The two went upstairs and Relente allegedly tied Bartolatas hands behind his back
then boxed and even kicked him. On the other hand, Toti took the bolo which Bartolata was
using in roofing the house and gave the same to Relente. The mauling of Bartolata continued
despite Josefas pleas for Relente to stop beating her husband.[14] The latter lost
consciousness and when he came to he was already in the house of Oscar Villanueva who
was also picked up by the police.[15]

On July 27, 1994, Branch 50 of the Regional Trial Court of San Jacinto, Masbate
rendered a decision finding both accused Reynaldo Bartolata and Oscar Villanueva guilty of
Illegal Possession of Firearms penalized under Section 1 of P.D. No. 1866. [16] In convicting the
accused, the trial court relied on the time honored doctrine that positive identification of the
accused and positive testimonies as in the instant case should prevail over the formers alibi
and denials of the commission of the crime for which they are charged since great weight is
generally accorded to the positive testimony of the prosecution witnesses than the accuseds
denial.[17] Giving full faith and credit to the testimonies of the prosecution witnesses, the trial
court likewise cited the failure of the defense to ascribe to the former any improper or ulterior
motive for testifying against the accused. [18] Furthermore, while the trial court found the
prosecution witnesses to be consistent and credible in their testimonies that the accused were
caught in flagrante delicto,[19] it noted that the testimonies of the defense witnesses are
inconsistent, incredible and not worthy of belief.[20]
Accused Bartolata died after the promulgation of the decision in the trial court, hence
only accused Villanueva was able to interpose this appeal before us raising the following lone
assignment of error:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE
DOUBT OF ILLEGAL POSSESSION OF FIREARMS (VIOL. OF P.D. 1866) DESPITE THE
INCREDIBLE TESTIMONIES OF THE PROSECUTION WITNESSES AND THE INADMISSIBLE
EVIDENCE AGAINST HIM, BEING THE FRUIT OF ILLEGAL SEARCH AND SEIZURE. [21]
In seeking to uphold the conviction of Villanueva, the Office of the Solicitor General
(OSG) countered with its arguments that: (1) Findings of the trial court on credibility of
witnesses are given great weight by appellate courts, [22] and (2) The arrest of the appellant
in flagrante delicto was lawful under Section 5 [a] of Rule 113 of the Rules of Court. [23]
After a careful review of the records of this case, we find the evidence presented by the
prosecution to be insufficient to convict accused-appellant Oscar Villanueva of the crime of
illegal possession of firearm.

while the prosecution was able to establish the fact that the subject firearm was seized by the police
from the possession of appellant, without the latter being able to present any license or permit to possess
the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such
firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a
license or permit to carry the firearm by clear and convincing evidence, like a certification from the
government agency concerned.
Putting it differently, when a negative is averred in a pleading, or a plaintiffs case depends upon the
establishment of a negative, and the means of proving the fact are equally within the control of each
party, then the burden of proof is upon the party averring the negative. [27]
As we have previously held, the testimony of a representative of, or a certification from
the PNP Firearms and Explosives Unit that the accused-appellant was not a licensee of the
said firearm would have sufficed to prove beyond reasonable doubt the second element of the
crime of illegal possession. The foregoing cannot be dispensed with and its absence renders
the accused-appellants conviction erroneous.[28]
In view of the foregoing, we deem it unnecessary to delve into the merits of the accusedappellants assignment of error and the OSGs arguments in rebuttal of the same.
WHEREFORE, the assailed decision of the court a quo is REVERSED and SET
ASIDE. Accused-appellant Oscar Villanueva is hereby ACQUITTED for insufficiency of
evidence and ordered immediately released unless there are other legal grounds for his
continued detention.
[G.R. No. 115686. December 2, 1996]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO MALABAGO y
VILLAESPIN, accused-appellant.
DECISION
PUNO, J.:

In crimes involving illegal possession of firearm, the prosecution has the burden of
proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that
the accused who owned or possessed it does not have the corresponding license or permit to
possess the same.[24] The latter is a negative fact which constitutes an essential ingredient of
the offense of illegal possession, and it is the duty of the prosecution not only to allege it but
also to prove it beyond reasonable doubt. [25] It is this duty that the prosecution has miserably
failed to discharge in the case at bench. We searched the records for any evidence, either
testimonial or documentary, to prove the non-possession by the accused-appellant of the
requisite license or permit and found none. The prosecution had apparently omitted presenting
this very vital piece of evidence, and the trial court, either by inadvertence or ignorance, gave
it nary a thought and proceeded to convict the accused. It is this very same fatal flaw that led
us to reverse the conviction of Nilo Solayao for possession of a 49-inch long homemade
firearm, locally known as latong, in the case of People vs. Solayao.[26] We said there that:

This is an automatic review of the decision of the Regional Trial Court of Dipolog City,
Branch 10 which imposed the penalty of death on accused-appellant, Pedro Malabago y
Villaespin, in Criminal Case No. 6598, viz:
WHEREFORE, the court finds accused Pedro Malabago guilty beyond reasonable doubt of the crime of
PARRICIDE as defined and penalized under Article 246 of the Revised Penal Code. With reluctance
and a heavy heart therefore, inspired by the personal feeling and view of the undersigned with respect to
the wisdom of the penalty of death for any crime, the court finds itself with no other alternative but to
impose the penalty provided for by the express mandate of the law which is now restored under
Republic Act No. 7659. The accused (Pedro Malabago y Villaespin) is hereby sentenced to DEATH for
the terrible crime he has committed and, to indemnify the heirs of the victim in the sum of P50,000.00
conformable to the recent jurisprudence on the matter (People v. Sison, 189 SCRA 643).
Cost de oficio.

SO ORDERED
DIPOLOG CITY, Philippines, this 10th day of May 1994.

The trial court upheld the prosecution and on May 10, 1994 convicted accused-appellant
of parricide and sentenced him to death pursuant to republic Act No. 7659.
Before us appellant assigns the following errors:
I

(Sgd.)
WILFREDO C. OCHOTORENA

The sentence of death imposed by the trial court on the appellant is an unconstitutional
penalty for being violative of fundamental human rights and is, thus, null and void.

