Testimonial Knowledge Cases:

1) People vs Gumimba

EN BANC

THE PEOPLE OF THE PHILIPPINES, G.R. No. 174056

Appellee, [Formerly G.R. No. 138257]
Present:
PUNO, C.J.,
QUISUMBING,
- versus - YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
ROGELIO GUMIMBA y CORONA,
MORADANTE alias ROWING and CARPIO-MORALES,*
RONTE ABABO (acquitted), CALLEJO, SR.,*
Appellants, AZCUNA,**
TINGA,
CHICO-NAZARIO, GARCIA,
VELASCO, JR., and
NACHURA, JJ.

Promulgated:

February 27, 2007

x--------------------------------------------------------------------------- x

DECISION
TINGA, J.:

For review before the Court is the Decision[1] of the Court of Appeals (CA) dated
26 April 2006, affirming with modification the Decision[2] of the Regional Trial
Court (RTC), Ozamiz City, Branch 15,[3] dated 10 March 1999, finding appellant
guilty beyond reasonable doubt of the crime of rape with homicide.

In an Information[4] dated 17 April 1997, appellant Rogelio Gumimba y

Morandante alias Rowing and co-accused Ronie Abapo (Abapo) were charged
before the RTC, with the crime of rape with homicide of an eight (8)-year old
child, thus:

That on or about April 8, 1997, in Barangay Pantaon, Ozamiz City, Philippines,

and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating with each other, did then and there willfully,
unlawfully and feloniously and by means of force, violence and intimidation, to
wit: by then and there pinning down one [AAA],[5] a minor, 8 years of age, and
succeeded in having carnal knowledge with her and as a result thereof she
suffered 6-12 oclock lacerated wounds of [sic] the vagina as well as fatal stab
wounds on the different parts of her body and which were the direct cause of her
death thereafter.

CONTRARY to Article 335 in relation with Article 249 of the Revised Penal
Code.

On 16 May 1997, appellant and Abapo both entered a plea of not guilty on
arraignment.[6] Thereafter, the case proceeded to trial with the prosecution first
presenting two witnesses: (1) Emelio Magallano, President of Purok I, Barangay
Pantaon, Ozamiz City; and (2) Sofronio Araas, a Civilian Volunteer Officer (CVO)
of the same barangay.

Magallano and Araas testified that at around 9 oclock in the evening of 10 April
1997, appellant went to Magallanos home and confessed to him that he alone and
by himself raped and killed his (appellants) niece, AAA, in Purok Pantaon, Ozamiz
City. Subsequently, Magallano accompanied appellant to the residence of Araas
where he reiterated his confession. That same night, Magallano, Araas, appellant
and family members of the witnesses proceeded to the home of Barangay Captain
Santiago Acapulco, Jr. who conducted an investigation. Appellant repeated his
narration and confessed to the barangay captain that he had raped and killed the
victim, and that he was alone when he committed the crime. As a result
thereof, Acapulco, Jr., in the company of the others, brought appellant to
the Ozamiz City Hall and turned him over to the police authorities.[7]

However, appellant manifested though counsel (before the court) at the following
hearing on 22 May 1997 that he would like to change his earlier plea of not guilty
to a plea of guilty.[8] The RTC ordered appellants re-arraignment and the latter
accordingly entered a plea of guilty.[9] The court conducted an inquiry to ascertain
the voluntariness of appellants plea and his full comprehension of the
consequences thereof. Prosecution was likewise charged to establish the guilt and
degree of culpability of appellant.[10]

In accordance with the courts directive, the prosecution continued with the
presentation of its evidence in chief. It presented Dr. Pedrita Rosauro, the
physician who conducted the autopsy on the body of the victim, and who testified
that the victim was raped before she was killed. The examination by Dr. Rosauro
revealed that AAA sustained four (4) stab wounds in front, two (2) stab wounds in
her back and one (1) lacerated wound each on her neck and on her middle upper
extremity. Furthermore, she found 6 and 12 oclock laceration wounds on the
external genital organ of the victim.[11]

Before resting its case, the prosecution presented appellant as witness against his
co-accused Abapo. Appellant testified that he and Abapo raped and killed the
victim. He likewise explained that he had previously confessed to Magallano,
Araas and Acapulco that he alone committed the crime in the hope that the parents
of the victim, who were relatives of his, might take pity on him.[12]

In his defense, Abapo testified that at the time the crime was allegedly committed,
he was with his mother and three (3) siblings at the Labo River, about two (2)
kilometers away from Barangay Pantaon, washing their clothes.[13] In support
thereof, Abapo presented his mother Virgencita Abapo, Elisa Carreon and
Raymundo Orot, all of whom corroborated his alibi. [14] The defense also presented
witness Araas who reiterated his earlier testimony that appellant confessed to him
that he alone was responsible for the raping and killing of the victim. [15] Finally,
Eugenio Bucog, a teacher at Capucao Elementary School, was presented to
demonstrate Abapos good character when he was his student.[16]

On 10 March 1999, the RTC promulgated its Decision. On the basis of appellants
plea of guilty, the RTC found him guilty beyond reasonable doubt of the crime as
charged. Appellant was sentenced to suffer the death penalty and ordered to
indemnify the heirs of the victim in the amounts of P50,000.00 as indemnity for
the life of the victim, P30,000.00 as moral damages, and costs.[17] On the other
hand, the trial court acquitted Abapo on the ground that his guilt was not
established beyond reasonable doubt. Except for the lone testimony of appellant,
the RTC held that no other evidence was adduced to prove the participation of
Abapo. Moreover, the court a quo found that appellants testimony implicating
Abapo was not worthy of credence coming as it did from a polluted source.[18]

With the death penalty imposed on appellant, the case was elevated to this Court
on automatic review. Pursuant to this Courts decision in People v. Mateo,[19] the
case was transferred to the Court of Appeals.

On 26 April 2006, the appellate court rendered its Decision[20] affirming the
appellants conviction, but with modification as to damages awarded to the heirs of
the victim. The dispositive portion of the said Decision states:

WHEREFORE, premises considered, the instant Appeal is DISMISSED for lack

of merit. The Decision dated March 10, 1999 of the Regional Trial Court, Branch
15, of Ozami[s] City, is hereby AFFIRMED with the MODIFICATION that the
amount of civil indemnity ex delicto is hereby increased from P50,000.00
to P100,000.00, including the award of moral damages from P30,000.00
to P50,000.00. Conformably with the ruling of the Supreme Court in People of the
Philippines v. Efren Mateo, We refrain from entering judgment, and the Division
Clerk of Court is hereby directed to elevate the entire records of the case to the
Honorable Supreme Court for its final disposition.

SO ORDERED.[21]
 On 3 October 2006, the Court issued an order requiring the parties to
simultaneously submit supplemental briefs within thirty (30) days from notice
should they so desire.[22] On 21 November and 24 November 2006, appellant and
appellee filed similar manifestations that they are adopting the briefs they filed
before the Court of Appeals.[23]

Thus, appellant raises the following errors in this petition for review:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-

APPELLANT ON THE BASIS OF HIS IMPROVIDENT PLEA OF GUILTY
AND HIS ALLEGED SEPARATE CONFESSIONS TO ONE EM[I]LIO
MAGALLANO, AND ONE SOFRONIO ARAAS, THE LATTER BEING
HEARSAY AND WITHOUT PROBATIVE VALUE WHATSOEVER.

II

THE COURT A QUO LIKEWISE ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF RAPE WITH HOMICIDE DESPITE THE FAILURE OF THE
PROSECUTION TO ESTABLISH THE LATTERS GUILT BEYOND
REASONABLE DOUBT, AND THE ACCUSED-APPELLANT OWNING UP
ONLY TO THE CRIME OF SIMPLE RAPE.[24]

The ultimate issue is whether appellants guilt was established by evidence beyond
reasonable doubt.

It must be conceded at the outset that the trial court failed in its duty to conduct the
prescribed searching inquiry into the voluntariness of appellants plea of guilty and
full comprehension thereof. Consequently, appellants plea of guilty was made
improvidently and it is rendered inefficacious.[25] Nevertheless, the Court must rule
against appellant as the evidence on record is ample to sustain the judgment of
conviction independent from his plea of guilty.
The crime of rape with homicide is punishable with death under Article 335 of the
Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, which
provides:

Article 335. When and how rape is committed. Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.

The crime of rape is punishable by reclusion perpetua.

xxxx

When by reason or on the occasion of the rape, a homicide is committed, the

penalty shall be death.

xxxx

The Information, to which appellant pleaded guilty, alleged that homicide was
committed by reason or on the occasion of the rape of AAA. This, if proven, would
warrant the penalty of death at that time.[26] Accordingly, a plea of guilty to such
charges calls into play the provisions of Section 3, Rule 116 of the 2000 Revised
Rules of Criminal Procedure, thus

Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused
pleads guilty to a capital offense, the court shall conduct a searching inquiry into
the voluntariness and full comprehension of the consequences of his plea and
shall require the prosecution to prove his guilt and the precise degree of
culpability. The accused may present evidence in his behalf.

Based on this rule, when a plea of guilty to a capital offense is entered, there
are three (3) conditions that the trial court must observe to obviate an
improvident plea of guilty by the accused: (1) it must conduct a searching
inquiry into the voluntariness and full comprehension by the accused of the
consequences of his plea; (2) it must require the prosecution to present evidence to
prove the guilt of the accused and the precise degree of his culpability; and (3) it
must ask the accused whether he desires to present evidence on his behalf, and
allow him to do so if he so desires. [27]
There is no hard and fast rule as to how a judge may conduct a searching
inquiry, or as to the number and character of questions he may ask the accused, or
as to the earnestness with which he may conduct it, since each case must be
measured according to its individual merit.[28] However, the logic behind the rule is
that courts must proceed with caution where the imposable penalty is death for the
reason that the execution of such a sentence is irrevocable and experience has
shown that innocent persons have at times pleaded guilty.[29] An improvident plea
of guilty on the part of the accused when capital crimes are involved should be
avoided since he might be admitting his guilt before the court and thus forfeit his
life and liberty without having fully comprehended the meaning and import and
consequences of his plea.[30] Moreover, the requirement of taking further evidence
would aid this Court on appellate review in determining the propriety or
impropriety of the plea.[31]

In the instant case, when the accused entered a plea of guilty at his re-arraignment,
it is evident that the RTC did not strictly observe
the requirements under Section 3, Rule 116 above. A mere warning
that the accused faces the supreme penalty of death is insufficient.[32] Such
procedure falls short of the exacting guidelines in the conduct of a searching
inquiry, as follows:

(1) Ascertain from the accused himself (a) how he was brought into the custody of
the law; (b) whether he had the assistance of a competent counsel during the
custodial and preliminary investigations; and (c) under what conditions he was
detained and interrogated during the investigations. This is intended to rule out
the possibility that the accused has been coerced or placed under a state of duress
either by actual threats of physical harm coming from malevolent quarters or
simply because of the judges intimidating robes.

(2) Ask the defense counsel a series of questions as to whether he had conferred
with, and completely explained to, the accused the meaning and consequences of
a plea of guilty.
 (3) Elicit information about the personality profile of the accused, such as his age,
socio-economic status, and educational background, which may serve as a
trustworthy index of his capacity to give a free and informed plea of guilty.

(4) Inform the accused of the exact length of imprisonment or nature of the
penalty under the law and the certainty that he will serve such sentence. For not
infrequently, an accused pleads guilty in the hope of a lenient treatment or upon
bad advice or because of promises of the authorities or parties of a lighter penalty
should he admit guilt or express remorse. It is the duty of the judge to ensure that
the accused does not labor under these mistaken impressions because a plea of
guilty carries with it not only the admission of authorship of the crime proper but
also of the aggravating circumstances attending it, that increase punishment.

(5) Inquire if the accused knows the crime with which he is charged and to fully
explain to him the elements of the crime which is the basis of his
indictment. Failure of the court to do so would constitute a violation of his
fundamental right to be informed of the precise nature of the accusation against
him and a denial of his right to due process.

(6) All questions posed to the accused should be in a language known and
understood by the latter.

(7) The trial judge must satisfy himself that the accused, in pleading guilty, is
truly guilty. The accused must be required to narrate the tragedy or reenact the
crime or furnish its missing details.[33]

An examination of the records of the proceedings will illustrate the courts

treatment of appellants change of plea, viz:
Atty. Cagaanan:

Considering the voluntary plea of guilty of the accused[,] we pray that the
mitigating circumstance to prove his plea of guilty be appreciated in favor
of the accused. We likewise pray that another mitigating
[circumstance] of voluntary surrender be appreciated in his favor.

Pros. Edmilao:

Considering the gravity of the crime, may we ask your Honor that we will present
evidence inorder [sic] that it will give also justice to the victim.

Court:
Present evidence to prove gravity of the crime.

Pros. Edmilao:

Our first witness is the ABC president.

Court:

What matter will Santiago Acapulco testify?

Court:

Was there cruelty done by the accused in picking [sic] the life of the minor girl?

xxxx

Pros. Edmilao:

May we ask that we will present her [sic] in the next hearing.

Court:

The court will call the accused to the witness stand.

xxxx

(The witness after having administered an oath, took the witness stand and
declared that he is:

ROGELIO GUMIMBA
20 years old
Single
Occupation- duck raising
Resident of Capucao, Ozamiz City)

xxxx

Court:
The court will allow the prosecutor or the defense to profound [sic] question [sic]
on the matter and the accused understand [sic] and fully comprehend [sic]
the consequence of his plea of guilty.

xxxx
Pros. Edmilao:

Q Mr. Rogelio Gumimba[,] are you the same accused in this case in Crim. Case
No. RTC 2074?
A Yes, sir.

Q Now the victim in this case is [AAA], a minor, 8 years of age[.] Since you have
admitted this in what particular place wherein [sic] you raped and slew
[AAA]?
A Purok Pantaon, Ozamiz City.

Q How far is that place wherein you slew and raped [AAA] from her house?
A Very near, sir.

Q Can you estimate how many meters?

A One meter, sir.

Q Was it committed inside or outside the house?

A Outside.

Q In what particular place of the house[:] in front, at the side or at the back?
A At the back of the house of the victim.

Q Will you please tell the court, how did you do it, will you please narrate.
A I raped her by tying her hand, then I killed her.

Q Before you raped and killed [AAA], where did you get her?
A I saw her roaming around.

Q In committing the crime, were you alone?

Atty. Anonat:
Objection

Court:
Sustained.
Pros. Edmilao:

You stated that you pushed her and even tied her hand and raped her and stabbed
her, were you the one alone [sic]?

Atty. Anonat:
Objection

Court:
Sustained.

Court:

Q When you said you raped her, you mean you inserted your penis inside the
vagina of [AAA]?
A No, Your Honor.

Q When you said you raped her, what do you mean?

A I was drank [sic] at that time.

Q And you said you tied [AAA], what did you use in tying her?
A Banana skin.

Q How did you tie [AAA]?

A I tied both her hands.

Q The hands of [AAA], you placed at the back?

A In front of her.

Q After tying her [,] what did you do to her?

A After that I went home.

Q You did not stab [AAA]?

A I stabbed her, Your Honor.

Q What weapon did you use in stabbing her?

A A long bolo.

Q You mean you were bringing [a] long bolo at that time?
A Yes, Your Honor.

Q After stabbing her, what did you do to her?

A No more, Your Honor.

Q How many times did you stab [AAA]?

A I could not count how many stab wounds I inflicted to [sic] her.

Q But you will agree that you have stabbed her many times?
A I could no longer count how many stab wounds, Your Honor.

Q When you were arraigned, you pleaded guilty, do you understand the
consequence of your pleading guilty?
A I do not know Your Honor [,] the consequence.
Q You pleaded guilty to the offense of rape with homicide, did you
understand?
A Yes, Your Honor, I understand.

Q That by your pleading guilty to the offense you will be sentenced to die?
A Yes, I am aware.

Q Your act of pleading guilty to the offense charged is your voluntary will?
A Yes, I admitted that crime, but we were two.

Q You mean to say there were two of you who raped [AAA]?
A Yes, your Honor.

Q Before raping her, was [AAA] wearing clothes?

A Yes, Your Honor.

Q Was [AAA] wearing [a] panty before you raped her?

A Yes, Your Honor.

Q Did you remove her panty before raping her?

A No, You Honor, I did not.

Q How did you rape [AAA]?

A I have sexed [sic] with her.

Q What do you mean by I remedio her, you mean you have inserted your penis
into the vagina of [AAA]?
A No, Your Honor, my penis did not penetrate into the vagina of [AAA].

Q Why your penis did [sic] not able to penetrate into the vagina of [AAA]?
A The vagina of [AAA] is very small.

Q Can you tell this Court how tall was [AAA]?

A (The witness demonstrated that from the floor about 3 feet high was the height
of [AAA])

Q If you are standing and [AAA] is also standing side by side with you, up to
what part of your body is the height of [AAA]?
A Up to my waist line.

Atty. Cagaanan:

Q When you pleaded guilty [,] was it in your own free will?
A Yes, sir.

Q Were you not forced or coerced by anybody with this crime?

 A No, sir.[34]

The inefficacious plea of guilty notwithstanding, the totality of the evidence for the
prosecution undeniably establishes appellants guilt beyond reasonable doubt of the
crime of rape with homicide. Apart from his testimony upon changing his plea to a
plea of guilty, appellant gave a subsequent testimony when he was presented by
the prosecution as a witness against his co-accused. This second testimony which
constitutes another judicial confession, replete with details and made consciously
as it was, cured the deficiencies which made his earlier plea of guilty
improvident. The latter testimony left no room for doubt as to the voluntariness
and comprehension on appellants part of his change of plea, as well as completed
his narration of how he raped and killed the victim. The pertinent portions of the
second testimony follow, thus:
Pros. Jose A. Edmilao:

Q While you were gathering firewoods [sic] and Ronie Abapo was pasturing
carabao, do you recall of any untoward incident that happened?
A We raped and killed.

Q Whom did you rape and kill?

A [AAA].

Q And when you said [AAA], who was then your companion, because you said
we?
A Ronie Abapo.

xxxx

Q While she [AAA] was there gathering oranges, you mean to say you were close
to the place [AAA] was?
A I, together with Ronie Abapo go [sic] near to the place [AAA] was.

Q When you were already near at [sic] the place where [AAA] was climbing, was
she still up there at the orange tree?
A She already came down.

Q When she came down, what followed next then?

A We held her hands.

Q Who held her hands?

A The two of us.
Q You mean one hand was held by you and the other hand was held by Ronie
Abapo?

Atty. Anonat:
Objection, leading.

Pros. Edmilao:

Q You said that you were holding the hands of [AAA], how did you do it?
A We held her hands and tied it [sic] with banana skin.

Q Who tied the hands of [AAA]?

A Both of us.

Q After tying the hands of [AAA][,] with banana stalk where did you place her?
A We brought her to the [sic] grassy place.

Q What happened then after [AAA] was brought to the [sic] grassy place?
A We killed her.

Q Before you killed her, what did you do to her?

A We raped her.

Q Who raped her first?

A It was Ronie Abapo, then followed by me.

Q How did you rape her?

A We undress[sed] her.

Q What was she wearing at that time?

A She wore a dress.

Q What about Ronie Abapo?

A He did not undress.

Q How did you let your penis out?

A I removed my t-shirt.

Q How about your pants?

A I also removed my pants.

Q What was then the reaction of [AAA], when you first tied her hand?
A She did not cry, because we covered her mouth.
Q Who covered her mouth? You or Ronie?
A Ronie.

Q What [sic] you said that it was Ronie Abapo, what did you do then when he
was on [sic] the act of raping her?
A I was just near to [sic] them.

Q The after Ronie Abapo, what did you do then?

A He told me that you will be the next [sic].

Q So when he told you that you will be the next [sic], what did you do next?
A I also raped her.

Q Again, when you said you raped her, you inserted your penis into the vagina of
[AAA]?
A It did not enter [sic].

Q Why?
A It did not penetrate, because I was afraid.

Q But your penis erected [sic]?

A No, Your Honor.

Q You said that Ronie was the first to have sexual intercourse, was he able to
insert his penis into the vagina of [AAA]?
A No, sir, because he was watching, if there was person [sic] around.

Q Were you able to see the penis of Ronie inserted into the vagina of [AAA]?
A I have [sic] not seen.

xxxx

Q You said that you and Ronie Abapo raped [AAA], what do you mean or what
do you understand by the word rape?
A We undressed her.

Q Why did you undress her?

A We undressed her, because we want [sic] to do something to her.

Q What is that something that you want [sic] top do to [AAA]?

A We raped her.

Q When you said we raped her, you mean, you inserted your penis inside the
vagina of [AAA]?
A No, sir.
Q But you tried to insert your penis inside the vagina?
A Yes, sir.

Q And your penis touched the vagina of [AAA]?

A Yes, sir.

Q Only your penis was not able to enter the vagina because [AAA] is [sic] still a
small girl?
A Yes, sir.

Q After trying to insert your penis after Ronie Abapo, what did you do to [AAA]?
A I walked away, but he called me.

Q Who called you?

A Ronie Abapo.

Q Why did he call you?

A He asked me, what to do with [AAA]. It might be that she will tell us to
somebody [sic], we will kill her.

Q What did you do?

A I did not answer.

Q And what was your answer?

A Because he keep [sic] on persuading me.

Q How did he persuade you?

A He persuaded me because we might be caught.

Q And what did he tell you to do?

A That we will kill [AAA].

Q How did he tell you that?

A Rowing[,] we will kill her.

Q And what was your reply?

A I refused.

Q When you refused, what did he do then?

A He keep [sic] on persuading me.

Q And what did eventually came [sic] to your mind?

A Evil came to my mind, so we killed her.

Q How did you kill her?

A We stabbed her.
Q What weapon you used [sic] when you killed her?
A A long bolo.

Q Whose [sic] the owner of that long bolo?

A Mine, but Ronie Abapo used it.

Q Who was the first one to use it?

A Ronie Abapo.

Q But the bolo was in your hands, how did [sic] he be able to use it?
A I put it on the ground and he got it.

Q You said that he made the first struck [sic]. Where was [AAA] first hit?
A In the stomach.

Q How many times did Ronie Abapo strike her with the use of that bolo?
A I cannot remember anymore.

Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit?
A At the left side.

Q How about you, did you made [sic] the following stab to [AAA]?
A I was hesitant to stab, but eventually I stabbed her.

Q How many times?

A Only one.

Q What part of her body was she hit?

A At the stomach.

Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo
and also stabbed [AAA]?
A Yes, sir.

Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her?
A He [sic] was already dead.

Q Why did you stab her, when she was already dead?
A I just stabbed her, because I thought that she was still alive.

xxxx
Q Do you know where is [sic] the bolo used in stabbing [AAA]?
A No, sir.

Q After killing [AAA], where did you place the bolo?

A In our place.

Q It [sic] it there in your home?

A Already taken.

Q Who got?
A The barangay captain.

Q Now, did you tell to [sic] anybody regarding the raping and killing of [AAA]
aside from here in Court?
A I have already told.

Q Who was the person whom you talked about [sic]?

A My neighbor.

Q Whose [sic] the name of that neighbor?

A Emilio Magallano.

Q After Emilio Magallano[,] to whom did you report?

A Sofronio Aranas.

Q Who else?
A Rico Magallano.

Q Who else?
A The wife of Panyong.

Q In the reporting [sic] this matter[,] were you together with Ronie Abapo telling
these persons that you raped [AAA]?
A I was alone.

Q And did you tell her that you were two in killing and raping with Ronie Abapo?
A No, sir.

Q Why not?
A According to Emilio that the mother of the victim might be [sic] pity enough to
me, because I am related to them.
 Q When you reported to these persons you have mentioned, did you also tell them
that you were together with Ronie Abapo in killing and raping?
A No, sir.[35]

While the trial court found appellants second testimony insofar as it implicated his
co-accused to be unworthy of credence, there is absolutely nothing on record
which militates against its use as basis for establishing appellants guilt. In fact, in
his Brief, appellant submits that he must be convicted of simple rape alone and not
rape with homicide. Thus, he admits in writing, albeit implicitly, that he raped the
victim.

Convictions based on an improvident plea of guilt are set aside only if such plea is
the sole basis of the judgment. If the trial court relied on sufficient and credible
evidence to convict the accused, the conviction must be sustained, because then it
is predicated not merely on the guilty plea of the accused but on evidence proving
his commission of the offense charged.[36] Thus, as we have ruled in People v.
Derilo:[37]

While it may be argued that appellant entered an improvident plea of guilty when
re-arraigned, we find no need, however, to remand the case to the lower court for
further reception of evidence. As a rule, this Court has set aside convictions based
on pleas of guilty in capital offenses because of improvidence thereof and when
such plea is the sole basis of the condemnatory judgment. However, where the
trial court receives evidence to determine precisely whether or not the accused has
erred in admitting his guilt, the manner in which the plea of guilty is made
(improvidently or not) loses legal significance, for the simple reason that the
conviction is based on evidence proving the commission by the accused of the
offense charged.

Thus, even without considering the plea of guilty of appellant, he may still be
convicted if there is adequate evidence on record on which to predicate his
conviction. x x x x

Here, the prosecution was able to establish, through the separate testimonies of
appellant, that at around 1:00 oclock in the afternoon of 8 April 1997, appellant
was gathering firewood not far from the house of the victim AAA in Barangay
Pantaon, Ozamiz City. He met co-accused Ronie Abapo who was then pasturing
his carabao also within the vicinity of the victims home. They spotted the victim
picking oranges with her three (3)-year old brother at the back of their house and
together approached her from behind, tied her hands with banana skin and
dragged her to a grassy place.[38] Abapo raped the victim first.[39] Thereafter,
appellant followed suit.[40] Once they had finished with their dastardly acts, they
stabbed and killed the victim with a long bolo which belonged to appellant.[41]

Through the testimony of the physician who conducted the autopsy on

AAAs body, it was established that the victim had 6 and 12 oclock lacerations on
her external genital organ. Thus, it is clear that the rape was consummated.

Appellant challenges the testimonies of the witnesses Magallano and Araas on

what appellant had confessed to or told them for being hearsay. The challenge
fails. The testimonies, it should be conceded, cannot serve as a proof of
extrajudicial confession for an extrajudicial confession has to be in writing, among
others, to be admissible in evidence.[42] That is why the testimonies are of use in
the case as corroborative evidence only. Such utility, however, cannot be
defeated by the hearsay rule. The testimonies covered are independently
relevant statements which are not barred by the hearsay rule.

Under the doctrine of independently relevant statements, only the fact that
such statements were made is relevant, and the truth or falsity thereof is
immaterial. The hearsay rule does not apply. The statements are admissible as
evidence. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such a fact.[43]

Moreover, where, as in the case at bar, there is no evidence to show any dubious
reason or improper motive for a prosecution witness to bear false testimony against
the accused or falsely implicate him in a crime, his or her testimony should be
given full faith and credit.[44]

Next, we address appellants contention that he can only be convicted of simple

rape, as this is the only crime to which he has owned up. Arguing that the victim
may have already been dead after his co-accused had allegedly hacked her first,
appellant theorizes that he, at most, would be guilty of an impossible crime.
Appellant is clutching at straws. It is extremely doubtful that appellant could have
known positively that the victim was already dead when he struck her. The
proposition not only completely contradicts his judicial confession, it is also
speculative as to cause of death. In light of the particular circumstances of the
event, appellants mere conjecture that AAA had already expired by the time he
hacked her cannot be sufficient to support his assertion of an impossible crime. An
examination of the testimony is again called for, thus:

Pros. Edmilao:

Q You said that he (Abapo) made the first strike, where was [AAA] first hit?
A In the stomach.

Q How many times did Ronie Abapo strike her with the use of that bolo?
A I cannot remember anymore.

Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit?
A At the left side.

Q How about you, did you made [sic] the following stab to [AAA]?
A I was hesitant to stab, but eventually I stabbed her.

Q How many times?

A Only one.

Q What part of her body was she hit?

A At the stomach.

Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo
and also stabbed AAA?
A Yes, sir.

Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her?
A He [sic] was already dead.

Q Why did you stab her, when she was already dead?
A I just stabbed her, because I thought that she was still alive.[45]

Thus, the finding of guilt as pronounced by the RTC and the Court of Appeals
should be sustained. However, with the passage of R.A. No. 9346, entitled An Act
Prohibiting the Imposition of Death Penalty in the Philippines, the penalty of death
can no longer be imposed. Accordingly, the penalty imposed upon appellant is
reduced from death to reclusion perpetua without eligibility for parole.[46]

With respect to the civil liability of appellant, we modify the award in light
of prevailing jurisprudence. Accordingly, appellant is ordered to indemnify the
heirs of AAA in the amount of P100,000.00 as civil indemnity, P75,000.00 as
moral damages, P25,000.00 as temperate damages and P100,000.00 as exemplary
damages.[47]

WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No.

00193 is AFFIRMED WITH MODIFICATION. Appellant is sentenced to
suffer the penalty of reclusion perpetua without eligibility for parole and to
pay the heirs of the victim, AAA, in the amounts of P100,000.00 as civil
indemnity, P75,000.00 as moral damages, P25,000.00 as temperate damages,
and P100,000.00 as exemplary damages, plus costs.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:
 REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

(On Leave) (On Leave)

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice

(On Official Leave) MINITA V. CHICO-NAZARIO

ADOLFO S. AZCUNA Associate Justice
Associate Justice

CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 ANTONIO EDUARDO B. NACHURA
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified

that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

*
On leave.
**
On official leave.
[1]
Rollo, pp. 4-19. Penned by Associate Justice Ramon R. Garcia and concurred in by Associate Justices Teresita Dy-
Liacco Flores and Rodrigo F. Lim, Jr.
[2]
CA rollo, pp. 25-28.
[3]
Presided by Judge Pedro L. Suan.
[4]
CA rollo, p. 12.
 [5]
The real name of the victim is withheld per R.A. No. 7610 and R.A. No. 9262. See People v.
Cabalquinto, G.R. No. 167693, 19 September 2006.
[6]
TSN, 16 May 1997, pp. 3-4.
[7]
Id. at 7-11, 15-19; See also Exhibits 1-C and 2-C.
[8]
TSN, 22 May 1997, p. 1.
[9]
Id. at 1-2.
[10]
Id.
[11]
Records, p. 26; Exhibit A.
[12]
Records, dorsal side of p. 26; Exhibit A-10. TSN, 26 September 1997, pp. 4-5.
[13]
TSN, 16 February 1998, pp. 21-23.
[14]
TSN, 16 February 1998, 19 February 1998.
[15]
TSN, 3 November 1997, p. 3.
[16]
TSN, 13 February 1998, pp. 2-3.
[17]
Supra note 2.
[18]
Id. at 27.
[19]
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.
[20]
Rollo, pp. 4-19.
[21]
Id. at 18-19.
[22]
Id. at 20.
[23]
Id. at 21-24.
[24]
Id. at 9.
[25]
See People v. Tonyacao, G.R. Nos. 134531-32, 7 July 2004, 433 SCRA 513.
[26]
See R.A. No. 9346, entitled AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN
THE PHILIPPINES, which was signed into law on 24 June 2006.
[27]
People v. Espidol, G.R. No. 150033, 12 November 2004, 442 SCRA 360, 372 citing People v. Bello, G.R. Nos.
130411-14, 13 October 1999, 316 SCRA 804, 811.
[28]
People v. Apatay, G.R. No. 147965, 7 July 2004, 433 SCRA 658, 663; People v. Segnar, Jr., G.R. No. 133380,
18 February 2004, 423 SCRA 206, 211 citing People v. Dayot, G.R. No. 88281, 20 July 1990, 187 SCRA 637, 643.
[29]
People v. Tonyacao, supra note 25 at 521; People v. Daniela, 449 Phil. 547, 561 (2003) citing People v. Arizapa,
328 SCRA 214 (2000).
[30]
People v. Daniela, supra.
[31]
People v. Tonyacao, supra note 25; People v. Pastor, 428 Phil. 976 (2002).
[32]
People v. Nadera, Jr., 381 Phil. 484 (2000); People v. Tonyacao, supra note 25 at 522 citing People v.
Principe, 381 SCRA 642, 649 (2002), People v. Molina, 372 SCRA 378, 387 (2001), People v. Alborida, 359 SCRA
495 (2001), People v. Hermoso, 343 SCRA 567, 576 (2000).
 [33]
People v. Tonyacao, supra note 25 at 522-523; People v. Pastor, supra note 31 at 987 citing People v.
Aranzado, 418 Phil. 125 (2001); People v. Chua, 418 Phil. 565 (2001); People v. Alicando, 321 Phil. 657
(1995); People v. Albert, 321 Phil. 500 (1995).
[34]
Emphasis supplied. TSN, 22 May 1997, pp. 2-8.

[35]
TSN, 16 September 1997, pp. 8-17.
[36]
People v. Nadera, 381 Phil. 484 (2000). See also People v. Lakindanum, 364 Phil. 69 (1999); People v. Molina,
423 Phil. 637 (2001); People v. Murillo, G.R. No. 134583, 14 July 2004, 434 SCRA 342.
[37]
338 Phil. 350, 374 (1997). See also People v. Ostia, 446 Phil. 181 (2003); People v. Nismal, 199 Phil. 649
(1982); People v. Petalcorin, G.R. No. 65376, 29 December 1989, 180 SCRA 685.
[38]
TSN, 16 September 1997, pp. 7-10.
[39]
Id. at 10.
[40]
Id.
[41]
Id. at 14-16.
[42]
People v. Porio, 427 Phil. 82, 93 (2002) citing People v. Gallardo, 323 SCRA 219, 2000; People v.
Bacor, 306 SCRA 522 (1999). See People v. Oranza, 434 Phil. 417 (2002); People v. Valdez, 395 Phil. 207
(2000); People v. Base, 385 Phil. 803 (2000); People v. Lumandong, 384 Phil. 390 (2000); People v. Calvo, Jr., 336
Phil. 655 (1997).
[43]
People v. Lobrigas, 442 SCRA 382, 392 (2002) citing People v. Velasquez, 352 SCRA 455 (2001).
[44]
Roca v. Court of Appeals, 403 Phil. 326 (2001); People v. Conde, 386 Phil. 859 (2000) citing People v.
Cristobal, 322 Phil. 551 (1996); and People v. Villanueva, 363 Phil. 17 (1999).
[45]
Emphasis supplied. TSN, 11 September 1997, pp. 15-16.
[46]
People v. Teodoro. G.R. No. 170473, 12 October 2006.
[47]
People v. Apatay, supra note 28.

Exceptions to the Hearsay Rule Cases:

2) People vs Malibiran

Republic of the Philippines

Supreme Court
 Baguio City

THIRD DIVSION

PEOPLE OF THE PHILIPPINES, G.R. No. 178301

Plaintiff/Appellee,

Present:

- versus - YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

ROLANDO Botong MALIBIRAN NACHURA, and

Accused, PERALTA, JJ.

and BEVERLY TIBO-TAN, Promulgated:

Accused/Appellant. April 24, 2009

x----------------------------------------------------------x
 DECISION

AUSTRIA-MARTINEZ:

For review is the November 13, 2006 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR
No. 02167 which affirmed the Joint Decision[2] dated September 23, 2003 of the Regional
Trial Court (RTC), Special Court for Heinous Crimes, Branch 156, of Pasig City, Metro
Manila, finding Rolando Botong Malibiran (Rolando) and Beverly Tibo-Tan (appellant)
guilty of Murder and Parricide, respectively, and sentencing them to suffer the penalty
of reclusion perpetua.

The conviction arose from the death of Reynaldo Tan (Reynaldo) on February 5,
1995. The antecedents that led to Reynaldo's death, however, go way back in the 70's
when Reynaldo left his common-law wife, Rosalinda Fuerzas (Rosalinda), and their two (2)
children, Jessie and Reynalin, in Davao, and went to Manila to seek greener
pastures. While in Manila, Reynaldo met and had a relationship with appellant. They
eventually married in 1981. Reynaldo and appellant begot three (3) children Renevie, Jag-
Carlo and Jay R.

In 1984, Reynaldo's and Rosalinda's paths crossed again and they resumed their
relationship. This led to the souring of Reynaldo's relationship with appellant; and in 1991,
Reynaldo moved out of the conjugal house and started living again with Rosalinda,
although Reynaldo maintained support of and paternal ties with his children.
On that fateful day of February 5, 1995, Reynaldo and appellant were in Greenhills with
their children for their usual Sunday gallivant. After finishing lunch at the Kimpura
restaurant, the family separated at around 2:00 o'clock in the afternoon to do some
shopping. Later, they regrouped and purchased groceries at Unimart. At around 4:00
o'clock in the afternoon, the family stepped out of the shopping mall and Reynaldo
proceeded to the parking lot to get his red Honda Accord, while the rest of his family
stayed behind and waited. Immediately thereafter, the family heard an explosion coming
from the direction where Reynaldo parked his car. Appellant and Renevie got curious and
proceeded to the parking lot. There, they saw the Honda Accord burning, with Reynaldo
lying beside the driver's seat, burning, charred and bleeding profusely. A taxi driver
named Elmer Paug (Elmer) appeared and pulled Reynaldo out of the car. Reynaldo was
then rushed to the Cardinal Santos Medical Hospital where he eventually died because of
the severe injuries he sustained.[3] The underlying cause of his death was Multiple Fracture
& Multiple Vascular Injuries Secondary to Blast Injury.[4]

An investigation was conducted by the police after which two separate

Informations for Murder and Parricide, dated September 10, 1997, were filed against
appellant, Rolando and one Oswaldo Banaag (Oswaldo).

The Information in Criminal Case No. 113065-H accused Rolando and Oswaldo of
the crime of Murder, to wit:

On February 5, 1995, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court,
the accused, conspiring and confederating with Beverly Tibo-Tan, and three other individuals
whose identities are still unknown, did then and there willfully, unlawfully, and feloniously, with
intent to kill, treachery, evidence (sic) premeditation and with the use of explosion, plan, plant the
explosive, and kill the person of Reynaldo C. Tan, by placing said grenades on the drivers side of his
car, and when said victim opened his car, an explosion happened, thereby inflicting upon the latter
mortal wound which was the direct and immediate cause of his death.
 The accused Oswaldo, without having participated in said crime of murder as principal, did and
there willfully, unlawfully and feloniously take part, as an accomplice, in its commission, by
cooperating in the execution of the offense by previous and simultaneous acts.

Contrary to law.[5]

The Information in Criminal Case No. 113066-H accused appellant of the crime of
Parricide, to wit:

On February 5, 1995, in San Juan Metro Manila and within the jurisdiction of this Honorable Court,
the accused, while still married to Reynaldo C. Tan, and such marriage not having been annulled
and dissolved by competent authority, conspiring and confederating with Rolando V. Malibiran,
and three other individuals whose identities are still unknown, did then and there willfully,
unlawfully and feloniously with intent to kill, treachery, evidence (sic) premeditation and with the
use of explosion, plan, plant the explosive, and kill the person Reynado C. Tan, by placing said
grenades on the drivers side of his car, and when said victim opened his car, an explosion
happened, thereby inflicting upon the latter mortal wound which was the direct and immediate
cause of his death.

Contrary to law.[6]

Rolando and appellant pleaded not guilty on arraignment.[7] Their co-accused, Oswaldo,
was later discharged and utilized as one of the prosecution witnesses.
The prosecution presented Jessie Tan, Inspector Silverio Dollesin, Elmer Paug, Police
Inspector Wilson Lachica, Supervising Investigating Agent Reynaldo Olasco, Rosalinda
Fuerzas, Janet Pascual (Janet), and Oswaldo, as its witnesses.

For its part, the defense presented the following witnesses, namely: Renevie Tan, Romulo
Bruzo (Romulo), Tessie Luba, Emily Cuevas, Jose Ong Santos, Victorino Feliz, Virgilio
Dacalanio and accused Rolando. Appellant did not testify in her behalf.

The RTC summed up the testimonies, as follows:

THE EVIDENCE FOR THE PROSECUTION

1. Jessie Tan, a son of Reynaldo with Rosalinda Fuerzas, testified that he moved to Manila
from Davao in 1985 to study at the instance of his father Reynaldo and to enable then to
bring back time that had been lost since his father left his mother Rosalinda and the latters
children in Davao (TSN, Jan. 27, p.14);In 1991 Reynaldo moved to their house because his
relationship with Beverly was worsening, and to exacerbate matters, Beverly had then a
lover named Rudy Pascua or Pascual, a contractor for the resthouse of Reynaldo. Reynaldo
and Beverly were then constantly quarreling over money (TSN, February 10, 1999, pp. 28-
29); Jessie had heard the name of Rolando Malibiran sometime in 1994 because one day,
Reynaldo came home before dinner feeling mad since he found Rolando Malibiran inside
the bedroom of Beverly at their White Plains residence; Reynaldo had his gun with him at
the time but Malibiran ran away (TSN, January 27, 1999, pp. 19-21). He eventually came
to learn about more details on Rolando Malibiran from Oswaldo Banaag, the family driver
of Beverly who was in the house at White Plains at the time of the incident (Ibid, p.
22). One night in December of the same year (1994) Jessie overheard Reynaldo talking
to Beverly over the phone, with the latter fuming mad. After the phone conversation he
asked his father what happened because the latter was already having an attack of
hypertension and his father told him that Beverly threatened him and that he, (Reynaldo)
will not benetit from his money if he will continue his move for separation (p. 40 ibid). This
threat was taped by Reynaldo in his conversation with Beverly (Exh. B) Jessie himself has
received threat of his life over the phone in 1989 (p. 30 ibid).

At the lounge at Cardinal Santos Hospital, on the day of the mishap, Jessie testified on the
emotional state of his mother Rosalinda while in said Hospital; that she was continuously
crying while she was talking to Jessies uncle. When asked where Beverly was and her
emotional state, he said that Beverly was also at the lounge of the said hospital, sometimes
she is seated and then she would stand up and then sit again and then stand up again. He did
not see her cry hindi ko po syang nakitang umiyak (pp. 52-23 ibid). When asked if his
father had enemies when he was alive, he said he knows of no one (p.54 ibid).Jessie was
informed by his mother (Rosalinda) few months after the death of Reynaldo that there was
a letter by Rosalinda addressed to his uncle which stated that if something happened to him,
Beverly has a hand in it (p. 56 ibid, Exh. D Letter dated March 24, 1999)

On cross examination, he admitted having gone to Mandaluyong City Jail and talked with
Oswaldo Banaag about latters claim that both accused have planned to kill his father. When
asked if he knows the consequences if Beverly is convicted, on the matter of Conjugal
Partition of Property, Jessie knows that Beverlys share would be forfeited. Counsel
confirmed Jessies request of whatever property of his father remaining shall shared equally
by the legitimate and illegitimate children. Thus, Jessie confirmed as the agreement
between them (p. 28, March 24, 1999 TSN).

2. Mr. Salonga, a locksmith in Greenhills Supermarket whose work area is at the entrance
door of the grocery of Unimart testified that he can duplicate any key of any car in five (5)
minutes. And that he is accessible to any one passing to Greenhills Shopping Complex (p.
45, March 24, 1999 TSN). The Honda Car representative on the other hand testified that
the Honda Accord of the deceased has no alarm, that the Honda Accord key can be
duplicated without difficulty. And the keyless entry device of the said vehicle can be
duplicated (pp. 46-47 ibid, Stipulation. Order p. 335 record Vol. 1).

3. Insperctor Selverio Dollesin, the Chief of the Bomb Disposal Unit of the Eastern Police
District, and the Police Officer who conducted the post aftermath report of the incident
whose skills as an expert was uncontroverted, testified that the perpetrator knew who the
intended vicitim was and has reliable information as to his position when opening the
vehicle. If the intended victim does not usually drive and usually sits on the rear portion of
the vehicle (p. 49, April 14, 1999 TSN) Inspector Dollesins conclusion states that the
device (bomb) was placed in front of the vehicle in between the drivers seat and the front
door because the perpetrator had information about the victims movements, otherwise he
could have placed the device underneath the vehicle, in the rear portion of the vehicle or in
any part thereof (p. 53 ibid). He testified that persons who have minimal knowledge can set
up the explosive in the car in five (5) minutes (p. 65 ibid). The explosion will commence at
about 4-7 seconds (p. 66 ibid).

4. Elmer Paug, the taxi driver, testified that on February 5, 1995 he was just
dropping a passenger to Greenhills Shopping Complex when he heard a loud explosion at
the parking level. Being curious of the incident he hurriedly went out to look for a parking,
then proceeded to the area where the explosion occurred. He saw a man wearing a shirt and
short who is about to give assistance to a man who was a down on the ground
bloodied. Finding that the man could not do it on his own, Elmer rushed through to give
aid. He held both arms of the victim, grabbed him in the wrists and dragged him out and
brought him farther to the burning car. (pp. 7 July 7, 1999 TSN). The man lying on the
pavement has burnt fingers and hair, chest bloodied and skin already sticking to Elmers
clothes (p. 8 Ibid). He noticed two women at about two armlength from the car where he
was. The younger woman shouted Daddy, Daddy, kaya mo iyan. She was crying had
wailing (p. 10 ibid). He said that the older woman gestured her left hand exclaimed in a not
so loud voice wala bang tutulong sa amin? while her right hand clutched her shoulder bag
(p. 11 ibid). When asked if the older woman appears to be alarmed, Elmer testified that he
cannot say, and said she looked normal; he did not notice her crying. Neither of the two
female rendered assistance to drag the victim, they just followed him when he pulled him
out. The older woman never touched the victim. (p. 12 ibid). Considering that his Taxi is
quite far where the victim was lying, he flagged a taxi, and the victim was brought
to Cardinal Santos Hospital (pp. 15-16 ibid).

On cross examination, he was asked what the meaning of normal is, and he said natural
Parang walang nangyari It looks like nothing happened (p. 42 ibid). Her was uncertain as to
whether the two females joined the deceased in the taxi cab (p. 43) as he left.

5. Police Inspector Wilson Lachica testified that he was the police officer who investigated
the case. In the Cardinal Santos Hospital he was able to interview Beverly Tan. He asked
her name, address, name of the victim, how the incident happened and who their
companions were. She answered those questions in a calm manner (p. 13, Sept. 21, 1999
TSN). As per his observation which was told to his superiors, he has not seen remorse on
the part of the victim, (meaning the wife) for an investigator that is unusual. Based on his
more than six years of experience as an investigator, whenever a violent crime happened,
usually those relatives and love ones appears hysterical, upset and restless. Her reaction at
the time according to him is not normal, considering that the victim is her husband. He
interviewed persons close to the victim even at the wake at Paz Funeral in Quezon City. He
was able to interview the daughter of the lady-accused; the other lady and family or
relatives of the victim, the same with the driver of the lady accused. He came to know the
identity of the policeman linked with the lady accused, named Rolando Malibiran. He
testified that he obtained the information that he desired from the widow nonchalantly and
marked with blithe unconcern, which in his observation is unusual since she is supposed to
be the one who would diligently push through in the investigation. When asked the level of
interest as regards accused Malibiran, witness testified that because of the manner of the
commission of the crime through the use of explosives, only a trained person can do that
job (pp. 15-16 ibid).

6. Supervising Investigating Agent Reynaldo Olasco testified that his only observation on
the demeanor of Beverly Tan is that she did not give her statement readily without the
assistance of her counsel which for the investigator is quite irregular. Considering that she is
the legal wife, he could not see the reason why Beverly would bring a counsel when she is
supposed to be the complainant in the case (p. 11, April 5, 2000 TSN). He testified that
after having interviewed a representative from Honda, they had set aside the possibility that
it was a third party who used pick lock in order to have access to the Honda Accord and the
presumption is that the duplicate key or the main key was used in opening the car. The
assessment was connected with the statement of Renevie that she heard the clicking of all
the locks of the Honda Accord, which she was sure of when they left the car in the parking
lot (p. 12 ibid) In 1998 they arrested Rolando Malibiran in Candelaria Quezon, he was
fixing his owner type jeep at that time. The arresting officers waited for Beverly Tan, and
after thirty minutes they were able to arrest Beverly Tan on the same place (p 8, May 31,
2000 TSN). They searched the premises of the place where they reside and found a white
paper which he presumed to be kulam because theres some oracle words inscribe in that
white piece of paper and at the bottom is written the same of Jessie (pp. 8-9 ibid). On cross
examination, he admitted that 70% of the information on the case was given by Oswaldo
Banaag through the persistence of the NBI which convinced him to help solve the case. It
was disclosed to the investigating officer after he was released, thats the only time he gave
in to the request (p. 14, may 31, 2000 TSN). As to how the NBI operatives effected the
arrest, it was through an information from the Lucena Sub-Office (p. 17, Ibid).

7. Rosalinda Fuerzas testified that her life in Makati was medyo magulo lnag kase
nanggugulo sya sa amin. When asked who this siya was, she said Beverly. That one day
Beverly called on her and harassed her, and one day she received a murder letter
threatening that she (Rosalinda) would be around the newspaper saying that she would be
killed, like what they did in the news papers, puputu-putulin iyong mga dodo o anuman
dahil mang-aagaw daw ako (Rosalinda) ng asawa (p. 11 ibid, June 27, 2000 TSN). She
stated that her husband wanted to separate with Beverly because he found out that the latter
has paramour named Rudy Pascua contractor of Jollibee (pp. 13-14 ibid). She had never
seen Beverly appeared to be lonely when her husband was then kidnapped. A telephone
conversation with Beverly was recorded by Reynaldo which was a quarrel regarding
money. In the Cardinal Santos Hospital, she did not see Beverlys appearance to be lonely
but appeared to be a criminal, and Beverly did not cry (pp. 13-17 ibid). She mentioned the
letter of Reynaldo that if something happened to him, Beverly is the one who killed him (p.
26 Ibid; pp. 24-25, Exh. D, Vol. 1-A Record).

8. Janet Pascual testified that she was able to know Rolando Malibiran, because on March
1993 when she was in White Plains, Beverly showed her a picture of him (Malibiran) and
said to her that he is her boy friend. Witness told her that he was handsome. She was close
to Beverly that she frequently stayed in White Plains when Beverly and Reynaldo is no
longer living in the same roof. They played mahjong, chat and has heard Beverlys hurtful
emotions by reason of her philandering husband Reynaldo. Beverly told her of how she felt
bad against underwear not intented for her (p. 9, Oct. 11, 2000 TSN); that on August 1994,
Malibiran told Beverly that he has a kumapre who knows how to make kulam for an
amount of P10,000.00. That Reynaldo would just sleep and never wake up. Witness
testified that they went to Quiapo to buy the needed ingredients but nothing happened (p.
14 Ibid). The accused wanted to kill Reynaldo in a way that they would not be suspected of
having planned it, and for him just to die of bangungot. She testified that they wanted to
separate their properties but it did not push through, referring to Beverly and
Reynaldo. That Beverly heard of the house being built in Corinthian intended for Rosalinda
and family. In July 1994 Malibiran told witness testified that she heard this on their way to
Batangas, it was Beverlys birthday (p. 16 ibid). On October 1994 she asked by Malibiran to
convince Beverly to marry him, this was asked at the time when Beverly was
in Germany (p. 17 ibid).

When asked whether Beverly and Rolando ever got married the witness testified
that the two got married on November 8, 1994. (p. 155 Vol. 1-A records Exh. JJ Certificate
of Marriage). That she executed an affidavit of corroborating witnesses for Beverly and
Malibiran to facilitate the processing of their exemption in obtaining marriage license
requirement (p. 128 Ibid; Exh. BB). She is an employee of the Municipality of San
Juan. After getting married they discussed how Malibiran would get inside the car of
Reynaldo. On December of 1994, Beverly was able to duplicate Reynaldos key at the time
when they have shopped for many things, Reynaldo asked her to bring the goods to the car
in the compartment as the kids would still shop (p. 17 ibid). After having done so, she
proceeded to a key duplicator in Virra Mall and had the key duplicated. Thereafter on the
succeeding days or weeks, she was able to give the duplicate to Malibiran. That they would
use the grenade since Malibiran has one in his house but his only problem is how to get
inside the car and place the grenade (p. 18, Oct. 11, 2000 TSN; Vide p. 35 ibid)
As to when the killing would take place, the witness heard that they will do it
during the baptism of the child of Gloria, Rolando Malibirans sister. They chose that date
so that they would not be suspected of anything and that pictures would be taken in the
baptism to reflect that Malibiran took part in the same (pp. 17-18 ibid). During Reynaldos
internment when asked whether Beverly looked sad, witness said that she did not see her
sad (p. 20 ibid). On February 8, 1995, during the wake, witness met Malibiran in a canteen
in White Plains and they rode a Canter owned by Beverly, on the road while the vehicle
was cruising along Katipunan avenue near Labor Hospital, Malibiran told her among
others that on the day he placed a grenade on Reynaldos car he saw a security guard roving
and so what he did was to hurriedly tie the wire in the grenade (p. 21 ibid) not connected
with the wire unlike the one intended for Reynaldo which has a connection (p. 21 ibid). As
far as she knows, there were four or five grenades placed. She told this secret to another
friend so that in case something happened to her, it was the doing of Malibiran and Beverly.

On Cross examination, she was asked whether Malibiran did it alone, she said that he has a
look out as what Malibiran told him (p. 26 ibid). When confronted why she was testifying
only now, she said she was bothered by her conscience. As to how did she get the
information of key duplication, she said that it was told to her by Beverly (p. 35 ibid). It was
also disclosed that she did ask Atty. Morales for a sum of P5,000.00 for he to buy medicine.
9. Oswaldo Banaag (or Banaag) testified that Beverly told him that she and
Malibiran had a relationship (p. 39, April 1994 TSN). He testified that on April 10, 1994
Beverly asked him to look for a hired gunman, if he could not find one, he just look for a
poison that would kill Reynaldo, ten thousand (P10,000.00) pesos was given him for this
(p. 14 Ibid). In his sworn statement he said that Beverly asked him to seek means for
Reynaldo to die. That she will pay any amount just for him to get out of her life. He has
driven for her in going to Hilltop Police Station, Taytay Rizal to see Rolando
Malibiran. That Malibiran blames Beverly of the reason why Reynaldo is still alive and
then volunteered himself to remedy the situation, that he would seek a man that would kill
Reynaldo he made an example of a man they killed and threw in Antipolo Bangin with
Beverly, Malibiran and two other persons who appear to be policeman because they have
something budging in their waste [sic] which is assumed to be a gun, they went to
Paombong Bulacan via Malabon. He heard that they would fetch a man in Bulacan that
knows how to place a bomb in a vehicle. Near the sea they talked to a person thereat. From
Paombong they rode a banca and went to an islet where the planning was discussed as to
how much is the fee and how the killing will be had. They ordered him to return back to the
vehicle and just fetched them in Binangonan.

