G.R. No.

L-28482 January 30, 1971
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN BRIOSO and MARIANO TAEZA, defendants-appellants.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Frine' C.
Zaballero and Solicitor Rosalio A. de Leon for plaintiff-appellee.
Cirilo F. Asprilla, Jr., as counsel de oficio for defendants-appellants.
Cecilia Bernal, a niece and neighbor of the spouses, was alarmed by the barking of
dogs. She peeped through a crack in the wall of her house and saw appellants herein
pass southward in the direction of the house of Silvino Daria that was six meters
away. Brioso was carrying a long gun. Her suspicions awakened, she went
downstairs and, shielded by the fence, witnessed each appellant point a gun at the
bamboo wall of Daria's house. Two detonations followed, and thereafter she heard
Daria moaning and his wife call for help, saying her husband had been shot. Bernal
went to the house and found the victim prostrate, wounded and unable to speak. The
widow, however, testified that right after being shot, she rushed to her husband's side
and he told her that he was shot by Juan Brioso and Mariano Taeza. Silvino Daria
expired one hour later as a result of gunshot wounds in the abdomen and leg. A few
days later, Cecilia Bernal and the widow, Susana Tumalip, executed affidavits
pointing to the two accused as the killers (Exhibits "B" and "C," respectively).

REYES, J.B.L., J.:
Appeal from a judgment of the Court of First Instance of Abra, in its Criminal Case No.
626, finding the two appellants Juan Brioso and Mariano Taeza guilty of murder, and
sentencing each to suffer life imprisonment and to indemnify, jointly and severally, the
heirs of Silvino Daria in the sum of P6,000.00 but without subsidiary imprisonment in
case of insolvency, and to pay the costs.
An information filed by the Provincial Fiscal dated 16 January 1967 charged the two
accused, Juan Brioso and Mariano Taeza, with the crime of murder under Article 248
of the Revised Penal Code, committed as follows:
The cause of the death of Silvino Daria was "Shock due to severe hemorrhage
secondary to gunshot wounds at the abdomen and leg," as found by Dr. Isabelo B.
Lucas, Municipal Health Officer of Tayum, Abra, contained in his Medico-Legal
Necropsy Report, Exhibit "A".
The motive for the killing appears to have been the disapproval by the spouses Silvino
and Susana Daria of Mariano Taeza's courtship of their daughter, Angelita. Angelita
was even sent to Manila for her to avoid Mariano Taeza. The courtship is admitted by
Mariano Taeza.
The two accused appealed the conviction and assigned the following errors as
committed by the court a quo:

That on or about the 23rd day of December, 1966, in the
Municipality of Tayum, Province of Abra, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused,
armed with firearms of different calibers, by confederating and
mutually helping one another, with deliberate intent to kill and
without justifiable motive, with treachery and evident
premeditation, did then and there willfully, unlawfully and
feloniously, assault, attack and shot one, Silvino Daria, inflicting
upon him multiple gunshot wounds on the different parts of his
body, which wounds caused his death thereafter.
CONTRARY TO LAW, with the aggravating circumstances in the
commission of the crime, to wit: (a) treachery and evident
premeditation; (b) advantage was taken of superior strength; and
(c) with the use of firearm.
The records of the case show that on 23 December 1966, between 8 and 9 in the
evening, the spouses Silvino Daria and Susana Tumalip were in their house at barrio
Tiker, Tayum, Abra. The husband was making rope in the annex of their house, while
the wife, four meters away, was applying candle wax to a flat iron. Silvino Daria was
using a lamp where he worked. Outside, the night was bright because of the moon
overhead.
1. The lower court erred in relying on the uncorroborated and
contradictory testimony and statement of the prosecution witness
Cecilia Bernal on the physical identity of the accused;
2. The lower court erred in disregarding the affidavit (Exhibit 2) of
Antonio Daria, son of the deceased, clearing the accused Mariano
Taeza, which affidavit had been identified in court by the fiscal
before whom the same was executed; and
3. The lower court erred in finding the accused guilty of the crime
of murder.
The assigned errors are discussed together, being closely inter-related.
We find no discrepancy in the testimony of Cecilia Bernal on the material points. She
stated that she did not see Mariano Taeza carry a gun when both the accused passed
by. But this brief observation does not necessarily mean that he was not actually
armed or carrying a gun on his person. The fact that he did was proved when both the
said accused were seen pointing their respective gun at the victim and each
subsequently fired once at him, Taeza using a short weapon (t.s.n. Millare, page 17)
that could have been carried concealed in his person.
The house of Cecilia Bernal was only six meters away from that of Silvino Daria's. The
night was brightly illuminated by the moon. Cecilia Bernal had known both accused for
a long time and it is admitted that they also know her. There could have been no
difficulty in identifying the accused under the circumstances.
Cecilia Bernal had no motive to impute falsely this heinous charge of murder against
the above-said accused, considering that Mariano Taeza is a nephew of the
deceased by a first degree cousin. Even Juan Brioso specifically said that he knew of
no reason why she should testify against him. Hence, her statement that she came to
court only to tell the truth should be believed. The witness also stated that she was
hard of hearing and could not understand some of the questions; thus, the alleged
inconsistencies in her testimony do not detract from the "positive and
straightforward"1 identification of the accused as the ones who were seen at the
scene of the crime and who actually shot Silvino Daria.
It is noteworthy that the trial judge observed witness Bernal closely, warning her
several times not to exaggerate, yet in the decision gave her full credence, being
obviously satisfied of her truthfulness.lâwphî1.ñèt The general rule, based on logic
and experience, is that the findings of the judge who tried the case and heard the
witnesses are not disturbed on appeal, unless there are substantial facts and
circumstances which have been overlooked and which, if properly considered, might
affect the result of the case,2 which in this case have not been shown to exist.
Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the
victim, who told his wife that it was Juan Brioso and Mariano Taeza who shot him.
This statement does satisfy the requirements of an ante mortem statement. Judged
by the nature and extent of his wounds, Silvino Daria must have realized the
seriousness of his condition, and it can be safely inferred that he made the same
under the consciousness of impending death, 3considering that he died only one hour
after being shot.
The defense of both the accused is alibi. Mariano Taeza's own account was that in
the evening of 23 December 1966 he was at the barrio clinic of Tiker playing the
guitar with Antonio Daria (son of the deceased), Narciso Valera and Jose Cabais.
While in the said place, they heard two gun explosions. Soon afterwards, Macrino
Arzadon and Taurino Flores came running towards them, informing Antonio Daria that
his father was already dead.
Exhibit "2," the alleged affidavit of Antonio Daria, was presented in court to
corroborate Mariano Taeza's testimony. But while the said affidavit was identified by
the Provincial Fiscal as having been subscribed and sworn to before him, he also
stated that he did not know Antonio Daria personally and that was the only time he
appeared before him. Exhibit "2" does not have the seal of the Fiscal's Office.
Moreover, the said exhibit was never identified by the supposed affiant and there was
no opportunity for the prosecution to cross-examine him. As stated in People vs.
Mariquina4, affidavits are generally not prepared by the affiants themselves but by
another who uses his own language in writing the affiants' statements, which may
thus be either committed or misunderstood by the one writing them. For this reason,
and for the further reason that the adverse party is deprived of the opportunity to
cross-examine the affiants, affidavits are generally rejected in a judicial proceeding as
hearsay, unless the affiants themselves are placed on the witness stand to testify
thereon. In view hereof, We find Exhibit "2" of no probative value, and that the lower
court did not err when it rejected the same. In this connection, it is markworthy that
the prosecuting attorney stated in open court that Antonio Daria had also executed
another affidavit (Exhibit "D") in the Fiscal's office "to the effect that he went to the
office of defense counsel, ...... and there affixed his thumbmark on a statement that
was never read to him." Be that as it may, not one of the other persons who, Mariano
Taeza claimed, were with him in the barrio clinic (Narciso Valera and Jose Cabais)
was produced in court to support his alibi. Mariano Taeza's testimony, therefore,
remains uncorroborated. It has been repeatedly held that in the face of direct
evidence, alibi is necessarily a weak defense and becomes more so if
uncorroborated. 5 It is worse if the alibi could have been corroborated by other
persons mentioned by the accused but they are not presented. 6
By Mariano Taeza's own admission, he and the other accused, Juan Brioso, are close
friends. It was shown that Mariano Taeza's house is only about two hundred meters
from that of Silvino Daria's and that the barrio clinic is only about eighty to one
hundred meters from the said victim's place. Mariano Taeza himself stated that Silvino
Daria died "may be less than thirty minutes, may be five minutes" after his arrival at
the victim's house with the latter's son and other persons. As held in another case 7
the defense of alibi is so weak that in order to be believed there should be a
demonstration of physical impossibility for the accused to have been at the scene of
the crime at the time of its commission. Mariano Taeza was so near the victim's house
that it was easy for him to be there when the shooting occurred.
The other accused, Juan Brioso, stated that he was in sitio Catungawan, barrio
Basbasa, Tayum, on 23 December 1966. He was there upon invitation of his first
cousin, Nestorio Flores, to cut and mill sugar cane. He left his house in Addamay at 8
in the morning of the said day, arriving in Catungawan before the noon meal. They cut
sugar cane from 4 to 5 in the afternoon. At 6:30, after supper, he, his cousin, and the
latter's son, Felix Flores, started milling the sugar cane which they had cut. The milling
lasted up to 2 in the early morning of the following day. He never left the place where
they were milling. He learned of the death of Silvino Daria only when he returned to
Addamay because his parents informed him of the news. He admitted knowing Cecilia
Bernal and that she likewise knows him.
He denied being a close friend of Mariano Taeza (thereby contradicting Mariano
Taeza's testimony)8; denied that he had gone to the house of Angelita Daria, and his
having knowledge of the courtship of Angelita by Mariano Taeza; or that both of them
used to drink and go out together. On cross-examination, however, he admitted that
he went with Mariano Taeza when they attended dances. One such occasion was
during the birthday of his first degree cousin in Addamay way back in 1965.
Nestorio Flores was presented to corroborate the alibi of the accused. But while both
exhibited wonderful memory as to what happened between sunset and midnight of 23
December 1966, they contradict each other as to what happened in the earlier hours
or events. As already stated, Juan Brioso testified that he left his place in Addamay at
8 in the morning and arrived at his cousin's house before the noon meal of 23
December 1966; but Nestorio Flores asserted that it was 8 in the morning when Juan
Brioso arrived. Brioso claimed that they cut sugar cane from 4 to 5 in the afternoon of
the said day. His cousin testified that they cut sugar cane in the morning after Brioso's
arrival until lunchtime. Brioso stated that they milled sugar cane for the third time in
that place in 1966, the first occasion being on 29 November, and the second on 8
December. Flores denied this, saying that they did not cut sugar cane in November,
1966, although in other years they did. He further stated that it was already in
December of that year that Brioso came. In fact, the same witness showed
uncertainty as to the exact date, when he answered even on direct examination that
"may be that was the time when he came."9 In cases of positive identification of the
culprit by reliable witnesses, it has been held that the defense of alibi must be
established by "full, clear and satisfactory evidence." 10 It is obvious that this witness,
who is a close relative of the accused, was merely presented in court in an attempt to
save Juan Brioso from punishment for the crime committed. We believe the trial court
when it found that the witness has an interest in the fate of the accused Juan Brioso,
and, therefore, his testimony should not be given credence.

Evidence also shows that from Tiker to Catungawan is only about nine kilometers and
only a two-hour walk. The place is also accessible by motor transportation, although
motor vehicles are allegedly rare in the said place. As in the case of Mariano Taeza, it
was not physically impossible for Juan Brioso to be at the locus criminis at the time
the crime was committed.

It has been clearly and sufficiently proved that the killing of Silvino Daria was qualified
by treachery (alevosia)." 11The victim was quietly making rope in his own house. He
was caught off-guard and defenseless when suddenly and unexpectedly the two
accused fired at him. He had no chance either to evade or repel the aggression. The
trial court correctly held that treachery absorbs nocturnity and abuse of superior
strength. 12 But while these aggravating circumstances are always included in the
qualifying circumstance of treachery, the commission of the crime in the victim's
dwelling is not, 13 hence the crime is murder attended by one aggravating
circumstance, which has been held to be present where the victim was shot inside his
house although the triggerman was outside. 14 There being no mitigating
circumstance to offset it, the apposite penalty is death. However, for lack of sufficient
votes, the penalty imposable is reduced to life imprisonment.

WHEREFORE, the sentence under appeal is affirmed, with the sole modification that
the amount of the indemnity is increased to P12,000.00.
G.R. No. 74065 February 27, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NERIO GADDI y CATUBAY, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Citizen Legal Assistance Office for defendant-appellant.
CORTES, J.:
Nerio Gaddi y Catubay was charged with murder for the death of one Augusto
Esguerra y Navarro in an information which reads as follows:
xxx xxx xxx
That on or about the 11th day of December, 1981, in Quezon City,
Metro Manila, Philippines, the above-named accused, with intent
to kill, without any justifiable cause, qualified with treachery and
with evident pre-meditation (sic), did then and there, wilfully,
unlawfully and feloniously attack, assault and employ personal
violence upon the person of one AUGUSTO ESGUERRA y
NAVARRO, by then and there stabbing him several times with a
knife, hitting him on the different parts of his body, thereby inflicting
upon him serious and mortal wounds which were the direct and
immediate cause of his death, to the damage and prejudice of the
heirs of the offended party in such amount as maybe awarded
under the provision of the Civil Code.
CONTRARY TO LAW. [Rollo, p. 15.]
After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C.
Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a
verdict of guilt for the crime charged, the decretal portion of which reads:
xxx xxx xxx
WHEREFORE, the Court finds the accused NERIO GADDI y
CATUBAY guilty beyond reasonable doubt of the crime of murder,
as charged in the information, and hereby sentences him to suffer
the penalty of RECLUSION PERPETUA or LIFE IMPRISONMENT
and to pay his heirs of Augusta Esguerra the sum of P50,000.00
without subsidiary imprisonment in case of insolvency, with all the
accessory penalties provided for by law, and to pay the costs.
SO ORDERED. [Rollo, p. 31.]
On appeal to this Court, Gaddi assigns as errors of the trial court the following:
I
THE TRIAL COURT ERRED IN GIVING WEIGHT AND
CREDENCE TO THE TESTIMONY OF ERNESTO GUZMAN AND
IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY
THE DEFENSE.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-
APPELLANT BASED ON HIS WRITTEN STATEMENT (EXH. "F")
WHICH IS INADMISSIBLE IN EVIDENCE.
III
THE TRIAL COURT ERRED IN APPRECIATING THE
QUALIFYING CIRCUMSTANCES OF TREACHERY AND
EVIDENT PRE-MEDITATION [Rollo, p. 38.]
The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto
Guzman, Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr.
Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness
presented for the defense. The prosecution's version of the facts are as follows:
xxx xxx xxx
At about 5:00 o'clock in the afternoon of December 11, 1981, at
San Bartolome, Novaliches, Quezon City, Ernesto Guzman saw
appellant Nerio Gaddi and the victim Augusto Esguerra drinking
gin. In the morning of the following day, December 12, 1981,
appellant told Ernesto Guzman that he killed his drinking partner
Augusto Esguerra and dumped his body in a toilet pit. Guzman
advised appellant to surrender to the police. After work, Guzman
went to the police and reported what appellant told him (pp. 2-3.
tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983).
At around 2:00 o'clock in the afternoon of the same day,
December 12, 1981, Corporal Rogelio Castillo and Detective
Rodrigo Salamat arrested appellant at Manrey Subdivision,
Novaliches, Quezon City. Appellant told Corporal Castillo that he
killed the victim and where he buried the body. Later, Pat. Jesus
Patriarca arrived. Appellant himself led the policeman and
Barangay residents to where the body was in a toilet pit in the
backyard of Ernesto Guzman. The policeman, with the help of the
 Barangay residents, dug out the body. The body of the victim was
Identified by Ernesto Guzman, his wife, and Jose Esguerra,
victim's brother. Pat. Patriarca took pictures of the body (Exhibits C
to C-5), noted the statements of Ernesto Guzman and Jose
Esguerra, (Exhibit D), and took down the confession of appellant
(Exhibit F). Later, the cadaver was subjected to autopsy (pp. 3-13,
tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984).
A man's T-shirt with collar, colored yellow, red and blue, and red
shorts, were recovered from the pit where the body of the victim
was dug out. The T-shirt and shorts were Identified by Ernesto
Guzman as those worn by appellant while he was drinking with the
victim on December 11, 1981 (pp. 2-3, tsn, September 2, 1982). A
small table, rubber slipper, bottle of wine and glass were likewise
recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for
the Appellee, pp. 35; Rollo, p. 52.1
On the other hand, the defense's version of the facts are as follows:
Accused Nerio Gaddi a resident of Novaliches, Quezon City,
testified that on December 11, 1981, at around 2:00 to 5:00 p.m.,
he was drinking with Augusta Esguerra (Bong Kuleleng) near the
house of Ernesto Guzman. At about 5:00 p.m., be was requested
by Ernesto Guzman to buy gin. He left Ernesto Guzman and
Augusta Esguerra (who were allegedly drinking) in order to buy a
bottle of gin in a nearby store, about 200 meters away. At the
store, he met an acquaintance and they talked for a while before
returning. Upon his arrival at the place (where they had a drinking
spree) he noticed stain of blood in the place where they had been
drinking and Augusta Esguerra, alias Bong Kuleleng was not there
anymore. He inquired from Ernesto Guzman the whereabouts of
Augusta Esguerra and was told that the latter "went home
already". He then asked Guzman about the blood and was told
that it was the blood stain of a "butchered chicken." At about 12:00
o'clock midnight, Ernesto Guzman informed him about the killing of
Augusta Esguerra. Guzman narrated to him that Bong Kuleleng
(Augusta Esguerra) held his rooster by the neck and that his tattoo
mark BCJ (Batang City Jail) will be erased by him. He did not
report the killing to the authorities. Guzman likewise requested ban
to admit the killing but he refused. While in the house, Guzman
filed the case ahead. He was later arrested and investigated while
looking for the corpse. When brought to the police station, he was
forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14
August 20, 1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.]
The Court finds the instant appeal unmeritorious.
Where the conviction of an accused is based merely on circumstantial evidence, as in
this case, it is essential for the validity of such conviction that: 1) there be more than
one circumstance; 2) the facts from which the inferences are derived are proven; and
3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court, People v.
Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v.
Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general
rule has been formulated as to the quantity of circumstantial evidence which will
suffice for any case, yet all that is required is that the circumstances proved must be
consistent with each other, consistent with the hypothesis that the accused is guilty
and at the same time inconsistent with any other hypothesis except that of guilty
[People v. Constante, G.R. No. L-14639, December 28, 1964, 12 SCRA 653; People
v. Caneda, G.R. No. L-19132, September 26, 1964, 12 SCRA 9.]
In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently
satisfies the quantum of proof necessary to uphold a judgment of conviction. The
following circumstances proven by the prosecution indubitably point to the accused as
the perpetrator of the crime committed against Augusto Esguerra.
1. The fact that said victim was last seen on the day he was killed
in the company of the accused, drinking gin at the back of the
house of Ernesto Guzman [TSN, August 9,1983, p. 1.]
2. The fact that on the day after the drinking spree, December 12,
1981, the accused himself admitted to Ernesto Guzman that he
stabbed his drinking companion and that the latter was
'nadisgrasya niya" so he dumped the body of the victim in a hole
being dug out for a toilet, located at the yard of Ernesto Guzman
[TSN, August 9,1983, p. 7.]
3. The fact that when he was turned over to Pat. Arturo Angeles
and Pat. Rogelio Castillo of the Northern Police District by the
barangay people who apprehended him, be admitted the truth of
the charge of the barangay residents that he killed someone and
that he dumped the body of the victim in a place being dug out as
an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24,
1983, p. 8.] At the time the barangay people started digging for the
body of the victim, the appellant was even instructing them as to
the exact location where the body was buried [TSN, August 24,
1983, p. 6.]
4. The fact that the place where be led the police officers and the
barangay residents, i.e. the toilet pit in the backyard of Ernesto
Guzman, was indeed the site where he buried the victim as the
body of the victim was found there after the digging [TSN, January
3, 1984, p. 5.]
5. The fact that the T-shirt and shorts which the accused was
wearing during the drinking spree were later recovered from the
place where the victim was buried [TSN, September 2, 1982, p. 3.]
Appellant however disputes the trial court's reliance on the testimonies of the
prosecution witnesses as a basis for his conviction. As a rule, the trial court's
assessment of the credibility of the prosecution witnesses is entitled to great weight
and respect [People v. Valentino, G.R. Nos. L-49859- 60, February 20, 1986, 141
SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145
SCRA 464] since it has the advantage of observing the demeanor of a witness while
on the witness stand and therefore can discern if such witness is telling the truth or
not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.]
Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession
of the crime to him cannot be given credence for being hearsay is unavailing. This
Tribunal bad previously declared that a confession constitutes evidence of high order
since it is supported by the strong presumption that no person of normal mind would
deliberately and knowingly confess to a crime unless prompted by truth and his
conscience [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v.
Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof that a person
confessed to the commission of a crime can be presented in evidence without
violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which
only prohibits a witness from testifying as to those facts which he merely learned from
other persons but not as to those facts which he "knows of his own knowledge: that is,
which are derived from his own perception." Hence, while the testimony of a witness
regarding the statement made by another person, if intended to establish the truth of
the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the
purpose of placing the statement in the record is merely to establish the fact that the
statement was made or the tenor of such statement [People v. Cusi Jr., G.R. No. L-
20986, August 14, 1965, 14 SCRA 944.]Here, when Guzman testified that the
appellant, who probably was bothered by his conscience, admitted the killing to him,
there was no violation of the hearsay rule as Guzman was testifying to a fact which he
knows of his own personal knowledge; that is, be was testifying to the fact that the
appellant told him that he stabbed Augusta Esguerra and not to the truth of the
appellant's statement.
That the testimony of Guzman on appellant's oral confession is competent evidence
finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 4311
which upheld the trial court's reliance on an extrajudicial confession given, not to a
police officer during custodial interrogation, but to an ordinary farmer as the basis for
conviction. The Court's pronouncements in the aforesaid case find relevance in the
instant case:
The declaration of an accused expressly acknowledging his guilt of
the offense charged, may be given in evidence against him' (Sec.
29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a
sense be also regarded as part of the res gestae.
The Rule is that "any person, otherwise competent as a witness,
who heard the confession, is competent to testify as to the
substance of what he heard if he heard and understood all of it. An
oral confession need not be repeated verbatim, but in such case it
must be given in its substance." (23 C.J.S. 196.)
Proof of the contents of an oral extrajudicial confession may be
made by the testimony of a person who testifies that he was
present, heard, understood, and remembers the substance of the
conversation or statement made by the accused [citing Underhill's
Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) [at pp. 436-
437; Emphasis supplied.]
The trial court found no reason to doubt Guzman's credibility as a witness considering
his stature in the community as a member of a religious movement participating in
such activities as "mañanita" and procession of the Fatima and Black Rosary [Rollo,
p. 30.] In fact, on the day the killing took place, he left his house where appellant and
his companion, Esguerra were still drinking and went to the house of Junior Isla to
attend a "mañanita" and participate in the weekly activity of bringing down the crucifix
and the image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no
showing at all that he was actuated by improper motives in testifying against appellant
so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699,
September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even
though the appellant is not related at all to Guzman, the latter, as an act of generosity,
allowed the former to sleep in the porch of his house as the former had no immediate
relatives in Quezon City [TSN, August 9, 1983, p. 14.]
As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who
apprehended the appellant, credence should be given to their narration of how the
appellant was apprehended and how he led the police and the barangay residents to
the place where he dumped the body of his victim since those police officers are
presumed to have performed their duties in a regular manner in the absence of
evidence to the contrary [People v. Boholst, G.R. No. L-73008, July 23, 1987, 152
SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA
642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271;
People v. Rosas, G.R. No. L-72782, April 30 1987, 149 SCRA 464.]
Appellant's defense to the prosecution's charge rests on an uncorroborated and
purely oral evidence of alibi. It has been ruled time and again that courts look upon
the evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and
always receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de
Guzman, 70 Phil. 23 (1940)] not only because it is inherently weak and unreliable but
also because of its easy fabrication [People v. Rafallo, 86 Phil. 22 (1950).] To
overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear
and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil,
587 (1915); U.S. v. Olais, 36 Phil 828 (1917).] This test requires not only proof that
the accused was somewhere else other than the scene of the crime but clear and
convincing proof of physical impossibility for the accused to have been at the place of
the commission of the crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984.
130 SCRA 540; People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA
250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA 113.]
The testimony of the accused himself believes any claim of physical impossibility for
him to be at the scene of the crime since according to him, the store where he
allegedly bought another bottle of gin was only 200 meters away. He was able to
return to Guzman's house only after half an hour since he still had a chat with an
acquaintance at the store. Even granting the truth of appellant's story that he was
ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in the afternoon and
that he was back after thirty minutes, it was not impossible for him to have committed
the crime since Guzman and his wife left appellant alone with the victim at around
6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus,
his statements on the witness stand, far from demonstrating physical impossibility of
being at the scene of the crime, cast serious doubt on the veracity of his alibi.
As the culpability of the accused has been established beyond reasonable doubt by
the evidence of the prosecution, there is no need to dwell on the admissibility of
appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction
can be sustained independently of said confession.
However, in the absence of proof as to how the victim was killed, the aggravating
circumstances of treachery and evident premeditation cannot be properly appreciated.
The killing must be considered as homicide only and not murder since the
circumstance qualifying the killing must be proven as indubitably as the killing itself
[People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This
Tribunal clearly pointed out in a previous case that
Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only
to the indemnity of P 30,000.00. Hence, the amount of P50,000.00 awarded by the
trial court should be reduced accordingly.
WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is
hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced
to suffer the indeterminate penalty of eight (8) years and one (1) day of prision
mayor as minimum, to seventeen (17) years and four (4) months of reclusion
temporal as maximum, and to indemnify the heirs of Augusto Esguerra in the amount
of P 30,000.00.

