FULL TEXT CASES IN CIV 1

Martinez vs. Van Buskirk – Ardiente vs. Spouses Pastorfide

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EFFECT AND APPLICATION OF LAWS
G. Applicability of custom
MARTINEZ v. VAN BUSKIRK, 18 PHIL. 79, DECEMBER 27, 1910
SECOND DIVISION
EN BANC
[G.R. No. L-5691. December 27, 1910. ]
S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, Plaintiffs-Appellees, v.
WILLIAM VAN BUSKIRK, Defendant-Appellant.
Lionel D. Hargis for Appellant.
Sanz and Oppisso for Appellee.
SYLLABUS
1. MASTER AND SERVANT; DRIVERS OF HORSES; CUSTOM AND USAGE; NEGLIGENCE.
— A coachman or driver, who had driven the horses composing his team for a
considerable time, during which the animals has shown no disposition to become
unruly, left his team as usual and was assisting in unloading the wagon when the horses
bolted and running into the plaintiffs’ carriage caused personal injuries to the plaintiff
and damage to the vehicle. It was further shown that, to leave teams under like
circumstances and to assist in unloading the wagon, is the custom of drivers in the city
and that the custom is sanctioned by employers. Held: That acts, the performance of
which has not proven destructive or injurious and which have been generally
acquiesced in by society for so long a time as to have ripened into a custom, can not
be held to be unreasonable or imprudent and that, under the circumstances, the driver
was not guilty of negligence in so leaving his team while assisting in unloading his
wagon.
DECISION
MORELAND, J.:
The facts found by the trial court are undisputed by either party in this case. They are
— be responsible.
"That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was
riding in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-
hand side of the street as she was going, when a delivery wagon belonging to the
defendant used for the purpose of transportation of fodder by the defendant, and to
which was attached a pair of horses, came along the street in the opposite direction to
that the in which said plaintiff was proceeding, and that thereupon the driver of the
said plaintiff’s carromata, observing that the delivery wagon of the defendant was
coming at great speed, crowded close to the sidewalk on the left-hand side of the street
and stopped, in order to give defendant’s delivery wagon an opportunity to pass by,
but that instead of passing by the defendant’s wagon and horses ran into the carromata
occupied by said plaintiff with her child and overturned it, severely wounding said
plaintiff by making a serious cut upon her head, and also injuring the carromata itself
and the harness upon the horse which was drawing it.
x x x
"These facts are not dispute, but the defendant presented evidence to the effect that
the cochero, who was driving his delivery wagon at the time the accident occurred,
was a good servant and was considered a safe and reliable cochero; that the delivery
wagon had sent to deliver some forage at Paco Livery Stable on Calle Herran, and that
for the purpose of delivery thereof the cochero driving the team as defendant’s
employee tied the driving lines of the horses to the front end of the delivery wagon
and then went back inside of the wagon for the purpose of unloading the forage to be
delivered; that while unloading the forage and in the act of carrying some of it out,
another vehicle drove by, the driver of which cracked a whip and made some other
noises, which frightened the horses attached to the delivery wagon and they ran away,
and the driver was thrown from the inside of the wagon out through the rear upon the
ground and was unable to stop the horses; that the horses then ran up and on which
street they came into collision with the carromata in which the plaintiff, Carmen Ong
de Martinez, was riding."cralaw virtua1aw library
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and gave
judgment against him for P442.50, with interest thereon at the rate of 6 per cent per
annum from the 17th day of October, 1908, and for the costs of the action. The case
is before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that embodied in
the Civil Code. The provisions of that code pertinent to this case are —
"Art. 1902. A person who by an act or omission causes damage to another when there
is fault or negligence shall be obliged to repair the damage so done.
"Art. 1903. The obligation imposed by preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should
"The father, and on his death or incapacity the mother, is liable for the damages caused
by the minors who live with them.
"Guardians are liable for the damages caused by minors or incapacitated persons who
are under their authority and live with them.
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"Owners of directors of an establishment or enterprise are equally liable for the
damages caused by the employees in the service of the branches in which the latter
may be employed or on account of their duties.
"The State is liable in this sense when it acts through a special agent, but not when the
damages should have been caused by the official to whom properly it pertained to do
the act performed, in which case the provisions of the preceding article shall be
applicable.
"Finally, masters or directors of arts and trades are liable for the damages caused by
their pupils or apprentices while they are under their custody.
"The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage."
Passing the question whether or not an employer who has furnished a gentle and
tractable team and a trusty and capable driver is, under the last paragraph of the above
provisions, liable for the negligence of such driver in handling the team, we are of the
opinion that the judgment must be reversed upon the ground that the evidence does
not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be somewhat
different from that in Anglo-Saxon countries, a question we do not now discuss, the
rules under which the fact of negligence is determined are, nevertheless, generally the
same. That is to say, while the law designating the person responsible for a negligent
act may not be the same here as in many jurisdictions, the law determining what is a
negligent act is the same here, generally speaking, as elsewhere. (Supreme court of
Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March, 1901;
2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7
March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the damage
were gentle and tractable; that the cochero was experienced and capable; that he had
driven one of the horses several years and the other five or six months; that he had
been in the habit, during all that time, of leaving them in the condition in which they
were left on the day of the accident; that they had never run away up to that time and
there had been, therefore, no accident due to such practice; that to leave the horses
and assist in unloading the merchandise in the manner described on the day of the
accident was the custom of all cochero who delivered merchandise of the character of
that which was being delivered by the cochero of the defendant on the day in question,
which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses
in the manner described by the evidence in this case, either under Spanish or American
jurisprudence. (Lynch v. Nurdin, 1 Q. B., 422; Rumsey v. Nelson, 58 Vt., 590; Drake v.
Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. v. Lally, 48 N. J. L., 604;
Wasmer v. D. L. & W. R. R. Co., 80 N. Y., 212.)
In the case of Hayman v. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
"He was performing his duty while removing the goods into the house, and, if every
person who suffered a cart to remain in the street while he took goods out of it was
obliged to employ another to look after the horses, it would be impossible for the
business of the metropolis to go on.
In the case of Griggs v. Fleckenstein (14 Minn., 81), the court said:
"The degree of care required of the plaintiff, or those in charged of his horse, at the
time of the injury, is that which would be exercised by a person of ordinary care and
prudence under like circumstances. It can not be said that the fact of leaving the horse
unhitched is in itself negligence. Whether it is negligence to leave a horse unhitched
must be depend upon the disposition of the horse; whether he was under the
observation and control of some person all the time, and many other circumstances;
and is a question to be determined by the jury from the facts of each case."
In the case of Belles v. Kellner (67 N. J. L., 255), it was held that it was error on the
part of the trial court to refuse to charge that "it is not negligence for the driver of a
quite, gentle horse to leave him unhitched and otherwise unattended on the side of a
public highways while the driver is upon the sidewalk loading goods on the wagon."
The said court closed its opinion with these words:
"There was evidence which could have fully justified the jury in finding that the horse
was quite and gentle, and that the driver was upon the sidewalk loading goods on the
wagon, at time of the alleged injury, and that the horse had been used for years in
that way without accident. The refusal of the trial court to charge as requested left the
jury free to find was verdict against the defendant, although the jury was convinced
that these facts were proven.
In the case of Southworth v. Ry. Co. (105 Mass., 342), it was held:
"That evidence that a servant, whom traders employed to deliver goods, upon stopping
with his horse and wagon to deliver a parcel at a house from fifty to a hundred rods
from a railroad crossing, left the horse unfastened for four or five minutes while he was
in the house, knowing that it was not afraid of cars, and having used it for three or
four months without ever hitching it or knowing it to start, is not conclusive, as a matter
of law, of a want of due care on his part."
The duty, a violation of which is claimed to be negligence in the respect in question, is
to exercise reasonable care and prudence. Where reasonable care is employed in doing
an act not itself illegal or inherently likely to produce damage to others, there will be
no liability, although damage in fact ensues. (Milwaukee Ry. Co. v. Arms, 91 U. S., 489;
Parrott v. Wells, 15 Wall., 524; Brown v. Kendall, 6 Cushing, 292; Jackson Architectural
Iron Works v. Hurlbut, 158 N. Y., 34 Westerfield v. Levis, 43 La. An., 63; Niosi v. Empire
Steam Laundry, 117 Cal., 257.)
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The act of defendant’s driver in leaving the horses in the manner proved was not Separate Opinions
unreasonable or imprudent. Acts the performance of which has not proved destructive
or injurious and which have, therefore, been acquiesced in by society for so long a time TORRES, J., dissenting:
that they have ripened into custom, can not be held to be themselves unreasonable or
imprudent. Indeed the very reason why they have been permitted by society is that I am of the opinion that the judgment should be affirmed.
they beneficial rather than prejudicial. Accidents sometimes happen and injuries result
from the most ordinary acts of life. But such are not their natural or customary results.
To hold that, because such an act once resulted in accident or injury, the actor is
necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is
sometimes successfully invoked in such a case, does not in any sense militate against
the reasoning presented. That maxim at most only creates a prima facie case, and that
only in the absence of proof of the circumstances under which the act complained of
was performed. It is something invoked in favor of the plaintiff before defendant’s case
showing the conditions and circumstances under which the injury occurred, the creative
reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the
case of Inland and Seaboard Costing Co. v. Tolson (139 U.S., 551), where the court
said (p. 554):

". . . The whole effect of the instruction in question, as applied to the case before the
jury, was that if the steamboat, on a calm day and in smooth water, was thrown with
such force against a wharf properly built, as to tear up some of the planks of the
flooring, this would be prima facie evidence of negligence on the part of the defendant’s
agent in making the landing, unless upon the whole evidence in the case this prima
facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a
steamboat under control of her officers and carefully managed by them, evidence that
such damage was done in this case was prima facie, and, if unexplained, sufficient
evidence of negligence on their part, and the jury might properly be so instructed."

There was presented in this case, and by the plaintiffs themselves, not only the fact of
the runway and the accident resulting therefrom, but also the conditions under which
the runaway occurred. Those conditions showing of themselves that the defendant’s
cochero was not negligent in the management of the horse, the prima facie case in
plaintiffs’ favor, if any, was destroyed as soon as made.

It is a matter of common knowledge as well as proof that it is the universal practice of

merchants to deliver merchandise of the kind of that being delivered at the time of the
injury, in the manner in which that was then being delivered; and that it is the universal
practice to leave the horses in the manner in which they were left at the time of the
accident. This is the custom in all cities. It has not been productive of accidents or
injuries. The public, finding itself unprejudiced by such practice, has acquiesced for
years without objection. Ought the public now, through the courts, without prior
objection or notice, to be permitted to reverse the practice of decades and thereby
make culpable and guilty one who had every reason and assurance to believe that he
was acting under the sanction of the strongest of all civil forces, the custom of a people?
We think not.

The judgment is reversed, without special finding as to costs. So ordered.

Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.
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H. Legal periods
ARMIGOS v. CA 179, SCRA 1, NOVEMBER 6, 1989
SECOND DIVISION
G.R. No. L-50654 November 6, 1989
RUDY GLEO ARMIGOS, petitioner,
vs.
COURT OF APPEALS, CRISTITO MATA, and JUDGE L. D. CARPIO, in his capacity as
Judge of the Court of First Instance of Davao del Sur, Branch V, respondents.
David W. Natividad for petitioner.
Calamba, Garcia, Geralde & Calamba Law Offices for respondents.
PADILLA, J.:
Review on certiorari of the decisio * of the Court of Appeals, which dismissed the
petition filed and docketed therein as CA-G.R. No. SP-07192-R, entitled: "Rudy Gleo
Armigos, petitioner, versus Judge L.D. Carpio, respondent," and the resolution denying
the motion for reconsideration of said decision.
The undisputed facts are as follows:
The private respondent, Cristito Mata, filed a complaint against the herein petitioner
with the Municipal Court of Digos, Davao del Sur, docketed as Civil Case No. 971, for
the collection of damages and attorney's fees. After trial, judgment was rendered in
favor of the private respondent and against the herein petitioner. A copy of the decision
was received by the petitioner on 8 June 1977, and the following day, 9 June 1977, he
filed a notice of appeal with the said municipal court, and on 24 June 1977, he
completed the other requirements for the perfection of an appeal, including the filing
of an appeal bond and the payment of the appellate court docket fee. However, when
the case was elevated to the Court of First Instance of Davao del Sur (Branch V) for
the consideration of the appeal, the presiding judge thereof ruled that the appeal was
filed beyond the reglementary period; consequently, he dismissed the appeal.
Whereupon, the petitioner filed a petition for certiorari, mandamus with preliminary
injunction with the Court of Appeals, claiming that from 8 June 1977, when he received
a copy of the decision of the municipal court, to 24 June 1977, when he perfected his
appeal, only fifteen (15) days had elapsed so that the decision of the Court of First
Instance of Davao del Sur, dismissing his appeal for having been filed beyond the
reglementary period, is erroneous and contrary to law. The petitioner contended that
the computation of the period to appeal should commence on the hour he received
copy of the decision, so that the first of the 1 5-day period comprising 24 hours is from
4:00 o'clock p.m. of 9 June 1977 to 4:00 o'clock p.m. of 10 June 1977 and the last day,
from 4:00 o'clock p.m. of 23 June 1977 to 4:00 o'clock p.m. of 24 June 1977.
The Court of Appeals, however, rejected the novel interpretation suggested as it would
result in many confusing situations and many unreliable testimonies as to the time a
copy of a decision, order or pleading is received, and cited the case of Republic of the
Philippines vs. Encarnacion, 1 where this Court held that when a law was to be effective
upon approval by the President and the President signed the same on 16 June 1950,
the law should be considered to have taken effect not on the exact hour when the
President signed the same on 16 June 1950 but from the very first minute or hour of
said day of 16 June 1950.
The petitioner filed a motion for reconsideration of the appellate court's decision, but
his motion was denied in a resolution promulgated on 7 December 1978.
Hence, the present recourse.
We find no merit in the petition. The rule stated in Article 13 of the Civil Code to the
effect that "In computing a period, the first day shall be excluded, and the last day
included" is similar, but not Identical to Section 4 of the Code of Civil Procedure which
provided that "Unless otherwise specially provided, the time within which an act is
required by law to be done shall be computed by excluding the first day and including
the last; and if the last be Sunday or a legal holiday it shall be excluded", as well as
the old Rule 28 of the Rules of Court which stated that "In computing any period of
time prescribed or allowed by the Rules of Court, by order of a court, or by any other
applicable statute, the day of the act, event or default after which the designated period
of time begins to run is not to be included. The last day of the period so computed is
to be included, unless it is a Sunday or a legal holiday, in which event the time shall
run until the end of the next day which is neither a Sunday or a legal holiday." In
applying this rule, the Court considered the day as synonymous with the date and we
find no cogent reason to adopt a different view.
Besides, human memory on dates or days is frail and unless the day is an extraordinary
one for a person, there is no reasonable certainty of its correctness. What more for the
exact hour when a pleading, order or decision is received by a party?
Petitioner's suggestion, however, may find application in appeals in habeas corpus
cases where the law requires that such appeals should be made within 48 hours from
notice of judgment. 2
While it is true that rules of procedure are to be interpreted liberally so that the real
matter in dispute may be submitted to the judgment of the court, and that the trial
court is vested with discretion to allow or admit an appeal filed out of time, this
discretion is not unconditional. There must be justifiable reason to warrant such action,
since the perfection of an appeal in the manner and within the period laid down by law
is not only mandatory but jurisdictional, and in the absence of any justifying
circumstance, the court has no jurisdiction to approve or admit an appeal filed out of
time. 3 In the instant case, the petitioner failed to prove, or even claim, that his failure
to appeal on time was due to fraud, accident, mistake or excusable negligence.
WHEREFORE, the petition is DENIED. With costs against the petitioner.
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SO ORDERED.

Melencio-Herrera (Chairperson), Sarmiento and Regalado, JJ., concur.

Paras, J., took no part.

Footnotes

* Penned by Justice Edgardo L. Paras, with Justices Ramon G. Gaviola Jr., and B.S. de
la Fuente, concurring.

1 87 Phil. 845.