He swore that on February 5, 1995 around 10:30 a.m. Beverly asked one of her
siblings to call Reynaldo for them to be picked up because every Sunday, the family would
go out for recreation. Around 12:00 pm he was asked by Beverly to follow where they will
go and when they are already parked, he was instructed to fetch Malibiran in Caltex,
Katipunan near Shakeys and bring them to the place where Reynaldo was parked. In the
Caltex station he saw Malibiran with two persons who looked like policemen and another
person he previously saw in Bulacan. He drove the L300 Van, and brought them to the
parking lot where Reynaldos Honda Car was parked and Malibiran told him just drove [sic]
in the area and come back. At around 3:00 p.m. after half an hour he saw Malibiran and
company and I picked them up. He heard from the person in Bulacan Ayos na, siguradong
malinis ito. Then he was asked to drive them to Hilltop Police Station. He discovered the
death of Reynaldo when he saw and read newspaper, he called Beverly to confirm this
incident and he was asked to be hired again and drove for her. When he was in White
Plains already, he was asked by Beverly and Malibiran not to squeal what he knows of,
otherwise, his life will just be endangered. That Beverly and Malibiran were lovers since
March 1993, when they met each other in a piggery in Marikina. There was an incident that
Reynaldo saw Malibiran in their own bedroom, and there was almost a gunshot incident, he
was there because he was asked to drive the vehicle. Beverly Tans source of money was
from Reynaldo Tan, that he (Banaag) was asked frequently by Beverly who in turn would
give it to Malibiran (Exh. y, pp. 122-125 Vol. 1-A, Sworn Statement November 29, 1996).
On March 29, 1996 he was no longer driving for Beverly because he was arrested
by the Presidential Anti-Crime Commission for his alleged involvement in the kidnapping
of the father of the classmate of Renevie Tan. He was later on acquitted (p. 16, Feb. 20,
2001 TSN) and released from incarceration on May 7, 1997. When asked whether Jessie
Tan helped him to be acquitted in the kidnapping case, he said no (p. 16 ibid).
On Cross examination, he was asked how many times did Jessie Tan visit him in
prison, he said that it was Atty. Olanzo who visited him for about six times and that he saw
Jessie when he was already out of jail (pp. 24-25 ibid). He testified that there was one
incident when Reynaldo and Mabiliran almost had a shootout in the bedroom downstairs
because Malibiran was inside the bedroom where Beverly was, Reynaldo have a gun at
that time bulging in his waste [sic] (p. 40 ibid).
Further on Cross, he testified that sometime in June 1994, he with Beverly went to
Hilltop Police Station and fetched Malibiran and company to go to Paombong Bulacan,
they passed by Malabon before going to Bulacan. When they reached the bridge near the
sea, they rode a banca, about six of them plus the one rowing the boar towards an Island. In
the Island, there was one person waiting (p. 44-45 ibid). he stayed there for just for about
ten (10) minutes, and during that period, at about one arms length he overheard their
conversation concerning a man to bring the bomb in the car. When asked who was in the
banca then, he said it was Beverly, Botong (Malibiran), Janet and the man they picked up at
Hilltop. He was told to return the L300 and just wait for them in Binangonan, hence he
rode a banca to return to the bridge and then drove the L300 Van towards Binangonan (p.
50 ibid). When asked if he knows that Malibiran is engaged in the fishing business of
bangus, he had no idea (p. 45 ibid).
DEFENSE EVIDENCE

For the defense, in opposition to the testimony of Elmer Paug, it called to the witness stand
Renevie Tan. She testified that she believe that her mother (Beverly) did not kill her dad
because she was with them at the time of the incident (p. 6 Feb. 5, 2002 TSN). That it is not
true that they did nothing when his dad was lying on the ground at the time of the
incident. That her mom screamed at that time and did tried to pull her dad who was under
the car that she kept going around to find a safer place to pull him out because the car was
burning and so they could not pick her dad without burning. Her mother tried crawling
underneath the car so she can reach him but he pulled her mom aside and pulled dad risking
himself from burning (p. 11 ibid) She found out that the person who helped them was the
taxi driver, Elmer Paug.
That a driver of a Ford Fiera or Toyota Tamaraw of some kind of delivery van
boarded her dad with her mom and headed for Cardinal Santos Hospital. She said that if is
not true that her mom appeared unaffected or acting normal as if nothing happened. That it
is likewise not true when Elmer Paug said that he alone carried her dads body, and said that
there was another man who helped put her dad on the car (p. 14 ibid). She swore that her
mom was shocked and was crying at that time (pp. 112-115, Exh. U Sworn Statement of
Renevie Tan). She admitted that it was only the taxi driver who pulled out his dad from the
danger area to a safer place at about four (4) meters, while Elmer Paug was dragging her
dad, they where there following him (p. 43 February 5, 2002, TSN). That she touched her
father when they where (p. 45 ibid). It was confirmed in her testimony that it was the taxi
drivers who looked for a taxi cab ( p. 46 ibid). She asked if she observed whether her mom
carried a portion of her dads body or arms, hands, legs or buttocks of her father, she said
she could not remember (p. 7-8, February 12, 2002 TSN). When asked whether her mom
has a shoulder bag at that time, she could not remember.
She testified that her parents keep quarreling to each other may be in 1988-89 and
stopped in 1991. it was a once a month quarrel (pp. 23-24 ibid). A certain Janet Pascual
frequently stayed in their house in the months of October 1994 until February of 1995, and
her moms relationship with Janet was cordial (pp. 27-28, ibid). As regards to Malibiran, she
knows him at the month of August or September of 1994 but no knowledge of a marriage
that took place between her mom and Malibiran on November of the same year (p. 30
ibid).
Romulo Bruzo, the security guard of Tan Family at White Plains testified that there
was an offer of half a million to him by an unknown person and a demand for him to leave
the employ of Beverly Tan and a threat to his life should he testify before the Court. He
testified that Banaag was a family driver of the Tan in White Plains from March 1993 until
August 1994, after said date, he was taken by Reynaldo Tan as driver at Winreach. He
testifies that the statement of Oswaldo Banaag that he came over to White
Plains on February 5, 1995, drove the L300 Van and followed the family to Greenhills
Shopping Complex is false. Because at that time, the L300 was still parked inside White
Plains, it was just a concocted statement of Banaag because he has a grudge on Mrs. Tan as
she did not help him when he was incarcerated in Camp Crame (p.47-48 ibid).
 He was told by Banaag that they were supposed to kidnap the three siblings of
Beverly Tan but he took pity on them because Beverly is a nice person to him. He stated
that Jessie Tan helped him to be acquitted (p. 49 ibid) and promised good job and house to
live in.

As regards Janet Pascual, he testified that he had an altercation with her (Janet) because
there was an instruction for him by Renevie for Janet not to let inside the house. That Janet
got mad at them because she is not been [sic] treated the way Renevies mom did not to
her. Likewise, Renevie has refused to give her P5,000.00 allowance as her mom did before
to Janet for the latters medicine (pp. 50-51).
On account of said incident, she made a threatening remark that if she will not be
treated fairly and the P5,000.00 allowance be not given to her, she will go to the Tan
Brother and she will testify Mrs. Tan. When asked whom she was angry of Bruzo said it
was against Renevie and Atty. Morales. She was angry with the latter because she thought
that Atty. Morales was telling Renevie not to give her allowance anymore and refuse access
inside the white plains (p. 51 ibid).
When asked if he knows Malibiran, he said that he was able to join him twice
when there was a delivery of rejected bread for fish feeds in Bulacan. That he saw him
eight (8) times in a month in 1994 and just twice a week in the month of August,
September and October of said year. (p. 52 ibid). He also saw him on July of 1994 on the
occasion of Beverlys Birthday.
That on February 5, 1994, Beverly called on him to relay to Roger to fetch the
three kids in Green Hills. When asked the tone of Beverly at the time of the phone call, he
said the tone was that she was scared and confused (p. 63 ibid)
Tessie Luba, the caretaker of Manila Memorial Park testified that she was paid by
Beverly to take care of the tomb of Reynaldo and that in some points in time Jessie took
over and later her services were not availed of anymore (p. 23, April 30, 2002 TSN) That
she saw Beverly with Banaag on November 1996 (p. 8 ibid) and Jessie with Banaag in one
occasion in going to the tomb on November 1997 (p. 47 ibid) and in April 2001 (p. 20
ibid).
Emily Cuevas, one of the friends of Beverly testified that Janet Pascual is a back
fighter and a traitor, that Janet tried to convince her to testify against Beverly and if witness
will be convinced, Janet will receive a big amount of money about three (3) million from
another source. Testified that it is not true that Beverly and Malibiran orchestrated or
masterminded the death of Reynaldo, and that Janet testified because she needed money
because she is sick and diabetic (p. 7, May 21, 2002 TSN). She knows such fact by heart
that they are innocent and that they are good people (p. 20 ibid).
Victorino Felix, a police officer testified that Malibiran is a member of the
Aquarius Multi-Purpose Cooperative, a cooperative that is engaged in the culture of fish
particularly Bangus at Laguna De Bay particularly Bagumbong, Binangonan, Laguna.
He testified that sometime in 1994, he together with Malibiran waited at Tropical
Hut, Cainta for them to be picked up for Bulacan to purchase fingerlings. They were
fetched by an L300 Van driven by Oswaldo Banaag and they were around six or seven at
that time that headed first to Dampalit, Malabon, Metro Manila to meet the owner of the
fish pond, finding that the owner thereof was already in Bulacan they proceeded thereat, at
Taliptip, Bulacan. In said place, they left the L300 Van along the bridge, near the sea and
from there they rode a motor banca in going to the fingerlings ponds. He testified that
Oswaldo was not with them in going to the pond from Taliptip (pp. 11-13, Sept. 3,
2002 TSN). When asked where he was, he said he drove the L300 back (p. 14 ibid). The
pond was about three kilometers from Talilip, and they were able to buy fingerlings, loaded
it in another water transport going to Laguna Lake from Bulacan traversing Pasig River and
thereafter they returned back to Binangonan (p. 15 ibid).
On Cross, he testified that has met Banaag many times because he used to deliver
rejected for bangus feeds, but said that it was only once when Banaag drove with him, that
is sometimes in 1994 (p. 20 ibid). he testified that Malibiran together with him went to
Talilip, Bulacan to procure some fingerlings sometime in June 1995 to mid 1996 (Joint
Order, Sept. 3, 2002, p. 366 Vol. III record).

Virgilio Dacanilao testified that on February 5, 1995 at about 12:00 noon he was at the
residence of one Gloria Malibiran Santos and from there, he saw accused Rolando
Malibiran together with his wife and children, witness parents-in-law and sisters-in-
law. When asked who his parents-in-law is, he said Fernando Malibiran and Jovita
Malibiran, the parents of Rolando Malibiran (p. 5, Sept. 17, 2002 TSN). He said that they
left the occasion at around 5:00pm and at that time, accused Malibiran, with Boy Santos
and Eduardo was still playing pusoy. When asked if there was such a time that Malibiran
left the house of Gloria Santos, he said, he did not go out of the house sir (pp. 5-7 ibid).
On Cross examination, it was disclosed that he knows Malibiran at the time
witness was still his wife, the sister of Malibiran, that was sometime in 1988. when asked if
he considered Malibiran to be close to him as the brother of his wife, he said yes sir (p. 10
ibid). Asked if his relationship with him is such that he would place Malibiran in a difficult
situation, he answered, it depends on the situation (p. 11 ibid). Witness was asked how long
it would take to reach Unimart Supermarket from his residence in Malanday, he estimate it
to be more or less half an hour (p. 13 ibid). He testified that no game was ever stop [sic] on
the reason that they have to wait for Malibiran.
Said witness testimony was corroborated by Jose Ong Santos, the father of the
child who was baptized on said occasion. He testified that he played pusoy with Malibiran
at around 2:00pm, until 6:30 to 7:00 pm and there was never a time that Malibiran left the
table where they were playing except when he feels like peeing (p. 10 July 16, 2002
TSN). It was estimated at abut five times, and it took him about three to five minutes
everytime he would rise to pee and return to the table. That Malibiran may have left their
house at around 6:30 or 7:00 in the evening on February 5, 1995 (p. 11, ibid)
On Cross examination, he testified that the idea of baptism was rushly scheduled,
because he won in a cockfight three to four days before the baptism of his child at about
February 1 or 2 of 1995. That amount was about P50,000.00 (pp. 20-21 ibid). Malibiran
did not take any participation in the baptism nor was he present at the church, but was
already at the reception with his family, for lunch. He testified that Malibiran left by call of
nature, to pee, about four to five times and a span of five minutes (p. 31 ibid).

Accused Rolando Malibiran in his Counter-Affidavit said that he does intelligence work for
seven years. He doesnt know Banaag as to reckless discuss a supposed plot to kill
somebody within his hearing. That would be inconsistent with the entire training and
experience as a police officer. Especially when the expertise is intelligence work. Banaag
drove for them in June or July 1995 not in June of 1994 (for months after the death of
Reynaldo) [pp. 147-152, Exh. HH Vol. 1-a record].

He testified that he met Banaag sometime in the last quarter of 1993 at the piggery of
Beverly Tan (pp. 12-13, Oct. 8, 2002 TSN). He admitted that he was with Banaag using the
L300 Van of Beverly in one occasion, in 1994 when they purchased fingerlings from
Bulacan. They procured the same because their cooperative was culturing bangus in
Barangay Bombon, Binangonan, Rizal (pp. 14-15). He testified that in Bulacan, Banaag
was left at the foot of the bridge where the L300 was parked (p. 19 ibid) and heard
that Beverly told Banaag to go back, in White Plains (p. 21, ibid). After procuring the
fingerlings, they rode a big banca called pituya then they went back to Pritil,
Binangonan. In Pritil, they waited for Banaag (P. 26 ibid).

He denied having met Janet Pascual on Wednesday at about February 8, 1995 because
since Tuesday (February 7, 1995) he was already confined in the Camp by Order of his
Unit Commander, Chief Inspector Florentin Sipin (p. 5, January 21, 2003 TSN) because he
was under investigation by the Presidential Anti-Crime Commission. He admitted that he
met Beverly in the last quarter of 1993 (p. 8, October 22, 2002) but denied having intimate
relations with her (p. 21 ibid).

He testified that he met Janet Pascual only once, on November 1994, but said that they
never talked (p. 12, November 12, 2002 TSN). He denied having married Beverly Tan nor
did he ever requested Janet Pascual to secure a license for them to get married. He denied
having had a trip with Janet in Bulacan and admitted that he went to Zamables once, with
Beverly, kids and yaya as well as his father (p. 25, ibid), that was sometime in 1994, before
Reynaldo died. He testified that he used his own vehicle with his father in going to
Zamables. He denied seeing Reynaldo; he said he just heard him based on his conversation
with Beverly Tan which took place in the piggery in Marikina. In sum, the place of
incidents where he managed to meet and talk with Beverly Tan was in the piggery
in Marikina; at Camp station in Taytay Rizal; in Bulacan when they procured fingerlings in
Binangonan; Malabon; Zambales; White Plains and Cainta. (pp. 30; 32; 35 ibid).

He testified that he was arrested in Candelaria Quezon on December 1998 (p. 11 January
21, 2003) but denied living with Beverly Tan at the time of the arrest. He said he just
saw Beverly thirty (30) minutes after his arrest in the town proper of Candelaria, Quezon
(P. 21, ibid). He denied that he uttered the remark its better to kill Rene since you are not
benefiting from him (p. 38 ibid); never have access to grenades; never asked Beverly Tan
how he could get inside Reynaldos Car never claimed to be a sharp shooter and had never
went to Batangas uttering the remarks mentioned by Janet Pascual nor went to Batangas at
the time of Beverlys birthday.

On Cross examination, he said that he never talk to Janet at the time of his restriction and
thereafter. He had no commercial dealing with Janet nor have any romantic relations with
her (p. 8, ibid). It was only when the case was filed he was able to talk to her (p. 5, February
4, 2003 TSN). He testified that he evaded arrest because there was a pending petition for
 review filed by his lawyer before the Department of Justice despite the fact that there is an
existing warrant of arrest which he found out at the end of 1997 (p. 15 ibid).
On September 23, 2003, the RTC found Rolando guilty of Murder and appellant, of
Parricide. The dispositive portion of the Joint Decision reads as follows:

WHEREFORE, the Court finds both accused guilty beyond reasonable doubt as charged. Accused
Rolando Malibiran for the crime of Murder in Criminal Case No. 113065-H and accused Beverly
Tibo-Tan for Parricide in Criminal Case No. 113066-H defined and penalized under Article 248 and
Article 246, respectively, of the Revised Penal Code, as amended, in relation to Republic Act No.
7659 with the attendant circumstances of treachery, evident premeditation and use of explosion
and sentencing both accused the supreme penalty of DEATH, and ordering them to pay jointly and
severally to the heirs of Reynaldo Tan the amount of Fifty Thousand (P50,000.00) Pesos as
indemnity for death, Eighty Thousand (P80,000.00) Pesos as actual damages; Fifty Thousand
(P50,000.00) as moral damages; and to pay the costs.

SO ORDERED.[8]

Appellant then appealed to this Court; the appeal was, however, referred to the CA
pursuant to People v. Mateo.[9]

In its Decision dated November 13, 2006, the CA affirmed the Decision of the RTC. The
CA, however, took judicial notice of Republic Act No. 9346 prohibiting the imposition of
the death penalty and thus reduced the penalty to reclusion perpetua. The dispositive
portion of the said Decision reads as follows:

WHEREFORE, premises considered, the joint decision dated September 23, 2003 of the
Regional Trial Court, Special Court for Heinous Crimes, Branch 156, Pasig City in Criminal Case No.
113065-H for Murder and Criminal Case No. 113066-H for Parricide is hereby AFFIRMED with
Modification in that the supreme penalty of death imposed on both accused-appellants is hereby
reduced to RECLUSION PERPETUA.
 SO ORDERED.[10]

As manifested by the Office of the Solicitor General (OSG), Rolando did not file a Motion
for Reconsideration or a Notice of Appeal from the CA Decision.[11] For all intents and
purposes, the judgment of conviction as to Rolando became final and executory
on December 14, 2006. This was confirmed by CA Resolution dated January 29, 2007,
which noted that pursuant to the report dated January 23, 2007 of the Judicial Records
Division that no motion for reconsideration or notice of appeal had been filed by counsel
for appellant Rolando Malibiran, entry of judgment is issued against said appellant x x x.[12]

This review shall therefore pertain only to appellant Beverly Tibo-Tan's conviction.

Appellant and the OSG were required by the Court in its Resolution dated October 3,
2007 to file supplemental briefs, if they so desired. The OSG filed a Manifestation and
Motion that it would no longer file any supplemental brief. As regards appellant, records
show that, as of even date, she had not filed any supplemental brief, despite due
notice.[13]

In the Brief she filed with the Court prior to the endorsement of the case to the CA,
appellant raised the following assignment of errors:

I.

THE REGIONAL TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT BEVERLY TIBO TAN
GUILTY OF THE CRIME OF PARRICIDE BASED MERELY ON CIRCUMSTANCIAL EVIDENCE, THE
REQUISITES THEREOF NOT HAVING BEEN SUBSTANTIALLY ESTABLISHED;
 II.

THE REGIONAL TRIAL COURT SHOULD HAVE NOT APPRECIATED THE TESTIMONY OF
PROSECUTION WITNESS OSWALDO BANAAG AS ITS BASIS FOR ESTABLISHING CONSPIRACY
BETWEEN ACCUSED-APPELLANT MALIBIRAN AND ACCUSED-APPELLANT BEVERLY TAN, SUCH
TESTIMONY BEING HEARSAY ON SOME PARTS AND REPLETE WITH INCONSISTENCIES; [14]

Before proceeding to the merits of appellant's arguments, the Court takes note of the
RTC's observation regarding appellant's stoic stance during and after the incident and her
non-presentation as witness. The RTC took this negatively against appellant. The Court
differs therefrom.

Appellant's seeming indifference or lack of emotions cannot be categorically quantified as

an indicium of her guilt. There is no hard and fast gauge for measuring a person's reaction
or behavior when confronted with a startling, not to mention horrifying, occurrence. It
has already been stated that witnesses of startling occurrences react differently
depending upon their situation and state of mind, and there is no standard form of
human behavioral response when one is confronted with a strange, startling or frightful
experience. The workings of the human mind placed under emotional stress are
unpredictable, and people react differently some may shout, some may faint and others
may be shocked into insensibility.[15]

Also, appellant's failure to testify in her defense should not be taken against her. The
Court preserves the rule that an accused has the right to decline to testify at the trial
without any inference of guilt drawn from his failure to be on the witness stand.[16] The
constitutional right to be presumed innocent still prevails.
This notwithstanding, the totality of the circumstantial evidence presented against
appellant justifies her conviction of the crime of Parricide.

Appellant claims that the circumstantial evidence proven during trial only shows that
there was a possibility that appellant may have conspired with Rolando, but nevertheless
claims that it came short of proving her guilt beyond reasonable doubt.[17]

Appellant further argues that the testimony of Oswaldo was in some parts hearsay and
replete with inconsistencies.[18] Specifically, appellant contends that the testimony of
Oswaldo that he overheard a conversation between Malibiran (Rolando)
and Beverly (appellant) that they will fetch a man in Bulacan that knows how to place a
bomb in a vehicle is hearsay.[19] Likewise, in her Reply Brief,[20] appellant claims that the
testimony of Janet is hearsay.

Contrary to the claim of appellant, the testimonies of Oswaldo and Janet are not covered
by the hearsay rule.

The hearsay rule states that a witness may not testify as to what he merely learned from
others either because he was told, or he read or heard the same. This is derived from
Section 36, Rule 130, Revised Rules of Court, which requires that a witness can testify only
to those facts that he knows of or comes from his personal knowledge, that is, that are
derived from his perception. Hearsay testimony may not be received as proof of the truth
of what he has learned.[21]

The law, however, provides for specific exceptions to the hearsay rule. One is the doctrine
of independently relevant statements, where only the fact that such statements were
made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not
apply; hence, the statements are admissible as evidence. Evidence as to the making of
such statement is not secondary but primary, for the statement itself may constitute a
fact in issue or be circumstantially relevant as to the existence of such a fact.[22] The
witness who testifies thereto is competent because he heard the same, as this is a matter
of fact derived from his own perception, and the purpose is to prove either that the
statement was made or the tenor thereof.[23]

In this case, Oswaldo's testimony that he overhead a conversation between Rolando and
appellant that they would fetch a man in Bulacan who knew how to place a bomb in a
vehicle is admissible, if only to establish the fact that such statement was made and the
tenor thereof.Likewise, Janet may testify on matters not only uttered in her presence,
since these may be considered as independently relevant statements, but also personally
conveyed to her by appellant and Rolando.

Appellant further argues that Oswaldo's testimony to the effect that he drove the L300
van of the Tan family and brought Rolando to the parking lot where Reynaldos Honda
Accord was parked, was refuted by defense witness Romulo, the security guard of the
Tan family. Romulo testified that the L300 van never left White Plains on the day of the
incident.[24]

While the defense may have presented Security Guard Romulo to refute the testimony of
Oswaldo, it is settled that when credibility is in issue, the Supreme Court generally defers
to the findings of the trial court, considering that it was in a better position to decide the
question, having heard the witnesses themselves and observed their deportment during
trial.[25] Thus, in the absence of any palpable error, this Court defers to the trials court's
impression and conclusion that, as between Oswaldo and Romulo, the former's
testimony deserved more weight and credence.
There is nothing on record to convince the Court to depart from the findings of the
RTC. On the contrary, the testimony of Janet as corroborated by Oswaldo, though
circumstantial, leaves no doubt that appellant had in fact conspired with Rolando in
bringing about the death of her husband Reynaldo. As a rule of ancient respectability now
molded into tradition, circumstantial evidence suffices to convict, only if the following
requisites 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.[26]

The case of the prosecution was primarily built around the strength of the testimonies of
Janet and Oswaldo. The salient portions of Janet's testimony are extensively quoted
hereunder:
Q. Anything else significant that happened in the remaining of 1994, Ms. Pascual?

A. After they were married, they talked about what they're gonna do for Rene.

Q. Where did they discuss it?

A. Inside the car, Botong was asking Beverly how would he be able to get inside the car since he
has no key and Beverly said that she can do something about it and so it was in the last
week of November 1994 of first week of December 1994 when they shopped for so many
things.

Q. Who is (sic) with him?

A. Rene, Beverly and her three kids. Rene asked her since Rene and kids would still shop, Rene
asked her to brings the goods to the car in the compartment.

Q. And then?

A. And after Beverly placed the things inside the compartment, she had with her the key, she
proceeded to a key duplicator in Virra Mall and had the key duplicated.
Q. When did she give the key to Malibiran, if you know?

A. That was already December, I cannot recall the exact date, sir.

Q. Why did Mr. Malibiran need the key?

A. Because they planned, since they cannot use the gun Butch said that they would use grenade
instead because he had a grenade in his house. But their only problem is how to get inside
the car.

COURT:

Who is Butch?

A. Mr. Malibiran, your Honor.

COURT

Butch and Botong are one and the same person?

A. Yes, your Honor.

Q. Did they discuss how, where and when they would planted the grenade in the car of Rene?

A. I heard from them that they would do it during the baptismal of the child of Gloria who is the
sister of Butch.

Q. And Butch is Botong?

A. Botong, sir.

Q. Do you know when that binyag when supposed to be held?

A. The baptismal be held on February 5, 1995, sir.

Q. Why did they choose that date of the binyag?

A. So that if a picture was taken during the baptism, there would be witnesses that they were in the
baptism, they would not be suspected that they have something to do with that.[27]

xxxx

Q. What day of the week was this?

A. Sunday, Ma'm.

Q. What kind of kind [sic] was duplicated?

A. The key in the new car of Rene the Honda Accord.

Court:

But in the first place, you were not there when it was duplicated? How you were [sic] able
to know that it was indeed duplicated?

A. Because after Beverly had duplicated the key, she told me that she was able to have the key
duplicated and she told me how she did it and she told me that she will give the key to
Butch.

Q. Did she show you the duplicated key?

A. Ginanoon niya lang.

Q. What does it looked [sic] like?

A. Iyong mahaba na malaki. Hindi ko na inano basta susi, nag-iisa.

 Q. On what occasion did she tell you about this?

A. None, I was just in White Plains.

Q. When was this?

A. That was December, 1994.

Q. What was their decision when they will execute the plan?

A. It will be during the baptismal of the child of Gloria because Butch is one of the
sponsors.[28] (Emphasis Supplied)

In addition, Oswaldo testified on the occurrences on the day of the incident, in this wise:

Q: Why did you go to Greenhills?

A. I was told by Ate Beverly to follow them wherever they go.

Q. What time did she tell you to go there?

A. After lunch, sir.

Q. What vehicle did you use to follow her?

A. L300, sir.

Q. Upon whose instruction?

A. Ate Beverly, sir.

Q. Did you in fact follow her?

A. Yes, sir.
Q. What time did they reach. the[W]hiteplains?

A. Almost 1 o'clock, sir.

Q. Incidentally, who was with Beverly?

A. Kuya Rene Tan, Beverly Tan, Renebie, Jag and JR.

Q. What car did they use?

A. Honda Accord.

Q. Color?

A. Red, sir.

Q. Who drived [sic]?

A. Kuya Rene, sir.

Q. What part of Greenhills did they go?

A. The parking lot infront [sic] of Unimart, sir.

Q. What did you do when they come [sic] to Greenhills?

A. When I found out they already parked and Kuya Rene got in I went straight to Katipunan.

Q. Why?

A. Because I was told by Ate to fetch Botong.

Q. Where in Katipunan?
A. In Caltex near Shakeys.

COURT

Who is Botong?

A. Rolando Malibiran, Your Honor.

Q. The accused in this case?

A. Yes, your Honor. [29]

xxxx

Q. You picked up Malibiran at Caltex on February 5, 1995?

A. Yes, sir.

Q. What time was that?

A. Around 2 o'clock, sir.

Q. Who if any was with him?

A. Two guys. One whom I saw in [sic] Bulacan and the one whom we sinakay at Hilltop.

Q. When did you go in [sic] Bulacan?

A. In June 1994, sir.

Q. With whom?

A. Botong, Beverly, Janet, I and two guys in Hilltop because that is the instruction of Beverly.
Q. Do you know the name of the two guys from Hilltop?

A. If given the chance I can recognize them but I do not know them by name.

Q. What did you do in Bulacan?

A. We went to the Island near the sea.

Q. What did you do at that Island?

A. They talked to a person.

Q. What if you know the date [sic] all about?

A. As far as I remember they talked about the plans about the killing of Kuya Rene.[30]

xxxx

Q. Where did they ride on Feb. 5, 1995?

A. In Katipunan, sir.

Q. What did they ride?

A. L300 that I was driving, sir.

Q. Where if any did you go after picking them up?

A. From Caltex we proceeded to Greenhills.

Q. Why?
A. Because that is the instruction of Ate Beverly. Where they were, I will drop them there.

Q. Did you do that?

A. Yes, sir.

Q. Where exactly did you drop them on?

A. In the place where Kuya Rene was parked.[31]

xxxx

COURT: x x x What happened while they were inside the vehicle while you were going back to the
place as instructed by Beverly?

A. After that I brought them where the car of Kuya Rene was parked, Your Honor. Before they
alighted, Botong asked, dito na ba?[32]

Atty. Rondain:

So you replied Opo, dyan po pumasok si Kuya Rene?

A. After I alighted they just go [sic] around.

Q. Where?

A. In Greenhills, sir.

Q. Then, what happened?

 A. After half an hour I saw Kuya Botong, the three of them. Then they stopped me and the three
of them boarded the vehicle.

Q. What happened?

A. After they boarded, the man from Bulacan said, ano pare, malinis na paggawa nito. Then, I
was told by Botong to bring them to Hilltop.[33]

Based on the foregoing, the testimonies of Janet and Oswaldo clearly link appellant to the
planning of the crime. True, as intimated by appellant, she may not have been at the
scene of the crime at the time of the explosion;[34] but then again, if she was, then she
would have suffered the same fate as Reynaldo. Moreover, the nature of the crime and
the manner of its execution, i.e., via a booby trap, does not demand the physical presence
of the perpetrator at the very time of its commission. In fact, the very manner in which it
was carried out necessitated prior scheming and execution for it to succeed. Thus,
appellant's absence from the actual scene of the crime does not negate conspiracy with
Rolando in plotting the death of her husband. A conspiracy exists even if not all the
parties committed the same act, but the participants performed specific acts that
indicated unity of purpose in accomplishing a criminal design.[35] Moreover, direct proof of
previous agreement to commit an offense is not necessary to prove conspiracy --
conspiracy may be proven by circumstantial evidence.[36]

The testimonies of Janet and Oswaldo established the following set of

circumstances which, if taken collectively, show the guilt of appellant: that appellant and
Rolando conspired, planned and agreed to kill Reynaldo using a grenade; that appellant
duplicated the key to the red Honda Accord of Reynaldo so that Rolando could gain
access to the car; that appellant thereafter gave the duplicate key to Rolando; that on
February 5, 1995, appellant told Oswaldo to follow the red Honda Accord of Reynaldo
until the latter parked the car; that appellant told Oswaldo to thereafter pick up Rolando
at Katipunan and bring the latter to where Reynaldo parked his red Honda
Accord. Reynaldo died soon after due to injuries he sustained from an explosion caused
by grenades planted in his car.

Another notable fact is that according to the expert opinion of Inspector Selverio Dollesin,
Chief of the Bomb Disposal Unit of the Eastern Police District, the perpetrator had
information about the victim's movements. Dollesin also observed that the perpetrator
knew his intended victim, since the grenade was specifically placed in between the
driver's seat and the front door. That the perpetrator knew the victim's movements was
further corroborated by the affidavits executed by the Tan children, Renevie[37] and Jag
Carlo[38], attesting that while they spent their Sundays with their father, this was the only
time that they spent a Sunday in Greenhills. Only someone who had close personal
contact with Reynaldo would know his movements, where the car would be parked, and
that he was the one who usually drove the red Honda Accord, such that it was precisely
positioned to ensure damage to the intended victim.

There is no doubt that, based on the testimony of Janet, it was Rolando who planted the
grenades inside the car of Reynaldo, to wit:

Q. Where did you go?

A. When I was inside the Canter, Botong (Rolando) was asking me while the vehicle was moving
slowly. He asked me what happened in the funeral parlor.

Q. And what did you say?

A. I told him that Major Penalosa called me for an interview but I did not say anything.

Then were already in front of the V. Luna Hospital.

COURT

What Hospital?
 A. V. Luna, your Honor, along Katipunan.

COURT

Luna in Katipunan?

A. V. Luna is going to Katipunan, your Honor. It was Labor Hospital, your Honor and not V.
Luna. Then Botong told me that on the day he placed the grenade, he was seeing a guard
roving and so what he did since he was already perspiring at that time he hurriedly tied
the wire in the grenade.

Atty. Rondain:

Iqoute na lang natin.

COURT

Dinali-dali niyang ibinuhol ang alambre. That's her term.[39] (Emphasis Supplied)

What sealed appellant's fate was that, as observed by the RTC, there were already
outstanding warrants of arrest against appellant and Rolando as early as September 11,
1997; yet they evaded arrest and were only arrested on December 4, 1998.[40] It is well
settled that flight, when unexplained, is a circumstance from which an inference of guilt
may be drawn. The wicked flee, even when no man pursueth; but the righteous are as
bold as a lion.[41] Appellant did not even proffer the slightest explanation for her flight.

All told, this Court is convinced beyond a reasonable doubt that appellant is guilty of the
crime as charged. Moreover, considering the manner in which appellant and Rolando
planned and executed the crime, the RTC was correct in appreciating the aggravating
circumstances of treachery, evident premeditation, and use of explosives. Thus, appellant
is guilty of the crime of Parricide as provided in the Revised Penal Code, to wit:

Article 246. Parricide- Any person who shall kill his father, mother, or child, whether legitimate
or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by reclusion perpetua to death. (Emphasis Supplied)

Moreover, the Revised Penal Code provides for death as the proper penalty:

Article 63. Rules for the application of indivisible penalties.

xxxx

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:

When in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.

However, as observed by the CA, with the effectivity of Republic Act (R.A.) No. 9346
entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines on June 24,
2006, the imposition of the penalty of death has been prohibited. Thus, the proper
penalty to be imposed on appellant as provided in Section 2, paragraph (a) of said law
is reclusion perpetua.[42] The applicability of R.A. No. 9346 is undeniable in view of the
principle in criminal law that favorabilia sunt amplianda adiosa restrigenda. Penal laws
that are favorable to the accused are given retroactive effect.[43]

In addition, appellant is not eligible for parole pursuant to Section 3 of R.A. No. 9346,
which states:
 SECTION 3. Persons convicted with reclusion perpetua, or those whose sentences will be
reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under
Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Lastly, as to the award of damages, the RTC awarded the following amounts:
(1) P50,000.00 as civil indemnity for death, (2) P80,000.00 as actual damages, and
(3) P50,000.00 as moral damages.

In the recent case of People v. Regalario,[44] the Court stated:

While the new law prohibits the imposition of the death penalty, the penalty provided for
by law for a heinous offense is still death and the offense is still heinous. Consequently, the
civil indemnity for the victim is still P75,000.00. x x x the said award is not dependent on
the actual imposition of the death penalty but on the fact that qualifying circumstances
warranting the imposition of the death penalty attended the commission of the offense.

As to the award of moral and exemplary damages x x x. Moral damages are awarded
despite the absence of proof of mental and emotional suffering of the victim's heirs. As
borne out by human experience, a violent death invariably and necessarily brings about
emotional pain and anguish on the part of the victim's family. If a crime is committed with
an aggravating circumstance, either qualifying or generic, an award of exemplary damages
is justified under Article 2230 of the New Civil Code. This kind of damage is intended to
serve as deterrent to serious wrongdoings and as vindication of undue sufferings and
wanton invasion of the rights of an injured, or as a punishment for those guilty of
outrageous conduct. However, consistent with recent jurisprudence on heinous crimes
where the imposable penalty is death but reduced to reclusion perpetua pursuant to
Republic Act No. 9346, the award of moral damages should be increased from P50,000.00
to P75,000.00 while the award of exemplary damages should be increased
from P25,000.00 to P30,000.00.
Consistent therewith, the RTC's award should be modified: the civil indemnity should be
increased to P75,000.00, and moral damages to P75,000.00.

Moreover, although not awarded by the RTC and pursuant to Regalario, exemplary
damages in the amount of P30,000.00 is likewise warranted because of the presence of the
aggravating circumstances of intent to kill, treachery, evident premeditation and the use of
explosives.The imposition of exemplary damages is also justified under Art. 2229 of the
Civil Code in order to set an example for the public good.[45]
However, the award of P80,000.00 by the RTC as actual damages is deleted for lack of
competent evidence to support it. Only substantiated and proven expenses, or those that
appear to have been genuinely incurred in connection with the death, wake or burial of the
victim will be recognized by the court.[46] In lieu thereof, appellant should pay temperate
damages in the amount of P25,000.00, said amount being awarded in homicide or murder
cases when no evidence of burial and funeral expenses is presented in the trial court,[47] and
in accordance with prevailing jurisprudence.[48] Under Article 2224 of the Civil Code,
temperate damages may be awarded when the Court finds that some pecuniary loss has
been suffered but its amount cannot, from the nature of the case, be proved with certainty.

Finally, Section 11, Rule 122 of the Rules of Court provides that:

An appeal taken by one or more of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate court is favorable and applicable to
the latter.

Since Rolando did not appeal the decision of the CA, only portions of this judgment that
are favorable to Rolando may affect him. On the other hand, portions of this judgment that
are unfavorable to Rolando cannot apply to him. Thus, he cannot be made liable to pay for
exemplary damages, as the same were not awarded by the RTC.[49] However, he benefits
from this Court's finding that, instead of actual damages, only temperate damages should
be awarded to the heirs of the victim.
WHEREFORE, the Court of Appeals Decision dated November 13, 2006 and Resolution
dated September 23, 2003, finding appellant Beverly Tibo-Tan guilty beyond reasonable
doubt of Parricide and sentencing her to suffer the penalty of RECLUSION
PERPETUA are hereby AFFIRMED. Appellant is ineligible for parole and is further
ordered to pay, jointly and severally with Rolando Malibiran, the heirs of Reynaldo Tan the
amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00
as temperate damages. In addition, appellant is solely liable to pay the heirs of Reynaldo
Tan the amount of P30,000.00 as exemplary damages.

Costs de oficio.
SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice

Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

DIOSDADO M. PERALTA

Associate Justice
 ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice

Chairperson, Third Division

 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division

Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision

had been reached in consultation before the case was assigned to the writer of the opinion

of the Courts Division.

REYNATO S. PUNO

Chief Justice
 3) People vs Malibiran

Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVSION

PEOPLE OF THE PHILIPPINES, G.R. No. 178301

Plaintiff/Appellee,

Present:

- versus - YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

ROLANDO Botong MALIBIRAN NACHURA, and

Accused, PERALTA, JJ.

and BEVERLY TIBO-TAN, Promulgated:

Accused/Appellant. April 24, 2009

x----------------------------------------------------------x

DECISION

AUSTRIA-MARTINEZ:

For review is the November 13, 2006 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR
No. 02167 which affirmed the Joint Decision[2] dated September 23, 2003 of the Regional
Trial Court (RTC), Special Court for Heinous Crimes, Branch 156, of Pasig City, Metro
Manila, finding Rolando Botong Malibiran (Rolando) and Beverly Tibo-Tan (appellant)
guilty of Murder and Parricide, respectively, and sentencing them to suffer the penalty
of reclusion perpetua.

The conviction arose from the death of Reynaldo Tan (Reynaldo) on February 5,
1995. The antecedents that led to Reynaldo's death, however, go way back in the 70's
when Reynaldo left his common-law wife, Rosalinda Fuerzas (Rosalinda), and their two (2)
children, Jessie and Reynalin, in Davao, and went to Manila to seek greener
pastures. While in Manila, Reynaldo met and had a relationship with appellant. They
eventually married in 1981. Reynaldo and appellant begot three (3) children Renevie, Jag-
Carlo and Jay R.
In 1984, Reynaldo's and Rosalinda's paths crossed again and they resumed their
relationship. This led to the souring of Reynaldo's relationship with appellant; and in 1991,
Reynaldo moved out of the conjugal house and started living again with Rosalinda,
although Reynaldo maintained support of and paternal ties with his children.

On that fateful day of February 5, 1995, Reynaldo and appellant were in Greenhills with
their children for their usual Sunday gallivant. After finishing lunch at the Kimpura
restaurant, the family separated at around 2:00 o'clock in the afternoon to do some
shopping. Later, they regrouped and purchased groceries at Unimart. At around 4:00
o'clock in the afternoon, the family stepped out of the shopping mall and Reynaldo
proceeded to the parking lot to get his red Honda Accord, while the rest of his family
stayed behind and waited. Immediately thereafter, the family heard an explosion coming
from the direction where Reynaldo parked his car. Appellant and Renevie got curious and
proceeded to the parking lot. There, they saw the Honda Accord burning, with Reynaldo
lying beside the driver's seat, burning, charred and bleeding profusely. A taxi driver
named Elmer Paug (Elmer) appeared and pulled Reynaldo out of the car. Reynaldo was
then rushed to the Cardinal Santos Medical Hospital where he eventually died because of
the severe injuries he sustained.[3] The underlying cause of his death was Multiple Fracture
& Multiple Vascular Injuries Secondary to Blast Injury.[4]

An investigation was conducted by the police after which two separate

Informations for Murder and Parricide, dated September 10, 1997, were filed against
appellant, Rolando and one Oswaldo Banaag (Oswaldo).

The Information in Criminal Case No. 113065-H accused Rolando and Oswaldo of
the crime of Murder, to wit:
 On February 5, 1995, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court,
the accused, conspiring and confederating with Beverly Tibo-Tan, and three other individuals
whose identities are still unknown, did then and there willfully, unlawfully, and feloniously, with
intent to kill, treachery, evidence (sic) premeditation and with the use of explosion, plan, plant the
explosive, and kill the person of Reynaldo C. Tan, by placing said grenades on the drivers side of his
car, and when said victim opened his car, an explosion happened, thereby inflicting upon the latter
mortal wound which was the direct and immediate cause of his death.

The accused Oswaldo, without having participated in said crime of murder as principal, did and
there willfully, unlawfully and feloniously take part, as an accomplice, in its commission, by
cooperating in the execution of the offense by previous and simultaneous acts.

Contrary to law.[5]

The Information in Criminal Case No. 113066-H accused appellant of the crime of
Parricide, to wit:

On February 5, 1995, in San Juan Metro Manila and within the jurisdiction of this Honorable Court,
the accused, while still married to Reynaldo C. Tan, and such marriage not having been annulled
and dissolved by competent authority, conspiring and confederating with Rolando V. Malibiran,
and three other individuals whose identities are still unknown, did then and there willfully,
unlawfully and feloniously with intent to kill, treachery, evidence (sic) premeditation and with the
use of explosion, plan, plant the explosive, and kill the person Reynado C. Tan, by placing said
grenades on the drivers side of his car, and when said victim opened his car, an explosion
happened, thereby inflicting upon the latter mortal wound which was the direct and immediate
cause of his death.

Contrary to law.[6]
Rolando and appellant pleaded not guilty on arraignment.[7] Their co-accused, Oswaldo,
was later discharged and utilized as one of the prosecution witnesses.

The prosecution presented Jessie Tan, Inspector Silverio Dollesin, Elmer Paug, Police
Inspector Wilson Lachica, Supervising Investigating Agent Reynaldo Olasco, Rosalinda
Fuerzas, Janet Pascual (Janet), and Oswaldo, as its witnesses.

For its part, the defense presented the following witnesses, namely: Renevie Tan, Romulo
Bruzo (Romulo), Tessie Luba, Emily Cuevas, Jose Ong Santos, Victorino Feliz, Virgilio
Dacalanio and accused Rolando. Appellant did not testify in her behalf.

The RTC summed up the testimonies, as follows:

THE EVIDENCE FOR THE PROSECUTION

1. Jessie Tan, a son of Reynaldo with Rosalinda Fuerzas, testified that he moved to Manila
from Davao in 1985 to study at the instance of his father Reynaldo and to enable then to
bring back time that had been lost since his father left his mother Rosalinda and the latters
children in Davao (TSN, Jan. 27, p.14);In 1991 Reynaldo moved to their house because his
relationship with Beverly was worsening, and to exacerbate matters, Beverly had then a
lover named Rudy Pascua or Pascual, a contractor for the resthouse of Reynaldo. Reynaldo
and Beverly were then constantly quarreling over money (TSN, February 10, 1999, pp. 28-
29); Jessie had heard the name of Rolando Malibiran sometime in 1994 because one day,
Reynaldo came home before dinner feeling mad since he found Rolando Malibiran inside
the bedroom of Beverly at their White Plains residence; Reynaldo had his gun with him at
the time but Malibiran ran away (TSN, January 27, 1999, pp. 19-21). He eventually came
to learn about more details on Rolando Malibiran from Oswaldo Banaag, the family driver
of Beverly who was in the house at White Plains at the time of the incident (Ibid, p.
22). One night in December of the same year (1994) Jessie overheard Reynaldo talking
to Beverly over the phone, with the latter fuming mad. After the phone conversation he
asked his father what happened because the latter was already having an attack of
hypertension and his father told him that Beverly threatened him and that he, (Reynaldo)
will not benetit from his money if he will continue his move for separation (p. 40 ibid). This
threat was taped by Reynaldo in his conversation with Beverly (Exh. B) Jessie himself has
received threat of his life over the phone in 1989 (p. 30 ibid).

At the lounge at Cardinal Santos Hospital, on the day of the mishap, Jessie testified on the
emotional state of his mother Rosalinda while in said Hospital; that she was continuously
crying while she was talking to Jessies uncle. When asked where Beverly was and her
emotional state, he said that Beverly was also at the lounge of the said hospital, sometimes
she is seated and then she would stand up and then sit again and then stand up again. He did
not see her cry hindi ko po syang nakitang umiyak (pp. 52-23 ibid). When asked if his
father had enemies when he was alive, he said he knows of no one (p.54 ibid).Jessie was
informed by his mother (Rosalinda) few months after the death of Reynaldo that there was
a letter by Rosalinda addressed to his uncle which stated that if something happened to him,
Beverly has a hand in it (p. 56 ibid, Exh. D Letter dated March 24, 1999)

On cross examination, he admitted having gone to Mandaluyong City Jail and talked with
Oswaldo Banaag about latters claim that both accused have planned to kill his father. When
asked if he knows the consequences if Beverly is convicted, on the matter of Conjugal
Partition of Property, Jessie knows that Beverlys share would be forfeited. Counsel
confirmed Jessies request of whatever property of his father remaining shall shared equally
by the legitimate and illegitimate children. Thus, Jessie confirmed as the agreement
between them (p. 28, March 24, 1999 TSN).

2. Mr. Salonga, a locksmith in Greenhills Supermarket whose work area is at the entrance
door of the grocery of Unimart testified that he can duplicate any key of any car in five (5)
minutes. And that he is accessible to any one passing to Greenhills Shopping Complex (p.
45, March 24, 1999 TSN). The Honda Car representative on the other hand testified that
the Honda Accord of the deceased has no alarm, that the Honda Accord key can be
duplicated without difficulty. And the keyless entry device of the said vehicle can be
duplicated (pp. 46-47 ibid, Stipulation. Order p. 335 record Vol. 1).

3. Insperctor Selverio Dollesin, the Chief of the Bomb Disposal Unit of the Eastern Police
District, and the Police Officer who conducted the post aftermath report of the incident
whose skills as an expert was uncontroverted, testified that the perpetrator knew who the
intended vicitim was and has reliable information as to his position when opening the
vehicle. If the intended victim does not usually drive and usually sits on the rear portion of
the vehicle (p. 49, April 14, 1999 TSN) Inspector Dollesins conclusion states that the
device (bomb) was placed in front of the vehicle in between the drivers seat and the front
door because the perpetrator had information about the victims movements, otherwise he
could have placed the device underneath the vehicle, in the rear portion of the vehicle or in
any part thereof (p. 53 ibid). He testified that persons who have minimal knowledge can set
up the explosive in the car in five (5) minutes (p. 65 ibid). The explosion will commence at
about 4-7 seconds (p. 66 ibid).

4. Elmer Paug, the taxi driver, testified that on February 5, 1995 he was just
dropping a passenger to Greenhills Shopping Complex when he heard a loud explosion at
the parking level. Being curious of the incident he hurriedly went out to look for a parking,
then proceeded to the area where the explosion occurred. He saw a man wearing a shirt and
short who is about to give assistance to a man who was a down on the ground
bloodied. Finding that the man could not do it on his own, Elmer rushed through to give
aid. He held both arms of the victim, grabbed him in the wrists and dragged him out and
brought him farther to the burning car. (pp. 7 July 7, 1999 TSN). The man lying on the
pavement has burnt fingers and hair, chest bloodied and skin already sticking to Elmers
clothes (p. 8 Ibid). He noticed two women at about two armlength from the car where he
was. The younger woman shouted Daddy, Daddy, kaya mo iyan. She was crying had
wailing (p. 10 ibid). He said that the older woman gestured her left hand exclaimed in a not
so loud voice wala bang tutulong sa amin? while her right hand clutched her shoulder bag
(p. 11 ibid). When asked if the older woman appears to be alarmed, Elmer testified that he
cannot say, and said she looked normal; he did not notice her crying. Neither of the two
female rendered assistance to drag the victim, they just followed him when he pulled him
out. The older woman never touched the victim. (p. 12 ibid). Considering that his Taxi is
quite far where the victim was lying, he flagged a taxi, and the victim was brought
to Cardinal Santos Hospital (pp. 15-16 ibid).

On cross examination, he was asked what the meaning of normal is, and he said natural
Parang walang nangyari It looks like nothing happened (p. 42 ibid). Her was uncertain as to
whether the two females joined the deceased in the taxi cab (p. 43) as he left.

5. Police Inspector Wilson Lachica testified that he was the police officer who investigated
the case. In the Cardinal Santos Hospital he was able to interview Beverly Tan. He asked
her name, address, name of the victim, how the incident happened and who their
companions were. She answered those questions in a calm manner (p. 13, Sept. 21, 1999
TSN). As per his observation which was told to his superiors, he has not seen remorse on
the part of the victim, (meaning the wife) for an investigator that is unusual. Based on his
more than six years of experience as an investigator, whenever a violent crime happened,
usually those relatives and love ones appears hysterical, upset and restless. Her reaction at
the time according to him is not normal, considering that the victim is her husband. He
interviewed persons close to the victim even at the wake at Paz Funeral in Quezon City. He
was able to interview the daughter of the lady-accused; the other lady and family or
relatives of the victim, the same with the driver of the lady accused. He came to know the
identity of the policeman linked with the lady accused, named Rolando Malibiran. He
testified that he obtained the information that he desired from the widow nonchalantly and
marked with blithe unconcern, which in his observation is unusual since she is supposed to
be the one who would diligently push through in the investigation. When asked the level of
interest as regards accused Malibiran, witness testified that because of the manner of the
commission of the crime through the use of explosives, only a trained person can do that
job (pp. 15-16 ibid).

6. Supervising Investigating Agent Reynaldo Olasco testified that his only observation on
the demeanor of Beverly Tan is that she did not give her statement readily without the
assistance of her counsel which for the investigator is quite irregular. Considering that she is
the legal wife, he could not see the reason why Beverly would bring a counsel when she is
supposed to be the complainant in the case (p. 11, April 5, 2000 TSN). He testified that
after having interviewed a representative from Honda, they had set aside the possibility that
it was a third party who used pick lock in order to have access to the Honda Accord and the
presumption is that the duplicate key or the main key was used in opening the car. The
assessment was connected with the statement of Renevie that she heard the clicking of all
the locks of the Honda Accord, which she was sure of when they left the car in the parking
lot (p. 12 ibid) In 1998 they arrested Rolando Malibiran in Candelaria Quezon, he was
fixing his owner type jeep at that time. The arresting officers waited for Beverly Tan, and
after thirty minutes they were able to arrest Beverly Tan on the same place (p 8, May 31,
2000 TSN). They searched the premises of the place where they reside and found a white
paper which he presumed to be kulam because theres some oracle words inscribe in that
white piece of paper and at the bottom is written the same of Jessie (pp. 8-9 ibid). On cross
examination, he admitted that 70% of the information on the case was given by Oswaldo
Banaag through the persistence of the NBI which convinced him to help solve the case. It
was disclosed to the investigating officer after he was released, thats the only time he gave
in to the request (p. 14, may 31, 2000 TSN). As to how the NBI operatives effected the
arrest, it was through an information from the Lucena Sub-Office (p. 17, Ibid).

7. Rosalinda Fuerzas testified that her life in Makati was medyo magulo lnag kase
nanggugulo sya sa amin. When asked who this siya was, she said Beverly. That one day
Beverly called on her and harassed her, and one day she received a murder letter
threatening that she (Rosalinda) would be around the newspaper saying that she would be
killed, like what they did in the news papers, puputu-putulin iyong mga dodo o anuman
dahil mang-aagaw daw ako (Rosalinda) ng asawa (p. 11 ibid, June 27, 2000 TSN). She
stated that her husband wanted to separate with Beverly because he found out that the latter
has paramour named Rudy Pascua contractor of Jollibee (pp. 13-14 ibid). She had never
seen Beverly appeared to be lonely when her husband was then kidnapped. A telephone
conversation with Beverly was recorded by Reynaldo which was a quarrel regarding
money. In the Cardinal Santos Hospital, she did not see Beverlys appearance to be lonely
but appeared to be a criminal, and Beverly did not cry (pp. 13-17 ibid). She mentioned the
letter of Reynaldo that if something happened to him, Beverly is the one who killed him (p.
26 Ibid; pp. 24-25, Exh. D, Vol. 1-A Record).

