Evidence Cases For Rules 129 and 130, Philippines

THIRD DIVISION
[G.R. No. 90342. May 27, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. HILARIO MACASLING, JR. y
COLOCADO, Accused-Appellant.
The Solicitor General for plaintiff appellee.
Public Attorneys Office for Accused-Appellant.
SYLLABUS
1. CRIMINAL LAW; R.A. No. 6425 (THE DANGEROUS DRUGS ACT) AS AMENDED BY BATAS PAMBANSA
BLG. 179; "SHABU" (A "STREET NAME" FOR METAMPHETAMINE HYDROCHLORIDE; "SHABU" IS A
DERIVATIVE OF A REGULATED DRUG, THE POSSESSION, SALE, TRANSPORTATION, ADMINISTRATION,
DISPENSATION, DELIVERY AND DISTRIBUTION OF WHICH IS SUBJECT TO R.A. NO. 6425, AS
AMENDED; THE USE OF CRIMINAL INFORMATION OF THE CASUAL TERM "SHABU" INSTEAD OF ITS
SCIENTIFIC NAME DOES NOT AFFECT THE LEGAL RESPONSIBILITY OF THE ACCUSED. This Court
has in fact taken judicial notice that shabu is a "street name" for metamphetamine hydrochloride (or
"methyl amphetamine hydrochloride"). Considering the chemical composition of shabu, the Court has
declared that shabu is a derivative of a regulated drug, 8 the possession, sale, transportation, etc. of
which is subject to the provisions of R.A. No. 6425 as amended. It remains only to point out that, in
the case at bar, the laboratory examination conducted on the crystalline granules recovered from
appellant in fact yielded the compound metamphetamine hydrochloride. The use in the criminal
information of the casual or vulgar term shabu rather than the scientific term metamphetamine
hydrochloride, does not affect the legal responsibility of appellant under the relevant provisions of R.A.
No. 6425 as amended.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; INFORMATION; IT IS THE CHARACTER OF THE ACTS
CHARGED IN THE CRIMINAL INFORMATION AND PROVEN AT THE TRIAL THAT IS IMPORTANT, RATHER
THAN THE CORRECTNESS OF THE DESIGNATION OF THE SECTION AND ARTICLE OF THE STATUTE
VIOLATED. It is true, as pointed out by the trial court, that the preambular portion of the criminal
information in this case referred to violation of "Section 21 (b) in relation to Section 4, Article II of
R.A. No. 6425 as amended by Batas Pambansa Blg. 179." Section 21 (b) of the statute reads as
follows: "Sec. 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the
commission of the offense shall be imposed in case of any attempt or conspiracy to commit the same
in the following cases: . . . .(b) Sale, administration, delivery, distribution and transportation of
dangerous drugs; . . . Section 4, Article II of the statute deals with "sale, administration, distribution
and transportation of prohibited drugs." Upon the other hand, Section 15 of the statute is concerned
with the "sale, administration, dispensation, delivery, transportation and distribution of regulated
drugs." It will be recalled that the term "dangerous drugs" as used in the statute covers both
"prohibited drugs" and "regulated drugs." Thus, again as pointed out by the trial court, the opening
clause of the criminal information should, more precisely, have referred to Section 15 which deals with
"regulated drugs" rather than to Section 4 which refers to "prohibited drugs." This imprecision in the
specification of the appropriate section of R.A. No. 6425 as amended has, however, no consequences
in the case at bar. For it is the character of the acts charged in the criminal information and proven at
the trial that is important, rather than the correctness of the designation of the section and article of
the statute violated. It should also not escape notice that the penalty provided in Section 4: "life
imprisonment to death and a fine ranging from P20,000.00 to P30,000.00," is exactly the same
penalty imposed in Section 15 of the statute.
3. ID.; ARREST WITHOUT WARRANT; ENTRAPMENT; THE WARRANTLESS ARREST OF APPELLANT WAS
MERELY THE CULMINATION OF AN ENTRAPMENT OPERATION. Appellants next contention is that
because he was no lawfully arrested, the package with a "Happy Days" wrapper containing 50 grams
of shabu, taken from him was inadmissible in evidence. Appellants claim that he was unlawfully
arrested is anchored on the fact that the arresting officers had neither warrant of arrest nor a search
warrant. The basic difficulty with appellants contention is that it totally disregards the antecedents of
the arrest of appellant inside Room No. 77 of the Hyatt Terraces Hotel. It will be recalled that the
arresting officers had been informed by the Chief of the Narcom Regional Office that a transaction had
been agreed upon by appellant in Las Pias, Metro Manila, involving delivery of shabu, which delivery
was, however, to take place in Room No. 77 at the Hyatt Terraces Hotel in Baguio City. Only appellant
with Editha Gagarin and the undercover Narcom agent showed up at Room No. 77 at the Hyatt
Terraces Hotel and the Narcom undercover agent had signalled that appellant had with him the shabu.
The reception prepared by the arresting officers for appellant inside Room No. 77 was in fact an
entrapment operation. The sale of the shabu (understood as the meeting of the minds of seller and
buyer) did not, of course, take place in the presence of the arresting officers. The delivery or
attempted delivery of the subject matter did, however, take place in their presence.
4. ID.; ID.; EVIDENCE; CREDIBILITY OF WITNESS; THE APPRAISAL BY THE TRIAL COURT OF THE
CREDIBILITY OF THE WITNESSES IS ENTITLED TO GREAT RESPECT FROM APPELLATE COURTS. The
trial court was not persuaded by appellants elaborate disclaimer of knowledge about the shabu,
finding such disclaimer as contrived and improbable and not worthy of credence. The rule, of course,
is that testimony to be believed must not only originate from a credible witness, but must also itself be
credible. We see no reason, and we have been pointed to none, why the Court should overturn the
appraisal of the trial court of the credibility (or rather lack of credibility) of the long story offered by
appellant. We find no basis for departing from the basic rule that the appraisal by the trial court of the
credibility of witnesses who appeared before it is entitled to great respect from appellate courts who
do not deal with live witnesses but only with the cold pages of a written record.
5. POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS; THE RIGHT TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION AGAINST THE ACCUSED; THE ACTS WITH WHICH THE ACCUSED
WAS CHARGED ARE PLAINLY SET OUT IN THE OPERATIVE PORTION OF THE CRIMINAL INFORMATION.
Appellants contention that he had been deprived of his right to be informed of the nature and
cause of the accusation against him, is bereft of merit. The acts with which he was charged are quite
plainly set out in the operative portion of the criminal information: that appellant "did willfully,
unlawfully and feloniously sell, deliver, distribute, dispatch in transit or transport 50 grams of shabu,
knowing fully well that said shabu [is] a prohibited drug . . .." We agree with the trial court that the
use of the term "prohibited drug" was merely a conclusion of law, something which is for the Court to
determine; in the circumstances of this case, the inaccurate use of the term "prohibited drug" was also
merely a falsa descriptio.
DECISION
FELICIANO, J.:
Hilario Macasling, Jr. appeals from the Decision of the Regional Trial Court which sentenced him to
suffer life imprisonment, to pay a fine and costs of litigation.
Appellant Macasling was charged with violation of Republic Act ("R.A.") No. 6425, as amended, in an
information which reads as follows:
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"The undersigned accuses Hilario Macasling, Jr. y Colocado for violation of Section 21(b) in relation to
Section IV, Article II of Republic Act No. 6425, as amended by Batas Pambansa Blg. 179 (Sale,
Administration, Delivery, Transportation & Distribution), committed as follows:
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That on or about the 20th day of August 1988, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, not authorized by law, did then and
there wilfully, unlawfully and feloniously sell, deliver, distribute, dispatch in transit or transport fifty
(50) grams of shabu, knowing fully well that said shabu [is] a prohibited drug, in violation of the
above-mentioned provision of law." 1
Appellant entered a plea of not guilty at arraignment and the case proceeded to trial. After trial, on 18
August 1989, the trial court rendered a decision with the following dispositive portion:
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"WHEREFORE, in view of all the foregoing, the Court finds the accused Hilario Macasling, Jr. guilty
beyond reasonable doubt of transporting and/or attempting to deliver 50 grams of shabu in violation
of Section 21(b), Article IV in relation to Section 15, Article III, in relation to No. 2(e), Section 2,
Article I of Republic Act No. 6425, as amended, and hereby sentences him to life imprisonment and to
pay the fine of Twenty Thousand (P20,000.00) Pesos, without subsidiary imprisonment in case of
insolvency, and to pay the costs.
The 50 grams of shabu contained in the wrapped package marked Happy Days (Exh. H and series)
being the subject of the crime, is hereby declared confiscated and forfeited in favor of the State and
referred to the Dangerous Drugs Board for immediate destruction.
The accused Hilario Macasling, Jr. being a detention prisoner is entitled to be credited 4/5 of his
preventive imprisonment in the service of his sentence under Article 29 of the Revised Penal Code.
So Ordered." 2
The evidence of record discloses that on 19 August 1988, at about 3:00 oclock in the afternoon, Lt.
Manuel Obrera, Chief of the Narcotics and Intelligence Division, Integrated National Police ("INP"),
Baguio City, received a telephone call from the Chief of the Narcotics Command ("Narcom"), First
Regional Unit, INP. The latter sought the assistance of Lt. Obrera in the apprehension of appellant
who, according to the Narcom Chief, would be delivering shabu at Room No. 77 of the Hyatt Terraces
Hotel in Baguio City, on that same afternoon. Lt. Obrera quickly formed a team which include Pat.