2 Rule 41, Sec. 18, Rules of Court.

3 Trans-Philippines, Inc. vs. Court of Appeals, G.R. No. L-42184, July 28, 1977
SCRA 154, 161.

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NAMARCO v. TECZON, 29 SCRA 70, AUGUST 27, 1969
EN BANC
G.R. No. L-29131 August 27, 1969
NATIONAL MARKETING CORPORATION, plaintiff-appellant,
vs.
MIGUEL D. TECSON, ET AL., defendants,
MIGUEL D. TECSON, defendant-appellee,
THE INSURANCE COMMISSIONER, petitioner.
Government Corporate Counsel Leopoldo M. Abellera and Trial Atty. Antonio M.
Brillantes for plaintiff-appellant.
Antonio T. Lacdan for defendant-appellee.
Office of the Solicitor General for petitioner.
CONCEPCION, C.J.:
This appeal has been certified to us by the Court of Appeals only one question of law
being involved therein.
On November 14, 1955, the Court of First Instance of Manila rendered judgment, in
Civil Case No. 20520 thereof, entitled "Price Stabilization Corporation vs. Miguel D.
Tecson and Alto Surety and Insurance Co., Inc.," the dispositive part of which reads as
follows:
For the foregoing consideration, the Court decides this case:
(a) Ordering the defendants Miguel D. Tecson and Alto Surety Insurance Co., Inc. to
pay jointly and severally plaintiff PRATRA the sum of P7,200.00 plus 7% interest from
May 25, 1960 until the amount is fully paid, plus P500.00 for attorney's fees, and plus
costs;
(b) ordering defendant Miguel D. Tecson to indemnify his co-defendant Alto Surety &
Insurance Co., Inc. on the cross-claim for all the amounts it would be made to pay in
this decision, in case defendant Alto Surety & Insurance Co., Inc. pay the amount
adjudged to plaintiff in this decision. From the date of such payment defendant Miguel
D. Tecson would pay the Alto Surety & Insurance Co., Inc., interest at 12% per annum
until Miguel D. Tecson has fully reimbursed plaintiff of the said amount.
Copy of this decision was, on November 21, 1955, served upon the defendants in said
case. On December 21, 1965, the National Marketing Corporation, as successor to all
the properties, assets, rights, and choses in action of the Price Stabilization Corporation,
as plaintiff in that case and judgment creditor therein, filed, with the same court, a
complaint, docketed as Civil Case No. 63701 thereof, against the same defendants, for
the revival of the judgment rendered in said Case No. 20520. Defendant Miguel D.
Tecson moved to dismiss said complaint, upon the ground of lack of jurisdiction over
the subject matter thereof and prescription of action. Acting upon the motion and
plaintiff's opposition thereto, said Court issued, on February 14, 1966, an order reading:
Defendant Miguel Tecson seeks the dismissal of the complaint on the ground of lack of
jurisdiction and prescription. As for lack of jurisdiction, as the amount involved is less
than P10,000 as actually these proceedings are a revival of a decision issued by this
same court, the matter of jurisdiction must be admitted. But as for prescription.
Plaintiffs admit the decision of this Court became final on December 21, 1955. This
case was filed exactly on December 21, 1965 — but more than ten years have passed
a year is a period of 365 days (Art. 13, CCP). Plaintiff forgot that 1960, 1964 were both
leap years so that when this present case was filed it was filed two days too late.
The complaint insofar as Miguel Tecson is concerned is, therefore, dismissed as having
prescribed.
The National Marketing Corporation appealed from such order to the Court of Appeals,
which, on March 20, 1969t certified the case to this Court, upon the ground that the
only question therein raised is one of law, namely, whether or not the present action
for the revival of a judgment is barred by the statute of limitations.
Pursuant to Art. 1144(3) of our Civil Code, an action upon a judgment "must be brought
within ten years from the time the right of action accrues," which, in the language of
Art. 1152 of the same Code, "commences from the time the judgment sought to be
revived has become final." This, in turn, took place on December 21, 1955, or thirty
(30) days from notice of the judgment — which was received by the defendants herein
on November 21, 1955 — no appeal having been taken therefrom. 1 The issue is thus
confined to the date on which ten (10) years from December 21, 1955 expired.
Plaintiff-appellant alleges that it was December 21, 1965, but appellee Tecson
maintains otherwise, because "when the laws speak of years ... it shall be understood
that years are of three hundred sixty-five days each" — according to Art. 13 of our Civil
Code — and, 1960 and 1964 being leap years, the month of February in both had 29
days, so that ten (10) years of 365 days each, or an aggregate of 3,650 days, from
December 21, 1955, expired on December 19, 1965. The lower court accepted this
view in its appealed order of dismissal.
Plaintiff-appellant insists that the same "is erroneous, because a year means a calendar
year (Statutory Construction, Interpretation of Laws, by Crawford, p. 383) and since
what is being computed here is the number of years, a calendar year should be used
as the basis of computation. There is no question that when it is not a leap year,
December 21 to December 21 of the following year is one year. If the extra day in a
leap year is not a day of the year, because it is the 366th day, then to what year does
it belong? Certainly, it must belong to the year where it falls and, therefore, that the
366 days constitute one year." 2
The very conclusion thus reached by appellant shows that its theory contravenes the
explicit provision of Art. 13 of the Civil Code of the Philippines, limiting the connotation
of each "year" — as the term is used in our laws — to 365 days. Indeed, prior to the
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approval of the Civil Code of Spain, the Supreme Court thereof had held, on March 30,
1887, that, when the law spoke of months, it meant a "natural" month or "solar" month,
in the absence of express provision to the contrary. Such provision was incorporated
into the Civil Code of Spain, subsequently promulgated. Hence, the same Supreme
Court declared 3 that, pursuant to Art. 7 of said Code, "whenever months ... are
referred to in the law, it shall be understood that the months are of 30 days," not the
"natural," or "solar" or "calendar" months, unless they are "designated by name," in
which case "they shall be computed by the actual number of days they have. This
concept was later, modified in the Philippines, by Section 13 of the Revised
Administrative Code, Pursuant to which, "month shall be understood to refer to a
calendar month." 4 In the language of this Court, in People vs. Del Rosario, 5 with the
approval of the Civil Code of the Philippines (Republic Act 386) ... we have reverted to
the provisions of the Spanish Civil Code in accordance with which a month is to be
considered as the regular 30-day month ... and not the solar or civil month," with the
particularity that, whereas the Spanish Code merely mentioned "months, days or
nights," ours has added thereto the term "years" and explicitly ordains that "it shall be
understood that years are of three hundred sixty-five days."

Although some members of the Court are inclined to think that this legislation is not
realistic, for failure to conform with ordinary experience or practice, the theory of
plaintiff-appellant herein cannot be upheld without ignoring, if not nullifying, Art. 13 of
our Civil Code, and reviving Section 13 of the Revised Administrative Code, thereby
engaging in judicial legislation, and, in effect, repealing an act of Congress. If public
interest demands a reversion to the policy embodied in the Revised Administrative
Code, this may be done through legislative process, not by judicial decree.

WHEREFORE, the order appealed from should be as it is hereby affirmed, without costs.
It is so ordered.

Dizon, Makalintal, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ.,
concur.
Reyes, J.B.L., and Zaldivar, JJ., are on leave.

Footnotes

1Sec. 1, Rule 39, in relation to Sec. 3, Rule 31, Rules of Court.

2Emphasis ours.

3Decision of April 6, 1895.

4Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio, 53 Phil. 334, 335-336.

597 Phil. 70-71.

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I. Binding effect
BARRETO-GONZALES v. GONZALES, 58 PHIL. 67, MARCH 7, 1933
EN BANC
G.R. No. L-37048 March 7, 1933
MANUELA BARRETTO GONZALEZ, plaintiff-appellee,
vs.
AUGUSTO C. GONZALEZ, defendant-appellant.
AUGUSTO C. GONZALEZ, Jr., ET AL., intervenors-appellees.
Quintin Paredes and Barrera and Reyes for appellant.
DeWitt, Perkins and Brady for plaintiff-appellee.
Camus and Delgado for intervenors-appellees.
HULL, J.:
Plaintiff and defendant are citizens of the Philippine Islands and at present residents of
the City of Manila. They were married in the City of Manila on January 19, 1919, and
lived together as man and wife in the Philippine Islands until the spring of 1926. They
voluntarily separated and since that time have not lived together as man and wife. Of
this union four children were born who are now 11, 10, 8 and 6 years of age.
Negotiations between the parties, both being represented by attorneys, continued for
several months, whereupon it was mutually agreed to allow the plaintiff for her support
and that of her children, five hundred pesos (P500) monthly; this amount to be
increased in case of illness or necessity, and the title of certain properties to be put in
her name. Shortly after this agreement the husband left the Islands, betook himself to
Reno, Nevada, and secured in that jurisdiction an absolute divorce on the ground of
desertion, which decree was dated November 28, 1927. Shortly thereafter the
defendant moved to California and returned to these Islands in August 1928, where he
has since remained. On the same date that he secured a divorce in Nevada he went
through the forms of marriage with another citizen of these Islands and now has three
children as a result of that marriage. Defendant, after his departure from these Islands,
reduced the amount he had agreed to pay monthly for the support of his wife and four
minor children and has not made the payments fixed in the Reno divorce as alimony.
Shortly after his return his wife brought action in the Court of First Instance of Manila
requesting that the courts of the Philippine Islands confirm and ratify the decree of
divorce issued by the courts of the State of Nevada; that section 9 of Act No. 2710,
which reads as follows:
The decree of divorce shall dissolve the community of property as soon as such decree
becomes final, but shall not dissolve the bonds of matrimony until one year thereafter.
The bonds of matrimony shall not be considered as dissolved with regard to the spouse
who, having legitimate children, has not delivered to each of them or to the guardian
appointed by the court, within said period of one year, the equivalent of what would
have been due to them as their legal portion if said spouse had died intestate
immediately after the dissolution of the community of property.
be enforced, and that she and the defendant deliver to the guardian ad litem the
equivalent of what would have been due to their children as their legal portion from
the respective estates had their parents did intestate on November 28, 1927. It is also
prayed that the community existing between plaintiff and defendant be declared
dissolved and the defendant be ordered to render an accounting and to deliver to the
plaintiff her share of the community property, that the defendant be ordered to pay
the plaintiff alimony at the rate of five hundred pesos (P500) per month, that the
defendant be ordered to pay the plaintiff, as counsel fees, the sum of five thousand
pesos (P5000), and that the defendant be ordered to pay plaintiff the expenses incurred
in educating the three minor sons.
A guardian ad litem was appointed for the minor children, and they appear as
intervenors and join their mother in these proceedings. The Court of First Instance,
after hearing, found against the defendant and granted judgment as prayed for by the
plaintiff and intervenors, with the exception of reducing attorneys fees to three
thousand, and also granted costs of the action against the defendant. From this
judgment defendant appeals and makes the following assignment of errors:
I. The lower court erred in not declaring that paragraph 2 of section 9 of the Philippine
Divorce Law, is unconstitutional, null and void.
II. The lower court erred in holding that section 9 of Act No. 2710 (Divorce Law) applies
to the Nevada decree of divorce issued in favor of appellant Augusto C. Gonzalez, said
decree being entitled to confirmation and recognition.
III. The lower court erred in not dismissing the complaint in intervention for lack of
cause of action against appellant and appellee.
IV. The lower court erred in not declaring the notice of lis pendens filed by intervenors
to be null and void.
V. The lower court erred in ordering the appellant to pay the sum of P500 per month
for the support not only of his children but also of his ex-wife, appellee herein, Manuela
Barretto.
VI. The lower court erred in not holding that plaintiff- appellee, Manuela Barretto, is
not entitled to support from her ex-husband, herein appellant, over and beyond the
alimony fixed by the divorce decree in Exhibit A.
VII. The lower court erred in condemning defendant appellant to pay to plaintiff-
appellee P3,000 attorney's fees.
VIII. The lower court erred in denying appellant's motion for new trial.
9
While the parties in this action are in dispute over financial matters they are in unity in Litigants by mutual agreement can not compel the courts to approve of their own
trying to secure the courts of this jurisdiction to recognize and approve of the Reno actions or permit the personal relations of the citizens of these Islands to be affected
divorce. On the record here presented this can not be done. The public policy in this by decrees of foreign courts in a manner which our Government believes is contrary to
jurisdiction on the question of divorce is clearly set forth in Act No. 2710, and the public order and good morals. Holding the above views it becomes unnecessary to
decisions of this court: Goitia vs. Campos Rueda (35 Phil., 252); Garcia Valdez vs. discuss the serious constitutional question presented by appellant in his first
Soteraña Tuason (40 Phil., 943-952); Ramirez vs. Gmur (42 Phil., 855); Chereau vs. assignment of error.
Fuentebella (43 Phil., 216); Fernandez vs. De Castro (48 Phil., 123); Gorayeb vs.
Hashim (50 Phil., 22); Francisco vs. Tayao (50 Phil., 42); Alkuino Lim Pang vs. Uy Pian The judgment of the Court of First Instance of the City of Manila must therefore be
Ng Shun and Lim Tingco (52 Phil., 571); and the late case of Cousins Hix vs. Fluemer, reversed and defendant absolved from the demands made against him in this action.
decided March 21, 1931, and reported in 55 Phil., 851. This, however, without prejudice to any right of maintenance that plaintiff and the
intervenors may have against defendant. No special pronouncement as to costs. So
The entire conduct of the parties from the time of their separation until the case was ordered.
submitted to this court, in which they all prayed that the Reno divorce be ratified and
confirmed, clearly indicates a purpose to circumvent the laws of the Philippine Islands Avanceña, C.J., Street, Villamor Ostrand, Abad Santos, Vickers, Imperial and Butte JJ.,
regarding divorce and to secure for themselves a change of status for reasons and concur.
under conditions not authorized by our law. At all times the matrimonial domicile of
this couple has been within the Philippine Islands and the residence acquired in the
State of Nevada by the husband of the purpose of securing a divorce was not a bona
fide residence and did not confer jurisdiction upon the Court of that State to dissolve
the bonds if matrimony in which he had entered in 1919. While the decisions of this
court heretofore in refusing to recognize the validity of foreign divorce has usually been
expressed in the negative and have been based upon lack of matrimonial domicile or
fraud or collusion, we have not overlooked the provisions of the Civil Code now in force
in these Islands. Article 9 thereof reads as follows:

The laws relating to family rights and duties, or to the status, condition and legal
capacity or persons, are binding upon Spaniards even though they reside in a foreign
country.

And article 11, the last part of which reads:

. . . the prohibitive laws concerning persons, their acts and their property, and those
intended to promote public order and good morals, shall nor be rendered without effect
by any foreign laws or judgments or by anything done or any agreements entered into
a foreign country.

It is therefore a serious question whether any foreign divorce relating to citizens of the
Philippine Islands, will be recognized in this jurisdiction, except it be for a cause, and
under conditions for which the courts of Philippine Islands would grant a divorce. The
lower court in granting relief as prayed for frankly stated that the securing of the
divorce, the contracting of another marriage and the bringing into the world of innocent
children brings about such a condition that the court must grant relief. The hardships
of the existing divorce laws of the Philippine Islands are well known to the members of
the Legislature. It is of no moment in this litigation what he personal views of the writer
on the subject of divorce may be. It is the duty of the courts to enforce the laws of
divorce as written by the Legislature if they are constitutional. Courts have no right to
say that such laws are too strict or too liberal.