8. Janet Pascual testified that she was able to know Rolando Malibiran, because on March
1993 when she was in White Plains, Beverly showed her a picture of him (Malibiran) and
said to her that he is her boy friend. Witness told her that he was handsome. She was close
to Beverly that she frequently stayed in White Plains when Beverly and Reynaldo is no
longer living in the same roof. They played mahjong, chat and has heard Beverlys hurtful
emotions by reason of her philandering husband Reynaldo. Beverly told her of how she felt
bad against underwear not intented for her (p. 9, Oct. 11, 2000 TSN); that on August 1994,
Malibiran told Beverly that he has a kumapre who knows how to make kulam for an
amount of P10,000.00. That Reynaldo would just sleep and never wake up. Witness
testified that they went to Quiapo to buy the needed ingredients but nothing happened (p.
14 Ibid). The accused wanted to kill Reynaldo in a way that they would not be suspected of
having planned it, and for him just to die of bangungot. She testified that they wanted to
separate their properties but it did not push through, referring to Beverly and
Reynaldo. That Beverly heard of the house being built in Corinthian intended for Rosalinda
and family. In July 1994 Malibiran told witness testified that she heard this on their way to
Batangas, it was Beverlys birthday (p. 16 ibid). On October 1994 she asked by Malibiran to
convince Beverly to marry him, this was asked at the time when Beverly was
in Germany (p. 17 ibid).

When asked whether Beverly and Rolando ever got married the witness testified
that the two got married on November 8, 1994. (p. 155 Vol. 1-A records Exh. JJ Certificate
of Marriage). That she executed an affidavit of corroborating witnesses for Beverly and
Malibiran to facilitate the processing of their exemption in obtaining marriage license
requirement (p. 128 Ibid; Exh. BB). She is an employee of the Municipality of San
Juan. After getting married they discussed how Malibiran would get inside the car of
Reynaldo. On December of 1994, Beverly was able to duplicate Reynaldos key at the time
when they have shopped for many things, Reynaldo asked her to bring the goods to the car
in the compartment as the kids would still shop (p. 17 ibid). After having done so, she
proceeded to a key duplicator in Virra Mall and had the key duplicated. Thereafter on the
succeeding days or weeks, she was able to give the duplicate to Malibiran. That they would
use the grenade since Malibiran has one in his house but his only problem is how to get
inside the car and place the grenade (p. 18, Oct. 11, 2000 TSN; Vide p. 35 ibid)
As to when the killing would take place, the witness heard that they will do it
during the baptism of the child of Gloria, Rolando Malibirans sister. They chose that date
so that they would not be suspected of anything and that pictures would be taken in the
baptism to reflect that Malibiran took part in the same (pp. 17-18 ibid). During Reynaldos
internment when asked whether Beverly looked sad, witness said that she did not see her
sad (p. 20 ibid). On February 8, 1995, during the wake, witness met Malibiran in a canteen
in White Plains and they rode a Canter owned by Beverly, on the road while the vehicle
was cruising along Katipunan avenue near Labor Hospital, Malibiran told her among
others that on the day he placed a grenade on Reynaldos car he saw a security guard roving
and so what he did was to hurriedly tie the wire in the grenade (p. 21 ibid) not connected
with the wire unlike the one intended for Reynaldo which has a connection (p. 21 ibid). As
far as she knows, there were four or five grenades placed. She told this secret to another
friend so that in case something happened to her, it was the doing of Malibiran and Beverly.

On Cross examination, she was asked whether Malibiran did it alone, she said that he has a
look out as what Malibiran told him (p. 26 ibid). When confronted why she was testifying
only now, she said she was bothered by her conscience. As to how did she get the
information of key duplication, she said that it was told to her by Beverly (p. 35 ibid). It was
also disclosed that she did ask Atty. Morales for a sum of P5,000.00 for he to buy medicine.
9. Oswaldo Banaag (or Banaag) testified that Beverly told him that she and
Malibiran had a relationship (p. 39, April 1994 TSN). He testified that on April 10, 1994
Beverly asked him to look for a hired gunman, if he could not find one, he just look for a
poison that would kill Reynaldo, ten thousand (P10,000.00) pesos was given him for this
(p. 14 Ibid). In his sworn statement he said that Beverly asked him to seek means for
Reynaldo to die. That she will pay any amount just for him to get out of her life. He has
driven for her in going to Hilltop Police Station, Taytay Rizal to see Rolando
Malibiran. That Malibiran blames Beverly of the reason why Reynaldo is still alive and
then volunteered himself to remedy the situation, that he would seek a man that would kill
Reynaldo he made an example of a man they killed and threw in Antipolo Bangin with
Beverly, Malibiran and two other persons who appear to be policeman because they have
something budging in their waste [sic] which is assumed to be a gun, they went to
Paombong Bulacan via Malabon. He heard that they would fetch a man in Bulacan that
knows how to place a bomb in a vehicle. Near the sea they talked to a person thereat. From
Paombong they rode a banca and went to an islet where the planning was discussed as to
how much is the fee and how the killing will be had. They ordered him to return back to the
vehicle and just fetched them in Binangonan.

He swore that on February 5, 1995 around 10:30 a.m. Beverly asked one of her
siblings to call Reynaldo for them to be picked up because every Sunday, the family would
go out for recreation. Around 12:00 pm he was asked by Beverly to follow where they will
go and when they are already parked, he was instructed to fetch Malibiran in Caltex,
Katipunan near Shakeys and bring them to the place where Reynaldo was parked. In the
Caltex station he saw Malibiran with two persons who looked like policemen and another
person he previously saw in Bulacan. He drove the L300 Van, and brought them to the
parking lot where Reynaldos Honda Car was parked and Malibiran told him just drove [sic]
in the area and come back. At around 3:00 p.m. after half an hour he saw Malibiran and
company and I picked them up. He heard from the person in Bulacan Ayos na, siguradong
malinis ito. Then he was asked to drive them to Hilltop Police Station. He discovered the
death of Reynaldo when he saw and read newspaper, he called Beverly to confirm this
incident and he was asked to be hired again and drove for her. When he was in White
Plains already, he was asked by Beverly and Malibiran not to squeal what he knows of,
otherwise, his life will just be endangered. That Beverly and Malibiran were lovers since
March 1993, when they met each other in a piggery in Marikina. There was an incident that
Reynaldo saw Malibiran in their own bedroom, and there was almost a gunshot incident, he
was there because he was asked to drive the vehicle. Beverly Tans source of money was
from Reynaldo Tan, that he (Banaag) was asked frequently by Beverly who in turn would
give it to Malibiran (Exh. y, pp. 122-125 Vol. 1-A, Sworn Statement November 29, 1996).
On March 29, 1996 he was no longer driving for Beverly because he was arrested
by the Presidential Anti-Crime Commission for his alleged involvement in the kidnapping
of the father of the classmate of Renevie Tan. He was later on acquitted (p. 16, Feb. 20,
2001 TSN) and released from incarceration on May 7, 1997. When asked whether Jessie
Tan helped him to be acquitted in the kidnapping case, he said no (p. 16 ibid).
On Cross examination, he was asked how many times did Jessie Tan visit him in
prison, he said that it was Atty. Olanzo who visited him for about six times and that he saw
Jessie when he was already out of jail (pp. 24-25 ibid). He testified that there was one
incident when Reynaldo and Mabiliran almost had a shootout in the bedroom downstairs
because Malibiran was inside the bedroom where Beverly was, Reynaldo have a gun at
that time bulging in his waste [sic] (p. 40 ibid).
Further on Cross, he testified that sometime in June 1994, he with Beverly went to
Hilltop Police Station and fetched Malibiran and company to go to Paombong Bulacan,
they passed by Malabon before going to Bulacan. When they reached the bridge near the
sea, they rode a banca, about six of them plus the one rowing the boar towards an Island. In
the Island, there was one person waiting (p. 44-45 ibid). he stayed there for just for about
ten (10) minutes, and during that period, at about one arms length he overheard their
conversation concerning a man to bring the bomb in the car. When asked who was in the
banca then, he said it was Beverly, Botong (Malibiran), Janet and the man they picked up at
Hilltop. He was told to return the L300 and just wait for them in Binangonan, hence he
rode a banca to return to the bridge and then drove the L300 Van towards Binangonan (p.
50 ibid). When asked if he knows that Malibiran is engaged in the fishing business of
bangus, he had no idea (p. 45 ibid).

DEFENSE EVIDENCE

For the defense, in opposition to the testimony of Elmer Paug, it called to the witness stand
Renevie Tan. She testified that she believe that her mother (Beverly) did not kill her dad
because she was with them at the time of the incident (p. 6 Feb. 5, 2002 TSN). That it is not
true that they did nothing when his dad was lying on the ground at the time of the
incident. That her mom screamed at that time and did tried to pull her dad who was under
the car that she kept going around to find a safer place to pull him out because the car was
burning and so they could not pick her dad without burning. Her mother tried crawling
underneath the car so she can reach him but he pulled her mom aside and pulled dad risking
himself from burning (p. 11 ibid) She found out that the person who helped them was the
taxi driver, Elmer Paug.
That a driver of a Ford Fiera or Toyota Tamaraw of some kind of delivery van
boarded her dad with her mom and headed for Cardinal Santos Hospital. She said that if is
not true that her mom appeared unaffected or acting normal as if nothing happened. That it
is likewise not true when Elmer Paug said that he alone carried her dads body, and said that
there was another man who helped put her dad on the car (p. 14 ibid). She swore that her
mom was shocked and was crying at that time (pp. 112-115, Exh. U Sworn Statement of
Renevie Tan). She admitted that it was only the taxi driver who pulled out his dad from the
danger area to a safer place at about four (4) meters, while Elmer Paug was dragging her
dad, they where there following him (p. 43 February 5, 2002, TSN). That she touched her
father when they where (p. 45 ibid). It was confirmed in her testimony that it was the taxi
drivers who looked for a taxi cab ( p. 46 ibid). She asked if she observed whether her mom
carried a portion of her dads body or arms, hands, legs or buttocks of her father, she said
she could not remember (p. 7-8, February 12, 2002 TSN). When asked whether her mom
has a shoulder bag at that time, she could not remember.
She testified that her parents keep quarreling to each other may be in 1988-89 and
stopped in 1991. it was a once a month quarrel (pp. 23-24 ibid). A certain Janet Pascual
frequently stayed in their house in the months of October 1994 until February of 1995, and
her moms relationship with Janet was cordial (pp. 27-28, ibid). As regards to Malibiran, she
knows him at the month of August or September of 1994 but no knowledge of a marriage
that took place between her mom and Malibiran on November of the same year (p. 30
ibid).
Romulo Bruzo, the security guard of Tan Family at White Plains testified that there
was an offer of half a million to him by an unknown person and a demand for him to leave
the employ of Beverly Tan and a threat to his life should he testify before the Court. He
testified that Banaag was a family driver of the Tan in White Plains from March 1993 until
August 1994, after said date, he was taken by Reynaldo Tan as driver at Winreach. He
testifies that the statement of Oswaldo Banaag that he came over to White
Plains on February 5, 1995, drove the L300 Van and followed the family to Greenhills
Shopping Complex is false. Because at that time, the L300 was still parked inside White
Plains, it was just a concocted statement of Banaag because he has a grudge on Mrs. Tan as
she did not help him when he was incarcerated in Camp Crame (p.47-48 ibid).
He was told by Banaag that they were supposed to kidnap the three siblings of
Beverly Tan but he took pity on them because Beverly is a nice person to him. He stated
that Jessie Tan helped him to be acquitted (p. 49 ibid) and promised good job and house to
live in.

As regards Janet Pascual, he testified that he had an altercation with her (Janet) because
there was an instruction for him by Renevie for Janet not to let inside the house. That Janet
got mad at them because she is not been [sic] treated the way Renevies mom did not to
her. Likewise, Renevie has refused to give her P5,000.00 allowance as her mom did before
to Janet for the latters medicine (pp. 50-51).
On account of said incident, she made a threatening remark that if she will not be
treated fairly and the P5,000.00 allowance be not given to her, she will go to the Tan
Brother and she will testify Mrs. Tan. When asked whom she was angry of Bruzo said it
was against Renevie and Atty. Morales. She was angry with the latter because she thought
that Atty. Morales was telling Renevie not to give her allowance anymore and refuse access
inside the white plains (p. 51 ibid).
When asked if he knows Malibiran, he said that he was able to join him twice
when there was a delivery of rejected bread for fish feeds in Bulacan. That he saw him
eight (8) times in a month in 1994 and just twice a week in the month of August,
September and October of said year. (p. 52 ibid). He also saw him on July of 1994 on the
occasion of Beverlys Birthday.
That on February 5, 1994, Beverly called on him to relay to Roger to fetch the
three kids in Green Hills. When asked the tone of Beverly at the time of the phone call, he
said the tone was that she was scared and confused (p. 63 ibid)
Tessie Luba, the caretaker of Manila Memorial Park testified that she was paid by
Beverly to take care of the tomb of Reynaldo and that in some points in time Jessie took
over and later her services were not availed of anymore (p. 23, April 30, 2002 TSN) That
she saw Beverly with Banaag on November 1996 (p. 8 ibid) and Jessie with Banaag in one
occasion in going to the tomb on November 1997 (p. 47 ibid) and in April 2001 (p. 20
ibid).
Emily Cuevas, one of the friends of Beverly testified that Janet Pascual is a back
fighter and a traitor, that Janet tried to convince her to testify against Beverly and if witness
will be convinced, Janet will receive a big amount of money about three (3) million from
another source. Testified that it is not true that Beverly and Malibiran orchestrated or
masterminded the death of Reynaldo, and that Janet testified because she needed money
because she is sick and diabetic (p. 7, May 21, 2002 TSN). She knows such fact by heart
that they are innocent and that they are good people (p. 20 ibid).
 Victorino Felix, a police officer testified that Malibiran is a member of the
Aquarius Multi-Purpose Cooperative, a cooperative that is engaged in the culture of fish
particularly Bangus at Laguna De Bay particularly Bagumbong, Binangonan, Laguna.
He testified that sometime in 1994, he together with Malibiran waited at Tropical
Hut, Cainta for them to be picked up for Bulacan to purchase fingerlings. They were
fetched by an L300 Van driven by Oswaldo Banaag and they were around six or seven at
that time that headed first to Dampalit, Malabon, Metro Manila to meet the owner of the
fish pond, finding that the owner thereof was already in Bulacan they proceeded thereat, at
Taliptip, Bulacan. In said place, they left the L300 Van along the bridge, near the sea and
from there they rode a motor banca in going to the fingerlings ponds. He testified that
Oswaldo was not with them in going to the pond from Taliptip (pp. 11-13, Sept. 3,
2002 TSN). When asked where he was, he said he drove the L300 back (p. 14 ibid). The
pond was about three kilometers from Talilip, and they were able to buy fingerlings, loaded
it in another water transport going to Laguna Lake from Bulacan traversing Pasig River and
thereafter they returned back to Binangonan (p. 15 ibid).
On Cross, he testified that has met Banaag many times because he used to deliver
rejected for bangus feeds, but said that it was only once when Banaag drove with him, that
is sometimes in 1994 (p. 20 ibid). he testified that Malibiran together with him went to
Talilip, Bulacan to procure some fingerlings sometime in June 1995 to mid 1996 (Joint
Order, Sept. 3, 2002, p. 366 Vol. III record).

Virgilio Dacanilao testified that on February 5, 1995 at about 12:00 noon he was at the
residence of one Gloria Malibiran Santos and from there, he saw accused Rolando
Malibiran together with his wife and children, witness parents-in-law and sisters-in-
law. When asked who his parents-in-law is, he said Fernando Malibiran and Jovita
Malibiran, the parents of Rolando Malibiran (p. 5, Sept. 17, 2002 TSN). He said that they
left the occasion at around 5:00pm and at that time, accused Malibiran, with Boy Santos
and Eduardo was still playing pusoy. When asked if there was such a time that Malibiran
left the house of Gloria Santos, he said, he did not go out of the house sir (pp. 5-7 ibid).
On Cross examination, it was disclosed that he knows Malibiran at the time
witness was still his wife, the sister of Malibiran, that was sometime in 1988. when asked if
he considered Malibiran to be close to him as the brother of his wife, he said yes sir (p. 10
ibid). Asked if his relationship with him is such that he would place Malibiran in a difficult
situation, he answered, it depends on the situation (p. 11 ibid). Witness was asked how long
it would take to reach Unimart Supermarket from his residence in Malanday, he estimate it
to be more or less half an hour (p. 13 ibid). He testified that no game was ever stop [sic] on
the reason that they have to wait for Malibiran.
Said witness testimony was corroborated by Jose Ong Santos, the father of the
child who was baptized on said occasion. He testified that he played pusoy with Malibiran
at around 2:00pm, until 6:30 to 7:00 pm and there was never a time that Malibiran left the
table where they were playing except when he feels like peeing (p. 10 July 16, 2002
TSN). It was estimated at abut five times, and it took him about three to five minutes
everytime he would rise to pee and return to the table. That Malibiran may have left their
house at around 6:30 or 7:00 in the evening on February 5, 1995 (p. 11, ibid)
On Cross examination, he testified that the idea of baptism was rushly scheduled,
because he won in a cockfight three to four days before the baptism of his child at about
February 1 or 2 of 1995. That amount was about P50,000.00 (pp. 20-21 ibid). Malibiran
did not take any participation in the baptism nor was he present at the church, but was
already at the reception with his family, for lunch. He testified that Malibiran left by call of
nature, to pee, about four to five times and a span of five minutes (p. 31 ibid).

Accused Rolando Malibiran in his Counter-Affidavit said that he does intelligence work for
seven years. He doesnt know Banaag as to reckless discuss a supposed plot to kill
somebody within his hearing. That would be inconsistent with the entire training and
experience as a police officer. Especially when the expertise is intelligence work. Banaag
drove for them in June or July 1995 not in June of 1994 (for months after the death of
Reynaldo) [pp. 147-152, Exh. HH Vol. 1-a record].

He testified that he met Banaag sometime in the last quarter of 1993 at the piggery of
Beverly Tan (pp. 12-13, Oct. 8, 2002 TSN). He admitted that he was with Banaag using the
L300 Van of Beverly in one occasion, in 1994 when they purchased fingerlings from
Bulacan. They procured the same because their cooperative was culturing bangus in
Barangay Bombon, Binangonan, Rizal (pp. 14-15). He testified that in Bulacan, Banaag
was left at the foot of the bridge where the L300 was parked (p. 19 ibid) and heard
that Beverly told Banaag to go back, in White Plains (p. 21, ibid). After procuring the
fingerlings, they rode a big banca called pituya then they went back to Pritil,
Binangonan. In Pritil, they waited for Banaag (P. 26 ibid).

He denied having met Janet Pascual on Wednesday at about February 8, 1995 because
since Tuesday (February 7, 1995) he was already confined in the Camp by Order of his
Unit Commander, Chief Inspector Florentin Sipin (p. 5, January 21, 2003 TSN) because he
was under investigation by the Presidential Anti-Crime Commission. He admitted that he
met Beverly in the last quarter of 1993 (p. 8, October 22, 2002) but denied having intimate
relations with her (p. 21 ibid).

He testified that he met Janet Pascual only once, on November 1994, but said that they
never talked (p. 12, November 12, 2002 TSN). He denied having married Beverly Tan nor
did he ever requested Janet Pascual to secure a license for them to get married. He denied
having had a trip with Janet in Bulacan and admitted that he went to Zamables once, with
Beverly, kids and yaya as well as his father (p. 25, ibid), that was sometime in 1994, before
Reynaldo died. He testified that he used his own vehicle with his father in going to
Zamables. He denied seeing Reynaldo; he said he just heard him based on his conversation
with Beverly Tan which took place in the piggery in Marikina. In sum, the place of
incidents where he managed to meet and talk with Beverly Tan was in the piggery
in Marikina; at Camp station in Taytay Rizal; in Bulacan when they procured fingerlings in
Binangonan; Malabon; Zambales; White Plains and Cainta. (pp. 30; 32; 35 ibid).

He testified that he was arrested in Candelaria Quezon on December 1998 (p. 11 January
21, 2003) but denied living with Beverly Tan at the time of the arrest. He said he just
saw Beverly thirty (30) minutes after his arrest in the town proper of Candelaria, Quezon
(P. 21, ibid). He denied that he uttered the remark its better to kill Rene since you are not
benefiting from him (p. 38 ibid); never have access to grenades; never asked Beverly Tan
 how he could get inside Reynaldos Car never claimed to be a sharp shooter and had never
went to Batangas uttering the remarks mentioned by Janet Pascual nor went to Batangas at
the time of Beverlys birthday.

On Cross examination, he said that he never talk to Janet at the time of his restriction and
thereafter. He had no commercial dealing with Janet nor have any romantic relations with
her (p. 8, ibid). It was only when the case was filed he was able to talk to her (p. 5, February
4, 2003 TSN). He testified that he evaded arrest because there was a pending petition for
review filed by his lawyer before the Department of Justice despite the fact that there is an
existing warrant of arrest which he found out at the end of 1997 (p. 15 ibid).
On September 23, 2003, the RTC found Rolando guilty of Murder and appellant, of
Parricide. The dispositive portion of the Joint Decision reads as follows:

WHEREFORE, the Court finds both accused guilty beyond reasonable doubt as charged. Accused
Rolando Malibiran for the crime of Murder in Criminal Case No. 113065-H and accused Beverly
Tibo-Tan for Parricide in Criminal Case No. 113066-H defined and penalized under Article 248 and
Article 246, respectively, of the Revised Penal Code, as amended, in relation to Republic Act No.
7659 with the attendant circumstances of treachery, evident premeditation and use of explosion
and sentencing both accused the supreme penalty of DEATH, and ordering them to pay jointly and
severally to the heirs of Reynaldo Tan the amount of Fifty Thousand (P50,000.00) Pesos as
indemnity for death, Eighty Thousand (P80,000.00) Pesos as actual damages; Fifty Thousand
(P50,000.00) as moral damages; and to pay the costs.

SO ORDERED.[8]

Appellant then appealed to this Court; the appeal was, however, referred to the CA
pursuant to People v. Mateo.[9]

In its Decision dated November 13, 2006, the CA affirmed the Decision of the RTC. The
CA, however, took judicial notice of Republic Act No. 9346 prohibiting the imposition of
the death penalty and thus reduced the penalty to reclusion perpetua. The dispositive
portion of the said Decision reads as follows:
 WHEREFORE, premises considered, the joint decision dated September 23, 2003 of the
Regional Trial Court, Special Court for Heinous Crimes, Branch 156, Pasig City in Criminal Case No.
113065-H for Murder and Criminal Case No. 113066-H for Parricide is hereby AFFIRMED with
Modification in that the supreme penalty of death imposed on both accused-appellants is hereby
reduced to RECLUSION PERPETUA.

SO ORDERED.[10]

As manifested by the Office of the Solicitor General (OSG), Rolando did not file a Motion
for Reconsideration or a Notice of Appeal from the CA Decision.[11] For all intents and
purposes, the judgment of conviction as to Rolando became final and executory
on December 14, 2006. This was confirmed by CA Resolution dated January 29, 2007,
which noted that pursuant to the report dated January 23, 2007 of the Judicial Records
Division that no motion for reconsideration or notice of appeal had been filed by counsel
for appellant Rolando Malibiran, entry of judgment is issued against said appellant x x x.[12]

This review shall therefore pertain only to appellant Beverly Tibo-Tan's conviction.

Appellant and the OSG were required by the Court in its Resolution dated October 3,
2007 to file supplemental briefs, if they so desired. The OSG filed a Manifestation and
Motion that it would no longer file any supplemental brief. As regards appellant, records
show that, as of even date, she had not filed any supplemental brief, despite due
notice.[13]

In the Brief she filed with the Court prior to the endorsement of the case to the CA,
appellant raised the following assignment of errors:
 I.

THE REGIONAL TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT BEVERLY TIBO TAN
GUILTY OF THE CRIME OF PARRICIDE BASED MERELY ON CIRCUMSTANCIAL EVIDENCE, THE
REQUISITES THEREOF NOT HAVING BEEN SUBSTANTIALLY ESTABLISHED;

II.

THE REGIONAL TRIAL COURT SHOULD HAVE NOT APPRECIATED THE TESTIMONY OF
PROSECUTION WITNESS OSWALDO BANAAG AS ITS BASIS FOR ESTABLISHING CONSPIRACY
BETWEEN ACCUSED-APPELLANT MALIBIRAN AND ACCUSED-APPELLANT BEVERLY TAN, SUCH
TESTIMONY BEING HEARSAY ON SOME PARTS AND REPLETE WITH INCONSISTENCIES; [14]

Before proceeding to the merits of appellant's arguments, the Court takes note of the
RTC's observation regarding appellant's stoic stance during and after the incident and her
non-presentation as witness. The RTC took this negatively against appellant. The Court
differs therefrom.

Appellant's seeming indifference or lack of emotions cannot be categorically quantified as

an indicium of her guilt. There is no hard and fast gauge for measuring a person's reaction
or behavior when confronted with a startling, not to mention horrifying, occurrence. It
has already been stated that witnesses of startling occurrences react differently
depending upon their situation and state of mind, and there is no standard form of
human behavioral response when one is confronted with a strange, startling or frightful
experience. The workings of the human mind placed under emotional stress are
unpredictable, and people react differently some may shout, some may faint and others
may be shocked into insensibility.[15]

Also, appellant's failure to testify in her defense should not be taken against her. The
Court preserves the rule that an accused has the right to decline to testify at the trial
without any inference of guilt drawn from his failure to be on the witness stand.[16] The
constitutional right to be presumed innocent still prevails.

This notwithstanding, the totality of the circumstantial evidence presented against

appellant justifies her conviction of the crime of Parricide.

Appellant claims that the circumstantial evidence proven during trial only shows that
there was a possibility that appellant may have conspired with Rolando, but nevertheless
claims that it came short of proving her guilt beyond reasonable doubt.[17]

Appellant further argues that the testimony of Oswaldo was in some parts hearsay and
replete with inconsistencies.[18] Specifically, appellant contends that the testimony of
Oswaldo that he overheard a conversation between Malibiran (Rolando)
and Beverly (appellant) that they will fetch a man in Bulacan that knows how to place a
bomb in a vehicle is hearsay.[19] Likewise, in her Reply Brief,[20] appellant claims that the
testimony of Janet is hearsay.

Contrary to the claim of appellant, the testimonies of Oswaldo and Janet are not covered
by the hearsay rule.

The hearsay rule states that a witness may not testify as to what he merely learned from
others either because he was told, or he read or heard the same. This is derived from
Section 36, Rule 130, Revised Rules of Court, which requires that a witness can testify only
to those facts that he knows of or comes from his personal knowledge, that is, that are
derived from his perception. Hearsay testimony may not be received as proof of the truth
of what he has learned.[21]
The law, however, provides for specific exceptions to the hearsay rule. One is the doctrine
of independently relevant statements, where only the fact that such statements were
made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not
apply; hence, the statements are admissible as evidence. Evidence as to the making of
such statement is not secondary but primary, for the statement itself may constitute a
fact in issue or be circumstantially relevant as to the existence of such a fact.[22] The
witness who testifies thereto is competent because he heard the same, as this is a matter
of fact derived from his own perception, and the purpose is to prove either that the
statement was made or the tenor thereof.[23]

In this case, Oswaldo's testimony that he overhead a conversation between Rolando and
appellant that they would fetch a man in Bulacan who knew how to place a bomb in a
vehicle is admissible, if only to establish the fact that such statement was made and the
tenor thereof.Likewise, Janet may testify on matters not only uttered in her presence,
since these may be considered as independently relevant statements, but also personally
conveyed to her by appellant and Rolando.

Appellant further argues that Oswaldo's testimony to the effect that he drove the L300
van of the Tan family and brought Rolando to the parking lot where Reynaldos Honda
Accord was parked, was refuted by defense witness Romulo, the security guard of the
Tan family. Romulo testified that the L300 van never left White Plains on the day of the
incident.[24]

While the defense may have presented Security Guard Romulo to refute the testimony of
Oswaldo, it is settled that when credibility is in issue, the Supreme Court generally defers
to the findings of the trial court, considering that it was in a better position to decide the
question, having heard the witnesses themselves and observed their deportment during
trial.[25] Thus, in the absence of any palpable error, this Court defers to the trials court's
impression and conclusion that, as between Oswaldo and Romulo, the former's
testimony deserved more weight and credence.

There is nothing on record to convince the Court to depart from the findings of the
RTC. On the contrary, the testimony of Janet as corroborated by Oswaldo, though
circumstantial, leaves no doubt that appellant had in fact conspired with Rolando in
bringing about the death of her husband Reynaldo. As a rule of ancient respectability now
molded into tradition, circumstantial evidence suffices to convict, only if the following
requisites 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.[26]

The case of the prosecution was primarily built around the strength of the testimonies of
Janet and Oswaldo. The salient portions of Janet's testimony are extensively quoted
hereunder:
Q. Anything else significant that happened in the remaining of 1994, Ms. Pascual?

A. After they were married, they talked about what they're gonna do for Rene.

Q. Where did they discuss it?

A. Inside the car, Botong was asking Beverly how would he be able to get inside the car since he
has no key and Beverly said that she can do something about it and so it was in the last
week of November 1994 of first week of December 1994 when they shopped for so many
things.

Q. Who is (sic) with him?

A. Rene, Beverly and her three kids. Rene asked her since Rene and kids would still shop, Rene
asked her to brings the goods to the car in the compartment.
Q. And then?

A. And after Beverly placed the things inside the compartment, she had with her the key, she
proceeded to a key duplicator in Virra Mall and had the key duplicated.

Q. When did she give the key to Malibiran, if you know?

A. That was already December, I cannot recall the exact date, sir.

Q. Why did Mr. Malibiran need the key?

A. Because they planned, since they cannot use the gun Butch said that they would use grenade
instead because he had a grenade in his house. But their only problem is how to get inside
the car.

COURT:

Who is Butch?

A. Mr. Malibiran, your Honor.

COURT

Butch and Botong are one and the same person?

A. Yes, your Honor.

Q. Did they discuss how, where and when they would planted the grenade in the car of Rene?

A. I heard from them that they would do it during the baptismal of the child of Gloria who is the
sister of Butch.
Q. And Butch is Botong?

A. Botong, sir.

Q. Do you know when that binyag when supposed to be held?

A. The baptismal be held on February 5, 1995, sir.

Q. Why did they choose that date of the binyag?

A. So that if a picture was taken during the baptism, there would be witnesses that they were in the
baptism, they would not be suspected that they have something to do with that.[27]

xxxx

Q. What day of the week was this?

A. Sunday, Ma'm.

Q. What kind of kind [sic] was duplicated?

A. The key in the new car of Rene the Honda Accord.

Court:

But in the first place, you were not there when it was duplicated? How you were [sic] able
to know that it was indeed duplicated?

A. Because after Beverly had duplicated the key, she told me that she was able to have the key
duplicated and she told me how she did it and she told me that she will give the key to
Butch.

Q. Did she show you the duplicated key?

 A. Ginanoon niya lang.

Q. What does it looked [sic] like?

A. Iyong mahaba na malaki. Hindi ko na inano basta susi, nag-iisa.

Q. On what occasion did she tell you about this?

A. None, I was just in White Plains.

Q. When was this?

A. That was December, 1994.

Q. What was their decision when they will execute the plan?

A. It will be during the baptismal of the child of Gloria because Butch is one of the
sponsors.[28] (Emphasis Supplied)

In addition, Oswaldo testified on the occurrences on the day of the incident, in this wise:

Q: Why did you go to Greenhills?

A. I was told by Ate Beverly to follow them wherever they go.

Q. What time did she tell you to go there?

A. After lunch, sir.

Q. What vehicle did you use to follow her?

A. L300, sir.

Q. Upon whose instruction?

A. Ate Beverly, sir.

Q. Did you in fact follow her?

A. Yes, sir.

Q. What time did they reach. the[W]hiteplains?

A. Almost 1 o'clock, sir.

Q. Incidentally, who was with Beverly?

A. Kuya Rene Tan, Beverly Tan, Renebie, Jag and JR.

Q. What car did they use?

A. Honda Accord.

Q. Color?

A. Red, sir.

Q. Who drived [sic]?

A. Kuya Rene, sir.

Q. What part of Greenhills did they go?

A. The parking lot infront [sic] of Unimart, sir.

Q. What did you do when they come [sic] to Greenhills?

A. When I found out they already parked and Kuya Rene got in I went straight to Katipunan.
Q. Why?

A. Because I was told by Ate to fetch Botong.

Q. Where in Katipunan?

A. In Caltex near Shakeys.

COURT

Who is Botong?

A. Rolando Malibiran, Your Honor.

Q. The accused in this case?

A. Yes, your Honor. [29]

xxxx

Q. You picked up Malibiran at Caltex on February 5, 1995?

A. Yes, sir.

Q. What time was that?

A. Around 2 o'clock, sir.

Q. Who if any was with him?

A. Two guys. One whom I saw in [sic] Bulacan and the one whom we sinakay at Hilltop.
Q. When did you go in [sic] Bulacan?

A. In June 1994, sir.

Q. With whom?

A. Botong, Beverly, Janet, I and two guys in Hilltop because that is the instruction of Beverly.

Q. Do you know the name of the two guys from Hilltop?

A. If given the chance I can recognize them but I do not know them by name.

Q. What did you do in Bulacan?

A. We went to the Island near the sea.

Q. What did you do at that Island?

A. They talked to a person.

Q. What if you know the date [sic] all about?

A. As far as I remember they talked about the plans about the killing of Kuya Rene.[30]

xxxx

Q. Where did they ride on Feb. 5, 1995?

A. In Katipunan, sir.

Q. What did they ride?

A. L300 that I was driving, sir.

Q. Where if any did you go after picking them up?

A. From Caltex we proceeded to Greenhills.

Q. Why?

A. Because that is the instruction of Ate Beverly. Where they were, I will drop them there.

Q. Did you do that?

A. Yes, sir.

Q. Where exactly did you drop them on?

A. In the place where Kuya Rene was parked.[31]

xxxx

COURT: x x x What happened while they were inside the vehicle while you were going back to the
place as instructed by Beverly?

A. After that I brought them where the car of Kuya Rene was parked, Your Honor. Before they
alighted, Botong asked, dito na ba?[32]

Atty. Rondain:

So you replied Opo, dyan po pumasok si Kuya Rene?

A. After I alighted they just go [sic] around.

 Q. Where?

A. In Greenhills, sir.

Q. Then, what happened?

A. After half an hour I saw Kuya Botong, the three of them. Then they stopped me and the three
of them boarded the vehicle.

Q. What happened?

A. After they boarded, the man from Bulacan said, ano pare, malinis na paggawa nito. Then, I
was told by Botong to bring them to Hilltop.[33]

Based on the foregoing, the testimonies of Janet and Oswaldo clearly link appellant to the
planning of the crime. True, as intimated by appellant, she may not have been at the
scene of the crime at the time of the explosion;[34] but then again, if she was, then she
would have suffered the same fate as Reynaldo. Moreover, the nature of the crime and
the manner of its execution, i.e., via a booby trap, does not demand the physical presence
of the perpetrator at the very time of its commission. In fact, the very manner in which it
was carried out necessitated prior scheming and execution for it to succeed. Thus,
appellant's absence from the actual scene of the crime does not negate conspiracy with
Rolando in plotting the death of her husband. A conspiracy exists even if not all the
parties committed the same act, but the participants performed specific acts that
indicated unity of purpose in accomplishing a criminal design.[35] Moreover, direct proof of
previous agreement to commit an offense is not necessary to prove conspiracy --
conspiracy may be proven by circumstantial evidence.[36]

The testimonies of Janet and Oswaldo established the following set of

circumstances which, if taken collectively, show the guilt of appellant: that appellant and
Rolando conspired, planned and agreed to kill Reynaldo using a grenade; that appellant
duplicated the key to the red Honda Accord of Reynaldo so that Rolando could gain
access to the car; that appellant thereafter gave the duplicate key to Rolando; that on
February 5, 1995, appellant told Oswaldo to follow the red Honda Accord of Reynaldo
until the latter parked the car; that appellant told Oswaldo to thereafter pick up Rolando
at Katipunan and bring the latter to where Reynaldo parked his red Honda
Accord. Reynaldo died soon after due to injuries he sustained from an explosion caused
by grenades planted in his car.

Another notable fact is that according to the expert opinion of Inspector Selverio Dollesin,
Chief of the Bomb Disposal Unit of the Eastern Police District, the perpetrator had
information about the victim's movements. Dollesin also observed that the perpetrator
knew his intended victim, since the grenade was specifically placed in between the
driver's seat and the front door. That the perpetrator knew the victim's movements was
further corroborated by the affidavits executed by the Tan children, Renevie[37] and Jag
Carlo[38], attesting that while they spent their Sundays with their father, this was the only
time that they spent a Sunday in Greenhills. Only someone who had close personal
contact with Reynaldo would know his movements, where the car would be parked, and
that he was the one who usually drove the red Honda Accord, such that it was precisely
positioned to ensure damage to the intended victim.

There is no doubt that, based on the testimony of Janet, it was Rolando who planted the
grenades inside the car of Reynaldo, to wit:

Q. Where did you go?

A. When I was inside the Canter, Botong (Rolando) was asking me while the vehicle was moving
slowly. He asked me what happened in the funeral parlor.

Q. And what did you say?

 A. I told him that Major Penalosa called me for an interview but I did not say anything.

Then were already in front of the V. Luna Hospital.

COURT

What Hospital?

A. V. Luna, your Honor, along Katipunan.

COURT

Luna in Katipunan?

A. V. Luna is going to Katipunan, your Honor. It was Labor Hospital, your Honor and not V.
Luna. Then Botong told me that on the day he placed the grenade, he was seeing a guard
roving and so what he did since he was already perspiring at that time he hurriedly tied
the wire in the grenade.

Atty. Rondain:

Iqoute na lang natin.

COURT

Dinali-dali niyang ibinuhol ang alambre. That's her term.[39] (Emphasis Supplied)

What sealed appellant's fate was that, as observed by the RTC, there were already
outstanding warrants of arrest against appellant and Rolando as early as September 11,
1997; yet they evaded arrest and were only arrested on December 4, 1998.[40] It is well
settled that flight, when unexplained, is a circumstance from which an inference of guilt
may be drawn. The wicked flee, even when no man pursueth; but the righteous are as
bold as a lion.[41] Appellant did not even proffer the slightest explanation for her flight.
All told, this Court is convinced beyond a reasonable doubt that appellant is guilty of the
crime as charged. Moreover, considering the manner in which appellant and Rolando
planned and executed the crime, the RTC was correct in appreciating the aggravating
circumstances of treachery, evident premeditation, and use of explosives. Thus, appellant
is guilty of the crime of Parricide as provided in the Revised Penal Code, to wit:

Article 246. Parricide- Any person who shall kill his father, mother, or child, whether legitimate
or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of
parricide and shall be punished by reclusion perpetua to death. (Emphasis Supplied)

Moreover, the Revised Penal Code provides for death as the proper penalty:

Article 63. Rules for the application of indivisible penalties.

xxxx

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:

When in the commission of the deed there is present only one aggravating circumstance,
the greater penalty shall be applied.

However, as observed by the CA, with the effectivity of Republic Act (R.A.) No. 9346
entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines on June 24,
2006, the imposition of the penalty of death has been prohibited. Thus, the proper
penalty to be imposed on appellant as provided in Section 2, paragraph (a) of said law
is reclusion perpetua.[42] The applicability of R.A. No. 9346 is undeniable in view of the
principle in criminal law that favorabilia sunt amplianda adiosa restrigenda. Penal laws
that are favorable to the accused are given retroactive effect.[43]
In addition, appellant is not eligible for parole pursuant to Section 3 of R.A. No. 9346,
which states:

SECTION 3. Persons convicted with reclusion perpetua, or those whose sentences will be
reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under
Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Lastly, as to the award of damages, the RTC awarded the following amounts:
(1) P50,000.00 as civil indemnity for death, (2) P80,000.00 as actual damages, and
(3) P50,000.00 as moral damages.

In the recent case of People v. Regalario,[44] the Court stated:

While the new law prohibits the imposition of the death penalty, the penalty provided for
by law for a heinous offense is still death and the offense is still heinous. Consequently, the
civil indemnity for the victim is still P75,000.00. x x x the said award is not dependent on
the actual imposition of the death penalty but on the fact that qualifying circumstances
warranting the imposition of the death penalty attended the commission of the offense.

As to the award of moral and exemplary damages x x x. Moral damages are awarded
despite the absence of proof of mental and emotional suffering of the victim's heirs. As
borne out by human experience, a violent death invariably and necessarily brings about
emotional pain and anguish on the part of the victim's family. If a crime is committed with
an aggravating circumstance, either qualifying or generic, an award of exemplary damages
is justified under Article 2230 of the New Civil Code. This kind of damage is intended to
serve as deterrent to serious wrongdoings and as vindication of undue sufferings and
wanton invasion of the rights of an injured, or as a punishment for those guilty of
outrageous conduct. However, consistent with recent jurisprudence on heinous crimes
where the imposable penalty is death but reduced to reclusion perpetua pursuant to
Republic Act No. 9346, the award of moral damages should be increased from P50,000.00
to P75,000.00 while the award of exemplary damages should be increased
from P25,000.00 to P30,000.00.
Consistent therewith, the RTC's award should be modified: the civil indemnity should be
increased to P75,000.00, and moral damages to P75,000.00.

Moreover, although not awarded by the RTC and pursuant to Regalario, exemplary
damages in the amount of P30,000.00 is likewise warranted because of the presence of the
aggravating circumstances of intent to kill, treachery, evident premeditation and the use of
explosives.The imposition of exemplary damages is also justified under Art. 2229 of the
Civil Code in order to set an example for the public good.[45]

However, the award of P80,000.00 by the RTC as actual damages is deleted for lack of
competent evidence to support it. Only substantiated and proven expenses, or those that
appear to have been genuinely incurred in connection with the death, wake or burial of the
victim will be recognized by the court.[46] In lieu thereof, appellant should pay temperate
damages in the amount of P25,000.00, said amount being awarded in homicide or murder
cases when no evidence of burial and funeral expenses is presented in the trial court,[47] and
in accordance with prevailing jurisprudence.[48] Under Article 2224 of the Civil Code,
temperate damages may be awarded when the Court finds that some pecuniary loss has
been suffered but its amount cannot, from the nature of the case, be proved with certainty.

Finally, Section 11, Rule 122 of the Rules of Court provides that:

An appeal taken by one or more of several accused shall not affect those who did not
appeal, except insofar as the judgment of the appellate court is favorable and applicable to
the latter.

Since Rolando did not appeal the decision of the CA, only portions of this judgment that
are favorable to Rolando may affect him. On the other hand, portions of this judgment that
are unfavorable to Rolando cannot apply to him. Thus, he cannot be made liable to pay for
exemplary damages, as the same were not awarded by the RTC.[49] However, he benefits
from this Court's finding that, instead of actual damages, only temperate damages should
be awarded to the heirs of the victim.
WHEREFORE, the Court of Appeals Decision dated November 13, 2006 and Resolution
dated September 23, 2003, finding appellant Beverly Tibo-Tan guilty beyond reasonable
doubt of Parricide and sentencing her to suffer the penalty of RECLUSION
PERPETUA are hereby AFFIRMED. Appellant is ineligible for parole and is further
ordered to pay, jointly and severally with Rolando Malibiran, the heirs of Reynaldo Tan the
amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages and P25,000.00
as temperate damages. In addition, appellant is solely liable to pay the heirs of Reynaldo
Tan the amount of P30,000.00 as exemplary damages.

Costs de oficio.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice

Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

 Associate Justice Associate Justice

DIOSDADO M. PERALTA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
 CONSUELO YNARES-SANTIAGO
Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division

Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision

had been reached in consultation before the case was assigned to the writer of the opinion

of the Courts Division.

 REYNATO S. PUNO

Chief Justice

[1]
Penned by Associate Justice Remedios A. Salazar-Fernando, with the concurrence of Associate Justices Noel G. Tijam and Arturo
G. Tayag, rollo, pp. 3-50.
[2]
CA rollo, pp. 62-78.
[3]
TSN, January 27, 1999.
[4]
RTC Records, Volume II, p.8, Death Certificate.
[5]
Records, Vol. I, pp. 1-3.
[6]
Records ,Vol. I, pp. 77-79.
[7]
Records, Vol. I, p. 222.
[8]
Records, Vol. I, p. 78.
[9]
G.R. No. 147678-87, July 7, 2004, 433 SCRA 640.
[10]
CA rollo, p. 353.
[11]
Rollo, p. 59.
[12]
CA rollo, p. 360.
[13]
Rollo, p. 64.
[14]
CA rollo, p. 353.
[15]
Rivera v. Court of Appeals, G.R. No. 125867, May 31, 2000, 332 SCRA 416.
[16]
Arroyo Jr. v. Court of Appeals, G.R. No. 96602, November 19, 1991, 203 SCRA 750; People v. Gargoles, No. L-40885, May
18, 1978, 83 SCRA 282.
[17]
CA rollo, p. 124.
[18]
CA rollo, p. 124.
[19]
Id. at 124-125.
[20]
Id. at 272-282.
[21]
Fullero v. People, G.R. No. 170583, September 12, 2007, 533 SCRA 97.
[22]
People v. Lobrigas, G.R. No. 147649, December 17, 2002, 394 SCRA 170.
[23]
People v. Cusi, Jr., No. L- 20986, August 14, 1965, 14 SCRA 944; Cornejo, Sr. v. Sandiganbayan, No. L-58831, July 31, 1987,
152 SCRA 559.
[24]
CA rollo, p.125.
[25]
People v. Navida, G. R. No. 132239-40, December 4, 2000, 346 SCRA 821, 830.
[26]
RULES OF COURT, Rule 134, Section 4.
[27]
TSN, October 11, 2000, pp. 17-19.
[28]
TSN, October 11, 2000, pp. 35-36.
[29]
TSN, February 21, 2001, pp. 6-8.
[30]
TSN, February 21, 2001, pp. 9-10
[31]
TSN, February 21, 2001, p. 11.
[32]
TSN, February 21, 2001, p. 12.
[33]
TSN, February 21, 2001, p. 12-13.
[34]
CA rollo, p. 125.
[35]
Acejas III v. People, G.R. No. 156643, June 27, 2006, 493 SCRA 292.
[36]
Tigoy v. Court of Appeals, G.R. No. 144640, June 26, 492 SCRA 539.
[37]
Exhibit U, Envelope of Exhibits.
[38]
Exhibit V, Envelope of Exhibits.
[39]
TSN, October 11, 2000, p.21.
[40]
CA rollo, p. 296.
[41]
People v. Abatayo, G.R. No. 139456, July 7, 2004, 433 SCRA 562; People v. Lobrigas, supra note 22.
[42]
People v. Ortoa, G.R. No. 176266, August 8, 2007, 529 SCRA 536, 555.
[43]
People v. Canuto, G.R. No. 166544, July 27, 2007, 528 SCRA 366.
[44]
G.R. No. 174483, March 31, 2009.
[45]
People v. Dacillo, G.R. No. 149368, April 14, 2004, 427 SCRA 528.
[46]
People v. Bonifacio, G.R. No. 133799, February 5, 2002, 376 SCRA 134.
[47]
People v. Dacillo, supra note 45.
[48]
People v. Notarion, G.R. No. 181493, August 28, 2008; People v. Ausa, G.R. No. 174194, March 20, 2007, 518 SCRA
602; People v. Astudillo, G.R. No. 141518, April 29, 2003, 401 SCRA 723.
[49]
People v. Gandia, G.R. No. 175332, February 6, 2008, 544 SCRA 115.

4) Bedol vs COMELEC

Sec. 37. Dying Declaration

1) MArturillas vs People

First Main Issue:

Credibility of the Prosecution Evidence

According to petitioner, the charge of homicide should be dismissed, because the inherent
weakness of the prosecution’s case against him was revealed by the evidence presented. He
submits that any doubt as to who really perpetrated the crime should be resolved in his favor.

We do not agree. This Court has judiciously reviewed the findings and records of this case and finds
no reversible error in the CA’s ruling affirming petitioner’s conviction for homicide.

Basic is the rule that this Court accords great weight and a high degree of respect to factual findings
of the trial court, especially when affirmed by the CA, as in the present case.13 Here, the RTC was
unequivocally upheld by the CA, which was clothed with the power to review whether the trial court’s
conclusions were in accord with the facts and the relevant laws.14 Indeed, the findings of the trial
court are not to be disturbed on appeal, unless it has overlooked or misinterpreted some facts or
circumstances of weight and substance.15 Although there are recognized exceptions16 to the
conclusiveness of the findings of fact of the trial and the appellate courts, petitioner has not
convinced this Court of the existence of any.

Having laid that basic premise, the Court disposes seriatim the arguments proffered by petitioner
under the first main issue.

Positive Identification

Petitioner contends that it was inconceivable for Prosecution Witness Ernita Pantinople -- the
victim’s wife -- to have identified him as the assassin. According to him, her house was "a good fifty
(50) meters away from the crime scene,"17 which was "enveloped in pitch darkness."18 Because of
the alleged improbability, he insists that her testimony materially contradicted her Affidavit. The
Affidavit supposedly proved that she had not recognized her husband from where she was standing
during the shooting. If she had failed to identify the victim, petitioner asks, "how was it possible for
her to conclude that it was [p]etitioner whom she claims she saw fleeing from the scene?"19

All these doubts raised by petitioner are sufficiently addressed by the clear, direct and convincing
testimony of the witness. She positively identified him as the one "running away" immediately after
the sound of a gunshot. Certain that she had seen him, she even described what he was wearing,
the firearm he was carrying, and the direction towards which he was running. She also clarified that
she had heard the statement, "Help me p’re, I was shot by the captain," uttered after the shooting
incident. Accepting her testimony, the CA ruled thus:

"Ernita’s testimony that she saw [petitioner] at the crime scene is credible because the spot where
Artemio was shot was only 30 meters away from her house. Undoubtedly, Ernita is familiar with
[petitioner], who is her neighbor, and a long-time barangay captain of Barangay Gatungan, Bunawan
District, Davao City when the incident took place. Ernita was also able to see his face while he was
running away from the crime scene. The identification of a person can be established through
familiarity with one’s physical features. Once a person has gained familiarity with one another,
identification becomes quite an easy task even from a considerable distance. Judicial notice can
also be taken of the fact that people in rural communities generally know each other both by face
and name, and can be expected to know each other’s distinct and particular features and
characteristics."20

This holding confirms the findings of fact of the RTC. Settled is the rule that on questions of the
credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the
highest degree of respect.21 It was the trial court that had the opportunity to observe the manner in
which the witnesses had testified; as well as their furtive glances, calmness, sighs, and scant or full
realization of their oaths.22 It had the better opportunity to observe them firsthand; and to note their
demeanor, conduct and attitude under grueling examination.23

Petitioner doubts whether Ernita could have accurately identified him at the scene of the crime,
considering that it was dark at that time; that there were trees obstructing her view; and that her
house was fifty (50) meters away from where the crime was committed.

These assertions are easily belied by the findings of the courts below, as borne by the records.
Ernita testified on the crime scene conditions that had enabled her to make a positive identification
of petitioner. Her testimony was even corroborated by other prosecution witnesses, who bolstered
the truth and veracity of those declarations. Consequently, the CA ruled as follows:

"x x x Ernita’s recognition of the assailant was made possible by the lighted two fluorescent lamps in
their store and by the full moon. x x x. In corroboration, Lito testified that the place where the
shooting occurred was bright.

"The trees and plants growing in between Ernita’s house and the place where Artemio was shot to
death did not impede her view of the assailant. To be sure, the prosecution presented photographs
of the scene of the crime and its immediate vicinities. These photographs gave a clear picture of the
place where Artemio was shot. Admittedly, there are some trees and plants growing in between the
place where the house of Ernita was located and the spot where Artemio was shot. Notably,
however, there is only one gemilina tree, some coconut trees and young banana plants growing in
the place where Artemio was shot. The trees and banana plants have slender trunks which could not
have posed an obstacle to Ernita’s view of the crime scene from the kitchen window of her house
especially so that she was in an elevated position."24

This Court has consistently held that -- given the proper conditions -- the illumination produced by a
kerosene lamp, a flashlight, a wick lamp, moonlight, or starlight is considered sufficient to allow the
identification of persons.25 In this case, the full moon and the light coming from two fluorescent lamps
of a nearby store were sufficient to illumine the place where petitioner was; and to enable the
eyewitness to identify him as the person who was present at the crime scene. Settled is the rule that
when conditions of visibility are favorable and the witnesses do not appear to be biased, their
assertion as to the identity of the malefactor should normally be accepted.26

But even where the circumstances were less favorable, the familiarity of Ernita with the face of
petitioner considerably reduced any error in her identification of him.27 Since the circumstances in
this case were reasonably sufficient for the identification of persons, this fact of her familiarity with
him erases any doubt that she could have erred in identifying him. Those related to the victim of a
crime have a natural tendency to remember the faces of those involved in it. These relatives, more
than anybody else, would be concerned with seeking justice for the victim and bringing the
malefactor before the law.28

Neither was there any indication that Ernita was impelled by ill motives in positively identifying
petitioner. The CA was correct in observing that it would be "unnatural for a relative who is interested
in vindicating the crime to accuse somebody else other than the real culprit. For her to do so is to let
the guilty go free."29 Where there is nothing to indicate that witnesses were actuated by improper
motives on the witness stand, their positive declarations made under solemn oath deserve full faith
and credence.30

Inconsistency Between Affidavit and Testimony

Petitioner contends that the testimony of Ernita materially contradicted her Affidavit. According to
him, she said in her testimony that she had immediately recognized her husband as the victim of the
shooting; but in her Affidavit she stated that it was only when she had approached the body that she
came to know that he was the victim.

We find no inconsistency. Although Ernita stated in her testimony that she had recognized the victim
as her husband through his voice, it cannot necessarily be inferred that she did not see him.
Although she recognized him as the victim, she was still hoping that it was not really he. Thus, the
statement in her Affidavit that she was surprised to see that her husband was the victim of the
shooting.

To be sure, ex parte affidavits are usually incomplete, as these are frequently prepared by
administering officers and cast in their language and understanding of what affiants have
said.31 Almost always, the latter would simply sign the documents after being read to them. Basic is
the rule that, taken ex parte, affidavits are considered incomplete and often inaccurate. They are
products sometimes of partial suggestions and at other times of want of suggestions and inquiries,
without the aid of which witnesses may be unable to recall the connected circumstances necessary
for accurate recollection.32

Nevertheless, the alleged inconsistency is inconsequential to the ascertainment of the presence of

petitioner at the crime scene. Ruled the CA:
"x x x. They referred only to that point wherein Ernita x x x ascertained the identity of Artemio as the
victim. They did not relate to Ernita’s identification of [petitioner] as the person running away from the
crime scene immediately after she heard a gunshot."33

Statements Uttered Contemporaneous with the Crime

Ernita positively testified that immediately after the shooting, she had heard her husband say, "Help
me p’re, I was shot by the captain." This statement was corroborated by another witness, Lito
Santos, who testified on the events immediately preceding and subsequent to the shooting.

