1
[G.R. No. 144656. May 9, 2002]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERRICO VALLEJO Y
SAMARTINO @ PUKE, accused-appellant.
DECISION
PER CURIAM:
This is an appeal from the decisioni of the Regional Trial Court, Branch 88, Cavite
City, sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify the
heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as
moral damages for the rape-slaying of a 9-year old child, Daisy Diolola, in Rosario,
Cavite on July 10, 1999.
The Information charging accused-appellant Gerrico Vallejo with the crime of Rape
with Homicide alleged:
That on or about the 10th day of July 1999, in Barangay Ligtong I,
Municipality of Rosario, Province of Cavite, Philippines and within the
jurisdiction of this Honorable Trial Court, the above-named accused, with lewd
design, by means of force and intimidation, did then and there, willfully,
unlawfully and feloniously have sexual intercourse with DAISY DIOLOLA Y
DITALO, a nine-year old child against the latters will and while raping the said
victim, said accused strangled her to death.
CONTRARY TO LAW.ii
Accused-appellant was arraigned on July 26, 1999 and, with the assistance of
counsel, pleaded not guilty to the crime charged, whereupon trial ensued.
Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the
victims mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva;
Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the Public Attorneys
Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc, NBI Forensic
Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and Jessiemin
Mataverde and Charito Paras-Yepes, both neighbors of the victim.
The victims mother, Ma. Nida Diolola, testified that at around 1:00 oclock in the
afternoon of July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their
neighbors house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the sister of
accused-appellant, could help Daisy with her lessons. Aimees house, where accused-
appellant was also staying, is about four to five meters away from Daisys house. Ma.
Nida saw her daughter go to the house of her tutor. She was wearing pink short pants
and a white sleeveless shirt. An hour later, Daisy came back with accused-appellant.
They were looking for a book which accused-appellant could copy to make a drawing or
a poster that Daisy would submit to her teacher. After finding the book, Daisy and
accused-appellant went back to the latters house. When Ma. Nida woke up at about 5:30
oclock after an afternoon nap, she noticed that Daisy was not yet home. She started
looking for her daughter and proceeded to the house of Aimee, Daisys tutor. Aimees
mother told Ma. Nida that Daisy was not there and that Aimee was not able to help Daisy
with her lessons because Aimee was not feeling well as she had her menstrual period.
Ma. Nida looked for Daisy in her brothers and sisters houses, but she was not there,
either. At about 7:00 oclock that evening, Ma. Nida went back to her neighbors house,
and there saw accused-appellant, who told her that Daisy had gone to her classmates
house to borrow a book. But, when Ma. Nida went there, she was told that Daisy had not
been there. Ma. Nida went to the dike and was told that they saw Daisy playing at about
3:30 oclock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was
playing in front of her house that afternoon and even watched television in her house, but
that Daisy later left with accused-appellant.
Ma. Nida and her brother and sister searched for Daisy the whole evening of June
10, 1999, a Saturday, until the early morning of the following day, June 11, 1999, a
Sunday, but their search proved fruitless. Then, at about 10:00 oclock in the morning of
June 11, 1999, she was informed that the dead body of her daughter was found tied to
the root of an aroma tree by the river after the compuerta by a certain Freddie Quinto.
The body was already in the barangay hall when Ma. Nida saw her daughter. Daisy was
wearing her pink short pants with her sleeveless shirt tied around her neck. Barangay
Councilmen Raul Ricasa and Calring Purihin reported the incident to the Rosario police.
The other barangay officers fetched accused-appellant from his house and took him to
the barangay hall. At the barangay hall, Ma. Nida pointed to accused-appellant Gerrico
Vallejo as the probable suspect since he was with the victim when she was last seen
alive.iii
Another witness, Jessiemin Mataverde, testified that at around 3:00 oclock in the
afternoon of that day, she saw Daisy playing with other children outside her house. She
asked Daisy and her playmates to stop playing as their noise was keeping Jessiemins
one-year old baby awake. Daisy relented and watched television instead from the door of
Jessiemins house. About five minutes later, accused-appellant came to the house and
told Daisy something, as a result of which she went with him and the two proceeded
towards the compuerta.
Jessiemin testified that at around 5:00 oclock that afternoon, while she and her
daughter were in front of a store across the street from her house, accused-appellant
arrived to buy a stick of Marlboro cigarette. Accused-appellant had only his basketball
shorts on and was just holding his shirt. They noticed both his shorts and his shirt were
wet. After lighting his cigarette, accused-appellant left.iv
Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about
4:30 oclock in the afternoon of July 10, 1999, while she and her husband and children
were walking towards the compuerta near the seashore of Ligtong, Rosario, Cavite, they
met a fisherman named Herminio who said that it was a good day for catching milkfish
(bangus). For this reason, according to this witness, they decided to get some fishing
implements. She said they met accused-appellant Gerrico Vallejo near the seashore and
noticed that he was uneasy and looked troubled. Charito said that accused-appellant did
not even greet them, which was unusual. She also testified that accused-appellants
shorts and shirt (sando) were wet, but his face and hair were not.v
SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief
Ricardo B. de la Cruz, Jr. responded to the call together with his men, PO2 Garcia,
SPO1 Araracap and PO2 Lariza. When they arrived, Daisys body was already in the
barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was
wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt
wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor
in Rosario, Cavite. The inquiries conducted by the police showed that one Freddie Quinto
was fishing near the compuerta when he accidentally hit the body of Daisy, which was in
the mud and tied to the root of an aroma tree.
Accused-appellant was invited by the policemen for questioning. Two others, a
certain Raymond and Esting, were also taken into custody because they were seen with
accused-appellant in front of the store in the late afternoon of July 10 1999. Later,
however, the two were released. Based on the statements of Jessiemin Mataverde and
Charito Paras-Yepes, the policemen went to the house of accused-appellant at about
4:00 oclock in the afternoon of July 11, 1999 and recovered the white basketball shirt,
with the name Samartino and No. 13 printed at the back, and the violet basketball shorts,
with the number 9 printed on it, worn by accused-appellant the day before. The shirt and
shorts, which were bloodstained, were turned over to the NBI for laboratory
examination.vi
Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 oclock
in the evening of July 11, 1999, he conducted a physical examination of accused-
appellant. His findingsvii showed the following:
PHYSICAL FINDINGS:

Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm.,
knee, left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left
anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms.
and left, 13.0 x 5.0 cms.
Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
Lacerations, left ring finger, posterior aspect, 0.3 cm.
(Living Case No. BMP-9902, p. 101, records)
At about 10:00 oclock in the evening, Dr. Vertido went to the Samson Funeral
Parlor in Rosario, Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The
autopsy revealed the following postmortem findings:viii
Body in early stage of postmortem decomposition characterized by foul
odor, eyes and tongue protruding, bloating of the face and blister formation.
Washerwomans hands and feet.
Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0
cms. Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0
cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0
cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior
aspect, upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms.,
forearm, left, posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5
x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms.
knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior
aspect, upper and middle 3rd 3.0 x 2.5 cms. foot right, dorsal aspect.
Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.
Fracture, tracheal rings.
Hemorrhages, interstitial, neck, underneath, nailmarks. Petechial
hemorrhages, subendocardial, subpleural.
Brain and other visceral organs are congested.
Stomach, contains rice and other food particles.
CAUSE OF DEATH: -Asphyxia by Manual Strangulation.
GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and
minora, gaping and congested. Hymen, moderately tall, thick with fresh
lacerations, complete at 3:00, 6:00 and 9:00 oclock positions, edges with
blood clots. [Autopsy Report No. BTNO-99-152]
Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed
of the rape and murder at past 10:00 oclock in the evening of June 11, 1999. The mayor
said he immediately proceeded to the municipal jail, where accused-appellant was
detained, and talked to the latter. Accused-appellant at first denied having anything to do
with the killing and rape of the child. The mayor said he told accused-appellant that he
could not help him if he did not tell the truth. At that point, accused-appellant started
crying and told the mayor that he killed the victim by strangling her. Accused-appellant
claimed that he was under the influence of drugs. The mayor asked accused-appellant if
he wanted to have the services of Atty. Lupo Leyva, a resident of Rosario, as his lawyer.
When accused-appellant said he did, Mayor Abutan fetched Atty. Leyva from his house
and took him to the police station about 11:00 oclock that evening.ix
Atty. Lupo Leyva corroborated Mayor Abutans testimony. He said that upon arriving
at the police station, he asked accused-appellant if he wanted his services as counsel in
the investigation. After accused-appellant assented, Atty. Leyva testified that he sort of
discouraged the former from making statements as anything he said could be used
against him. But, as accused-appellant was willing to be investigated, Atty. Leyva said he
advised him to tell the truth. PO2 Garcia, the investigator, informed accused-appellant of
his constitutional rights to remain silent and to be assisted by counsel and warned him
that any answer he gave could and might be used against him in a court of law. PO2
Garcia asked questions from accused-appellant, who gave his answers in the presence
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of Atty. Leyva. After the statement was taken, Atty. Leyva and accused-appellant read it
and afterwards signed it. Atty. Leyva testified that he did not see or notice any indication
that accused-appellant had been maltreated by the police. In his sworn statement (Exh.
M), accused-appellant confessed to killing the victim by strangling her to death, but
denied having molested her.x
Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he
took blood samples from accused-appellant in his office for laboratory examination to
determine his blood type. Likewise, the basketball shorts and shirt worn by accused-
appellant on the day the victim was missing and the victims clothing were turned over to
the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario, Cavite
police for the purpose of determining the presence of human blood and its groups.xi
The results of the examinations conducted by Pet Byron T. Buan showed accused-
appellant to belong to Group O. The following specimens: (1) one (1) white no. 13
athletic basketball shirt, with patches Grizzlies in front and SAMARTINO at the back; (2)
one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small Hello Kitty T-
shirt with reddish brown stains; (4) one (1) cut pink short pants with reddish brown stains;
(5) one (1) cut dirty white small panty with reddish brown stains, were all positive for the
presence of human blood showing the reactions of Group A.xii
Pet Byron Buan also testified that before he took the blood samples, he had a
conversation with accused-appellant during which the latter admitted that he had raped
and later killed the victim by strangulation and stated that he was willing to accept the
punishment that would be meted out on him because of the grievous offense he had
committed. Mr. Buan observed that accused-appellant was remorseful and was crying
when he made the confession in the presence of SPO1 Amoranto at the NBI
laboratory.xiii
When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at
around noon of July 13, 1999 in Cavite City, accused-appellant had with him a
handwritten confession which he had executed inside his cell at the Municipal Jail of
Rosario. In his confession, accused-appellant admitted not only that he killed the victim
but that he had before that raped her. Accused-appellant said he laid down the victim on
a grassy area near the dike. He claimed that she did not resist when he removed her
undergarments but that when he tried to insert his penis into the victims vagina, she
struggled and resisted. Accused-appellant said he panicked and killed the child. He then
dumped her body in the shallow river near the compuerta and went home.xiv
Atty. Sikat Agbunag, a lawyer from the Public Attorneys Office, testified that at noon
of July 13, 1999, while she was in their office in Cavite City, Prosecutor Itoc came
together with accused-appellant and some policemen. Prosecutor Itoc asked Atty.
Agbunag to assist accused-appellant about his confession. Atty. Agbunag read the
document, informed accused-appellant of his constitutional rights, and warned him that
the document could be used against him and that he could be convicted of the case
against him, but, according to her, accused-appellant said that he had freely and
voluntarily executed the document because he was bothered by his conscience.
Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to the document
and swore to it before Prosecutor Itoc.xv
At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic
Biologist Pet Byron Buan took buccal swabs and hair samples from accused-appellant,
as well as buccal swabs and hair samples from the parents of the victim, namely, Ma.
Nida Diolola and Arnulfo Diolola. The samples were submitted to the DNA Laboratory of
the NBI for examination.
Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the
specimens collected by Dr. Vertido. She testified that the vaginal swabs of the victim
taken by Dr. Vertido during the autopsy contained the DNA profiles of accused-appellant
and the victim.xvi