Acting Presiding Judge1

In an information dated January 7, 1994, accused-appellant was charged with the crime
of parricide committed as follows:
That in the evening, on or about the 5th day of January 1994, at Barangay Gulayon, Dipolog City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to
kill and without any justifiable cause, did then and there wilfully, unlawfully and feloniously hack and
strike with a bolo one Letecia R. Malabago, his lawfully wedded wife, hitting the latter on her face and
neck, which caused the victims instantaneous death, to the damage and prejudice of the heirs of the
victim, in the amount of P30,000.00 as death indemnity, and also moral and exemplary damages in the
amounts to be established during the trial.2
The following facts were established by the prosecution: On January 5, 1994, at about 7:00 in
the evening, Guillerma Romano, appellants mother-in-law, was tending her sari-sari store in
Barangay Gulayon, Dipolog City. The Store and its premises were lit by a kerosene lamp and
the fluorescent light from the adjoining house of Dodong Opulentisima. Guillermas daugther.
Letecia Romano Malabago, arrived and sat on one of the benches outside the store. She had
just come from selling some jackfruit. Allandel, Letecias fourteen-year old son, appeared and
sat on the bench facing her. He listened to his mother and grandmother who were
conversing. A few minutes later, accused-appellant came and interrupted his wife and motherin-laws conversation. He and Letecia began arguing. Guillerma turned away but heard the
couples altercation over money and appellants jealousy of someone. Suddenly, Guillerma
heard a loud sound and she thought that appellant slapped Letecia on the face. Letecia cried
out Agay! Looking out the store window, Guillerma saw Letecias face bloodied with a slash
along her right ear. Appellant was facing Letecia, and with a bolo in his hand, struck her
again, this time hitting the lower left side of her face, from the lips down to the neck. Letecia
fell to the ground. Guillerma rushed towards her daughter and shouted for help.3 She was
lifeless.
Appellant fled to Dodong Opulentisimas house. Dodong Opulentisima later called the
police. They came, fetched appellant and brought him to their station. 4 On investigation, the
police found a bloodied bolo in the pineapple plantation near appellants house.5
Letecia was found to have died of cardio-respiratory arrest; shock hemorrhage,
massive; hack wounds, multiple.6
Accused-appellant pled not guilty to the crime. He claimed that on January 5, 1994, he
was in the poblacion of Dipolog City. He alleged he did not know who hacked his wife and had
no means of finding the culprit because he was placed in jail after her killing. 7 He claimed
through his son, Allandel, as defense witness, that Guillerma testified against him because she
was against their marriage. He was then jobless.8 The proccedings show that Guillerma,
together with her husband, catalino, and appellants and Letecias three children namely,
Allandel, Aljun and Alex later signed as affidavit of desistance and moved to dismiss the case
against him.9

II
The judgment of conviction is null and void for having been rendered by a trial court
ousted of jurisdiction because of the grave violations of the appellants rights to due
process committed by no less that the presiding judge himself as shown by his conduct at
trial.
III
Assuming without conceding that the trial court was not ousted of jurisdiction, it
nevertheless gravely erred in convicting the appellant of parricide considering that the
prosecution failed to prove his guilt beyond reasonable doubt as demonstrated by:
(a)

The prosecutions failure to prove the legitimate marital

relation between appellant and the victim;

(b)

The prosecutions failure to prove the fact and cause of

death;

(c)

The prosecutions failure to establish the chain of custody

over the alleged instrument of death;
IV

Assuming without conceding that the trial court was not ousted of jurisdiction, it
nevertheless gravely erred in convicting the appellant when it arbitrarily and selectively
gave full weight and credence only to Guillerma Romanos inculpatory but inconsistent
and inadmissible testimony and disregarded her exculpatory statements.
V
Assuming without conceding that the trial court was not ousted of jurisdiction, it
nevertheless gravely erred in peremptorily dismissing the appellants defense of alibi as
inherently weak.
VI
Assuming without conceding that the finding of parricide is correct, the trial court
nevertheless gravely erred in appreciating the existence of treachery as an aggravating and
qualifying circumstance.

VII
Assuming without conceding that the finding of parricide is correct, the trial court
nevertheless gravely erred in refusing to consider the mitigating circumstance of
voluntary surrender in favor of the appellant, despite the prosecutions failure to
contradict and challenge the appellants claim of this mitigator.
VIII
Assuming without conceding that it was not ousted of jurisdiction, the trial court
nevertheless gravely erred in awarding civil indemnity arising from the death of Letecia
Malabago considering that the prosecution failed to prove said death as a fact during
trial.10
We affirm the trial courts findings with modification
The crime of parricide defined in Article 246 of the Revised Penal Code as amended by
Republic Act 765911 states:
Art. 246. Parricide. -- Any person who shall kill his father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall
be punished by the penalty of reclusion perpetua to death.
Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the
accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a
legitimate other ascendants or other descendants, or the legitimate spouse of the accused.12
The key element in parricide is the relationship of the offender with the victim. 13 In the
case at parricide of a spouse, the best proof of the relationship between the accused and the
deceased is the marriage certificate. In the absence of a marriage certificate. However, oral
evidence of the fact of marriage may be considered by the trial court if such proof is not
objected to.14
Guillerma Romano testified on direct examination that:
PROSECUTOR MAH:
Q On January 5, 1994 at about 7:00 in the evening, can you still recall where you
were at that particular time?

A I thought it was a slap on the face but she was nit by a bolo.
Q What was that incident about?
A There was an altercation between husband and wife.
Q After the altercation between husband and wife, what happened?
A I saw the hacking two times and I saw blood.
Q Who was hacked?
A My daugther Letecia was hacked by Pedro Malabago.
xxx xxx

x x x.15

Guillerma Romanos testimony on direct examination affirmed the narration in her

affidavit taken the day after the incident. The affidavit was adopted by the prosecution as its
Exhibit A and it reads in part:
Q What is your purpose in coming to the Office of the Investigator of the Dipolog
City Police?
A To file a complaint against Pedro malabago y Villaespin, 42 years old and a
resident of Gulayon, Dipolog City,
Q What is your complaint against said person?
A He hacked to death my daughter who is his wife with the use of a bolo.
Q How many times did the suspect hack his wife, Letecia R. Malabago?
A Twice, hitting the victim on the right side of her face and on the neck resulting in
her instanteneous death.
xxx xxx

x x x.16

Appellant did not object to Guillermas testimony and sworn statement that he and
Letecia were husband and wife.17 Appellant himelf corroborated Guillermas testimony, to wit:
COURT: (to the witness)
Q You are Pedro Malabago, the accused herein?
A Yes, sir.

A I was in my store.

Q What is your relation to the late Letecia Romano Malabago?

Q While you were in your store at that particular time and date, can you still
remember if there was an unusual incident [that] happened?

A She was my wife, your honor.

A Yes, sir.
Q Please tell us what that incident was about?
A At that moment, I heard a loud sound (paka).
Q Did you investigate what that loud sound [was] all about?
A I did not mind because they are husband and wife.
Q What was that loud sound about?

Q You mean to say you were legally married to Letecia Romano Malabago?
A Yes, sir.
Q Who solemnized the marriages?
A Mayor Barinaga, your honor.
Q When?
A In the year 1970, your honor.
Q Who were the witnesses, could you still remember?

A I can only remember Sergio Vidal, your honor.

Q Where is she now?

Q But then you were legally married by civil ceremony officiated by Mayor
Barinaga?

A She is already buried in the cemetery.

A Yes, your honor.