10
TENCHAVEZ v. ESCAÑO 15 SCRA 355, NOVEMBER 29, 1965
EN BANC
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court of First
Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-
appellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages
against his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and
Mena,1 all surnamed "Escaño," respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San Carlos,
Cebu City, where she was then enrolled as a second year student of commerce, Vicenta
Escaño, 27 years of age (scion of a well-to-do and socially prominent Filipino family of
Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor
Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock,
without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares,
in the house of one Juan Alburo in the said city. The marriage was the culmination of
a previous love affair and was duly registered with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple
were deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-
between, they had planned out their marital future whereby Pacita would be the
governess of their first-born; they started saving money in a piggy bank. A few weeks
before their secret marriage, their engagement was broken; Vicenta returned the
engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return, and they reconciled. This time they planned to
get married and then elope. To facilitate the elopement, Vicenta had brought some of
her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting
place.
Although planned for the midnight following their marriage, the elopement did not,
however, materialize because when Vicente went back to her classes after the
marriage, her mother, who got wind of the intended nuptials, was already waiting for
her at the college. Vicenta was taken home where she admitted that she had already
married Pastor. Mamerto and Mena Escaño were surprised, because Pastor never asked
for the hand of Vicente, and were disgusted because of the great scandal that the
clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following
morning, the Escaño spouses sought priestly advice. Father Reynes suggested a
recelebration to validate what he believed to be an invalid marriage, from the
standpoint of the Church, due to the lack of authority from the Archbishop or the parish
priest for the officiating chaplain to celebrate the marriage. The recelebration did not
take place, because on 26 February 1948 Mamerto Escaño was handed by a maid,
whose name he claims he does not remember, a letter purportedly coming from San
Carlos college students and disclosing an amorous relationship between Pastor
Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter
would not agree to a new marriage. Vicenta and Pastor met that day in the house of
Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while
Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still
solicitous of her husband's welfare, was not as endearing as her previous letters when
their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew
it. She fondly accepted her being called a "jellyfish." She was not prevented by her
parents from communicating with Pastor (Exh. "1-Escaño"), but her letters became less
frequent as the days passed. As of June, 1948 the newlyweds were already estranged
(Exh. "2-Escaño"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from
the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a
petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not
sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of
her non-appearance at the hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she applied for a passport, indicating
in her application that she was single, that her purpose was to study, and she was
domiciled in Cebu City, and that she intended to return after two years. The application
was approved, and she left for the United States. On 22 August 1950, she filed a verified
complaint for divorce against the herein plaintiff in the Second Judicial District Court of
the State of Nevada in and for the County of Washoe, on the ground of "extreme
cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final
and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to
annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta
sought papal dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada.
She now lives with him in California, and, by him, has begotten children. She acquired
American citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in
the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F.
Escaño, her parents, Mamerto and Mena Escaño, whom he charged with having
dissuaded and discouraged Vicenta from joining her husband, and alienating her
affections, and against the Roman Catholic Church, for having, through its Diocesan
11
Tribunal, decreed the annulment of the marriage, and asked for legal separation and
one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her parents
denied that they had in any way influenced their daughter's acts, and counterclaimed
for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from
supporting his wife and to acquire property to the exclusion of his wife. It allowed the
counterclaim of Mamerto Escaño and Mena Escaño for moral and exemplary damages
and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and
plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta F. Escaño
liable for damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doña
Mena Escaño liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to the
defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-
appellee, Vicenta Escaño, were validly married to each other, from the standpoint of
our civil law, is clearly established by the record before us. Both parties were then
above the age of majority, and otherwise qualified; and both consented to the
marriage, which was performed by a Catholic priest (army chaplain Lavares) in the
presence of competent witnesses. It is nowhere shown that said priest was not duly
authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the
Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of
the separation of Church and State but also because Act 3613 of the Philippine
Legislature (which was the marriage law in force at the time) expressly provided that
— absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act
SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of
the contracting parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement,
and, therefore, not essential to give the marriage civil effects,3 and this is emphasized
by section 27 of said marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage shall be declared
invalid because of the absence of one or several of the formal requirements of this Act
if, when it was performed, the spouses or one of them believed in good faith that the
person who solemnized the marriage was actually empowered to do so, and that the
marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their
marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim, 45
Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in
the case at bar, doubts as to the authority of the solemnizing priest arose only after
the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of
Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment
and subsequently suing for divorce implies an admission that her marriage to plaintiff
was valid and binding.
Defendant Vicenta Escaño argues that when she contracted the marriage she was
under the undue influence of Pacita Noel, whom she charges to have been in conspiracy
with appellant Tenchavez. Even granting, for argument's sake, the truth of that
contention, and assuming that Vicenta's consent was vitiated by fraud and undue
influence, such vices did not render her marriage ab initio void, but merely voidable,
and the marriage remained valid until annulled by a competent civil court. This was
never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance
of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez
and Vicenta Escaño remained subsisting and undissolved under Philippine law,
notwithstanding the decree of absolute divorce that the wife sought and obtained on
21 October 1950 from the Second Judicial District Court of Washoe County, State of
Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the
divorce decree was issued, Vicenta Escaño, like her husband, was still a Filipino citizen.4
She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines
(Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity
of persons are binding upon the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo
ad vinculo matrimonii; and in fact does not even use that term, to further emphasize
its restrictive policy on the matter, in contrast to the preceding legislation that admitted
2710). Instead of divorce, the present Civil Code only provides for legal separation
(Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that
"the marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign decree
of absolute divorce betiveen Filipino citizens could be a patent violation of the declared
public policy of the state, specially in view of the third paragraph of Article 17 of the
Civil Code that prescribes the following:
12
Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, policy and good customs, shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or conventions agreed upon in
a foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees
would, in effect, give rise to an irritating and scandalous discrimination in favor of
wealthy citizens, to the detriment of those members of our polity whose means do not
permit them to sojourn abroad and obtain absolute divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have
appeared in the Nevada divorce court. Primarily because the policy of our law cannot
be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally,
because the mere appearance of a non-resident consort cannot confer jurisdiction
where the court originally had none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary consequence
that in this jurisdiction Vicenta Escaño's divorce and second marriage are not entitled
to recognition as valid; for her previous union to plaintiff Tenchavez must be declared
to be existent and undissolved. It follows, likewise, that her refusal to perform her
wifely duties, and her denial of consortium and her desertion of her husband constitute
in law a wrong caused through her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of
deceit nor an anonymous letter charging immorality against the husband constitute,
contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with
Russell Leo Moran is technically "intercourse with a person not her husband" from the
standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of
"legal separation under our law, on the basis of adultery" (Revised Penal Code, Art.
333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid
divorce are in accord with the previous doctrines and rulings of this court on the subject,
particularly those that were rendered under our laws prior to the approval of the
absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal
history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710
became effective; and the present Civil Code of the Philippines, in disregarding absolute
divorces, in effect merely reverted to the policies on the subject prevailing before Act
2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-
mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42
Phil. 855, is of particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it results that the marriage
of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their
relations; and the circumstance that they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal significance. The claims of the very
children to participate in the estate of Samuel Bishop must therefore be rejected. The
right to inherit is limited to legitimate, legitimated and acknowledged natural children.
The children of adulterous relations are wholly excluded. The word "descendants" as
used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born
of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from Vicenta's
marriage to Leo Moran after the invalid divorce, are not involved in the case at bar, the
Gmur case is authority for the proposition that such union is adulterous in this
jurisdiction, and, therefore, justifies an action for legal separation on the part of the
innocent consort of the first marriage, that stands undissolved in Philippine law. In not
so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a person
(whether divorced or not) would depend on the territory where the question arises.
Anomalies of this kind are not new in the Philippines, and the answer to them was
given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well known to
the members of the Legislature. It is the duty of the Courts to enforce the laws of
divorce as written by Legislature if they are constitutional. Courts have no right to say
that such laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escaño
and his wife, the late Doña Mena Escaño, alienated the affections of their daughter and
influenced her conduct toward her husband are not supported by credible evidence.
The testimony of Pastor Tenchavez about the Escaño's animosity toward him strikes us
to be merely conjecture and exaggeration, and are belied by Pastor's own letters
written before this suit was begun (Exh. "2-Escaño" and "Vicenta," Rec. on App., pp.
270-274). In these letters he expressly apologized to the defendants for "misjudging
them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful
pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escaño house to
visit and court Vicenta, and the record shows nothing to prove that he would not have
been accepted to marry Vicente had he openly asked for her hand, as good manners
and breeding demanded. Even after learning of the clandestine marriage, and despite
their shock at such unexpected event, the parents of Vicenta proposed and arranged
that the marriage be recelebrated in strict conformity with the canons of their religion
upon advice that the previous one was canonically defective. If no recelebration of the
marriage ceremony was had it was not due to defendants Mamerto Escaño and his
wife, but to the refusal of Vicenta to proceed with it. That the spouses Escaño did not
seek to compel or induce their daughter to assent to the recelebration but respected
her decision, or that they abided by her resolve, does not constitute in law an alienation
of affections. Neither does the fact that Vicenta's parents sent her money while she
was in the United States; for it was natural that they should not wish their daughter to
live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am.
Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and
abetted her original suit for annulment, or her subsequent divorce; she appears to have
13
acted independently, and being of age, she was entitled to judge what was best for
her and ask that her decisions be respected. Her parents, in so doing, certainly cannot
be charged with alienation of affections in the absence of malice or unworthy motives,
which have not been shown, good faith being always presumed until the contrary is
proved.
SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes
between the right of a parent to interest himself in the marital affairs of his child and
the absence of rights in a stranger to intermeddle in such affairs. However, such
distinction between the liability of parents and that of strangers is only in regard to
what will justify interference. A parent isliable for alienation of affections resulting from
his own malicious conduct, as where he wrongfully entices his son or daughter to leave
his or her spouse, but he is not liable unless he acts maliciously, without justification
and from unworthy motives. He is not liable where he acts and advises his child in good
faith with respect to his child's marital relations in the interest of his child as he sees it,
the marriage of his child not terminating his right and liberty to interest himself in, and
be extremely solicitous for, his child's welfare and happiness, even where his conduct
and advice suggest or result in the separation of the spouses or the obtaining of a
divorce or annulment, or where he acts under mistake or misinformation, or where his
advice or interference are indiscreet or unfortunate, although it has been held that the
parent is liable for consequences resulting from recklessness. He may in good faith take
his child into his home and afford him or her protection and support, so long as he has
not maliciously enticed his child away, or does not maliciously entice or cause him or
her to stay away, from his or her spouse. This rule has more frequently been applied
in the case of advice given to a married daughter, but it is equally applicable in the
case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social
discrimination and with having exerted efforts and pressured her to seek annulment
and divorce, unquestionably caused them unrest and anxiety, entitling them to recover
damages. While this suit may not have been impelled by actual malice, the charges
were certainly reckless in the face of the proven facts and circumstances. Court actions
are not established for parties to give vent to their prejudices or spleen.
In the assessment of the moral damages recoverable by appellant Pastor Tenchavez
from defendant Vicente Escaño, it is proper to take into account, against his patently
unreasonable claim for a million pesos in damages, that (a) the marriage was
celebrated in secret, and its failure was not characterized by publicity or undue
humiliation on appellant's part; (b) that the parties never lived together; and (c) that
there is evidence that appellant had originally agreed to the annulment of the marriage,
although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this fact is a consequence
of the indissoluble character of the union that appellant entered into voluntarily and
with open eyes rather than of her divorce and her second marriage. All told, we are of
the opinion that appellant should recover P25,000 only by way of moral damages and
attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escaño
and Mena Escaño, by the court below, we opine that the same are excessive. While the
filing of this unfounded suit must have wounded said defendants' feelings and caused
them anxiety, the same could in no way have seriously injured their reputation, or
otherwise prejudiced them, lawsuits having become a common occurrence in present
society. What is important, and has been correctly established in the decision of the
court below, is that said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000
only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the
effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as valid
in this jurisdiction; and neither is the marriage contracted with another party by the
divorced consort, subsequently to the foreign decree of divorce, entitled to validity in
the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other
than the lawful husband entitle the latter to a decree of legal separation conformably
to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort
entitles the other to recover damages;
(4) That an action for alienation of affections against the parents of one consort
does not lie in the absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal
separation from defendant Vicenta F. Escaño;
(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant
Tenchavez the amount of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño
and the estate of his wife, the deceased Mena Escaño, P5,000 by way of damages and
attorneys' fees.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P.
and Zaldivar, JJ., concur.
14
Footnotes

1 The latter was substituted by her heirs when she died during the pendency of the
case in the trial court.

2 The original complaint included the Roman Catholic Church as a defendant, sought
to be enjoined from acting on a petition for the ecclesiastical annulment of the marriage
between Pastor Tenchavez and Vicenta Escaño; the case against the defendant Church
was dismissed on a joint motion.

3 In the present Civil Code the contrary rule obtains (Art. 53).

4 She was naturalized as an American citizen only on 8 August 1958.

15
VAN DORN v. ROMILLO, 139 SCRA 139 OCTOBER 8, 1985
FIRST DIVISION
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court
of the National Capital Region Pasay City and RICHARD UPTON respondents.
MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to
set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No.
1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case,
and her Motion for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in
1972; that, after the marriage, they established their residence in the Philippines; that
they begot two children born on April 4, 1973 and December 18, 1975, respectively;
that the parties were divorced in Nevada, United States, in 1982; and that petitioner
has re-married also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No.
1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's
business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the
parties, and asking that petitioner be ordered to render an accounting of that business,
and that private respondent be declared with right to manage the conjugal property.
Petitioner moved to dismiss the case on the ground that the cause of action is barred
by previous judgment in the divorce proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner had "no community property" as
of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case
on the ground that the property involved is located in the Philippines so that the Divorce
Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not
subject to appeal. certiorari and Prohibition are neither the remedies to question the
propriety of an interlocutory order of the trial Court. However, when a grave abuse of
discretion was patently committed, or the lower Court acted capriciously and
whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its
supervisory authority and to correct the error committed which, in such a case, is
equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless
and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed
in this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged
conjugal property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged
conjugal property because of the representation he made in the divorce proceedings
before the American Court that they had no community of property; that the Galleon
Shop was not established through conjugal funds, and that respondent's claim is barred
by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court
cannot prevail over the prohibitive laws of the Philippines and its declared national
policy; that the acts and declaration of a foreign Court cannot, especially if the same is
contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters
within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property
relations between petitioner and private respondent, after their marriage, were upon
absolute or relative community property, upon complete separation of property, or
upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over
petitioner who appeared in person before the Court during the trial of the case. It also
obtained jurisdiction over private respondent who, giving his address as No. 381 Bush
Street, San Francisco, California, authorized his attorneys in the divorce case, Karp &
Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding
that there were neither community property nor community obligations. 3 As explicitly
stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD
LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear on
my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx 4
There can be no question as to the validity of that Nevada divorce in any of the States
of the United States. The decree is binding on private respondent as an American
citizen. For instance, private respondent cannot sue petitioner, as her husband, in any
State of the Union. What he is contending in this case is that the divorce is not valid
and binding in this jurisdiction, the same being contrary to local law and public policy.
16
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 3 Annex "Y", Petition for Certiorari.
5 only Philippine nationals are covered by the policy against absolute divorces the same
being considered contrary to our concept of public police and morality. However, aliens 4 p. 98, Rollo.
may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. 6 In this case, the divorce in Nevada released 5 "Art. 15. Laws relating to family rights and duties or to the status, condition
private respondent from the marriage from the standards of American law, under which and legal capacity of persons are binding upon citizens of the Philippines, even though
divorce dissolves the marriage. As stated by the Federal Supreme Court of the United living abroad.
States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
6 cf. Recto vs. Harden, 100 Phil. 427 [1956]; Paras, Civil Code, 1971 ed., Vol. I,
The purpose and effect of a decree of divorce from the bond of matrimony by a court p. 52; Salonga, Private International Law, 1979 ed., p. 231."
of competent jurisdiction are to change the existing status or domestic relation of
husband and wife, and to free them both from the bond. The marriage tie when thus
severed as to one party, ceases to bind either. A husband without a wife, or a wife
without a husband, is unknown to the law. When the law provides, in the nature of a
penalty. that the guilty party shall not marry again, that party, as well as the other, is
still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. As he is bound by the Decision of his
own country's Court, which validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights
to conjugal property. She should not be discriminated against in her own country if the
ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to

dismiss the Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ.,
concur.

Footnotes

1 Sanchez vs. Zosa, 68 SCRA 171 (1975); Malit vs. People, 114 SCRA 348
(1982).
2 U.S.T. vs. Hon. Villanueva, et al., 106 Phil. 439 (1959).