As heretofore stated, not a single eyewitness to the stabbing

incident had been presented by the prosecution. Thus, the record
is totally bereft of any evidence as to the means or method
resorted to by appellant in attacking the victim. It is needless to
add that treachery cannot be deduced from mere presumption,
much less from sheer speculation. The same degree of proof to
dispel reasonable doubt is required before any conclusion may be
reached respecting the attendance of alevosia [People v. Duero,
G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520;
Emphasis supplied. ]

Neither can the aggravating circumstance of evident premeditation be considered,

absent a clear showing of

1. the time when the of tender determined to commit the crime;

2. an act manifestly indicating that the culprit clung to his dead

termination; and

3. a sufficient laspe of time between the determination and the

execution to allow him to reflect upon the consequences of his act
[People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA
468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986,
142 SCRA 427.]

As the evidence on record does not disclose the existence of treachery and evident
premeditation in the stabbing of the victim, the crime committed is only HOMICIDE
and not murder, Since there are neither mitigating nor aggravating circumstances, the
penalty for homicide which is reclusion temporal should be imposed in its medium
period. Applying the Indeterminate Sentence Law, the range of the imposable penalty
is from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen
(17) years and four (4) months of reclusion temporal, as maximum.
G.R. No. L-25966 December 28, 1979
FERMIN A. BAGADIONG, petitioner,
vs.
HON. FELICIANO S. GONZALES, Judge of the Court of First Instance of
Catanduanes, CLEMENTE ABUNDO, RAFAEL VILLANLUNA and FRANCISCO A.
PERFECTO, respondents.
DE CASTRO, J.:
This is a special civil action for certiorari instituted on April 27, 1966 by the petitioner
to annul the order 1 dated April 18, 1966 of respondent Judge of the Court of First
Instance of Catanduanes in Civil Case No. 546, entitled "Clemente Abundo and
Rafael Villaluna, plaintiffs, versus Jorge V. Almojuela, Dominador Monjardin, Fermin
A. Bagadiong and Armando Ala, defendants, Francisco A. Perfecto, intervenor."
Alleged as ground for the petition is that the order was issued with grave abuse of
discretion, amounting to lack of jurisdiction.
The facts are as follows:
On January 12, 1966, the herein plaintiffs-respondents filed a aforementioned Civil
Case No. 546 for prohibition with preliminary prohibitory and mandatory injunction
with the Court of First Instance of Catanduanes against defendants Jorge V.
Almojuela, Dominador Monjardin, Fermin A. Bagadiong (the herein petitioner) and
Armando Ala who are the Governor, Vice Governor, Provincial Treasurer and
Provincial Auditor of the Province of Catanduanes, respectively. In the said petition, it
is alleged that defendants, including the herein petitioner, are authorizing, approving
and effecting the disbursements of public funds of the province for purposes stated in
the alleged annual Provincial Budget of the Province for the Fiscal Year 1965-1966
purporting on its face to have been approved by the Provincial Board on August 23,
1965 under Resolution No. 62-A; that the aforesaid budget is falsified document
because the Provincial Board never approved the same, the alleged Provincial Board
Resolution No. 62-A which is claimed to have approved the said Budget does not
exist; that upon discovery of the anomaly, plaintiffs Clemente Abundo and Rafael
Villaluna made representations with the Secretary of Finance on November 17, 1965,
to have the alleged Board Resolution No. 62-A approving the budget, considered null
and void because the said plaintiffs never took part in the deliberation approving the
said Resolution; that for the defendants to continue making disbursements of public
funds under the falsified budget, the people and the government of the Province of
Catanduanes will suffer irreparable damage and injury from which there is no other
plain, speedy and adequate remedy in the ordinary course of law except the instant
petition. Plaintiffs pray that pending resolution of the petition on the merits, a
preliminary injunction be issued restraining the defendants from authorizing,
approving and effecting the disbursements of public funds on the basis of the said
budget. 2
On January 14, 1966, a writ of preliminary injunction was issued by the respondent
Judge against the defendants commanding them to desist from authorizing and
making any further disbursements of funds from the budget in question. On January
17, 1966, the defendants filed a motion for reconsideration and to dissolve the writ of
preliminary injunction. 3 A complaint in intervention 4 was filed on January 21, 1966 by
herein respondent Francisco A. Perfecto praying, among others, that the annual
budget of the Province of Catanduanes for the fiscal year 1965-1966 be declared null
and void ab initio, the same being falsification that all original parties to the case be
ordered to refund the province all moneys purportedly appropriated under the falsified
budget and disbursed and collected by them, respectively; and that all the said
original parties be condemned, jointly and severally, to pay the Province of
Catanduanes an amount equal to all disbursements under the falsified budget, by way
of exemplary damages.
On January 31, 1966, the respondent judge denied the motion to vacate and lift the
writ of preliminary injunction in an order 5 dated January 31, 1966.
When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for
plaintiffs called one of the defendants, the herein petitioner, Fermin A. Bagadiong, to
the witness stand as one of the witnesses for the plaintiffs. Counsel for the defendants
raised the objection that the said party cannot be called as a witness for the plaintiffs
because it would violate his constitutional right against self-incrimination. On the other
hand, counsel for the plaintiffs contended that this being purely a civil action, the right
against self-incrimination is not involved, and if any testimony elicited from the herein
petitioner would tend to incriminate himself, there would be ample time for the herein
petitioner to raise the proper objection.
The respondent Judge in his order 6 held that the position taken by the counsel for the
plaintiffs is legally correct, thereby, ruling that the petitioner may testify as a witness
for the plaintiffs.
After a verbal motion to reconsider the aforesaid order was denied by the respondent
Judge, the herein petitioner filed with this Court the instant petition, claiming as earlier
stated, that the respondent Judge acted in excess of his jurisdiction and/or with grave
abuse of discretion in allowing the herein petitioner to testify for the respondents in
Civil Case No. 546, and that there is no appeal, nor any plain, speedy and adequate
remedy in the ordinary course of law.
After the respondents have filed their answer to the instant petition, as required by this
Court, both parties submitted their respective memoranda in lieu of oral argument,
after which the case was considered submitted for decision.
The principal issue raised in the instant case is whether or not respondent Judge
acted in excess of his jurisdiction and with grave abuse of discretion in allowing the
herein petitioner to testify as a witness for the herein respondents, despite his claim of
violating his right against self-incrimination.
The petitioner contends that the provision of the Rules of Court which authorizes a
party to call the adverse party to the witness stand applies only to purely civil actions
where the defendant does not run the risk of being prosecuted for any offense.
Likewise, the petitioner assets that the right against self-incrimination can only be
claimed when the incriminatory question is being propounded and not before, by a
mere witness, but not by a party defendant, as in the case at bar. We find no merit to
these contentions.
There is no legal impediment for a party to call any of the adverse parties to be his
witness, as clearly provided in Section 6, Rule 132 of the Rules of Court which
expressly provides:
A party may interrogate any unwilling or hostile witness by leading
questions. A party may call on adverse party or an officer, director,
or managing agent of a public or private corporation or of a
partnership or association which is an adverse party, and
interrogate him by leading questions and contradict and impeach
him in all respects as if he had been called by the adverse party,
and the witness thus called may be contradicted and impeached
by or on behalf of the adverse party also, and may be cross-
examined by the adverse party only upon the subject-matter of his
examination in chief.
It is in a criminal case, when the accused may not be compelled to testify, or to so
much as utter a word, even for his own defense. 7 But while the constitutional
guaranty against self-incrimination protects a person in all types of cases, be they
criminal, civil or administrative, 8 said privilege, in proceedings other than a criminal
case against him who invokes it, is considered an option to refuse to answer
incriminating question, and not a prohibition of inquiry.
before a question is asked, there would be no way of telling whether the information to
be elicited from the witness is self-incriminating or not. Moreover, the herein petitioner
was being directed to take the stand, not in a criminal case where he is an accused
but in civil action. This is expressly permitted by Section 6, Rule 132 of the Rules of
Court which authorizes a party to call any adverse party as his witness.
In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated:
Here, petitioner invoked the privilege even prior to any question,
and simply declined to take the witness stand. Note that in the
Gonzales case, above-cited, the adverse party was directed to
take the witness stand in proceedings to investigate an alleged
failure to pay overtime compensation, which, under corresponding
special laws, carries a penal sanction. Here, petitioner was being
directed to take the stand, not in a criminal case where he is an
accused, but in an independent civil action which, although arising
from the same facts involved in a criminal case pending before the
same court, is still be regarded by law as an "entirely separate and
distinct" action, governed by a corresponding different set of rules
(Civil Code of the Phil., Art. 2177).
The almost exact similarity of the instant case and the case just cited leaves no room
for doubt, and there is complete justification therefore that the same ruling must be
applied here.

As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al:9 WHEREFORE, the instant petition to prohibit the respondent judge from directing
petitioner to take the witness stand and testify is denied, without prejudice to
Except in criminal cases, there in no rule prohibiting a party litigant petitioner's properly invoking the guaranty against self-incrimination when questions
form utilizing his adversary as a witness. As a matter of fact, are propounded to him on the stand. Costs against the petitioner.
Section 83 of Rule 123, Rules of Court, expressly authorizes a
party to call an adverse party to the witness stand and interrogate SO ORDERED.
him. This rule is, of course, subject to the constitutional injunction
not to compel any person to testify against himself. But it is
established that the privilege against self-incrimination must be
invoked at the proper time, and the proper time to invoke it is when
a question calling for a criminating answer is propounded. This has
to be so, because before a question is asked there would be no
way of telling whether the information to be elicited from the
witness is self-incriminating or not. As stated in Jones on Evidence
(Vol. 6, pp. 4926-4927), a person who has been summoned to
testify "cannot decline to appear, nor can he decline to be sworn
as a witness" and "no claim of privilege can be made until a
question calling for a criminating answer is asked; at that time, and
generally speaking, at that time only, the claim of privilege may
properly be imposed." (Emphasis supplied).