The defense then presented as witnesses accused-appellant Gerrico Vallejo and
his sister Aimee Vallejo. Their testimonies show that at about 1:00 oclock in the
afternoon of July 10, 1999, accused-appellant, Aimee, and their sister Abigail were in
their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came to
ask accused-appellant to draw her school project. After making the request, Daisy left.xvii
Accused-appellant did not immediately make the drawing because he was watching
television. Accused-appellant said that he finished the drawing at about 3:00 oclock in
the afternoon and gave it to the victims aunt, Glory. He then returned home to watch
television again. He claimed he did not go out of the house until 7:00 oclock in the
evening when he saw Ma. Nida, who was looking for her daughter. Accused-appellant
said he told her that he had not seen Daisy. After that, accused-appellant said he went to
the pilapil and talked with some friends, and, at about 8:00 oclock that evening, he went
home.
At 9:00 oclock in the morning of July 11, 1999, barangay officials fetched accused-
appellant from his house and took him to the barangay hall, where he was asked about
the disappearance of Daisy. He claimed that he did not know anything about it. Accused-
appellant was allowed to go home, but, at 11:00 oclock that morning, policemen came
and invited him to the police headquarters for questioning. His mother went with him to
the police station. There, accused-appellant was asked whether he had something to do
with the rape and killing of Daisy. He denied knowledge of the crime.
At 4:00 oclock that afternoon, accused-appellant accompanied the police to his
house to get the basketball shorts and shirt he was wearing the day before, which were
placed together with other dirty clothes at the back of their house. According to accused-
appellant, the police forced him to admit that he had raped and killed Daisy and that he
admitted having committed the crime to stop them from beating him up. Accused-
appellant claimed the police even burned his penis with a lighted cigarette and pricked it
with a needle.
Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went
to see him in the investigation room of the police station and told him that they would
help him if he told the truth. Atty. Leyva asked him whether he wanted him to be his
counsel, and accused-appellant said he answered in the affirmative. He said Atty. Leyva
informed him of his constitutional rights. Accused-appellant claimed that, although he
admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was
because the police had maltreated him. Accused-appellant said he did not tell the mayor
or Atty. Leyva that he had been tortured because the policemen were around and he was
afraid of them. It appears that the family of accused-appellant transferred their residence
to Laguna on July 12, 1999 because of fear of reprisal by residents of their barangay. xviii
According to accused-appellant, Mayor Abutan and Atty. Leyva were not present when
he gave his confession to the police and signed the same. Accused-appellant claims that
although Exhibit N was in his own handwriting, he merely copied the contents thereof
from a pattern given to him by the police.xix
On July 31, 2000, the trial court rendered a decision finding accused-appellant
guilty of the offense charged. The dispositive portion of its decision reads:
WHEREFORE, in view of all the foregoing considerations, the Court
finds the accused Gerrico Vallejo y Samartino GUILTY beyond reasonable
doubt of the crime of Rape with Homicide, as charged in the Information,
accordingly hereby sentences him to the supreme penalty of DEATH. The
accused is directed to indemnify the heirs of the victim in the amount of
P100,000.00 as civil indemnity and P50,000.00 as moral damages.
SO ORDERED.xx
Hence this appeal. Accused-appellant contends that:
I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF RAPE WITH HOMICIDE DESPITE THE
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INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL
EVIDENCE OF THE PROSECUTION.
II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY
WEIGHT TO THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-
APPELLANT DESPITE ITS BEING HEARSAY IN NATURE.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING
PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL
CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT
THAT THE SAME WAS OBTAINED THROUGH FORCE AND
INTIMIDATION AND THAT THE LAWYER WHO ASSISTED HIM
DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT
POSSIBLY GIVE HIM EFFECTIVE LEGAL ASSISTANCE.
We find accused-appellants contentions to be without merit.
First. An accused can be convicted even if no eyewitness is available, provided
sufficient circumstantial evidence is presented by the prosecution to prove beyond
reasonable doubt that the accused committed the crime.xxi In rape with homicide, the
evidence against an accused is more often than not circumstantial. This is because the
nature of the crime, where only the victim and the rapist would have been present at the
time of its commission, makes the prosecution of the offense particularly difficult since
the victim could no longer testify against the perpetrator. Resort to circumstantial
evidence is inevitable and to demand direct evidence proving the modality of the offense
and the identity of the perpetrator is unreasonable.xxii
Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial
evidence is sufficient to sustain a conviction if:
(a) there is more than one circumstance;
(b) the facts from which the inferences are derived are proven; and
(c) the combination of all circumstances is such as to produce conviction
beyond reasonable doubt.xxiii
In the case at bar, the following circumstantial evidence establish beyond
reasonable doubt the guilt of accused-appellant:
1. The victim went to Aimee Vallejos house, where accused-appellant was
residing, at 1:00 oclock in the afternoon of July 10, 1999, for tutoring.
2. At around 2:00 oclock in the afternoon, accused-appellant and Daisy went
together to the latters house to get a book from which the former could
copy Daisys school project. After getting the book, they proceeded to
accused-appellants residence.
3. From accused-appellants house, Daisy then went to the house of
Jessiemin Mataverde where she watched television. Accused-appellant
thereafter arrived and whispered something to Daisy, and the latter went
with him towards the compuerta.
4. At about 4:30 oclock in the afternoon, the spouses Iluminado and Charito
Yepes saw accused-appellant coming out of the compuerta, with his
clothes, basketball shorts, and t-shirt wet, although his face and hair were
not. According to these witnesses, he looked pale, uneasy, and troubled
(balisa). He kept looking around and did not even greet them as was his
custom to do so.
5. The fishing boat which accused-appellant used as a bomber (a boat for
catching fish with dynamite) was docked by the seashore.
6. A little before 5:00 oclock in the afternoon, Jessiemin Mataverde also saw
accused-appellant buying a Marlboro cigarette from a store. Jessiemen
also noticed that accused-appellants clothes were wet but not his face nor
his hair.
7. By 5:30 oclock in the afternoon, as Ma. Nida Diolola looked for her

daughter, she was told by accused-appellant that Daisy had gone to her
classmate Rosarios house. The information proved to be false.
8. Daisys body was found tied to an aroma tree at the part of the river near
the compuerta.
9. During the initial investigation, accused-appellant had scratches on his feet
similar to those caused by the thorns of an aroma tree.
10. The clothes which accused-appellant wore the day before were
bloodstained. The bloodstains on accused-appellants clothes and on
Daisys clothes were found positive of human blood type A.
11. Accused-appellant has blood type O.
12. The vaginal swabs from Daisys body contained her DNA profile as well as
that of accused-appellant.
Accused-appellant contends that the bloodstains found on his garments were not
proven to have been that of the victim as the victims blood type was not determined.
The contention has no merit. The examination conducted by Forensic Biologist Pet
Byron Buan of both accused-appellants and the victims clothing yielded bloodstains of
the same blood type A.xxiv Even if there was no direct determination as to what blood
type the victim had, it can reasonably be inferred that the victim was blood type A since
she sustained contused abrasions all over her body which would necessarily produce the
bloodstains on her clothing.xxv That it was the victims blood which predominantly
registered in the examination was explained by Mr. Buan, thus:xxvi
ATTY. ESPIRITU
Q: But you will agree with me that more probably than not, if a crime is being
committed, and it results in a bloody death, it is very possible that the blood of
the victim and the blood of the assailant might mix in that particular item like the
t-shirt, shorts or pants?
A: It is possible when there is a huge amount of blood coming from the victim and
the suspect, Sir. It is possible. It will mix. Whichever is the dominant blood in it,
it will be the one which will register. For example, if there is more blood coming
from the victim, that blood will be the one to register, on occasions when the two
blood mix.
Q: But in these specimens number 1 to 5, it is very clear now that only type A and
no type O blood was found?
A: Yes, sir.
Accused-appellant also questions the validity of the method by which his
bloodstained clothes were recovered. According to accused-appellant, the policemen
questioned him as to the clothes he wore the day before. Thereafter, they took him to his
house and accused-appellant accompanied them to the back of the house where dirty
clothes were kept.xxvii There is no showing, however, that accused-appellant was coerced
or forced into producing the garments. Indeed, that the accused-appellant voluntarily
brought out the clothes sought by the police becomes more convincing when considered
together with his confessions. A consented warrantless search is an exception to the
proscription in Section 2 of Article III of the Constitution. As we have held, the consent of
the owner of the house to the search effectively removes any badge of illegality.xxviii
The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is
also questioned by accused-appellant. He argues that the prosecution failed to show that
all the samples submitted for DNA testing were not contaminated, considering that these
specimens were already soaked in smirchy waters before they were submitted to the
laboratory.
DNA is an organic substance found in a persons cells which contains his or her
genetic code. Except for identical twins, each persons DNA profile is distinct and
unique.xxix
When a crime is committed, material is collected from the scene of the crime or
4
from the victims body for the suspects DNA. This is the evidence sample. The evidence
sample is then matched with the reference sample taken from the suspect and the
victim.xxx
The purpose of DNA testing is to ascertain whether an association exists between
the evidence sample and the reference sample.xxxi The samples collected are subjected
to various chemical processes to establish their profile.xxxii The test may yield three
possible results:
1) The samples are different and therefore must have originated from different
sources (exclusion). This conclusion is absolute and requires no further analysis or
discussion;
2) It is not possible to be sure, based on the results of the test, whether the samples
have similar DNA types (inconclusive). This might occur for a variety of reasons including
degradation, contamination, or failure of some aspect of the protocol. Various parts of the
analysis might then be repeated with the same or a different sample, to obtain a more
conclusive result; or
3) The samples are similar, and could have originated from the same source
(inclusion).xxxiii In such a case, the samples are found to be similar, the analyst proceeds
to determine the statistical significance of the Similarity.xxxiv
In assessing the probative value of DNA evidence, therefore, courts should
consider, among others things, the following data: how the samples were collected, how
they were handled, the possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted the
tests.
In the case at bar, the bloodstains taken from the clothing of the victim and of
accused-appellant, the smears taken from the victim as well as the strands of hair and
nails taken from her tested negative for the presence of human DNA,xxxv because, as Ms.
Viloria-Magsipoc explained:
PROSECUTOR LU:
Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing
of the victim and of the accused gave negative results for the presence of
human DNA. Why is it so? What is the reason for this when there are still
bloodstains on the clothing?
A: After this Honorable Court issued an Order for DNA analysis, serological
methods were already conducted on the said specimens. And upon inquiry from
Mr. Buan and as far as he also knew of this case, and we also interviewed the
mother who came over to the laboratory one time on how was the state of the
specimens when they were found out. We found that these specimens were
soaked in smirchy water before they were submitted to the laboratory. The state
of the specimens prior to the DNA analysis could have hampered the
preservation of any DNA that could have been there before. So when
serological methods were done on these specimens, Mr. Byron could have
taken such portion or stains that were only amenable for serological method and
were not enough for DNA analysis already. So negative results were found on
the clothings that were submitted which were specimens no. 1 to 5 in my report,
Sir.
Q: I also noticed that specimen no. 6-B consisting of the smears taken from the
victim also proved negative for human DNA, why is it so?
A: Because when we received the vaginal smears submitted by Dr. Vertido, the
smear on the slide was very, very dry and could have chipped off. I already
informed Dr. Vertido about it and he confirmed the state of the specimen. And I
told him that maybe it would be the swab that could help us in this case, Sir.
And so upon examination, the smears geared negative results and the swabs
 5