17
PILAPIL v. IBAY-SOMERA, 174 SCRA 653 JUNE 30, 1989
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal
of Manila; and ERICH EKKEHARD GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute
divorce, only to be followed by a criminal infidelity suit of the latter against the former,
provides Us the opportunity to lay down a decisional rule on what hitherto appears to
be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and
private respondent Erich Ekkehard Geiling, a German national, were married before the
Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the couple lived together for
some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on
April 20, 1980. 1
Thereafter, marital discord set in, with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated
in private respondent initiating a divorce proceeding against petitioner in Germany
before the Schoneberg Local Court in January, 1983. He claimed that there was failure
of their marriage and that they had been living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and
separation of property before the Regional Trial Court of Manila, Branch XXXII, on
January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the ground of failure of marriage of the
spouses. The custody of the child was granted to petitioner. The records show that
under German law said court was locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce decree,
private respondent filed two complaints for adultery before the City Fiscal of Manila
alleging that, while still married to said respondent, petitioner "had an affair with a
certain William Chia as early as 1982 and with yet another man named Jesus Chua
sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the ground of insufficiency
of evidence. 5 However, upon review, the respondent city fiscal approved a resolution,
dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-
52435, was assigned to Branch XXVI presided by the respondent judge; while the other
case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as
Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of
the same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that
the aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal
Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave
due course to both petitions and directed the respondent city fiscal to inform the
Department of Justice "if the accused have already been arraigned and if not yet
arraigned, to move to defer further proceedings" and to elevate the entire records of
both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and
to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz
suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent
judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April
6, 1987. Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435
until after the resolution of the petition for review then pending before the Secretary
of Justice. 11 A motion to quash was also filed in the same case on the ground of lack
of jurisdiction, 12 which motion was denied by the respondent judge in an order dated
September 8, 1987. The same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while
the petitioner refused to be arraigned. Such refusal of the petitioner being considered
by respondent judge as direct contempt, she and her counsel were fined and the former
was ordered detained until she submitted herself for arraignment. 13 Later, private
respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and
prohibition, with a prayer for a temporary restraining order, seeking the annulment of
the order of the lower court denying her motion to quash. The petition is anchored on
the main ground that the court is without jurisdiction "to try and decide the charge of
adultery, which is a private offense that cannot be prosecuted de officio (sic), since the
purported complainant, a foreigner, does not qualify as an offended spouse having
obtained a final divorce decree under his national law prior to his filing the criminal
complaint." 15
18
On October 21, 1987, this Court issued a temporary restraining order enjoining the
respondents from implementing the aforesaid order of September 8, 1987 and from
further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid petitions for review and,
upholding petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four
other crimes against chastity, cannot be prosecuted except upon a sworn written
complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not
merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court
over the offense is vested in it by the Judiciary Law, the requirement for a sworn written
complaint is just as jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction
to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage
the person who can legally file the complaint should be the offended spouse, and
nobody else. Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of adultery and
concubinage by the parents, grandparents or guardian of the offended party. The so-
called exclusive and successive rule in the prosecution of the first four offenses above
mentioned do not apply to adultery and concubinage. It is significant that while the
State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure
with the power to initiate the criminal action for a deceased or incapacitated victim in
the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in
default of her parents, grandparents or guardian, such amendment did not include the
crimes of adultery and concubinage. In other words, only the offended spouse, and no
other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action,
it necessarily follows that such initiator must have the status, capacity or legal
representation to do so at the time of the filing of the criminal action. This is a familiar
and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the complaint or
petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not
mean that the same requirement and rationale would not apply. Understandably, it
may not have been found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of the Philippines, the
offended party being merely the complaining witness therein. However, in the so-called
"private crimes" or those which cannot be prosecuted de oficio, and the present
prosecution for adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to refrain therefrom, is a
matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer
to suffer the outrage in silence rather than go through the scandal of a public trial. 20
Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus
presupposes that the marital relationship is still subsisting at the time of the institution
of the criminal action for, adultery. This is a logical consequence since the raison d'etre
of said provision of law would be absent where the supposed offended party had ceased
to be the spouse of the alleged offender at the time of the filing of the criminal case.
21
In these cases, therefore, it is indispensable that the status and capacity of the
complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist as of the time he initiates
the action. It would be absurd if his capacity to bring the action would be determined
by his status before or subsequent to the commencement thereof, where such capacity
or status existed prior to but ceased before, or was acquired subsequent to but did not
exist at the time of, the institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without the legal capacity
to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the
specific issue as to when precisely the status of a complainant as an offended spouse
must exist where a criminal prosecution can be commenced only by one who in law
can be categorized as possessed of such status. Stated differently and with reference
to the present case, the inquiry ;would be whether it is necessary in the commencement
of a criminal action for adultery that the marital bonds between the complainant and
the accused be unsevered and existing at the time of the institution of the action by
the former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in
pari materia with ours, yields the rule that after a divorce has been decreed, the
innocent spouse no longer has the right to institute proceedings against the offenders
where the statute provides that the innocent spouse shall have the exclusive right to
institute a prosecution for adultery. Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have no legal effect on the
prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that —
'No prosecution for adultery can be commenced except on the complaint of the husband
or wife.' Section 4932, Code. Though Loftus was husband of defendant when the
offense is said to have been committed, he had ceased to be such when the prosecution
was begun; and appellant insists that his status was not such as to entitle him to make
the complaint. We have repeatedly said that the offense is against the unoffending
spouse, as well as the state, in explaining the reason for this provision in the statute;
19
and we are of the opinion that the unoffending spouse must be such when the
prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are
convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by this is meant that
he is still married to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private respondent is concerned 23 in
view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was
granted by a United States court between Alice Van Dornja Filipina, and her American
husband, the latter filed a civil case in a trial court here alleging that her business
concern was conjugal property and praying that she be ordered to render an accounting
and that the plaintiff be granted the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the States
of the United States. The decree is binding on private respondent as an American
citizen. For instance, private respondent cannot sue petitioner, as her husband, in any
State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code,
only Philippine nationals are covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and morality. However, aliens
may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no longer the
husband of petitioner, had no legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before
the decree of divorce for lack of knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the divorce proceeding, he
obviously knew that there would no longer be a family nor marriage vows to protect
once a dissolution of the marriage is decreed. Neither would there be a danger of
introducing spurious heirs into the family, which is said to be one of the reasons for
the particular formulation of our law on adultery, 26 since there would thenceforth be
no spousal relationship to speak of. The severance of the marital bond had the effect
of dissociating the former spouses from each other, hence the actuations of one would
not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by
private respondent. In applying Article 433 of the old Penal Code, substantially the
same as Article 333 of the Revised Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court merely stated that "the lawmakers
intended to declare adulterous the infidelity of a married woman to her marital vows,
even though it should be made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that
the marriage is void ab initio is equivalent to stating that it never existed. There being
no marriage from the beginning, any complaint for adultery filed after said declaration
of nullity would no longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is the situation where
the criminal action for adultery was filed before the termination of the marriage by a
judicial declaration of its nullity ab initio. The same rule and requisite would necessarily
apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited,
27 must suffer the same fate of inapplicability. A cursory reading of said case reveals
that the offended spouse therein had duly and seasonably filed a complaint for adultery,
although an issue was raised as to its sufficiency but which was resolved in favor of
the complainant. Said case did not involve a factual situation akin to the one at bar or
any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE
and another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for
lack of jurisdiction. The temporary restraining order issued in this case on October 21,
1987 is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German
absolute divorce as valid also in the Philippines, the fact is that the husband in the
instant case, by the very act of his obtaining an absolute divorce in Germany can no
longer be considered as the offended party in case his former wife actually has carnal
knowledge with another, because in divorcing her, he already implicitly authorized the
woman to have sexual relations with others. A contrary ruling would be less than fair
20
for a man, who is free to have sex will be allowed to deprive the woman of the same
privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered
the absolute divorce between the American husband and his American wife as valid
and binding in the Philippines on the theory that their status and capacity are governed
by their National law, namely, American law. There is no decision yet of the Supreme
Court regarding the validity of such a divorce if one of the parties, say an American, is
married to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of the National law doctrine, he considers the absolute divorce as
valid insofar as the American husband is concerned but void insofar as the Filipino wife
is involved. This results in what he calls a "socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the correct view. While under
the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity)
is when the foreign law will work an injustice or injury to the people or residents of the
forum. Consequently since to recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite
the fact that the husband was an American can with a Filipino wife because in said case
the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in
issue.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German
absolute divorce as valid also in the Philippines, the fact is that the husband in the
instant case, by the very act of his obtaining an absolute divorce in Germany can no
longer be considered as the offended party in case his former wife actually has carnal
knowledge with another, because in divorcing her, he already implicitly authorized the
woman to have sexual relations with others. A contrary ruling would be less than fair
for a man, who is free to have sex will be allowed to deprive the woman of the same
privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered
the absolute divorce between the American husband and his American wife as valid
and binding in the Philippines on the theory that their status and capacity are governed
by their National law, namely, American law. There is no decision yet of the Supreme
Court regarding the validity of such a divorce if one of the parties, say an American, is
married to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of the National law doctrine, he considers the absolute divorce as
valid insofar as the American husband is concerned but void insofar as the Filipino wife
is involved. This results in what he calls a "socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the correct view. While under
the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity)
is when the foreign law will work an injustice or injury to the people or residents of the
forum. Consequently since to recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite
the fact that the husband was an American can with a Filipino wife because in said case
the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in
issue.
Footnotes
1 Rollo, 5, 29.
2 Ibid., 6, 29.
3 Ibid., 7.
4 Ibid., 7, 29-30; Annexes A and A-1, Petition.
5 Ibid., 7, 178.
6 Ibid., 8; Annexes B, B-1 and B-2, id.
7 Ibid., 8-9, 178.
8 Ibid., 9, 178; Annex C, id.
9 Ibid., 9-10, 178; Annex D, id.
10 Ibid., 9; Annexes E and E-1, id.
11 Ibid., 10; Annex F, id.
12 Ibid., 9, 179; Annex G, id.
21
13 Ibid., 10 Annex H, id.

14 Ibid, 105.

15 Ibid., 11.

16 Ibid., 311-313.

17 Cf. Sec. 5, Rule 110, Rules of Court.

18 People vs. Mandia, 60 Phil. 372, 375 (1934); People vs. Zurbano, 37 SCRA
565, 569 (1971); People vs. Lingayen, G.R. No. 64556, June 10, 1988.

19 Valdepeñas vs. People, 16 SCRA 871 (1966); People vs. Babasa, 97 SCRA 672
(1980).

20 Samilin vs. Court of First Instance of Pangasinan, 57 Phil. 298 (1932); Donio-
Teves, et al. vs. Vamenta, et al., 133 SCRA 616 (1984).

21 Rollo, 289.

22 2 Am. Jur. 2d., 973 citing State vs. Loftus, 104 NW 906, 907; Re Smith, 2
Okla. 153, 37 p. 1099; State vs. Russell, 90 Iowa 569, 58 NW 915.

23 Recto vs. Harden, 100 Phil. 427 (1956).

24 139 SCRA 139,140 (1985).

25 The said pronouncements foreshadowed and are adopted in the Family Code
of the Philippines (Executive Order No. 209, as amended by Executive Order No. 227,
effective on August 3, 1988), Article 26 whereof provides that "(w)here marriage
between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to re under Philippine law.