In the instant case, petitioner invoked the privilege even prior to any question being
propounded, and simply declined to take the witness stand. In the above-cited
Gonzales case, it will be noted that the privilege against self-incrimination must be
invoked when a question calling for an incriminating answer is propounded, because
Prec. Rec. No. 714-A July 26, 1937
MARIA BERMUDEZ, complainant,
vs.
LEODEGARIO D. CASTILLO, respondent.
G. Viola Fernando for complainant.
Office of the Solicitor-General hilado for the Government.
The respondent in his own behalf.
DIAZ, J.:
In the course of the investigation which was being conducted by the office of the
Solicitor-General against the respondent, in connection with this administrative case,
said respondent filed, in addition to other evidence in support of this defense, the six
letters which, for purposes of identification, were marked as Exhibits 32, 34, 35, 36
and 37. He then contended, as he now continues to contend, that said six letters are
the complainant's, but the latter denied it while she was testifying as a witness in
rebuttal. she admitted, however, that the letters marked as Exhibits 38, 39 and 40
were in her own handwriting.
As the respondent believed that the three letters admitted by the complainant to be
hers were insufficient for purposes of comparison with those questioned in this case
and as he was determined to show that said Exhibits 38, 39 and 40 were the
complainant's, he required her to copy them in her own handwriting in the presence of
the investigator. The complainant, upon advice of her attorney, refused to submit to
the trial to which it was desired to subject her, invoking her right not to incriminate
herself and alleging that Exhibits 38, 39 and 40 and the other letters already in the
respondent's possession, were more than sufficient for what he proposed to do. The
investigator, upholding the complainant, did not compel her to submit to the trial
required, thereby denying the respondent's petition. As respondent did not agree to
this decision of the investigator, he instituted these proceedings praying that the
investigator and the Solicitor-General in whose representation he acted, be ordered to
require and compel the complainant to furnish new specimens of her handwriting by
copying said Exhibits 32 to 37 for that purpose.
The question raised before this court is not new. In the case of Beltran vs. Samson
and Jose ([1929], 53 Phil., 570), a similar question was raised before this court. The
respondents therein desired to compel the petitioner to write by hand what was then
dictated to him. The petitioner, invoking the constitutional provision contained in
section 3, paragraph 3, of the Jones Law which reads: ". . . nor shall be compelled in
any criminal case to witness against himself", refused to write and instituted
prohibition proceedings against the therein respondents. This court granted the
petition and ordered the respondents to desist and abstain absolutely from compelling
the petitioner to take down dictation by hand for the purpose of comparing his
handwriting. The reasons then adduced therein can and must be adduced in this case
to decide the same question; and all the more so because Article III, section 1, No.
18, of the Constitution of the Philippines is worded in such a way that the protection
referred to therein extends to all cases, be they criminal, civil or administrative. The
constitution provides: "No person shall be compelled to be a witness against himself."
It should be noted that before it was attempted to require the complainant to copy the
six documents above-stated, she had sworn to tell the truth before the investigator
authorized to receive statements under oath, and under said oath she asserted that
the documents in question had not been written by her. Were she compelled to write
and were it proven by means of what she might write later that said documents had
really been written by her, it would be impossible for her to evade prosecution for
perjury, inasmuch as it would be warranted by article 183 of the Revised Penal Code,
which reads:
The penalty of arresto mayor in its maximum period to prision correccional in
its minimum period shall be imposed upon any person who, knowingly
making untruthful statements and not being included in the provisions of the
next preceding articles, shall testify under oath, or make an affidavit, upon
any material matter before a competent person authorized to administer an
oath in cases in which the law so requires.
Any person who, in case of a solemn affirmation made a lieu of an oath shall
commit any of the falsehoods mentioned in this and the preceding articles of
this section, shall suffer the respective penalties provided therein.
The respondent invokes in his support the doctrine laid sown in Ex Parte Crow (14
Pac. [2d series], 918), to the effect that ". . . a witness may not arbitrarily refuse to
answer a question on the ground that his answer might incriminate him when the
court can determine as a matter of law that 'no direct answer which the witness may
make can tend to criminate him.'" It must be taken into account that the question
asked the petitioner in said case, as stated by the prosecuting attorney, was only a
preliminary question, as it was simply attempted to learn from her who was with her
on a certain occasion, and on what date, to the best of her recollection, had she
visited Dr. Groose. She refused to answer said questions alleging that her answer
might incriminate her. The court upheld her saying:
We are therefore of the opinion that the trial court erred when it determined
as a matter of law that petitioners answer to the questions propounded could
have no tendency to incriminate her. They clearly might have such
tendency, and it was petitioners right and privilege to decline to answer any
of the above-mentioned questions upon the ground stated. We fully realize
the difficulty encountered in the prosecution of cases under section 274 of
the Penal Code when those present and capable of establishing the facts
are unwilling to testify because of fear of subjecting themselves to
prosecution. But the constitutional and statutory guaranties accorded to
petitioner cannot be swept aside merely because they may result in making
difficult, or even impossible, the conviction of the accused.
The respondent likewise invokes in his support doctrine laid down in re Mackenzie
(100 Vt. Rep., 325). This court is of the opinion that what had been said in the above-
cited case is not applicable to the case under consideration. The petitioner
Mackenzie, upon being required after he had pleaded guilty of intoxication to disclose
the person or persons who had furnished him the liquor, said that they were stranger
to him, whom he met late in the evening in Barre. The court, considering his alleged
disclosure unsatisfactory, ordered him committed to jail until he should tell the truth or
until further orders. He instituted habeas corpus proceedings in his favor alleging in
his pleading that as he had already made a truthful disclosure, the result of his
commitment would be to compel him to deny his former statements and make others
which would make him guilty of perjury. The court, deciding the question, said:
The privilege against self-crimination is a personal one. . . . But the privilege
is an option of refusal, not a prohibition of inquiry. Hence, when an ordinary
witness is on the stand, and self-criminating act relevant to the issue is
desired to be shown by him, the question may be asked, and then it is for
the witness to say whether he will answer it or claim its privilege, for it
cannot be known beforehand what he will do.
It further state that "the proper place in which to claim the privilege is in the trial court,
when the question is propounded, not here." This is exactly the case of the herein
complainant. She opportunely invoked the privilege when it was desired to subject her
to trial by copying the six letters in question, which Mackenzie failed to do.
It is true that in said case of Mackenzie, it was likewise stated that "No reason
appears why the examination on disclosure should not be subject to the ordinary rule
of cross-examination. The person making the disclosure is in the petition of a witness
called by the State, and is subject to the rule permitting the impeachment of such a
witness. It is no invasion of the constitutional guaranty against self-crimination to
compel the witness to answer questions relating to the truthfulness of his previous
testimony." This court, however, is of the opinion that the foregoing is not applicable to
the case of the herein complainant, firstly, because she has made no disclosure; she
confined herself to denying the letters in question were hers when the respondent,
appressing in court with them, said rather than insinuated, that they were hers,
presenting in support of his statement, other letters which, by reason of the
handwriting, were to all appearances similar thereto; and secondly, because her
testimony, denying that she was the author of the letters in question, may be attacked
by means of other evidence in the possession of the respondent, which is not
precisely that coming from the complaint herself.
The reason for the privilege appears evident. The purpose thereof is positively to
avoid and prohibit thereby the repetition and recurrence of the certainly inhuman
procedure of compelling a person, in a criminal or any other case, to furnish the
missing evidence necessary for his conviction. If such is its purpose, then the
evidence must be sought elsewhere; and if it is desired to discover evidence in the
person himself, then he must be promised and assured at least absolute immunity by
one authorized to do so legally, or he should be asked, one for all, to furnish such
evidence voluntarily without any condition. This court is the opinion that in order that
the constitutional provision under consideration may prove to be a real protection and
not a dead letter, it must be given a liberal and broad interpretation favorable to the
person invoking it.
In view of the foregoing consideration and holding, as it is hereby held, that the
complainant is perfectly entitled to the privilege invoked by her, the respondent's
petition is denied. So ordered.
Avanceña, C.J., Villa-Real, Imperial and Concepcion, JJ., concur.
Separate Opinions
LAUREL, J., concurring:
I concur in the majority opinion in this case.
The principle expressed in the legal maxim Nemo tenetur seipsum accusare has a
historical background too long to narrate. Suffice it to say that the principle which later
found expression in constitutional charter was aimed at the unjust inquisitorial
practices which prevailed in Continental Europe, and even in England and in the
American colonies in the early days. (See U. S. vs. Navarro, 3 Phil., 143, 152;
Villaflor vs. Summers, 41 Phil., 62; Brown vs.Walker, 161 U. S., 591; 16 S. Ct., 644;
40 Law. ed., 821.)
The privilege against self-incrimination is guaranteed in the Fifth Amendment to the
federal constitutional and in the great majority of the state constitutions of the United
State. In the Philippine, the same principle obtains as a direct result of American
influence. At first, the provision in our organic laws was similar to that found in the
Fifth Amendment to the Constitution of the United States and was as follows: "That no
person shall . . . be compelled in any criminal case to be a witness against himself."
(President's Instructions to the Philippine Commission; Philippine Bill of July 1, 1902,
sec. 5, par. 3; Jones Law, Act of Congress of August 29, 1916, sec. 3, par. 3.)
Although the provision makes reference only to criminal cases, the privilege has
consistently been held to extend to all proceedings sanctioned by law and to all cases
in which punishment is sought to be visited upon a witness, whether a party or not (70
C. J., sec. 875, p. 722). Prof. Wigmore states these principles clearly in his valuable
work on Evidence (vol. IV, sec. 2252, pp. 834, 835), in the following language:
This variety of phrasing, then, neither enlarges nor narrows the scope of the
privilege as already accepted, understood, and judicially developed in the
common law. The detailed rules are to be determined by the logical
requirements of the principle, regardless of the particular word, of a
particular constitution. This doctrine which has universal judicial acceptance,
leads to several important consequences: (a) A clause exempting a person
from being "a witness against himself" protects as well a witness as a party
accused in the cause; that is, it is immaterial whether the prosecution is then
and there "against himself" or not. So also a clause exempting "the
accused" protects equally a mere witness.
(b) A clause exempting from self-criminating testimony "in criminal cases"
protects equally in civil cases, when the fact asked for is a criminal one.
(c) The protection, under all clauses, extends to all manner of
proceedings in which testimony is to be taken, whether litigious or not, and
whether "ex parte" or otherwise. It therefore applies in all kinds of courts . . .
 in all methods of interrogation before a court, . . . and in investigations by a
legislature or a body having legislative functions.
When the Constitution of the Philippines was drafted, the phraseology in the previous
organic acts was altered by omitting the phrase "in any criminal case" to make the
letter conform with the evident spirit of the provision. The Constitution provides that
"No person shall be compelled to be a witness against himself." (Article III, sec. 1.
subsec. 18.) Similar provisions are to be found in our statutes (G. R. No. 58, sec. 15,
subsec. 4; Act No. 194 as amended, sec. 2; Act No. 2711, secs. 1687 and 2465; Act
No. 3108, sec. 26).
This court has had occasion to rule that the constitutional provision relates solely to
testimonial compulsion (U. S.vs. Tan Teng, 23 Phil, 145, U. S. vs. Salas. 25 Phil., 337
U. S. vs. Ong Siu Hong, 36 Phil., 735; Villaflor vs.Summers, 41 Phil., 62). In the case
of Beltran vs. Samson and Jose (53 Phil., 570, cited in 70 C. J., sec. 887, p. 727),
however, this court enlarged the application of the provisions by holding of his person
may not be compelled to produce specimens of his handwriting for purposes of
confrontation with certain documents supposed to have been falsified by him. It was
there said that "writing is something more than moving the body, or hand, or the
fingers; writing is not a purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that the petitioner
herein is to furnish a means to determine whether or not he is the falsifier, as the
petition of the respondent fiscal clearly states. (Pages 576, 577.)
It must be admitted that the case before us is one indifferences of opinion may,
reasonably be expected; and in other jurisdictions conflict of opinion is clearly
noticeable. In some jurisdictions it is ruled that a person who denies during his
examination in chief the authenticity of handwriting purporting to be his may be asked
to write specimens of his handwriting for the purposes of comparison, while in other
jurisdictions and under practically the same circumstances, a directly opposite view is
reached. The reason for this is not far to seek. One vainly looks at the naked text of
the constitutional provision for unalterable rules applicable in particular cases. Courts
have to deal with cases as they arise and while agreeing on the principle they do not
and can not unite on the application. But I vote to sustain the objection of the witness
for the following reasons:
(1) As between two possible and equally rational constructions, that should
prevail which is more in consonance with the purpose intended to be carried
out by the Constitution. The provision, as doubtless it was designed, should
be construed with the utmost liberality in or of the right of the individual
intended to be secured. (Boyd vs. United States, 116 U. S., 616; 6 S. Ct.,
524; 29 Law. ed., 746; Counselman vs. Hitchcock, 142 U. S., 562; 12 S. Ct.,
195;35 Law. ed., 1110; Brown vs. Walker, 161 U. S., 596; 16 S. Ct., 644; 40
Law. ed., 819 Interstate Commerce Commission vs. Baird, 194 U. S., 45; 5
S. Gt., 563; 48 Law. ed., 860; Gouled vs. United States, 255 U. S., 298; 41
S. Ct., 261;65 Law. ed., 647; In re Machman, 114 Fed., 995; U.
S. vs.Wetmore, 218 Fed., 227; People vs. Hackley, 24 N. Y., 74; 24 How.
Pr., 369, 372 [Off. 12 Abb. Pr., 150; 21 How. Pr., 54]; People vs. Cassidy,
213 N. Y., 388, 107 N. E., 713; Ann. Cas. [1916C], 1009; People vs. Forbes
38 N. E., 303; 143 N. Y., 219; People vs. Spain, 138 N. E., 614; 307 Ill., 283;
People vs. Newmark, 144 N. E., 388; 312 Ill, 625; Gillespie vs. State, 5 Okla.
Crim., 546; 115 Pac., 620; Ann. Cas. [1912D], 259; 35 L. R. A. [N. S.], 1171;
Ward vs. State, 228 Pac., 498; 27 Okla. Crim., 362; Thornton vs. State, 117
Wis., 338; 93 N. W., 1107; 98 A. S. R., 924; People vs. Danziger, 213 N. W.,
448; 238 Mich., 39; 52 A. L. R., 136; Underwood vs.State, 78 S. E., 1103; 13
Ga. App., 206.) Justice Bradley of the Supreme Court of the United States
once said that "illegitimate and unconstitutional practices get their first
footing by silent approaches and slight deviations from legal modes of
procedure. This can only be obviated by adhering to the rule that
constitutional provisions for the security of person and property should be
liberally construed. A close and literal construction deprives them of half
their efficacy and leads to gradual depreciation of the right, as if it consisted
more in sound than in substance. It is the duty of courts to be watchful for
the constitutional rights of the citizen, and against any stealthy
encroachments thereon. Their motto should be obsta principiis."
(Boyd vs. United States, supra.) An equally liberal interpretation should be
given to similar provisions found in our statutes. (People vs. Forbes supra.)
(2) I am averse to the enlargement of the rule allegedly calculated to gauge
more fully the credibility of a witness if the witness would thereby be forced
to punish the means for his own destruction. Unless the evidence is
voluntarily given, the policy of the constitutional is one of protection on
humanitarian considerations and grounds of public policy (see U.
S. vs. Navarro, 3 Phil., 143). This is not saying that the constitutional
privilege was intended to shield the witness from the personal disgrace or
opprobrium resulting from the exposure of crime. It was only intended to
prevent the disclosure of evidence that may tend to render the witness liable
to prosecution in a criminal case.(70 C. J., sec. 880, p. 729.)
(3) The privilege should not be disregarded merely because it often affords a
shelter to the guilty and may prevent the disclosure of wrongdoing. Courts
can not under the guise of protecting the public interest and furthering the
excrescence in the Constitution.
(4) It is true that the privilege afforded by the constitution is purely personal
to the witness and may be waived by him (U. S. vs. Cofradia, 4 Phil., 154; U.
S. vs. Rota, 9 Phil., 426; U. S. vs. Grant and Kennedy, 18 Phil., 122;U.
S. vs. Binayoh, 35 Phil., 23) either by a failure to claim the privilege on time
or by testifying without objection; and a witness who has waived the
privilege is not permitted to stop but must go on and make a full disclosure
of all matters material to the case (Fitzpatrick vs. United States, 178 U. S.,
304; 20 S. Ct., 944; 44 Law. ed., 1078: Reagan vs. United States, 157 U. S.,
301; 15 S. Ct., 610; 39 Law. ed., 709; Sawyer vs. United States, 202 U.S.,
150;26 S. Ct., 575: 50 Law. ed., 972, Powers vs. United States, 223 U.S.,
303; 32 S. Ct., 281; 56 Law. ed., 448). But in the case before us there has
not been a waiver. The privilege was invoked on time. The objection to the
question of respondent's counsel was raised upon the asking of the question
which would subject the witness to the danger of committing perjury. This
the witness had a right to do. (State vs.Blake, 25 Me., 350; Friess vs. New
York Cent., etc. R. Co., 22 N. Y. S., 104; 67 Hun., 205, aff. 55 N, E., 892;
140 N. Y., 639.)
 (5) It was not the complainant but the respondent who offered the letters
(Exhibits 32 to 37) in evidence. The complainant was presented in rebuttal
and she simply denied having written the letters. She should not be made to
furnish the other party evidence by which to destroy her own testimony
under circumstances which tend to incriminate her. She was not even
presented by the respondent as his own witness.
(6) There are already in evidence letters written by the complainant and
admitted by her to be genuine. The purpose then of respondent's counsel
can be attained without extracting from the witness herself evidence which
would subject her to punishment for a felony.
ABAD SANTOS, J., dissenting:
I am unable to concur in the opinion of the court in this case, because the doctrine it
lays down is, in my judgment, not only unsound but in conflict with the great weight of
competent authority on the subject. We are called upon to determine for the first time
the scope and application of an important provision of the Constitution and it goes
without saying that the matter requires careful consideration, since our decision is
bound to have a far-reaching effect.
The Constitution provides that "no person shall be compelled to be a witness against
himself." (Article 111, section 1, cl. 18.) This provision has been derived from that
clause of the Fifth Amendment to the Constitution of the United States which declares
that no person "shall be compelled in any criminal case to be a witness against
himself." While the omission of the words "in any criminal case" from the Philippine
version may seem important, the truth is that such a change in phraseology carries no
legal significance whatever, inasmuch as the Supreme Court of the United States had
construed the provision in the Federal Constitution to mean that the privilege against
self-incrimination is not confined to the accused; and that it is also available to
witnesses both in criminal and civil cases; and that it may invoked in court, before
legislative committees, grand juries, and other tribunals. (McCarthy vs.Arndstein, 266
U. S., 34; Law. ed., 158.)
The origin of this constitutional inhibition is related by the Supreme Court of the United
States as follows: "The maxim Nemo tenetur seipsum accusare had its origin in a
protest against the inquisitorial and manifestly unjust methods of interrogating
accused persons, which has long obtained in the continental system, and, until the
expulsion of the Stuarts from the British throne in 1688, and the erection of additional
barriers for the protection of the people against the exercise of arbitrary power, was
not uncommon even in England. While the admissions of confessions of the prisoner,
when voluntarily and freely made, have always ranked high in the scale of
incriminating evidence, if an accused person be asked to explain his apparent
connection with a crime under investigation, the ease with which the questions put to
him may assume an inquisitorial character, the temptation to press the witness
unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to
entrap him into fatal contradictions, which is so painfully evident in many of the earlier
state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give to a demand for its total abolition. The
change in the English criminal procedure in that particular seems to be founded upon
no statute and no judicial opinion, but upon a general and silent acquiescence of the
courts in a popular demand. But, however adopted, it has become firmly embedded in
English, as well as in American, jurisprudence. So deeply did the iniquities of the
ancient system impress themselves upon the minds of the American colonists that the
states, with one accord, made a denial of the right to question an accused person a
part of their fundamental law, so that a maxim which in England was a mere rule of
evidence became clothed in this country with he impregnability of a constitutional
enactment." (Brown vs. Walker, 161 U. S., 591, 597; 40 Law. ed., 821.)
While the courts have guarded the privilege with great care and liberally extended the
mantle of its protection in appropriate cases, they have at the same time insisted that
the constitutional provision embodying it "should be construed, as it was doubtless
designed, to effect a practical and beneficent purpose — not necessarily to protect
witnesses against every possible detriment which might happen to them from their
testimony, nor to unduly impede, hinder, or obstruct the administration of criminal
justice." (Brown vs. Walker, supra.) It has been held that the privilege against self-
incrimination, like any other privilege is one which may be waived. It may be waived
by voluntarily answering questions, or by voluntarily taking the stand, or by failure to
claim the privilege. (People vs.Nachowicz, 340 Ill., 480; 172 N. E., 812;
Salibo vs. United States, 46 Fed. [2], 790; United States vs. Murdock, 284 U. S., 141;
76 Law. ed., 210.) A party who voluntarily takes the stand in his own behalf, thereby
waiving his privilege, may be subjected to a cross-examination covering his
statement.
In Fitzpatrick vs. United States (178 U. S., 304; 44 Law. ed., 1078, 1083), the
Supreme Court of the United States said: "where an accused party waives his
constitutional privilege of silence, takes the stand in his own behalf and makes his
own statement, it is clear that the prosecution has a right to cross-examine upon such
statement with the same latitude as would be exercised in the case of an ordinary
witness, as to the circumstances connecting him with the alleged crime. While no
inference of guilt can be drawn from his refusal to avail himself of the privilege of
testifying, he has no right to set forth to the jury all the facts which tend in his favor
without laying himself open to a cross-examination upon those facts. The witness
having sworn to an alibi, it was perfectly competent for the government to cross-
examine him as to every fact which had a bearing upon his whereabouts upon the
night of the murder, and as to what he did and the persons with whom he associated
that night. Indeed, we know of no reason why an accused person who takes the stand
as a witness should not be subject to cross-examination as other witnesses are. Had
another witness been placed upon the stand by the defense, and sworn that he was
with the prisoner at Clancy's and Kennedy's that night, it would clearly have been
competent to ask what the prisoner wore, and whether the witness saw Corbett the
same night or the night before, and whether they were fellow occupants of the same
room."
It is well-settled that the right to cross-examine witnesses of the adverse party, being
absolute, should not be unduly restricted, especially when the witness is the opposite
party and is testifying to make out his own case. (70 C. J., 615.) And while there is
some conflict of authorities, the better view appears to be that when a witness has
denied what purports to be his handwriting, he may on cross-examination be called
upon to write in order that such writing may be compared with the disputed writing for
the purpose of contradicting him. (22 C. J., 785.)
The petitioner in this case having waived her privilege against self-incrimination by
voluntarily taking the stand and testifying, it was legitimate cross-examination to call
on her to write in order that such writing may be compared with the disputed writing
for the purpose of contradicting her, and the investigating officer erred in sustaining
her objection on the ground that she might incriminate herself.
G.R. No. L-41166 August 25, 1976
PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO
CERBO, petitioners,
vs.
HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and
GREGORIO OJOY respondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R.
Ramirez and Solicitor Mariano M. Martinez for petitioner People of the Philippines.
Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del
Rosario and Dionisio Cerbo.
Sixto P. Demaisip for private respondent.
ANTONIO, J.:p
Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of
respondent Judge, dated July 30, 1975, sustaining the procedure proposed by
defense counsel that, in lieu of the testimony of the witnesses for the accused on
direct examination in open court, he was filing their affidavits, subject to cross-
examination by the prosecution. Per Resolution dated August 22, 1975, this Court
issued a temporary restraining order enjoining the respondent Judge from enforcing
the questioned Order.
In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus
Gregorio Ojoy, accused", of the Court of First Instance of Iloilo, Branch III, after the
accused himself had testified in his defense, his counsel manifested that for his
subsequent witnesses he was filing only their affidavits subject to cross-examination
by the prosecution on matters stated in the affidavits and on all other matters pertinent
and material to the case. Private prosecutor Atty. Amelia K. del Rosario, one of the
petitioners here, objected to the proposed procedure but this notwithstanding,
respondent Judge gave his conformity thereto and subsequently issued the
questioned Order. Contending that respondent Judge gravely abused his discretion
because the aforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised
Rules of Court, which requires that the testimony of the witness should be given orally
in open court, and there is no appeal nor any plain, speedy and adequate remedy in
the ordinary course of law, petitioners instituted the present petition.
We grant the petition.
Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court
clearly require that the testimony of a witness shall be given orally in open court. The
afore-cited Sections 1 and 2 provide:
SECTION 1. Testimony to be given in open court. — The
testimony of witnesses shall be given orally in open court and
under oath or affirmation.
SEC. 2. Testimony in superior courts to be reduced to writing.- In
superior courts the testimony of each witness shall be taken in
shorthand or stenotype, the name, residence, and occupation of
the witness being stated, and all questions put to the witness and
his answers thereto being included. If a question put is objected to
and the objection is ruled on, the nature of the objection and the
ground on which it was sustained or overruled must be stated, or if
a witness declines to answer a question put, the fact and the
proceedings taken thereon shall be entered in the record. A
transcript of the record made by the official stenographer or
stenotypist and certified as correct by him shall be prima facie a
correct statement of such testimony and proceedings.
Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions,
respectively, of Sections 77 and 78 of Rule 123, of the Old Rules of Court. Section 77
in turn was taken from Section 381 of Act No. 190, 1 while Section 78 from Section 32
of General Order No. 58. 2
The main and essential purpose of requiring a witness to appear and testify orally at a
trial is to secure for the adverse party the opportunity of cross-examination. "The
opponent", according to an eminent authority, 3 demands confrontation, not for the
Idle purpose of gazing upon the witness, or of being gazed upon by him, but for the
purpose of cross-examination which cannot be had except by the direct and personal
putting of questions and obtaining immediate answers." There is also the advantage
to be obtained by the personal appearance of the witness before the judge, and it is
this it enables the judge as the trier of facts "to obtain the elusive and incommunicable
evidence of a witness deportment while testifying, and a certain subjective moral
effect is produced upon the witness. 4 It is only when the witness testifies orally that
the judge may have a true idea of his countenance, manner and expression, which
may confirm or detract from the weight of his testimony. 5 Certainly, the physical
condition of the witness will reveal his capacity for accurate observation and memory,
and his deportment and physiognomy will reveal clues to his character. These can
only be observed by the judge if the witness testifies orally in court. Indeed, the great
weight given the findings of fact of the trial judge in the appellate court is based upon
his having had just that opportunity and the assumption that he took advantage of it to
ascertain the credibility of the witnesses. This has been explained by Chief Justice
Appleton, thus:
The witness present, the promptless and unpremeditatedness of
his answers or the reverse, their distinctness and particularity or
the want of these essentials, their incorrectness in generals or
particulars, their directness or evasiveness are soon detected. ...
The appearance and manner, the voice, the gestures, the
readiness and promptness of the answers, the evasions, the
reluctance the silence, the contumacious silence, the
contradictions, the explanations, the intelligence or the want of
intelligence of the witness, the passions which more or less
 control-fear, love, have, envy, or revenge are all open to
observation, noted and weighed by jury. 6
Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining the superior
weight of evidence on the issues involved, the court, aside from the other factors
therein enumerated, may consider the "witness manner of testifying" which can only
be done if the witness gives his testimony orally in open court". If a trial judge
prepares his opinion immediately after the conclusion of the trial, with the evidence
and his impressions of the witnesses fresh in his mind, it is obvious that he is much
more likely to reach a correct result than if he simply reviews the evidence from a
typewritten transcript, without having had the opportunity to see, hear and observe the
actions and utterances of the witnesses.
There is an additional advantage to be obtained in requiring that the direct testimony
of the witness be given orally ill court. Rules governing the examination of witnesses
are intended to protect the rights of litigants and to secure orderly dispatch of the
business of the courts. Under the rules, only questions directed to the eliciting of
testimony which, under the general rules of evidence, is relevant to, and competent to
prove, the issue of the case, may be propounded to the witness. A witness in testify
only on those facts which he knows of his own knowledge. Thus, on direct
examination, leading questions are not allowed, except or, preliminary matters, or
when there is difficult in getting direct and intelligible answer from the witness who is
ignorant, a child of tender years, or feebleminded, or a deaf mute. 8 It is obvious that
such purpose may be subverted, and the orderly dispatch of the business of the
courts thwarted if trial judges are allowed, as in the case at bar, to adopt any
procedure in the presentation of evidence other than what is specifically authorized by
the Rules of Court.
WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted
and the order of respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is
hereby set aside, and the temporary restraining order issued on August 22, 1975 is
hereby made permanent, without any pronouncement as to costs.
Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.
Separate Opinions
BARREDO, J., concurring:
I concur, with the qualification herein set forth.
At the outset, I wish to make it clear that I find the innovative procedure sanctioned by
respondent judge to be in line with the progressive tendency characterizing the new
rules that have modified the system of preliminary investigation of criminal complaints
by fiscal's, where basically the determination of the existence or non-existence of
probable cause is now supposed to be made on the basis of mere affidavits and
counter-affidavits, as well as those now obtaining in practically all labor cases in the
offices in the Department of Labor which have been vested with exclusive jurisdiction
over the same pursuant to the policy of the government to dejudicialize them, And so,
if the subject case herein were only a civil case instead of being a criminal one and it
appearing that the counsel for the supposedly aggrieved partner the trial fiscal in this
instance, who, under the law, has supervision and control of the prosecution, not the
private prosecutor who alone filed the petition herein, and, at that, in her own name
instead of her client, the alleged offended party, 1 I would have voted to deny the
petition. Indeed, I do not see anything fundamentally wrong with the basic procedure
approved by His Honor of allowing the direct examination of a witness to be presented
in the form of a previously prepared affidavit, provided that the same s reaffirmed over
the oath of the affiant in open court when he testifies. But I am now voting to giant the
petition because the procedure questioned here is a little short of what I feel ought to
have been done, even on the phypothesis that We were dealing with a civil case.
While I Would consider it a substantial compliance with the requirement of Sections 1
and 2 of Rule 132 about the testimony of a witness being given in open court and that
the questions and answers be dully recorded by the stenographic notes that the direct
examination be in the form of an affirmation by the witness under oath of a ready
made affidavit, particularly when the adverse parts does not object, it is but in keeping
with better practice and more protective of the rights of the adverse party, to require
that the said affidavit be first pasturized or sanitized so as to limit the same only to
evidence that is material and competent. This preliminary step may be done either at
the Pre-trial Where the court may require all affidavits to be used for the purpose to be
submitted, or at a preliminary state of the trial proper before the witness takes the
Witness stand. Thus, the resulting direct testimony will not be polluted with
inadmissible evidence and the cross-examination will be confined to what is material
and competent. The only remaining possible objection then would be that the question
asking for affirmation would be leading and that the answer would be in narrative
form, but these are minor considerations. To start with, the affidavit may be made in
question and answer form. Secondly, I have always considered the objection to a
leading question as essentially relating to a mere matter of form, not of substance,
hence relatively unimportant. And as to answers in narrative form, the basic objection
thereto is that it may include irrelevant and incompetent testimony, (Francisco on
Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211) but if the
affidavit to be affirmed by a witness has already been purged of the objectionable
portions as above indicated the form of the answer should already be of no
consequence.
Undoubtedly this innovative procedure will advance greatly the march towards
simplification and speed in the conduct of trials. As against possible shortcomings
thereof in actual operation as above outlined, I am certain that the advantages to be
derived by adopting it far outweigh the bases of the objections thereto. Of course, it is
without saying that for this procedure to be successfully employed and to attain the
objective of speeding up the trial of cases, it is imperative that there should be
intelligent cooperation between the court and contending counsels, who should try to
avoid unnecessary inconsequential objections, for every lawyer must know that the
profession's first mission is to help the court in every way possible so that his case
could be disposed of not only justly but with utmost dispatch, as long as with
expedient means employed no substantial prejudice is caused to the interests of his
client.
In brief, my concurrence here is premised on the failure of respondent judge to first
have the affidavits of the accused and his witnesses subjected to the possible
legitimate objections of the prosecution to any portion thereof. It is not decision
although significant, that it does not appear in the record that the fiscal who did not
object to the Procedure suggested by counsel for the accused took pains to require
that the affidavits be first submitted for his examination, to give him the opportunity to
make proper objections to portions thereof that might be incompetent or inadmissible.
I take it that such omission could be due to the fiscal's unawareness of the exact
import of the unorthodox procedure in question, hence he was unprepared to act
accordingly. His Honor should nevertheless have seen to it, before giving his assent
to the proposal of the defense, that the proper measures were taken to insure that all
the matters contained in the affidavits offered by the defense are competent and
admissible under the law.
I reiterate I see no fundamental objection to a direct testimony in the form I have
discussed above. After all, according to the scholarly main opinion itself, "the main
and essential purpose of requiring a witness to appear and testify orally at a trial is to
secure for the adverse party the opportunity of cross-examination. No doubt, it is
Cross-examination in open court that is indispensable. The direct examination is
secondary because, ordinarily, as is generally known, it can be fully rehearsed
anyway, unlike cross-examination.
In closing, I wish to personally commend His Honor's obvious attitude of trying to
improve upon existing procedures with an eve to making trials less burdened with
time-consuming and complicated technical features that can anyway be done away
with without sacrificing the essence of the judicial inquiry into the facts in dispute.
Indeed, I have always tried to encourage all judges to look for ways and means of
improving upon the beaten paths of existing practices and techniques, to the end that
the trial and disposition of all kinds of cases before them may be simplified and
abbreviated, if they have to be activists or revolutionaries in the process. Just a word
of caution those for there are corners that cannot and must not be cut, and it is always
best to occasionally seek counsel from among the knowledgeable members of the
bar, preferably in the open, before plunging into untrodden areas.
Separate Opinions
BARREDO, J., concurring:
I concur, with the qualification herein set forth.
At the outset, I wish to make it clear that I find the innovative procedure sanctioned by
respondent judge to be in line with the progressive tendency characterizing the new
rules that have modified the system of preliminary investigation of criminal complaints
by fiscal's, where basically the determination of the existence or non-existence of
probable cause is now supposed to be made on the basis of mere affidavits and
counter-affidavits, as well as those now obtaining in practically all labor cases in the
offices in the Department of Labor which have been vested with exclusive jurisdiction
over the same pursuant to the policy of the government to dejudicialize them, And so,
if the subject case herein were only a civil case instead of being a criminal one and it
appearing that the counsel for the supposedly aggrieved partner the trial fiscal in this
instance, who, under the law, has supervision and control of the prosecution, not the
private prosecutor who alone filed the petition herein, and, at that, in her own name
instead of her client, the alleged offended party, 1 I would have voted to deny the
petition. Indeed, I do not see anything fundamentally wrong with the basic procedure
approved by His Honor of allowing the direct examination of a witness to be presented
in the form of a previously prepared affidavit, provided that the same s reaffirmed over
the oath of the affiant in open court when he testifies. But I am now voting to giant the
petition because the procedure questioned here is a little short of what I feel ought to
have been done, even on the phypothesis that We were dealing with a civil case.
While I Would consider it a substantial compliance with the requirement of Sections I
and 2 of Rule 132 about the testimony of a witness being given in open court and that
the questions and answers be dully recorded by the stenographic notes that the direct
examination be in the form of an affirmation by the witness under oath of a ready
made affidavit, particularly when the adverse parts does not object, it is but in keeping
with better practice and more protective of the rights of the adverse party, to require
that the said affidavit be first pasturized or sanitized so as to limit the same only to
evidence that is material and competent. This preliminary step may be done either at
the Pre-trial Where the court may require all affidavits to be used for the purpose to be
submitted, or at a preliminary state of the trial proper before the witness takes the
Witness stand. Thus, the resulting direct testimony will not be polluted with
inadmissible evidence and the cross-examination will be confined to what is material
and competent. The only remaining possible objection then would be that the question
asking for affirmation would be leading and that the answer would be in narrative
form, but these are minor considerations. To start with, the affidavit may be made in
question and answer form. Secondly, I have always considered the objection to a
leading question as essentially relating to a mere matter of form, not of substance,
hence relatively unimportant. And as to answers in narrative form, the basic objection
thereto is that it may include irrelevant and incompetent testimony, (Francisco on
Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211) but if the
affidavit to be affirmed by a witness has already been purged of the objectionable
portions as above indicated the form of the answer should already be of no
consequence.
Undoubtedly this innovative procedure will advance greatly the march towards
simplification and speed in the conduct of trials. As against possible shortcomings
thereof in actual operation as above outlined, I am certain that the advantages to be
derived by adopting it far outweigh the bases of the objections thereto. Of course, it is
without saying that for this procedure to be successfully employed and to attain the
objective of speeding up the trial of cases, it is imperative that there should be
intelligent cooperation between the court and contending counsels, who should try to
avoid unnecessary inconsequential objections, for every lawyer must know that the
profession's first mission is to help the court in every way possible so that his case
could be disposed of not only justly but with utmost dispatch, as long as with
expedient means employed no substantial prejudice is caused to the interests of his
client,

In brief, my concurrence here is premised on the failure of respondent judge to first

have the affidavits of the accused and his witnesses subjected to the possible
legitimate objections of the prosecution to any portion thereof. It is not decision
although significant, that it does not appear in the record that the fiscal who did not
object to the Procedure suggested by counsel for the accused took pains to require
that the affidavits be first submitted for his examination, to give him the opportunity to
make proper objections to portions thereof that might be incompetent or inadmissible.
I take it that such omission could be due to the fiscal's unawareness of the exact
import of the unorthodox procedure in question, hence he was unprepared to act
accordingly. His Honor should nevertheless have seen to it, before giving his assent
to the proposal of the defense, that the proper measures were taken to insure that all
the matters contained in the affidavits offered by the defense are competent and
admissible under the law.

I reiterate I see no fundamental objection to a direct testimony in the form I have

discussed above. After all, according to the scholarly main opinion itself, "the main
and essential purpose of requiring a witness to appear and testify orally at a trial is to
secure for the adverse party the opportunity of cross-examination. No doubt, it is
Cross-examination in open court that is indispensable. The direct examination is
secondary because, ordinarily, as is generally known, it can be fully rehearsed
anyway, unlike cross-examination.