gave positive results, Sir. investigation to persons in authority without the presence of counsel. With respect to the
Q: How about specimen no. 7, the hair and nails taken from the victim, why did oral confessions, Atty. Leyva testified:xxxix
they show negative results for DNA? PROSECUTOR LU:
A: The hair samples were cut hair. This means that the hair did not contain any Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer
root. So any hair that is above the skin or the epidermis of ones skin would give with him?
negative results as the hair shaft is negative for DNA. And then the nails did not A: Yes, Sir.
contain any subcutaneous cells that would be amenable for DNA analysis also, Q: Did you ask him whether he really wants you to represent or assist him as a
Sir. lawyer during that investigation?
Q: So its the inadequacy of the specimens that were the reason for this negative A: I did, as a matter of fact, I asked him whether he would like me to represent him
result, not the inadequacy of the examination or the instruments used? in that investigation, Sir.
A: Yes, Sir. Q: And what was his answer?
Thus, it is the inadequacy of the specimens submitted for examination, and not the A: He said yes.
possibility that the samples had been contaminated, which accounted for the negative Q: After agreeing to retain you as his counsel, what else did you talk about?
results of their examination. But the vaginal swabs taken from the victim yielded positive A: I told him that in the investigation, whatever he will state may be used against
for the presence of human DNA. Upon analysis by the experts, they showed the DNA him, so its a sort of discouraging him from making any statement to the police,
profile of accused-appellant:xxxvi Sir.
PROSECUTOR LU: Upon cross-examination, Atty. Leyva testified as follows:xl
Q: So based on your findings, can we say conclusively that the DNA profile of the Q: You stated that you personally read this recital of the constitutional rights of the
accused in this case was found in the vaginal swabs taken from the victim? accused?
A: Yes, Sir. A: Yes, Sir.
Q: That is very definite and conclusive? Q: But it will appear in this recital of constitutional rights that you did not inform the
A: Yes, Sir." accused that the statement that he will be giving might be used against him in a
In conclusion, we hold that the totality of the evidence points to no other conclusion court of justice?
than that accused-appellant is guilty of the crime charged. Evidence is weighed not A: I did that, Sir.
counted. When facts or circumstances which are proved are not only consistent with the Q: But it does not appear in this statement?
guilt of the accused but also inconsistent with his innocence, such evidence, in its weight PROSECUTOR LU
and probative force, may surpass direct evidence in its effect upon the court. xxxvii This is The best evidence will be the statement, your Honor.
how it is in this case. ATTY ESPIRITU
Second. Accused-appellant challenges the validity of the oral and written The only thing that is stated here is that Maaaring gamitin pabor o laban sa iyo.
confessions presented as evidence against him. He alleges that the oral confessions COURT
were inadmissible in evidence for being hearsay, while the extrajudicial confessions were Let the witness answer.
obtained through force and intimidation. A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing
The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent but the truth.
parts: The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor
(1) Any person under investigation for the commission of an offense shall Renato Abutan,xli it is also confirmed by accused-appellant who testified as follows:xlii
have the right to be informed of his right to remain silent and to have ATTY. ESPIRITU:
competent and independent counsel, preferably of his own choice. If the Q: Did Atty. Leyva explain to you the meaning and significance of that document
person cannot afford the services of counsel, he must be provided with which you are supposed to have executed and signed?
one. These rights cannot be waived except in writing and in the presence A: Yes, Sir.
of counsel. Q: What did Atty. Leyva tell you?
(2) No torture, force, violence, threat, intimidation or any other means which A: That they are allowing me to exercise my constitutional right to reveal or narrate
vitiate the free will shall be used against him. Secret detention places, all what I know about this case, Sir.
solitary, incommunicado, or other similar forms of detention are prohibited. Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give
(3) Any confession or admission obtained in violation of this or Section 17 that statement?
shall be inadmissible in evidence against him. A: Yes, Sir.
There are two kinds of involuntary or coerced confessions treated in this Q: And did he tell you that what you would be giving is an extra-judicial
constitutional provision: (1) coerced confessions, the product of third degree methods confession?
such as torture, force, violence, threat, and intimidation, which are dealt with in A: Yes, Sir.
paragraph 2 of Section 12, and (2) uncounselled statements, given without the benefit of Clearly, accused-appellant cannot now claim that he was not apprised of the
Miranda warnings, which are the subject of paragraph 1 of the same section.xxxviii consequences of the statements he was to make as well as the written confessions he
Accused-appellant argues that the oral confessions given to Mayor Abutan of was to execute. Neither can he question the qualifications of Atty. Lupo Leyva who acted
Rosario, Cavite and to NBI Forensic Biologist should be deemed inadmissible for being as his counsel during the investigation. To be an effective counsel, a lawyer need not
violative of his constitutional rights as these were made by one already under custodial challenge all the questions being propounded to his client. The presence of a lawyer is

not intended to stop an accused from saying anything which might incriminate him but,
rather, it was adopted in our Constitution to preclude the slightest coercion as would lead
the accused to admit something false. Indeed, counsel should not prevent an accused
from freely and voluntarily telling the truth.xliii
Indeed, accused-appellant admitted that he was first asked whether he wanted the
services of Atty. Leyva before the latter acted as his defense counsel.xliv And counsel
who is provided by the investigators is deemed engaged by the accused where the latter
never raised any objection against the formers appointment during the course of the
investigation but, on the contrary, thereafter subscribed to the veracity of his statement
before the swearing officer.xlv Contrary to the assertions of accused-appellant, Atty.
Leyva was not the municipal attorney of Rosario, Cavite but only a legal adviser of Mayor
Renato Abutan.xlvi
Accused-appellant contends that the rulings in People vs. Andanxlvii and People vs.
Mantungxlviii do not apply to this case. We disagree. The facts of these cases and that of
the case at bar are similar. In all these cases, the accused made extrajudicial
confessions to the municipal mayor freely and voluntarily. In all of them, the extrajudicial
confessions were held admissible in evidence, being the spontaneous, free, and
voluntary admissions of the guilt of the accused. We note further that the testimony of
Mayor Abutan was never objected to by the defense.
Indeed, the mayors questions to accused-appellant were not in the nature of an
interrogation, but rather an act of benevolence by a leader seeking to help one of his
constituents. Thus, Mayor Abutan testified:xlix
PROSECUTOR LU:
Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly
did he tell you?
A: At first he said that he did not do that. That was the first thing he told me. Then I
told him that I will not be able to help him if he will not tell me the truth.
Q: And what was the reply of the accused?
A: He had been silent for a minute. Then we talked about the incident, Sir.
Q: And what exactly did he tell you about the incident?
A: I asked him, Were you under the influence of drugs at that time?
Q: What else did he tell you?
A: I told him, What reason pushed you to do that thing? x x x
Q: Please tell us in tagalog, the exact words that the accused used in telling you
what happened.
A: He told me that he saw the child as if she was headless at that time. That is why
he strangled the child, Sir. (Ang sabi niya po sa kin, nakita niya raw yung bata
na parang walang ulo na naglalakad. Kaya po sinakal niya.)
xxxxxx xxx
COURT:
Q: When you told the accused that you will help him, what kind of help were you
thinking at that time?
A: I told him that if he will tell the truth, I could help give him legal counsel.
Q: And what was the answer of the accused?
A: Yes, he will tell me the truth, Your Honor.
In People vs. Mantung,l this Court said:
Never was it raised during the trial that Mantungs admission during the
press conference was coerced or made under duress. As the records show,
accused-appellant voluntarily made the statements in response to Mayor
Marquez question as to whether he killed the pawnshop employees. Mantung
answered in the affirmative and even proceeded to explain that he killed the
victims because they made him eat pork. These circumstances hardly indicate
that Mantung felt compelled to own up to the crime. Besides, he could have
6
chosen to remain silent or to do deny altogether any participation in the
robbery and killings but he did not; thus accused-appellant sealed his own
fate. As held in People v. Montiero, a confession constitutes evidence of high
order since it is supported by the strong presumption that no person of normal
mind would deliberately and knowingly confess to a crime unless prompted by
truth and his conscience.
And in People vs. Andan, it was explained:
Thus, it has been held that the constitutional procedures on custodial
investigation do not apply to a spontaneous statement, not elicited through
questioning by the authorities, but given in an ordinary manner whereby
appellant orally admitted having committed the crime. What the Constitution
bars is the compulsory disclosure of incriminating facts or confessions. The
rights under Section 12 are guaranteed to preclude the slightest use of
coercion by the state as would lead the accused to admit something false, not
prevent him from freely and voluntarily telling the truth.li
For the same reason, the oral confession made by accused-appellant to NBI
Forensic Biologist Pet Byron Buan is admissible. Accused-appellant would have this
Court exclude this confession on the ground that it was uncounselled and that Mr. Buan,
who initiated the conversation with accused-appellant, was part of the NBI. The issue
concerning the sufficiency of the assistance given by Atty. Leyva has already been
discussed. On the other hand, the questions put by Mr. Buan to accused-appellant were
asked out of mere personal curiosity and clearly not as part of his tasks. As Buan
testified:lii
PROSECUTOR LU:
Q: What was the subject of your conversation with him?
A: It is customary when we examine the accused. During the examination, we talk
to them for me to add knowledge on the case, Sir.
Q: What did you talk about during your conversation?
A: I asked him if he was the one who did the killing on this victim, Daisy Diolola,
Sir.
Q: And what was the reply of the accused?
A: He said yes, Sir.
Q: What else did you ask the accused?
A: I remember that while asking him, he was crying as if feeling remorse on the
killing, Sir.
....
Q: And it was you who initiated the conversation?
A: Yes, Sir.
Q: Do you usually do that?
A: Yes, Sir. We usually do that.
Q: Is that part of your procedure?
A: It is not SOP. But for me alone, I want to know more about the case, Sir. And
any information either on the victim or from the suspect will help me personally.
Its not an SOP, Sir.
The confession, thus, can be likened to one freely and voluntarily given to an ordinary
individual and is, therefore, admissible as evidence.
Third. The admissibility of the extrajudicial confessions of accused-appellant is also
attacked on the ground that these were extracted from him by means of torture, beatings,
and threats to his life. The bare assertions of maltreatment by the police authorities in
extracting confessions from the accused are not sufficient. The standing rule is that
where the defendants did not present evidence of compulsion, or duress nor violence on
their person; where they failed to complain to the officer who administered their oaths;
where they did not institute any criminal or administrative action against their alleged
 7