Ramoncito Bueno, Pat. Martel Nillo and himself and hastily left for the hotel. There they were met by
the Narcom Chief who informed them that appellant Macasling had previously agreed with a Chinese
businessman in Las Pias, Metro Manila, that appellant would deliver about 250 grams of shabu at
Room No. 77 of the Hyatt Terraces Hotel.
Accordingly, Lt. Obrera and his companions waited inside Room No. 77 of the hotel, for appellant to
show up. Appellant, however, did not arrive that afternoon. Instead, he arrived at the Hyatt Terraces
Hotel at about 1:00 oclock in the early morning of the following day, together with one Editha Gagarin
and a third person who was an undercover Narcom agent. Lt. Obrera opened the door of Room No. 77
to let appellant and his party in, upon noticing that the Narcom agent was combing his hair, which was
a pre-arranged signal meaning that appellant had the shabu in his possession. When appellant and his
party were inside Room No. 77, Lt. Obrera and his companions identified themselves to appellant and
asked him about the shabu. Appellant handed over a small package with a wrapper marked "Happy
Days" which, upon being opened by the arresting officers, was found to contain about 50 grams of
crystalline granules. 3 Appellant and Editha Gagarin were brought to Camp Bado, Dangwa, La Trinidad,
Benguet, where the fact of their arrest was officially recorded. They were later transferred to the
Baguio City Jail as detention prisoners. The crystalline granules were forwarded to the INP Crime
Laboratory in Camp Crame, Quezon City, for examination. The Forensic Chemist in charge of the
examination subjected the granules to four (4) different tests, namely, the color test, the melting point
test, the thin layer chromatography test, and the spectro-infra red test. All the tests showed the
presence of metamphetamine hydrochloride, the scientific name of the substance popularly called
shabu. 4
The investigation conducted by the City Prosecutor of Baguio City initially included Editha Gagarin.
However, upon the basis of a letter written by appellant Macasling admitting sole responsibility for the
acts charged in the information, Editha was excluded from the information. In that letter, appellant
stated that Editha was completely innocent, and that she had merely come along with appellant, at his
invitation, to Baguio City.
Appellant Macasling made the following assignment of errors in his Brief:
1. The lower court erred in not holding that since the arresting officers were not armed with a search
warrant nor a warrant of arrest, the arrest and consequent confiscation of the package with a wrapper
marked Happy Days contain[ing] 50 grams of shabu (Exh. H and series) are illegal and unlawful,
hence are inadmissible in evidence.
2. The lower court erred in not acquitting the accused on the ground that shabu is not one of those
mentioned in R.A. No. 6425, as amended.
3. The lower court erred in not acquitting the accused on the ground that he was deprived of his
constitutional right to be informed of the nature and the cause of the accusation against him. 5
We shall consider the above alleged errors though not in the order submitted by appellant.
chanrobles virtual lawlibrary
We consider first appellants argument that he cannot be convicted of the offense charged in the
information considering that shabu the term used in the information is not a dangerous drug,
since it is not one of those enumerated as such in R.A. No. 6425 (The Dangerous Drugs Act).
R.A. No. 6425, as amended, distinguishes between "prohibited drugs" and "regulated drugs." Article I,
Section 2 (e) defines the term "dangerous drugs" as referring either to "prohibited drugs" or to
"regulated drugs" in the following manner:
"(e) Dangerous Drugs refers to either:
(1) Prohibited drug, which includes opium and its active components and derivatives, such as heroin
and morphine; coca leaf and its derivatives; principally cocaine; alpha and beta eucaine,
hallucinogenic drugs, such as mescaline, lysergic acid diethylamide (LSD) and other substances
producing similar effects; Indian hemp and its derivatives; all preparations made from any of the
foregoing; and other drugs and chemical preparations, whether natural or synthetic, with the
physiological effects of a narcotic or a hallucinogenic drug; or (As amended by B.P. Blg. 179, March
12, 1982.).
(2) Regulated drug which includes self-inducing sedatives, such as secobarbital phenobarbital,
pentobarbital, barbital, amobarbital and any other drug which contains a salt or a derivative of a salt
of barbituric acid; and salt, isomer or salt of an isomer, of amphetamine, such as benzedrine or
dexedrine, or any drug which produces a physiological action similar to amphetamine; and hypnotic
drugs, such as methaqualone, nitrazepam or any other compound producing similar physiological
effects (s amended by P.D. No. 1683, March 14, 1980.)
x
(Emphasis supplied)
The statute penalizes the sale, administration, delivery, distribution and transportation of both
"prohibited drugs" and "regulated drugs:"

"Article II.
Prohibited Drugs
x
SECTION 4. Sale, Administration, Delivery, Distribution and transportation of Prohibited Drugs. The
penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand
pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver,
give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug
involved in any offense under this Section be the proximate cause of the death of a victim thereof, the
maximum penalty herein provided shall be imposed. (As amended by P.D. No. 1675, February 17,
1980.)
x
Article III
Regulated Drugs
SECTION 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated
Drugs. The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty
thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense,
deliver, transport or distribute any regulated drug. If the victim of the offense is a minor, or should a
regulated drug involved in any offense under this section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed. (As amended by P.D. No.
1683, March 14, 1980.)
x
(Emphasis supplied)
The trial court after noting the above-quoted provisions of the statute, went on to say that:
"From the above provisions of law, it is clear that shabu which is the street name of metamphetamine
hydrochloride, is not among those enumerated as prohibited drugs under No. 1(e), Section 2, Article I
on Definition of Terms of Republic Act 6425, as amended.
Obviously, metamphetamine hydrochloride (shabu) is a derivative of amphetamine or a compound
thereof, meaning to say, amphetamine in combination with other drugs or elements which, if one looks
closer, is actually enumerated among the regulated drugs under No. 2(e), Section 2, Article I on
Definition of Terms of Republic Act 6425, as amended.
Note that the law says when it defines regulated drugs as those `which includes self inducing
sedatives such as . . . of amphetamine such as benzedrine or dexedrine, or any other drug which
produces a physiological action similar to amphetamine, and hypnotic drugs, such as methaqualone or
any other compound producing similar physiological effects. Since shabu is actually metamphetamine
hydrochloride, it would then be obvious that its component parts would be the compound of
amphetamine with other elements to form metamphetamine hydrochloride. In other words, among the
elements contained in metamphetamine hydrochloride is amphetamine, a regulated drug.
x
x6
(Emphasis supplied)
We agree with the above ruling of the trial court. This Court has in fact taken judicial notice that shabu
is a "street name" for metamphetamine hydrochloride (or "methyl amphetamine hydrochloride"). 7
Considering the chemical composition of shabu, the Court has declared that shabu is a derivative of a
regulated drug, 8 the possession, sale, transportation, etc. of which is subject to the provisions of R.A.
No. 6425 as amended. It remains only to point out that, in the case at bar, the laboratory examination
conducted on the crystalline granules recovered from appellant in fact yielded the compound
metamphetamine hydrochloride. The use in the criminal information of the casual or vulgar term
shabu rather than the scientific term metamphetamine hydrochloride, does not affect the legal
responsibility of appellant under the relevant provisions of R.A. No. 6425 as amended.
It is true, as pointed out by the trial court, that the preambular portion of the criminal information in
this case referred to violation of "Section 21 (b) in relation to Section 4, Article II of R.A. No. 6425 as
amended by Batas Pambansa Blg. 179." Section 21 (b) of the statute reads as follows:
"SECTION 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the commission
of the offense shall be imposed in case of any attempt or conspiracy to commit the same in the
following cases:
(b) Sale, administration, delivery, distribution and transportation of dangerous drugs;
(Emphasis supplied)
Section 4, Article II of the statute deals with "sale, administration, distribution and transportation of
prohibited drugs." Upon the other hand, Section 15 of the statute is concerned with the "sale,
administration, dispensation, delivery, transportation and distribution of regulated drugs." It will be
recalled that the term "dangerous drugs" as used in the statute covers both "prohibited drugs" and
"regulated drugs." Thus, again as pointed out by the trial court, the opening clause of the criminal
information should, more precisely, have referred to Section 15 which deals with "regulated drugs"
rather than to Section 4 which refers to "prohibited drugs." This imprecision in the specification of the
appropriate section of R.A. No. 6425 as amended has, however, no consequences in the case at bar.
For it is the character of the acts charged in the criminal information and proven at the trial that is
important, rather than the correctness of the designation of the section and article of the statute
violated. It should also not escape notice that the penalty provided in Section 4: "life imprisonment to
death and a fine ranging from P20,000.00 to P30,000.00," is exactly the same penalty imposed in
Section 15 of the statute.
In much the same way, appellants contention that he had been deprived of his right to be informed of
the nature and cause of the accusation against him, is bereft of merit. The acts with which he was
charged are quite plainly set out in the operative portion of the criminal information: that appellant
"did willfully, unlawfully and feloniously sell, deliver, distribute, dispatch in transit or transport 50
grams of shabu, knowing fully well that said shabu [is] a prohibited drug . . .." We agree with the trial
court that the use of the term "prohibited drug" was merely a conclusion of law, something which is
for the Court to determine; in the circumstances of this case, the inaccurate use of the term
"prohibited drug" was also merely a falsa descriptio. The trial court said:
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"The Court stressed this point as in the body of the Information what is alleged as the offense
committed is that the accused unlawfully and feloniously sell, deliver, distribute, dispatch in transit or
transport 50 grams of shabu knowing fully well that said shabu is a prohibited drug in violation of the
law.
