Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-29271 August 29, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ADELINO BARDAJE, defendant-appellant.

MELENCIO-HERRERA, J.:

The accused ADELINO Bardaje in this case, after trial, has been convicted of Forcible Abduction
with Rape, and sentenced to death. The case is before us on automatic review.

On December 20, 1965, MARCELINA Cuizon lodged the following complaint with the Court of First
Instance of Samar against ADELINO and five (5) others 'namely, Lucio Malate, Pedro Odal, Adriano
Odal, Silvino Odal and Fidel Ansuas (hereinafter called the FIVE OTHERS):

The undersigned complainant, after having been duly sworn to according to law, accuses Adelino
Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of
Rape, committed as follows:

That on or about the period from the 14th day to 17th day of December, 1965, in Bo.
Lopig, Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of this
Honorable Court the above-named accused, conspiring, confederating together and
helping one another, with lewd design, by means of force and intimidation, and at
nighttime, did then and there wilfully, unlawfully and feloniously drag one Marcelina
Cuizon from the house of one Norma Fernandez and brought her to a far away place
and once there, accused Adelino Bardaje, by means of force and intimidation forcibly
had sexual intercourse with her several times while his co-accused were on guard.

Contrary to law. (Emphasis supplied).

ADELINO was arrested on December 17th, and it was on December 20th, when he signed the
alleged confession, Exhibit "C", admitting having kidnapped and molested MARCELINA, 1 which was
probably the basis for MARCELINA's complaint, presumably prepared with the help of the Fiscal.
What has been noticed is that, in Exhibit "C", ADELINO had mentioned that, besides the FIVE
OTHERS, a sixth, Domingo Odal, was with the group when MARCELINA was "kidnapped". There is
no indication in the record as to why Domingo Odal was not included in MARCELINA's complaint as
one of the accused.

The following day, December 21st, the Fiscal's office filed the following Information with the Court:

The undersigned Assistant Provincial Fiscal accuses Adelino Bardaje, Lucio Malate,
Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas of the crime of Rape with
Illegal Detention committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965, in Bo. Crossing,
Municipality of Sta. Rita, Province of Samar, Philippines and within the jurisdiction of this Honorable
court the above-named accused, conspiring, confederating together and helping one another, with
Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd design, by means
of force and intimidation, armed with bolos and at nighttime, did then and there wilfully, unlawfully
and feloniously drag one Marcelina Cuizon, a minor of 14 years old, from the house of one Norma
Fernandez and brought her to a far away place and once there, accused Adelino Bardaje, by means
of force and intimidation forcibly had sexual intercourse with her for several times while his co-
accused were on guard.

That the commission of the crime the aggravating circumstances that it was committed in an
uninhabited place and with the aid of armed men, were present. (Emphasis supplied).

It will be noted that the complaint filed directly by MARCELINA with the Court was amended by the
Fiscal in the Information. While MARCELINA charged ADELINO only with Rape, the Fiscal charged
him with "Rape with Illegal Detention". MARCELINA merely alleged that she was dragged from the
house of Norma Fernandez by means of force and intimidation and at nighttime. On the other hand,
the Information added that the accused were "armed with bolos". The name of the barrio was also
changed from Lopig to Crossing. Lastly, the Information included the allegation that the crime of
Rape with Illegal Detention was committed with the "aggravating circumstances that it was
committed in an uninhabited place and with the aid of armed men".

Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only ADELINO stood
trial. The period of the offense was from December 14th to 17th, with the complaint having been filed
on December 20th, or barely three (3) days thereafter. With that time frame in mind, an analysis of
the Information will show the assumption that only ADELINO was the principal culprit while the FIVE
OTHERS were either principals by cooperation or accomplices. Thus, the clause "with" Lucio Malate,
Pedro Odal, Mariano Odal, Silvino Odal and Fidel Ansuas" indicates that it was ADELINO who had
dragged MARCELINA "with" the help of the FIVE OTHERS. Both the complaint and Information also
indicated that ADELINO was the only one who committed the rape, while the FIVE OTHERS were
merely accomplices.

On June 2, 1966, before the arraignment of ADELINO, the Information was amended to include the
allegation that MARCELINA was detained and deprived of liberty for a period of th0ree (3) days,
which allegation could be taken into account in connection with Illegal Detention 2 but not in
connection with Forcible Abduction. 3 Since according to Exhibit "C", MARCELINA was "kidnapped"
at midnight of December 14th, and ADELINO was arrested in the morning of December 17th, or an
interval of less than 72 Hours, it could not be correctly pleaded that MARCELINA was deprived of
liberty for three (3) days. 4

After the trial was concluded, ADELINO's lawyer submitted his Memorandum on July 26, 1967, in
which he specifically argued that "the prosecution did not establish the elements of Rape and Illegal
Detention as prescribed by Articles 335 and 267 of the Revised Penal Code." It was only in the
Memorandum of the Fiscal, dated July 27, 1967, when the position was taken that the crime which
should be imputed to ADELINO is Rape with Forcible Abduction. The prosecution's Memorandum
stated:

Although the information is for Rape with Illegal Detention instead of Rape with
Forcible Abduction, yet from the body of the information it could be clearly gleaned
that the elements of abduction are sufficiently alleged therein and hence the accused
can be convicted thereunder (People vs. Emiliano Javete, CA 01956-57-CR April 7,
1964 (82-1965).
The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible Abduction with
Rape with the aggravating circumstances of dwelling and aid of armed men, and sentenced him to
death.

The version of complainant MARCELINA Cuizon, 14 years of age, is that in December, 1965, she
and her mother were living in the house of her aunt, Sofia Fernandez, at Barrio Crossing, Sta. Rita,
Samar, where she worked as a beautician. At 7:00 o'clock in the evening of December 14, 1965
while she was then eating supper, ADELINO, whom she knew when they were "still small", and who
was her classmate in Grade II (1960), accompanied by the FIVE OTHERS, entered the house and
began drinking "sho hoc tong" which they brought along. After the liquor had been fully consumed,
Silvino Odal broke the kerosene lamp causing complete darkness. She then ran to the room where
her mother was. ADELINO, Pedro Odal, Fidel Ansuas, and Adriano Odal, followed her, tried to
extricate her from her mother's embrace and dragged the two of them to the sala. Pedro Odal
choked the mother's neck thereby loosening her hold on the daughter and the four males, two of
whom were armed with bolos, forced her downstairs and by holding and dragging her, brought her to
the mountain about two kilometers from Barrio Crossing. That was about 12 midnight. On the way,
ADELINO slapped her rendering her unconscious. She regained consciousness in a hut, with
ADELINO holding her hands, and removing her panty. She bit and kicked him. Despite her struggle,
ADELINO succeeded in having sexual intercourse with her while his other companions stayed
outside on guard.