intimidators for maltreatment; where there appeared to be no marks of violence on their A: It was painful, Sir.
bodies; and where they did not have themselves examined by a reputable physician to Q: In what part of your body were you pricked by a needle?
buttress their claim, all these will be considered as indicating voluntariness.liii Indeed, A: At my private part, Sir.
extrajudicial confessions are presumed to be voluntary, and, in the absence of conclusive These bare assertions cannot be given weight. Accused-appellant testified that he
evidence showing that the declarants consent in executing the same has been vitiated, was made to stay in the municipal hall from 10:00 oclock in the morning until 11:00
the confession will be sustained.liv oclock that night of July 10, 1999, during which time he was boxed, tortured, and hit with
Accused-appellants claim that he was tortured and subjected to beatings by a piece of wood by policemen to make him admit to the crime. However, accused-
policemen in order to extract the said confession from him is unsupported by any proof: lv appellant was physically examined by Dr. Antonio Vertido at about 9:00 oclock in the
ATTY. ESPIRITU: evening of the same day. While the results show that accused-appellant did sustain
Q: Did they further interrogate you? injuries, the same are incompatible with his claim of torture. As Dr. Vertido testified:lvi
A: Yes, sir. PROSECUTOR LU:
Q: What else did they ask you? Q: What were your findings when you conducted the physical examination of the
A: They were asking me the project, Sir. suspect?
Q: What else? A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of
A: That is the only thing, Sir. the suspect, and I also found hematoma on the left ring finger, posterior aspect
Q: Who was doing the questioning? and at the same time, a laceration on the left ring finger.
A: The investigator, Sir. xxxxxx xxx
Q: How many were they inside that room? Q: In your findings, it appears that the accused in this case suffered certain
A: Five, Sir. physical injuries on his person like this abrasion on the thigh, right anterior
Q: They are all policemen? lateral aspect lower third of the knee, what could have caused this injury?
A: Yes, Sir. A: Abrasions are usually caused when the skin comes in contact with a rough
xxxxxx xxx surface, Sir. Hematoma are usually caused by a blunt instrument or object and
Q: Until what time did they keep you inside that room? laceration is the forcible contact of the skin from that blunt object.
A: Up to 11:00 in the evening, Sir. Q: I am particularly interested in your findings hematoma on the left ring finger,
Q: Between 10:30 in the morning up to 11:00 oclock in the evening, what did you posterior aspect and laceration left ring finger posterior aspect, what could have
do there? caused those injuries on the accused?
A: They were interrogating and forcing me to admit something, Sir. A: My opinion to these hematoma and laceration found on the said left ring finger
Q: In what way did they force you to admit something? was that it was caused by a bite, Sir.
A: They were mauling me, Sir. If the account of accused-appellant that he was beaten up is true, Dr. Antonio
Q: The 5 of them? Vertido would have found more than mere abrasions and hematoma on his left finger. Dr.
A: Yes, Sir. Vertidos findings are more consistent with the theory that accused-appellant sustained
Q: The 5 of them remained inside that room with you throughout the questioning? physical injuries as a result of the struggle made by the victim during the commission of
A: Yes, Sir. the rape in the compuerta.
Q: In what way did they hurt you? At all events, even if accused-appellant was truthful and his assailed confessions
A: They burned my private part with a lighted cigarette butt and pierced me with a are inadmissible, the circumstantial evidence, as already shown, is sufficient to establish
needle, Sir. his guilt beyond all reasonable doubt. The prosecution witnesses presented a mosaic of
Q: Who did these things to you? circumstances showing accused-appellants guilt. Their testimonies rule out the possibility
A: Mercado, Sir. that the crime was the handiwork of some other evil mind. These witnesses have not
Q: Who is this Mercado? been shown to have been motivated by ill will against accused-appellant.
A: EPZA policemen, Sir. On the other hand, no other witness not related to accused-appellant was ever
Q: Did the other policemen help in doing these things to you? called to corroborate his claim. The defense presented only accused-appellants sister,
A: No, Sir. Aimee Vallejo, to corroborate his story. We have held time and again that alibi cannot
Q: Were you asked to undress or you were forced to do that? prosper if it is established mainly by the accused and his relatives, and not by credible
A: They forced me to remove my clothes, Sir. persons.lvii It is well settled that alibi is the weakest of all defenses as it is easy to contrive
Q: In what way did they force you to remove your clothes? and difficult to disprove. For this reason, this Court looks with caution upon the defense
A: They were asking me to take off the pants which I was wearing at the time, Sir. of alibi, especially when, as in this case, it is corroborated only by relatives or friends of
Q: Did they do anything to you to force you to remove your pants? the accused.lviii
A: Yes, Sir. Article 266-B of the Revised Penal Code provides that When by reason or on the
Q: What? occasion of the rape, homicide is committed, the penalty shall be death.lix Therefore, no
A: They boxed me, Sir. other penalty can be imposed on accused-appellant.
Q: What else, if any? WHEREFORE, in view of all the foregoing considerations, the decision of the
A: They hit me with a piece of wood, Sir. Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico Vallejo y
Q: What did you feel when your private part was burned with a cigarette butt? Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide and

sentencing him to the supreme penalty of DEATH and directing him to indemnify the
heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as
moral damages, is hereby AFFIRMED.
In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal
Code, upon the finality of this decision, let the records of this case be forthwith forwarded
to the President of the Philippines for the possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and
Corona, JJ., concur.
De Leon, Jr., J., abroad, on official business.
[G.R. No. 148220. June 15, 2005]
ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his
mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding
Judge, Branch 48, Regional Trial Court, Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000
of the Court of Appeals (appellate court) in CA-G.R. SP No. 59766. The appellate court
affirmed two Orders[3] issued by Branch 48 of the Regional Trial Court of Manila (trial
court) in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera
(petitioner) to submit to deoxyribonucleic acid (DNA) paternity testing, while the Order
dated 8 June 2000 denied petitioners motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent), represented
by his mother Armi Alba, filed before the trial court a petition for compulsory recognition,
support and damages against petitioner. On 7 August 1998, petitioner filed his answer
with counterclaim where he denied that he is the biological father of respondent.
Petitioner also denied physical contact with respondents mother.
Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate
the proceedings. To support the motion, respondent presented the testimony of
Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at
De La Salle University where she taught Cell Biology. She was also head of the
University of the Philippines Natural Sciences Research Institute (UP-NSRI), a DNA
analysis laboratory. She was a former professor at the University of the Philippines in
Diliman, Quezon City, where she developed the Molecular Biology Program and taught
Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity
testing and asserted that the test had an accuracy rate of 99.9999% in establishing
paternity.[4]
Petitioner opposed DNA paternity testing and contended that it has not gained
acceptability. Petitioner further argued that DNA paternity testing violates his right against
self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted respondents motion to
conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and
the relevant individuals, namely: the petitioner, the minor child, and
respondent are directed to undergo DNA paternity testing in a laboratory of
their common choice within a period of thirty (30) days from receipt of the
8
Order, and to submit the results thereof within a period of ninety (90) days
from completion. The parties are further reminded of the hearing set on 24
February 2000 for the reception of other evidence in support of the petition.
IT IS SO ORDERED.[5] (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He
asserted that under the present circumstances, the DNA test [he] is compelled to take
would be inconclusive, irrelevant and the coercive process to obtain the requisite
specimen, unconstitutional.
In an Order dated 8 June 2000, the trial court denied petitioners motion for
reconsideration.[6]
On 18 July 2000, petitioner filed before the appellate court a petition for certiorari
under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court
rendered the Orders dated 3 February 2000 and 8 June 2000 in excess of, or without
jurisdiction and/or with grave abuse of discretion amounting to lack or excess of
jurisdiction. Petitioner further contended that there is no appeal nor any [other] plain,
adequate and speedy remedy in the ordinary course of law. Petitioner maintained his
previous objections to the taking of DNA paternity testing. He submitted the following
grounds to support his objection:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of
Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the
limitations on, and conditions precedent for the admissibility of DNA
testing and ignoring the serious constraints affecting the reliability of the
test as admitted by private respondents expert witness.
3. Subject Orders lack legal and factual support, with public respondent
relying on scientific findings and conclusions unfit for judicial notice and
unsupported by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled
to take will be inconclusive, irrelevant and the coercive process to obtain
the requisite specimen from the petitioner, unconstitutional. [7]
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision denying the petition
and affirming the questioned Orders of the trial court. The appellate court stated that
petitioner merely desires to correct the trial courts evaluation of evidence. Thus, appeal is
an available remedy for an error of judgment that the court may commit in the exercise of
its jurisdiction. The appellate court also stated that the proposed DNA paternity testing
does not violate his right against self-incrimination because the right applies only to
testimonial compulsion. Finally, the appellate court pointed out that petitioner can still
refute a possible adverse result of the DNA paternity testing. The dispositive portion of
the appellate courts decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby
DENIED DUE COURSE, and ordered dismissed, and the challenged orders of
the Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.[8]
Petitioner moved for reconsideration, which the appellate court denied in its
Resolution dated 23 May 2001.[9]
Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this
jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA
technology may be integrated into our judicial system and the prerequisites for the
admissibility of DNA test results in a paternity suit.[10]
Petitioner further submits that the appellate court gravely abused its discretion
when it authorized the trial court to embark in [sic] a new procedure xxx to determine

filiation despite the absence of legislation to ensure its reliability and integrity, want of
official recognition as made clear in Lim vs. Court of Appeals and the presence of
technical and legal constraints in respect of [sic] its implementation. [11] Petitioner
maintains that the proposed DNA paternity testing violates his right against self-
incrimination.[12]
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem it appropriate to
give an overview of a paternity suit and apply it to the facts of this case. We shall
consider the requirements of the Family Code and of the Rules of Evidence to establish
paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate paternity but also to
secure a legal right associated with paternity, such as citizenship,[13] support (as in the
present case), or inheritance. The burden of proving paternity is on the person who
alleges that the putative father is the biological father of the child. There are four
significant procedural aspects of a traditional paternity action which parties have to face:
a prima facie case, affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child.[14]
A prima facie case exists if a woman declares that she had sexual relations with the
putative father. In our jurisdiction, corroborative proof is required to carry the burden
forward and shift it to the putative father.[15]
There are two affirmative defenses available to the putative father. The putative
father may show incapability of sexual relations with the mother, because of either
physical absence or impotency.[16] The putative father may also show that the mother
had sexual relations with other men at the time of conception.
A child born to a husband and wife during a valid marriage is presumed
legitimate.[17] The childs legitimacy may be impugned only under the strict standards
provided by law.[18]
Finally, physical resemblance between the putative father and child may be offered
as part of evidence of paternity. Resemblance is a trial technique unique to a paternity
proceeding. However, although likeness is a function of heredity, there is no
mathematical formula that could quantify how much a child must or must not look like his
biological father.[19] This kind of evidence appeals to the emotions of the trier of fact.
In the present case, the trial court encountered three of the four aspects. Armi Alba,
respondents mother, put forward a prima facie case when she asserted that petitioner is
respondents biological father. Aware that her assertion is not enough to convince the trial
court, she offered corroborative proof in the form of letters and pictures. Petitioner, on the
other hand, denied Armi Albas assertion. He denied ever having sexual relations with
Armi Alba and stated that respondent is Armi Albas child with another man. Armi Alba
countered petitioners denial by submitting pictures of respondent and petitioner side by
side, to show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We now look
to the law, rules, and governing jurisprudence to help us determine what evidence of
incriminating acts on paternity and filiation are allowed in this jurisdiction.
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in
the same way and on the same evidence as legitimate children.
xxx
ART. 172. The filiation of legitimate children is established by any of the
following:
9
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of
Rule 130 provide:
SEC. 39. Act or declaration about pedigree.The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of another
person related to him by birth or marriage, may be received in evidence where
it occurred before the controversy, and the relationship between the two
persons is shown by evidence other than such act or declaration. The word
pedigree includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with
pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.The
reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family books
or charts, engraving on rings, family portraits and the like, may be received as
evidence of pedigree.
This Courts rulings further specify what incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v. CA,[20] a case petitioner often cites, we stated
that the issue of paternity still has to be resolved by such conventional evidence as the
relevant incriminating verbal and written acts by the putative father. Under Article 278 of
the New Civil Code, voluntary recognition by a parent shall be made in the record of
birth, a will, a statement before a court of record, or in any authentic writing. To be
effective, the claim of filiation must be made by the putative father himself and the writing
must be the writing of the putative father.[21] A notarial agreement to support a child
whose filiation is admitted by the putative father was considered acceptable evidence.[22]
Letters to the mother vowing to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with the certificate of live birth,
proved filiation.[23] However, a student permanent record, a written consent to a fathers
operation, or a marriage contract where the putative father gave consent, cannot be
taken as authentic writing.[24] Standing alone, neither a certificate of baptism[25] nor family
pictures[26] are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and
filiation to incriminating acts alone. However, advances in science show that sources of
evidence of paternity and filiation need not be limited to incriminating acts. There is now
almost universal scientific agreement that blood grouping tests are conclusive on non-
paternity, although inconclusive on paternity.[27]
In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that
the putative father was a possible father of the child. Paternity was imputed to the
putative father after the possibility of paternity was proven on presentation during trial of
facts and circumstances other than the results of the blood grouping test.