It can readily be seen that the subject matter of the offense, as recited in the body of the Information,
is the transport or sale or delivery of the 50 grams of shabu. This is the allegation of fact in respect to
the acts constituting the offense. This is the offense that would need to be proved. However, the
allegation that shabu is a prohibited drug is a conclusion of law. Apparently, the prosecutor who filed
the Information considered shabu a prohibited drug. Thus, the prosecutor designated the offense as a
violation of Section 21 (b) in relation to Section 4, Article II of Republic Act No. 6425, as amended.
The Court pointed this out as should shabu, which really is the street name of metamphetamine
hydrochloride be, in fact, a regulated drug, then the designation of the offense should have been
Violation of Section 21(b), Article IV in relation to Section 15, Article III of Republic Act 6425, as
amended. But note, despite the mistaken designation of the offense there would not be a change in
the offense charged for as recited in the body of the Information, what is charged is still the sale,
transport or delivery of 50 grams of shabu. That is the one important. Only the designation of the
offense was a mistake from regulated drug to prohibited drug which is a conclusion of law.
This would not violate the constitutional right of the accused to be informed of the nature and cause of
the accusation against him. As in fact, the accused is still informed of the offense charged, that is, the
unlawful transport, sale or delivery of 50 grams of shabu.
x
x9
(Emphasis partly in the original and partly supplied)

Appellants next contention is that because he was no lawfully arrested, the package with a "Happy
Days" wrapper containing 50 grams of shabu, taken from him was inadmissible in evidence.
Appellants claim that he was unlawfully arrested is anchored on the fact that the arresting officers had
neither warrant of arrest nor a search warrant.
The basic difficulty with appellants contention is that it totally disregards the antecedents of the arrest
of appellant inside Room No. 77 of the Hyatt Terraces Hotel. It will be recalled that the arresting
officers had been informed by the Chief of the Narcom Regional Office that a transaction had been
agreed upon by appellant in Las Pias, Metro Manila, involving delivery of shabu, which delivery was,
however, to take place in Room No. 77 at the Hyatt Terraces Hotel in Baguio City. Only appellant with
Editha Gagarin and the undercover Narcom agent showed up at Room No. 77 at the Hyatt Terraces
Hotel and the Narcom undercover agent had signalled that appellant had with him the shabu. The
reception prepared by the arresting officers for appellant inside Room No. 77 was in fact an
entrapment operation. The sale of the shabu (understood as the meeting of the minds of seller and
buyer) did not, of course, take place in the presence of the arresting officers. The delivery or
attempted delivery of the subject matter did, however, take place in their presence. The trial court
explained:
"The situation at hand is no different from a buy bust operation and is in fact part of a buy bust
operation. It must be stressed that the sale was transacted and closed in Las Pias, Metro Manila by a
Chinese businessman but the delivery was directed to be made in Room 77, Hyatt Terraces, Baguio.
And instead of the Chinese businessman being inside Room 77 to receive the delivery, the Narcom
elements took his place to entrap the party that will deliver.
Normally, the buy bust operation may take the form of both the negotiation for the sale and delivery
being made in the same place between the seller and the poseur buyer. And when the sale is agreed
upon, on the same occasion the drug is delivered upon the payment being given. And it is at this
juncture that the police or the Narcom elements close in to arrest the offender in the act of selling and
delivering. This is the classic case of a `buy-bust operation, to bust drug pushing.
But surely, there are variations of a `but-bust operation, where the sale is agreed upon in one place
like on the street and then the delivery is to be made in another place as when the buyer and the
seller proceed to the house where the drug is stored for the delivery. And upon the delivery of the
drug by the seller to the buyer, the police elements will arrest the seller in the act of delivering.
And in the case at bar, the situation is but an extension of the second variation above illustrated where
the sale is agreed upon in one place but the delivery is to be made in another place. As here the sale
was agreed upon in Las Pias but the delivery was to be made in a far away place, in Hyatt Terraces,
Baguio City. Surely, the above is still part and parcel of a buy bust operation although as we said it is
more a `bust the delivery operation.
x
The fact that the Narcom got to know beforehand the delivery to be made thru their intelligence
sources must be given credence by the Court. Like any other organization fighting the crime on drugs,
the Narcom must have intelligence sources or it cannot perform its functions well and fulfill its
mission.
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Thus, to wait for the delivery, the Narcom elements deployed themselves inside Room 77 in place of
the Chinese businessman to entrap the party who will appear to deliver the shabu which they will
know would be in his possession thru a pre-arranged signal of their undercover agent. Whosoever
comes and appears in Room 77 would be it. All other persons are unexpected (sic) to come to Room
77 and have no business appearing there except to deliver the shabu unless explained. And ultimately
their waiting paid off as accused Hilario Macasling, Jr. appeared in Room 77 to deliver the shabu and
from whom it was taken by the Narcom. The lack of warrant of arrest is not fatal as this would be
covered by the situation provided for warrantless arrests under Section 5, Rule 113 of the Rules of
Court where an offender is arrested while actually committing an offense or attempting to commit the
offense in the presence of a peace officer.
x
The Court must stress that the situation in the case at bar is very different from a situation where the
law enforcing agents or elements will simply accost people at random on the road, street, boat, plane
or bus without any pre-arranged transaction and without warrant of arrest or search warrant and by
chance find drugs in the possession of a passerby. This latter situation is clearly not permissible and
would be in violation of the constitutional rights of a person against unreasonable searches and
seizures. This would be a fishing expedition. You search first, and if you find anything unlawful you
arrest.
But here it is not at random. There was a previous unlawful transaction. There is a designated place
for delivery, Room 77 and a specified time frame, that very day of August 19, 1988 or thereabouts,
and limited to a particular person, in the sense that whoever would appear thereat would be it. Those
who dont knock at Room 77 and dont go inside Room 77 will not certainly be arrested. But those who
will there at that time and in that place will surely be arrested because of the advance information,
thru the intelligence sources, on the delivery and the prior transaction made. This makes a lot of
difference.
x
But in the case at bar, Accused Hilario Macasling, Jr., at the time of his arrest, was actually in the act
of committing a crime or attempting to commit a crime in the presence of the peace officers as he
appeared there in Room 77 to deliver 50 grams of shabu, a regulated drug, which was previously
bought but directed to be delivered thereat.
The accused had no reason to be at Room 77, knocking therein, and going inside, if he was not the
party to deliver the shabu, and indeed he was. And the Narcom elements have the right to pounce on
him immediately lest he gets away, or is tipped off, or can sense something is amiss or wrong. Unless,
of course, Accused can explain then and there that he knocked on the door and went inside Room 77
by mistake like being an innocent hotel boy, room boy or hotel employee who is going inside the room
to fix the room. Or that accused is a hotel guest who committed a mistake as to his correct room. But
this is not the situation at hand as no such explanation was immediately made by the accused. On the
contrary, Accused went inside the room when let in indicating beyond reasonable doubt that he was
the party to deliver, and indeed he was, as the shabu was taken from his person after the prearranged signal was given by the undercover agent. These circumstances speak for themselves. Res
Ipsa Loquitor. The accused was caught in flagrante delicto.
x
x" 10
(Emphasis supplied)
We consider that under the total circumstances of this case, the warrantless arrest of appellant inside
Room No. 77 was merely the culmination of an entrapment operation and that the taking of shabu
from appellant was either done immediately before, or was an incident of, a lawful arrest. 11
As his principal factual defense, appellant denied knowledge of the fact that the package bearing the
"Happy Days" wrapper contained a quantity of a dangerous drug, claiming that he had merely been
instructed by his employer, Mr. Ben Diqueros, to bring the package to Baguio City as a gift for Mrs.
Diqueros. Appellant sought to explain his trip to Baguio by insisting that he had been asked by Mr.
Diqueros to drive the latters Toyota Celica car to the Diqueros residence in Tranco Ville, Baguio City,
as Mrs. Diqueros was planning to sell the car. Macasling had in turn invited Editha Gagarin, together
with the latters children and mother, to join him in Baguio City. They reached Baguio City later in the
evening of 19 August 1988 and stayed temporarily at the Castilla Monte. Appellant contended that he
had left the Castilla Monte to see Mrs. Diqueros at their residence in Tranco Ville but was there
informed by one Mario and a domestic helper that Mrs. Diqueros was at the Hyatt Terraces Hotel.
Appellant then had Mario accompany him to the hotel where they found Mrs. Diqueros playing in the
casino. Appellant, however, decided not to bother Mrs. Diqueros and so returned to the Castilla Monte.
While at the Castilla Monte, appellant continued, he received a telephone call from Mario informing
him that Mrs. Diqueros had finished playing at the casino. Although it was then midnight, appellant
together with Editha Gagarin proceeded to the Hyatt Terraces Hotel. There they were met at the hotel
lobby by Mario who informed them that Mr. Diqueros was at Room No. 77. Appellant claimed that he
was, in Room No. 77, searched at gunpoint and that the package he was carrying for Mrs. Diqueros
was seized. Unknown to him, he insisted, the gift package contained "shabu." 12
The trial court was not persuaded by appellants elaborate disclaimer of knowledge about the shabu,
finding such disclaimer as contrived and improbable and not worthy of credence. 13 The rule, of
course, is that testimony to be believed must not only originate from a credible witness, but must also
itself be credible. 14 We see no reason, and we have been pointed to none, why the Court should
overturn the appraisal of the trial court of the credibility (or rather lack of credibility) of the long story
offered by appellant. We find no basis for departing from the basic rule that the appraisal by the trial
court of the credibility of witnesses who appeared before it is entitled to great respect from appellate
courts who do not deal with live witnesses but only with the cold pages of a written record.