Under cross-examination, MARCELINA declared that she did not know who owned the hut and that
it was just a one-room affair where a woman and two small children lived; that she and Appellant
slept in that same room as the woman, while the FIVE OTHERS slept near the kitchen. 5

At about 8:00 o'clock the following morning, December 15, ADELINO and the FIVE OTHERS
brought her to another mountain, 6 kilometers farther, arriving there past twelve o'clock noon at the
house of one called Ceferino (also called Cipriano) who lived there with his family. She was kept in
one room. Outside the room were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed with
bolos, drinking and guarding her. In the evening, ADELINO had another sexual intercourse with her
even though she bit and kicked him and shouted for help which was to no avail as all present were
relatives of ADELINO, with the latter Ceferino "Tatay" She curled the hair of Narita (daughter of
Ceferino) the next day, because ADELINO threatened to kill her if she did not. Her curling
paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from Norma Fernandez
(her cousin) who gave the equipment as she (Norma) was also threatened. MARCELINA and her
"captors" stayed in Ceferino's house for two days. In the morning of December 17, two soldiers with
her father, Alejo Cuizon, arrived. The soldiers apprehended ADELINO while the FIVE OTHERS
jumped down the window and fled. Upon her father, she embraced him and cried. They all returned
to Barrio Crossing. She and her mother, Maria Fernandez, then went to Catbalogan, where she filed
a complaint at the Fiscal's Office on December 20, 1965 and submitted to a medical examination at
the Samar Provincial Hospital.

When cross-examined, Complainant admitted that Ceferino, his wife. and seven children were living
in the same hut where she was taken the second time, which hut was about waist high from the
ground, consisted of one room, 3 x 2 meters, a sala, 6 x 3 meters, and a kitchen. Between the room
and the sala was a wall of split bamboos so that noise inside the room could be heard clearly from
the other side. 6

Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital, declared that he
examined MARCELINA on December 20, 1965 and issued a Medical Certificate with the following
findings:

1. No evidence of external injuries around the vulva or any part of the body.
 2. Hymen no intact, presence of old healed laceration at 4, 7, 12 o'clock.

3. Vagina easily admits two fingers.

4. Vaginal smear negative for spermatozoa 7

Explaining the "old healed laceration", the doctor stated that laceration may have been caused by
possible sexual intercourse or other factors, and if it were intercourse, he estimated that it could
have occured " say, two weeks or one month" or possibly more. 8

For his part, ADELINO, aged 18, admitted having had carnal knowledge of MARCELINA but denied
having raped her. He claims that they eloped on December 14 to 17, 1965 as previously planned,
they having been sweethearts since November 12, 1964. As such, they used to date in Tacloban
and "anything goes". MARCELINA's family used to have a house in Barrio Crossing but now
MARCELINA just stays in the house of her aunt, Sofia, which is about five houses away from theirs.
In the evening of December 14, 1965, while Sofia, MARCELINA's mother and others were eating,
MARCELINA handed him a bag and beauty culture equipment through the window, went downstairs,
after which the two of them walked to the mountains, to Ceferino Armada's house. Ceferino was a
cousin of ADELINO's mother. He and MARCELINA slept in the bedroom with 18-year old Narita,
Ceferino's daughter. While in that hut, food was brought to them by his sister, Nenita. MARCELINA
curled Narita's hair the next day.

In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied by MARCELINA's
father, Alejo Cuizon, apprehended him for having kidnapped MARCELINA. The latter ran to him and
embraced him and said she was to blame. notwithstanding, he was boxed by the soldiers as
instructed by MARCELINA's father and taken to Maulong PC Headquarters for questioning. During
the investigation, he was boxed and kicked and was forced to sign a statement implicating the FIVE
OTHERS as his companions even if untrue. He did not know who attested to his statement as one
Sgt. Gacelos took the document elsewhere.

Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was allegedly forcibly
brought the second time, corroborated that portion of ADELINO's testimony regarding their stay in
his house adding that MARCELINA and ADELINO had told him that they had eloped; that
MARCELINA even offered to curl his daughter's hair (Narita's and Concepcion's), and helped in
house chores and in the threshing of palay, while ADELINO helped in carrying palay because it was
rainy.

The trial Court found the prosecutors version of the incident more worthy of credence stating that
Complainant had no improper motive to implicate ADELINO in such a detestable crime as Rape.

On the basis of the evidence, testimonial and documentary, we find that the guilt of ADELINO has
not been established beyond reasonable doubt.

In crimes against chastity, the conviction or acquittal of an accused depends almost entirely on the
credibility of a complainant's testimony since by the intrinsic nature of those crimes they usually
involve only two persons — the complainant and the accused. The offended party's testimony,
therefore, must be subjected to thorough scrutiny for a determination of its veracity beyond
reasonable doubt.

In the instant case, we find MARCELINA's charge that she was forcibly abducted and afterwards
raped by ADELINO in conspiracy with FIVE OTHERS highly dubious and inherently improbable.
To start with, according to the medical findings, "no evidence of external injuries was found around
the vulva or any part of the body" of Complainant, a fact which is strange, indeed, considering that
Complainant was allegedly "dragged" slapped" into unconsciousness, "wrestled" with, and criminally
abused. Physical evidence is of the highest order and speaks more eloquently than an witnesses put
together. We are also faced with the medical finding of "old healed lacerations" in the hymen which,
according to the testimony of the examining physician would have occurred two weeks or even one
month before if said lacerations had been caused by sexual intercourse. This expert opinion bolsters
the defense that MARCELINA and ADELINO had previous amorous relations at the same time that it
casts serious doubts on the charge of intercourse by force and intimidation.

Secondly, by Complainant's own admission, the first hut she was taken to was a small one-room
affair occupied by a woman and two small children. Her charge, therefore, that she was ravished in
that same room is highly improbable and contrary to human experience.

Thirdly, from her own lips, Complainant testified that the second hut where she was taken, that of
Ceferino Armada, consisted of a small room separated from the sala by a wall of split bamboos.
Further, that Ceferino with his wife and seven children all lived therein. It challenges human credulity
that she could have been sexually abused with so many within hearing and distance. It is
unbelievable, too, that under those circumstances the FIVE OTHERS could have stood guard
outside, armed with bolos and drinking, while ADELINO allegedly took advantage of her. If rape
were, indeed, their malevolent intent, they would, in all probability, have taken turns in abusing her.
That they did not, indicates that there was, indeed, some special relationship between MARCELINA
and ADELINO. Furthermore, with people around, and the hut constructed as it was, it would have
been an easy matter for MARCELINA to have shouted and cried for help. Surely, the old man
Ceferino, his wife and/or his children could not have been insensible to her outcries notwithstanding
their relationship to ADELINO. The aphorism still rings true that evidence to be believed must not
only come from the mouth of a credible witness but must be credible in itself.

Additionally, Complainant admits that she even curled the hair of Narita, one of Ceferino's daughters,
a fact inconsistent with her allegation of "captivity". That she was threatened with death if she did not
accede to such an inconsequential request defies credulity. The livelihood is that, as the defense
maintains, MARCELINA was not forcibly abducted but that she and ADELINO had, in fact, eloped
and that she had brought her beauty culture paraphernalia with her, or, that she herself had sent for
them from her cousin Norma Fernandez voluntarily and not under threat from ADELINO.

The totality of the foregoing circumstances count with such great weight and significance that they
lend an aura of improbability and reasonable doubt to the allegation that MARCELINA had been
"kidnapped" or "illegally detained" and that when she and ADELINO engaged in sexual intercourse,
it was because of force or intimidation exercised upon her. They are circumstances that were
overlooked by the trial Court and justify a reversal of its finding of guilt as an exception to the
established rule that the findings of fact of a trial Judge based on the relative credibility of witnesses
are entitled to great respect and will not be disturbed by appellate Courts.