26 U.S. vs. Mata, 18 Phil. 490 (1911).

27 Footnote 20, ante.

22
J. Human Relations
PEOPLE v. RITTER, 194 SCRA 690 MARCH 5, 1991
THIRD DIVISION
G.R. No. 88582 March 5, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HEINRICH S. RITTER, accused-appellant,
The Solicitor General for plaintiff-appellee.
Esteban B. Bautista for accused-appellant.
GUTIERREZ, JR., J.:
The appellant challenges his conviction of the crime involving a young girl of about 12
years old who had been allegedly raped and who later died because of a foreign object
left inside her vaginal canal.
Heinrich Stefan Ritter was charged with the crime of rape with homicide under an
information which reads:
That on or about the tenth (10th day of October, 1986 in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with lewd design and with intent to kill one Rosario Baluyot, a woman under
twelve (12) years of age, did then and there wilfully, unlawfully and feloniously have
carnal knowledge of said Rosario Baluyot and inserted a foreign object into the vaginal
canal of said Rosario Baluyot which caused her death shortly thereafter, to the damage
and prejudice of her relatives. (66)
When arraigned, the accused pleaded "Not Guilty". Thereafter, the case was set for
trial on the merits.
To prove the guilt of the accused, the prosecutor presented the following witnesses,
namely: (1) Jessie Ramirez, (2) Maria Burgos y Turla, (3) P/Cpl. Mariano Victoria, (4)
Policarpio Baluyot, (5) Dr. Reino Rosete, (6) Sumulong Daniel, (7) Jessica Herrera, (8)
Sister Eva Palencia, (9) Conrado Salonga, (10) Dr. Devonne Loop, (11) Dr. Leo Cruz,
(12) Paul Maclor, (13) Aida Sarmiento, (14) Patricia Prollamanta (15) Mel Santos, (16)
Lorna Limos, (17) Eduard Lee Bungarner, (18) Ronaldo Marquez, (19) Tom Bonte, (20)
2nd Asst. City Fiscal Nini Alcala, (21) lst Asst. City Fiscal Dorentino Z. Floresta, (22)
Corazon Caber, (23) Rodolfo Mercurio and (24) Fe Israel.
On the other hand, the defense offered in evidence Exhibits "1" to "24" and the
testimonies of (1) Heinrich S. Ritter, (2) Father Roque Villanueva, (3) Angelita Amulong
(4) Gaspar Alcantara, (5) Dr. Val Barcinal and (6) Dr. Pedro C. Solis.
The facts of the case upon which the lower court based its finding of guilt beyond
reasonable doubt are summarized in its decision, as follows:
The people's evidence show that on October 10, 1986 about midnight, accused Heinrich
Stefan Ritter brought a boy and girl namely: Jessie Ramirez and Rosario Baluyot inside
his hotel room at MGM Hotel along Magsaysay Drive, Olongapo City. These two (2)
children were chosen from among a bunch of street children. Once inside the hotel
room accused told them to take a bath. Jessie Ramirez, alias "Egan", was the first to
take a bath and when he came out Rosario Baluyot went to the bathroom to do the
same. While Rosario Baluyot was inside the bathroom, accused Ritter took out some
pictures depicting dressed up young boys, and put them on top of the table. Other
things which were taken out and placed on top of a table were three (3) other objects
which he described as like that of a vicks inhaler. One of these objects the accused
played with his hands and placed it on his palms. The color of which is grayish blue
which turned out later to be the foreign object which was inserted inside the vagina of
Rosario Baluyot. The other objects were later established to be anti-nasal inhalers
against pollution purchased by the accused in Bangkok when he went there as a tourist.
While Rosario was in the bathroom, accused told Ramirez to lay down on bed, and so
did the accused. He then started masturbating the young boy and also guided the boy's
hand for him to be masturbated, so that they masturbated each other, while they were
both naked, and he gave Jessie Ramirez an erection. When Rosario Baluyot came out
of the bathroom, she was told to remove her clothes by accused and to join him in
bed. The accused then placed himself between the two (2) children and accused started
fingering Rosario.
At this time, Ramirez was already sleepy, but Rosario touched him to call his attention.
He looked, and he saw accused placing his penis against the vagina of Rosario and that
he was trying to penetrate the vagina but it would not fit. After what he saw, Ramirez
did not anymore bother to look because he was sleepy and fell asleep.
The following morning, the accused, whom the juveniles described as an "American,
paid Ramirez alias "Egan" P200.00 and Rosario P300.00. He then left them in the hotel.
After the American left, they went downstairs, and Rosario told Egan that the American
inserted something in her vagina. But they could not do anything anymore, because
the American had already left, and neither did they report the matter to the police.
Sometime the following day, Jessie saw Rosario and he asked her whether the object
was already removed from her body and Rosario said "Yes". However, Jessie Ramirez
claimed that on the evening of that same date, he saw Rosario and she was complaining
of pain in her vagina and when Egan asked her, she said that the foreign object was
not yet removed. Then there was another occasion wherein Jessie was summoned and
when he came he saw Rosario writhing in pain and when he tried to talk to Rosario she
scolded him with defamatory remarks. Thereafter, he did not see Rosario anymore
because he already went home to his aunt's house who resided at Barrio Barretto and
resumed his studies in the primary grades.
On May 14, 1987, Gaspar Alcantara, a defense witness, while garbage scavenging at
Lot 21, near the gate of the U.S. Naval Base saw Rosario at Magsaysay Drive near the
Happy Bake Shop near Lot 21, being ogled by people because Rosario's skirt was
23
bloodied and she was unconscious and foul smelling. Since nobody helped Rosario, he
took pity on her condition and brought her to the Olongapo City General Hospital in an
unconscious condition, via jeepney. He went to the Information desk and he was the
one who gave the personal circumstances of Rosario as to her name, age, her residence
as Nagbakulaw, Lower Kalaklan, and Gaspar Alcantara signed as "guardian" of Rosario,
while Rosario was already in the emergency room. Although Gaspar Alcantara denied
that he did not know the name of Rosario Baluyot when he brought her to the hospital,
this is belied by the testimony of the Information clerk Lorna Limos, who was then on
duty. Limos testified that it was Alcantara who supplied the personal circumstances of
Rosario. The Court gives more credence to the testimony of Miss Limos as against
Gaspar Alcantara who became a defense witness, for the reason that through his own
testimony, Gaspar Alcantara claimed that even prior to May 14, 1987, he had already
known Rosario Baluyot for more than one (1) year, because he has seen the said girl
go to the house of his twin brother, Melchor Alcantara, who is his immediate neighbor.
Rosario used to visit a girl by the name of "Nora" who was then in the custody of his
brother. His brother Melchor was also living with their mother, brother and sister-in-
law and their two (2) children in his house. Rosario as per Gaspar's testimony even
stays for one week or a few days at his brother's house when she visits Nora. So the
Court can safely assume that of all the more than one (1) year that he had regularly
seen Rosario at his brother's house, he must have already did come to know the name
of Rosario Baluyot including her age. In his testimony in Court he stated that he even
asked Rosario for movie and softdrinks money which can safely be concluded that he
knows her very well. It is against normal behavior especially to a Filipino who have a
characteristic of curiosity not to have found out the real name of the girl he claims to
know only as "Tomboy".
While Rosario Baluyot was confined at the Olongapo City General Hospital, nobody was
attending to her since she is a street child, having stowed away from the custody of
her grandmother. Three (3) good samaritans who belong to religious and civic
organizations, in the persons of Jessica Herrera, Fe Israel and Sr. Eva Palencia, in one
of their missions in the hospital chanced upon Rosario Baluyot who was all alone with
no relatives attending to her and after finding out that she was only 12 years old
decided to help her. After a short interview with Rosario, regarding her name and age
only because she clamped up about her residence and her relatives, they decided to
help her by providing her the medicine she needed during her confinement in readiness
for an operation. It was Fe Israel who was able to get the name and age of Rosario
Baluyot from Rosario Baluyot herself when she saw her for the first time. For Fe Israel,
the age of Rosario Baluyot was an important factor because their program assisted only
indigent patients from infants up to 13 years old.
Rosario's first ailment at the Olongapo City General Hospital was loose bowel movement
and vomiting, which was first suspected as gastro-enteritis, but which came out later
as symptoms of peritonitis due to a massive infection in the abdominal cavity.
Subsequently, on May 17, 1987, after she was examined by the physicians at the
hospital, it was found out that there was a foreign object lodged in her vaginal canal
and she had vaginal discharge tinged with blood and foul smelling odor emanating from
her body. One of the doctors who attended to her was Dr. Barcinal, an OB-GYNE. Dr.
Barcinal tried to extract the foreign object by means of a forceps, but several attempts
proved futile because said object was deeply embedded in the vaginal canal and was
covered by tissues. Her abdomen was enlarged, tender and distended, symptoms of
peritonitis. The patient was feverish and incoherent when she was scheduled for
operation on May 19, 1987, after the first attempt for an operation on May 17 was
aborted allegedly because the consent of Dr. Reino Rosete, the hospital director was
not obtained. The surgeon who operated on her was Dr. Rosete himself. He testified
that Rosario had to be operated even in that condition in order to save her life. Her
condition was guarded. This was corroborated by Dr. Leo Cruz, the anesthesiologist
during Rosario's operation. It was in the evening of May 19 at about 7:00 p.m. when
Dr. Rosete opened her abdomen by making a 5 inch incision on her stomach. He found
out that the fallopian tubes were congested with pus and so with the peritonieum, and
the pelvic cavity, and patches of pus in the liver, although the gallbladder and kidney
appeared to have septicemia, poisoning of the blood. The peritonitis and septicemia
were traced to have been caused through infection by the foreign object which has
been lodged in the intra-vaginal canal of Rosario. The foreign object which was already
agreed upon by both parties that it is a portion of a sexual vibrator was extracted from
the vagina of Rosario while under anesthesia. Said object was coated with tissues, pus
and blood. Dr. Rosete gave it to the assisting surgical nurse for safekeeping and gave
instructions to release it to the authorized person. This object was shown by the nurse
to Dr. Leo Cruz. Dr. Rosete considered the operation successful and the patient was
alive when he left her under Dr. Cruz. Dr. Cruz stayed with said patient in the ward for
about 30 minutes and thereafter he left. The following day, Rosario got serious and it
was Dr. Leo Cruz who pronounced her death at 2:00 to 2:15 in the afternoon of May
20, 1987.
Thereafter, a death certificate was prepared under the direction of Dr. Cruz which was
indicated therein that the cause of death was cardio-respiratory arrest, secondary to
septicemia caused by the foreign object lodged in the intra uteral vaginal canal of
Rosario Baluyot.
The foreign object was washed by nurse Obedina, then placed it in a transparent small
jar and labelled "Rosario Baluyot". Jessica Herrera asked the nurse for the foreign
object, and it was given to her under proper receipt. Herrera then showed the same to
the persons who helped financially Rosario's case, and afterwards she gave it to Sister
Eva Palencia. Sis. Palencia was in custody of the said object until Mr. Salonga came
and asked her for the object.
After Rosario Baluyot died, Sis. Palencia and a companion went to Gaspar Alcantara to
ask him in locating the relatives of Rosario. They were able to trace Rosario's
grandmother, Mrs. Maria Burgos Turla, and informed her that her granddaughter was
already dead and lying in state at St. Martin Funeral Parlor. Mrs. Turla went there with
her son, who shouldered all the burial expenses for Rosario.
Subsequently, Sis. Palencia, Fr. Cullens and Mr. Salonga came to her residence at Sta.
Rita and asked her if she was interested in filing a case against the person who caused
the death of her granddaughter. Of course she agreed. Hence, she was brought to the
Fiscal's (City) Office to file the same.
24
After the case was filed against the herein accused, Atty. Edmundo Legaspi with his
messenger came to her house and told her that the accused was willing to settle the
case, but that accused Ritter had only P15,000.00. The old woman did not accept it
because she knows that the accused is liable to pay damages anyway. After that, she
received a letter from Atty. Legaspi telling her to get a lawyer for her case. By this time,
Mrs. Turla, who wanted to have the case settled once and for all giving the reason that
she can no longer bear the situation, sent her nephew, Conrado Marcelo to Atty.
Legaspi. Her nephew obliged and told her that she will be paid at the office of Atty.
Legaspi. On a date not clear in the records, she went with her nephew Conrado Marcelo,
and Roberto Sundiam, an assistant barangay tanod of Sta. Rita, and while they were
there, she saw Ritter arrive at the law office. Ritter and Atty. Legaspi talked at the
office near the bathroom, and thereafter Ritter left. After he left, Atty. Legaspi told
Rosario's grandmother that they are willing to settle for P20,000.00, but that Ritter left
only P15,000.00, so she received the money with the understanding that there was a
balance of P5,000.00 yet. She was made to sign a statement, and she was asked to
change the age of her granddaughter Rosario. With the document prepared, she and
the lawyer's messenger went to the Fiscal's office to have it subscribed, and was
subscribed before an assistant city fiscal. But the balance of P5,000.00 was not paid,
because later on Atty. Legaspi became the OIC of Olongapo City and he could no longer
attend to it. Atty. Legaspi, during one of the hearings before the Court even apologized
to her.
As to the case, P/Cpl. Marino Victoria, as criminal investigator of Station "A", was
directed by Col. Daos, Station Commander of the Olongapo Police Department to make
a follow up of the case of Rosario Baluyot. On the other hand, since the suspect who
inserted the foreign object inside Rosario's vagina was said to be an American, the
NISRA Subic Naval Base also conducted its investigation headed by criminal investigator
Agent Conrado Salonga. Coordinating with the local police and with Sister Eva Palencia,
since Rosario was a street child at Magsaysay Drive, they rounded up about 43 street
children and from some of them they learned that Rosario Baluyot was with Jessie
Ramirez with an American at the MGM Hotel when the foreign object was inserted in
her vagina. After finding Jessie Ramirez, they asked him about Rosario Baluyot. They
found out that indeed he was with Rosario Baluyot sometime before Christmas of 1986
with an American, who brought them to the said hotel. Jessie Ramirez was taken inside
the U.S. Naval Base, Olongapo City and took his statement. Then he was brought to
Mr. Edward Lee Bungarner, a cartographer, and out of the description supplied by
Ramirez, a composite drawing was photocopied and copies thereof were distributed to
the local police and to the sentries at the gate of the U.S. Naval Base. Some American
servicemen who had resemblance to the composite drawing were photographed and
these were shown to Jessie Ramirez, but the result was negative. Aside from the
physical description by Ramirez about the appearance of the suspect, he also described
him as having the mannerisms of a homo-sexual.
After obtaining information that foreign homo-sexuals frequented Ermita, Manila, and
thinking that the so-called American may be European or Australian national, the team
composed of Agent Salonga, Mr. Heinsell, P/Cpl. Marino Victoria and P/Cpl. Andres
Montaon, Jessie Ramirez and Michael Johnson, another juvenile, proceeded to Manila.
They first went to the Manila NISRA Office, and thereafter checked in a hotel. That was
on September 23, 1987. On the first night, they went to Luneta Park where foreign
homo-sexuals were said to be frequenting, but the result was negative. Then on
September 25, at about 11:00 p.m., while they were standing at the corner of A. Mabini
and M.H. del Pilar Street, a male caucasian who looked like a homo-sexual stopped by
admiringly infront of the two (2) juveniles, Ramirez and Johnson. Jessie Ramirez then
reported to Mr. Salonga that this foreigner had a similarity with the American suspect,
so the two minors were instructed to follow the foreigner and to strike a conversation.
They did, and when they returned, Jessie Ramirez told them that indeed the said
foreigner was the one who brought him and Rosario Baluyot to the MGM Hotel. Bobby
Salonga told Ramirez that this foreigner had no beard while the one previously
described by Ramirez had a beard. Jessie Ramirez told them that maybe he have just
shaved it off. The said caucasian then entered a bar, and after several minutes he came
out, and Jessie Ramirez upon his signal with his thumbs up, as a signal to confirm that
the said foreigner is the suspect, arrested Ritter and brought him to the Manila Western
Police District. It could be mentioned at this stage that in this operation they were
accompanied by two (2) policemen from the Western Police District. The foreigner was
hand cuffed and was told that he was a suspect for Rape with Homicide. After the
arrest, they first went to the pension house of the suspect in Ermita, Manila to get his
shoulder bag which contained his personal belongings, and from there they brought
him to the Western Police Department. At the said police headquarters, they were
allowed a permissive search by the foreigner of his clutch bag and his small shoulder
bag and confiscated his passport, I.D., 3 inhalers, money in the form of dollars and
travellers checks amounting about $1,500.00 and about P100.00, all duly receipted for.
From the passport they learned that the suspect's name was Heinrich Stefan Ritter, an
Austrian national. During the questioning of Hitter, Salonga and his team already left
the headquarters and went to their hotel, because at this time Jessie Ramirez was
already shaking with fear after he identified the accused.
The following day, they brought the accused to Olongapo and was detained at the
Olongapo City Jail. The case for Rape with Homicide was filed against him at the City
Fiscal of Olongapo. At the preliminary investigation, accused was assisted by his own
counsel. The private complainant was Maria Burgos Turla because it was she who had
custody of Rosario Baluyot after her mother Anita Burgos died on January 12, 1982,
and their father Policarpio Baluyot had left them under her custody. When this case
was filed, the father's whereabouts was unknown, and he only appeared when the trial
of this case before the Court was already in progress. And upon his (Policarpio Baluyot)
own admission, he only learned about the death of his daughter Rosario Baluyot from
the newspaper, long after Rosario was already gone.
The defense tried to dislodge the case by claiming that there could be no crime of Rape
with Homicide because the suspect was described as an American while Ritter is an
Austrian. Also advanced by the defense is that, it is a case of mistaken identity. That
Rosario Baluyot was at the time of the commission of the offense, already more than
13 years old, she having been born on December 26, 1973 as per baptismal certificate,
wherein it appears that Rosario Baluyot was baptized on December 25, 1974 and was
born on December 26, 1973 as testified to by Fr. Roque Villanueva of St. James Parish
Church who issued the Baptismal Certificate, having custody and possession of the
book of baptism for the year 1975, but admitted that he had no personal knowledge
25
about the matters or entries entered therein. Likewise, the defense's stand is that the
accused cannot be liable for Homicide because a vibrator is not a weapon of death but
it is a thing for the purpose of giving sexual pleasure, and that the death of Rosario
Baluyot was due to the incompetence of Dr. Rosete, the surgeon and Director of the
Olongapo City General Hospital, who operated on her. (Rollo, pp. 109-116)
On March 29, 1989, the trial court rendered its decision. The dispositive portion of the
decision reads as follows:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court holds, that the prosecution
has established the GUILT of the accused beyond reasonable doubt for the crime of
Rape with Homicide as defined and penalized in Art. 335 No. 3 of the Revised Penal
Code, and hereby sentences HEINRICH STEFAN RITTER to a penalty of RECLUSION
PERPETUA, to indemnify the heirs of the deceased in the sum of SIXTY THOUSAND
PESOS (P60,000.00) Philippine Currency, and TEN THOUSAND PESOS (Pl0,000.00) by
way of attorney's fees to the private prosecutors and to pay the costs. (Rollo, p. 126)
The accused now comes to this Court on the following assigned errors allegedly
committed by the court:
I
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT
THE ALLEGED OFFENSE WAS COMMITTED ON OCTOBER 10, 1986 AND THAT IT WAS
ACCUSED-APPELLANT WHO COMMITTED IT.
II
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN FINDING THAT
ROSARIO BALUYOT WAS LESS THAN TWELVE (12) YEARS OLD WHEN THE ALLEGED
OFFENSE WAS COMMITTED AND IN HOLDING THAT THERE WAS RAPE WITH
HOMICIDE.
III
THE TRIAL COURT GRAVELY ERRED AND ABUSED ITS DISCRETION IN GIVING
CREDENCE TO AND NOT REJECTING THE PROSECUTION'S EVIDENCE AND IN NOT
UPHOLDING THAT OF THE DEFENSE AND ACQUITTING THE ACCUSED.
Inasmuch as it is the bounden duty of this Court to affirm a judgment of conviction
only if the guilt of the accused has been proved beyond reasonable doubt, it behooves
us to exert the most painstaking effort to examine the records in the light of the
arguments of both parties if only to satisfy judicial conscience that the appellant indeed
committed the criminal act (See People v. Villapaña, 161 SCRA 73 [1988]).
The appellant was convicted by the trial court of the crime of rape with homicide of a
young girl who died after the rape because of a foreign object, believed to be a sexual
vibrator, left inside her vagina.
As stated by the trial court one crucial issue in this case is the age of the victim—
whether or not Rosario Baluyot was less than twelve (12) years old at the time the
alleged incident happened on October 10, 1986. The age is important in determining
whether or not there was statutory rape, Article 335 of the Revised Penal Code defines
the third type of rape as having carnal knowledge of a woman under 12 years of age,
in which case force, intimidation, deprivation of reason or unconscious state do not
have to be present.
The trial court found that Rosario was below 12 years old when she was sexually