In closing, I wish to personally commend His Honor's obvious attitude of trying to

improve upon existing procedures with an eve to making trials less burdened with
time-consuming and complicated technical features that can anyway be done away
with without sacrificing the essence of the judicial inquiry into the facts in dispute.
Indeed, I have always tried to encourage all judges to look for ways and means of
improving upon the beaten paths of existing practices and techniques, to the end that
the trial and disposition of all kinds of cases before them may be simplified and
abbreviated, if they have to be activists or revolutionaries in the process. Just a word
of caution those for there are corners that cannot and must not be cut, and it is always
best to occasionally seek counsel from among the knowledgeable members of the
bar, preferably in the open, before plunging into untrodden areas.
G.R. No. L-26136 October 30, 1978
THE BACHRACH MOTOR CO., INC. and/or "BACHRACH TRANSPORTATION
CO., INC", as operator of the RURAL TRANSIT, petitioner,
vs.
THE COURT OF INDUSTRIAL RELATIONS and RURAL TRANSIT EMPLOYEES
ASSOCIATION, respondents.
Flores, Macapagal Ocampo & Balbastro for petitioners.
Carlos Santiago for private respondent.
MUÑOZ PALMA, J.:
In 1958 the Bachrach Motor Co., Inc. and/or the "Bachrach Transportation Co., Inc.",
now petitioner in this case, was in the transportation business and operated what was
then known as the "Rural Transit". In that year the Rural Transit Employees
Association went on strike and the dispute between the management and the union
reached the Court of Industrial Relations for compulsory arbitration. The case was
docketed as Case No. 22- IPA entitled: Rural Transit Employees Association vs.
Bachrach Motor Co., and Bachrach
Transportation Co. The Court of Industrial Relations (CIR for short) immediately
issued an order on August 7, 1958 by which the strikers were ordered to return to
work and the management to take them back under the terms and conditions existing
before the dispute arose. 1
While this labor dispute was pending with the CIR Bachrach filed a "Petition for
Authority to discharge driver Maximo Jacob from the service", dated July 24, 1961.
The reasons given for the petition were alleged violations of the Motor Vehicle Law by
Maximo Jacob resulting in damage to property and injuries to third parties, the latest
of which occurred on June 9, 1961 resulting in the "total destruction of bus 170" of the
company.
An "Answer and Counter-Petition" was filed in behalf of Maximo Jacob by the Rural
Transit Employees Association whereby it denied the charges and alleged that the
June 9, 1961 accident was due to a mechanical defect of the bus which was beyond
the control of the driver Jacob, hence, the latter's suspension from the service was not
justified.
The petition of Bachrach docketed as Case No. 22-IPA (11) was heard on January
23, 1963, during which petitioner presented its one and only witness, Mr. Joseph
Kaplin, general manager of Rural Transit, and various documents marked as Exhibits
"1" to "8-F" inclusive. After Mr. Kaplin, concluded his direct testimony, with agreement
of the parties, the hearing was scheduled for another date for purposes of cross-
examination of the witness. The case was reset on various dates but Mr. Kaplin failed
to appear because he had left for abroad.
Sometime on March 8 1965, the employee's association filed a motion praying that:
(a) the testimony of Mr. Joseph Kaplin be stricken from the records
(b) the petition of the Company for authority to dismiss Maximo
Jacob from the service be denied: and
(c) the Company be ordered to reinstate Maximo Jacob
immediately with backwages from June 9, 1961 up to the date of
his actual reinstatement. 2
In an order dated March 1, 1966, the CIR through then Presiding Judge Arsenio I.
Martinez dismissed the company's petition, lifted the suspension of driver Jacob, and
ordered his reinstatement with backwages from the date of his suspension up to his
actual reinstatement. 3
Bachrach's motion for reconsideration 4 having been denied 5, it filed the instant
Petition for certiorari on June 15, 1966 which in the Court's Resolution of July 18,1966
was given due course. 6
The following errors are now assigned by petitioner, viz: 7
I
The respondent court erred in dismissing the petition of the herein
petitioner, after ordering the testimony of Joseph Kaplin to be
stricken off the record, notwithstanding the fact that the service
records of Maximo Jacob, upon the basis of which his dismissal
could be justified were admitted by it.
II
The respondent court erred in not admitting the petitioner's exhibits
unqualifiedly and in admitting them "for whatever worth they may
have" only to disregard them entirely thereafter on the alleged
ground that "the contents of the same were not proven.
III
The respondent court erred in not ordering the dismissal of
Maximo Jacob.
IV
The respondent court erred in granting the respondent union's
counter-petition without reception of evidence, especially after it
earlier dismissed the petitioner's petition on the technical ground
 that Joseph Kaplin was not cross-examined by the respondent
union.
V
The respondent court erred in granting backwages to Maximo
Jacob from the date of his suspension up to actual reinstatement
without evidence to prove that he has exercised reasonable
diligence to secure other employment during the time of his
alleged suspension.
VI
The respondent court erred in not holding that the union has the
burden to prove that Maximo Jacob is entitled to backwages.
VII
The respondent court erred in not holding that, if at all, Maximo Jacob is only entitled
to three months backwages according to the Sta. Cecilia Sawmill case.
1. Respondent court did not err in ordering the dismissal of Bachrach's petition to
discharge Maximo Jacob. Petitioner presented only one witness, Joseph Kaplin to
prove its case against driver Jacob. The witness failed however to appear at the
scheduled hearings for his cross-examination for the simple reason that he left for
abroad. Having been deprived, without fault on its part, of its right to cross-examine
Kaplin, respondent association was entitled to have the direct testimony of the witness
stricken off the record.
The right of a party to confront and cross-examine opposing
witnesses in a judicial litigation, be it criminal or civil in nature, or in
proceedings before administrative tribunals with quasi-judicial
powers, is fundamental right which is part of due process. (Savory
Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62
SCRA 258)
In Ortigas Jr. v. Luftansa German Airlines, 1975, defendant's witness failed to appear
at the continuation of hearing during which the witness was to be cross-examined by
plaintiff's counsel. The trial court denied defendant's motion for postponement and
ordered the unfinished testimony of the witness Lazzari stricken off the record. In
sustaining said order, this Court held inter alia:
Oral testimony may be taken into account only when it is complete,
that is, if the witness has been wholly cross-examined by the
adverse party or the right to cross-examine is lost wholly or in part
thru the fault of such adverse party. But when cross-examination is
not and cannot be done or completed due to causes attributable to
the party offering the witness, the uncompleted testimony is
thereby rendered incompetent.
The right of a party to cross-examine the witness of his adversary
is invaluable as it is inviolable in civil cases, no less than the right
of the accused in criminal cases. The express recognition of such
right of the accused in the Constitution does not render the right
thereto of parties in civil cases less constitutionally based, for it is
an indispensable part of the due process guaranteed by the
fundamental law. ... Until such cross-examination has been
finished, the testimony of the witness cannot be considered as
complete and may not, therefore, be allowed to form part of the
evidence to be considered by the court in deciding the case. (64
SCRA 610, 636- 637; emphasis supplied)
Parenthetically, the situation in Savory Luncheonette v. Lakas ng Manggagawang
Pilipino, et al., supra, was different. There, the witness, Atty. Morabe, had finished his
direct testimony and he was ready and available for cross-examination. Motions for
postponement of the cross-examination were made however by the adverse counsel
from time to time until one day Atty. Morabe succumbed to a fatal heart attack without
the cross-examination having been accomplished. On motion of the respondents
the Court of Industrial Relations ordered the testimony of Atty. Morabe deleted from
the record. On a petition for certiorari by Savory Luncheonette, this Court set aside
the order and held that by their own actuations, respondents were considered to have
impliedly waived and thereupon lost their right to cross-examine the witness, for such
a right may be forfeited by a party litigant through his own conduct. Petitioner
contends however that it was ready to present another witness, Mrs. Ursula Silva, to
Identify the documents, Exhibits "1" to "8-F", but it did not proceed to call the witness
for the reason that during the hearing of January 16, 1965, respondent's counsel, Atty.
Santiago, manifested that he was admitting the signatures of Joseph Kaplin on the
aforesaid documents. 8 However true that may be, what Atty.
Santiago admitted merely was the signature of Mr. Kaplin and not the truth of the
contents of the documents. 9 The opposing party was still entitled to cross-examine
the witness on the matters written on Exhibits "1" to "8-F" especially if they adversely
affected the substantial rights of the party against whom they were being presented,
namely, driver Maximo Jacob. When Atty. Santiago admitted that the signature
appearing in Exhibits "1" to "8-F" was that of witness Kaplin, the counsel of petitioner
then, Atty. Joven Enrile, should have inquired if the party was admitting likewise the
veracity of the contents of the documents; not having done so, petitioner must now
suffer the consequences. Exhibits "1" to "8-F" were admitted by respondent court only
for "whatever they may be worth." Evaluating them, however, it did not consider said
documents, and rightly so, as competent proof of the truthfulness of their contents
without the supporting testimony of witness Kaplin. As stated in the order under
review "(N)o other witness was presented by respondent company (now petitioner) to
testify on the intrinsic value of those exhibits"; consequently, they are hearsay.
Inasmuch as the testimony of Joseph Kaplin is stricken off the record and the
contents of Exhibits "1" to "8-F" are hearsay, and there is no other evidence which
substantiates the charges against Maximo Jacob, the dismissal of the company's
petition to discharge Jacob from its service is in order.
2. No error was committed when the CIR, without receiving evidence, granted relief to
private respondent herein on its counter-petition.
At the time Bachrach filed its petition to discharge Maximo Jacob, there was a
pending labor dispute in the CIR between the company and the employee's union.
The CIR ordered the strikers to return to work. The company in the meantime
suspended its driver Maximo Jacob after the alleged June 9, 1961 accident. 10

Considering the dismissal of Bachrach's petition to discharge Maximo Jacob, the

lifting of the latter's suspension and his reinstatement in the service were but a
necessary consequence thereof. For obvious reasons, the relief could be granted
without need of evidence. The onus probandi was on the company, now petitioner, to
justify the suspension of Jacob and his eventual separation from the service. Having
failed to discharge that burden, there were no valid grounds for it to keep its employee
away from his work.

3. On the matter of backwages, We agree with petitioner's counsel that the judicial
trend is to fix a reasonable period for the payment of backwages, the philosophy
being to avoid protracted delay in post-judgment hearings to prove or disprove
earnings of the worker elsewhere during the period he had not been reinstated to his
employment." 11Following this principle, We hold that payment of backwages for a
period of three (3) years is fair and reasonable under the circumstances of the case.

WHEREFORE, We hereby render judgment affirming the order of respondent Court of

Industrial Relations dated March 1, 1966, now under review, with the sole modification
that petitioner shall pay its driver Maximo Jacob three (3) years backwages at the rate
of the last salary received before he was suspended, without qualification and
deduction. With costs against petitioner. Order modified.

SO ORDERED.
G.R. No. L-61570 February 12, 1990.
RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO,
PACITA and SEVERO all surnamed FULGADO, petitioners,
vs.
HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO,
ARSENIO PIGUING, ISMAEL PORCIUNCULA and DOMINGA
MACARULAY, respondents.
Dollete, Blanco, Ejercito & Associates for petitioners.
Ramon Tuangco for private respondents.
The Court of Appeals' decision became final and executory on June 27,1974 and the
records of the case were remanded to the trial court.
On July 3, 1975, or more than a year after the finality of the Appellate Court's
decision, counsel for private respondents moved that the trial court "include th(e) case
in any date of the August and September calendar of the Court, at the usual hour in
the morning." 4
The case was set for hearing on September 16,1975. Unfortunately, the presiding
judge went on official leave and the hearing was postponed anew to January 15 and
February 15, 1976. In the meantime, plaintiff Ruperto Fulgado died on November
25,1975 and was substituted by his children as party plaintiffs. Fulgado's witness,
Jose Fulgado, referred to in the dispositive part of the Appellate Court's judgment, had
earlier migrated to the United States on September 16, 1974.

When the case was heard on May 4, 1976, the following proceedings transpired:
FERNAN, C.J.:
Atty Dollete:
On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life,
undertook the arduous task of filing an action in the Court of First Instance of Rizal,
Pasig branch against Rufino Custodia, Simplicia Custodia, Arsenio Piguing, Ismael For the plaintiff, Your Honor. If your Honor
Porciuncula and Dominga Macarulay for the annulment of certain contracts of sale please, may I inform this Honorable Court that
and partition with accounting. 1 The defendants (herein private respondents) filed their this is a remanded case from the Court of
answer to the complaint with special and affirmative defenses and a counterclaim. Appeals for cross-examination or presentation
by the plaintiff of any additional evidence. But
we have no further evidence in this case ...
After several deferments, the pre-trial conference was finally set for February 1, 1968 except those evidence already adduced in the
at 8:30 in the morning. Private respondents and their counsel failed to appear on time lower court before it was appealed in the Court
at the pre-trial and were subsequently declared as in default. Plaintiff Fulgado was of Appeals. It is up for the defense now to
then allowed to present his evidence ex parte before the Deputy Clerk of Court. cross-examine the witnesses.

Meanwhile, upon learning of their predicament, private respondents immediately filed Court (To Atty. Tuangco):
a motion to lift the order of default on the same day that the order was issued. The
trial court denied said motion in its order of February 16, 1972. Their motion for
reconsideration was also denied. Persistently, respondents filed a petition for relief You are through with the cross-examination?
from the default order. Once more, this was denied.
Atty. Tuangco:
On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto
Fulgado. On appeal, however, the Court of Appeals found that private respondents Not yet, Your Honor, we were granted by the
had been deprived of their day in court by the unjust denial of their motion to lift the Court of Appeals the right to cross-examine the
order of default. 2 The Appellate Court, in no less than explicit terms, said: witnesses ... . The last time this case was
called for hearing by this Honorable Court, the
WHEREFORE, the decision of the court a quo is hereby set aside Presiding Judge tried to make the parties come
to a settlement, but it seems that. they could
and the case is remanded to the court of origin for trial on the
merits, granting to the defendants the opportunity to present their not come to such settlement. I advised my
clients to try to meet them. So now, this is the
evidence, provided, however, that the evidence already presented
before the commissioner shall stand, but with the right of the stage where they could not agree and so we
defendants to cross-examine the witness who had already testified will be proceeding with the cross-examination
and with the right of the plaintiff to present additional evidence that of the witnesses.
then he may decide. Without costs. 3
Atty. Dollete:
 There were only two witnesses. Two witnesses
were presented, one is Ruperto Fulgado and
he died already. Your Honor, the other witness
was Jose Fulgado who is now abroad for
almost a year, Your Honor.
Atty. Tuangco:
I understand that the other witness was here on
a visit, Your Honor. He came back.
Court:
So, what shall we do now?
Atty. Tuangco:
So, I move to strike out the testimonies of the
witnesses who testified on the ground that we
were deprived of our right to cross-examine
them.
Atty. Dollete:
We will submit, Your Honor, for resolution the
motion of the defendants.
Court (To Atty. Tuangco):
So, what do you want?
Atty. Tuangco:
That the whole testimonies of the two
witnesses who were presented ex parte be
stricken off the record because we have not
been granted the right of cross-examining them
and they are not available at this stage, Your
Honor.
Atty. Dollete:
We will submit Your Honor. We maintain, Your
Honor. Our opposition is that it hinges on the
fact that defendants committed laches in their
failure to cross-examine the witness. That is our
opposition.
Court:
Why?
Atty. Dollete:
There were several opportunities for them to
cross-examine especially the witness Ruperto
Fulgado, Your Honor. They are with full
knowledge of the age of this witness. They
could have taken steps to assert their right
granted by the Court of Appeals.
Notwithstanding their knowledge about the age,
the advanced age and health condition of this
witness Ruperto Fulgado, then we maintain,
Your Honor, that defendants, in a way, have
committed laches in the assertion of their right
to cross-examine.
Atty. Tuangco:
The records will show Your Honor, that it was
the defendants who moved to set this case for
hearing upon the remanding of the records
from the Court of Appeals.
Court:
You make a written motion and I will grant you
a period of ten (10) days within which to file an
opposition and then another additional period of
ten (10) days within which to reply. Then this
matter shall be deemed submitted for
resolution. But the fact is clear now that plaintiff
has no more additional evidence.
Atty. Dollete:
Yes, Your Honor.
Court:
So that in case the court favorably grants the
motion of defendants and orders the striking
out of the testimonies of Ruperto Fulgado and
the other witness, together with the
documentary evidence, the plaintiff had no
more evidence to offer.
 Atty. Dollete:
Yes, Your Honor. We stand on the evidence on
Record. 5
On June 30, 1976, the trial court issued an order dismissing the case. It decreed:
For reason stated in the defendants' motion filed on May 18, 1976,
which the Court finds meritorious, the testimonies of plaintiffs
witnesses Ruperto Fulgado and Jose Fulgado, who were not
presented by the plaintiff so that the defendants could cross-
examine them on May 4, 1976, are stricken off the record and, as
a consequence, in view of the manifestation of plaintiffs counsel
that he had no more witnesses to present, the above-entitled case
is dismissed without pronouncement as to costs. 6
On appeal to the Appellate Court in C.A. G.R No. 62353-R, said order was affirmed
on June 30, 1982. 7 Petitioners now question said affirmance before this Court in the
instant petition for review.
The principal issue in the case at bar is the propriety of the exclusion of the
testimonies given by the now deceased Ruperto Fulgado and his witness, Jose
Fulgado, who has departed for the United States, which resulted in the dismissal of
the complaint. Private respondents maintain that such testimonies are wholly
inadmissible for being hearsay, because respondents were not able to cross-examine
the witnesses.
Petitioners, on the other hand, contend that while the right to cross-examination is an
essential part of due process, the same may however be waived as the private
respondent have done when they allowed an unreasonable length of time to lapse
from the inception of the opportunity to cross-examine before availing themselves of
such right and likewise when they failed to exhaust other remedies to secure the
exercise of such right.
The appeal is well-taken.
In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 8 and the cases cited
thereunder, the Court, speaking through Justice Muñoz Palma, has provided us with a
concise overview of the right to cross-examination as a vital element of due process.
Thus:
The right of a party to confront and cross-examine opposing
witnesses in a judicial litigation, be it criminal or civil in nature, or in
proceedings before administrative tribunals with quasi-judicial
powers, is a fundamental right which is part of due process.
However, the right is a personal one which may be waived
expressly or impliedly by conduct amounting to a renunciation of
the right of cross-examination. Thus, where a party has had the
opportunity to cross-examine a witness but failed to avail himself of
it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be
received or allowed to remain in the record.
The conduct of a party which may be construed as an implied
waiver of the right to cross-examine may take various forms. But
the common basic principle underlying the application of the rule
on implied waiver is that the party was given the opportunity to
confr ont and cross-examine an opposing witness but failed to take
advantage of it for reasons attributable to himself alone.
The principle requiring a testing of testimonial statements by cross-examination has
always been understood as requiring, not necessarily an actual cross-examination,
but merely an opportunity to exercise the right to cross-examine if desired. 9 Thus the
resolution of the present case would hinge on whether or not this was an opportunity
for cross-examination.
There is no disputing that where there was no such opportunity (to cross examine)
and the want of it was caused by the party offering (plaintiff), the testimony should be
stricken out. However, where the failure to obtain cross-examination was imputable to
the cross examiner's fault, the lack of cross-examination is no longer a ground for
exclusion according to the general principle that an opportunity, though waived, will
suffice.10
From the records presented, it is manifest that private respondents had enough
opportunity to cross-examine plaintiff Ruperto Fulgado before his death, and Jose
Fulgado before his migration to the United States. Conceding that private respondents
lost their standing in court during the time they were in default, they were no longer in
that situation on June 6, 1974 when the Court of Appeals set aside the default
judgment in CA-G.R. No. 42590-R and remanded the case to the court of origin for
trial on the merits, "granting to the defendants the opportunity to present their
evidence ... ." 11 This was a positive signal for them to proceed with the cross-
examination of the two Fulgados, a right previously withheld from them when they
were considered in default. But despite knowledge of Ruperto's failing health (he was
then 89 years of age) and Jose's imminent travel to the United States, private
respondents did not move swiftly and decisively. They tarried for more than one year
from the finality of the Appellate Court's decision on June 27, 1974 to ask the trial
court on July 3, 1975 to set the already much delayed case for hearing "in any date of
August and September ... ." 12
Such inaction on the part of private respondents cannot be easily dismissed by the
argument that it is the duty of the plaintiff to always take the initiative in keeping the
proceedings "alive." At best, the argument is fatuous.
The task of recalling a witness for cross examination is, in law, imposed on the party
who wishes to exercise said right. This is so because the right, being personal and
waivable, the intention to utilize it must be expressed. Silence or failure to assert it on
time amounts to a renunciation thereof. Thus, it should be the counsel for the
opposing party who should move to cross-examine plaintiffs witnesses. It is absurd for
the plaintiff himself to ask the court to schedule the cross-examination of his own
witnesses because it is not his obligation to ensure that his deponents are cross-
examined. Having presented his witnesses, the burden shifts to his opponent who
must now make the appropriate move. Indeed, the rule of placing the burden of the
case on plaintiffs shoulders can be construed to extremes as what happened in the
instant proceedings.

Having had the liberty to cross-examine and having opted not to exercise it, the case
is then the same in effect as if private respondent had actually cross-examined. We
therefore hold that it was gross error for both the trial court and the Appellate Court to
dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there was
an alleged failure of cross-examination. The wholesale exclusion of testimonies was
too inflexible a solution to the procedural impasse because it prejudiced the party
whose only fault during the entire proceedings was to die before he could be cross-
examined. The prudent alternative should have been to admit the direct examination
so far as the loss of cross-examination could have been shown to be not in that
instance a material loss.13 And more compellingly so in the instant case where it has
become evident that the adverse party was afforded a reasonable chance for cross-
examination but through his own fault failed to cross-examine the witness.

Where death prevents cross-examination under such circumstances that no

responsibility of any sort can be ascribed to the plaintiff or his witness, it seems a
harsh measure to strike out all that has been obtained in the direct examination. 14

As to the witness Jose Fulgado who is reportedly abroad, private respondents could
have resorted to the various modes of discovery under the Rules of Court to cross-
examine Jose. D, During the hearing of May 4, 1976, counsel for private respondents
unwittingly or wittingly disclosed that they knew that Jose was in the country "for a
visit" but they did not exert any effort to have him subpoenaed.

Altogether, the acts of private respondents constitute a waiver, and consequently, a

forfeiture of their right to cross-examination. And having failed to make use of this
right, the consequences should rightfully fall on them and not on their adversary.

WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No.
62353-R dated June 30, 1982 is SET ASIDE. The trial court is ordered to
REINSTATE Civil Case No. 10256 and to allow the direct testimonies of plaintiff
Ruperto Fulgado and his witness Jose Fulgado to remain in the record. The court is
further ordered to give priority to the hearing of said case in view of the length of time
that it has remained unresolved on account of procedural differences. This judgment
is immediately executory. No costs.

Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

 [G.R. No. 139456. July 7, 2004]
PEOPLE OF THE PHILIPPINES, appellee, vs. ADONES ABATAYO, appellant.
DECISION
CALLEJO, SR., J.:
On appeal is the Decision[1] of the Regional Trial Court of Mandaue City, Branch
56, in Criminal Case No. DU-4381 finding appellant Adones Abatayo guilty beyond
reasonable doubt of two counts of murder and sentencing him to suffer reclusion
perpetua for each count.
The appellant was charged with the crime of double murder in an Information
dated January 31, 1994. The indictment reads:
That on or about the 10th day of September 1993, in the City of Mandaue, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused with deliberate
intent to kill and with treachery and evident premeditation, did then and there wil[l]fully,
unlawfully and feloniously attack, assault and strike Dominador Basalan and Teofredo Basalan
with the use of a GI pipe, thereby inflicting upon them mortal wounds in (sic) their head[s]
which caused their instantaneous death.
CONTRARY TO LAW.[2]
Upon arraignment, the appellant, assisted by counsel, pleaded not guilty.[3]
The first witness for the prosecution was Juanito Gutang, whose direct
examination was terminated during the trial of November 22, 1994. The appellants
counsel commenced with his cross-examination of the witness, but later prayed for a
resetting as he still had many questions for the said witness. The court granted the
motion. However, during the continuation of the trial on January 23, 1995, Juanito failed
to appear due to fever. The public prosecutor then asked the court to defer the further
cross-examination of Juanito until he recovered from his illness, and that he be allowed
to present his second witness, Apolonio Quilag. The appellant did not object. The court
granted the motion, but warned the public prosecutor that if Juanito would not appear
to continue with his testimony by the next trial date, his testimony would be stricken off
the record.[4] However, such warning was not contained in the order issued by the court
on even date.
During the trial on March 2, 1995, the public prosecutor presented PO2 Alfredo
Andales, and thereafter, the victims mother, Silvina Basalan. Both testimonies were
completed. The hearing of April 17, 1995 was cancelled, after the parties admitted the
authenticity of Dr. Ladislao Diola, Jr.s necropsy report and agreed to dispense with his
testimony thereon. The public prosecutor announced that he would rest his case
on May 22, 1995.[5]
During the trial on May 22, 1995, the public prosecutor manifested that he was
ready to offer his documentary evidence and rest his case thereafter. He offered in
evidence the affidavit of Juanito as part of his documentary evidence. The appellant
objected to the admission of the affidavit for the purpose for which it was offered. The
court nevertheless admitted the affidavit and the public prosecutor rested his case. On
motion of the appellant, trial was set at 8:30 a.m. of June 26, 1995 for the presentation
of the witnesses for the defense.
The Case for the Prosecution[6]
Teofredo Basalan and his brother Dominador Basalan, aged 24 and 26,
respectively, lived with their mother Silvina Basalan in Colon, Naga, Cebu City.[7] They
were stay-in construction workers at the construction site of the Gaisano FCDC at
Ibabao, Mandaue City.[8]
At around 7:00 p.m. of September 9, 1993, after a hard days work at the
construction site, laborers Juanito Gutang, Apolonio Quilag and Pedro Esconia, as well
as an unidentified co-worker, retired early in their quarters. [9]
At around 3:00 a.m. the following day,[10] Juanito was awakened by an unusual
thud, similar to that produced by someone striking somebody. [11] He got up and saw the
appellant, from a distance of about three (3) meters,[12] hitting Teofredo and Dominador
with a lead pipe.[13] Juanito woke up his co-workers and told them what he had just
witnessed.[14] Apolonio saw the victims, already lying in a pool of blood. [15] Juanito and
his co-workers immediately reported the incident to the security guards on duty who, in
turn, called up the Mandaue City police station.[16]
Meanwhile, the appellant hurriedly left the job site, bringing with him his personal
belongings.[17]
PO2 Alfredo Andales, who was assigned to the case, forthwith conducted an on-
the-spot investigation. At the crime scene, he found the victims bloodied corpses, with
their respective heads smashed. He also found a galvanized iron (G.I.) pipe, the
weapon used to kill the victims.[18] His investigation revealed that the night before the
victims were killed, they had an acrimonious quarrel with the appellant over some
misplaced construction tools which were later recovered. [19] The policemen had the
incident recorded in the police blotter [20] with the appellant as the prime suspect.
In the afternoon of that same day, the bodies of the victims were brought to the
Cosmopolitan Funeral Homes where Dr. Ladislao V. Diola, Jr., conducted a post
mortem examination. He signed a necropsy report stating that the victims died due to
cardio respiratory arrest due to shock and hemorrhage secondary to injuries to the
head.[21] By agreement of the parties, the testimony of Dr. Diola was dispensed with
after the defense admitted the findings contained in the doctors post
mortem report.[22] On September 16, 1993, Juanito and Apolonio subscribed and swore
to the truth of their respective affidavits before the public prosecutor. [23]
Silvina testified that she fainted when she learned of the death of her two
sons. She spent around P50,000.00 for the wake and funeral. She also testified that
the death of her two sons caused her emotional pain, but when asked to translate her
pain into monetary terms, she left it for the court to determine. [24]
The Evidence of the Appellant [25]
 The appellant testified that he started working for Super Metro Gaisano as a
construction worker sometime in mid-August 1993. On September 9, 1993, after
rendering overtime work for two hours, he decided to go home. He left the job site at
around 7:00 p.m., and hitched a ride home in the companys vehicle driven by Charmel
Ralago, who happened to be his neighbor. He finally arrived home at about 9:00
p.m. The following morning, his uncle dropped by his place and asked to be
accompanied to Carcar, Cebu, as it was the towns fiesta. The appellant readily
acquiesced. Consequently, he absented himself from work, and requested a co-worker
to get his salary. After the fiesta, he went back home but no longer reported for
work. Instead, he went to Bohol. He returned home in December 1993 in time for the
holiday season. He was surprised when he was arrested in August 1994 for the killings
of the Basalan brothers.[26]
Bernabe Hinario, 23 years old, erstwhile taho peddler and next-door neighbor of
the appellant, corroborated the latters alibi. He testified that at about 9:00
p.m. on September 9, 1993, as he was whiling away the time in the neighborhood, he
saw the appellant arrive from work as usual. The appellant greeted him and invited him
to attend the fiesta in Carcar, Cebu, the next day. He declined because of his
work. Thereafter, they parted ways, as the appellant proceeded to his house. [27]
Leonora Abatayo, the appellants mother, testified that she was in their house
when the appellant arrived home at about 9:00 p.m. on September 9, 1993. After taking
his dinner, the appellant slept. The following morning, after breakfast, the appellant left
with his uncle, Fransico Malubay, to attend the fiesta in Carcar, Cebu.[28]
After trial, the court rendered a decision, the dispositive portion of which reads:
Foregoing considered and in the light of Prosecution witness Juanito Gutangs positive
identification and eyewitness account of the killing, the Court is constrained and so finds the
Accused GUILTY of the crime of two counts of Murder. Accordingly, Accused is sentenced to
suffer the penalty of Reclusion Perpetua for each count of Murder. Accused is, likewise,
ordered to:
1. Reimburse the victims kin for actual expenses in the sum of Seventeen
Thousand Pesos (P17,000.00);
2. Pay damages in the total sum of Two Hundred Thousand Pesos
(P200,000.00) plus costs.
[29]
SO ORDERED.
In convicting the appellant, the trial court relied on the testimony of Apolonio and
eyewitness Juanito Gutang, which were corroborated by the medical findings showing
the nature and the location of the wounds inflicted on the victims. The court brushed
aside as dubious and weak the denial and alibi interposed by the appellant. According
to the court, such defenses could not prevail over the positive identification made by
Juanito of the appellant as the perpetrator of the crime. [30]
The appellant now assails his conviction, asserting that:
I
THE TRIAL COURT ERRED IN NOT ORDERING THE STRIKING OUT OF THE
ENTIRE TESTIMONY OF THE PROSECUTION[S] ALLEGED EYEWITNESS JUANITO
GUTANG ANENT THE CRIME CHARGED IN VIEW OF HIS UNJUSTIFIED FAILURE
TO ALLOW HIMSELF TO BE FURTHER CROSS-EXAMINED PURSUANT TO ITS
ORDER DATED JANUARY 23, 1995.
II
THE TRIAL COURT ERRED IN GIVING PROBATIVE VALUE TO THE UNFINISHED
TESTIMONY OF THE PROSECUTION WITNESS JUANITO GUTANG DESPITE ITS
INHERENT IMPLAUSIBILITY AND IN DISREGARDING THE EVIDENCE
INTERPOSED BY [THE] ACCUSED-APPELLANT WHICH WAS AMPLY
CORROBORATED ON MATERIAL POINTS.
III
THE TRIAL COURT ERRED IN RENDERING A VERDICT OF CONVICTION
NOTWITHSTANDING THE FACT THAT ACCUSED-APPELLANTS GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT.[31]
The Ruling of the Court
We affirm the findings of the trial court and sustain the conviction of the appellant
with modifications.
The Incomplete Cross-
Examination
of Juanito Gutang
The appellant insists that the trial court should not have given credence to the
story of the lone eyewitness for the prosecution, Juanito Gutang, considering that his
counsel was not able to continue cross-examining the witness. He strongly argues that
his constitutional and procedural right to confront the witness against him was thereby
impaired. Citing Ortigas, Jr. v. Lufthansa German Airlines [32] as the case in point, the
appellant faults the trial court for relying on Juanitos testimony despite the warning it
made during the trial of January 23, 1995, that it would consider the entire testimony of
Juanito stricken off the record for lack of proper cross-examination.[33]
The Office of the Solicitor General (OSG), for its part, asserts that while the
appellant has the constitutional right to cross-examine the witnesses against him, he
waived such right when he failed to invoke the same after his initial cross-examination
of Juanito.
We agree with the OSG.
 Under Article III, Section 14(2) of the 1987 Constitution, the appellant has the right
to meet the witnesses against him face to face. Under Rule 115, Section 1(f) of the
Rules of Court, he has the right to confront and cross-examine the witnesses against
him at the trial, a fundamental right which is part of due process. However, the right of
confrontation and cross- examination is a personal one. It is not an absolute right which
a party can claim at all times.[34]
In Savory Luncheonette v. Lakas ng Manggagawang Pilipino,[35] we ruled that the
right to confront the witness may be waived by the accused, expressly or impliedly.
The right of a party to confront and cross-examine opposing witnesses in a judicial litigation,
be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-
judicial powers, is a fundamental right which is part of due process. However, the right is a
personal one which may be waived, expressly or impliedly, by conduct amounting to a
renunciation of the right of cross-examination. Thus, where a party has had the opportunity to
cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to
cross-examine and the testimony given on direct examination of the witness will be received or
allowed to remain in the record.
The conduct of a party which may be construed as an implied waiver of the right to cross-
examine may take various forms. But the common basic principle underlying the application
of the rule on implied waiver is that the party was given the opportunity to confront and cross-
examine an opposing witness but failed to take advantage of it for reasons attributable to
himself alone.[36]
In the later case of Fulgado v. Court of Appeals,[37] we ruled that the task of
recalling a witness for cross-examination is imposed on the party who wishes to
exercise said right, and stressed that it should be the opposing counsel who should
move to cross-examine the plaintiffs witness. Thus:
The task of recalling a witness for cross-examination is, in law, imposed on the party who
wishes to exercise said right. This is so because the right, being personal and waivable, the
intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a
renunciation thereof. Thus, it should be the counsel for the opposing party who should move to
cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to
schedule the cross-examination of his own witnesses because it is not his obligation to ensure
that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his
opponent who must now make the appropriate move. Indeed, the rule of placing the burden of
the case on plaintiffs shoulders can be construed to extremes as what happened in the instant
proceedings.[38]
In this case, we are convinced that the appellant waived his right to further cross-
examine Juanito. The records show that Juanito testified for the prosecution on direct
examination on November 22, 1994. Thereafter, the appellants counsel cross-
examined the witness on the corpus delicti. He then moved for a resetting as he still
had many questions to ask the witness. Juanito failed to attend the trial on January 23,
1995 for the continuation of his cross-examination because he had a fever. The
appellant did not object to the deferment of Juanitos cross-examination; neither did he
object to the public prosecutors presentation of Apolonio Quilag as its second witness.
The trial was reset to March 2, 1995 for the continuation of Juanitos cross-
examination.[39] However, no subpoena ad testificandum was issued to Juanito for the
said trial. There is, likewise, no showing whether Juanito was in court on March 2,
1995 when the case was called. Furthermore, the appellant did not object when the
public prosecutor presented PO2 Andales and Silvina Basalan as witnesses.
During the trial on April 17, 1995, the public prosecutor manifested, following the
stipulation of the parties on the authenticity of Dr. Ladislao Diola, Jr.s necropsy report,
that he would be ready to rest his case by the next trial. Again, the appellant did not call
the attention of the court on the fact that he had not yet finished his cross-examination
of Juanito. He did not ask to be allowed to terminate the cross-examination of the
witness first before allowing the prosecution to rest its case. Neither did the appellant
ask the court to strike Juanitos testimony on direct and cross-examination from the
records. When the case was called for trial on May 22, 1995, the public prosecutor
announced that he had no more witness to present and was ready to formally offer his
documentary evidence. There was no objection from the appellant. Neither did the
appellant object to the offer of Juanitos affidavit [40] as part of his testimony, on the
ground that he was deprived of his right to complete his cross-examination of the said
witness. Moreover, when he testified, the appellant disputed the testimony of Juanito
that he killed the victims, claiming that he was at home when the victims were killed. The
appellant adduced testimonial evidence corroborating his alibi.
All the foregoing instances conclusively show that the appellant had waived his
right to further cross-examine Juanito. From the conduct of the appellants counsel, it
can be fairly inferred that he considered the initial cross-examination of Juanito
adequate, and that there was no longer a need to further cross-examine the witness.
Credibility of Witnesses
and Sufficiency of
Prosecutions Evidence
Reviewing the records, we find that the prosecution has proven beyond doubt that
the appellant killed the victims. He was positively identified by the lone eyewitness,
Juanito Gutang.The testimony of this lone eyewitness is clear, straightforward,
categorical and consistent, without any tinge of falsehood or sign of fabrication. In his
testimony, he narrated the nightmarish events that transpired in that unholy hour of 3:00
a.m. on September 10, 1993, thus:
FISCAL MATA (on direct)
...
Q Mr. Juanito Gutang, you are a construction worker of what company?
A FCDC.
...
Q On the said date, September 10, 1993, at around 3:00 oclock in the
evening (sic) where were you?[41]
ATTY. SURALTA
Misleading, there is no such time.
 FISCAL MATA It is well-established that the trial courts calibration of the credibility of witnesses
should not be disturbed on appeal since the said court is in a better position to decide
Q At 3:00 oclock dawn or in the morning? the question, having itself heard and observed the demeanor of the witnesses on the
stand, unless it has plainly overlooked certain facts of substance and value, which, if
A In our bunk house.
considered, could alter and affect the result of the case. [48] In the case at bar, we find
Q What do you mean by bunk house? no reason to depart from this rule, given the trustworthiness of the testimony of the
witness.
A The place where we slept.[42]
...
The Prosecution Failed
Q Do you know of any incident on September 10, at around 3:00
To Prove Treachery and
oclock early in the morning?[43]
Evident Premeditation
... Beyond Reasonable Doubt

Q Now, what was that incident you mentioned all about?

The trial court found the appellant guilty of murder and sentenced him to suffer
A I was awakened by a sound striking somebody, and when I got up, I saw
the penalty of reclusion perpetua in each case, without finding any circumstance
Adones holding a pipe.
attendant to the crime to qualify the killings to murder. Section 1,[49] Rule 120 of the
Q You mentioned Adones, who is this Adones? Revised Rules of Court, requires that after an adjudication of guilt by the court, it should
impose the proper penalty and civil liability provided for by law. Further, Section 2[50] of
A Adones Abatayo.[44] the same Rule mandates that the judgment of conviction should state, among others,
the aggravating or mitigating circumstances attendant to the commission of the crime,
... if there are any, to enable the Court to determine the proper penalty on the
COURT (to witness) appellant. Judges who faithfully observe this duty contribute to the orderly
administration of justice.[51]
Q What was he doing with the pipe?
Treachery cannot be appreciated in this case where the lone eye-witness to the
A He was striking it against my companions who were sleeping? killing, Juanito Gutang, was not able to see how the assault started. The fact that the
incident happened in an unholy hour, around 3:00 a.m., did not prove that the victims
COURT: were sleeping when they were killed. As Juanito Gutang testified, he was asleep when
appellant started the attack on his victims and he was only awakened by thudding
Proceed. sounds, as the appellant struck the victims with a pipe. The importance of such
Q Who are these companions you mentioned? testimony cannot be overemphasized, considering that treachery cannot be presumed
nor established from mere suppositions.[52]
A The brothers, Teofredo and Dominador.
Under our penal law, there is treachery when the offender commits any of the
Q What are their family names? crimes against persons, employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to himself arising
A Basalan. from the defense which the offended party might make.[53] It requires the concurrence
of two conditions: 1) employment of means of execution that gives the person attacked
Q Where are these Teofredo and Dominador Basalan now? no opportunity to defend himself, much less to retaliate; and, 2) deliberate or conscious
A They are already dead.[45] adoption of the means of execution.[54] The essence of treachery is the sudden and
unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of
No evil motive has been imputed against Juanito Gutang for testifying against any real chance to defend himself and thereby ensuring its commission without risk to
appellant. As a matter of fact, the latter admitted that no bad blood existed between himself.[55]
them, and he knew of no reason why the former would testify against him. [46] In such a
situation, the rule is that where there is no evidence, and nothing to indicate that the It is settled that if the victim, when killed, was sleeping or had just awakened, the
principal witness for the prosecution was actuated by improper motives, the killing is with treachery because in such cases, the victim was not in a position to put
presumption is that he was not, and his testimony is entitled to full faith and up any form of defense.[56] However, when the lone eyewitness for the prosecution did
credit.[47] Furthermore, it is unlikely that this witness could relate all the details of the not see how the attack commenced, the trial court cannot presume from the
crime with clarity and lucidity if he had not actually witnessed the killings of the Basalan circumstances of the case that there was treachery. Circumstances which qualify
brothers. criminal responsibility cannot rest on mere conjectures, no matter how reasonable or
probable, but must be based on facts of unquestionable existence. [57] Thus, treachery
cannot be deduced from mere conjectures, presumption or sheer speculation. [58] Mere
probabilities cannot substitute for proof required to establish each element necessary
to convict. Settled is the rule that treachery cannot be presumed but must be proved by
clear and convincing evidence, or as conclusively as the killing itself. [59]
Like treachery, evident premeditation should be established by clear and positive
evidence. Mere inferences or presumptions, no matter how logical and probable they
might be, would not be enough. In the case at bar, evident premeditation was, likewise,
not proven. The prosecution did not even attempt to prove the three elements
necessary before evident premeditation may be appreciated as a qualifying aggravating
circumstance, namely: (a) the time when the accused determined to commit the crime;
(b) an act manifestly indicating that the accused has clung to his determination; and,
(c) a sufficient lapse of time between such a determination and execution to allow him
to reflect upon the consequences of his act. [60] A police report of a prior spat[61] between
the appellant and the victims is not enough, as nothing in the records show that the
appellant planned in advance the commission of the crime. The principal eyewitness
was not even aware of any prior incident or possible reason which could have led the
appellant to attack the victims.
The Defenses of
Alibi and Denial
The appellant insists that the trial court erred in disbelieving his alibi. He contends
that the testimony of Bernabe Hinario, a neighbor, being a disinterested witness, should
have been given more weight than the untested words of Juanito Gutang. [62]
The trial court certainly could not be faulted for not giving probative weight to the
appellants alibi. Besides being inherently weak for not being airtight, the appellants alibi
cannot prevail as against the positive identification made by the prosecution
witness. On top of its inherent weakness, alibi becomes less plausible as a defense
when it is corroborated only by a relative or a close friend of the accused. [63] At any rate,
it was for the trial judge, using his discretion and his observations at the trial, to
determine whom to believe among the witnesses who disputed the whereabouts of the
appellant in the unholy morning of September 10, 1993.
On the appellants denial, suffice it to say, that said defense cannot prevail over
the positive identification by the eyewitness who had no improper motive to falsely
testify against him as we have mentioned above. [64] It is negative and self-serving, and
cannot be given greater evidentiary weight over the testimony of a credible witness who
testifies on affirmative matters.[65]
The appellants flight after the said incident could be taken as a clear and positive
indication of guilt. It is a sage observation that the flight of an accused from the scene
of the crime and his act of hiding himself until he is arrested are circumstances highly
indicative of guilt.[66] For, as wisely said, the wicked flee even when no man pursueth
but the righteous are as bold as a lion. The appellants sudden and unexplained trip
following the killing of the victims was unmistakably a flight from justice.
Duplicity of the
Information and the
Proper Penalty
It must be noted that only one Information (for double murder) was filed with the
trial court. The records are bereft of any showing that the appellant objected to the
duplicity of the information by filing a motion to quash before his arraignment. Hence,
he is deemed to have waived such defect. [67] In this connection, Section 3 of Rule 120
of the Rules of Court provides:
SEC. 3. Judgment for two or more offenses. When two or more offenses are charged in a single
complaint or information, and the accused fails to object to it before trial, the court may
convict him of as many offenses as are charged and proved, and impose on him the penalty for
each offense, setting out separately the findings of fact and law in each offense.
Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion
temporal which has a range of twelve (12) years and one (1) day to twenty (20) years.
There being no mitigating nor aggravating circumstance that attended the commission
of the crimes, the maximum period of the imposable penalty should be taken from the
medium period of reclusion temporal, the range of which is from fourteen (14) years,
eight (8) months and one (1) day to seventeen (17) years and four (4) months. The
minimum of the indeterminate penalty should be taken from the full range of prision
mayor, which is one degree lower than reclusion temporal. Applying the Indeterminate
Sentence Law,[68] the appellant may be meted an indeterminate sentence of from eight
(8) years and one (1) day of prision mayor, in its medium period, as minimum, to
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its
medium period, as maximum, for each count of homicide.
Amount of Damages
The amount of damages awarded by the trial court must be modified, as it
awarded P17,000.00 for actual damages despite the absence of any documentary
evidence to prove the same. The award shall be deleted. However, temperate damages
may be recovered under Art. 2224 of the Civil Code, when the court finds that some
pecuniary loss has been suffered but its amount cannot, from the nature of the case,
be proved with certainty. In this case, the amount of P25,000.00 would be sufficient,
considering that it is undisputed that the family incurred expenses for the wake and
burial of the victims.[69]
Under Article 2206 of the Civil Code, the heirs of the victims are entitled to
indemnity for loss of earning capacity. Ordinarily, documentary evidence is necessary
for the purpose. By way of exception, testimonial evidence may suffice if the victim was
either (1) self-employed, earning less than the minimum wage under current labor laws,
and judicial notice may be taken of the fact that in the victim's line of work, no
documentary evidence is available; or (2) employed as a daily-wage worker earning
less than the minimum wage under current labor laws.[70] In the case at bar, however,
while the victims mother testified that her sons remitted to her their income, she did not
indicate how much her sons were then earning.[71] Thus, this case does not fall under
any of the exceptions.
 In its decision, the trial court, likewise, awarded the sum of P200,000.00 by way
damages without specifying the amount of each item. In accordance with prevailing
jurisprudence relative to Article 2206 of the Civil Code, the heirs of the victims are
entitled to the total amount of P100,000.00 by way of civil liability. Civil indemnity is
automatically imposed upon the accused without need of proof other than the fact of
the commission of murder or homicide.[72]
Proof of moral damages was presented through the testimony of the mother of
the victims. Moral damages may be awarded in favor of the heirs of the victims upon
sufficient proof of physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation and similar
injury.[73] Considering the pain and anguish of the victims family brought about by their
death, the award of P50,000.00 for each offense is justified. [74]
WHEREFORE, the Decision of the Regional Trial Court of Mandaue City, Branch
56, is hereby AFFIRMED with MODIFICATIONS. The appellant is found GUILTY
beyond reasonable doubt of two (2) counts of homicide as defined and penalized in
Article 249 of the Revised Penal Code, as amended, and is sentenced to suffer an
indeterminate penalty of Eight (8) Years and One (1) day of prision mayor, in its medium
period, as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day
of reclusion temporal in its medium period, as maximum, for each count of homicide.
The appellant is ORDERED to pay the heirs of each of the victims, Teofredo Basalan
and Dominador Basalan, the sums of P50,000.00 representing temperate
damages; P100,000.00 as indemnity ex delicto; and, P100,000.00 as moral damages.