This case also constitutes an exception to the general belief that a young girl would not expose
herself to the ordeal of public trial if she were not motivated solely by a desire to have the culprit who
had ravished and shamed her placed behind bars. As we view it, MARCELINA was confronted with
a paradoxical situation as a daughter of relative tender age who could not shamefacedly admit to her
parents that she had eloped and voluntarily submitted to sexual intercourse, since that elopement
must have met with righteous indignation on the part of her parents. As a result, MARCELINA was
faced with no other choice but to charge ADELINO with rape or incur the ire of her parents and
social disrepute from a small community.
In respect of the alleged confession of ADELINO, suffice it to re-state that "an extrajudicial
confession made by an accused shag not be sufficient ground for conviction unless corroborated by
evidence of corpus delicti. 9 Corpus delicti is proved when the evidence on record shows that the
crime prosecuted had been committed. That proof has not been met in the case at bar, the evidence
establishing more of an elopement rather than kidnapping or illegal detention or forcible abduction,
and much less rape. Moreover, ADELINO, aged 18, was by himself when being investigated by
soldiers, 10 without benefit of counsel nor of anyone to advise him of his rights. Aside from his
declaration that Ws confession was obtained through maltreatment and violence, 11 it was also
vitiated by a procedural irregularity testified to by no less than prosecution witness Sgt. Pedro
Gacelos to the effect that he and room after he presented the statement to the Clerk of Court, Mr.
Rojas. 12 There is reason to believe, therefore that the so called confession was attested without
ADELINO's presence so that the latter cannot be said to have duly subscribed and sworn to it.

It should also be noted that throughout the hearings before the trial Court, it was assumed that
ADELINO was being held responsible for the complex crime of Rape with Illegal Detention. While it
is true that an accused can be punished for a crime described by the facts alleged in tile Information
despite a wrong designation of the crime in the preamble of the Information, 13 yet, in capital cases, it
should be desirable that, whenever a discrepancy is noted between the designation of the crime
made by the Fiscal and the crime described by the facts pleaded in his Information. The lower Court
should call attention of the accused to the discrepancy, so that the accused may be fully apprised of
the nature and cause of the accusation against him. This was not done in regards to ADELINO who
all the time was under the impression that he was being tried for Rape with Illegal Detention, and not
for Forcible Abduction with Rape. If ADELINO had known that he was being tried for Forcible
Abduction with Rape, he may have changed the strategy or tactics of his defense. Not that it could
be said he would have done so; but he should have been advised he had the right, and given the
opportunity, to do so.

Again, one of the rights of an accused is "to have compulsory process issued to secure the
attendance of witnesses on his behalf. 14 ADELINO had stated that, while MARCELINA was in the
house of Ceferino Armada, she curled the hair of Narita. one of the latter's children, as well as the
hair of other girls in the vicinity.

ADELINO wanted to have Narita testify on his behalf, and a subpoena had been issued to her. But
instead of taking effective steps to have Narita brought to Court, the lower court gave responsibility
for Narita's attendance to the defense, expressly stating that, if the defense was not able to bring her
to the Court, her testimony will be dispensed with. The record shows:

ATTY. BOHOL

I appear as counsel for the accused. Up to now, Your Honor, the

witnesses we have been expecting have not yet arrived. This
representation, with the consent of the Clerk of Court have wired the
Chief of Police of Sta. Rita, Samar to bring Ceferino Armada and
Narita Armada tomorrow for the hearing, continuation of this case for
those persons mentioned to testify, your Honor, for the accused. We
pray, Your Honor, that we be given time to hear from the Chief of
Police to bring those persons tomorrow, Your Honor.

COURT

What will be the nature of the testimonies of those witnesses.

xxx xxx xxx

 COURT

How about the other girl?

ATTY. BOHOL

Narita Armada will substantially be corroborative, Your Honor.

COURT

Suppose the two witnesses do not arrive tomorrow, for which this
case is set also?

ATTY. BOHOL

If we receive information and find that those witnesses could really

not come for this case, Your Honor, I will be constrained to submit the
case for decision based on the testimony of the accused. However,
Your Honor, if it will be all right with the Honorable Court and we find
that there is hope that within this week Ceferino Armada could come
here, in view of the distance, I pray before the Honorable Court that
we be given time within this week to present Ceferino Armada, and
upon his failure, submit the case for decision

COURT

The Court will not allow that anymore, anyway this case is set for
tomorrow. The Court wail grant the postponement today on condition
that any witness not presented tomorrow will be considered waived
Afterall as you have manifest, 4 their testimonies will be
corroborative.

xxx xxx xxx

COURT

What I mean is that you should have taken the necessary precaution
for the attendance of your witness today considering that there is a
subpoena for the witnesses.-

ORDER - for the reason that accused have no more witnesses to

present today, the trial of this case is hereby Postponed for tomorrow,
July 26, 1967 at 8:30 A.M., with the warning that witnesses not
presented during that day shall be considered waived. 15

Considering that this case involved a prosecution for a capital offense, the lower Court acted
precipitously in not having Narita brought to Court, by ordering her arrest if necessary ADELINO was
deprived of his right "to have compulsory process issued to secure the attendance of witnesses on
his behalf."
Crucial questions should also have been asked by the trial Court of witnesses. MARCELINA testified
before the lower Court on December 1, 1966. On December 12, 1966, P Gacelos, the PC Sgt. who
investigated the complaint against ADELINO, testified:

Q. Was that investigation of M Cuizon reduced to writing?

A. Yes, Sir. 16

It would have been advisable if the lower Court had right then and there asked for the production of
the written statement of MARCELINA.

The medical report, Exhibit "B", implied that MARCELINA could have had sexual intercourse
previous to December 14th. On the other hand, ADELINO had testified that he and MARCELINA
used to go together to Tacloban, and while there several times, "we had sexual intercourse because
she likes it." 17 Considering the possible infliction of the death penalty on ADELINO, the lower Court
could have asked MARCELINA if she had had sexual intercourse prior to December 14th and, if so,
if it was with ADELINO.

Further, there was possibility that ADELINO and MARCELINA had really been sweethearts. The
lower Court could have asked MARCELINA if she realized that, charging ADELINO with Rape with
Illegal Detention, the latter could be sentenced to death. If that had been explained to her clearly by
the lower Court, she might then have admitted that she was neither raped nor "kidnapped" nor
illegally detained.

MARCELINA could had been examined on the two matters mentioned above, with the Court
excluding the public from the hearing under the provisions of Rule 119, Section 14. MARCELINA
might have testified without feeling the pressure of her relatives or other persons, if such pressure
had in fact existed.

It may not be amiss to state then that just as in pleas of guilty where a grave offense is charged trial
Judges have been enjoined to refrain from accepting them with alacrity but to be extra solicitous in
seeing to it that an accused fully understands the import of his plea, so also, in prosecutions for
capital offenses, it behooves the trial Courts to exercise greater care in safeguarding the rights of an
accused. The trial Judge should also take a more active role by means of searching questions in the
examination of witnesses for the ascertaintment of the truth and credibility of their testimonies so that
any judgment of conviction imposing the supreme penalty may rest on firm and unequivocal
grounds. The life and liberty of an individual demand no less.