It should be clear that Santos never testified that petitioner was the one who had actually shot the
victim. Still, the testimony of this witness is valuable, because it validates the statements made by
Ernita. He confirms that after hearing the gunshot, he saw the victim and heard the latter cry out
those same words.

Petitioner insinuates that it was incredible for Santos to have seen the victim, but not the assailant.
The CA dismissed this argument thus:

"x x x. The natural reaction of a person who hears a loud or startling command is to turn towards the
speaker. Moreover, witnessing a crime is an unusual experience that elicits different reactions from
witnesses, for which no clear-cut standard of behavior can be prescribed. Lito’s reaction is not
unnatural. He was more concerned about Artemio’s condition than the need to ascertain the identity
of Artemio’s assailant."34

It was to be expected that, after seeing the victim stagger and hearing the cry for help, Santos would
shift his attention to the person who had uttered the plea quoted earlier. A shift in his focus of
attention would sufficiently explain why Santos was not able to see the assailant. Petitioner then
accuses this witness of harboring "a deep-seated grudge,"35 which would explain why the latter
allegedly fabricated a serious accusation.

This contention obviously has no basis. No serious accusation against petitioner was ever made by
Santos. What the latter did was merely to recount what he heard the victim utter immediately after
the shooting. Santos never pointed to petitioner as the perpetrator of the crime. The statements of
the former corroborated those of Ernita and therefore simply added credence to the prosecution’s
version of the facts. If it were true that he had an ulterior motive, it would have been very easy for
him to say that he had seen petitioner shoot the victim.

The two witnesses unequivocally declared and corroborated each other on the fact that the plea,
"Help me p’re, I was shot by the captain," had been uttered by the victim. Nevertheless, petitioner
contends that it was highly probable that the deceased died instantly and was consequently unable
to shout for help. We do not discount this possibility, which petitioner himself admits to be a
probability. In the face of the positive declaration of two witnesses that the words were actually
uttered, we need not concern ourselves with speculations, probabilities or possibilities. Said the CA:

"x x x. Thus, as between the positive and categorical declarations of the prosecution witnesses and
the mere opinion of the medical doctor, the former must necessarily prevail.

"Moreover, it must be stressed that the post-mortem examination of the cadaver of Artemio was
conducted by Dr. Ledesma only about 9:30 in the morning of November 5, 1998 or the day following
the fatal shooting of Artemio. Evidently, several hours had elapsed prior to the examination. Thus,
Dr. Ledesma could not have determined Artemio’s physical condition a few seconds after the man
was shot."36
Dying Declaration

Having established that the victim indeed uttered those words, the question to be resolved is
whether they can be considered as part of the dying declaration of the victim.

Rule 130, Section 37 of the Rules of Court, provides:

"The declaration of a dying person, made under the consciousness of impending death, may be
received in any case wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death."

Generally, witnesses can testify only to those facts derived from their own perception. A recognized
exception, though, is a report in open court of a dying person’s declaration made under the
consciousness of an impending death that is the subject of inquiry in the case.37

Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the
highest degree of credence and respect.38 Persons aware of an impending death have been known
to be genuinely truthful in their words and extremely scrupulous in their accusations.39 The dying
declaration is given credence, on the premise that no one who knows of one’s impending death will
make a careless and false accusation.40 Hence, not infrequently, pronouncements of guilt have been
allowed to rest solely on the dying declaration of the deceased victim.41

To be admissible, a dying declaration must 1) refer to the cause and circumstances surrounding the
declarant’s death; 2) be made under the consciousness of an impending death; 3) be made freely
and voluntarily without coercion or suggestions of improper influence; 4) be offered in a criminal
case, in which the death of the declarant is the subject of inquiry; and 5) have been made by a
declarant competent to testify as a witness, had that person been called upon to testify.42

The statement of the deceased certainly concerned the cause and circumstances surrounding his
death. He pointed to the person who had shot him. As established by the prosecution, petitioner was
the only person referred to as kapitan in their place.43 It was also established that the declarant, at
the time he had given the dying declaration, was under a consciousness of his impending death.

True, he made no express statement showing that he was conscious of his impending death. The
law, however, does not require the declarant to state explicitly a perception of the inevitability of
death.44 The perception may be established from surrounding circumstances, such as the nature of
the declarant’s injury and conduct that would justify a conclusion that there was a consciousness of
impending death.45 Even if the declarant did not make an explicit statement of that realization, the
degree and seriousness of the words and the fact that death occurred shortly afterwards may be
considered as sufficient evidence that the declaration was made by the victim with full
consciousness of being in a dying condition.46

Also, the statement was made freely and voluntarily, without coercion or suggestion, and was
offered as evidence in a criminal case for homicide. In this case, the declarant was the victim who, at
the time he uttered the dying declaration, was competent as a witness.

As found by the CA, the dying declaration of the victim was complete, as it was "a full expression of
all that he intended to say as conveying his meaning. It [was] complete and [was] not merely
fragmentary."47 Testified to by his wife and neighbor, his dying declaration was not only admissible in
evidence as an exception to the hearsay rule, but was also a weighty and telling piece of evidence.
Res Gestae

The fact that the victim’s statement constituted a dying declaration does not preclude it from being
admitted as part of the res gestae, if the elements of both are present.48

Section 42 of Rule 130 of the Rules of Court provides:

"Part of the res gestae. -- Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given
in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material
to the issue, and giving it a legal significance, may be received as part of the res gestae."

Res gestae refers to statements made by the participants or the victims of, or the spectators to, a
crime immediately before, during, or after its commission.49 These statements are a spontaneous
reaction or utterance inspired by the excitement of the occasion, without any opportunity for the
declarant to fabricate a false statement.50 An important consideration is whether there intervened,
between the occurrence and the statement, any circumstance calculated to divert the mind and thus
restore the mental balance of the declarant; and afford an opportunity for deliberation.51

A declaration is deemed part of the res gestae and admissible in evidence as an exception to the
hearsay rule, when the following requisites concur: 1) the principal act, the res gestae, is a startling
occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3)
the statements concerned the occurrence in question and its immediately attending circumstances.52

All these requisites are present in this case. The principal act, the shooting, was a startling
occurrence. Immediately after, while he was still under the exciting influence of the startling
occurrence, the victim made the declaration without any prior opportunity to contrive a story
implicating petitioner. Also, the declaration concerned the one who shot the victim. Thus, the latter’s
statement was correctly appreciated as part of the res gestae.

Aside from the victim’s statement, which is part of the res gestae, that of Ernita -- "Kapitan, ngano
nimo gipatay ang akong bana?" ("Captain, why did you shoot my husband?") -- may be considered
to be in the same category. Her statement was about the same startling occurrence; it was uttered
spontaneously, right after the shooting, while she had no opportunity to concoct a story against
petitioner; and it related to the circumstances of the shooting.

Second Main Issue:

Sufficiency of Evidence

Having established the evidence for the prosecution, we now address the argument of petitioner that
the appellate court had effectively shifted the burden of proof to him. He asserts that the prosecution
should never rely on the weakness of the defense, but on the strength of its evidence, implying that
there was no sufficient evidence to convict him.

We disagree. The totality of the evidence presented by the prosecution is sufficient to sustain the
conviction of petitioner. The dying declaration made by the victim immediately prior to his death
constitutes evidence of the highest order as to the cause of his death and of the identity of the
assailant.53 This damning evidence, coupled with the proven facts presented by the prosecution,
leads to the logical conclusion that petitioner is guilty of the crime charged.
The following circumstances proven by the prosecution produce a conviction beyond reasonable
doubt:

First. Santos testified that he had heard a gunshot; and seen smoke coming from the muzzle
of a gun, as well as the victim staggering backwards while shouting, "Help me p’re, I was
shot by the captain." This statement was duly established, and the testimony of Santos
confirmed the events that had occurred. It should be understandable that "p’re" referred to
Santos, considering that he and the victim were conversing just before the shooting took
place. It was also established that the two called each other "p’re," because Santos was the
godfather of the victim’s child.54

Second. Ernita testified that she had heard a gunshot and her husband’s utterance, "Help
me p’re, I was shot by the captain," then saw petitioner in a black jacket and camouflage
pants running away from the crime scene while carrying a firearm.

Third. Ernita’s statement, "Captain, why did you shoot my husband?" was established as part
of the res gestae.

Fourth. The version of the events given by petitioner is simply implausible. As the incumbent
barangay captain, it should have been his responsibility to go immediately to the crime scene
and investigate the shooting. Instead, he avers that when he went to the situs of the crime,
the wife of the victim was already shouting and accusing him of being the assailant, so he
just left. This reaction was very unlikely of an innocent barangay captain, who would simply
want to investigate a crime. Often have we ruled that the first impulse of innocent persons
when accused of wrongdoing is to express their innocence at the first opportune time.55

Fifth. The prosecution was able to establish motive on the part of petitioner. The victim’s wife
positively testified that prior to the shooting, her husband was trying to close a real estate
transaction which petitioner tried to block. This showed petitioner’s antagonism towards the
victim.56

These pieces of evidence indubitably lead to the conclusion that it was petitioner who shot and killed
the victim. This Court has consistently held that, where an eyewitness saw the accused with a gun
seconds after the gunshot and the victim’s fall, the reasonable conclusion is that the accused had
killed the victim.57 Further establishing petitioner’s guilt was the definitive statement of the victim that
he had been shot by the barangay captain.

Clearly, petitioner’s guilt was established beyond reasonable doubt. To be sure, conviction in a
criminal case does not require a degree of proof that, excluding the possibility of error, produces
absolute certainty.58 Only moral certainty is required or that degree of proof that produces conviction
in an unprejudiced mind.59

That some pieces of the above-mentioned evidence are circumstantial does not diminish the fact
that they are of a nature that would lead the mind intuitively, or by a conscious process of reasoning,
toward the conviction of petitioner.60 Circumstantial, vis-à-vis direct, evidence is not necessarily
weaker.61 Moreover, the circumstantial evidence described above satisfies the requirements of the
Rules of Court, which we quote:

"SEC. 4. Circumstantial evidence, when sufficient. -- Circumstantial evidence is sufficient for

conviction if:

(a) There is more than one circumstance;

 (b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt."62

Paraffin Test

Petitioner takes issue with the negative results of the paraffin test done on him. While they were
negative, that fact alone did not ipso facto prove that he was innocent. Time and time again, this
Court has held that a negative paraffin test result is not a conclusive proof that a person has not fired
a gun.63 In other words, it is possible to fire a gun and yet be negative for nitrates, as when culprits
wear gloves, wash their hands afterwards, or are bathed in perspiration.64 Besides, the prosecution
was able to establish the events during the shooting, including the presence of petitioner at the
scene of the crime. Hence, all other matters, such as the negative paraffin test result, are of lesser
probative value.

Corpus Delicti

Petitioner then argues that the prosecution miserably failed to establish the type of gun used in the
shooting. Suffice it to say that this contention hardly dents the latter’s case. As correctly found by the
appellate court, the prosecution was able to give sufficient proof of the corpus delicti -- the fact that a
crime had actually been committed. Ruled this Court in another case:

"[Corpus delicti] is the fact of the commission of the crime that may be proved by the testimony of
eyewitnesses. In its legal sense, corpus delicti does not necessarily refer to the body of the person
murdered, to the firearms in the crime of homicide with the use of unlicensed firearms, to the ransom
money in the crime of kidnapping for ransom, or x x x to the seized contraband cigarettes."65

To undermine the case of the prosecution against him, petitioner depends heavily on its failure to
present the gun used in the shooting and on the negative paraffin test result. These pieces of
evidence alone, according to him, should exculpate him from the crime. His reliance on them is
definitely misplaced, however. In a similar case, this Court has ruled as follows:

"Petitioner likewise harps on the prosecution’s failure to present the records from the Firearms and
Explosives Department of the Philippine National Police at Camp Crame of the .45 caliber
Remington pistol owned by petitioner for comparison with the specimen found at the crime scene
with the hope that it would exculpate him from the trouble he is in. Unfortunately for petitioner, we
have previously held that ‘the choice of what evidence to present, or who should testify as a witness
is within the discretionary power of the prosecutor and definitely not of the courts to dictate.’

"Anent the failure of the investigators to conduct a paraffin test on petitioner, this Court has time and
again held that such failure is not fatal to the case of the prosecution as scientific experts agree that
the paraffin test is extremely unreliable and it is not conclusive as to an accused’s complicity in the
crime committed."66

Finally, as regards petitioner’s alibi, we need not belabor the point. It was easily, and correctly,
dismissed by the CA thus:

"[Petitioner’s] alibi is utterly untenable. For alibi to prosper, it must be shown that it was physically
impossible for the accused to have been at the scene of the crime at the time of its commission.
Here, the locus criminis was only several meters away from [petitioner’s] home. In any event, this
defense cannot be given credence in the face of the credible and positive identification made by
Ernita."67

Third Issue:

Damages

An appeal in a criminal proceeding throws the whole case open for review. It then becomes the
1avv phil.net

duty of this Court to correct any error in the appealed judgment, whether or not included in the
assignment of error.68 The CA upheld the RTC in the latter’s award of damages, with the modification
that unearned income be added.

We uphold the award of P50,000 indemnity ex delicto69 to the heirs of the victim. When death occurs
as a result of a crime, the heirs of the deceased are entitled to this amount as indemnity for the
death, without need of any evidence or proof of damages.70 As to actual damages, we note that the
prosecution was able to establish sufficiently only P22,200 for funeral and burial costs. The rest of
the expenses, although presented, were not duly receipted. We cannot simply accept them as
credible evidence. This Court has already ruled, though, that when actual damages proven by
receipts during the trial amount to less than P25,000, the award of P25,000 for temperate damages
is justified, in lieu of the actual damages of a lesser amount.71 In effect, the award granted by the
lower court is upheld.

As to the award of moral damages, the P500,000 given by the RTC and upheld by the CA should be
reduced to P50,000, consistent with prevailing jurisprudence.72 We also affirm the award of loss of
earning capacity73 in the amount of P312,000; attorney’s fees of P20,000; and payment of the costs.

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution are AFFIRMED,
subject to the modification in the award of damages set forth here. Costs against petitioner.

SO ORDERED.

ARTEMIO V. PANGANIBAN
Chief Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court’s Division.
ARTEMIO V. PANGANIBAN

2) Gerlado vs People

SECOND DIVISION

JESUS GERALDO and AMADO G.R. No. 173608

ARIATE,
Petitioners, Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
TINGA,
- versus - VELASCO, JR., and
BRION, JJ.

Promulgated:
PEOPLE OF November 20, 2008
THE PHILIPPINES,
Respondent.
x-------------------------------------------x

DECISION

CARPIO MORALES, J.:

Petitioners Jesus Geraldo and Amado Ariate were, by Information
dated December 23, 2002 filed on December 27, 2002 before the Regional Trial
Court of Surigao del Sur, charged with Homicide allegedly committed as follows:

x x x [O]n the 1st day of July, 2002 at about 3:00 oclock early morning,
more or less, at Sitio Tinago, Barangay Bunga, municipality of Lanuza, province
of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and mutually helping one another,
armed with xxx handguns and with intent to kill, did, then and there, willfully,
 unlawfully and feloniously sho[o]t one ARTHUR U.[1] RONQUILLO, thereby
hitting and inflicting upon the latter wounds described hereunder:

POINT OF ENTRY:
1. Right lumbar area
2. Right iliac area

POINT OF EXIT
1. Left lateral area of abdomen
2. Right hypogastric area

which wounds have caused the instantaneous death of said ARTHUR U.

RONQUILLO, to the damage and prejudice of his heirs in the following amount:

P50,000.00 as life indemnity of the victim;

10,000.00 as moral damages;
10,000.00 as exemplary damages; and
40,000.00 as actual damages.

CONTRARY TO LAW.[2]

At 3:00 a.m. of July 1, 2002, his wife, daughter Mirasol, and son Arnel,
among other persons, on being informed of the shooting of Arthur Ronquillo (the
victim), repaired to where he was, not far from his residence, and found him lying
on his side and wounded. Although gasping for breath, he was able to utter to
Mirasol, within the hearing distance of Arnel, that he was shot by Badjing [3] and
Amado.

Petitioners who were suspected to be the Badjing and Amado responsible for
the shooting of the victim were subjected to paraffin tests at the Philippine National
Police (PNP) Crime Laboratory in Butuan City. In the PNP Chemistry Report No.
C-002-2002-SDS,[4] the following data are reflected:

xxxx

TIME AND DATE RECEIVED : 1105H 03 July 2002

REQUESTING PARTY/UNIT : Chief of Police

Lanuza Police Station
Lanuza, Surigao del Sur
 SPECIMEN SUBMITTED :
Paraffin casts taken from the left and the right hands of the following named
living persons:

A = Jesus Geraldo Jr. alias Bajing

B = Amado Ariate

/x/x/x/ /x/x/x/

PURPOSE OF LABORATORY EXAMINATION

To determine the presence of gunpowder residue, Nitrates. /x/x/x/

FINDINGS:

Qualitative examination conducted on specimens A and B gave NEGATIVE

results for powder residue, Nitrates. /x/x/x/

CONCLUSION:

Specimens A and B do not reveal the presence of gunpowder residue, Nitrates.

/x/x/x/

REMARKS:

The original copy of this report is retained in this laboratory for future reference.

TIME AND DATE COMPLETED:

1700H 03 July 2002

x x x x (Underscoring supplied)

In a document dated July 1, 2002 and denominated as Affidavit[5] which was

subscribed and sworn to before Clerk of Court II Manuel A. Balasa, Sr. on July 26,
2002, the victims son Arnel gave a statement in a question and answer style that
herein petitioners Jesus Geraldo and Amado Ariate were the ones who shot his
father.

In another document dated July 4, 2002 also denominated as

Affidavit[6] which was subscribed and sworn to also before the same Clerk of Court
II Balasa on July 26, 2002, Mirasol also gave a statement in a question and answer
style that her father uttered that herein petitioners shot him.
 At the witness stand, Mirasol echoed her fathers declaration that Badjing and
Amado shot him. Arnel substantially corroborated Mirasols statement.[7]

Upon the other hand, petitioners gave their side of the case as follows:

Petitioner Ariate, a barangay tanod of Bunga, declared that Barangay

Kagawad Omboy Roz (Roz) woke him up at 3:00 a.m. of July 1, 2002 and
informed him that the victim was shot. He and Roz thus borrowed a tricycle,
proceeded to the crime scene and, along with others, brought the victim to the
hospital where he was pronounced dead on arrival. Ariate submitted himself to a
paraffin test and tested negative for gunpowder residue/nitrates.[8]

Petitioner Geraldo declared that he slept in his house located also in

Barangay Bunga, Lanuza at 9:30 p.m. of June 30, 2002 and woke up at 4:00
a.m. the following day. At 6:30 a.m., on seeing many people in the vicinity of the
45-meter away house of one Josita Bongabong where the victims body was found,
he inquired and learned that the victim was shot. Policemen subsequently went to
his house and advised him to take a paraffin test. He obliged and was tested at
the PNP Crime Laboratory and was found negative for gunpowder
residue/nitrates.[9]

In the course of the testimony of Ariate, his counsel presented

the PNP Chemistry Report reflecting the negative results of the paraffin test on him
and Geraldo. The trial court restrained the presentation of the document, however,
as reflected in the following transcript of stenographic notes taken on March 21,
2003:
xxxx

Q I am showing to you [Ariate] a copy of the result of the paraffin test attached to
the record of this case.

COURT
Is it covered in the Pre-trial Order? You cannot do that. That is why I told you; lay
your cards on the table.

ATTY. AUZA
May I ask for the courts reconsideration.
 COURT
Denied. I am warning you, all of you.

ATTY. AUZA
With the denial of our motion for reconsideration, I move to tender exclusive
evidence. He would have identified this result. The paraffin test, which
[forms] part of the affidavit of this witness attached to the record of this
case on page 29. May I ask that this will be marked as Exhibit 3 for the
defense.

COURT
Mark it. (Marked).[10] (Underscoring supplied)

As shown from the above-quoted transcript of the proceedings, the trial court
restrained the presentation of the result of the paraffin tests because the same was
not covered in the Pre-trial Order. In the Pre-trial Order,[11] the trial court noted the
parties agreement that witnesses not listed in this Pre-trial Order shall not be
allowed to testify as additional witnesses. Significantly, there was no agreement to
disallow the presentation of documents which were not reflected in the Pre-trial
Orders. At all events, oddly, the trial court allowed the marking of
the PNP Chemistry Report as Exhibit 3.[12]

When petitioner Geraldos turn to present the same PNP Chemistry Report
came, the trial court ruled:

COURT

That is the problem in the Pre-Trial Brief if the exhibits are not stated. I will set
aside that Order and in the interest of justice I will allow the accused to submit,
next time I will not any more consider exhibits not listed in the Pre-trial
Order.[13] (Underscoring supplied)

The version of the defense was in part corroborated by witnesses.

 The trial court, passing on the demeanor of prosecution witness-the victims
eight-year old daughter Mirasol, observed:

. . . She talks straightforward, coherent and clear, very intelligent, with child
mannerism[s]. While testifying she was criss-crossing her hands, touching
anything within her reach, innocent and simple, pressing of[f] and on her stomach
but she talks with correct grammar. No doubt, this Court was convinced of her
testimony which was corroborated by her brother Arnel Ronquillo.[14]

On the nature and weight of the dying declaration of the victim, the trial
court observed:

A dying declaration may be xxx oral or in writing. As a general rule, a

dying declaration to be admissible must be made by the declarant while he is
conscious of his impending death. However, even if a declarant did not make a
statement that he was on the brink of death, the degree and seriousness of the
wound and the fact that death supervened shortly afterwards may be considered as
substantial evidence that the declaration was made by the victim with full
realization that he was in a dying condition; People vs. Ebrada, 296 SCRA 353.

Even assuming that the declaration is not admissible as a dying

declaration, it is still admissible as part of the res gestae since it was made shortly
after the startling occurrence and under the influence thereof, hence, under the
circumstances, the victim evidently had no opportunity to
[15]
contrive. (Underscoring supplied)

Finding for the prosecution, the trial court convicted petitioners, disposing as
follows:
WHEREFORE, finding the accused JESUS GERALDO y CUBERO and
AMADO ARIATE y DIONALDO guilty beyond reasonable doubt of the crime of
Homicide penalized under Article 249 of the Revised Penal Code and with the
presence of one (1) aggravating circumstance of night time and applying the
Indeterminate Sentence Law, the maximum term of which could be properly
imposed under the rules of said code and the minimum which shall be within the
range of the penalty next lower to that prescribe[d] by the code for the offense,
hereby sentences each to suffer the penalty of TEN (10) YEARS and ONE (1)
DAY of Prision Mayor minimum to SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of Reclusion Temporal maximum as maximum,
with all the accessory penalties provided for by law. To pay the heirs of the victim
the amount of P50,000.00 as life indemnity, P100,000.00 as moral damages and
 P20,000.00 as exemplary damages. The claim for actual damages is denied, there
being no evidence to support the same.

The bail bond put up by the accused Jesus Geraldo and Amado Ariate are
ordered cancelled and to pay the cost.

SO ORDERED.[16] (Underscoring supplied)

The Court of Appeals, by Decision of June 30, 2006,[17] affirmed with

modification the trial courts decision. It found that the trial court erred in
appreciating nocturnity as an aggravating circumstance. And it reduced the award
of moral damages[18] to P50,000, and deleted the award of exemplary
damages. Thus the Court of Appeals disposed:

WHEREFORE, in view of the foregoing, the appealed decision is hereby

AFFIRMED save for the modification of the penalty imposed. Accordingly,
accused-appellants are each hereby sentenced to suffer an indeterminate penalty
of Eight (8) years, Five (5) Months and One (1) Day of prision mayor medium as
minimum, to Seventeen (17) Years and Four (4) Months of reclusion
temporal medium as maximum, with all accessory penalties provided by law, and
to jointly and solidarily pay the heirs of the victim the amount of P50,000.00 as
indemnity and P50,000.00 as moral damages.

SO ORDERED.[19] (Italics in the original)

Hence, the present Petition[20] raising the following issues:

I

WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSED-

APPELLANTS AS THE ALLEGED ASSAILANT HAS BEEN ADEQUATELY
ESTABLISHED AS PER EVIDENCE ON RECORD?

II

WHETHER OR NOT THE IDENTIT[IES] OF THE ACCUSED-

APPELLANTS HAD BEEN ESTABLISHED BY PROOF BEYOND
REASONABLE DOUBT?[21] (Emphasis and underscoring supplied)

Petitioners argue:
 With due respect, herein petitioners disagree with the holding of the
Honorable Court of Appeals that It is not necessary that the victim further identify
that Badjing was in fact Jesus Geraldo or that Amado was Amado Ariate because,
[so petitioners contend], it is the obligation of the prosecution to establish with
moral certainty that indeed the persons they identified as the as the assailant of
Arthur O. Ronquillo were really the ones who perpetrated the crime.

Admittedly, prosecution witnesses were able to identify positively herein

petitioners as the alleged assailant[s] of Arthur O. Ronquillo. But
said identification is based on the assumption that they were the very same
BADJING AMADO and/or BADJING AND AMADO referred to by their
deceased father in his dying declaration.

What the Honorable Court of Appeals failed to consider is that, just

because the victim declared that it was BADJING AMADO and/or BADJING
AND AMADO who shot him does not necessarily follow that herein petitioners
were really the perpetrators in the absence of proof that the BADJING referred to
by him is Jesus Geraldo and that the AMADO is Amado Ariate. It would have
been a different story had the prosecution witnesses [been] eyewitnesses because
proof that the BADJING AMADO and/or BADJING AND AMADO referred to
by the victim and the persons identified by the prosecution witnesses are the same
is unnecessary.

Herein petitioners believe, that even assuming that there are no other
BADJING or AMADO in the barangay, still it does not follow that the person[s]
referred to by the dying declarant as his assailant were Jesus Geraldo alias
BADJING and Amado Ariate alias AMADO.Although, it is inconceivable how
the Honorable Court of Appeals arrived at the said conclusion that there are no
other BADJING AMADO and/or BADJING AND AMADO in the
barangay absent any proof to that effect from the prosecution.[22] (Underscoring in
the original)

The petition is impressed with merit.

The trial court relied on the dying declaration of the victim as recounted by
his daughter Mirasol and corroborated by his son Arnel.

A dying declaration is admissible as evidence if the following circumstances

are present: (a) it concerns the cause and the surrounding circumstances of the
declarants death; (b) it is made when death appears to be imminent and the
declarant is under a consciousness of impending death; (c) the declarant would
have been competent to testify had he or she survived; and (d) the dying
declaration is offered in a case in which the subject of inquiry involves the
declarants death.[23]

There is no dispute that the victims utterance to his children related to the
identities of his assailants. As for the victims consciousness of impending death, it
is not necessary to prove that he stated that he was at the brink of death; it suffices
that, judging from the nature and extent of his injuries, the seriousness of his
condition was so apparent to him that it may safely be inferred that such ante
mortem declaration was made under consciousness of an impending death.[24] The
location of the victims two gunshot wounds, his gasping for breath, and his
eventual death before arriving at the hospital meet this requirement.[25]

It has not been established, however, that the victim would have been
competent to testify had he survived the attack. There is no showing that he had the
opportunity to see his assailant. Among other things, there is no indication whether
he was shot in front, the post-mortem examination report having merely stated that
the points of entry of the wounds were at the right lumbar area and the right iliac
area.[26] Lumbar may refer to the loins or the group of vertebrae lying between the
thoracic vertebrae and the sacrum,[27] or to the region of the abdomen lying on
either side of the umbilical region and above the corresponding iguinal.[28] Iliac
relates to the ilium, which is one of the three bones composing either lateral half of
the pelvis being in man broad and expanded above and narrower below where it
joins with the ischium and pubis to form part of the actabulum.[29]

At all events, even if the victims dying declaration were admissible in

evidence, it must identify the assailant with certainty; otherwise it loses its
significance.[30]

In convicting petitioners, the trial court, as stated earlier, relied on the

testimony of the victims daughter Mirasol, which was corroborated by her brother
Arnel, that the Badjing and Amado mentioned by the victim as his assailants are
herein petitioners whom they claimed to know because they live in the same
barangay.[31] The Court of Appeals believed too the siblings testimonies, holding
that
 It is not necessary that the victim further identify that Badjing was in fact
Jesus Geraldo or that Amado was Amado Ariate. There was never an issue as to
the identity of the accused. There was no other person known as Badjing or
Amado in their neighborhood or in their barangay. Accused-appellants never
presented any proof that a person in their locality had the same aliases or
names as they. It is not uncommon that even an eight-year-old child can identify
that Jesus Geraldo was known as Badjing and that Amado Ariate was
Amado.[32](Underscoring supplied)

Contrary, however, to the immediately-quoted ruling of the appellate

court, it is the prosecution, not petitioners, which had the burden of proving that
petitioners were, at the material time, the only ones in the barangay who bore such
nicknames or aliases. This, the prosecution failed to discharge.
When there is doubt on the identity of the malefactors, motive is essential
for their conviction.[33] The Court notes that in their affidavits supporting the
criminal complaint, the victims wife and children Mirasol and Arnel proffered not
knowing any possible motive for petitioners to shoot the victim.[34] At the trial, no
evidence of any motive was presented by the prosecution. Petitioners defense of
denial and alibi thus assumes importance.

Specifically with respect to petitioner Ariate, the victims wife admitted that
Ariate accompanied her family in bringing the victim to the hospital.[35] While non-
flight does not necessarily indicate innocence, under the circumstances obtaining in
the present case, Ariates spontaneous gesture of immediately extending assistance
to the victim after he was advised by the Barangay Kagawad of the victims fate
raises reasonable doubt as to his guilt of the crime charged.[36]

WHEREFORE, the petition is GRANTED. The Decision of the Court of

Appeals dated June 30, 2006 affirming with modification the Decision of Branch
41 of the Surigao del Sur Regional Trial Court is REVERSED and SET
ASIDE. Petitioners Jesus Geraldo and Amado Ariate are ACQUITTED of the
charge of Homicide for failure of the prosecution to establish their guilt beyond
reasonable doubt.

Let a copy of this Decision be furnished the Director of the Bureau of

Corrections, Muntinlupa City who is directed to cause the immediate release
of petitioners unless they are being lawfully held for another cause, and to inform
this Court of action taken within ten (10) days from notice hereof.

SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

DANTE O. TINGA PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ARTURO D. BRION
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
 Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
O in some parts of the records.
[2]
Records, p. 4.
[3]
Sometimes spelled Bajing.
[4]
Exhibit 3, records, p. 29.
[5]
Id. at 16-17.
[6]
Id. at 19-20.
[7]
TSN, March 12, 2003, p. 18.
[8]
Supra note 4.
[9]
Ibid.
[10]
TSN, March 21, 2003, p. 7.
[11]
Records, pp. 95-96.
[12]
Supra note 3.
[13]
TSN, April 10, 2003, p. 18.
[14]
Records, p. 243.
[15]
Id. at 243-244.
[16]
Id. at 246.
[17]
Penned by Justice Rodrigo F. Lim, Jr. with the concurrence of Justices Teresita Dy-Liacco Flores and Sixto C.
Marella, Jr. CA rollo, pp. 78-91.
[18]
Id. at 90.
[19]
Id. at 90-91.
[20]
Rollo, pp. 3-14.
[21]
Id. at 7.
[22]
Id. at 9-10.
[23]
Vide RULES OF COURT, Rule 130, Section 37; People v. Manguera, G.R. No. 139906, March 5, 2003, 398
SCRA 618, 626-627.
[24]
Vide People v. Macalino, G.R. No. 79387, August 31, 1989, 177 SCRA 185, 193. Citations omitted.
[25]
Vide id. at 193: That his demise came swiftly upon his arrival at the hospital further emphasizes the victims
realization of the hopelessness of his recovery.
[26]
Exhibit A, records, p. 26.
[27]
Dictionary.
[28]
Ibid.
[29]
Ibid.
[30]
Vide People v. Ador, G.R. Nos. 140538-39, June 14, 2004, 432 SCRA 1, 21; People v. Contega, G.R. No.
133579, May 31, 2000, 332 SCRA 730, 741.
[31]
TSN, March 12, 2003, pp. 7, 14, 18-19.
[32]
Rollo, p. 25.
[33]
Vide People v. Rapeza, G.R. No. 169431, April 4, 2007, 520 SCRA 596, 633. Citations omitted.
[34]
Records, pp. 13-21.
[35]
Vide TSN, April 10, 2003, p. 25.
[36]
Vide Buenaventura v. People, G.R. No. 148079, June 27, 2006, 493 SCRA 223, 230-231.
 Declaration against INTEREST

1) Parel vs Prudencio

DANILO L. PAREL v. SIMEON B. PRUDENCIO, GR NO. 146556, 2006-04-19

Facts:
On February 27, 1992, Simeon Prudencio (respondent) filed a complaint for recovery of
possession and damages against petitioner with the RTC Baguio alleging that: he is the
owner of a two-storey residential house located at No. 61 Forbes Park National Reservation
near Department... of Public Service (DPS) compound, Baguio City; such property was
constructed solely from his own funds and declared in his name under Tax Declaration No.
47048; he commenced the construction of said house in 1972 until its completion three
years later; when the second floor of... said house became habitable in 1973, he allowed
petitioner's parents, Florentino (now deceased) and Susan Parel, to move therein and
occupy the second floor while the construction of the ground floor was on-going to
supervise the construction and to safeguard the materials; when... the construction of the
second floor was finished in 1975, respondent allowed petitioner's parents and children to
transfer and temporarily reside thereat; it was done out of sheer magnanimity as petitioner's
parents have no house of their own and since respondent's wife is the... older sister of
Florentino, petitioner's father; in November 1985, respondent wrote Florentino a notice for
them to vacate the said house as the former was due for retirement and he needed the
place to which petitioner's parents heeded when they migrated to U.S. in 1986;... however,
without respondent's knowledge, petitioner and his family unlawfully entered and took
possession of the ground floor of respondent's house; petitioner's refusal to vacate the
house despite repeated demands prompted respondent to file the instant action for recovery
of... possession. Respondent also asked petitioner for a monthly rental of P3,000.00 from
April 1988 and every month thereafter until the latter vacates the said premises and
surrender possession thereof; and for moral and exemplary damages, attorney's fees and
cost of suit.
Petitioner filed his Answer with Counterclaim alleging that: his parents are the co-owners of
the said residential house, i.e., the upper story belongs to respondent while the ground floor
pertains to petitioner's parents; he is occupying the ground floor upon the instruction of... his
father, Florentino, with respondent's full knowledge; his parents spent their own resources
in improving and constructing the said two-storey house as co-owners thereof; the late
Florentino was an awardee of the land on which the house stands and as a co-owner of the
house,... he occupied the ground floor thereof; the demand to vacate was respondent's
attempt to deprive petitioner's parents of their rights as co-owner of the said house; that
respondent had filed ejectment case as well as criminal cases against them involving the
subject house which... were all dismissed. Petitioner asked for the dismissal of the
complaint and prayed for damages and attorney's fees.
The RTC found the following matters as conclusive: that petitioner's father was an allocatee
of the land on which the subject house was erected, as one of the lowly-paid government
employees at that time when then Mayor Luis Lardizabal gave them the chance to construct
their own... house on said reservation; that respondent failed to show proof of any contract,
written or oral, express or implied, that the late Florentino and his family stayed on the
house not as co-owners but as mere lessees, nor any other proof that would clearly
establish his sole... ownership of the house; and, that the late Florentino was the one who
gathered the laborers for the construction of the house and paid their salaries. Thus, the
RTC ruled that co-ownership existed between respondent and petitioner's father, Florentino.
The RTC did not give credence to the tax declaration as well as the several documents
showing the City Assessor's assessment of the property all in respondent's name since tax
declarations are not conclusive proof of ownership. It rejected the affidavit executed by
Florentino... declaring the house as owned by respondent saying that the affidavit should be
read in its entirety to determine the purpose of its execution; that it was executed because
of an advisement addressed to the late Florentino by the City Treasurer concerning the
property's tax... assessment and Florentino, thought then that it should be the respondent
who should pay the taxes; and that the affidavit cannot be accepted for being hearsay.
whether petitioner was able to prove by preponderance of evidence that his father was a co-
owner of the subject two-storey residential house.
whether petitioner was able to prove by preponderance of evidence that his father was a co-
owner of the subject two-storey residential house
The principal issue for resolution is whether petitioner was able to prove by preponderance
of evidence that his father was a co-owner of the subject two-storey residential house
Issues:
The principal issue for resolution is whether petitioner was able to prove by preponderance
of evidence that his father was a co-owner of the subject two-storey residential house
The principal issue for resolution is whether petitioner was able to prove by preponderance
of evidence that his father was a co-owner of the subject two-storey residential house.
Ruling:
The affiant, Florentino, who died in 1989 was petitioner's father and had adequate
knowledge with respect to the subject covered by his statement. In said affidavit, Florentino
categorically declared that while he is the occupant of the residential building, he is not the
owner... of the same as it is owned by respondent who is residing in Quezon City. It is safe
to presume that he would not have made such declaration unless he believed it to be true,
as it is prejudicial to himself as well as to his children's interests as his heirs.[10] A
declaration against interest is the best evidence which affords the greatest certainty of the
facts in dispute.[11] Notably, during Florentino's lifetime, from 1973, the year he executed
said affidavit until 1989, the year of his death,... there is no showing that he had revoked
such affidavit even when a criminal complaint for trespass to dwelling had been filed by
respondent against him (Florentino) and petitioner in 1988 regarding the subject house
which the trial court dismissed due to the absence of evidence... showing that petitioner
entered the house against the latter's will and held that the remedy of respondent was to file
an action for ejectment;[12] and even when a complaint for unlawful detainer was filed
against petitioner and his wife also in 1988 which... was subsequently dismissed on the
ground that respondent's action should be an accion publiciana which is beyond the
jurisdiction of the Municipal Trial Court.
Notably, respondent has been religiously paying the real estate property taxes on the house
declared under his name since 1974.[15] In fact, petitioner during his cross-examination
admitted that there was no occasion that they paid the real estate taxes nor... declared any
portion of the house in their name.[16]
We agree with the CA that while tax receipts and declarations are not incontrovertible
evidence of ownership, they constitute at least proof that the holder has a claim of title over
the property.[17] The house which petitioner claims to be co-owned by his... late father had
been consistently declared for taxation purposes in the name of respondent, and this fact,
taken with the other circumstances above-mentioned, inexorably lead to the conclusion that
respondent is the sole owner of the house subject matter of the litigation.
Principles:
The theory under which declarations against interest are received in evidence
notwithstanding they are hearsay is that the necessity of the occasion renders the reception
of such evidence advisable and, further that the reliability of such declaration asserts facts
which are... against his own pecuniary or moral interest.
A declaration against interest is the best evidence which affords the greatest certainty of the
facts in dispute.

Digests created by other users

2) Cavile vs Litania-Hong

THIRD DIVISION

PERFECTA CAVILE, JOSE DE LA G.R. No. 179540

CRUZ and RURAL BANK OF
Present:
BAYAWAN, INC.,
YNARES-SANTIAGO, J.,
Petitioners, Chairperson,
AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and
- versus -
PERALTA, JJ.

Promulgated:
JUSTINA LITANIA-HONG,
accompanied and joined by her
husband, LEOPOLDO HONG and
March 13, 2009
GENOVEVA LITANIA,

Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Before us is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of

Court, which seeks to reverse and set aside the Decision[2] dated 8 March
2007 and the Resolution[3] dated 3 September 2007 of the Court of Appeals in CA-
G.R. CV No. 66873. The assailed Decision of the appellate court reversed and set
aside the Decision[4] dated 29 February 2000 of the Regional Trial Court (RTC) of
Negros Oriental, Branch 35, in Civil Case No. 6111, dismissing the complaint of
respondents Justina Litania-Hong, her husband Leopoldo Hong, and her sister
Genoveva Litania; and declaring petitioner spouses Perfecta Cavile and Jose de la
Cruz to be the absolute owners of the parcels of land subjects of this case. The
assailed Resolution of the appellate court denied petitioner spouses Motion for
Reconsideration of its decision.

The factual and procedural antecedents of the case proceed as follows:

On 5 April 1937, a Deed of Partition[5] was entered into by the heirs of the
spouses Bernardo Cavile and Tranquilina Galon. Said heirs included the legitimate
children of Bernardo and Tranquilina, namely, (1) Susana Cavile, (2) Castor Cavile,
and (3) Benedicta Cavile; as well as the children of Bernardo by his previous
marriages, specifically: (4) Simplicia Cavile, (5) Fortunato Cavile, and (6) Vevencia
Cavile.[6] Subject of the Deed of Partition were several parcels of land situated in
the Municipality of Tolong, Negros Oriental, which were then covered by Tax
Declarations No. 5615, No. 5729, No. 7143, No. 7421 and No. 7956, all under the
name of Bernardo.

Of particular interest in this case are the lots covered by Tax Declarations
No. 7421 and No. 7956. The lot covered by Tax Declaration No. 7421 was
described in the Deed of Partition as bounded on the North by Simplicio Cavile
antes Roman Echaves, on the East by Rio Bayawan, on the South by Riachuelo
Napasu-an, and on the West by Riachuelo Napasu-an y Julian Calibug antes
Francisco Tacang. The lot covered by Tax Declaration No. 7956 was identified to
be the one bounded on the North by Hilario Navaro, on the East by Silverio
Yunting, on the South by Fortunato Cavile, and on the West by Maximiano
Balasabas.

In accordance with the Deed of Partition, the conjugal properties of

Bernardo and Tranquilina were divided into two parts. The first part,
corresponding to Bernardos share, was further divided into six equal shares and
distributed among his six heirs. The second part, corresponding to Tranquilinas
share, was subdivided only into three shares and distributed among her children
with Bernardo, i.e., Susana, Castor, and Benedicta.

Also stated in the Deed of Partition was the sale by the other aforementioned
legal heirs to their co-heir Castor of their aliquot shares in the lots covered by Tax
Declarations No. 7143, No. 7421, and No. 7956; thus, making Castor the sole
owner of the said properties. Similarly, the Deed of Partition acknowledged the
sale by all the legal heirs to Ulpiano Cavile of their respective shares in the lot
covered by Tax Declaration No. 5729, thus, transferring to the latter absolute
ownership of said parcel of land.

Thereafter, on 5 August 1960, Castor and Susana executed a Confirmation of

Extrajudicial Partition,[7] whereby Castor recognized and confirmed that the lots
covered by Tax Declarations No. 2039 and No. 2040 were the just and lawful
shares of Susana in the properties left by their deceased parents Bernardo and
Tranquilina, and that Susana was in actual possession of the said
properties. According to the Confirmation of Extrajudicial Partition, the lot
covered by Tax Declaration No. 2039 was bounded on the North by Simplicio
Cavile, on the East by Rio Bayawan, on the South by Napasu-an, and on the West
by Napasu-an Creek and Julian Calibog; while the one covered by Tax Declaration
No. 2040 was bounded on the North by Hilario Navvaro (sic), on the South by
Fortunato Cavile, on the East by Silverio Yunting, and on the West by Maximino
(sic) Balasabas.

The descriptions of the lots covered by Tax Declarations No. 2039 and No.
2040 in the Confirmation of Extrajudicial Partition were strikingly close to those of
the lots covered by Tax Declarations No. 7421 and No. 7956, respectively, in the
Deed of Partition.

Fourteen years after the execution of the Confirmation of Extrajudicial Partition in

1960, respondents filed on 23 December 1974 a Complaint for Reconveyance and
Recovery of Property with Damages before the RTC against Perfecta Cavile, the
daughter of Castor, Jose de la Cruz, the husband of Perfecta (hereinafter
petitioner spouses), and the Rural Bank of Bayawan, Inc. The Complaint was
docketed as Civil Case No. 6111.[8]
 Respondents averred in the Complaint that respondents Justina and
Genoveva inherited two parcels of land, covered by Tax Declarations No. 07408
and No. 07409 (subject lots),[9] from their mother Susana, who, in turn, inherited
the same from her parents Bernardo and Tranquilina. Respondents invoked the
Confirmation of Extrajudicial Partition dated 5 August 1960 wherein Castor
purportedly recognized Susanas ownership of the subject lots. Susana had enjoyed
undisputed ownership and possession of the subject lots, paying the realty taxes
due and introducing improvements thereon. Susana was even able to obtain a loan
from the Rural Bank of Dumaguete City sometime in 1960, mortgaging the subject
lots as security for the same.

After Susanas death in 1965, the subject lots were inherited by her daughters,
respondents Justina and Genoveva, who then assumed the mortgage
thereon. However, respondents alleged that Castor and petitioner spouses
eventually intruded upon and excluded respondents from the subject lots. When
Castor died in 1968, petitioner spouses continued their unlawful occupancy of the
subject lots, planting on the same and harvesting the products. Respondents
claimed that they exerted efforts to settle the matter, but petitioner spouses
stubbornly refused to accede. In 1974, prior to the filing of the Complaint,
respondents again sought an audience with petitioner spouses, yet the latter only
presented to them the Original Certificates of Title (OCTs) No. FV-4976,[10] No. FV-
4977,[11] and No. FV-4978[12] covering the subject lots, issued by the Registry of
Deeds for the Province of Negros Oriental, on 9 October 1962, in the name of
petitioner Perfecta. Respondents were, thus, constrained to institute Civil Case
No. 6111 against petitioner spouses and the Rural Bank of Bayawan, Inc., seeking
the cancellation of the OCTs in the name of petitioner Perfecta or, alternatively,
the reconveyance by petitioner spouses of the subject lots to respondents, plus
award for damages. The Rural Bank of Bayawan, Inc. was impleaded as a
defendant in the Complaint since petitioner spouses mortgaged the subject lots in
its favor as security for a loan in the amount of P42,227.50. However, the bank
was later dropped as a party after the aforesaid loan was settled.

Petitioner spouses countered in their Answer to the Complaint that, by

virtue of the Deed of Partition dated 5 April 1937, the heirs of both Bernardo and
Tranquilina took exclusive possession of their respective shares in the
inheritance. Castor fully possessed the lots covered by Tax Declarations No.
7143, No. 7421 and No. 7956, after his co-heirs sold to him their shares therein. In
1962, Castor sold to petitioner Perfecta the lots covered by Tax Declarations No.
7421 and No. 7956, which corresponded to the subject lots in the
Complaint. Following the sale, petitioner Perfecta took possession of the subject
lots and filed with the Bureau of Lands an application for the issuance of title over
the same. The Bureau issued free patent titles over the subject lots in favor of
petitioner Perfecta and, by virtue thereof, she was able to secure on 9 October
1962, OCTs No. FV-4976, No. FV-4977, and No. FV-4978 in her name.

Petitioner spouses asserted that the Confirmation of Extrajudicial Partition

dated 5 August 1960 involving the subject lots was a nullity since said properties
were never owned nor adjudicated in favor of Susana, respondents predecessor-
in-interest. Castor and Susana executed the Confirmation of Extrajudicial Partition
merely to accommodate the latter who then needed security for the loan she was
trying to obtain from the Rural Bank of Dumaguete City. Respondents would not
be able to deny the said accommodation arrangement, given that neither Susana
nor respondents actually possessed the subject lots or applied for titles
thereto. Respondents did not even know that the subject lots were divided into
three lots after a Government survey. If Susana and respondents paid realty taxes
for the subject lots, it was only to convince the Rural Bank of Dumaguete to
renew their loan from year to year, secured as it was by the mortgage on the
subject lots. Thus, petitioner spouses posited that no ownership could then be
transferred to respondents after Susanas death.

Trial in Civil Case No. 6111 thereafter ensued before the RTC.[13]

On 29 February 2000, the RTC promulgated its Decision, with the following
dispositive portion:
WHEREFORE, premises considered, judgment is hereby rendered declaring [herein
petitioner spouses] as the absolute owners over the parcels of land in
litigation. Consequently, [herein respondents] complaint is ordered
dismissed. [Respondents] counterclaim is likewise entered dismissed for lack of merit.[14]
The RTC ruled that the petitioner spouses evidence was more worthy of credence
in establishing their ownership of the subject lots. As petitioner Perfecta testified
before the RTC, Castor immediately took possession of the subject lots after the
Deed of Partition was executed in 1937. This fact was supported by the
unrebutted testimony of Luciana Navarra, petitioner Perfectas cousin, who
declared that her husband was petitioner Perfectas tenant on the subject lots
since 1947 and that respondents never actually occupied the said properties. The
RTC observed that it was highly questionable and contrary to human experience
that respondents waited nine long years after their ejection from the subject lots
in 1965 before taking any legal step to assert their rights over the same.

The RTC further subscribed to the testimony of Perfecta that the

Confirmation of Extrajudicial Partition was executed by Castor solely to
accommodate Susana, enabling her to obtain a bank loan using the subject lots as
collateral. It noted that Susana did not bother to apply for the issuance of title to
the subject lots in her name. Contrarily, it was Perfecta who applied for and
obtained title to the subject lots, which, surprisingly, respondents were not even
aware of. The RTC found that the contemporaneous and subsequent acts of the
parties after the execution of the Confirmation of Extrajudicial Partition evidently
demonstrated their intention to merely accommodate Susana in her loan
application. Hence, the RTC concluded that the Confirmation of Extrajudicial
Partition was a simulated contract which was void and without any legal effect.

Without seeking a reconsideration of the above RTC Decision, respondents

challenged the same by way of appeal before the Court of Appeals, docketed as
CA-G.R. CV No. 66873.

On 8 March 2007, the Court of Appeals rendered the assailed Decision in favor of
respondents, the decretal portion of which provides:
 WHEREFORE, the assailed decision is REVERSED AND SET ASIDE and a new one
entered ORDERING [herein petitioner spouses] and/or their heirs, assigns and
representatives as follows:

1. To reconvey to [herein respondents] the possession and title to

the litigated parcels of land.

2. Upon reconveyance of the litigated properties, the Register of

Deeds of Dumaguete City is ordered to cancel Certificate of Title No.
4877 (sic), 4976 and 4978 and to issue a new certificate to
[respondents] or their successors in interest.

3. With costs against [petitioner spouses].[15]

The Court of Appeals agreed in the respondents contention that the Confirmation
of Extrajudicial Partition was not a simulated document. The said document
should be entitled to utmost respect, credence, and weight as it was executed by
and between parties who had firsthand knowledge of the Deed of Partition of
1937. Moreover, the Confirmation of Extrajudicial Partition constituted evidence
that was of the highest probative value against the declarant, Castor, because it
was a declaration against his proprietary interest. Other than petitioner Perfectas
testimony, the appellate court found no other proof extant in the records to
establish that the Confirmation of Extrajudicial Partition was a simulated
document or that it did not express the true intent of the parties. The Court of
Appeals likewise highlighted the fact that Castor did not attempt to have the
subject lots declared in his name during his lifetime and that petitioner Perfecta
herself admitted that she only started paying real estate taxes for the subject lots
in 1993. It was Susana and, later, her children, respondents Justina and Genoveva,
who had been paying for the realty taxes on the subject lots since 1937.

Petitioner spouses filed a Motion for Reconsideration[16] of the foregoing

Decision, but it was denied by the Court of Appeals in a Resolution[17] dated 3
September 2007.
Petitioner spouses filed the instant Petition, raising the following issues for the
Courts consideration:

I.

WHETHER [OR NOT] THE HONORABLE COURT OF APPEALS ACTED IN ACCORDANCE

WITH LAW IN RULING THAT EXTRANEOUS EVIDENCE IN THE FORM OF AN AFFIDAVIT,
THE CONFIRMATION OF EXTRAJUDICIAL PARTITION, MAY BE ADMITTED IN EVIDENCE TO
VARY THE TERMS OF A JUDICIALLY DECLARED VALID AGREEMENT ENTITLED DEED OF
PARTITION?

II.

WHETHER [OR NOT] THE HONORABLE COURT OF APPEALS COMMITTED A LEGAL ERROR
IN NOT DISMISSING THE COMPLAINT ON THE GROUND OF RES JUDICATA?

III.

WHETHER [OR NOT] THE COMPLAINT FILED BY THE RESPONDENTS SHOULD BE

DISMISSED ON THE GROUND OF FORUM-SHOPPING?

IV.

WHETHER [OR NOT] THE FREE PATENT TITLES ISSUED TO THE PETITIONERS MAY BE
RECONVEYED TO THE RESPONDENTS?[18]
Essentially, the Court finds that the fundamental issue that must be settled in this
case is who, among the parties herein, have the better right to the subject lots.

The Court notes prefatorily that in resolving the present case, an examination of
the respective evidence of the parties must necessarily be undertaken. Although
the jurisdiction of the Court in a petition for review on certiorari under Rule 45 of
the Rules of Court is limited to reviewing only errors of law, we find that an
exception[19] to this rule is present in the instant case in that the Court of Appeals
made findings of fact which were contrary to those of the RTC.

Before proceeding, the Court further establishes as a foregone fact, there being
no issue raised on the matter, that the subject lots covered by Tax Declarations
No. 07408 and No. 07409 described in the Complaint in Civil Case No. 6111 are
the very same lots covered by Tax Declarations No. 7956 and No. 7421 included in
the Deed of Partition, and by Tax Declarations No. 2040 and No. 2039 subject of
the Confirmation of Extrajudicial Partition.

Respondents, as plaintiffs before the RTC in Civil Case No. 6111, sought the
reconveyance and recovery of the subject lots purportedly illegally usurped by
petitioner spouses who succeeded in having the same titled in the name of
petitioner Perfecta. Respondent Justina testified in open court that the subject
lots were inherited by her and co-respondent Genovevas mother, Susana, from
their grandparents, Bernardo and Tranquilina.[20] As proof of Susanas ownership
of the subject lots, respondents presented the Confirmation of Extrajudicial
Partition executed on 5 August 1960 by Castor and Susana. In said document,
Castor ostensibly recognized and confirmed Susanas ownership and possession of
the subject lots.[21] Tax declarations[22]covering the subject lots in the names of
Susana and respondents were also offered to the court a quo to lend support to
respondents claims of ownership.

On the other hand, to prove their entitlement to the subject lots, petitioner
spouses presented before the RTC the Deed of Partition[23] entered into by the
heirs of spouses Bernardo and Tranquilina on 5 April 1937. By virtue thereof,
Castor acquired through sale the shares of his co-heirs in the subject
lots. Petitioner Perfecta testified before the trial court that right after the
execution of said Deed, she and her father, Castor, assumed possession of the
subject lots, planting coconuts, rice, and corn thereon.[24] She additionally
testified that realty taxes on the subject lots had since been paid by Castor and,
subsequently, by her.[25] Possession of the subject lots by Castor and petitioner
spouses was corroborated by the testimony of Luciana Navarra, who insisted that
respondents never occupied the said lots.[26] Finally, petitioner spouses presented
OCTs No. FV-4976, No. FV-4977, and No. FV-4978, covering the subject lots,
issued by the Registry of Deeds for the Province of Negros Oriental on 9 October
1962 in the name of petitioner Perfecta.