abused by the accused and, therefore, rape was committed inspite of the absence of
force or intimidation.
In resolving the issue, the trial court put great weight on the testimonies of the victim's
grandmother and father who testified that she was born on December 22, 1975. These
oral declarations were admitted pursuant to then Rule 130, Section 33 of the Rules of
Court where, in the absence of a birth certificate, the act or declaration about pedigree
may be received in evidence on any notable fact in the life of a member of the family.
Since birth is a matter of pedigree within the rule which permits the admission of
hearsay evidence, oral declarations are therefore admissible as proof of birth (Decision,
p. 54).
The grandmother, Maria Burgos Turla, testified that she remembered Rosario's birth
date because her brother died in Pampanga and her daughter, Anita (Rosario's mother)
was the only one who failed to attend the funeral because the latter has just given
birth allegedly to Rosario (T.S.N. p. 8, Jan. 13, 1988).
The father likewise testified that as far as he could remember, Rosario was born on
December 22, 1975 (T.S.N., p. 4, Jan. 27, 1988) and he was certain that Rosario was
more than one (1) year old when she was baptized (T.S.N., p. 45, Jan. 27, 1988).
The trial court further added that their testimony is supported by the clinical record and
the death certificate indicating that she was 12 years old when she was admitted at
the Olongapo City General Hospital for treatment. The age was supplied by Rosario's
alleged guardian, Gaspar Alcantara to the hospital's clinical record clerk, Lorna Limos.
Fe Israel, a social worker who interviewed Rosario Baluyot also testified that she was
told by Rosario that she was 12 years old. The trial court accepted this as adequate
evidence of the truth. Moreover, Jessie Ramirez, the principal witness in this case
declared that he was born on September 5, 1973 and that he was older than Rosario
Baluyot. Therefore, since he was 13 years old in 1986, Rosario must have been less
than 12 yeas old in 1986. (Decision, p. 55)
The trial court concluded that the oral declarations of the grandmother and father
supported by other independent evidence such as the clinical record, death certificate
and the testimonies of Fe Israel and Jessie Ramirez, rendered the baptismal certificate
presented by the defense without any probative or evidentiary value. (Decision, p. 55)
The findings of the trial court with respect to Rosario Baluyot's age cannot stand the
application of evidentiary rules.
26
The trial court relied on Section 33, Rule 130 (now Section 40 of Rule 130 of the 1989
Revised Rules of Court).
For oral evidence to be admissible under this Rule, the requisites are:
(1) That the declarant must be dead or outside of the Philippines or unable to
testify;
(2) That pedigree is in issue;
(3) That the person whose pedigree is in question must be related to the declarant
by birth or marriage;
(4) That the declaration must be made before the controversy occurred or ante
litem motam; and
(5) That the relationship between the declarant and the person whose pedigree
is in question must as a general rule be shown by evidence other than such act or
declaration.
These requirements were not satisfied by the evidence for the prosecution nor do the
declarations fall within the purview of the rule.
The victim's grandmother and father whose declarations regarding Rosario's age were
admitted by the trial court are both alive, in the Philippines and able to testify as they
both did testify in court. Their declarations were made at the trial which is certainly not
before the controversy arose. The other witnesses who testified on Rosario's age are
not members of the victim's family. The testimonies of Rosario's relatives must be
weighed according to their own personal knowledge of what happened and not as
hearsay evidence on matters of family history.
At this point, we find the evidence regarding Rosario's age of doubtful value.
The trial court justified the admissibility of the grandmother's testimony pursuant to
the ruling laid down in U.S. v. Bergantino, (3 Phil., 118 [1903]) where the Court
accepted the testimony of the mother that her daughter was 14 years old and 4 months
old. The mother stated that she knew the age because the child was born about the
time of the cholera epidemic of 1889. This was not hearsay, but came from one who
had direct knowledge of the child's birth.
It is however, equally true that human memory on dates or days is frail and unless the
day is an extraordinary or unusual one for the witness, there is no reasonable assurance
of its correctness. (People v. Dasig 93 Phil. 618, 632 [1953])
With respect to the grandmother's testimony, the date of the brother's death or funeral
was never established, which indicates that the day was rather insignificant to be
remembered. The father's declaration is likewise not entirely reliable. His testimony in
court does not at all show that he had direct knowledge of his daughter's birth. He was
certain though that she was more than one (1) year old at the time she was baptized.
The other witnesses are not at all competent to testify on the victim's age, nor was
there any basis shown to establish their competence for the purpose. The clinical
records were based on Gaspar Alcantara's incompetent information given when he
brought the victim to the hospital. Alcantara came to know her only about a year before
her death. He had absolutely no knowledge about the circumstances of Rosario's birth.
The death certificate relied upon by the trial court was merely based on the clinical
records. It is even less reliable as a record of birth.
All the evidence presented by the prosecution showing that Rosario Baluyot was less
than 12 years old at the time of the alleged incident are not adequate to establish the
exact date of birth, much less offset a documentary record showing a different date.
The defense presented Rosario Baluyot's baptismal certificate which the trial court
rejected as being hearsay and of no value. As against the oral declarations made by
interested witnesses establishing Rosario's age to be less than 12 years old, the
evidence on record is more convincing and worthy of belief. (See Filinvest Land, Inc.
v. Court of Appeals, 183 SCRA 664, 673 [1990]).
By virtue of a subpoena duces tecum and ad testificandum, issued by the lower court
to the St. James Parish Church, Subic, Zambales, Fr. Roque Villanueva a Roman
Catholic priest testified and stated that he is the head of said parish. He brought with
him Baptismal Register No. 9 entitled "Liber Baptisnorum", a latin term for baptismal
book or record. On page 151, No. 3 of the said Registry Book, there appears the name
of Rosario Baluyot who was baptized on December 25, 1974, and born on December
26, 1973. Parents are Policarpio Baluyot and Anita Burgos, residents of Subic,
Zambales. Edita R. Milan appears as the only sponsor with Olongapo City as her
address.
In the case of Macadangdang v. Court of appeals (100 SCRA 73 [1980]), we held that:
xxx xxx xxx
In our jurisprudence, this Court has been more definite in its pronouncements on the
value of baptismal certificates. It thus ruled that while baptismal and marriage
certificates may be considered public documents, they are evidence only to prove the
administration of the sacraments on the dates therein specified—but not the veracity
of the status or declarations made therein with respect to his kinsfolk and/or citizenship
(Paa v. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus v. Novero (L-22378,
23 SCRA 1331 [1968]), this Court held that a baptismal certificate is conclusive proof
only of the baptism administered, in conformity with the rites of the Catholic Church by
the priest who baptized the child, but it does not prove the veracity of the declarations
and statements contained in the certificate that concern the relationship of the person
baptized. Such declarations and statements, in order that their truth may be admitted,
must indispensably be shown by proof recognized by law. (At pp. 84-85)
27
In the same light, the entries made in the Registry Book may be considered as entries
made in the course of business under Section 43 of Rule 130, which is an exception to
the hearsay rule. The baptisms administered by the church are one of its transactions
in the exercise of ecclesiastical duties and recorded in a book of the church during the
course of its business. (U.S. v. de Vera, 28 Phil. 105 [1914] Hence, the certificate
(Exhibit "22") presented by the defense that Rosario Baluyot was baptized on
December 25, 1974 may be admitted in evidence as proof of baptism. Policarpio
Baluyot, the victim's father testified that he had in his possession a baptismal certificate
different from the one presented in court. However, no other baptismal record was
ever presented to prove a date different from that brought by the official custodian.
Since the baptismal certificate states that Rosario was baptized on December 25, 1974,
it is therefore highly improbable that Rosario could have been born on December 22,
1975. She could not have been baptized before she was born. Exhibit "22" may be
proof only of baptism but it puts a lie to the declaration that Rosario was born in 1975.
With the father's assertion that Rosario was more than one (1) year old when she was
baptized, we are then more inclined to agree that Rosario was born in 1973 as stated
in the Baptismal Registry.
In the case of People v. Rebancos (172 SCRA 425 [1989]), the Court stated:
xxx xxx xxx
. . . Although no birth certificate was presented because her birth had allegedly not
been registered, her baptismal certificate, coupled by her mother's testimony, was
sufficient to establish that Mary Rose was below twelve years old when she was violated
by Rebancos. (At. p. 426)
Unfortunately, in the instant case, nobody could corroborate the date on a more reliable
document as to Rosario's birth which could serve as sufficient proof that she was born
on December 26, 1973. Therefore, she was more than 12 years old at the time of the
alleged incident on October 10, 1986.
Moreover, it is not incumbent upon the defense to prove Rosario's age. The burden of
proof lies on the prosecution to prove that Rosario was less than 12 years old at the
time of the alleged incident in a charge of statutory rape. The prosecution failed in this
respect.
Since Rosario was not established to have been under 12 years of age at the time of
the alleged sexual violation, it was necessary to prove that the usual elements of rape
were present; i.e. that there was force of intimidation or that she was deprived of
reason or otherwise unconscious in accordance with Article 335 of the Revised Penal
Code.
We agree with the defense that there was no proof of such facts. On the contrary, the
evidence shows that Rosario submitted herself to the sexual advances of the appellant.
In fact, she appears to have consented to the act as she was paid P300.00 the next
morning while her companion, Jessie Ramirez was paid P200.00 (T.S.N. p. 50, January
6, 1988). The environmental circumstances coupled with the testimonies and evidence
presented in court clearly give the impression that Rosario Baluyot, a poor street child,
was a prostitute inspite of her tender age. Circumstances in life may have forced her
to submit to sex at such a young age but the circumstances do not come under the
purview of force or intimidation needed to convict for rape.
In view of these clear facts which the prosecution failed to refute, no rape was
committed. But was Ritter guilty of homicide?
The trial court justified its ruling by saying that the death of the victim was a
consequence of the insertion of the foreign object into the victim's vagina by the
appellant.
We now ask "Was the appellant responsible for the sexual vibrator left inside Rosario's
vagina which led to her death?
The trial court convicted the accused based on circumstantial evidence. Unfortunately,
the circumstances are capable of varying interpretations and are not enough to justify
conviction.
Jessie Ramirez, the principal witness did not actually see the object inserted in Rosario's
vagina. Neither could he identify the object (Exhibit "C-2") taken from Rosario as the
same object which the appellant was holding at that time of the alleged incident.
In his sworn statement given to the police investigator on September 4, 1987, he
answered that:
xxx xxx xxx
T Habang kayo ay nasa loob ng kuwarto ng otel, mayroon ka bang napansin na
inilabas ng kano sa kanyang daladalahan kung mayroon man?
S Ang Amerikano ay may dala-dalang shoulder bag na kulay itim, at napansin
ko na may inilabas siya sa kanyang bag na parang vicks inhaler, na kanyang inamoy-
amoy habang nasa otel kami at pagkatapos niya ay inilapag niya sa lamiseta.
T Ilarawan mo nga sa akin ang bagay na nakita mong inilabas ng Amerikano?
S Ito ay may habang tatlong pulgada at ang takip nito ay may habang dalawang
pulgada. Iyong takip ay bilog na patulis at may tabang mga kalahating pulgada. Hindi
ko napansin ang hugis ng dulo ng bagay na may takip dahil natatakpan ng kamay at
ilong ng Amerikano.
T Ipinakikita ko sa iyo ang isang larawan. Tignan mong mabuti ang larawang
ito at sabihin mo nga sa akin kung makikilala mo ang mga bagay na nasa larawang ito,
na may kinalaman sa nakita mong kinuha ng Amerikano sa kanyang bag?
S Napansin ko na ang kulay asul na bagay sa larawan ay katulad na katulad
noong takip ng bagay na inilabas ng Amerikano sa kanyang bag. Kaya lang ay bakit
28
naging kulay asul gayong ng makita ko ito ay kulay puti? (Exhibit "A", p. 2; Emphasis
Supplied)
Presumably, what Jessie Ramirez saw was merely the Vicks inhaler which the appellant
does not deny having possessed at that time. He was certain that the object was white.
(T.S.N. p. 91, January 6, 1988)
Later, Ramirez retracted and corrected himself. He said that it was grayish in color with
color blue (Medyo kulay abo na may kulay na parang blue). (T.S.N. p. 92, January 6,
1988) The inconsistency of the witness' testimony casts doubt as to the veracity of the
statements made especially when he answered on additional cross-examination that
the reason why he concluded that Exhibit "C-2" was the same object being held by
Ritter was because it was the only one shown to him by the prosecution (T.S.N. pp.
109-110, January 6, 1988). Jessie Ramirez was not all certain about the sexual vibrator
because he did not actually see it in the possession of the appellant.
What he merely remembers is the revelation made by Rosario the next morning that
the foreigner inserted something inside her vagina. The trial court admitted such
statement as part of the res gestae. In a strained effort to accept such statement as
part of res gestae, the trial court focused the test of admissibility on the lapse of time
between the event and the utterance. For the average 13 years old, the insertion of a
mechanical device or anything for that matter into the vagina of a young girl is
undoubtedly startling. For Rosario and Jessie, however, there must be more evidence
to show that the statement, given after a night's sleep had intervened, was given
instinctively because the event was so startling Res gestae does not apply. (Section 42,
Rule 130, Rules of Court)
Even if it were established that the appellant did insert something inside Rosario's
vagina, the evidence is still not adequate to impute the death of Rosario to the
appellant's alleged act.
Jessie Ramirez testified that Rosario was able to remove the object inserted in her
vagina. We quote:
Q Now, you also stated on direct examination that later on Rosario even
categorically admitted to you that she was already able to remove the object allegedly
inserted inside her vagina, is that correct?
A Yes, sir.
xxx xxx xxx
ATTY. CARAAN:
Q Will you kindly tell to this Honorable Court the exact words used by Rosario
Baluyot later on when you met her when you asked her and when she told you that
she was already able to remove that object from her vagina?
A "Oy, Jessie, natanggal na, "she told me that. I asked her, "Was it already
removed?" And she answered, "Yes, it was removed." But the same night, she again
complained of pain of her stomach. She sent one of her friends to call for me. And as
a matter of fact, Tomboy was uttering defamatory words against me as she was
groaning in pain. (TSN, Jan. 6,1988, pp. 72-73)
This encounter happened on the night of the day following the day after both children
were invited by the foreigner to the hotel. (T.S.N. p. 73, January 6, 1988). Rosario was
said to be groaning in pain so we can just imagine the distress she was undergoing at
this point in time. If the device inserted by the appellant caused the pain, it is highly
inconceivable how she was able to endure the pain and discomfort until May, 1987,
seven (7) months after the alleged incident. Evidence must not only proceed from the
mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances. (People vs. Patog, 144 SCRA 429 [1986]).
At this juncture, we find Dr. Pedro Solis' testimony rather significant. Dr. Pedro Solis, a
witness for the defense is considered an expert witness. (A Doctor of Medicine and a
graduate of the State University in 1940, a degree of Bachelor of Laws and member of
the Bar 1949, and a graduate of the Institute of Criminology University. He was
awarded Post Graduate Diploma in Criminology in 1963, and also a graduate of United
Nations Asia and Far East Asia Institute on the Prevention of Crimes in Tokyo Japan
1965. He was appointed Medico Legal Officer of the National Bureau of Investigation
in 1940 until 1944. He became Chief Medico Legal Officer in 1970 and became the
Deputy Director of the NBI up to 1984. He is at present a Professorial Lecturer on Legal
Medicine at the UP, FEU, UE, and Fatima College of Medicine; a Medico Legal Consultant
of the PGH Medical Center, Makati Medical Center, UERM Medical Center, MCU Medical
Center. He has been with the NBI for 43 years. He has attended no less than 13
conferences abroad. He is the author of the textbooks entitled "Legal Medicine" and
"Medical Jurisprudence".) With his impressive legal and medical background, his
testimony is too authoritative to ignore. We quote the pertinent portions of his
testimony:
Q Now Dr. Solis, would you kindly go over this object marked as Exh. "C-2"
which object was described as a part of a sexual vibrator battery operated. Now, given
this kind of object, would you kindly tell us what would be the probable effect upon a
12 years old girl when it is inserted into her vagina?
A Well, this vibrator must be considered a foreign body placed into a human
being and as such be considered a foreign object. As a foreign object, the tendency of
the body may be: No. 1—expel the foreign body—No. 2.—The tendency of the body is
to react to that foreign body. One of the reactions that maybe manifested by the person
wherein such foreign body is concerned is to cover the foreign body with human tissue,
in a way to avoid its further injury to the body.
Now, the second reaction is irritation thereby producing certain manifest symptoms
and changes in the area where the foreign body is located.
29
In severe cases, the symptoms manifestation might not only be localized but may be
felt all over the body, we call it systemic reaction. Now, considering the fact that this
foreign body as shown to me is already not complete, this shows exposure of its
different parts for the body to react. If there is mechanism to cause the foreign body
to vibrate, there must be some sort of power from within and that power must be a
dry cell battery. [The] composition of the battery are, manganese dioxide ammonium,
salts, water and any substance that will cause current flow. All of these substances are
irritants including areas of the container and as such, the primary reaction of the body
is to cause irritation on the tissues, thereby inflammatory changes develop and in all
likelihood, aside from those inflammatory changes would be a supervening infection in
a way that the whole generative organ of the woman will suffer from diseased process
causing her the systemic reaction like fever, swelling of the area, and other systemic
symptoms. . . . . (TSN., pp. 13-15, October 19,1988)
xxx xxx xxx
Q Now, given this object, how long would it take, Doctor before any reaction
such as an infection would set in, how many days after the insertion of this object in
the vagina of a 12 year old girl?
A In the example given to me, considering that one of the ends is exposed, in
a way that vaginal secretion has more chance to get in, well, liberation of this irritant
chemicals would be enhanced and therefore in a shorter period of time, there being
this vaginal reaction.
Q How many days or weeks would you say would that follow after the insertion?
A As I said, with my experience at the NBI, insertion of any foreign body in the
vaginal canal usually developed within, a period of two (2) weeks . . .
xxx xxx xxx
Q . . . [T]he subject in this case was allegedly raped, and a sexual vibrator was
inserted in her vagina on October 10, 1986 and she was operated on, on May 19, 1987
the following year, so it took more than 7 months before this was extracted, would you
say that it will take that long before any adverse infection could set in inside the vagina?
A Infection and inflamatory changes will develop in a shorter time. (TSN., Oct.
19,1988, p. 18)
xxx xxx xxx
Q When you said shorter, how long would that be, Doctor?
A As I said, in my personal experience, hair pins, cottonballs and even this
lipstick of women usually, there are only about two (2) weeks time that the patient
suffer some abnormal symptoms.
Q Now, considering that this is a bigger object to the object that you mentioned,
this object has a shorter time?
A Yes, Sir shorter time. (TSN., Oct. 19. 1988, p. 20)
The trial court, however, ruled that "there is no hard and fast rule as to the time frame
wherein infection sets in upon insertion of a foreign body in the vagina canal. For Dr.
Solis, the time frame is not more than 10 months, and this case is still within the said
time frame."
A more generous time interval may be allowed in non-criminal cases. But where an
accused is facing a penalty of reclusion perpetua, the evidence against him cannot be
based on probabilities which are less likely than those probabilities which favor him.
It should be clarified that the time frame depends upon the kind of foreign body lodged
inside the body. An examination of the object gave the following results:
(1) Color: Blue
Size: (a) Circumference—3.031
inches (b) Length—approximately
2.179 inches.
Composition: Showed the general
characteristics of a styrene-butadiene plastic.
(2) The specimen can be electrically operated by means of a battery as per
certification dated 01 June 1988, signed by Mr. Rodolfo D. Mercuric, Shipboard
Electrical Systems Mechanics, Foreman II, SRF Shop 51, Subic (see attached
certification).
(3) No comparative examination was made on specimen #1 and vibrator depicted
in the catalog because no actual physical dimensions and/or mechanical characteristics
were shown in the catalog. (Exhibit "LL")
The vibrator end was further subjected to a macro-photographic examination on the
open end portion which revealed the following:
Result of Examination
Macro-photographic examination on the open end portion of specimen #1 shows the