In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed
to submit themselves to a blood grouping test. The National Bureau of Investigation (NBI)
conducted the test, which indicated that the child could not have been the possible
offspring of the mother and the putative father. We held that the result of the blood
grouping test was conclusive on the non-paternity of the putative father.
The present case asks us to go one step further. We are now asked whether DNA
analysis may be admitted as evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a persons entire genetic make-up. DNA is
found in all human cells and is the same in every cell of the same person. Genetic
identity is unique. Hence, a persons DNA profile can determine his identity.[30]
DNA analysis is a procedure in which DNA extracted from a biological sample
obtained from an individual is examined. The DNA is processed to generate a pattern, or
a DNA profile, for the individual from whom the sample is taken. This DNA profile is
unique for each person, except for identical twins.[31] We quote relevant portions of the
trial courts 3 February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint called DNA
(deoxyribonucleic acid). It is exclusive to an individual (except in the rare
occurrence of identical twins that share a single, fertilized egg), and DNA is
unchanging throughout life. Being a component of every cell in the human
body, the DNA of an individuals blood is the very DNA in his or her skin cells,
hair follicles, muscles, semen, samples from buccal swabs, saliva, or other
body parts.
The chemical structure of DNA has four bases. They are known as A
(adenine), G (guanine), C (cystosine) and T (thymine). The order in which the
four bases appear in an individuals DNA determines his or her physical
makeup. And since DNA is a double-stranded molecule, it is composed of two
specific paired bases, A-T or T-A and G-C or C-G. These are called genes.
Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic code. Somewhere
in the DNA framework, nonetheless, are sections that differ. They are known
as polymorphic loci, which are the areas analyzed in DNA typing (profiling,
tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or
fingerprinting). In other words, DNA typing simply means determining the
polymorphic loci.
How is DNA typing performed? From a DNA sample obtained or
extracted, a molecular biologist may proceed to analyze it in several ways.
There are five (5) techniques to conduct DNA typing. They are: the RFLP
(restriction fragment length polymorphism); reverse dot blot or HLA DQ a/Pm
loci which was used in 287 cases that were admitted as evidence by 37 courts
in the U.S. as of November 1994; mtDNA process; VNTR (variable number
tandem repeats); and the most recent which is known as the PCR-
([polymerase] chain reaction) based STR (short tandem repeats) method
which, as of 1996, was availed of by most forensic laboratories in the world.
PCR is the process of replicating or copying DNA in an evidence sample a
million times through repeated cycling of a reaction involving the so-called
DNA polymerize enzyme. STR, on the other hand, takes measurements in 13
separate places and can match two (2) samples with a reported theoretical
error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, matches are determined.
To illustrate, when DNA or fingerprint tests are done to identify a suspect in a
criminal case, the evidence collected from the crime scene is compared with
the known print. If a substantial amount of the identifying features are the
10
same, the DNA or fingerprint is deemed to be a match. But then, even if only
one feature of the DNA or fingerprint is different, it is deemed not to have
come from the suspect.
As earlier stated, certain regions of human DNA show variations
between people. In each of these regions, a person possesses two genetic
types called allele, one inherited from each parent. In [a] paternity test, the
forensic scientist looks at a number of these variable regions in an individual
to produce a DNA profile. Comparing next the DNA profiles of the mother and
child, it is possible to determine which half of the childs DNA was inherited
from the mother. The other half must have been inherited from the biological
father. The alleged fathers profile is then examined to ascertain whether he
has the DNA types in his profile, which match the paternal types in the child. If
the mans DNA types do not match that of the child, the man is excluded as
the father. If the DNA types match, then he is not excluded as the father.[32]
(Emphasis in the original)
Although the term DNA testing was mentioned in the 1995 case of People v.
Teehankee, Jr.,[33] it was only in the 2001 case of Tijing v. Court of Appeals[34] that
more than a passing mention was given to DNA analysis. In Tijing, we issued a writ of
habeas corpus against respondent who abducted petitioners youngest son. Testimonial
and documentary evidence and physical resemblance were used to establish parentage.
However, we observed that:
Parentage will still be resolved using conventional methods unless we adopt
the modern and scientific ways available. Fortunately, we have now the facility
and expertise in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute (UP-NSRI)
DNA Analysis Laboratory has now the capability to conduct DNA typing using
short tandem repeat (STR) analysis. xxx For it was said, that courts should
apply the results of science when completely obtained in aid of situations
presented, since to reject said result is to deny progress. Though it is not
necessary in this case to resort to DNA testing, in [the] future it would be
useful to all concerned in the prompt resolution of parentage and identity
issues.
Admissibility of
DNA Analysis as Evidence
The 2002 case of People v. Vallejo[35] discussed DNA analysis as evidence. This
may be considered a 180 degree turn from the Courts wary attitude towards DNA testing
in the 1997 Pe Lim case,[36] where we stated that DNA, being a relatively new science,
xxx has not yet been accorded official recognition by our courts. In Vallejo, the DNA
profile from the vaginal swabs taken from the rape victim matched the accuseds DNA
profile. We affirmed the accuseds conviction of rape with homicide and sentenced him to
death. We declared:
In assessing the probative value of DNA evidence, therefore, courts
should consider, among other things, the following data: how the samples
were collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the proper
standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests. [37]
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002,
there was no longer any question on the validity of the use of DNA analysis as evidence.
The Court moved from the issue of according official recognition to DNA analysis as
evidence to the issue of observance of procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence
on DNA testing: People v. Yatar[38] and In re: The Writ of Habeas Corpus for

Reynaldo de Villa.[39] In Yatar, a match existed between the DNA profile of the semen
found in the victim and the DNA profile of the blood sample given by appellant in open
court. The Court, following Vallejos footsteps, affirmed the conviction of appellant
because the physical evidence, corroborated by circumstantial evidence, showed
appellant guilty of rape with homicide. In De Villa, the convict-petitioner presented DNA
test results to prove that he is not the father of the child conceived at the time of
commission of the rape. The Court ruled that a difference between the DNA profile of the
convict-petitioner and the DNA profile of the victims child does not preclude the convict-
petitioners commission of rape.
In the present case, the various pleadings filed by petitioner and respondent refer to
two United States cases to support their respective positions on the admissibility of DNA
analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow Pharmaceuticals.[41]
In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction to
the Supreme Court of the District of Columbia. During trial, Fryes counsel offered an
expert witness to testify on the result of a systolic blood pressure deception test [42] made
on defendant. The state Supreme Court affirmed Fryes conviction and ruled that the
systolic blood pressure deception test has not yet gained such standing and scientific
recognition among physiological and psychological authorities as would justify the courts
in admitting expert testimony deduced from the discovery, development, and
experiments thus far made. The Frye standard of general acceptance states as follows:
Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in this
twilight zone the evidential force of the principle must be recognized, and
while courts will go a long way in admitting expert testimony deduced from a
well recognized scientific principle or discovery, the thing from which the
deduction is made must be sufficiently established to have gained general
acceptance in the particular field in which it belongs.
In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged
with stabbing and murder. Bloodstained articles and blood samples of the accused and
the victim were submitted for DNA testing to a government facility and a private facility.
The prosecution introduced the private testing facilitys results over Schwartzs objection.
One of the issues brought before the state Supreme Court included the admissibility of
DNA test results in a criminal proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained
general acceptance in the scientific community, we hold that admissibility of
specific test results in a particular case hinges on the laboratorys compliance
with appropriate standards and controls, and the availability of their testing
data and results.[44]
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified the
Frye-Schwartz standard. Daubert was a product liability case where both the trial and
appellate courts denied the admissibility of an experts testimony because it failed to meet
the Frye standard of general acceptance. The United States Supreme Court ruled that in
federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule
401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of
evidence. Thus:
Rule 401. Relevant evidence is defined as that which has any tendency
to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the
evidence.
Rule 402. All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
11
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance
does not mean that the Federal Rules do not place limits on the admissibility of scientific
evidence. Rather, the judge must ensure that the testimonys reasoning or method is
scientifically valid and is relevant to the issue. Admissibility would depend on factors such
as (1) whether the theory or technique can be or has been tested; (2) whether the theory
or technique has been subjected to peer review and publication; (3) the known or
potential rate of error; (4) the existence and maintenance of standards controlling the
techniques operation; and (5) whether the theory or technique is generally accepted in
the scientific community.
Another product liability case, Kumho Tires Co. v. Carmichael,[46] further modified
the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now
reads as follows:
If scientific, technical or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these American cases.
Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is
controlling in the Philippines.[47] At best, American jurisprudence merely has a persuasive
effect on our decisions. Here, evidence is admissible when it is relevant to the fact in
issue and is not otherwise excluded by statute or the Rules of Court.[48] Evidence is
relevant when it has such a relation to the fact in issue as to induce belief in its existence
or non-existence.[49] Section 49 of Rule 130, which governs the admissibility of expert
testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge, skill,
experience or training which he is shown to possess may be received in
evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as
evidence. Indeed, even evidence on collateral matters is allowed when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue. [50]
Indeed, it would have been convenient to merely refer petitioner to our decisions in
Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our
jurisdiction, the restrictive tests for admissibility established by Frye-Schwartz and
Daubert-Kumho go into the weight of the evidence.
Probative Value of
DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts should be cautious in
giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts
should consider, among other things, the following data: how the samples
were collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the proper
standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.[51]
We also repeat the trial courts explanation of DNA analysis used in paternity cases:

In [a] paternity test, the forensic scientist looks at a number of these variable
regions in an individual to produce a DNA profile. Comparing next the DNA
profiles of the mother and child, it is possible to determine which half of the
childs DNA was inherited from the mother. The other half must have been
inherited from the biological father. The alleged fathers profile is then
examined to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the mans DNA types do not match that
of the child, the man is excluded as the father. If the DNA types match, then
he is not excluded as the father.[52]
It is not enough to state that the childs DNA profile matches that of the putative father. A
complete match between the DNA profile of the child and the DNA profile of the putative
father does not necessarily establish paternity. For this reason, following the highest
standard adopted in an American jurisdiction,[53] trial courts should require at least 99.9%
as a minimum value of the Probability of Paternity (W) prior to a paternity inclusion. W is
a numerical estimate for the likelihood of paternity of a putative father compared to the
probability of a random match of two unrelated individuals. An appropriate reference
population database, such as the Philippine population database, is required to compute
for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%.
However, the accuracy of W estimates is higher when the putative father, mother and
child are subjected to DNA analysis compared to those conducted between the putative
father and child alone.[54]
DNA analysis that excludes the putative father from paternity should be conclusive
proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA
analysis should be considered as corroborative evidence. If the value of W is 99.9% or
higher, then there is refutable presumption of paternity.[55] This refutable presumption of
paternity should be subjected to the Vallejo standards.
Right Against
Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that no person shall be
compelled to be a witness against himself. Petitioner asserts that obtaining samples from
him for DNA testing violates his right against self-incrimination. Petitioner ignores our
earlier pronouncements that the privilege is applicable only to testimonial evidence.
Again, we quote relevant portions of the trial courts 3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or from the
respondent in a paternity case, contrary to the belief of respondent in this
action, will not violate the right against self-incrimination. This privilege applies
only to evidence that is communicative in essence taken under duress
(People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that
the right against self-incrimination is just a prohibition on the use of physical or
moral compulsion to extort communication (testimonial evidence) from a
defendant, not an exclusion of evidence taken from his body when it may be
material. As such, a defendant can be required to submit to a test to extract
virus from his body (as cited in People vs. Olvis, Supra); the substance
emitting from the body of the accused was received as evidence for acts of
lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the
mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order
by the judge for the witness to put on pair of pants for size was allowed
(People vs. Otadora, 86 Phil. 244); and the court can compel a woman
accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41
Phil. 62), since the gist of the privilege is the restriction on testimonial
compulsion.[56]
The policy of the Family Code to liberalize the rule on the investigation of the
paternity and filiation of children, especially of illegitimate children, is without prejudice to
12
the right of the putative parent to claim his or her own defenses. [57] Where the evidence
to aid this investigation is obtainable through the facilities of modern science and
technology, such evidence should be considered subject to the limits established by the
law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of
Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the
Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional
Trial Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Azcuna, JJ.,
concur.
G.R. No. L-1967 May 28, 1951
Probate of the will of the late Faustino Neri San Jose. PAZ NERI SAN
JOSE, petitioner.
MATILDE MENCIANO, in her behalf and in behalf of the minors CARLO MAGNO
NERI and FAUSTINO NERI, Jr., plaintiffs-appellees,
vs.
PAZ NERI SAN JOSE and RODOLFO PELAEZ, defendants-appellants.
Claro M. Recto, Francisco R. Capistrano, Pelaez, Pelaez and Pelaez and Ernesto V.
Chavez for appellants.
Pineda, Hermosisima and Neri for appellees.
JUGO, J.:
In the course of the proceedings for the settlement of the estate of the deceased
Faustino Neri San Jose, Special Proceedings No. 6-A of the Court First Instance of
Misamis Oriental, Matilde Menciano, in her behalf and in behalf of the minors Carlo
Magno Neri and Faustino Neri, Jr., filed a motion for declaration of heirs, alleging that
she is the widow of the deceased Faustino Neri San Jose, to whom she was married
according to the rites of the Roman Catholic Church on September 28, 1944, before Rev.
Father Isaias Edralin, S. J.; that before the marriage the deceased and she lived together
as husband and wife, there having been no impediment to their marriage; that as a result
of their cohabitation before the marriage the child Carlo Magno Neri was born on March
9, 1940 and was later baptized, said child having enjoyed the status of a recognized
natural child; that their second child Faustino Neri, Jr., was born on April 24, 1945; and
that Carlo Magno Neri was legitimized by the subsequent matrimony of his parents and
Faustino Neri, Jr., is a legitimate child born in lawful wedlock.
Paz Neri San Jose, then executrix of the estate of the deceased Faustino Neri San Jose,
and Rodolfo Pelaez, designated universal heir in the will of the deceased dated
December 19, 1940, filed an amended answer with the permission of the court, in which
they denied the substantial allegations of the abovementioned motion for declaration of
heirs and further alleged in substance that the deceased Faustino Neri San Jose, from
the year 1943, was suffering from senile dementia caused by anemia which became
worse from September 9, 1944, when the Province of Misamis Oriental where the
deceased lived was bombarded by American planes; that the marriage between said
deceased and Matilde Menciano, if it was solemnized, was in violation of the legal
provisions and requisites, for he (the deceased) was deprived of his free will due to his
age, sickness, and bombardment, and Matilde Menciano, taking advantage of the
deceased's condition, by intrigue and threat of abandoning him, forced Neri by means of
deceit (dolo) and threat to marry her; and that the deceased was sterile, unable to
procreate, and was impotent and congenitally sterile, the same as his brothers
Anastasio, Filomeno, Pedro, and his sister Conchita, who had no children. The
defendants also filed a counterclaim for the sum of P286,000 in cash, and for jewels and

certain properties, which, as alleged, were retained and illegally disposed of by Matilde
Menciano.
The above allegations of the parties give rise to the following issues:
(1) Was the marriage between the deceased Faustino Neri San Jose and
Matilde Menciano valid?;
(2) Are, the children Faustino Neri, Jr. and Carlo Magno Neri the legitimate
children of the deceased Faustino Neri San Jose and Matilde Menciano?; and
(3) Did Matilde Menciano have in her possession and illegally disposed of the
cash, jewels, and certain properties above mentioned?
The marriage between the deceased and Matilde Menciano is evidenced by Exhibit I-C,
which is an application for a marriage license, dated September 28, 1944, signed by
Faustino Neri San Jose, to marry Matilde Menciano; Exhibit 1-B, also an application for a
marriage license dated September 28, 1944, signed by Matilde Menciano, to marry
Faustino Neri San Jose; Exhibit 1-D, certificate for immediate issuance of the marriage
license applied for, signed by the Acting Local Civil Registrar and Faustino Neri San Jose
and Matilde Menciano; and Exhibit 1-A, the marriage contract signed by Faustino Neri
San Jose and Matilde Menciano as contracting parties, Rev. Isaias Edralin, as
solemnizing officer, and the witnesses L. B. Castaños and Samson Pañgan.
As all the above four exhibits are official and public documents, their validity can be
successfully assailed only by strong, clear, and convincing oral testimony. In the case
of Arroyo vs. Granada (18 Phil, 484), it was held:
1. CANCELLATION OF INSTRUMENTS; SUFFICIENCY OF PROOF. — To
justify the setting aside of an instrument solemnly executed and voluntarily
delivered, upon the ground that its execution was obtained by false and
fraudulent representations, the proof must be clear and convincing. (Syllabus)
In the case of Sy Tiangco vs. Pablo and Apao (59 Phil., 119), this Court declared:
1. PUBLIC DOCUMENT; EXECUTION; DENIAL OF ALLEGED SIGNER;
BURDEN OF PROOF. — Plaintiff's attorneys vigorously contend that when the
plaintiff denied having signed the deed it was incumbent upon the defendants to
can the witnesses thereto. The execution of a document that has been ratified
before a notary public cannot be disproved by the mere denial of the alleged
signer. No inference unfavorable to the defendant arises from their failure to call
the subscribing witnesses. (Syllabus)
Is the oral evidence presented by the defendants of sufficient force and weight to
overcome the above official documents?
The witnesses for the defendants testified in substance that the deceased Faustino Neri
was so weak and sick that he could not even talk coherently and intelligibly. Their
testimony is too sweeping, because they refer to a general period of time. There must
have been times when the deceased may have been unable to attend to business or
even to converse on account of his sickness, and even Father Edralin did not solemnize
the marriage on a certain date on account of the weak condition of Faustino Neri and
waited for about two days to perform the ceremony when the old man, although
somewhat weak, had a clear mind. Father Edralin's testimony is strongly corroborated by
the form of the signatures of Faustino Neri in the above mentioned Exhibits 1-A, 1-C, and
1-D. A mere glance at those signatures will convince anyone that they could not have
been written by a man who is almost unconscious and physically and intellectually
incapacitated, as the defendants' witnesses represent him to have been. It should be
noted that his signature is complicated, containing many flourishes, such that it can not
be signed by one who is not of sound mind and of fair physical condition. He may have
been sick at that time, but not to such a degree as to render him unconscious of what he
was doing. If the signatures of the deceased in Exhibits 1-A, 1-C, and 1-D are compared
with each other it will be readily seen that they are practically uniform, which could not
have been accomplished by a man who is a nervous wreck. There is no sign of trembling
13
of the hands or fingers of the person who affixed those signatures, which usually
happens to a very sick man. In the case of Torres et al. vs. Lopez (48 Phil., 772), this
court made the following pronouncement:
3. ID.; ID TESTS OF CAPACITY. — Neither old age, physical infirmities,
feebleness of mind, weakness of the memory, the appointment of a guardian,
nor eccentricities are sufficient singly or jointly to show testamentary incapacity.
The nature and rationally of the will is of some practical utility in determining
capacity. Each case rests on its own facts and must be decided by its own facts.
(Syllabus, p. 773.)
xxx xxx xxx
11. ID.; ID.; ID.; ID.; CASE AT BAR. — On January 3, 1924, when the testator,
Tomas Rodriguez, made his will, he was 76 years old, physically decrepit, weak
of intellect, suffering from a loss of memory, had a guardian of his person and
his person and his property, and was eccentric, but he still possessed that spark
of reason and of life, that strength of mind to form a fixed intention and to
summon his enfeebled thoughts to enforce that intention, which the law terms
"testamentary capacity." Two of the subscribing witnesses testified clearly to the
regular manner in which the will was executed, and one did not. The attending
physicians and three other doctors who were present at the execution of the will
expressed opinions entirely favorable to the capacity of the testator. Three other
members of the medical profession expressed opinions entirely unfavorable to
the capacity of the testator and certified that he was of unsound
mind. Held, That Tomas Rodriguez on January 3, 1924, possessed sufficient
mentality to make a will which would meet the legal test regarding testamentary
capacity; that the proponents of the will have carried successfully the burden of
proof and have shown him of sound mind on that date; and that it was reversible
error on the part of the trial court not to admit his will to probate. (Syllabus, p.
774)
In Sancho vs. Abella (58 Phil., 728), this court said:
1. WILLS; PROBATE; CAPACITY TO MAKE A WILL. — Neither senile debility,
nor deafness, nor blindness, nor poor memory, is by itself sufficient to establish
the presumption that the person suffering therefrom is not in the full enjoyment
of his mental faculties, when there is sufficient evidence of his mental sanity at
the time of the execution of the will.
2. ID.; ID.; ID.; — Neither the facts of her being given accommodations in a
convent, nor the presence of the parish priest, nor a priest acting as a witness,
constitutes undue influence sufficient to justify the annulment of a legacy in
favor of a bishop of a diocese, made in her will by a testatrix 88 years of age,
suffering from defective eyesight and hearing, while she is stopping in a convent
within the aforesaid diocese. (Syllabi)
Although the above doctrine relates to testamentary capacity, there is no reason why it
should not be applied to the capacity to contract marriage, which requires the same
mental condition. Consequently, the court below did not err in declaring valid the
marriage of Faustino Neri San Jose and Matilde Menciano.
The next issue is whether Faustino Neri, Jr., and Carlo Magno Neri are legitimate
children of the deceased Faustino Neri and Matilde Menciano. As above stated, the
deceased Faustino Neri and Matilde Menciano were married on September 28, 1944.
Faustino Neri, Jr., was born on April 24, 1945; that is, two hundred eight days, or more
than one hundred eighty days, after the marriage, but less than three hundred days after
the death of Faustino Neri San Jose which occurred on October 11, 1944. There is no
question that before and after the marriage, the deceased and Matilde Menciano co-
habitated.
Rule 123, section 68 (c), reads as follows:

SEC. 68. Conclusive presumptions. — The following are instances of conclusive
presumptions:
xxx xxx xxx
(c) The issue of a wife cohabiting with her husband, who is not impotent, is
indisputably presumed to be legitimate, if not born within the one hundred and
eighty days immediately succeeding the marriage, or after the expiration of
three hundred days following its dissolution;
xxx xxx xxx
The above-quoted provision is so clear that it does not require interpretation or
construction, but only application.
The requirements for the conclusive presumption that Faustino Neri, Jr. is the legitimate
son of the legitimate marriage of the deceased Faustino Neri and Matilde Menciano exist
as above stated, with the possible exception of the requisite as to potency.
Was the deceased Faustino Neri impotent during his cohabitation with Matilde
Menciano?
Impotency being an abnormal condition should not be presumed. The presumption is in
favor of potency. The best evidence that the deceased was potent is the statement of Dr.
Antonio Garcia that in order to get a specimen of the semen of the deceased Faustino
Neri for examination as to its contents of spermatozoa, Faustino, following the doctor's
advice, used a rubber sac, commonly called "condom", and a woman. The fact that the
deceased was able to produce the specimen by said means shows conclusively that he
was potent. Impotency is not synonymous with sterility. Impotency is the physical inability
to have sexual intercourse; it is different from sterility.
(1) Impotence, in Medical Jurisprudence. — Inability on the part of the male
organ of copulation to perform its proper function. Impotence applies only to
disorders affecting the functions of the organ of copulation, while sterility applies
only to lack of fertility in the reproductive elements of either sex. (Dennis,
System of Surgery; Bouvier's Law Dictionary, Rawle's Third Revision, Vol. 11, p.
1514)
(2) Impotencia (L.) Impotence.
Impotencia Coeundi, inability of the male to perform the sexual act.
Impotentia Erigendi, inability to have an erection of the penis.(The American
Illustrated Medical Dictionary, by Dorland 20th Edition, p. 721)
i. Coeundi. Inability of the male to perform the sexual act. i. erigendi, impotence
due to the absence of the power of erection. (Stedman's Practical Medical
Dictionary, p. 551)
(4) Impotence.
"3. Law & Med. Incapacity for sexual intercourse." (Webster's New International
Dictionary, Second Edition, Unabridged, p. 1251)
(5) Impotency or Impotence. — Want of power for copulation, not mere sterility.
The absence of complete power of copulation is an essential element to
constitute impotency. (31 C. J., P. 259)
(6) Impotence. — Inability to perform the sexual act may be due to defective
organs from abnormal or incomplete development, or to deficient internal
secretions, or to disorders of the nervous system diminishing the libido.
Impotence may or may not be accompanied by sterility. (The Columbia
Encyclopedia, 877)
Consequently, the requisite of potency also existed. The necessary conclusion is that the
child Faustino Neri, Jr., is conclusively presumed to be the legitimate son of the
deceased Faustino Neri with Matilde Menciano in lawful wedlock.
The attorney for the plaintiffs correctly objected to the evidence regarding sterility and
any other evidence as to paternity. The objection should not have been overruled.
14
However, even considering the evidence as to sterility, it results that the examinations of
the semen by Drs. Garcia and Marfori in 1940, to determine the existence of
spermatozoa, do not establish that the deceased was sterile. According to medical
jurisprudence, a man may not have spermatozoa at a certain time, but may have had it
previously or may have it subsequently to the examination. The examinations by Drs.
Garcia and Marfori were made in 1940. From that time Faustino Neri San Jose cohabited
with Matilde Menciano until his death on October 11, 1944.
Doctor Jose F. Marfori. testified as follows:
Q. How many times did you examine his seminal fluid? — A. Only once.
Q. In other words, from the latter part of 1940 up to his death, you examined
only once his seminal fluid? — A. Yes, sir.
Q. Is it not a fact that you cannot determine sterility or his inability to procreate
with one examination? — A. It would have been better if there was an
examination of his seminal fluid every year.
Q. But the truth is that today a man may lack spermatozoa in his seminal fluid,
but much later it may appear? — A. That is possible. (P. 28, t. s. n., Gaane)
It should be noted that Doctor Marfori is a nephew-in-law of the deceased Faustino Neri.
With regard to the supposed examination made by Doctor Garcia in Cebu on December
9, 1940, Cristobal Lopez, nephew of Faustino, testified that during said period,
December, 1940, the deceased Neri never went out of Cagayan, Oriental Misamis. We
cannot accord much weight to the testimony of Doctor Garcia that he made the
examination.
But even supposing that said doctors made such examinations, still the result is
inconclusive, for the reasons above set forth, and cannot in any way overthrow the
conclusive presumption established by Rule 123, section 68 (c).
Carlo Magno Neri was born on March 9, 1940, that is, before the marriage. Both the
deceased Faustino and Matilde Menciano free to marry without any legal impediment.
However, the court below declared that Carlo Magno Neri has not been acknowledged
as a natural child and, consequently, cannot be legitimized by the subsequent marriage
of his parents. We cannot review this finding because the plaintiffs did not appeal.
The defendants allege that Matilde Menciano is retaining or has illegally disposed of
P286,000, genuine Philippine currency, certain jewels, and documents. The trial court,
after a careful and exhaustive review of the evidence, correctly reached the conclusion
that such allegation has not been substantiated. Let us make a short analysis of the
defendants' evidence on this point.
The principal witness for this claim was Rodolfo Pelaez, who testified that the deceased
Faustino in 1939 delivered to him the sum of P250,000 in small denominations to be
exchanged in a bank in Manila for bills of larger denominations as P500, etc. After having
exchanged it with the help of Representative Ozamis (dead on the date of the trial), he
returned to the province and delivered the sum to the deceased Neri. On cross-
examination he was not able to say whether the bills he took to Manila in October, 1939,
were treasury certificates or bank bills; that in July, 1944, he visited Cagayan and he saw
his uncle Faustino living with Matilde Menciano and Carlo Magno Neri in the house of a
Chinaman on Calle Del Mar; that he saw the sum of P250,000 in a wooden aparador. But
when he was asked whether he actually saw the money in the aparador, he said he was
so informed by his uncle. His testimony is hearsay. Furthermore, there is no reason why
his uncle should have accounted to him for the money. His testimony is contradicted by
that of Paz Neri San Jose, his mother, who stated that the deceased Faustino went to the
house of the Chinaman on Calle Del Mar only to fetch certain document which he had left
there; that the deceased was not living in said house; that he went there now and play
monte; that the deceased and herself were living in the house of one Tamparong; that
the deceased used to carry with him his money, jewels, and documents, in a sack,
wherever he went to play; that at the time of the air raid by the Americans, the deceased

went to the house on Calle Del Mar carrying the said sack, but he returned to the house
of Tamparong, leaving the sack in the house on Calle Del Mar, but after the air raid he
returned on the latter house to fetch the sack. This testimony of Paz Neri, who was a
witness for the defendants and a co-defendant herself, contradicts in essential and
important features that of Rodolfo Pelaez.
The testimony of Paz Neri would show that the deceased Neri was distrustful of relatives
and friends when his funds were concerned. P250,000 in 1939 was quite a fortune in
itself and, consisting of cash, could have been easily disposed of. In 1939 nobody
believed for certain that there would be war. Why then should the deceased have wanted
to change the money for bigger denominations when he could have deposited it in a
nearby branch of the Philippine National Bank where the deceased could have gone, for,
as alleged by the defendants, he even went to Cebu in 1940 for examination of his
seminal fluid?
It was testified to by Clotilde Galarrita de Labitad that Matilde Menciano showed to her
the sum of P284,000 in genuine Philippine currency and counted the money in her
presence. This is unbelievable. Could she not have counted it without the presence of
anybody and thus avoided the danger of theft or robbery?
With regard to the jewels no satisfactory evidence was presented to prove that Matilde
Menciano misappropriated them. She received and had in her possession a few jewels
given to her by the deceased Faustino for the benefit of the children.
As to the revocation of the appointment of Paz Neri San Jose as executrix, the trial court
made a reasonable exercise of its discretion in setting it aside and appointing Matilde
Menciano administratrix, in view of the hostility between them which would cause many
incidental questions and delay in the termination of the proceedings if Paz Neri had
continued as executrix. We see no reason for interfering in the case with the discretion of
the court.
The appellees contended that the court erred in not completely annulling the institution of
universal heir, without considering Rodolfo Pelaez as a legatee. Inasmuch as the
plaintiffs did not appeal, they are bound by the decision of the trial court.
In view of the foregoing, the judgment appealed from is affirmed in all its parts, with costs
against the appellants. It is so ordered.
Paras, Bengzon, C. J., Feria, Pablo, Montemayor and Bautista Angelo, JJ., concur.
G.R. No. 119190 January 16, 1997
CHI MING TSOI, petitioner,
vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.
TORRES, JR., J.:
Man has not invented a reliable compass by which to steer a marriage in its journey over
troubled waters. Laws are seemingly inadequate. Over time, much reliance has been
placed in the works of the unseen hand of Him who created all things.
Who is to blame when a marriage fails?
This case was originally commenced by a distraught wife against her uncaring husband
in the Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of
the marriage on the ground of psychological incapacity. Petitioner appealed the decision
of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed
the Trial Court's decision November 29, 1994 and correspondingly denied the motion for
reconsideration in a resolution dated February 14, 1995.
The statement of the case and of the facts made by the trial court and reproduced by the
Court of Appeals1 its decision are as follows:
15
From the evidence adduced, the following acts were preponderantly
established:
Sometime on May 22, 1988, the plaintiff married the defendant at the Manila
Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract.
(Exh. "A")
After the celebration of their marriage and wedding reception at the South Villa,
Makati, they went and proceeded to the house of defendant's mother.
There, they slept together on the same bed in the same room for the first night
of their married life.
It is the version of the plaintiff, that contrary to her expectations, that as
newlyweds they were supposed to enjoy making love, or having sexual
intercourse, with each other, the defendant just went to bed, slept on one side
thereof, then turned his back and went to sleep . There was no sexual
intercourse between them during the first night. The same thing happened on
the second, third and fourth nights.
In an effort to have their honeymoon in a private place where they can enjoy
together during their first week as husband and wife, they went to Baguio City.
But, they did so together with her mother, an uncle, his mother and his nephew.
They were all invited by the defendant to join them. [T]hey stayed in Baguio City
for four (4) days. But, during this period, there was no sexual intercourse
between them, since the defendant avoided her by taking a long walk during
siesta time or by just sleeping on a rocking chair located at the living room. They
slept together in the same room and on the same bed since May 22, 1988 until
March 15, 1989. But during this period, there was no attempt of sexual
intercourse between them. [S]he claims, that she did not: even see her
husband's private parts nor did he see hers.
Because of this, they submitted themselves for medical examinations to Dr.
Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20,
1989.
The results of their physical examinations were that she is healthy, normal and
still a virgin, while that of her husband's examination was kept confidential up to
this time. While no medicine was prescribed for her, the doctor prescribed
medications for her husband which was also kept confidential. No treatment
was given to her. For her husband, he was asked by the doctor to return but he
never did.
The plaintiff claims, that the defendant is impotent, a closet homosexual as he
did not show his penis. She said, that she had observed the defendant using an
eyebrow pencil and sometimes the cleansing cream of his mother. And that,
according to her, the defendant married her, a Filipino citizen, to acquire or
maintain his residency status here in the country and to publicly maintain the
appearance of a normal man.
The plaintiff is not willing to reconcile with her husband.
On the other hand, it is the claim of the defendant that if their marriage shall be
annulled by reason of psychological incapacity, the fault lies with his wife.
But, he said that he does not want his marriage with his wife annulled for
several reasons, viz: (1) that he loves her very much; (2) that he has no defect
on his part and he is physically and psychologically capable; and, (3) since the
relationship is still very young and if there is any differences between the two of
them, it can still be reconciled and that, according to him, if either one of them
has some incapabilities, there is no certainty that this will not be cured. He
further claims, that if there is any defect, it can be cured by the intervention of
medical technology or science.

The defendant admitted that since their marriage on May 22, 1988, until their
separation on March 15, 1989, there was no sexual contact between them. But,
the reason for this, according to the defendant, was that everytime he wants to
have sexual intercourse with his wife, she always avoided him and whenever he
caresses her private parts, she always removed his hands. The defendant
claims, that he forced his wife to have sex with him only once but he did not
continue because she was shaking and she did not like it. So he stopped.
There are two (2) reasons, according to the defendant , why the plaintiff filed
this case against him, and these are: (1) that she is afraid that she will be forced
to return the pieces of jewelry of his mother, and, (2) that her husband, the
defendant, will consummate their marriage.
The defendant insisted that their marriage will remain valid because they are
still very young and there is still a chance to overcome their differences.
The defendant submitted himself to a physical examination. His penis was
examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is
impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report.
(Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-B"),
and he is capable of erection. (Exh. "2-C")
The doctor said, that he asked the defendant to masturbate to find out whether
or not he has an erection and he found out that from the original size of two (2)
inches, or five (5) centimeters, the penis of the defendant lengthened by one (1)
inch and one centimeter. Dr. Alteza said, that the defendant had only a soft
erection which is why his penis is not in its full length. But, still is capable of
further erection, in that with his soft erection, the defendant is capable of having
sexual intercourse with a woman.
In open Court, the Trial Prosecutor manifested that there is no collusion
between the parties and that the evidence is not fabricated."2
After trial, the court rendered judgment, the dispositive portion of which reads:
ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage
entered into by the plaintiff with the defendant on May 22, 1988 at the Manila
Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before
the Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a copy of this decision
be furnished the Local Civil Registrar of Quezon City. Let another copy be
furnished the Local Civil Registrar of Manila.
SO ORDERED.
On appeal, the Court of Appeals affirmed the trial court's decision.
Hence, the instant petition.
Petitioner alleges that the respondent Court of Appeals erred:
I resolved upon a review of both the documentary and testimonial evidence on
in affirming the conclusions of the lower court that there was no sexual
intercourse between the parties without making any findings of fact.
II
in holding that the refusal of private respondent to have sexual communion with
petitioner is a psychological incapacity inasmuch as proof thereof is totally
absent.
III
in holding that the alleged refusal of both the petitioner and the private
respondent to have sex with each other constitutes psychological incapacity of
both.
IV
in affirming the annulment of the marriage between the parties decreed by the
lower court without fully satisfying itself that there was no collusion between
them.
16
We find the petition to be bereft of merit.
Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private
respondent has the burden of proving the allegations in her complaint; that since there
was no independent evidence to prove the alleged non-coitus between the parties, there
remains no other basis for the court's conclusion except the admission of petitioner; that
public policy should aid acts intended to validate marriage and should retard acts
intended to invalidate them; that the conclusion drawn by the trial court on the
admissions and confessions of the parties in their pleadings and in the course of the trial
is misplaced since it could have been a product of collusion; and that in actions for
annulment of marriage, the material facts alleged in the complaint shall always be
proved.3
Section 1, Rule 19 of the Rules of Court reads:
Section 1. Judgment on the pleadings. — Where an answer fails to tender an
issue, or otherwise admits the material allegations of the adverse party's
pleading, the court may, on motion of that party, direct judgment on such
pleading. But in actions for annulment of marriage or for legal separation the
material facts alleged in the complaint shall always be proved.
The foregoing provision pertains to a judgment on the pleadings. What said provision
seeks to prevent is annulment of marriage without trial. The assailed decision was not
based on such a judgment on the pleadings. When private respondent testified under
oath before the trial court and was cross-examined by oath before the trial court and was
cross-examined by the adverse party, she thereby presented evidence in form of a
testimony. After such evidence was presented, it be came incumbent upon petitioner to
present his side. He admitted that since their marriage on May 22, 1988, until their
separation on March 15, 1989, there was no sexual intercourse between them.
To prevent collusion between the parties is the reason why, as stated by the petitioner,
the Civil Code provides that no judgment annulling a marriage shall be promulgated upon
a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the
Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19).
The case has reached this Court because petitioner does not want their marriage to be
annulled. This only shows that there is no collusion between the parties. When petitioner
admitted that he and his wife (private respondent) have never had sexual contact with
each other, he must have been only telling the truth. We are reproducing the relevant
portion of the challenged resolution denying petitioner's Motion for Reconsideration,
penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:
The judgment of the trial court which was affirmed by this Court is not based on
a stipulation of facts. The issue of whether or not the appellant is
psychologically incapacitated to discharge a basic marital obligation was
record. Appellant admitted that he did not have sexual relations with his wife
after almost ten months of cohabitation, and it appears that he is not suffering
from any physical disability. Such abnormal reluctance or unwillingness to
consummate his marriage is strongly indicative of a serious personality disorder
which to the mind of this Court clearly demonstrates an 'utter insensitivity or
inability to give meaning and significance to the marriage' within the meaning of
Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No.
112019, January 4, 1995).4
Petitioner further contends that respondent court erred in holding that the alleged refusal
of both the petitioner and the private respondent to have sex with each other constitutes
psychological incapacity of both. He points out as error the failure of the trial court to
make "a categorical finding about the alleged psychological incapacity and an in-depth
analysis of the reasons for such refusal which may not be necessarily due to
physchological disorders" because there might have been other reasons, — i.e., physical

disorders, such as aches, pains or other discomforts, — why private respondent would
not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a short
span of 10 months.
First, it must be stated that neither the trial court nor the respondent court made a finding
on who between petitioner and private respondent refuses to have sexual contact with
the other. The fact remains, however, that there has never been coitus between them. At
any rate, since the action to declare the marriage void may be filed by either party, i.e.,
even the psychologically incapacitated, the question of who refuses to have sex with the
other becomes immaterial.
Petitioner claims that there is no independent evidence on record to show that any of the
parties is suffering from phychological incapacity. Petitioner also claims that he wanted to
have sex with private respondent; that the reason for private respondent's refusal may
not be psychological but physical disorder as stated above.
We do not agree. Assuming it to be so, petitioner could have discussed with private
respondent or asked her what is ailing her, and why she balks and avoids him everytime
he wanted to have sexual intercourse with her. He never did. At least, there is nothing in
the record to show that he had tried to find out or discover what the problem with his wife
could be. What he presented in evidence is his doctor's Medical Report that there is no
evidence of his impotency and he is capable of erection. 5 Since it is petitioner's claim that
the reason is not psychological but perhaps physical disorder on the part of private
respondent, it became incumbent upon him to prove such a claim.
If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant,
Catholic marriage tribunals attribute the causes to psychological incapacity than
to stubborn refusal. Senseless and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged refusal of a spouse to have
sexual intercourse with his or her spouse is considered a sign of psychological
incapacity.6
Evidently, one of the essential marital obligations under the Family Code is "To procreate
children based on the universal principle that procreation of children through sexual
cooperation is the basic end of marriage." Constant non- fulfillment of this obligation will
finally destroy the integrity or wholeness of the marriage. In the case at bar, the
senseless and protracted refusal of one of the parties to fulfill the above marital obligation
is equivalent to psychological incapacity.
As aptly stated by the respondent court,
An examination of the evidence convinces Us that the husband's plea that the
wife did not want carnal intercourse with him does not inspire belief. Since he
was not physically impotent, but he refrained from sexual intercourse during the
entire time (from May 22, 1988 to March 15, 1989) that he occupied the same
bed with his wife, purely out of symphaty for her feelings, he deserves to be
doubted for not having asserted his right seven though she balked (Tompkins
vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it
were true that it is the wife was suffering from incapacity, the fact that defendant
did not go to court and seek the declaration of nullity weakens his claim. This
case was instituted by the wife whose normal expectations of her marriage were
frustrated by her husband's inadequacy. Considering the innate modesty of the
Filipino woman, it is hard to believe that she would expose her private life to
public scrutiny and fabricate testimony against her husband if it were not
necessary to put her life in order and put to rest her marital status.
We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not
phychological incapacity, and which can be achieved "through proper
motivation." After almost ten months of cohabitation, the admission that the
17
husband is reluctant or unwilling to perform the sexual act with his wife whom
he professes to love very dearly, and who has not posed any insurmountable
resistance to his alleged approaches, is indicative of a hopeless situation, and
of a serious personality disorder that constitutes psychological incapacity to
discharge the basic marital covenants within the contemplation of the Family
Code.7
While the law provides that the husband and the wife are obliged to live together,
observe mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is
actually the "spontaneous, mutual affection between husband and wife and not any legal
mandate or court order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless unless
it is shared with another. Indeed, no man is an island, the cruelest act of a partner in
marriage is to say "I could not have cared less." This is so because an ungiven self is an
unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual
intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a
participation in the mystery of creation. It is a function which enlivens the hope of
procreation and ensures the continuation of family relations.
It appears that there is absence of empathy between petitioner and private respondent.
That is — a shared feeling which between husband and wife must be experienced not
only by having spontaneous sexual intimacy but a deep sense of spiritual communion.
Marital union is a two-way process. An expressive interest in each other's feelings at a
time it is needed by the other can go a long way in deepening the marital relationship.
Marriage is definitely not for children but for two consenting adults who view the
relationship with love amor gignit amorem, respect, sacrifice and a continuing
commitment to compromise, conscious of its value as a sublime social institution.
This Court, finding the gravity of the failed relationship in which the parties found
themselves trapped in its mire of unfulfilled vows and unconsummated marital
obligations, can do no less but sustain the studied judgment of respondent appellate
court.
IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of
Appeals dated November 29, 1994 is hereby AFFIRMED in all respects and the petition
is hereby DENIED for lack of merit.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ., concur.
G.R. No. L-12790 August 31, 1960
JOEL JIMENEZ, plaintiff-appellee,
vs.
REMEDIOS CAÑIZARES, defendant.
Republic of the Philippines, intervenor-appellant.
Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for
appellant.
Climaco, Ascarraga and Silang for appellee.
PADILLA, J.:
In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the
plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant
Remedios Cañizares contracted on 3 August 1950 before a judge of the municipal court
of Zamboanga City, upon the ground that the office of her genitals or vagina was to small
to allow the penetration of a male organ or penis for copulation; that the condition of her
genitals as described above existed at the time of marriage and continues to exist; and
that for that reason he left the conjugal home two nights and one day after they had been
married. On 14 June 1955 the wife was summoned and served a copy of the complaint.

She did not file an answer. On 29 September 1956, pursuant to the provisions of article
88 of the Civil Code, the Court directed the city attorney of Zamboanga to inquire
whether there was a collusion, to intervene for the State to see that the evidence for the
plaintiff is not a frame-up, concocted or fabricated. On 17 December 1956 the Court
entered an order requiring the defendant to submit to a physical examination by a
competent lady physician to determine her physical capacity for copulation and to submit,
within ten days from receipt of the order, a medical certificate on the result thereof. On 14
March 1957 the defendant was granted additional five days from notice to comply with
the order of 17 December 1956 with warning that her failure to undergo medical
examination and submit the required doctor's certificate would be deemed lack of interest
on her part in the case and that judgment upon the evidence presented by her husband
would be rendered.
After hearing, at which the defendant was not present, on 11 April 1957 the Court
entered a decree annulling the marriage between the plaintiff and the defendant. On 26
April 1957 the city attorney filed a motion for reconsideration of the decree thus entered,
upon the ground, among others, that the defendant's impotency has not been
satisfactorily established as required by law; that she had not been physically examined
because she had refused to be examined; that instead of annulling the marriage the
Court should have punished her for contempt of court and compelled her to undergo a
physical examination and submit a medical certificate; and that the decree sought to be
reconsidered would open the door to married couples, who want to end their marriage to
collude or connive with each other by just alleging impotency of one of them. He prayed
that the complaint be dismissed or that the wife be subjected to a physical examination.
Pending resolution of his motion, the city attorney timely appealed from the decree. On
13 May 1957 the motion for reconsideration was denied.
The question to determine is whether the marriage in question may be annulled on the
strength only of the lone testimony of the husband who claimed and testified that his wife
was and is impotent. The latter did not answer the complaint, was absent during the
hearing, and refused to submit to a medical examination.
18
Marriage in this country is an institution in which the community is deeply interested. The
state has surrounded it with safeguards to maintain its purity, continuity and permanence.
The security and stability of the state are largely dependent upon it. It is the interest of
each and every member of the community to prevent the bringing about of a condition
that would shake its foundation and ultimately lead to its destruction. The incidents of the
status are governed by law, not by will of the parties. The law specifically enumerates the
legal grounds, that must be proved to exist by indubitable evidence, to annul a marriage.
In the case at bar, the annulment of the marriage in question was decreed upon the sole
testimony of the husband who was expected to give testimony tending or aiming at
securing the annulment of his marriage he sought and seeks. Whether the wife is really
impotent cannot be deemed to have been satisfactorily established, becase from the
commencement of the proceedings until the entry of the decree she had abstained from
taking part therein. Although her refusal to be examined or failure to appear in court show
indifference on her part, yet from such attitude the presumption arising out of the
suppression of evidence could not arise or be inferred because women of this country
are by nature coy, bashful and shy and would not submit to a physical examination
unless compelled to by competent authority. This the Court may do without doing
violence to and infringing in this case is not self-incrimination. She is not charged with
any offense. She is not being compelled to be a witness against herself.1 "Impotency
being an abnormal condition should not be presumed. The presumption is in favor of
potency."2 The lone testimony of the husband that his wife is physically incapable of
sexual intercourse is insufficient to tear asunder the ties that have bound them together
as husband and wife.
The decree appealed from is set aside and the case remanded to the lower court for
further proceedings in accordance with this decision, without pronouncement as to costs.
Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera,
Gutierrez David, and Dizon, JJ. concur.
19