WHEREFORE, the Decision of the Regional Trial Court Baguio City, in Criminal Case No. 5936-R is
hereby AFFIRMED in toto. No pronouncement as to costs.
SO ORDERED.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
FIRST DIVISION
[G.R. No. 91261. February 19, 1991.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. REY FRANCIS YAP TONGSON @
REY, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Public Attorneys Office for Accused-Appellant.
DECISION
GRIO-AQUINO, J.:
Appeal from the decision of the Regional Trial Court of Maasin, Southern Leyte, Branch 25 in Criminal
Case No. 1178 finding the accused, Rey Francis Yap Tongson, alias Rey, guilty of the crime of rape
committed against 13-year-old Glenda Laplana.
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As found by the trial court, the facts of the case are as follows:
". . . In the evening of May 21, 1987, while the offended party was on her way home from the house
of Emerenciana Aberasturi at Malitbog, Southern Leyte, she was held by the accused and forcibly
dragged towards the sea. She shouted for help but to no avail.
"Upon reaching the seashore, the accused held her hair and immersed her in the sea. The place of
immersion was knee-deep. Her whole body wet, she was dragged ashore by him. He then pushed her
and she fell down. While she was lying down, he gagged her with his T-shirt and then boxed her thrice
on her abdomen.
"Thereafter, the accused removed her panty, inserted his fingers into her vagina, and after pulling
them out, had sexual intercourse with her. She tenaciously resisted the lustful designs of the accused
by moving her body, pushing him and even boxing him while he was sexually abusing her. Her efforts
at resistance, however, proved futile as he was much stronger than she." (p. 19, Rollo.)
What happened afterwards are as follows:
". . . After he had performed the act, he warned her not to divulge it or else he would kill her. The
accused then brought her towards the house of Tiu Tiam Su where he was then working.
"When they reached near the house of Tiu Tiam Su alias Onjo, the accused told her to wait because he
would get a pump boat. She did not, however, wait for him. As soon as he was at a distance from the
house of Tiu Tiam Su, she ran towards the house of her aunt, Estela.
"Upon arriving at Estelas house she called for the people upstairs. Estela responded to her call. They
met at the stairway. Estela asked her why she was wet and crying. She told Estela she (victim) was
raped by the laborer of Tiu Tiam Su. She then went up the house after telling Estela about the
incident.
"Later that evening she was brought to the office of the Chief of Police, Guerillito Lura. There were
policemen and civilians (among them being the accused) in that office. When the Chief of Police asked
her who among those men raped her, she pointed to the accused. After identifying the accused she
went to the hospital for examination.
"Corroborating certain parts of the victims testimony, Estela Aberasturi declared that at about 9:00
oclock in the evening of May 21, 1987, Arleta Espera (a maid of Emerenciana Aberasturi, Estelas
mother-in-law) went to her house in the poblacion of Malitbog. Arleta asked her where Glenda Laplana
was. She told Arleta that Glenda was at Emerencianas house. Arleta said Glenda went ahead of her as
she (Glenda) felt sleepy.

"When she (Estela) went downstairs, she felt surprised to see Glenda crying and her whole body wet.
She had no more slippers. She asked her why she was crying. Glenda answered she was raped by the
laborer of Tiu Tiam Su. She further noticed that Glendas hair was sandy and she had bruises on her
arms and feet. After questioning Glenda, she told her parents-in-law and also her brother-in-law about
the incident. And, they called for a policeman.
Guerillito Lura, the Station Commander of the Malitbog Police, testified that in the evening of May 21,
1987 the guard of the Police Station sent for him, informing him there was a rape incident. He
immediately went to the police station. He found many people there. He asked the guard what
transpired. The guard told him that Pat. Claro Faelnar and Pfc. Macario Lagatierra were in pursuit of
the perpetrator, a laborer of Tiu Tiam Su.
"He followed the policemen to Tiu Tiam Sus residence. When he arrived there he asked Lando (a son
of Tiu Tiam Su) where Pat. Faelnar and Pfc. Lagatierra were. He was told that they were looking for
Rey. The policemen were then in the bodega of Tiu Tiam Su searching for Rey. They could not find Rey
at that instant. Pat. Lagatierra followed Rey as he evaded the police and managed to jump out of the
bodega.
"He summoned other policemen and some people around to help apprehend the culprit. Among them
were Fernando Aberasturi, his brother (Rico), and a younger brother, Fernando apprehended Rey at
the wharf about 50 meters away from the bodega of Tiu Tiam Su. Rey was brought to him
immediately.
"When the victim (whom he had summoned) arrived, he asked her to pinpoint the person who raped
her. She immediately pointed to the accused, Rey Tongson, from among some twenty persons present.
The accused just bowed his head when the victim identified him. Before the victim (Glenda Laplana)
arrived at his office, he asked the accused if it was true that he raped her. He admitted without
hesitation.
"Dr. Leonardo S. Gimeno told the court he examined the victim, Glenda Laplana, at about 11:00
oclock in the evening of May 21, 1987. He issued a medico-legal certificate containing his findings
(Exh. A). He found all those multiple contusions and abrasions indicated in Item No. 1 of Exh.A. These
injuries could have been caused by fistic blows or by some pressure on the victim after she fell down.
"With reference to Item No. 2, he told the victim to undress because he wanted to examine her
vagina. Upon taking off her panty, he saw blood on the front portion of her panty. There was blood
also on the vaginal orifice. The blood came from the first-degree laceration. One cause of this
laceration is the forced entry into the vagina of a mans penis.
"As he examined the victim further, he found traces of sand and grass in the vaginal canal. The
injuries sustained by the victim indicate signs of struggle by her during the incident. His examination,
however, proved negative for spermatozoas." (pp. 16-18, Rollo.)

The records do not reveal when the victim filed a complaint, but the information based on the
complaint was filed with the Regional Trial Court on June 30, 1987.
After the trial, the lower court found Tongson guilty beyond reasonable doubt of the crime of rape. It
sentenced him to suffer the penalty of reclusion perpetua and ordered him to indemnify the offended
party in the amount of thirty thousand pesos (P30,000.00). Petitioner-appellant was given credit for
his preventive imprisonment.
In this appeal, the accused-appellant alleges that the trial court erred: (1) in giving much weight and
credit to the evidence of the prosecution without considering that of the defense, and (2) in finding
him guilty beyond reasonable doubt of the crime of rape.
Contrary to appellant Tongsons claim that the offended party voluntarily submitted to his sexual
advances, the trial court found that the victim Laplana resisted vigorously so that he had to drag her
towards the seashore. She testified that she shouted for help many times but nobody was on the road
at the time, so no one came to help her. She described how she struggled against the appellant,
causing him to box her three (3) times in the abdomen, and her futile efforts to attract the attention
of the persons attending a public dance some 120 to 130 meters from the seashore where she was
sexually assaulted.
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The alleged "public setting" of the rape is not an indication of consent. For, as pointed out by the
Solicitor General, rape may be committed at a place where people congregate such as parks (People v.
Vidal, 127 SCRA 171), by the roadside (People v. Aragona, 138 SCRA 569), or on a passageway at
noontime (People v. Lopez, 141 SCRA 385). In the case of People v. Barcelona, G.R. No. 82589,
October 31, 1990, we took judicial notice of the fact that a man overcome by perversity and beastly
passion chooses neither time, place, occasion, nor victim.
That no spermatozoa was present in the specimen that was taken from the vagina of the victim did
not disprove the rape. Presence or absence of spermatozoa is immaterial since it is penetration,
however slight, and not ejaculation that constitutes rape (People v. Paringit, G.R. No. 83947,
September 13, 1990; People v. Barro, Jr., G.R. No. 86385, August 2, 1990).
Appellants contention that he did not have sexual intercourse with the complainant but merely
inserted his right middle finger into her vagina was correctly found by the trial court to be
incredible:
"The claim of the accused that he merely inserted his middle right finger into the victims vagina does
not appear credible. He admitted though that he did it without her permission. His demonstration of
how it was done defies our imagination. Here is the reactment (sic) of the fantastic scene;
"Sitting side by side with her, he placed his right thigh over the victims left thigh, holding her right
hand with his left, and at the same time inserting his middle right finger into her vagina, while the
victim was holding his right lap with her left hand. The situation described by him appears awkward
and improbable.
"Moreover, it does not jibe with his pre-demonstration testimony that he was embracing the victim
with his left hand, face to face with her, when he inserted his right middle finger into her vagina.
Furthermore, by demonstrating that the victim held his right lap with her left hand while he was
inserting his finger, he wanted to imply that she voluntarily consented to such insertion. And yet
according to him, she got mad. Is this not absurd?" (p. 45, Rollo.)
That the complainant was raped was established by the medical findings, to wit: "blood in the vaginal
orifice, first degree laceration of one inch or more at 6:00 oclock position of the vaginal orifice" (p. 61,
Rollo). Dr. Leonardo Gimeno, the physician who examined the victim after the incident, declared that
the injury to her vaginal orifice was "caused by the forced entry into the vagina of a mans penis" (p.
62, Rollo). The doctors other findings support complainants testimony that she was raped on the
seashore. Sand and grass were found in her vagina. The multiple abrasions and contusions on the
victims lips, right face, lower back including both buttocks, left elbow, left thigh, both knees, legs and
feet, are mute testimonies giving credence to her claim that the appellant dragged her on the shore
and forcibly had sexual intercourse with her.