WHEREFORE, upon reasonable doubt, the judgment appealed from imposing the death penalty, is
reversed and the appellant, Adelino Bardaje, acquitted of the crime with which he is charged. His
immediate release is ordered unless lie is held on other charges.

Costs de oficio.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-31189 March 31, 1987

MUNICIPALITY OF VICTORIAS, petitioner,

vs.
THE COURT OF APPEALS, NORMA LEUENBERGER and FRANCISCO SOLIVA, respondents.

Enrique I. Soriano, Jr. for private respondents.

PARAS, J.:

This is a Petition for Review on certiorari of the decision * of respondent Court of Appeals promulgated on September
29, 1969 in CA-G.R. No. 35036-R (Rollo, p. 11) setting aside the decision ** of the Court of First Intance of Negros Occidental, Branch I,
dated September 24, 1964 which dismissed the complaint for recovery of possession in Civil Case No. 181-S and declared the cemetery site
on Lot No. 76 in Victorias as property of the municipality of Victorias (Record on Appeal, p. 9).

The dispositive portion of the questioned decision reads as follows:

IN VIEW OF THE FOREGOING, the judgment of the lower court is hereby set aside
and another is hereby rendered:

(1) Ordering the defendant municipality and/or thru its appropriate officials to return
and deliver the possession of the portion of Lot 76 used as cemetery or burial site of
the plaintiff-appellant.

(2) Ordering defendant municipality to pay the plaintiff-appellant the sum of P400.00
a year from 1963 until the possession of said land is actually delivered.

Lot No. 76 containing an area of 208,157 sq. meters forms a part of Cadastral Lot No. 140 (Rollo, p.
11), a 27.2460 ha. sugar land located in Bo. Madaniog, Victorias, Negros Occidental, in the name of
the deceased Gonzalo Ditching under Tax Declaration No. 3429 of Negros Occidental for the year
1941 (Exh. "3," Folder of Exhibits, p. 22). He was survived by his widow Simeona Jingeo Vda. de
Ditching and a daughter, Isabel, who died in 1928 (TSN, July 1, 1964, p. 7) leaving one off-spring,
respondent Norma Leuenberger, who was then only six months old (TSN, July 1, 1964, p. 34).

Respondent Norma Leuenberger, married to Francisco Soliva, inherited the whole of Lot No. 140
from her grandmother, Simeona J. Vda. de Ditching (not from her predeceased mother Isabel
Ditching). In 1952, she donated a portion of Lot No. 140, about 3 ha., to the municipality for the
ground of a certain high school and had 4 ha. converted into a subdivision. (TSN, July 1, 1964, p.
24).

In 1963, she had the remaining 21 ha. or 208.157 sq. m. relocated by a surveyor upon request of
lessee Ramon Jover who complained of being prohibited by municipal officials from cultivating the
land. It was then that she discovered that the parcel of land, more or less 4 ha. or 33,747 sq.m. used
by Petitioner Municipality of Victorias, as a cemetery from 1934, is within her property which is now
Identified as Lot 76 and covered by TCT No. 34546 (TSN, July 1, 1964, pp. 7-9; Exh. "4," Folder of
Exhibits, p. 23 and Exh. "A," Folder of Exhibits, p. 1).

On May 20, 1963, Respondent wrote the Mayor of Victorias regarding her discovery, demanding
payment of past rentals and requesting delivery of the area allegedly illegally occupied by Petitioner
(Exh. "G, Folder of Exhibits, p. 15). When the Mayor replied that Petitioner bought the land she
asked to be shown the papers concerning the sale but was referred by the Mayor to the municipal
treasurer who refused to show the same (TSN, July 1, 1964, pp. 32-33).

On January 11, 1964, Respondents filed a complaint in the Court of First Instance of Negros
Occidental, Branch 1, for recovery of possession of the parcel of land occupied by the municipal
cemetery (Record on Appeal, p. 1). In its answer, petitioner Municipality, by way of special defense,
alleged ownership of the lot, subject of the complaint, having bought it from Simeona Jingco Vda. de
Ditching sometime in 1934 (Record on Appeal, p. 7). The lower court decided in favor of the
Municipality. On appeal Respondent appellate Court set aside the decision of the lower court
(Record on AppeaL p. 9); hence, this petition for review on certiorari.

This petition was filed with the Court on November 6, 1969 (Rollo, p. 2), the Record on Appeal on
December 19, 1969 (Rollo, p. 80). On January 5, 1970, the Court gave due course to the petition
(Rollo, p. 84).

The Brief for the Petitioner was filed on April 1, 1970 (Rollo, p. 88), the Brief for Respondents was
filed on May 18, 1970 (Rollo, p. 92).

On July 8, 1970, the Court resolved to consider the case submitted for decision without Petitioner's
Reply Brief, Petitioner having failed to file the brief within the period which expired on June 10, 1970
(Rollo. p. 99).

On motion of counsel for the Respondents (Rollo, p. 104), the Court resolved on June 30, 1972 to
allow respondent Francisco Soliva to continue the appeal in behalf of the estate of respondent
Norma Leuenberger who died on January 25, 1972, Respondent Francisco Soliva having been
appointed special administrator in Special Proceedings No. 84-V of the Court of First Instance of
Negros Occidental (Rollo, p. 110).

In their brief, petitioner raised the following errors of respondent Court of Appeals: (Brief for the
Petitioner, p. 1-3);

I.

The Honorable Court of Appeals erred in holding that respondents Norma

Leuenberger and Francisco Soliva are the lawful owners of the land in litigation as
they are estopped from questioning the possession and ownership of herein
petitioner which dates back to more than 30 years.

II.

The Honorable Court of Appeals also erred in ordering the petition petitioner to
deliver the possession of the land in question to the respondents Nomia Leuenberger
and Francisco Soliva, by holding that non-annotation on the Torrens Certificate of
Title could not affect the said land when the possession by the petitioner of the said
land for over 30 years and using it as a public cemetery for that length of time are
 sufficient proof of purchase and transfer of title and non-annotation of the Certificate
of Title did not render the sale ineffectual

III.

The Honorable Court of Appeals further erred in ordering the petitioner Municipality
of Victories to pay the respondents the sum of P400.00 a year from 1963 until
possession is actually delivered because under the law, an owner of a piece of land
has no obligation to pay rentals as it owns and possesses the same.

There is merit in the petition.

It is undisputed that petitioner failed to present before the Court a Deed of Sale to prove its purchase
of the land in question which is included in the Transfer Certificate of Title No. T-34546 in the name
of private respondent Norma Leuenberger.

The pivotal issue in this case is whether or not the secondary evidence presented by the petitioner
municipality is sufficient to substantiate its claim that it acquired the disputed land by means of a
Deed of Sale.

Under the Best Evidence Rule when the original writing is lost or otherwise unavailable, the law in
point provides:

Sec. 4. Secondary evidence when original is lost or destroyed. — When the original
writing has been lost or destroyed, or cannot be produced in court, upon proof of its
execution and loss or destruction or unavailability, its contents may be proved by a
copy, or by a recital of its contents in some authentic document, or by the recollection
of witnesses. (Rule 130, Rules of Court).