A Yes, sir.

xxx

x x x.18

xxx

The testimony of the accused that he was married to the deceased is an admission
against his penal interest. It is a confirmation of the semper praesumitur matrimonio and the
presumption that a man and a woman deporting themselves as husbands and wife have
entered into a lawful contract of marriage.19
Appellant alleges that the prosecution failed to establish the fact and cause of Letecias
death because Dr. Dominador Celemin, the City Health Officer who signed the death
certificate, did not personally examine her cadaver.20 It is content that the consent of the death
certificate issued by Dr. Celemin is hearsay.21
Letecias death certificate is not the only proof of her death. Guillerma, in her affidavit,
stated that her daughter died as a result of the hack wounds. 22 Called also as a hostile witness
to the defense, she testified:
COURT
Q At the time, you actually saw the accused hacked (sic) the bolo to (sic) your
daughter?
A Yes, you honor.
Q In fact, you witnessed the blood oozing on the face of your daughter?
A Yes, your honor.
Q In other words, you actually saw the accused herein hack the bolo to your
daughter, am I right?
A Yes, your honor.
Q And the cause of death of your daughter was hacking of Pedro Malabago?
A Yes, your honor.
Q I have observed a while ago while you were testifying, you were crying. Why?
A Because of worries that Pedro had done to my daughter.
Q You mean to say, you cried because your daughter was killed by her husband?
A Yes, your honor.
xxx xxx

x x x.23

Appellant affirmed on cross examination that his wife died as a result of the hacking,
thus:
FISCAL MAH: (to the witness)
Q Mr. Witness, you know Letecia Malabago because she was your wife?
A Yes, sir.

Q You mean to say she is already dead?

Q What was the cause of her death?

A She was hacked, sir.
Q Hacked by whom?
A I do not know who hacked my wife.
xxx xxx

x x x.24

Accused-appellant also claims that the trial court showed partiality to the prosecution by
unduly interfering in the presentation of evidence. By asking questions, the judge allegedly
elicited prejudicial admissions from witnesses without affording appellants counsel the right to
examine them on their answers to the court, in violation of appellants constitutional right to
due process and right against self-incrimination.25
The records disclosed that the questions the trial judge propounded were made mainly
to clarify what the prosecution and defense witnesses had testified on direct and cross
examinations. The essential elements of the crime of parricide like appellantss marriage to
Letecia, the cause of Letecias death and appellants participation therein were facts already
established by the prosecution in its evidence in chief. Using his discretion, the trial judge
questioned the witnesses to clear up obscurities in their testimonies ans sworn
statements.26 The wise use of such discretion cannot be assailed as a specie of bias.
A judge is called upon to ascertain the truth of the controversy before him. He may
properly intervene in the presentation of evidence to expedite and prevent unnecessary waste
of time27 and clarify obscure and incomplete details after the witness had given direct
testimony.28 After all, the judge is the arbiter and he ought to satisfy himself as to the
respective merits of the claims of both parties in accord with the stringent demands of due
process.29 In the case at bar, the trial judge had strong reasons to question the material
witnesses who executed affidavits of desistance contradicting their previous stance. If to the
mind of the parties, the trial judge was unduly interfering in their presentation of evidence, they
were free to manifest their objection. They were likewise free to ask redirect questions from
their witness after interrogation by the trial court. In the instant case, however, they never
manifested that the questions of the trial judge had traversed the allowable parameters. Even
assuming that some of the questions were incriminating, we cannot hold that the witnesses
were compelled to incriminate themselves. The records show they answered the questions of
the court freely and voluntarily and without any objection from their respective counsels.
The prosecution evidence is based solely on the testimony of Guillerma
Romano. Nonetheless, her testimony is clear, spontaneous and straightforward. Her
inconsistencies are minor and inconsequential and they are not incongruous with her
credibility.30 Her testimony was not eroded even when she was presented by the defense as a
hostile witness. She admittedly signed the affidavit of desistance for the sake of her three
grandchildren and this is understandable in light of the circumstances of the case. Allandel
and his brothers pled that she withdraw the complaint because they did not want their father to
be in prison.31 Deep in her heart, however, Guillerma wanted justice for her daughter and thus,
she testified for the prosecution. 32 The fact that she objected to her daughters marriage to
appellant is too flimsy a reason to impel her to testify against the father of her grandchildren.

We agree with the trial court that appellants defense of alibi is weak and
unconvincing. Appellant was positively identified as the one who hacked his wife to
death. Moreover, it was not physically impossible for him to be at the scene of the crime on
that fateful evening. The poblacion of Dipolog City is merely four kilometers from Barangay
Gulayon and this distance may be traversed within a few minutes by motorized vehicle.33
Be that as it may, we find that the trial court erred in appreciating the aggravating
circumstance of treachery. For treachery to be present, two conditions must concur: (a) the
employment of means of execution which would ensure the safety of the offender from
defensive and rataliatory acts of the victim, giving the victim no opportunity to defend himself;
and (b) the means, method and manner of execution were deliberately and consciously
adopted by the offender.34 It is true that appellant hacked his wife who was then unarmed and
had no opportunity to defend herself. However, the evidence does not show that appellant
deliberately and consciously employed this particular mode of attack to ensure the killing of
the victim. The unembroidered facts reveal that appellant hacked his wife in the midst of a
sudden, unscripted heated argument. This precludes the idea that appellant priorly planned to
kill his wife. Indeed, appellant was not carrying his bolo at that time. The bolo was hanging in
its usual place on one of the posts of the sari-sari store. 35 Treachery, to be appreciated, must
spark an attack that is deliberate, sudden and unexpected not where it is prefaced by an
unforeseen heated argument with the victim standing face to face with her assailant.36
The trial court also erred in disregarding the mitigating circumstance of voluntary
surrender. In answer to questions by the trial court, appellant declared:

Opulentisima called the police. Instead, he voluntarily placed himself at the disposal of the
police authorities.
In the absence of an aggravating circumstance 39 and the presence of a mitigating
circumstance the penalty imposable to appellant is reclusion perpetua. 40 Considering the death
of the victim, a civil indemnity of P50,000.00 must be awarded to her heirs.
In light of the above disquisitions, the Court need not resolve the alleged
unconstitutionality of R.A. No. 7659, as amended. Nonetheless, the Court expresses its
appreciation to the scholarly arguments of our amici curiae, Senator Arturo M. Tolentino and
Fr. Joaquin G. Bernas, S.J., on the constitutional aspects of R.A. No. 7659, as
amended. Death not being the lis mota of the instant case, the Court has to await for more
appropriate case to pass upon the constitutionality of R.A. No. 7659, as amended.
IN VIEW WHEREOF, the decision appealed from is affirmed with the modification that
the penalty of death imposed by the Regional Trial court of Dipolog City, Branch 10 on
accused-appellant Pedro Malabago y Villaespin in Criminal Case No. 6598 is reduced to
reclusion perpetua.
[G.R. No. 138471. October 10, 2002]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL PRUNA y RAMIREZ or
ERMAN PRUNA y RAMIREZ, accused-appellant.
DECISION

COURT: (to the witness)

xxx xxx

xxx

Q Do you have suspects as to the alleged killers of your wife?

A I have no suspect, your honor.
Q Because you denied killing your wife, you did not surrender to the police
authorities?
A I surrendered because I was accused of killing my wife.
Q Immediately after the incident?
A Yes, sir.
Q Was it placed in the police blotter that you surrendered?
A Yes, sir.
Q Will you give the name of the person or police officer to whom you
surrendered?