following inscription:
MABUCHI MOTOR JAPAN RE 14 PAT (Exhibit "MM")
From the above results, the subject object is certainly not considered as inert and based
on Dr. Solis' testimony, it is more likely that infection should set in much earlier.
Considering also that the object was inserted inside the vagina which is part of the
generative organ of a woman, an organ which is lined with a very thin layer of
30
membrane with plenty of blood supply, this part of the body is more susceptible to
infection. (T.S.N. p. 34, October 19, 1988)
The truth of Dr. Solis' testimony is more probable under the circumstances of the case.
We see no reason why his opinions qualified by training and experience should not be
controlling and binding upon the Court in the determination of guilt beyond reasonable
doubt. (People v. Tolentino, 166 SCRA 469 [1988]).
Dr. Barcinal, another witness for the defense also testified that he examined Rosario
Baluyot on May 17, 1986 as a referral patient from the Department of Surgery to give
an OB-GYN clearance to the patient prior to operation. (T.S.N. p. 6, September 28,
1988)
Q And how many times did you examine this patient Rosario Baluyot on that
day?
A I examined her twice on that day.
Q The first time that you examined her, what is the result of your findings, if
any?
A My first examination, I examined the patient inside the delivery room. The
patient was brought to the delivery room wheel-chaired then from the wheel chair, the
patient was ambigatory (sic). She was able to walk from the door to the examining
table. On examination, the patient is conscious, she was fairly nourished, fairly
developed, she had fever, she was uncooperative at that time and examination deals
more on the abdomen which shows slightly distended abdomen with muscle guarding
with tenderness all over, with maximum tenderness over the hypogastric area. (T.S.N.
p. 5, September 28, 1988)
xxx xxx xxx
Q What about your second examination to the patient, what was your findings,
if any?
A In my second examination, I repeated the internal examination wherein I
placed my index finger and middle finger inside the vagina of the patient and was able
to palpate a hard object. After which, I made a speculum examination wherein I was
able to visualize the inner portion of the vaginal canal, there I saw purulent foul
smelling, blood tints, discharge in the vaginal canal and a foreign body invaded on the
posterior part of the vaginal canal.
xxx xxx xxx
A I referred back to Dr. Fernandez about my findings and he asked me to try to
remove the said foreign object by the use of forceps which I tried to do so also but I
failed to extract the same.
Q All this time that you were examining the patient Rosario Baluyot both in the
first and second instance, Rosario Baluyot was conscious and were you able to talk to
her when you were examining her?
A Yes, sir.
Q And did you ask her why there is a foreign object lodge inside her vagina?
A Yes, Sir I asked her.
Q And what did she tell you, if any?
A She said in her own words that "GINAMIT AKO NG NEGRO AT SIYA ANG
NAGLAGAY NITO."
Q Did she also tell you when, this Negro who used her and who inserted and
placed the foreign object on her vagina?
A Yes, Sir I asked her and she said he used me three (3) months ago from the
time I examined her.
Q Now, you said that you referred the patient to the ward, what happened next
with your patient?
A To my knowledge, the patient is already scheduled on operation on that date.
Q Meaning, May 17, 1987?
A Yes, Sir I was presuming that the patient would undergo surgery after that?
(TSN, Sept. 28,1988, pp. 8-9; Emphasis supplied)
The trial court debunked Dr. Barcinals testimony considering Rosario's condition at that
time. It ruled that it is inconceivable that she would be striking a normal conversation
with the doctors and would be sitting on the examination table since Gaspar Alcantara
stated that when he brought Rosario Baluyot to the hospital, she was unconscious and
writhing in pain.
It was not improbable for Rosario Baluyot to still be conscious and ambulant at that
time because there were several instances testified to by different witnesses that she
was still able to talk prior to her operation:
(1) Fe Israel, a witness for the prosecution and a member of the Olongapo
Catholic Charismatic Renewal Movement testified that as a member of this group she
visits indigent children in the hospital every Saturday and after office hours on working
days.
31
On the Saturday prior to Rosario's death which was May 17, she was still able to talk
to Rosario Baluyot. In fact, one of her groupmates helped Rosario go to the comfort
room to urinate. (T.S.N., pp. 16-19, May 25, 1988)
(2) Angelita Amulong, a witness for the defense is another para social worker who
worked at Pope John 23rd Community Center under Sister Eva Palencia. In one of her
hospital visits, she encountered Rosario Baluyot in the month of May, 1987. She actually
saw a child who happened to be Rosario Baluyot seated on the cement floor and when
she asked why she was seated there, she was told that it was too hot in the bed. She
saw Rosario Baluyot for about 2 or 3 days successively. (T.S.N. pp. 10-13, September
7, 1988)
(3) Gaspar Alcantara, the person who brought Rosario to the hospital actually
testified that she was conscious (T.S.N. p. 36, September 14, 1988) but writhing in
pain. He took pity on her so he brought her to the hospital (T.S.N. p. 12, September
14, 1988)
From the above testimonies, it is clear that Rosario was still conscious and could still
answer questions asked of her although she was complaining of stomach pains.
Unfortunately, the medical attention given to her failed to halt the aggravation of her
condition. The operation on May 19 was too late.
Rosario died because of septicemia, which in layman's language is blood poisoning,
and peritonitis, which is massive infection, in the abdominal cavity caused by the
foreign object or the cut sexual vibrator lodged in the vagina of the victim. This led to
the infection from the uterus to the fallopian tubes and into the peritoneum and the
abdominal cavity.
The trial court convicted the accused citing the rationale of Article 4 of the RPC
He who is the cause of the cause is the cause of the evil caused.
But before the conviction is affirmed, we must first follow the rule as stated in the case
of Urbano vs. Intermediate Appellate Court (157 SCRA 1 [1988]) to wit:
The rule is that the death of the victim must be the direct, natural and logical
consequence of the wounds inflicted upon him by the accused. And since we are
dealing with a criminal conviction, the proof that the accused caused the victim's death
must convince a rational mind beyond reasonable doubt. (Emphasis supplied)
In People v. Tempongko, Jr., (144 SCRA 583, 592 [1986]), we explained that:
xxx xxx xxx
The basic principle in every criminal prosecution is that accusation is not synonymous
with guilt. The accused is presumed innocent until the contrary is proved by the
prosecution. If the prosecution fails, it fails utterly, even if the defense is weak or,
indeed, even if there is no defense at all. The defendant faces the full panoply of state
authority with all "The People of the Philippines" arrayed against him. In a manner of
speaking, he goes to bat with all the bases loaded. The odds are heavily against him.
It is important, therefore, to equalize the positions of the prosecution and the defense
by presuming the innocence of the accused until the state is able to refute the
presumption by proof of guilt beyond reasonable doubt. (At. p. 592)
The evidence for the accused maybe numerically less as against the number of
witnesses and preponderance of evidence presented by the prosecution but there is no
direct and convincing proof that the accused was responsible for the vibrator left inside
the victim's vagina which caused her death seven (7) months after its insertion. What
the prosecution managed to establish were mere circumstances which were not
sufficient to overcome the constitutional presumption of innocence. While
circumstantial evidence may suffice to support a conviction it is imperative, though,
that the following requisites should concur:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt. (Rule 133, Sec. 4 Revised Rules of Court)
For the well-entrenched rule in evidence is that "before conviction can be had upon
circumstantial evidence, the circumstances proved should constitute an unbroken chain
which leads to one fair and reasonable conclusion pointing to the defendant, to the
exclusion of all others, as the author of the crime (People v. Subano, 73 Phil. 692
[1942]; Emphasis supplied). It must fairly exclude every reasonable hypothesis of
innocence (Dorado v. Court of Appeals, 153 SCRA 420, 433 [1987]). In this case the
circumstantial evidence presented by the prosecution does not conclusively point to the
liability of the appellant for the crime charged. (People v. Tolentino, supra)
We are aware of the wide publicity given to the plight of Rosario Baluyot and how her
death exemplified starkly the daily terrors that most street children encounter as they
sell their bodies in order to survive. At an age when innocence and youthful joys should
preponderate in their lives, they experience life in its most heartless and inhuman form.
Instead of nothing more than gentle disappointments occupying their young minds,
they daily cope with tragedies that even adults should never be made to carry.
It is with distressing reluctance that we have to seemingly set back the efforts of
Government to dramatize the death of Rosario Baluyot as a means of galvanizing the
nation to care for its street children. It would have meant a lot to social workers and
prosecutors alike if one pedophile-killer could be brought to justice so that his example
would arouse public concern, sufficient for the formulation and implementation of
meaningful remedies. However, we cannot convict on anything less than proof beyond
reasonable doubt. The protections of the Bill of Rights and our criminal justice system
are as much, if not more so, for the perverts and outcasts of society as they are for
normal, decent, and law-abiding people.
32
The requirement of proof which produces in an unprejudiced mind moral certainty or
conviction that the accused did commit the offense has not been satisfied.
By way of emphasis, we reiterate some of the factors arousing reasonable doubt:
1. The evidence on Rosario Baluyot's baptism creates reasonable doubt about
her being less than 12 years old when the carnal knowledge took place. If the evidence
for the prosecution is to be believed, she was not yet born on the date she was
baptized.
2. Since the proof of Rosario's being under 12 years of age is not satisfactory,
the prosecution has to prove force, intimidation, or deprivation of reason in order to
convict for rape. There is no such proof. In fact, the evidence shows a willingness to
submit to the sexual act for monetary considerations.
3. The only witness to the fact of Ritter's placing a vibrator inside the vagina of
Rosario was Jessie Ramirez. This witness did not see Ritter insert the vibrator. The
morning after the insertion, he was only told by Rosario about it. Two days later, he
allegedly met Rosario who informed him that she was able to remove the object. And
yet, Ramirez testified that on the night of that second encounter, he saw Rosario
groaning because of pain in her stomach. She was even hurling invectives. Ramirez'
testimony is not only hearsay, it is also contradictory.
4. It was improbable, according to expert medical testimony, for a foreign object
with active properties to cause pain, discomfort, and serious infection only after seven
months inside a young girl's vaginal canal. Infection would have set in much earlier.
Jessie Ramirez recalled that the incident happened in December of 1986. (TSN.,
January 6, 1988, pp. 15-17) The evidence, however shows that the appellant was not
here in the Philippines that December. As per the Commission on Immigration Arrival
and Departure Report, Heinrich Ritter arrived in the Philippines on October 7, 1986 and
left on October 12, 1986. He never returned until September 23, 1987 (Exhibits "DD"
and "EE") The incident could have happened only in October, but then it would have
been highly improbable for the sexual vibrator to stay inside the vagina for seven (7)
months with the kind of serious complications it creates.
5. The gynecologist who attended to Rosario during her hospital confinement
testified that she told him "Ginamit ako ng Negro at siya ang naglagay nito." The
accused is not a black.
Noteworthy is the fact that nothing was mentioned about Rosario's activities after the
hotel incident. Considering Dr. Barcinal's testimony indicating that she was "used" by a
"Negro" three (3) months prior to admission in the hospital and Rosario's unfortunate
profession, there is always the possibility that she could have allowed herself to be
violated by this perverse kind of sexual behavior where a vibrator or vibrators were
inserted into her vagina between October, 1986 and May, 1987.
Moreover, the long delay of seven (7) months after the incident in reporting the alleged
crime renders the evidence for the prosecution insufficient to establish appellant's guilty
connection with the requisite moral certainty. (See People v. Mula Cruz, 129 SCRA 156
[1984]).
The established facts do not entirely rule out the possibility that the appellant could
have inserted a foreign object inside Rosario's vagina. This object may have caused
her death. It is possible that the appellant could be the guilty person. However, the
Court cannot base an affirmance of conviction upon mere possibilities. Suspicions and
possibilities are not evidence and therefore should not be taken against the accused.
(People v. Tolentino, supra)
Well-established is the rule that every circumstance favorable to the accused should be
duly taken into account. This rule applies even to hardened criminals or those whose
bizarre behaviour violates the mores of civilized society. The evidence against the
accused must survive the test of reason. The strongest suspicion must not be allowed
to sway judgment. (See Sacay v. Sandiganbayan, 142 SCRA 593 [1986]). As stated in
the case of People v. Ng (142 SCRA 615 [1986]):
. . . [F]rom the earliest years of this Court, it has emphasized the rule that reasonable
doubt in criminal cases must be resolved in favor of the accused. The requirement of
proof beyond reasonable doubt calls for moral certainty of guilt. It has been defined as
meaning such proof "to the satisfaction of the court, keeping in mind the presumption
of innocence, as precludes every reasonable hypothesis except that which it is given to
support. It is not sufficient for the proof to establish a probability, even though strong,
that the fact charged is more likely to be true than the contrary. It must establish the
truth of the fact to a reasonable and moral certainty—a certainty that convinces and
satisfies the reason and the conscience of those who are to act upon it. (Moreno,
Philippine Law Dictionary, 1972 Edition, p. 379, citing U.S. v. Reyes, 3 Phil. 3). . . .
In the instant case, since there are circumstances which prevent our being morally
certain of the guilt of the appellant, he is, therefore, entitled to an acquittal.
This notwithstanding, the Court can not ignore the acts of the appellant on the children,
Jessie Ramirez and Rosario Baluyot in October, 1986 at the MGM Hotel. Inspite of his
flat denials, we are convinced that he comes to this country not to look at historical
sights, enrich his intellect or indulge in legitimate pleasures but in order to satisfy the
urgings of a sick mind.
With the positive Identification and testimony by Jessie Ramirez that it was the
appellant who picked him and Rosario from among the children and invited them to
the hotel; and that in the hotel he was shown pictures of young boys like him and the
two masturbated each other, such actuations clearly show that the appellant is a
pedophile. When apprehended in Ermita, he was sizing up young children. Dr. Solis
defined pedophilia in his book entitled Legal Medicine, 1987 edition, as follows:
Pedophilia—A form of sexual perversion wherein a person has the compulsive desire to
have sexual intercourse with a child of either sex. Children of various ages participate
in sexual activities, like fellatio, cunnilingus, fondling with sex organs, or anal sexual
33
intercourse. Usually committed by a homosexual between a man and a boy the latter
being a passive partner.
Ritter was prosecuted for rape with homicide and not pedophilia, assuming this is a
crime by itself. Pedophilia is clearly a behavior offensive to public morals and violative
of the declared policy of the state to promote and protect the physical, moral, spiritual
and social well-being of our youth. (Article II, Section 13, 1987 Constitution) (Harvey
v. Defensor Santiago, 162 SCRA 840, 848 [1989]). Pedophiles, especially thrill seeking
aliens have no place in our country.
In this case, there is reasonable ground to believe that the appellant committed acts
injurious not only to Rosario Baluyot but also to the public good and domestic tranquility
of the people. The state has expressly committed itself to defend the right of children
to assistance and special protection from all forms of neglect, abuse, cruelty,
exploitation and other conditions prejudicial to their development. (Art. XV, Section 3
[2] . . . (Harvey v. Santiago, supra). The appellant has abused Filipino children, enticing
them with money. The appellant should be expelled from the country.
Furthermore, it does not necessarily follow that the appellant is also free from civil
liability which is impliedly instituted with the criminal action. (Rule III, Section 1) The
well-settled doctrine is that a person while not criminally liable, may still be civilly liable.
We reiterate what has been stated in Urbano v. IAC, supra.
. . . While the guilt of the accused in a criminal prosecution must be established beyond
reasonable doubt, only a preponderance of evidence is required in a civil action for
damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil
liability of the accused only when it includes a declaration that the facts from which the
civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559).
The reason for the provisions of Article 29 of the Civil Code, which provides that the
acquittal of the accused on the ground that his guilt has not been proved beyond
reasonable doubt does not necessarily exempt him from civil liability for the same act
or omission, has been explained by the Code Commission as follows:
The old rule that the acquittal of the accused in a criminal case also releases him from
civil liability is one of the most serious flaws in the Philippine legal system. It has given
rise to numberless instances of miscarriage of justice, where the acquittal was due to
a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning
followed is that inasmuch as the civil responsibility is derived from the criminal offense,
when the latter is not proved, civil liability cannot be demanded.
This is one of those causes where confused thinking leads to unfortunate and
deplorable consequences. Such reasoning fails to draw a clear line of demarcation
between criminal liability and civil responsibility, and to determine the logical result of
the distinction. The two liabilities are separate and distinct from each other. One affects
the social order and the other, private rights. One is for the punishment or correction
of the offender while the other is for the reparation of damages suffered by the
aggrieved party. The two responsibilities are so different from each other that article
1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise
upon the civil action arising from a crime; but the public action for the imposition of
the legal penalty shall not thereby be extinguished." It is just and proper that, for the
purposes of the imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnifying the complaining
party, why should the offense also be proved beyond reasonable doubt? Is not the
invasion or violation of every private right to be proved only by a preponderance of
evidence? Is the right of the aggrieved person any less private because the wrongful
act is also punishable by the criminal law?
For these reasons, the Commission recommends the adoption of the reform under
discussion. It will correct a serious defect in our law. It will close up an inexhaustible
source of injustice—a cause for disillusionment on the part of the innumerable persons
injured or wronged.
Rosario Baluyot is a street child who ran away from her grandmother's house.1âwphi1
Circumstances forced her to succumb and enter this unfortunate profession.
Nonetheless, she has left behind heirs who have certainly suffered mental anguish,
anxiety and moral shock by her sudden and incredulous death as reflected in the
records of the case. Though we are acquitting the appellant for the crime of rape with
homicide, we emphasize that we are not ruling that he is innocent or blameless. It is
only the constitutional presumption of innocence and the failure of the prosecution to
build an airtight case for conviction which saved him, not that the facts of unlawful
conduct do not exist. As earlier stated, there is the likelihood that he did insert the
vibrator whose end was left inside Rosario's vaginal canal and that the vibrator may
have caused her death. True, we cannot convict on probabilities or possibilities but civil
liability does not require proof beyond reasonable doubt. The Court can order the
payment of indemnity on the facts found in the records of this case.
The appellant certainly committed acts contrary to morals, good customs, public order
or public policy (see Article 21 Civil Code). As earlier mentioned, the appellant has
abused Filipino children, enticing them with money. We can not overstress the
responsibility for proper behavior of all adults in the Philippines, including the appellant
towards young children. The sexual exploitation committed by the appellant should not
and can not be condoned. Thus, considering the circumstances of the case, we are
awarding damages to the heirs of Rosario Baluyot in the amount of P30,000.00.
And finally, the Court deplores the lack of criminal laws which will adequately protect
street children from exploitation by pedophiles, pimps, and, perhaps, their own parents
or guardians who profit from the sale of young bodies. The provisions on statutory rape
and other related offenses were never intended for the relatively recent influx of
pedophiles taking advantage of rampant poverty among the forgotten segments of our
society. Newspaper and magazine articles, media exposes, college dissertations, and
other studies deal at length with this serious social problem but pedophiles like the
appellant will continue to enter the Philippines and foreign publications catering to them
will continue to advertise the availability of Filipino street children unless the
Government acts and acts soon. We have to acquit the appellant because the Bill of
Rights commands us to do so. We, however, express the Court's concern about the
34
problem of street children and the evils committed against them. Something must be
done about it.