When a woman testifies that she was raped, she says all that is necessary to show its commission, for
no young and decent Filipina in this case only thirteen (13) years old would publicly admit having
been ravished unless it is the truth, for her natural instinct is to protect her honor (People v. Manago,
G.R. No. 90669, November 21, 1990; People v. Barcelona, G.R. No. 82589, October 31, 1990). The
testimony of a rape victim is credible where no motive to testify against the accused is shown except
the desire to vindicate her honor (People v. Lutanez, G.R. No. 78854, December 21, 1990; People v.
Fabro, G.R. No. 79673, November 15, 1990).
In any case, whether or not carnal knowledge is voluntary and free is a question of credibility (People
v. Mercado, G.R. No. 72726, October 15, 1990). Since the witnesses to rape are often only the victim
and the offender, the trial judges evaluation of the witnesses credibility deserves utmost respect in
the absence of arbitrariness, considering the trial judges advantage of observing the witnesses
demeanor in court (People v. Felipe, G.R. No. 90390, October 31, 1990. We find no reason to reverse
the trial courts conviction of Tongson for rape.
WHEREFORE, the appealed decision of the Regional Trial Court in Criminal Case No. 1178 is affirmed in
all respects except the award of damages to the victim Glenda Laplana which is increased from
P30,000 to P40,000 in accordance with the latest policy of the Court.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.
SECOND DIVISION
[G.R. No. 82589. October 31, 1990.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GIDEON BARCELONA y
DEQUITO, Defendant-Appellant.
The Solicitor General for Plaintiff-Appellee.
Jose P. Villanueva counsel de oficio for Accused-Appellant.
DECISION
PADILLA, J.:
In Criminal Case No. 6026 of the Regional Trial Court of Palawan, Gideon Barcelona y Dequito was
charged with the crime of Rape committed as follows:
"That on or about the 7th day of November, 1985 at Barangay IV, Poblacion, Municipality of Roxas,
Province of Palawan, Philippines and within the jurisdiction of this Honorable Court, the said accused
with lewd design, by means of force, threat and intimidation, did then and there, wilfully, unlawfully
and feloniously have carnal knowledge, with one Sylina Rodriguez against her will and consent to her
damage and prejudice." 1
When arraigned, the accused, assisted by counsel, pleaded "Not Guilty to the commission of the
crime. 2 After trial, however, he was found guilty, as charged, and sentenced to suffer the penalty
of reclusion perpetua, to pay the offended party the amount of P30,000.00, and to pay the costs. 3
From this judgment, the accused appealed to this Court.
The incriminatory facts of the case, according to the Peoples counsel, are as follows:
"Around 6:30 p.m. of November 7, 1985, Sylina Rodriguez, a sixteen-year old high school student of
the Roxas National Comprehensive High School in Roxas, Palawan, was walking on her way home (July
2, 1986 tsn, p. 7). Upon reaching a point in the diversion road near the Medicare Hospital of the new
townsite, she looked back and saw a male person jogging (Ibid., p. 8). She continued walking (Ibid.).
The jogger overtook her and, upon doing so, suddenly turned back and took hold of her hands and
started pulling her towards the bushes (Ibid.). She resisted and hit him with fist blows on his chest
(Ibid.). As he was pulling her, he threatened to kill her by making a motion to pull something from his
back (Ibid. p. 9). He was finally able to pull her to the bushes (Ibid.).
"In the bushes, he forcibly undressed her, removing both her skirt and panty (Ibid., p. 10). He also
undressed and forced her to lay down on her back (Ibid.). He then lay on top of her and began to kiss
her cheeks and lips (Ibid., pp. 9-10). At this point, she was in tears (Ibid., p. 11). Then he inserted his
organ into her private part (Ibid., p. 10). She immediately felt a stab of pain (Ibid., p. 11). When he
was finished, he allowed her to dress up but warned her not to report the incident to the police
authorities (Ibid. p. 12). The victim then went home (Ibid., p. 13).
"The following day, November 8, 1985, accompanied by her uncle and auntie, she reported the matter
to the police authorities (Ibid., p. 14). Thereafter, she was brought to the Medicare Community
Hospital where she was examined (Ibid.).
"Upon information from Hernando Cayaon that he saw accused-appellant Gideon Barcelona jogging
near the diversion road in the late afternoon of November 7, 1985, the police authorities invited the
latter on November 9, 1985 for questioning (November 18, 1986 tsn, p. 3). Upon confrontation, the
victim positively identified accused-appellant as the person who raped her (July 2, 1986, tsn, p. 14).
Thereafter, Accused-appellant was placed under arrest." 4
The accused Gideon Barcelona, however, denied that he committed the crime imputed to him and
interposed the defense of alibi. The trial court summarized the evidence for the defense as follows:
chanroble s law library
"The accused in his defense testified that he is presently 19 years old having been born on November
7, 1968. He was employed since October 1985 in the fishing outfit of Paning Paner and has their base
at Cabugan Island, Roxas, Palawan. Normally, they go to the Poblacion of Roxas every Saturday to
haul water and supplies. Sometime in the afternoon of November 9, 1985, he was fetched by P/Sgt.
Eriberto Castillo of Roxas Police Station and taken to the Municipal Building. In the said place he saw
Melchor Cayaon as well as his brothers and sisters. He alleged since complainant saw him, she did not
positively identified (sic) him but entertained doubts as the person who raped her.
"Supporting in part his testimony was the statement of witness Roger Mania, a detainee at the
municipal jail of Roxas, Palawan at the time who alleged that he saw suspect Melchor Cayaon in the
early morning of 8 November, 1985. He stated that at about 8:00 A.M. of the same day when victim
saw Melchor Cayaon, the former identified the latter as the one who raped her. He further heard the
complainant describe that the person who raped her had curly hair. Suspect Melchor Cayaon had curly
hair while accused Gideon Barcelona had no curly hair.
"In addition to this, witness Jose Lagrada testified that he was the companion of the accused at the
fishing outfit of Paning Paner. In brief, said witness testified that he knew accused Gideon Barcelona.
Both of them were employed in said fishing outfit about the latter part of October, 1985 and continued
uninterruptedly until his arrest on November 9, 1985. He stated that their schedule of fishing is from
7:00 oclock a.m. up to 1:00 oclock p.m. He claimed that from the last week of October 1985 up to
his arrest on November 9, 1985, AccusedBarcelona never went to the Poblacion of Roxas, Palawan and
continuously stayed at Cabugan Island. Despite prior knowledge that the latter was arrested for rape,
he never informed the Police Force of Roxas, Palawan or any person for that matter about the stay of
Barcelona in their place of work nor did he visited (sic) accused in jail despite his close friendship with
him. (Test. of Jose Lagrada, tsn: pp. 1-11, December 12, 1986)" 5
In this appeal, the accused-appellant claims that the trial court erred: (1) in giving weight to the
testimony of the complainant which is allegedly materially inconsistent, contradictory and incredible,
and (2) in convicting the accused-appellant when there is no evidence on record that his guilt has
been proved beyond reasonable doubt.
chanrobles virtual lawlibrary
We find no merit in the appeal. There is no doubt that the complainant had been raped on 7 November
1985, in the manner testified to by her and affirmed by the trial court. When a woman testifies that
she has been raped, she says in effect all that is necessary to show that rape was committed, for no
young and decent Filipino woman would publicly admit that she has been criminally ravished unless
that is the truth, for her natural instinct is to protect her honor. 6
Besides, complainants testimony is confirmed by the surrounding physical facts. Medical examination
of her genitalia in the morning following the attack showed that (1) there was a slight mucosal
inflammation of the labia majora; (2) hymenal laceration at 2:00 oclock, 5:00 oclock, and 9:00
oclock; and (3) whitish mucosal vaginal discharge, scanty in amount noted. 7 Dr. Feliciano Velasco,
medical officer of the Roxas Palawan Medicare Community Hospital, who examined the complainant,
opined that this was the first time she had sexual intercourse because the lacerations on the hymen
were fresh. 8
Moreover, the outrage was immediately reported to the police authorities after its commission,
removing any doubt that the complainant may have concocted her charge against theAppellant.
The appellant contends, however, that the crime of Rape was not committed because no force or
intimidation was employed, i.e., no external injuries or bruises or scratches were found on the
complainants body, despite her testimony that she was dragged to the bushes, and that the
complainant did not offer tenacious and spirited resistance to the assault on her.
The absence of physical injuries on the complainants body does not, of itself, negate the
complainants testimony that she was raped; nor does it make the complainant a willing partner in the
sex act. The victim need not kick, bite, hit, slap or scratch with her fingernails the offender to
successfully claim that she had been raped. It is enough that coition was undertaken against her will.
It is sufficient that the carnal knowledge was done after the woman yielded because of an authentic
apprehension of a real fear of immediate death or great bodily harm. In this case, there is evidence
that the offended girl yielded to the carnal desires of the appellant for fear that he might kill her since,
according to complainant, the appellant had threatened her with death and made menacing gestures
as if to draw a weapon. It is this same fear that must have prevented her from making an outcry or
reporting the outrage to her uncle. 9
As the Court had said in a case, 10 "the force or violence required in rape cases is relative. When
applied it need not be too overpowering or irresistible. What is essential is that the force used is
sufficient to consummate the purpose which the offender had in mind, or to bring about the desired
result. In using force, it is not even necessary that the offender is armed with a weapon, as the use of
a weapon serves only to increase the penalty. Intimidation can be addressed to the mind as well. In
sum, the absence of external signs or physical injuries does not negate the commission of the crime of
rape."