A rosebud that had been snuffed out of its fragrance long before it could even blossom
into a flower. Such is the case of Lizette Arabelle Gonzales (hereafter LIZETTE), who had
been defiled at a very tender age. She was at the time voiding her body waste at their
neighbors backyard, but that did not deter herein appellant from imposing his lechery on
her. Indeed, lust is no respecter of time and place.[1]
On 27 January 1995, an information[2] for rape was filed against accused-appellant
Manuel Pruna y Ramirez or Erman Pruna y Ramirez (hereafter PRUNA), the accusatory
portion of which reads:
That on or about January 3, 1995 at Sitio Tabing-ilog, Brgy. Panilao, Pilar, Bataan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused thru force and intimidation, did then
and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the
offended party, Lizette Arabelle Gonzales, a 3-year-old minor girl, against the will and consent of the
latter, to her damage and prejudice.
Upon motion of PRUNAs counsel, the Public Attorneys Office (PAO), the Information
was amended changing the name of the accused from Manuel Pruna y Ramirez to Erman
Pruna y Ramirez, which was the name reflected in his birth certificate. [3] However, when he
testified in court, he stated that his name was Manuel Pruna; and in the minutes of the court
proceedings, he signed the name Manuel Pruna.

A I forgot the name, your honor.

Q Are you telling the truth?
A Yes, sir.
xxx xxx

DAVIDE, JR., C.J.:

x x x.37

Appellant testified that he voluntarily surrendered to the police when they fetched him at
Dodong Opulentisimas house. The prosecution did not dispute appellants claim of voluntarily
surrender. Guillerma herself testified that without any resistance, appellant went with the police
when they fetched him at Dodongs house.38 Indeed, appellant did not escape after Dodong

On 27 November 1995, upon the Motion to Put the Accused Under Psychiatric or Mental
Examination[4] filed by PRUNAs counsel on the ground that he could not secure from PRUNA
a coherent answer to even simple questions, the trial court ordered that the accused be
brought to the National Mental Hospital in Mandaluyong City for psychiatric or mental
examination.[5] Accordingly, the trial was suspended, and PRUNA was sent to the National
Center for Mental Health (NCMH), Mandaluyong City.

On 28 June 1996, the trial court received a telegram [6] from the NCMH stating that
PRUNA was in fair condition. The NCMH later submitted to the trial court a report[7] on the
psychiatric evaluation of PRUNA with a recommendation to put him back to jail for the
resumption of court proceedings. The report also stated that PRUNA narrated that while he
and his friends were under the bridge sniffing rugby and drinking alcohol, they saw a 3-yearold girl defecating in the river bank; that they called her; and, upon the order of his friends he
placed her on his lap and attempted to caress her sensitive parts. Said report was not,
however, offered in evidence by the prosecution or the defense.
The prosecution presented five witnesses, whose testimonies can be summed up as
follows:
Jacqueline Gonzales, the mother of LIZETTE, testified that on 3 January 1995, at 9:30 a.m., she was
fetching water from the artesian well located ten meters away from her house, while LIZETTE was
defecating at the back of the house of their neighbor Gloria Tolentino. Jacqueline then carried her pail
of water and went back to her house. Since LIZETTE was not home yet, Jacqueline headed toward the
place where the former was moving her bowel. She looked for LIZETTE but did not find her. It was
when Jacqueline was already returning to her house that she saw LIZETTE from behind -- red-faced,
crying, and appeared to be very frightened. When asked where she came from, LIZETTE answered that
she was brought by a certain Boy to the grassy area at the back of Glorias house where she was
sexually molested (or kinantot in the Tagalog dialect). LIZETTE then pulled her mother and led her
to the house of PRUNA, which was about eight meters away from their house. PRUNA, the only one
known in their community as Boy, was not there. Jacqueline forthwith requested her mother-in-law to
report the matter to the police, while Jacqueline and LIZETTE went to the Bataan Provincial Hospital. [8]
Jacqueline further declared that at the time of the alleged rape, LIZETTE was 3 years
old, but at the time Jacqueline testified on 17 October 1995, LIZETTE was 4 years
old. LIZETTEs last birthday was on 19 April 1995.[9]
LIZETTE testified that she knew PRUNA whom he called Boy. She pointed to him
inside the courtroom. According to her, PRUNA laid her down in a grassy area and inserted
his penis into her vagina. When the presiding judge asked her whether she knew that it is a
sin to tell a lie, she answered in the affirmative.[10]
Dr. Emelita Quiroz, an obstetrician and gynecologist at the Bataan Provincial Hospital,
testified that on 3 January 1995, she conducted a complete physical examination on LIZETTE
and took wet smear specimen from her vaginal wall through scraping. The specimen was sent
to the laboratory for analysis by a medical technologist. Further, she requested a urinalysis for
LIZETTE.[11] The Medico-Legal Report[12] prepared by Dr. Quiroz reveals the following findings:
Essentially normal PE-Findings
Infantile areola & nipples
Flat breasts (-) hematoma
(-) pubic hair
Labia minora and majora well coaptated
Hymenal ring intact (+) hyperemia (-) laceration
(Vaginal Opening)

LABORATORY RESULT:
WET SMEAR:

KOH - Negative for T-Vaginalis

NSS- Negative for fungi

SPERM ANALYSIS

-POSITIVE for sperm cells

Gram staining-few, epithelial cells seen, no other microorganism

URINALYSIS:

RBC-3-7-/hpf epithelial cells few.

WBC-0-2
Although not stated in the Medico-Legal Report of Dr. Quiroz, the urinalysis
report[13] includes a positive finding for sperm cells. Dr. Quiroz explained that the presence of
sperm cells in the vaginal canal signified that sexual intercourse and ejaculation had occurred
on the person of the patient. There was no laceration; but there was hyperemia, which means
reddening of the tissue around the vaginal opening. Among the causes of hyperemia is the
insertion of a hard object like penis and finger.[14]
Teresita Magtagnob, the medical technologist who conducted the laboratory
examinations and prepared the corresponding reports,[15] testified that sperm cells were found
in the wet smear specimen and urine taken from LIZETTE.[16]
SPO2 Romeo D. Bunsoy, a member of the Philippine National Police assigned at the
Pilar Municipal Station, testified that on 3 January 1995 the parent of the minor rape victim
filed a complaint against PRUNA. He referred the matter to the desk officer to have it
blottered. Upon his advise, the minor was brought to the hospital for examination. When they
returned from the hospital, he took their statements. Later, he conducted an ocular inspection
and investigation at the alleged place of the incident and caused the place to be
photographed, which showed that the grasses were flattened. He inquired from the people in
the neighborhood, and one of them answered that he saw the minor being brought by PRUNA
to the place where the minor was found. When PRUNA was brought to their station by
four barangay tanods of Panilao, Pilar, Bataan, SPO2 Bunsoy tried to converse with him, but
the former did not give any reply.[17]
On the part of the defense, Carlito Bondoc and PRUNA took the witness stand.
Carlito testified that on 3 January 1995, he fetched water at the public artesian well
together with Jacqueline. After having drawn water from the well, Jacqueline called her
daughter, who was then defecating on the road near the river; and they both went home. After
a while, the parents of LIZETTE shouted that their daughter was raped, and then they
proceeded to the house of PRUNA and accused him of having raped the child. Carlito
asserted that PRUNA could not have raped LIZETTE because he (PRUNA) was in his house
from the time that LIZETTE was moving her bowel up to the time that her mother went to the
house of PRUNA. Carlito knew that PRUNA was at home because the former was also in the
latters house to have coffee. Carlito and the Sulit family thereafter brought PRUNA to the
barangay hall. Since the barangay captain was not around, they brought PRUNA to the
municipal building to prove that he was innocent.[18]
PRUNA denied having raped LIZETTE. He claimed that in the morning of 3 January
1995, he was in his house preparing coffee for Carlito. After Carlito left, several men arrived
and boxed him for reasons not known to him. Carlito and the latters friend then brought him