In lieu of a Deed of Sale, petitioner presented a certificate issued by the Archives Division of the
Bureau of Records Management in Manila, of a page of the 1934 Notarial Register of Vicente D.
Aragon with the following entries:

Nature of Instrument — Compra venta 2 porciones Terrenos: Lotes Nos. 140-A y

140-B, Victorias, Neg. Occidental pago por esso despues aprobacion Jusgado la
Instance, Neg. Occidental causa civil 5116 Vendedora: — Simeona Jingco Vda. de
Ditching . . . administradora Abint. G. Ditching

Comprador: — Municipio Victorias, Neg. Occidental . . . . por su Pres.Mpal Vicente

B. Arnaes

Valor: — P750.00 ...

Vease copia correspondiente.
Names of-persons Executing/ Acknowledging:
Simeona Vda. de Ditching
Adm. Abint actuacion especial No. 5116
Jusgado la Instance Neg. Occidental
Vendedora
Vicente B. Arnaes
Pres. Municipal. Victorias
Comprador
Witnesses to the Signatures:
Esteban Jalandoni
Gregorio Elizalde
Date: Month
9 Julio 1934
Fees: P2.00
Cedulas:
Exenta por susexo
F1027880 Enero 26/34 Victories, Neg. Occidental
Remarks.
En Victorias, Neg. Occidental
Los annexes A. y B. estan unidos
solamente en el original de la
escritura.

Respondent Court of Appeals was of the view (Rollo, p. 16) that a mere entry in the notarial register
of a notary public of an alleged sale cannot prove that a particular piece of land was sold by one
person to another, one of the important requirements being the indication of the area and the
technical description of the land being sold. In the present case, since no deed of sale could be
produced, there is no way of telling what particular portion of the property was sold to defendant
municipality and how big was the sale of the land conveyed to the defendant municipality.

It will be observed that the entries in the notarial register clearly show: (a) the nature of the
instrument. — a deed of sale; (b) the subject of the sale — two parcels of land, Lot Nos. 140-A and
140-B; (c) the parties of the contract — the vendor Simeona J. Vda. de Ditching in her capacity as
Administrator in Civil Case No. 5116 of the Court of First Instance of Negros Occidental and the
vendee, Vicente B. Ananosa, Municipal Mayor of Victorias; (d) the consideration P750.00; (e) the
names of the witnesses Esteban Jalandoni and Gregoria Elizado; and the date of the sale on July 9,
1934.

It is beyond question that the foregoing certificate is an authentic document clearly corroborated and
supported by: (a) the testimony of the municipal councilor of Victorias, Ricardo Suarez, (Original
TSN Hearing of September 14, 1964, pp. 1222) who negotiated the sale; (b) the testimony of Emilio
Cuesta, (Original TSN Hearing of September 14, 1964, pp. 2238) the municipal treasurer of said
municipality, since 1932 up to the date of trial on September 14, 1964, who personally paid the
amount of P750.00 to Felipe Leuenberger as consideration of the Contract of Sale; (c) Certificate of
Settlement (Original Exhibits, p. 20) "as evidence of said payment;" (d) Tax Declaration No. 429
(Ibid., p. 22) which was cancelled and was substituted by Tax Declaration No. 3600 covering the
portion of the property unsold (Decision, CFI, Neg. Occidental Orig. Record on Appeal, p. 6) and (e)
Tax Declaration No. 3601 (Ibid, p. 23) in the name of the Municipal Government of Victorias covering
the portion occupied as cemetery.

Tax Declaration No. 3601 shows on its face the boundaries as follows:

North — NE — Lot No. 140-C of the Subdivision

South — SW — Lot No. 140-C of the Subdivision

West — NW — Lots Nos. 140-C & 140-B of the Subdivision.

The area is 33,747 sq.m.

At the back Exh. 4-A, the sale of a portion of the lot to the Municipality of Victorias was clearly
explained as follows:

Note: The whole Lot No. 140, belongs to Norma Leuenberger as evidenced by a
Transfer of Cert. of Title No. 18672. Portion of this Lot, (30,000 sq.m. was sold to
Municipality of Victories for Cemetery Site as evidenced by a Deed of Sale executed
by Simeona Jingco Vda. de Ditching in favor of the aforesaid Municipality and ratified
by Notary Public Mr. Vicente Aragon under Doc. No. 132; Page No. 2; Book No. 10,
Series of 1934.

At the lowest portion under Memoranda it was explained that —

The area under this declaration includes 3,746 sq. meters donated by Mrs. Simeona
Jingco Vda. de Ditching and used as road leading to the cemetery. " (EXIL 4; Original
Exhibits, p. 23).

The above-mentioned testimonies and documentary evidence sufficiently Identify the land sold by
the predecessors-in-interest of private respondent. To insist on the technical description of the land
in dispute would be to sacrifice substance to form which would undoubtedly result in manifest
injustice to the petitioner.

Moreover, it is expressly provided by law that the thing sold shall be understood as delivered, when
it is placed in the control and possession of the vendee. (Civil Code Art. 1497). Where there is no
express provision that title shall not pass until payment of the price, and the thing gold has been
delivered, title passes from the moment the thing sold is placed in the possession and control of the
buyer. (Kuenzle & Streiff vs. Watson & Co., 13 PhiL 26 [1909]). Delivery produces its natural effects
in law, the principal and most important of which being the conveyance of ownership, without
prejudice to the right of the vendor to payment of the price. (Ocejo, Perez & Co. vs. International
Banking Corp., 37 PhiL 631 [1918]).

Similarly, when the sale is made through a public instrument, the execution thereof shall be
equivalent to the delivery of the thing which is the object of the contract, if from the deed, the
contrary does not appear or cannot be clearly inferred. (Civil Code Art. 1498). The execution of the
public instrument operates as a formal or symbolic delivery of the property sold and authorizes the
buyer to use the document as proof of ownership. (Florendo v. Foz, 20 PhiL 388 [1911]).

In the case at bar it is undisputed that petitioner had been in open, public, adverse and continuous
possession of the land for a period of more than thirty years. In fact, according to the municipal
treasurer there are over 1000 graves in the cemetery. (Decision, Court of Appeals, Rollo, pp. 11-22).

As correctly observed by Justice Magno S. Gatmaitan in his dissenting opinion (Rollo, pp. 23-28) in
the decision of this case by the Court of Appeals, the evidence establishes without debate that the
property was originally registered in 1916. Plaintiff was born only in 1928 and cannot possibly be the
registered owner of the original lot 140 at the time. Indeed, according to her own evidence, (Exhibit
A; Original Record pp. 13) she became the registered owner only in 1963. Likewise, it is undisputed
that in the intestate estate of Gonzalo Ditching, the grandfather of private respondent Norma
Leunberger, it was her grandmother, Simeona, the surviving spouse of Gonzalo who was named
judicial administratrix. According to Norma's own testimony, Isabel her mother, died in 1928 (TSN
Aug. 12, 1964, p. 34) while Simeona the grandmother died in 1942. (Ibid.) Therefore, as of 1934
when a document of sale was executed by Simeona in favor of the municipality of Victories as
indubitably shown in the notarial register (Exhibit 5.A) in question, Simeona was still the
administratrix of the properties left by her husband, Gonzalo and of their conjugal partnership.
Consequently, she is the only person who could legally dispose of by sale this particular four-
hectare portion of Lot 140. And so it is, that in 1934, Simeona Ditching in her capacity as judicial
administratrix made and executed the document described in the Report as Lots 140-A and 140-B,
showing clearly that they are portions of the original big Lot 140. As this conveyance was executed
by the judicial administratrix, unquestionably the party authorized to dispose of the same, the
presumption must be that she did so upon proper authority of the Court of First Instance.