As to the identity of the perpetrator of the dastardly act, the complainant declared, and the trial court
agreed with her, that the appellant committed the crime. The complainant positively identified the
accused as the person who raped her 11 and, as the trial court said, she had no doubt nor second
thought about her identification of the Accused-Appellant. Besides, it would appear that the
complainant had no ill motive to testify falsely against the appellant. In fact, the appellant was a
complete stranger to her and she did not know his name then. But, when they came face to face, the
second time, she readily pointed to the appellant as the person who ravished her. 12 This Court has
consistently held that the testimony of a rape victim as to who abused her is credible where she has
no motive to testify falsely against the accused. 13
The appellant argues that the testimony of the complainant should not be given weight and credence
because it is allegedly inconsistent, contradictory and incredible in that: (1) on direct examination, she
declared that in trying to repel the advances of the appellant, she bit him on the left forearm,
whereas, on cross examination, she denied having stated that she bit the appellant; (2) on direct
examination, the complainant declared that she did not report the incident to her uncle because she
was afraid but, on cross examination, she stated that she reported the incident to her uncle who, in
turn, reported it to the police; and (3) on direct examination, the complainant testified that the sexual
act took about twenty (20) minutes and that she felt pain, but that she felt no ejaculation, while on
cross examination, she stated that there was ejaculation inside her vagina.
These alleged contradictory statements are not fatal as they refer to relatively minor details, and they
are to be expected from uncoached witnesses. They do not affect, nor can they prevail over the
positive identification of the appellant as the rapist. As repeatedly held by the Court, discrepancies and
inconsistencies in the testimony of prosecution witnesses which refer to minor details do not impair
the probative value of their testimony. 14
The insinuation of the appellant that he could not have raped the complainant on 7 November 1985
because it was his birthday is, definitely, without basis for a man overcome by perversity and beastly
passion chooses neither time, place, occasion nor victim.
There being no error committed in the judgment appealed from, the same should be affirmed.
WHEREFORE, the judgment appealed from is hereby AFFIRMED, with costs.
SO ORDERED.
Melencio-Herrera , Paras, Sarmiento and Regalado, JJ., concur.
SECOND DIVISION
[G.R. No. L-27434. September 23, 1986.]
GENARO GOI, RUFINA P. VDA. DE VILLANUEVA, VIOLA P. VILLANUEVA, OSCAR P.
VILLANUEVA, MARINA P. VILLANUEVA, VERNA P. VILLANUEVA, PRAXEDES P. VILLANUEVA,
JR., JOSE P. VILLANUEVA, SAMUEL P. VILLANUEVA, LOURDES P. VILLANUEVA, MILAGROS P.
VILLANUEVA DE ARRIETA, Petitioners-Appellants, v. THE COURT OF APPEALS and GASPAR
VICENTE, Respondents-Appellees.
Ambrosio Padilla Law Office for Petitioners-Appellants.
San Juan, Africa, Gonzales & San Agustin Law Office for Respondents-Appellees.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; DISQUALIFICATION OF WITNESSES BY REASON OF INTEREST OR

RELATIONSHIP; RATIONALE. The object and purpose of Rule 130, Sec. 20 par. (a) is to guard
against the temptation to give false testimony in regard to the transaction in question on the part of
the surviving party and further to put the two parties to a suit upon terms of equality in regard to the
opportunity of giving testimony. It is designed to close the lips of the party plaintiff when death has
closed the lips of the party defendant, in order to remove from the surviving party the temptation to
falsehood and the possibility of fictitious claims against the deceased.
2. ID.; ID.; ID.; APPLICABLE IN THE CASE AT BAR. The case at bar, although instituted against the
heirs of Praxedes Villanueva after the estate of the latter had been distributed to them, remains within
the ambit of the protection. The reason is that the defendants-heirs are properly the "representatives"
of the deceased, not only because they succeeded to the decedents right by descent or operation of
law, but more importantly because they are so placed in litigation that they are called on to defend
which they have obtained from the deceased and make the defense which the deceased might have
made if living, or to establish a claim which deceased might have been interested to establish, if living.
3. ID.; ID.; EXCEPTION; WAIVER, HOW MADE; CASE AT BAR. The protection under the Rules, was
effectively waived when counsel for petitioners cross-examined private respondent Vicente. "A waiver
occurs when plaintiffs deposition is taken by the representatives of the estate or when counsel for the
representative cross-examined the plaintiff as to matters occurring during deceaseds lifetime." It
must further be observed that petitioners presented a counterclaim against private respondent
Vicente. When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action
for recovery of property and as defendant in the counterclaim for accounting and surrender of fields
nos. 13 and 14. Evidently, as defendant in the counterclaim, he was not disqualified from testifying as
to matters of fact occurring before the death of Praxedes Villanueva, said action not having been
brought against, but by the estate of representatives of the estate/deceased person.
4. ID.; ID.; ID.; ID.; LIMITATIONS. Under the great majority of statutes, the adverse party is
competent to testify to transactions or communications with the deceased or incompetent person
which were made with an agent of such person in cases in which the agent is still alive and competent
to testify. But the testimony of the adverse party must be confined to those transactions or
communications which were had with the agent.
5. ID.; ID.; ID.; INEQUALITY SOUGHT TO BE AVOIDED BY THE RULES, INEXISTENT. The inequality
or injustice sought to be avoided by Section 20 (a) of Rule 130, where one of the parties no longer has
the opportunity to either confirm or rebut the testimony of the other because death has permanently
sealed the formers lips, does not actually exist in the case at bar, for the reason that petitioner Goni
could and did not negate the binding effect of the contract/promise to sell. Thus, while admitting the
existence of the said contract/promise to sell, petitioner Goni testified that the same was subsequently
novated into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de
Maria.
6. CIVIL LAW; CONTRACTS; MODE OF EXTINGUISHMENT; NOVATION; DEFINED; REQUISITE.
Novation takes place when the object or principal condition of an obligation is changed or altered. In
order, however, that an obligation may be extinguished by another which substitutes the same, it is
imperative that it be so declared in unequivocal terms, or that the old and the new obligations be on
every point incompatible with each other. "Novation is never presumed. It must be established that
the old and the new contracts are incompatible in all points, or that the will to novate appear by
express agreement of the parties or in acts of equivalent import."
DECISION
FERNAN, J.:
This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R. No. 27800-R
entitled, "Gaspar Vicente, Plaintiff-Appellant, v. Genaro Goi, et. al., Defendants-Appellants" as well as
from the resolution denying petitioners motion for reconsideration.
The factual backdrop is as follows:
The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria situated in the
Municipality of Bais, Negros Oriental, were originally owned by the Compaia General de Tabacos de
Filipinas [TABACALERA]. Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest of
petitioners, negotiated with TABACALERA for the purchase of said haciendas. However, as he did not
have sufficient funds to pay the price, Villanueva with the consent of TABACALERA, offered to sell
Hacienda Sarria to one Santiago Villegas, who was later substituted by Joaquin Villegas. Allegedly
because TABACALERA did not agree to the transaction between Villanueva and Villegas, without a
guaranty private respondent Gaspar Vicente stood as guarantor for Villegas in favor of TABACALERA.
The guarantee was embodied in a document denominated as "Escritura de Traspaso de Cuenta." 1
Either because the amount realized from the transaction between Villanueva and Villegas still fell short
of the purchase price of the three haciendas, or in consideration of the guaranty undertaken by private
respondent Vicente, Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and 13 of
Hacienda Dulce Nombre de Maria for the sum of P13,807.00. This agreement was reduced to writing
and signed by petitioner Genaro Goi as attorney-in-fact of Villanueva, thus:
"En consideracion a la garantia que Don Gaspar Vicente asume con la Cia. Gral. de Tabacos de
Filipinas por el saldo de Don Santiago Villegas de P43,539.75 asumido por Don Joaquin Villegas el que
Suscribe Praxedes T. Villanueva se compromete ceder es venta a Don Gaspar Vicente los campos nos.
3, 4 y 13 del plano de porcelario de la Hacienda Dulce Nombre de Maria, en compra projectada de la
Cia. Gral. de Tabacos de Filipinas. Estas campos representan 6-90-35 hectares por valor de
P13,807.00 que Don Gasper Vicente pagara directamente a Praxedes T. Villanueva.
"Bais, Central, Octubre 24, 1949.
"Fdo. Praxedes T. Villanueva.
Por: "Fdo. Genaro Goi
Apoderado" 2
Private respondent Vicente thereafter advised TABACALERA to debit from his account the amount of
P13,807.00 as payment for the balance of the purchase price. However, as only the amount of
P12,460.24 was actually needed to complete the purchase price, only the latter amount was debited
from private respondents account. The difference was supposedly paid by private respondent to
Villanueva, but as no receipt evidencing such payment was presented in court, this fact was disputed
by petitioners.
It is alleged by petitioners that subsequent to the execution of the contract/promise to sell, Villanueva
was able to raise funds by selling a property in Ayungon, Negros Oriental. He thus went to private
respondent Vicente for the purpose of rescinding the contract/promise to sell. However, as the amount
of P12,460.24 had already been debited from private respondents account, it was agreed that lots 4
and 13 of the Hacienda Dulce Nombre de Maria would merely be leased to private respondent Vicente
for a period of five (5) years starting with crop-year 1950-51 at an annual rental of 15% of the gross
income, said rent to be deducted from the money advanced by private respondent and any balance
owing to Villanueva would be delivered by Vicente together with the lots at the end of the stipulated
period of lease.