to the barangay hall. There, LIZETTEs father boxed him. He was thereafter brought to the
Pilar Municipal Jail. There, the mother of the child threw at him the lid cover of a kettle. He
was also asked by the police to take off his clothes and lie flat; then he was
mauled. Thereafter, he was told to put his feet between the grills, and he was made to
masturbate. Worse, his testes were burned with cigarette butts. Every night, he was asked to
kneel on a chair and was hit with a 2x 2 piece of wood.[19]
After trial, PRUNA was convicted by the trial court of the crime of rape in its qualified
form and sentenced to suffer the supreme penalty of death and to indemnify the victim in the
sum of P50,000, plus costs.[20] Hence, this automatic review.
In his Appellants Brief,[21] PRUNA attributed to the trial court the following errors:
I
IN RELYING ON THE TESTIMONY OF JACQUELINE S. GONZALES, THE MOTHER OF THE
CHILD, THAT THE LATTER WAS THREE (3) YEARS OLD WHEN THE ALLEGED RAPE
OCCURRED WHEN THE BEST EVIDENCE THEREFOR IS THE BIRTH CERTIFICATE OF THE
CHILD.
II
IN RELYING ON THE HEARSAY TESTIMONY OF JACQUELINE S. GONZALES AS TO THE
ALLEGED RAPE OF HER CHILD.

We shall resolve these issues in seriatim.

I. LIZETTEs Competency and Credibility as a Witness

Appellant disputes the competency of LIZETTE to testify by reason of her tender

age. When LIZETTE was called to testify, his counsel interposed a vigorous objection to the
admission of her testimony because of her tender age. The trial court noted the objection and
allowed her to testify; thus:
DIRECT EXAMINATION BY
PROS. LUMABAS:
Do you know Manuel Pruna?
A

Yes, sir.

How do you call Manuel Pruna?

Boy, sir.

Where is he?

There, sir. (Witness pointing to a person wearing blue T-shirt, who when
asked, gave his name as Manuel Pruna)

III
IN ADMITTING AND RELYING ON THE TESTIMONY OF COMPLAINANT[ ] CHILD WHO
WAS ONLY THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED EVEN AS
SHE WAS ONLY FIVE (5)YEARS OLD WHEN SHE TESTIFIED.
IV
IN CONVICTING THE ACCUSED ON DUBIOUS EVIDENCE.
The Office of the Solicitor General (hereafter OSG) seeks the affirmation of the trial
courts decision with the modification that an additional award of P50,000 as moral damages
be granted in favor of the offended party.
As culled from the arguments of the parties, the issues to be resolved in this case are as
follows:
(1)

Whether LIZETTE was a competent and credible witness considering

that she was allegedly only 3 years old when the alleged rape occurred and 5
years old when she testified;

(2)

Whether Jacquelines testimony as to the declarations of LIZETTE is

hearsay;

(3)

Whether the failure of the prosecution to present Gloria Tolentino as a

witness is fatal;

(4)
(5)

Whether appellants guilt has been proved beyond reasonable doubt;

Whether the qualifying circumstance of minority has been duly proved
as to justify the imposition of the death penalty.

PROS. LUMABAS:
What did Manuel Pruna or Boy do to you?
A

Inihiga niya ako and inserted his penis to my vagina, sir.

And in what place did he do this to you?

In the grassy area, sir.

After he inserted his penis to your vagina, what happened next?

ATTY. BALUYOT:
The witness for quite sometime could not answer the question.
PROS. LUMABAS:
I think that will be all for the witness.[22]
After which, the defense counsel manifested that he would not cross-examine her and
that he intended to file a motion for her disqualification as a witness. [23] The court then
proceeded to ask her a few questions, thus:
COURT :
Do you know what will happen to a child if she is not telling the truth?
A

Sa lupa.

Do you know that it is a sin to tell a lie?

Yes, sir.

Yes, sir.

The witness is excused considering the manifestation of Atty. Baluyot that he

will be filing a written motion for the striking out of the testimony of the
witness considering her tender age.[24]

Could you tell the Honorable Court how long did it take you to discharge your
bowel?

No such motion is extant on the records. At the next hearing, the defense counsel
cross-examined LIZETTE, as follows:
ATTY. BALUYOT:
On January 3, 1995, in the morning where were you?
A

I was in the grassy area, sir.

In that grassy area there were other children with you playing?

None, sir.

You were then removing[sic] your bowel, is it not?

Yes, sir.

Then while removing your bowel you saw your mother pass[ ] by, is it not?

Yes, sir.

She was then carrying a pail to fetch some water, is it not?

Yes, sir.

The water from where she will fetch is [sic] a few meter[s] away from you, is
it not?

Near, sir.

ATTY. BALUYOT:
Considering that the grassy place where you were then discharging your bowel is
beside a street?
A

Yes, sir.

And you saw your mother bringing a pail of water towards your house after
her pumping from the well, is it not?

Yes, sir.

When she passed by she likewise saw you, is it not?

Yes, sir.

Then how far were you from your house when you were discharging your
bowel? Please demonstrate the distance?

Up to that door, sir.

From that position you were at the grass you could see your house, is it not?

For a short period of time, sir.

(Sandali lang po.)[25]

As a general rule, when a witness takes the witness stand, the law, on ground of public
policy, presumes that he is competent. The court cannot reject the witness in the absence of
proof of his incompetency. The burden is, therefore, upon the party objecting to the
competency of a witness to establish the ground of incompetency.[26]
Section 21 of Rule 130 of the Rules on Evidence enumerates the persons who are
disqualified to be witnesses. Among those disqualified are [c]hildren whose mental maturity
is such as to render them incapable of perceiving the facts respecting which they are
examined and relating them truthfully.
No precise minimum age can be fixed at which children shall be excluded from
testifying. The intelligence, not the age, of a young child is the test of the competency as a
witness.[27] It is settled that a child, regardless of age, can be a competent witness if he can
perceive and, in perceiving, can make known his perception to others and that he is capable of
relating truthfully the facts for which he is examined.[28]
In determining the competency of a child witness, the court must consider his capacity
(a) at the time the fact to be testified to occurred such that he could receive correct
impressions thereof; (b) to comprehend the obligation of an oath; and (c) to relate those facts
truly to the court at the time he is offered as a witness. [29] The examination should show that
the child has some understanding of the punishment which may result from false
swearing. The requisite appreciation of consequences is disclosed where the child states that
he knows that it is wrong to tell a lie, and that he would be punished if he does so, or that he
uses language which is equivalent to saying that he would be sent to hell for false swearing.
[30]
A child can be disqualified only if it can be shown that his mental maturity renders him
incapable of perceiving facts respecting which he is being examined and of relating them
truthfully.[31]
The question of competency of a child-witness rests primarily in the sound discretion of
the trial court. This is so because the trial judge sees the proposed witness and observes his
manner of testifying, his apparent possession or lack of intelligence, as well as his
understanding of the obligation of an oath. [32] Since many of the witness manners cannot be
photographed into the record, the finding of the trial judge will not be disturbed or reversed
unless from what is preserved it is clear that such finding was erroneous.[33]
In this case, appellant questions the competency of LIZETTE as a witness solely on the
ground of her age. He failed to discharge the burden of showing her mental immaturity. From
the above-quoted testimony, it can be gleaned that LIZETTE had the capacity of observation,
recollection, and communication [34] and that she could discern the consequence of telling a
lie. We, therefore, sustain the trial court in admitting her testimony and according it great
weight.
We are not persuaded by appellants assertion that LIZETTE should not be allowed to
testify two years after the alleged rape when the interplay of frail memory combines with the
imagination of earlier years. It must be noted that it is a most natural reaction for victims of
criminal violence to have a lasting impression of the manner in which the crime was committed
and the identity of the person responsible therefor.[35]