After a careful evaluation of the evidence adduced by the parties in the instant
case, the Court rules in favor of petitioner spouses.

At this point, let it be stated that the validity and due execution of the Deed of
Partition executed in 1937 is not directly assailed in this case, thus, the Court
need not pass upon the same. Under the said Deed of Partition, the other heirs of
Bernardo and Tranquilina clearly and unequivocally sold their shares in the
subject lots to Castor, petitioner Perfectas father. What appeared to be the clear
right of ownership of Castor over the subject lots was put in doubt by the
execution of the Confirmation of Extrajudicial Partition by Castor and his sister
Susana in 1960. Respondents, children and heirs of Susana, base their claim of
ownership of the subject lots on the said document, while petitioner spouses
denounce the same to be simulated, executed for purposes other than to transfer
ownership of the subject lots, and cannot legally alter the terms of the previously
duly executed Deed of Partition.

As held by the Court of Appeals, the Confirmation of Extrajudicial Partition

partakes of the nature of an admission against a persons proprietary
interest.[27] As such, the same may be admitted as evidence against Castor and
petitioner spouses, his successors-in-interest. The theory under which
declarations against interest are received in evidence, notwithstanding that they
are hearsay, is that the necessity of the occasion renders the reception of such
evidence advisable and, further, that the reliability of such declaration asserts
facts which are against his own pecuniary or moral interest.[28]

Nevertheless, the Confirmation of Extrajudicial Partition is just one piece of

evidence against petitioner spouses. It must still be considered and weighed
together with respondents other evidence vis--vis petitioner spouses evidence. In
civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. Preponderance of evidence is the weight, credit, and
value of the aggregate evidence on either side and is usually considered to be
synonymous with the term greater weight of the evidence or greater weight of
the credible evidence. Preponderance of evidence is a phrase which, in the last
analysis, means probability of the truth. It is evidence which is more convincing to
the court as worthy of belief than that which is offered in opposition
thereto.[29] Rule 133, Section 1 of the Rules of Court provides the guidelines in
determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or superior
weight of evidence on the issues involved lies, the court may consider all the facts and
circumstances of the case, the witnesses manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying, the nature of
the facts to which they testify, the probability or improbability of their testimony, their
interest or want of interest, and also their personal credibility so far as the same may
legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number.

Herein, despite the admission made by Castor in the Confirmation of

Extrajudicial Partition against his own interest, the Court is still convinced that the
evidence adduced by the petitioner spouses preponderated over that of the
respondents.
In analyzing the two vital documents in this case, the Court discerns that while the
Deed of Partition clearly explained how Castor came to fully own the subject lots,
the Confirmation of Extrajudicial Partition, even though confirming Susanas
ownership of the subject lots, failed to shed light on why or how the said
properties wholly pertained to her when her parents Bernardo and Tranquilina
clearly had other heirs who also had shares in the inheritance.

Other than the Confirmation of Extrajudicial Partition, respondents were only able
to present as evidence of their title to the subject lots tax declarations covering
the same, previously, in the name of Susana and, subsequently, in their own
names. We find such tax declarations insufficient to establish respondents
ownership of the subject lots. That the disputed property has been declared for
taxation purposes in the name of any party does not necessarily prove
ownership. Jurisprudence is consistent that tax declarations are not conclusive
evidence of ownership of the properties stated therein. A disclaimer is even
printed on the face of such tax declarations that they are "issued only in
connection with real property taxation [and] should not be considered as title to
the property." At best, tax declarations are indicia of possession in the concept of
an owner.[30] Conversely, non-declaration of a property for tax purposes does not
necessarily negate ownership.[31]

On the other hand, the Court is at a loss as to how the Court of Appeals failed to
give due consideration to the Torrens titles issued in the name of petitioner
Perfecta when it rendered its assailed Decision.

Sometime in 1962, petitioner Perfecta applied for and was granted by the Bureau
of Lands free patents over the subject lots. Pursuant thereto, Original Certificates
of Title No. FV-4976, No. FV-4977, and No. FV-4978, covering the subject lots,
were issued by the Registry of Deeds for the Province of Negros Oriental, on 9
October 1962, in the name of petitioner Perfecta. Given this crucial fact, the
Court pronounces that respondents Complaint for reconveyance of the subject
lots and damages filed only on 23 December 1974 is already barred.
A Torrens title issued on the basis of the free patents become as indefeasible as
one which was judicially secured upon the expiration of one year from date of
issuance of the patent.[32] However, this indefeasibility cannot be a bar to an
investigation by the State as to how such title has been acquired, if the purpose of
the investigation is to determine whether or not fraud has been committed in
securing the title. Indeed, one who succeeds in fraudulently acquiring title to
public land should not be allowed to benefit from it.[33]

On this matter, Section 101 of Commonwealth Act No. 141[34] provides that all
actions for the reversion to the government of lands of the public domain or
improvements thereon shall be instituted by the Solicitor General or the officer
acting in his stead, in the proper courts, in the name of the Commonwealth [now
Republic] of the Philippines. Such is the rule because whether the grant of a free
patent is in conformity with the law or not is a question which the government
may raise, but until it is so raised by the government and set aside, another
claiming party may not question it. The legality of the grant is a question between
the grantee and the government.[35] Thus, private parties, like respondents in the
instant case, cannot challenge the validity of the patent and the corresponding
title, as they had no personality to file the suit.
Although jurisprudence recognizes an exception to this case, the respondents
may not avail themselves of the same.

Verily, an aggrieved party may still file an action for reconveyance based on
implied or constructive trust, which prescribes in 10 years from the date of the
issuance of the Certificate of Title over the property, provided that the property
has not been acquired by an innocent purchaser for value. An action for
reconveyance is one that seeks to transfer property, wrongfully or fraudulently
registered by another, to its rightful and legal owner.[36] If the registered owner,
be he the patentee or his successor-in-interest to whom the free patent was
transferred, knew that the parcel of land described in the patent and in the
Torrens title belonged to another, who together with his predecessors-in-interest
had been in possession thereof, and if the patentee and his successor-in-interest
were never in possession thereof, the true owner may bring an action to have the
ownership of or title to the land judicially settled. The court in the exercise of its
equity jurisdiction, without ordering the cancellation of the Torrens titled issued
upon the patent, may direct the defendant, the registered owner, to reconvey the
parcel of land to the plaintiff who has been found to be the true owner thereof.[37]

In the instant case, respondents brought the action for reconveyance of the
subject lots before the RTC only on 23 December 2004, or more than 12
years after the Torrens titles were issued in favor of petitioner Perfecta on 9
October 1962. The remedy is, therefore, already time-barred.

And even if respondents Complaint was filed on time, the Court would still
rule that respondents failed to satisfactorily prove that they were in possession of
the subject lots prior to the grant of free patents and issuance of Torrens titles
over the same in favor petitioner Perfecta. The bare testimony of respondent
Justina that Susana had been in the peaceful and undisturbed possession of the
subject lots since 1937 up to the time of her death in 1965 was entirely bereft of
substantiation and details. No information was provided as to how said
possession of the subject lots was actually exercised or demonstrated by
Susana. In contrast, the possession of the subject lots by Castor, and later on by
petitioner spouses, was established not just by the testimony of petitioner
Perfecta, but was corroborated by the testimony of Luciana Navarra, whose
husband was a tenant working on the subject lots. Petitioner spouses possessed
the subject lots by planting thereon coconuts, rice, and corn - a claim which
respondents were unable to refute.

Furthermore, respondents allegation that petitioner Perfecta committed

fraud and breach of trust in her free patent application is specious. The fact that
the document evidencing the sale of the subject lots by Castor to petitioner
Perfecta was not presented does not automatically mean that said contract was
never in existence. Also undeserving of much consideration without sufficient
proof is respondents averment that the subject lots were private lands which
could no longer be granted to any person via free patent. Respondents ought to
remember that mere allegation of fraud is not enough. Specific, intentional acts
to deceive and deprive another party of his right, or in some manner injure
him, must be alleged and proved.[38] Also, the issuance by Bureau of Lands of free
patents over the subject property to petitioner Perfecta enjoys the presumption
of regularity.
WHEREFORE, premises considered, the Petition for Review under Rule 45 of the
Rules of Court is hereby GRANTED. The assailed Decision dated 8 March 2007 and
Resolution dated 3 September 2007 of the Court of Appeals in CA-G.R. CV No.
66873 are hereby REVERSED AND SET ASIDE. The Decision dated 29 February
2000 of the RTC of Negros Oriental, Branch 35, in Civil Case No. 6111 is
hereby REINSTATED. No costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:
 CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

DIOSDADO M. PERALTA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

LEONARDO A. QUISUMBING

Acting Chief Justice

[1]
Rollo, pp. 8-36.
[2]
Penned by Associate Justice Agustin S. Dizon with the concurrence of Associate Justices Arsenio J. Magpale and
Francisco P. Acosta; rollo, pp. 38-44.
[3]
Rollo, pp. 46-47.
[4]
Penned by Judge Victor C. Patrimonio; rollo, pp. 116-127.
[5]
Folder 2, Index of Exhibits, Exhibit 1.
[6]
Having died before the execution of the Deed of Partition, Fortunato and Vevencia were merely represented
therein by their eldest children, Lucio Cavile and Vicente Navarra, respectively.
[7]
Folder 2, Index of Exhibits, Exhibit A.
[8]
In 1985, the complaint was amended in view of the death of petitioner Jose de la Cruz. His children Solon de la
Cruz and Don de la Cruz were impleaded as defendants. Felicitas L. Reston was also impleaded as a
plaintiff, as she was likewise a daughter of Susana Cavile.
[9]
The descriptions of the boundaries of the lots covered by Tax Declarations No. 07408 and No. 07409 in the
Complaint correspond to those of the lots covered by Tax Declarations No. 7956 and No. 7421,
respectively, in the Deed of Partition, as well as to the lots covered by Tax Declarations No. 2040 and No.
2039 in the Confirmation of Extrajudicial Partition.
[10]
Folder 2, Index of Exhibits, Exhibits B to B-2.
[11]
Id. at Exhibits C to C-2.
[12]
Id. at Exhibits D to D-2.
[13]
In the RTC, respondent Justina Litania-Hong was presented as a lone witness for the plaintiffs in 1975. In 1987,
the Perdices Coliseum, upon which the trial court was situated, was burned. The original records of the case
were, thus, lost and were only duly reconstituted on 16 September 1987. Afterwards, petitioner Perfecta
Cavile testified for the defendants, followed by another witness, Leticia Navarra.
[14]
Rollo, p. 127.
[15]
Id. at 43.
[16]
Id. at 48-57.
[17]
Id. at 46-47.
[18]
Id. at 19.
[19]
In a petition for review under Rule 45 of the Rules of Court, questions of fact may be determined by the Court
when: (1) the conclusion of the Court of Appeals is a finding grounded entirely on speculation, surmise and
conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of
Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant
and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8)
said findings of fact are conclusions without citation of specific evidence on which they are based; (9) the
facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record. (See Rosario v. PCI Leasing and Finance, Inc., G.R.
No. 139233, 11 November 2005, 474 SCRA 500, 506, citing Sarmiento v. Court of Appeals, 353 Phil. 834,
846 [1998]).
[20]
TSN, 11 December 1975, pp. 8-9.
[21]
The pertinent portions of the Confirmation of Extrajudicial Partition provide:

Confirmation of Extrajudicial Partition

KNOW ALL MEN BY THESE PRESENTS:

That I, CASTOR CAVILE, xxx, hereinafter called and referred to as the PARTY OF THE FIRST PART; and SUSANA
CAVILE, xxx, hereinafter called and referred to as the PARTY OF THE SECOND PART,

WITNESSETH:

That the parties herein are the only legitimate children of the deceased spouses Bernardo Cavile and Tranquilina
Alvier Galon, who both died intestate, in the Municipality of Bayawan, Negros Oriental, sometime on the
year 1917, and February 19, 1945, respectively.

That the said deceased spouses left several parcels of agricultural land in
the Municipality of Bayawan, province of Negros Oriental, and among said parcels of land are the
following property described and bounded as follows:

xxxx

That the PARTY OF THE FIRST PART hereby recognizes, agree, bind and confirm that the above-described parcels
of land are (sic) the just and lawful share of the PARTY OF THE SECOND PART, and which property is
actually in the possession of the latter.
xxxx

IN WITNESS WHEREOF, we have hereunto signed this instrument on this 5 th day of August, 1960, at
the Municipality of Bayawan, Province of Negros Oriental, Philippines.

SGD CASTOR CAVILE SGD SUSANA CAVILE

(Party of the First Part) (Party of the Second Part)

[22]
Folder 2, Index of Exhibits, Exhibits E to L-2.
[23]
The pertinent portions of the Deed of Partition read:
DEED OF PARTITION

KNOW ALL MEN BY THESE PRESENTS:

THAT Susana Cavile, Castor Cavile, Benedicta Cavile, Simplicia Cavile, Lucio Cavile and Vicenta Navarra both (sic) of
legal age and residents in the Municipality of Tolong, Province of Oriental Negros, Philippine Islands, after
being duly sworn to in legal form, WITNESSETH:

That Susana Cavile, Castor Cavile and Benedicta Cavile are the only children of Bernardo Cavile with his wife
Tranquilina Galon, and that Simplicia Cavile and Fortunato Cavile and Vevencia Cavile are the children of
Bernardo Cavile outside from the conjugal home of Bernardo Cavile and Tranquilina Galon.

That Fortunato Cavile and Vevencia Cavile having already been dead are survived by their corresponding children
and represented in this document by their oldest child, Lucio Cavile and Vicenta Navarra, respectively.

That during the union of Bernardo Cavile and Tranquilina Galon several properties have been acquired by them
and declared under the name of Bernardo Cavile all situated in
the Municipality of Tolong, Province of Oriental Negros, which properties are described as follows:

xxxx

That by this document it is hereby agreed by the legal heirs of Bernardo Cavile and Tranquilina Galon to divide and
by these presents it is hereby divided the above mentioned properties in the following manner:

1 - That the conjugal properties of said Bernardo Cavile and Tranquilina Galon which are already described are
hereby divided into two parts ONE (1) part which corresponds to the share of Bernardo Cavile is also
divided into SIX (6) equal parts, that is among Susana Cavile, Castor Cavile, Benedicta Cavile, Simplicia
Cavile, Fortunato Cavile represented by his oldest son, Lucio Cavile, and Vevencia Cavile represented by
her oldest child Vicenta Navarra.

2 - That the other ONE (1) part which corresponds to the share of Tranquilina Galon is also hereby equally divided
into THREE (3) parts, that is among Susana Cavile, Castor Cavile and Benedicta Cavile.

SHARE OF BERNARDO CAVILE

xxxx
That the share of Bernardo Cavile in parcels Tax Declaration Nos. 7421, 7143 and 7956 are sold by the legal heirs
to Castor Cavile in consideration of the sum of ONE HUNDRED SIXTY(-) SIX PESOS (P166.00), Philippine
currency, which amount has been received and divided equally among them.

xxxx

SHARE OF TRANQUILINA GALON

xxxx

That the share of Tranquilina Galon in parcels Tax Declaration Nos. 7421, 7143 and 7956 are hereby sold by the
heirs of said Tranquilina Galon to Castor Cavile in consideration of the sum of ONE HUNDRED SIXTY(-
)SIX PESOS (P166.00), Philippine currency(,) which sum has been received and divided equally among
them.

That the said heirs of Bernardo Cavile and Tranquilina Galon above mentioned hereby agree and accept as it is
hereby agreed and accepted all the items and conditions in this DEED OF PARTITION.

IN WITNESS HEREOF we have this 5th day of April, 1937, A.D., sign our names below in
the Municipality of Tolong, Province of Oriental Negros, Philippine Islands. (Folder 2, Index of Exhibits,
Exhibits 1 to 1-c.)
[24]
TSN, 20 July 1994, pp. 9-10.
[25]
Folder 2, Index of Exhibits, Exhibits 2 to 2-e.
[26]
TSN, 24 April 1995, pp. 10-12.
[27]
Section 38 of Rule 130 of the Rules of Court provides:
SEC. 38. Declaration against interest. The declaration made by a person deceased, or unable to testify, against the
interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position would not have made the declaration unless
he believed it to be true, may be received in evidence against himself or his successors-in-interest and
against third persons.
[28]
Parel v. Prudencio, G.R. No. 146556, 19 April 2006, 487 SCRA 405, 416.
[29]
Go v. Court of Appeals, 403 Phil. 883, 890-891 (2001).
[30]
Azana v. Lumbo, G.R. No. 157593, 22 March 2007, 518 SCRA 707, 718-719.
[31]
Id. at 719.
[32]
Spouses De Ocampo v. Arlos, 397 Phil. 799, 810 (2000); Republic v. Court of Appeals, 325 Phil. 636, 642-643
(1996).
[33]
Republic of the Philippines v. Heirs of Angeles, 439 Phil. 349, 357 (2002).

[34]
Public Land Act.
[35]
See Maninang v. Consolacion, 12 Phil. 342, 349 (1908).
[36]
See Heirs of Sanjorjo v. Heirs of Quijano, G.R. No. 140457, 19 January 2005, 449 SCRA 15, 27.

[37]
Vital v. Anore, 90 Phil. 855, 858-859 (1952).
[38]
Crisologo v. Court of Appeals, 160-A Phil. 1085, 1093-1094 (1975).
Act of Declaration about Pedigree

1) Nepomuceno vs Lopez

FIRST DIVISION

BEN-HUR NEPOMUCENO, G.R. No. 181258

Petitioner,
Present:

PUNO, C.J., Chairperson,

- versus - CARPIO MORALES,
LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.
ARHBENCEL ANN LOPEZ,
represented by her mother Promulgated:
ARACELI LOPEZ, March 18, 2010
Respondent.
x-------------------------------------------------x

DECISION

CARPIO MORALES, J.:

Respondent Arhbencel Ann Lopez (Arhbencel), represented by her mother Araceli

Lopez (Araceli), filed a Complaint[1] with the Regional Trial Court (RTC) of
Caloocan City for recognition and support against Ben-Hur Nepomuceno
(petitioner).

Born on June 8, 1999, Arhbencel claimed to have been begotten out of an

extramarital affair of petitioner with Araceli; that petitioner refused to affix his
signature on her Certificate of Birth; and that, by a handwritten note dated August
7, 1999, petitioner nevertheless obligated himself to give her financial support in
the amount of P1,500 on the 15th and 30th days of each month beginning August
15, 1999.

Arguing that her filiation to petitioner was established by the handwritten

note, Arhbencel prayed that petitioner be ordered to: (1) recognize her as his child,
(2) give her support pendente lite in the increased amount of P8,000 a month, and
(3) give her adequate monthly financial support until she reaches the age of
majority.
Petitioner countered that Araceli had not proven that he was the father of
Arhbencel; and that he was only forced to execute the handwritten note on account
of threats coming from the National Peoples Army.[2]

By Order of July 4, 2001,[3] Branch 130 of the Caloocan RTC, on the basis
of petitioners handwritten note which it treated as contractual support since the
issue of Arhbencels filiation had yet to be determined during the hearing on the
merits, granted Arhbencels prayer for support pendente lite in the amount
of P3,000 a month.

After Arhbencel rested her case, petitioner filed a demurrer to evidence

which the trial court granted by Order dated June 7, 2006,[4] whereupon the case
was dismissed for insufficiency of evidence.

The trial court held that, among other things, Arhbencels Certificate of Birth
was not prima facie evidence of her filiation to petitioner as it did not bear
petitioners signature; that petitioners handwritten undertaking to provide support
did not contain a categorical acknowledgment that Arhbencel is his child; and that
there was no showing that petitioner performed any overt act of acknowledgment
of Arhbencel as his illegitimate child after the execution of the note.

On appeal by Arhbencel, the Court of Appeals, by Decision of July 20,

[5]
2007, reversed the trial courts decision, declared Arhbencel to be petitioners
illegitimate daughter and accordingly ordered petitioner to give Arhbencel
financial support in the increased amount of P4,000 every 15th and 30th days of
the month, or a total of P8,000 a month.
 The appellate court found that from petitioners payment of Aracelis hospital
bills when she gave birth to Arhbencel and his subsequent commitment to provide
monthly financial support, the only logical conclusion to be drawn was that he was
Arhbencels father; that petitioner merely acted in bad faith in omitting a statement
of paternity in his handwritten undertaking to provide financial support; and that
the amount of P8,000 a month was reasonable for Arhbencels subsistence and not
burdensome for petitioner in view of his income.

His Motion for Reconsideration having been denied by Resolution

dated January 3, 2008,[6] petitioner comes before this Court through the present
Petition for Review on Certiorari.[7]

Petitioner contends that nowhere in the documentary evidence presented by

Araceli is an explicit statement made by him that he is the father of Arhbencel; that
absent recognition or acknowledgment, illegitimate children are not entitled to
support from the putative parent; that the supposed payment made by him of
Aracelis hospital bills was neither alleged in the complaint nor proven during the
trial; and that Arhbencels claim of paternity and filiation was not established by
clear and convincing evidence.

Arhbencel avers in her Comment that petitioner raises questions of fact

which the appellate court had already addressed, along with the issues raised in the
present petition.[8]

The petition is impressed with merit.

The relevant provisions of the Family Code[9] that treat of the right to
support are Articles 194 to 196, thus:

Article 194. Support compromises everything indispensable for sustenance,

dwelling, clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some profession,
trade or vocation, even beyond the age of majority. Transportation shall include
expenses in going to and from school, or to and from place of work.
 Article 195. Subject to the provisions of the succeeding articles, the following
are obliged to support each other to the whole extent set forth in the preceding
article:

1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and the legitimate and illegitimate children
of the latter;
4. Parents and their illegitimate children and the legitimate and illegitimate
children of the latter; and
5. Legitimate brothers and sisters, whether of the full or half-blood.
Article 196. Brothers and sisters not legitimately related, whether of the full or
half-blood, are likewise bound to support each other to the full extent set forth in
Article 194, except only when the need for support of the brother or sister, being
of age, is due to a cause imputable to the claimant's fault or
negligence. (emphasis and underscoring supplied)

Arhbencels demand for support, being based on her claim of filiation to petitioner
as his illegitimate daughter, falls under Article 195(4). As such, her entitlement to
support from petitioner is dependent on the determination of her filiation.

Herrera v. Alba[10] summarizes the laws, rules, and jurisprudence on

establishing filiation, discoursing in relevant part as follows:

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of the

following:

(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:
(1) The open and continuous possession of the status of a legitimate child; or
 (2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of

Rule 130 provide:
SEC. 39. Act or declaration about pedigree. The act or declaration of a person
deceased, or unable to testify, in respect to the pedigree of another person related
to him by birth or marriage, may be received in evidence where it occurred before
the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. The reputation or

tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we
stated that the issue of paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary recognition by a
parent shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing. To be effective, the claim of filiation must be
made by the putative father himself and the writing must be the writing of the
putative father. A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable evidence. Letters
to the mother vowing to be a good father to the child and pictures of the putative
father cuddling the child on various occasions, together with the certificate of live
birth, proved filiation. However, a student permanent record, a written consent to
a father's operation, or a marriage contract where the putative father gave consent,
cannot be taken as authentic writing. Standing alone, neither a certificate of
baptism nor family pictures are sufficient to establish filiation. (emphasis and
underscoring supplied)

In the present case, Arhbencel relies, in the main, on the handwritten note executed
by petitioner which reads:

Manila, Aug. 7, 1999

 I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial
support in the amount of P1,500.00 every fifteen and thirtieth day of each month
for a total of P3,000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann Lopez,
presently in the custody of her mother Araceli Lopez without the necessity of
demand, subject to adjustment later depending on the needs of the child and my
income.

The abovequoted note does not contain any statement whatsoever about
Arhbencels filiation to petitioner. It is, therefore, not within the ambit of Article
172(2) vis--vis Article 175 of the Family Code which admits as competent
evidence of illegitimate filiation an admission of filiation in a private handwritten
instrument signed by the parent concerned.

The note cannot also be accorded the same weight as the notarial agreement
to support the child referred to in Herrera. For it is not even
notarized. And Herrera instructs that the notarial agreement must be accompanied
by the putative fathers admission of filiation to be an acceptable evidence of
filiation. Here, however, not only has petitioner not admitted filiation through
contemporaneous actions. He has consistently denied it.
The only other documentary evidence submitted by Arhbencel, a copy of her
Certificate of Birth,[11] has no probative value to establish filiation to petitioner, the
latter not having signed the same.

At bottom, all that Arhbencel really has is petitioners handwritten

undertaking to provide financial support to her which, without more, fails to
establish her claim of filiation. The Court is mindful that the best interests of the
child in cases involving paternity and filiation should be advanced. It is, however,
just as mindful of the disturbance that unfounded paternity suits cause to the
privacy and peace of the putative fathers legitimate family.
 WHEREFORE, the petition is GRANTED. The Court of Appeals Decision
of July 20, 2007 is SET ASIDE. The Order dated June 7, 2006 of Branch 130 of
the Caloocan City RTC dismissing the complaint for insufficiency of evidence is
REINSTATED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSAMIN

Associate Justice Associate Justice
 MARTIN S. VILLARAMA, JR.
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
Rollo, pp. 117-120.
[2]
Id. at 29, 87.
[3]
Id. at 86-90.
[4]
Id. at 109-116.
[5]
Penned by Associate Justice Conrado M. Vasquez, Jr., with the concurrence of Associate Justices Edgardo F.
Sundiam and Monina Arevalo-Zenarosa; id. at 53-65.
[6]
Id. at 50-51.
[7]
Id. at 25-48.
[8]
Id. at 127-130.
[9]
Executive Order No. 209 as amended.
[10]
G.R. No. 148220, June 15, 2005, 460 SCRA 197, 206-208.

[11]
Rollo, p. 121.
 Family Reputation or tradition regarding pedigree

1) People vs Gallano

FIRST DIVISION

G.R. No. 184762, February 25, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINGO GALLANO y JARANILLA, Accused-

Appellant.

DECISION

BERSAMIN, J.:

To convict an accused charged with qualified rape instead of rape in its simple form not only condemns him
to a more serious offense but also exposes him to an even greater liability. As such, the State is mandated
to sufficiently allege in the information and to competently prove during trial the qualifying circumstances of
minority and relationship with the same certainty as the crime itself. c han roblesv irtuallawl ib rary

The Case

This appeal assails the decision promulgated on December 14, 2007,1 whereby the Court of Appeals (CA)
affirmed with modification the judgment2 rendered on March 22, 2004 by the Regional Trial Court (RTC),
Branch 69, in Silay City, Negros Occidental finding appellant Domingo Gallano y Jaranilla guilty of the crime
of rape, qualified by minority and relationship, and sentencing him to the supreme penalty of death
therefor. chan roble svirtuallaw lib rary

Antecedents

Gallano was arraigned and tried under the following information, viz: chanRoble svi rtual Lawli bra ry

That on or about 2 January 2003, in Silay City, Philippines and within the jurisdiction of this Honorable
Court, the herein accused, with lewd design, and with force and intimidation, did then and there wilfully,
unlawfully and feloniously have carnal knowledge with his niece, AAA,3 a 12-year-old minor, against the
latter's will.

The aggravating circumstance of minority and relationship is present, the victim being 12 years old, and the
accused being the victim's relative by affinity within the third civil degree.

ACTS CONTRARY TO LAW.4

cralawlawl ibra ry
cralawred

The facts presented by the Prosecution were summed up thusly: chanRoblesv irtual Lawlib rary

Private complainant, AAA, and her brother lived with their maternal aunt, BBB, BBB's husband, herein
appellant, their children and BBB's brother in Baranggay Guimbala-on, Silay City (TSN, October 6, 2003, pp.
3-4).

On January 2, 2003, BBB went to the hospital to take care of her father and stayed there for days. AAA was
home and was about to make her brother go to sleep. She went inside the bedroom to a mat when appellant
took her aside, undressed her and laid her down on the bed. Standing over her, appellant pointed his penis
at her and warned her not to tell her mother, otherwise, he would kill her. When appellant's penis touched
AAA's vagina, she felt pain and instinctively kicked him away. Feeling distraught, AAA ran outside and cried
(TSN, October 20, 2003, pp. 5-7).
On January 8, 2003, BBB's brother went to the hospital, he told BBB that he saw AAA and appellant inside
the room, standing and facing each other. This prompted BBB to ask AAA about the incident. At first, AAA
hesitated and refused to talk but later admitted that she was raped. BBB brought AAA to the city health
officer for examination on January 9, 2003 (TSN, October 6, 2003, pp. 4-5).5 cralawlawl ibra ry

The City Health Officer who examined AAA found hymenal lacerations on AAA's private part.6 cralawred

Gallano denied the charge, and asserted alibi, insisting that on the day the rape was committed he had been
working in the sugarcane field, having left home for that purpose at 5:00 a.m. and returning only at 5:00
p.m.; that he had brought his lunch then because he would take an hour to walk from the sugarcane field to
his house; and that he had learned of the charge of rape against him only after his arrest and detention.7 cralaw red

Decision of the RTC

In its judgment, the RTC convicted Gallano of rape, qualified by minority and relationship, disposing: c hanRoblesv irt ual Lawlib rary

WHEREFORE, PREMISES CONSIDERED, this Court finds accused DOMINGO GALLANO Y JARANILLA, Guilty
(sic.) of the crime of Rape, defined in Article 266-A in relation to Article 266-B, paragraph 5, sub-paragraph
1, of Republic Act No. 8353, as his guilt had been established by the prosecution beyond any reasonable
doubt.

Accordingly, this Court sentences accused, DOMINGO GALLANO y JARANILLA, to suffer the Supreme Penalty
of Death (sic.)

Accused, Domingo Gallano y Jaranilla, is, further, ordered by this Court to pay minor, [AAA], the sum of
FIFTY THOUSAND PESOS (P50,000.00) as Moral Damages, and the sum of FIFTY THOUSAND PESOS
(P50,000.00), all in Philippine Currency, as Exemplary Damages.

Accused, Domingo Gallano y Jaranilla, is ordered remitted to the National Penitentiary, Muntinlupa City,
Rizal.

NO COSTS.

SO ORDERED.8
cralawlawl ibra ry
cralawred

The RTC found AAA's testimony as credible, observing as follows: cha nRoblesvi rtu alLaw lib rary

Though a child, [AAA], demonstrated to this Court her capacity of observation, recollection and
communication. She showed that she can perceive and perceiving, can make known her perception to this
Court as she clearly and capably related the details of her sad and horrible experience at the hands of the
accused. She withstood a thorough and exhaustive cross-examination, x x x It was a positive and credible
account she presented before this Court. There was not a motive ascribed and/or, in the very least,
suggested by the defense that might have raised doubt on her credibility and the credibility of the
statements she made before this Court.9 cralawlawlib rary

Anent Gallano's alibi, the RTC stated: chanRoblesvirtual Lawli bra ry

The sugarcane field where accused, Domingo Gallano y Jaranilla, claimed he was at the time of the
occurrence of the incident subject of the present criminal action was, likewise, located at Hda. Bias,
Barangay Guimbala-on, a submitted distance of only four (4) kilometers away from the house where the
submitted offense was committed easily accessible to the accused even by foot. Accused's statement was
not corroborated nor substantiated by other evidence, oral or otherwise. Under the given circumstances, the
physical impossibility of his presence at the scene of the crime, had not been established sufficiently and
convincingly. The burden of proof in setting in evidence the factual circumstance/circumstances of the
defense of alibi lies on the one who claims said defense, the accused in the present criminal action, which
failed to do miserably.10
cralawlawl ibra ry
cralaw red

In characterizing the offense as qualified rape, the RTC ruled that AAA was definitely below 18 years old on
January 2, 2003; and that such fact was not contested by Gallano.11 As to the fact that AAA was Gallano's
relative by affinity within the third civil degree, the RTC declared that such relationship had been sufficiently
established.12 c ralawred
 Judgment of the CA

On appeal, Gallano challenged his conviction, contending that the RTC committed the following errors, to
wit: chanRob lesvi rtua lLawl ibra ry

I.

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF RAPE

II.

GRANTING ARGUENDO THAT ACCUSED-APPELLANT WAS GUILTY OF RAPING [AAA], THE COURT A
QUO GRAVELY ERRED IN IMPOSING THE DEATH PENALTY.13
cralawlawl ibra ry
cralawred

The CA affirmed Gallano's conviction for rape nonetheless because the State had established all the
elements of rape, including the force and intimidation employed by Gallano.14 It opined that there was no
reason advanced by Gallano to warrant disturbing the RTC's appreciation of AAA's testimony; and agreed
with the RTC that his alibi and denial were worthless. Anent the second error, the CA said that the records
were "bereft of any independent evidence which would accurately show AAA's age,"15 pointing out that even
AAA had been uncertain about her own age;16 and that contrary to the State's theory, as advanced by the
Office of the Solicitor General (OSG), AAA's testimony to prove her age had been insufficient because
Gallano's admission of it had not been express and clear.17 Prescinding from these observations, the CA
sustained the RTC's finding of AAA's minority because: chanRoblesvi rt ualLawl ibra ry

Be that as it may, the minority age of the victim was not questioned by the defense. Although this Court
held that the age of the victim is not certain, her still being a minor below eighteen (18) years old is not
contested. This Court has to rely on the observation as stated in the assailed decision that the Court a quo is
quite certain that the victim is definitely below 18 years of age on January 2, 2003.18 cralawlawl ibra ry

The CA modified the penalty because of the intervening passage of Republic Act No. 9346,19 whereby the
death penalty was prohibited from being imposed in case of conviction, and instead imposed reclusion
perpetua on Gallano.20 The CA awarded civil indemnity of P75,000.00, moral damages awarded to
P75,000.00, and exemplary damages to P25,000.00.21 cralawred

Issues

Hence, this appeal, with Gallano reiterating the alleged errors by the CA, arguing that he should not be
convicted of rape upon the sole testimony of AAA that had been tainted with improbabilities and contrariness
to human experience. Hence, his guilt had not been established beyond reasonable doubt.22 cralawre d

Ruling

The conviction of Gallano is affirmed, but the characterization of the crime as qualified rape is set aside. He
could be held guilty only of simple rape.

Rape is a crime that is almost always committed in isolation or in secret, usually leaving only the victim to
testify about the commission of the crime.23 As such, the accused may be convicted of rape on the basis of
the victim's sole testimony provided such testimony is logical, credible, consistent and
convincing.24 Moreover, the testimony of a young rape victim is given full weight and credence considering
that her denunciation against him for rape would necessarily expose herself and her family to shame and
perhaps ridicule.25 Indeed, it is more consistent with human experience to hold that a rape victim of tender
age will truthfully testify as to all matters necessary to show that she was raped.26 cralawred

After reviewing the records, the Court concludes that the trial court was not arbitrary in its appreciation of
the proof of rape, and, therefore, the CA correctly ruled that the crime of rape was established beyond
reasonable doubt even upon the lone testimony of the victim herself. With the lower courts not being shown
by Gallano to have overlooked any matter or circumstance of weight that could alter the result in his favour,
their appreciation must be viewed with respect. It is settled that the findings of fact by the trial court are
accorded great weight, and are even held to be conclusive and binding unless they were tainted with
arbitrariness or oversight.27 This respect is but a recognition that the trial court is better situated to assess
the testimonies and evidence laid out before it during the trial.28 cralawred

Nonetheless, Gallano was guilty only of simple rape, not of qualified rape. In order that the accused is
convicted of qualified rape under Article 266-B (1) of the Revised Penal Code, two requisites must be met,
namely: (1) the victim must be a less than 18 years old; and (2) the offender must either be related to the
victim by consanguinity of by affinity within the third civil degree, or is the common-law spouse of the
parent of the victim. These two requisites must be both alleged and proved with absolute
certainty.29 Otherwise, the accused could only be held guilty of simple rape. The qualifying circumstances of
relationship and minority remain to be relevant in the crime of rape despite the abolition of the death
penalty under R.A. No. 9346. The accused's civil liability depends on the mode of rape he committed.30 cra lawred

Although Gallano's relationship with AAA went uncontroverted because both he and BBB had testified that
they were legally married,31 AAA's minority was not thereby competently established.

People v. Pruna32 states the controlling guidelines in evaluating evidence presented to prove a rape victim's
minority, to wit: cha nRoblesvi rt ualLaw lib rary

xxx [W]e hereby set the following guidelines in appreciating age, either as an element of the crime or as a
qualifying circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and
school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth� or authentic� document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or
a member of the family either by affinity or consanguinity who� is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules� on� Evidence� shall� be� sufficient� under� the� following
circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than
7 years old;ChanRobles Vi rtua lawlib rary

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than
12 years old; ChanRobles Vi rt ualawlib ra ry

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less
than 18 years old.

4. In the� absence� of a� certificate� of live� birth,� authentic document, or� the�

testimony� of the victim's mother� or� relatives concerning the victim's age, the complainant's
testimony will suffice provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence� regarding� age� shall� not� be� taken� against� him.
(Emphasis supplied)"33 c ralawlawli bra ry

The testimonies relevant to AAA's age were given as follows: chanRoble svirtual Lawlib ra ry

1. BBB testified that AAA was 13 years old at the time when her testimony was taken but there was no
birth certificate to prove AAA's age.34 cralawred

2. BBB declared that she took AAA when the latter was only nine months old.35 cralawre d

3. AAA attested that she was 13 years old at the time of the taking of her testimony but she did not
know when she was born.36 cralawre d
 4. AAA said that she had been staying with BBB for about four years prior to the time her testimony
was taken.37cralawred

5. Gallano mentioned that he did not know AAA's age,38 but he answered on cross-examination that
AAA was from 12 to 13 years old when asked if he knew AAA's age in 2003.39 cralawred

6. Gallano stated on cross-examination that AAA had been living with them since she was seven years
old.40
cralawlawl ibra ry

It is clear that the Prosecution failed to adduce AAA's certificate of live birth, the best evidence to prove
AAA's age in the context of Pruna. The Prosecution did not also present any acceptable substitutionary
documentary evidence to prove the same. Instead, the Prosecution relied on the testimonies of AAA and
BBB to establish AAA's minority.

Did the testimonies of AAA and BBB suffice to prove AAA's minority even if coupled with Gallano's supposed
admission of the same?

We answer in the negative.

BBB, who was AAA's aunt, was qualified to testify on AAA's pedigree, like her age and her date of birth.
Section 40, Rule 130 of the Rules of Court expressly stated so.41 Conformably with Pruna,42 BBB's testimony
would have sufficed considering that the information alleged that AAA was 12 years old at the time of the
commission of the crime, and the Prosecution was trying to prove that AAA was below 18 years old for the
purpose of qualifying the rape committed by the accused. Yet, Pruna dictated that BBB's
testimony must be clear and credible.43 BBB's testimony failed this test. Although BBB recalled
that she had taken AAA under her wing when the latter had been nine months old,44 BBB was apparently
contradicted by AAA's declaration that she had been staying with BBB and her family for about four years
reckoned from the time she gave her testimony in court.45 Gallano complicated the contradiction between
BBB and AAA by attesting that AAA had started staying with them when she had been only seven years
old.46 The effect of the contradictions was to cast doubt on BBB's personal knowledge of AAA's age and date
of birth, rendering BBB's testimony on AAA's minority unreliable.

Nevertheless, the OSG submits that AAA's testimony was enough to prove her age because Gallano
admitted to the same during cross-examination.47 cralawred

We disagree with the State. The guidelines under Pruna require that the accused's admission
of the age of the victim must be express and clear.48 That was not the case herein, for not
only did Gallano declare that he did not know how old AAA was at the time of the commission of the crime,
but also that he had been vague and indefinite on the matter as borne out by his tentative response of "12
or 13 years old" when asked during cross-examination if he knew AAA's age in 2003.49 In other words,
Gallano's admission was not express and clear enough to establish AAA's minority beyond moral certainty.

With the State not having established AAA's minority with absolute certainty, the Court rules out qualified
rape as the crime committed by Gallano. We reiterate that in the prosecution of rape in its qualified form,
the victim's minority must be averred and established "with equal certainty and clearness as the crime
itself."50 As a consequence, Gallano committed only simple rape, thus precluding the application of R.A. No.
9346. Pursuant to Article 266-A of the Revised Penal Code, the proper penalty is reclusion perpetua.

It further appears that despite already entertaining doubt about AAA's minority, the CA still affirmed
Gallano's conviction for qualified rape by depending on the "certainty" of the RTC's findings on AAA's
minority.51 Such affirmance by the CA was unwarranted because it was contrary to the guidelines defined by
the Court in Pruna.52 The affirmance should be treated as another reversible error on the part of the CA,
considering that all doubts in a criminal prosecution should be resolved in favor of the accused.

The modification of Gallano's civil liabilities is another consequence of the Prosecution's failure to establish
AAA's minority. To conform to prevailing jurisprudence, the award of civil indemnity must be reduced to
P50,000.00.53 The award of moral damages is similarly reduced to P50,000.00 in view of prevailing
jurisprudence.54 Meanwhile, the award for exemplary� damages is increased to P30,000.00 to conform to
recent jurisprudence.55 The amounts of damages awarded should earn interest at the rate of 6% per annum
from the finality of this judgment until said amounts are fully paid.56
WHEREFORE, the Court AFFIRMS the decision promulgated on December 14, 2007 with
the MODIFICATION that appellant DOMINGO GALLANO y JARANILLA is pronounced GUILTY beyond
reasonable doubt of SIMPLE RAPE and is sentenced to suffer reclusion perpetua, and to pay the victim AAA
P50,000 as civil indemnity, P50,000 as moral damages, and P30,000 as exemplary damages, with all such
amounts to earn interest of 6% per annum from the finality of this decision until full payment. The petitioner
shall pay the costs of suit.

SO ORDERED. chanroblesvi rt uallawl ibra ry

Sereno, C.J., Leonardo-De Castro, Bersamin, Perez, and Perlas-Bernabe, JJ., concur.

Endnotes:

Sec. 41. Common Reputation

FIRST DIVISION

[G.R. No. 118904. April 20, 1998]

ARTURIO TRINIDAD, petitioner, vs. COURT OF APPEALS, FELIX

TRINIDAD (deceased) and LOURDES TRINIDAD, respondents.

DECISION
PANGANIBAN, J.:

In the absence of a marriage contract and a birth certificate, how may marriage and
filiation be proven?

The Case

This is the main question raised in this petition for review on certiorari challenging
the Court of Appeals[1] Decision promulgated on December 1, 1994[2] and Resolution
promulgated on February 8, 1995[3] in CA-GR CV No. 23275, which reversed the
decision of the trial court and dismissed petitioners action for partition and damages.
On August 10, 1978, Petitioner Arturio Trinidad filed a complaint[4] for partition and
damages against Private Respondents Felix and Lourdes, both surnamed Trinidad,
before the Court of First Instance of Aklan, Branch I.[5] On October 28, 1982, Felix died
without issue, so he was not substituted as a party.[6]
On July 4, 1989, the trial court rendered a twenty-page decision[7] in favor of the
petitioner, in which it ruled:[8]
 Considering therefore that this court is of the opinion that plaintiff is the
legitimate son of Inocentes Trinidad, plaintiff is entitled to inherit the
property left by his deceased father which is 1/3 of the 4 parcels of land
subject matter of this case. Although the plaintiff had testified that he
had been receiving [his] share from said land before and the same was
stopped, there was no evidence introduced as to what year he stopped
receiving his share and for how much. This court therefore cannot rule
on that.
In its four-page Decision, Respondent Court reversed the trial court on the ground
that petitioner failed to adduce sufficient evidence to prove that his parents were legally
married to each other and that acquisitive prescription against him had set in. The
assailed Decision disposed:[9]
WHEREFORE, the Court REVERSES the appealed decision.
In lieu thereof, the Court hereby DISMISSES the [petitioners] complaint
and the counterclaim thereto.
Without costs.
Respondent Court denied reconsideration in its impugned Resolution which
reads:[10]

The Court DENIES defendants-appellants motion for reconsideration, dated

December 15, 1994, for lack of merit. There are no new or substantial matters
raised in the motion that merit the modification of the decision.

Hence, this petition.[11]

The Facts

The assailed Decision recites the factual background of this case, as follows:[12]
On August 10, 1978, plaintiff [herein petitioner] filed with the Court of
First Instance of Aklan, Kalibo, Aklan, an action for partition of four (4)
parcels of land, described therein, claiming that he was the son of the
late Inocentes Trinidad, one of three (3) children of Patricio Trinidad,
who was the original owner of the parcels of land. Patricio Trinidad died
in 1940, leaving the four (4) parcels of land to his three (3) children,
Inocentes, Lourdes and Felix. In 1970, plaintiff demanded from the
defendants to partition the land into three (3) equal shares and to give
him the one-third (1/3) individual share of his late father, but the
defendants refused.
 In their answer, filed on September 07, 1978, defendants denied that
plaintiff was the son of the late Inocentes Trinidad. Defendants
contended that Inocentes was single when he died in 1941, before
plaintiffs birth. Defendants also denied that plaintiff had lived with them,
and claimed that the parcels of land described in the complaint had
been in their possession since the death of their father in 1940 and that
they had not given plaintiff a share in the produce of the land.
Patricio Trinidad and Anastacia Briones were the parents of three (3)
children, namely, Inocentes, Lourdes and Felix. When Patricio died in
1940, survived by the above named children, he left four (4) parcels of
land, all situated at Barrio Tigayon, Kalibo Aklan.
Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son
of the late Inocentes Trinidad.
Arturio got married in 1966 to Candelaria Gaspar, at the age of twenty
three (23). Sometime after the marriage, Arturio demanded from the
defendants that the above-mentioned parcels of land be partitioned into
three (3) equal shares and that he be given the one-third (1/3)
individual shares of his late father, but defendants refused.
In order to appreciate more clearly the evidence adduced by both parties, this Court
hereby reproduces pertinent portions of the trial courts decision:[13]

EVIDENCE FOR THE PLAINTIFF:

Plaintiff presented as his first witness, Jovita Gerardo, 77 years old, (at the
time she testified in 1981) who is the barangay captain of barrio Tigayon,
Kalibo, Aklan, since 1972. She testified that before being elected as barrio
captain she held the position of barrio council-woman for 4 years. Also she
was [a member of the] board of director[s] of the Parent-Teachers Association
of Tigayon, Kalibo, Aklan. That she knows the plaintiff because they are
neighbors and she knows him from the time of his birth. She knows the father
of the plaintiff as Inocentes Trinidad and his mother Felicidad Molato; both
were already dead, Inocentes having died in 1944 and his wife died very
much later. Witness recalls plaintiff was born in 1943 in Barrio Tigayon,
Kalibo, Aklan, on July 21, 1943. At the time of the birth of the plaintiff, the
house of the witness was about 30 meters away from plaintiffs parents[]
house and she used to go there 2 or 3 times a week. That she knows both the
defendants as they are also neighbors. That both Felix and Lourdes Trinidad
are the uncle and aunt of Arturio because Inocentes Trinidad who is the father
of the plaintiff is the brother of the defendants, Felix and Lourdes
Trinidad. She testified she also knows that the father of Inocentes, Felix and
Lourdes[,] all surnamed Trinidad[,] was Patricio Trinidad who is already dead
but left several parcels of land which are the 4 parcels subject of this
litigation. That she knows all these [parcels of] land because they are located
in Barrio Tigayon.

When asked about the adjoining owners or boundaries of the 4 parcels of

land, witness answered and mentioned the respective adjoining owners. That
she knew these 4 parcels belonged to Patricio Trinidad because said Patricio
Trinidad was a native also of Barrio Tigayon. Said Patricio died before the
[war] and after his death the land went to his 3 children, namely: Inocentes,
Felix and Lourdes. Since then the land was never partitioned or divided
among the 3 children of Patricio.

A picture, Exhibit A, was shown to the witness for identification and she
identified a woman in the picture as the defendant, Lourdes Trinidad. A man
with a hat holding a baby was identified by her as Felix Trinidad, the
defendant. The other woman in the picture was pointed by the witness as the
wife of the plaintiff, Arturio Trinidad. When asked if Arturio Trinidad and
Lourdes Trinidad and Felix Trinidad pointed to by her in the picture are the
same Arturio, Felix and Lourdes, who are the plaintiff and the defendants in
this case, witness answered yes.

Another picture marked as Exhibit B was presented to the witness for

identification. She testified the woman in this picture as Lourdes Trinidad. In
said picture, Lourdes Trinidad was holding a child which witness identified as
the child Arturio Trinidad. When asked by the court when xxx the picture [was]
taken, counsel for the plaintiff answered, in 1966. When asked if Arturio
Trinidad was baptized, witness answered yes, as she had gone to the house
of his parents. Witness then identified the certificate of baptism marked as
Exhibit C. The name Arturio Trinidad was marked as Exhibit C-1 and the
name of Inocentes Trinidad and Felicidad Molato as father and mother
respectively, were marked as Exhibit C-2. The date of birth being July 21,
1943 was also marked. The signature of Monsignor Iturralde was also
identified.

On cross-examination, witness testified that she [knew] the land in question

very well as she used to pass by it always. It was located just near her house
but she cannot exactly tell the area as she merely passes by it. When asked if
she [knew] the photographer who took the pictures presented as Exhibit A and
B, witness answered she does not know as she was not present during the
picture taking. However, she can identify everybody in the picture as she
knows all of them.
At this stage of the trial, Felix Trinidad [died] without issue and he was
survived by his only sister, Lourdes Trinidad, who is his co-defendant in this
case.

Next witness for the plaintiff was ISABEL MEREN who was 72 years old and a
widow. She testified having known Inocentes Trinidad as the father of Arturio
Trinidad and that Inocentes, Felix and Lourdes are brothers and sister and
that their father was Patricio Trinidad who left them 4 parcels of land. That she
knew Inocentes Trinidad and Felicidad Molato who are the parents of Arturio,
the plaintiff, were married in New Washington, Aklan, by a protestant pastor
by the name of Lauriano Lajaylajay. That she knows Felicidad Molato and
Lourdes Trinidad very well because as a farmer she also owns a parcel of
land [and] she used to invite Felicidad and Lourdes to help her during planting
and harvesting season. That she knows that during the lifetime of Inocentes
the three of them, Inocentes, Felix and Lourdes possessed and usufructed the
4 parcels they inherited from their father, Patricio. That upon the death of
Inocentes, Lourdes Trinidad was in possession of the property without giving
the widow of Inocentes any share of the produce. As Lourdes outlived her two
brothers, namely: Felix and Inocentes, she was the one possessing and
usufructing the 4 parcels of land up to the present. The witness testified that
upon the death of Inocentes, Lourdes took Arturio and cared for him when he
was still small, about 3 years old, until Arturio grew up and got married. That
while Arturio was growing up, he had also enjoyed the produce of the land
while he was being taken care of by Lourdes Trinidad. That a
misunderstanding later on arose when Arturio Trinidad wanted to get his
fathers share but Lourdes Trinidad will not give it to him.

Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness. He testified

that defendants, Lourdes and Felix Trinidad, are his aunt and uncle, they
being the brother and sister of his father. That the parents of his father and the
defendants were Patricio Trinidad and Anastacia Briones. That both his father,
Inocentes Trinidad, and mother, Felicidad Molato, were already dead having
died in Tigayon, his father having died in 1944 and his mother about 25 years
ago.

As proof that he is the son of Inocentes Trinidad and Felicidad Molato, he

showed a certificate of baptism which had been previously marked as Exhibit
C. That his birth certificate was burned during World War 2 but he has a
certificate of loss issued by the Civil Registrar of Kalibo, Aklan.

When he was 14 years old, the defendants invited him to live with them being
their nephew as his mother was already dead. Plaintiffs mother died when he
was 13 years old. They treated him well and provided for all his needs. He
lived with defendants for 5 years. At the age of 19, he left the house of the
defendants and lived on his own. He got married at 23 to Candelaria Gaspar
and then they were invited by the defendants to live with them. So he and his
wife and children lived with the defendants. As proof that he and his family
lived with the defendants when the latter invited him to live with them, he
presented a picture previously marked as Exhibit B where there appears his
aunt, Lourdes Trinidad, carrying plaintiffs daughter, his uncle and his wife. In
short, it is a family picture according to him. Another family picture previously
marked Exhibit A shows his uncle, defendant Felix Trinidad, carrying plaintiffs
son. According to him, these 2 pictures were taken when he and his wife and
children were living with the defendants. That a few years after having lived
with them, the defendants made them vacate the house for he requested for
partition of the land to get his share. He moved out and looked for [a] lawyer
to handle his case. He testified there are 4 parcels of land in controversy of
which parcel 1 is an upland.

Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit bearing. The
harvest is 100 coconuts every 4 months and the cost of coconuts is P2.00
each. The boundaries are : East-Federico Inocencio; West-Teodulo Dionesio;
North-Teodulo Dionesio; and South-Bulalio Briones; located at Tigayon.

Parcel 2 is an upland with an area of 500 square meters; it has only 1 coconut
tree and 1 bamboo groove; also located in Tigayon, Kalibo, Aklan. Adjoining
owners are : East-Ambrosio Trinidad; North-Federico Inocencio; West-Patricio
Trinidad and South-Gregorio Briones.

Parcel 3 is about 12,000 square meters and 1/4 of that belongs to Patricio
Trinidad, the deceased father of the defendants and Inocentes, the father of
the plaintiff.

Parcel 4 is a riceland with an area of 5,000 square meters. The harvest is 40

cavans two times a years [sic]. Adjoining owners are: East-Gregorio Briones;
West-Bulalio Briones; South-Federico Inocencio and North-Digna Carpio.

Parcel 1 is Lot No. 903.

Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only Lot 864-A
with an area of 540 square meters is the subject of litigation.
Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by Tax Decl.
No. 703310 with reference to one of the owners of the land, Patricio Trinidad
married to Anastacia Briones, one-half share.

Parcel 4 is covered by Original Certificate of Title No. 22502 RO-174 covering

Lot No. 863 of the cadastral survey of Kalibo. The title is in the name of
Patricio Trinidad married to Anastacia Briones.

Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio Trinidad
while parcel 2 is covered by Tax Decl. No. 10626 in the name of Anastacia
Briones and another Tax Declaration No. 11637 for Parcel 3 in the name of
Ambrosio Trinidad while Parcel 4 is covered by Tax Decl. No. 16378 in the
name of Patricio Trinidad.