As to the description of the property sold, the fact that a notarial report shows that they are portions
of Lot 140 and the property in question occupied by the public cemetery is admittedly a portion of
said lot in the absence of evidence that there were other portions of Lot 140 ceded unto the
petitioner municipality, the inevitable conclusion is that the sale executed in the Notarial Register
refers to the disputed lot.

Unfortunately, the purchaser Municipality of Victorias failed to register said Deed of Sale; hence,
when Simeona Jingco Vda. de Ditching died, her grand-daughter, respondent Norma Leuenberger
claimed to have inherited the land in dispute and succeeded in registering said land under the
Torrens system. Said land is now covered by Transfer Certificate of Title No. T-34036 (Exhibit A,
supra) issued by the Register of Deeds of -Negros Occidental on March 11, 1963 in the name of
Norma Leuenberger, married to Francisco Soliva, containing an area of 208,157 square meters. As
registered owner, she is unquestionably entitled to the protection afforded to a holder of a Torrens
Title.

Admittedly, it is well-settled that under the Torrens System "Every person receiving a certificate of
title in pursuance of a decree of registration, . . . shall hold the same free of all encumbrance except
those noted on said certificate ... " (Sec. 39, Act 496; now Sec. 43, PD 1529).

In the instant case, however, respondent Norma Leuenberger admitted that she inherited the land
covered by Transfer Certificate of Title No. T-34036 from her grandmother, who had already sold the
land to the petitioner in 1934; hence, she merely stepped into the shoes of her grandmother and she
cannot claim a better right than her predecessor-in-interest. When she applied for registration of the
disputed land, she had no legal right to do so as she had no ownership of the land since land
registration is not a mode of acquiring ownership but only of confirming ownership of the land.
(Grande, et al. vs. Court of Appeals, et al., 115 Phil. 521.)"The Torrens System was not established
as a means for the acquisition of title to private land, ..." It is intended merely to confirm and register
the title which one may already have on the land. Where the applicant possesses no title or
ownership over the parcel of land, he cannot acquire one under the Torrens system of Registration.
(Torela, et al., vs. Torela, et al., L-27843, October 11, 1979).

While an inherently defective Torrens title may not ordinarily be cancelled even after proof of its
defect, the law nevertheless safeguards the rightful party's interest in the titled land from fraud and
improper use of technicalities by snowing such party, in appropriate cases, to judicially seek
reconveyance to him of whatever he has been deprived of as long as the land has not been
transferred or conveyed to a purchaser in good faith. (Pedro Pascua, et al., vs. Mariano Gopuyoc et
al., L-23197, May 31, 1977.)

The Civil Code provides:

Art. 1456. If the property is acquired through mistake or fraud, the person obtaining it
is, by force of law, considered a trustee of an implied trust for the benefit of the
person from whom the property comes.

Thus, it has been held that where the land is decreed in the name of a person through fraud or
mistake, such person is by operation of law considered a trustee of an implied trust for the benefit of
the persons from whom the property comes. The beneficiary shag have the right t• enforce the trust,
notwithstanding the irrevocability of the Torrens title and the trustee and his successors-in-interest
are bound to execute the deed of reconveyance. (Pacheco vs. Arro, 85 Phil. 505; Escobar vs.
Locsin, 74 Phil. 86).

As the land in dispute is held by private respondents in trust for the Municipality of Victorias, it is
logical to conclude that the latter can neither be deprived of its possession nor be made to pay
rentals thereof. Private respondent is in equity bound to reconvey the subject land to the cestui que
trust the Municipality of Victorias. The Torrens system was never calculated to foment betrayal in the
performance of a trust. (Escobar vs. Locsin, 74 Phil. 86).

For a more expeditious disposition of the case at bar, Rule 39 of the Rules of Court provides:

SEC. 10. Judgment for Specific acts; vesting title. — ... If real or personal property is
within the Philippines, the court in lieu of directing a conveyance thereof may enter
judgment divesting the title of any party and vesting it in others and such judgment
shall have the force and effect of a conveyance executed in due form of law.

Finally, the conclusions and findings of fact by the trial court are entitled to great weight on appeal
and should not be disturbed unless for strong and cogent reasons because the trial court is in a
better position to examine real evidence, as well as to observe the demeanor of the witnesses while
testifying in the case. (Chase v. Buencamino, Sr., 136 SCRA 365 [1985]).

PREMISES CONSIDERED, the judgment of the respondent appellate court is hereby SET ASIDE
and the decision of the Court of First Instance of Negros Occidental, Branch I-Silay City in Civil Case
No. 181-S declaring the cemetery site (Exh. E-2) on Lot No. 76 in Victories as the property of the
municipality of Victorias, is hereby REINSTATED. Additionally, We hereby order (a) the petitioner to
have the disputed land segregated by a licensed surveyor from the rest of Lot No. 76 described in
Transfer Certificate of Title No. T-34036 and to have the corresponding subdivision plan, duly
approved by the Land Registration Commission, submitted to the court of origin for approval; (b) the
private respondents Norma Leuenberger and Francisco Soliva to be divested of their title to the
disputed land under Rule 39, Sec. 10, Rules of Court; and (c) the Register of Deeds of Negros
Occidental to cancel Transfer Certificate of Title No. 34036 and issue, in lieu thereof, one title in the
name of the Municipality of Victories for the disputed land and another title in the names of the
private respondents Norma Leuenberger and Francisco Soliva for the rest of Lot No. 76. Without
costs.

SO ORDERED.
REAL AND DOCUMENTARY EVIDENCE CASES
People vs. Bardaje
99 SCRA 388 (1980)
Real and Demonstrative Evidence

FACTS:
The accused, Adelino Bardaje was convicted of Forcible Abduction with Rape and sentenced to
death. Thus, the case is brought to the SC for automatic review.
The complainant Marcelina Cuizon claimed that she was dragged by the accused together with
five other persons from the house of a certain Fernandez by means of force and intimidation and at
nighttime. Also, she narrated that Bardaje slapped her rendering her unconscious and when she
regained consciousness in a hut, Bardaje was holding her hands and removing her panties. Despite her
struggle, Bardaje succeeded in having sexual intercourse with her while his companions kept guard.
When Cuizon underwent physical examination, the doctor found that there were “old healed
lacerations” which may have been caused by possible sexual intercourse or other factors, and if it were
intercourse, it could have occurred “two weeks or one month ago.”

DEFENSE OF THE ACCUSED: During trial, Adelino admitted having had carnal knowledge of the victim
but denied having raped her. He claims that they eloped as previously planned.

ISSUE:
Whether or not the guilt of Bardaje was established beyond reasonable doubt?