In a string of cases, we have said that the testimony of a rape victim who is of young or
tender age is credible and deserves full credit, [36] especially where no motive is attributed to
the victim that would make her testify falsely against the accused. [37] Indeed, a girl of such age
as LIZETTE would not concoct a story of defloration; allow the examination of her private
parts; and undergo the expense, trouble, inconvenience, and the trauma of a public trial
unless she was in fact raped.[38]

Appellant harps on the prosecutions failure to put on the witness stand Gloria Tolentino,
who was listed as a witness and executed an affidavit on 4 January 1995 that she saw the
appellant carrying and bringing LIZETTE to a grassy area at the back of her house.
It is undisputed that at the time the case was called for trial, Gloria had already moved
out of her residence in Panilao, Pilar, Bataan, and could not be found anymore. In any event,
as opined by the OSG, her intended testimony could be dispensed with, as it would only be
corroborative of LIZETTEs testimony that Pruna brought her to a grassy area.

II. The Alleged Hearsay Testimony of Jacqueline Gonzales

IV. Sufficiency of the Prosecutions Evidence Against Appellant
Contrary to appellants contention, Jacquelines testimony that LIZETTE told her that
appellant laid her in the grassy area and inserted his penis into her vagina is not covered by
the hearsay evidence rule, which finds application when the declarant does not testify. This
rule, as enunciated under Section 36, Rule 130 of the Rules on Evidence, provides that a
witness can testify only to those facts which he knows of his personal knowledge except as
otherwise provided in the Rules of Court.

When LIZETTE was put in the witness stand, she unhesitatingly identified PRUNA, their
neighbor, as the one who defiled her. A rape victim can easily identify her assailant especially
if he is known to her because during the rape, she is physically close to her assailant that
enables her to have a good look at the latters physical features.[43]

The term hearsay as used in the law on evidence, signifies evidence which is not
founded upon the personal knowledge of the witness from whom it is elicited and which
consequently does not depend wholly for its credibility and weight upon the confidence which
the court may have in him; its value, if any, is measured by the credit to be given to some third
person not sworn as a witness to that fact, and consequently not subject to cross-examination.
[39]
If one therefore testifies to facts which he learned from a third person not sworn as a
witness to those facts, his testimony is inadmissible as hearsay evidence.[40]

LIZETTE testified that on 3 January 1995 PRUNA, whom she called Boy, laid her in a
grassy area and inserted his penis into her genitalia. When a girl or a woman says that she
has been raped she says in effect all that is necessary to show that rape was truly committed.
[44]
She is not expected to remember all the ugly details of the outrage committed against her.
[45]
And when her testimony passes the test of credibility, the accused can be convicted on the
basis thereof, for in most cases it is the only evidence that can be offered to establish his guilt.

The reason for the exclusion of hearsay evidence is that the party against whom the
hearsay testimony is presented is deprived of the right or opportunity to cross-examine the
person to whom the statements are attributed. [41] Moreover, the court is without opportunity to
test the credibility of hearsay statements by observing the demeanor of the person who made
them.[42]

Likewise, LIZETTEs mother testified that right after the incident LIZETTE disclosed
what happened to her and readily identified PRUNA as the culprit. She even led her mother to
the house of PRUNA.[47] Thereafter, the two went to the police authorities to report the incident,
and then to the hospital for LIZETTEs medical examination.

In the instant case, the declarant (LIZETTE) herself was sworn as a witness to the fact
testified to by Jacqueline. The appellant even cross-examined her (LIZETTE). Moreover, the
trial court had the opportunity to observe her manner of testifying. Hence, Jacquelines
testimony on the incident related to her by her daughter cannot be disregarded as hearsay
evidence.
Even assuming that the aforementioned testimony of Jacqueline is hearsay, its nonadmission would not save the day for the appellant. Such testimony is not indispensable, as
it merely serves to corroborate LIZETTEs testimony that PRUNA laid her down in the grass
and inserted his private organ into hers. As discussed earlier, LIZETTEs testimony, which
was found to be credible by the trial court, is sufficient basis for conviction.
At any rate, Jacquelines testimony is proof of the victims conduct immediately after the
rape. It shows that LIZETTE immediately revealed to her mother the rape incident and the
identity of her defiler. As will be discussed later, such conduct is one of the earmarks of the
truth of the charge of rape.

III Non-Presentation of Gloria Tolentino as a Witness

[46]

By and large, the medical evidence lends credence to LIZETTEs testimony that PRUNA
inserted his penis into her vagina. The Medico-Legal Report shows that there was hyperemia
or reddening of the vaginal opening of LIZETTE. As opined by Dr. Quiroz, who was presented
as an expert witness, hyperemia can be caused by the insertion of a hard object
like penis and finger.[48] The presence of sperm cells in the vaginal canal and urine of
LIZETTE is also a mute testimony of the sexual contact that further strengthens LIZETTEs
claim of rape.
This Court is not oblivious of the finding that no laceration was found in LIZETTEs organ
despite the fact that she was examined immediately after she was raped. We have already
ruled, however, that the absence of fresh lacerations does not preclude the finding of rape,
[49]
especially when the victim is of tender age. [50] Well- settled is the rule that rape is
consummated by the slightest penile penetration of the labia or pudendum of the female.
[51]
The presence of hyperemia in LIZETTEs vaginal opening and the existence of sperm cells
in her vaginal canal and urine are clear indications that PRUNAs organ indeed touched the
labia or pudendum of LIZETTE.
In a nutshell, the following overwhelmingly establish the truth of the charge of rape: (a)
the spontaneity of the identification by LIZETTE of PRUNA as the rapist; (b) her immediate
revelation to her mother of the dastard act committed against her; (c) her act of leading her
mother to appellants house right after the incident; (d) the prompt filing of the complaint before
the authorities; (e) LIZETTEs submission to medical examination; (f) the hyperemia in her
private part; and (g) the presence of sperm cells in her vaginal canal and urine.
The trial court correctly disregarded the defense of alibi raised by the accused. We have
consistently held that for alibi to prosper, it must be proved that during the commission of the

crime, the accused was in another place and that it was physically impossible for him to be at
the crime scene. Just like denial, alibi is an inherently weak defense; and unless supported by
clear and convincing evidence, the same cannot prevail over the positive declaration of the
victim.[52] We have also held that when alibi is established only by the accused, his relatives, or
close friends, the same should be treated with strictest scrutiny.[53]
Carlito, who was admittedly a close friend of appellants parents, corroborated PRUNAs
testimony that he (PRUNA) was in his house during the time that LIZETTE was raped. It is,
however, an established fact that the place where the rape occurred was just a few meters
away from the house of PRUNA. Thus, there was no physical impossibility for PRUNA to be in
the grassy area to consummate the crime of rape.

of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances
enumerated in R.A. No. 7659.
3.
In People v. Brigildo,[59] aside from the failure of the prosecution to present the offended partys
birth certificate or other equally acceptable official document concerning her age, the testimonies on
record were not clear as to her exact age. The victim declared that she was 11 years old when she
testified in court a year after the incident, while her mother claimed that she was around 15 years old at
the time of the commission of the crime. The informations even alleged a different age. Hence, this
Court refused to appreciate the qualifying circumstance of minority because of the uncertainty regarding
her age.