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On December 10, 1949, TABACALERA executed a formal deed of sale covering the three haciendas in
favor of Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce Nombre de Maria were thereafter
registered in the name of Villanueva under TCT No. T-4780 of the Register of Deeds of Negros
Oriental. The fields were likewise mortgaged by Villanueva to the Rehabilitation Finance Corporation
(RFC), later transferred to the Philippine National Bank on December 16, 1955, for a total
indebtedness of P334,400.00. 3
Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the 1949-1950
milling season in January and February, 1950.
On June 17, 1950, Villanueva executed a "Documento de la Venta Definitiva" in favor of Joaquin
Villegas, covering Lot No. 314 of the Cadastral Survey of Bais with an area of 468,627 square meters,
more or less, (Hacienda Sarria). A supplemental instrument was later executed by Villanueva in favor
of Villegas to include in the sale of June 17, 1950 the sugar quota of the land.
On November 12, 1951, Villanueva died. Intestate proceedings were instituted on November 24, 1951
before the then Court of First Instance of Negros Oriental, docketed as Special Case No. 777. Among
the properties included in the inventory submitted to the court were fields nos. 3, 4 and 13 of
Hacienda Dulce Nombre de Maria. Field no. 13 with an area of 1 hectare, 44 ares and 95 centares was
listed as Lot no. 723 of the inventory, while fields nos. 3 and 4, with areas of 3 hectares, 75 ares and
60 centares, and 1 hectare, 69 ares and 80 centares, respectively, were included in Lot no. 257 of the
inventory.
On October 7, 1954, the day before the intestate proceedings were ordered closed and the estate of
the late Praxedes Villanueva delivered to his heirs, private respondent Vicente instituted an action for
recovery of property and damages before the then Court of First Instance of Negros Oriental against
petitioner Goi in his capacity as administrator of the intestate estate of Praxedes Villanueva. In his
complaint docketed as Civil Case No. 2990, private respondent Vicente sought to recover field no. 3 of
the Hacienda Dulce Nombre de Maria, basing his entitlement thereto on the contract/promise to sell
executed by the late Praxedes Villanueva in his favor on October 24, 1949. He likewise prayed by way
of attorneys fees and other costs the sum of P2,000.00 and for such other further relief which the
court may deem just and equitable in the premises. 4
On October 25, 1954, petitioner Goi, as defendant in Civil Case No. 2990, filed an answer with
counterclaim for accounting of the produce of fields nos. 4 and 13, as well as the surrender thereof on
June 20, 1955, the end of the fifth crop-year, plus moral damages in the sum of P30,000.00 and
P3,000.00 as attorneys fees. After an answer to the counter-claim had been filed, private respondent
Vicente amended his complaint on September 1, 1955, to include a prayer for damages representing
the produce of field no. 3 from 1949-50 until delivery thereof to him. An answer with counterclaim to
the amended complaint was duly filed, and on April 25, 1956, private respondent Vicente amended his
complaint anew to include as parties-defendants the heirs of the late Praxedes Villanueva.
On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others, on the costs
of production and produce of the three fields in question. The case thereafter proceeded to trial.
Plaintiff presented two (2) witnesses: then party-plaintiff Gaspar Vicente, himself, who over the
objection of therein defendants testified on facts occurring before the death of Praxedes Villanueva,
and Epifanio Equio, a clerk of TABACALERA Agency in the Bais Sugar Central. Defendants presented
Genaro Goi, who testified on the alleged verbal lease agreement.
On December 18, 1959, the trial court rendered a decision ordering therein defendants-heirs to deliver
to Gaspar Vicente field no 3, to execute a formal deed of sale covering fields nos. 3, 4 and 13 in favor
of Vicente, to pay the latter actual or compensatory damages in the amount of P81,204.48,
representing 15% of the total gross income of field no. 3 for crop-years 1950-51 to 1958-59, and such
other amounts as may be due from said field for the crop years subsequent to crop-year 1958-59,
until the field is delivered to Vicente, and to pay the sum of P2,000.00 as attorneys fees plus costs.
Therein defendant Goi was relieved of any civil liability for damages, either personally or as
administrator of the estate. 5
Both parties appealed the decision to the then Court of Appeals; the plaintiff from the portion
awarding damages on a claim that he was entitled to more, and defendants, from the entire decision.
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On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of the lower
court, with the modification that the amount of damages to be paid by defendant-heirs to the plaintiff
should be the total net income from field no. 3 from the crop year 1950-51 until said field is finally
delivered to the plaintiff plus interest thereon at the legal rate per annum. 6
Petitioners filed a motion for reconsideration, but were denied the relief sought in a resolution dated
February 9, 1967. Hence, the present appeal by certiorari whereby petitioners raise the following
questions of law:
"MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT OCCURRING BEFORE THE
DEATH OF PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A CLAIM OR DEMAND UPON HIS ESTATE,
IN VIOLATION OF RULE 123, SEC. 26, PAR. (C), NOW RULE 130, SEC. 20 PAR. (A)?
"MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24, 1949 BE NOVATED INTO A VERBAL
AGREEMENT OF LEASE DURING THE LIFETIME OF THE PROMISSOR, WHOSE DEATH OCCURRED ON
NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES SUBSTANTIATED BY COMPETENT ORAL
EVIDENCE IN THIS CASE?
"SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID P12,460.24 WHICH WAS TO BE
ACCOUNTED AND TO BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN HIS
ORIGINAL COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF P2,000.00 AS
ATTORNEYS FEES, RECEIVE A JUDGMENT FOR DAMAGES IN THE AMOUNT OF P74,056.35 WHICH
CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE CROP YEARS 1950-51 TO 1958-59 AND
FOR P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR SUBSEQUENT TO 1958-59 PLUS INTEREST?" 7
We find that neither the trial nor appellate court erred in ruling for the admissibility in evidence of
private respondent Vicentes testimony. Under ordinary circumstances, private respondent Vicente 8
would be disqualified by reason of interest from testifying as to any matter of fact occurring before the
death of Praxedes T. Villanueva, such disqualification being anchored on Section 20(a) of Rule 130,
commonly known as the Survivorship Disqualification Rule or Dead Man Statute, which provides as
follows:
"Section 20. Disqualification by reason of interest or relationship. The following persons cannot
testify as to matters in which they are interested, directly or indirectly, as herein enumerated:
"(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against
an executor or administrator or other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such person became of unsound mind."
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The object and purpose of the rule is to guard against the temptation to give false testimony in regard
to the transaction in question on the part of the surviving party and further to put the two parties to a
suit upon terms of equality in regard to the opportunity of giving testimony. 9 It is designed to close
the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove
from the surviving party the temptation to falsehood and the possibility of fictitious claims against the
deceased. 10
The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the
latter had been distributed to them, remains within the ambit of the protection, The reason is that the
defendants-heirs are properly the "representatives" of the deceased, not only because they succeeded
to the decedents right by descent or operation of law, but more importantly because they are so
placed in litigation that they are called on to defend which they have obtained from the deceased and
make the defense which the deceased might have made if living, or to establish a claim which
deceased might have been interested to establish, if living. 11
Such protection, however, was effectively waived when counsel for petitioners cross-examined private
respondent Vicente. "A waiver occurs when plaintiffs deposition is taken by the representative of the
estate or when counsel for the representative cross-examined the plaintiff as to matters occurring
during deceaseds lifetime." 12 It must further be observed that petitioners presented a counterclaim
against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual
capacity as plaintiff in the action for recovery of property and as defendant in the counterclaim for
accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was
not disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva,
said action not having been brought against, but by the estate or representatives of the
estate/deceased person.
Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions
or communications with the deceased or incompetent person which were made with an agent of such
person in cases in which the agent is still alive and competent to testify. But the testimony of the
adverse party must be confined to those transactions or communications which were had with the
agent. 13 The contract/promise to sell under consideration was signed by petitioner Goi as attorneyin-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding the
execution of such contract and therefore could either confirm or deny any allegations made by private
respondent Vicente with respect to said contract. The inequality or injustice sought to be avoided by
Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to either confirm or
rebut the testimony of the other because death has permanently sealed the formers lips, does not
actually exist in the case at bar, for the reason that petitioner Goi could and did not negate the
binding effect of the contract/promise to sell. Thus, while admitting the existence of the said
contract/promise to sell, petitioner Goi testified that the same was subsequently novated into a
verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria.
Novation takes place when the object or principal condition of an obligation is changed or altered. 14
In order, however, that an obligation may be extinguished by another which substitutes the same, it is
imperative that it be so declared in unequivocal terms, or that the old and the new obligations be on
every point incompatible with each other. 15 "Novation is never presumed. It must be established that
the old and the new contracts are incompatible in all points, or that the will to novate appear by
express agreement of the parties or in acts of equivalent import." 16
The novation of the written contract/promise to sell into a verbal agreement of lease was clearly and
convincingly proven not only by the testimony of petitioner Goi, but likewise by the acts and conduct
of the parties subsequent to the execution of the contract/promise to sell. Thus, after the milling
season of crop year 1949-50, only fields nos. 4 and 13 were delivered to private respondent Vicente.
Fields nos. 3, 4 and 13 were subsequently registered in Villanuevas name and mortgaged with the
RFC. Villanueva likewise executed a deed of sale covering Hacienda Sarria in favor of Joaquin Villegas.