No costs.
SO ORDERED.
 [G.R. Nos. 125180-81. April 22, 1998]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DENNIS DE
GUZMAN, accused-appellant.
DECISION
ROMERO, J.:
The Court is once again confronted with the dilemma of having to choose between
the testimony of a mother and her teen-age son and that of the man they claim is
responsible for the violent demise of their familys breadwinner and first-born son.
For the death of Ernesto Trilles and his son Edwin, accused-appellant Dennis de
Guzman and two others who remain at large[1] were charged with two counts of
murder[2] before the Regional Trial Court of Legazpi City on June 14, 1994, to wit:
That on or about the 13th day of April, 1994, in the City of Legazpi, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, all armed with handguns,
conspiring, confederating and mutually helping one another for a common purpose, did then
and there wilfully, unlawfully and feloniously and with treachery and abuse of superior
strength, shoot with a handgun one ERNESTO TRILLES,[3] thereby inflicting upon the latter
injuries which directly caused his death, to the damage and prejudice of his heirs.
CONTRARY TO LAW.
At the trial, the prosecution presented the testimonies of Rosita and Anthony
Trilles to shed light on the incident. Their combined narration follows.
On the night of April 13, 1994, while Rosita was preparing supper in their modest
home at Sitio Malangka, Taysan, Legazpi City, a young man whom she knew by face
but whose name she did not know barged in through the kitchen door and shot her
husband Ernesto in the head with a short firearm. As Ernesto lay sprawled on the
kitchen floor, the man shot him again on the chest.[4] The man, who was later identified
as accused-appellant Dennis de Guzman, then faced the horrified oldest son and asked
him if he was Edwin. When the latter said yes, he too was shot and hit near the collar
bone.[5] Before he was shot, his uncle who was Rositas brother, Loreto Aringo, was
seen near the eaves of the house. Addressing him, Edwin pleaded for his life
saying, Tio, do not shoot me. I did not do anything wrong. Because Edwin had punched
him the night before, Aringo ignored his nephew and even egged on the gunman,
shouting, Anong tio-tio gadanon an (What Tio, Tio, he should be killed).[6] Anthony, the
other son of Rosita who was hiding under the table, heard his brother pleading with de
Guzman, Dont kill me Tio.[7]
In a short while, Rosita fled and on her way out, espied her cousin, Adriano
Casiban, standing near the kitchen door. [8] Then she heard more gunshots, the same
gunshots heard by Anthony who at the time was still under the table. [9] Like his mother,
he, too, was allowed to escape by his uncles and the man whose name he did not know
but whom he knew was staying with his uncle Adriano. Rosita sought refuge at the
house of her sister, Hedelyn Bandoquillo and spent the night there. This was confirmed
by the latter, who testified as a rebuttal witness for the prosecution. [10]
In the morning, Rosita reported the incident to Barrio Captain Nelson Aringo,
another cousin, who accompanied her to the police headquarters. Mother and son
failed to mention the names of Aringo and Casiban to the police during the investigation,
and both declared at the time that the suspect was unknown or unidentified.[11] When
confronted later with these earlier statements, they explained that at the time of the
incident, although they recognized the face of Dennis de Guzman, they were not aware
of his identity, which is why they told the police that the suspect was unknown or
unidentified.[12] In her confusion, Rosita even said that it was Casiban who shot the
boy. Later, she was not even sure if Casiban fired a gun or if he had a gun at all,
because she was at the moment already running away. [13]
Aringo and Casiban, having gone into hiding, only the defense of de Guzman was
heard at the trial. Dennis de Guzman denied all the accusations against him and set up
an alibi for his defense. He relied on the testimonies of four witnesses, all close friends
of his family,[14] to support his story that on the date and time of the occurrence, he was
at a party at San Jose, Maslog, Legazpi City, which is about three kilometers from
Taysan.[15]
Dennis de Guzman claimed that he and his mother Adelina went to her hometown
of San Jose, Maslog, Legazpi City on April 5, 1994, to visit his ailing grandmother. They
stayed with his grandmother whose name he did not even know, and during his free
time, he helped with some chores and played with friends like Charlie Padilla. On April
13, 1994, Charlies mother Estelita, a childhood friend of Adelinas, celebrated her 52th
birthday, and she decided to treat her town mates to a free dance. Charlie, Dennis, and
her brothers, Felicito and Jerry Watiwat, helped in setting up the light and sound
systems for the dance. They started at around 3:00 oclock in the afternoon and finished
by 6:30 p.m. After a dinner break at 7:00 oclock, the two youngsters manned the music
station until midnight.[16] On cross-examination, de Guzman admitted that his mothers
sister Lolita was the wife of Adriano Casiban. [17]
Hedelyn Bandoquillo was presented by the prosecution to debunk de Guzmans
claim that he stayed with his grandmother when he was in the province. She said that
on at least four occasions, she saw him at his uncle Adrianos house at Sitio Polot,
Taysan, Legazpi City, which is about half a kilometer from Sitio Malangka and was sure
he was staying there.[18]
After trial on the merits, Judge Gregorio A. Consulta of the Regional Trial Court
of Legazpi City, Branch 4, rendered judgment, the decretal portion of which reads thus:
WHEREFORE, in the light of the foregoing findings and left no choice but to follow in
complete obedience the stenosis of a rigorous law that in spirit demands an eye for an eye, a
tooth for a tooth, (LEX TALIONIS) after being convinced beyond a wisp of a doubt of the
guilt of accused DENNIS DE GUZMAN, he is hereby sentenced to suffer in Criminal Case
No. 6717 the penalty of
DEATH
and likewise to suffer in Criminal Case No. 6718 the penalty of
DEATH
and to indemnify Rosita Trilles and Anthony Trilles in the sum of P100,000.00 in each case.
With respect to Loreto Aringo and Adriano Casiban who are at large, let a complete
reproduction by XEROX of the complete records of both cases be sent to the ARCHIVE, in
lieu of the originals which are hereby ordered transmitted within twenty (20) days from
promulgation to the Hon. Supreme Court on automatic review together with the person of
DENNIS DE GUZMAN who shall be confined at the National Penitentiary in Muntinlupa,
Metro Manila pending final resolution of such review.
Issue alias warrants for the arrest of Loreto Aringo and Adriano Casiban pursuant to existing
circular on the matters and the cases shall be revived, insofar as they are concerned, upon their
apprehension or of any of them.
The Clerk of Court is directed to provide the necessary expenses for the reproduction of the
records by XEROX.
SO ORDERED.
In this automatic review, Dennis de Guzman argues that the trial court erred in
appreciating the evidence and in concluding that he was positively identified by the
prosecution witnesses.
After going through the records and evidence of this case, we are convinced that
Dennis de Guzman was correctly convicted by the trial court for the death of Ernesto
and Edwin Trilles.
Accused-appellant makes much of the failure of the eyewitnesses to give his
name or even his description during the initial police investigation of the incident. When
Rosita reported the shooting of her husband and son to the police in the morning of
April 14, 1994, she stated that they were shot by an unknown suspect, and made no
mention of either her older brother Loreto Aringo or her cousin Adriano Casiban. [19] For
his part, Anthony executed an affidavit dated April 19, 1994, referring to the assailant
as an unidentified man. He also did not implicate his uncles, Aringo or Casiban. [20]
The Court believes that the eyewitnesses to the crimes did identify accused-
appellant as the man who shot the victims. In the first place, when they testified at the
trial they positively pointed out to de Guzman as the malefactor. [21] Any doubt cast by
their earlier statements was laid to rest when they were put on the witness stand. In the
case of Jacobo v. Court of Appeals,[22] we affirmed the doctrine that an affidavit cannot
prevail over testimonial evidence uttered in open court, viz.:
An affidavit being taken ex parte is almost always incomplete and often inaccurate, sometimes
from partial suggestion, and sometimes from want of suggestion and inquiries, without the aid
of which the witness may be unable to recall the connected collateral circumstances necessary
for the correction of the first suggestion of his memory and for his accurate recollection of all
that belongs to the subject.[23]
Thus, while an affiant usually merely signs an affidavit which was prepared by another,
in this case,[24] the Assistant City Prosecutor, a witness testifies in court with more
spontaneity, drawing from a memory no longer befuddled by the initial shock of the
occurrence, uttering his own words with minimum guidance or coaxing. If testimonial
evidence is superior to an affidavit, then with more reason should it prevail over a mere
police report which is not even under oath.
In the second place, in her affidavit dated April 19, 1994,[25] Rosita made a more
complete narration of the incident and implicated Aringo and Casiban. She even
managed to identify de Guzman by his surname.[26] Anthony, on the other hand, stated
in his affidavit that although the suspect was unidentified, he could recognize the latter
if spotted, and that is precisely what he did when he testified on November 8, 1995.
Finally, when confronted with their initial reports, both witnesses explained that
although they said the suspect was unknown or unidentified, they were merely referring
to his name. As far as physical attributes were concerned, they had no doubt that they
could recognize the man who snuffed out the life of their loved ones in the blink of an
eye.
Through all these, de Guzman could only deny the charges and come up with an
alibi which falls short of the standards set through time for its acceptability as a foolproof
defense.
He was allegedly at the dance held at San Jose, Maslog, Legazpi City when the
crime was being committed at Sitio Malangka, Taysan. Yet, the records show that
Maslog is a mere three kilometers from Taysan and there are even well-trodden
shortcuts which could drastically reduce travel time from one town to the other. If
anything, it signifies that it was still possiblefor him to have been at the crime scene
even as he claims that he was elsewhere at the time. In this regard, his defense of alibi
must fail.[27]
Furthermore, the positive identification of de Guzman as the man who shot the
victims cannot be overcome by his denial and alibi. The fact that he was not immediately
named by the eyewitnesses when they reported the incident to the police is likewise of
no moment considering that they knew him by face and even identified him in open
court. As we reiterated in the recent case of Bautista v. Court of Appeals:[28]
Positive identification, where categorical and consistent and without any showing of ill motive
on the part of the eyewitness testifying on the matter, prevails over alibi and denial which if
not substantiated by clear and convincing evidence are negative and self-serving evidence
undeserving of weight in law.[29]
In view of these disquisitions, the Court agrees with the court a quo that the guilt
of Dennis de Guzman in the slaying of Ernesto and Edwin Trilles on the night of April
13, 1994, has been proved by the prosecution beyond any reasonable doubt.
The Court, however, differs with the trial court in its imposition of the death penalty
in the two cases under review. It must be noted that this penalty was decreed because
(f)irearms were used, as alleged in the (i)nformation. [30] It is undeniable that an accused
cannot be held liable for a crime not alleged in the information, and the information filed
by the prosecution in this case was for murder qualified by treachery, not for murder
with the use of an unlicensed firearm.
Under R.A. No. 7659, the crime of murder shall be punished by reclusion
perpetua to death if committed with, among other circumstances, treachery, as that
alleged in the information dated June 14, 1994. We agree with the court a
quo that alevosia attended the commission of the crime and that this has been duly
proved by the Peoples evidence. The Trilles family was preparing to sup on the night
of April 13, 1994, when de Guzman suddenly barged into their house from the kitchen
door and, without uttering a word, shot Ernesto, not once, but twice.With the same
coldbloodedness, he shot Edwin even after the boy pleaded for his life. Neither of the
victims was armed at the time, and they could not have resisted the attack even if they
wanted to because of its suddenness and precision. At no time was de Guzman open
to retaliation by his victims. As we held in Bautista:

An unexpected and sudden attack under circumstances which render the victim unable and
unprepared to defend himself by reason of the suddenness and severity of the attack
constitutes alevosia, and the fact that the attack was frontal does not preclude the presence of
treachery.[31]

Apart from treachery, we find no other circumstance, aggravating or mitigating,

which would affect the imposition of the appropriate penalty in the case at bar. Under
these premises, therefore, the punishment that may be properly meted out against the
accused-appellant is the lesser penalty of reclusion perpetua because (w)hen there are
(as in this case) neither mitigating nor aggravating circumstances in the commission of
the deed, the lesser penalty shall be applied. [32]
WHEREFORE, the assailed decision dated June 6, 1996, in Criminal Case No.
6717 and No. 6718 is hereby AFFIRMED with the MODIFICATION that the penalty is
reduced from death to reclusion perpetua in both cases for the reasons aforestated and
the indemnity to Rosita Trilles and Anthony Trilles reduced to P 50,000.00 each Costs
against accused-appellant.
SO ORDERED.
G.R. Nos. 32394 and 32395 September 5, 1930 The appellants denied the facts set forth and attempted to prove an alibi.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, Upon consideration of the evidence for both sides, we agree with the conclusion of
vs. the trial court that the appellants killed Eleno in the manner described above. The
SANDAL, ARIMAO, LONSING, MAMA, and PAMPANG, defendants-appellants. court below did not err in weighing the evidence.

Paulino Gullas for appellants.
Attorney-General Jaranilla for appellee.
AVANCEÑA, C.J.:
The Moros Sandal, Arimao, Lonsing, Mama, and Pampang appeal from the judgment
of the Court of First Instance of Lanao convicting them of murder committed on the
18th of February, 1929, upon the person of Eleno Lamorena, and sentencing each of
them to twenty years of cadena temporal, with the accessories of law, to indemnify
the heirs of the deceased jointly and severally in the amount of P1,000, and to pay
their proportional part of the costs.
On the date mentioned, in Abaga, District of Monungan, Province of Lanao, Inambar,
a Moro woman, heard the appellant Sandal call the deceased, and later saw them
engaged in conversation. While the two were talking, appellant Pampang went up to
them and with a hammer struck the deceased on the back of the neck, felling him to
the ground. Sandal and the rest of the appellants, Lonsing, Arimao, and Mama, then
closed in on the fallen man beating him to death.
Moro Dimaponong testified that early in the morning of that day, he saw Eleno, the
deceased, in Tomas Permites' warehouse, while the appellants were nearby
constructing a house. When witness returned to the warehouse, he saw neither the
deceased nor the defendants where he had seen them before. On that night as he
was going home, witness saw appellants near a sawmill, carrying the corpse of Eleno,
which they threw into the river. During the inquiry made by the Constabulary
lieutenant into Eleno's disappearance, Dimaponong testified to this effect, and the
corpse was found in that part of the river indicated by him.
Another assignment of error alleged by the appellants in this instance deals with the
trial court's refusal to admit a certain witness presented by the defense. The court
took this stand for the reason that this witness had been present during the hearing
notwithstanding the court's order that all witnesses leave the court room. Under such
circumstances it lies within the court's discretion to admit or reject the testimony of the
witness. And although we are of opinion that the court below should have admitted
the testimony of this witness, especially when he stated that he did not hear what the
other witnesses testified, yet there is nothing to show that this error has affected the
appellants' defense. There is nothing to show what this witness would have testified if
admitted, and so it cannot be held that his failure to testify has materially affected the
appellants' defense.
The appellants also assign as an error the fact that the trial court failed to require the
fiscal to exhibit the testimony given by the witnesses during the preliminary
investigation conducted by the justice of the peace. But the only effect of this failure
was to entitle the defense to adduce secondary evidence touching the testimony of
said witnesses, for the purpose of attacking their veracity, should they have been
presented as witnesses during the trial.
Neither did the trial court commit an error in refusing the defense an extension of time
to present Doctor Feliciano, for this is a matter wholly within the court's discretion, the
abuse whereof has not been shown, especially in view of the fact that it was not
informed of the nature of this witness's testimony.
Wherefore, the judgment appealed from is affirmed, with costs against the appellants.
So ordered.

Doctor Pablo Hamoy in the post-mortem examination found the following lesions: The
right side of the neck and the right shoulder were bruised; the neck was fractured and
the right shoulder dislocated; the right eye was bruised; marked cyanosis and acute
hemorrhage of both eyes which were somewhat sunken; marked cyanosis of the lips
with the incisors jutting forward and loose cyanosis and hemorrhage of the gums, and
hemorrhage of the nose; cyanosis of the whole face, a wound in the left arm and
forearm, and a contusion on the breast and abdomen.

The following facts of record explain the motive of the assault: When Tomas Permites
went to Manila to look after certain matters he left Eleno in charge of his interests in
Monungan. While Permites was in Manila, the appellants caused some injuries to his
carabaos, as a result of which Eleno had a dispute with them. Eleno sent word of
what had happened to Permites in Manila, and when the latter returned to Monungan,
he verified the facts and filed a complaint against the appellants. Eleno was to be the
principal witness, and the defendants knew it.
G.R. No. 193966 February 19, 2014
DESIGN SOURCES INTERNATIONAL INC. and KENNETH SY, Petitioners,
vs.
LOURDES L. ERISTINGCOL, Respondent.
RESOLUTION
SERENO, CJ.:
This is a Petition for Review on Certiorari 1 filed by Design Sources International, Inc.
and Kenneth Sy (petitioners) under Rule 45 of the 1997 Rules of Civil Procedure. The
Petition assails the Court of Appeals (CA) Decision2 dated 1 June 2010 and
Resolution3 dated 30 September 2010 in CA G.R. SP No. 98763. The assailed
Decision and Resolution sustained the Orders dated 8 February 2006, 1 June 2006
and 26 February 2007 issued by the Regional Trial Court (RTC) of Makati City in Civil
Case No. 00-850.
Considering that there are no factual issues in this case, we adopt the findings of fact
of the CA, as follows:
Design Sources International, Inc. ("Petitioner Corporation") is a distributor of Pergo
flooring. Sometime in 1998, the Private Respondent bought the said brand of flooring
of the "Cherry Blocked" type from the Petitioner Corporation. The flooring was
installed in her house.
On February 24, 2000, the Private Respondent discovered that the Pergo flooring
installed had unsightly bulges at the joints and seams. The Private Respondent
informed the Petitioners of these defects and the former insisted on the repair or
replacement of the flooring at the expense of the latter.
After several inspections of the alleged defective flooring, meetings between the
parties and exchanges of correspondence, the Petitioner Corporation was given until
May 31, 2000 to replace the installed flooring. Nevertheless, on the deadline, the
Petitioner Corporation did not comply with the demand of the Private Respondent. A
complaint for damages, docketed as Civil Case No.00-850, was thus filed by the
Private Respondent before the RTC on July 13, 2000.
On February 8, 2006, Kenneth Sy, one of the Petitioners' witnesses, testified in open
court. Immediately after his testimony, the following occurred as evidenced by the
transcript of stenographic notes ("TSN"):
COURT : (To Atty. Posadas) Who will be your next witness?
ATTY. POSADAS : Your honor, my next witness will be Stephen Sy, also of Design
Source.
ATTY FORTUN : Your honor, may I know if Mr. Stephen Sy around [sic] the
courtroom?
ATTY. POSADAS : (Pointing to the said witness) He is here.
ATTY. FORTUN : So the witness is actually inside the Courtroom.
ATTY. POSADAS : But, your honor, please, I was asking about it, nahiya lang ako
kay Atty. Fortun.
ATTY. FORTUN : But I was [sic] asked of the exclusion of the witness.
COURT : (To Atty. Posadas) You shall [sic] have to tell the Court of your ready
witness.
ATTY. FORTUN : He already heard the whole testimony of his colleague.
ATTY. POSADAS : I'm sorry, your honor.
COURT : All right. When were [sic] you present him, today or next time.
ATTY. POSADAS : Next time, your honor.
COURT : All right. Next time, Atty. Posadas, if you have other witnesses present in
Court inform us.
ATTY. FORTUN : No, your honor, in fact I will object to the presentation of Mr.
Stephen Sy, because his [sic] here all the time when the witness was in [sic] cross-
examined.
ATTY. POSADAS : Your honor, I will just preserve [sic] my right to present another
witness on the technical aspect of this case.
COURT : Okay. All right. Order. After the completion of the testimony of defendant's
second witness in the person of Mr. Kenneth Sy, [A]tty. Benjamin Posadas, counsel
for the defendants, moved for continuance considering that he is not feeling well and
that he needs time to secure another witness to testify on the technical aspect,
because of the objection on the part of plaintiff's counsel Atty. Philip Sigfrid Fortun on
his plan of presenting of Mr. Stephen Sy as their next witness due to his failure to
inform the Court and the said counsel of the presence of the said intended witness
while Mr. Kenneth Sy was testifying. There being no objection thereto on the part of
Atty. Fortun, reset the continuation of the presentation of defendant's evidence to April
5, 2006 at 8:30 o'clock in the morning.
xxxx
SO ORDERED.4
On 22 March 2006, petitioners moved for a reconsideration of the Order, but their
motion was denied by the RTC on 1 June 2006 on the ground that "the Court deems it
no longer necessary to allow Stephen Sy from testifying [sic] when a different witness
could testify on matters similar to the intended testimony of the former." 5 The Order
also stated that "to allow Stephen Sy from testifying [sic] would work to the
disadvantage of the plaintiff as he already heard the testimony of witness Kenneth
Sy."6
Petitioners filed a Second Motion for Reconsideration (with Leave of Court) dated 19
June 2006, which was likewise denied by the RTC in the assailed Order dated 26
February 2007.7
Petitioners sought recourse before the CA by way of a Petition for Certiorari under
Rule 65 of the Rules of Court. They raised the sole issue of whether the RTC
committed grave abuse of discretion when it refused to allow architect Stephen Sy
(Stephen) to testify as to material matters.8
At the outset, the CA found no sufficient basis that herein respondent previously
asked for the exclusion of other witnesses. It was the duty of respondent’s counsel to
ask for the exclusion of other witnesses, without which, there was nothing to prevent
Stephen from hearing the testimony of petitioners’ other witnesses. Nevertheless,
following the doctrine laid down in People v. Sandal (Sandal), 9 the appellate court
ruled that the RTC did not commit grave abuse of discretion in issuing the assailed
Orders considering that petitioners failed to show that Stephen’s testimony would
bolster their position. Moreover, from the Manifestation of petitioners’ counsel, it
appears that petitioners had another witness who could give a testimony similar to
Stephen’s.
Petitioners elevated the case before us assailing the Decision of the CA. In the
meantime, trial proceeded in the lower court. On 11 February 2014, they filed a
Motion for Issuance of a Writ of Preliminary Mandatory Injunction or Temporary
Restraining Order either to allow the presentation of Stephen as a witness or to
suspend the trial proceedings pending the ruling in the instant Petition.
ASSIGNMENT OF ERRORS
Petitioners raise the following errors allegedly committed by the CA:
Finding that the preclusion of Stephen Sy from testifying as a witness in the trial of the
case did not amount to grave abuse of discretion on the part of Judge Pozon.
Applying the case of People vs. Sandal in justifying the order of exclusion issued by
Judge Pozon, precluding Stephen Sy from testifying as witness.
Concluding that the petitioners had another witness that could have given a similar
testimony as that of Stephen Sy. 10
THE COURT’S RULING
We find the Petition to be impressed with merit.
The principal issue is whether the RTC committed grave abuse of discretion in issuing
the assailed Orders disallowing petitioners from presenting Stephen as their witness.
The controversy arose from the objection of respondent’s counsel to the presentation
of Stephen as petitioners’ witness considering that Stephen was already inside the
courtroom during the presentation of witness Kenneth Sy (Kenneth). However, as
aptly found by the CA, respondent failed to substantiate her claim that there was a
prior request for the exclusion of other witnesses during the presentation of Kenneth.
Respondent did not even allege in her Comment11 that there was any such request.
Section 15, Rule 132 of the Revised Rules of Court provides:
SEC. 15.Exclusion and separation of witnesses. — On any trial or hearing, the judge
may exclude from the court any witness not at the time under examination, so that he
may not hear the testimony of other witnesses. The judge may also cause witnesses
to be kept separate and to be prevented from conversing with one another until all
shall have been examined.
Excluding future witnesses from the courtroom at the time another witness is
testifying, or ordering that these witnesses be kept separate from one another, is
primarily to prevent them from conversing with one another. The purpose is to ensure
that the witnesses testify to the truth by preventing them from being influenced by the
testimonies of the others. In other words, this measure is meant to prevent
connivance or collusion among witnesses. The efficacy of excluding or separating
witnesses has long been recognized as a means of discouraging fabrication,
inaccuracy, and collusion. However, without any motion from the opposing party or
order from the court, there is nothing in the rules that prohibits a witness from hearing
the testimonies of other witnesses.
There is nothing in the records of this case that would show that there was an order of
exclusion from the RTC, or that there was any motion from respondent’s counsel to
exclude other witnesses from the courtroom prior to or even during the presentation of
the testimony of Kenneth. We are one with the CA in finding that under such
circumstances, there was nothing to prevent Stephen from hearing the testimony of
Kenneth. Therefore, the RTC should have allowed Stephen to testify for petitioners.
The RTC and the CA, however, moved on to determine the materiality of the
testimony of Stephen, which became their basis for not allowing the latter to
testify.1âwphi1 Applying Sandal, the CA ruled that the absence of a showing of how
his testimony would bolster the position of petitioners saved the judgment of the RTC
in issuing the order of exclusion.
We agree with petitioners that the application of Sandal is misplaced. Contrary to the
present case, in Sandal there was a court order for exclusion which was disregarded
by the witness. The defiance of the order led to the exercise by the court of its
discretion to admit or reject the testimony of the witness who had defied its order.
Again, in this case, there was no order or motion for exclusion that was defied by
petitioners and their witnesses. Thus, the determination of the materiality of Stephen's
testimony in relation to the strengthening of petitioners' defense was uncalled for.

Without any prior order or at least a motion for exclusion from any of the parties, a
court cannot simply allow or disallow the presentation of a witness solely on the
ground that the latter heard the testimony of another witness. It is the responsibility of
respondent's counsel to protect the interest of his client during the presentation of
other witnesses. If respondent actually believed that the testimony of Kenneth would
greatly affect that of Stephen's, then respondent's counsel was clearly remiss in his
duty to protect the interest of his client when he did not raise the issue of the
exclusion of the witness in a timely manner.

Respondent is bound by the acts of her counsel, including mistakes in the realm of
procedural techniques.12 The exception to the said rule does not apply herein,
considering that there is no showing that she was thereby deprived of due process. At
any rate, respondent is not without recourse even if the court allows the presentation
of the testimony of Stephen, considering the availability of remedies during or after the
presentation of witnesses, including but not limited to the impeachment of testimonies.