The defense, through Carlito, attempted to impute motive to Jacqueline in filing against
PRUNA the charge of rape. According to him, LIZETTEs grandparents, the Sulits, wanted to
buy the place of the PRUNA family, but the latter refused. [54] Aside from the fact that such
testimony was not corroborated, said motive, if at all, is too flimsy to be even considered. No
mother in her right mind would use her offspring as an engine of malice. She would not subject
her child to the humiliation, disgrace, and even the stigma attendant to a prosecution for rape
unless she is motivated by the desire to bring to justice the person responsible for her childs
defilement.[55]

4.
In People v. Tipay,[60] the offended party was alleged in the information to be under 16 years of
age. No independent evidence was presented to prove it. This Court recognized that the minority of a
victim who may be below the age of 10 is quite manifest and may be taken judicial notice of by the
court. But when the victim is between the crucial years of 15 and 17 where minority may seem to be
dubitable due to one's physical appearance, the prosecution should prove the fact of minority with
certainty. The lack of objection on the part of the accused concerning the victims age does not excuse
the prosecution from discharging its burden.

V. Sufficiency of Evidence of LIZETTEs Minority and Propriety of the Imposition of the

Death Penalty

5.
In People v. Cula,[61] the victim was alleged in the complaint to be 16 years old when the rape was
committed, but no evidence at all was presented to prove her age. We held that the failure of the accused
to deny such allegation cannot make up for the failure of the prosecution to prove with certainty the
victims minority. Because of the lacuna in the prosecutions evidence, coupled with the trial courts
failure to make a categorical finding of minority of the victim, we declined to consider the qualifying
circumstance of minority.

The commission of the crime of rape by PRUNA having been duly established by the
prosecution, we now come to the question of the penalty to be meted upon him.
Article 335, seventh paragraph, no. 4, of the Revised Penal Code, as amended by
Republic Act No. 7659, provides that the death penalty shall be imposed if the crime of rape is
committed against a child below seven (7) years old. We have held that in such a case the
minority of the victim must be proved with equal certainty and clearness as the crime itself.
The failure to sufficiently establish the victims age is fatal and consequently bars conviction for
rape in its qualified form.[56]
A persons age is best proved by the birth certificate. But is the presentation of the
victims birth certificate a sine qua non requirement to prove her age for the appreciation of
minority either as an element of the crime or as a qualifying circumstance? Recent
jurisprudence has conflicting pronouncements.
In the following cases, no birth certificate was presented and this Court ruled that the
age of the victim was not duly proved by the prosecution:
1.
In People v. Vargas,[57] the testimonies of the victim and her aunt that the former was 10 years old
at the time of the rape were not considered proof of her age for being hearsay. This Court also observed
that the victim could easily be mistaken for a child below 12 years of age, and hence it was not correct
to judge the victims age by her appearance. We held: The difference of two or three years in age may
not always be readily apparent by mere physical manifestations or appearance.
2.
In People v. Javier,[58] the victim was alleged to be 16 years old, and the accused did not contest
her age. Ratiocinating that in this age of modernism, there is hardly any difference between a 16-yearold girl and an 18-year-old one insofar as physical features and attributes are concerned, this Court held
that an independent proof of the actual age of a rape victim is vital and essential so as to remove an iota

6.
In People v. Veloso,[62] the victim was alleged to be 9 years of age when she was
raped. Citing People v. Vargas,[63] this Court refused to consider the testimonies of the victim and her
father as sufficient proof of her age.
7.
In People v. Pecayo,[64] the victim simply stated during the beginning of her direct examination
that she was 14 years old and that she was born on 13 January 1983. We held that the victims casual
testimony as to her age is not enough, and that the lack of denial on the part of the accused does not
excuse the prosecution from proving her age through competent evidence such as a duly certified
certificate of live birth, baptismal certificate, or some other authentic document showing her age.
8.
In People v. Tundag,[65] the victim testified that she was 13 years of age when she was raped, but
she did not know exactly when she was born. Unable to secure a copy of her birth certificate, the
prosecution moved that judicial notice be taken of the fact that she was below 18 years old at the time of
the rape. Despite the admission by the defense of such fact, this Court held that the age of the victim is
not a matter of judicial notice, whether mandatory or discretionary. Under Section 3, Rule 129 of the
Rules on Evidence, a hearing is required before such fact can be taken judicial notice of by courts.
9.
In People v. Geraban,[66] the victims testimony was categorical in declaring that she was 15, but
her mothers testimony regarding her age was not clear. We thus declared that the prosecution failed to
discharge the burden of proving minority.
10. In People v. Liban[67] and People v. Llandelar,[68] the only evidence adduced to prove the minority
of the victims was the victims bare testimony that they were 10 and 16 years old, respectively. This
Court held that while the declaration of a victim as to her age, being an exception to the hearsay
proscription, would be admissible under the rule on pedigree, the question on the relative weight that
may be accorded to it is another matter. The prosecution should present the victims birth certificate or,

in lieu thereof, any other documentary evidence, like a baptismal certificate, school records, and
documents of similar nature, or credible testimonial evidence that can help establish the age of the
victim. Neither the obvious minority of the victim nor the absence any contrary assertion from the
defense can exonerate the prosecution from its burden. Judicial notice of the issue of age without the
requisite hearing under Section 3 of Rule 129 of the Rules on Evidence would not be sufficient
compliance with the law.
11. In People v. Alvarado,[69] the victim testified that she was 14 years old at the time of the rape, and
this was confirmed by the accused, who was victims father. The victims mother, however, testified as
to her date of birth which showed that she was 13 years of age at the time of the commission of the
crime. For this doubt as to the victims age, the accused was held guilty of simple rape only and meted
the penalty of reclusion perpetua, and not death penalty.
On the other hand, in the following cases, we ruled that the age of the rape victim was
sufficiently established despite the failure of the prosecution to present the birth certificate of
the offended party to prove her age:
[70]