WHEREFORE, the appealed judgment is REVERSED and SET ASIDE. Appellant

HEINRICH STEFAN RITTER is ACQUITTED on grounds of reasonable doubt. The
appellant is ordered to pay the amount of P30,000.00 by way of moral and exemplary
damages to the heirs of Rosario Baluyot. The Commissioner of Immigration and
Deportation is hereby directed to institute proper deportation proceedings against the
appellant and to immediately expel him thereafter with prejudice to re-entry into the
country.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ, concur.

35
ARDIENTE v. SPOUSES PASTORFIDE, G.R. No. 161921, JULY 17, 2013
THIRD DIVISION
G.R. No. 161921 July 17, 2013
JOYCE V. ARDIENTE, PETITIONER,
vs.
SPOUSES JAVIER AND MA. THERESA PASTORFIDE, CAGAYAN DE ORO WATER
DISTRICT AND GASPAR GONZALEZ,* JR., RESPONDENTS.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to reverse and set aside the Decision1 and Resolution2 of the Court of
Appeals (CA), dated August 28, 2003 and December 17, 2003, respectively, in CA-G.R.
CV No. 73000. The CA Decision affirmed with modification the August 15, 2001
Decision3 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 24, while
the CA Resolution denied petitioner's Motion for Reconsideration.
The facts, as summarized by the CA, are as follows:
[Herein petitioner] Joyce V. Ardiente and her husband Dr. Roberto S. Ardiente are
owners of a housing unit at Emily Homes, Balulang, Cagayan de Oro City with a lot
area of one hundred fifty-three (153) square meters and covered by Transfer Certificate
of Title No. 69905.
On June 2, 1994, Joyce Ardiente entered into a Memorandum of Agreement (Exh. "B",
pp. 470-473, Records) selling, transferring and conveying in favor of [respondent] Ma.
Theresa Pastorfide all their rights and interests in the housing unit at Emily Homes in
consideration of ₱70,000.00. The Memorandum of Agreement carries a stipulation:
"4. That the water and power bill of the subject property shall be for the account of
the Second Party (Ma. Theresa Pastorfide) effective June 1, 1994." (Records, p. 47)
vis-a-vis Ma. Theresa Pastorfide's assumption of the payment of the mortgage loan
secured by Joyce Ardiente from the National Home Mortgage (Records, Exh. "A", pp.
468-469)
For four (4) years, Ma. Theresa's use of the water connection in the name of Joyce
Ardiente was never questioned nor perturbed (T.S.N., October 31, 2000, pp. 7-8) until
on March 12, 1999, without notice, the water connection of Ma. Theresa was cut off.
Proceeding to the office of the Cagayan de Oro Water District (COWD) to complain, a
certain Mrs. Madjos told Ma. Theresa that she was delinquent for three (3) months
corresponding to the months of December 1998, January 1999, and February 1999.
Ma. Theresa argued that the due date of her payment was March 18, 1999 yet (T.S.N.,
October 31, 2000, pp. 11-12). Mrs. Madjos later told her that it was at the instance of
Joyce Ardiente that the water line was cut off (T.S.N., February 5, 2001, p. 31).
On March 15, 1999, Ma. Theresa paid the delinquent bills (T.S.N., October 31, 2000,
p. 12). On the same date, through her lawyer, Ma. Theresa wrote a letter to the COWD
to explain who authorized the cutting of the water line (Records, p. 160).
On March 18, 1999, COWD, through the general manager, [respondent] Gaspar
Gonzalez, Jr., answered the letter dated March 15, 1999 and reiterated that it was at
the instance of Joyce Ardiente that the water line was cut off (Records, p. 161).
Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide [and her husband] filed [a]
complaint for damages [against petitioner, COWD and its manager Gaspar Gonzalez]
(Records, pp. 2-6).
In the meantime, Ma. Theresa Pastorfide's water line was only restored and
reconnected when the [trial] court issued a writ of preliminary mandatory injunction on
December 14, 1999 (Records, p. 237).4
After trial, the RTC rendered judgment holding as follows:
xxxx
In the exercise of their rights and performance of their duties, defendants did not act
with justice, gave plaintiffs their due and observe honesty and good faith. Before
disconnecting the water supply, defendants COWD and Engr. Gaspar Gonzales did not
even send a disconnection notice to plaintiffs as testified to by Engr. Bienvenido Batar,
in-charge of the Commercial Department of defendant COWD. There was one though,
but only three (3) days after the actual disconnection on March 12, 1999. The due date
for payment was yet on March 15. Clearly, they did not act with justice. Neither did
they observe honesty.
They should not have been swayed by the prodding of Joyce V. Ardiente. They should
have investigated first as to the present ownership of the house. For doing the act
because Ardiente told them, they were negligent. Defendant Joyce Ardiente should
have requested before the cutting off of the water supply, plaintiffs to pay. While she
attempted to tell plaintiffs but she did not have the patience of seeing them. She knew
that it was plaintiffs who had been using the water four (4) years ago and not hers.
She should have been very careful. x x x5
The dispositive portion of the trial court's Decision reads, thus:
WHEREFORE, premises considered, judgment is hereby rendered ordering defendants
[Ardiente, COWD and Gonzalez] to pay jointly and severally plaintiffs, the following
sums:
(a) ₱200,000.00 for moral damages;
36
(b) 200,000.00 for exemplary damages; and
(c) 50,000.00 for attorney's fee.
The cross-claim of Cagayan de Oro Water District and Engr. Gaspar Gonzales is hereby
dismissed. The Court is not swayed that the cutting off of the water supply of plaintiffs
was because they were influenced by defendant Joyce Ardiente. They were negligent
too for which they should be liable.
SO ORDERED.6
Petitioner, COWD and Gonzalez filed an appeal with the CA.
On August 28, 2003, the CA promulgated its assailed Decision disposing as follows:
IN VIEW OF ALL THE FOREGOING, the appealed decision is AFFIRMED, with the
modification that the awarded damages is reduced to ₱100,000.00 each for moral and
exemplary damages, while attorney's fees is lowered to ₱25,000.00. Costs against
appellants.
SO ORDERED.7
The CA ruled, with respect to petitioner, that she has a "legal duty to honor the
possession and use of water line by Ma. Theresa Pastorfide pursuant to their
Memorandum of Agreement" and "that when [petitioner] applied for its disconnection,
she acted in bad faith causing prejudice and [injury to] Ma. Theresa Pastorfide."8
As to COWD and Gonzalez, the CA held that they "failed to give a notice of
disconnection and derelicted in reconnecting the water line despite payment of the
unpaid bills by the [respondent spouses Pastorfide]."9
Petitioner, COWD and Gonzalez filed their respective Motions for Reconsideration, but
these were denied by the CA in its Resolution dated December 17, 2003.
COWD and Gonzalez filed a petition for review on certiorari with this Court, which was
docketed as G.R. No. 161802. However, based on technical grounds and on the finding
that the CA did not commit any reversible error in its assailed Decision, the petition
was denied via a Resolution10 issued by this Court on March 24, 2004. COWD and
Gonzalez filed a motion for reconsideration, but the same was denied with finality
through this Court's Resolution11 dated June 28, 2004.
Petitioner, on the other hand, timely filed the instant petition with the following
Assignment of Errors:
7.1 HONORABLE COURT OF APPEALS (ALTHOUGH IT HAS REDUCED THE LIABILITY
INTO HALF) HAS STILL COMMITTED GRAVE AND SERIOUS ERROR WHEN IT UPHELD
THE JOINT AND SOLIDARY LIABILITY OF PETITIONER JOYCE V. ARDIENTE WITH
CAGAYAN DE ORO WATER DISTRICT (COWD) AND ENGR. GASPAR D. GONZALES FOR
THE LATTER'S FAILURE TO SERVE NOTICE UPON RESPONDENTS SPOUSES
PASTORFIDE PRIOR TO THE ACTUAL DISCONNECTION DESPITE EVIDENCE ADDUCED
DURING TRIAL THAT EVEN WITHOUT PETITIONER'S REQUEST, COWD WAS ALREADY
SET TO EFFECT DISCONNECTION OF RESPONDENTS' WATER SUPPLY DUE TO NON-
PAYMENT OF ACCOUNT FOR THREE (3) MONTHS.
7.2 THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND SERIOUS ERROR
WHEN IT RULED TOTALLY AGAINST PETITIONER AND FAILED TO FIND THAT
RESPONDENTS ARE GUILTY OF CONTRIBUTORY NEGLIGENCE WHEN THEY FAILED
TO PAY THEIR WATER BILLS FOR THREE MONTHS AND TO MOVE FOR THE TRANSFER
OF THE COWD ACCOUNT IN THEIR NAME, WHICH WAS A VIOLATION OF THEIR
MEMORANDUM OF AGREEMENT WITH PETITIONER JOYCE V. ARDIENTE.
RESPONDENTS LIKEWISE DELIBERATELY FAILED TO EXERCISE DILIGENCE OF A
GOOD FATHER OF THE FAMILY TO MINIMIZE THE DAMAGE UNDER ART. 2203 OF THE
NEW CIVIL CODE.
7.3 THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT DISREGARDED
THE FACT THAT RESPONDENT SPOUSES PASTORFIDE ARE LIKEWISE BOUND TO
OBSERVE ARTICLE 19 OF THE NEW CIVIL CODE, i.e., IN THE EXERCISE OF THEIR
RIGHTS AND IN THE PERFORMANCE OF THEIR DUTIES TO ACT WITH JUSTICE, GIVE
EVERYONE HIS DUE AND OBSERVE HONESTY AND GOOD FAITH.
7.4 THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT GRANTED AN
AWARD OF MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES AS AGAINST
PETITIONER ARDIENTE.12
At the outset, the Court noticed that COWD and Gonzalez, who were petitioner's co-
defendants before the RTC and her co-appellants in the CA, were impleaded as
respondents in the instant petition. This cannot be done. Being her co-parties before
the RTC and the CA, petitioner cannot, in the instant petition for review on certiorari,
make COWD and Gonzalez, adversary parties. It is a grave mistake on the part of
petitioner's counsel to treat COWD and Gonzalez as respondents. There is no basis to
do so, considering that, in the first place, there is no showing that petitioner filed a
cross-claim against COWD and Gonzalez. Under Section 2, Rule 9 of the Rules of Court,
a cross-claim which is not set up shall be barred. Thus, for failing to set up a cross-
claim against COWD and Gonzalez before the RTC, petitioner is already barred from
doing so in the present petition.
More importantly, as shown above, COWD and Gonzalez's petition for review on
certiorari filed with this Court was already denied with finality on June 28, 2004, making
the presently assailed CA Decision final and executory insofar as COWD and Gonzalez
are concerned. Thus, COWD and Gonzalez are already precluded from participating in
the present petition. They cannot resurrect their lost cause by filing pleadings this time
as respondents but, nonetheless, reiterating the same prayer in their previous
pleadings filed with the RTC and the CA.
As to the merits of the instant petition, the Court likewise noticed that the main issues
raised by petitioner are factual and it is settled that the resolution of factual issues is
37
the function of lower courts, whose findings on these matters are received with respect
and considered binding by the Supreme Court subject only to certain exceptions, none
of which is present in this instant petition.13 This is especially true when the findings
of the RTC have been affirmed by the CA as in this case.14
In any case, a perusal of the records at hand would readily show that the instant
petition lacks merit.
Petitioner insists that she should not be held liable for the disconnection of respondent
spouses' water supply, because she had no participation in the actual disconnection.
However, she admitted in the present petition that it was she who requested COWD to
disconnect the Spouses Pastorfide's water supply. This was confirmed by COWD and
Gonzalez in their cross-claim against petitioner. While it was COWD which actually
discontinued respondent spouses' water supply, it cannot be denied that it was through
the instance of petitioner that the Spouses Pastorfide's water supply was disconnected
in the first place.
It is true that it is within petitioner's right to ask and even require the Spouses
Pastorfide to cause the transfer of the former's account with COWD to the latter's name
pursuant to their Memorandum of Agreement. However, the remedy to enforce such
right is not to cause the disconnection of the respondent spouses' water supply. The
exercise of a right must be in accordance with the purpose for which it was established
and must not be excessive or unduly harsh; there must be no intention to harm
another.15 Otherwise, liability for damages to the injured party will attach.16 In the
present case, intention to harm was evident on the part of petitioner when she
requested for the disconnection of respondent spouses’ water supply without warning
or informing the latter of such request. Petitioner claims that her request for
disconnection was based on the advise of COWD personnel and that her intention was
just to compel the Spouses Pastorfide to comply with their agreement that petitioner's
account with COWD be transferred in respondent spouses' name. If such was
petitioner's only intention, then she should have advised respondent spouses before or
immediately after submitting her request for disconnection, telling them that her
request was simply to force them to comply with their obligation under their
Memorandum of Agreement. But she did not. What made matters worse is the fact that
COWD undertook the disconnection also without prior notice and even failed to
reconnect the Spouses Pastorfide’s water supply despite payment of their arrears.
There was clearly an abuse of right on the part of petitioner, COWD and Gonzalez.
They are guilty of bad faith.
The principle of abuse of rights as enshrined in Article 19 of the Civil Code provides
that every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
In this regard, the Court's ruling in Yuchengco v. The Manila Chronicle Publishing
Corporation17 is instructive, to wit:
xxxx
This provision of law sets standards which must be observed in the exercise of one’s
rights as well as in the performance of its duties, to wit: to act with justice; give
everyone his due; and observe honesty and good faith.
In Globe Mackay Cable and Radio Corporation v. Court of Appeals, it was elucidated
that while Article 19 "lays down a rule of conduct for the government of human relations
and for the maintenance of social order, it does not provide a remedy for its violation.
Generally, an action for damages under either Article 20 or Article 21 would be proper."
The Court said:
One of the more notable innovations of the New Civil Code is the codification of "some
basic principles that are to be observed for the rightful relationship between human
beings and for the stability of the social order." [REPORT ON THE CODE COMMISSION
ON THE PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers of the
Code, seeking to remedy the defect of the old Code which merely stated the effects of
the law, but failed to draw out its spirit, incorporated certain fundamental precepts
which were "designed to indicate certain norms that spring from the fountain of good
conscience" and which were also meant to serve as "guides for human conduct [that]
should run as golden threads through society, to the end that law may approach its
supreme ideal, which is the sway and dominance of justice." (Id.) Foremost among
these principles is that pronounced in Article 19 x x x.
xxxx
This article, known to contain what is commonly referred to as the principle of abuse
of rights, sets certain standards which must be observed not only in the exercise of
one's rights, but also in the performance of one's duties. These standards are the
following: to act with justice; to give everyone his due; and to observe honesty and
good faith. The law, therefore, recognizes a primordial limitation on all rights; that in
their exercise, the norms of human conduct set forth in Article 19 must be observed. A
right, though by itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality. When a right is exercised in a
manner which does not conform with the norms enshrined in Article 19 and results in
damage to another, a legal wrong is thereby committed for which the wrongdoer must
be held responsible. But while Article 19 lays down a rule of conduct for the government
of human relations and for the maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for damages under either Article 20 or
Article 21 would be proper.
Corollarilly, Article 20 provides that "every person who, contrary to law, willfully or
negligently causes damage to another shall indemnify the latter for the same." It speaks
of the general sanctions of all other provisions of law which do not especially provide
for its own sanction. When a right is exercised in a manner which does not conform to
the standards set forth in the said provision and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer must be responsible. Thus, if the
provision does not provide a remedy for its violation, an action for damages under
either Article 20 or Article 21 of the Civil Code would be proper.
38
The question of whether or not the principle of abuse of rights has been violated Please take notice that on ___July 17, 2013___ a Decision, copy attached herewith,
resulting in damages under Article 20 or other applicable provision of law, depends on was rendered by the Supreme Court in the above-entitled case, the original of which
the circumstances of each case. x x x18 was received by this Office on July 19, 2013 at 2:25 p.m.

To recapitulate, petitioner's acts which violated the abovementioned provisions of law Very truly yours,
is her unjustifiable act of having the respondent spouses' water supply disconnected,
coupled with her failure to warn or at least notify respondent spouses of such intention. (SGD)
On the part of COWD and Gonzalez, it is their failure to give prior notice of the LUCITA ABJELINA SORIANO
impending disconnection and their subsequent neglect to reconnect respondent Division Clerk of Court
spouses' water supply despite the latter's settlement of their delinquent account.

On the basis of the foregoing, the Court finds no cogent reason to depart from the Footnotes
ruling of both the RTC and the CA that petitioner, COWD and Gonzalez are solidarily
liable. * Spelled as Gonzales in other parts of the rollo and records.

The Spouses Pastorfide are entitled to moral damages based on the provisions of Article 1 Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate Justices Edgardo
2219,19 in connection with Articles 2020 and 2121 of the Civil Code. P. Cruz and Noel G. Tijam, concurring; rollo, pp. 60-67.

As for exemplary damages, Article 2229 provides that exemplary damages may be 2 Id. at 68.
imposed by way of example or correction for the public good. Nonetheless, exemplary
damages are imposed not to enrich one party or impoverish another, but to serve as a 3 Penned by Judge Leonardo N. Demecillo, id. at 27-37.
deterrent against or as a negative incentive to curb socially deleterious actions.22 In
the instant case, the Court agrees with the CA in sustaining the award of exemplary 4 Rollo, pp. 60-62.
damages, although it reduced the amount granted, considering that respondent
spouses were deprived of their water supply for more than nine (9) months, and such 5 Id. at 35-36.
deprivation would have continued were it not for the relief granted by the RTC.
6 Id. at 37.
With respect to the award of attorney's fees, Article 2208 of the Civil Code provides,
among others, that such fees may be recovered when exemplary damages are 7 Id. at 67. (Emphasis in the original)
awarded, when the defendant's act or omission has compelled the plaintiff to litigate
with third persons or to incur expenses to protect his interest, and where the defendant 8 Id. at 65.
acted in gross and evident bad faith in refusing to satisfy the plaintiffs’ plainly valid,
just and demandable claim. 9 Id. at 64.

WHEREFORE, instant petition for review on certiorari is DENIED. The Decision and 10 Id. at 219.
Resolution of the Court of Appeals, dated August 28, 2003 and December 17, 2003,
respectively, in CA-G.R. CV No. 73000 are AFFIRMED. 11 Id. at 220.

SO ORDERED. 12 Id. at 14.

Velasco, Jr., (Chairperson), Abad, Mendoza, and Leonen, JJ., concur. 13 Philippine National Bank v. DKS International, Inc., G.R. No. 179161, January 22,
2010, 610 SCRA 603, 621.
July 24, 2013
14 Id.
N O T I C E OF J U D G M E N T
15 Uypitching v. Quiamco, G.R. No. 146322, December 6, 2006, 510 SCRA 172, 179.
Sirs/Mesdames:
16 Id.
39
17 G.R. No. 184315, November 28, 2011, 661 SCRA 392.

18 Id. at 402-404. (Emphasis supplied)

19 Art. 2219. Moral damages may be recovered in the following and analogous cases:

xxxx

(10) Acts and actions referred to in Articles 21, 26, 27, 28. 29, 30, 32, 34 and 35.

xxxx

20 Every person who, contrary to law, willfully or negligently causes damage to

another, shall indemnify the latter for the same.

21 Any person who willfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.

22 Yuchengco v. The Manila Chronicle Publishing Corporation, supra note 17, at 405.

40