Therefore, this Court finds that the R TC committed grave abuse of discretion in not
allowing Stephen to testify notwithstanding the absence of any order for exclusion of
other witnesses during the presentation of Kenneth's testimony.

In view thereof, the RTC is hereby ordered to allow the presentation of Stephen Sy as
witness for petitioners. Accordingly, petitioners' Motion for Issuance of a Writ of
Preliminary Mandatory Injunction or Temporary Restraining Order is now rendered
moot.

WHEREFORE, premises considered, the instant Petition is hereby GRANTED.

SO ORDERED.
G.R. No. L-31342 April 7, 1976
JUAN T. BORROMEO, petitioner,
vs.
COURT OF APPEALS, EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B.
AZNAR, respondent.
G.R. No. L-31740 April 7, 1976
EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, as Special
Administrator of the Estate of Matias H. Aznar, petitioners,
vs.
COURT OF APPEALS and JUAN T. BORROMEO, As Special Administrator of
the Estate of Simeon Rallos, respondents.
Vicente J. Francisco for Juan T. Borromeo.
Ciriaco Lopez, Jr. & Associates for Emmanuel B. Aznar, et al.
BARREDO, J.:
Cross-petitions for the review of the per curiam resolution of the Court of Appeals in
CA-G.R. No. 30092-R, Juan T. Borromeo etc. vs. Emmanuel B. Aznar, et al, dated
November 19, 1969 which review entirely its previous decision of January 30, 1968
thereby ultimately holding that the transactions in question are equitable mortgages
instead of absolute sales of real properties and granting the heirs of the deceased
Simeon Rallos a period of one year from the finality of the resolution within which to
effect a redemption of said properties, without prejudice to the right of the opposing
party to foreclose the declared mortgages if no such redemption takes place and the
amounts stated in the documents are not fully paid, arid ordering furthermore the
Aznars to pay said heirs P10,000 for and as attorney's fees and the costs. In G.R. No.
L-31342, petitioner Juan T. Borromeo, as administrator of the estate of the deceased
Simeon Rallos, prays for the modification of the per curiam resolution in order to
include an award of moral and exemplary damages of P200,000 and P50,000,
respectively, and to increase the award of attorney's fees to not less than P75,000,
whereas in G.R. No.
L-31740, the Aznars are asking that said resolution be set aside and that the decision
of January 30, 1968 be reinstated and affirmed.
There are three preliminary questions We have to resolve. First, Borromeo contends
that this Court has no jurisdiction to entertain the petition of the Aznars in G.R. No. L-
31740 because the latter failed to file said petition within fifteen days from December
20, 1969, the date they were notified of the resolution now under review. Borromeo's
theory is that upon the filing of his own petition in G.R. No. L-31342 on December 20,
1969, by way of appeal from the aforesaid resolution in so far as it failed to grant him
the awards referred to in said petition, the Court of Appeals was divested of
jurisdiction to entertain the motion for reconsideration which the Aznars filed on the
same date, December 22, 1969, in the Court of Appeals praying for the reversal of the
same resolution, copy of which had been received by them only on December 20,
1969. According to Borromeo, what the Aznars should have done upon being notified
of the filing of the petition in G.R. No. L-31342 should have been to file already their
petition for review with this Court instead of filing or continuing with their motion for
reconsideration in the Appellate Court, and that since the latter court had lost its
jurisdiction over the case by reason of his (Borromeo's appeal), citing in this respect
the resolution of this Court of September 3, 1965 in G.R. No. L-24762 (Manila Electric
Co. vs. Public Service Commission et al.), the Aznars' motion for reconsideration did
not suspend their period for appeal to this Court which they made only on February
27, 1970 (erroneously alleged as March 11, 1970 by Borromeo).
Obviously, Borromeo's. contention has absolutely no merit. To start with, when We
issued Our resolution of January 13, 1970, granting the Aznars an extension of fifteen
(15) days from the time they were to be notified of the resolution of the Court of
Appeals of its action on their motion for reconsideration then still pending therein. We
already knew that the petition of Borromeo against the same resolution of the Court of
Appeals had already been filed with Us. In other words, in that resolution, the Court
already recognized the right of the Aznars to file their own separate appeal from the
resolution of the Court of Appeals after the reconsideration thereof was to be denied
by the Court of Appeals notwithstanding Borromeo's appeal was already with Us.
Besides, to sustain Borromeo's theory would lead to the absurd proposition that one
party may be deprived of the right to appeal from the portion of a decision against him
just because the other party who had been notified of the decision ahead had already
perfected his appeal in so far as the said decision adversely affects him. Indeed, We
have already virtually ruled against such pose of Borromeo in Timoteo Simsim vs. The
Hon. Judge Feliciano Belmonte etc. et al., 34 SCRA 536 and People vs. Ursua, 60
Phil. 252. The Meralco resolution invoked by Borromeo is not in point.
Borromeo secondly tries to make capital of the fact that while it is true that the brief of
the Aznars was filed on time, on August 31, 1970, the last day therefor, it did not
contain a digest of the arguments nor the text of the resolution sought to be reviewed,
which are required by the rules (Sections 1 and 6 of Rule 56 read together with
Section 16 of Rule 46) and that these requirements were complied with only on
September 19, 1970, for which reason, he prays that their appeal should be
dismissed pursuant to Section 1 (b) of Rule 50. We are not impressed. The digest of
arguments and the copy of the appealed resolution are not in strict sense parts of the
brief so as to justify the charge that the Aznars filed their brief in two parts. No
conceivsble prejudice could have been caused to anyone concerned by their late filing
nineteen days after the reglementary period had expired, the brief itself, with the
assignments of error and the arguments supporting them, having been filed already
within said period. Of course, it would be Ideal if all the requirements of the rules were
complied with on time, but there is nothing in principle or in the precedents relied upon
by Borromeo that makes it imperative for Us to dismiss an appeal upon no more
ground than such obviously unintentional and harmless technicality as the omission of
the requirements herein complained of.
The third preliminary issue raised by Borromeo is that the appeal of the Aznars in
G.R. No. L-31342 involves purely questions of fact. It is argued that the reversal by
the Court of Appeals of its original conclusion, upholding the trial court, that the
transactions in question were absolute sales, by holding in its per curiam resolution
that they were actually equitable mortgages, does not constitute an error of law but a
mere reappraisal or reweighing of the evidence which it has the power to do.
Borromeo insists that a ruling as to whether a transaction is a sale or a mortgage
involves no more than evaluation of the evidence and is consequently a factual matter
beyond the Supreme Court's authority to review except under peculiar circumstances
that do not obtain here.
To be sure, this is not the first instance that a reversal by the Court of Appeals of its
own original decision has been brought to Our attention. And indeed, where the
reversal was the result exclusively of a reevaluation or reweighing of the evidence,
this Court has refrained from interfering. No doubt, it would be inimical to the interests
of justice and would not be conducive to the fair and just resolution of judicial
controversies to deprive a court of the power to reconsider possible errors committed
by it in any of its actuations. It is in fact one of the inherent powers of courts "to amend
and control its process and orders so as to make them conformable to law and
justice." (Section 5 (g), Rule 135) And the Court of Appeals is certainly included in the
contemplation of such rule. The only limitation to this power is that it cannot be
exercised anymore after the action or judgment concerned has already become final
and executory by the expiration of the corresponding reglementary period for the
purpose, this as a matter of public policy requiring that litigations should from the very
nature of things have a definite conclusion at a given time even at the risk of
occasional errors or unintended injustice.
We perceive however that the instant case does not fall under the foregoing
principles. While the main impugned resolution does relate ultimately to factual
conclusions of the Court of Appeals, We see that in reversing its previous findings of
fact, which it arrived at after excluding on grounds of legal incompetency the
corresponding evidence presented by Borromeo, the Appellate Court first reversed
those rulings on the admissibility of said evidence and declared them competent, and
then predicated its new factual conclusions on these subsequently admitted evidence
it had rejected in its original decision. And so, it is safe to presume that had not the
Appellate Court reversed its legal rulings on the admissibility or competency of the
evidence referred to, it would not have reversed its actual conclusion as to the nature
of the transactions in controversy. Accordingly, and on the theory that if this Court
should hold that the later rulings of the Court of Appeals on the admissibility of
evidence are erroneous in law, the inevitable result would be that the factual
conclusions of said court in its original decision, which were favorable to the Aznars,
would be revived, it is now the position of the Aznars that their attack against said
later rulings constitute legal issues over which this Court has jurisdiction. After
carefully studying all the points respectively raised by the parties, We are convinced
that this contention is well taken and We shall now proceed to resolve the legal issues
on admissibility of evidence which are extensively, exhaustively and very well
discussed by both counsel in their briefs and other papers filed with the Court and for
which they are both worthily deserving of commendation for unusual diligence and
expertise in the work of advocacy, thereby lightening considerably the work of the
Court. We refer equally to the late Senator Vicente J. Francisco, counsel for
Borromeo, and Atty. Ciriaco Lopez Jr., who is appearing for the Aznars.
As already stated, the main controversy here centers on the true nature of the three
documents, Exhibits A, B and C, which on their faces are unquestionably deeds of
absolute sale of the real properties therein described executed by the deceased
Simeon Rallos on various dates in favor of Emmanuel Aznar, in Exhibits A and C, and
his sister, Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T.
Borromeo, as administrator of the estate of Simeon Rallos, alleged that these
documents were in fact equitable mortgages to secure loans granted to Rallos by
Matias Aznar, deceased father of Emmanuel and Alma, and prayed for their
reformation. The trial court dismissed the said complaint and on appeal, said
dismissal was affirmed by the Court of Appeals in its original decision of January 30,
1968 penned by Justice Ramon NOLASCO and concurred in by Presiding Justice
Francisco B. Capistrano and Justice Antonio Cañizares The pertinent portions of said
decision read thus:
We have examined Exhibits A, B and C carefully, and we find them
clear, unambiguous and unequivocal. If the terms of a contract are
clear and leave no doubt upon the intention of the contracting
parties, the literal meaning of its stipulations shall control. (Article
1370, Civil Code.) The intention of the parties is to be deduced
from the language employed by them, and the terms of the
contract, where unambiguous, are conclusive, in the absence of
averment and proof of mistake, the question being, not what
intention existed in the minds of the parties, but what intention is
expressed by the language used. When a written contract is clear
and unequivocal, its meaning must be determined by its contents
alone; and a meaning' cannot be given it other than that
expressed. (City of Manila vs. Rizal Park C., 53 Phil. 515; 17
C.J.S. 700.).
According to the testimony of Crispina Rallos Alcantara, who
claimed to have been present when the transactions took place,
her deceased father merely borrowed money from the late Matias
Aznar in the sums of P6,000.00 and P35,000.00 and to secure the
repayment thereof mortgaged to the latter the properties described
in Exhibits A, B and C. She testified that the transactions were
disguised as absolute sales and Rallos was assured by Matias
Aznar that he could exercise the right to repurchase the lots and
would deliver to him the corresponding options in writing.
We find the testimony of Crispina Rallos Alcantara in this respect
unreliable and insufficient to justify the reformation of the
instruments in question. While it is true that relationship does not
disqualify a witness, it calls for a close scrutiny of his testimony.
For obvious reasons, the testimony of close relatives by affinity or
consanguinity to corroborate a claim is not given much credence.
(People vs. Guzman, 70 Phil. 23.) As correctly observed by the
trial court, her testimony cannot be considered as absolutely
unbiased or impartial, as she was naturally interested in an
outcome of the case favorable to the plaintiff. More than this,
however, the record shows that Rallos was even cautioned by his
daughter Crispina and her husband before signing Exhibit A. The
fact remains that Exhibits A, B and C were signed by Rallos
himself as a party thereto. His successors-in-interest cannot now
be heard to complain that the parties to said exhibits intended the
same to be loans with mortgages contrary to what are clearly
expressed therein. The natural presumption is that one does not
sign a document without first informing himself or its contents, and
that presumption acquires greater force where, as in the case at
bar, not only one but several documents, executed at different
times, were signed by Rallos. (Javier vs. Javier, 7 Phil. 261.) It is
the duty of every contracting party to learn and know the contents
of a contract before he signs and delivers it. He owes this duty to
the other party to the contract, because the latter may, and
probably will pay his money and shape his action in reliance upon
the agreement. To permit a party, when sued on a written contract,
to admit that he signed it but to deny that it expresses the
agreement he made, or to allow him to admit that he signed it but
did not read it, or know its stipulations, would absolutely destroy
the value of all contracts. (Tan Tun Sia vs. Yu Bino Sentua, 56
Phil. 711; Moran, Idem pp. 123-124.).
The appellant urges that Exhibits A-2, A-3, B-3 and C-5, which,
according to Crispina Rallos Alcantara, were her notations
allegedly representing the deductions made by Matias Aznar for
advance interest, attorney's fees and miscellanous expenses are
corroborative of her testimony that the transactions in controversy
were really loans with mortgages. We, likewise, find the said
exhibits weak and unsatisfactor as evidence of the facts asserted.
They are clearly self-serving, as they were admittedly prepared by
the declarant herself (2 Wharton's Criminal Evidence, Sec. 690; 2
Jones on Evidence, 2d., Ed., Sec. 895), who was a daughter of the
deceased Rallos and who cannot, therefore, be said to be
disinterested witness. With respect to Exhibit J, the option to
repurchae Lots Nos. 462 and 7032, also relied upon by the
appellant as allegedly corroborative of the testimony of Crispina
Rallos Alcantara that all the transactions in question were loans
secured by mortgages, it is to be noted that said exhibit his to do
with the two lots mentioned therein and none other. Certainly, it is
no proof that Rallos was similarly given a written option to redeem
any of the lots covered by Exhibits B and C, which, according to
Crispina Rallos Alcantara, was taken back by Matias Aznar but
never renewed. The evidence shows that the period fixed in
Exhibit J expired without the lots involved being redeemed.
To show, too, that Matias Aznar had agreed to the repurchase of
the lots in question by Rallos, the plaintiff presented at the trial of
the case Exhibit L, which appears to be a copy of a draft of deed of
absolute sale. This exhibit deserves but the scantest
consideration, it being undated, unsigned and unsubscribed by any
purported party thereto. Besides, even granting arguendo that the
same was prepared by a lawyer of the Aznars, as alleged by
Crispina Rallos Alcantara, we fail to see its materiality to the
resolution of the main issue involved in this case of whether or not
reformation is proper or justified, as the draft appears to have been
drawn in favor of Crispina RalloE Alcantara who was not a party to
the instruments sought to be reformed, and there is nothing in said
exhibit to indicate that the contested transactions were really loans
secure by mortgages.
As to Exhibits Q, Q-1, Q-2 Q-3, R and R-1, which, according to the
appellant, were erroneously ignored by the court below, the same
invariably refer to an alleged indebtedness of Rallos to Matias
Aznar and not to the defendants, Emmanuel and Alma Aznar, to
whom the properties in question appear to have been sold
(Exhibits A, B and C). The said exhibits fail to show clearly and
satisfactorily that the transactions mentioned therein relate to the
same transactions and the same parcels of land involved in the
case at bar.
The appellant further contends that the considerations paid for the
lots in dispute were very inadequate or unusually low which would
justify reformation under the provisions of Articles 1602, paragraph
1, and 1604, of the Civil Code. This contention is untenable.
The evidence shows that Lot No. 7032 was sold to the defendant
Emmanuel for P6,000.00 (Exhibit A), which was higher than its
assessed value of P4,447.25 in 1954 when the transaction took
place (Exhibit A-1). The price paid for Lots Nos. 519-B, 519-C, 467
and 490 is P40,000.00 also in lump sum (Exhibit C). The total
consideration for said six lots is P45,000.00, which was more than
one-half, or approximately 60%, of their total assessed value of
P74,647.00 at the time of transaction in 1954 (Exhibits B-1, B-2, C-
1, C-2, C-3 and C4). It is to be noted that at the time of the sale,
there was a mortgage encumbrance of P5,000.00 on Lots Nos.
2713 and 7728 in favor of the Go Chan & Sons Realty
Corporation, while Lots Nos. 519-B, 519-C, 467 and 490 had a
mortgage encumbrance of P20,000.00 in favor of the Philippine
National Bank, which obligations were assumed by the
defendants-vendees (Exhibits 27, 28, 29, 30, 32, 33 and 34). In
fact, when Exhibit C was executed, the indebtedness to the bank
was already due and demands for the payment thereof had been
made upon Rallos (Exhibits H and H-1).
On this question of the vsluation of the subject lots, the plaintiff
presented HIPOLITO S. Ricardo, at one time Deputy City
Assessor in Cebu City, who testified that the assessment of a real
estate property was only about 40% of its fair market value, but the
same was not the basis for determining the fair market value of a
real estate property; that the factors considered by their office in
appraising the fair market value of a real estate property were the
transactions of the parties and the prices appearing in the deeds of
sale of the adjacent or neighboring lots, but in the absence thereof,
the capitalization system was used, based upon the investment in
the property, its income, plus 6% interest annually after deductions
for taxes paid, insurance premiums, repairs, losses and other
miscellaneous expenses; and that in the assessment of real
properties their office had a schedule of values to be followed, and
a partial revision of the assessments was made yearly. According
to him, however, their scheal of was not applied in the assessment
of Lots Nos. 2713 and 7728, covered by tax declarations, Exhibits
B-1 and B-2, and subject matter of Exhibit B, and of Lots Nos. 519-
C, 619-B, 46'7 and 490, covered by tax declarations, Exhibits C-1,
C-2, C-3 and C4 and subject matter of Exhibit C. As to the
assessment of Lot No. 7032, covered by tax declaration, Exhibit A-
1, and subject matter of Exhibit A, the said schedule was used. At
any rate, taking the assessment of the seven lots involved in this
case as a reasonable basis for determining their actual valuation at
the time of the transactions, and considering the encumbrances
existing on six of the lots and their purchase by the defendants,
Emmanuel and Alma Aznar, at one time and in lump sums, this
Court is not prepared to conclude that under the attendant
circumstances, the considerations paid for the lots in question
were unusually inadequate or shockingly low to warrant the
application of the provisions of paragraph No. I of Article 1602 of
the Civil Code on equitable mortgage. (Manalo vs. Gueco, 42 Phil.
925; Cabigao vs. Lim, 50 Phil. 844.)
The appellant points out that, according to the bank records,
Exhibits T, T-1, U U-1, V, V-1, W and W-1, the appraised values of
the lots mortgaged with the bank were considerably higher than
the prices paid for them. The fact remains, however, that the
mortgage obligation of Rallos secured by the same six lots was
only P20,000.00, which was assumed by the defendants-vendees.
Besides, no bank appraiser or representative was presented by
the plaintiff at the trial to testify as to how the appraised values
appearing in said exhibits were arrive at.
On the other hand, the testimony of Vicente Kyamko also relied
upon by the appellant to prove the alleged fair market values of the
subject lots, deserves but scant consideration. The said witness
admitted that he was not a licensed appraiser, and that he did not
know what the assessed values of the lots in question were in
1954, although, according to him, the assessed value of a real
property was the basis for computing or estimating its fair market
value. However, even granting arguendo that there were
differences in value or some inadequacy of consideration here,
nevertheless; the same cannot be said to be controlling when
viewed in the light of the entire evidence Page 341 adduced in this
case. A difference in value is not always a decisive factor for
determining whether the contract is one of sale with right to
repurchase or a mere loan with guaranty. (Ocuma vs. Olandesca
[CL] 47 O.G. 1902.) Mere inadequacy is not a sufficient ground for
the rescission or resolution of a contract when both parties, as in
the instant case, were in a position to form an independent
judgment concerning the transaction. (Askay vs. Coselan 46 Phil.
179.)
In its tenth assignment of error, the appellant assails the trial
court's finding that the defendant vendees were in possession of
the lots in question after the execution of the deeds of absolute
sale, Exhibits A, B, and C. It contends that the defendants never
possessed the contested lots. We see no merit in this contention.
The records show that after the execution of the documents in
question, the defendants, Emmanuel and Alma Aznar, transferred
in their names the tax declarations covering the properties sold to
them, paid the taxes thereon and caused the issuance of new
certificates of title accordingly (Exhibits 7, 8, 9, 10, 11, 12, 21, 22,
24, 25, 26, 35, 36, 37, 38, 39 and 40). They demanded for the
payment to them of the rentals due from the tenants of the lots,
and began to collect the rentals from them after the maturity of the
promissory note of Rallos for P1,800.00, Exhibit I, which,
according to the defendant, Emmanuel, represented the rentals for
one year collected in advance by Rallos from the lessees.
Thereafter, defendants Emmanuel and Alma Aznar filed detainer
suits against those occupants who failed to pay their rents to them
(Exhibits D to D-21, inclusive, 41, 41-A, 41-B, 41-C and 41-D).
Certainly, those facts belie the appellant's claim that the defendant
vendees were never in possession of the lots in dispute.
From the evidence adduced, we are satisfied that after the
execution of the deeds of absolute sale, Exhibits A, B and C, the
defendants vendees took possession of the subject lots, and they
were in possession thereof and collected the rentals due until the
plaintiff's administrator was authorized by the court a quo to collect
the rents and deposit them in a bank, subject to the court's
disposition.
The appellant capitalizes, too, on the statement, Exhibit K, which
allegedly shows that Matias Aznar charged Rallos with the
payment of the taxes due on the contested lots. According to
Crispina Rallos Alcantara, the said exhibit was prepared by an
employee of Matias Aznar upon the latter's orders, when she went
to see him concerning the repurchase of the lots. This, however,
was denied by the defendant, Emmanuel Aznar, who claimed that
after the sale, neither Rallos nor his daughter Crispina went to see
any of the Aznars in their office for the redemption of the lots. The
exhibit in question, allegedly a statement of account of Rallos to
Matias Aznar involving the disputed transactions is neither dated
nor signed. much less by the party sought to be charged. The
alleged writer thereof was not presented at the trial of the case,
and we have only the biased testimony of Crispina as to its
authenticity or preparation. Even if it were true, however, that the
writing was made, as alleged by Crispina, we cannot consider the
name as proof of what was said or transacted then. The mere
making of written -memorandum immediately after the interview
does not make the memorandum affirmative intrinsic proof of the
things said or transacted. (32 CJS 948.) Knowledge on the part of
the person who made the memorandum, at the time it was made,
that the statements or entries therein were correct must be shown
(32 OJS 947), and this the plaintiff failed to do. On the other hand,
the record indubitably shows that after the execution of the
questioned instruments, the taxes on the lots subject matter
thereof were paid by the defendants vendees. Consequently, we
 hold that Exhibit K has no evidentiary value, and the lower court becomes most important. (Cuyugan vs. Santos,
was correct in disregarding it ( Pp 82- 95, Record of L-31740.) 34 Phil. 100, 114-115.)