On cross-examination, plaintiff testified that during the lifetime of his mother

they were getting the share in the produce of the land like coconuts, palay and
corn. Plaintiff further testified that his father is Inocentes Trinidad and his
mother was Felicidad Molato. They were married in New Washington, Aklan,
by a certain Atty. Lajaylajay. When asked if this Atty. Lajaylajay is a municipal
judge of New Washington, Aklan, plaintiff answered he does not know
because he was not yet born at that time. That he does not have the death
certificate of his father who died in 1944 because it was wartime. That after
the death of his father, he lived with his mother and when his mother died[,] he
lived with his aunt and uncle, the defendants in this case. That during the
lifetime of his mother, it was his mother receiving the share of the produce of
the land. That both defendants, namely Lourdes and Felix Trinidad, are single
and they have no other nephews and nieces. That [petitioners] highest
educational attainment is Grade 3.

EVIDENCE FOR THE DEFENDANTS:

First witness for the defendants was PEDRO BRIONES, 68 years old,
unemployed and a resident of Nalook, Kalibo, Aklan. He testified
having known the defendants, Felix and Lourdes Trinidad. They being
his first cousins because the mother of Lourdes and Felix by the name
of Anastacia Briones and his father are sister and brother. That he also
knew Inocentes Trinidad being the brother of Felix and Lourdes and he
is already dead. According to the witness, Inocentes Trinidad [died] in
1940 and at the time of his death Inocentes Trinidad was not
married. That he knew this fact because at the time of the death of
Inocentes Trinidad he was then residing with his aunt, Nanay Taya,
referring to Anastacia Briones who is mother of the defendants, Felix
and Lourdes Trinidad, as well as Inocentes Trinidad. That at the time of
the death of Inocentes Trinidad, according to this witness he stayed
with his aunt, Anastacia Trinidad, and with his children before 1940 for
only 3 months. When asked if he knew Inocentes Trinidad cohabited
with anybody before his death, he answered, That I do not know,
neither does he kn[o]w a person by the name of Felicidad
Molato. Furthermore, when asked if he can recall if during the lifetime
of Inocentes Trinidad witness knew of anybody with whom said
Inocentes Trinidad had lived as husband and wife, witness, Pedro
Briones, answered that he could not recall because he was then in
Manila working. That after the war, he had gone back to the house of
his aunt, Anastacia, at Tigayon, Kalibo, as he always visit[s] her every
Sunday, however, he does not know the plaintiff, Arturio
Trinidad. When asked if after the death of Inocentes Trinidad, he knew
anybody who has stayed with the defendants who claimed to be a son
of Inocentes Trinidad, witness, Pedro Briones, answered: I do not know
about that..
On cross examination, witness testified that although he was born in
Tigayon, Kalibo, Aklan, he started to reside in Nalook, Kalibo, as the
hereditary property of their father was located there. When asked if he
was aware of the 4 parcels of land which is the subject matter of this
case before the court, witness answered that he does not know. What
he knew is that among the 3 children of Patricio Trinidad, Inocentes is
the eldest. And that at the time of the death of Inocentes in 1940,
according to the witness when cross examined, Inocentes Trinidad was
around 65 years old. That according to him, his aunt, Anastacia
Briones, was already dead before the war. When asked on cross
examination if he knew where Inocentes Trinidad was buried when he
died in 1940, witness answered that he was buried in their own land
because the Japanese forces were roaming around the place. When
confronted with Exhibit A which is the alleged family picture of the
plaintiff and the defendants, witness was able to identify the lady in the
picture, which had been marked as Exhibit A-1, as Lourdes Trinidad,
and the man wearing a hat on the said picture marked as Exhibit 2-A is
Felix Trinidad. However, when asked if he knew the plaintiff, Arturio
Trinidad, he said he does not know him.
Next witness for the defendants was the defendant herself, LOURDES
TRINIDAD. She stated that she is 75 years old, single and jobless. She
testified that Inocentes Trinidad was her brother and he is already dead
and he died in 1941 in Tigayon, Kalibo, Aklan. That before the death of
her brother, Inocentes Trinidad, he had gone to Manila where he
stayed for a long time and returned to Tigayon in 1941. According to
her, upon arrival from Manila in 1941 his brother, Inocentes Trinidad,
lived only for 15 days before he died. While his brother was in Manila,
witness testified she was not aware that he had married
anybody. Likewise, when he arrived in Tigayon in 1941, he also did
[not] get married. When asked if she knew one by the name of
Felicidad Molato, witness answered she knew her because Felicidad
Molato was staying in Tigayon. However, according to her[,] she does
not kn[o]w if her brother, Inocentes Trinidad, had lived with Felicidad
Molato as husband and wife. When asked if she knew the plaintiff,
Arturio Trinidad, she said, Yes, but she denied that Arturio Trinidad had
lived with them. According to the witness, Arturio Trinidad did not live
with the defendants but he stayed with his grandmother by the name of
Maria Concepcion, his mother, Felicidad Molato, having died
already. When asked by the court if there had been an instance when
the plaintiff had lived with her even for days, witness answered, he did
not. When further asked if Arturio Trinidad went to visit her in her
house, witness also said, He did not.
Upon cross examination by counsel for the plaintiff, Lourdes Trinidad
testified that her parents, Anastacia Briones and Patricio Trinidad, had
3 children, namely: Inocentes Trinidad, Felix Trinidad and herself. But
inasmuch as Felix and Inocentes are already dead, she is the only
remaining daughter of the spouses Patricio Trinidad and Anastacia
Briones. Defendant, Lourdes Trinidad, testified that her brother, Felix
Trinidad, died without a wife and children, in the same manner that her
brother, Inocentes Trinidad, died without a wife and children. She
herself testified that she does not have any family of her own for she
has [no] husband or children. According to her[,] when Inocentes
Trinidad [died] in 1941, they buried him in their private lot in Tigayon
because nobody will carry his coffin as it was wartime and the
municipality of Kalibo was occupied by the Japanese forces. When
further cross-examined that I[t] could not be true that Inocentes
Trinidad died in March 1941 because the war broke out in December
1941 and March 1941 was still peace time, the witness could not
answer the question. When she was presented with Exhibit A which is
the alleged family picture wherein she was holding was [sic] the child of
Arturio Trinidad, she answered; Yes. and the child that she is holding is
Clarita Trinidad, child of Arturio Trinidad. According to her, she was
only requested to hold this child to be brought to the church because
she will be baptized and that the baptism took place in the parish
church of Kalibo. When asked if there was a party, she answered;
Maybe there was. When confronted with Exhibit A-1 which is herself in
the picture carrying the child, witness identified herself and explained
that she was requested to bring the child to the church and that the
picture taken together with her brother and Arturio Trinidad and the
latters child was taken during the time when she and Arturio Trinidad
did not have a case in court yet. She likewise identified the man with a
hat holding a child marked as Exhibit A-2 as her brother, Felix. When
asked if the child being carried by her brother, Felix Trinidad, is another
child of the plaintiff, witness answered she does not know because her
eyes are already blurred. Furthermore, when asked to identify the
woman in the picture who was at the right of the child held by her
brother, Felix, and who was previously identified by plaintiff, Arturio
Trinidad, as his wife, witness answered that she cannot identify
because she had a poor eyesight neither can she identify plaintiff,
Arturio Trinidad, holding another child in the picture for the same
reason. When asked by counsel for the plaintiff if she knows that the
one who took this picture was the son of Ambrosio Trinidad by the
name of Julito Trinidad who was also their cousin, witness testified that
she does not know.
Third witness for the defendants was BEATRIZ TRINIDAD SAYON who
testified that she knew Arturio Trinidad because he was her neighbor in
Tigayon. In the same manner that she also knew the defendants, Felix
and Lourdes, and Inocentes all surnamed Trinidad because they
were her cousins. She testified that a few months after the war broke
out Inocentes Trinidad died in their lolas house whose names was
Eugenia Rufo Trinidad. She further testified that Inocentes Trinidad had
lived almost in his lifetime in Manila and he went home only when his
father fetched him in Manila because he was already sick. That
according to her, about 1 months after his arrival from Manila,
Inocentes Trinidad died. She also testified that she knew Felicidad
Molato and that Felicidad Molato had never been married to Inocentes
Trinidad. According to her, it was in 1941 when Inocentes Trinidad
died. According to her she was born in 1928, therefore, she was 13 or
14 years old when the war broke out. When asked if she can remember
that it was only in the early months of the year 1943 when the
Japanese occupied Kalibo, she said she [was] not sure. She further
testified that Inocentes Trinidad was buried in their private lot because
Kalibo was then occupied by the Japanese forces and nobody would
carry his body to be buried in the Poblacion.
 For rebuttal evidence, [petitioner] presented ISABEL MEREN, who was
76 years old and a resident of Tigayon. Rebuttal witness testified that
xxx she knew both the [petitioner] and the [private respondents] in this
case very well as her house is only around 200 meters from
them. When asked if it is true that according to Lourdes Trinidad,
[Inocentes Trinidad] arrived from Manila in 1941 and he lived only for
15 days and died, witness testified that he did not die in that year
because he died in the year 1944, and that Inocentes Trinidad lived
with his sister, Lourdes Trinidad, in a house which is only across the
street from her house. According to the said rebuttal witness, it is not
true that Inocentes Trinidad died single because he had a wife by the
name of Felicidad Molato whom he married on May 5, 1942 in New
Washington, Aklan. That she knew this fact because she was
personally present when couple was married by Lauriano Lajaylajay, a
protestant pastor.
On cross examination, rebuttal witness testified that when Inocentes
Trinidad arrived from Manila he was in good physical condition. That
she knew both Inocentes Trinidad and Felicidad Molato to be Catholics
but that according to her, their marriage was solemnized by a
Protestant minister and she was one of the sponsors. That during the
marriage of Inocentes Trinidad and Felicidad Molato, Lourdes Trinidad
and Felix Trinidad were also present.
When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal
witness, he was not able to present a marriage contract of his parents
but instead a certification dated September 5, 1978 issued by one
Remedios Eleserio of the Local Civil Registrar of the Municipality of
New Washington, Aklan, attesting to the fact that records of births,
deaths, and marriages in the municipality of New Washington were
destroyed during the Japanese time.

Respondent Courts Ruling

In finding that petitioner was not a child, legitimate or otherwise, of the late
Inocentes Trinidad, Respondent Court ruled:[14]
We sustain the appeal on the ground that plaintiff has not adduced
sufficient evidence to prove that he is the son of the late Inocentes
Trinidad. But the action to claim legitimacy has not prescribed.
Plaintiff has not established that he was recognized, as a legitimate son
of the late Inocentes Trinidad, in the record of birth or a final judgment,
in a public document or a private handwritten instrument, or that he was
in continuous possession of the status of a legitimate child.
Two witnesses, Pedro Briones and Beatriz Trinidad Sayon, testified for
the defendants that Inocentes Trinidad never married. He died single in
1941. One witness, Isabel Maren, testified in rebuttal for the plaintiff,
that Inocentes Trinidad married Felicidad Molato in New Washington,
Aklan, on May 5, 1942, solemnized by a pastor of the protestant church
and that she attended the wedding ceremony (t.s.n. Sept. 6, 1988, p.
4). Hence, there was no preponderant evidence of the marriage, nor of
Inocentes acknowledgment of plaintiff as his son, who was born on July
21, 1943.
The right to demand partition does not prescribe (de Castro vs. Echarri,
20 Phil. 23). Where one of the interested parties openly and adversely
occupies the property without recognizing the co-ownership (Cordova
vs. Cordova, L-9936, January 14, 1958) acquisitive prescription may
set in (Florenz D. Regalado, Remedial Law Compendium, Vol. I, Fifth
Revised Edition, 1988, p. 497). Admittedly, the defendants have been
in possession of the parcels of land involved in the concept of owners
since their father died in 1940. Even if possession be counted from
1964, when plaintiff attained the age of majority, still, defendants
possessed the land for more than ten (10) years, thus acquiring
ownership of the same by acquisitive prescription (Article 1134, Civil
Code of the Philippines).

The Issues

Petitioner submits the following issues for resolution:[15]

1. Whether or not petitioner (plaintiff-appellee) has proven by
preponderant evidence the marriage of his parents.
2. Whether or not petitioner (plaintiff-appellee) has adduced sufficient
evidence to prove that he is the son of the late Inocentes Trinidad,
brother of private respondents (defendants-appellants) Felix and
Lourdes Trinidad.
3. Whether or not the Family Code is applicable to the case at bar[,] the
decision of the Regional Trial Court having been promulgated on July
4, 1989, after the Family Code became effective on August 3, 1988.
 4. Whether or not petitioners status as a legitimate child can be
attacked collaterally by the private respondents.
5. Whether or not private respondent (defendants-appellants) have
acquired ownership of the properties in question by acquisitive
prescription.
Simply stated, the main issues raised in this petition are:
1. Did petitioner present sufficient evidence of his parents marriage and
of his filiation?
2. Was petitioners status as a legitimate child subject to collateral
attack in the action for partition?
3. Was his claim time-barred under the rules on acquisitive
prescription?

The Courts Ruling

The merits of this petition are patent. The partition of the late Patricios real
properties requires preponderant proof that petitioner is a co-owner or co-heir of the
decedents estate.[16] His right as a co-owner would, in turn, depend on whether he was
born during the existence of a valid and subsisting marriage between his mother
(Felicidad) and his putative father (Inocentes). This Court holds that such burden was
successfully discharged by petitioner and, thus, the reversal of the assailed Decision
and Resolution is inevitable.

First and Second Issues: Evidence of and Collateral

Attack on Filiation

At the outset, we stress that an appellate courts assessment of the evidence

presented by the parties will not, as a rule, be disturbed because the Supreme Court is
not a trier of facts. But in the face of the contradictory conclusions of the appellate and
the trial courts, such rule does not apply here. So, we had to meticulously pore over the
records and the evidence adduced in this case.[17]
Petitioners first burden is to prove that Inocentes and his mother (Felicidad) were
validly married, and that he was born during the subsistence of their marriage. This,
according to Respondent Court, he failed to accomplish.
This Court disagrees. Pugeda vs. Trias[18] ruled that when the question of whether a
marriage has been contracted arises in litigation, said marriage may be proven by
relevant evidence. To prove the fact of marriage, the following would constitute
competent evidence: the testimony of a witness to the matrimony, the couples public
and open cohabitation as husband and wife after the alleged wedlock, the birth and the
baptismal certificates of children born during such union, and the mention of such
nuptial in subsequent documents.[19]
In the case at bar, petitioner secured a certification [20] from the Office of the Civil
Registrar of Aklan that all records of births, deaths and marriages were either lost,
burned or destroyed during the Japanese occupation of said municipality. This fact,
however, is not fatal to petitioners case. Although the marriage contract is considered
the primary evidence of the marital union, petitioners failure to present it is not proof that
no marriage took place, as other forms of relevant evidence may take its place. [21]
In place of a marriage contract, two witnesses were presented by petitioner: Isabel
Meren, who testified that she was present during the nuptial of Felicidad and Inocentes
on May 5, 1942 in New Washington, Aklan; and Jovita Gerardo, who testified that the
couple deported themselves as husband and wife after the marriage. Gerardo, the 77-
year old barangay captain of Tigayon and former board member of the local parent-
teachers association, used to visit Inocentes and Felicidads house twice or thrice a
week, as she lived only thirty meters away.[22] On July 21, 1943, Gerardo dropped by
Inocentes house when Felicidad gave birth to petitioner. She also attended petitioners
baptismal party held at the same house.[23] Her testimony constitutes evidence of
common reputation respecting marriage.[24] It further gives rise to the disputable
presumption that a man and a woman deporting themselves as husband and wife have
entered into a lawful contract of marriage.[25] Petitioner also presented his baptismal
certificate (Exhibit C) in which Inocentes and Felicidad were named as the childs father
and mother.[26]
On the other hand, filiation may be proven by the following:
ART. 265. The filiation of legitimate children is proved by the record of
birth appearing in the Civil Register, or by an authentic document or a
final judgment.
ART. 266. In the absence of the titles indicated in the preceding article,
the filiation shall be proved by the continuous possession of status of a
legitimate child.
ART. 267. In the absence of a record of birth, authentic document, final
judgment or possession of status, legitimate filiation may be proved by
any other means allowed by the Rules of Court and special laws.[27]
Petitioner submitted in evidence a certification[28] that records relative to his birth
were either destroyed during the last world war or burned when the old town hall was
razed to the ground on June 17, 1956. To prove his filiation, he presented in evidence
two family pictures, his baptismal certificate and Gerardos testimony.
The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second
daughter and his wife (Exhibit A-4) together with the late Felix Trinidad (Exhibit A-2)
carrying petitioners first daughter, and Lourdes Trinidad (Exhibit A-1). Exhibit B is
another picture showing Lourdes Trinidad (Exhibit B-1) carrying petitioners first child
(Exhibit B-2). These pictures were taken before the case was instituted. Although they
do not directly prove petitioners filiation to Inocentes, they show that petitioner was
accepted by the private respondents as Inocentes legitimate son ante litem motam.
Lourdes denials of these pictures are hollow and evasive. While she admitted that
Exhibit B shows her holding Clarita Trinidad, the petitioners daughter, she demurred
that she did so only because she was requested to carry the child before she was
baptized.[29]When shown Exhibit A, she recognized her late brother -- but not petitioner,
his wife and the couples children -- slyly explaining that she could not clearly see
because of an alleged eye defect.[30]
Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one
of the other means allowed under the Rules of Court and special laws to show pedigree,
as this Court ruled in Mendoza vs. Court of Appeals:[31]
What both the trial court and the respondent court did not take into
account is that an illegitimate child is allowed to establish his claimed
filiation by any other means allowed by the Rules of Court and special
laws, according to the Civil Code, or by evidence of proof in his favor
that the defendant is her father, according to the Family Code. Such
evidence may consist of his baptismal certificate, a judicial admission, a
family Bible in which his name has been entered, common reputation
respecting his pedigree, admission by silence, the testimony of
witnesses, and other kinds of proof admissible under Rule 130 of the
Rules of Court. [Justice Alicia Sempio-Diy, Handbook on the Family
Code of the Phil. 1988 ed., p. 246]
Concededly, because Gerardo was not shown to be a member of the Trinidad
family by either consanguinity or affinity,[32] her testimony does not constitute family
reputation regarding pedigree. Hence, it cannot, by itself, be used to establish
petitioners legitimacy.
Be that as it may, the totality of petitioners positive evidence clearly preponderates
over private respondents self-serving negations. In sum, private respondents thesis is
that Inocentes died unwed and without issue in March 1941. Private respondents
witness, Pedro Briones, testified that Inocentes died in 1940 and was buried in the
estate of the Trinidads, because nobody was willing to carry the coffin to the cemetery
in Kalibo, which was then occupied by the Japanese forces. His testimony, however, is
far from credible because he stayed with the Trinidads for only three months, and his
answers on direct examination were noncommittal and evasive:[33]
Q: At the time of his death, can you tell the Court if this Inocentes Trinidad was married or
not?
A: Not married.
Q: In 1940 at the time of death of Inocentes Trinidad, where were you residing?
A: I was staying with them.
Q: When you said them, to whom are you referring to [sic]?
 A: My aunt Nanay Taya, Anastacia.
xxx xxx xxx
Q: Will you please tell the Court for how long did you stay with your aunt Anastacia Trinidad
and his children before 1940?
A: For only three months.
Q: Now, you said at the time of his death, Inocentes Trinidad was single. Do you know if he
had cohabited with anybody before his death?
A: [T]hat I do not know.
Q: You know a person by the name of Felicidad Molato?
A: No, sir.
Q: Can you recall if during the lifetime of Inocentes Trinidad if you have known of anybody
with whom he has lived as husband and wife?
A: I could not recall because I was then in Manila working.
Q: After the war, do you remember having gone back to the house of your aunt Anastacia at
Tigayon, Kalibo, Aklan?
A: Yes, sir,
Q: How often did you go to the house of your aunt?
A: Every Sunday.
xxx xxx xxx
Q: You know the plaintiff Arturio Trinidad?
A: I do not know him.
Q: After the death of Inocentes Trinidad, do you know if there was anybody who has stayed
with the defendants who claimed to be a son of Inocentes Trinidad?
A: I do not know about that.
Beatriz Sayon, the other witness of private respondent, testified that, when the
Japanese occupied Kalibo in 1941, her father brought Inocentes from Manila to Tigayon
because he was sick. Inocentes stayed with their grandmother, Eugenia Roco Trinidad,
and died single and without issue in March 1941, one and a half months after his return
to Tigayon. She knew Felicidad Molato, who was also a resident of Tigayon, but denied
that Felicidad was ever married to Inocentes.[34]
Taking judicial notice that World War II did not start until December 7, 1941 with the
bombing of Pearl Harbor in Hawaii, the trial court was not convinced that Inocentes died
in March 1941.[35] The Japanese forces occupied Manila only on January 2, 1942; [36]thus,
it stands to reason that Aklan was not occupied until then. It was only then that local
residents were unwilling to bury their dead in the cemetery in Kalibo, because of the
Japanese soldiers who were roaming around the area.[37]
Furthermore, petitioner consistently used Inocentes surname (Trinidad) without
objection from private respondents -- a presumptive proof of his status as Inocentes
legitimate child.[38]
Preponderant evidence means that, as a whole, the evidence adduced by one side
outweighs that of the adverse party.[39] Compared to the detailed (even if awkwardly
written) ruling of the trial court, Respondent Courts holding that petitioner failed to prove
his legitimate filiation to Inocentes is unconvincing. In determining where the
preponderance of evidence lies, a trial court may consider all the facts and
circumstances of the case, including the witnesses manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they are
testifying, the nature of the facts, the probability or improbability of their testimony, their
interest or want thereof, and their personal credibility.[40] Applying this rule, the trial court
significantly and convincingly held that the weight of evidence was in petitioners favor. It
declared:
xxx [O]ne thing sure is the fact that plaintiff had lived with defendants
enjoying the status of being their nephew xxx before plaintiff [had]
gotten married and had a family of his own where later on he started
demanding for the partition of the share of his father, Inocentes. The
fact that plaintiff had so lived with the defendants xxx is shown by the
alleged family pictures, Exhibits A & B. These family pictures were
taken at a time when plaintiff had not broached the idea of getting his
fathers share. xxxx His demand for the partition of the share of his
father provoked the ire of the defendants, thus, they disowned him as
their nephew. xxxx In this case, the plaintiff enjoyed the continuous
possession of a status of the child of the alleged father by the direct
acts of the defendants themselves, which status was only broken when
plaintiff demanded for the partition xxx as he was already having a
family of his own. xxxx.
However, the disowning by the defendant [private respondent herein],
Lourdes Trinidad, of the plaintiff [petitioner herein] being her nephew is
offset by the preponderance of evidence, among them the testimony of
witness, Jovita Gerardo, who is the barrio captain. This witness was
already 77 years old at the time she testified. Said witness had no
reason to favor the plaintiff. She had been a PTA officer and the court
sized her up as a civic minded person. She has nothing to gain in this
case as compared to the witness for the defendants who are either
cousin or nephew of Lourdes Trinidad who stands to gain in the case
for defendant, Lourdes Trinidad, being already 75 years old, has no
husband nor children.[41]
Doctrinally, a collateral attack on filiation is not permitted. [42] Rather than rely on this
axiom, petitioner chose to present evidence of his filiation and of his parents
marriage. Hence, there is no more need to rule on the application of this doctrine to
petitioners cause.

Third Issue: No Acquisitive Prescription

 Respondent Court ruled that, because acquisitive prescription sets in when one of
the interested parties openly and adversely occupies the property without recognizing
the co-ownership, and because private respondents had been in possession -- in the
concept of owners -- of the parcels of land in issue since Patricio died in 1940, they
acquired ownership of these parcels.
The Court disagrees. Private respondents have not acquired ownership of the
property in question by acquisitive prescription. In a co-ownership, the act of one
benefits all the other co-owners, unless the former repudiates the co-ownership.[43] Thus,
no prescription runs in favor of a co-owner or co-heir against his or her co-owners or co-
heirs, so long as he or she expressly or impliedly recognizes the co-ownership.
In this particular case, it is undisputed that, prior to the action for partition, petitioner,
in the concept of a co-owner, was receiving from private respondents his share of the
produce of the land in dispute. Until such time, recognition of the co-ownership by
private respondents was beyond question. There is no evidence, either, of their
repudiation, if any, of the co-ownership of petitioners father Inocentes over the
land. Further, the titles of these pieces of land were still in their fathers name. Although
private respondents had possessed these parcels openly since 1940 and had not
shared with petitioner the produce of the land during the pendency of this case, still,
they manifested no repudiation of the co-ownership. In Mariategui vs. Court of
Appeals, the Court held:[44]
x x x Corollarily, prescription does not run again private respondents
with respect to the filing of the action for partition so long as the heirs
for whose benefit prescription is invoked, have not expressly or
impliedly repudiated the co-ownership. In the other words, prescription
of an action for partition does not lie except when the co-ownership is
properly repudiated by the co-owner (Del Banco vs. Intermediate
Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117
SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share
of the other co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano vs. De Vega, 148
SCRA 342 [1987]). Furthermore, an action to demand partition is
imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156
SCRA 55 (1987). On the other hand, an action for partition may be
seen to be at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the property
involved (Roque vs. IAC, 165 SCRA 118 [1988]).
Considering the foregoing, Respondent Court committed reversible error in holding
that petitioners claim over the land in dispute was time-barred.
 WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution
are REVERSED and SET ASIDE. The trial courts decision dated July 4, 1989 is
REINSTATED. No costs.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.

[1]
Fifteenth Division composed of J. Bernardo P. Pardo, ponente; and JJ. Justo P. Torres, Jr., (now a
retired associate justice of this Court) and Antonio P. Solano, concurring;
[2] Rollo, pp 114-117.
[3] Rollo, p 141.
[4] Records, p. 1.
[5]
The case was later transferred to Branch VI, presided by Judge Jaime D. Discaya, and then to Branch
VIII, presided by Judge Emma C. Labayen.
[6] Records, p. 68; TSN, July 17, 1984, p. 2.
[7] Penned by Judge Labayen.
[8] Rollo, p 90; Regional Trial Courts decision, p 20.
[9] Rollo, p. 90.
[10] Rollo, p. 141.
[11]
The case was deemed submitted for resolution upon receipt by this Court of the private respondents
two-page Memorandum on August 15, 1997.
[12] Rollo, pp 114-115.
[13] Rollo, pp. 74-85.
[14] Rollo, pp. 115-116; Decision, pp 2-3.
[15]The 51-page petition was signed by Attys. Al A. Castro, Florecita V. Bilbes and Teresita S. de Guzman
of the Public Attorneys Office; Rollo, pp 21-22.
[16] De Mesa vs. Court of Appeals, 231 SCRA 773, 779-780, April 25, 1994, per Regalado, J.
[17]
Quebral vs. . Court of Appeals, 252 SCRA 353, 364, January 25, 1996; Edra vs. Intermediate
Appellate Court, 179 SCRA 344, 350, November 13, 1989; and Pacmac, Inc. vs. Intermediate Appellate
Court, 150 SCRA 555, 560, May 29, 1987.
[18] 4 SCRA 849, 855, March 31, 1962, per Labrador, J.
[19] IbId.
[20] Exh. I, Folder of Exhibits.
[21]
Balogbog vs. Court of Appeals, 269 SCRA 259, 266-267, March 7, 1997; Lim Tanhu vs. Ramolete, 66
SCRA 425, 469, August 29, 1975.
[22] TSN, July 30, 1981, p. 6.
[23] IbId., pp 1-17; TSN, October 30, 1981, pp 18-26; TSN, March 5, 1982, pp 27-36.
[24] Section 41, Rule 130 of the Rules on Evidence.
[25]
Section 3(aa), Rule 131, Rules; and Vitug, Compendium of Civil Law and Jurisprudence, revised ed.,
1993, p. 131, citing Rivera vs. Intermediate Court of Appeals, 182 SCRA 322; De Labuca vs. Workmens
Compensation Commission, 77 SCRA 31; and Alvado vs. City Government of Tacloban, 139 SCRA 230.
[26] Exhs. C-1 and C-2, Folder of Exhibits.
[27] Now Arts. 170 & 171 of the Family Code; and Vitug, supra., pp.223-224.
[28] Exh. D, Folder of Exhibits.
[29] TSN, February 3, 1988, p. 6.
[30] IbId., p. 8.
[31]
201 SCRA 675, 684, September 24, 1991, per Cruz, J.; and Uyguangco vs. Court of Appeals, 178
SCRA 684, 689, October 26, 1989.
[32] Sec. 40, Rule 130, Rules on Evidence.
[33] TSN, August 29, 1986, pp. 4-6.
[34] TSN, March 17, 1988, pp. 2-5.
[35] RTC Decision, p. 16; Rollo, p. 86.
[36] Zaide, Philippine Political and Cultural History, Vol. II, revised ed., 1957, p. 341.
[37] Rollo, p. 86.
[38] Mendoza vs. CA, supra, pp. 683-684.
[39]
Summa Insurance Corp. vs. Court of Appeals, 253 SCRA 175, 185, February 5, 1996; New Testament
Church of God vs. Court of Appeals, 246 SCRA 266, 269, July 14, 1995; Sapu-an vs. Court of Appeals,
214 SCRA 701, 706, October 19, 1992; Republic vs. Court of Appeals, ibid.
[40] IbId.; and Francisco, Basic Evidence, 1991 ed., p. 491.
[41] Rollo, pp. 89-90.
[42]
Sayson vs. Court of Appeals, 205 SCRA 321, January 23, 1992; Rosales vs. Castillo Rosales, 132
SCRA 132, 141-142, September 28, 1984; and Tolentino, Commentaries and Jurisprudence on the Civil
Code of the Philippines, Vol. I, 1990 ed., pp. 535-536.
[43] Art. 494, Civil Code.
[44] 205 SCRA 337, 345-346, January 24, 1992, per Bidin, J.
 Part of res gestae
1) Capilla vs People

THIRD DIVISION

PEOPLE OF THE G.R. No. 167502

PHILIPPINES,
Plaintiff-Appellee, Present:

QUISUMBING, Chairperson,

CARPIO,
- versus -
CARPIO MORALES,

TINGA, and

VELASCO, JR., JJ.

PABLO CUDAL, Promulgated:

Accused- Appellant.
October 31, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - x

DECISION
CARPIO MORALES, J.:

Under final review is the Court of Appeals Decision[1] of February 11,

2005 affirming that of Branch 39 of the Regional Trial Court of
Lingayen, Pangasinan[2] convicting Pablo Cudal (appellant) of parricide and meting
out to him the penalty of reclusion perpetua.

About 2:00 oclock in the morning of January 1, 1998,[3] as appellant arrived home
in Barangay Bonlalacao, Mangatarem, Pangasinan from a drinking spree with his
cousins and nephews, he roused his 79-year old father Crispin Cudal (the victim)
from his sleep. Appellant then asked money from the victim so he could go back
to the drinking session and pay for the liquor that he consumed. The victim
replied that he had no money, and told appellant that he was already
drunk.[4] This drew the two to a fight.[5]

Some 50 meters away from the place of the incident, Camilo Cudal (Camilo),
appellants first cousin who was then in the house of his mother-in-law, heard the
commotion.[6] Camilo immediately rushed to the place and there saw the victim
sitting on his bed and wiping blood oozing from his forehead. When asked about
what happened, the victim quickly replied that he quarreled with appellant and
that he was hit by him with a stone.[7]

When Camilo confronted appellant, the latter reasoned out that he was asking
money from his father but the latter refused.[8]
Camilo brought the wounded victim to the house of his (victims) brother
Segundino Cudal[9] where first aid was applied on his wounds. Camilo then
fetched from Urbiztondo, Pangasinan the victims daughter Leoncia[10] who
brought the victim to a nearby hospital where he expired the following
day, January 2, 1998, at about 4 oclock p.m.[11] The postmortem report prepared
by Dr. Cleofe Orence, Rural Health Physician of Mangatarem, Pangasinan who
examined the body of the victim revealed the following findings:

External Physical Injuries:

(1) Lacerated wound, old, about 4 cm. midfrontal area.

(2) Hematoma, dorsal aspect right hand.

(3) Contusion 2x3 cm., right upper quadrant area, abdomen.

Probable Cause of Death:

INTERNAL HEMORRHAGE secondary to Craniocerebral Injury secondary to Trauma

T/C Ruptured Viscus, abdomen.[12]

Appellant was arrested by police authorities on January 3, 1998[13] and brought

for treatment at the Mangatarem District Hospital on the same day. The medical
findings on him showed:

- (-) Negative alcoholic breath

- Stab wound 2 cm., left side face

- Stab wound 1.5 cm. zygomatic area left

- Periorbital hematoma left superimposed with punctured wound .5 cm. left lower
eyelid
 - Punctured wound left eyebrow

- Contusion hematoma 1x1 cm. occipital area[14]

An Information was soon filed against appellant reading:

xxxx

That on or about January 1, 1998, at about 2:00 oclock dawn, in barangay

Bonlalacao, municipality of Mangatarem, province of Pangasinan, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, willfully, unlawfully
and feloneously(sic), and with evident premiditation (sic), that is, having conceived and
deliberated to kill his own father with whom he was living with, and with treachery,
attack, assault and hit with the use of stone his father, Crispin Cudal, on the head and
other parts of his body, inflicting upon the latter mortal wounds which directly caused
his death, to the damage and prejudice of the heirs of the said victim Crispin Cudal.

CONTRARY to Article 246 of the Revised Penal Code.[15]

xxxx

Denying having struck the victim, appellant claimed that it was he who was
assaulted with a bolo,[16] and that while going after him, the victim accidentally
fell down and hit the bedpost in the process, wounding himself on the
forehead.[17] Asked how the victim sustained injury on his abdomen, appellant
explained that the victim subsequently fell on the floor, hitting his abdomen with
the handle of the bolo he was holding.[18]
After trial, Branch 39 of the Regional Trial Court of Lingayen, Pangasinan, by
Decision of October 28, 1998, convicted appellant of parricide, but considered his
intoxication at the time of the commission of the offense as a mitigating
circumstance under paragraph 3, Article 15 of the Revised Penal Code. The
dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing considerations, the Court finds the accused Pablo
Cudal Guilty beyond reasonable doubt of the crime of Parricide for the killing of his
father Crispin Cudal, on the early morning of New Year, January 1, 1998 with the
presence of one (1) mitigating circumstance, and accordingly the Court sentences the
said accused to reclusion perpetua. He is also ordered to pay the heirs of the accused
the sum of P30,000.00 representing funeral expenses, plus indemnity of P50,000.00
without subsidiary imprisonment in case of insolvency; and to pay the costs.

Being a detention prisoner, the said accused is credited with his detention to its full
extent.

SO ORDERED.[19]

Appellant appealed his conviction before this Court, assailing the trial court for
accept[ing] the prosecutions account as gospel truth despite the fact that its
witnesses were not actually direct witnesses to the crime charged.[20] The appeal
was docketed as G.R. No. 140637.

By Resolution[21] of August 30, 2004, this Court ordered the transfer of the
case to the Court of Appeals for appropriate action and disposition conformably
with People v. Mateo.[22]
The appellate court affirmed, with modification, appellants conviction. The
decretal text of the decision reads:

WHEREFORE, the assailed Decision of Branch 39 of the Regional Trial Court of Lingayen,
Pangasinan, dated October 28, 1998, in Criminal Case No. L-5778, convicting the
appellant, Pablo Cudal, of the crime of parricide and sentencing him to suffer the
penalty of reclusion perpetua is hereby AFFIRMED. The last sentence of the first
paragraph of its dispositive portion is however hereby modified to read, as
follows: Accused-appellant Pablo Cudal is also ordered to pay the heirs of the victim,
Crispin Cudal, the sum of P30,000.00 representing funeral expenses, plus indemnity
of P50,000.00 without subsidiary imprisonment in case of insolvency; and to pay the
costs.

No pronouncement as to costs.[23] (Emphasis in the original)

Hence, the elevation of the case to this Court for final review.
In a Manifestation dated September 7, 2005,[24] appellant informed that he was
opting not to file a Supplemental Brief.

The appeal fails.

Article 246 of the Revised Penal Code provides:

ART. 246. Parricide. Any person who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall
be guilty of parricide and shall be punished by the penalty of reclusion perpetua to
death.
Prosecution witness Camilo Cudal narrated what he knew of the circumstances
surrounding the incident as follows:

Q Do you still recall where you were on the late evening of December 31,
1997 before midnight?

A I could remember, sir.

Q Where were you?

A I was in the house of my in[-]laws, sir.

Q Will you please tell the name of your in-laws?

A Marissa Dancel, sir.

Q Where is the place of Marissa Dancel located?

A Bulalakao, Mangatarem, sir.

Q Why were you there at the house of your mother-in-law, Marissa Dancel?

A Because we were celebrating the New Year[s] Eve, sir.

Q Now by the way, how far is your house from the house of your mother-in-law where
you were celebrating New Year[]s Eve?

A Around 50 meters away, sir.

Q Now, at about 2:00 oclock in the early mornignof (sic) January 1, 1998, can you tell us
where you were?

A Yes, sir, I was in the house of my in-laws.

Q As you were stay (sic) there, can you still recall if there was unusual thing that you
observe[d] when you were at the house of your mother-in-law?

A Yes, sir, there was.

Q What was that that you observe[d]?

A I heard something like quarreling on the house of Crispin Cudal, sir.

Q Now, can you tell us why do you say that there is a sounds (sic) like warning in the
house of Crispin Cudal?

A Because they were uttering words, sir.

Q Can you tell us if you could recognize that voices as you said they are quarreling?

A Yes, sir.

Q Please tell the Honorable Court whose voice is that?

A Pablo Cudal and Crispin Cudal, sir.

Q Now, what did you [do] if any when you heard this quarreling voices of accused Pablo
Cudal?

A Because I went near, sir.

Q How did you go near?

A I walked towards the house of Crispin, (sic) Cudal and I was listening to them, sir.

Q Where did you go when you went near?

A I [e]ntered there (sic) house, sir.

Q Whose house?

A House of Crispin Cudal, sir?

Q How did you [e]nter the house of Crispin Cudal?

A The door was opened, sir.

Q As you [e]ntered the door of the house of Crispin Cudal, what did you see, if any?

A I saw blood oozing from the forehead of Crispin Cudal, sir.

Q Where did you see Crispin Cudal inside the house blooded as you have pointed in the
forehead?

A In the place where he sleep (sic), sir.

Q What was his position when you saw him blooded on the forehead?

A He was seating down and he was wiping the blood of his forehead, sir.

Q When you saw wiping his blood on the forehead, what next happened?

A I asked him, Uncle what happened,[] and he answered, we quarreled with Pablo
Cudal,[] he said.

Q Do you remember having asked, what caused the injury of the forehead?

A Yes, sir, I asked him.

Q What did the victim answer if any when you asked him what caused his injury on the
forehead if he answer (sic) you?

A I was hit with the stone by Pablo Cudal.[25] (Emphasis supplied)

Another prosecution witness, Segundino Cudal, declared that when his brother −
the victim was brought to his house by Camilo, the victim who was strong, albeit
his face was bloodied, told him that he was struck with a stone by appellant.

FISCAL CHIONG:

Q Do you know where you were on the early morning of January 1, 1998?

A I was at home, sir.

Q Do you recall if there is unusual incident that came to your knowledge involving your
brother Crispin Cudal?

A None yet when I am at home.

Q Do you know, if any one came to your house that morning of January 1, 1998?

A Yes, Crispin Cudal, sir.

Q How was your older brother Crispin Cudal brought to yourhouse (sic) by Camilo
Cudal?

A He was loaded in a tricycle, sir.

Q Now, when you saw your brother when he was brought to your house, can you tell us
his physical appearance or condition?

A He was strong but his face was bloody, sir. Even his clothes were stained or tainted
with blood, sir.

Q Now, when you saw your brothers face bloody as well as his clothes, what did you do,
if any as he was already in your house?

A I asked him what happened to him and he told me I was struck with stone by my
son[.]
 Q Did you ask him who is this son of him who struck him with stone?

A Yes, sir his name is Pablo Cudal.[26] (Emphasis and underscoring supplied)

At the witness stand, defense witness Dr. Orence, declared:

Q Is it also possible Doctor[a] that this contusion was due to the force of a stone struck
on the victim? Stone is a hard object?

A It could be, sir.

Q Likewise, this hematoma on the dorsal right hand of the victim was possibly caused by
the impact of the stone being thrown at the victim when the victim tried to
parry it, is that not also possible, Doctora?

A Yes sir, it is possible.[27] (Underscoring supplied)

That the complained act of appellant was the proximate cause of the death of the
victim is evident from the above-quoted postmortem report on the body of the
deceased showing the probable cause of his death as INTERNAL HEMORRHAGE
secondary to Craniocerebral Injury secondary to Trauma and T/C Ruptured Viscus,
abdomen.

It is axiomatic in criminal jurisprudence that when the issue is one of credibility of

witnesses, an appellate court will normally not disturb the factual findings of the
trial court unless the latter has reached conclusions that are clearly unsupported
by evidence, or unless some facts or circumstances of weight or influence were
overlooked which, if considered, would affect the result of the case. The rationale
for this is that trial courts have superior advantages in ascertaining the truth and
in detecting falsehood as they have the opportunity to observe at close range the
manner and demeanor of witnesses while testifying.[28] In the absence of any
showing that the trial court, whose findings were affirmed by the appellate court,
acted arbitrarily in the appreciation of evidence, this Court respects the same.

That Camilo and Segundino were not eyewitnesses to the incident does not
render their testimonies inadmissible, for they may be considered part of the res
gestae,[29] an exception to the hearsay rule. For the same to be considered part of
the res gestae, the following requisites must concur:
(1) the principal act or res gestae must be a startling occurrence; (2) the
statement is spontaneous or was made before the declarant had time to contrive
or devise a false statement, and the statement was made during the occurrence
or immediately prior or subsequent thereto; and (3) the statement made must
concern the occurrence in question and its immediately attending
circumstances.[30]

The spontaneity of the utterance and its logical connection with the principal
event, coupled with the fact that the utterance was made while the declarant was
still strong and subject to the stimulus of the nervous excitement of the principal
event, are deemed to preclude contrivance, deliberation, design or fabrication,
and to give to the utterance an inherent guaranty of trustworthiness.[31] The
admissibility of such exclamation is based on experience that, under certain
external circumstances of physical or mental shock, a stress of nervous
excitement may be produced in a spectator which stills the reflective faculties and
removes their control, so that the utterance which then occurs is a spontaneous
and sincere response to the actual sensations and perceptions already produced
by the external shock. Since this utterance is made under the immediate and
uncontrolled domination of the senses, rather than reason and reflection, and
during the brief period when consideration of self-interest could not have been
fully brought to bear, the utterance may be taken as expressing the real belief of
the speaker as to the facts just observed by him.[32]
The victims information to Camilo and Segundino as to the material facts was
made immediately after the startling incident occurred. It is as categorical as it is
spontaneous and instinctive. It cannot be concluded that in a very short span of
time, taking into consideration the ripe age of the victim, his relationship to
appellant, and the cruelty and suffering which immediately preceded the
confession, the victim had the opportunity to concoct the facts surrounding the
incident and its authorship. Besides, there appears to be no reason or motive on
the part of the victim to point his son as the culprit if such were not indeed the
truth.

Appellants intoxication at the time of the commission of the crime, being an

alternative circumstance under Article 15 of the Revised Penal Code, may be
appreciated as aggravating if the same is habitual or intentional, otherwise it shall
be considered as a mitigating circumstance. The trial court observed:

We now come to another matter, which is the fact that during the incident, the accused
was drunk. This was testified to by Camilo Cudal and admitted by the wife of the
accused. The accused himself admitted that he had been drinking with his cousins and
nephews, but he claims that he did not drink much. Drunkenness is an alternative
circumstance. It is aggravating if the accused is a habitual drunkard. It is mitigating if it is
otherwise.

The date of the incident is two (2) hours after midnight which ushered in the new year.
Before that, the accused and his relatives were celebrating and they drank San Miguel
gin. No evidence was presented to establish that he is a habitual drunkard. It is a legal
maxim that when there is doubt, the doubt should be resolved in favor of the accused.
This court[,] therefore, believes that this should be taken as a mitigating circumstance,
which is favorable to the accused.[33] (Underscoring supplied)

Absent any showing then that appellants intoxication was habitual or intentional,
it may only be considered as mitigating to correctly call for the imposition of the
penalty of reclusion perpetua, in accordance with Article 63, paragraph 2(3) of the
Revised Penal Code.[34]

WHEREFORE, the Court of Appeals Decision of February 11, 2005 which affirmed
the October 28, 1998 Decision of Branch 39 of the Regional Trial Court of
Lingayen, Pangasinan, convicting appellant Pablo Cudal of parricide and meting
out the penalty of reclusion perpetua is AFFIRMED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice
 Chairperson

ON LEAVE

ANTONIO T. CARPIO DANTE O. TINGA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division

Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer
of the Courts Division.
ARTEMIO V. PANGANIBAN

Chief Justice


On Leave.
[1]
Penned by Associate Justice Aurora Santiago-Lagman and concurred in by Associate Justices Conrado Vasquez,
Jr. and Rebecca De Guia-Salvador, rollo, pp. 4-20.
[2]
Penned by Judge Eugenio G. Ramos, records, pp. 68-74.
[3]
TSN, April 13, 1998, p.4.
[4]
TSN, July 16, 1998, p. 4.
[5]
Ibid.; see also TSN, April 13, 1998, p. 4.
[6]
Supra, note 3.
[7]
Id. at 5.
[8]
Supra, note 4.
[9]
TSN, April 13, 1998, p.6.
[10]
Sometimes referred to as Luncia.
[11]
Records, p. 6.
[12]
Ibid.
[13]
TSN, July 16, 1998, p. 8.
[14]
Records, p. 62.
[15]
Id. at 1.
[16]
Supra, note 4.
[17]
Id. at 5.
[18]
Id. at 16.
[19]
Records, pp. 73-74.
[20]
CA rollo, p. 49.
[21]
Id. at 103.
[22]
G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
[23]
Rollo, p. 19.
[24]
Id. at 22-23.
[25]
TSN, April 13, 1998, pp. 3-5
[26]
TSN, April 16, 1998, p. 9.
[27]
TSN, September 3, 1998, p. 10.
[28]
People v. Dalag, G.R. No. 129895, April 30, 2003, 402 SCRA 254, 262; See also Libuit v. People, G.R. No.
154363, September 13, 2005, 469 SCRA 610, 618; People v. Avero, No. L-76483, August 30, 1988, 165 SCRA
130, 134.
[29]
Rule, 130, Sec. 42 of the Rules of Court provides:
SEC. 42. Part of the res gestae. Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as
part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a
legal significance, may be received as part of the res gestae.
[30]
People v. Ignas, G.R. Nos. 140514-15, September 30, 2003, 412 SCRA 311, 333 citing People v. Tolentino, G.R.
No. 87085, February 2, 1993, 218 SCRA 337, 345. See also People v. Dela Cruz, G.R. No. 152176, October 1,
2003, 412 SCRA 503, 508; People v. Cabrera, Jr., G.R. No. 138266, April 30, 2003, 402 SCRA 299, 307-308.
[31]
V. HERRERA, REMEDIAL LAW, 1999 ed., p. 686 citing 2 JONES ON EVIDENCE 252, Sixth Ed.
[32]
People v. Sanchez, G.R. No. 74740, August 28, 1992, 213 SCRA 70, 78.
[33]
Records, p. 73.
[34]
ART. 63. Rules for the application of indivisible penalties. x x x
In all cases in which the law prescribes a penalty composed of two indivisible penalties the following rules shall be
observed in the application thereof:
xxxx
3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied.
 Sec 43. Entries in official records

Security bank vs Gan

Today is Thursday, September 27, 2018

SECOND DIVISION

G.R. No. 150464 June 27, 2006

SECURITY BANK AND TRUST COMPANY, Petitioner,

vs.
ERIC GAN, Respondent.

DECISION

CORONA, J.:

This petition for review on certiorari1 seeks the reversal of the decision2 of the Court of Appeals (CA) dated October 18, 2001 in
CA-G.R. CV No. 45701, the dispositive portion of which read:

WHEREFORE, finding no reversible error therefrom, the Decision now on appeal is hereby AFFIRMED in toto.

SO ORDERED.3

The factual antecedents follow.

Petitioner Security Bank and Trust Company is a banking institution duly organized and existing under the laws of the
Philippines. In 1981, respondent Eric Gan opened a current account with petitioner at its Soler Branch in Santa Cruz, Manila.
Petitioner alleged that it had an agreement with respondent wherein the latter would deposit an initial amount in his current
account and he could draw checks on said account provided there were sufficient funds to cover them. Furthermore, under a
special arrangement with petitioner’s branch manager then, Mr. Qui,4 respondent was allowed to transfer funds from his account
to another person’s account also within the same branch.5Respondent availed of such arrangement several times by depositing
checks in his account and even before they cleared, he withdrew the proceeds thereof and transferred them to the other account.
These transactions were covered by what were known as "debit memos" since respondent had no sufficient funds to cover the
amounts he transferred.6

Later on, respondent purportedly incurred an overdraft or negative balance in his account. As of December 14, 1982, the
overdraft balance came up to P153,757.78. According to petitioner, respondent refused to heed petitioner’s repeated demands
for payment. For the period December 14, 1982 to September 15, 1990, the total obligation of respondent reached P297,060.01,
inclusive of interest.7

Thus, in 1991, petitioner filed a complaint for sum of money against respondent to recover the P297,060.01 with 12% interest per
annum from September 16, 1990 until fully paid, attorney’s fees, litigation expenses and costs of suit. The case was docketed as
Civil Case No. 91-55605 with the Regional Trial Court of Manila, Branch 13.8

Respondent denied liability to petitioner for the said amount. He contended that the alleged overdraft resulted from transactions
done without his knowledge and consent.

In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that petitioner was not able to prove that
respondent owed it the amount claimed considering that the ledger cards it presented were merely hearsay evidence. On
petitioner’s appeal, the CA affirmed the trial court’s decision.

Hence, this petition anchored on the following grounds:

I. The honorable Court of Appeals erred in not ruling that petitioner has sufficiently proved its cause of action
against respondent; and that the ledger cards and the testimony of Mr. Patricio Mercado constituted the best
evidence of the transactions made by the respondent relative to his account.

II. The honorable Court of Appeals erred in not applying the principle of estoppel against respondent who has
benefited from the special arrangement accorded to him by petitioner which resulted in an overdraft / negative
balance.

III. The honorable Court of Appeals erred in affirming the decision of the trial court.9

We deny the petition for lack of merit.

It is well established that under Rule 45 of the Rules of Court, only questions of law, not of fact, may be raised before the
Supreme Court. It must be stressed that this Court is not a trier of facts and it is not its function to re-examine and weigh anew
the respective evidence of the parties. Factual findings of the trial court, especially those affirmed by the CA, are conclusive on
this Court when supported by the evidence on record.10

Here, both the trial court and the CA found that petitioner failed to substantiate its claim that respondent knowingly incurred an
overdraft against his account. We see no reason to disturb this finding.

To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who handled the account of respondent and
recorded his transactions in a ledger. Based on this ledger, respondent allegedly had a negative balance of P153,757.78. This
resulted from transfers of funds from respondent’s current account to another person’s account. These transfers were made
under the authority of Qui.11 Respondent categorically denied that he ever authorized these "funds transfers."12

The entries in the ledger, as testified to by Mercado, were not competent evidence to prove that respondent consented to the
transfers of funds. These entries merely showed that the transfers were indeed made and that Qui approved them. Petitioner’s
claim that respondent availed of a special arrangement to transfer funds from his account to another person’s account was a
bare allegation that was never substantiated. Admittedly, Mercado had no personal knowledge of this arrangement.13 In fact,
when asked about the details of the alleged consent given by respondent to the transfers, he stated that he could not remember
because respondent talked to Qui and not to him.14 Petitioner could have presented Qui whom they alleged allowed the special
arrangement with respondent. But it did not.

Neither can we accept petitioner’s argument that the entries made by Mercado in the ledger were competent evidence to prove
how and when the negative balance was incurred. Petitioner invokes Section 43 of Rule 130:

Entries in the course of business. – Entries made at, or near the time of the transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of
business or duty.

Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the satisfaction of the
following conditions:

1. the person who made the entry must be dead, or unable to testify;

2. the entries were made at or near the time of the transactions to which they refer;

3. the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual,
moral or religious; and

5. the entries were made in the ordinary or regular course of business or duty.15

The ledger entries did not meet the first and third requisites.

Mercado, petitioner’s bookkeeper who prepared the entries, was presented to testify on the transactions pertaining to the account
of respondent. It was in the course of his testimony that the ledger entries were presented. There was, therefore, neither
justification nor necessity for the presentation of the entries as the person who made them was available to testify in court.16

Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which resulted in
the negative balance. He had no knowledge of the truth or falsity of these entries. We agree entirely with the following discussion
of the trial court which was affirmed by the CA:

The plaintiff submits that the ledger cards constituted the best evidence of the transactions made by the defendant with the bank
relative to his account, pursuant to Section 43 of Rule 130 of the Revised Rules on Evidence. There is no question that the
entries in the ledgers were made by one whose duty it was to record transactions in the ordinary or regular course of the
business. But for the entries to be prima facie evidence of the facts recorded, the Rule interpose[s] a very important condition,
one which we think is truly indispensable to the probative worth of the entries as an exception to the hearsay rule, and that is that
the entrant must be "in a position to know the facts therein stated." Undeniably, Mr. Mercado was in a position to know the facts
of the check deposits and withdrawals. But the transfers of funds through the debit memos in question?

Let us be clear, at the outset, what the transactions covered by the debit memos are. They are, at bottom, credit
accommodations said to have been granted by the bank’s branch manager Mr. [Q]ui to the defendant, and they are, therefore
loans, to prove which competent testimonial or documentary evidence must be presented. In the fac[e] of the denial by the
defendant of the existence of any such agreement, and the absence of any document reflecting it, the testimony of a party to the
transaction, i.e., Mr. [Q]ui, or of any witness to the same, would be necessary. The plaintiff failed to explain why it did not or could
not present any party or witness to the transactions, but even if it had a reason why it could not, it is clear that the existence of
the agreements cannot be established through the testimony of Mr. Mercado, for he was [not in] a position to [know] those facts.
As a subordinate, he could not have done more than record what was reported to him by his superior the branch manager, and
unless he was allowed to be privy to the latter’s dealings with the defendant, the information that he received and entered in the
ledgers was incapable of being confirmed by him.