1.
In People v. Rafales, the testimony of the victim and her mother that the former was only 10
years old when she was raped, which was not denied by the accused, was deemed sufficient to prove her
age for the purpose of determining whether the accused could be held guilty of statutory rape, which is
carnal knowledge of a woman below 12 years of age.
2.
In People v. De la Cruz,[71] the testimony of the mother alone that her two daughters were both 14
years old at the time of the rape incidents was deemed sufficient because there was no reason to doubt
the testimony of the mother, who had personal knowledge of the ages of her children. Moreover, said
testimony was never challenged by the accused and stood unrebutted by any other evidence.
[72]

3.
In People v. Bali-balita, the victims testimony as to her age, which was corroborated by her
half-sister, was deemed sufficient. We noted that the victim testified in court four months after the rape,
and hence it was not difficult for the trial court to take judicial notice that she was under 18 years of age.
4.
In People v. Velasco,[73] the minority of the victim was deemed established by (a) the complainant
herself, who was held to be competent to testify on her age, as it constituted family tradition; (b) the
open admission of the accused that the victim was a 12-year-old minor; and (c) the categorical finding
of the trial court that she was a minor of a little over twelve years.
5.
In People v. Remudo,[74] the trial court appreciated the qualifying circumstance of minority on the
strength of (a) the offended partys testimony as to the date of her birth, which showed that she was 13
years old at the time of the rape, and (b) the admission of said date of birth by the accused who was the
victims brother.
6.
In People v. LLanita[75] the only evidence presented by the prosecution to establish that the victim
was below 7 years old at the time of the alleged rape was the victims own testimony. Although hearsay
because she could not have personal knowledge of the date of her birth but could only acquire
knowledge thereof from her parents or relatives, said testimony was held admissible for being an
assertion of family tradition regarding pedigree. Her testimony and the accuseds admission that she
was 5 years old during the commission of the crime were held sufficient to establish her age.
7.
In People v. Agustin,[76] the victims testimony that she was 14 years old at the time of the rape
incidents, coupled with the express admission of her age by the accused who was her father, sufficiently
proved her minority.

8.
In People v. Esuela,[77] the testimony of the victims mother that the victim was 13 years of age at
the time of the rape was held sufficient to establish minority for the reason that as a mother she was in
the best position to know when she delivered her child. Also considered were the victims own
testimony regarding her age, as well as the observation of the trial court that she could not have been
more than 18 years old when she testified.
In order to remove any confusion that may be engendered by the foregoing cases, we
hereby set the following guidelines in appreciating age, either as an element of the crime or as
a qualifying circumstance.
1. The best evidence to prove the age of the offended party is an original or certified
true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date of birth of the victim would
suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother
or a member of the family either by affinity or consanguinity who is qualified to testify on
matters respecting pedigree such as the exact age or date of birth of the offended party
pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the
following circumstances:
a.
If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is
less than 7 years old;
b.
If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is
less than 12 years old;
c.
If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is
less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of
the victims mother or relatives concerning the victims age, the complainants testimony will
suffice provided that it is expressly and clearly admitted by the accused.[78]
5. It is the prosecution that has the burden of proving the age of the offended
party. The failure of the accused to object to the testimonial evidence regarding age shall not
be taken against him.
The trial court should always make a categorical finding as to the age of the victim.
In the present case, no birth certificate or any similar authentic document, such as a
baptismal certificate of LIZETTE, was presented to prove her age. In imposing the death
penalty, the trial court ratiocinated in this wise:
In the instant case, the victim, Lizette Arabelle Gonzales, was a 3-year-old minor girl as alleged in the
information and the defense did not contest her age and as a matter of fact was questioning her
qualification to testify because of her tender age when she testified two (2) years later in Court. The
victims Medico-Legal Certificate date[d] January 3, 1995 established the fact that at the time of the
commission of the rape on January 3, 1995, the child was only 3 years old. [79]

It thus appears that the trial courts finding that LIZETTE was 3 years old when she was
raped was based on the Medico-Legal Report prepared by Dr. Quiroz, as well as on the fact
that the defense did not contest her age and even questioned her qualification to testify
because of her tender age.
However, the Medico-Legal Report relied upon by the trial court does not in any way
prove the age of LIZETTE, for there is nothing therein which even mentions her age. Only
testimonial evidence was presented to establish LIZETTEs age. Her mother, Jacqueline,
testified on 17 October 1995 as follows:
Q. Now, on January 3, 1995 at about 9:30 in the morning, do you still recall
where you were?
A.

Yes, sir.

Q. Where were you at that particular date and time?

A.

I was fetching water from an artesian well beside the house of my neighbor,
sir.

Q. Where was this daughter of yours then when you were fetching water?
A.

My daughter was discharging her bowel who was then at the back of the
house of our neighbor, sir.

How old is your daughter Lizette Arabelle Gonzales?

A.

Three years old, sir.

Q. At the time that she was discharging her bowel, how old [was] she?
A.

Three years old, sir. She is four years old now.

Q. When was her last birthday?

A.

April 19, 1995, sir.[80]

Likewise, LIZETTE testified on 20 November 1996, or almost two years after the
incident, that she was 5 years old.[81] However, when the defense counsel asked her how old
she was on 3 January 1995, or at the time of the rape, she replied that she was 5 years
old. Upon further question as to the date she was born, she could not answer.[82]

For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty
of death, it must be established with certainty that LIZETTE was below 7 years old at the time
of the commission of the crime. It must be stressed that the severity of the death penalty,
especially its irreversible and final nature once carried out, makes the decision-making
process in capital offenses aptly subject to the most exacting rules of procedure and evidence.
[83]

In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her
birth certificate, baptismal certificate or any other authentic document should be introduced in
evidence[84] in order that the qualifying circumstance of below seven (7) years old is
appreciated against the appellant. The lack of objection on the part of the defense as to her
age did not excuse the prosecution from discharging its burden. That the defense invoked
LIZETTEs tender age for purposes of questioning her competency to testify is not necessarily
an admission that she was below 7 years of age when PRUNA raped her on 3 January
1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the
death penalty cannot be imposed on him.
However, conformably with no. 3(b) of the foregoing guidelines, the testimony of
LIZETTEs mother that she was 3 years old at the time of the commission of the crime is
sufficient for purposes of holding PRUNA liable for statutory rape, or rape of a girl below 12
years of age. Under the second paragraph of Article 335, as amended by R.A. No. 7659, in
relation to no. 3 of the first paragraph thereof, having carnal knowledge of a woman under 12
years of age is punishable by reclusion perpetua. Thus, the penalty to be imposed on PRUNA
should be reclusion perpetua, and not death penalty.
As regards the civil liability of PRUNA, the indemnity in the amount of P50,000 awarded
by the trial court is not sufficient. In accordance with recent jurisprudence, LIZETTE should
also be awarded moral damages in the amount of P50,000 without need of pleading or proof
because the mental, physical and psychological trauma suffered by her is too obvious.[85]
WHEREFORE, the decision of the Regional Trial Court, Branch 1, Balanga, Bataan, in
Criminal Case No. 6044 is hereby AFFIRMED with the modification that accused Manuel
Pruna y Ramirez or Erman Pruna y Ramirez is held guilty beyond reasonable doubt of
statutory rape, and not qualified rape, and is sentenced to suffer reclusion perpetua and to pay
the victim Lizette Arabelle Gonzales the sum of P50,000 as moral damages in addition to the
indemnity of P50,000.