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THIRD DIVISION.
435
435
436
437
Rollo, p. 28.
438
438
439
439
COMMENT in G.R. No. 120391 dated March 4, 1996, pp. 2-5; Rollo,
pp. 98-101.
3
PETITION FOR REVIEW in G.R. No. 120391 dated July 25, 1995, p.
9; Rollo, p. 21.
4
440
Ibid.
441
118140, February 19, 1997; People of the Philippines vs. Calvo, Jr., et al.,
G.R. No. 91694, March 14, 1997; People vs. De la Cruz, 229 SCRA 754
[1994]; People vs. Perciano, 233 SCRA 393 [1994].
10
People vs. Calvo, Jr., ibid.; People vs. Herbieto, et al., G.R. No.
103611, March 13, 1997; People vs. Ferrer, 255 SCRA 19 [1996]; People
vs. Porras, 255 SCRA 514 [1996].
11
Pat. Rudy Almeda vs. Court of Appeals, et al., G.R. No. 120853,
March 13, 1997; People vs. Sumalpong, G.R. No. 123404, February 26,
1997; People vs. Herbieto, et al., ibid.; People vs. Panlilio, 255 SCRA 503
[1996]; People vs. Gamiao, 240 SCRA 254 [1995].
12
442
(a) the evidence was discovered after the trial; (b) such
evidence could not have been discovered and produced at
the trial with reasonable diligence; and (c) that it is
material, not merely cumulative, corroborative or
impeaching, and is of such weight that, if admitted, will
probably change the judgment. All three requisites must
characterize
the evidence sought to be introduced at the
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new trial. Unfortunately, by petitioners own admission,
it is not clear on the record why were (sic) they
(testimonies of Francisco Chavez and Segundo Tan) not
presented (but) the accused (herein petitioner) had
14
manifested that they should have been presented x x x.
Aside from the petitioners bare assertion that the nonpresentation of these testimonies was not due to his fault
or negligence, he miserably failed to offer any evidence that
the same could not have been discovered
and produced at
15
the trial despite reasonable diligence. We also agree with
the Office of the Solicitor General (OSG) which accurately
observed that the testimonies sought to be introduced as
newly discovered evidence would not alter the judgment
even if admitted, thus:
Petitioner himself testified that he asked Tobias Porta to operate
the backhoe at the behest of Segundo Tan, who about one or two
days before August 7, 1988, requested him to look for a backhoe
operator, because he would be installing reinforced concrete culverts
along his property at the J.P. Laurel, McArthur Highway, Davao
City. However, Mayor Rodrigo Duterte, City Mayor of Davao City
caught petitioner en flagrante delicto directing the use and
operation of the backhoe, not for the purpose of installing reinforced
concrete culverts but for his own personal gold treasure hunting
operation (TSN, April 29, 1993, p. 9). Assuming, therefore, that the
testimonies of Francisco Chavez and Segundo Tan may be admitted
as newly discovered evidence, petitioner can still be held liable for
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No. 113703, January 31, 1997; Dapin vs. Dionaldo, 209 SCRA 38 [1992];
Bernardo vs. Court of Appeals, 216 SCRA 224 [1992]; Tumang vs. Court of
Appeals, 172 SCRA 328 [1989].
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15
supra.
443
443
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17
18
444