There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business records which spring from the duty
of other employees to communicate facts occurring in the ordinary course of business are prima facie admissible, the duty to
communicate being itself a badge of trustworthiness of the entries, but not when they purport to record what were independent
agreements arrived at by some bank officials and a client. In this case, the entries become mere casual or voluntary reports of
the official concerned. To permit the ledgers, prepared by the bank at its own instance, to substitute the contract as proof of the
agreements with third parties, is to set a dangerous precedent. Business entries are allowed as an exception to the hearsay rule
only under certain conditions specified in Section 43, which must be scrupulously observed to prevent them from being used as a
source of undue advantage for the party preparing them.17 (citations omitted)

Thus, petitioner did not prove that respondent had incurred a negative balance in his account. Consequently, there was nothing
to show that respondent was indebted to it in the amount claimed. lavvphil.net

Petitioner’s next argument is that respondent was estopped from denying the claim of petitioner since he benefited from the
special arrangement accorded to him resulting in the negative balance. This must likewise fail. The so-called special
arrangement was never established. In addition, there was no evidence that respondent benefited from it. As held by the CA:

The trial court satisfactorily explained the reason for not applying the principle of estoppel against defendant-appellee. As held by
the trial court:

"There is no scope here for the application of estoppel against the defendant-appellee, since it was not established that he had
ever received copies of the ledgers, and therefore given the opportunity to review the correctness of the entries. As we see it, the
case of the [plaintiff suffers from its failure to document its] transactions with its clients, and it is hardly right to close our eyes to
that infirmity at the expense of the defendant-appellee."

The temporary overdraft allegedly accorded by plaintiff-appellant to defendant-appellee has not benefited the defendant-appellee
in any manner. The 3 debit memos amounting to P150,000.00 appearing on defendant-appellee’s ledger consisted of fund
transfers from and not to defendant-appellee’s account. The transfers resulted [in] the benefit of other accounts, not that of
defendant-appellee.18

In view of the foregoing, the CA did not err in affirming the decision of the trial court.

WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals dated October 18, 2001 in CA-G.R.
CV No. 45701 is AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
 Associate Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

CANCIO C. GARCIA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

REYNATO S. PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in
the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s
Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes

1 Under Rule 45 of the Rules of Court.

2Penned by Associate Justice Bernardo P. Abesamis and concurred in by Associate Justices Godardo A. Jacinto
and Eliezer R. De Los Santos of the 17th Division; rollo, pp. 26-35.

3 Rollo, p. 35.

4 The first name of Mr. Qui was not specified in the records.

5 One of the transfers was made to a certain Mr. Sy Cho Song; rollo, p. 32; records, p. 170.

6 Petitioner’s Petition, rollo, p. 12.

7 Id., p. 13; CA Decision, rollo, p. 27.

8 Penned by Judge Mario Guariña III.

9 Rollo, p. 14.
 10 Pleyto v. Lomboy, G.R. No. 148737, 16 June 2004, 432 SCRA 329, 336, citations omitted.

11 Trial Court Decision, Records, p. 170; rollo, p. 32. The entries state:

Date Check Particular Approved by Amount

5-1 DM* Transfer E. Qui ₱50,000
C/A 125-63
5-13 DM transfer E. Qui 50,000
5-19 DM transfer 50,000

* Debit memo

12 CA Decision, rollo, p. 34.

13 Trial Court Decision, records, p. 170. The trial court stated:

xxx Asked whether the defendant had consented to the transfer of the funds, he said:

"[I]t was the manager to whom (sic) Eric Gan ha[d] talked …"

(tsn, July 21, 1992, at 12). xxx

14 TSN, p. 12.

15Canque v. Court of Appeals, 365 Phil. 124, 131 (1999), citing Regalado, Remedial Law Compendium, Vol. II, p.
616, 1995.

16 Id.

17 Records, pp. 170-171.

18 Rollo, p. 33; records, p. 171.

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 2) Aznar vs Citybank

Today is Thursday, September 27, 2018

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 164273 March 28, 2007

EMMANUEL B. AZNAR, Petitioner,

vs.
CITIBANK, N.A., (Philippines), Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review assailing the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 62554 dated
January 30, 2004 which set aside the November 25, 1998 Order of the Regional Trial Court (RTC) Branch 10, Cebu City and
reinstated the Decision of RTC Branch 20 of Cebu City dated May 29, 1998 in Civil Case No. CEB-16474; and the CA Resolution
dated May 26, 2004 denying petitioner’s motion for reconsideration.

The facts are as follows:

Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu, is a holder of a Preferred Master Credit Card (Mastercard) bearing
number 5423-3920-0786-7012 issued by Citibank with a credit limit of ₱150,000.00. As he and his wife, Zoraida, planned to take
their two grandchildren, Melissa and Richard Beane, on an Asian tour, Aznar made a total advance deposit of ₱485,000.00 with
Citibank with the intention of increasing his credit limit to ₱635,000.00.3

With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his group worth ₱237,000.00. On July 17,
1994, Aznar, his wife and grandchildren left Cebu for the said destination.4

Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same
was not honored.5 And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to
purchase plane tickets to Bali, it was again dishonored for the reason that his card was blacklisted by Citibank. Such dishonor
forced him to buy the tickets in cash.6 He further claims that his humiliation caused by the denial of his card was aggravated
when Ingtan Agency spoke of swindlers trying to use blacklisted cards.7 Aznar and his group returned to the Philippines on
August 10, 1994.8
On August 26, 1994, Aznar filed a complaint for damages against Citibank, docketed as Civil Case No. CEB-16474 and raffled to
RTC Branch 20, Cebu City, claiming that Citibank fraudulently or with gross negligence blacklisted his Mastercard which forced
him, his wife and grandchildren to abort important tour destinations and prevented them from buying certain items in their
tour.9 He further claimed that he suffered mental anguish, serious anxiety, wounded feelings, besmirched reputation and social
humiliation due to the wrongful blacklisting of his card.10 To prove that Citibank blacklisted his Mastercard, Aznar presented a
computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by
Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi (Nubi)11 which shows that his card in question was
"DECL OVERLIMIT" or declared over the limit.12

Citibank denied the allegation that it blacklisted Aznar’s card. It also contended that under the terms and conditions governing the
issuance and use of its credit cards, Citibank is exempt from any liability for the dishonor of its cards by any merchant affiliate,
and that its liability for any action or incident which may be brought against it in relation to the issuance and use of its credit cards
is limited to ₱1,000.00 or the actual damage proven whichever is lesser.13

To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card Department Head, Dennis Flores, presented Warning
Cancellation Bulletins which contained the list of its canceled cards covering the period of Aznar’s trip.14

On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J. Marcos, rendered its decision dismissing Aznar’s
complaint for lack of merit.15 The trial court held that as between the computer print-out16 presented by Aznar and the Warning
Cancellation Bulletins17 presented by Citibank, the latter had more weight as their due execution and authenticity were duly
established by Citibank.18 The trial court also held that even if it was shown that Aznar’s credit card was dishonored by a
merchant establishment, Citibank was not shown to have acted with malice or bad faith when the same was dishonored.19

Aznar filed a motion for reconsideration with motion to re-raffle the case saying that Judge Marcos could not be impartial as he
himself is a holder of a Citibank credit card.20 The case was re-raffled21 and on November 25, 1998, the RTC, this time through
Judge Jesus S. De la Peña of Branch 10 of Cebu City, issued an Order granting Aznar’s motion for reconsideration, as follows:

WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The DECISION dated May 29, 1998 is hereby
reconsidered, and consequently, the defendant is hereby condemned liable to pay the following sums of money:

a) ₱10,000,000.00 as moral damages;

b) ₱5,000,000.00 as exemplary damages;

c) ₱1,000,000.00 as attorney’s fees; and

d) ₱200,000.00 as litigation expenses.22

Judge De la Peña ruled that: it is improbable that a man of Aznar’s stature would fabricate Exh. "G" or the computer print-out
which shows that Aznar’s Mastercard was dishonored for the reason that it was declared over the limit; Exh. "G" was printed out
by Nubi in the ordinary or regular course of business in the modern credit card industry and Nubi was not able to testify as she
was in a foreign country and cannot be reached by subpoena; taking judicial notice of the practice of automated teller machines
(ATMs) and credit card facilities which readily print out bank account status, Exh. "G" can be received as prima facie evidence of
the dishonor of Aznar’s Mastercard; no rebutting evidence was presented by Citibank to prove that Aznar’s Mastercard was not
dishonored, as all it proved was that said credit card was not included in the blacklisted cards; when Citibank accepted the
additional deposit of ₱485,000.00 from Aznar, there was an implied novation and Citibank was obligated to increase Aznar’s
credit limit and ensure that Aznar will not encounter any embarrassing situation with the use of his Mastercard; Citibank’s failure
to comply with its obligation constitutes gross negligence as it caused Aznar inconvenience, mental anguish and social
humiliation; the fine prints in the flyer of the credit card limiting the liability of the bank to ₱1,000.00 or the actual damage proven,
whichever is lower, is a contract of adhesion which must be interpreted against Citibank.23
Citibank filed an appeal with the CA and its counsel filed an administrative case against Judge De la Peña for grave misconduct,
gross ignorance of the law and incompetence, claiming among others that said judge rendered his decision without having read
the transcripts. The administrative case was held in abeyance pending the outcome of the appeal filed by Citibank with the CA.24 lawphi1.net

On January 30, 2004, the CA rendered its Decision granting Citibank’s appeal thus:

WHEREFORE, the instant appeal is GRANTED. The assailed order of the Regional Trial Court, 7th Judicial Region, Branch 10,
Cebu City, in Civil Case No. CEB-16474, is hereby SET ASIDE and the decision, dated 29 May 1998 of the Regional Trial Court,
7th Judicial Region, Branch 20, Cebu City in this case is REINSTATED.

SO ORDERED.25

The CA ruled that: Aznar had no personal knowledge of the blacklisting of his card and only presumed the same when it was
dishonored in certain establishments; such dishonor is not sufficient to prove that his card was blacklisted by Citibank; Exh. "G" is
an electronic document which must be authenticated pursuant to Section 2, Rule 5 of the Rules on Electronic Evidence26 or
under Section 20 of Rule 132 of the Rules of Court27 by anyone who saw the document executed or written; Aznar, however,
failed to prove the authenticity of Exh. "G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was
dishonored by Ingtan Agency and certain establishments abroad is not sufficient to justify the award of damages in his favor,
absent any showing that Citibank had anything to do with the said dishonor; Citibank had no absolute control over the actions of
its merchant affiliates, thus it should not be held liable for the dishonor of Aznar’s credit card by said establishments.28

Aznar filed a motion for reconsideration which the CA dismissed in its Resolution dated May 26, 2004.29

Parenthetically, the administrative case against Judge De la Peña was activated and on April 29, 2005, the Court’s Third
Division30 found respondent judge guilty of knowingly rendering an unjust judgment and ordered his suspension for six months.
The Court held that Judge De la Peña erred in basing his Order on a manifestation submitted by Aznar to support his Motion for
Reconsideration, when no copy of such manifestation was served on the adverse party and it was filed beyond office hours. The
Court also noted that Judge De la Peña made an egregiously large award of damages in favor of Aznar which opened himself to
suspicion.31

Aznar now comes before this Court on a petition for review alleging that: the CA erroneously made its own factual finding that his
Mastercard was not blacklisted when the matter of blacklisting was already a non-issue in the November 25, 1998 Order of the
RTC; the RTC found that Aznar’s Mastercard was dishonored for the reason that it was declared over the credit limit; this factual
finding is supported by Exh. "G" and by his (Aznar’s) testimony; the issue of dishonor on the ground of ‘DECL OVERLIMIT’,
although not alleged in the complaint, was tried with the implied consent of the parties and should be treated as if raised in the
pleadings pursuant to Section 5, Rule 10 of the Rules of Civil Procedure;32 Exh. "G" cannot be excluded as it qualifies as an
electronic evidence following the Rules on Electronic Evidence which provides that print-outs are also originals for purposes of
the Best Evidence Rule; Exh. "G" has remained complete and unaltered, apart from the signature of Nubi, thus the same is
reliable for the purpose for which it was generated; the RTC judge correctly credited the testimony of Aznar on the issuance of
the computer print-out as Aznar saw that it was signed by Nubi; said testimony constitutes the "other evidence showing the
integrity and reliability of the print-out to the satisfaction of the judge" which is required under the Rules on Electronic Evidence;
the trial court was also correct in finding that Citibank was grossly negligent in failing to credit the additional deposit and make the
necessary entries in its systems to prevent Aznar from encountering any embarrassing situation with the use of his Mastercard.33

Citibank, in its Comment, contends that: Aznar never had personal knowledge that his credit card was blacklisted as he only
presumed such fact; the issue of dishonor on the ground that the card was declared over the limit was also never tried with the
implied consent of both parties; Aznar’s self-serving testimony is not sufficient to prove the integrity and reliability of Exh. "G";
Aznar did not declare that it was Nubi who printed the document and that said document was printed in his presence as he
merely said that the print-out was provided him; there is also no annotation on Exh. "G" to establish that it was Nubi who printed
the same; assuming further that Exh. "G" is admissible and Aznar’s credit card was dishonored, Citibank still cannot be held
liable for damages as it only shows that Aznar’s credit card was dishonored for having been declared over the limit; Aznar’s
cause of action against Citibank hinged on the alleged blacklisting of his card which purportedly caused its dishonor; dishonor
alone, however, is not sufficient to award Aznar damages as he must prove that the dishonor was caused by a grossly negligent
act of Citibank; the award of damages in favor of Aznar was based on Article 117034 of the Civil Code, i.e., there was fraud,
negligence or delay in the performance of its obligation; there was no proof, however that Citibank committed fraud or delay or
that it contravened its obligations towards Aznar; the terms and conditions of the credit card cannot be considered as a contract
of adhesion since Aznar was entirely free to reject the card if he did not want the conditions stipulated therein; a person whose
stature is such that he is expected to be more prudent with respect to his transactions cannot later on be heard to complain for
being ignorant or having been forced into merely consenting to the contract.35

In his Reply, Aznar contended that to a layman, the term "blacklisting" is synonymous with the words "hot list" or "declared
overlimit"; and whether his card was blacklisted or declared over the limit, the same was dishonored due to the fault or gross
negligence of Citibank.36

Aznar also filed a Memorandum raising as issues the following:

I. Whether or not the augmentation deposit in the amount of ₱485,000.00 of the Petitioner constitutes relative
extinctive novation;

II. Whether or not the purchases made by Petitioner were beyond his credit limit;

III. Whether or not the issues of dishonor by reason of overlimit was tried with the consent of the parties;

IV. Whether or not the "On Line Authorization Report" is an electronic document."

V. Whether or not the "On Line Authorization Report" constitutes electronic evidence;

VI. Whether or not the agreement between the parties is a contract of adhesion;

VII. Whether or not the Respondent is negligent in not crediting the deposits of the Respondent.37

Aznar further averred in his Memorandum that Citibank assured him that with the use of his Mastercard, he would never be
turned down by any merchant store, and that under Section 43, Rule 130 of the Rules of Court, Exh. "G" is admissible in
evidence.38

Citibank also filed a Memorandum reiterating its earlier arguments.39

Stripped to its essentials, the only question that needs to be answered is: whether Aznar has established his claim against
Citibank.

The answer is no.

It is basic that in civil cases, the burden of proof rests on the plaintiff to establish his case based on a preponderance of evidence.
The party that alleges a fact also has the burden of proving it.40

In the complaint Aznar filed before the RTC, he claimed that Citibank blacklisted his Mastercard which caused its dishonor in
several establishments in Malaysia, Singapore, and Indonesia, particularly in Ingtan Agency in Indonesia where he was
humiliated when its staff insinuated that he could be a swindler trying to use a blacklisted card.

As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed to prove with a preponderance of evidence that Citibank
blacklisted his Mastercard or placed the same on the "hot list."41
Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only
presumed such fact from the dishonor of his card.

Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic".

Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic?

A. Okey. When I presented this Mastercard, my card rather, at the Merchant’s store, I do not know, they called up somebody for
verification then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know whom
they called up; where they verified. So, when it is denied that’s presumed to be blacklisted.

Q. So the word that was used was denied?

A. Denied.

Q. And after you were told that your card was denied you presumed that it was blacklisted?

A. Definitely.

Q. So your statement that your card was allegedly blacklisted is only your presumption drawn from the fact, from your
allegations, that it was denied at the merchandise store?

A. Yes, sir.42 (Emphasis supplied)

The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank,
especially in view of Aznar’s own admission that in other merchant establishments in Kuala Lumpur and Singapore, his
Mastercard was accepted and honored.43

Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out
handed to Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was dishonored for being blacklisted. On
said print-out appears the words "DECL OVERLIMIT" opposite Account No. 5423-3920-0786-7012.

As correctly pointed out by the RTC and the CA, however, such exhibit cannot be considered admissible as its authenticity and
due execution were not sufficiently established by petitioner.

The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules of Court. It
provides that whenever any private document offered as authentic is received in evidence, its due execution and authenticity
must be proved either by (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the
signature or handwriting of the maker.

Aznar, who testified on the authenticity of Exh. "G," did not actually see the document executed or written, neither was he able to
provide evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said computer print-out. Indeed,
all he was able to allege in his testimony are the following:

Q I show to you a Computer Print Out captioned as On Line Authorization Activity Report where it is shown that the Preferred
Master Card Number 5423392007867012 was denied as per notation on the margin of this Computer Print Out, is this the
document evidencing the dishonor of your Preferred Master Card?

xxxx
A Yes sir, after that Ingtan incident, I went straight to the Service Agency there and on the left hand side you will be able to see
the name of the person in-charged [sic] there certifying that really my card is being blacklisted and there is the signature there of
the agency.

ATTY. NAVARRO:

The witness, your honor, is pointing to the signature over the handwritten name of Victrina Elnado Nubi which I pray, your honor,
that the Computer Print Out be marked as our Exhibit "G" and the remarks at the left hand bottom portion of Victorina Elnado
Nubi with her signature thereon be encircled and be marked as our Exhibit "G-1".

xxxx

Q Mr. Aznar, where did you secure this Computer Print Out marked as Exhibit "G"?

A This is provided by that Agency, your honor. They were the ones who provided me with this. So what the lady did, she
gave me the Statement and I requested her to sign to show proof that my Preferred Master Card has been
rejected.44 (Emphasis supplied).

Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is being invoked by
Aznar in this case, the authentication of Exh. "G" would still be found wanting.

Pertinent sections of Rule 5 read:

Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in any legal proceeding has
the burden of proving its authenticity in the manner provided in this Rule.

Section 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its
authenticity must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the person purported to have signed the same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme
Court or by law for authentication of electronic documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of
Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznar’s testimony that the person from Ingtan Agency
merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as
sufficient to show said print-out’s integrity and reliability. As correctly pointed out by Judge Marcos in his May 29, 1998 Decision,
Exh. "G" does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able
to secure the print-out from the agency; Aznar also failed to show the specific business address of the source of the computer
print-out because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print-
out.45

Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information
could be relied upon as true. In fact, Aznar to repeat, testified as follows:

ATTY. NERI

Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic"
Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic?

A Okey. When I presented this Mastercard, my card rather, at the Merchant’s store, I do not know, they called up somebody for
verification then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know
whom they called up; where they verified. So, when it is denied that’s presumed to be blacklisted.46 (Emphasis supplied)

Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to entries in the course of business, to support
Exh. "G". Said provision reads:

Sec. 43. Entries in the course of business. – Entries made at, or near the time of the transactions to which they refer, by a person
deceased or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of
business or duty.

Under this rule, however, the following conditions are required:

1. the person who made the entry must be dead, or unable to testify;

2. the entries were made at or near the time of the transactions to which they refer;

3. the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual,
moral or religious; and

5. the entries were made in the ordinary or regular course of business or duty.47

As correctly pointed out by the RTC in its May 29, 1998 Decision, there appears on the computer print-out the name of a certain
"Victrina Elnado Nubi" and a signature purportedly belonging to her, and at the left dorsal side were handwritten the words "Sorry
for the delay since the records had to be retrieved. Regards. Darryl Mario." It is not clear therefore if it was Nubi who encoded the
information stated in the print-out and was the one who printed the same. The handwritten annotation signed by a certain Darryl
Mario even suggests that it was Mario who printed the same and only handed the print-out to Nubi. The identity of the entrant,
required by the provision above mentioned, was therefore not established. Neither did petitioner establish in what professional
capacity did Mario or Nubi make the entries, or whether the entries were made in the performance of their duty in the ordinary or
regular course of business or duty.

And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit card of petitioner was denied because it was
already over the limit. There is no allegation in the Complaint or evidence to show that there was gross negligence on the part of
Citibank in declaring that the credit card has been used over the limit.

The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10" opposite petitioner's account number, which
data, petitioner did not clarify.48 As plaintiff in this case, it was incumbent on him to prove that he did not actually incur the said
amount which is above his credit limit. As it is, the Court cannot see how Exh. "G" could help petitioner's claim for damages.

The claim of petitioner that Citibank blacklisted his card through fraud or gross negligence is likewise effectively negated by the
evidence of Citibank which was correctly upheld by the RTC and the CA, to wit:

xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant Bank, presented documents known as Warning
Cancellation Bulletin for July 10, 17, 24, and 31, 1994 (Exhibits ‘3’, ‘3-1’ to ‘3-38’, ‘4’, ‘4-1’ to ‘4-38’ ‘5’, ‘5-1’ to ‘5-39’ and ‘6’, ‘6-1’
to ‘6-39’), for August 7, 1994 (Exhibit[s] ‘7’, ‘7-1’ to ‘7-37’), for August 8, 1994 (Exhibit[s] ‘8’, ‘8-1’ to ‘8-20’) which show that
plaintiff’s Citibank preferred mastercard was not placed in a hot list or was not blacklisted.
The Warning Cancellation Bulletins (WCB) (Exhibits ‘3’, ‘4’, ‘5’, ‘6’, ‘7’, ‘8’ and their submarkings) which covered the period of four
(4) days in July 1994 (from July 10, 17, 24 and 31, 1994), and two (2) days in August 1994, (August 7 and 8, 1994), when plaintiff
traveled in the aforementioned Asian countries showed that said Citibank preferred mastercard had never been placed in a ‘hot
list’ or the same was blacklisted, let alone the fact that all the credit cards which had been cancelled by the defendant bank were
all contained, reported and listed in said Warning Cancellation Bulletin which were issued and released on a regular basis.

These three hundred (300) Warning Cancellation Bulletins pieces of documentary proofs, all in all, adduced by defendant pointed
to the fact that said plaintiff’s credit car (sic) was not among those found in said bulletins as having been cancelled for the period
for which the said bulletins had been issued.

Between said computer print out (Exhibit ‘G’) and the Warning Cancellation Bulletins (Exhibits ‘3’ to ‘8’ and their submarkings) the
latter documents adduced by defendant are entitled to greater weight than that said computer print out presented by plaintiff that
bears on the issue of whether the plaintiff’s preferred master card was actually placed in the ‘hot list’ or blacklisted for the
following reasons:

The first reason is that the due execution and authentication of these Warning Cancellation Bulletins (or WCB) have been duly
established and identified by defendant’s own witness, Dennis Flores, one of the bank’s officers, who is the head of its credit card
department, and, therefore, competent to testify on the said bulletins as having been issued by the defendant bank showing that
plaintiff’s preferred master credit card was never blacklisted or placed in the Bank’s ‘hot list’. But on the other hand, plaintiff’s
computer print out (Exhibit ‘G’) was never authenticated or its due execution had never been duly established. Thus, between a
set of duly authenticated commercial documents, the Warning Cancellation Bulletins (Exhibits ‘3’ to ‘8’ and their submarkings),
presented by defendants (sic) and an unauthenticated private document, plaintiff’s computer print out (Exhibit ‘G’), the former
deserves greater evidentiary weight supporting the findings of this Court that plaintiff’s preferred master card (Exhibit ‘1’) had
never been blacklisted at all or placed in a so-called ‘hot list’ by defendant.49

Petitioner next argues that with the additional deposit he made in his account which was accepted by Citibank, there was an
implied novation and Citibank was under the obligation to increase his credit limit and make the necessary entries in its
computerized systems in order that petitioner may not encounter any embarrassing situation with the use of his credit card.
Again, the Court finds that petitioner's argument on this point has no leg to stand on.

Citibank never denied that it received petitioner’s additional deposit.50 It even claimed that petitioner was able to purchase plane
tickets from Cebu to Kuala Lumpur in the amount of ₱237,170.00, which amount was beyond his ₱150,000.00 limit, because it
was able to credit petitioner’s additional deposit to his account. Flores of Citibank testified:

COURT:

Q When was this ticket purchased, after the account was augmented

or before?

A After the account was augmented, Your Honor, because there is no way we can approve a P250,000.00 purchase with a
P150,000.00 credit limit.51

xxx

ATTY. NERI:

For the record, your honor, the deposit of P450,000.00 was made as per exhibit of the plaintiff on June 28. The purchase
of the tickets amount to P237,000.00 was approved and debited on the account of Mr. Aznar on July 20, your honor. The
deposit was made about a month before the purchase of the tickets as per documentary exhibits, your honor.
COURT:

So, Atty. Navarro, what do you say to that explanation?

ATTY. NAVARRO [counsel of petitioner]:

That is correct, your honor, that is borne out by the records, your honor. (Emphasis supplied)

COURT: (to witness)

Q So, I think Atty. Navarro is only after whether a credit line could be extended?

A Yes, your honor.

Q Even if there is no augmenting?

A No, sir, it is not possible. So, the only way the ₱237,000.00 transaction could be approved was by way of advance
payment which actually happened in this case because there is no way that the ₱237,000.00 can be approved with the
₱150,000.00 credit limit.52 (Emphasis supplied)

The allegations of blacklisting not having been proved, is Citibank liable for damages for the dishonor of Aznar’s Mastercard?

Again, the answer is no.

Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the terms and conditions governing the issuance of its
Mastercard which read:

7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not honored by any merchant affiliate for any
reason. Furthermore, [the cardholder] will not hold [Citibank] responsible for any defective product or service purchased through
the Card.

xxxx

15. LIMITATION OF LIABILITY. In any action arising from this agreement or any incident thereto which [the cardholder] or any
other party may file against [Citibank], [Citibank’s] liability shall not exceed One Thousand Pesos [₱1,000.00] or the actual
damages proven, whichever is lesser.53

On this point, the Court agrees with Aznar that the terms and conditions of Citibank’s Mastercard constitute a contract of
adhesion. It is settled that contracts between cardholders and the credit card companies are contracts of adhesion, so-called,
because their terms are prepared by only one party while the other merely affixes his signature signifying his adhesion thereto.54

In this case, paragraph 7 of the terms and conditions states that "[Citibank is] not responsible if the Card is not honored by any
merchant affiliate for any reason x x x". While it is true that Citibank may have no control of all the actions of its merchant
affiliates, and should not be held liable therefor, it is incorrect, however, to give it blanket freedom from liability if its card is
dishonored by any merchant affiliate for any reason. Such phrase renders the statement vague and as the said terms and
conditions constitute a contract of adhesion, any ambiguity in its provisions must be construed against the party who prepared
the contract,55 in this case Citibank.

Citibank also invokes paragraph 15 of its terms and conditions which limits its liability to ₱1,000.00 or the actual damage proven,
whichever is lesser.
Again, such stipulation cannot be considered as valid for being unconscionable as it precludes payment of a larger amount even
though damage may be clearly proven. This Court is not precluded from ruling out blind adherence to the terms of a contract if
the attendant facts and circumstances show that they should be ignored for being obviously too one-sided.56

The invalidity of the terms and conditions being invoked by Citibank, notwithstanding, the Court still cannot award damages in
favor of petitioner.

It is settled that in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such
injuries resulted from a breach of duty which the defendant owed to the plaintiff – a concurrence of injury to the plaintiff and legal
responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was
injured in contemplation of law; thus there must first be a breach before damages may be awarded and the breach of such duty
should be the proximate cause of the injury.57

It is not enough that one merely suffered sleepless nights, mental anguish or serious anxiety as a result of the actuations of the
other party. It is also required that a culpable act or omission was factually established, that proof that the wrongful act or
omission of the defendant is shown as the proximate cause of the damage sustained by the claimant and that the case is
predicated on any of the instances expressed or envisioned by Arts. 221958 and 222059 of the Civil Code.60

In culpa contractual or breach of contract, moral damages are recoverable only if the defendant has acted fraudulently or in bad
faith, or is found guilty of gross negligence amounting to bad faith, or in wanton disregard of his contractual obligations. The
breach must be wanton, reckless, malicious or in bad faith, oppressive or abusive.61

While the Court commiserates with Aznar for whatever undue embarrassment he suffered when his credit card was dishonored
by Ingtan Agency, especially when the agency’s personnel insinuated that he could be a swindler trying to use blacklisted cards,
the Court cannot grant his present petition as he failed to show by preponderance of evidence that Citibank breached any
obligation that would make it answerable for said suffering.

As the Court pronounced in BPI Express Card Corporation v. Court of Appeals,62

We do not dispute the findings of the lower court that private respondent suffered damages as a result of the cancellation of his
credit card. However, there is a material distinction between damages and injury. Injury is the illegal invasion of a legal right;
damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for
the damage suffered. Thus, there can be damage without injury to those instances in which the loss or harm was not the result of
a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone, the law affords no
remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often
called damnum absque injuria.63

WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ROMEO J. CALLEJO, SR. MINITA V. CHICO-NAZARIO

 Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of
the Court’s Division.

REYNATO S. PUNO
Chief Justice

Foonotes

1Penned by Associate Justice Perlita J. Tria Tirona and concurred in by Associate Justices Portia Aliño-
Hormachuelos and Rosalinda Asuncion-Vicente; rollo, pp. 51-76.

2President and Chairman of the Board of E.B. Aznar Shipping Corp., E.B. Aznar Mining Corp., and E.B. Aznar
Guardian Security and Detective Agency; Director and stockholder of Aznar Enterprises Inc.; and Director of
Aznar Brothers Realty Corp. and Southwestern University, TSN, Emmanuel Aznar, February 22, 1995, pp. 5-6.

3 Rollo, p. 52 (CA Decision); Records p. 293 (RTC Decision).

4 Id.

5 Records, p. 293 (RTC Decision); TSN, Emmanuel Aznar, February 22, 1995, pp. 11-12.

6 Id. at 293 (RTC Decision); Records, p. 3 (Complaint); TSN, Emmanuel Aznar, February 22, 1995, p. 15.

7 Id. at 3 (Complaint).

8 Rollo, p. 53 (CA Decision).

9 Records, p. 4.

10 Id.
11 Spelled as "Rubi" in other parts of the records.

12 Id. at 153, 295.

13 Id. at 20-21.

14 Id. at 293.

15 Id. at 298.

16 Exh. "G".

17Exhs. "3", "3-1" to "3-38", "4", "4-1" to "4-38", "5", "5-1" to "5-39", "6", "6-1" to "6-39", "7", "7-1" to "7-37", "8", "8-
1" to "8-20".

18 Records, p. 297.

19 Id. at 298.

20 Id. at 299-302.

21 Id. at 304.

22 Id. at 332.

23 Id. at 328-331.

24 See Neri v. De la Peña, A.M. No. RTJ-05-1896, April 29, 2005, 457 SCRA 539, 544.

25 Rollo, p. 76.

26Section 2. Manner of authentication. - Before any private electronic document offered as authentic is received
in evidence, its authenticity must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the person purported to have signed the same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by the
Supreme Court or by law for authentication of electronic documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

27 Sec. 20. Proof of private document. - Before any private document offered as authentic is received in evidence,
its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.
28 Rollo, pp. 68-76, (CA Decision, pp. 18-26).

29 Id. at 92.

Penned by Associate Justice Renato C. Corona and concurred in by Associate Justices Artemio V.
30

Panganiban, Angelina Sandoval-Gutierrez, Conchita Carpio-Morales and Cancio C. Garcia.

31 Neri v. De la Peña, supra note 24, at 547- 548.

32Sec. 5. xxx When issues not raised by the pleadings are tried with the express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of
these issues. xxx

33 Rollo, pp. 17-24.

Art. 1170. Those who in the performance of their obligation are guilty of fraud, negligence, or delay and those
34

who in any manner contravene the tenor thereof, are liable for damages.

35 Rollo, pp. 104-118.

36 Id. at 137-142.

37 Id. at 164-165.

38
Id. at 165-171.

39 Id. at 190-224.

40 Citibank N.A. Mastercard v. Teodoro, 458 Phil. 480, 488 (2003).

41 See records, p. 297 (RTC Decision, p. 9).

42 TSN, March 22, 1995, p. 13.

43 Id. at 8; TSN, May 9, 1995, pp. 3-4.

44 TSN, February 22, 1995, pp. 15-17.

45 Records, p. 295.

46 TSN, March 22, 1995, p. 13.

47 Security Bank and Trust Company v. Gan, G.R. No. 150464, June 27, 2006, 493 SCRA 239, 244-245.

48 Records, p. 153.

49 CA rollo, pp. 150-151 (CA Decision, pp. 10-11).

50 TSN, Dennis Flores, September 18, 1995, p. 10.

51 Id. at 12.

52 TSN, Dennis Flores, October 9, 1995, pp. 5-6.

53 Records, p. 26, Annex "A."

54 BPI Express Card Corp. v. Olalia, 423 Phil. 593, 599 (2001).

55 Polotan, Sr. v. Court of Appeals, 357 Phil. 250, 258 (1998).

56 Id. at 259.

57 BPI Express Card Corporation v. Court of Appeals, 357 Phil. 262, 276 (1998).

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

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

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

xxx

59Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find
that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where
the defendant acted fraudulently or in bad faith.

60 Equitable Banking Corp. v. Calderon, G.R. No. 156168, December 14, 2004, 446 SCRA 271, 276.

61 Id. at 277.

62 Supra note 57.

 63 Id. at 275-276.

The Lawphil Project - Arellano Law Foundation

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AUSL Exclusive
Sec 44. Entries in Official Records

1) BArcelon vs CIR

Barcelon, Roxas Securities Inc.

filed its Annual Income Tax Return for taxable year 1987
After an audit investigation conducted by the Bureau of
Internal Revenue (BIR), respondent Commissioner of Internal Revenue (CIR) issued an
assessment for deficiency income tax... assessment... was sent to petitioner... through
registered mail... petitioner denies receiving the formal assessment notice... petitioner
denies receiving the assessment notice, and the respondent was unable to present
substantial evidence that such notice was, indeed, mailed or sent by the respondent before
the BIR's right to assess had prescribed and that said notice was received... by the
petitioner. The respondent presented the BIR record book where the name of the taxpayer,
the kind of tax assessed, the registry receipt number and the date of mailing were noted.
The BIR records custodian, Ingrid Versola, also testified that she made the entries therein.
Respondent offered the entry in the BIR record book and the testimony of its record
custodian as entries in official records in accordance with Section 44, Rule 130 of the Rules
of Court
Issues:
Respondent offered the entry in the BIR record book and the testimony of its record
custodian as entries in official records in accordance with Section 44, Rule 130 of the Rules
of Court
Section 44. Entries in official records. - Entries in official records made in the performance
of his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of... the facts therein stated.
Ruling:
The foregoing rule on evidence, however, must be read in accordance with this Court's
pronouncement in Africa v. Caltex (Phil.), Inc... where it has been held that an entrant must
have personal knowledge of the facts stated by him or such... facts were acquired by him
from reports made by persons under a legal duty to submit the same.
In this case, the entries made by Ingrid Versola were not based on her personal knowledge
as she did not attest to the fact that she personally prepared and mailed the assessment
notice. Nor was it stated in the transcript of stenographic notes[26] how and... from whom
she obtained the pertinent information. Moreover, she did not attest to the fact that she
acquired the reports from persons under a legal duty to submit the same. Hence, Rule 130,
Section 44 finds no application in the present case. Thus, the evidence offered by...
respondent does not qualify as an exception to the rule against hearsay evidence
Principles:
Africa v. Caltex (Phil.), Inc.,[25] where it has been held that an entrant must have personal
knowledge of the facts stated by him or such... facts were acquired by him from reports
made by persons under a legal duty to submit the same.
There are three requisites for admissibility under the rule just mentioned: (a) that the entry
was made by a public officer, or by another person specially enjoined by law to do so; (b)
that it was made by the public officer in the performance of his duties, or by... such other
person in the performance of a duty specially enjoined by law; and (c) that the public officer
or other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information

FIRST DIVISION

BARCELON, ROXAS SECURITIES, G. R. No. 157064

INC. (now known as UBP
Securities, Inc.)
Present:
Petitioner,

PANGANIBAN, C.J.,
Chairman,
YNARES-SANTIAGO

AUSTRIA-MARTINEZ,
- versus -
CALLEJO, SR., and

CHICO-NAZARIO, JJ.

Promulgated:
COMMISSIONER OF INTERNAL
REVENUE,

Respondent. August 7, 2006

x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court,
seeking to set aside the Decision of the Court of Appeals in CA-G.R. SP No. 60209
dated 11 July 2002,[1] ordering the petitioner to pay the Government the amount
of P826,698.31 as deficiency income tax for the year 1987 plus 25% surcharge and
20% interest per annum. The Court of Appeals, in its assailed Decision, reversed
the Decision of the Court of Tax Appeals (CTA) dated 17 May 2000[2] in C.T.A. Case
No. 5662.

Petitioner Barcelon, Roxas Securities Inc. (now known as UBP Securities, Inc.) is a
corporation engaged in the trading of securities. On 14 April 1988, petitioner filed
its Annual Income Tax Return for taxable year 1987. After an audit investigation
conducted by the Bureau of Internal Revenue (BIR), respondent Commissioner of
Internal Revenue (CIR) issued an assessment for deficiency income tax in the
amount of P826,698.31 arising from the disallowance of the item on salaries,
bonuses and allowances in the amount of P1,219,093,93 as part of the deductible
business expense since petitioner failed to subject the salaries, bonuses and
allowances to withholding taxes. This assessment was covered by Formal
Assessment Notice No. FAN-1-87-91-000649 dated 1 February 1991, which,
respondent alleges, was sent to petitioner through registered mail on 6 February
1991. However, petitioner denies receiving the formal assessment notice.[3]

On 17 March 1992, petitioner was served with a Warrant of Distraint and/or Levy
to enforce collection of the deficiency income tax for the year 1987. Petitioner
filed a formal protest, dated 25 March 1992, against the Warrant
of Distraint and/or Levy, requesting for its cancellation. On 3 July 1998, petitioner
received a letter dated 30 April 1998 from the respondent denying the protest
with finality.[4]

On 31 July 1998, petitioner filed a petition for review with the CTA. After
due notice and hearing, the CTA rendered a decision in favor of petitioner
on 17 May 2000. The CTA ruled on the primary issue of prescription and found
it unnecessary to decide the issues on the validity and propriety of the
assessment. It maintained that while a mailed letter is deemed received by the
addressee in the course of mail, this is merely a disputable presumption. It
reasoned that the direct denial of the petitioner shifts the burden of proof to
the respondent that the mailed letter was actually received by the
petitioner. The CTA found the BIR records submitted by the respondent
immaterial, self-serving, and therefore insufficient to prove that the
assessment notice was mailed and duly received by the petitioner.[5] The
dispositive portion of this decision reads:
 WHEREFORE, in view of the foregoing, the 1988 deficiency tax
assessment against petitioner is hereby CANCELLED. Respondent is hereby
ORDERED TO DESIST from collecting said deficiency tax. No pronouncement
as to costs.[6]

On 6 June 2000, respondent moved for reconsideration of the aforesaid

decision but was denied by the CTA in a Resolution dated 25 July
2000. Thereafter, respondent appealed to the Court of Appeals on 31 August
2001. In reversing the CTA decision, the Court of Appeals found the evidence
presented by the respondent to be sufficient proof that the tax assessment
notice was mailed to the petitioner, therefore the legal presumption that it
was received should apply.[7] Thus, the Court of Appeals ruled that:

WHEREFORE, the petition is hereby GRANTED. The decision

dated May 17, 2000 as well as the Resolution dated July 25, 2000 are
hereby REVERSED and SET ASIDE, and a new on entered ordering the
respondent to pay the amount of P826,698.31 as deficiency income tax for
the year 1987 plus 25% surcharge and 20% interest per annum from
February 6, 1991 until fully paid pursuant to Sections 248 and 249 of the
Tax Code.[8]

Petitioner moved for reconsideration of the said decision but the same
was denied by the Court of Appeals in its assailed Resolution dated 30 January
2003.[9]

Hence, this Petition for Review on Certiorari raising the following issues:

WHETHER OR NOT LEGAL BASES EXIST FOR THE COURT OF

APPEALS FINDING THAT THE COURT OF TAX APPEALS
COMMITTED GROSS ERROR IN THE APPREC IATION OF
FACTS.

II
 WHETHER OR NOT THE COURT OF APPEALS WAS CORRECT IN REVERSING THE SUBJECT
DECISION OF THE COURT OF TAX APPEALS.

III

WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL REVENUE TO ASSESS

PETITIONER FOR ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS PRESCRIBED.

IV

WHETHER OR NOT THE RIGHT OF THE BUREAU OF INTERNAL REVENUE TO COLLECT THE
SUBJECT ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS PRESCRIBED.

WHETHER OR NOT PETITIONER IS LIABLE FOR THE ALLEGED DEFICIENCY INCOME TAX
ASSESSMENT FOR 1987.

VI

WHETHER OR NOT THE SUBJECT ASSESSMENT IS VIOLATIVE OF THE RIGHT OF

PETITIONER TO DUE PROCESS.[10]

This Court finds the instant Petition meritorious.

The core issue in this case is whether or not respondents right to assess
petitioners alleged deficiency income tax is barred by prescription, the
 resolution of which depends on reviewing the findings of fact of the Court of
Appeals and the CTA.

While the general rule is that factual findings of the Court of Appeals are
binding on this Court, there are, however, recognized exceptions[11] thereto, such
as when the findings are contrary to those of the trial court or, in this case, the
CTA.[12]

In its Decision, the CTA resolved the issues raised by the parties thus:

Jurisprudence is replete with cases holding that if the taxpayer denies ever
having received an assessment from the BIR, it is incumbent upon the latter to prove by
competent evidence that such notice was indeed received by the addressee. The onus
probandi was shifted to respondent to prove by contrary evidence that the Petitioner
received the assessment in the due course of mail. The Supreme Court has consistently
held that while a mailed letter is deemed received by the addressee in the course of
mail, this is merely a disputable presumption subject to controversion and a direct
denial thereof shifts the burden to the party favored by the presumption to prove that
the mailed letter was indeed received by the addressee (Republic vs. Court of Appeals,
149 SCRA 351). Thus as held by the Supreme Court in Gonzalo P. Nava vs. Commissioner
of Internal Revenue, 13 SCRA 104, January 30, 1965:

The facts to be proved to raise this presumption are (a) that the
letter was properly addressed with postage prepaid, and (b) that it was
mailed. Once these facts are proved, the presumption is that the letter
was received by the addressee as soon as it could have been
transmitted to him in the ordinary course of the mail. But if one of the
said facts fails to appear, the presumption does not lie. (VI, Moran,
Comments on the Rules of Court, 1963 ed, 56-57 citing Enriquez
vs. Sunlife Assurance of Canada, 41 Phil 269).

In the instant case, Respondent utterly failed to discharge this duty. No

substantial evidence was ever presented to prove that the assessment notice No. FAN-
1-87-91-000649 or other supposed notices subsequent thereto were in fact issued or
sent to the taxpayer. As a matter of fact, it only submitted the BIR record book which
allegedly contains the list of taxpayers names, the reference number, the year, the
nature of tax, the city/municipality and the amount (see Exh. 5-a for the
Respondent). Purportedly, Respondent intended to show to this Court that all
assessments made are entered into a record book in chronological order outlining the
details of the assessment and the taxpayer liable thereon. However, as can be gleaned
from the face of the exhibit, all entries thereon appears to be immaterial and
impertinent in proving that the assessment notice was mailed and duly received by
Petitioner. Nothing indicates therein all essential facts that could sustain the burden of
proof being shifted to the Respondent. What is essential to prove the fact of mailing is
the registry receipt issued by the Bureau of Posts or the Registry return card which
would have been signed by the Petitioner or its authorized representative. And if said
documents cannot be located, Respondent at the very least, should have submitted to
the Court a certification issued by the Bureau of Posts and any other pertinent
document which is executed with the intervention of the Bureau of Posts. This Court
does not put much credence to the self serving documentations made by the BIR
personnel especially if they are unsupported by substantial evidence establishing the
fact of mailing. Thus:

While we have held that an assessment is made when sent

within the prescribed period, even if received by the taxpayer after its
expiration (Coll. of Int. Rev. vs. Bautista, L-12250 and L-12259, May 27,
1959), this ruling makes it the more imperative that the release, mailing
or sending of the notice be clearly and satisfactorily proved. Mere
notations made without the taxpayers intervention, notice or control,
without adequate supporting evidence cannot suffice; otherwise, the
taxpayer would be at the mercy of the revenue offices, without
adequate protection or defense. (Nava vs. CIR, 13 SCRA 104, January 30,
1965).

xxxx

The failure of the respondent to prove receipt of the assessment by the

Petitioner leads to the conclusion that no assessment was issued. Consequently, the
governments right to issue an assessment for the said period has already
prescribed. (Industrial Textile Manufacturing Co. of the Phils., Inc. vs. CIR CTA Case 4885,
August 22, 1996).[13]
 Jurisprudence has consistently shown that this Court accords the findings of
fact by the CTA with the highest respect. In Sea-Land Service Inc. v. Court of
Appeals[14] this Court recognizes that the Court of Tax Appeals, which by the very
nature of its function is dedicated exclusively to the consideration of tax
problems, has necessarily developed an expertise on the subject, and its
conclusions will not be overturned unless there has been an abuse or improvident
exercise of authority. Such findings can only be disturbed on appeal if they are not
supported by substantial evidence or there is a showing of gross error or abuse on
the part of the Tax Court.[15] In the absence of any clear and convincing proof to
the contrary, this Court must presume that the CTA rendered a decision which is
valid in every respect.

Under Section 203[16] of the National Internal Revenue Code (NIRC),

respondent had three (3) years from the last day for the filing of the return to
send an assessment notice to petitioner. In the case of Collector of Internal
Revenue v. Bautista,[17] this Court held that an assessment is made within the
prescriptive period if notice to this effect is released, mailed or sent by the CIR to
the taxpayer within said period. Receipt thereof by the taxpayer within the
prescriptive period is not necessary.At this point, it should be clarified that the
rule does not dispense with the requirement that the taxpayer should actually
receive, even beyond the prescriptive period, the assessment notice which was
timely released, mailed and sent.

In the present case, records show that petitioner filed its Annual Income
Tax Return for taxable year 1987 on 14 April 1988.[18] The last day for filing by
petitioner of its return was on 15 April 1988,[19] thus, giving respondent until 15
April 1991 within which to send an assessment notice. While respondent avers
that it sent the assessment notice dated 1 February 1991 on 6 February 1991,
within the three (3)-year period prescribed by law, petitioner denies having
received an assessment notice from respondent. Petitioner alleges that it came to
know of the deficiency tax assessment only on 17 March 1992 when it was served
with the Warrant of Distraint and Levy.[20]
 In Protectors Services, Inc. v. Court of Appeals,[21] this Court ruled that when
a mail matter is sent by registered mail, there exists a presumption, set forth
under Section 3(v), Rule 131 of the Rules of Court, [22] that it was received in the
regular course of mail. The facts to be proved in order to raise this presumption
are: (a) that the letter was properly addressed with postage prepaid; and (b) that
it was mailed. While a mailed letter is deemed received by the addressee in the
ordinary course of mail, this is still merely a disputable presumption subject
to controversion, and a direct denial of the receipt thereof shifts the burden upon
the party favored by the presumption to prove that the mailed letter was indeed
received by the addressee.[23]
In the present case, petitioner denies receiving the assessment notice, and
the respondent was unable to present substantial evidence that such notice was,
indeed, mailed or sent by the respondent before the BIRs right to assess had
prescribed and that said notice was received by the petitioner. The respondent
presented the BIR record book where the name of the taxpayer, the kind of tax
assessed, the registry receipt number and the date of mailing were noted. The BIR
records custodian, Ingrid Versola, also testified that she made the entries
therein. Respondent offered the entry in the BIR record book and the testimony
of its record custodian as entries in official records in accordance with Section 44,
Rule 130 of the Rules of Court,[24] which states that:

Section 44. Entries in official records. - Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.

The foregoing rule on evidence, however, must be read in accordance with

this Courts pronouncement in Africa v. Caltex (Phil.), Inc.,[25] where it has been
held that an entrant must have personal knowledge of the facts stated by him or
such facts were acquired by him from reports made by persons under a legal duty
to submit the same.
 There are three requisites for admissibility under the rule just mentioned:
(a) that the entry was made by a public officer, or by another person
specially enjoined by law to do so; (b) that it was made by the public officer
in the performance of his duties, or by such other person in the performance
of a duty specially enjoined by law; and (c) that the public officer or other
person had sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information x x x.

In this case, the entries made by Ingrid Versola were not based on her
personal knowledge as she did not attest to the fact that she personally
prepared and mailed the assessment notice. Nor was it stated in the transcript
of stenographic notes[26]how and from whom she obtained the pertinent
information. Moreover, she did not attest to the fact that she acquired the
reports from persons under a legal duty to submit the same. Hence, Rule 130,
Section 44 finds no application in the present case.Thus, the evidence offered
by respondent does not qualify as an exception to the rule against hearsay
evidence.

Furthermore, independent evidence, such as the registry receipt of the

assessment notice, or a certification from the Bureau of Posts, could have
easily been obtained. Yet respondent failed to present such evidence.

In the case of Nava v. Commissioner of Internal Revenue, [27] this Court

stressed on the importance of proving the release, mailing or sending of the
notice.

While we have held that an assessment is made when sent within the prescribed period,
even if received by the taxpayer after its expiration (Coll. of Int. Rev. vs. Bautista, L-
12250 and L-12259, May 27, 1959), this ruling makes it the more imperative that the
release, mailing, or sending of the notice be clearly and satisfactorily proved. Mere
notations made without the taxpayers intervention, notice, or control, without
 adequate supporting evidence, cannot suffice; otherwise, the taxpayer would be at the
mercy of the revenue offices, without adequate protection or defense.

In the present case, the evidence offered by the respondent fails to

convince this Court that Formal Assessment Notice No. FAN-1-87-91-000649
was released, mailed, or sent before 15 April 1991, or before the lapse of the
period of limitation upon assessment and collection prescribed by Section 203
of the NIRC. Such evidence, therefore, is insufficient to give rise to the
presumption that the assessment notice was received in the regular course of
mail. Consequently, the right of the government to assess and collect the
alleged deficiency tax is barred by prescription.

IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The

assailed Decision of the Court of Appeals in CA-G.R. SP No. 60209 dated 11 July
2002, is hereby REVERSED and SET ASIDE, and the Decision of the Court of Tax
Appeals in C.T.A. Case No. 5662, dated 17 May 2000, cancelling the 1988
Deficiency Tax Assessment against Barcelon, Roxas Securitites, Inc. (now
known as UPB Securities, Inc.) for being barred by prescription, is hereby
REINSTATED. No costs.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice
 WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

Chairman

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-

MARTINEZ
Associate Justice Associate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1]
Penned by Associate Justice Delilah Vidallon-Magtolis with Associate Justice Candido Rivera and Associate
Justice Sergio Pestao, concurring. Rollo, pp. 12-17.
[2]
Id. at 18-28.
[3]
Id. at 18.
[4]
Id. at 18-19.
[5]
Id. at 22-27.
[6]
Id. at 27.
[7]
Id. at 16-17.
[8]
Id. at 17.
[9]
CA rollo, p. 147.
[10]
Rollo, pp. 55-56.
[11]
Instances when the findings of fact of the trial court and/or Court of Appeals may be reviewed by the Supreme
Court are (1) when the conclusion is a finding grounded entirely on speculation, surmises or conjectures;
(2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a grave abuse
of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact
are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellant and appellee; (7) the findings of the Court of
Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as
in the petitioners main and reply briefs are not disputed by the respondents; and (10) the finding of fact of
the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the
evidence on record. (Misa v. Court of Appeals, G.R. No. 97291, 5 August 1992, 212 SCRA 217, 221-222)
[12]
Metro Construction, Inc. v. Chatham Properties, Inc., 418 Phil. 176, 206 (2001).
[13]
Rollo, pp. 24-27.
[14]
G.R. No. 122605, 30 April 2001, 357 SCRA 441, 445-446.
[15]
Commissioner of Internal Revenue v. Mitsubishi Metal Corp., G.R. Nos. 54908 and 80041, 22 January 1990, 181
SCRA 214, 220.
[16]
Section 203. Period of Limitation Upon Assessment and Collection. Except as provided in the Section 222,
internal revenue taxes shall be assessed within three (3) years after the last day prescribed by law for the
filing of the return, and no proceeding in court without assessment for the collection of such taxes shall be
begun after expiration of such period: Provided, that in a case where a return is filed beyond the period
 prescribed by law, the three (3)-year period shall be counted from the day the return was filed. For purposes
of this Section, a return filed before the last day prescribed by law for the filing thereof shall be considered
as filed on such last day.
[17]
105 Phil. 1326, 1327 (1959).
[18]
Rollo, pp. 14 and 24.
[19]
Section 77 (B) of the NIRC states that:
(B) Time of Filing the Income Tax Return. - The corporate quarterly declaration shall be filed within sixty
(60) days following the close of each of the first three (3) quarters of the taxable year. The final adjustment
return shall be filed on or before the fifteenth (15th) day of April, or on or before the fifteenth (15 th) day of
the fourth (4th) month following the close of the fiscal year, as the case may be.
[20]
Rollo, pp. 53-54.
[21]
386 Phil. 611, 623 (2000).
[22]
Section 3(v), Rule 131, of the 1997 Rules of Court provides:
Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
xxxx
(v) That a letter duly directed and mailed was received in the regular course of the mail;
[23]
Republic v. Court of Appeals, G.R. No. L-38540, 30 April 1987, 149 SCRA 351, 355.
[24]
Rollo, p. 56.
[25]
123 Phil. 272, 277 (1966).
[26]
Transcript of Stenographic Notes, Barcelon, Roxas Securities, Inc. v. Commissioner of Internal Revenue, CTA
Case No. 5662, 25 August 1998, pp. 1-13.
[27]
121 Phil. 117, 123-124 (1965).