All these were known to private respondent Vicente, yet he did not take any steps toward asserting
and/or protecting his claim over fields nos. 3, 4 and 13 either by demanding during the lifetime of
Villanueva that the latter execute a similar document in his favor, or causing notice of his adverse
claim to be annotated on the certificate of title of said lots. If it were true that he made demands on
Villanueva for the surrender of field no. 3 as well as the execution of the corresponding deed of sale,
he should have, upon refusal of the latter to do so, immediately or within a reasonable time thereafter,
instituted an action for recovery, or as previously observed, caused his adverse claim to be annotated
on the certificate of title. Considering that field no. 3, containing an area of three (3) hectares, 75 ares
and 60 centares, is the biggest among the three lots, an ordinary prudent man would have taken
these steps if he honestly believed he had any right thereto. Yet, private respondent Vicente did
neither, In fact such inaction persisted even during the pendency of the intestate proceedings wherein
he could have readily intervened to seek exclusion of fields nos. 3, 4 and 13 from the inventory of
properties of the late Praxedes Villanueva.
The reason given by private respondent Vicente that field no. 3 was not delivered to him together with
fields nos. 4 and 13 because there were small sugar cane growing on said field at that time belonging
to TABACALERA, might be taken as a plausible explanation why he could not take immediate
possession of lot no. 3, but it certainly could not explain why it took him four years before instituting
an action in court, and very conveniently, as petitioners noted, after Villanueva had died and at the
time when the verbal contract of lease was about to expire.
Both the trial and appellate courts chose to believe in the contract/promise to sell rather than the
lease agreement, simply because the former had been reduced to writing, while the latter was merely
verbal. It must be observed, though, that the contract/promise to sell was signed by petitioner Goi as
attorney-in-fact of the late Praxedes Villanueva, an indication, to our mind, that final arrangements
were made by petitioner Goi in the absence of Villanueva. It was therefore natural for private
respondent Vicente to have demanded that the agreement be in writing to erase any doubt of its
binding effect upon Villanueva. On the other hand, the verbal lease agreement was negotiated by and
between Villanueva and private respondent Vicente themselves. Being close friends and relatives 17 it
can be safely assumed that they did not find it necessary to reduce the same into writing.
In rejecting petitioners contention respecting the verbal lease agreement, the appellate court put
much weight on the failure of petitioners to demand an accounting of the produce of fields nos. 4 and
13 from 1950 to 1954, when the action for recovery of property was filed. Such failure was
satisfactorily explained by petitioners in their motion for reconsideration filed before the then Court of
Appeals, in this manner:
". . . Mr. Genaro Goi is also a farmer by profession and that there was no need for him to demand a
yearly accounting of the total production because the verbal lease agreement was for a term of 5
years. The defendant Mr. Genaro Goi as a sugar planter has already full knowledge as to the annual
income of said lots nos. 4 and 13, and since there was the amount of P12,460.25 to be liquidated,
said defendant never deemed it wise to demand such a yearly accounting. It was only after or before
the expiration of the 5 year lease that said defendant demanded the accounting from the herein
plaintiff regarding the production of the 2 lots that were then leased to him.
"It is the custom among the sugar planters in this locality that the Lessee usually demands an
advance amount to cover the rental for the period of the lease, and the demand of an accounting will
be only made after the expiration of the lease period. It was adduced during the trial that the amount
of P12,460.75 was considered as an advance rental of the 2 lots which was leased to the Plaintiff, lots
nos. 4 and 13, so we humbly believe that there was no necessity on the part of defendant Mr. Genaro
Grio to make a yearly demand for an accounting for the total production of 2 parcels leased to the
plaintiff." 18
Petitioners, having clearly and sufficiently shown that the contract/promise to sell was subsequently
novated into a verbal lease agreement, it follows that they are entitled to a favorable decision on their
counterclaim. Discussion of the third issue raised therefore becomes unnecessary.
WHEREFORE, the decision appealed from is hereby reversed. The judicial administrator of the estate of
private respondent Gaspar Vicente and or his successors-in-interest are hereby ordered to: a)
surrender possession of fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners; b)
render an accounting of the produce of said fields for the period beginning crop-year 1950-51 until
complete possession thereof shall have been delivered to petitioners; and c) to pay the corresponding
annual rent for the said fields in an amount equivalent to 15% of the gross produce of said fields, for
the periods beginning crop-year 1950-51 until said fields shall have been surrendered to petitioners,
deducting from the amount due petitioners the sum of P12,460.24 advanced by private respondent
Gaspar Vicente.
SO ORDERED.
Feria (Chairman), Alampay, Gutierrez, Jr. and Paras, JJ., concur.
EN BANC
[G.R. No. 30472. January 20, 1930. ]
MARIANO MARALIT AND EMETERIO LOTA, Plaintiffs-Appellants, v. REYNALDO LARDIZABAL,
as judicial administrator of the estate of Germana Solis, Defendant-Appellant.
Jose V. Villapando,, for Plaintiffs-Appellants.
Guevara, Francisco & Recto,, for Defendant-Appellant.
SYLLABUS
1. PLEADING AND PRACTICE; COMPETENCY OF WITNESSES. Section 383 of the Code of Civil
Procedure, providing that parties or assignors of parties to an action or proceeding, or persons in
whose behalf an action or proceeding is prosecuted against an executor or administrator or other
representative of a deceased person, upon a claim or demand against the estate of such deceased
person, cannot testify as to any matter of fact occurring before the death of such deceased person, is
applicable where the deceased died either or after the suit filed against him, if, since the reason for
the prohibition, which is to discourage perjury, exists in both instances.
DECISION
AVANCEA, C.J. :
On February 15, 1920, the deceased Germana Solis entered into a contract with the plaintiffs for the
repair of her house situated in the municipality of Lipa, Province of Batangas, for the sum of P14,000.
Plaintiffs allege that they have performed the work, but have only received P11,550 from Germana
Solis, thus leaving a balance of P2,450 due them according to the contract. They also allege that they
performed additional work not included in the contract. They pray that the defendant, who is the
judicial administrator of the intestate estate of Germana Solis, be ordered to pay them the remainder
of the price stipulated in the contract, the value of the additional work done, and damages, which they
allege they sustained by reason of the contract.
The defendant, on the other hand, filed a cross-complaint for the foreclosure of the mortgage given by
the plaintiff, Mariano Maralit, to secure the fulfillment of his obligations under the contract, and a
counterclaim for the value of the materials and labor engaged by defendant on account of the
plaintiffs having abandoned the work, and for damages caused by the delay in the completion
thereof.
The court below ordered the defendant to pay the plaintiffs the sum of P2,450, being the unpaid
balance of the price stipulated in the contract, with legal interest from the date of the filing of the
complaint, namely, January 17, 1926; absolved the defendant from the other causes of action, and
absolved the plaintiffs from the counterclaim and the cross-complaint. From this decision both parties
appealed.
One of the errors assigned by the plaintiffs to the court below is its failure to adjudge the defendant in
default, and its admission of the demurrer and answer filed by the defendant after the period fixed for
their presentation. At any rate, according to section 110 of the Code of Civil Procedure, it is within the
discretion of the trial court to admit these pleadings even after the same time fixed for their
presentation. Not only do we find that the trial court did not made use of it, considering that the
defendant did not file his demurrer and his answer within the legal period, because he awaited first
the ruling on his petition deprecating the plaintiffs appeal from the resolution of the committee on
claims and appraisal.
The appellants also contend that the trial court committed an error in the rejection of Exhibit C.
Neither is there any merit in this assignment of error, for it appears that this exhibit was only prepared
during the trial of this case. And, even taking it into account, it is valueless to prove the additional
work alleged by the plaintiffs to have been performed by them, for it contains no specification but
simply the partial totals of the amounts expended on said alleged additional work.
As to the courts having refused to admit the testimony of plaintiff Mariano Maralit to prove that the
deceased Germana Solis, in the course of the work, ordered some additional repairs to be made not
included in the contract, neither do we find any error in this conclusion, based upon section 383,
paragraph 7 of the Code of Civil Procedure. It is alleged that this provision is inapplicable because
Germana Solis died only after the complaint had been filed against her. But the law does not state that
it only refers to cases where the deceased died before the action was instituted. Moreover, the purpose
of the prohibition, which is to discourage perjury may be applied where the deceased died either
before or after the filing of the suit against her, if, when the testimony is given, she is already dead
and cannot disprove it.
As to the rest, a careful examination of the contract between parties and the additional work alleged,
leads to the same conclusion as that reached by the court below, that said additional work may well
come within the general terms of the contract, and that, if there appears to be any, the evidence does
not support the allegation.
With regard to the counterclaim filed by the defendant, we likewise agree with the trial court that the
expenses alleged to have been incurred by the defendant may have been incurred upon the additional
work admitted by the court below, although the evidence contains no specification, or upon the old
house not referred to in the contract. The same may be said of the labor. The defendant admits that
not all the materials listed in Exhibit 1 were employed in repairs under the contract, and this exhibit
contains expenditures made subsequent to the delivery of the house.
With respect to the materials taken from the old house and used by the plaintiff in the repairs, the
latter is not bound to pay for them, for, although he undertook to pay for the materials, the contract
calls only for the enlargement and remodelling of the old house, and he was therefore authorized to
utilize the useful materials of the house itself, if, as in this case, there is no agreement to the
contrary.
As regards the P300 claimed as damages for the faulty construction of the azotea, the repairs having
not yet been made, this amount cannot be accepted as the exact cost. The defendants mere
statement to this effect is not sufficient as it does not appear that he is an expert.
Upon the question of the damages claimed on account of the delay of one hundred eighty six days in
the completion of the work, the fact that the plaintiff performed some additional work for the
improvement of the house excuses him.
Wherefore, the judgment appealed from is affirmed, without costs. So ordered.
Johnson, Street, Villamor, Johns and Villa-Real, JJ., concur.

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THIRD DIVISION

[G.R. No. 90342. May 27, 1993.]

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"prohibited drugs" and "regulated drugs:"

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