RULING: No.
Cuizon’s charge that she was forcibly abducted and afterwards raped was highly dubious and
inherently improbable. According to the medical findings, “no evidence of external injuries was found
around the vulva or any part of the body.” Considering that complainant was allegedly “dragged,”
“slapped” into unconsciousness, “wrestled” with and criminally abused. Physical evidence is of the
highest order and speaks more eloquently than all witness put together.
The medical findings of “old healed lacerations” in the hymen which according to the testimony of
the examining physician would have occurred two weeks or even one month before, if said lacerations
had been caused by sexual intercourse. This expert opinion bolsters the defense that Bardaje and
Cuizon had previous amorous relations at the same time that it casts serious doubts on the charge of
intercourse by force and intimidation.
It is impossible that complainant could have been raped by the accused inside a small room
occupied by a woman and two children and in a small hut where the owner, his wife and seven children
are all present. It is improbable that she could have been sexually abused with so many within hearing
and seeing distance.
Under the abovementioned circumstances, the Five Others who stood guard outside while
Adelino allegedly took advantage of her. Would have taken turns in abusing her if rape indeed happen.
The fact that they did not do so, implies a special relationship between Marcelino and Adelino.
This is a case where a young girl could not admit to her parents that she had eloped and
voluntarily submitted to sexual intercourse. She was left with no choice but to charge Bardaje with rape
or incur the ire of her parents and social disrepute from a small communit
G.R. No. 83377 February 9, 1993

BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA

represented by GLICERIA PAPA-FRANCISCO, et al., petitioners,
vs.
SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, respondents.

Pablo M. Gancayaco for petitioners.

De Mesa, Villarica & Associates for respondents.

CAMPOS, JR., J.:

This is a petition for review on certiorari of the decision * of the Court of Appeals dated November
27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of
Eustaquia de Vera-Papa, represented by Gliceria Papa-Francisco, and Heirs of Maria de Vera-
Torres, represented by Luis V. Torres, plaintiffs-appellees versus Spouses Mariano Aguilar and
Leona V. Aguilar, defendants-appellants", which reversed the decision ** of the Regional Trial Court
of Bulacan, Third Judicial Region, Branch 14, for failure of petitioners to prove the loss or destruction
of the original deed of sale and of all its duplicate original copies.

The undisputed facts are as follows:

Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona,
married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who
died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated
in Camalig, Meycauayan, Bulacan, with an area of 4,195 square meters, designated as Cadastral
Lot No. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre.

The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty.
Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from
Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a
deed of absolute sale dated February 11, 1956.

On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan
resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance
of another in the name of the Aguilars. Since then and up to the present, the Aguilars have been
paying taxes on the land.

On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of
which Original Certificate of Title No. P-1356(M) was issued in his name.

On September 1, 1980, the petitioners wrote to the respondents claiming that as children of Marcosa
Bernabe, they were co-owners of the property and demanded partition thereof on threats that the
respondents would be charged with perjury and/or falsification. The petitioners also claimed that the
respondents had resold the property to Marcosa Bernabe on April 28, 1959.

On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole
owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe.
True to petitioners' threat, they filed a falsification case against the respondents. However, on March
31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the
charge of falsification of public document against the respondents for lack of a prima facie case.

On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate
of Title No. P-1356(M).

On July 31, 1985, the trial court rendered its decision *** the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered ordering defendants:

1. To reconvey the property in question to the plaintiffs;

2. To pay plaintiffs P10,000.00 as litigation expenses;

3. To pay plaintiffs P5,000.00 as exemplary damages;

4. To pay P10,000.00 as attorney's fees.

SO ORDERED.1

In ruling in favor of the petitioners, the trial court admitted, over the objection of the respondents,
Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by
the respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of
land for and in consideration of P1,500.00.

Not contented with the decision, respondents appealed to the Court of Appeals contending that they
never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents
contended that since the petitioners have failed to produce the original of the alleged deed of sale
dated April 28, 1959, the same was not the best evidence of the alleged sale hence it should have
been excluded and should not have been accorded any evidentiary value. On the other hand, the
petitioners claimed that the existence of the document of sale dated April 28, 1959 had been duly
established by the testimony of the notary public before whom it was acknowledged and by Luis de
Vera who was present during its execution and that the loss of the original document had been
proven by the testimony of the representatives of the offices of the National Archives and the
Provincial Assessor of Bulacan.

On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's
decision. It found that the loss or destruction of the original deed of sale has not been duly proven by
the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged
deed of sale is inadmissible.

Hence this petition.

The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the
original deed of sale so as to allow the presentation of the xeroxed copy of the same.

We rule in the negative.

Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence
states:
 Sec. 4. Secondary evidence when original is lost or destroyed. — When the original
writing has been lost or destroyed, or cannot be produced in court, upon proof of its
execution and loss or destruction, or unavailability, its contents may be proved by a
copy, or by a recital of its contents in some authentic document, or by the recollection
of witnesses.

Secondary evidence is admissible when the original documents were actually lost or destroyed. But
prior to the introduction of such secondary evidence, the proponent must establish the former
existence of the instrument. The correct order of proof is as
follows: Existence; execution; loss; contents although this order may be changed if necessary in the
discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged
lost deed lies within the judicial discretion of the trial court under all the circumstances of the
particular case.2

A reading of the decision of the trial court shows that it merely ruled on the existence and due
execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and
circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale.

In the case at bar, the existence of an alleged sale of a parcel of land was proved by the
presentation of a xeroxed copy of the alleged deed of absolute sale.

In establishing the execution of a document the same may be established by the person or persons
who executed it, by the person before whom its execution was acknowledged, or by any person who
was present and saw it executed or who, after its execution, saw it and recognized the signatures; or
by a person to whom the parties to the instrument had previously confessed the execution thereof.3

We agree with the trial court's findings that petitioners have sufficiently established the due
execution of the alleged deed of sale through the testimony of the notary public to wit:

Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela
prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures
appearing therein to be that (sic) of the spouses and witnesses Luis de Vera and
Ismael Estela, in his capacity as Notary Public who ratified the document.4

After the due execution of the document has been established, it must next be proved that said
document has been lost or destroyed. The destruction of the instrument may be proved by any
person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by
any one who had made, in the judgment of the court, a sufficient examination in the place or places
where the document or papers of similar character are usually kept by the person in whose custody
the document lost was, and has been unable to find it; or who has made any other investigation
which is sufficient to satisfy the court that the instrument is indeed lost.5

However, all duplicates or counterparts must be accounted for before using copies. For, since all the
duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of
the writing itself can be regarded as established until it appears that all of its parts are unavailable
(i.e. lost, retained by the opponent or by a third person or the like).6

In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that
the alleged deed of sale has about four or five original copies.7 Hence, all originals must be
accounted for before secondary evidence can be given of any one. This petitioners failed to do.
Records show that petitioners merely accounted for three out of four or five original copies.
In reversing the trial court, the respondent Court of Appeals considered the following points:

Asked on the witness stand where the original of the document (Exhibit A) was,
plaintiff-appellee Luis de Vera answered that it was with the Provincial Assessor in
Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it in
evidence (p. 11, tsn., August 11, 1981, Steno, Tecson). The same question
propounded to the same witness at the next hearing, he replied that in the early part
of 1976 his sister Maria borrowed from him the original document and a certified true
copy thereof and brought them to the Office of the Register of Deeds in Malolos "for
the purpose of having it registered;" and that when she returned she told him that the
original copy of the document was submitted to that office "and it (the property) was
transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8, tsn.,
December 10, 1981, Steno, Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno, Vallarta).