2) Fullero vs People

SPECIAL THIRD DIVISION

ERNESTO M. FULLERO, G.R. NO. 170583

Petitioner,
Present:

-versus YNARES-SANTIAGO,
Chairperson,
AUSTRIA-MARTINEZ,
 CORONA,

PEOPLE OF CHICO-NAZARIO, and

THE PHILIPPINES,
Respondent. NACHURA, JJ.

Promulgated:

September 12, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules
of Court,[1] petitioner Ernesto M. Fullero seeks to set aside the Decision[2] dated
19 October 2005 of the Court of Appeals in CA-G.R. CR. No. 28072,
affirming in toto the Decision[3] dated 9 October 2003 of the Legazpi City Regional
Trial Court (RTC), Branch 6, in Criminal Case No. 7712, finding petitioner guilty of
falsification of public document as defined and penalized in paragraph 4, Article
171 of the Revised Penal Code.
 In an Amended Information[4] dated 14 October 1997, petitioner was
charged with falsification of public document under paragraph 4, Article 171 of
the Revised Penal Code, allegedly committed as follows:

That sometime in 1988, in the City of Legazpi, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice
and defraud, being then the Acting Chief Operator of Iriga City Telecommunications
Office, while acting in said capacity and taking advantage of his official function, did
then and there willfully, unlawfully and feloniously falsify and/or caused to be falsified a
genuine public document, that is when he prepared his CSC 212 (Personal Data Sheet)
for submission to Bureau of Telecommunication Regional Office No. 5, Legazpi City, he
made it appear that he passed the Civil Engineering Board Examinations given by
Professional Regulation Commission on May 30 and 31, 1985 with a rating of 75.8%;
however, upon verification issued by PRC, said accused took the examination in May
1984 and another one [in] May, 1985 with general ratings of 56.75% and 56.10%
respectively.

When arraigned on 5 January 1998, petitioner, with the assistance of

counsel de parte, pleaded Not Guilty to the charge.[5] Thereafter, trial on the
merits ensued.

Culled from the records are the following facts:

In 1977, petitioner was employed as a telegraph operator at the Bureau of

Telecommunications Office in Iriga City (BTO, Iriga City). In 1982, he became the
Acting Chief Operator of the same office until 1994.[6]

A Personal Data Sheet (PDS) [Civil Service Form 212] dated 8 January 1988,
purportedly accomplished and signed by petitioner, states that he passed the Civil
Engineering Board Examination given on 30-31 May 1985 in Manila with a rating
of 75.8%.[7] It appears that he submitted the PDS to the Bureau of
Telecommunications Regional Office, Legazpi City (BTO, Legazpi City).[8]

A letter dated 7 March 1988 and signed by petitioner shows that he applied
for the position of either a Junior Telecommunications Engineer or
Telecommunications Traffic Supervisor with the Regional Director of the Civil
Service Commission (CSC), Region 5, Legazpi City.[9]

Upon inquiry made by Florenda B. Magistrado (Magistrado), a subordinate

of petitioner in the BTO, Iriga City, with the Professional Regulation Commission
(PRC), it was verified that petitioner never passed the board examination for civil
engineering and that petitioners name does not appear in the book of registration
for civil engineers.[10]

Petitioner denied executing and submitting the subject PDS containing the
statement that he passed the 30-31 May 1985 board examination for civil
engineering. He likewise disowned the signature and thumbmark appearing
therein. He claimed that the stroke of the signature appearing in the PDS differs
from the stroke of his genuine signature.[11] He added that the letters contained in
the PDS he accomplished and submitted were typewritten in capital letters since
his typewriter does not have small letters. As such, the subject PDS could not be
his because it had both small and capital typewritten letters.

Moreover, petitioner claimed that Magistrado had an ill motive in filing the
instant case against him because he issued a memorandum against her for
misbehavior in the BTO, Iriga City.[12] He further argued that the RTC had no
jurisdiction to try him there being no evidence that the alleged falsification took
place in Legazpi City.[13]
 After trial, the Legazpi City RTC rendered a Decision dated 9 October
2003 finding petitioner guilty of the crime of falsification. Thus:

WHEREFORE, premises considered, the accused Ernesto M. Fullero is hereby

found guilty beyond reasonable doubt of the crime of Falsification defined and
penalized under Art. 171 (4) of the Revised Penal Code, and hereby sentences him to
suffer the penalty of imprisonment of six (6) years of prision correccional maximum to
ten (10) years of prision mayor medium as the maximum and to pay a fine of three
thousand P3,000.00 Pesos. Costs against the accused.[14]

Petitioner appealed to the Court of Appeals. On 19 October 2005, the

appellate court promulgated its Decision affirming in toto the assailed Legazpi City
RTC Decision. The appellate court decreed:

In sum, the Court finds that the prosecution has successfully established all the
elements of the offense of falsification of a public document and that the trial court
correctly rendered a judgment of conviction against appellant.

WHEREFORE, the appeal at bench is DISMISSED for lack of merit and the
appealed 09 October 2003 decision is AFFIRMED.[15]

On 21 November 2005, petitioner lodged the instant petition before us

citing as errors the following:

I.
 WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING
THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID LOWER
COURT CONVICTED THE ACCUSED IN THE ABSENCE OF SUFFICIENT EVIDENCE I.E.,
PROOF TO SHOW THAT THE ACCUSED ACTUALLY PERFORMED THE ACT OF
FALSIFICATION HE IS ACCUSED OF;

II.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING

THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT, EVEN ON THE
ASSUMPTION THAT ACCUSED FILLED UP THE PERSONAL DATA SHEET (PDS) INCLUDING
THE STATEMENT THAT HE IS A LICENSED ENGINEER, ACCUSED WAS UNDER NO
OBLIGATION TO STATE SAID DATA AND NO CRIMINAL INTENT WAS SHOWN.

III.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING

THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID RTC
ADMITTED EVIDENCES NOT PROPERLY IDENTIFIED AND THEREAFTER CONSIDERED THE
SAME IN DETERMINING THE ALLEGED GUILT OF THE ACCUSED;

IV.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING

THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT THE LOWER
COURT HAD NO JURISDICTION BECAUSE THE VENUE SHOULD HAVE BEEN IN
THE REGIONAL TRIAL COURT OF IRIGA CITY, WHERE THE ALLEGED PERSONAL DATA
SHEET WAS ACCOMPLISHED NOT IN THE RTC OF LEGAZPI CITY.

Apropos the first issue, petitioner maintained that none of the prosecution
witnesses actually saw him accomplish and sign the PDS; that the prosecution
failed to establish that he took advantage of his position in falsifying the PDS; that
a person need not be an Acting Chief Operator to be able to falsify a PDS; that he
never became the custodian of the PDS nor did he have any special access to it by
reason of his office; and that the identity of the person who falsified the PDS has
not been established by the prosecution.[16]

In establishing its charge of falsification against petitioner, the prosecution

presented the following witnesses, namely: Magistrado, Joaquin
C. Atayza (Atayza), Romeo Brizo (Brizo), Emma Francisco (Francisco) and Edith
C. Avenir (Avenir).

Magistrado, a subordinate of petitioner at the BTO, Iriga City, testified that

prior to the filing of the instant case against petitioner, she sued the petitioner for
unjust vexation as the latter kissed her on one occasion. While the case for unjust
vexation was pending, her lawyer, Atty. Mariano Baranda, Jr. (Atty. Baranda),
asked her if petitioner was indeed a licensed civil engineer since some persons
simply referred to petitioner as Mr. Fullero whereas in the BTO, Iriga City,
petitioner was known as Engineer Fullero. Suspicious of the true status of
petitioner, she went to the Records Office of the BTO, Legazpi City, and requested
therein if she can see petitioners PDS. Upon being shown petitioners PDS, she
observed that, under Item No. 18 thereof, petitioner appears to be a licensed civil
engineer having passed the board examination for civil engineering given on 30-
31 May 1985. Unconvinced of the veracity of petitioners statement in the PDS
that he is a licensed civil engineer, she sought the advice of
Atty. Baranda. Atty. Baranda then proceeded to the main office of the PRC
in Manila to check the records of petitioner. Subsequently,
Atty. Baranda obtained a certification from the PRC attesting that petitioner never
passed the board examination for civil engineering. Atty. Baranda showed the
said certification to her. Thereafter, she instituted the instant case against
petitioner.[17]
 Atayza, Regional Director of the PRC in Legazpi City, testified that petitioner
is not registered as a board passer for the civil engineering examination given on
30-31 May 1985.[18]

Brizo, Human Resource Management Officer and Acting Records Officer of

the BTO, Legazpi City, testified that his duty as acting records officer was to
safeguard the records and files of the BTO, Iriga City, and BTO, Legazpi City. He
said he personally knows the petitioner and is familiar with the latters signature
because he regularly received petitioners daily time records and other documents
bearing petitioners signature. He confirmed that the signature appearing in
petitioners PDS was the signature of petitioner.[19]

Francisco was the Officer-In-Charge of the Records Section of the

PRC, Manila. She declared that petitioners name was included in the master list of
examinees in the May 1984 civil engineering licensure examination where
petitioner obtained a failing grade of 56.75%. She affirmed that petitioners name
also appears in the list of examinees for the 30-31 May 1985 and May 1990 civil
engineering licensure examinations where he got failing marks.[20]

Avenir was the Special Investigator III in the Legal Affairs Division of the
CSC, Regional Office No. 5, Legazpi City. As the duly authorized representative of
the Regional Director of the said office, Avenir brought to the court the letter of
petitioner applying for the position of either Junior Telecommunications Engineer
or Telecommunications Traffic Supervisor, and a certification submitted by the
petitioner stating that the latter is a licensed civil engineer. Avenir stated that the
letter and the certification were taken from the records of their office and that
these documents were being kept as part of the records of an administrative case
of petitioner with the said office.[21]
 The prosecution also presented documentary evidence to bolster the
foregoing testimonies of the prosecution witnesses, to wit: (1) a certification
issued by Jose A. Arriola, Director II, PRC, Manila, attesting that petitioners name
is not registered in the book of registry for licensed civil engineers; (2)
certifications issued by Francisco affirming that petitioner failed in the 30-31
May 1985 board examination for civil engineering;[22] (3) the PDS where petitioner
stated that he passed the 30-31 May 1985 board examination for civil engineering
with a rating of 75.8% and which was signed by him;[23] (4) certifications issued by
Francisco attesting that petitioner failed the May 1990 board examination for civil
engineering;[24] (5) transcript of stenographic notes in the perjury case filed by
petitioner against Magistrado which states that, during the trial thereof,
petitioner affirmed before the court hearing the case that he is a licensed civil
engineer;[25] (6) a letter signed and submitted by petitioner to the Regional
Director of the CSC, Regional Office No. 5, Legazpi City, claiming to be a licensed
civil engineer and applying for the position of either a Junior Telecommunications
Engineer or Telecommunications Traffic Supervisor;[26](7) an Order dated 20
December 2001 of the CSC, Regional Office No. 5, finding petitioner
administratively liable for conduct prejudicial to the best interest of the service
and imposing upon him a penalty of six months suspension for falsifying his PDS
which is also the subject matter of the instant case;[27] (8) a certification
submitted by the petitioner to the CSC, Regional Office No. 5, Legazpi City,
showing that he is a licensed civil engineer;[28] (9) the daily time records
of Magistrado signed by petitioner as the formers superior;[29] and (10) other
documents bearing the signature of petitioner in blue ballpen.[30]

On the other hand, the defense presented petitioner as its sole witness. No
documentary evidence was proffered.

Petitioner interposed denials and alibi to support his

contentions. Petitioner denied that he executed and submitted the subject PDS
containing the statement that he passed the board examinations for civil
engineering. He likewise disowned the signature and thumbmark appearing
therein. He averred that the PDS he accomplished and submitted was typewritten
in capital letters since his typewriter does not have small letters; thus, the subject
PDS could not be his since the letters were typewritten in small and capital
letters; that the stroke of the signature appearing in the PDS differs from the
stroke of his genuine signature; that Magistrado had an ill motive in filing the
instant case against him since he issued a memorandum against her for the latters
misbehavior in the BTO, Iriga City; that he is not a licensed civil engineer; and that
he accomplished a different PDS in the BTO, Iriga City.

Petitioner testified that he cannot recall the exact date when he issued the
alleged memorandum against Magistrado[31] and when during the trial of his
perjury case against Magistrado, he claimed that he is a licensed civil
engineer.[32] He cannot also remember if he submitted a letter to the CSC,
Regional Office No. 5, Legazpi City, applying for the position of either a Junior
Telecommunications Engineer or Telecommunications Traffic Supervisor[33] and
the fact that he submitted therein a certification that he is a licensed civil
engineer.[34]

The initial query to be resolved is whose evidence between the prosecution

and defense is credible.

Case law dictates that an accused can be convicted even if no eyewitness is

available as long as sufficient circumstantial evidence had been presented by the
prosecution.[35] Circumstantial evidence is sufficient if:

(a) There is more than one circumstance;

 (b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction

beyond reasonable doubt.[36]

Although none of the prosecution witnesses actually saw the petitioner

falsifying the PDS, they, nonetheless, testified that that they are very familiar with
the petitioners handwriting and signature. Magistrado testified that, being a
subordinate of petitioner, she is very familiar with petitioners signature and
actually witnessed petitioner affixing his signature on her daily time records for
September 1987 to May 1988.[37] Brizo testified that he is also familiar with
petitioners signature because he personally knows petitioner and that he
regularly received petitioners daily time records and other documents bearing
petitioners signature.[38] Both Magistrado and Brizo opined that the signature in
the PDS belongs to petitioner.

The foregoing testimonies are consistent with the documentary evidence

submitted by the prosecution. The RTC and the Court of Appeals found the
testimonies of Magistrado and Brizo as trustworthy and believable.

More significant are the documentary evidence consisting of petitioners

signature in certain authentic instruments which are apparently similar to the
signature in the PDS. The RTC and the Court of Appeals have compared
petitioners signatures in Magistrados daily time records and petitioners signature
in his application letter to the CSC, Regional Office No. 5, Legazpi City, with that of
petitioners alleged signature in the PDS. They observed that the slant position of
the writing, as well as the stroke and the last rounding loop of the signature in the
PDS, does not differ from petitioners signatures in Magistrados daily time records
and in petitioners application letter.[39] They noted that petitioners signatures in
the said documents are strikingly similar, such that through the naked eye alone,
it is patent that the signatures therein were written by one and the same
person. The observation of the Court of Appeals is worth noting, viz:

Appellants allegation that he did not execute the subject PDS is unavailing. First,
the informations entered in the PDS, such as his accurate personal data and precise
employment history, are matters which only the accused could have known. Second, a
visual analysis of appellants signatures in the Certificate of Arraignment and Notice of
Hearing, vis-a-vis his signature in the PDS would show no significant disparity, leading to
the conclusion that appellant himself prepared the PDS and affixed his signature
therein. Third, the signature of appellant in the PDS and in the Daily Time Records
(Exhibits J to Q) of prosecution witness Florenda Magistrado, were glaringly
identical. x x x.[40]

The rule is that the findings of fact of the trial court, its calibration of the
testimonies of the witnesses and its assessment of the probative weight thereof,
as well as its conclusions anchored on said findings, are accorded high respect if
not conclusive effect.[41] This is more true if such findings were affirmed by the
appellate court. When the trial courts findings have been affirmed by the
appellate court, said findings are generally binding upon this Court.[42]

In absolute disparity, the evidence for the defense is comprised of

denials. Petitioner denied having accomplished and signed the PDS. He tried to
impart that someone else had filled it up. However, aside from this self-serving
and negative claim, he did not adduce any convincing proof to effectively refute
the evidence for the prosecution.
 It is a hornbook doctrine that as between bare denials and positive
testimony on affirmative matters, the latter is accorded greater evidentiary
weight.[43]

The subsequent matter to be determined is whether the elements of

falsification for which petitioner is charged were proven beyond reasonable
doubt.

Article 171, paragraph (4) of the Revised Penal Code, provides:

ART. 171. Falsification by public officer, employee or notary or ecclesiastic

minister. The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary who, taking advantage of his
official position, shall falsify a document by committing any of the following acts:

xxxx

4. Making untruthful statements in a narration of facts.

The elements of falsification in the above provision are as follows:

a) the offender makes in a public document untruthful statements in

a narration of facts;

b) he has a legal obligation to disclose the truth of the facts narrated

by him; and
 c) the facts narrated by him are absolutely false.[44]

In addition to the aforecited elements, it must also be proven that the

public officer or employee had taken advantage of his official position in making
the falsification. In falsification of public document, the offender is considered to
have taken advantage of his official position when (1) he has the duty to make or
prepare or otherwise to intervene in the preparation of a document; or (2) he has
the official custody of the document which he falsifies.[45]

All of the foregoing elements of falsification of public documents under

paragraph 4, Article 171 of the Revised Penal Code, have been sufficiently
established.

First, petitioner was a public officer, being then the Acting Chief Operator
of the BTO, Iriga City, when he accomplished and submitted his PDS on 4 January
1988 at the BTO, Legazpi City. It is settled that a PDS is a public document.[46] He
stated under Item No. 18 of his PDS that he passed the civil engineering board
examination given on 30-31 May 1985 in Manila with a rating of
75.8%. Thereafter, petitioner submitted his PDS to the BTO, Legazpi City.

Second, in Inting v. Tanodbayan,[47] we ruled that the accomplishment of

the PDS being a requirement under the Civil Service Rules and Regulations in
connection with employment in the government, the making of an untruthful
statement therein was, therefore, intimately connected with such
employment. Hence, the filing of a PDS is required in connection with promotion
to a higher position and contenders for promotion have the legal obligation to
disclose the truth. Otherwise, enhancing their qualifications by means of false
statements will prejudice other qualified aspirants to the same position.[48]
 Petitioner was legally obliged to disclose in the PDS that he is not a licensed
civil engineer since, as evidenced by his application letter, he was applying for
positions to be occupied only by licensed civil engineers. Further, petitioner was
also legally obliged to make truthful statements in his PDS since he affirmed
therein under the penalty of perjury that his answers to the queries are true and
correct to the best of [his] knowledge and belief.[49]

Third, petitioners statement in the PDS that he passed the civil engineering
board examination given on 30-31 May 1985 in Manila with a rating of 75.8%
is absolutely false. As Officer-in-Charge of the Records Section of the PRC, Manila,
Francisco declared that petitioner was included in the master list of examinees in
the May 1984 civil engineering licensure examination wherein petitioner obtained
a failing grade. She affirmed that petitioners name also appears in the list of
examinees for the May 1985 and May 1990 civil engineering licensure
examinations where petitioner also got failing marks. She also submitted
certifications and authentic documents in support of her statements. Further,
petitioner admitted that he never passed the board examination for civil
engineering.[50]

Finally, as a public officer, petitioner is duty-bound to prepare, accomplish

and submit his PDS pursuant to the Civil Service Rules and Regulations.[51] Were it
not for his position and employment in the government, he could not have
accomplished the PDS. In People v. Uy,[52] Santiago Uy, a field agent of the
National Bureau of Investigation, was charged with falsification of public
document under paragraph 4, Article 171 of the Revised Penal Code, for making
false statements in his Personal Information Sheet. We ruled therein: [T]hat the
defendant (Santiago Uy) took advantage of his position may be gathered from
the fact that he himself filled the information sheet which obviously was to be
submitted by each and every officer or employee of the NBI. In the same vein,
petitioner also had the responsibility to prepare, accomplish and submit his PDS
at the time he made a false statement therein that he is a licensed civil engineer.
Hence, it is clear that petitioner took advantage of his position as Acting Chief
Operator of BTO, Iriga City when he falsified his PDS.

Anent the second issue, petitioner posited that being a licensed civil
engineer is not a qualification for him to hold office and such is not a requirement
for his promotion; that the false statement caused no prejudice to any private
person as he did not have any competitor in his position nor was the government
damaged by such false statement; that the false statement would not in any way
redound to his benefit and, as such, no criminal intent could have impelled him to
make such false claim; and that no evidence was produced showing that he had
intent to cause injury.

The law is clear that wrongful intent on the part of the accused to injure a
third person is not an essential element of the crime of falsification of public
document.[53] It is jurisprudentially settled that in the falsification of public or
official documents, whether by public officers or private persons, it is not
necessary that there be present the idea of gain or the intent to injure a third
person for the reason that, in contradistinction to private documents, the
principal thing punished is the violation of the public faith and the destruction of
truth as therein solemnly proclaimed.[54] In falsification of public documents,
therefore, the controlling consideration is the public character of a document;
and the existence of any prejudice caused to third persons or, at least, the intent
to cause such damage becomes immaterial.[55]

The fact that the petitioners false statement in the PDS did not redound to
his benefit, and that the government or any private individual was not thereby
prejudiced, is inconsequential. What is clear and decisive in this case is that
petitioner made an entry in his PDS that he passed the 30-31 May 1985 board
examination for civil engineering despite his full awareness that such is not true.

Regarding the third issue, petitioner contended that the prosecutions

documentary evidence, consisting of Exhibits A, C, F, G, H, I, J, K, L, M, N, O, P, Q
and R and their sub-markings, are inadmissible in evidence based on the following
reasons:

(1) Exhibit A, which is the Certification of the PRC dated 17 January 1998,
confirming that petitioners name does not appear in the registry books of
licensed civil engineers, was not properly identified during the trial. The proper
person to identify the certification should have been the signatory therein which
was PRC Director II Jose A. Arriola, or in his absence, a person who actually
witnessed the execution of the certification. Prosecution witness Atayza, who was
not present when the certification was executed, had identified the certification
during the trial. Thus, the contents of the certification are mere
hearsay; (2) Exhibit C, which is, according to petitioner, a machine copy of the
PDS, does not show that it was the petitioner who prepared and submitted the
PDS to BTO, Legazpi City. There was nothing in the PDS which requires a periodic
submission of an updated PDS. Prosecution witness Brizo does not know whether
petitioners PDS was personally delivered or mailed. Hence, the identification and
subsequent testimonies of the prosecution witnesses on the PDS are mere
hearsay; (3) Exhibit F, which is the Transcript of Stenographic Notes dated 17
March 1998 of the perjury case filed by petitioner against Magistradowhere
petitioner allegedly admitted that he is a civil engineer, lacks proper identification
as the stenographer or records officer was not presented in court; (4) Exhibit G,
which is the alleged letter of petitioner to the Regional Director of the CSC, Region
5, Legazpi City, applying for the position of either a Junior Telecommunications
Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is a
machine copy of a certification allegedly issued by the PRC attesting that
petitioner is a licensed civil engineer and which was allegedly submitted by
petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his
credential in applying for the aforesaid positions, are merely machine copies and
the loss and unavailability of their original were not proven; and (5) Exhibits J, K,
L, M, N, O, P, Q and R, which are the daily time records of Magistrado signed by
petitioner and which were offered to compare petitioners alleged signature in the
PDS with the said exhibits, are devoid of factual basis. Petitioners signatures in
the said exhibits are, with the use of naked eye, not the same as his signature in
the PDS. The Legazpi City RTC should have submitted these documents to a
handwriting expert for examination instead of relying on the testimony
of Magistrado.[56]

Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness
can testify only to those facts which he knows of or comes from his personal
knowledge, that is, which are derived from his perception. A witness, therefore,
may not testify as to what he merely learned from others either because he was
told, or he read or heard the same. Such testimony is considered hearsay and may
not be received as proof of the truth of what he has learned.[57] This is known as
the hearsay rule.

The law, however, provides for specific exceptions to the hearsay rule. One
of the exceptions is the entries in official records made in the performance of
duty by a public officer.[58] In other words, official entries are admissible in
evidence regardless of whether the officer or person who made them was
presented and testified in court, since these entries are considered prima
facie evidence of the facts stated therein. Other recognized reasons for this
exception are necessity and trustworthiness. The necessity consists in the
inconvenience and difficulty of requiring the officials attendance as a witness to
testify to innumerable transactions in the course of his duty. This will also unduly
hamper public business. The trustworthiness consists in the presumption of
regularity of performance of official duty by a public officer.[59]
 Exhibit A, or the Certification of the PRC dated 17 January 1998, was signed
by Arriola, Director II of the PRC, Manila.[60] Although Arriola was not presented in
court or did not testify during the trial to verify the said certification, such
certification is considered as prima facie evidence of the facts stated therein and
is therefore presumed to be truthful, because petitioner did not present any
plausible proof to rebut its truthfulness. Exhibit A is therefore admissible in
evidence.

Section 3, Rule 128 of the Revised Rules on Evidence, provides that an

evidence is admissible when it is relevant to the issue and is not excluded by the
law or rules. Exhibit C, which according to petitioner is the machine copy of the
PDS, is very relevant to the charge of falsification and is not excluded by the law
or rules. It was offered precisely to prove that petitioner committed the crime of
falsification by making false statements in the PDS. Further, the information
specifically accuses petitioner of falsifying such PDS. A scrutiny of Exhibit C would
show that it is the very PDS which petitioner falsified and not a mere machine
copy as alleged by petitioner. Being the original falsified document, it is the best
evidence of its contents and is therefore not excluded by the law or rules.[61]

Section 2, Rule 132 of the Revised Rules on Evidence, explicitly provides

that a transcript of the record of the proceedings made by the official
stenographer, stenotypist or recorder and certified as correct by him shall be
deemed prima facie a correct statement of such proceedings.

Petitioner failed to introduce proof that Exhibit F, or the Transcript of

Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner
against Magistrado in which petitioner allegedly admitted that he is a civil
engineer, is not what it purports to be. Thus, it is prima facie correct. Moreover,
as earlier elucidated, one of the exceptions to the hearsay rule is the entries in
official records made in the performance of duty by a public officer. Exhibit F,
being an official entry in the courts records, is admissible in evidence and there is
no necessity to produce the concerned stenographer as a witness.[62]

Section 7, Rule 130 of the Revised Rules on Evidence, provides that when
the original of a document is in the custody of a public officer or is recorded in a
public office, its contents may be proved by a certified copy issued by the public
officer in custody thereof. Exhibit G, which is the alleged letter of petitioner to
the Regional Director of the CSC, Region 5, Legazpi City, applying for the position
of either a Junior Telecommunications Engineer or Telecommunications Traffic
Supervisor; and Exhibit I, which is the machine copy of a certification allegedly
issued by the PRC attesting that petitioner is a licensed civil engineer and which
was allegedly submitted by petitioner to the Regional Director of the CSC, Region
5, Legazpi City, as his credential in applying for the aforesaid positions, are
certified true copies of their original documents recorded or kept in the CSC,
Regional Office No. 5, Legazpi City[63] and, thus, admissible to prove the contents
of their originals.

Exhibits J to R, which are the daily time records of Magistrado signed by

petitioner and which were offered to compare petitioners alleged signature in the
PDS with the said exhibits, are admissible in evidence since they are relevant and
material to the charge of falsification against petitioner. The signatures of
petitioner in the said exhibits, the authenticity of which were not denied by
petitioner, were presented to prove that these signatures were similar to
petitioners signature in the PDS where he made the alleged falsification.

Well-entrenched is the rule that resort to handwriting experts is not

mandatory. Handwriting experts, while probably useful, are not indispensable in
examining or comparing handwritings or signatures.[64] This is so since under
Section 22, Rule 132 of the Revised Rules on Evidence, the handwriting of a
person may be proved by any witness who believes it to be the handwriting of
such person, because he has seen the person write; or has seen writing
purporting to be his upon which the witness has acted or has been charged, and
has thus acquired knowledge of the handwriting of such person. Moreover, the
opinion of a non-expert witness, for which proper basis is given, may be received
in evidence regarding the handwriting or signature of a person with which he has
sufficient familiarity.[65]

The Legazpi City RTC was, therefore, not obliged to put a handwriting
expert on the witness stand and direct the latter to examine petitioners
signatures in the foregoing exhibits before ruling on their admissibility. It can, as it
did, rely on the testimonies of the prosecution witnesses who are familiar with
petitioners handwriting/signature in determining the admissibility of the
aforesaid exhibits. It can, by itself, also compare petitioners signature in the PDS
with the petitioners signatures in the subject exhibits with or without the aid of
an expert witness and thereafter rule on the admissibility of such exhibits based
on its own observation. In short, it can exercise independent judgment as regards
the admissibility of said exhibits.

As to the fourth issue, petitioner argued that since none of the prosecution
witnesses testified that they actually saw him fill up the PDS, then there is no
evidence showing that the alleged falsification took place in Legazpi City; that
when the PDS was allegedly falsified, he was stationed at BTO, Iriga City, and was
a resident of Iriga City; that, even assuming without admitting that he filled up the
PDS, the same was, in all probability, filled up in Iriga City and, as such, the crime
of falsification was consummated therein; that, consequently, the instant case
should have been tried in the Iriga City RTC and not in the Legazpi City RTC.[66]
 There are three important requisites which must be present before a court
can acquire jurisdiction over criminal cases. First, the court must have jurisdiction
over the offense or the subject matter. Second, the court must have jurisdiction
over the territory where the offense was committed. And third, the court must
have jurisdiction over the person of the accused.[67] There is no dispute that
the Legazpi City RTC has jurisdiction over the offense and over the person of
petitioner. It is the territorial jurisdiction of the Legazpi City RTC which the
petitioner impugns.

The territorial jurisdiction of a court is determined by the facts alleged in

the complaint or information as regards the place where the offense charged was
committed.[68] It should also be emphasized that where some acts material and
essential to the crime and requisite to its consummation occur in one province or
city and some in another, the court of either province or city has jurisdiction to try
the case, it being understood that the court first taking cognizance of the case will
exclude the others.[69]

In the case at bar, the information specifically and positively alleges that
the falsification was committed in Legazpi City. Moreover, as heretofore
discussed, the testimonies and documentary evidence for the prosecution have
sufficiently established that petitioner accomplished and thereafter submitted the
PDS to the BTO, Legazpi City. The foregoing circumstances clearly placed
the locus criminis in Legazpi City and not in Iriga City.

We find no reason to disturb the prison term and fine imposed on

petitioner by the Legazpi City RTC and the Court of Appeals, as they are in accord
with law and jurisprudence.
 WHEREFORE, the petition is hereby DENIED. The Decision of the Court of
Appeals, dated 19 October 2005, in CA-G.R. CR. No. 28072, is hereby
AFFIRMED in toto. Costs against petitioner.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice

Chairperson
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson, Third Division

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairmans
Attestation, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion
of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]
Rollo, pp. 3-20.
[2]
Penned by Associate Justice Rebecca de Guia-Salvador with Associate Justices Ruben T. Reyes (now a member
of this Court) and Aurora Santiago-Lagman concurring; rollo, pp. 24-35.
[3]
Penned by Presiding Judge Vladimir B. Brusola; rollo, pp. 36-42.
[4]
Records, p. 40.
[5]
Id. at 31.
[6]
TSN, 17 September 2002, p. 4.
[7]
Records, p. 256.
[8]
TSN, 30 March 1998, p. 14.
[9]
Records, p. 361.
[10]
TSN, 30 March 1998, pp. 21-24.
[11]
TSN, 17 September 2002, pp. 4-6.
[12]
Id. at 7-10.
[13]
Records, p. 264.
[14]
Rollo, pp. 41-42.
[15]
Id. at 34.
[16]
Id. at 15-17.
[17]
TSN, 30 March 1998, pp. 18-24.
[18]
Id. at 2-10.
[19]
Id. at 12-18.
[20]
TSN, 1 March 2002, pp. 5-13.
[21]
TSN, 3 February 2003, pp. 3-10.
[22]
Exhibit B and its sub-markings, Records, pp. 254-255.
[23]
Exhibit C, id. at 256.
[24]
Exhibit E and its sub-markings, id. at 258-260.
[25]
Exhibit F, id. at 323-360.
[26]
Exhibit G and its sub-markings, id. at 361.
[27]
Exhibit F, id. at 362-368.
[28]
Exhibit I, id. at 367.
[29]
Exhibits J-R, id. at 370.
[30]
Exhibits S-V, id. at 371-375.
[31]
TSN, 17 September 2002, p. 12.
[32]
Id. at 17.
[33]
Id. at 18.
[34]
Id. at 20.
[35]
People v. Yatar, G.R. No. 150224, 19 May 2004, 428 SCRA 504, 513; People v. Lagao, Jr., 337 Phil. 497, 510
(1997).
[36]
Section 4, Rule 133, Rules of Court.
[37]
TSN, 8 May 2003, p. 6.
[38]
TSN, 30 March 1998, p. 16.
[39]
Rollo, p. 41.
[40]
Id. at 32.
[41]
People v. Aguila, G.R. No. 171017, 6 December 2006, 510 SCRA 642, 661.
[42]
Id.
[43]
People v. Comiling, 468 Phil. 869, 890 (2004); Olivarez v. Court of Appeals, G.R. No. 163866, 29 July 2005,
465 SCRA 465, 483; People v. Gusmo, 467 Phil. 199, 219 (2004).
[44]
Santos v. Sandiganbayan, G.R. Nos. 71523-25, 8 December 2000, 347 SCRA 386, 424.
[45]
Luis B. Reyes, The Revised Penal Code, Criminal Law (Fourteenth Edition, Revised 1998), Book Two,
Arts. 114-367, p. 216, citing People v. Uy, 101 Phil. 159, 163 (1957) and United States v. Inosanto, 20 Phil 376, 378
(1911); Adaza v. Sandiganbayan, G.R. No. 154886, 28 July 2005, 464 SCRA 460, 478-479.
[46]
Lumancas v. Intas, G.R. No. 133472, 5 December 2000, 347 SCRA 22, 34.
[47]
G.R. Nos. 52446-48, 15 May 1980, 97 SCRA 494, 499.
[48]
People v. Aguila, supra note 41.
[49]
At the back page of Exhibit C, Records, p. 256.
[50]
TSN, 17 September 2002, p. 6.
[51]
People v. Aguila, supra note 41.
[52]
Supra note 45.
[53]
People v. Po Giok To, 96 Phil. 913, 917 (1955).
[54]
Lastrilla v. Granda, G.R. No. 160257, 31 January 2006, 481 SCRA 324, 345.
[55]
Syquian v. People, G.R. No. 82197, 13 March 1989, 171 SCRA 223, 233.
[56]
Rollo, pp. 13-15.
[57]
D.M. Consunji, Inc. v. Court of Appeals, G.R.No. 137873, 20 April 2001, 357 SCRA 249, 253-254.
[58]
Section 44, Rule 130 of the Revised Rules on Evidence.
[59]
VI Herrera, REMEDIAL LAW REVISED RULES ON EVIDENCE, Rules 131-133 (1999 ed.), p. 290,
citing Antilon v. Barcelona, 37 Phil. 148, 151 (1917).
[60]
Records, p. 46.
[61]
Section 3, Rule 130 of the Revised Rules on Evidence.
[62]
Section 2, Rule 132 of the Revised Rules on Evidence.
[63]
Records, p. 361 and p. 367.
[64]
Bautista v. Castro, G.R. No. 61260, 17 February 1992, 206 SCRA 305, 312.
[65]
Section 50(b), Rule 130 of the Revised Rules on Evidence.
[66]
Rollo, pp. 11-13.
[67]
Cruz v. Court of Appeals, 436 Phil. 641, 654 (2002).
[68]
People v. Olermo, 454 Phil. 147, 164 (2003).
[69]
Id.
Testimony or deposition at a former proceeding

1) Samalia vs CA

EN BANC

[G.R. No. 140079. March 31, 2005]

AUGUSTO R. SAMALIO, petitioner, vs. COURT OF APPEALS, CIVIL

SERVICE COMMISSION, DEPARTMENT OF JUSTICE and
BUREAU OF IMMIGRATION, respondents.

DECISION
CORONA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court
assailing the May 24, 1999 decision,[1] as well as the September 1, 1999 resolution, of
the Court of Appeals (CA) in CA-G.R. SP No. 48723 which in turn affirmed the
November 26, 1997 resolution of the Civil Service Commission (CSC). The
aforementioned CSC resolution upheld the August 30, 1996 1 st Indorsement of then
Justice Secretary Teofisto T. Guingona confirming the penalty of dismissal from service
imposed by the Bureau of Immigration upon petitioner on the ground of dishonesty,
oppression, misconduct and conduct grossly prejudicial to the best interest of the
service in connection with his act of extorting money from Ms. Weng Sai Qin, a foreign
national.
The facts, as found by the CA and adopted by petitioner himself, are as follows:

Petitioner Augusto R. Samalio was formerly an Intelligence Officer of the Bureau of

Immigration and Deportation.

In Resolution No. 0-93-0224 dated February 4, 1993, the City Prosecutors office of
Pasay City recommended that petitioner Samalio be prosecuted for the crimes of
Robbery and Violation of Section 46 of the Immigration Law before the
Sandiganbayan under the following facts:
x x x that on 2 February 1993, Ms. Weng Sai Qin arrived at the NAIA from Saipan.
While waiting for her turn at the arrival immigration counter, her passport was
examined by Immigration Officer Juliet Pajarillaga. Noting that Ms. Weng, a Chinese,
was holding a Uruguayan passport, Ms. Pajarillaga suspected that the formers
passport was fake. Ms. Weng was taken out of the queue and brought to Respondent
who was the duty intelligence officer. Ms. Weng, who could only speak in Chinese,
asked respondent by sign language that she wanted to meet a friend who was waiting
at the NAIA arrival area. Respondent approved the request and accompanied Ms.
Weng to the arrival area. Thereafter, Respondent, with Ms. Weng and her male friend
in tow, returned to the immigration area. While inside the office of Respondent, Ms.
Weng asked that her passport be returned. Sensing a demand for money in exchange
for her passport, Ms. Weng flashed $500.00 in front of Respondent. The money was
grabbed by Respondent. Shortly, her passport was returned ans [sic] she was allowed
to leave. When Ms. Weng checked her passport later, she discovered that it did not
bear an immigration arrival stamp. Thereafter, Ms. Weng complained against
Respondent.

In a later Indorsement communication dated February 9, 1993 to the Bureau of

Immigration and Deportation (BID), former NAIA General Manager Gen. Guillermo
G. Cunanan enclosed a copy of the aforesaid City Prosecutors Resolution. Reacting,
then BID Commissioner, Zafiro L. Respicio, issued Personnel Order No. 93-179-93
commencing an administrative case against petitioner Augusto R. Samalio for
Violation of CSMC No. 46, Rule 2, Section 1, for dishonesty, oppression, misconduct,
disgraceful and immoral conduct, inefficiency and incompetence in the performance
of official duties, violation of reasonable office rules and regulations and conduct
prejudicial to the best interest of the service, requiring petitioner to submit his answer
to the charges together with supporting statements and documents, and whether or not
he elects a formal investigation if his answer is not considered satisfactory. In the
same Personnel Order, Samalio was preventively suspended for a period of ninety
(90) days as the charge sheet against him involves dishonesty, oppression and
misconduct. Forthwith, petitioner attempted the lifting of his preventive suspension. It
was struck down.

Later on, petitioner submitted an answer denying the charges and expressly electing a
formal investigation if such answer be not found to be satisfactory. Attached thereto
are the affidavits of his witnesses Rodrigo C. Pedrealba, Dante Aquino, Florencio B.
Austria and Winston C. Vitan. The answer was found to be unsatisfactory so the case
was set for formal hearing before the Board of Discipline of BID.

The case suffered several postponed hearings due to the requests and non-availability
of the parties but mostly due to the absence of complainants witnesses until on
September 7, 1993, respondent was allowed to file a motion to dismiss with the
Special Prosecutor designated given time to comment thereon. When the dismissal
motion was filed, assigned Special Prosecutor Edmund F. Macaraig interposed no
objection thereto. Notwithstanding, the case was not dismissed and instead, the
Special Prosecutor was given five (5) days to inform the Board whether or not he
intends to present additional witnesses.

On December 16, 1993, the DID Commissioner issued Personnel Order No. 93-428
reorganizing the Board of Discipline and this case was assigned to a new Board
presided by Atty. Kalaw. Subpoenas were again sent and hearings were scheduled
several times before the new Board until on February 6, 1995, Special Prosecutor
assigned, Edmund F. Macaraig, moved that Samalios Motion to Dismiss be denied
and that the case be considered submitted for resolution based on the records. On
February 16, 1995, the hearing officer denied Samalios Motion to Dismiss but granted
his Comment/Manifestation explaining his absence during the February 6, 1995
hearing and requesting that the case be set anew on February 22, 1995.

Finally, on July 25, 1996, BID Acting Commissioner Ramon J. Liwag, issued the
decision finding Augusto R. Samalio guilty of the charges and was ordered dismissed
from service.

In the 1st Indorsement dated August 30, 1996, former Justice Secretary Teofisto T.
Guingona, Jr. confirmed the penalty of dismissal from service of Augusto R. Samalio.
Soon after, the Motion for Reconsideration was denied in a Resolution dated June 2,
1997.

Guingonas decision was appealed to the Civil Service Commission which issued
Resolution No. 974501 dated November 26, 1997 dismissing the appeal for lack of
merit and affirming the decisions of Acting Commissioner Liwag and Secretary
Guingona. Similarly, the attempt for a reconsideration was likewise dismissed in Civil
Service Resolution No. 981925.

In the meantime, on June 13, 1994, during the pendency of the instant administrative
case, Augusto R. Samalio was convicted (in Sandiganbayan Criminal Case No.
18679) of the crime of Robbery, as defined in Articles 293 and 294, paragraph 5 of
the Revised Penal Code and was sentenced to suffer indeterminate penalty of Four (4)
Months and One (1) Day of Arresto Mayor to Four (4) Years, Two (2) Months and
Eleven (11) Days of Prision Correccional and to indemnify complainant Weng Sai
Qin the amount of US $500.00 and to pay the costs. Samalio did not appeal the
conviction and instead applied for and was granted probation by the Sandiganbayan
for two (2) years in an Order dated December 12, 1994. (Citations omitted)
[2]
 Petitioner assailed before the CA, in a petition for review, the correctness and
validity of CSC Resolution Nos. 974501 and 981925. The CA, however, dismissed the
petition for review and subsequently denied the motion for reconsideration.
Petitioner now comes before us to challenge the CA decision dismissing his petition
for review as well as the resolution denying his motion for reconsideration. Petitioner
claims he was not accorded due process and the CA failed to consider the proper
effects of his discharge under probation.
In support of his contention that he was deprived of due process, petitioner alleges
that no witness or evidence was presented against him, that the CA erred in the
interpretation of Section 47, Rule 130 of the Rules of Court and that there was no
hearing conducted on his case.
Petitioners contention is without merit.
The CSC decision and resolution which upheld the resolution of the Secretary of
Justice confirming the decision of the Commissioner of the BID are supported by
substantial evidence. The CSC, as well as the Secretary of Justice and the
Commissioner of the BID, decided the case on the basis of the pleadings and papers
submitted by the parties, and relied on the records of the proceedings taken. In
particular, the decision was based on the criminal complaint filed by Weng Sai Qin
against petitioner before the City Prosecutors Office of Pasay City, as well as
Resolution No. 0-93-0224 dated February 4, 1993 of the same office recommending the
prosecution of petitioner at the Sandiganbayan for the crimes of robbery and violation of
Section 46 of the Immigration Law.
The CSC, as well as the Secretary of Justice, also took cognizance of the testimony
of Weng Sai Qin in Sandiganbayan Criminal Case No. 18679 and the fact of petitioners
conviction in that case. Thus, there was ample evidence which satisfied the burden of
proof required in administrative proceedings substantial evidence or that quantum of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion[3] ― to support the decision of the CSC.
The CSC and the Secretary of Justice did not err in applying Section 47, Rule 130
of the Revised Rules of Court, otherwise known as the rule on former testimony, in
deciding petitioners administrative case. The provisions of the Rules of Court may be
applied suppletorily to the rules of procedure of administrative bodies exercising quasi-
judicial powers, unless otherwise provided by law or the rules of procedure of the
administrative agency concerned. The Rules of Court, which are meant to secure to
every litigant the adjective phase of due process of law, may be applied to proceedings
before an administrative body with quasi-judicial powers in the absence of different and
valid statutory or administrative provisions prescribing the ground rules for the
investigation, hearing and adjudication of cases before it.[4]
For Section 47, Rule 130 to apply, the following requisites must be satisfied: (a) the
witness is dead or unable to testify; (b) his testimony or deposition was given in a former
case or proceeding, judicial or administrative, between the same parties or those
representing the same interests; (c) the former case involved the same subject as that
in the present case, although on different causes of action; (d) the issue testified to by
the witness in the former trial is the same issue involved in the present case and (e) the
adverse party had an opportunity to cross-examine the witness in the former case.[5]
In this case, Weng Sai Qin was unable to testify in the administrative proceedings
before the BID because she left the country on February 6, 1993,[6] or even before the
administrative complaint against petitioner was instituted. Petitioner does not deny that
the testimony of Weng Sai Qin was given in Sandiganbayan Criminal Case No. 18679,
a case which sprang from the information filed pursuant to Resolution No. 0-93-0224
dated February 4, 1993 of the City Prosecutors Office of Pasay City, the very same
resolution used by Commissioner Respicio as basis for filing the administrative
complaint. Hence, the issue testified to by Weng Sai Qin in Sandiganbayan Criminal
Case No. 18679 was the same issue in the administrative case, that is, whether
petitioner extorted money from Weng Sai Qin. Petitioner also had the opportunity to
face and cross-examine his accuser Weng Sai Qin, and to defend and vindicate his
cause before the Sandiganbayan. Clearly, all the requisites for the proper application of
the rule on former testimony, as embodied in Section 47, Rule 130, were satisfied.
Thus, the CSC and the Secretary of Justice committed no error when they applied it and
took cognizance of the former testimony of Weng Sai Qin in Sandiganbayan Criminal
Case No. 18679 where petitioner was convicted.
Petitioner contends that the CA, as well as the CSC and the Secretary of Justice,
should not have applied Section 47, Rule 130 because there was failure to lay the basis
or predicate for the rule. The argument is specious and deserves scant consideration.
The records of this case reveal that even in the early stages of the proceedings before
the Board of Discipline of the BID, Weng Sai Qins departure from the country and
consequent inability to testify in the proceedings had already been disclosed to the
parties.[7]
Further, administrative bodies are not bound by the technical niceties of law and
procedure and the rules obtaining in courts of law.[8] Administrative tribunals exercising
quasi-judicial powers are unfettered by the rigidity of certain procedural requirements,
subject to the observance of fundamental and essential requirements of due process in
justiciable cases presented before them.[9] In administrative proceedings, technical rules
of procedure and evidence are not strictly applied and administrative due process
cannot be fully equated with due process in its strict judicial sense.[10]
The Uniform Rules of Procedure in the Conduct of Administrative Investigations in
the CSC[11] which were applicable to petitioners case provided that administrative
investigations shall be conducted without necessarily adhering to technical rules
applicable in judicial proceedings.[12] The Uniform Rules further provided that evidence
having materiality and relevance to the administrative case shall be accepted. [13] Not only
was petitioners objection to the application of Section 47, Rule 130 a technicality that
could be disregarded; the testimony of Weng Sai Qin in Sandiganbayan Criminal Case
No. 18679 was also material and relevant to the administrative case. Hence, the CSC
was correct in applying Section 47, Rule 130 when it took cognizance of the former
testimony of Weng Sai Qin in the aforementioned criminal case.
Petitioners assertion that there was no hearing (that he was deprived of the
opportunity to be heard) is likewise without merit. Apparently, petitioners concept of the
opportunity to be heard is the opportunity to ventilate ones side in a formal hearing
where he can have a face-to-face confrontation with the complainant. However, it is
well-settled that, in administrative cases, the requirement of notice and hearing does not
connote full adversarial proceedings.[14]
Due process in an administrative context does not require trial-type proceedings
similar to those in courts of justice. Where opportunity to be heard either through oral
arguments or through pleadings is accorded, there is no denial of procedural due
process.[15] A formal or trial-type hearing is not at all times and in all instances essential.
The requirements are satisfied where the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand. [16] The standard of due
process that must be met in administrative tribunals allows a certain degree of latitude
as long as fairness is not ignored.[17] In other words, it is not legally objectionable for
being violative of due process for an administrative agency to resolve a case based
solely on position papers, afidavits or documentary evidence submitted by the parties as
affidavits of witnesses may take the place of their direct testimony.[18]
In this case, petitioner was heard through the various pleadings which he filed with
the Board of Discipline of the BID when he filed his answer [19] and two motions to
dismiss,[20] as well as other motions and papers. He was also able to participate in all
stages of the administrative proceeding. He was able to elevate his case to the
Secretary of Justice and, subsequently, to the CSC by way of appeal.
We have consistently held that the essence of due process is simply the opportunity
to be heard or, as applied to administrative proceedings, the opportunity to explain ones
side or the opportunity to seek a reconsideration of the action or ruling complained
of.[21]And any seeming defect in its observance is cured by the filing of a motion for
reconsideration.[22] Denial of due process cannot be successfully invoked by a party who
has had the opportunity to be heard on his motion for reconsideration. [23]
Petitioner himself admits that he filed a motion for reconsideration [24] of the decision
of the BID which was confirmed by the Secretary of Justice. He also admits that he filed
a motion for reconsideration[25] with the CSC. Hence, by his own admission, petitioners
protestations that he had been deprived of due process must necessarily fail.
Petitioner claims that when the Sandiganbayan approved his probation in the
criminal case, it restored him to all civil rights lost or suspended as a result of his
conviction, including the right to remain in government service. Petitioner cites the case
of Baclayon v. Mutia, et al.[26] where the grant of probation suspended the imposition not
only of the principal penalties but of the accessory penalties as well.
Petitioners contention is misplaced.
First, the Baclayon case is not in point. In that case, no administrative complaint
was instituted against the public officer, a public school teacher, during the pendency of
the criminal case against her and even after her conviction. There being no
administrative case instituted against the public officer and no administrative liability
having been imposed, there was no administrative sanction that could have been
suspended by the grant of probation.
 Second, dismissal is not an accessory penalty either of prision
correccional [27] or arresto mayor,[28] the range of penalty imposed upon petitioner in
Sandiganbayan Criminal Case No. 18679. Hence, even assuming arguendo that
petitioners contention was correct, the grant of probation could not have resulted in the
suspension of an accessory penalty like dismissal that does not even exist.
Third, to suspend means to stop temporarily; to discontinue [29] or to cause to be
intermitted or interrupted.[30] The records of this case show that petitioner was granted
probation in an order dated December 12, 1992[31] of the Second Division of the
Sandiganbayan. He was dismissed from the service in the decision dated July 25,
1996[32] of the BID Commissioner. Since the grant of probation was granted long before
the administrative case was decided, the probation could not have possibly suspended
the imposition of the penalty of dismissal from the service in the administrative case
since there was no administrative penalty that could have been interrupted by the
probation at the time it was granted. Indeed, petitioners discharge on probation could
not have restored or reinstated him to his employment in government service since he
had not been yet been dismissed therefrom at the time of his discharge.
Finally, even if dismissal had been one of the accessory penalties of the principal
penalty imposed upon petitioner in the criminal case, and even if the administrative case
had been decided earlier than the criminal case, still the imposition of the penalty of
dismissal could not have been suspended by the grant of probation. As petitioner
himself contends, the criminal action is separate and distinct from the administrative
case. And, if only for that reason, so is administrative liability separate and distinct from
penal liability.[33] Hence, probation affects only the criminal aspect of the case,[34] not its
administrative dimension.
WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of
Appeals in CA-G.R. SP No. 48723 dated May 24, 1999, affirming the decision and
resolution of the Civil Service Commission is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-
Nazario, and Garcia, JJ., concur.

[1]
Penned by Associate Justice Conrado M. Vasquez, Jr. and concurred in by Associate Justices Teodoro
P. Regino and Renato C. Dacudao of the Special Fourth Division.
[2]
Rollo, pp. 17-20.
[3]
Anflo Management & Industrial Corp., et al. v. Bolanio, 439 Phil. 309 (2002).
[4]
Generoso Villanueva Transportation Co., Inc. v. Moya, et al., 149 Phil. 213 (1971).
[5]
Regalado, Remedial Law Compendium, Vol. II, 7th Revised edition, pp. 620-621.
[6]
Records, p. 53.
[7]
See order dated April 20, 1993 of the BIDs Board of Discipline, Records, p. 53.
[8]
Bantolino, et al. v. Coca-Cola Bottlers Phils., Inc. G.R. No. 153660, 10 June 2003, 403 SCRA 699.
[9]
De los Santos v. NLRC, et al., 423 Phil. 1020 (2001).
[10]
Emin v. De Leon, et al., 428 Phil. 172 (2002).
[11]
CSC Resolution No. 94-0521 dated January 25, 1994. This has been repealed by CSC Resolution No.
99-1936 dated August 31, 1999, otherwise known as the Uniform Rules on Administrative Cases
in the Civil Service. However, Section 3, Rule I of CSC Resolution No. 99-1936 is similar to
Section 11, Part I of CSC Resolution No. 94-0521.
[12]
Section 11, Part I, id.
[13]
Section 31, Part II (B), id.
[14]
Artezuela v. Maderazo, 431 Phil. 135 (2002).
[15]
Liguid v. Camano, Jr., 435 Phil. 695 (2002).
[16]
Stayfast Philippines Corp. v. NLRC, et al., G.R. No. 81480, 9 February 1993, 218 SCRA 596,
citing Llora Motors, Inc., et al. v. Drilon, et al., G.R. No. 82895, 7 November 1989, 179 SCRA
175.
[17]
Adamson & Adamson, Inc. v. Amores, et al., G.R. No. L-58292, 23 July 1987, 152 SCRA 237.
[18]
CMP Federal Security Agency, Inc. v. NLRC, et al., 362 Phil. 439 (1999).
[19]
Records, pp. 42-47.
[20]
Records, pp. 62-63; pp. 113-114.
[21]
Zacarias v. National Police Commission, et al., G.R. No. 119847, 24 October 2003, 414 SCRA 387.
[22]
Abalos v. Civil Service Commission, et al., G.R. No. 95861, 19 April 1991, 196 SCRA 81.
[23]
Rubenecia v. Civil Service Commission, 314 Phil. 612 (1995).
[24]
Rollo, p. 10.
[25]
Id.
[26]
214 Phil. 126 (1984).
[27]
Article 43, Revised Penal Code.
[28]
Article 44, id.
[29]
Websters Third New International Dictionary of the English Language.
[30]
Id.
[31]
Records, pp. 90-91.
[32]
Id., pp. 79-81.
[33]
Veloso v. Sandiganbayan, et al., G.R. Nos. 89043-65, 16 July 1990, 187 SCRA 504.
[34]
Budlong v. Apalisok, et al., 207 Phil. 804 (1983).