However, in its per curiam resolution of November 19, 1969, wherein Presiding Thus, while the testimony of Crispina Rallos Alcantara may nor, be
Justice Capistrano who had by then been elevated to this Court was substituted by free from bias, she being the daughter of the deceased, Simeon
his successor Presiding Justice Julio Villamor, this rather strong position taken by the Rallos, the same should not, however, be totally rejected on the
appellate court was completely reversed by itself as follows: ground of bias alone (U.S. vs. Mante, 27 Phil. 124; People vs.
Pagaduan 37 Phil. 90), considering that it appears to be clearly
While it is true that in our decision rendered in this case, we held and sufficiently supported by memoranda which, as already stated,
that the notations or memoranda of Crispina Rallos Alcantara are admissible in evidence as part of the res gestae (Exhibits A-2,
marked as Exhibits A-2, A-3, B3 and C5 were self-serving and A-3, B-3 and C-5) and by the ledgers of the Philippine National 7
unsatisfactory as evidence of the facts asserted (Decision, p. 24), Bank .(Exhibits X and Y). Besides, mere relationship of a witness
the same, however, as now correctly contended by the plaintiff- to a party does not discredit his testimony in court, (U.S. vs.
appellant in his motion for reconsideration, may be considered as Mante, supra.)
constituting part of the res gestae, and as such, are admissible in
evidence to show the nature of the contracts in question and the In this connection, the appellant has pointed out in his motion
relation of the parties involved. under consideration that on of this Court's decision, there was an
erroneous citation of C.J.S., i.e., Vol. 32 pp. 947-948 thereof. The
Statements, acts or conduct accompanying or said citation, however, appears and may be found in the 1964
so nearly connected with the main ion as to edition of the Corpus Juris Secundum, Vol. 32, pages 947-948.
form a part of it, and which illustrate, elucidate
qualify, or the act, are admissible as part of In the case at bar, there is another factor why the transactions in
the res gestae. Accordingly, the attendant question should be considered as equitable mortgages. This factor
circumstances and the statements then made consists of the unusual inadequacy of the prices of the sale of the
by the pudes are admissible as part of the res properties involved. For purposes of comparison, the prices paid
gestae to show the execution of a contract, for the properties mentioned in Exhibits A, B and C and the asses
and, where relevant, matters said and done values thereof are hereunder tabulated:
which are parts of the res gestae of the
negotiation and execution of a contract are
admissible to show the existence and nature of Lot Purchase Assessment
the contract and the relation of the parties. No. Price as per Tax
Matters attendant upon a sale or conveyance declaration
may also be admissible m part of the res
gestae. (32 CJS 30-32.) 7032 P6,000.00 P4.447.25
(Exh. A) (Exh. A-1)
Coversations occurring during the negotiation
of a loan or other transaction, as well as the 2713) 4,679.00
instrument given or received, being part of the (Exh. B-1)
res gestae, are competent evidence to show
the Page 343 nature of the transaction and the 7728) 5,000.00 9,308.00
parties for whose benefit it was made, where (Exh, B, (Exh. B- 2)
that fact is material. (National Bank vs
Kennedy, 17 Wall. [U.S.] 19, 21 L. Ed. 554, 519- 150.00
cited in 20 Am. Jur. 57.) C) (Exh. C-1)

519- 31.300.00
... The character of the transaction is precisely
B) (Exh. C-2)
what the intention of the parties at the time
made it. It will therefore be discovered that the
467 ) 17,760.00
testimony of those who were present at the
(Exh. C-3)
time the instrument was made, and especially
of those who participated in the transaction,

490 ) 40,000.00
(Exh. C)
P51,000.00
From the foregoing tabulation, it can be seen that the total amount
paid to Simeon Rallos for all the properties involved is only
P51,000.00 as against the total assessed values thereof which
amounted to P79,084.25, or a difference of P28,084.25. In short,
the total sum paid as purchase price for the subject lots represents
only 64% of their total assessed valuation. To our mind, this
constitutes a strong indication that the transactions in question
were really loans with mortgages and not absolute sale.
Moreover, it appears that Lots Nos. 519-C, 519-B, 467 and 490
covered by the deed of absolute sale (Exhibit C) were previously
mortgaged with the Philippine National Bank, which obligation was
assumed by the supposed vendee in the transaction under
consideration. As appraised by the Philippine National Bank and
as shown in its inspection and appraisal report, marked as Exhibits
T, U and V in this case, the market values, respectively, of said
properties are as follows:
TCT No. 1096 - Lot No. 490
Market value - Land
572 sq. m. at P25/sq. m. ...................P14,300.00
TCT No. 10915 - Lot No. 467
Market value - land
888 sq. m. at P25/sq. m. ...................P22,200.00
TCT No. 10832 - Lots Nos.
519-B and 519-C
Market value - land
14,242 sq. m. at P10/sq. m. ................142,420.00
Total. . . . . . . . . .
P178,920.00.
There is, therefore, a difference of P138,920.00 between the
11,440.00
purchase price of the same properties stated at P40,000.00 in the
(Exh. C-4)
deed of absolute sale (Exhibit C) and the total market value as
appraised by the Philippine National Bank amounting to
P79,084.25 P178,920.00.
Under Republic Act 357, otherwise known as the General Banking
Act, a bank may grant loans against a real estate security and
improvements thereon on the basis of the appraised value of the
real estate made by the bank itself. Section 78 of said Act provides
that "loans against real estate security shall not exceed 70% of the
appraised value of the improvement." Inasmuch as the appraisal of
the mortgage values of the lots in question were made by
competent officers of the Philippine National Bank in the
performance of their assigned duties and who are presumed to
have regularly performed such duties, the same are not only
admissible in evidence but are prima facie evidence of the facts
therein stated.
Entries in official records made in the
performance of his duty by a public officer of
the Philippines, or by a person in the
performance of a duty specially enjoined by
law, are prima facie evidence of the facts
therein stated. (Section 38, Rule 130, Rules of
Court.)
If a prima facie, case exists, it sustains the quantum of evidence
on the point which it covers, shifting the burden of proof to the
other party. It relieves a party of the burden of proving the fact
presumed. The same result is effected by any substitute for
evidence, such as statutory regulations prescribing prima
facie evidence of specified facts. (1 Jones on, Evidence 2 Ed.,
Sec. 369.)
It results, therefore, as previously stated, that the appraisal of the
lots in question made by the officials of the Philippine National
Bank in the performance of a duty especially enjoined by law is not
only admissible in evidence, but is a prima facie evidence of the
specified facts stated therein. The defendants, however, presented
no evidence to rebut the same. We have here, therefore, a case
where four of the seven lots involved appear to have been sold for
the total sum of P40,000.00 (Exhibit C), which is equivalent to only
22% of their market values as appraised by the Philippine National
Bank. Certainly, this fact clearly bolsters the plaintiff's claim that
the transactions in controversy were really loans secured by
mortgages and not absolute sales, as there is gross unusual
inadequacy of the prices paid for the same. The fact that the
properties were mortgaged and a notice of lis pendens was
annotated on the corresponding certificate of title at the time of the
sale does not lessen nor affect the values of the lands.
 It has been held that in determining the amount
of compensation, or the market value of the
property taken, no account should be given ...
to the fact that the property is mortgaged. (City
of Detroit vs. Fidelity Realty Co., 182 N. W.
140, 213 Mich., cited in 29 C.J.S. 972-973.)
As regards the lis pendens annotation on the certificates of title of
the subject lots, the facts show that the same arose from the action
for support filed by Lourdes Rallos against her husband, Simeon
Rallos. Such annotation appears to be improper as an action for
support is one in personam and a notice of lis pendens is available
only in real actions, that is, actions affecting the title to or the right
of possession of real property and not in any other action.
(Saavedra vs. Martinez, 58 Phil. 767; Garchitorena vs. Register of
Deeds, G.R. No. L-9731, May 11, 1957; Somes vs. Government of
the Phil., 62 Phil. 432; and Geronimo vs. Navs, G.R. No. L-12111,
January 31, 1969.)
On the question of possession of the properties in litigation,
however, which was likewise raised by the appellant in his motion
under consideration, we are not disposed to disturb our findings on
this point. At least, the records show that after the execution of the
documents in question (Exhibits A, B and C), the defendants
exercise over the litigated properties acts constitutive of dominion
and possession for sometime prior to the appointment of the
plaintiff-appellant as the administrator thereof in 1957. The
transferred in then names the tax declarations of the properties
described therein, cause the issuance of new certificates of title
thereto accordingly in July, August and November, 1954, and paid
the corresponding taxes therein (Exhibits 7 to 12, 21 to 26 and 36
to 40). Prior to the institution of the present action, the defendants,
too, appeared to have demanded for the payment to them of the
rentals due from the lands in dispute, and in 1956, they filed
detainer suits against the occupants thereof who failed or refused
to pay the rents to them (Exhibits D to D-21, inclusive, and 41, 41-
A to 41-D, inclusive).
It appears, to that after the death of Simeon Rallos in 1956, the
plaintiff who was appointed special administrator of the decedents
estate was authorized by the court a quo to collect the rentals due
from subject premises in an order issued on August 8, 1957 and
had since then been in possession of the lots in question up to the
present (printed Record on Appeal, pp. 34-38). Thus, paragraph 2
of Article 1602 of the Civil Code is not applicable in the present
case.( Pp. 117-124. Id.)
Thus, as may be seen, in overturning its own previous conclusion that the deeds in
question are really absolute sales by subsequently finding that they are equitable
mortgages, the Court of Appeals did not do it by just committing a turnabout in its
appreciation or evaluation of the evidence. Rather, it reversed first its rulings on the
admissibility of the relevant evidence by admitting those it had rejected in its original
decision and then premised the reversal of its conclusions therein on these newly
admitted evidence. Indeed, it appears to Us from the above ratiocination of the Court
of Appeals in its per curiam resolution, considered together with the arguments
adduced by it relative to the same matters in its original decision, that had that court
found no reason to admit and take into account said evidence, it would not have
reversed its previous finding that the subject deeds are absolute sales. In the final
analysis, therefore, the specific question of law raised by the Aznars in this appeal is
whether or not the Court of Appeals committed a legal error in admitting the evidence
it had originally held to be incompetent. To reiterate, it is evidently their position that in
the affirmative, no alternative is left to Us except to grant the prayer of their petition.
The thrust of the per curiam resolution is that the plaintiff Borromeo was able to prove
that the defendants Aznars "retained part of the purchase price" stipulated in deeds in
question and that there was unusual inadequacy of said purchase price thereby
justifying the use in this case of the presumption created by Article 1602 of the Civil
Code whenever said circumstances are shown (Paragraphs 1 and 4 of said article).
According to the Court of Appeals, these circumstances were proven through, among
other evidence, the testimony of plaintiff Crispina Rallos, Alcantara, the daughter of
the deceased Simeon Rallos, who declared that she was present on all occasions
when the three transactions in dispute took place between her father and Matias
Aznar and that while thus listening to their conversations she took down notes of the
various amounts mentioned by them and the respective purposes thereof such as
interest, attorney's fees, other obligations to be paid out of the money being borrowed
by her father, etc., which notes were Identified at the trial as Exhibits A-2, A-3, B-3
and C-5. More specifically, the Court of Appeals held that because the testimony of
the witness Alcantara was corroborated by these notes, it should be believed, from
which it can be gathered that it was only because said notes were considered by it as
inadmissible that in its original decision, said testimony and notes were deemed to be
without evidentiary value for being self-serving. "While it is true," says the appealed
resolution, "that in our decision rendered in this case, we held that the notations or
memoranda of Cristina Rallos Alcantara marked as Exhibits A-2, A-3, B-3 and C-5.
More specifically, the Court of Appeals held that because the testimony and notes
were deemed to be without evidentiary value for being self-serving. "While it is true,"
says the appealed resolution, "that in our decision rendered in this case, we held hat
the notations or memoranda of Cristina Rallos Alcantara marked as Exhibit A-2, A-3,
B-3 and C-5 were self-serving and unsatisfactory as evidence of the facts asserted
(Decision, p. 24), the same, however, as nor correctly contended by plaintiff-appellant
in his motion for reconsideration, may be considered as constituting part of the res
gestae, and as such are admissible in evidence to show the nature of the contracts in
question and the relation of the parties involved." (p. 18, Annex C of the petition.) It is
the ruling upholding the admissibility of said notes and memoranda as parts of the res
gestae that the Aznars contend to be a legal error committed by the Court of Appeals.
We cannot see how the disputed notes and memoranda can be considered in any
sense as part of the res gestaeas this matter is known in the law of evidence. It must
be borne in mind, in this connection, that Crispina was not a party to the transaction in
question. Only Simeon Rallos, on the one hand, and Matias Aznar, if she is to be
believed, or Emmanuel and Alma Aznar, as the documents show, on the other, were
the parties thereto. The record does not reveal why Crispina was with her father and
the time, hence, there can be no basis for holding that she actually took part in the
transaction. That she allegedly took notes thereof while there present made her at
best only a witness not a party. It cannot be said, therefore, that her taking down of
her alleged notes, absent any showing that she was requested or directed by the
parties to do so or that the parties, more particularly the Aznars, who are being sought
to be bound by then, knew what she was doing, constitute part of the transaction,
the res gestae itself. If such alleged taking of notes by Crispina has to be given any
legal significance at all, the most that it can be is that it is one circumstance at all, the
most that it can be is that it is one circumstance relevant to the main fact in dispute. In
other words it could at the most be only circumstantial evidence.
The trouble however is that the admission of said notes and memoranda suffers from
a fatal defect. No witness other than Crispina has testified as to the veracity of her
testimony relative to her alleged notes and memoranda. Not even her husband who,
according to her, was present on one of the occasions in issue, was called to testify. It
cannot be denied that Crispina is interested in the outcome of this case. In the words
of the Court of Appeals itself in its original decision, "her testimony cannot be
considered as absolutely unbiased or impartial", hence, "unreliable and insufficient to
justify the reformation of the instruments in question." Such being the case, how can
the notes and memoranda in dispute add any weight to her testimony, when she
herself created them? Surely, they cannot have anymore credibility than her own
declarations given under oath in open court.
The extensive and repeated arguments of the parties relative to the issue of whether
or not self-serving statements may be admitted in evidence as parts of the res gestae
are very interesting and illuminating, but We fee they are rather very interesting and
illuminating, but We feel they are rather off tangent. The notes supposedly prepared
by witness Alcantara during the transaction between her father and the Aznars do not
partake at all of the nature of hearsay evidence. If anything, they constitute
memoranda contemplated in Section 10 or Rule 132 which provides:
SEC. 10. When witness may refer to memorandum. — A witness
may be allowed to refresh his memory respecting a fact, by
anything written by himself or under his direction at the time when
the fact occurred, or immediately thereafter, or at any other time
when the fact was fresh in his memory and he knew that the same
was correctly stated in the writing; but in such case the writing
must be produced and may be inspected by the adverse party,
who may, if he chooses, cross-examine the witness upon it, and
may read it in evidence. So, also, a witness may testify from such
a writing, though he retain no recollection of the particular facts, if
he is able to swear that the writing correctly stated the transaction
when made; but such evidence must be received with caution.
As may be observed, this provision applies only when it is shown beforehand that
there is need to refresh the memory of the witness, which is not the case here.
Nowhere in the record is there any indication that Alcantara needed during her
testimony the aid of any memorandum in respect to the matters contained in the notes
in dispute. Besides, under the above witness does not constitute evidence, and may
not be admitted as such, for the simple reason that the witness has just the same to
testify on the basis of refreshed memory. In other words, where the witness has
testified independently of or after his testimony has been refreshed by a
memorandum of the events in dispute, such memorandum is not admissible as
corroborative evidence. It is self-evident that a witness may not be corroborated by
any written statement prepared wholly by him. He cannot be more credible just
because he support his open-court declaration with written statements of the same
facts even if he did prepare them during the occasion in dispute, unless the proper
predicate of his failing memory is priorly laid down. What is more, even where this
requirement has been satisfied, the express injunction of the rule itself is that such
evidence must be received with caution, if only because it is not very difficult to
conceive and fabricate evidence of this nature. This is doubly true when the witness
stands to gain materially or otherwise from the admission of such evidence, which is
exactly the case of Crispina Alcantara.
The other pieces of evidence rejected by the trial court as well as the Court of
Appeals in its original decision but which it subsequently admitted upon motion for
reconsideration of Borromeo, thereby causing the appellate court to reverse its own
affirmatory conclusion as to the nature of the transactions in dispute as absolute
sales, are the following:
1. Exhibit J, the document giving Simeon Rallos the option to
"repurchase" the lots sold under Exhibit A, which however expired
without Rallos excercising the same.
2. Exhibits X and Y, alleged ledgers of the Philippine National
Bank apparently showing the items in the current account of
Southwestern Colleges, Inc. purportedly corresponding to the
checks allegedly issued by Matias Aznar to Simeon Rallos in the
course of the controversial transactions herein invoked and which,
it is contended, proves that the amounts actually received by
Rallos were less than the stipulated prices, because corresponding
interests for the alleged loan had already been deducted.
3. Exhibit K, supposedly a statement of the account of Rallos with
Matias Aznar allegedly by Crispina Alcantara to have been
prepared by an employee of Aznar who, however, was not called
to testify.
4. Exhibits T, U and V, purported inspection and appraisal reports
allegedly submitted by investigators of the Philippine National
Bank to whom the property described in Exhibit C covering four
lots, Nos. 467, 490, 519-B and 519-C had been mortgaged
indicating therein the market value thereof as appraised by said
investigators and on the basis of which Borromeo now maintains
that there was inadequacy of the purchase price in said deed of
sale Exhibit C for the purposes of the presumption in Article 1602
of the Civil Code that the disputed transactions are equitable
mortgages.
As regards Exhibit J, the contention of the Aznars is that in its per curiam resolution,
the Court of Appeals reversed itself as to the evidentiary value of this exhibit without
giving any reason at all. What is worse, whereas in its original decision, the Appellate
Court pointedly held that since Exhibit J was an option to repurchase that had expired
without being exercised, it could not alter the true nature of Exhibit A, the deed of
absolute sale of the properties to which said options refers, in its resolution, this
exhibit was used as basis for the further inference that there were also similar options
relative to the other two sales in question, Exhibits B and C, merely because Crispina
Alcantara testified that Aznar, hence the same could not be produced.
Again, We find the position of the Aznars to be well taken. True it is that the Court of
Appeals is the final arbiter of question of fact and as such has the inherent power to
reverse its findings. For it, however, to alter its factual findings without any adequate
basis borders on being whimsical and capricious. At the very least, to do is such a
departure from the accepted and usual course of judicial proceedings as to call for the
exercise of the Supreme Court's power of supervision. (Section 4 (b), Rule 45.) In this
case of Exhibit J here, nowhere in the appealed resolution is there any explanation for
the Court's turnabout. The casual reference in the said resolution of Exhibit J as being
corroborative of the testimony of Crispina Alcantara together with her notes, Exhibits
A-2, A-3, B-3 and C-5, is certainly an unwarranted conclusion, considering specially
that We have already ruled above that there was no legal basis for the Appellate
Court's reversal of its original position as to said notes themselves. In this connection,
the same notes constitute the main support of Crispina's testimony, hence the
corroborative force of Exhibit J must necessarily dissipate without them. Indeed,
under the circumstances, with the notes of Crispina being inadmissible, and absent
any other pertinent document to back up her work, the inference drawn by the Court
of Appeals regarding options to repurchase the properties covered by Exhibits B and
C appear hollow and baseless.
The appealed resolution also reversed the Appellate Court's original pose anent the
admissibility of Exhibits X and Y by attributing to it corroborative evidentiary value of
the testimony of Crispina, although it did not even mention said exhibits in its earlier
decision. As in the case of the exhibits previously discussed, We are of the
considered opinion that it was legal error for the Court of Appeals to have thus ruled in
favor of the admission of these exhibits, X and Y merely by implication. It is true that
their contents were discussed in the resolution, but no reason is given therein why
they have suddenly become admissible.
These exhibits purport to be ledgers of the Philippine National Bank corresponding to
the current account of the Southwestern Colleges owned by the Aznars. Now, it is
undisputed that these exhibits were offered only in rebuttal and that no witness
testified on them, not even for purposes of Identification. How the Appellate Court
came to take them into account is surprising, considering that the appealed resolution
does not contain the slightest discussion relative to these exhibits. Obviously, such a
procedure cannot deserve Our sanction. We reject it as unjudicial.
The same observation may be made with respect to Exhibits T, U and V. No one
testified as to their controversial contents. Nobody even Identified them. They were
just marked and shoved in as part of the documentary evidence of Borromeo in
rebuttal. In an effort to give them a semblance of admissibility, counsel now contends
that they are public documents appearing to have been prepared by employees of the
Philippine National Bank. But although this bank is a government bank, it is not wholly
owned by the government, there being private persons owning shares thereof. This is
a matter of judicial notice. Officials and employees of the Philippine National Bank are
not, therefore, public officers within the contemplation of Section 38 of Rule 130.
Moreover, assuming otherwise or that these exhibits could have any standing as
public or official records, under Section 35 of Rule 132, they do not prove themselves,
as certain requisites must be complied with before they can be admitted, none of
which appears to have been established in connection with the exhibits in question.
Worse, it is clear in the record that these exhibits relate to only one of the three
transactions herein involved. Accordingly, We do not see any justification at all for
their admission as evidence to prove the true nature of the said transactions.
Very little needs be said of Exhibit K. In its original decision, the Appellate Court
rejected this exhibit holding: "The exhibit in question, allegedly a statement of account
of Rallos to Matias Aznar involving the disputed transaction is neither dated nor
signed, much less by the party sought to be charged. The alleged writer thereof was
not presented at the trial of the case, and we have only the biased testimony of
Crispina as to its authenticity or preparation. Even if it were true, however, that the
writing was made, as alleged by Crispina, we cannot consider the same as proof of
what was said or transacted then. The mere making of written memorandum
immediately after the interview does not make the memorandum affirmative intrinsic
proof of the things said or transacted. (32 C.J.S. 948.) Knowledge on the part of the
person who made the memorandum, at the time it was made, that the statements or
entries therein were correct must be shown (32 C.J.S. 947), and this the plaintiff failed
to do. On the other hand, the record indubitably shows that after the execution of the
questioned instruments, the taxes on the lots subject matter thereof were paid by the
defendants vendees. Consequently, we hold that Exhibit K has no evidentiary value,
and the lower court was correct in disregarding it." (Pages 94-95, Record of L-31740.)
On the other hand, in the impugned resolution, the only mention made of Exhibit K is
but casual thus: "Crispina Rallos Alcantara went to Matias Aznar to know the total
indebtedness of her father, which, according to Aznar had accumulated to P55,428.00
(Exhibit K)."
We are not prepared to give Our assent to such a mode of treating a factual issue. If
anything, the subsequent treatment thus given to the document in question reflects
lack of serious consideration of the material points in dispute. That is not the way to
decide judicial controversies. While courts do not have to so rationalize their decisions
as to meet all the arguments of counsel to the satisfaction of the latter, it is imperative
for the credibility of the judiciary and the maintenance of the people's faith therein that
pivotal contentions be not treated in cavalier fashion that leaves the motive or grounds
for the court's ruling to pure speculation and imagination. The attempt of counsel to
classify this exhibit as some kind of admission by Matias Aznar is without merit, if only
because it was not to Crispina, the witness, to whom the alleged admission was made
and it is not explained why the supposed employee of Aznar, a certain Baltazar, who
imputedly prepared it was not called to testify and be cross-examined.
In the final analysis, therefore, it is evident that the Court of Appeals has sought to
support its reversing per curiam resolution with props that are legally untenable. True
it is that the reversal involves factual findings, but as already explained earlier, a
careful review of the appealed resolution reveals unmistakably that the reversal was
induced by the reconsideration by the Court of its previous rulings on the admissibility
of the relevant evidence, such that its original conclusions of fact would not have been
altered had the Court not been convinced by the motion for reconsideration of
Borromeo that the exhibits it had rejected or refused to consider are admissible under
the law. In these premises, and it being Our considered view that the rulings in the
appealed resolution as to the admissibility of the exhibits concerned are legally
erroneous, the irresistible conclusion is hat the original decision of the Court of
Appeals affirming that of the trial court must stand. Indeed, We have gone over both
decisions and We are satisfied that they were studied and are in accord with law and
justice.

We are not overlooking the point by counsel that some of the exhibits in question
(Exhibits X and Y and T, U and V) were not specifically objected to on the grounds
We have discussed above. The truth is that counsel's proposition is not entirely
accurate. These exhibits are supposed to be records of the Philippine National Bank,
but nobody testified to even Identify them as genuine. And they were introduced only
in rebuttal. True it is that the technical objections mentioned by Aznars' counsel when
they were offered were general — for being immaterial, irrelevant and impertinent, but
the explanation accompanying these general grounds included the point that
defendants were being deprived of the right to cross-examine the ones who prepared
the exhibits. In fact, the objecting counsel is quoted to have expressly argued that "It
appears that these exhibits are hearsay." (referring to Exhibits T U and V (Page 241,
Brief for Respondents.) Furthermore, inasmuch as the Court of Appeals failed to give
any reason for overturning its previous conclusions, without explaining why it
considered these evidence admissible, after ruling against them in the original
decision, We deem it superfluous to rule squarely on counsel's contention.

That somehow the Court of Appeals has been overly swayed by the masterly
presentation of Borromeo's case by his notably brilliant counsel is, of course,
understandable in the course of the administration of human justice but it is the ever
existing responsibility of judges to guard themselves against being awed by the
professional proficiency and fame of the lawyers appearing before them and to be
doubly careful in studying and resolving the issues they raise. And in this respect,
there is no substitute for well grounded preparation, up-to-dateness in the
development of the law and legal principles and an adequate sense of logic and
proportion inspired solely by probity of the highest order. The assertion made in some
quarters about alleged inherent inequality before the courts resulting from the
disparity of the abilities of respective counsels of the parties cannot have real ground
for being, if only the judges remain conscious of the inevitable fact that they are
supposed to possess the levelling factor their own knowledge pitted against those of
the most learned advocates, to augment the possible inadequacy of the opposing
attorney, who in most cases are of the poor who cannot afford the fees of better
barristers.

IN VIEW OF ALL THE FOREGOING, the per curiam resolution of the Court of
Appeals appealed in G.R. No. L-31740 is hereby reversed and the original decision of
that court dated January 30, 1968 in CA-G.R. No. 30092-R is affirmed. In
consequence, obviously, the prayer of the petition in G.R. No. L-31342 being to
augment the reliefs granted by the appealed resolution to Borromeo cannot be
granted, hence said petition is hereby ordered dismissed. Costs against Borromeo, as
administrator of the estate of Simeon Rallos.