Indeed, upon the appellees' own evidence the original of the deed of sale in
question, a purported xerox copy and certified true copy of which are marked as
Exhibits A and B, has not been lost or destroyed. It was submitted to the Office of the
Register of Deeds of Malolos for registration. The appellees, therefore, should have
asked the office to produce it in court and if it could not be produced for one reason
or another should have called the Register of Deeds or his representative to explain
why. That they failed to do. The loss or destruction of the original of the document in
question has not, therefore, been established. Hence, secondary evidence of it is
inadmissible . . . .

Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have
a copy of the deed of sale in question because his files were burned when his office
at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4, tsn., November
10, 1981, Steno, Crisostomo) establish the loss or destruction of the original
document in question. What was lost or destroyed in the custody of Atty. Ibasco, Jr.
was but one of the duplicate original copies on file with him. Nor did the testimony of
Hipolito Timoteo, representative of the Assessor's Office of Bulacan, to the effect that
he failed to see the deed of absolute sale annotated on the simple copy of tax
declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno, Vallarta) and of David
Montenegro, Jr. of the National Archives to the effect that his office had no copy of
the document in question because the notary public might not have submitted a copy
thereof; or that it was lost or destroyed during the transmittal; and that most of the
record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno,
Tecson), prove loss or destruction of the original and of all the duplicate original
copies of the document in question.8

We find no cogent reason to rule otherwise.

WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby
AFFIRMED.

SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y
LIM, Defendant-Appellant.

DECISION

CRUZ, J.:

The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987,
convicting Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425
known as the Dangerous Drugs Act of 1972, is before us on appeal.
The information against the accused-appellant read as follows:
That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
without being authorized by law, did then and there willfully, unlawfully and feloniously sell
eight (8) pieces of dried marijuana flowering tops, two (2) pieces of dried marijuana
flowering tops and crushed dried marijuana flowering tops, which are prohibited drug, for
and in consideration of P20.00.
Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J.
Guerrero rendered a decision the dispositive portion of which declared:
WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of
violation of Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced
to life imprisonment and to pay a fine of P20,000.00 and cost. : nad

The marijuana confiscated in this case is declared confiscated and forfeited and
ordered turned over to the Dangerous Drugs Board for proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of errors in this appeal:
1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the
crime charged despite lack of evidence to prove that he sold marijuana to the
poseur-buyer.
2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A"
which is merely a xerox copy of the P10.00 bill allegedly used as buy-bust money.
The evidence of the prosecution may be summarized as follows:
On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched
Pfc. Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la
Cruz, Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust
operation at Solchuaga St., Barangay Singkamas, Makati.
The target area was a store along the said street, and Singayan was to pose as the buyer.
He stood alone near the store waiting for any pusher to approach. The other members of
the team strategically positioned themselves. Soon, three men approached Singayan. One
of them was the accused-appellant, who said without preamble: "Pare, gusto mo bang
umiskor?" Singayan said yes. The exchange was made then and there — two rolls/pieces of
marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit).
The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body
search of the accused-appellant and took from him the marked money, as well as eight
more rolls/foils of marijuana and crushed leaves.: nad

The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police
Station, for investigation by Detective Marvin Pajilan. The accused-appellant chose to
remain silent after having been informed of his constitutional rights.
These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1 Microscopic,
chemical and chromotographic examination was performed on the confiscated marijuana by
Raquel P. Angeles, forensic chemist of the National Bureau of Investigation, who later
testified that the findings were positive. The marijuana was offered as an exhibit. 2
As might be expected, the accused-appellant had a different story. His testimony was that
from 1:30 to 4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other
persons along Solchuaga St. when somebody suddenly said that policemen were making
arrests. The players grabbed the bet money and scampered. However, he and a certain
Danny (another "cara y cruz" player) were caught and taken to the Narcotics Command
headquarters in Makati. There they were mauled and warned that if they did not point to
their fellow pushers, they would rot in jail. The accused-appellant denied he had sold
marijuana to Singayan and insisted the bills taken from him were the bet money he had
grabbed at the "cara y cruz" game. 3
The trial court, which had the opportunity to observe the demeanor of the witnesses and to
listen to their respective testimonies, gave more credence to the statements of the arresting
officers. Applying the presumption that they had performed their duties in a regular
manner, it rejected Tandoy's uncorroborated allegation that he had been manhandled and
framed. Tandoy had not submitted sufficient evidence of his charges, let alone his admission
that he had no quarrel with the peace officers whom he had met only on the day of his
arrest.
In People v. Patog, 4 this Court held:
When there is no evidence and nothing to indicate the principal witness for the prosecution
was actuated by improper motives, the presumption is that he was not so actuated and his
testimony is entitled to full faith and credit.
Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger
until the seller is certain of the identity of the buyer."
The conjecture must be rejected. : nad

In People v. Paco, 5 this Court observed:

Drug-pushing when done on a small level as in this case belongs to that class of crimes that
may be committed at anytime and at any place. After the offer to buy is accepted and the
exchange is made, the illegal transaction is completed in a few minutes. The fact that the
parties are in a public place and in the presence of other people may not always discourage
them from pursuing their illegal trade as these factors may even serve to camouflage the
same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal
drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329;
People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store
(People vs. Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609,
November 22, 1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No.
69844, February 23, 1988).
As the Court has also held, "What matters is not an existing familiarity between the buyer
and the seller but their agreement and the acts constituting the sale and delivery of the
marijuana leaves." 6
Under the second assigned error, the accused-appellant invokes the best evidence rule and
questions the admission by the trial court of the xerox copy only of the marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted that contention thus:
This assigned error centers on the trial court's admission of the P10.00 bill marked money
(Exh. E-2-A) which, according to the appellant, is excluded under the best evidence rule for
being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money
is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which
excludes the introduction of secondary evidence except in the five (5) instances mentioned
therein.
:-cralaw

The best evidence rule applies only when the contents of the document are the subject of
inquiry. Where the issue is only as to whether or not such document was actually executed,
or exists, or in the circumstances relevant to or surrounding its execution, the best evidence
rule does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4
Martin, op. cit., p. 78.)
Since the aforesaid marked money was presented by the prosecution solely for the purpose
of establishing its existence and not its contents, other substitutionary evidence, like a
xerox copy thereof, is therefore admissible without the need of accounting for the original.
Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to
the conviction of the accused-appellant because the sale of the marijuana had been
adequately proved by the testimony of the police officers. So long as the marijuana actually
sold by the accused-appellant had been submitted as an exhibit, the failure to produce the
marked money itself would not constitute a fatal omission.
We are convinced from the evidence on record that the prosecution has overcome the
constitutional presumption of innocence in favor of the accused-appellant with proof beyond
reasonable doubt of his guilt. He must therefore suffer the penalty prescribed by law for
those who would visit the scourge of drug addiction upon our people.
WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with
costs against the accused-appellant.: nad

SO ORDERED
G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.

On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
 (2) Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.

The appellees then filed a motion for reconsideration on the ground that the order
was contrary to law and settled pronouncements and rulings of the Supreme Court,
to which the appellant in turn filed an opposition. On July 23, 1979, the court set
aside its order of February 23, 1979 and dismissed the petition for the probate of the
will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the holographic will is
lost, a copy thereof cannot stand in lieu of the original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic
Will.

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL

MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED