G.R. No. L-41166 August 25, 1976 weight of his testimony.

weight of his testimony. 5 Certainly, the physical condition of the witness will reveal his capacity for accurate
observation and memory, and his deportment and physiognomy will reveal clues to his character. These can
only be observed by the judge if the witness testifies orally in court. Indeed, the great weight given the findings
PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO, petitioners,
of fact of the trial judge in the appellate court is based upon his having had just that opportunity and the
vs. HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO
assumption that he took advantage of it to ascertain the credibility of the witnesses. This has been explained by
OJOY respondents.
Chief Justice Appleton, thus:

ANTONIO, J.:p
Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of respondent Judge,
dated July 30, 1975, sustaining the procedure proposed by defense counsel that, in lieu of the testimony of the
witnesses for the accused on direct examination in open court, he was filing their affidavits, subject to cross-
examination by the prosecution. Per Resolution dated August 22, 1975, this Court issued a temporary
restraining order enjoining the respondent Judge from enforcing the questioned Order.
In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio Ojoy, accused", of
the Court of First Instance of Iloilo, Branch III, after the accused himself had testified in his defense, his
counsel manifested that for his subsequent witnesses he was filing only their affidavits subject to cross-
examination by the prosecution on matters stated in the affidavits and on all other matters pertinent and
material to the case. Private prosecutor Atty. Amelia K. del Rosario, one of the petitioners here, objected to the
proposed procedure but this notwithstanding, respondent Judge gave his conformity thereto and subsequently
issued the questioned Order. Contending that respondent Judge gravely abused his discretion because the
aforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court, which requires that the
testimony of the witness should be given orally in open court, and there is no appeal nor any plain, speedy and
adequate remedy in the ordinary course of law, petitioners instituted the present petition.
We grant the petition.
Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require that the
testimony of a witness shall be given orally in open court. The afore-cited Sections 1 and 2 provide:
SECTION 1. Testimony to be given in open court. — The testimony of witnesses shall
be given orally in open court and under oath or affirmation.
The witness present, the promptless and unpremeditatedness of his answers or the
reverse, their distinctness and particularity or the want of these essentials, their
incorrectness in generals or particulars, their directness or evasiveness are soon detected.
... The appearance and manner, the voice, the gestures, the readiness and promptness of
the answers, the evasions, the reluctance the silence, the contumacious silence, the
contradictions, the explanations, the intelligence or the want of intelligence of the
witness, the passions which more or less control-fear, love, have, envy, or revenge are
all open to observation, noted and weighed by jury. 6
Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining the superior weight of evidence on the
issues involved, the court, aside from the other factors therein enumerated, may consider the "witness manner
of testifying" which can only be done if the witness gives his testimony orally in open court". If a trial judge
prepares his opinion immediately after the conclusion of the trial, with the evidence and his impressions of the
witnesses fresh in his mind, it is obvious that he is much more likely to reach a correct result than if he simply
reviews the evidence from a typewritten transcript, without having had the opportunity to see, hear and observe
the actions and utterances of the witnesses.
There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given
orally ill court. Rules governing the examination of witnesses are intended to protect the rights of litigants and
to secure orderly dispatch of the business of the courts. Under the rules, only questions directed to the eliciting
of testimony which, under the general rules of evidence, is relevant to, and competent to prove, the issue of the
case, may be propounded to the witness. A witness in testify only on those facts which he knows of his own
knowledge. Thus, on direct examination, leading questions are not allowed, except or, preliminary matters, or
when there is difficult in getting direct and intelligible answer from the witness who is ignorant, a child of
tender years, or feebleminded, or a deaf mute.8 It is obvious that such purpose may be subverted, and the
orderly dispatch of the business of the courts thwarted if trial judges are allowed, as in the case at bar, to adopt
any procedure in the presentation of evidence other than what is specifically authorized by the Rules of Court.

SEC. 2. Testimony in superior courts to be reduced to writing.- In superior courts the WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and the order of
testimony of each witness shall be taken in shorthand or stenotype, the name, residence, respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside, and the temporary
and occupation of the witness being stated, and all questions put to the witness and his restraining order issued on August 22, 1975 is hereby made permanent, without any pronouncement as to
answers thereto being included. If a question put is objected to and the objection is ruled costs.
on, the nature of the objection and the ground on which it was sustained or overruled
must be stated, or if a witness declines to answer a question put, the fact and the
proceedings taken thereon shall be entered in the record. A transcript of the record made
by the official stenographer or stenotypist and certified as correct by him shall be prima
facie a correct statement of such testimony and proceedings.

Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of Sections 77 and
78 of Rule 123, of the Old Rules of Court. Section 77 in turn was taken from Section 381 of Act No.
190, 1 while Section 78 from Section 32 of General Order No. 58. 2

The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the
adverse party the opportunity of cross-examination. "The opponent", according to an eminent
authority, 3 demands confrontation, not for the Idle purpose of gazing upon the witness, or of being gazed upon
by him, but for the purpose of cross-examination which cannot be had except by the direct and personal
putting of questions and obtaining immediate answers." There is also the advantage to be obtained by the
personal appearance of the witness before the judge, and it is this it enables the judge as the trier of facts "to
obtain the elusive and incommunicable evidence of a witness deportment while testifying, and a certain
subjective moral effect is produced upon the witness. 4 It is only when the witness testifies orally that the judge
may have a true idea of his countenance, manner and expression, which may confirm or detract from the
 G.R. Nos. 71208-09 August 30, 1985
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs. THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES
AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE
HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR
GENERAL PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT.
LEONARDO MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO
ACUPIDO, respondents.
G.R. Nos. 71212-13 August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner,
vs. THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS,
SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT.
PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.
CUEVAS, JR., J.:
On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the
premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an
opposition stalwart who was returning to the country after a long-sojourn abroad, was gunned down to death.
The assassination rippled shock-waves throughout the entire country which reverberated beyond the territorial
confines of this Republic. The after-shocks stunned the nation even more as this ramified to all aspects of
Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive
investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board
which later became more popularly known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D.
1886, the Board conducted public hearings wherein various witnesses appeared and testified and/or produced
documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the
Board Among the witnesses who appeared, testified and produced evidence before the Board were the herein
private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas
Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4
UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand
E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored
by the other members of the Board — namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos
and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for
appropriate action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed with
the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino
which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the killing of
Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on
that same fateful day. In both criminal cases, private respondents were charged as accessories, along with
several principals, and one accomplice.
Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of
the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies
of private respondents before the Agrava Board. 6 Private respondents, through their respective counsel
objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude
Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-
entitled cases" 7 contending that its admission will be in derogation of his constitutional right against self-
incrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid testimony be
rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other private respondents
likewise filed separate motions to exclude their respective individual testimonies invoking the same
ground. 8 Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the
private respondents in support of their motions to exclude their respective testimonies, was not available to
them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding
Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to
submit their respective memorandum on the issue after which said motions will be considered submitted for
resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer
of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being
resolved, issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and
the opposition thereto, together with the memorandum in support thereof, as well as the legal issues and
arguments, raised therein are to be considered jointly in the Court's Resolution on the prosecution's formal
offer of exhibits and other documentary evidences.11 On June 3, 1985, the prosecution made a written "Formal
Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences
produced by them before the Board, all of which have been previously marked in the course of the trial.12
All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied
upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2)
petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other evidence
produced by the private respondents in view of the immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before
Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged Resolution on the
ground that it was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of
jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a
separate petition for certiorari 15 on the same ground. Having arisen from the same factual beginnings and
raising practically Identical issues, the two (2) petitioners were consolidated and will therefore be jointly dealt
with and resolved in this Decision.
The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8)
private respondents who did not invoke their rights against self-incrimination before the Agrava Board.
It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said
testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke
before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said
privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said
constitutional privilege amounts to a waiver thereof. 16 The private respondents, on the other hand, claim that
notwithstanding failure to set up the privilege against self- incrimination before the Agrava Board, said
evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that
without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed
by the first clause of the same Section would suffer from constitutional infirmity for being violative of the
witness' right against self- incrimination. 17 Thus, the protagonists are locked in horns on the effect and legal
significance of failure to set up the privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to
rule on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary
circumstance that had precipitated the same did nothing to ease the burden of laying down the criteria upon
which this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry.
In carrying out this monumental task, however, We shall be guided, as always, by the constitution and existing
laws.
The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and
independent body, instead of any ordinary police agency, be charged with the task of conducting the
investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the
probable motive behind the assassination and the person or persons responsible for or involved in the
assassination hastened its creation and heavily contributed to its early formation. 19
Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all
legal intents and purposes, an entity charged, not only with the function of determining the facts and
circumstances surrounding the killing, but more importantly, the determination of the person or persons
criminally responsible therefor so that they may be brought before the bar of justice. For indeed, what good
will it be to the entire nation and the more than 50 million Filipinos to know the facts and circumstances of the
killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from
Section 12 of the said Presidential Decree, the pertinent portion of which provides —
SECTION 12. The findings of the Board shall be made public. Should the findings
warrant the prosecution of any person, the Board may initiate the filing of proper
complaint with the appropriate got government agency. ... (Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment
and/or determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction.
And as safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any
stage of the proceedings." 20 Considering the foregoing environmental settings, it cannot be denied that in the
course of receiving evidence, persons summoned to testify will include not merely plain witnesses but also
those suspected as authors and co-participants in the tragic killing. And when suspects are summoned and
called to testify and/or produce evidence, the situation is one where the person testifying or producing
evidence is undergoing investigation for the commission of an offense and not merely in order to shed light on
the facts and surrounding circumstances of the assassination, but more importantly, to determine the character
and extent of his participation therein.
Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of
whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned
and gave their testimonies before the Agrava Board. This notwithstanding, Presidential Decree No. 1886
denied them the right to remain silent. They were compelled to testify or be witnesses against themselves.
Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence,
under pain of contempt if they failed or refused to do so. 21 The jeopardy of being placed behind prison bars
even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a
witness against themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-
a Both these constitutional rights (to remain silent and not to be compelled to be a witness against himself)
were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced evidence as
ordered, they were not immune from prosecution by reason of the testimony given by them.
Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial
interrogation? We find no categorical statement in the constitutional provision on the matter which reads:
... Any person under investigation for the commission of an offense shall have the right
to remain and to counsel, and to be informed of such right. ... 22 (Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific portion
of the subject provision. In all these cases, it has been categorically declared that a person detained for the
commission of an offense undergoing investigation has a right to be informed of his right to remain silent, to
counsel, and to an admonition that any and all statements to be given by him may be used against him.
Significantly however, there has been no pronouncement in any of these cases nor in any other that a person
similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the
constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted
between the words "under" and investigation", as in fact the sentence opens with the phrase "any person " goes
to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by
petitioners' contention that the use of the word "confession" in the last sentence of said Section 20, Article 4
connotes the Idea that it applies only to police investigation, for although the word "confession" is used, the
protection covers not only "confessions" but also "admissions" made in violation of this section. They are
inadmissible against the source of the confession or admission and against third person. 25
It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying
conditions than one who is at liberty while being investigated. But the common denominator in both which is
sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the
commission of an offense, the very evidence with which to prosecute and thereafter convict him. This is the
lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the military contingent that
escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day.
Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination.
General Ver on the other hand, being the highest military authority of his co-petitioners labored under the same
suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others
suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors
from uglywagging tongues, all point to them as having, in one way or another participated or have something
to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that
their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their
participation in the said conspiracy? It is too taxing upon one's credulity to believe that private respondents'
being called to the witness stand was merely to elicit from them facts and circumstances surrounding the
tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified earlier. In
fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board.
The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before
the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the so-called
surrounding facts and circumstances of the assassination. In the light of the examination reflected by the
record, it is not far-fetched to conclude that they were called to the stand to determine their probable
involvement in the crime being investigated. Yet they have not been informed or at the very least even warned
while so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any
statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or
by other police agency, all the herein private respondents could not have been compelled to give any statement
whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their
constitutional right to remain silent, to counsel, and be informed that any and all statements given by them may
be used against them. Did they lose their aforesaid constitutional rights simply because the investigation was
by the Agrava Board and not by any police investigator, officer or agency? True, they continued testifying.
May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness
against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of
Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish any refusal to testify or
produce evidence, We are not persuaded that when they testified, they voluntarily waived their constitutional
rights not to be compelled to be a witness against themselves much less their right to remain silent.
Compulsion as it is understood here does not necessarily connote the use of violence; it
may be the product of unintentional statements. Pressure which operates to overbear his
will, disable him from making a free and rational choice, or impair his capacity for
rational judgment would in our opinion be sufficient. So is moral coercion 'tending to
force testimony from the unwilling lips of the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where certain
police officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic
tickets were asked questions following a warning that if they did not answer they would be removed from
office and that anything they said might be used against them in any criminal proceeding, and the questions
were answered, the answers given cannot over their objection be later used in their prosecutions for
conspiracy. The United States Supreme Court went further in holding that:
the protection of the individuals under the Fourteenth Amendment against coerced
statements prohibits use in subsequent proceedings of statements obtained under threat
or removal from office, and that it extends to all, whether they are policemen or other
 members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in
the context of threats of removal from office the act of responding to interrogation was
not voluntary and was not an effective waiver of the privilege against self-
incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus
curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself"
applies only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein
private respondents before the Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily against
this theory. Said case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a
prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify
upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this
Court sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against self-
incrimination. We did not therein state that since he is not an accused and the case is not a criminal case, Cabal
cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination
only when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly
then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege
has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment
is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where only
property rights were involved, "the right not to be compelled to be a witness against himself" is secured in
favor of the defendant, then with more reason it cannot be denied to a person facing investigation before a Fact
Finding Board where his life and liberty, by reason of the statements to be given by him, hang on the balance.
Further enlightenment on the subject can be found in the historical background of this constitutional provision
against self- incrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment to
the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence.
At first, the provision in our organic laws were similar to the Constitution of the United States and was as
follows:
That no person shall be ... compelled in a criminal case to be a witness against
himself. 30
As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also
applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against
himself" applies to the herein private respondents notwithstanding that the proceedings before the Agrava
Board is not, in its strictest sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional rights, but
also the right to "due process" which is fundamental fairness. 31 Quoting the highly-respected eminent
constitutionalist that once graced this Court, the former Chief Justice Enrique M. Fernando, due process —
... is responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due
process requirement, official action, to paraphrase Cardozo, must not outrun the bounds
of reason and result in sheer oppression. Due process is thus hostile to any official action
marred by lack of reasonableness. Correctly, it has been Identified as freedom from
arbitrariness. It is the embodiment of the sporting Idea of fair play (Frankfurter, Mr.
Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those
strivings for justice and judges the act of officialdom of whatever branch "in the light of
reason drawn from considerations of fairness that reflect (democratic) traditions of
legal and political thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It
is not a narrow or '"echnical conception with fixed content unrelated to time, place and
circumstances."(Cafeteria Workers v. McElroy 1961, 367 US 1230) Decisions based on
such a clause requiring a 'close and perceptive inquiry into fundamental principles of
our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to
be treated narrowly or pedantically in slavery to form or phrases. (Pearson v. McGraw,
1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments, manifestations and
admissions of both counsel, failed to reveal adherence to and compliance with due process. The manner in
which the testimonies were taken from private respondents fall short of the constitutional standards both under
the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face
of such grave constitutional infirmities, the individual testimonies of private respondents cannot be admitted
against them in ally criminal proceeding. This is true regardless of absence of claim of constitutional privilege
or of the presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of
claim to the availability to private respondents of the immunity provided for in Section 5, P.D. 1886 which
issue was squarely raised and extensively discussed in the pleadings and oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other,
which grants what is known as "transactional immunity." The distinction between the two is as follows: "Use
immunity" prohibits use of witness' compelled testimony and its fruits in any manner in connection with the
criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the
witness from prosecution for an offense to which his compelled testimony relates." 32 Examining Presidential
Decree 1886, more specifically Section 5 thereof, which reads:
SEC. 5. No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience to a
subpoena issued by the Board on the ground that his testimony or the evidence required
of him may tend to incriminate him or subject him to penalty or forfeiture; but his
testimony or any evidence produced by him shall not be used against him in connection
with any transaction, matter or thing concerning which he is compelled, after having
invoked his privilege against self-incrimination, to testify or produce evidence, except
that such individual so testifying shall not be exempt from prosecution and punishment
for perjury committed in so testifying, nor shall he be exempt from demotion or removal
from office. (Emphasis supplied)
it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from
use of any statement given before the Board, but not immunity from prosecution by reason or on the basis
thereof. Merely testifying and/or producing evidence do not render the witness immuned from prosecution
notwithstanding his invocation of the right against self- incrimination. He is merely saved from the use against
him of such statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if
he sets up his right against self- incrimination. The dictates of fair play, which is the hallmark of due process,
demands that private respondents should have been informed of their rights to remain silent and warned that
any and all statements to be given by them may be used against them. This, they were denied, under the
pretense that they are not entitled to it and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the
right against self-incrimination must be invoked before the Board in order to prevent use of any given
statement against the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned
upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It
reads:
No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and
to counsel, and to be informed of such right. No force, violence, threat, intimidation, or
any other means which vitiates the free will shall be used against him. Any confession
obtained in violation of this section shall be inadmissible in evidence. (Emphasis
supplied)
The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier
discussed, this exclusionary rule applies not only to confessions but also to admissions, 33 whether made by a
witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the
commission of an offense. Any interpretation of a statute which will give it a meaning in conflict with the
Constitution must be avoided. So much so that if two or more constructions or interpretations could possibly
be resorted to, then that one which will avoid unconstitutionality must be adopted even though it may be
necessary for this purpose to disregard the more usual and apparent import of the language used. 34 To save the
statute from a declaration of unconstitutionality it must be given a reasonable construction that will bring it
within the fundamental law. 35Apparent conflict between two clauses should be harmonized. 36

But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition
sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to
refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of
refusal by imposing sanctions upon its exercise, thus:

SEC. 4. The Board may hold any person in direct or indirect contempt, and impose
appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn or
to answer as a witness or to subscribe to an affidavit or deposition when lawfully
required to do so may be summarily adjudged in direct contempt by the Board. ...

Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and
thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec.
5 requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who
makes such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the
light of the sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As a
rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the
witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is
offered. 37 Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the
witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case,
the compulsion has already produced its desired results the private respondents had all testified without offer
of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold,
therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under
Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same
law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the
privilege against self-incrimination which the same law practically strips away from the witness.

With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of
being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that
hover before Us, we have strictly adhered to the Constitution in upholding the rule of law finding solace in the
view very aptly articulated by that well-known civil libertarian and admired defender of human rights of this
Court, Mr. Justice Claudio Teehankee, in the case of People vs. Manalang 38 and we quote:

I am completely conscious of the need for a balancing of the interests of society with the
rights and freedoms of the individuals. I have advocated the balancing-of-interests rule
in an situations which call for an appraisal of the interplay of conflicting interests of
consequential dimensions. But I reject any proposition that would blindly uphold the
interests of society at the sacrifice of the dignity of any human being. (Emphasis
supplied)

Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or
innocence of the herein private respondents an issue which is before the Sandiganbayan. We are merely
resolving a question of law and the pronouncement herein made applies to all similarly situated, irrespective of
one's rank and status in society.

IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same
are DISMISSED. No pronouncement as to costs.
 G.R. No. 71537 September 17, 1987
EMILIO DE LA PAZ, JR., ENRIQUE DE LA PAZ, MANUELA DE LA PAZ, NATIVIDAD DE LA
PAZ, MARGARITA DE LA PAZ and ZENAIDA DE LA PAZ, petitioners,
vs. HON. INTERMEDIATE APPELLATE COURT, ADELAIDA S. TRINIDAD, CONRADO P.
SANTOS, JR., CESAR P. SANTOS, FELICITAS S. DE LEON, PONCIANITO P. SANTOS, SR.,
EVANGELINE S. TANSINGCO, ANTONIO P. SANTOS, and JAIME P. SANTOS, respondents.
GUTIERREZ, JR., J.:
On August 13, 1984, trial resumed. The petitioners' counsel, however, asked for still another postponement of
the cross-examination to give him a chance to go over the stenographic notes. In an order of the same date, the
hearing was again postponed. (p. 17, Court of Appeals' rollo)
During the scheduled trial on September 14, 1984, neither the petitioners, nor their counsel appeared despite
due notice. Loreto's counsel, therefore, filed a motion that she be allowed to present evidence ex parte before a
commissioner. The motion was granted and Loreto presented additional evidence ex parte in the afternoon of
the same day. On this same date, she finished the presentation of her evidence and submitted her case for
decision.

Despite this development, the petitioners upon their motion were allowed to cross-examine Loreto.
The petitioners have lumped in one amended petition an original action for certiorari to set aside the decision
of the Regional Trial Court, Branch 71 at Antipolo, Rizal, in Civil Case No. 164-A and a petition for review to
nullify the decision of the Intermediate Appellate Court in AC-G.R. SP No. 05472. On the scheduled hearing set on September 18, 1984, the petitioners' counsel failed to appear, and the cross-
examination of Loreto was deferred for the fourth (4th) time. (p. 17, Court of Appeals' rollo)
The records show the following incidents which transpired prior to the filing of the instant petition.
Finally, on November 7, 1984, the petitioners' counsel resumed his repeatedly postponed cross-examination of
Loreto. The cross-examination was, however, cut short and rescheduled again on motion of the petitioners'
On May 12, 1983, Loreto de la Paz filed a complaint against the petitioners with the Regional Trial Court of
counsel.
Rizal for a judicial declaration of ownership of a 43,830 square meter parcel of land covered by Original
Certificate of Title No. 901 of the Register of Deeds, Rizal in the name of Ponciano de la Paz with damages.
The case was docketed as Civil Case No. 164-A. Unfortunately, Loreto died on December 1, 1984. An amended complaint was filed for the purpose of
substituting the respondents, herein, they being the children and heirs of Loreto.
Loreto alleged that the subject parcel of land was among the properties adjudicated to her and her mother as a
result of a partition submitted by the heirs of Ponciano de la Paz and approved by the court in Civil Case No. At the resumption of the trial on January 21, 1985, the petitioners moved verbally to strike off the record the
1399 of the Court of First Instance of Rizal. The subject matter of Civil Case No. 1399 was Ponciano's testate entire testimony of Loreto. The motion was denied. A verbal motion for reconsideration was likewise denied.
estate.
In view of the petitioners' manifestation that they will appeal the ruling the appellate court, the trial court
In their answer, the petitioners denied that the disputed lot was among the properties adjudicated to Loreto and issued on January 24, 1985 a more detailed order denying the motion to strike off the record Loreto's
her mother. They claimed that the parcel of land was not accounted for in the probate proceedings but is testimony. (p. 17, Court of Appeals' rollo).
actually community property of the parties.
On February 11, 1985, the trial court issued another order allowing, among other things, the private
The parties, except for petitioner Enrique de la Paz, were admittedly compulsory heirs of Ponciano de la Paz respondents to present their exhibits. A controversy as to the contents of this February 11, 1985 order will be
who died in 1916. Loreto was the only legitimate child of Ponciano while: 1) Emilio de la Paz, Jr., is the son of discussed later.
Emilio, a recognized natural child of Ponciano; 2) Manuela de la Paz is the recognized natural child of
Ponciano; 3) Natividad de la Paz is the daughter of Emilio, recognized natural child of Ponciano; 4) Margarita
On February 18, 1985, the petitioners filed a petition with the Intermediate Appellate Court to annul the lower
de la Paz is the daughter of Wenceslao, a recognized natural child of Ponciano; and 5) Zenaida de la Paz, is the
court's orders dated January 24, 1985 and February 11, 1985 and to prohibit the court from further proceeding
daughter of Augusto, another recognized natural child of Ponciano. As regards petitioner Enrique de la Paz,
in Civil Case No. 164-A. The petition for certiorari and prohibition was docketed as AC-G.R. SP. No. 05472.
Loreto denied his claim that he is one of the heirs of Ponciano. The petitioners, however, allege that he is also
a compulsory heir of Ponciano, he being the son of Ponciano de la Paz, Jr., the eldest child of the decedent.
This petition notwithstanding, the lower court continued the proceedings in Civil Case No. 164-A. Thus, on
March 29, 1985, the lower court promulgated a decision in Civil Case No. 164-A declaring the private
The parties failed to arrive at an amicable settlement during pre-trial. Hence, trial on the merits followed.
respondents, the children and heirs of Loreto, as the true owners of the subject parcel of land. Damages were
also awarded in favor of the private respondents. The dispositive portion of the decision reads:
Loreto took the witness stand. She finished her direct testimony on March 12, 19984.
IN VIEW OF THE FOREGOING, JUDGMENT is hereby rendered
On April 25, 1984, the petitioners' counsel began his cross-examination of Loreto. The cross-examination was,
however, not completed. The petitioners' counsel moved in open court for the continuance of the cross-
(a) Declaring plaintiffs as the true and lawful owners of the parcel of land covered by
examination on the ground that he still had to conduct a lengthy cross-examination. (p. 17, Court of Appeals'
Original Certificate of Title No. 901 of the Register of Deeds of Rizal;
rollo).

(b) Ordering the defendants to surrender the owner's duplicate copy of Original
On May 18, 1984, Loreto's counsel filed a motion for "correction of transcript" due to some errors in the
Certificate of Title No. 901;
transcript of stenographic notes taken during the direct testimony of Loreto. The motion was granted.

(c) Directing the Register of Deeds of Rizal, Pasig Branch to cancel Original Certificate
This order granting the correction prompted the petitioners'' counsel to manifest that he would not be able to
of Title No. 901 and to issue a new one in the names of the plaintiffs;
undertake the cross-examination of the witness as scheduled. He asked for the postponement of the May 23,
1984 hearing. The trial court postponed the trial of the case to May 31, 1984 and later to July 5, and 11, 1984.
(p. 16, Court of Appeals' rollo)
 (d) Ordering the defendants jointly and severally to pay to the plaintiffs Five Hundred
Thousand Pesos (P500,000.00) as actual damages, Five Hundred Thousand Pesos
(P500,000.00) as moral damages, Five Hundred Thousand Pesos (P500,000.00) as
exemplary or corrective damages, Fifty Thousand Pesos (P50,000.00) as attorney's fees,
plus the costs; and
(e) Dismissing the defendants counterclaim. (pp. 13-14, rollo)
On June 20, 1985, the appellate court also rendered a decision in AC-G. R. SP No. 05472. The petition was
denied due course and dismissed. A motion for reconsideration was denied for lack of merit.
Initially, the petitioners filed only a petition to review on certiorari the appellate court's decision and resolution
respectively.
Upon motion of the petitioners, we admitted the amended petition which now seeks to annul the decision of
the lower court in Civil Case No. 164-A aside from setting aside the appellate court's decision and resolution in
AC-G.R. SP No. 05472.
In another resolution dated January 20, 1986, we gave due course to the petition and considered the
respondents' comments as answer.
We first review the challenged decision and order of the appellate court. The petitioners contend that the
appellate committed grave abuse of discretion when it sanctioned the trial court's orders which denied the
striking out of the testimony of original plaintiff Loreto de la Paz from the record.
A motion to strike off testimony from the record is an interlocutory order. Well-settled is the rule that
interlocutory orders may not be subjects of a petition of certiorari unless issued in patent abuse of discretion.
(See Villalon, Jr. v. Intermediate Appellate Court, 144 SCRA 443; Bautista v. Sarmiento, 138 SCRA 587).
We see no grave abuse of discretion on the part of the trial court when it issued the questioned order. True, we
have consistently ruled on the nature of the right of cross-examination, to wit:
The right of a party to confront and cross-examine opposing witnesses in a judicial
litigation, be it criminal or civil in nature, or in proceedings before administrative
tribunals with quasi-judicial powers, is a fundamental right which is part of due process.
(Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258).
xxx xxx xxx
The right of a party to cross-examine the witness of his adversary in invaluable as it is
inviolable in civil cases, no less than the right of the accused in criminal cases. The
express recognition of such right of the accused in the Constitution does not render the
right thereto of parties in civil cases less constitutionally based, for it is an indispensable
part of the due process guaranteed by the fundamental law. ... Until such cross-
examination has been finished, the testimony of the witness cannot be considered as
complete and may not, therefore, be allowed to form part of the evidence to be
considered by the court in deciding the case. (Bacrach Motor Co., Inc., v. Court of
Industrial Relations, 86 SCRA 27 citing Savory Luncheonette v. Lakas ng
Manggagawang Pilipino, et al., supra, Ortigas, Jr. vs. Lufthansa German Airlines, 64
SCRA 610)
But we have also ruled that it is not an absolute right which a party can demand at all times. This Court has
stated that:
xxx xxx xxx
the right is a personal one which may be waived expressly or impliedly by conduct
amounting to a renunciation of the right of cross-examination. Thus, where a party has
had the opportunity to cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on direct
examination of the witness will be received or allowed to remain in the record.
The conduct of a party which may be construed as an implied waiver of the right to
cross-examine may take various forms. But the common basic principle underlying the
application of the rule on implied waiver is that the party was given the opportunity to
confront and cross-examine an opposing witness but failed to take advantage of it for
reasons attributable to himself alone.
xxx xxx xxx
The case of the herein petitioner, Savory Luncheonette, easily falls within the confines
of the jurisprudence given above. Private respondents through their counsel, Atty.
Amante, were given not only one but five opportunities to cross-examine the witness,
Atty. Morabe, but despite the warnings and admonitions of respondent court for Atty.
Amante to conduct the cross-examination or else it will be deemed waived, and despite
the readiness, willingness and insistence of the witness that he be cross-examined, said
counsel by his repeated absence and/or unpreparedness failed to do so until death sealed
the witness' lips forever. By such repeated absence and lack of preparation on the part of
the counsel of private respondents, the latter lost their right to examine the witness, Atty.
Morabe, and they alone must suffer the consequences. The mere fact that the witness
died after giving his direct testimony is no ground in itself for excluding his testimony
from the record so long as the adverse party was afforded an adequate opportunity for
cross-examination but through fault of his own failed to cross-examine the witness.
(Savory Luncheonette v. Lakas ng Manggagawang Pilipino, supra; at pp. 263-267)
In the case at bar, the petitioners' failure to cross-examine Loreto was through no fault of the respondents. As
can be gleaned from the record, Loreto was available for cross-examination from the time she finished her
direct testimony on March 12, 1984 to November 7, 1984, the last scheduled hearing of the case before her
death on December 1, 1984. The petitioners not only kept on postponing the cross-examination but at times
failed to appear during scheduled hearings. The postponement of the trial on May 23, 1984 to a later date duet
o the correction of the stenographic notes of Loreto's testimony may be justified, but the same cannot be said
for the subsequent posponements requested by the petitioners. The scheduled trials before November 7, 1984,
did not push through, because of the petitioners' fault. It may also be recalled that at the scheduled hearing on
September 14, 1984 neither the petitioners nor their counsel appeared leading to the presentation of
evidence ex parte. And also during the scheduled hearing on September 18, 1984, when the petitioners were
allowed to cross-examine Loreto despite the fact that the case was already deemed submitted for decision, the
petitioners again failed to appear.
Under these circumstances, we rule that the petitioners had waived their right to cross-examine Loreto.
Through their own fault, they lost their right to cross-examine Loreto. Her testimony stands.
As regards the petition to set aside the trial court's decision, the pivotal issue hinges on the contents of the
February 11, 1985 order. The petitioners argue that Presiding Judge Benedicto "arbitrarily and whimsically
changed without notice to either party, the tenor of the order it dictated in open court, apart from injecting facts
that did not and could not have transpired on February 11, 1985, acts apparently calculated to deprive
petitioners, as in fact they were deprived petitioners, as in fact they were deprived of their right to present
evidence in their behalf." (p. 38, Rollo).
According to the petitioners, the trial court issued two conflicting versions of the February 11, 1985 order. The
order dictated in open court on February 11, 1985 states:
In view of the manifestation of the counsel for the plaintiff that he is formally re-
offering in evidence all documentary exhibits and testimonial evidence presented and it
 appearing that the transcript taken during the ex-parte hearing is already available and Consequently, the decision of the trial court in Civil Case No. 164-A must be declared null and void,
availed of by counsel for the defendant, he is hereby given ten (10) days from today to
file his objections after which this case will be deemed submitted for resolution. In view
Another issue raised by the petitioners centers on whether or not the trial court committed grave abuse of
of the fact that he will appeal the order of this court denying his motion to strike out
discretion in rendering judgment in Civil Case No. 164-A despite the pendency of the petition which sought to
from the record, the testimony of the plaintiff, Loreto de la Paz, the presentation of the
inhibit it from further proceeding with the case.
evidence of the defendants is hereby held in abeyance. (p. 29, Court of Appeals' rollo)

while the signed order dated February 11, 1985 states, to wit:
In view of the manifestation of the counsel for the plaintiff that he is formally re-
offering in the evidence all documentary exhibits and testimonial evidence presented
and after their admission he will rest his case and it appearing that the transcript taken
during the ex-parte hearing has been long available and availed of by counsel for the
defendants, he is hereby given ten (10) days from today to file his objections thereto
after which action will be taken on the admission of said exhibits. The said period
having lapsed without defendants' counsel filing his comments on the admission of the
exhibits A to Z and the sub-marked exhibits are admitted in evidence for Plaintiffs,
Defendants' counsel forthwith manifested that he will appeal to the Intermediate Court
of Appeals (sic) the ruling of this Court denying his Motion to Strike off from the
records the entire testimony of Plaintiff Loreto de la Paz who was partly cross-examined
already but who died thus his cross examination could not be completed. Said counsel
then refused to present evidence in behalf of defendants on the ground that he intended
to appeal as already alluded above the Order of this court denying the Motion in
question. The court has ruled in its Order of January 21, 1983 that inspite of the attitude
of Counsel the trial shall proceed as scheduled.
Thus, at the hearing today said Counsel failed to proceed with the trial to present his
evidence. This case shall be deemed submitted for Resolution. (p. 31, Court of Appeals'
rollo)
It is to be noted that in the dictated version of the February 11, 1985 order, the petitioners were given ten (10)
days from February 11, 1985 to file their objections after which the case will be submitted for resolution and
that the presentation of evidence for the petitioners was held in abeyance.
The appellate court did not restrain the trial court until April 22, 1985 after the petitioners presented the
certified copy of the February 11, 1985 order. (p. 35, Court of Appeals rollo). The trial court did not abuse its
discretion or commit reversible error. It is within its sound discretion to either proceed with the case in the
absence of the prayed-for restraining order to refrain from acting on the case until the higher court decides the
matter elevated. to it. the circumstances of each case dictate what action shall be take.
The final issue raised by the petitioners is with regard to the damages awarded the respondents by the trial
court.
In their complaint, the respondents asked for the following damages: 1) at least P150,000.00 as actual
damages; 2) P200,000.00 as moral damages; and 3) P50,000.00 as attorney's fees plus exemplary damages
which may be deemed just and equitable in the premises. The trial court awarded to the respondents the
following: P500,000.00 as actual damages; P500,000.00 as moral damages; P500,000.00 as exemplary
damages; P50,000.00 as attorney's fees and costs.
The questioned decision, however, is silent as to how the court arrived at these damages. Nowhere in the
decision did the trial court discuss the merit of the damages prayed for by the petitioners. There should be clear
factual and legal bases for any award of considerable damages. (See Rubio v. Court of Appeals, 141 SCRA
488).
WHEREFORE, the amended petition is partly DENIED in that the questioned decision and resolution of the
Intermediate Appellate Court, now court of Appeals in AC-G. R. SP No. 05472 are AFFIRMED. The petition
is GRANTED in part. The questioned decision of the then Court of First Instance of Rizal in Civil Case No.
164-A is SET ASIDE as null and void. The successor Regional Trial Court is directed to conduct further
proceedings and to receive the evidence of the petitioners in Civil Case No. 164-A

However, in the other version, the case was declared as already deemed submitted for resolution.

It is this second version of the February 11, 1985 order which the trial court used as justification for its
promulgation of the March 29, 1985 decision in Civil Case No. 164-A.

The record clearly shows that this second version of the February 11. 1985 order was issued without the
knowledge of the parties. In fact, on March 14, 1985, the respondents filed an urgent motion to consider the
case submitted for decision with the following allegations: 1) that in the hearing of February 11, 1985, the
petitioners were required to submit their comment or objection to respondents' offer of evidence and they were
given ten (10) days from the said date within which to do so, and thereafter to present their evidence; and 2)
that notwithstanding the lapse of more than thirty (30) days, the respondents have not submitted their comment
or objection to petitioners' offer of evidence much less have they take any move to present their evidence. (pp.
32033, Court of Appeals' rollo). the respondents would not have filed this motion if the case was already
deemed submitted for decision pursuant to the second version of the February 14, 1985 order. Furthermore, the
respondents do not rebut these allegations.
G.R. No. L-61570 February 12, 1990.
The trial court committed a grave abuse of discretion in issuing the order dated February 11, 1985, the contents
of which conflict with another order of the same date dictated in open court during the hearing of the case on
RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed
February 11, 1985. FULGADO, petitioners,
vs. HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL
PORCIUNCULA and DOMINGA MACARULAY, respondents.
The issuance of this second version of the February 11, 1985 order prejudiced the petitioners' cause. They were
deprived of their right to present evidence in their behalf.
FERNAN, C.J.:
On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook the arduous task of filing an
action in the Court of First Instance of Rizal, Pasig branch against Rufino Custodia, Simplicia Custodia, Arsenio Piguing,
Ismael Porciuncula and Dominga Macarulay for the annulment of certain contracts of sale and partition with accounting. 1 The
defendants (herein private respondents) filed their answer to the complaint with special and affirmative defenses and a
counterclaim.
After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30 in the morning. Private
respondents and their counsel failed to appear on time at the pre-trial and were subsequently declared as in default. Plaintiff
Fulgado was then allowed to present his evidence ex parte before the Deputy Clerk of Court.
Meanwhile, upon learning of their predicament, private respondents immediately filed a motion to lift the order of default on
the same day that the order was issued. The trial court denied said motion in its order of February 16, 1972. Their motion for
reconsideration was also denied. Persistently, respondents filed a petition for relief from the default order. Once more, this was
denied.
On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On appeal, however, the Court of
Appeals found that private respondents had been deprived of their day in court by the unjust denial of their motion to lift the
order of default. 2 The Appellate Court, in no less than explicit terms, said:
WHEREFORE, the decision of the court a quo is hereby set aside and the case is remanded to the
court of origin for trial on the merits, granting to the defendants the opportunity to present their
evidence, provided, however, that the evidence already presented before the commissioner shall
stand, but with the right of the defendants to cross-examine the witness who had already testified and
with the right of the plaintiff to present additional evidence that then he may decide. Without costs. 3
The Court of Appeals' decision became final and executory on June 27,1974 and the records of the case were remanded to the
trial court.
On July 3, 1975, or more than a year after the finality of the Appellate Court's decision, counsel for private respondents moved
that the trial court "include th(e) case in any date of the August and September calendar of the Court, at the usual hour in the
morning." 4
The case was set for hearing on September 16,1975. Unfortunately, the presiding judge went on official leave and the hearing
was postponed anew to January 15 and February 15, 1976. In the meantime, plaintiff Ruperto Fulgado died on November
25,1975 and was substituted by his children as party plaintiffs. Fulgado's witness, Jose Fulgado, referred to in the dispositive
part of the Appellate Court's judgment, had earlier migrated to the United States on September 16, 1974.
When the case was heard on May 4, 1976, the following proceedings transpired:
Atty Dollete:
For the plaintiff, Your Honor. If your Honor please, may I inform this
Honorable Court that this is a remanded case from the Court of Appeals for
cross-examination or presentation by the plaintiff of any additional
evidence. But we have no further evidence in this case ... except those
evidence already adduced in the lower court before it was appealed in the
Court of Appeals. It is up for the defense now to cross-examine the
witnesses.
Court (To Atty. Tuangco):
You are through with the cross-examination?
Atty. Tuangco:
Not yet, Your Honor, we were granted by the Court of Appeals the right to
cross-examine the witnesses ... . The last time this case was called for
hearing by this Honorable Court, the Presiding Judge tried to make the
parties come to a settlement, but it seems that. they could not come to such
settlement. I advised my clients to try to meet them. So now, this is the
stage where they could not agree and so we will be proceeding with the
cross-examination of the witnesses.
Atty. Dollete:
There were only two witnesses. Two witnesses were presented, one is
Ruperto Fulgado and he died already. Your Honor, the other witness was
Jose Fulgado who is now abroad for almost a year, Your Honor.
Atty. Tuangco:
I understand that the other witness was here on a visit, Your Honor. He
came back.
Court:
So, what shall we do now?
Atty. Tuangco:
So, I move to strike out the testimonies of the witnesses who testified on
the ground that we were deprived of our right to cross-examine them.
Atty. Dollete:
We will submit, Your Honor, for resolution the motion of the defendants.
Court (To Atty. Tuangco):
So, what do you want?
Atty. Tuangco:
That the whole testimonies of the two witnesses who were presented ex
parte be stricken off the record because we have not been granted the right
of cross-examining them and they are not available at this stage, Your
Honor.
Atty. Dollete:
We will submit Your Honor. We maintain, Your Honor. Our opposition is
that it hinges on the fact that defendants committed laches in their failure to
cross-examine the witness. That is our opposition.
Court:
Why?
Atty. Dollete:
There were several opportunities for them to cross-examine especially the
witness Ruperto Fulgado, Your Honor. They are with full knowledge of the
age of this witness. They could have taken steps to assert their right granted
by the Court of Appeals. Notwithstanding their knowledge about the age,
the advanced age and health condition of this witness Ruperto Fulgado,
then we maintain, Your Honor, that defendants, in a way, have committed
laches in the assertion of their right to cross-examine.
Atty. Tuangco:
The records will show Your Honor, that it was the defendants who moved
to set this case for hearing upon the remanding of the records from the
Court of Appeals.
Court:
You make a written motion and I will grant you a period of ten (10) days
within which to file an opposition and then another additional period of ten
(10) days within which to reply. Then this matter shall be deemed
submitted for resolution. But the fact is clear now that plaintiff has no more
additional evidence.
Atty. Dollete:
Yes, Your Honor.
Court:
So that in case the court favorably grants the motion of defendants and
orders the striking out of the testimonies of Ruperto Fulgado and the other
witness, together with the documentary evidence, the plaintiff had no more
evidence to offer.
Atty. Dollete:
Yes, Your Honor. We stand on the evidence on Record. 5
On June 30, 1976, the trial court issued an order dismissing the case. It decreed:
For reason stated in the defendants' motion filed on May 18, 1976, which the Court finds
meritorious, the testimonies of plaintiffs witnesses Ruperto Fulgado and Jose Fulgado, who were not
presented by the plaintiff so that the defendants could cross-examine them on May 4, 1976, are
stricken off the record and, as a consequence, in view of the manifestation of plaintiffs counsel that
he had no more witnesses to present, the above-entitled case is dismissed without pronouncement as
to costs. 6
On appeal to the Appellate Court in C.A. G.R No. 62353-R, said order was affirmed on June 30, 1982. 7 Petitioners now
question said affirmance before this Court in the instant petition for review.
The principal issue in the case at bar is the propriety of the exclusion of the testimonies given by the now deceased Ruperto
Fulgado and his witness, Jose Fulgado, who has departed for the United States, which resulted in the dismissal of the
complaint. Private respondents maintain that such testimonies are wholly inadmissible for being hearsay, because respondents
were not able to cross-examine the witnesses.
Petitioners, on the other hand, contend that while the right to cross-examination is an essential part of due process, the same adverse party was afforded a reasonable chance for cross-examination but through his own fault failed to cross-examine the
may however be waived as the private respondent have done when they allowed an unreasonable length of time to lapse from witness.
the inception of the opportunity to cross-examine before availing themselves of such right and likewise when they failed to
exhaust other remedies to secure the exercise of such right.
Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the
plaintiff or his witness, it seems a harsh measure to strike out all that has been obtained in the direct examination. 14
The appeal is well-taken.

As to the witness Jose Fulgado who is reportedly abroad, private respondents could have resorted to the various modes of
In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 8 and the cases cited thereunder, the Court, speaking through discovery under the Rules of Court to cross-examine Jose. D, During the hearing of May 4, 1976, counsel for private
Justice Muñoz Palma, has provided us with a concise overview of the right to cross-examination as a vital element of due respondents unwittingly or wittingly disclosed that they knew that Jose was in the country "for a visit" but they did not exert
process. Thus: any effort to have him subpoenaed.

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it
criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial
powers, is a fundamental right which is part of due process. However, the right is a personal one
which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of
cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed
to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on
direct examination of the witness will be received or allowed to remain in the record.
The conduct of a party which may be construed as an implied waiver of the right to cross-examine
may take various forms. But the common basic principle underlying the application of the rule on
implied waiver is that the party was given the opportunity to confr ont and cross-examine an
opposing witness but failed to take advantage of it for reasons attributable to himself alone.
Altogether, the acts of private respondents constitute a waiver, and consequently, a forfeiture of their right to cross-
examination. And having failed to make use of this right, the consequences should rightfully fall on them and not on their
adversary.
WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R dated June 30, 1982 is SET
ASIDE. The trial court is ordered to REINSTATE Civil Case No. 10256 and to allow the direct testimonies of plaintiff
Ruperto Fulgado and his witness Jose Fulgado to remain in the record. The court is further ordered to give priority to the
hearing of said case in view of the length of time that it has remained unresolved on account of procedural differences. This
judgment is immediately executory. No costs.

The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not
necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. 9 Thus the
resolution of the present case would hinge on whether or not this was an opportunity for cross-examination.

There is no disputing that where there was no such opportunity (to cross examine) and the want of it was caused by the party
offering (plaintiff), the testimony should be stricken out. However, where the failure to obtain cross-examination was
imputable to the cross examiner's fault, the lack of cross-examination is no longer a ground for exclusion according to the
general principle that an opportunity, though waived, will suffice. 10

From the records presented, it is manifest that private respondents had enough opportunity to cross-examine plaintiff Ruperto
Fulgado before his death, and Jose Fulgado before his migration to the United States. Conceding that private respondents lost
their standing in court during the time they were in default, they were no longer in that situation on June 6, 1974 when the
Court of Appeals set aside the default judgment in CA-G.R. No. 42590-R and remanded the case to the court of origin for trial
on the merits, "granting to the defendants the opportunity to present their evidence ... ." 11 This was a positive signal for them
to proceed with the cross-examination of the two Fulgados, a right previously withheld from them when they were considered
in default. But despite knowledge of Ruperto's failing health (he was then 89 years of age) and Jose's imminent travel to the
United States, private respondents did not move swiftly and decisively. They tarried for more than one year from the finality of
the Appellate Court's decision on June 27, 1974 to ask the trial court on July 3, 1975 to set the already much delayed case for
hearing "in any date of August and September ... ." 12

Such inaction on the part of private respondents cannot be easily dismissed by the argument that it is the duty of the plaintiff to
always take the initiative in keeping the proceedings "alive." At best, the argument is fatuous.

The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is
so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on
time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-
examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own
witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the
burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on
plaintiffs shoulders can be construed to extremes as what happened in the instant proceedings.

Having had the liberty to cross-examine and having opted not to exercise it, the case is then the same in effect as if private
respondent had actually cross-examined. We therefore hold that it was gross error for both the trial court and the Appellate [G.R. No. L-6204. July 31, 1956.]
Court to dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there was an alleged failure of cross-
examination. The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it CAPITOL SUBDIVISION, INC., Plaintiff-Appellee, vs. PROVINCE OF NEGROS
prejudiced the party whose only fault during the entire proceedings was to die before he could be cross-examined. The prudent OCCIDENTAL, Defendant-Appellant.
alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to
be not in that instance a material loss. 13 And more compellingly so in the instant case where it has become evident that the
 DECISION
REYES, A., J.:
The Provincial Hospital of Occidental Negros, located in the City of Bacolod, capital of the province, was built
in 1924 at a cost of about P200,000. But subsequent improvements brought the total cost to more than half a
million pesos.
The Hospital was erected on a parcel of land of more than 22,000 square meters identified as lot No. 378 of the
Bacolod Cadastre and claimed by the province of Occidental Negros as its property by virtue of a deed of sale
with donation executed in its favor by Jose Benares, former owner, as a result of expropriation proceedings. It
does not appear that a transfer certificate of title has been issued to the province. But the lot has for many years
stood in the records of the assessment office as the property of the Province or the Hospital and enjoyed
exemption from the realty tax as such.
In 1949, the Capitol Subdivision, Inc., a real estate company, claiming to be the owner of the lot, questioned
the right of the Hospital to occupy it, and when its claim of ownership was rejected, it brought the present
action in the Court of First Instance of Occidental Negros to recover possession of the lot and reasonable rents
for its use. But before filing the action, it had, in May, 1950, the lot declared in its name for assessment
purposes.
It would appear that the lot in question was part of a large tract of land known as the Hacienda Mandalagan,
formerly owned by Agustin Amenabar and Pilar Amenabar. The land consisted of several lots. In 1926 the lots
were purchased by Jose Benares, who later mortgaged them to the Philippine National Bank. The mortgage
having been foreclosed, the Bank bought the lots at a foreclosure sale and had transfer certificates of title
issued to it in 1934. In 1935 the Bank signed a contract agreeing to sell the lots to Carlos Benares for
P400,000, payable P30,000 down and the balance in ten equal installments, the title to remain in the Bank until
the price had been fully paid. In an instrument signed on the same date, Carlos Benares, on his part, assigned to
the Subdivision the rights acquired by him under his contract with the Bank. With the payment of the last
installment in 1949, a deed of absolute sale was executed by the Bank in favor of the Subdivision, and as a
result the latter was issued the corresponding transfer certificates of title for the lots, of which transfer
certificate of title No. 1798 pertains to lot No. 378, the one here in question.
In resisting the action of the subdivision, the Province put up the defense that it had acquired the lot in question
from its former owner, Jose Benares, and that the subdivision was aware of that fact when it bought the
hacienda. In support of this defense, the province endeavored to prove that in compliance with Act No. 3144,
as amended, which required the Province to provide a site for the hospital before the funds for its construction
could be released, the Province instituted condemnation proceedings, (Civil Case No. 3041) in 1924 or 1925
against Jose Benares for the acquirement of the lot in question, took possession of the same and began the
construction of the hospital; chan roblesvirtualawlibrarythat pending trial the case was amicably settled, with
the Province paying to Benares the assessed value of the lot and Benares donating to the Province so much of
the purchase price as was in excess of the assessed value; chan roblesvirtualawlibrarythat to give effect to the
settlement Benares executed a deed of sale with donation in favor of the Province, which deed was delivered to
the clerk of court and attached to the record of the case; chan roblesvirtualawlibrarythat as a result of this
transaction the lot became the property of the province; chan roblesvirtualawlibrarythat the court record of the
case, including the deed of sale and donation, was totally destroyed during the last war; chan
roblesvirtualawlibrarythat the subdivision had constructive notice of those facts and was therefore not an
innocent purchaser, knowing fully well that at the time it bought the lot this was already occupied by the
Hospital and the Hospital had been in full operation as a public institution for many years prior to the date of
the alleged acquisition; chan roblesvirtualawlibraryand that Mr. Alfredo Montelibano, the controlling
stockholder and president and general manager of the subdivision, had knowledge of those facts because
during his incumbency as first city mayor of Bacolod, the city was contributing a large sum yearly for the
support, operation, and maintenance of the Hospital.
After trial, the lower court rendered judgment in favor of Plaintiff requiring the Defendant to restore
possession of the lot to Plaintiff subject to the latter’s right to exercise the option granted in Article 361 of the
old Civil Code and further requiring the Defendant to pay rents from November 8, 1935, which all in all would
amount to P151,706.29. From this judgment Defendantappealed directly to this court. For some unknown
reason the record was elevated to the Court of Appeals, but that court, upon motion of the Plaintiff-Appellee,
certified the case here, for involving more than P50,000.
The questions for determination are (1) whether the Defendant had already acquired right or title to the lot as a
result of the alleged expropriation proceedings and deed of sale with donation, and (2) whether Plaintiff had
actual or constructive knowledge of such fact at the time it bought the property.
After going over the record, we do not feel that those questions could be justly decided on the somewhat
limited evidence actually admitted by the trial court. With the record of expropriation proceedings destroyed
together with the deed of sale and donation attached thereto, secondary proof of such proceedings and deed
should have been allowed. But presentation of that proof was effectively barred when the trial court refused to
give the provincial fiscal sufficient time to resubpoena two important witnesses, who had failed to come on the
day of the continuation of the trial for lack of notice. Those witnesses were Mr. Jose Benares (the person from
whom the Province allegedly acquired the lot) and Mr. Ildefonso Coscolluela, who, as former treasurer of the
Province, had knowledge of such acquisition. Considering the amount of the public funds and the public
interest involved, the trial court should have granted the fiscal sufficient time to produce the said witnesses. A
delay of two or three days for that purpose would not have amounted to much, and the plea that the adverse
party was incurring heavy expenses for its attorneys’ continued stay in Bacolod could have been met with a
ruling that those expenses, if reasonable, should be taxed against the party that caused them. Liberality should
be exercised in granting postponements of trial to obtain presence of material evidence and to prevent
miscarriage of justice. (Canal Oil Co. vs. National Oil Co. Cal Appeal, 66 P. 2d 197.) A litigant is entitled to
reasonable delay and opportunity to get his witnesses. (Moran vs. Leone, 129 So. 398, 1, Aa. App. 45; chan
roblesvirtualawlibraryEndnote:chanroblesvirtuallawlibrary 82, 17 C.J. S. 224.) While the granting or refusal
of motions for continuance is discretionary. that discretion must be exercised wisely with a view to substantial
justice.
Other evidence of vital importance to the case also appears to have barred.
On the question of the subdivision’s good or bad faith, Mr. Montelibano, the president and general manager
and controlling stockholder of the Subdivision, pretends that the Subdivision had no knowledge of the
expropriation or deed of sale with donation at the time it bought the land. The fiscal’s efforts to cross-examine
him on those matters were frustrated by Plaintiff’s counsel’s objections and the trial court’s rulings sustaining
those objections. The court reasoned that Mr. Montelibano was then on the stand as Plaintiff’s own witness
and could not be questioned in such a way as to make him to the Defendant’s witness. But the fact alone that
Mr. Montelibano was then testifying as Plaintiff’s witness is no justification for not permitting the fiscal to
cross-examine him on any matter that would elicit all important facts bearing on the issue. As former Chief
Justice Moran puts it —
In this jurisdiction, section 87 above quoted provided that the adverse party may cross-examine a witness for
the purpose among others, of eliciting all important facts bearing upon the issue. From this provision it may
clearly be inferred that a party may cross- examine a witness on matters not embraced in his direct
examination. But this does not mean that a party by doing so is making the witness his own accordance with
section 83.” (III Moran, Rules of Court, 3rd ed. 587.)
The trial court refused to allow the witness Jose Marco, a former deputy clerk of court, to say anything about
the expropriation proceeding in question on the excuse that his testimony on this matter would be immaterial
and incompetent. The loss of the records of said expropriation proceeding had already been established, and
section 51, Rule 123, expressly permits proof by secondary evidence.
The trial court, after thus preventing Defendant from proving the existence of the expropriation case through
the testimony of Jose Marco, willingly acceded to the presentation in rebuttal of a witness who testified to the
non-existence of the said expropriation case, thus permitting Plaintiffto prove in rebuttal what he had
refused Defendant to substantiate in defense.
The trial court appears to have had no justification in refusing to admit most of the exhibits offered in evidence
for the Defendant. Those exhibits have direct bearing on the issue of ownership.
In fine, we are persuaded that the interests of justice demand that there be further trial in this case.
Wherefore, the judgment appealed from is set aside and the case ordered remanded to the court of origin for
further trial in order that the Defendant may have an opportunity to fully prove its case, with equal opportunity
to the Plaintiff to meet such further evidence as the Defendant may present, it being understood that the
evidence already taken need not be reintroduced. No pronouncement as to costs.
G.R. No. 73751 September 24, 1986
ROMAN R. VILLALON, JR., ROMAN R.C. III, ROMAN F.C. IV, ROMAN A.C. V., JOSE CLARO C. and
ARSENIO ROY C., all surnamed VILLALON, petitioners,
vs. HON. INTERMEDIATE APPELLATE COURT (FOURTH SPECIAL CASES DIVISION), HON.
INOCENCIO D. MALIAMAN (PRESIDING JUDGE OF REGIONAL TRIAL COURT, BRANCH XXIX AT
 SAN FERNANDO, LA UNION), CATALINA NEVAL VDA. DE EBUIZA, CHILDREN OF PATROCINIO
EBUIZA (JUSTINA, MARIANO, FELICIDAD, FRANCISCO, EUGENIA, MARIA, MARCIANA, and
SIMEON, all surnamed EBUIZA), respondents.
RESOLUTION
MELENCIO-HERRERA, J.:
On May 16, 1979, Civil Case No. 2799 for "Annulment of Deed of Absolute Sale, Recovery of Possession and
Damages" was filed by private respondent Catalina NEVAL Vda. de Ebuiza, mother of the other private respondents
all surnamed Ebuiza, against petitioner Atty. Roman R. Villalon, Jr. (briefly, petitioner Villalon) and his sons, before
the then Court of First Instance of La Union (the Trial Court), for the recovery of a parcel of land located at
Urbiztondo, San Juan. La Union.
The property involved was also the subject of a Disbarment Case (Adm. Case No. 1488) previously filed on July 22,
1975 with this Court by private respondent Francisco EBUIZA, charging petitioner Villalon with falsification of a
deed of absolute sale of that property in his and his sons' favor, but which petitioner Villalon claimed to have been his
contingent fee for the professional services he had rendered to EBUIZA's parents for successfully handling Civil Case
No. 1418 entitled "Paulino Ebuiza, et all vs. Patrocinio Ebuiza, et al." before the then Court of First Instance of La
Union, Branch II. The Disbarment Case was referred by this Court to the Office of the Solicitor General for
investigation, report and recommendation where testimonial evidence was received. The case still pends thereat.
In the course of the trial of the Civil Case, petitioners introduced in evidence the testimonies of some of the private
respondents, namely, NEVAL, EBUIZA, and Justina Ebuiza San Juan (NEVAL, et als.), in the Disbarment Case for
the purpose of impeaching their testimonies in the Civil Case.
Private respondents filed a Motion to Strike from the records of the Civil Case all matters relating to the proceedings
in the Disbarment Case. Over petitioners' opposition, on September 20, 1985, the Trial Court issued its questioned
Order granting the Motion to Strike. The dispositive portion of said Order reads:
WHEREFORE, finding the motion to be well-taken, and as prayed for in the motion, all direct
references to the proceedings in the disbarment case against Atty. Villalon, Jr. are hereby
ordered striking (sic) out from the records and henceforth, further references to such matters
are barred.
The Trial Court opined that the admission of the contested evidence would violate Section 10, Rule 139 of the Rules
of Court providing that "proceedings against attorneys shall be private and confidential". It maintained that petitioner
Villalon "is not at liberty to waive the privilege of confidentiality" of the proceedings in the Disbarment Case
considering the public interest involved "even if it would serve his interest," and that Section 10, Rule 139 provides no
exception.
Their Motion for Reconsideration having been denied on October 17, 1985, petitioners, resorted to a Petition for
Certiorari, Prohibition, and mandamus before the respondent Appellate Court to nullify the Order of September 20,
1985 and to require the Trial Court to allow -the impeaching evidence to remain in the records of the Civil Case.
On February 3, 1986, respondent Appellate Court denied due course and dismissed the Petition holding that "rulings
of the trial court on procedural questions and admissibility of evidence during the course of the trial are interlocutory
in nature and may not be the subject of separate appeal or review on certiorari." Moreover, it reasoned out that,
assuming the Trial Court erred in rejecting petitioners' proffered evidence, their recourse is to make a formal offer of
the evidence under Rule 132, Section 35 of the Rules. The reconsideration of said ruling sought by petitioners was
denied for lack of merit on February 19,1986.
Petitioners now avail of this Petition for Review on certiorari praying among others, for the annulment of respondent
Appellate Court's Decision, which sustained the Trial Court Orders of September 20, 1985 and October 17, 1985, for
having been issued with grave abuse of discretion.
We find merit in the Petition.
Petitioners introduced the testimonies of private respondents' witnesses in the Disbarment Case for purposes of
impeaching their credibility in the Civil Case. 1 Petitioners claim that private respondents' witnesses "have given
conflicting testimonies on important factual matters in the disbarment case, which are inconsistent with their present
testimony and which would accordingly cast a doubt on their credibility." 2 That is a defense tool sanctioned by
Sections 15 and 16 of Rule 132 providing:
Sec. 15. Impeachment of adverse party's witness.-A witness may be impeached by the party
against whom he was called, by contradictory evidence, by evidence that his general
reputation for truth, honesty, or integrity is bad or by evidence that he has made at other times
statements inconsistent with his present testimony, but not by evidence of particular wrongful
acts, except that it may be shown by the examination of the witnesses, or the record of the
judgment, that he has been convicted of an offense.
Sec. 16. How witness impeached by evidence of inconsistent statements. -Before a witness can
be impeached by evidence that he has made at other times statements inconsistent with his
present testimony, the statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he made such statements,
and if so; allowed to explain them If the statements be in writing they must be shown to the
witness before any question is put to him concerning them .
By issuing its Order to strike, the Trial Court deprived petitioners of their right to impeach the credibility of their
adverse parties' witnesses by proving that on former occasions they had made statements inconsistent with the
statements made during the trial, despite the fact that such statements are material to the issues in the Civil Case. The
subject matter involved in the disbarment proceedings i.e., the alleged falsification of the deed of absolute sale in
petitioners' favor, is the same issue raised in the Civil Case wherein the annulment of the said deed of absolute sale is
sought.
Admittedly, said Order is interlocutory in character. However, since it was issued in patent abuse of discretion,
certiorari lies. certiorari may be availed of to contest an interlocutory order to correct a patent abuse of discretion by
the lower Court in issuing the same. 3 It may also be applied for when the broader interests of justice so require or
when ordinary appeal is not an adequate remedy,4 as in this case. The offer of evidence, suggested by respondent
Appellate Court as a remedy open to petitioners, while procedurally correct, would be inadequate and ineffective for
purposes of impeachment. The broader interests of justice would then require that petitioners be given sufficient
latitude to present and prove their impeaching evidence for judicial appreciation.
While proceedings against attorneys should, indeed, be private and confidential except for the final order which shall
be made public, 5 that confidentiality is a privileged/ right which may be waived by the very lawyer in whom and for
the protection of whose personal and professional reputation it is vested, pursuant to the general principle that rights
may be waived unless the waiver is contrary to public policy, among others. 6 In fact, the Court also notes that even
private respondents' counsel touched on some matters testified to by NEVAL in the disbarment proceedings and
which were the subject of cross examination.
ACCORDINGLY, the Court hereby SETS ASIDE respondent Appellate Court's Decision dated February 3, 1986, and
Resolution dated February 19, 1986, and directs the Regional Trial Court of La Union, at San Fernando, to allow the
testimonies of private respondents (plaintiffs below), more specifically those of Catalina Neval Vda. de Ebuiza,
Francisco Ebuiza and Justina Ebuiza San Juan, given in Administrative Case No. 1488 and all other references thereto
to remain in the records of Civil Case No. 2799 entitled "Catalina Neval Vda. de Ebuiza, Plaintiff, versus Roman R.
Villalon, Jr., et al., Defendants; Children of Patrocinio Ebuiza: Justina, et al., all surnamed Ebuiza Intervenors. "
The Temporary Restraining Order heretofore issued is hereby lifted.
G.R. No. 26708 September 29, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. ALEJO RESABAL, defendant-appellant.
VILLAMOR, J.:
The evidence shows, as an indisputable fact, that in the early morning of April 25, 1926, one Primo Ordiz died at his
own home in the barrio of Bogo, municipality of Maasin, Leyte, form the effects of an internal hemorrhage caused by
a sharp wound in the left lung, as appears from the death certificate, marked Exhibit A.
As a consequence of this, an information was filed with the Court of First Instance of Leyte in Maasin, reading as
follows:
That on or about April 25, 1926, in the municipality of Maasin, Province of Leyte, Philippine Islands, the
said accused, willfully, unlawfully and criminally, with treachery and evident premeditation, conspiring
amongst themselves and acting in common agreement and taking advantage of nocturnity, mutually aiding
each other, opened the window and killed Primo Ordiz by means of a shot from a 'Smith' 38 caliber
revolver, inflicting a wound in the upper part of the left nipple, which produced the instant death of said
Primo Ordiz.
Contrary to law.
The judge who tried the case, after having carefully analyzed the evidence, reached the conclusion that the crime
committed by the accused Alejo Resabal is that of murder, provided for and penalized in article 403 of the penal
Code, with the aggravating circumstances of evident premeditation, nocturnity and dwelling, and imposed on the
accused the death penalty, with the accessories of article 53 in case of pardon, and to pay the deceased's heirs the sum
of P1,000 by way of indemnity, with he costs of the action. He also ordered that the present case be brought to this
court for review, as provided for in section 50 of General Orders No. 58.
Counsel for the defense alleges that the trial court erred in not ignoring Glicerio Orit's testimony, and in no acquitting
the accused Alejo Resabal on the ground of reasonable doubt.
The Attorney-General in turn asks that the judgment rendered, being in accordance with the evidence and the law, be
affirmed with the costs against the appellant.
Glicerio Orit testified that on the morning of April 25, 1926, the accused, armed with a revolver, invited him to Primo
Ordiz's house in order to kill the latter, and on arriving at said house, the accused went into the ground, approached
one of the windows of the house less than a meter and a half in height, opened it and looked in. At that moment the
witness left the place, and at a distance of 15 brazas heard an explosion. Glicerio Orit's testimony as to the explosion
is corroborated by the declaration of the boy Jose Ordiz, who slept with his uncle Primo Ordiz, to the effect that early
in the morning of that day he was awakened by the noise of an explosion and saw his uncle Primon Ordiz vomiting
blood and unable to speak.
It is unquestionable, from the testimony of these two witnesses and the result of the autopsy, and above all from the
finding of the revolver Exhibit B, that the weapon exhibited at the trail of the case. This revolver was hidden by the
accused on the land cultivated by the witness Carmelo Ordiz, to whom the accused revealed it, and who, through fear
of the police, transferred it to the neighboring lot, burying it at the foot of a tree called "mabago." By following the
directions of this witness, Carmelo Ordiz, the chief of police, who investigated the case, found the revolver wrapped
in two pieces of cloth Exhibits C and C-1. The revolver was loaded with two bullets and an empty shell, and had a
rusty barrel. It must be noted that Exhibit C-1 appears to be a piece of cloth from a pair of drawers, and the chief of
police who searched the house where the accused lived, found a piece of a pair of drawers in a trunk that was in the
kitchen. Upon examination of said Exhibits F and C-1 by this court, it was found that these two pieces of cloth Exhibit
F and C-1 made a complete pair of drawers, all of which shows that the accused tore the piece of cloth Exhibits C-1
from an old pair of drawers in order to wrap up the revolver before putting it in the place indicated by the witness
Carmelo Ordiz.
This witness testified, furthermore, that on the night of April 24, 1926, the accused believing him to be still an enemy
of the deceased Primo Ordiz, and showing him the revolver Exhibit B, invited him to accompany him to do away with
Primo Ordiz. On the other hand, the witness Vicente Ambalong corroborates Glicerio Orits testimony to the effect that
early in the morning of April 25, 1926, the accused went to the house where the latter was sleeping to awaken him,
and that he then saw the accused on the staircase, calling to said Glicerio Orit.
And what is the motive of the crime? According to the evidence presented by the prosecution, some twenty days
before the incident the accused had a disagreement with the deceased because of the carabao that destroyed some
coconut trees belonging to the deceased Primo Ordiz. The accused requested the deceased to return the carabao that
was under his care, but the deceased refused to do so before he was paid the value of the trees destroyed. This
naturally produced resentment, which, among country people, is sufficient cause for the commission of the act
charged in the information.
The defense of alibi set up by the accused is not, in our opinion, sufficient to overthrow the evidence of the
prosecution; for taking into consideration the short distance between the deaceased's house and that in which the
accused slept on the night of the incident, the accused could easily have gone out of his house and returned later,
without having been noticed by his companions in the house, namely, his wife, his mother-in-law, and his sister-in-
law, aside from the natural interest these have in testifying in the accused's favor.
The defense argues that Glicerio Orit is not a credible witness, because of his having been excluded from the
information to be used as a witness for the prosecution; and, because, moreover, of the contradiction in his testimony
at the preliminary investigation and during the trial. We are of the opinion that the mere fact of having been excluded
from the information to be used as a witness for the Government, does not prevent this witness from telling the truth
in this case, especially in the absence of proof showing the interest he might possibly have in testifying against the
accused. Neither is the apparent contradiction which may be noted in his declarations before the court of the justice of
the peace, and before the court of first instance sufficient to discredit his testimony, for the simple reason that this
witness was not given ample opportunity, by a reading to him of his declarations before the court of the justice of the
peace, to explain the discrepancies noted by counsel for the accused. The mere presentation of Exhibit 1, without said
declaration having been read to the witness while he testified in the Court of First Instance, is no ground for
impeaching his testimony. (U. S. vs. Baluyot, 40 Phil., 385, 406.)
The defense also impeaches Carmelo Ordiz's testimony considering the invitation which the accused extended to him
as improbable, knowing that he was a cousin of the deceased Primo Ordiz. Under ordinary circumstances, such an
attitude would appear improbable, but not so if it is considered that the accused invited the witness in the belief that
the latter was still an enemy of the deceased, on account of certain disagreements they had over some land.
The defense also contends that the conduct of the accused in going with his family to the deceased's house on the
morning of April 25, 1926, helping in the preparations for the burial, is incompatible with his being a criminal. It is,
indeed, an old belief that the fear of the suspected party to touch the corpse was a sign of guilt. But experience has
shown that some criminals have gone to the extreme that the accused did, to avoid all suspicion of guilt.
The evidence in the record shows that guilt of the accused beyond a reasonable doubt, and he deserves the penalty
provided for in article 403 of the Penal Code. The crime committed is murder, qualified by treachery for, in the
commission of the crime, the accused employed ways, means, and forms that tended directly and especially to assure,
it, without risk to his person from any defense the assaulted party might make.
The trial court imposed the death penalty on the accused, by reason of the aggravating circumstances of evident
premeditation, nocturnity, and dwelling, without any mitigating circumstances to offset them. On this point the
opinion of the court is divided, with the result that we cannot impose on the accused the maximum penalty, or death,
in accordance with Act No. 3104, because the vote of the members of the court who took part in the discussion of the
case, as to the justice of the imposition of the death penalty was not unanimous. And, it being so, it is unnecessary to
discuss in detail the presence of the said aggravating circumstances.
In virtue whereof, we are of the opinion, and so hold, that the accused is guilty of the crime of murder, committed
with treachery, on the person of Primo Ordiz, and with the modification of the judgment on review, the penalty
of cadena perpetua is imposed on the accused, with the accessories of Article 54 of the Penal Code, the judgment of
the trial court being affirmed in all other respects, with the costs against the appellant. So ordered.
G.R. No. L-16941 October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. MATEO DEL CASTILLO, ET AL., defendants,
JOSE ESTRADA, defendant-appellant.
ANGELES, J.:
This is a review, on appeal by accused Jose Estrada, of Criminal Case No. 213-G of the Court of First Instance The record further shows that the entire case was provisionally dismissed on the ground that the rest
of Quezon, wherein the death sentence was imposed upon the said accused by the court a quo in its decision of the accused had not yet been arrested, subject to the proviso that any time the case may be
dated February 11, 1960, the dispositive portion of which reads as follows: revived for rebellion against those that might be arrested later. This Case No. 137-G is therefore a
closed case, at least provisionally as a case for rebellion.
PREMISED on the foregoing considerations the Court hereby finds the accused Jose Estrada
GUILTY beyond reasonable doubt of the crime of kidnapping for ransom as defined and punished (b) The Second Case.— Criminal Case No. 164-G, for Kidnapping for Ransom.
by Article 267 of the Revised Penal Code, as ultimately amended by Republic Act No. 1084, with
the aggravating circumstance of abuse of public office (he being then municipal councilor of
On June 26, 1956, Assistant Provincial Fiscal Villafranca filed a separate information for the
Gumaca), without any mitigating circumstance to offset it, and hereby sentences him to die by
kidnapping for ransom of Elvira Tañada de Principe, naming the thirty-three accused in Crim. Case
electrocution as provided by law, ordering his heirs after his execution, to indemnify Elvira Tañada
No. 137-G as defendants. This case was docketed as Criminal Case No. 164.
Principe or her heirs in case of her death, in the amount of P50,000.00, and to pay the costs.

The record shows that on August 17, 1956, this Court upon petition of Provincial Fiscal Jose O.
For a prefatory statement of the background facts of the case, the details of which shall be set forth later as We
Lardizabal dismissed the case against Arcadio Talavera as Lt. Alcantara and Provincial Fiscal
review the evidence, the following antecedents need be stated.
Lardizabal filed an amended information on August 16, 1956, against Lt. Alcantara and the thirty-
two persons named in the first information. In other words, Arcadio Talavera alias Lt. Alcantara
In the afternoon of February 27, 1956, Mrs. Elvira Tañada de Principe, a young, prominent patron of Gumaca, was eliminated but Lt. Alcantara was continued in his stead.
Quezon, a member of the rich, well known Principe family, was kidnapped by a band of Hukbalahaps, headed
by one Commander Pepe Alcantara. She was detained for 18 days in the Huk lairs deep in the mountains of the
The accused Antonio Campaniero alias Nelson de Rosas was discharged from thisinformation to be
Bondoc Peninsula, and was released only upon payment of a ransom of P50,000.00.
utilized as witness for the government in Crim. Case No. 213-G.

On account of the kidnapping, three(3) cases, filed one after another, were instituted by the Government
The case against Buenaventura Miel was dismissed on March 19, 1957, for insufficiency of
against the known suspects. We are presently concerned only with the last of these cases, which has
evidence.
culminated in this appeal. But for a better understanding of this case, We have to make mention of them all in
passing. And for this purpose, the statement made by the trial court in the decision appealed from will suffice.
The case against Gonzalo Mallare alias Commander Romy was dismissed on December 5, 1957,
for insufficiency of evidence.
(a) The First Case. — Criminal Case No. 137-G.

On February 25, 1958, the case against Doroteo Edungan was dismissed upon petition of Special
The first charge was a complaint initiated on March 11, 1956, by Lt. Lucas B. Apolonio of the 38th
Prosecutor Victor Santillan and Artemio Alejo and of Assistant Provincial Fiscal Eufemio A.
PC Company stationed at Gumaca and lodged with the justice of the peace court of Gumaca which
Caparros for insufficiency of evidence.
upon elevation to this Court became Crim. Case No. 137-G for the complex crime of rebellion with
kidnapping in which the information was filed by Assistant Provincial Filed Severino I. Villafranca
on April 24, 1956. On February 26, 1958, the accused Quirino Ravela alias de Leon pleaded guilty as accessory after
the fact in the crime of kidnapping for ransom of Elvira Tañada and was sentenced accordingly.
On June 4, 1956, Fiscal Villafranca amended his first information to name Arcadio Talavera as Lt.
Alcantara in the assumption that Lt. Alcantara was Arcadio Talavera. On February 1, 1960, the accused Clodualdo Camacho pleaded guilty as accessory after the fact
and was sentenced accordingly.
Later on and after the Luis Taruc case was decided by the Supreme Court to the effect that there
was no such complex crime of rebellion with kidnapping, Fiscal Villafranca moved the Court to Isidro Alpay alias Commander Bulaklak, Domingo America alias Laguimay, Ireneo Capisonda
permit him to amend his information and to charge the accused separately, one information for the alias Erning alias Lope, Benjamin de Jesus @ Amin, Ben Ramirez @ Ben, Pedro Martinez @
crime of kidnapping for ransom. Pedro, Santiago Napoles @ Nomver, @ Jaime @ Jimmy @ Jimay, @ Gelacio @ Elioso, @
Liwayway, @ Berna, @ Timoteo, @ Juan, @ De Guzman, @ Torres, @ Valencia, @ Bayas and @
Ladres have not yet been placed in the custody of the law. On February 27, 1958, the case against
On June 26, 1956, a second amended information in Criminal Case No. 137-G was filed by Fiscal
those who are still at large was dismissed provisionally.
Villafranca charging all the accused headed by Arcadio Talavera alias Lt. Alcantara with the simple
crime of rebellion.
The accused Alfredo Reyes @ Commander Fred, Emiliano Blasco @ Commander Emy, Rodrigo
@ Commander Tony, Victoriano Dayunot @ Torio and Panfilo Rosales @ Predo @ Banaag are all
On August 26, 1956, a third information was filed by Fiscal Villafranca eliminating Arcadio
reported dead.
Talavera from the information but adding Lt. Alcantara as one of the accused. The crime charged
was still for the crime of rebellion.
For all purposes therefore, Case No. 164-G may be considered a terminated case.
The record shows that this third amended information was provisionally dismissed by the Court on
October 16, 1956, on the petition of Fiscal Villafranca and Special Prosecutor Capilitan on the (c) The Third Case. — Crim. Case No. 213-G, for Kidnapping for Ransom.
ground that the evidence against the two accused Doroteo Edungan and Buenaventura Miel, who
were then the only accused placed in the custody of the law for rebellion, were not sufficient to
convict them of rebellion. On October 10, 1956, a third case was filed by a special prosecutor from the Department of Justice,
Antonio O. Capilitan, after the surrender of some of the Huks who participated in the kidnapping of
Elvira Tañada de Principe. In this third case, the special prosecutor accused Mateo del Castillo, Jose
 Estrada and Julio Ceribo and several others under assumed names or aliases of kidnapping for
ransom and this case was docketed as Crim. Case No. 213-G. This is now the case under
consideration of the Court in which the accused Jose Estrada was the only accused tried by the
Court.
The accused Jose Ceribo was discharged from this case to be utilized as witness for the
government.
The accused Mateo del Castillo has been reported dead.
The accused Romaguerra Doe @ Romaguerra was identified as Francisco Rabi and Heling Doe @
Heling was identified as Angel Veran. They both pleaded guilty upon their arraignment on
February 1, 1960, as accessory and were sentenced accordingly.
The accused Pete Doe @ Pete and William Doe @ William were identified as Francisco Lisay and
Quintin Magdaong. They also both pleaded guilty as accessory and were sentenced accordingly.
The accused Carding Doe @ Carding is reported dead.
As to the other accused, Teddy Doe @ Teddy, Nato Doe @ Nato, Mike Doe @ Mike, Inso Doe @
Inso, Essi Doe @ Essi, Kaloy Doe @ Kaloy, Loring Doe @ Loring, and John Doe, they are still at
large and have not yet been placed under arrest.
During the trial of this case No. 213-G the defense of Estrada asserted that the accused Lt.
Alcantara was already in the custody of the Philippine Constabulary and was subpoenaed as witness
for the defense but notwithstandingthe efforts of the Court this accused has not been produced by
the authorities. He is still charged in Crim. Case No. 213-G but his case has not yet been set for
hearing.
The foregoing statement of the genesis of Criminal Case No. 213-G explains why the decision appealed from
concerns only Jose Estrada (herein appellant).
Accused Jose Estrada was tried alone by the court below under the corresponding information, alleging as
follows:
That on or about the 27th day of February, 1956, in the municipality of Gumaca, Province of
Quezon, Philippines and within the jurisdiction of this Honorable Court, the aforementioned
Accused, together with (1) LT. ALCANTARA, (2) ROMY DOE @ Comdr ROMEO, (3) JOSE
MALUBAY @ Comdr PEPE, (4) GALICANO MANAOG @ Comdr BULAKLAK, (6)
DOMINADOR AMERICA @ LAGUIMAY, (7) ALFREDO REYES @ Comdr FRED, (8)
EMILIANO BLASCO @ Comdr EMMY, (9) RODRIGO DOE Comdr TONY, (10)
CLODUALDO CAMACHO @ EFREN, (11) VICTORIANO DAYUNOT @ TORIO, (12)
IRINEO CAPISONDA @ ERNING, (13) DOROTEO EDUNGAN @ DOROT, (14)
BUENAVENTURA MIEL @ TURA, (15) BENJAMIN DE JESUS @ AMIN, (16) BEN
RAMIREZ @ BEN, (17) PEDRO MARTINEZ @ PEDRO, (18) SANTIAGO NAPOLES @
NOMER, (19) PANFILO ROSALES @ FREDO @ BANAAG, (20) ANTONIO CAMPANIERO
@ NELSON DE ROSAS, (21) @ JAIME @ JIMMY @ JlMAY, (22) @ GELACIO @ ELIOSO,
(23) @ LIWAYWAY, (24) @ BERNA, (25) @ TIMOTEO, (26) @ JUAN, (27) @ DE DUZMAN,
(28) @ MENDOZA, (29) @ DE LEON, (30) @ TORRES, already charged with Kidnapping in
Criminal Case No. 164-G, under the same facts herein charged, conspiring and confederating and
mutually helping each other, did then and there wilfully, unlawfully, and feloniously through force,
threats and intimidation, kidnap ELVIRA TAÑADA DE PRINCIPE and CARMEN NOCETO,
take and carry them away from their dwellings to an uninhabited far distant forest in the mountain
of Bondoc Peninsula for 18 days confinement under their custody and control for the purpose of
demanding ransom in the amount of FIFTY THOUSAND PESOS (P50,000.00) Philippine
currency, which the said Accused did in fact receive on the 16th day of March 1956 in
consideration of which amount said kidnapped persons were released to the damage and prejudice
of the said offended parties in the said amount.
That the following aggravating circumstances are present in the commission of the offense:
(1) Superior strength; (2) in band; (3) use of unlicensed firearms; (4) in an uninhabited place; and
(5) use of Army uniforms and other insignias for disguise.
Upon arraignment on November 27, 1956, accused Jose Estrada refused to make any plea to the information
against him; hence, the trial court entered for him a plea of "not guilty." His petition for bail had been denied;
and since then, Jose Estrada has remained in confinement.
Our own examination of the record revealed that the case of the People was established thru the testimonies of
12 prosecution witnesses, namely: Elvira Tañada de Principe and Carmen Noceto, the kidnap victims;
Reynaldo Principe, Elvira's husband; Marciano Principe, Reynaldo's father; Petra Mañego, Basilio Angulo,
Beato Glinoga and Jesus Letargo who all had something to do with the negotiations between the kidnappers
and the family of the victims, which led to their subsequent release of the kidnapped victims; Antonio
Campaniero and Julio Ceribo who were both discharged from the information to be utilized as state witnesses;
Gonzalo Mallare, as against whom the case was dismissed for insufficiency of evidence; and Col. Francisco
del Castillo, Provincial Commander of Quezon at the time the information in this case was filed in court.
Stripped of unessential details, the testimonies of the principal witnesses may individually be summarized as
follows:
TESTIMONY OF ELVIRA TAÑADA DE PRINCIPE:
Elvira Tañada de Principe was inside her store on the ground floor of the house of her father-in-law in
Gumaca, Quezon, at about 4: 00 o'clock in the afternoon of February 27, 1956. She was busy estimating her
laundry bills. Three (3) men wearing uniforms similar to those worn by soldiers in the army arrived and
entered her store. One of them first inquired for the price of a pack of "Chelsea" cigarettes, and then asked for
one. As Elvira reached for the pack of cigarettes, the other two suddenly grabbed her hands and pointed their
pistols to her. They pulled her out of the store and dragged her towards the bodega of her father-in-law,
Marciano Principe, and then on to the railroad track going to the direction of the elementary school of the
town. The two uniformed men were later substituted by two others in civilian clothes who, after holding Elvira
by the hand on each side, continued running with her through the coconut plantations toward the mountains.
There were gun fires that followed, but the men continued running, taking Elvira Tañada de Principe along
with them. They told her not to be afraid, as they were just making a "show". They stopped running, however,
when the firing ceased; and soon other persons came running towards them and joined their group. One of
them gave Elvira a pair of shoes and stockings. She put them on before they continued their way, deeper into
the mountain. The leader ordered two of his men to buy bread for Elvira, but they were not able to buy any.
Instead, she was given candy. Then they continued walking all through the night stopping only at midday of
the 28th of February when they reached a sawmill site. From there, they continued walking again at dawn of
the following day until they came upon a copra kiln; and there the men prepared food. Thereafter, they
continued hiking once again until they reached the Huk lairs. There were five huts at the place, all without
walls. Elvira Tañada de Principe and Carmen Noceto were kept in the one located at the center for two weeks.
There were sixteen (16) men in the group that took Elvira and Carmen to the mountains, including the three (3)
who originally took Elvira out of her store in Gumaca. Elvira came to know their names because they had
nameplates on their breasts. The leader — who earlier asked for a pack of "Chelsea" cigarettes at her store —
was Lt. Alcantara, while those who dragged her out of the store were Gomez and Mendoza. Not long after
their arrival at the place of the huts, the kidnappers divided into two groups. Lt. Alcantara soon left the place
with seven (7) men, leaving the eight (8) others to guard Elvira Tañada de Principe and Carmen Noceto. These
men left behind were Ladres, Bayas, Gomez, Torres, De Leon, Villazar, Delgado and Mendoza. Lt. Alcantara
and Julio Ceribo came back to the place every now and then, bringing food and letters from Elvira's husband.
After the lapse of about two weeks, Lt. Alcantara finally told Elvira that she would be released. He showed her
letters from her husband, her father and her brother. And on March 15, they left the huts at about 11:00 o'clock
in the morning, with Carmen Noceto and others. They moved to another place where they waited for Lt.
Alcantara's other companions. In due time, they arrived, and Elvira and Carmen Noceto were then taken to
another place which they reached after about an hour's walk. There they met Angulo, Letargo, Erea and
Francia who had come all the way from Gumaca and brought the P50,000.00 ransom money. Elvira counted
the money, then delivered the same to Lt. Alcantara. Thereafter, Elvira and Carmen Noceto were released.
They were not accompanied by anyone of the kidnappers. Lt. Alcantara merely instructed them to follow the
course of a river until they could see a house, and there to find one who could guide them to Barrio Magisian,
Lopez, Quezon. They followed these instructions and reached the road in said barrio, where they were picked
up by a station wagon which took them back to Gumaca at about 5:00 o'clock in the afternoon of March 16,
1956.
TESTIMONY OF CARMEN NOCETO:
In the afternoon of February 27, 1956, Carmen Noceto was at the house of her sister near the elementary
school in Gumaca. She saw two persons running on the railroad track, leading Elvira Tañada de Principe by
the hands. Suddenly, a "soldier", also on the railroad track and called her out of the house. Pointing his gun at
her, the "soldier" pulled her by the hand and dragged her along, telling her that she would just accompany
Elvira Tañada de Principe. She could not refuse; she was greatly terrified. Her father who was then present was
stunned for the "soldier" also pointed his gun at him. She was taken, along with the group of Elvira Tañada de
Principe, to the far away mountains she had never reached before. They walked all night, then for two days
more, resting only when they took their meals. They finally stopped walking, only when they reached a place
where there were five huts without walls. She and Elvira Tañada de Principe were kept in one of these huts
together during the eighteen days that they were held in captivity by their kidnappers. They were allowed to go
home only after the arrival of the P50,000.00 ransom money which was brought by Manoling Letargo, Basilio
Angulo and two others whom she did not know. Before their release, they were guarded by several men,
among them De Leon, Angelo Veran @ Villazar, Antonio Campaniero @ Nelson and Julio Ceribo @ July.
Carmen Noceto did not know Elvira Tañada de Principe before the kidnapping. She came to know her only
when they were kept together in one hut in the mountains. They became intimate with one another later, and
Elvira allowed her to read the letters sent to her by her husband while she and Elvira were held captives.
TESTIMONY OF BEATO GLINOGA:
Beato Glinoga was asleep in his house in Barrio Villa Tañada, Gumaca, on the night of March 4, 1956, when
he was awakened by his barriomate, Leon Calvelo. The former was informed by the latter that some soldiers
wanted to see him. Glinoga obliged, and went with Calvelo to the latter's place which was about half a
kilometer away, to meet the soldiers referred to by Calvelo. He did meet them at the place which was dark; so
much so that altho he spoke with one of the supposed "soldiers", Glinoga was not able to recognize any of
them. Nevertheless, the person with whom Glinoga spoke introduced himself as Lt. Alcantara, at the same time
identifying himself and his companions as the ones who had kidnapped Elvira Tañada de Principe. Lt.
Alcantara then asked Glinoga if he could deliver a letter to the Principes in Gumaca, to which Glinoga
consented. Lt. Alcantara warned him not to reveal that he had seen them to anybody. He also instructed
Glinoga to see accused Jose Estrada first before delivering the letter, so that he (Estrada) could accompany him
to the house of the Principes, and then to the mountains in Villa Tañada where Lt. Alcantara would meet them
later, for according to the letter, Estrada knew what it is all about. Glinoga was warned further, that should he
fail to contact Estrada, he should not tell anybody about it, but should proceed directly to the house of the
Principes in Gumaca, and then meet him (Lt. Alcantara) later in the mountains.
Pursuant to such instructions, Glinoga left Villa Tañada early the following morning and proceeded to the
town of Gumaca, to deliver Lt. Alcantara's letter to the Principes. He tried to locate Estrada when he reached
the town, but he was not able to find him; so, Glinoga went directly to the house of Marciano Principe and
delivered the letter to the old man in the presence of the other members of the family. Marciano Principe
immediately prepared a letter in answer to Lt. Alcantara's note. He then gave it to Basilio Angulo who was at
the house of the Principes at the time, requesting Angulo to go with Glinoga back to Villa Tañada and see Lt.
Alcantara. Angulo agreed. He went with Glinoga to the mountains in Villa Tañada. They reached the Huk lairs
at about 7:00 o'clock in the evening of that same day, and they were met by Lt. Alcantara after Glinoga had
signalled three times with his flashlight. Basilio Angulo then had a conference with the Huk leader. Asked by
one of Lt. Alcantara's men where accused Estrada was, Glinoga gave the information that he was not able to
find him in town.
TESTIMONY OF ANTONIO CAMPANIERO @ NELSON DE ROSAS:
Antonio Campaniero joined the Hukbalahap organization on August 25, 1952, under the Huk name @ Nelson.
He served under various Huk Commanders in the field. From 1955 up to the time of his surrender on July 18,
1956, he was under the command of Huk Comdr. Teddy Corazon, head of the Organizers Brigade (OB),
operating near the mountains of Gumaca, Quezon.
Sometime during the first week of February, 1956, Comdr. Teddy ordered Nelson and another Huk, @ Fredo,
to contact the accused, Councilor Jose Estrada of Gumaca, and inform the latter that Huk Lt. Alcantara (head
of the "Tadtad Unit or G-Men") and Comdr. Teddy Corazon wanted to meet him (Estrada) in Barrio Biga.
Nelson and Fredo complied with the order; Fredo talked with Estrada in Gumaca, as Nelson stood guard.
Estrada showed up in Barrio Biga, three days later, at about 2:00 o'clock in the afternoon. Aside from Lt.
Alcantara and accused Jose Estrada, there were other Huks present during the meeting, among them, Comdr.
Teddy, Comdr. Emy, @ Romy, @ Fredo, @ July, @ Sonia and @ Nelson. Estrada was asked by Lt. Alcantara
who the richest man in Gumaca was, and the former answered that "he would suggest the Principe family"
(ang maimumungkahi ko po ay ang pamilya Principe). Asked by Lt. Alcantara if he was referring to Reynaldo
Principe, Estrada answered that if Reynaldo Principe were the one to be kidnapped, it would be difficult for the
family to ransom him for the reason that most of the properties of the Principes were in his name. Instead,
accused Estrada recommended his wife, Elvira Tañada de Principe, who could easily be ransomed. Lt.
Alcantara agreed to the suggestion of Estrada saying, "if that is the case, yes, and you will be informed when
the kidnapping will take place," to which Estrada answered: "All the time you can depend upon me." Estrada
then left the place that same afternoon at about 5:00 clock, after he and Lt. Alcantara had talked about politics.
Sometime thereafter, Comdr. Teddy informed Nelson that the latter, together with others in their Unit, would
be "borrowed" by Lt. Alcantara to supplement the men of the "Tadtad Unit" and join them in the execution of
the plan to kidnap Elvira Tañada de Principe. And thenceforth, Nelson began receiving orders directly from Lt.
Alcantara.
In the afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio Biga and entered the
town proper of Gumaca, Quezon. Alias Essi, @ Loring and @ Nelson stood guard near the railroad station.
After taking Elvira Tañada de Principe, they fled and went through the mountains for three days and three
nights, with short stops to rest at some points on the way. They hid Elvira Tañada de Principe in Barrio Laguio
between the municipalities of Lopez, Gumaca and Macalelon. Carmen Noceto was also taken by them to the
mountains with Elvira that same day.
On July 18, 1956, @ Nelson surrendered to the authorities. He did not know then what the penalty for
kidnapping for ransom was. He was investigated in Camp Natividad on July 22. Having just surrendered then,
he was afraid to be implicated in the Principe kidnapping therein. Later, he was investigated again in Lucena.
He then decided to tell the truth and did not mind anymore the consequences. He gave his statement (Exh. X)
wherein he revealed his participation in the Principe kidnapping case and the role played therein by accused
Jose Estrada, on September 5, 1956. Having known the truth from the said statement, both the investigator and
the prosecutor then told Nelson that he would be a witness against Estrada after his discharge from the
information. He was later arraigned on November 20, 1956.
In the month of January, 1957, Antonio Nieva, brother of then Chief of Police, Ricardo Nieva of Pasay City,
met @ Nelson near the house of Col. del Castillo, Provincial Commander of Quezon. They had a sort of
conference. Nieva promised Nelson to work out his case with Malacañang, should he agree not to testify
against Estrada in court. Nieva urged him to deny the truth of his statement (Exh. X) when the trial comes, and
to testify that he had executed it only because he had been maltreated, rewarded and given promises. Nieva
gave him P20.00 on that occasion.
Nelson at first denied having written Exhibit 2 (a letter signed by Nelson addressed to Estrada, on January 24,
1957), wherein Nelson appears to be telling Estrada that they were then in a bad fix; that Col. Castillo had
come to know that Congressman Roces of the CAFA was coming to see them, and he believed that Estrada
was the one who had written the congressman, and then caused Nelson and his companions to make a "turn
about;" that because of that suspicion of Col. Castillo, they were no longer permitted to talk with any visitors;
that Nelson, Gregana and Pedro Masilungan — Estrada's former adversaries in the Barretto case — have all
agreed to make a "turnabout", and that the Fiscal had been informed that they really did not know Estrada.
Later, however, he admitted that he was the one who wrote it. On January 25, 1957, Nelson sent Estrada
another letter, Exhibit 3 (Nelson appears to be urging Estrada to write and complain to the CAFA; to give them
help so that they may be able to deny the truth of their "statements" which the PC investigations had forced
them to sign; and to request Nieva to intercede in their behalf in Malacañang in order to put an end to the
doings of the Provincial Commander in Quezon). On January 27, 1957, Nelson wrote another letter, Exhibit 10
(styled "to whom it may concern," Nelson appears to be declaring here that he and his companions knew
nothing about the kidnapping of Elvira Principe, much less, the alleged conference with Estrada regarding the
same; that they signed their "statements" only because they have been threatened, the investigators telling them
that they would be prosecuted if they would not cooperate with the Government; that they had been required to
drink plenty of water; that they had been made to testify against persons like Estrada, with the promise of a
bright future and of money; and that Col. Castillo was really mad at Nieva. Nelson appears to be requesting
Antonio Nieva also for "cigarette money" and for his letters to be returned to him). Nelson wrote another letter
on the same date, which he signed with the name of Pedro Masilungan. (This letter, Exh. 1, purports to show
that Pedro Masilungan had also been forced to sign his "statement" and to testify against Estrada by Capt.
Zita). Nelson explained that he wrote to Estrada because he had been coerced by two insular prisoners who
were allowed to enter his cell, warning him that his life would be in danger, should he fail to do so. He wrote
Exh. 3 only after the said prisoners had talked to him and to Melchor Gregana and Julio Ceribo who were with
him in the same cell at the time.
A few days thereafter, probably on January 31, 1957, Nelson, along with Julio Ceribo, @ Sonia, Pedro
Masilungan, Antonio Batanes and others, was taken by Col. Castillo before Col. Yan at Camp Crame. He then
affirmed the truth of the contents of his statements (Exh. X) before the said official. He did the same when he
was taken before General Cabal who examined him on the said statement. He, likewise, affirmed the truth
thereof before President Ramon Magsaysay before whom he was seen in the office of Secretary Balao at Camp
Murphy. He did not mention the letters he had written to Estrada then, because the contents of said letters were
false and he was afraid to tell any lies before the highest authority of the land. He stated in those letters that he
did not know Estrada, because he merely wanted to make Estrada believe that he would really make a "turn
about". But the same is false; it was only the idea of Antonio Nieva. Nieva had told them that Estrada was ever
willing to give them help, that is why Nelson and his companions agreed to mulct him. Thus, in one of the said
letters, Nelson had asked Estrada for "cigarettes money".
Nelson had been discharged from the information on March 20, 1957; but he was still under PC custody
because he had demanded such protection pending the termination of the case.
TESTIMONY OF JULIO CERIBO:
Julio Ceribo testified that he was a surrendered Huk; he joined the Hukbalahaps in 1946; he served under
various Huk Commanders in the field; in 1953, he was assigned as a member of the unit — headed by Lt.
Alcantara — with the old man Mateo del Castillo, the highest in command; he knew about the kidnapping of
Elvira Tañada de Principe because he was with Lt. Alcantara when they kidnapped her; but even before the
actual kidnapping, he already knew about it because there was a conference in Barrio Biga where it was agreed
to kidnap her because she was the one pointed to by Estrada; first, Lt. Alcantara approached Comdr. Teddy
Corazon, and then the latter ordered Huks Nelson and Fredo to contact Estrada in the poblacion; three days
after, Estrada came to Barrio Biga and conferred with Lt. Alcantara, Comdr. Teddy Corazon, Comdr. Emy and
others; Estrada was asked by Lt. Alcantara then as to who was the richest in Gumaca, and Estrada suggested
Elvira Tañada de Principe because she could easily be ransomed; Estrada explained that if it were her husband
to be kidnapped, it would be hard for the family to ransom him because the properties of the Principes were in
the name of Elvira's husband, Reynaldo Principe; Lt. Alcantara agreed, and about one week after that
conference, they came down to Gumaca and took Elvira; he stood guard in one of the streets in the town
during the kidnapping; one of his companions took along Carmen Noceto on the way so that Elvira Tañada de
Principe would have a companion; it was about 5: 00 o'clock in the afternoon of February 27, 1956, when they
kidnapped Elvira; there were 16 of them who executed the said kidnapping, among them, Lt. Alcantara, Nato,
Mike, Heling, Nelson, Emilia, Carding, Payat, Efren, another Efren and Del Moro; they took Elvira and
Carmen to the mountains between Macalelon and Lopez, Quezon; they hid them there for two weeks in one of
five huts they built; Elvira was later ransomed by her husband; Basilio Angulo and three other persons brought
the ransom money of P50,000.00, after which both Elvira and Carmen Noceto were released; they kidnapped
Elvira Tañada de Principe because they were in need of a large sum of money; on August 7, 1956, he was with
the Huks that had an encounter with the government forces in Usiwan Lucban, Quezon; there he was wounded
in the right foot, and soon, unable to withstand the deprivations anymore, he decided to have a "new life"; he
proposed to surrender to the Mayor of Majayjay, Laguna, thru the intercession of Juan Cuates of Barrio
Botocan; he had no chance to talk with the Mayor, however, because when they came to get him, the BCT
soldiers were the ones who got hold of him first, and they took him directly to their headquarters in Majayjay
Laguna; from there, he was taken to Canlubang where he was questioned as to when he first joined the Huks;
then he was transferred to Lucena City where he was investigated by Eddie Recuenco; after that he was
brought to the Court of First Instance of San Pablo where he was charged of rebellion; but later he was
discharged from the information thru the efforts of his brother who secured the services of Atty. Ribong; his
brother showed to him his discharge papers, but he was still kept in the stockade at Lucena City with Nelson,
he was not released; and when he was investigated there in connection with the kidnapping of Elvira Tañada
de Principe, he had to admit; at first he wanted to deny it, but when Nelson pointed to him, he was frightened
and had to tell the truth — that he was with the group that kidnapped Elvira — that is why he was included in
the information in this case; but when he was arraigned, he pleaded "not guilty", assisted by one Atty.
Gonzales; he pleaded "not guilty" to the charge because he knew that kidnapping is a very serious crime, for
even up in the mountains they had been told; that the penalty for kidnapping was severe and "we had better be
dead than caught alive;" but the truth is he was really with the kidnappers who took Elvira Tañada de Principe;
he knew Atty. Franco, the latter introduced himself to him and told him that he was his counsel; they first met
in Lucena City, then for a number of times later in Gumaca, Quezon where they talked about his case; he told
him (Atty. Franco) that he could not deny the circumstances because they were all true; they met again after
that in the stockade in Lucena when Atty. Franco brought some typewriter papers which he was asked to sign;
the papers (Exh. 16) was shown to him, but he would hardly read it because it was held by Atty. Franco far
from his face; they were in the kitchen of the stockade then, and Atty. Franco told him to sign it at once
because the soldiers might come; he insisted that he should sign it because he was his lawyer, and it was for his
benefit — for his acquittal; but he had no hand in the preparation of that document, and its contents are not
true; he met Atty. Franco again in Majayjay later when he was granted leave; Atty. Franco instructed him to go
to Manila because he would prepare an affidavit, but he did not go there, he left Majayjay immediately even if
he had not fully enjoyed his 19-day leave; he later told Capt. Alejo (government prosecutor) that Atty. Franco
had made him sign Exh. 16; its contents, except for his age, are not true; for the truth is that he knew
everything about the kidnapping of Elvira Tañada de Principe; the document was already prepared when it was
shown to him by Atty. Franco, and the latter compelled him to sign it; when he was at the stockade in Lucena
with Nelson, he knew that Nelson was writting letters, and that he (Nelson) was sign their names on the letters,
but Nelson never showed the letters to him; he came to know the letters to accused Estrada only when the said
letters were later discovered; he knew Col. Yan, he was taken before him at Camp Crame; Col. Yan asked him
whether or not his declarations in his statement (Exh. H) were true, and he confirmed them; he was next taken
before Gen. Cabal, before whom he declared that he had executed Exh. H voluntarily, i.e., that he was not
maltreated by the PC; later he was taken before the late President Magsaysay in the office of the Secretary
Balao, and there, he also affirmed the truth of his statement before the President.
TESTIMONY OF GONZALO MALLARE:
Gonzalo Mallare testified that he was a former Huk, he surrendered to the authorities on March 20, 1957; he
joined the Huks in Manila, as early as April, 1948; in December of that year, he was apprehended by the PC,
and was maltreated; they released him, later, however, because the Communist Party had then not yet been
declared illegal; but after that he went up the mountains, and from the position of mere clerk in the Manila
office of the Huks, he rose to higher positions; he was again apprehended by the PC in 1949, and again he was
released in February, 1950; thereafter, he rejoined the Huks in the mountains; in 1955, he was educational
chairman of RECO 4 — charged with the duty of indoctrinating the people with the tenets of the HMB, which
he learned from Dr. Jesus Lava — with jurisdiction in the province of Rizal, half of Laguna, and the whole
province of Quezon; about May 1, 1954, as he and his men were passing thru Barrio Labnig Gumaca, Quezon,
he was introduced to accused Estrada by Huk Comdr. Tony who was then operating in the Bondoc Peninsula;
Estrada told him then that he was a friend of the Huks and the civilians, and that he was influential with the
Army; Estrada told him further, that if he could be of help to him, he would do it; remembering that he was in
need of a typewriter and a mimeographing machine then, he asked Estrada if he could help him procure them
for him, and Estrada promised to do so; in the afternoon of that same day, he gave P650.00 — P500.00 coming
from him, and P150.00 coming from Comdr. Onoy — to Comdr. Matta, for delivery to Estrada; he knew that
Estrada received the money for, soon, he received the typewriter and the mimeographing machine, Comdr.
Matta informing him then that Estrada had sent him (Matta) a letter stating that the amount given was P43.00
short of the cost of the typewriter and the mimeographing machine, aside from the expenses of the two persons
who had brought them; this typewriter and mimeographing machine he acquired thru Estrada's help, was
delivered by him to the 26th BCT when he surrendered; he met Estrada in about a week before February 23,
1956, at noon, in Barrio Biga, Gumaca, Quezon; he was with Comdr. Teddy then, in his way to contact a
certain teacher who had previously promised to help him buy some supplies; he failed to contact the teacher,
and as he approached Lt. Alcantara to bid him goodbye, he heard the conversation between Lt. Alcantara and
accused Estrada; Lt. Alcantara asked Estrada if Elvira Tañada de Principe was the richest woman in Gumaca
who could be kidnapped, and Estrada answered that she was; that was all that he heard; Lt. Alcantara then
borrowed some of his men and firearms; and when his men rejoined him later, they reported to him that they
had participated in the kidnapping; he recalled that he came from Barrio Malimatik, Lopez, when he went to
Barrio Biga, Gumaca; he was with Comdr. Emy; those present in that meeting in Barrio Biga, Gumaca,
Quezon were Estrada, Lt. Alcantara, Comdr. Teddy Corazon, Emy, Fredo and others; on March 20, 1957, he
surrendered the following day his affidavit was taken by an investigator; it was a very long one, but he
purposely did not make any mention about the meeting in Biga, Gumaca, where he saw and heard the
conversation during the meeting between Estrada and Lt. Alcantara, because he did not want his name linked
with the latter; he wanted to avoid any mention about the kidnappings in the Bondoc Peninsula, because he
feared that he would be included in it; that is why, when he was taken before Secretary Balao in Camp
Murphy, he told him not to ask him about the kidnapping; but when he later met Antonio Campaniero @
Nelson, Melchor Gregana @ Rony and Julio Ceribo @ July who have knowledge of the secrets of these
kidnappings, and the purchase of the typewriter and the mimeographing machine thru Estrada, and after
knowing that Nelson, Ceribo and Angel Veran were already accused of the kidnapping, he decided to reveal
the matter; and he believed that if the government were to be convinced of his loyalty they would realize that
he had nothing to do with all the kidnappings in the Bondoc Peninsula; that is why, since his surrender, he had
been helping the Army, in its campaign for peace and order; he had contacted his former companions in the
Bondoc Peninsula so that they may return and live peacefully; on November 27, 1957, about 92 of them
surrendered.
Other witnesses testified for the prosecution, but their testimonies deal largely on how the ransom money of
P50,000.00 was finally agreed upon and delivered to Lt. Alcantara thru couriers. Thru them, the letters of Lt.
Alcantara to the Principes and vice versa (Exhibits A to E) and the photograph of Lt. Alcantara (Exh. F) were
identified. This picture and other exhibits, where admitted as evidence for the prosecution.
For his defense, accused Jose Estrada denied his complicity in the commission of the kidnapping of Elvira
Tañada de Principe in the afternoon of February 27, 1956. He swore that he had never been to Barrio Biga,
Gumaca, in the month of February, 1956, much less ever conferred with any Lt. Alcantara for the alleged
purpose of pointing to Elvira Tañada de Principe as the best kidnap victim in Gumaca. His testimony may be
reduced as follows: he knew Elvira Tañada de Principe; her family was his neighbors, and his younger brother,
Fernando, was the godson of Elvira's father; he was elected councilor of Gumaca from 1948 to 1951; again he
was elected councilor for the term 1956-1960; he was a recognized guerrilla and a pensioner of U.S.
Government; he belonged to the following civic organizations: President, Gumaca Club 37; Worshipful Master
of the Masons; Chairman, Boy Scouts Organization; President, PTA District league; President (twice), Purok
Castillo; Vice President, Jaycees of Gumaca; Chairman, Civilian Affairs Organization; and Vice Chairman,
Red Cross Campaign in 1951 for Quezon Province; the barracks of the 8th BCT in Gumaca was constructed
through him; he was the moving spirit in the construction of Camp Natividad in 1948, which now houses the
38th PC Company; he joined the pacification campaign in the towns of Quezon which brought about the
surrender of several firearms; he exerted efforts for the construction of the Army Officers Quarters of the 26th
BCT in Calauag, Quezon; he is an informant of the Philippine Army; as such informant, he had caused the
arrest of several persons; and he was commended by Col. Baltazar for his effort and cooperation with the
Army; he came to know prosecution witness Antonio Campaniero alias Nelson only in court, and it is not true
that he and Huk Fredo came to his house to deliver the message of Lt. Alcantara; Nelson sent him letters
during his confinement in the provincial jail of Quezon, and he had sent them, to Congressman Roces of the
CAFA; he did not know also Huk Comdr. Teddy Corazon, for he came to know him only in court; Teddy
Corazon told him in jail than that it was not true that he had instructed Huk Nelson and Fredo to see him
before; on November 25, 1956, he met prosecution witness Julio Ceribo in jail, and the latter confessed to him
that he (Ceribo) did not know him (Estrada), and that Ceribo said he merely implicated him because the PC
had forced him to include him; detained prisoners Gutierrez and Mangubat were present when Ceribo told him
so; he likewise did not know Huk Gonzalo Mallare (prosecution witness) before the trial, and it is not true that
they met each other before; there is no truth in Mallare's testimony that he (accused) purchased a typewriter
and a mimeographing machine for him; in fact, when he learned that the said typewriter and a mimeographing
chine was loaded in one of his trucks for delivery to the Huks, he informed Captain Daza of the Army about it,
only that Capt. Daza happened not to be there at the time; there is also no truth in the testimony of Beato
Glinoga; this prosecution witness, as a matter of fact, begged his forgiveness after testifying against him, when
they met in the office of the Chief of Police of Gumaca; at the time, Col. Castillo came along, and finding them
together, threw out Beato Glinoga and then challenged him (Estrada) and his brother to a fight; in fact, Beato
Glinoga became his own witness after the relief of Col. Castillo as provincial commander of Quezon; he was
combat officer in the guerrilla forces; charges of murder were filed against him after liberation, but he had
been given the benefits of the guerrilla amnesty; he was also accused in the Barretto kidnapping case, but his
participation there was only that he had contacted the kidnappers at the behest of the family of the victims, for
purposes of reducing the amount demanded by the Huks; on the day of the kidnapping of Elvira Tañada de
Principe, he was at home; upon learning about it, he helped the family in raising the ransom money, he was the
largest copra dealer in Gumaca; his customers owed him not less than P60,000.00; Elvira Tañada de Principe's
father-in-law, Marciano Principe, was also one of the largest copra dealers in the town, but there were other
large copra dealers there; he knew, thru the newspapers, about the other kidnapping cases in the Bondoc
Peninsula — the kidnapping of Ex-Mayor Yumul of Lopez, of Wee King of Catanauan, of the Barrettos of
Gumaca, of De Leon of Catanauan and of Elvira Tañada de Principe of Gumaca; he (Estrada) had not been the
victim of kidnapping. Asked by the court whether kidnappings disappeared in Gumaca after his arrest, accused
Estrada refused to answer.
ELISEO RAMOS, a detained prisoner for rebellion in the provincial jail of Lucena City, testified that he knew
prosecution witness Julio Ceribo; they were both Huks, and had occasion to meet each other in the mountains;
the last time he met Ceribo was on November 25, 1956, when Ceribo was also confined in the provincial jail of
Lucena; he asked him (Ceribo) then why he was detained, and the latter answered that he was being used as
witness against accused Estrada; there were many detention prisoners at the time they talked to each other,
among them were Hilarion Gutierrez, Juanito Bautista, Cenon Entiosco and Pedro Masilungan; during the
course of their conversation, accused Estrada appeared, and he asked Ceribo if he knew him; Ceribo then told
Estrada that he did not know him; asked why he was going to testify against Estrada when according to him he
did not know the said accused, Ceribo answered that the investigators had promised to discharge him from the
complaint, and that was the only way he (Ceribo) could save himself; and Ceribo told him: "Ikaw ang tumayo
sa aking kalagayan kulang lamang akoy patayin sa bugbog;" Ceribo further confided to him that had he known
such treatment would happen to him, "he would not have surrendered."
Other witness — PEDRO MANGUBAT, a co-accused of Estrada in the Barretto kidnapping case; CENON
ENTIOSCO, a prisoner serving sentence for robbery with rape and physical injuries, and also for illegal
possession of firearm; and HILARION GUTIERREZ, another detention prisoner on charges of murder and
robbery of which he was later convicted — testified that they were all in the provincial jail of Quezon when
prosecution witness Julio Ceribo was brought in there; that they all heard the conversation between Ramos and
Ceribo on the one hand, and between Ceribo and accused Estrada on the other hand, and that they knew that
Ceribo had told accused Estrada then that he (Ceribo) did not know Estrada.
Col. ESTANISLAO BALTAZAR testified that in 1952, he was commanding officer of the 26th BCT,
stationed in Calauag, Quezon; in one of the meetings he held in the town hall of Gumaca, asking the people to
cooperate with the Army in its campaign against the dissidents, one of those present stood up and said, "How
can you expect the people to help the Armed Forces when they do not treat the barrio people well, they are
taken to the headquarters of the Army and there they are maltreated and compelled to admit crimes which they
did not commit?"; he knew later on that that man who had spoken was Councilor Estrada; and soon he
solicited his help; Estrada rendered valuable services to the Army then, for he had extensive connections with
the barrio people and he supplied valuable information as to the movements of the Huks in the place; and in
recognition of his services, he gave Estrada a written commendation (Exh. 18). Col. Baltazar admitted tho that
the Huks were very active in the place during his stay there as BCT Commander, and that they (the Huks) had
an upper hand. He admitted further that the information supplied by Estrada was always late, that was why
they had no encounter with the dissidents. They almost caught up with the Huks in a barrio when they went to
the place to verify the report made by Estrada, for the residents informed them that the Huks had left only
about an hour before their arrival.
Major FELIPE BRUAN declared that he was formerly stationed in Gumaca, and there he came to know
Estrada. The latter gave the PC then valuable information regarding the movements of the Huks. In May, 1954,
Estrada reported to them the presence of Huks near the boundary of Lopez and Gumaca, and they went to the
place to verify the report; unluckily, the Huks had left the day before when they reached the barrio they had
visited. He was in command of the PC Detachment in Gumaca when Elvira Tañada de Principe was
kidnapped. Estrada did not make any report then about the presence of the Huks in Gumaca before the
incident. But after the incident, he (Bruan) received news about it and he immediately pursued the kidnappers.
There was an encounter that ensued when they had contact with the Huks at about 6:00 or 7:00 o'clock in the
evening. There was firing for about 30 minutes, after which they returned to the town because they soon lost
contact with them.
Capt. JUAN DAZA testified that he was once stationed in Gumaca as commanding officer of Love Company,
26th BCT; even before he was stationed at the place, he already had news about the valuable services of
Estrada to the Army; so, he sought Estrada's help when he moved to the place; and as expected, Estrada
rendered valuable services; one time, Estrada informed him that there were three (3) amazons who were
willing to surrender, and he soon brought them — Huk Amazons Liwayway, Leonor and Amy — to his camp;
these amazons were all wives of Huk Commanders; in 1954, they were able to kill a Huk named Absalon at
Barrio Sastre thru the information supplied by Estrada; on May 2, 1954, they received information from
Estrada that the Huks had loaded some things on one of his trucks, for delivery to Barrio Labnig; he sent men
to verify the report and there was an encounter; they did not catch up with the Huks, however; and according
to Estrada, the things loaded on his truck were a typewriter and a mimeographing machine.
The defense later placed the victim, Elvira Tañada de Principe, on the witness stand. From her testimony, the
defense elicited the fact that during her confinement in the mountains, Lt. Alcantara inquired from her, if she
was the wife of Teodosio Principe. Upon her answer that she was not the wife of Teodosio Lt. Alcantara then
asked her if she was the wife of Reynaldo Principe, to which question, she gave an affirmative answer.
QUIRINO RAVELA, one of the companions of Lt. Alcantara in the kidnapping of Elvira, and who had been
sentenced already in this case upon a plea of "guilty" testified that while in the mountains, he overheard the
conversation between Lt. Alcantara and Elvira Tañada, wherein Lt. Alcantara asked the victim if she was
"Doctora". To this question, Elvira answered that she was not the doctora; she cried then and said, "I am the
poorest among the Principes."
MARCELO BARRAL, a resident of Gumaca who sells copra to the Principes, testified that he was in the
house of Marciano Principe when Elvira arrived from the mountains after her release. He then heard Elvira talk
to her sister Consuelo and exclaim in Tagalog: "Ako pala Ate Consuelo ay pinagkamalan, at ang akala pala ay
ako ang asawa ni Dosio."
In September, 1958 (after about one year and three months after he had testified for the prosecution), BEATO
GLINOGA was placed on the stand by the defense. He then made a complete turn about regarding the
previous instructions of Lt. Alcantara for him to see first accused Estrada before delivering the ransom note to
the Principes for the reason that Estrada knew all about it. This time, he declared that he was not so instructed
by Lt. Alcantara; that the truth is, that he was directed by Lt. Alcantara to proceed to the house of the
Principes, without mention whatsoever of the name of Estrada; that he made mention of and implicated
Estrada, upon orders of the PC investigators that he should mention Estrada in his affidavit, and which orders
he followed, because they would not stop maltreating him; that on his way to the house of the Principes, he
met Federico Caparros and another man, and together they boarded a truck going to the poblacion of Gumaca;
that he even showed to them the letter he was to deliver to the Principes when they asked him where he was
going; and that he alighted right in front of the house of Marciano Principe when the truck reached the town.
FEDERICO CAPARROS and TOMAS SOMBILLA both testified and corroborated the statement of Glinoga
that they met Glinoga on March 5, 1956; that they asked him where he was going then, and Glinoga told them
that he was going to the poblacion, showing to them a letter which he pulled out of his pocket; that Glinoga did
not stop at any other place, but went directly to the house of Marciano Principe.
ATTY. ANDRES FRANCO, upon permission of Julio Ceribo, declared that he was the counsel of Julio Ceribo
in this case, and another case for rebellion in Laguna; that he prepared Ceribo's statement (Exh. 16) at the
instance of Julio Ceribo who had supplied the facts contained in the said statement; that he prepared the
statement first and then took it to his place of confinement, asking him to sign it only after he had read the
statement and understood its contents; and that Julio Ceribo swore to it before Notary Public Rodolfo
Garduque whom he (Franco) had requested to come along. (The trial court appears to have commented, after
examining Exh. 16, that the same was not necessary in the defense of Julio Ceribo in the present case,
considering that Julio Ceribo had already been discharged from the information when Atty. Franco secured the
said statement of Ceribo).
The testimony of Atty. Franco was substantially corroborated by Atty. Rodolfo Garduque who declared that he
ratified Ceribo's statement only after he was sure that Ceribo understood it; and that there were witnesses
(brought along by Atty. Franco) who witnessed the signing of the document.
ANTONIO NIEVA testified that he was a former Army Officer stationed in Pitogo, Quezon; Estrada was their
informer when he was stationed there, and Estrada helped in the surrender of many Huks; ha approached Col.
Castillo regarding the case of Estrada because he believed that Estrada was innocent; he met Col. Castillo
several times regarding the matter, and he told him that he was wrong in prosecuting accused Estrada; but Col.
Castillo confided to him that his career was at stake in this case, for he had been instructed to get the "big
shots" from the second district of Quezon; later, Col. Castillo also confided to him that he was interested in
monetary considerations which he itemized as follows: for Estrada's involvement in the Barretto case,
P20,000.00; in this case, P20,000.00; and for eight (8) other murder cases, P2,000.00 each; Col. Castillo then
told him that if he could give him P50,000.00 he would still be economizing by P16,000.00; he then
immediately went to see the President and asked for the relief of Col. Castillo as Provincial Commander of
Quezon, and President Magsaysay then gave him a note, addressed to Gen. Cabal; when he met Gen. Cabal,
however, accompanied by Gov. Santayana, Jardin and his (Antonio Nieva's) brother, then Chief of Police of
Pasay City, he received the same answer as Col. Castillo's from Gen. Cabal, who told him further that "as long
as he was Chief of the Philippine Constabulary, Col. Castillo will not be touched in Quezon Province;" he
never expected to hear from Gen. Cabal the same words which Col. Castillo had confided to him, and in
exasperation he exclaimed: "it seems to me that I am not talking to the General;" in the note given by the
President to Gen. Cabal, the President told the General that the Nieva brothers knew more of the peace and
order conditions in Quezon, and should be left alone; he was told by the President to report to him the
following Monday, but unluckily, the President died on the Sunday before their appointment; he recalled that
he used to be in good terms with Col. Castillo before, but he became indifferent to him when he (Castillo)
failed to stop him from taking interest in the Estrada case telling him that P20,000.00 was not enough; he
insisted on his demand for P50,000.00.
With the offer of various exhibits, including a copy of the decision of Court of First Instance of Quezon in the
Barretto case, wherein accused Estrada and all his co-accused were acquitted, the defense rested its case. It
appears that before the defense did so, they made an attempt to put back prosecution witness Julio Ceribo on
the witness stand in order that he could explain why he allegedly had testified falsely against accused Estrada
when he testified for the prosecution in this case, but the court below did not allow the defense to put back the
witness. The trial appears to have been delayed also for a considerable time because the defense had made
attempts to produce Lt. Alcantara in court, in which attempt they failed. Gen. Yan testified that a certain Pepe
Alcantara working with the Army was still operating in the field, and that his whereabouts was unknown.
In rebuttal, the prosecution placed on the witness stand Col. Francisco del Castillo, who testified as follows: he
was Provincial Commander of Quezon from May 2, 1956 to July 7, 1958; he was on a mission then — the
prosecution of all the kidnapping cases in the Bondoc Peninsula, namely: the case of Wee King of Catanauan
(1954); of Saturnino Barretto and his children of Gumaca (1952); of Ex-Mayor Yumul of Lopez (1955); of
Rosita de Leon of Catanauan (1955); and of Elvira Tañada Principe (this case, 1956); he had no personal
grudge against Estrada, for even before he came to Quezon as provincial commander, Estrada was already
accused in the kidnapping case of Saturnino Barretto and his children; Antonio Nieva and many other persons
came to him and asked that the case against Estrada be quashed, but he refused; he turned down the immoral
proposals of Antonio Nieva; he did not prosecute him, however, on those immoral proposals because it was
hard to prove, as there were no witnesses; Nieva used to approach him during the time of his rest near his
house; later, he learned that Antonio Nieva had tampered with the witnesses for the prosecution; so, he ordered
his men to put Nieva "off limits" in his camp; Nieva complained to higher authorities in Quezon City, that was
why said higher authorities called him there to the PC Headquarters; he then brought along the witnesses of the
government against Estrada, and they were investigated by the said higher authorities: these witness were the
ones who revealed the participation of Estrada in this case; and he never demanded P50,000.00 as
consideration for the quashing of the cases against Estrada.
After a careful evaluation of the evidence thus set forth, We find that the inculpatory facts proven by the
testimonies of witnesses for the prosecution to establish the guilt of accused Jose Estrada are as follows: The
Hukbalahaps in and around the mountains of the Bondoc Peninsula were the friends of accused Jose Estrada.
With and through his help, the chairman of the educational committee of the HMB in the region, acquired a
typewriter and a mimeographing machine on May 1 or 2, 1954.1 About the first week of February,2 or about a
week before the actual kidnapping of Elvira Tañada de Principe on February 27, 1956, 3 Huk Lt. Pepe
Alcantara met with other Huk Commanders in Barrio Biga, Gumaca, Quezon. Lt. Alcantara gave some
instructions to Comdr. Teddy Corazon then, and the latter ordered huks @ Nelson and @ Fredo to contact
councilor Estrada of Gumaca in the poblacionand to tell him to see Lt. Alcantara in Barrio Biga.4 Alias Nelson
and @ Fredo were able to talk with Estrada in the town, and three days later, Estrada met with Lt. Alcantara
and his companions in Barrio Biga.5 During that meeting between them, Lt. Alcantara asked Estrada who (for
purposes of kidnapping) was the richest man in Gumaca, and Estrada answered in Tagalog, "ang
maimumungkahi ko sa inyo ay ang mga Principe." Lt. Alcantara inquired if it was Reynaldo Principe, to which
question Estrada answered "no" because "it would be difficult for the family to ransom him for most of the
properties were in his name." Lt. Alcantara then asked, "whom can we kidnap?" Estrada suggested Elvira
Tañada Principe who "could easily be ransomed." Lt. Alcantara agreed to the suggestion of Estrada saying: "if
that is the case, yes, let us kidnap Elvira Tañada Principe,6 it will be good for us to kidnap Elvira Tañada
Principe."7 The huk lieutenant told Estrada further: "you will be advised when the kidnapping will take
place;"8 and Estrada answered: "all the time you can depend upon me."9 In the afternoon of February 27, 1956,
Lt. Alcantara and his men came down from Barrio Biga to Gumaca and kidnapped Elvira Tañada Principe
from the store on the ground floor of the house of her father-in-law, Marciano Principe. They took her,
together with Carmen Noceto whom they picked up along the way, to the mountains near the boundaries of the
towns of Gumaca, Lopez and Macalelon. The Huks kept them there for about two weeks. 10 Thereafter, Lt.
Alcantara and some of his men went to Barrio Villa Tañada, Gumaca, and contacted the barrio lieutenant,
Beato Glinoga, on the night of March 4, 1956. Identifying himself and his companions, as the kidnappers of
Elvira Tañada Principe, Lt. Alcantara asked Beato Glinoga to deliver his letter to the Principes. He instructed
Glinoga to see Councilor Estrada first in the town, so that the latter could accompany him to the house of the
Principes, and then to the mountains where he (Lt. Alcantara) would later meet them. 11 The chosen courier
followed the orders of the Huk Commander. He went to thepoblacion of Gumaca the following morning. He
looked for Estrada, but he failed to contact him. So, he went directly to the house of Marciano Principe and
personally delivered the letter of Lt. Alcantara entrusted to him.12 Marciano Principe read the letter of the Huk
Commander, and then wrote an answer. He gave the same to Basilio Angulo, a compadre of his who was at the
house at the time, and requested him to join Beato Glinoga back to Lt. Alcantara in Barrio Villa Tañada. The
courier and the emissary went together and met Lt. Alcantara that same evening, in the mountains of Villa
Tañada?13 Basilio Angulo and Lt. Alcantara then had a conference. As they did, one of the huks present
nudged Glinoga and inquired from him where Estrada was, and Glinoga explained that he was not able to see
him.14
Basically, Estrada's defense is that the charge against him is but a pure concoction. Naturally, he vehemently
denied the truth of the above inculpatory facts proven by the prosecution, by showing that he could not have
been in Barrio Biga, Gumaca, nor conferred with Lt. Alcantara at the place in February, 1956, because he
never left the town of Gumaca during the said month, but once — when he went to Lucena City to renew the
plates of his trucks. He sought to destroy the credibility of the witnesses for the prosecution. He tried hard to
convince the trial court that a man of his stature and character — an elective official of social prominence and
with substantial income, and commended by a ranking PC officer for "his exploits and undertakings" as an
"informer" of the Army — could not have been in league with the Huks in the mountains, and propose to them
a neighbor and family friend as an object of the heinous crime of kidnapping for ransom. His version,
however, failed to convince the trial court of his innocence of the crime imputed to him.
Accused Jose Estrada has appealed from the decision.
Appellant contends that the trial court had fallen into grave error in giving faith and credit to the testemonies of
huks Antonio Campaniero @ Nelson, Julio Ceribo @ July, and Gonzalo Mallare @ Commander Romy.
Attention is called to the fact that Nelson and Ceribo — former co-accused turned state witnesses — had no
choice but to testify against appellant in consideration of the prosecution's promise to discharge them from the
information and save their skin, while the case as against witness Mallare was apparently dismissed, on motion
of the prosecution for alleged insufficiency of evidence, purposely to make him testify against herein
appellant. Under the circumstances, it is argued, these witnesses had no option but to testify as the prosecution
desired — to secure the conviction of the appellant at all cost.
There should be no quarrel that Nelson and Ceribo must have testified as state witnesses in consideration of the
prosecution's promise to discharge them from the information in this case; but that is not true with respect to
witness Gonzalo Mallare, who appears to have testified long after the case against him had been dismissed for
insufficiency of evidence. But these circumstances alone — short of any showing that in consideration of the
State's leniency, these witnesses had been ordered and had agreed, not only to testify for the prosecution but
also to prevaricate in their espousal of the People's cause — cannot detract from their credibility. We have
examined the testimonies of these witnesses with painstaking solicitude, in our sincere desire to find the usual
signs of wavering and wobbling in declarations of lying witnesses, and We note that notwithstanding the fact
that they have been subjected to extraordinarily long and searching cross-examinations — lasting several days
of trial — by the brilliant lawyers for the defense, they never fell into serious contradictions in their long
declarations, which could reasonably be expected if they were merely concocting lies. On the contrary, they
withstood the ordeals of the lengthy cross-examinations, explaining every point on which the counsels for the
defense dwelled, in a straight-forward and satisfactory way. The above contention of appellant, therefore,
cannot be accepted.
Much emphasis is placed by appellant upon the circumstance that during his confinement in the provincial jail
in Lucena City, prosecution witness Nelson (then confined in the PC stockade) had written several letters
addressed to him and his witness, Antonio Nieva, altogether purporting to show that Nelson had been telling
them that he and his companions who had previously given statements implicating herein appellant in the
commission of the crime, before the government investigators, did not really know him (Estrada); and that they
implicated herein appellant in their said statements because they were maltreated by the investigators into
signing them. It is our considered opinion, however, after considering the surrounding circumstances under
which the letters adverted to were written, that their contents are false. Nelson declared that Antonio Nieva
talked with him before he wrote the letters. Nieva explained to him that by testifying as state witness, he
cannot be relieved of his responsibility in the commission of the crime. Pointing out that he (Nelson) was not
just a witness but an accused (Nelson had not been discharged from the information at the time), Nieva warned
Nelson that he would also be punished like Estrada, and perhaps go to the electric chair. With assurance of his
close connection with Malacañang, Nieva promised Nelson that he could do something about this case in
Malacañang, and Estrada would be willing to help them, provided they would not testify against the latter,
otherwise, something bad would happen to them. And with this idea brought out to him by Nieva, Nelson
wrote a letter (Exh. 2) to Estrada on January 24, 1957. The witness explained as follows:
Sinabi po sa akin ni Tony (Antonio Nieva) na huwag lamang kalabanin si Jose Estrada ay siya ang
bahalang humango sa aming mga testigo at kung kakalabanin namin ay mapapasama kami, at
binigyan po kami ng P20.00 suhol. At sinabi pa niyang siya ang bahalang lumakad sa Malacañang
at sa panahong kami ay bibistahan gaya nito ay tanggihan namin at sabihin na kung kaya kami
nakapagsabi ng sa aming "statement" ay kami sinaktan at ginantingpalaan at pinangakuan.15
Regarding his letter (Exh. 3), Nelson declared that he did not write it voluntarily. About noontime of January
25, day after he had written the first letter, two prisoners wearing yellow suits entered their cell in the stockade
and asked who were the witnesses against Estrada in this case; and the witnesses pointed to one another. One
of the said prisoners then told Nelson that if he still valued his life, he should prepare a letter to Estrada and
make him believe that they will not testify against him. Nelson explained that he believed this to be a threat on
their lives, for he thought that they might have been bribed to liquidate them. So, he wrote the letter, in the
presence of the said prisoners. With respect to a portion of another letter (Exh. 10), dated January 27, 1957
(letter was styled "to whom it may concern"), Nelson asked Estrada to give him some amount for cigarettes,
and herein appellant would capitalize on this apparent weakness of character of Nelson to destroy his
credibility. We are more inclined, however, to disregard this theory because We found that the witness had
frankly admitted that he did it because Antonio Nieva had assured them that Estrada was willing to help them,
and while confined in jail they (the witnesses) had agreed to milk him. In fact, in another portion of the said
letter, Nelson had asked Estrada to return his letter; and Nelson explained in court later that he wanted to
destroy the letter because if Col. Castillo should come to know about the lies he had told therein the more they
would suffer (lalo kaming mahihirapan). Thus, he explained to the court below:
Ang ibig ko pong sabihin ay lalo kaming kukulungin sa loob ng "stockade" kung malalaman kami'y
sumulat kay Estrada at magpapanday ng kasinungalingan. Yayamang kami na-stockade at kami
halos incomunicado pa ay dahil nga sa pangyayari ng kami kausapin ni Tony Nieva na gawin
namin ang lahat ng paraan sa pagsisinungaling, tanggihan namin ang mga "statement" na nilagdaan
naming kusangloob. Nangangahulugang babaligtad kami sa katotohanan tungo sa
kasinungalingan.16
This jibes with the other evidence of the prosecution of record, and admitted by the witness for the defense
concerned, that Antonio Nieva, for having shown extraordinary interest in this case, had thereafter been
ordered "off limits" inside the PC camp. Finally, there is another circumstance that adds a ring of truth to the
testimony of Nelson. Col. Castillo testified that Antonio Nieva had complained to higher authorities about him.
This is admitted by defense witness Nieva who declared that he went to see the late President Magsaysay and
General Cabal, and asked for the relief of Col. Castillo as provincial Commander of Quezon province by
reason of his actuations in this case. As a result of Nieva's Complaint, Col. Castillo was called by higher
authorities to Quezon City; and Col. Castillo brought along the witnesses of the government before Col. Yan,
General Cabal, and then to the late President Magsaysay. Nelson testified that when he was taken to Col. Yan
in Quezon City, the said official asked him if the contents of his affidavit (Exh. X, wherein he had implicated
appellant Estrada) were true, and he affirmed the content thereof. The witness also declared that he was cross-
examined (binabaligtad ng tanong sa aming "statement") on his statement by General Cabal, before whom he,
likewise, affirmed the truth thereof, explaining to the General that he was not threatened, harmed, or promised
any reward when he voluntarily affixed his signature on the document. Nelson made the same affirmation
before President Magsaysay on the same occasion. And when asked why he did not mention about the letters
(Exhibits 2, 3, 10, 11 & 12) now heavily relied upon by herein appellant, Nelson declared outright in court that
the contents of the said letters were not true, and he was afraid to tell any falsehood to the highest authority of
the land. Such explanations, considered in the light of the surrounding circumstances, leave no iota of doubt
that the witness had told the truth in court.
Again herein appellant would capitalize upon the circumstances that both witnesses Ceribo and Mallare have
made apparently contradictory statements (affidavits) at different times during their confinement. More
specifically, it is pointed out that Mallare had disclaimed any knowledge about the kidnapping in the Bondoc
Peninsula in his statement (Exh. 17) which is contrary to his later declaration in court that he heard the
conversation between Lt. Alcantara and herein appellant in Barrio Biga, Gumaca, regarding the kidnapping of
Elvira Tañada Principe. This witness explained that he did not mention in exhibit 17 about the participation of
Estrada, because he did not want his name linked with the name of Lt. Alcantara. At the time, he had not met
Nelson, Ceribo and Gregana. He learned later, however, that these persons were already accused in this case,
and knowing that they knew all the secrets of the kidnapping, he decided to reveal his knowledge thereof. At
any rate, it will be noted that Mallare's testimony regarding the involvement of appellant in this case was
merely cumulative in nature, a disregard of which would not affect at all the testimonies of Nelson and Ceribo
regarding the same point. And so with the alleged contradiction between the statement of Ceribo before the PC
on September 12, 1956, and his subsequent affidavit prepared by his counsel on April 16, 1957. It is true that
in the one (Exh. H) Ceribo had inculpated Estrada, while in the other (Exh. 16) he had exonerated him; but
Ceribo explained that the contents of the latter are false. He declared that when the said document was taken to
him inside the PC stockade, it was already prepared. His counsel had manifested to him that it was necessary
for his acquittal, for which reason he signed it without first reading its contents. We believe this explanation of
the witness is sufficient, for We find no reason for his counsel to prepare the latter affidavit when We consider
the fact that Ceribo had long been discharged from the information before it was prepared. And as the trial
court had aptly observed, the said affidavit was no longer necessary for the acquittal of the witness. Add to this
suspicious character of Exh. 16 the unshaken testimony of the witness that its contents are false and the fact
that he had affirmed the truth of his other statement not only before the highest officers of the Army, but also
before the Chief Executive of the land, that the value of Exhibit 16 soon fades into nothingness.
But appellant charges that the trial court had abused its discretion when it denied the defense the right to call
back witness Ceribo who, it is claimed, was then ready to retract his previous testimony for the prosecution,
and then testify for the defense. This, it is pointed out, was a denial of herein appellant's right to due process.
We cannot agree. Section 14, Rule 132 of the Rules of Court explicitly provides that the court may grant or
withhold leave to recall a witness, in its discretion, as the interests of justice may require; and We believe that
it was the better part of discretion and caution on the part of the trial court to have denied as it did, the request
of the defense to recall Ceribo. The record is loaded with circumstances tending to show insidious attempts,
too obvious to be overlooked, to tamper with the witnesses for the prosecution. Under the circumstances, to
allow such a procedure would only encourage the perversion of truth and make a mockery of court
proceedings.
A certain alleged statement attributed to Lt. Alcantara, is here also relied upon by appellant to show that he
(appellant) did not really suggest Elvira Tañada Principe to be the kidnap victim. It appears that soon after
Elvira was taken to the mountains, she was asked by Lt. Alcantara if she was the wife of Teodosio Principe.
Elvira answered the question in the negative. Thereafter, Lt. Alcantara asked her if she was the wife of
Reynaldo Principe, and this time she answered in the affirmative. We believe not much may be made out of
this circumstance, for it merely shows that Lt. Alcantara was not even sure if the woman they had kidnapped
was the wife of Teodosio or Reynaldo. It does not necessarily follow, however, that herein appellant did not
really make the suggestion to kidnap Elvira, in the light of positive evidence that he did so. Neither may We
sustain the charge that the prosecution in this case was guilty of suppression of evidence, on account. alone of
the circumstance that the highest authorities of the Army had failed to produce Lt. Alcantara in court, as
desired by the defense. It is true that the prosecutor in this case was a captain in the Army, but it cannot be
denied that he had prosecuted this case not as such officer, but as a special prosecutor under the Department of
Justice; nor do We find any evidence of record that will justify an inference that he had prevailed upon his
superior officers in the Armed Forces not to obey the orders of the trial court to produce Lt. Alcantara. Herein
appellant claims that Lt. Alcantara was already in the custody of the Army at the time. Col. Yan testified,
however, that the Lt. Alcantara in the service of the PC was at the time "in the field of operation and his
whereabouts was unknown." We see no reason then why the blame should be attributed to the prosecution.
With the foregoing conclusions, We have to sustain the finding of the court below that herein appellant is
guilty of the crime imputed to him in this case. There could be no question that appellant had knowledge of the
criminal intention of Lt. Alcantara and his men to kidnap somebody from Gumaca for ransom. It seems,
however, that they had no definite person in mind in the beginning. So much so, that they had to call for herein
appellant, a councilor and prominent citizen of the place, for his cooperation in the matter of selecting and
pointing to the prospective victim. Appellant suggested the Principes as the most suitable object of their
criminal design, pinpointing Elvira, wife of one of the Principes, as the ideal victim, with the explanation that
the Principe family would not meet with any difficulty in producing the ransom money for her release. Lt.
Alcantara and his men became convinced of appellant's suggestion and reasoning, and then and there they
decided to kidnap Elvira Tañada Principe. The Huk leader told appellant that he (appellant) would be informed
accordingly when the kidnapping was to be effected and the latter answered that Lt. Alcantara could count
upon him all the time. Appellant knew, and must have realized the frightful consequences of being kidnapped
by the Huks. He was not unaware of previous other kidnappings of prominent citizens in the Bondoc Peninsula
— the kidnapping of Ex-Mayor Yumul of Lopez, of Wee King of Catanauan, of the Barrettos of Gumaca, and
of De Leon of Catanauan — which had invariably resulted in either the loss of honor of the victims, payment
of huge amounts for ransom by their families, or the horrible deaths of the victims. With that knowledge,
nevertheless, herein appellant agreed and conspired with Lt. Alcantara and his men in the kidnapping of Elvira
Tañada Principe, who was not only detained by Lt. Alcantara and his men in the mountains for eighteen (18)
days, but was only released after the payment of a P50,000.00 ransom. These circumstances, to the mind of the
Court, altogether show that appellant enjoyed such ascendancy of the mind over that of Lt. Alcantara to the
extent that his suggestion was the efficacious inducement which led the latter and his men to proceed with the
criminal design, thus making herein appellant a principal by inducement. However, for failure to obtain the
necessary number of votes to affirm the death sentence in the decision appealed from, the penalty next lower
should be imposed.
WHEREFORE, appellant is hereby rentented to reclusion perpetua. With this modification, decision is
affirmed by way of ordering appellant to pay the civil liability and the costs. On equitable considerations, no
costs in this instance.
G.R. No. L-28499 September 30, 1977
VICTORIAS MILLING COMPANY, INC., petitioner,
vs. ONG SU AND THE HONORABLE TIBURCIO S. EVALLE IN HIS CAPACITY AS DIRECTOR OF
PATENT'S, respondents.
FERNANDEZ, J.:
This is a petition to review the decision of the Director of Patents in Inter Partes Case No. 304 entitled "Victorias
Milling Company, Inc., petitioner, verus, Ong Su" dated August 15, 1967 denying the petition to cancel the certificate
of registration issued by the philippines Patent Office on Jurie 20, 1961 in favor of Ong Su covering the tradenwk
"VALENTINE" and design and used on refined sugar. 1
The petitioner, Victorias Milling Company, Inc., a domestic corporation and engaged in the manufacture and sale of
refined granulated sugar is the owner of the trademark "VICTORIAS" and d design registered in the Philippines
Patent Office on November 9, 1961.
The respondent Ong Su is engaged in the repacking and sale of refine sugar and is the owner of the trademark
"VALENTINE" and design registered in the Philippines Patent Office on June 20, 1961.
On October 4, 1963, Victorias Mining Company, Inc. filed with the Philippine Patent Office a petition to cancel the
registration of the Ong Su trademark "Valentine."
The petitioner allied that its tradermrk "Victorias" and diamond design has distinctive of its sugar long before the
respondent used its trademark; that the registration of "Valentine" and design has caused and will cause great damage
to petitioner by reason of mistake, confusion, or deception among the purchasers because it is similar to its "Victorias"
trademark; that registration was fradulently obtained by Ong Su and that "Valentine" faisely suggests a connection
with Saint Valentine or with an institution or belief connected therewith. 2
In his answer to the petition the respondent averred that he is doing business under the name and style "Valentine
Packaging" and has registered the trademark "Valentine" with a design for sugar and was issued Certificate of
Registration No. 8891 dated June 20, 1961; that the trademark "Victorias" with diamond design and the trademark
"Valentine" with a design are two different marks; and that there is absolutely no likelihood of confusion, mistake or
deception to purchasers through the concurrent use of the petitioner's mark "Victorias" with a diamond design and the
respondents' mark "Valentine" with a design in connection with sugar. 3
The petitioner's only witness, Pacifica V. Vijandre its vice-president and stockholder, testified that Victorias Milling
Company, Inc. has used since 1947 the trademark "Victorias" and diamond design with colors of red and black on
sacks of sugar having variable weight and size of 5 lbs., 10 lbs., 25 N., 50 lbs., and 100 lbs.; that the company had
transactions on or sales of sugar with local dealers such as Kim Kee, Chu Yu & Co., Limouan & Co., Luzon
Merchandising Corp. and ARCA that the average sale from 1958 to 1962 was P30,000,000 and for the whole year of
1962 the sale was P46,000,000; that he came to know that the trademark "Valentine" appeared in the market in 1962
through the report of his company's field agents; and that except for the words "Valentine and Victorias", the design
and wordings of the bags are practically the same. 4
The respondent, Ong Su decWW that he adopted and began using his trademark "Valentine" and design before and
continuously after World War II in the Philippines, particularly on paper bags used as containers for starch, coffee and
sugar; and that since January 1955 he continued using said trademark on repacked sugar.
Arturo Chicane a witness for the respondent, testified that he was a distribution agent of Ong Su that he travelled a lot
but he river own across an instance when the respondent Ong Su product was mistaken for the petitioner's product;
that he found the diamond design to be quite common in combination with other words used as trademarks as a
background or to enhance their appearance, such as "DIAMOND" and design (Exhibit "54-A"), "EAGLE" and design
(Exhibit "53"), and "SUNRISE" and design (Exhibit "55"), not belonging to the petitioner, which are also used on
repacked sugar by various sugar dealers; and that said designs and the color of the lines on which drawn had not been
regarded as trademarks but we ornamentation. 5
The Director of Patents denied the petition to cancel the certificate of registration of the respondent Ong Su covering
the trademark "Valentine" and design because:
From the facts of record, I find nothing to sustain the petition.
There is no question that as to their respective literal designation the trademarks are different.
One is VALENTINE while the other is VICTORIAS. Thus, as to sound and connotation there
is no dispute as to their dissimilarity.
However, from the evidence and pleadings, it appears that petitioner is relying heavily on its
diamond design, the color scheme, and the printing sequence or arrangement of such legends
as weight, contents and manufacturer or packer.
I am of the firm belief that the diamond Portion of petitioner's trademark hag not bolstered its
cause. Common geometric shapes such as circles, ovals, squares, triangles, diamonds, and the
like, when used as vehicles for display on word marks, ordinarily are not retarded as indicia of
origin for goods to which the marks are applied, unless of course they have acquired
secondary meaning. I have scoured the records completely to ascertain if the petitioner has
submitted satisfactory evidence in this regard, but I find absolutely nothing to base a ruling
that the triangle (sic) design has acquired a secondary meaning with respect to its sugar
business.
It is the common practice for trademark owners to register designs forming outline of their
distinguishing mark, but when the registrant of such design relies upon registration in
proceeding based upon likelihood of confusion of purchasers, he assumes the burden of
showing that the design portion of the mark has been so used that purchasers recognize the
design, standing alone, as indicating goods emanating from the registrant. Bausch & Lomb
Optical Co., v. Overseas Finance & Trading Co., Inc. (ComrPats) 112 USPQ 6.
Considering herein that the petitioner failed to establish that diamond design component of its
mark has acquired a secondary meaning and that the literal portion of the marks have no
similarity, there is no reasonable likelihood of purchaser confusion resulting from registrant's
use of VALENTINE within a diamond and petitioner's use of VICTORIAS within a diamond.
As regards the colors black and red used, it is fundamental in trademark jurisprudence that
color alone, unless displayed in a distinct or arbitrary design, does not function as a trademark,
inasmuch as here, or elsewhere, the colors black and red are not so displayed by the petitioner,
and are primary colors commonly and freely used in the printing business.
Finally, as regards the printing sequences or arrangement of such legends as weight, contents,
and manufacturer or packer, I regard it as merely a matter pertaining to the address of the
goods' — a matter involving unfair competition over which the Patent Office has no
jurisdiction. (See: Menzi & Co., Inc, vs. Andres Co Dee. No. 59 dated Oct. 31, 1952, Dir. of
Patents.) And in the case of A. E. Staley Manufacturing Co., Inc. vs. Andres Co. v. Tan Tong,
citing, Gillette Safety Razor Go. v. Triangle Mechanical Laboratories, 31 USPQ 24; Aladdin
Mfg. Co. v. Mantle Lamp Co., 21 USPQ 58; and J. C. Eno (U.S.) Limited v. Deshayas 29
USPQ 179), it was held that the tribunals of the Philippines Patent Office have no jurisdiction
over questions of unfair competition. At most, the petitioner's recourse is for it to seek relief in
civil courts.
The allegations that the registration of VALENTINE was obtained fraudulently; that it falsely
suggests a connection with St. Valentine; and that it is merely descriptive or deceptively
misdescriptive of sugar have no basis in law and fact. 6
The petitioner submits that the Director of Patents committed the following errors:
I
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT
PETITIONER'S REGISTERED DIAMOND DESIGN IS NOT AN INDEX OF ORIGIN.
II
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT
PETITIONER IS REQUIRED TO ESTABLISH THAT ITS DIAMOND DESIGN HAS
ACQUIRED A SECONDARY MEANING.
III
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING PETITIONER'S
DIAMOND DESIGN HAS NOT ACQUIRED A SECONDARY MEANING.
IV
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT THE
DETAILS OF PETITIONER'S DESIGN THAT HAVE BEEN IMITATED BY
RESPONDENT ONG SU MERELY PERTAIN TO THE'DRESS OF THE GOODS.'
V The contention of petitioner that the diamond design in its trademark is an index of origin has no merit. The petitioner
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN CONFINING HIS
COMPARISON OF PETITIONER'S AND RESPONDENT'S RESPECTIVE
TRADEMARKS TO ONE SOLE ITEM OF THEIR DESIGN, IGNORING THE
COMPLETE LABELS AS ACTUALLY USED IN TRADE AND SEEN BY CONSUMERS.
VI
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN TAKING THE POSITION
THAT IN CASES OF TRADEMARK CANCELLATION INVOLVING, AMONG
OTHERS, OBVIOUS ACTS OF UNFAIR COMPETITION, HE NEED NOT TAKE ANY
ACTION WHATSOEVER, SINCE HE SUPPOSEDLY HAS NO JURISDICTION IN THE
PREMISES.
VII
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT
PETITIONER'S REGISTERED COLOR DESIGN DOES NOT FUNCTION AS A
TRADEMARK.
VIII
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT BECAUSE
THE LITERAL PORTIONS OF THE RESPECTIVE TRADEMARKS IN QUESTION,
NAMELY, THE RESPECTIVE NAMES 'VICTORIAS' AND 'VALENTINE', HAVE NO
SIMILARITY, THERE IS NO REASONABLE LIKELIHOOD OF PURCHASER
CONFUSION.
IX
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN ASSUMING THAT
PETITIONER, OR THE OWNER OF ANY IMITATED OR INFRINGED TRADEMARK
FOR THAT MATTER, MUST ESTABLISH ACTUAL PURCHASER CONFUSION.
X 7. The word "VICTORIAS" and the word "VALENTINE" are Identically arranged, the same
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN PREVENTING THE
TESTIMONIES OF RESPONDENT ONG SU AND WITNESS ERNESTO DURAN AS
REBUTTAL WITNESSES FOR PETITIONER, SAID RULINGS OF RESPONDENT
DIRECTOR CONSTITUTING REVERSIBLE ERROR AND THE DENIAL OF
PROCEDURAL DUE PROCESS.
XI
THE RESPONDENT DIRECTOR OF PATENTS ERRED IN HOLDING THAT THE
REGISTRATION OF THE VALENTINE TRADEMARK BY RESPONDENT ONG SU
WAS NOT PRUDULENTLY OBTAINED.
XII
THE RESPONDENT DIRECTOR OF PATENTS, ACTING TfIROUGH HEARING
OFFICER AMANDO MARQUEZ, ERRED IN ADMITTING RESPONDENT ONG SU'S
EXHIBITS PERTAINING TO ONE 'MARIANO ANG SAID NAME NOT HAVING BEEN
CLEARLY ESTABLISHED AS AN ALIAS, ALHTHOUGH ADMITTEDLY
UNAUTHORIZED, OF RESPONDENT ONG SU. 7
has not shown that the design portion of the mark has been so used that purchasers recognize the design, standing
alone, as indicating goods coming from the registrant. As correctly stated by the Director of Patents, common
geometric shapes such as diamonds ordinarily are not regarded as indicia of origin for goods to which the remarks are
applied unless they have acquired a secondary meaning. And there is no evidence that the diamond design in the
trademark of the petitioner has acquired a secondary meaning with respect to its sugar business. The word "Victorias"
is what Identifies the sugar contained in the bag as the product of the petitioner. Indeed, the petitioner has advertised
its sugar in bags marked "Victorias" with oval, hexagor. and other designs.
The evidence is that Ong Su has been using his trademark since prior to the last World War and he obtained the
registration thereof on June 20, 1961. Vijandre declared that the petitioner started to use its trademark only in 1947.
Said trademark was registered on November 9, 1961. It cannot be said, therefore, that the respondent Ong Su imitated
the trademark of the petitioner.
The petitioner avers that purchasers of sugar are likely to confuse petitioner's "Victorias" trademark and respondent
Ong Su's "Valentine" trademark because of the following similarities:
1. Both trademarks have the same diamond design with the slight modification that the lines
of the "VALENTINE" diamond design are a little protruding at the ends.
2. The lines forming the diamond design in both trademarks consist of two lines, namely, the
outer portion and the inner portion.
3. The outer portion of the diamond design of both trademarks has the color black as shown in
the specimens (Exhibits "A" and "B"). The, inner line of the diamond design in both
trademarks has the color red.
4. In both trade marks, the word "PURE" in black print appears inside of the upper portion of
the diamond design.
5. In both trade marks, the word "VICTORIAS" and the word VALENTINE' placed within
the diamond design are conspicuously colored red.
6. The letter "V" in Victorias and the letter "V" in Valentine are Identically placed.
containing the same number of letters.
8. Immediately below the words "VICTORIAS" and "VALENTINE"appears the words
"REFINED SUGAR".
9. underneath the diamond design in both trademarks are the words "FINE GRANULATED"
and below said phrase are the words 'CANE SUGAR'with a small diamond design.
 10. Both, trade marks are used on refines sugar.
11. The words "PURE," "VALENTINE," "VICTORIAS," "FINE GRANULATED" and
"CANE SUGAR" in both trade marks are same has arranged and printed.9
home he found out that the sugar was marked VALENTINE. lie went on again on another
time later and saw that the shelf was still filled with five (5) pounds (lbs,) bag VALENTINE
sugar. The shelf also has bags of VICTORIAS sugar side by side with VALENTINE sugar,
that the package of VALENTINE looked so much alike will VICTORIAS sugar that he was
misled into pointing to VALENTINE and asked for VICTORIAS.

The respondent Ong Su maintains that the alleged are minor for the following reason: HEARING OFFICER:

Appellant attempts to show the possibility or likelihood of purchaser confusion by pointing What is that, is that supposed to be the testimony of witness Duran?
out alleged similarities in the packages in question, e.g. "Pure Refined Sugar" appearing in
both marks in question. It should be noted, however, that these words are merely descriptive
commonly applied to the goods, namely, sugar, and cannot be exclusively appropriated by the ATTY. GONZALEZ:
petitioner. The other alleged similarities pointed to by appellant — that the lines forming the
diamond design in both trademarks consist of two lines, the outer portion and the inner
portion; that the diamond design in both tradeniarks has the color black and the inner line of Yes, your Honor, I am offering as proof of what the witness Duran would have testified. Since
both designs has the red color; that the diamond design as used by the petitioner and by this office has ruled that I cannot present him an offer of proof is being made for purposes of
respondent are of the same size; that the letter 'V' in Victorias and the letter "V" in "Valentine" putting on record what he would have testified to on record in accordance with the Rules of
are the same size; and that the letter 'V' in VICTORIAS and the letter "V" in the Valentine Evidence. 11
package are Identically pIaced in the diamond; and that — the word "Victorias" and the word
"VALENTINE" are Identically arranged within the diamond — are, we submit with respect, Having made the foregoing formal offer of proof, the petitioner cannot complain that it was denied procedural due
minor and insignificant for the purpose of this petition even if the observations of appellant process.
are correct.10

It seems clear that the words "Valentine" and "Victorias" and the names and places of business of Victorias Milling
Company, Inc. and Ong Su are the dominant features of the trademarks in question. The petitioner has not established
such a substantial similarity between the two trademarks in question as to warrant the cancellation of the trademark
'Valentine'of the respondent Su. The Director of Patents correctly ruled that he has no jurisdiction over the issue of
unfair competition. Under Section 27 of the Trade Mark Law, Republic Act No. 166, after actions for unfair
competition shall be brought before the proper Court of First Instance.
The proposed testimony of Emesto T. Duran that in February 1963 he went to Arangue market and bought one bag of
sugar which he thought was "Victorias" and when he went home he found out that the sugar was marked "Valentine"
is not sufficient evidence that the two trademarks are so similar that buyers of sugar are confused. The words
"Victorias" and "Valentine" are not similar in spelling and do not have a similar sound when pronounced. Even the
diamond designs are different. The diamond design of the trademark "Valentine" has protruding fines at the comers.
Even an illiterate person can see the difference between the two diamond designs.

There is no evidence that the respondent Ong Su had obtained the registration of his trademark "Valentine" and design
The refusal of the Director of Patents to allow respondent Ong Su and witness Emesto Duran to testify on rebuttal is by means of fraud. The said trademark was registered in the Philippines Patent Office before the petitioner registered
not a reversible effort. its trademark.

The only'purpose of the petitioner in proposing to call Ong Su as a witness on rebuttal is to ask the latter if he had
judicial authority to use the alias 'Mariano'. Ang It appears, however, that the counsel of petitioner had already
extensively cross-examined Ong Su as to a citizenship, alien certificate of registration and the other name Mariano
Ang. It seems immaterial whether or not Ong Su has judicial authority to use Mariano Ang as an alias. There is
evidence that even before the last World War, the trademark 'Valentine' and design had been used under the name of
either Ong Su or Mariano Ang.
The record and evidence show that Ong Su had also used in his business the name Mariano Ang. Hence the licenses
and permits in the name of Ong Su and/or Mariano Ang were correctly admitted as evidence.
WHEREFORE the decision of the Director of Patents sought to be reviewed is hereby affirmed, without
pronouncement as to costs.

The petitioner sought to present Emesto T. Duran as rebuttal witness to prove that there was a confusion among
consumers or buyers of sugar caused by the alleged sorority of the "Victorias" and "Valentine" trademarks. The
presentation of Emesto T. Duran as rebuttal witness was objected to by counsel of the respondent on the ground that
the evidence sought to be elicited from Duran did not directly contradict the testimony of witness Chicane The
objection was sustained by the hearing officer whose ruling was subsequently confer by the Director of Patents.
Counsel for the petitioner made the following formal offer of proof:

ATTY. GONZALEZ:

Your Honor please, in view of the ruling of the Honorable Director your Honor please on the
G.R. No. 98376 August 16, 1991
admissibility of certain items of evidence, which resolution dated February 21, 1966 was
received by undersigned counsel for the petitioner on February 22, 1966, said resolution was
setting the hearing of this case for this morning, I wish to state, I wish to register my PEOPLE OF THE PHILIPPINES, petitioners,
exception, my respectful exception to said resolution. In view of the resolution not permitting vs. HON. BAYANI S. RIVERA, Judge, Branch 129 , Regional Trial Court of Kalookan City, and
me to present Mr. Ernesto Duran, my proposed witness whom I attempted to present at the last WILFREDO L. EMBRANO, respondent.
hearing, I wish to offer as proof the following items ol' the testimony of witness Duran. Now
as he would go shopping with his parents and that sometime in the month of February 1963 he
went to the Aranque market, and while he was buying groceries he saw a shelf with five (5)
lbs. bag of sugar with the bag and package he thought was VICTORIAS. Witness Duran will NARVASA, J.:
further testify that he went to the shelf and pointed to the bag of sugar and hesaid Isang
support ng Victorias Ang. That the sugar was taken by the shopkeeper and when he went
The special civil action of certiorari at bar instituted in this Court to annul an order rendered by the Regional
Trial Court at Kalookan City, Branch 129, in a prosecution for arson docketed in that Court as Criminal Case
No. 28820 (87).
Accused in that case of arson is Wilfredo L. Sembrano. It is the prosecution's theory that he wilfully caused the
fire in the early morning of May 21, 1987 which totally burned and destroyed the second and third floors of the
"I Love You Restaurant and Sauna Bath" owned by Juanita L. Tan, located at No. 2 L. Bustamante St.
Kalookan City.1
Among the witnesses presented by the Government to demonstrate Sembrano's culpability was Benjamin Lee,
a room boy of the restaurant and bath. Lee testified on direct examination at the hearing of December 8, 1987.
His testimony was essentially that Sembrano had run out of the VIP room where the fire had started and
refused to heed his (Lee's) call to stop. Lee took the witness stand again on April 26, 1987 during which he
was cross-examined by defense counsel, gave additional evidence on redirect examination, was again
questioned on recross-examination by the same defense counsel, and thereafter allowed to step down. 2
The prosecution completed presentation of its evidence-in-chief in due course. But before it could rest its case,
and two (2) months or so after Benjamin Lee had completed his testimony, the defendant's original counsel,
Benjamin Formoso, withdrew his appearance and was substituted by another attorney, Eduardo S.
Rodriguez.3 The latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further
examination.4 The ground relied upon by Atty. Rodriguez was simply that after he had reviewed the record of
Benjamin Lee's testimony, he came to the conclusion that " there seems to be many points and questions that
should have been asked but were not profounded (sic) by the other defense counsel who conducted.. (the cross-
examination). It was on this averment, and counsel's reference to "the gravity of the offense charge (sic)" and
the need "to afford the accused full opportunity to defend himself," that Lee's recall for further cross
examination was sought to be justified. Over objections of the prosecution, the Court 5 granted the motion.
Efforts were thereafter exerted to cause witness Benjamin Lee to again appear before the Court for further
cross-examination.1âwphi1 These efforts met with no success; and the trial had to be postponed several times.
It appears that Lee had terminated his employment and moved elsewhere without indicating his new address.
So, on October 1, 1990 the private prosecutor filed a "Manifestation and Motion" drawing attention to the
inability to procure the re-appearance of witness Lee for which "the prosecution could not be held liable," and
to the fact that "Lee has already been thoroughly examined by the former defense counsel," and praying upon
these premises "that the farther examination of Benjamin Lee be dispensed with and ... the prosecution ...
allowed to terminate the presentation of its evidence."
By Order dated October 2, 1990,6 the Trial Court denied the motion to dispense with the recall of Benjamin
Lee. In fact, it ordered the testimony of Benjamin Lee for the prosecution xx stricken off the record for lack of
complete cross-examination" because the witness could no longer be found, and "the failure of counsel for the
accused to further cross-examine the witness is not the fault of the defense.7
In the same order, the Court also set the "reception of further evidence for the prosecution, if any, ... on
October 23, 1990 xx as earlier scheduled." Subsequently, it denied the private prosecutor's motion for
reconsideration of the order.8 Hence, the action at bar, instituted by the Office of the Solicitor General.
The writ of certiorari prayed for will issue. The Trial Court acted with grave abuse of discretion in authorizing
the recall of witness Benjamin Lee over the objections of the prosecution, and in later striking out said witness'
testimony for want of further cross-examination.
There is no doubt that a Trial Court has discretion to grant leave for the recall of a witness. This is clear from a
reading of Section 9, Rule 132 of the Rules of Court, as amended,9 viz.:
SEC. 9. Recalling witness.— After the examination of a witness by both sides has been concluded,
the witness cannot be recalled without leave of the court. The court will grant or withhold leave in
its discretion, as the interests of justice may require.
But obviously that discretion may not be exercised in a vacuum, as it were, entirely, isolated from a particular
set of attendant circumstances. The discretion to recall a witness is not properly invoked or exercisable by an
applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order
to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and
questions that should have been asked" in the earlier interrogation. To regard expressed generalities such as
these as sufficient ground for recall of witnesses would make the recall of witness no longer discretionary but
ministerial. Something more than the bare assertion of the need to propound additional questions is essential
before the Court's discretion may rightfully be exercised to grant or deny recall. There must be a satisfactory
showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the
movant's part, for instance, that particularly identified material points were not covered in the cross-
examination, or that particularly described vital documents were not presented to the witness whose recall is
prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there would be no foundation for a trial court to authorize the recall
of any witness.
In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than
said movant's general claim that certain questions — unspecified, it must be stressed — had to be asked. In
doing so, it acted without basis, exercised power whimsically or capriciously, and gravely abused its
discretion.
So, too, the respondent Court acted whimsically, capriciously, and oppressively, in other words, gravely
abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared that
he could no longer be found and produced for further examination. In the first place, the Court acted
unilaterally, without any motion to this effect by the defense and thus without according the prosecution a prior
opportunity to show why the striking out should not be decreed. More importantly, the striking out was
directed without any showing whatever by the defense of the indispensability of further cross-examination,
what it was that would have been elicited by further cross-examination rendering valueless all that the witness
had previously stated. It should be stressed that Lee was subjected both to cross-examination and recross-
examination by former counsel of the accused Sembrano. Obviously the latter was satisfied that there had been
sufficient cross-examination of the witness. Absence of cross-examination may not therefore be invoked as
ground to strike out Lee's testimony (as being hearsay). And there is no showing whatever in this case that it
was the prosecution that placed the witness beyond the reach of the Court, much less of the expected nature or
tenor of his additional testimony which, because not presented, would necessarily cause the evidence earlier
given by Lee to become hearsay or otherwise incompetent, and therefore, amenable to being stricken from the
record.
WHEREFORE, the petition is GRANTED and the respondent Court's challenged Order dated October 2, 1990
is NULLIFIED AND SET ASIDE, with costs against private respondent.
G.R. Nos. 32394 and 32395 September 5, 1930
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs. SANDAL, ARIMAO, LONSING, MAMA, and PAMPANG, defendants-appellants.
AVANCEÑA, C.J.:
The Moros Sandal, Arimao, Lonsing, Mama, and Pampang appeal from the judgment of the Court of First
Instance of Lanao convicting them of murder committed on the 18th of February, 1929, upon the person of
Eleno Lamorena, and sentencing each of them to twenty years of cadena temporal, with the accessories of law,
to indemnify the heirs of the deceased jointly and severally in the amount of P1,000, and to pay their
proportional part of the costs.

On the date mentioned, in Abaga, District of Monungan, Province of Lanao, Inambar, a Moro woman, heard
the appellant Sandal call the deceased, and later saw them engaged in conversation. While the two were
talking, appellant Pampang went up to them and with a hammer struck the deceased on the back of the neck,
felling him to the ground. Sandal and the rest of the appellants, Lonsing, Arimao, and Mama, then closed in on
the fallen man beating him to death.

Moro Dimaponong testified that early in the morning of that day, he saw Eleno, the deceased, in Tomas
Permites' warehouse, while the appellants were nearby constructing a house. When witness returned to the
warehouse, he saw neither the deceased nor the defendants where he had seen them before. On that night as he
was going home, witness saw appellants near a sawmill, carrying the corpse of Eleno, which they threw into
the river. During the inquiry made by the Constabulary lieutenant into Eleno's disappearance, Dimaponong
testified to this effect, and the corpse was found in that part of the river indicated by him.

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

The following facts of record explain the motive of the assault: When Tomas Permites went to Manila to look
after certain matters he left Eleno in charge of his interests in Monungan. While Permites was in Manila, the
appellants caused some injuries to his carabaos, as a result of which Eleno had a dispute with them. Eleno sent
word of what had happened to Permites in Manila, and when the latter returned to Monungan, he verified the
facts and filed a complaint against the appellants. Eleno was to be the principal witness, and the defendants
knew it.

The appellants denied the facts set forth and attempted to prove an alibi.

Upon consideration of the evidence for both sides, we agree with the conclusion of the trial court that the
appellants killed Eleno in the manner described above. The court below did not err in weighing the evidence.

Another assignment of error alleged by the appellants in this instance deals with the trial court's refusal to
admit a certain witness presented by the defense. The court took this stand for the reason that this witness had
been present during the hearing notwithstanding the court's order that all witnesses leave the court room.
Under such circumstances it lies within the court's discretion to admit or reject the testimony of the witness.
And although we are of opinion that the court below should have admitted the testimony of this witness,
especially when he stated that he did not hear what the other witnesses testified, yet there is nothing to show
that this error has affected the appellants' defense. There is nothing to show what this witness would have
testified if admitted, and so it cannot be held that his failure to testify has materially affected the appellants'
defense.
G.R. No. L-39013 February 29,1988
The appellants also assign as an error the fact that the trial court failed to require the fiscal to exhibit the
testimony given by the witnesses during the preliminary investigation conducted by the justice of the peace. FRANCISCO BUNAG, petitioner,
But the only effect of this failure was to entitle the defense to adduce secondary evidence touching the vs. COURT OF APPEALS, ESTRUDES BAUTISTA Vda. de BITUIN and BRUNO BAUTISTA, respondents.
testimony of said witnesses, for the purpose of attacking their veracity, should they have been presented as
witnesses during the trial.

Neither did the trial court commit an error in refusing the defense an extension of time to present Doctor
CORTES, J.:
Feliciano, for this is a matter wholly within the court's discretion, the abuse whereof has not been shown,
especially in view of the fact that it was not informed of the nature of this witness's testimony.
The core of the controversy in this case is a thumb-marked. non-notarized and non-witnessed deed of sale of a parcel
of unregistered land, which on its face cannot but cause a prudent man to doubt its due execution and authenticity.
Wherefore, the judgment appealed from is affirmed, with costs against the appellants. So ordered.
The facts are briefly summarized in the decision of the Court of Appeals:
The evidence of the plaintiff consisting of the sole testimony of said plaintiff is to the effect
that the property in question was originally owned by his father Apolonio Bunag Aguas as
shown by Tax Declaration Nos. 546 for 1941 and 320 for 1960 (Exhs. B & E), located at San
Nicolas, Betis, Pampanga; that he had been living in their house thereon with his father until
1920 when they transferred their residence to Tarlac; that in 1925 their house thereon was
demolished as it was old; that they planted bamboos on the land; that Jose Bautista Santiago, a
nephew-in-law, erected a house on said lot and lived therein for sometime until he became a
widower when he transferred to another house; that said Jose Bautista Santiago one day
accompanied his sister Estrudes Bautista to stay in that house; and that Santiago was allowed
by his father to build a house on said lot on condition that he would pay for the land taxes as
compensation for the use of the land. He admitted, however, that be only learned about this
agreement from his father. On September 15,1962, and September 24,1962 he sent written
demands to defendant Bruno Bautista, thru his lawyer, to vacate the lot and remove the houses
thereon, (Exhs. A & B). The testimony of the other witness Juan Bunag was stricken from the
records as he failed to return to court for cross-examination.
On the other hand, the evidence for the defendant consist of the testimony of defendant Bruno
Bautista who testified that he is the owner of the land in question by virtue of a deed of sale,
of January 3, 1941, signed by Apolonio Bunag with his thumbmark; that Bunag first offered it
for sale to his brother Jose Bautista, but as the latter had no money, he referred the matter to
his father; that after he was contacted in Baguio by his father, he sent the P100.00 as
consideration of the sale and so the sale was consummated between his father and Bunag; that
he came down from Baguio and had the house repaired and he stayed there with his family
until liberation when they left the house and allowed his sister Estrudes Bautista to live
therein; that he planted bananas, chicos, trees, calamansi, eggplants, thereon; that he had been
paying the land taxes thereon (Exhs. 5 to 5-M); that the property is declared in his name (Exh.
6); and he denies that her sister Estrudes requested Apolonio Bunag to allow her to stay on the
property as her sister had a house of her own then.
Brigida Bautista testified that her brother bought the said property from Apolonio Bunag and
that she was present when Bunag affixed Ms thumbmark on the document (Exh. 1); that aside
from this deed, there were other documents supporting the sale as the note (Exh. 2) containing
the consideration and the parties. Assessor's Field Sheet of the property (Exh. 3) and the letter
of the assessor to Bunag in 1941 informing him of the revision of the assessment. (Rollo, pp.
15-18).
The trial court decided in favor of petitioner, the dispositive portion of the decision reading as follows:
IN VIEW OF THE FOREGOING, judgment is rendered in favor of the plaintiff. The
defendants, Bruno Bautista and Estrudes Bautista vda. de Bituin, are hereby ordered to vacate
the property herein described and to deliver possession thereof to the plaintiff, Francisco
Bunag; ordering the said defendants, jointly and severally, to pay the land taxes of the
property up to and including the year 1968; and to pay the plaintiff the sum of P15.00 per
month as reasonable rentals thereof from the date of this judgment until the property is
delivered to the plaintiff; to pay the plaintiff the sum of P200.00 as expenses of litigation and
costs. For lack of merit, the counterclaim of the defendants are dismiss (Rollo, pp. 14-15)
The Court of Appeals, finding the deed of sale (Exhibit 1) to have been validly executed and, thus, concluding that
"the preponderance of evidence leans heavily in favor of the claim of the ownership of defendant Bruno Bautista"
[Rollo p. 18], set aside the decision of the trial court and dismissed the complaint. The motion for reconsideration was
subsequently denied by the Court of Appeals in a minute resolution for lack of merit.
Consequently, resolution of the instant petition primarily revolves around the issue of the due execution authenticity
of the deed of sale (Exhibit 1). The petitioner assigned the following errors:
I does from a sister of the defendants. The circumstances other alleged presence during the
THE COURT OF APPEALS ERRED IN HOLDING THAT THE DEED OF SALE (EXHIBIT "1") WAS DULY
EXECUTED AND AUTHENTICATED.
II
THE COURT OF APPEALS ERRED IN MAKING CONCLUSION (SIC) NOT IN ACCORDANCE WITH THE
EVIDENCE ON RECORD.
At the outset, it must be emphasized that the deed of sale (Exhibit 1) was not acknowledged before a notary public and
neither are there any signatures in the blank spaces for the signatures of attesting witnesses. The document is
typewritten in English and over the similarly typewritten words "APOLONIO BUNIAG" is a thumbprint.
The deed of sale (Exhibit 1) is not notarized and is, therefore, a private writing (U.S. v. Orera, 11 Phil. 596 (1908)],
whose due execution and authenticity must be proved before it can be received in evidence (Nolan v. Sales, 7 Phil. 1
(1906); U.S. v. Evangelists, 29 Phil. 215 (1915); Antillon v. Barcelon, 37 Phil. 148 (1917)].
Proof of the due execution and authenticity of private writings is required under Section 21, Rule 132 of the Revised
Rules of Court, to wit:
Sec. 21. Private writing, its execution and authenticity, how proved. — Before any private
writing may be received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the writing executed;
(b) By evidence of the genuineness of the handwriting of the maker; or
(c) By a subscribing witness.
To support its conclusion as to the due execution and authenticity of the deed of sale (Exhibit 1), the Court of Appeals
relied on the testimony of Brigida Bautista, a sister of private respondents. She testified as follows:
Q. Who is the owner of the property?
A My brother Bruno Bautista.
Q. Do you know how your brother, Bruno Bautista, came to own the
same property?
A. Yes, sir. He bought it from Apolonio Bunag.
Q. Do you know if there is any document evidencing the purchase of
the said property from Apolonio Bunag.?
A. Yes, sir.
Q. Showing to you this document already marked as Exhibit 1, do you
recognize this?
A. Yes, sir, this is the document showing the purchase and sale of the
lot in litigation.
Q. At the bottom portion thereof, appears a thumbmark above the
typewritten name Apolonio Bunag, do you know whose thumbmark
this is?
A. That is the thumbmark of Apolonio Bunag, sir, and I know that is
his because I saw him affixed (sic) his thumbmark. TSN, March
25,1967, pp. 1-2).
However, the trial court found proof of the due execution and authenticity of the deed of sale (Exhibit 1) wanting,
reasoning that:
The testimony of this witness (Brigida Bautista) has to be received with caution, coming as it
"execution" of the deed of sale was not related. Neither does she give any light as to whether
Apolonio Bunag understood the document. It should be noted that (Exhibit "1") was written in
 English. Since it appears that said document was merely thumb-marked, it could reasonably
be inferred that Apolonio Bunag, the supposed vendor, was illiterate. Under the stances, the
minimum proof necessary to establish due authenticity should, in the least, include evidence
that the document (Exhibit "1") was duly read, explained and translated to Apolonio Bunag.
Unfortunately, no such evidence was presented. Another fact which compels this Court to
proceed with caution is the fact that there are no instrumental witnesses in the document. The
mischief that lurks behind accepting at face value a document that is merely thumb-marked.
without any witnesses to it, and not acknowledged before a notary public could be one of the
reasons behind the requirement of the rules on evidence that a private writing must be shown
to be duly executed and authenticated. The probative value of the testimony of Brigida
Bautista, who did not furnish us with any details surrounding the execution of Exhibit "l,"
coming as it does from a person whose partisanship can not, and should not, be overlook (sic),
fags short from (sic) the minimum requirements of credibility. Indeed it has been said that the
testimony of an eye-witness as to the execution of a private document must be positive. He
must state that the document was actually executed by the person whose name is subscribed
thereto. It is not sufficient if he states in a general manner that such person made the writing
(Nolan vs. Salas, Bail. More so if the document was merely thumb-marked.
Regretably, this Court can not accept, for failure of proof as to its due execution and
authenticity, the probative value of Exhibit "1". (Record on Appeal, pp.38-39).
The Court sustains and adopts the trial court's findings and its conclusion that private respondents have failed to prove
the due execution and authenticity of the deed of sale (Exhibit 1).
The due execution and authenticity of the deed of sale, (Exhibit 1) not having been satisfactorily proven, such private
document should be excluded [Paz v. Santiago, 47 Phil. 334 (1925); Alejandrino v. Reyes, 53 Phil. 973 (1929);
Chapman v. Garcia, 64 Phil. 618 (1937); General Enterprises v. Lianga Bay Logging Co., G.R. No. L-18487, August
31, 1964, 11 SCRA 733].
2. Petitioner contends that the Court of Appeals erred in arriving at a conclusion not supported by the record, when it
said:
The pretension of the plaintiff that the defendant bound himself to pay the taxes for the use of
the land is belied by the fact that the defendant paid the taxes in his own name and not in the
name of Bunag, and the defendant kept the receipts of payment and did not deliver even one
of those receipts to Bunag. (Rollo, p. 19.)
Petitioner argues that this finding is grossly erroneous, considering that in the stipulation of facts submitted by both
parties before the trial court, it is expressly provided:
3. That the parties hereto hereby stipulate and agree that the defendant, Bruno Bautista, has
been paying the land taxes due on the aforesaid property, personally or thru his wife,
Consolacion Capati, for the period from 1940 to 1964, as shown by the corresponding official
land tax receipts duly issued by the Municipal Treasurer of Guagua, Pampanga; however,
under the column NAME OF DECLARED OWNER thereof, the name Bunag Aguas
Apolonio is written.
As this fact was stipulated by the parties, it need not be proven, it cannot be contradicted by evidence to the contrary,
and it is conclusive upon the parties, unless it is shown that the admission was made through a palpable mistake
[Irlanda v. Pitargue, 22 Phil. 383 (1912); Board of Administrators, Philippine Veterans Administration v. Agcaoili,
G.R. No. L-38129, July 23,1974, 58 SCRA 72].
There being no allegation of a palpable mistake that would relieve private respondents from the stipulation of facts,
the stipulated fact above-quoted is conclusive upon the parties.
The Court of Appeals cannot arbitrarily disregard the statement of facts agreed upon by the parties [Siping v. Cacob,
10 Phil. 717 (1908)]. It is duty bound to render judgment strictly in accordance with the stipulation of facts [Cabrera v.
Lacson, 71 Phil. 182 (1940)].
It may also be added that, indeed, in the Real Estate Tax Receipts (Exhibits 5-5-M) covering the years 1947 to 1964
presented by private respondents as their evidence, under the column entitled "NAME OF DECLARED OWNER" the
name "Bunag Aguas Apolonio" is written. This assumes greater significance considering that the payors in these
receipts were either private respondent Bruno Bautista, his wife Consolacion Capati or Ambrosio Bautista.
Thus, this Court finds merit in petitioner's contention that the Court of Appeals's conclusion is not supported by the
record, for said conclusion is contrary to the stipulated fact and the evidence offered by private respondents, which
support petitioner's contention that his father did not sen the disputed property to private respondents' father, but
merely allowed their brother to build a house on the land on the condition that the latter would pay for the realty taxes
due.
With the exclusion of the deed of sale (Exhibit 1), the conclusiveness of the stipulation regarding the payment of
realty taxes and the declaration of Apolonio Bunag Aguas as the owner in the Real Estate Tax Receipts (Exhibits 5-5-
M) it becomes apparent that petitioner's father never ceased to own the disputed property.
At this juncture, it would be opportune to address private respondent's submission that the questions raised in
petitioner's petition for review are questions of fact and not of law and, therefore, this Court should not disturb the
findings of fact of the Court of Appeals. While the Court agrees with private respondents that, ordinarily, the Supreme
Court should not review questions of fact in appeals of this nature, the Court finds, however, that an exception obtains
in the instant case, for clearly evident is a misapprehension of facts [De la Cruz v. Sosing, 94 Phil. 26 (1953); Castillo
v. Court of Appeals, G.R. No. 1,48290, September 29, 1983, 124 SCRA 808]. As summarized by the Court in a recent
decision:
The jurisdiction of this Court in cases brought to us from the Court of Appeals (now
Intermediate Appellate Court) is limited to the review of errors of law, said appellate court's
findings of fact being conclusive upon us except (1) when the conclusion is a finding
grounded entirely on speculation, surmises or conjectures; (2) when the inference made is
manifestly absurd, mistaken or impossible; (3) when there is grave abuse of discretion in the
appreciation of facts; (4) when the judgment is premised on a misapprehension of facts; (5)
when the findings of fact are conflicting; and (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 ... [Rizal Cement Co., Inc. v. Villareal, G.R. No. L-30272, February 28,
1985, 135 SCRA 151].
WHEREFORE, the petition is hereby GRANTED, the decision of the Court of Appeals is set aside and the decision of
the trial court is affirmed in toto. This Decision is immediately executory.
G.R. Nos. 79597-98 May 20, 1991
HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS, VIRGINIA CABAIS,
LEONOR CABAIS-PENA and DOLORES CABAIS-MAGPAYO, petitioners,
vs. COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO ENCARNACION D.
SONGCO, LOURDES D. SONGCO, ANGELA S. SONGCO, LUDIVINA S. SONGCO, JOSEPHINE S.
SONGCO, ALBERT S. SONGCO, INOSENCIO S. SONGCO, JAIME S. SONGCO, MARTIN S.
SONGCO, and BERNARD S. SONGCO, Being Heirs of Inocencio Songco, respondents.
PADILLA, J.:
This is a petition for review on certiorari of the decision * of respondent Court of Appeals in CA-G.R. CV
Nos. 08397-08398 dated 16 July 1987 affirming with modification the decision of the Regional Trial Court of
Guagua, Pampanga, in favor of private respondents, and its resolution dated 14 August 1987 denying the
motion for reconsideration.
This petition which originated with the Regional Trial Court of Guagua, Pampanga involves two (2) cases,
namely: Civil Case No. G-1190 and Civil Case No. G-1332.1
2. That after the defendants filed their Answer in the said Civil Case No. G-1190, and learning the
land subject of the two (2) abovementioned cases (sic), said plaintiffs filed a Motion for Leave to
Admit Amended and/or Supplemental Complaint.
3. That the said motion was denied by the Honorable Court, hence, said plaintiffs filed Civil Case
No. G-1332, the above-entitled case, with the same cause of action as that of the proposed
Amended and/or Supplemental Complaint;

Civil Case No. G-1190 is an action for recovery of possession with damages and preliminary injunction filed 4. That the evidences of both parties in Civil Case No. G-1190 and in the above-entitled case are
by herein petitioners, the heirs of Demetria Lacsa, against Aurelio Songco and John Doe based on the principal practically and literally the same;
allegations that petitioners are heirs of deceased Demetria Lacsa who, during her lifetime, was the owner of a
certain parcel of land consisting partly of a fishpond and partly of uncultivated open space, located in Bancal,
5. That in view of the foregoing, and in order to avoid duplicity of action by repeatedly presenting
Guagua, Pampanga, evidenced by Original Certificate of Title No. RO-1038 (11725); that the principal
the same act of evidences and same set of witnesses, the parties mutually agreed as they hereby
respondent and his predecessor-in-interest who are neither co-owners of the land nor tenants thereof, thru
agree and stipulate that any and all evidences presented under Civil Case No. 1190 shall be adopted
stealth, fraud and other forms of machination, succeeded in occupying or possessing the fishpond of said
as evidences for both parties in the above-entitled case, and upon submission for resolution of Civil
parcel of land and caused the open space therein to be cleared for expanded occupancy thereof, and refused to
Case No. G-1190, the above-entitled case shall likewise be deemed submitted for resolution on the
vacate the same despite petitioner's demands on them to vacate.2
basis of the evidence presented in the same Civil Case No. G-1190.6

Civil Case No. G-1332 is an action also by herein petitioners against private respondents before the same
On the basis of this joint stipulation of facts, the lower court held that:
lower court for cancellation of title, ownership with damages and preliminary injunction, based on the
allegations that they are the heirs of Demetria Lacsa who was the owner of the land also involved in Civil Case
No. G-1190; that the herein private respondents and their predecessors-in-interest, thru stealth, fraud and other
forms of machination, succeeded in occupying or possessing the fishpond of the said parcel of land, and later
abandoned the same but only after the case was filed and after all the fish were transferred to the adjoining
fishpond owned by the private respondents; that on 31 October 1923 and 15 March 1924, by presenting to the
Register of Deeds of Pampanga certain forged and absolutely simulated documents, namely: "TRADUCCION
AL CASTELLANO DE LA ESCRITURA DE PARTICION EXTRAJUDICIAL" and "ESCRITURA DE
VENTA ABSOLUTA", respectively, and by means of false pretenses and misrepresentation, Inocencio
Songco, the private respondents' predecessor-in-interest, succeeded in transferring the title to said property in
his name, to the damage and prejudice of the petitioners; and that a preliminary injunction was necessary to
prevent the private respondents from disposing of said property.3
Private respondents denied the material allegations of both complaints and alleged as special and affirmative
defenses, petitioners' lack of cause of action, for the reason that Original Certificate of Title No. RO-1038
(11725) was merely a reconstituted copy issued in April 1983 upon petitioners' expedient claim that the
owner's duplicate copy thereof had been missing when the truth of the matter was that OCT No. RO-1038
(11725) in the name of Demetria Lacsa, had long been cancelled and superseded by TCT No. 794 in the name
of Alberta Guevarra and Juan Limpin by virtue of the document entitled "TRADUCCION AL CASTELLANO
DE LA ESCRITURA DE PARTICION EXTRA-JUDICIAL" entered into by the heirs of Demetria Lacsa; that
the latter TCT was in turn superseded by TCT No. 929 issued in the name of Inocencio Songco (father of
private respondents) by virtue of a document entitled "ESCRITURA DE VENTA ABSOLUTA" executed by
spouses Juan Limpin and Alberta Guevarra in favor of said Inocencio Songo.4
. . . the fishpond in question was originally owned by Demetria Lacsa under Original Certificate of
Title No. 11725. After Demetria Lacsa died her two daughters Alberta Guevarra and Ambrocia
Guevarra with their respective husbands Juan Limpin and Damaso Cabais entered into an
extrajudicial partition of the properties left by Demetria Lacsa under the document "Traduccion Al
Castellano de la Escritura de Partition Extra-judicial" dated April 7, 1923 (Exhibits "3","3-A" and
"3-B") wherein the fishpond in question was adjudicated to Alberta Guevarra and which deed was
duly registered in the Office of the Registry of Deeds of Pampanga as evidenced by the certification
of the Deputy Register of Deeds marked as Exhibit "3-C". Aside from the "Traduccion Al
Castellano de la Escritura de Particion Extrajudicial" written in the Spanish language, the spouses
Alberta Guevarra and Juan Limpin and the spouses Ambrosia Guevarra and Damaso Cabais
executed on April 7, 1923, another deed of partition in the Pampango dialect marked as Exhibit "3-
D" "wherein the fishpond in question was adjudicated to Alberta Guevarra. As a consequence,
Original Certificate of Title No. 794 (Exhibit "4") was issued to spouses Alberta Guevarra and Juan
Limpin. On January 20, 1924, the spouses Juan Limpin and Alberta Guevarra sold the fishpond in
question to Inocencio Songco under the deed entitled "Escritura de Venta Absoluta" (Exhibits "7"
and "7-A") which was duly registered in the Office of the Registry of Deeds of Pampanga as
evidenced by the certification of the Deputy Register of Deeds marked Exhibit "7-B". As a result of
the sale, Transfer Certificate of Title No. 794 (Exhibit "4") in the name of the spouses Alberta
Guevarra and Juan Limpin was cancelled by the Office of the Registry of Deeds of Pampanga and
Transfer Certificate of Title No. 929 was issued to Inocencio
Songco."7

The lower court thus held that the fishpond in question belongs to the private respondents, having been
Private respondents, in their answer, pleaded a counterclaim against petitioners based on allegations that the
inherited by them from their deceased father Inocencio Songco.8
latter headed by Carlito Magpayo, by force and intimidation, took possession of a portion of the fishpond in
the land and occupied a hut therein, that at that time, private respondents had 3,000 bangus fingerlings left in
the fishpond which upon petitioners' harvest thereof left private respondents deprived and damaged in the The dispositive portion of the judgment in favor of private respondents reads:
amount of P50,000.00 more or less; that such illegal occupancy caused private respondents to suffer unrealized
income and profits, sleepless nights, wounded feelings and serious anxiety which entitled them to actual, moral
and exemplary damages as well as attorney's fees and P500.00 appearance fee for every hearing. 5 WHEREFORE, JUDGMENT is hereby rendered

In Civil Case No. G - 1190

On 20 January 1985, the parties assisted by their respective counsel filed in Civil Case No. G-1332 a joint
stipulation of facts, alleging:
(A) Ordering the dismissal of the complaint in Civil Case No. G-1190;
1. That on June 9, 1982, the plaintiffs, being heirs of Demetria Lacsa, filed Civil Case No. 1190;
In Civil Case No. G-1332
 (B) Ordering the dismissal of the complaint in Civil Case No. G-1332;
In Both Civil Case No. G-1190 and Civil Case No. G-1332
(C) Ordering the cancellation of Original Certificate of Title No. RO-1038 (11725) in the name of
Demetria Lacsa;
(D) Ordering the plaintiffs to restore possession of the fishpond in question located in Bancal,
Guagua, Pampanga, to the defendants (sic);
(E) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five
Thousand (P25,000.00) Pesos, Philippine Currency, as and for moral damages;
(F) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five
Thousand (P25,000.00) Pesos, Philippine Currency, as and for exemplary damages;
(G) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Ten Thousand
(P10,000.00) Pesos, Philippine Currency, as attorney's fees;
(H) Costs against the plaintiffs.
SO ORDERED.9
Petitioners appealed the above-mentioned decision to the respondent Court of Appeals assigning the following
errors allegedly committed by the lower court:
I. IN FAILING TO APPRECIATE THE PREPONDERANCE OF EVIDENCE IN FAVOR OF
THE PLAINTIFFS-APPELLANTS THAT THE TWO DOCUMENTS (EXHS. 3 & 7 AND
THEIR SUB-MARKINGS) WERE FORGED AND ABSOLUTELY SIMULATED
DOCUMENTS. HENCE, NULL AND VOID;
II. IN HOLDING THAT THERE WAS NO EVIDENCE THAT THE SIGNATURE OF JUAN
LIMPIN AND THUMBMARK OF ALBERTA GUEVARRA APPEARING ON THE EXCRITUA
DE VENTA ABSOLUTA (EXHS. 7 & 7-A) WERE FORGED;
III. IN APPRECIATING IN FAVOR OF THE APPELLEES THE DOCUMENTS PRESENTED
BY WITNESS JESUS CRUZ WHEN THEIR SOURCES COULD NOT BE ACCOUNTED FOR
AND THEIR AUTHENTICITY IS IN QUESTION;
IV. IN HOLDING THAT INOCENCIO SONGCO, THE PREDECESSOR-IN-INTEREST OF
THE APPELLEES WAS AN INNOCENT PURCHASER FOR VALUE;
V. IN HOLDING THAT TRANSFER CERTIFICATE OF TITLE NO. 929 WAS ISSUED TO
INOCENCIO SONGCO BY THE REGISTERED TRY OF DEEDS OF PAMPANGA;
VI. IN HOLDING THAT ORIGINAL CERTIFICATE OF TITLE NO. RO-1038 (11725) WAS
ISSUED BY THE COURT (CFI-III PAMPANGA) IN EXCESS OF OR WITHOUT
JURISDICTION AND THEREFORE NULL AND VOID;
VII. IN FAILING TO APPRECIATE THAT THE VOLUNTARY ABANDONMENT OF THE
FISHPOND IN QUESTION BY THE APPELLEES WAS A RECOGNITION OF APPELLANTS'
TITLE TO IT;
VIII. IN AWARDING DAMAGES TO THE APPELLEES.10
The Court of Appeals rendered a decision in the appealed case, the dispositive portion of which reads:
WHEREFORE, the decision appealed from is hereby AFFIRMED with the modification that
appellants are not liable for moral and exemplary damages as well as attorney's fees.
SO ORDERED.11
Petitioners flied a motion for reconsideration with the Court of Appeals but the same was denied in its
resolution dated 14 August 1987.12 Hence, this petition.
Petitioners assign the following alleged errors to the Court of Appeals:
I. IN APPLYING THE "ANCIENT DOCUMENT RULE" ON THE QUESTIONED DOCUMENT
ENTITLED "ESCRITURA DE PARTICION EXTRAJUDICIAL" AND "ESCRITURA DE
VENTA ABSOLUTA; AND MARKED DURING THE TRIAL AS EXHIBITS "3" AND "7",
RESPECTIVELY, FOR THE RESPONDENT HEREIN;
II. IN DISREGARDING THE MANDATORY REQUIREMENT OF THE NOTARIAL LAW
WHICH TOOK EFFECT AS EARLY AS FEBRUARY 1, 1903;
III. IN DISREGARDING THE RULE ON PROOF OF PUBLIC OR OFFICIAL RECORD, (SEC.
25, RULE 132, RULES OF COURT)13
Petitioners contend that the Court of Appeals wrongfully applied the "ancient document rule" provided in Sec.
22, Rule 132 of the Rules of Court.14 The rule states that:
Sec. 22. Evidence of execution not necessary.— Were a private writing is more than thirty years
old, is produced from a custody in which it would naturally be found if genuine, and is unblemished
by any alterations or circumstances of suspicion, no other evidence of its execution and authenticity
need be given.
It is submitted by petitioners that under this rule, for a document to be classified as an "ancient document", it
must not only be at least thirty (30) years old but it must also be found in the proper custody and is
unblemished by alterations and is otherwise free from suspicion.15 Thus, according to petitioners, exhibits "3"
and "7", entitled "Traduccion Al Castellano de la Escritura de Particion Extrajudicial" and "Escritura de Venta
Absoluta", respectively, can not qualify under the foregoing rule, for the reason that since the "first pages" of
said documents do not bear the signatures of the alleged parties thereto, this constitutes an indelible blemish
that can beget unlimited alterations.16
We are not persuaded by the contention. Under the "ancient document rule," for a private ancient document to
be exempt from proof of due execution and authenticity, it is not enough that it be more than thirty (30) years
old; it is also necessary that the following requirements are fulfilled; (1) that it is produced from a custody in
which it would naturally be found if genuine; and (2) that it is unblemished by any alteration or circumstances
of suspicion.17
The first document, Exhibit "3", entitled 'Traduccion Al Castellano de la Escritura de Particion Extrajudicial"
was executed on 7 April 1923 whereas the second document, exhibit "7", entitled "Escritura de Venta
Absoluta" was executed on 20 January 1924. These documents are, therefore, more than thirty (30) years old.
Both copies of the aforementioned documents were certified as exact copies of the original on file with the
Office of the Register of Deeds of Pampanga, by the Deputy Register of Deeds. There is a further certification
with regard to the Pampango translation of the document of extrajudicial partition which was issued by the
Archives division, Bureau of Records Management of the Department of General Services. 18
Documents which affect real property, in order that they may bind third parties, must be recorded with the
appropriate Register of Deeds. The documents in question, being certified as copies of originals on file with
the Register of Deeds of Pampanga, can be said to be found in the proper custody. Clearly, therefore, the first
two (2) requirements of the "ancient document rule" were met.

As to the last requirement that the document must on its face appear to be genuine, petitioners did not present
any conclusive evidence to support their allegation of falsification of the said documents. They merely alluded
to the fact that the lack of signatures on the first two (2) pages could have easily led to their substitution. We
cannot uphold this surmise absent any proof whatsoever. As held in one case, a contract apparently honest and
lawful on its face must be treated as such and one who assails the genuineness of such contract must present
conclusive evidence of falsification.19

Moreover, the last requirement of the "ancient document rule" that a document must be unblemished by any
alteration or circumstances of suspicion refers to the extrinsic quality of the document itself. The lack of
signatures on the first pages, therefore, absent any alterations or circumstances of suspicion cannot be held to
detract from the fact that the documents in question, which were certified as copied of the originals on file with
the Register of Deeds of Pampanga, are genuine and free from any blemish or circumstances of suspicion.

The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule 132 of the Rules of
Court.1âwphi1Further proof of their due execution and authenticity is no longer required. Having held that the
documents in question are private writings which are more than thirty (30) years old, come from the proper
repository thereof, and are unblemished by any alteration or circumstances of suspicion, there is no further
need for these documents to fulfill the requirements of the 1903 Notarial Law. Hence, the other contentions of
the petitioners that the documents do not fulfill the mandatory requirements of the Notarial Law20 and that the
proper person or public official was not presented to testify on his certification of the documents in
question,21 need not be resolved as they would no longer serve any purpose.

WHEREFORE, the Petition is DENIED. The appealed decision of the Court of Appeals is AFFIRMED. Costs
against the petitioners.

G.R. No. 76792 March 12, 1990

RESURRECCION BARTOLOME, ET AL., petitioners,

vs. THE INTERMEDIATE APPELLATE COURT (now Court of Appeals) and HEIRS OF SPOUSES
BERNABE BARTOLOME and URSULA CID, respondents.

FERNAN, C.J.:
This is a petition for review on certiorari of the decision 1 of the then Intermediate Appellate Court "adjudicating the
whole Lot No. 11165 in favor of" Bernabe Bartolome and Ursula Cid, thereby reversing the decision 2 of the Regional
Trial Court of Ilocos Norte, Branch XII at Laoag City. The dispositive portion of the latter decision states:
WHEREFORE, judgment is hereby rendered adjudicating the eastern portion to the heirs of
the late Epitacio Batara measuring 27 meters from south to north by 32 meters from east to
west, with an area of 864 square meters, bounded on the east by the Provincial Road; on the
north by the heirs of Rufo Manuel; on the west by a portion of the same Lot No. 11165; and
on the south by Lot No.11164; the remaining portion to the heirs of Doroteo Bartolome,
bounded on the east by the portion of Lot No. 11165 adjudicated to the heirs of Epitacio
Batara and heirs of Rufo Manuel; on the north by Eugenio Andrada; on the west by Nieves
Caday or Lot No. 11166; and on the south by Lot No. 11164.
Likewise, the heirs of Epitacio Bartolome Batara are hereby ordered to reserved (sic) the road
right of way for the necessary expansion of the road adjacent to the eastern side of said lot,
subject, however, to just compensation.
Once this Decision becomes final, let the corresponding Decree be issued accordingly.
IT IS SO ORDERED.
The record shows that a 725-square meter portion of said Lot No. 11165 located in Barrio 11, Laoag, Ilocos Norte,
was first declared as his property by Epitacio Batara under tax declaration No. 5708 dated May 23, 1906. 3 The
property was described therein as bounded on the north by the property of Pedro Manuel, on the east by the road, on
the south by the property of Doroteo Bartolome and on the west by the property of one named Esteban, and as having
"una casa de tabla de dimension 5 x 4 metros" as improvement. Tax declaration No. 5708 was superseded by tax
declaration No. 37576 labelled as a "revision of declaration of real property (urban)" dated April 23, 1914. 4The
residential lot described in the latter tax declaration contained an area of 772 square meters with a "casa" and a
"granero" as improvements thereon.
Epitacio Batara and his wife, Maria Gonzales, had two children: Catalina and Pedro. The latter died a bachelor and
without issue. Catalina, who married someone surnamed Bartolome, bore five children named Isabela, Tarcila,
Calixto, Resurreccion and Ruperta. In 1912, before he left Laoag to settle in Culalabo, Gamo (Burgos), Isabela,
Epitacio entrusted the lot to his cousin, Doroteo Bartolome, who owned the lot bounding Epitacio's property on the
south. 5 Maria Gonzales remained in the lot for sometime. When she later followed Epitacio to Isabela, she allowed
Doroteo Bartolome to continue taking charge of the property. 6
In 1916, Epitacio Batara died in Isabela. Five years later or in 1921, Maria Gonzales and her grandchildren, Calixto
and Resurreccion Bartolome, returned to Laoag. As they found that the house on their lot was destroyed by fire, they
boarded in someone else's house. Calixto constructed a bamboo fence around his grandfather's lot and he and
Resurreccion, who was studying in Laoag, cleaned it. Resurreccion went back to Isabela after Maria Gonzales' death
in 1926. 7 It was also in that year when Doroteo Bartolome, to whom Epitacio had entrusted his land, migrated to
Davao City. Doroteo died there two years later. 8
Thereafter, the Director of Lands instituted cadastral proceedings over the land involved herein (Cadastral Case No.
53). On October 23, 1933, Ursula Cid, the widow of the son of Doroteo Bartolome, Bernabe, who died in 1928, 9filed
an answer in Cadastral Case No. 53, claiming ownership over Lot No. 11165 with an area of 1660 square meters,
described as bounded on the north by the property of Rufo Manuel and Eugenia Andrada, on the east by the provincial
road, on the south by the property of Doroteo Bartolome, and on the west by the property of Nieves Caday and
Eugenia Andrada, and with a house as improvement thereon. The land was allegedly acquired by Ursula Cid through
inheritance from Doroteo Bartolome, the father of Ursula's deceased husband, Bernabe. 10
More than three months later or on January 30, 1934, Resurreccion Bartolome also filed an answer in the same
cadastral case claiming ownership over a portion of Lot No. 11165 with an area of 864 square meters described as
bounded on the north by the property of the heirs of Rufo Manuel, on the east by Blumentritt Street, on the south by
the property of Doroteo Bartolome, and on the west by the property of Bernabe Bartolome. No improvements on the
lot were indicated in the answer which also stated that said portion of Lot No. 11165 was acquired by claimant
Resurreccion Bartolome "by inheritance from my grandfather and grandmother . . . Epitacio Batara and Maria
Gonzales." 11
From then on, no further proceedings were held in the cadastral case. Meanwhile, in 1934, Resurreccion Bartolome
verbally entrusted the portion she had claimed to Maria Bartolome, whom she later described as the daughter of
Doroteo Bartolome. 12
In 1939, Ursula Cid and her children also migrated to Davao City leaving their house on Lot No. 11165 to a lessee,
Severino Ramos. Ursula and her son, Dominador Bartolome, instructed Maria Bartolome, the sister of Bernabe, to
receive the rentals for the house from Severino Ramos. 13 Maria Bartolome also paid the taxes on the property until
1948, when Dominador took over the task. 14 But on September 22, 1950, Maria Bartolome, as "administrator of the
parcel of land situated at Bo. 11, Laoag, Ilocos Norte," leased Lot No. 11165 to the Philippine United Trading Co.,
Inc. 15 The rentals for the property were paid by the lessee to Dominador Bartolome until the edifice housing the
company was burned down in 1968. 16 Resurreccion Bartolome, who had been residing in Isabela, was given by Maria
Bartolome a small amount, which could have been about P50, in consideration of the lease contract. 17
In June, 1968, the Court of First Instance of Ilocos Norte sent out
notices for the "continuation of the hearing" on June 13, 1968 in Cadastral Case No. 53. 18 It should be remembered,
however, that from the time Ursula Cid and Resurreccion Bartolome filed their answers to the petition in the cadastral
case, there had been no progress in the proceedings.
A year later or in 1969, Maria J. Bartolome filed in Cadastral Case No. 53 a "motion to admit answer in intervention,"
alleging that she is one of the children of Doroteo Bartolome and that she and her co-heirs had been excluded in
Ursula Cid's answer to the petition. She therefore prayed that the answer
of Ursula Cid be amended so as to include the rightful heirs of Doroteo Bartolome. 19 At the same time, she filed an
answer claiming co-ownership over Lot No. 11165 with Clemente, Julia and Rosario Bartolome and Ursula Cid, the
widow of Bernabe. She likewise alleged therein that she and her siblings inherited the 1660-square meter lot from
Doroteo Bartolome. 20
Three months later, Ursula Cid filed a motion to amend her answer to reflect the complete "ground or basis of
acquisition" of Lot No. 11165. 21 In her amended answer, Ursula Cid stated that she was the absolute owner of Lot
No. 11165; that she had been the possessor of Lot No. 11165 for over fifty years; that she "acquired by inheritance
from Bernabe Bartolome, who together with her, purchased the . . . lot which used to be three adjoining lots from their
respective owners;" and that Lot No. 11165 had been declared for tax purposes in the name of her late husband
Bernabe Bartolome. 22
No hearing was conducted in the case until 1974. To buttress her claim that she and her husband purchased Lot No.
11165, Ursula Cid presented at the trial three deeds of sale: [a] one dated March 1, 1917 showing that Bernabe
Bartolome and Ursula Cid bought a 374-square meter lot for fifteen pesos from the spouses Domingo Agustin and
Josefa Manrique; 23 [b] another document dated February 18, 1913 executed by Ignacia Manrique in favor of Bernabe
Bartolome evidencing the sale of another lot also for fifteen pesos; 24 and [c] still another deed executed by Maria
Gonzales y Paguyo on February 9, 1917 in favor of Bernabe Bartolome and Ursula Cid ceding to the latter 772 square
meters of land for P103.75. 25 The last-mentioned piece of land is the one being claimed by Resurreccion Bartolome.
On May 10, 1984, the Regional Trial Court of Ilocos Norte rendered a decision the dispositive portion of which is
quoted above. The court entertained only the answers of Ursula Cid and Resurreccion Bartolome. It found that the lots
described in Exhibits 2 and 3 presented by Ursula Cid "are not within Lot 11165" and that said exhibits "are defective
as the vendors are not the real owner(s)" of the lots described therein. As to Exhibit 4, the court ruled that it has "no
probative value as the same is incomplete and unsigned." The court also held that Ursula Cid's possession of the land
"after the claimants had filed their respective answer(s) or after the declaration of a general default," did not confer
ownership on her because said possession was interrupted and merely tolerated by all the parties during the pendency
of the case. 26
Ursula Cid appealed to the then Intermediate Appellate Court. In its decision reversing the lower court, the appellate
court held that the deeds of sale presented by Ursula Cid are ancient documents under Section 22, Rule 132 of the
Rules of Court. It also ruled that Ursula Cid's continuous possession of the lot from its acquisition and her exercise of
rights of ownership over it vested her with the legal presumption that she possessed it under a just title.
Her motion for the reconsideration of said decision having been denied, Resurreccion Bartolome filed the instant
petition for review on certiorari based on two principal issues: [a] whether the provisions of Rule 132 on ancient
documents are applicable with respect to Exhibit 4, and [b] whether acquisitive prescription runs during the pendency
of a cadastral case.
Exhibit 4 consists of three pieces of paper. The first piece is a blank sheet which apparently serves as a cover page.
The two other pages contain the handwritten document in Ilocano stating that in consideration of the amount of
P103.75, Maria Gonzales y Paguyo sold to the spouses Bernabe Bartolome and Ursula Cid 772 square meters of land
bounded on the north by the property of Pedro Manuel, on the east by the Bacarra road, on the south by the property
of Doroteo Bartolome and on the west by the property of Bernabe Bartolome. The third sheet or page 2 thereof
contains a warranty against eviction and other disturbances with the last three lines indicating the date of the execution
of the instrument.
According to Dominador Bartolome, he first saw Exhibit 4 in the possession of his mother, Ursula Cid, when he was
just eleven years old. He noticed that the document had a fourth page containing the signature of Maria Gonzales and
that all four pages were sewn together. 27 However, when the document was entrusted to him by his mother in 1947 as
he was then representing the family in litigation concerning the land, the document's fourth page was already
missing. 28 He stated that his mother told him that the fourth page was lost during the Japanese occupation while they
were evacuating from Davao City. 29
Dominador Bartolome also presented in court a sworn statement in Ilocano executed by Ursula Cid on February 19,
1937. 30 In her statement, Ursula Cid declared that the sale of the lot to her and her husband by Maria Gonzales was
evidenced by a written instrument; that the land had been transferred in the name of her husband; that she had been
paying taxes therefor, and that they had been in continuous possession of the land for more than twenty years. 31
Rule 132 of the Rules of Court provides:
Sec. 22. Evidence of execution not necessary. — Where a private writing is more than thirty
years old, is produced from a custody in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of suspicion, no other evidence of its
execution and authenticity need be given.
We agree with the appellate court that the first two requirements ordained by Section 22 are met by Exhibit 4. It
appearing that it was executed in 1917, Exhibit 4 was more than thirty years old when it was offered in evidence in
1983. 32 It was presented in court by the proper custodian thereof who is an heir of the person who would naturally
keep it. 33 We notice, however, that the Court of Appeals failed to consider and discuss the third requirement; that no
alterations or circumstances of suspicion are present.
Admittedly, on its face, the deed of sale appears unmarred by alteration. We hold, however, that the missing page has
nonetheless affected its authenticity. Indeed, its importance cannot be overemphasized. It allegedly bears the signature
of the vendor of the portion of Lot No. 11165 in question and therefore, it contains vital proof of the voluntary
transmission of rights over the subject of the sale. Without that signature, the document is incomplete. Verily, an
incomplete document is akin to if not worse than a document with altered contents.
Moreover, there is a circumstance which bothers the Court and makes the genuineness of the document suspect. If it is
really true that the document was executed in 1917, Ursula Cid would have had it in her possession when she filed her
answer in Cadastral Case No. 53 in 1933. Accordingly, she could have stated therein that she acquired the portion in
question by purchase from Maria Gonzales. But as it turned out, she only claimed purchase as a mode of acquisition
of Lot No. 11165 after her sister-in-law, Maria J. Bartolome and the other descendants of Doroteo Bartolome sought
intervention in the case and demanded their rightful shares over the property.
All these negate the appellate court's conclusion that Exhibit 4 is an ancient document. Necessarily, proofs of its due
execution and authenticity are vital. Under Section 21 of Rule 132, the due execution and authenticity of a private
writing must be proved either by anyone who saw the writing executed, by evidence of the genuineness of the
handwriting of the maker, or by a subscribing witness. The testimony of Dominador Bartolome on Exhibit 4 and
Ursula Cid's sworn statement in 1937 34 do not fall within the purview of Section 21. The signature of Maria Gonzales
on the missing fourth page of Exhibit 4 would have helped authenticate the document if it is proven to be genuine. But
as there can be no such proof arising from the signature of Maria Gonzales in the deed of sale, the same must be
excluded. 35
Even if Exhibit 4 were complete and authentic, still, it would substantially be infirm. Under Article 834 of the old
Civil Code, Maria Gonzales, as a surviving spouse, "shall be entitled to a portion in usufruct equal to that
corresponding by way of legitime to each of the legitimate children or descendants who has not received any
betterment." And, until it had been ascertained by means of the liquidation of the deceased spouse's estate that a
portion of the conjugal property remained after all the partnership obligations and debts had been paid, the surviving
spouse or her heirs could not assert any claim of right or title in or to the community property which was placed in the
exclusive possession and control of the husband as administrator thereof. 36 Hence, in the absence of proof that the
estate of Epitacio Batara had been duly settled, Maria Gonzales had no right to sell not even a portion of the property
subject of Exhibit 4.
On the issue of whether acquisitive prescription runs during the pendency of a cadastral case, we hold, as this Court
held in Cano v. De Camacho, 37 that the institution of cadastral proceedings, or at least the publication of the notice
therein issued, has the effect of suspending the running of the prescriptive period. Hence, the appellate court erred in
ascribing acquisitive prescription in favor of Ursula Cid "up to the present." 38
Neither can Ursula Cid successfully assert that prior to the institution of the cadastral proceedings, she and her
husband had gained acquisitive prescription over the property. Until Doroteo Bartolome migrated to Davao City in
1926, he was in possession of the whole lot including the portion entrusted to him by Epitacio Batara. Granting that
the 1520-square meter lot Bernabe Bartolome had declared as his own in 1925 39 is within Lot No. 11165, still, the
period from 1925 until the filing of the cadastral case in 1933 failed to give him an advantage. It is short of the 10-
year actual, adverse and uninterrupted period of possession mandated by Section 41 of the Code of Civil Procedure in
order that a full and complete title could be vested on the person claiming to be the owner of a piece of land.
Furthermore, while it is true that the property had been declared for tax purposes by Bernabe Bartolome and that,
subsequent to his death, taxes thereon were paid in the name of his son, Dominador, 40 ownership thereof had not been
acquired by Ursula Cid or her heirs. Aside from the fact that said declarations and payments were made during the
pendency of the cadastral case, a tax declaration in the name of the alleged property owner or of his predecessor-in-
interest, does not prove ownership. It is merely an indicium of a claim of ownership. 41 In the same manner, neither
does the payment of taxes conclusively prove ownership of the land paid for.
The foregoing discussion notwithstanding, the Court is unprepared to decree 824 square meters of Lot No. 11165 in
favor of Resurreccion Bartolome and her co-heirs to the estate of Epitacio Batara. The revised declaration of real
property in the name of Epitacio, which petitioners presented as Exhibit B, reveals that Epitacio Batara owned only
772 square meters of the lot involved. Certainly, petitioner and her co-heirs may not be entitled to an area greater than
what their grandfather claimed as his own.
Similarly, what remains of Lot No. 11165 after the portion herein adjudicated to Resurreccion Bartolome and her co-
heirs has been determined, may not be granted to the heirs of Bernabe Bartolome and Ursula Cid exclusively. The two
other deeds of sale presented as Exhibits 2 and 3 having been found worthless by the trial court as they involve parcels
of land not within Lot No. 11165 and the vendors of which were not the real owners of the property, which findings of
facts are binding on this Court, the law mandates that the property, having been inherited from Doroteo Bartolome,
must be shared in equal portions by his children or their heirs.
WHEREFORE, the appealed decision of the then Intermediate Appellate Court is hereby reversed and set aside.
The eastern portion of Lot No. 11165 with an area of 772 square meters is hereby adjudicated in favor of the heirs of
Epitacio Batara who are herein represented by Resurreccion Bartolome while the remaining area of Lot No. 11165 is
hereby adjudicated in favor of the heirs of Doroteo Bartolome.
Petitioners shall pay the cost of the survey and subdivision of Lot No. 11165. No costs.
G.R. No. 76595 May 6, 1988
PACIFIC ASIA OVERSEAS SHIPPING CORPORATION, petitioner,
vs. NATIONAL LABOR RELATIONS COMMISSION and TEODORO RANCES, respondents.
FELICIANO, J.:
The petitioner, Pacific Asia Overseas Shipping Corporation (Pascor, in short), seeks the annulment and setting
aside of the Resolutions of the public respondent National Labor Relations Commission (NLRC) dated 14
August 1986 and 19 November 1986, denying Pascor's appeal for having been filed out of time and denying its
Motion for Reconsideration, respectively.
Sometime in March 1984, private respondent Teodoro Rances was engaged by petitioner Pascor as Radio
Operator of a vessel belonging to Pascor's foreign principal, the Gulf-East Ship Management Limited. Four (4)
months later, and after having been transferred from one vessel to another four times for misbehaviour and
inability to get along with officers and crew members of each of the vessels, the foreign principal terminated
the services of private respondent Rances citing the latter's poor and incorrigible work attitude and incitement
of others to insubordination. 1
Petitioner Pascor filed a complaint against private respondent with the Philippine Overseas Employment
Administration tion (POEA) for acts unbecoming a marine officer and for, character assassination," which case
was docketed as POEA Case No: M-84-09-848. Private respondent denied the charges set out in the complaint
and by way of counterclaim demanded an amount of US$ 1,500.00 which a court in Dubai had, he contended,
awarded in his favor against petitioner's foreign principal. In due course, on 4 September 1985, the POEA
found private respondent liable for inciting another officer or seaman to insubordination and challenging a
superior officer to a fist fight and imposed six (6) months suspension for each offense or a total of twelve (12)
months suspension, with a warning that commission of the same or similar offense in the future would be met
with a stiffer disciplinary sanction. The POEA decision passed over sub silentio the counterclaim of private
respondent. 2
On 10 October 1985, private respondent filed a complaint against petitioner, docketed as POEA Case No: M-
85-10-0814 and entitled "Teodoro Rances v. Pacific Asia Overseas Shipping Corporation." In this complaint,
he sought to carry out and enforce the same award obtained by him in Dubai allegedly against Pascor's foreign
principal which he had pleaded as a counterclaim in POEA Case No: M-84-09-848. Private respondent
claimed that be had filed an action in the Dubai court for US$ 9,364.89, which claim was compromised by the
parties for US$ 5,500.00 plus "a return ticket to (private respondent's) country," with the proviso that "the
opponent" would pay "to the claimant" US$ 1,500.00 'in case the wife of the claimant Rantes doesn't agree
with the amount sent to [her] Private respondent further claimed that since his wife did not "agree with" the
amount given to her as 'an allotment for the 3-month period (of April, May and June 1984), he was entitled to
recover the additional US$ 1,500.00 "as mandated under the Compromise Agreement which was the basis of
the decision of the Dubai Civil Court. 3 As evidence of this foreign award, private respondent submitted what
purports to be an "original copy (sic) of the decision" of the Dubai court written in Arabic script and language,
With a copy of an English translation by an unidentified translator and a copy of a transmittal letter dated 23
September 1984 signed by one Mohd Bin Saleh "Honorary Consul for Philippines." The full texts of the
purported English translation of the Dubai award and of the transmittal letter are set out in the margin. 4
In its answer filed on 11 December 1985, petitioner Pascor made four principal arguments: that the copy of the
Dubai decision relied upon by private respondent could not be considered as evidence, not having been
properly authenticated; that Pascor was not a party to the Dubai court proceedings; that the POEA had no
jurisdiction over cases for the enforcement of foreign judgments; and that the claim had already been resolved
in POEA Case No: M-84-09-848, having been there dismissed as a counterclaim.
In a decision dated 14 April 1986, the POEA held petitioner Pascor liable to pay private respondent Rances the
amount of US$ 1,500.00 "at the prevailing rate of exchange at the time of payment." This decision was served
on petitioner's counsel on 18 April 1986, which counsel filed a 'Memorandum on Appeal and/or Motion for
Reconsideration" on 29 April 1986.
Private respondent moved the next day for dismissal of the appeal and for issuance of a writ of execution, upon
the ground that petitioner's appeal had been filed one (1) day beyond the reglementary period and that,
consequently, the POEA decision had become final and executory.
Petitioner opposed dismissal of its appeal and issuance of a writ of execution, arguing that the one (1) day
delay in filing its Memorandum on Appeal had been occasioned by an excusable mistake.
On 20 May 1986, the POEA issued an order denying petitioner's appeal for having been filed out of time.
Petitioner moved for reconsideration, paid the docket fee and posted the required supercedes bond in
connection with its appeal.
On 29 May 1986, the POEA denied private respondent's Motion for a Writ of Execution and elevated the case
to the NLRC.
On 14 August 1986, public respondent NLRC denied petitioner's appeal as flied out of time. Petitioner's
Motion for Reconsideration was similarly denied.
In the present Petition for certiorari and mandamus with prayer for Preliminary Injunction and Temporary
Restraint ' 9 Order, Pascor urges that public respondent NLRC acted with grave abuse of discretion or in
excess of its jurisdiction in denying its appeal and motion for reconsideration.
We think petitioner's contention has merit. The record shows, not an intent to delay the proceedings but rather
a genuine and substantial effort on the part of petitioner Pascor to file, in a timely manner, its Memorandum on
Appeal which, in the circumstances of this case, should not have been disregarded by respondent NLRC. The
circumstances surrounding the one (1) day delay in the filing of petitioner's Memorandum on Appeal are
summed up by petitioner in the following terms:
30.1. Mr. Ruben de la Cruz, who was newly hired as messenger in the law firm
representing the petitioner was tasked with the delivery of the memorandum on appeal
in the afternoon of April 28, 1986 (the last day for filing the same).
30.2. When Mr. de la Cruz read the caption of the memorandum, he noted that the same
is addressed to the respondent NLRC and he erroneously concluded that it should be
filed with the offices of the NLRC in Intramuros, Manila.
30.3. Wen Mr. de la Cruz presented petitioner's Appeal at the docket section of
respondent NLRC, he was advised that the same should be filed with the offices of the
POEA in Ortigas, San Juan, Metro Manila.
30.4. Mr. de la Cruz upon being apprised of his error immediately proceeded to the
offices of the POEA in order to have petitioner's (PASCOR's) appeal received but
unfortunately, by the time he arrived thereat, the POEA office had already closed for the
day. Thus, the appeal was filed the following day.
To Support the above explanation, in addition to an affidavit executed by Mr. Ruben de la Cruz, petitioner
submitted a certification dated 2 May 1986 executed by Evelyn G. Sauza, receive . receiving clerk of
respondent NLRC stating that she had read to receive the Memorandum on Appeal on or about 4:15 P.M., 28
April 1986, because the Memorandum was supposed to be filed with the POEA office in Ortigas and not with
the NLRC in Intramuros.
The brevity of the delay in filing an appeal is not, of course, by itself a sufficient basis for giving due course to
the appeal. In the present case, however, the factual circumstances combine with the legal merits of the case
urged by the petitioner to move us to the conviction that respondent NLRC should have recognized and heeded
the requirements of orderly procedure and substantial justice which are at stake in the present case by allowing
the appeal. In Siguenza v. Court of appeals, 5 the Court stressed that the right to appeal should not be lightly
disregarded by a stringent application of rules of procedure especially where the appeal is on its face
meritorious and the interests of substantial justice would be served by permitting the appeal:
In the case of Castro v. Court of Appeals (132 SCRA 782), we stressed the importance
and real purpose of the remedy of appeal and ruled:
 An appeal is an essential part of our judicial system. We have
advised the courts to proceed with caution so as not to deprive a
party of the right to appeal (National Waterworks and Sewerage
Authority v. Municipality of Libmanan, 97 SCRA 138) and
instructed that every party-litigant should be afforded the amplest
opportunity for the proper and just disposition of his cause, freed
from the constraints of technicalities (A. One Feeds, Inc. v. Court
of Appeals, 100 SCRA 590).<äre||anº•1àw>
The rules of procedure are not to be applied in a very rigid and
technical sense. The rules of procedure are used only to help
secure not override substantial justice. (Gregorio v. Court of
Appeals [72 SCRA 1201). Therefore, we ruled in Republic v.
Court of Appeals (83 SCRA 453) that a six-day delay in the
perfection of the appeal does not warrant its dismissal. And again
in Ramos v. Bagasao, 96 SCRA 396, this Court held that the
delay in four (4) days in filing a notice of appeal and a notion for
extension of time to file a record on appeal can be excused on the
basis of equity.
We should emphasize, however, that we have allowed the of an appeal in some cases
where a sent application of the rules would have denied it only when to do so would
serve the demands of substantial justice and in the exercise of our equity junction.
In the case at bar, the petitioner's delay in their record on appeal should not be strictly
construed as to deprive them of the right to appeal especially since on its face the
appeal appears to be impressed appeal especially with merit. 6
We turn to the merits of the Petition. An examination of the complaint and of the Manifestation and Motion
filed by respondent Rances in POEA Case No: M-85-08-14, shows that the cause of action pleaded by
respondent Rances was enforcement of the decision rendered by c. Dubai Court which purported to award him,
among other things, an additional amount of US$ 1,500.00 under certain circumstances. In the complaint dated
23 October 1985, respondent Rances stated:
Details of cause of action (Why are you complaining?) (To include place and date of
occurrence of case of action and amount of claim, if any) P 2,295 US$ salary for three
(3) months stated in the compromise of 1,500 TJS$ total of 2,795.50 US$ [as] per
decision from Civil Court of Dubai U.A.E. 7
The Motion/Manifestation dated 3 December 1985 filed by respondent Rances may be quoted in extension
1. Originally, complainant's claim was US$ 9,364.89 which he filed with the Dubai
Court for adjudication.
xxx xxx xxx
2. The US$ 9,364.89 claim was compromised by the court in a decision dated
September 12, 1984. Xerox copy of the decision is hereto attached as Annex "B" and the
authentication as Annex "B-l' and made an integral part thereof.
3. Pertinent portion of the decision referred to above reads as follows:
Both parties came to a decision that the opponent would pay to
the claimant the amount of Five Thousand & Five Hundred
dollars for the withdrawal of the claimant and providing him
return ticket to his country. The opponent declared that he would
pay One Thousand & Five Hundred Dollars to the opponent in
case the wife of the claimant doesn't agree with the amount sent
to.
4. During the hearing leading to the Compromise, I emphasized that the allotment I was
giving my wife was US$ 765.00 per month and at the time the case was filed the
allotment was already 3 months in arrears which already amounted to US$ 2,295.00.
5. The amount sent my wife which is only P 13,393.45 through PASCOR and confirmed
by a Certification of the Philippine National Bank, Dagupan City Branch, hereto
attached as Annex 'C' is definitely very meager compared to the exchange value of US$
2,295.00;
6. My wife certainly did not agree and cannot agree or admit that only P 13,393.45 will
be given her as an allotment for the 3-month period; hence, urder the Compromise
Agreement, we are entitled to recover the additional US$ 1,500.00;
7. The agreement insofar as the additional remittance to my wife of US$1,500.00 is
reasonable in that adding the same to the P13,393.45 my wife received would sum up to
US$2,295.00 corresponding to the accumulated 3 month allotment due my wife.
WHEREFORE, premises considered, it is respectfully prayed of this Honorable Office
to —
Cause or require respondent to remit and/or pay the undersigned or his wife of the
amount of US$ 1,500.00 as mandated under the Compromise Agreement which was the
basis of the decision of the Dubai Civil Court. 8
It should be noted that respondent Rances submitted to the POEA only the Dubai Court decision; he did not
submit any copy of the 'Compromise Agreement' (assuming that to have been reduced to writing) which he
presumably believed to have been absorbed and superseded by the Dubai decision.
That the cause of action set out in respondent Rances' complaint was enforcement of the Dubai decision is
further, indicated in the decision dated 14 April 1986 rendered by the POEA. This decision provided in part as
follows:
Complainant alleged that his original claim of US$ 9,364.89 for unpaid salaries,
termination pay and travel expenses was filed in Dubai. In a decision rendered by the
Dubai Court, his claim was compromised in the amount of US$ 5,500.00 plus return
plane ticket. The amount of US$ 1,500.00 will be paid to his wife if she does not agree
with the amount sent to her. The three (3) months unremitted allotments refers to the
months of April, May and June 1984. As evidenced by the Allotment Shp, respondent
approved the authority given by complainant stating that the amount of US$ 765.00 be
remitted to his wife belong with the month of April 1984. The amount remitted to his
wife for allotment cover the three (3) month period was only P 13,393.45. The basis of
complainant's claim is the reservation in the decision of the Dubai Court which states
that in case the wife of the claimant does not agree with the amount sent to her, the
opponent shall pay US$ l,500.00. 9
Clearly, therefore, respondent Rances' action was for enforcement of the Dubai decision to the extent that such
decision provided for payment of an additional amount of US$1,500.00 and that respondent relied upon such
decision.
Petitioner argues vigorously that the POEA had no authority and jurisdiction to enforce the judgment of a
foreign court. Under Section 1, Rule 1, Book VI of the POEA Rules and Regulations, it will be seen that the
POEA has jurisdiction to decide all cases 'involving employer employee relations arising out of or by virtue of
any law or contract involving Filipino workers for overseas employment, including seamen." Respondent
Rances, however, relied not upon the employer - employee relationship between himself and petitioner
corporation and the latter's foreign principal, but rather upon the judgment obtained by him from the Dubai
Court which had apparently already been partially satisfied by payment to respondent Rances of US$ 5,500.00.
The POEA has no jurisdiction to hear and decide a claim for enforcement of a foreign judgment. Such a claim
must be brought before the regular courts. The POEA is not a court; it is an administrative agency exercising,
inter alia, adjudicatory or quasi-judicial functions. Neither the rules of procedure nor the rules of evidence
which are mandatorily applicable in proceedings before courts, are observed in proceedings before the
POEA. 10
Even assuming (arguendo, merely) that the POEA has jurisdiction to recognize and enforce a foreign
judgment, still respondent Rances cannot rely upon the Dubai decision. The Dubai decision was not properly
proved before the POEA. The Dubai decision purports to be the written act or record of an act of an official
body or tribunal of a foreign country, and therefore a public writing under Section 20 (a) of Rule 132 of the
Revised Rules of Court. Sections 25 and 26 of Rules 132 prescribe the manner of proving a public of official
record of a foreign country in the following terms:
Sec. 25. Proof of public or official record. — An official record or an entry therein,
when admissible for any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied. if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is in a foreign
country, the certificate maybe be made by a secretary of embassy or litigation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign service of
the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.
Sec. 26. What attestation of copy must state. — Whenever a copy of a writing is attend
for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he
be the clerk of a court having a seal, under the seal of such court. (Emphasis supplied)
In the instant case, respondent Rances failed to submit any attestation issued by the proper Dubai official
having legal custody of the original of the decision of the Dubai Court that the copy presented by said
respondent is a faithful copy of the original decision, which attestation must furthermore be authenticated by a
Philippine Consular Officer having jurisdiction in Dubai. The transmittal letter, dated 23 September 1984,
signed by Mohd Bin Saleh, Honorary Consul for Philippines' does not comply with the requirements of either
the attestation under Section 26 nor the authentication envisaged by Section 25. 11
There is another problem in respect of the admissibility in evidence of the Dubai decision. The Dubai decision
is accompanied by a document which purports to be an English translation of that decision., but that translation
is legally defective. Section 34 of Rule 132 of the Revised Rules of Court requires that documents written in a
non-official language hke Arabic) shall not be admitted as evidence unless accompanied by a translation into
English or Spanish or Filipino. 12 In Ahag v. Cabiling, 13 Mr. Justice Moreland elaborated on the need for a
translation of a document written in a language other than an official language:
... Moreover, when there is presented in evidence an exhibit written in any language
other than Spanish, if there is an appeal, that exhibit should be translated into Spanish
by the official interpreter of the court, or a translation should be agreed upon by the
parties, and both original and translation sent to this court. In the case before us, there is
an untranslated exhibit written in the Visayan language. 14
In Teng Giok Yan v. Hon. Court of Appeals, et al., 15 the Court, speaking through Mr. Justice Montemayor, had
occasion to stress the importance of having a translation made by the court interpreter who must, of course, be
of recognized competence both in the language in which the document involved is written and in English. The
Court said:
[t]he trial court was certainly not bound by the translation given by the Chinese
Embassy, specially in the absence of a delete assurance that said translation was correct
and that it was made by the Embassy Adviser himself. On the other hand, the translation
made by the court interpreter is official and reliable not only because of the recognized
ability of said interpreter to translate Chinese characters into English, but also because
said interpreter was under the direct supervision and control of the court. .... 16
In the instant case, there is no showing of who effected the English translation of the Dubai decision which
respondent Rances submitted to the POEA. The English translation does not purport to have been made by an
official court interpreter of the Philippine Government nor of the Dubai Government. Neither the Identity of
the translator nor his competence in both the Arabic and English languages has been shown. The English
translation submitted by the respondent is not sworn to as an accurate translation of the original decision in
Arabic. Neither has that translation been agreed upon by the parties as a true and faithful one.
The foregoing does not exhaust the difficulties presented by reliance upon the Dubai decision. The Dubai
Court decision, even on the basis of the English translation submitted by respondent Rances, does not purport
on its face to have been rendered against petitioner Pascor nor against the foreign principal of
petitioner. Respondent Rances simply assumed that the decision was rendered against petitioner's foreign
principal. The Dubai decision does not Identify the parties to the litigation that was resolved by said
decision. Accordingly, the Dubai decision can scarcely be enforced against petitioner Pascor. Further, even if
the Dubai decision had on its face purported to be rendered against petitioner Pascor, we must note that
petitioner Pascor has expressly denied that jurisdiction had ever been acquired by the Dubai court over the
person of Pascor in accordance with the Rules of Procedure applicable before the Dubai Court. 17 Respondent
Rances has not proved the contents of the Dubai Rules of Procedure governing acquisition of jurisdiction over
the person of a non-resident defendant.
Finally, if it be assumed (arguendo, once more) that the Dubai Court had indeed acquired jurisdiction over the
person of Pascor's foreign principal — Gulf East Ship Management Ltd. — it still would not follow that Pascor
would automatically be bound by the Dubai decision. The statutory agency (or suretyship) of Pascor is limited
in its reach to the contracts of employment Pascor entered into on behalf of its principal with persons like
respondent Rances. 18 Such statutory inability does not extend to liability for judgments secured against Gulf
East Ship Management Ltd., in suits brought against Gulf East outside Philippine territorial jurisdiction, even
though such a suit may involve a contract of employment with a Filipino seaman.
We conclude that the POEA acted without or in excess of jurisdiction in rendering its Decision dated 14 April
1986 and its Order dated 20 May 1986, and that public respondent NLRC similarly acted without or in excess
of jurisdiction in rendering its Orders dated 14 August 1986 and 19 November 1986 denying petitioner's
appeal and Motion for Reconsideration. This, however, is without prejudice to the right of respondent Rances
to initiate another proceeding before the POEA against petitioner Pascor, this time on the basis alone of the
contract of employment which existed between said respondent and petitioner or petitioner's foreign principal;
there, respondent Rances may seek to show that he is still entitled to the allotments which he claims were not
remitted by his employer to his wife.
ACCORDINGLY, the Petition for certiorari is GRANTED and the Resolutions of public respondent NLRC
dated 14 August 1986 and 19 November 1986 are hereby NULLIFIED and SET ASIDE. The Temporary
Restraining Order issued by this Court on 8 December 1986 is hereby made PERCENT. No pronouncement as
to costs.
G.R. No. 104235 November 18, 1993
SPOUSES CESAR & SUTHIRA ZALAMEA and LIANA ZALAMEA, petitioners,
vs. HONORABLE COURT OF APPEALS and TRANSWORLD AIRLINES, INC., respondents.
NOCON, J.:
Disgruntled over TransWorld Airlines, Inc.'s refusal to accommodate them in TWA Flight 007 departing from New
York to Los Angeles on June 6, 1984 despite possession of confirmed tickets, petitioners filed an action for damages
before the Regional Trial Court of Makati, Metro Manila, Branch 145. Advocating petitioner's position, the trial court
categorically ruled that respondent TransWorld Airlines (TWA) breached its contract of carriage with petitioners and
that said breach was "characterized by bad faith." On appeal, however, the appellate court found that while there was a
breach of contract on respondent TWA's part, there was neither fraud nor bad faith because under the Code of Federal
Regulations by the Civil Aeronautics Board of the United States of America it is allowed to overbook flights.
The factual backdrop of the case is as follows:
Petitioners-spouses Cesar C. Zalamea and Suthira Zalamea, and their daughter, Liana Zalamea, purchased three (3)
airline tickets from the Manila agent of respondent TransWorld Airlines, Inc. for a flight to New York to Los Angeles
on June 6, 1984. The tickets of petitioners-spouses were purchased at a discount of 75% while that of their daughter
was a full fare ticket. All three tickets represented confirmed reservations.
While in New York, on June 4, 1984, petitioners received notice of the reconfirmation of their reservations for said
flight. On the appointed date, however, petitioners checked in at 10:00 a.m., an hour earlier than the scheduled flight
at 11:00 a.m. but were placed on the wait-list because the number of passengers who had checked in before them had
already taken all the seats available on the flight. Liana Zalamea appeared as the No. 13 on the wait-list while the two
other Zalameas were listed as "No. 34, showing a party of two." Out of the 42 names on the wait list, the first 22
names were eventually allowed to board the flight to Los Angeles, including petitioner Cesar Zalamea. The two
others, on the other hand, at No. 34, being ranked lower than 22, were not able to fly. As it were, those holding full-
fare tickets were given first priority among the wait-listed passengers. Mr. Zalamea, who was holding the full-fare
ticket of his daughter, was allowed to board the plane; while his wife and daughter, who presented the discounted
tickets were denied boarding. According to Mr. Zalamea, it was only later when he discovered the he was holding his
daughter's full-fare ticket.
Even in the next TWA flight to Los Angeles Mrs. Zalamea and her daughter, could not be accommodated because it
was also fully booked. Thus, they were constrained to book in another flight and purchased two tickets from American
Airlines at a cost of Nine Hundred Eighteen ($918.00) Dollars.
Upon their arrival in the Philippines, petitioners filed an action for damages based on breach of contract of air carriage
before the Regional Trial Court of Makati, Metro Manila, Branch 145. As aforesaid, the lower court ruled in favor of
petitioners in its decision 1 dated January 9, 1989 the dispositive portion of which states as follows:
WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiffs the
following amounts:
(1) US $918.00, or its peso equivalent at the time of payment representing the price of the
tickets bought by Suthira and Liana Zalamea from American Airlines, to enable them to fly to
Los Angeles from New York City;
(2) US $159.49, or its peso equivalent at the time of payment, representing the price of Suthira
Zalamea's ticket for TWA Flight 007;
(3) Eight Thousand Nine Hundred Thirty-Four Pesos and Fifty Centavos (P8,934.50,
Philippine Currency, representing the price of Liana Zalamea's ticket for TWA Flight 007,
(4) Two Hundred Fifty Thousand Pesos (P250,000.00), Philippine Currency, as moral
damages for all the plaintiffs'
(5) One Hundred Thousand Pesos (P100,000.00), Philippine Currency, as and for attorney's
fees; and
(6) The costs of suit.
SO ORDERED. 2
On appeal, the respondent Court of Appeals held that moral damages are recoverable in a damage suit predicated upon
a breach of contract of carriage only where there is fraud or bad faith. Since it is a matter of record that overbooking of
flights is a common and accepted practice of airlines in the United States and is specifically allowed under the Code of
Federal Regulations by the Civil Aeronautics Board, no fraud nor bad faith could be imputed on respondent
TransWorld Airlines.
Moreover, while respondent TWA was remiss in not informing petitioners that the flight was overbooked and that
even a person with a confirmed reservation may be denied accommodation on an overbooked flight, nevertheless it
ruled that such omission or negligence cannot under the circumstances be considered to be so gross as to amount to
bad faith.
Finally, it also held that there was no bad faith in placing petitioners in the wait-list along with forty-eight (48) other
passengers where full-fare first class tickets were given priority over discounted tickets.
The dispositive portion of the decision of respondent Court of Appeals3 dated October 25, 1991 states as follows:
WHEREFORE, in view of all the foregoing, the decision under review is hereby MODIFIED
in that the award of moral and exemplary damages to the plaintiffs is eliminated, and the
defendant-appellant is hereby ordered to pay the plaintiff the following amounts:
(1) US$159.49, or its peso equivalent at the time of the payment, representing the price of
Suthira Zalamea's ticket for TWA Flight 007;
(2) US$159.49, or its peso equivalent at the time of the payment, representing the price of
Cesar Zalamea's ticket for TWA Flight 007;
(3) P50,000.00 as and for attorney's fees.
(4) The costs of suit.
SO ORDERED.4
Not satisfied with the decision, petitioners raised the case on petition for review on certiorari and alleged the
following errors committed by the respondent Court of Appeals, to wit:
I.
. . . IN HOLDING THAT THERE WAS NO FRAUD OR BAD FAITH ON THE PART OF
RESPONDENT TWA BECAUSE IT HAS A RIGHT TO OVERBOOK FLIGHTS.
II.
. . . IN ELIMINATING THE AWARD OF EXEMPLARY DAMAGES.
III.
. . . IN NOT ORDERING THE REFUND OF LIANA ZALAMEA'S TWA TICKET AND
PAYMENT FOR THE AMERICAN AIRLINES
TICKETS.5
That there was fraud or bad faith on the part of respondent airline when it did not allow petitioners to board their flight
for Los Angeles in spite of confirmed tickets cannot be disputed. The U.S. law or regulation allegedly authorizing
overbooking has never been proved. Foreign laws do not prove themselves nor can the courts take judicial notice of
them. Like any other fact, they must be alleged and proved.6 Written law may be evidenced by an official publication
thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied
with a certificate that such officer has custody. The certificate may be made by a secretary of an embassy or legation,
consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. 7
Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customer service agent, in her
deposition dated January 27, 1986 that the Code of Federal Regulations of the Civil Aeronautics Board allows
overbooking. Aside from said statement, no official publication of said code was presented as evidence. Thus,
respondent court's finding that overbooking is specifically allowed by the US Code of Federal Regulations has no
basis in fact.
Even if the claimed U.S. Code of Federal Regulations does exist, the same is not applicable to the case at bar in
accordance with the principle of lex loci contractus which require that the law of the place where the airline ticket was
issued should be applied by the court where the passengers are residents and nationals of the forum and the ticket is
issued in such State by the defendant airline.8 Since the tickets were sold and issued in the Philippines, the applicable
law in this case would be Philippine law.
Existing jurisprudence explicitly states that overbooking amounts to bad faith, entitling the passengers concerned to an
award of moral damages. In Alitalia Airways v. Court of Appeals,9 where passengers with confirmed bookings were
refused carriage on the last minute, this Court held that when an airline issues a ticket to a passenger confirmed on a
particular flight, on a certain date, a contract of carriage arises, and the passenger has every right to expect that he
would fly on that flight and on that date. If he does not, then the carrier opens itself to a suit for breach of contract of
carriage. Where an airline had deliberately overbooked, it took the risk of having to deprive some passengers of their
seats in case all of them would show up for the check in. For the indignity and inconvenience of being refused a
confirmed seat on the last minute, said passenger is entitled to an award of moral damages.
Similarly, in Korean Airlines Co., Ltd. v. Court of Appeals, 10 where private respondent was not allowed to board the
plane because her seat had already been given to another passenger even before the allowable period for passengers to
check in had lapsed despite the fact that she had a confirmed ticket and she had arrived on time, this Court held that
petitioner airline acted in bad faith in violating private respondent's rights under their contract of carriage and is
therefore liable for the injuries she has sustained as a result.
In fact, existing jurisprudence abounds with rulings where the breach of contract of carriage amounts to bad faith.
In Pan American World Airways, Inc. v. Intermediate Appellate Court, 11 where a would-be passenger had the
necessary ticket, baggage claim and clearance from immigration all clearly and unmistakably showing that she was, in
fact, included in the passenger manifest of said flight, and yet was denied accommodation in said flight, this Court did
not hesitate to affirm the lower court's finding awarding her damages.
A contract to transport passengers is quite different in kind and degree from any other contractual relation. So ruled
this Court in Zulueta v. Pan American World Airways, Inc. 12 This is so, for a contract of carriage generates a relation
attended with public duty — a duty to provide public service and convenience to its passengers which must be
paramount to self-interest or enrichment. Thus, it was also held that the switch of planes from Lockheed 1011 to a
smaller Boeing 707 because there were only 138 confirmed economy class passengers who could very well be
accommodated in the smaller planes, thereby sacrificing the comfort of its first class passengers for the sake of
economy, amounts to bad faith. Such inattention and lack of care for the interest of its passengers who are entitled to
its utmost consideration entitles the passenger to an award of moral damages. 13
Even on the assumption that overbooking is allowed, respondent TWA is still guilty of bad faith in not informing its
passengers beforehand that it could breach the contract of carriage even if they have confirmed tickets if there was
overbooking. Respondent TWA should have incorporated stipulations on overbooking on the tickets issued or to
properly inform its passengers about these policies so that the latter would be prepared for such eventuality or would
have the choice to ride with another airline.
Respondent TWA contends that Exhibit I, the detached flight coupon upon which were written the name of the
passenger and the points of origin and destination, contained such a notice. An examination of Exhibit I does not bear
this out. At any rate, said exhibit was not offered for the purpose of showing the existence of a notice of overbooking
but to show that Exhibit I was used for flight 007 in first class of June 11, 1984 from New York to Los Angeles.
Moreover, respondent TWA was also guilty of not informing its passengers of its alleged policy of giving less priority
to discounted tickets. While the petitioners had checked in at the same time, and held confirmed tickets, yet, only one
of them was allowed to board the plane ten minutes before departure time because the full-fare ticket he was holding
was given priority over discounted tickets. The other two petitioners were left behind.
It is respondent TWA's position that the practice of overbooking and the airline system of boarding priorities are
reasonable policies, which when implemented do not amount to bad faith. But the issue raised in this case is not the
reasonableness of said policies but whether or not said policies were incorporated or deemed written on petitioners'
contracts of carriage. Respondent TWA failed to show that there are provisions to that effect. Neither did it present
any argument of substance to show that petitioners were duly apprised of the overbooked condition of the flight or that
there is a hierarchy of boarding priorities in booking passengers. It is evident that petitioners had the right to rely upon
the assurance of respondent TWA, thru its agent in Manila, then in New York, that their tickets represented confirmed
seats without any qualification. The failure of respondent TWA to so inform them when it could easily have done so
thereby enabling respondent to hold on to them as passengers up to the last minute amounts to bad faith. Evidently,
respondent TWA placed its self-interest over the rights of petitioners under their contracts of carriage. Such conscious
disregard of petitioners' rights makes respondent TWA liable for moral damages. To deter breach of contracts by
respondent TWA in similar fashion in the future, we adjudge respondent TWA liable for exemplary damages, as well.
Petitioners also assail the respondent court's decision not to require the refund of Liana Zalamea's ticket because the
ticket was used by her father. On this score, we uphold the respondent court. Petitioners had not shown with certainty
that the act of respondent TWA in allowing Mr. Zalamea to use the ticket of her daughter was due to inadvertence or
deliberate act. Petitioners had also failed to establish that they did not accede to said agreement. The logical
conclusion, therefore, is that both petitioners and respondent TWA agreed, albeit impliedly, to the course of action
taken.
The respondent court erred, however, in not ordering the refund of the American Airlines tickets purchased and used
by petitioners Suthira and Liana. The evidence shows that petitioners Suthira and Liana were constrained to take the
American Airlines flight to Los Angeles not because they "opted not to use their TWA tickets on another TWA flight"
but because respondent TWA could not accommodate them either on the next TWA flight which was also fully
booked. 14 The purchase of the American Airlines tickets by petitioners Suthira and Liana was the consequence of
respondent TWA's unjustifiable breach of its contracts of carriage with petitioners. In accordance with Article 2201,
New Civil Code, respondent TWA should, therefore, be responsible for all damages which may be reasonably
attributed to the non-performance of its obligation. In the previously cited case of Alitalia Airways v. Court of
Appeals, 15 this Court explicitly held that a passenger is entitled to be reimbursed for the cost of the tickets he had to
buy for a flight to another airline. Thus, instead of simply being refunded for the cost of the unused TWA tickets,
petitioners should be awarded the actual cost of their flight from New York to Los Angeles. On this score, we differ
from the trial court's ruling which ordered not only the reimbursement of the American Airlines tickets but also the
refund of the unused TWA tickets. To require both prestations would have enabled petitioners to fly from New York
to Los Angeles without any fare being paid.
The award to petitioners of attorney's fees is also justified under Article 2208(2) of the Civil Code which allows
recovery when the defendant's act or omission has compelled plaintiff to litigate or to incur expenses to protect his
interest. However, the award for moral damages and exemplary damages by the trial court is excessive in the light of
the fact that only Suthira and Liana Zalamea were actually "bumped off." An award of P50,000.00 moral damages and
another P50,000.00 exemplary damages would suffice under the circumstances obtaining in the instant case.
WHEREFORE, the petition is hereby GRANTED and the decision of the respondent Court of Appeals is hereby
MODIFIED to the extent of adjudging respondent TransWorld Airlines to pay damages to petitioners in the following
amounts, to wit:
G.R. No. L-36282 December 10, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. COSME MONLEON, accused-appellant.
AQUINO, J.:
Cosme Monleon appealed from the decision of the Court of First Instance of Cebu, finding him guilty of
parricide, sentencing him to reclusion perpetua, and ordering him to pay the heirs of his deceased wife,
Concordia Bongo, an indemnity of twelve thousand pesos plus moral damages in the sum of two thousand
pesos (Criminal Case No. BO-121).
After that judgment was read to him in open court on January 11, 1973, he asked that the penalty be reduced
(156 tsn). The court advised him to appeal if he was not satisfied with the penalty.
The Solicitor General submits that the judgment of conviction should be affirmed but recommends executive
clemency because the penalty of reclusion perpetua appears to be excessive, considering the degree of malice
exhibited by Monleon (Art. 5, Revised Penal Code; Sec. 14, Art. IX, 1973 Constitution).
The judgment was based on the following facts:
Appellant Monleon and his wife, Concordia Bongo, who had been married for twenty-six years (Exh. A), were
residents of Barrio Lunas, Borbon, Cebu. On June 1, 1970 Monleon, a forty-five year old illiterate farmer,
worked in the palihug (a sort of bayanihan) at the farm of Tomas Rosello, his brother-in-law. There, he
imbibed copious amounts of tuba, the coconut wine that is a causative factor in the rampancy of criminality or
lawlessness in rural areas.
At about seven o'clock in the evening of that day, June 1, Cosme Monleon arrived at his house. He was drunk.
He inquired from Concordia whether their carabao had been fed by their ten-year old son, Marciano. She
assured him that the carabao had been fed. He repaired to the place where the carabao was tethered to check
the veracity of her statement. He discovered that the carabao had not been adequately fed. He became furious.
When he was about to whip Marciano, Concordia intervened. A violent quarrel ensued between them. He
placed himself astride his wife's chest, squezzed her neck, pressed her head against a post, and kicked her in
the abdomen.
He shouted: "What do I care if there would be someone who would be buried tomorrow. You let your brothers
and sisters stand up and I will also include them." Felicisimo, one of the couple's six children, pulled away his
father and stopped his assault on Concordia.
The following morning Concordia vomitted blood. She died at eleven o'clock on that morning of June 2. Death
was due to "acute abdomen" (Exh. B), a pathologic condition within the belly, requiring surgical intervention
(Blakiston's New Gould Medical Dictionary, 2nd Edition, page 2).
Sixteen days after Concordia Bongo's death, or on June 18, Monleon thumbmarked a confession, written in the
Cebuano dialect and sworn to before the town mayor (Exh. C). He admitted in that confession that he assaulted
his wife and that he had repented for the wrong which he had done to her. He orally admitted to Perfecto
Bongo, a lieutenant in the Cebu City police department and a relative of Concordia, that he (Monleon)
assaulted his wife because he was drunk and she was a nagger (133-134 tsn November 24, 1972).
On July 31, 1970 or about two months after Concordia's death, a medico-legal officer of the National Bureau
of Investigation (NBI) exhumed her body. He found bluish-black discolorations on the sphenoid temporal
bones of her skull, on the atlas or cervical vertebra below the skull or at the base of the neck, and on the first
ribs. The discolorations were due to internal hemorrhage "caused by trauma or external violence" (Exh. D-1;
21-24 tsn). The doctor ventured the opinion that the "acute abdomen" could have been caused "by external
violence" (37 tsn).
Appellant Monleon, by means of his testimony and the testimonies of his nineteen-year old daughter,
Felicisima, and his twelve-year old son, Marciano (a third-grade pupil), denied that he used violence against
his wife. He testified that he and his wife had merely a verbal quarrel and that Clemencia Bongo-Monleon, the
sister of Concordia and the wife of his elder brother, testified against him because Clemencia and Monleon had
a boundary dispute regarding the lands inherited by Clemencia and Concordia from their father, Victor Bongo.
Monleon said that Lieutenant Bongo asked him to sign a "recibo" that he would take care of his children (113
tsn). He also said that some persons threatened to kill him if he did not affix his thumbmark to his confession
(116 tsn).
As already stated, the trial court convicted Monleon of parricide. In this appeal, his counsel de oficio the trial
court erred in giving credence to Monleon's confession, the affidavit of his son, Marciano (Exh. E), and the
testimonies of the prosecution witnesses, Clemencia Bongo-Monleon, Epifania Bongo, Perfecto Bongo, and
the NBI medico-legal officer, Doctor Ceferino Cunanan; in treating the alleged declarations of Concordia
Bongo to Clemencia's husband as part of the res gestae and in rejecting the testimonies of Monleon and his
two children, Marciano and Felicisima.
The crucial fact in this case is that Monleon feloniously assaulted his wife in the evening of June 1, 1970 by
choking her, bashing her head against a post and kicking her in the abdomen. He did not use any weapon but
the acts of physical violence which he inflicted on her produced internal complications which caused her to
vomit blood the next day and eventually snuffed out her life.
The corpus delicti or the fact of the commission of the crime of which Concordia Bongo was the victim was
established by the prosecution witnesses, Clemencia Bongo-Monleon and Epifania Bongo. Hence, Monleon's
extrajudicial confession (Exh. C) was corroborated by evidence of the corpus delicti (Sec. 3, Rule 133 and sec.
29, Rule 130, Rules of Court).
The trial court said that it took pains to observe the demeanor on the witness stand of the mayor Epifania, and
Clemencia, who all testified for the prosecution, and appellant Monleon himself. It was convinced that the
confession "was voluntarily executed by the accused."
Appellant's counsel de oficio contends that there are discrepancies between Monleon's confession and the
version given by the prosecution witnesses, Epifania and Clemencia. Those two witnesses testified that
Concordia died at eleven o'clock in the morning while Monleon in his confession declared that his wife died at
one o'clock in the afternoon. Another discrepancy is that according to prosecution witnesses Monleon was not
present when his wife died but according to the confession, he was with her when she breathed her last.
Counsel de oficio also points out that the confession was supposed to have been thumbmarked on June 16,
1970 and then sworn to before the mayor two days later or on June 18 but, according to Lieutenant Bongo, he
investigated Monleon in the early morning of June 18 and his confession was executed at that time.
We are of the opinion that those discrepancies do not destroy the probative value of the confession nor negate
Monleon's admission therein that he assaulted his wife. A court may reject portions of the confession by reason
of the improbability of the facts or statements therein or because of their falsity or untrustworthiness (People
vs. Layos, 60 Phil. 760; People vs. Piring, 63 Phil. 546; People vs. Villanueva, 115 Phil. 858; 22 C.J.S. 1479).
The mayor and Lieutenant Bongo testified that Monleon was not forced to affix his thumbmark to the
confession. There is no evidence that he was tortured or maltreated. Monleon could have complained to the
fiscal during the preliminary investigation that he was forced to execute his confession. He did not do so.
Attorney Prospero A. Crescini, appellant's counsel de oficio, examined meticulously the evidence,
conscientiously studied Page 268 the case and submitted a good brief. He points out that Clemencia and
Epifania did not mention that they saw each other when they allegedly witnessed the assault made by Monleon
on his wife; that they did not report immediately to the authorities the alleged incident; that it was strange that
Epifania did not ask her husband, Gervasio Bongo, the brother of the victim, to stop the assault, and that
Clemencia failed to summon her husband, an elder brother of Monleon, to pacify the latter.
Those acts and omission of Clemencia and Epifania do not render their testimonies worthless The two
prosecution witnesses are uneducated. The fiscal in his direct examination and the defense counsel did not ask
them whether they saw each other in the yard of Monleon's house when they allegedly saw Monleon mauling
his wife. Most likely, they assumed that Monleon was merely chastising his wife, as he had repeatedly done in But considering that Monleon had no intent to kill his wife and that her death might have been hastened by
the past, and that he did not intend to kill her. They were not cognizant at first of the grave consequences lack of appropriate medical attendance or her weak constitution, the penalty of reclusion perpetua appears to
resulting from Monleon's violent acts. Hence, they did not see the necessity of the intervention of other persons be excessive. A strict enforcement of the provisions of the Penal Code means the imposition of a draconian
or of the barrio captain and the police. penalty on Monleon.

Appellant's counsel argues that the trial court erred in admitting Marciano Monleon's affidavit which was
written in the Cebuano dialect (Exh. E) and which was not accompanied with the corresponding translation.
That confession is well-taken.
The trial court erred in admitting that affidavit over the objection of appellant's counsel because section 34,
Rule 132 of the Rules of Court provides that documents written in an unofficial language shall not be admitted
as evidence, unless accompanied with a translation into English, Spanish or the national language "To avoid
interruption of proceedings, parties or their attorneys are directed to have such translation prepared before
trial" (See. 34).
This case is similar to People vs. Rabao, 67 Phil. 255 where the husband quarrelled with his wife because he
wanted to restrain her from giving a bath to their child, who had a cold. In the course of the quarrel, he
punched her in the abdomen. As a result she suffered an attack and died. He was convicted of parricide and
sentenced to reclusion perpetua. The commutation of the penalty was recommended to the Chief Executive
(See People vs. Formigones, 87 Phil. 658; U.S. vs. Guevara, 10 Phil. 37; People vs. Castañeda, 60 Phil. 604,
609; People vs. Gungab, 64 Phil. 779).
Therefore, there is sufficient justification for the Solicitor General's recommendation that Monleon's case be
brought to the attention of the Chief Executive so that the penalty of reclusion perpetua may be reduced.

Also meritorious is appellant's contention that the trial court erred in ruling that the alleged declarations of WHEREFORE, the trial court's judgment is affirmed. Pursuant to article 5 of the Revised Penal Code, a
Concordia Bongo to the husband of Clemencia Bongo Monleon, as to the violent acts inflicted upon her certified copy of this decision should be furnished the Chief Executive through the Secretary of Justice (See
(Concordia) by appellant Monleon, are part of the res gestae. That ruling was made in connection with sec. 3[1], Art. XVII, 1973 Constitution). Costs against the appellant.
Clemencia's testimony (not on direct examination but in answer to the questions of the trial judge) that at eight
o'clock in the evening of June 1, 1970, or about an hour after Concordia was assaulted by Monleon, she
SO ORDERED.
(Concordia) left her house and went to Clemencia's house three hundred meters away and recounted to
Clemencia's husband (appellant Monleon's brother) how she was beaten by Monleon (22 tsn).

Appellants counsel observed that it was incredible that Concordia, after being severely maltreated by Monleon
(according to the prosecution's version), would still have the strength to go to Clemencia's house which was
located on a hill.

Clemencia's testimony reveals that she must have been confused in making that assertion, assuming that it was
accurately translated and reported. A careful scrutiny of her entire testimony reveals that what she really meant
was that Concordia on the following day, June 2, recounted to her, as Concordia recounted also to Epifania,
how she was maltreated by Monleon. In all probability what happened was that Clemencia, on arriving at her
house at around eight o'clock in the evening of June 1, apprised her husband that she witnessed the assault
made by Monleon on her sister, Concordia.

The trial court's error in regarding as part of the res gestae the statement supposedly made by Concordia to
Clemencia's husband immediately after the incident and its error in admitting Monleon's affidavit are not
sufficient to exculpate Monleon or engender any reasonable doubt as to his guilt.

The testimonies of Epifania and Clemencia, the confession of Monleon, as supported by the testimonies of the
mayor and Lieutenant Bongo, and the expert opinion of the NBI medico-legal officer are sufficient to establish
the guilt of appellant Monleon.

The instant case is covered by article 4 of the Revised Penal Code which provides that criminal liability is
incurred by any person committing a felony although the wrongful act done be different from that which he
intended. The maltreatment inflicted by Monleon on his wife was the proximate cause of her death.

Monleon in his inebriated state had no intent to kill her. He was infuriated because his son did not feed his
carabao. He was provoked to castigate his wife because she prevented him from whipping his negligent son.
He could have easily killed his wife had he really intended to take her life. He did not kill her outright.

The trial court did not appreciate any mitigating circumstances in favor of Monleon. The Solicitor General is
correct in finding that the extenuating circumstances of lack of intent to commit so grave a wrong and G.R. No. 115690 February 20, 1996
intoxication, which was not habitual, are present in this case. Hence, the penalty imposable on Monleon
is reclusion perpetua (Arts. 63[3] and 246, Revised Penal Code).
 PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. REY SALISON, JR.,* TIRSO ANDIENTE, RUFINO DIGNARAN and LEONILO
FEDILES, accused.
REY SALISON, JR., accused-appellant.
DECISION
REGALADO, J.:
Accused-appellant Rey Salison, Jr., alias "Loloy," appeals from a judgment in Criminal Case No. 21805-91 of
the Regional Trial Court of Davao City, Branch 16, which imposed upon him the penalty of relusion
perpetua for the murder of one Rolando Valmoria.
The information filed against appellant and the co-accused Tirso Andiente, alias "Sano"; Rufino Dignaran,
alias "Jongjong"; and Leonilo Fediles, alias "Ondoy," alleges:
That on November 30, 1990 in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, confederating and mutually helping one another,
with abuse of superior strength and with intent to kill, willfully, unlawfully and feloniously mauled
and pummeled with hard wood one Rolando Valmoria. Serious and fatal injuries were inflicted
which subsequently caused the death of Rolando Valmoria on December 4, 1990. 1
Upon arraignment, appellant Rey Salison, Jr., assisted by counsel de officio, entered a plea of "not
guilty."2 Trial then proceeded only against him, because his three other co-accused were and, still are, at large.
On November 26, 1993, the trial court rendered a decision with the following decretal portion:
WHEREFORE, finding the accused Rey Salison guilty beyond reasonable doubt of the crime of
MURDER punishable under Article 248 of the Revised Penal Code, with no modifying
circumstance present, the Court has no other alternative but to impose the proper penalty of
"reclusion perpetua", the same being the medium period within the range of the penalty imposable
and to pay the cost(s); to indemnify the offended party (in) the amount of P50,000.00 as
compensatory damages and P7,270.70 as actual damages. 3 (Corrections in parentheses ours.)
In the present appeal, herein appellant contends that the trial court erred (1) in finding that there was proof
beyond reasonable doubt that the accused conspired with his co-accused in killing the victim, (2) in not
holding that accused is only responsible for the injuries that he actually inflicted on the victim, and (3) in
admitting in evidence the alleged "dying declaration" of the victim, as well as the "agreement" between the
parents of the accused and the victim.4
During the trial, the prosecution presented seven witnesses, a picture of the pieces of wood 5 used by the
accused in killing the victim, receipts of expenses incurred in the hospital for the treatment of said victim, 6 a
written declaration of the victim after the incident, 7 and a written agreement between the parents of appellant
and the victim.8
The evidence of record reveals that at around 8:00 o'clock in the evening of November 30, 1990, witness
Maria Magdalena Ayola saw appellant Salison approach the victim, Rolando Valmoria, who was then
watching television in a store at Cory Village, Agdao, Davao City. Salison placed his arm around Valmoria's
shoulder and brought him behind a neighbor's house where there was a mango tree. There, appellant Salison
boxed Valmoria in the abdomen.9
During the fistfight between Salison and Valmoria, the three other accused Andiente, Dignaran and Fediles
suddenly appeared and joined the fight and simultaneously attacked Valmoria. It was then when witness
Emilia Fernandez approached them that the three co-accused disappeared, leaving Salison and Valmoria
behind. Fernandez was able to separate Salison from Valmoria. However, the three co-accused returned and
started to maul Valmoria again, with Salison rejoining the three in assaulting the victim. 10
When Valmoria fought back, accused Salison, Fediles and Andiente picked up pieces of wood and started to
hit Valmoria at the back on his nape, and on the rear part of his head, Valmoria fell to the ground and, upon
finding a chance to do so, he stood up and ran towards his house which was a few meters away. The assailants
followed Valmoria but failed to further hit the victim because Valmoria was able to hide inside his house. All
of the accused shouted for Valmoria to come out but the latter refused, causing his four assailants to hit the
walls and windows of the Valmoria residence. During this time, the victim remained seated inside the house.
Shortly thereafter, Valmoria started to complain of dizziness and pain in his head which was bleeding at that
time. 11
Consequently, at the request of Valmoria, his parents accompanied him to the house of witness Patricia
Alcoseba, the purok leader. The victim asked Alcoseba to write down his declaration regarding the incident
explaining that if he should die and no witness would testify, his written declaration could be utilized as
evidence.
At the trial of the case, Alcoseba presented the written and signed declaration of Valmoria and she affirmed
what was written in the declaration, testifying as follows:
PROSECUTOR DAYANGHIRANG III:
Q Mrs. Alcose(b)a, on November 30, 1990, where were you?
A I was in our house.
Q Where?
A At Gory Village.
xxx xxx xxx
Q After you heard that there was trouble in Cory Village, what happened next, if any?
A I noticed that the mother and father of Rolando Valmoria helped Rolando Valmoria in
walking towards my house.
Q When they arrived (at) your house, what happened next?
A When they arrived (at) the house, the father requested that his son be allowed to sit on our
chair.
Q And what happened next after that?
A At that time Rolando Valmoria was sitting on the chair and he was so weak and his neck and
head slumped on the chair and the Valmorias requested me that he has something to say and
requested it to be written and he stuttered in talking.
Q What did you do after the victim requested you?
A I obeyed. I obeyed the request and I got a ballpen and paper.
Q Then what happened next?
A He related to me as to who started the trouble as to who struck him first, the second and the
third.
Q Now Mrs. Alcose(b)a, while the victim was narrating to you, what did you observe about his
condition?
A I observed that he was so weak and he was in pain and I believed at that time he was dying.
Q Did the victim utter the words to that effect that he was dying?
A Yes, sir. He told me by saying "I believe that I will die".
Q What else?
A Because he said that he felt a terrible pain on his head.
Q Did he tell you the reason why he requested you to make a declaration in writing?
A He told me that if anybody will testify regarding my death this declaration of mine could be
utilized as evidence.
xxx xxx xxx
Q Showing to you this statement, what a relation is this one (sic) to the one you said which is
the statement of the victim?
A Yes, this is the one.
xxx xxx xxx
Q There is a printed name . . . a signature over the printed name Rolando Valmoria, "ang
guibunalan/pasyente'', whose signature is this?
 A That is the signature of Rolando Valmoria.
COURT:
Q When the victim signed that document, was he sitting?
A Yes, sir.
Q After the victim signed that document what happened next?
A They left and they went to the detachment.
xxx xxx xxx
Q What happened to this piece of paper after the victim signed this?
A I gave it to the mother.
Q So you did not keep that piece of paper?
A No, sir. I gave it to them so they will be able to use it.
Q Before they left your house you gave that piece of paper to the mother?
A At that time I did not give that declaration first to the mother because they were attending to
their son.
Q When did you give that document to the mother?
A When Rolando Valmoria died.
xxx xxx xxx
Q At the time you were taking this statement, from the victim did he tell you the persons who
were responsible for his injuries?
A Yes, sir.
Q Who?
A Rufino Dignaran, Jr. alias Jongjong and the second is Loloy Salison and the third one is
name(d) Tirso and the fourth, I cannot remember the name of the fourth person who hit the victim .
. . yes, now I remember, it's Leonilo Fideles.
Q You wrote that statement (o)n a piece of paper?
A Yes, sir. 12 (Corrections and emphasis supplied.)
After making that declaration in the house of witness Alcoseba, Valmoria and his parents proceeded to the
hospital where he was X-rayed and treated for his head injuries. Subsequently, the victim was allowed to go
home. However, at 4:00 o'clock the following morning, he started to convulse and was rushed to the hospital.
After three days there, Valmoria died. 13
The prosecution likewise presented Dr. Edmundo Visitacion, Jr. who had conducted the necropsy which
established the cause of death of Valmoria indicated in the post mortem certificate. He explained that the head
injury sustained by the victim caused by a blunt external trauma probably made by a solid object and this
trauma caused the subdular hemorrhage. 14
On December 12, 1990, the parents of the victim and those of the accused Salison and Dignaran entered into a
written agreement for the refund of hospital expenses of Valmoria. However, no reinbursement was actually
made.
On the other hand, the lone defense witness was appellant Salison himself who merely denied having killed the
victim. He testified that on that day, together with his friends Andiente, Dignaran, Fideles and a certain Andy,
he was visiting his girlfriend, a certain Neneng Edpalina, when he heard Valmoria and Andiente shouting at
each other. He tried to pacify the two but the victim told him not to interfere because he had nothing to do with
them. Then he saw Valmoria, Andiente, Dignaran, Fideles and a certain Andy engaged in a fistfight. He was
trying to stop the group from fighting when witness Fernandez came and told him not to interfere.
He then left and while he was on his way home, he heard somebody shout "agay," so he went back and saw
Andiente holding a piece of wood while Valmoria was running towards his house. He had just grabbed the
piece of wood from Andiente when two CAFGU's arrived and arrested him, Andiente, Dignaran and Fideles.
All of them were subsequently released after the investigation. 15
The errors imputed to the trial court may be consolidated and narrowed down to the question of credibility of
the prosecution witnesses, the existence of conspiracy in the commission of the crime, and the evidentiary
weight of the dying declaration, as well as of the written agreement of the parents of the victim and the
accused.
In the instant case, the lower court held that:
The testimony of the prosecution's witnesses were clear, strong and convincing to deserve full faith
and credence. As against the pure denial of the accused of his direct participation as a conspirator,
the positive, clear and straightforward declaration of the prosecution's witnesses, must prevail. No
motive or reason has been shown, why they would falsely impute to the accused the commission of
such a grave crime. The accused Rey Salison has no quarrel or bickering with the prosecution's
witnesses. In fact, two of the prosecution's witnesses are friends of the mother of Rey Salison.
These prosecution's witnesses declared that they saw (that) the accused Rey Salison together with
the other accused participated in boxing and mauling Rolando Valmoria with pieces of wood. 16
We agree with the findings of the trial court giving full faith and credit to the witnesses for the People. The
uncorroborated testimony of appellant can not prevail over the positive declaration of the prosecution's
witnesses. In fact, there were three eyewitnesses, with no ill motives whatsoever, who testified against
appellant and confirmed Salison's direct participation in the commission of the crime.
The defense did not present any evidence to support the denials of appellant. The putative girlfriend of Salison,
who was allegedly with him on that day, was not presented to confirm that fact and thereby prove that he did
not participate in the fight between his co-accused Andiente and the victim. His testimony pinpointing
Andiente as the killer was only a convenient way to avoid liability since Andiente remained at large and could
not refute Salison's testimony imputing the crime to him.
Moreover, denial is a self-serving negative evidence that can not be given greater weight than the declaration
of credible witnesses who testified on affirmative matters. 17 Definitely, therefore, the case of the Government
has outweighed and overwhelmed the evidential ramparts of the defense.
Appellant's assertion that conspiracy has not been established is belied by the eyewitness accounts submitted
by the prosecution. The manner by which the killing was executed clearly indicated a confederacy of purpose
and concerted action on the part of the accused. Prosecution witness Magdalena Ayola, who saw the entire
incident, testified on this point, thus:
Q During that time were they alone? The two of them?
COURT:
A When Salison brought Valmoria under the mango tree, they were only 2 but later, alias Sano,
Fideles and alias Ondoy and alias Jong-jong boxed Valmoria.
xxx xxx xxx
PROSECUTOR MANDALUPE:
Q In other words aside from accused Salison alias Loloy who first boxed Rolando Valmoria,
other three persons joined Salison and also boxed Rolando Valmoria?
A Yes, sir.
xxx xxx xxx
COURT:
Q Did you see the 3 come from the bushes?
A Yes, sir.
Q Where were you during the time when these three appeared from the bushes?
A I was nearby because we were watching them.
Q Were you alone watching them or you had a companion?
A I had some neighbors with me.
xxx xxx xxx
PROSECUTOR MANDALUPE:
Q After alias Sano, alias Jong-jong and alias Ondoy joined Salison in boxing Rolando
Valmoria, what else did he do against the person of Rolando Valmoria?
A Valmoria fought back and there was exchange of fist(icuffs) and Loloy Salison, alias Ondoy
and alias Sano picked up some wooden pieces of wood (sic).
Q After these three persons you mentioned picked up wood, what did they do after picking up
the wood?
A They struck Valmoria with the piece of wood.
xxx xxx xxx
 Q You said that you saw these 4 persons struck Rolando Valmoria many times while still under
the mango tree. Can you tell the Honorable Court what part of the body of Rolando Valmoria was
hit by the striking of wood by the 4 accused, if you can recall?
A He was hit at his back and at the back of his head. 18
xxx xxx xxx
From the aforesaid testimony, these simultaneous attacks on the victim proved the common intent of the
accused to inflict fatal blows upon the victim.
Direct proof is not essential to prove conspiracy. 19 A conspiracy may be inferred without need of showing that
the parties actually came together and agreed in express terms to enter into and pursue a common design. 20 For
collective responsibility among the accused to be established, it is sufficient that at the time of the aggression
all of them acted in concert each doing his part to fulfill their common purpose to kill the victim. 21
Even if there is no direct evidence showing that all of the accused had a prior agreement on how to kill
Valmoria, the doctrine is well settled that conspiracy need not be proved by direct evidence of prior agreement
to commit the crime, Very seldom would such prior agreement be demonstrable since, in the nature of things,
criminal undertakings are only rarely documented by agreements in writing. 22
the Government's eyewitnesses. Appellant's argument regarding the inadmissibility of the declaration on a
mere technicality would mean the loss of a vital piece of evidence that could yield the true facts and give
retributive justice in the murder of Valmoria.
Appellant likewise argues that the declaration made by the victim before the purok leader can not be
considered as a dying declaration because it was not made by the deceased "under the consciousness of an
impending death." As earlier narrated, at the time the deceased made the declaration he was in great pain. He
expressed a belief on his imminent death and the hope that his declaration could be used as evidence regarding
the circumstances thereof. A person would not say so if he believes he would recover and be able to testify
against his assailants. At all events, assuming that declaration is not admissible as a dying declaration, it is still
admissible as part of the res gestae, 27since it was made shortly after the startling incident and, under the
circumstances, the victim had no opportunity to contrive.
We are in conformity with the verdict of the lower court finding appellant guilty of murder since the killing
was qualified by the circumstance of the accused having taken advantage of their superior strength. The victim
was unarmed and defenseless at the time when all of the accused mercilessly bludgeoned his back and head
with big pieces of wood. The number of assailants and the nature of the weapons used against the hapless
victim show a notorious inequality of force between the latter and the aggressors, assuring a superiority of
strength advantageous to Salison and his co-accused in the commission of the crime. The accused purposely
used excessive force out of proportion to the means of defense available to the person attacked. 28

It is equally a well-accepted corollary rule that where a conspiracy has been established, evidence as to who Since no aggravating or mitigating circumstance was present in the case at bar, the trial court correctly
among the accused rendered the fatal blow is not necessary. All the conspirators are liable as co-principals imposed the penalty of reclusion perpetua, the same being the medium period in the range of the imposable
regardless of the intent and the character of their participation, because the act of one is the act of all. 23 penalty.

What further strengthens the case of the prosecution was the declaration of Valmoria, made and signed by him PREMISES CONSIDERED, the assailed judgment of the court a quo is hereby AFFIRMED in toto, with costs
right after the incident, as to who were responsible for the injuries he sustained. Appellant, however, maintains against accused-appellant Rey Salison, Jr.
that said written statement, which was reduced into writing by witness Patricia Alcoseba and purporting to be a
dying declaration, is inadmissible as evidence since it was in the Cebuano regional language and was not
accompanied with a translation in English or Pilipino.

However, as correctly observed by the Solicitor General:

The records do not disclose that the defense offered any objection to the admission of the
declaration. Thus, the defense waived whatever infirmity the document had at the time of its
submission as evidence. The declaration can be translated into English or Pilipino as it is already
admitted in evidence and forms part of the record. 24

Also, while such statement was given, as in the nature of things they are generally in oral form, they are not
thereby rendered inadmissible as they may even be communicated by means of signs. If the declarations have
thereafter been reduced to writing and signed by the declarant, the writing is generally held to be the best
evidence, and it must be produced. 25

More than once, this Court has taken into consideration documents written in a Philippine dialect,
unaccompanied by the required translation but which had been admitted in evidence without objection by the
accused.26 In those instances, the Court merely ordered official translations to be made. It is true that Section
33, Rule 132 of the revised Rules of Court now prohibits the admission of such document in an unofficial
language but we believe that in the interest of justice, such injunction should not be taken literally here,
especially since no objection thereto was interposed by appellant, aside from the fact that appellant, the
concerned parties and the judicial authorities or personnel concerned appeared to be familiar with or
knowledgeable of Cebuano in which the document was written. There was, therefore, no prejudice caused to
appellant and no reversible error was committed by that lapse of the trial court.

Also, the written declaration was duly presented during the trial and the person who reduced the victim's
G.R. No. 112090 October 26, 1999
declaration into writing was thoroughly questioned by the court and the prosecutor, and cross-examined by the
defense counsel. The witness was able to explain and discuss what was written in the declaration and how she
came to prepare the same. Significantly, everything written in that declaration of the victim was confirmed by
 PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.\ APOLINAR LAZARO y SERVANIA, accused-appellant.
GONZAGA-REYES, J.:
This is an appeal from the decision 1 dated 1 March 1993 of the Regional Trial Court of Naga City, Branch 24, finding
accused-appellant Apolinar Lazaro y Servania guilty of the crime of illegal possession of firearms and ammunition
under Section 1 of Presidential Decree No. 1866 and sentencing him to suffer the penalty of reclusion perpetua and to
pay the costs.
The information 2 dated 6 May 1991, docketed as Criminal Case No. 91-3483, filed against accused-appellant alleged:
That on or about May 5, 1991, in the City of Naga, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did, then and there, willfully, unlawfully and
feloniously have in his possession, custody and control one (1) handgun, Cal. 38 Revolver
TM-Squires Bingham, SN-1029315 with 6 empty shells on (sic) the chamber, said accused not
having any license and/or permit to possess and carry the same from the authorities charged
with the issuance thereof. That the aforesaid firearm has been used in shooting two persons
one of whom died and the other has (sic) serious condition at the Mother Seton Hospital.
It appears that a separate case for homicide, docketed as Criminal Case No. 91-3487, was filed against the
accused 3 but was tried separately before the same judge.
Upon arraignment in Criminal Case No. 91-3483 (the illegal possession case), accused-appellant entered a plea of not
guilty and thereafter, trial on the merits ensued.
To prove its case, the prosecution presented four (4) witnesses, namely: Pfc. Edilberto Puncia, Sgt. Alejandro Bonnet,
Cpl. Jose Manzanero, and Major Jose A. Tuazon.
The facts as shown by the evidence of the prosecution reveal that on 05 May 1990, at around 3:30 p.m., Police
Sergeant Alejandro Bonnet was on board a Mobile Patrol conducting an inspection of traffic policemen. While
cruising along Panganiban Drive in Naga City, his attention was called by bystanders who were shouting that there
was a bloodied man beside the driver of a Toyota type jeep that was traveling south. This prompted P/Sgt. Bonnet to
go after the said vehicle. 4
When the Toyota jeep stopped along Gen. Luna Street, Bonnet was able to see a man with blood all over him beside
the driver. P/Sgt. Bonnet then instructed the driver to follow the mobile patrol to the Bicol Regional Hospital. 5When
they arrived at the Bicol Regional Hospital, he saw that his station commander, Police Major Jose A. Tuazon, was
waiting for them.
It appears that earlier Police Major Tuazon received a telephone call at around 4:00 a.m. informing him that a shooting
incident had occurred at Queborac, Naga City 6. Major Tuazon then immediately dispatched Capt. Guisic and Pat.
Barbosa to the crime scene in order to investigate the report.1âwphi1.nêt
Moments later, Major Tuazon received another telephone call, this time from the Naga City Hospital informing him
that a wounded man, on board a yellow colored Toyota Tamaraw jeep driven by a person armed with a handgun, was
brought for treatment at the hospital 7. Thereafter, Major Tuazon, together with Pfc. Edilberto Puncia proceeded to the
Naga City Hospital. Upon their arrival, they were informed that the Toyota jeep had already left with the injured
person and was on its way to the Bicol Regional Hospital. The police officers immediately proceeded to the said
hospital. They took a shorter route and were able to arrive ahead of the Toyota jeep. After a short wait, they saw the
Naga City Police Mobile Patrol arrive at the hospital escorting a Toyota Tamaraw jeep. 8
The injured person was brought inside for treatment. As he was previously informed that the driver of the jeep was
armed with a handgun, Major Tuazon ordered the said driver to step out of his jeep. He then saw the driver with a
handgun tucked in his waist, pull out the handgun 9 from its holster 10 and drop it at the back of the driver's seat 11.
Upon seeing the gun, Major Tuazon pulled the driver out of the vehicle, got hold of the gun which turned out to be a
.38 caliber revolver bearing Serial Number 1029315 12. The gun contained six empty shells. 13
Major Tuazon then confronted the driver and asked him why he was carrying a gun and whether he had a license to
possess said firearm. The driver did not respond to his question 14.
Maj. Tuazon brought the driver to the police headquarters and turned over the firearm to the duty investigator, Cpl.
Jose Manzanero. 15 At the police station, he learned that the name of the driver was Apolinar Lazaro, herein accused-
appellant.
A certification dated August 20, 1991, issued by Supt. Antonio T. Sierra, Chief of the Firearms and Explosives Office
(FEO) at Camp Crame was presented in court by the public prosecutor. The certification stated that accused-appellant
is not a licensed or registered firearm holder of any kind or caliber. 16
For his part, accused-appellant recounted the circumstances which led to his capture at the Bicol Regional Hospital.
He Testified that on 5 May 1991, at around 9:00 a.m., he, together with his nephew Manolo Lazaro and Ricardo
Ronquillo went to Marupit, Camaligan, Camarines Sur for a drinking spree. 17 While drinking, accused-appellant and
Ricardo Ronquillo allegedly had a little discussion about a fishing net. They left the place at around 3:00 p.m. onboard
a Toyota Tamaraw jeepney being driven by his nephew, Manolo Lazaro. 18 On the way back, Manolo Lazaro stopped
the jeep in order to urinate and while he was alighting therefrom, accused-appellant saw Ronquillo draw a gun and
point it at him (accused-appellant). Allegedly in self-defense, accused-appellant grappled for the possession of the gun
and as a result, he and Ronquillo fell to the
ground. 19 As they continued grappling for the gun, accused-appellant heard several shots go off. Immediately after
the shots were fired and while still grappling for possession of the gun, he heard somebody shout that he was hit. He
realized that it was his nephew, Manolo Lazaro, who was shot and who was telling accused-appellant to bring him to
the hospital. As he was still grappling with Ronquillo, he could not immediately do anything about his nephew's cries
for help. After a while, accused-appellant felt Ronquillo weakening and stop moving. He then drove Manolo Lazaro to
the hospital as he was shouting for help. Accused-appellant claimed that he did not know what had happened to
Ronquillo after he left him at the scene of the incident. He also could not recall where he had placed the gun. 20
Accused-appellant declared that he drove the Tamaraw jeepney to the Naga City Hospital but they were not accepted
as the hospital had no facilities for emergencies. 21 While driving to another hospital, he noticed a police car trailing
them. He then gave a signal to the police car to escort them to a hospital. One of the policemen then alighted from the
car and inspected the jeepney. The policeman did not take anything from the jeepney. The policeman then signaled
accused-appellant to follow the patrol car to the Bicol Regional Hospital. 22 When they reached the hospital, accused-
appellant went down from the Tamaraw jeepney and assisted in bringing down his nephew, Manolo Lazaro. Accused-
appellant was then told by the policemen to ride in the police mobile car. As they were about to leave the hospital, he
saw several persons searching the jeepney. The policemen then brought him to the City Jail where he remembered
being asked why he was carrying a gun. 23 When the gun was shown to him, accused-appellant stated that he was not
sure whether it was the same gun he was grappling with Ronquillo for, as the incident happened quite fast. He also
cannot remember Major Tuazon's account that accused-appellant pulled the gun and holster from his waist. What he
remembers is that after alighting from the jeepney, he went around the jeepney and assisted Manalo because the latter
was then leaning on the side of the jeepney. 24
In rebuttal, the prosecution presented Dr. Joel Jurado who testified that he conducted the autopsy on Ricardo
Ronquillo. He found that the cause of death was due to loss of blood from his gunshot wounds. 25 The victim died
instantaneously. In his opinion, the injuries were not inflicted accidentally as more than one shot was inflicted on the
victim. 26
In sur-rebuttal, accused-appellant testified anew and stated that both he and Ronquillo fell from the jeepney while
grappling for the gun. He testified that during the struggle, there were times when the gun was in his possession and
there were also times when it was in the possession of Ronquillo. 27 He cannot recall who was holding the gun when it
was fired.
After trial, the lower court rendered a decision dated 1 March 1993 28 finding accused-appellant guilty as charged, the
dispositive portion of which reads:
WHEREFORE, for all the foregoing, the Court finds accused Apolinar "Poly" Lazaro guilty
beyond reasonable doubt of the crime of Illegal Possession of Firearms and Ammunition
under Section 1 of Presidential Decree No. 1866 and hereby sentences said accused to suffer
the penalty of reclusion perpetua, and to pay the costs. The handgun (Exh. A) and the spent
shells (Exhs. B, B-1 to B-5) are confiscated and ordered forfeited in favor of the government.
Hence, this appeal where accused-appellant raises the sole assignment of error that the trial court erred in finding the
accused guilty beyond reasonable doubt of the crime of illegal possession of firearms and ammunition qualified by
homicide. 29
In cases involving illegal possession of firearms under P.D. 1866 30, as amended, the prosecution has the burden of
proving the elements thereof, viz.: (a) the existence of the subject firearm; and (b) the fact that the accused who owned
or possessed it does not have the corresponding license or permit to possess the same. 31
In the case at bench, the first element is beyond dispute as the subject firearm and six empty shells were recovered
from the accused-appellant while he was alighting from the Tamaraw jeepney. Thus, Major Tuazon testified:
Q: What did you actually do when the car stopped?
A: Being aware that the driver was then armed, I was ready to get hold
of him, and when I saw the gun tacked on his waist, he pulled it and
dropped it at his back.
Q: You said he pulled a handgun from his waist, will you please
indicate on what particular place was it placed?
A: It was near, it was more in front of his waist. (The witness is
pointing to the rightside middle portion of his waistline).
Q: And, in relation to the driver, where were you then when you saw
him pulled (sic) that gun?
A: I was very near because I wanted to get hold of him.
Q: And, where did he dropped (sic) the said handgun, as you said?
A: Right at his back, at the back of the driver's seat.
Q: So, he just dropped it on the seat behind the driver's seat?
A: Yes, sir.
Q: And, that gun has a holster?
A: Yes, Sir. Inside a holster bag tacked on his waist.
Q: When he pulled that gun — did he pull that gun alone?
A: He pulled it together with the holster.
Q: And he placed the gun inside the holster right behind the driver's
seat?
A: He pulled the gun together with the holster and dropped the same
at his back.
Q: By the way, what kind of gun was that? A revolver?
A: Yes, Sir.
Q: And, what did you do upon seeing that the gun together with the
holster was dropped by the accused at his back?
A: I pulled the driver out, and immediately got hold of the gun. 32
The subject firearm, its holster and the six empty shells were identified and offered in evidence during the trial.
As to the second element, accused-appellant contends that the prosecution failed to prove the absence of a license to
carry a firearm as the prosecution merely marked in evidence a certification from the Firearms and Explosive Section
in Camp Crame without presenting the person who issued the certification himself, a certain Antonio Sierra. Over the
objection of accused-appellant's counsel, the lower court admitted the exhibit on the ground that the same is an official
public record and because the fiscal stated that he himself saw the signatory sign the document.
The records of the case show that the prosecution merely presented in court the certification from the Firearms and
Explosive Office before formally offering its documentary evidence. Thus:
PROS. ESTELA:
I am, Your Honor, please, formally submitting the certification issued at Camp Crame on
August 20, 1991 of the firearms and explosives office, issued by the firearms and explosive
office, issued by A.T. Sierra, Service Sup. MNSA, PNB Chief . . . firearms and explosive
office to the effect which reads — this is to certify that Apolinar Lazaro is not a licensed or
registered firearms holder of any kind or caliber . . . (the fiscal is reading)
I would like to request that it be marked as Exhibit "D," for the purpose of this is to show to
the Honorable Court that this accused is not a registered licensed holder of the subject firearm,
and your Honor, may I please be allowed to rest my case.
With the formal offer of evidence for the prosecution, with the testimonies of Pfc. Ed. Puncia,
Sgt. Alejandro Bonet, Cpl. Jose Manzanero, and Maj. Jose Tuazon, and the following
(documentary) exhibits —
xxx xxx xxx
Exhibit "D" is the certification of the firearms explosive office to the effect that herein
accused is not a licensed or registered holder of any firearm. This is dated August 20, 1991.
Exhibit "D-1" which I request to be marked as such — the signature of Antonio A. Sierra, the
issuing officer of the firearms and explosives office. The signature was affixed in my presence
when I personally procured this certification from the Camp Crame.
With all of these evidence, testimonial, physical and documentary evidence, we close the
presentation of evidence for the prosecution.
ATTY. FERNANDEZ:
xxx xxx xxx
We have no objection to its submarkings. We are, however, objecting to Exhibits "D" and "D-
1" being self-serving as the author of said certification was not presented for cross-
examination.
xxx xxx xxx
PROS. ESTELA:
xxx xxx xxx
And, as to Exhibit "D" and Exhibit "D-1", this is an official document which is an exception
to the hearsay rule. This is an official public document.
COURT:
No other objections?
xxx xxx xxx
Exhibit "D" is a public document, which was procured in line of duty, and considering that
according to the Fiscal he himself was a witness to the signatory of the same.
All the exhibits are admitted.
Accused-appellant contends that the trial court erred in admitting and relying upon the said certification considering
that the person who made the document was not presented in court to testify. Thus, accused-appellant argues, the
certification should have been excluded for being hearsay.
There is no merit in the above argument.
On several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the
PNP Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove
beyond reasonable doubt the second element of possession of illegal firearms. 33 Moreover, the rule on hearsay
evidence admits of several exceptions.
One such exception is that provided for under Rule 130, Section 44 of the Rules of Court which states as follows:
Rule 130, 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 specifically enjoined by law, are prima facie evidence of the facts
therein stated.
Relative to this provision, Rule 132, Section 28 of the same Rules allows the admission of the said document. Thus:
Rule 132, Sec, 28. Proof of lack of record. — A written statement signed by an officer having
custody of an official record or by his deputy that after diligent search no record or entry of a
specified tenor is found to exist in the records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the records of his office contains no such
record or entry.
In the case at bench, the Certification issued by the Commanding Officer of the PNP-Firearm and Explosives Office,
which is the repository of all records regarding firearms in the Philippines, is competent and admissible evidence to
prove that accused-appellant is not a licensed holder or possessor of a firearm of any kind or caliber. Indeed, the
certificate of a custodian that he has diligently searched for a document or an entry of a specified tenor and has been
unable to find it ought to be as satisfactory an evidence of its non-existence in his office as his testimony on the stand
to this effect would be. 34
Accused-appellant finally argues that assuming that he is guilty, he should only be convicted of the crime of simple
illegal possession not qualified by homicide. He offers two propositions in support of this argument.
First, accused-appellant argues that the information filed against him in Criminal Case No. 91-3483 did not clearly
allege the crime of homicide. Instead, he argues, it was the separate information for homicide filed in Criminal Case
No. 91-3487 which alleged all the elements of homicide. He states further that the case for homicide, for which he was
likewise convicted, is now the subject of an appeal with the Court of Appeals.
Second, accused-appellant argues that assuming that the information in Criminal Case No. 91-3483 sufficiently
alleged the said qualifying circumstance, he still could not be convicted of the crime of illegal possession of firearms
and ammunition qualified by homicide as the prosecution failed to prove the fact of homicide during the trial of
Criminal Case No. 91-3483. The prosecution, he contends, did not produce any eyewitness to the homicide. Instead,
the alleged eyewitness to the homicide, Manolo Lazaro, was only presented in Criminal Case No. 91-3487, the
homicide case, which was being tried separately.
We do not find it necessary to consider accused-appellant's arguments. The enactment of Republic Act No. 8294,
which amended the provisions of P.D. 1866, has rendered said arguments moot and academic.
Accused-appellant was convicted of illegal possession of firearms under Section 1 of P.D. No. 1866 which was the
governing law at the time the crime was committed in 1991. Section 1 of P.D. 1866 provides:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms,
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose or possess any firearm, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed. (Emphasis supplied)
Under the ruling in People vs. Quijada, 35 violation of P.D. 1866 is an offense distinct from murder or homicide and
the accused is culpable for two separate offenses.
Republic Act No. 8294 has since amended P.D. No. 1866 by reducing the penalties for simple and aggravated forms
of illegal possession and considering the use of an unlicensed firearm simply as an aggravating circumstance in
murder or homicide. The law now provides:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of prision correccional in its maximum period and a fine of not
less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm such as
rimfire handgun, .380 or .32 and other firearm of similar firepower, ammunition, or
machinery, tool or instrument used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its maximum period and a fine of Thirty thousand pesos
(P30,000.00) shall be imposed if the firearm is classified as high powered firearm which
includes those with bores bigger than .38 caliber and 9 millimeter such as caliber .40, .41, .45
and also lesser caliber firearms but considered powerful such as caliber .357 and caliber .22
center-fire magnum and other firearms with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime was committed by the person arrested.
If homicide or murder is committed with the use of unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance. (emphasis supplied)
In view of these amendments introduced by R.A. 8294, this Court has recently in the case of People vs. Molina, 36and
reiterated in People vs. Feloteo, 37 that there can be no separate conviction of the crime of illegal possession of
firearms under P.D. 1866. Thus in People vs. Molina, it was held:
Fortunately for appellants, however, RA 8294 has now amended the said decree and considers
the use of an unlicensed firearm simply as an aggravating circumstance in murder or
homicide, and not as separate offense. The intent of Congress to treat as a single offense the
illegal possession of firearm and the commission of murder or homicide with the use of such
unlicensed firearm is clear from the following deliberations of the Senate during the process
of amending Senate Bill No. 1148:
Senator Drilon. On line 18, we propose to retain the original provision
of law which says, "If homicide or murder is committed with the use
of unlicensed firearm." And in order that we can shorten the
paragraph, we would suggest and move that the use of the unlicensed
firearm be considered as an aggravating circumstance rather than
imposing another period which may not be in consonance with the
Revised Penal Code.
So that if I may read the paragraph in order that it can be understood,
may I propose an amendment to lines 18 to 22 to read as follows: "If
homicide or murder is committed with the use of the unlicensed
firearm, SUCH USE OF AN UNLICENSED FIREARM SHALL BE
CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE."
xxx xxx xxx
Senator Santiago. Mr. President.
The president. With the permission of the two gentlemen, Senator
Santiago is recognized.
Senator Santiago. Will the principal author allow me as co-author to
take the [f]loor to explain, for the information of our colleagues, the
stand taken by the Supreme Court on the question of whether
aggravated illegal possession is a complex or a compound offense.
May I have the [f]loor?
Senator Revilla. Yes, Mr. President.
Senator Santiago. Thank you.
 In 1995, the Supreme Court held that when the crime of killing
another person is committed with the use of an unlicensed firearm, the
ruling in the case of People vs. Barros was that the crime should only
be illegal possession of firearm in its aggravated form. But in the later
case, in May 1996, in the case of People vs. Evangelista, the court
apparently took another position and ruled that when a person is killed
with the use of an unlicensed firearm, it is possible to file two separate
information(s) — one for murder and one for illegal possession of
firearms.
In other words, in two successive years, the Supreme Court issued two
different ways of treating the problem. The first is to treat it as one
crime alone in the aggravated form, and the second is to treat is as two
separate crimes.
So at this point, the Senate has a choice on whether we shall follow
the 1995 or the 1996 ruling. The proposal of the gentleman, as a
proposed amendment is to use the 1995 ruling and to consider the
offense as only one offense but an aggravated form. That could be
acceptable also to this co-author.
The Presiding Officer [Sen. Flavier] So, do I take it that the
amendment is accepted?
R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on May 5, 1991. As a
general rule, penal laws will generally have prospective application except where the new law will be advantageous to
the accused. In this case R.A. 8294 will spare accused-appellant from a separate conviction for the crime of illegal
possession of firearm. Accordingly, said law should be given retroactive application.
In People vs. Valdez, 43 this Court stated:
Republic Act No. 8294 took effect on July 6, 1997, fifteen days after its publication on June
21, 1997. The crimes involved in the case at bar were committed on September 17, 1995. As
in the case of any penal law, the provisions of Republic Act No. 8294 will generally have
prospective application. In cases, however, where the new law will be advantageous to the
accused, the law may be given retroactive application (Article 22, Revised Penal Code).
Insofar as it will spare accused-appellant in the case at bar from a separate conviction for the
crime of illegal possession of firearms, Republic Act No. 8294 may be given retroactive
application in Criminal Case No. U-8749 (for Illegal Possession of Firearm) subject of this
present review.
As a word of caution, however, the dismissal of the present case for illegal possession of
firearm should not be misinterpreted as meaning that there can no longer be any prosecution
for the crime of illegal possession of firearm. In general, all pending cases involving illegal
possession of firearm should continue to be prosecuted and tried if no other crimes expressly
indicated in Republic Act No. 8294 are involved (murder or homicide under Section 1, and
rebellion, insurrection, sedition or attempted coup d 'etat under Section 3).

Senator Revilla. Yes, it is accepted, Mr. President.
The Presiding Officer [Sen. Flavier.] Thank you. Is there any
objection to the amendment? [Silence] There being none, the
amendment is approved.
Although the explanation of the legal implication of the Drilon amendment may not have been
very precise, such modification, as approved and carried in the final version enacted as RA
8294, is unequivocal in language and meaning. The use of an unlicensed firearm in a killing is
now merely an aggravating circumstance in the crime of murder or homicide. This is clear
from the very wordings of the third paragraph of Section 1 of RA 8294, which reads:
If homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance.
However, the use of an unlicensed firearm in the case at bar cannot be considered as a special
aggravating circumstance in Criminal Case No. U-8747 (for Complex Crime of Multiple
Murder), also under review herein, because it will unduly raise the penalty for the four counts
of murder from four reclusion perpetua to that of four-fold death. Insofar as this particular
provision of Republic Act No. 8294 is not beneficial to accused-appellant because it unduly
aggravates the crime, this new law will not be given retroactive application, lest it might
acquire the character of an ex-post focto law.
Accordingly, and in line with the above ruling, the accused-appellant should be spared from a separate conviction for
the crime of Illegal Possession of Firearms, which is the subject of the present review.1âwphi1.nêt
IN VIEW WHEREOF, we REVERSE and SET ASIDE the decision finding accused-appellant guilty for violation of
P.D. 1866. Accused-appellant is hereby acquitted of the said crime. Criminal Case No. 91-3483 is DISMISSED.

Furthermore, the preceding paragraphs, also in Section 1, state that the penalties for illegal
possession of firearms shall be imposed "provided that no other crime is committed." In other
words, where murder or homicide was committed, the separate penalty for illegal possession
shall no longer be meted out since it becomes merely a special aggravating circumstance. 38

In the case at bench, it is not disputed that accused-appellant was charged, tried and convicted for two
separate crimes of illegal possession and homicide. Accused-appellant, in his brief, refers to the homicide
case in arguing that his conviction in the illegal possession case was not proper. 39 Similarly, the Solicitor-
General, in his Brief, mentioned the homicide case in justifying the sentence handed down by the trial
court. 40Finally, the records themselves show that trial in the two cases proceeded separately. 41 The two
separate cases, Criminal Case No. 91-3487 (for homicide) and Criminal Case No. 91-3483 (for illegal
possession of firearm) were not tried jointly, although filed in the same trial court. Criminal Case No. 91-
3487 was appealed to the Court of
Appeals. 42

In view of the amendments introduced by Republic Act 8294 to Presidential Decree 1866, separate prosecutions for
G.R. No. 92739 August 2, 1991
homicide and illegal possession are no longer in order. Instead, illegal possession of firearms is merely to be taken as
an aggravating circumstance in the homicide case. PEOPLE OF THE PHILIPPINES, petitioner,
vs. HON. JOSE BURGOS, as Presiding Judge of the Regional Trial Court of Cebu, Branch 17,
 SIEGFRED DEDURO y DELFIN alias "Raul Delfin y Zerrudo, Tomas Magtanggol, Vic, Mar". the order of the court granting bail should be considered void on that ground. ... (Emphasis
EDWIN LOPEZ DE OCAMPO alias "Gerardo Santos", ABUNDIO AMANTE alias "Ilyong, Milyo", supplied).
CYNTHIA AGUIRRE y DEDURO alias"Myra, Mara, Myla, Mareth, Budec, Lina", FEDERICO
GUANZON alias "Alvin, Al, Ben", THELMA DIANALA GUANZON alias "Alma Arro, Maya",
Moreover, the Order of 5 April 1990 failed to comply with the following requirement set forth in the above-
CATALINA PERAS alias "Liling", FR. LEONARDO SISON y DARUNDAY alias "Rey Martin" and
cited case:
AUXILIUM TOLING OLAYER alias "Ma. Consuelo Valente y Itchon, Maring",respondents.

RESOLUTION
FELICIANO, J.:
On 2 September 1989, an information for violation of Republic Act No. 1700, as amended, 1 was filed against
the nine (9) private respondents by the Office of the City Prosecutor of Cebu. The information recommended
no bail on the ground that the offense charged in said information was non-bailable, the respondents allegedly
being leaders of the Communist Party of the Philippines.
The court's discretion to grant bail in capital offenses must be exercised in the light of a summary
of the evidence for the prosecution; otherwise, it would be uncontrolled and might be capricious or
whimsical. Hence, the court's order granting or refusing bail must contain a summary of the
evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is
strong. The orders of October 7, 9 and 12, 1968, granting bail to the five defendants are defective in
form and substance because they do not contain a summary of the evidence presented by the
prosecution. They only contain the court's conclusion that the evidence of guilt is not strong. Being
thus defective in form and substance, the orders complained of cannot, also on this ground, be
allowed to stand. (Emphasis supplied)

In the present case, the Order dated 5 April 1990 only sets out a conclusion that the evidence of guilt is strong
After arraignment, private respondents filed petitions for their temporary liberty on bail pending trial of the
but does not contain a summary of the evidence presented and considered. The Order states:
criminal case. There being no opposition from the prosecution to the petition for bail of private respondent
Catalina Peras, who was then in her eighth month of pregnancy, respondent Judge fixed bail for her at
P10,000.00. In respect of the other private respondents, their petitions for bail were opposed by the After due consideration of the testimonial and documentary evidence presented by the prosecution
prosecution. thru its witnesses ... , this Court finds reasonable ground to believe that so far, strong evidence
exists as against the three accused Siegfred Deduro alias 'Vic,' alias 'Tomas Magtanggol', alias 'Raul
Delfin,' Auxilium Toling Olayer, alias 'Maria' Consuelo Valente alias 'Choy,' alias 'Choline' and
While the prosecution was still presenting its evidence in support of its opposition to the petitions for bail,
Federico Guanzon.
respondent Judge issued an Order dated 5 April 1990 fixing bail at P30,000.00 each for the temporary liberty
of five (5) of the remaining eight (8) private respondents, namely: Cynthia Aguirre, Thelma Guanzon, Edwin
Lopez, Abundio Amante and Fr. Leonardo Sison. The applications for bail of the three (3) other private IN VIEW THEREOF, the petitions for bail are DENIED with respect to the above-named accused.
respondents (Siegfred Deduro, Auxilium Toling Olayer and Federico Guanzon) were denied on the ground that The rest of the accused are granted bail which is hereby fixed at P30,000.00 each for their
insofar as these particular respondents were concerned, the evidence of guilt was strong. provisional release ... .

The prosecution opposed the 5 April 1990 Order upon the ground that issuance thereof was premature, Being prematurely issued and having failed to include a summary of the evidence presented at the hearing on
considering that the prosecution was then still in the process of presenting its evidence in support of its the motion for bail, the 5 April 1990 Order must be set aside.
opposition to the applications for bail. Respondent Judge, rather than ruling outright on petitioner's opposition,
ordered it to file a motion for reconsideration in writing. In the same proceeding, respondent Judge disallowed
Petitioners also question the order also dated 5 April 1990 given in open court by respondent Judge. Said order
petitioner's request for its witness, Eulogio Llego, a computer programmer, to print out in open court the
disallowed a prosecution witness from holding an actual demonstration in court by printing out the contents of
material encoded in certain diskettes seized from private respondents by virtue of a search warrant.
the seized diskettes using the very same computer seized from the accused on the ground that they could be
"manipulated." The Order stated:
Instead of filing a written motion for reconsideration, petitioner filed the present Petition
for Certiorari questioning: (1) the Order dated 5 April 1990 granting bail; and (2) the oral order of respondent
COURT:
Judge given in open court during the hearing on the same date preventing the prosecution from holding an
actual demonstration in court by printing out data from the seized diskettes.
It has been a common knowledge of both prosecution and defense that these diskettes
have been in possession of the prosecution since the start and anything may happen
Deliberating on the instant Petition for Certiorari, the Court considers that respondent Judge has committed
while they are in their possession, so much so that the witness admitted that the diskettes
grave abuse of discretion in issuing his Order dated 5 April 1990.
can be manipulated or altered.

It was grave abuse on the part of respondent Judge to issue the 5 April 1990 Order. That order, which was
FISCAL MARCOS:
issued while the prosecution was still in the process of presenting other evidence, was clearly premature and
deprived the People of its right to present its evidence relating to the applications for bail. In People v.
Dacudao,2 this Court, citing People v. San Diego,3 held: Since they are the exhibits for the prosecution, naturally they are in our possession, just
like the exhibits for the defense. They are in their possession.
The question presented before us is, whether the prosecution was deprived of procedural due
process. The answer is in the affirmative. We are of the considered opinion that whether the motion COURT:
for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding
or in the course of a regular trial, the prosecution must be given an opportunity to present, within a
reasonable time, all the evidence that it may desire to introduce before the court should resolve the To let this witness operate the computer is very dangerous, because the witness said that
these diskettes can be manipulated. So the motion of the prosecution to let this witness
motion for bail. If as in the criminal case involved in the instant special civil action, the prosecution
should be denied such an opportunity, there would be a violation of procedural due process, and have an actual demonstration before the court on the computer is denied.
In his Comment, respondent Judge reiterated that he did not allow the printing out of the contents of the seized
diskettes because they could be "manipulated" which would be prejudicial to the rights of the accused.

Respondent Judge's insinuation or speculation that the prosecution, considering the fact that it had the diskettes
in its possession prior to the hearing, may have tampered with them appears absolutely baseless and quite
unfair to the prosecution. Such statement had in fact no basis in the evidence before the respondent Judge.
There was neither testimonial evidence nor any physical evidence on the diskettes themselves which might
indicate they had actually been tampered or their contents altered in order to secure the conviction of the
accused. Respondent Judge was in effect charging the prosecution with fabricating evidence against the private
respondents, which constitutes serious misconduct and quite possibly a criminal offense.

The mere fact that the diskettes had been in the possession of the prosecution does not necessarily imply that it
had altered or tampered with the evidence to suit its prosecutorial objectives. Indeed, the presumption that
official duty has been regularly performed prevails, in the absence of any evidence to the contrary.

We, therefore hold that the printing out of data (if any) encoded in the diskettes should be allowed. Respondent
Judge's asserted apprehension that the witness brought in by the prosecution to undertake the printing out of
the diskettes' contents could himself "manipulate" said diskettes during the actual printing out in court may
very easily relieved by designating a competent person agreeable to both parties, and especially to respondent
Judge, who can perform the task of printing out the contents of the diskettes. Respondent Judge's ostensible
lack of confidence in the prosecution witness should not in any way affect the integrity of the diskettes
themselves or the right of the prosecution to show the contents of the diskettes subject, of course, to applicable
rights of the accused.

Moreover, contrary to private respondents' contention that the diskettes themselves should be deemed
inadmissible in evidence because they were not included in the things mentioned in the search warrant, we find
that these diskettes had been sufficiently described in the search warrant. The search warrant states:

You are, therefore, hereby commanded to make immediate search at any time of the day or night of
Rm. 31 of the third floor of said building where the persons or suspects above-named are presently
occupying and to seize and to take possession of the following properties used or intended to be
used as the means of committing violation of RA 1700 and/or Art. 142 of the Revised Penal Code:

Incendiary or subversive documents, pamphlets; books, computer print-outs and subversive

materials, and computer machine used imprinting seditious or subversive literature. (Emphasis
supplied)

The phrase "computer machine used in printing seditious or subversive literature" is appropriately regarded as
necessarily including diskettes into which data is encoded and stored, such as those seized in the present case
on the same occasion the computer itself was seized, for indeed a computer system cannot store and print out
any data without diskettes. Technically and realistically speaking, diskettes are deemed integral parts of a
computer system, the diskettes constituting one of the "input-output devices" or "peripherals," in the same
manner that the keyboard is an "input-output device" and the monitor, keyboard and printer are "peripherals"
in relation to the memory or central processing unit (CPU) of a computer system. 4

ACCORDINGLY, the Court Resolved to GRANT the Petition for certiorari and to SET ASIDE and ANNUL
the Order dated 5 April 1990. Respondent Judge is hereby ORDERED forthwith to continue hearing the
motions for bail and to allow the prosecution to finish presenting its evidence. Respondent Judge is also
ORDERED to cause the re-arrest of the five (5) private respondents previously ordered released in the 5 April
1990 Order.

G.R. No. 117221 April 13, 1999

 IBM PHILIPPINES, INC., VIRGILIO L. PEÑA, and VICTOR V. REYES, petitioners,
vs. NATIONAL LABOR RELATIONS COMMISSION and ANGEL D. ISRAEL, respondents.
MENDOZA, J
This is a petition or certiorari to set aside the decision, 1 dated April 15, 1994, of the National Labor Relations
Commission (NLRC) finding private respondent to have been illegally dismissed and ordering his
reinstatement and the payment of his wages from August 1991 until he is reinstated.
Petitioner IBM Philippines, Inc. (IBM) is a domestic corporation engaged in the business of selling computers
and computer services. Petitioners Virgilio L. Peña and Victor V. Reyes were ranking officers of IBM during
the period pertinent to this case.
On April 1, 1975, private respondent Angel D. Israel commenced employment with IBM as Office Products
Customer Engineer. For the next sixteen (16) years, he occupied two other positions in the company, 2 received
numerous award, 3 and represented the company in various seminars and conferences in and out of the
country. 4
On February 1, 1990, private respondent was assigned to the team supervised by petitioner Reyes.
On June 27, 1991, petitioner Reyes handed a letter to private respondent informing the latter that his
employment in the company was to be terminated effective July 31, 1991 on the ground of habitual tardiness
and absenteeism. The letter states, thus:
Mr. Angel D. Israel
Present
Dear Angel,
This refers to our previous discussion regarding your habitual absences and tardiness the
last of which was on June 26, 1991.
Your records will attest to the fact that on several occasions, your attention has been
called to your habitual tardiness and non-observance of standing office procedures
regarding attendance. Despite several opportunities given to you, you cannot seem to
reform your ways and attitude on the matter of attendance. Considering that we area
service-oriented company, you can appreciate that we cannot allow such a situation to
continue lest we put the best interest of the Company in jeopardy.1âwphi1.nêt
Much to our regret, therefore, pleased (sic) be advised that the Company is terminating
your employment effective July 31, 1991.
You are requested to report to Personnel Department at your earliest convenience for the
settlement of any money or benefits due you.
cc. L.L. Abano
Alleging that his dismissal was without just cause and due process, private respondent filed a complaint with
the Arbitration Branch of the Department of Labor and Employment (DOLE) on July 18, 1991.
In his position paper filed on September 6, 1991, he claimed that he was not given the opportunity to be heard
and that he was summarily dismissed from employment based on charges which had not been duly proven. 5
Petitioners denied private respondent's claims. It was alleged that several conferences were held by the
management with private respondent because of the latter's unsatisfactory performance in the company and he
was given sufficient warning and opportunity to "reform and improve his attitude toward attendance," 6 but to
their regret, he never did. It was alleged that private respondent was constantly told of his poor attendance
record and inefficiency through the company's internal electronic mail (e-mail) system. According to
petitioners, this system allows paperless or "telematic" 7 communication among IBM personnel in the company
offices here and abroad. An employee is assigned a "User ID" and the corresponding password is provided by
the employee himself and, theoretically, known only to him. Employees are then expected to turn on their
computers everyday, "log in" to the system by keying in their respective IDs and passwords in order to access
and read the messages sent to and stored in the computer system. To reply, an employee types in or encodes
his message-response and sends the same to the intended recipient, also via the computer system. The system
automatically records the time and date each message was sent and received, including the identification of the
sender and receiver thereof. All messages are recorded and stored in computer disks. 8
Attached to petitioners' position paper were copies of print-outs of alleged computer entries/messages sent by
petitioner Reyes to private respondent through IBM's internal computer system. The following is a summary of
the contents of the print-ours which mostly came from petitioner Reyes' computer:
(a) Private respondent was admonished when he would miss out on meetings with clients and failed to attend
to important accounts, such as that of Hella Philippines; 9
(b) Petitioner Reyes conducted consultations with private respondent concerning the latter's work habits; 10
J
(c) A new policy
u of requiring employees to be at the office at 8:30 a.m. every morning was adopted and
n no longer allowed to sign out of the office by phone; 11
employers were
e
(d) Petitioner Reyes would type into his computer the records of the security guard which reflect private
2
respondent's daily tardiness and frequent absences; 12
7
,
(e) Private respondent was admonished when he failed to respond to instructions from his superiors; 13
1
9
(f) IBM Australia, contacted by Hella Australia, once asked about the reported lack of attention given to Hella
9
Philippines. 14 Private respondent directly answered IBM Australia, through telematic memo, and reported that
1
Hella Philippines was deferring its computer plan and decided to use micros in the meantime; 15
(g) The said response was denied by Hella Australia which later made it clear that it would be buying
"anything but IBM"; 16 and
(h) While private respondent showed some improvement after consultations where he allegedly admitted his
shortcomings, petitioner Reyes reported that he (private respondent) would eventually slide back to his old
ways despite constant counselling and repeated warnings that he would be terminated if he would not improve
his work habits. 17
Through these computer print-ours calling private respondent's attention to his alleged tardiness and
absenteeism, petitioner sought to prove that private respondent was sufficiently notified of the
charges against him and was guilty thereof because of his failure to deny the said charges.
On March 13, 1992, the labor arbiter rendered a decision finding private respondent to have been terminated
for cause and accordingly dismissing the complaint. Considering, however, the ground for termination as well
as private respondent's long record of service to the company, the arbiter ordered the award of separation pay
at the rate equivalent to one-half (1/2) month salary for every year of service. The dispositive portion of the
decision reads —
 WHEREFORE, judgment is hereby rendered in this case declaring respondent IBM
Phils., Inc. not guilty of the charge of illegal dismissal. However, respondent company is
directed to pay complainant Israel the sum of Two Hundred Forty Eight Thousand
(P248,000.00) as separation pay. All other claims are denied for lack of merit.
It appears, however, that prior to the release of the labor arbiter's decision at 11:21 a.m. on March 26, 1992,
private respondent had filed a "Manifestation And Motion To Admit Attached New Evidence For The
Complainant" which was received by the Arbitration Branch at 10:58 a.m. of the same day. The evidence
consisted of private respondent's Daily Time Records (DTRs) for the period June 1, 1990 to August 31, 1990
and pay slips for the period January 1990 to June 1991 showing that private respondent did not incur any
unexcused absences, that he was not late on any day within the period and that no deduction was made from
his salary on account of tardiness or absences.
Private respondent appealed to the NLRC which, on April 15, 1994, reversed the labor arbiter's decision and
found private respondent's dismissal illegal. The NLRC ruled: (1) that the computer print-outs which
petitioners presented in evidence to prove that private respondent's office attendance was poor were
insufficient to show that the latter was guilty of habitual absences and tardiness; and (2) that private respondent
was not heard in his defense before the issuance of the final notice of dismissal. 18 The dispositive portion of
the NLRC's decision reads:
WHEREFORE, the Decision dated March 13, 1992 is hereby SET ASIDE and a new
one entered declaring the dismissal of the complainant as illegal. Respondent (sic) are
hereby ordered to reinstate complainant to his former position without loss of his
seniority rights and to pay backwages starting August 1991 until reinstated at the rate of
P40,516.65 a month including all its benefits and bonuses.
Presiding Commissioner Edna Bonto-Perez dissented on the ground she found that
petitioners have presented strong and convincing documentary evidence that private
respondent was guilty of habitual tardiness and absences. She was also of the opinion
that private respondent was sufficiently warned before he was actually dismissed. 19
Petitioners moved for a reconsideration, but their motion was denied in a resolution, dated July 20, 1994.
Hence, this petition for certiorari. Petitioners contend that —
1. THE NATIONAL LABOR RELATIONS COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK Of JURISDICTION IN HOLDING
THAT NO JUST CAUSE EXISTS NOR WAS THERE DUE
PROCESS OBSERVED IN THE DISMISSAL OF THE
PRIVATE RESPONDENT BECAUSE THE COMPUTER
PRINTOUTS WHICH PROVE JUST CAUSE AND DUE
PROCESS ARE NOT ADMISSIBLE IN EVIDENCE.
2. THE NATIONAL LABOR RELATIONS COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF ITS
JURISDICTION IN HOLDING THAT EVEN IF THE
COMPUTER PRINTOUTS WERE ADMISSIBLE,
PETITIONER FAILED TO SATISFY DUE PROCESS.
We find petitioners' contention to be without merit.
First. Petitioners argue that the computer print-outs submitted by them need not be identified or authenticated
according to the rules of procedure in regular courts in order for the same to be admissible in evidence. They
contend that technical rules of evidence do not apply to administrative/labor cases 20 and because of a
relaxation of the rules of evidence, private respondent was in fact allowed by the labor arbiter to adduce
additional evidence even after a decision had been rendered. 21
It is indeed true that administrative agencies, such as the NLRC, are not bound by the technical rules of
procedure and evidence in the adjudication of cases. 22 This was the reason private respondent was allowed to
submit additional evidence even after the case was deemed submitted for resolution by the labor arbiter. The
practice of admitting additional evidence on appeal in labor cases has been sanctioned by this Court. 23
However, the liberality of procedure in administrative actions is subject to limitations imposed by basic
requirements of due process. As this Court said in Ang Tibay v. CIR, 24 the provision for flexibility in
administrative procedure "does not go so far as to justify orders without a basis in evidence having rational
probative value." More specifically, as held in Uichico v. NLRC: 25
It is true that administrative and quasi-judicial bodies like the NLRC are not bound by
the technical rules of procedure in the adjudication of cases. However, this procedural
rule should not be construed as a license to disregard certain fundamental evidentiary
rules. While the rules of evidence prevailing in the courts of law or equity are not
controlling in proceedings before the NLRC, the evidence presented before it must at
least have a modicum of admissibility for it to be given some probative value. The
Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged losses,
without the accompanying signature of a certified public accountant or audited by an
independent auditor, are nothing but self-serving documents which ought to be treated
as a mere scrap of paper devoid of any probative value.
The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their
authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the
conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of
authenticity or reliability as condition for the admission of documents.
In Rizal Workers Union v. Ferrer-Calleja, 26 this Court struck down the decision of the Director of Labor
Relations which was based on an unsigned and unidentified manifesto. It was held:
From even a perfunctory assessment, it becomes apparent that the "evidence" upon
which said decision is professedly based does not come up to that standard of
substantiality.
It is of course also a sound and settled rule that administrative agencies performing
quasi-judicial functions are unfettered by the rigid technicalities of procedure observed
in the courts of law, and this so that disputes brought before such bodies may be
resolved in the most expeditious and inexpensive manner possible. But what is involved
here transcends mere procedural technicality and concerns the more paramount
principles and requirements of due process, which may not be sacrificed to speed or
expediency. . . The clear message of [Article 221 of the Labor Code] is that even in the
disposition of labor cases, due process must never be subordinated to expediency or
dispatch. Upon this principle, the unidentified documents relied upon by respondent
Director must be seen and taken for what they are, mere inadmissible hearsay. They
cannot, by any stretch of reasoning, be deemed substantial evidence of the election
frauds complained of.
Likewise, in the case of EMS Manpower & Placement Services v.
NLRC, 27 the employer submitted a photocopy of a telex which supposedly shows that the employee was guilty
of "serious misconduct" and which became the basis of her dismissal. This Court ruled that the telex, a "single
document, totally uncorroborated and easily concocted or fabricated to suit one's personal interest and
purpose," 28was insufficient to uphold the employer's defense.
In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court held as incompetent unsigned daily time
records presented to prove that the employee was neglectful of his duties:
Indeed, the [DTRs] annexed to the present petition would tend to establish private
respondent's neglectful attitude towards his work duties as shown by repeated and
 habitual absences and tardiness and propensity for working undertime for the year 1992. ——————————————————————————————
But the problem with these DTRs is that they are neither originals nor certified true
copies. They are plain photocopies of the originals, if the latter do exist. More
Regard from the APPLICATION MNLVM 1 (REYES VV)
importantly, they are not even signed by private respondent nor by any of the employer's
representatives. . . . 29
SYSTEMS MARKETING group T (832) 8192-279
In the case at bar, a specimen of the computer print-out submitted by petitioners reads:
Victor V. Reyes — Marketing Manager
D
a ——————————————————————————————
t
e
Not one of the 18 print-out copies submitted by petitioners was ever signed, either by the sender or the
receiver. There is thus no guarantee that the message sent was the same message received. As the Solicitor
a
General pointed out, the messages were transmitted to and received nor by private respondent himself but his
30 n
computer. d

Neither weret the print-outs certified or authenticated by any company official who could properly attest that
i
these came from IBM's computer system or that the data stored in the system were not and/or could not have
been tamperedm with before the same were printed out. It is noteworthy that the computer unit and system in
e
which the contents of the print-outs were stored were in the exclusive possession and control of petitioners
since after private respondent was served his termination letter, he had no more access to his computer. 31
1
0
Second. Even / if the computer print-outs were admissible, they would not suffice to show that private
respondent's1dismissal was justified.
2
Petitioners' /contention is that private respondent was repeatedly warned through computer messages for
9 or not reporting at all to the office during the period May 1990 — June 1991 but he never
coming in late
0
denied the allegavtions. Therefore, he must be deemed to have admitted these allegations. 32 But the burden of
proving that the dismissal was for just cause is on petitioners. They cannot simply rely on any admission by
0
private respondent implied from his failure to deny the alleged computer messages to him which he denied he
9
had ever received. On the other hand, private respondent's additional evidence, consisting of DTRs and
reporting pay: slips, show that he did not incur unexcused absences or tardiness or that he suffered deduction in
2 of such absences or tardiness.
pay on account
3
:
Indeed, petitioners
1 could have easily proven their allegations by presenting private respondent's DTRs. Since
these were in petitioners' possession, their non-production thereof raises the presumption that if presented they
would be adverse to petitioners. This is precisely what the best evidence rule guards against.
From: REYES VV — MNLVM1
The purpose of the rule requiring the production of the best evidence is the prevention of
To: ISRAEL — MNLRVM Israel, A.D. fraud, because if a party is in possession of such evidence and withholds it, and seeks to
substitute inferior evidence in its place, the presumption naturally arises that the better
SEC: I IBM INTERNAL USE ONLY evidence is withheld for fraudulent purposes which its production would expose and
defeat. 33

Subject:
Angel, have been trying to pin you down for a talk the past couple of days. Whatever
happened to our good discussion 2 weeks ago? I thought you would make an effort to
come in on time from then on? If you have problems which prevent you from coming in
on time, let me know because I would really like to help if I can. The sum of all your
quotas is less than mine so I really need all of you pitching in. Kindly take a look at your
proofs in-tray as there are some to do's which are pending. Acts such as St. Louis U. and
NEECO should be worth looking into as they've been inquiring about upgrading their
very old boxes. If you are too tied up for these accounts do let me know so I can
reassign. By Monday morning please. Let's give it that final push for the branch!.
Private respondent's DTRs for the period June 1, 1990 — August 30, 1990 34 show that while his attendance
record may not have been perfect, it was at least satisfactory. The days when private respondent did not report
to the office were credited either as vacation or as sick leaves. On days when he was away on business trips,
his destination was shown. The DTRs were signed by petitioner Victor Reyes.
It is said that the DTRs presented were only for the period when private respondent's attendance was excellent;
he took care not to submit his DTRs for other months during which he was often late in coming to office. 35 As
the Solicitor General has pointed out, however, it was precisely during that period of June 1, 1990 — August
30, 1990 when, according to the print-outs submitted by petitioners, private respondent was often late or
absent.
Nor is there proof to support petitioners' allegation that it was private respondent's secretary and not him who
often signed the attendance sheet. 36 Indeed, petitioners did not present private respondent's secretary or, at the
very least, attach an affidavit sworn to by her to prove their allegations and thus dispute the DTRs presented by
private respondent. This, notwithstanding ample opportunity to do so. On the other hand, as already stated, the
DTRs, showing private respondent's good attendance, were signed by petitioner Victor Reyes himself, and no
good reason has been shown why they cannot be relied upon in determining private respondent's attendance.
Third. Even assuming the charges of habitual tardiness and absenteeism were true, such offenses do not
warrant private respondent's dismissal. He has not been shown to have ever committed any infraction of
company rules during his sixteen-year stint in the company. Although it is alleged that he failed to attend
important client meetings and gave false representations to a valued client to cover his tracks, there is no
record finding him guilty of such offenses. Dismissal has always been regarded as the ultimate penalty. 37 The
fact that lapses in private respondent's attendance record may have occurred only during his final year in the
company, after a long period of exemplary performance, makes petitioners' contention dubious. While it is true
that long years of service is no guarantee against dismissal for wrongdoing, 38 at least the employee's record
does provide an index to his work. In case doubt exists between the evidence presented by the employer and
that presented by the employee, the scales of justice must be tilted in favor of the latter. 39
Fourth. The print-outs likewise failed to show that private respondent was allowed due process before his
dismissal.
The law requires an employer to furnish the employee two written notices before termination of his
employment may be ordered. The first notice must inform him of the particular acts or omissions for which his
dismissal is sought, the second of the employer's decision to dismiss the employee after he has been given the
opportunity to be heard and defend himself. 40
Aside from these computer print-outs, respondents have not presented any other
evidence to prove that complainant was ever called for investigation nor his side heard
prior to receipt of the termination letter dated June 27, 1991. In fact, even if we consider
these computer print-outs, respondents still failed to satisfy the requirements of
procedure due process. . . . In this particular case, we observe that there is failure on the
part of respondents to prove the existence of a legal cause. The evidence presented
before the Labor Arbiter did not sufficiently and clearly support the allegation of
respondents that complainant committed habitual absences and tardiness resulting into
inefficiency. 44
In spite of this finding, petitioners failed to adduce additional evidence when they moved for a reconsideration
of the NLRC decision or when they filed the instant petition. Despite the opportunities afforded them,
petitioners failed to substantiate their allegations. Neither have they shown sufficient reasons to convince this
Court that, if the case were to be remanded to the arbiter or a formal hearing, they would be able to present
evidence which they could not have presented during the initial stages of this case. As we held in Megascope
General Services v. NLRC: 45
As regards petitioner's contention that a hearing has to be conducted to be fully ventilate
the issues in the case, . . . [s]uffice it to state that nonverbal devices such as written
explanations, affidavits, position papers or other pleadings can establish just as clearly
and concisely an aggrieved party's defenses. Petitioner was amply provided with the
opportunity to present evidence that private respondents were not its employees. Indeed,
it was petitioner's failure to present substantial evidence to buttress its claims that
worked to its disadvantage and not the absence of a full-blown hearing before the public
respondent.

WHEREFORE, the petition is DISMISSED and the decision of the NLRC, dated April 15, 1994, is hereby
These requirements were not observed in this case. As noted earlier, there is no evidence that there was an
AFFIRMED.1âwphi1.nêt
exchange of communication between petitioners and private respondent regarding the latter's supposed
substandard performance. Private respondent has consistently denied, however, that he was ever advised of the
charges hurled against him. The so-called one-on-one consultations or "personal counsellings" mentioned in
the print-outs between petitioner Reyes and private respondent concerning the latter's work habits do not
satisfy the requirements of due process, as we had occasion to say in Pono v. NLRC. 41

Consultations or conferences may not be a substitute for the actual holding of a hearing.
Every opportunity and assistance must be accorded to the employee by the management
to enable him to prepare adequately for his defense, including legal representation. 42

In Ruffy v. NLRC, 43 this Court held that what would qualify as sufficient or "ample opportunity," as required
by law, would be "every kind of assistance that management must accord to the employee to enable him to
prepare adequately for his defense." No such opportunity was given to private respondent in this case. He was
simply served his termination notice without being heard in his defense.

Fifth. Petitioners allege that the NLRC, after concluding that the evidence submitted by them were not
properly identified or authenticated, should have remanded the case to the arbiter for "clarificatory" hearing.

A formal hearing was not de rigueur. The 1994 Rules of Procedure of the NLRC, §4 provides:

Immediately after the submission by the parties of their position papers/memorandum,

the Labor Arbiter shall, motu proprio, determine whether there is need for a formal trial
or hearing. At this stage, he may, at his discretion and for the purpose of making such
determination, ask clarificatory questions to further elicit facts or information, including
but not limited to the subpoena of relevant documentary evidence, if any, from any party
or witness. United States Court of Appeals, Seventh CircuitDec 14, 1984Full title
750 F.2d 1354 (7th Cir. 1984)
As held by the NLRC:
The defendant-appellant, William Croft, appeals his conviction for one count of knowingly and unlawfully particles. Croft further informed the board that he had received permission from his superiors at the University
converting, to his own use, a "thing of value" of the Environmental Protection Agency (the services of Laurel of Wisconsin-Madison to conduct the Weston research project and to use the University's advanced research
Johnson), in violation of 18 U.S.C. § 641 (1982). We affirm. facilities, on the condition that he reimburse the school for their expenses. The following month, in April 1981,
the town board hired Croft at a fee of $75.00 an hour, to complete a thorough test of the asbestos content in the
Weston water supply by September 1, 1981. The town's attorney requested that Croft personally perform all of
I
the research and scientific procedures because in the event of a lawsuit against the concrete pipe manufacturer,
Johns-Manville Corp., Croft would have to substantiate his expert data and account for the water samples'
The record reveals that in June 1980, the defendant, William Croft, was employed as an assistant professor in chain of custody at trial.
the Department of Veterinary Sciences at the University of Wisconsin-Madison. As a result of his extensive
research in the area of urinary bladder cancer in animals, Croft had developed an interest in the carcinogenic
Following the meeting in April with the Weston town board, Croft returned to the University of Wisconsin-
(cancer causing) effects of asbestos. On June 30, 1980, Croft submitted a grant proposal to the Environmental
Madison and informed Caplenas, the EPA project specialist, that additional water samples would be arriving
Protection Agency ("EPA") outlining a research project "to examine mesothelioma in dairy calves as a
from Weston for her to analyze. Caplenas responded that she was busy examining cancerous cattle tissue for
potential monitor for asbestos and as an index of the extent of environmental hazard from exposure to
the EPA project and did not have the time to perform either the water chemistries or the asbestos counts for
asbestos." Mesothelioma is a cancerous tumor that often develops in the abdominal and chest areas of humans
the Weston project. During this same time period, in April 1981, Croft employed the services of James
and animals after exposure to asbestos. Historically, the incidence of mesothelioma in dairy calves is rare,
Williams to also assist in the EPA study. Croft assigned Williams, a journalism student who had been working
however, according to Croft's EPA proposal there were seven cases of the disease reported between January 1,
for Croft on an unrelated research project that was nearing completion, to review scientific periodicals for
1977 and December 31, 1978, at a meat packing plant in Edgar, Wisconsin. In light of this evidence, Croft
asbestos studies and articles.
planned to obtain cancerous cattle tissue from area meat packers and test that tissue for mesothelioma. If the
test proved positive, the cattle would be traced to their farm of origin where the water supply and cattle feed
would be analyzed for asbestos content. In June 1981, Laurel Johnson, an undergraduate student in the animal sciences program at the University of
Illinois-Champaign who was living in Madison, Wisconsin for the summer, contacted Croft concerning her
interest in obtaining research-related summer employment. According to Johnson, Croft explained that he had
In September 1980, the EPA approved Croft's proposal and forwarded $130,991 in grant funds to the Office of
an opening for a research assistant to perform water chemistries and analyze water samples taken from
Research Administration at the University of Wisconsin-Madison. The University held the funds in a special
Weston, Wisconsin. Johnson accepted Croft's offer and was employed from June to mid-August of 1981,
EPA account (uW Fund Account Number 144-Q386) and agreed with the EPA to disburse those funds only for
during which time she performed water chemistries on the Weston water samples, analyzed the asbestos count
expenses incurred during the course of the two-year EPA research project. The EPA designated Croft as the
of those samples, and recorded the results in a laboratory log book. In early August 1981, Croft asked Johnson
"principal investigator," or coordinator of the project, responsible for supervising and contributing expert
if she would remain in Madison for the upcoming fall semester in order that she might complete her research
research, as well as submitting semi-annual progress reports to the EPA. See, e.g., 40 C.F.R. § 30.135-19.
on the Weston water samples. Johnson declined the offer and returned to the University of Illinois-Champaign.
Following the University's receipt of the EPA funds, Croft immediately began his search for a project
Following Johnson's return to Illinois, Croft directed James Williams to educate himself in the scientific
specialist to assist him in the EPA study.
procedures and techniques required to perform water chemistries and asbestos counts. According to the
University of Wisconsin payroll records, Johnson received $1,988.45 from the special EPA account for her
Some five months later, in January 1981, Croft became involved in a separate and completely independent summer research assistance on the Weston asbestos research project.
asbestos research project. While visiting his hometown of Crivitz, Wisconsin, Croft learned that town officials
in nearby Weston, Wisconsin were concerned about a possible asbestos problem in the Weston water system.
Throughout the summer of 1981, the Weston officials pressured Croft for the results of his asbestos tests, as
The town's Department of Public Works had evidence that the underground water pipe, made of cement and
the residents of Weston were aware and fearful of the possible carcinogenic problem in the town's water
asbestos, was corroding and releasing asbestos fibers into Weston's water supply. Croft arranged a meeting
supply. See, e.g., The Daily Herald, Wausau-Merrill, Wis., February 11, 1982, at 19. Croft explained that his
with the Weston attorney and the director of Public Works to discuss the twenty-three miles of concrete pipe
test results were delayed because he had to personally perform the time-consuming water filtration and
that carried water to the residents of Weston. At the meeting, Croft informed the Weston representatives of his
asbestos count for each water sample. Croft failed to complete the Weston project by the September 1, 1981
experience in asbestos-related research and his ability to perform the highly technical and scientific
deadline, and during the following months of September and October the town attorney repeatedly requested
experiments needed to ascertain the asbestos content in the town's water supply.
that Croft provide the town board with progress reports. Finally, on October 29, 1981, Croft submitted water
chemistries of 134 water samples, asbestos counts for twenty-three of those samples, and other pertinent data,
In that same month, January 1981, Croft completed his search for a project specialist on the EPA-funded study, to the town board.Included in the data submitted by Croft were five pages of water chemistry calculations that
hiring Nijole Caplenas, a recent graduate from the University of Wisconsin with a Masters degree in Laurel Johnson had performed on Weston water samples during her summer employment.
microbiology medicine, to aid him in collecting and analyzing data for the two-year project. Caplenas' duties
initially consisted of performing water chemistries (including tests for the pH factor, alkalinity, hardness, and
At trial, Croft claimed that on October 29, 1981, he submitted the results of sixty-six asbestos tests to the
aggressiveness index) and learning the proper method of analyzing water samples to determine their asbestos
Weston town board.
count. The detailed, time-consuming process of counting asbestos fibers involves the filtering of a water
sample through alcohol soaked filtration paper, carbon coating the paper onto a slide, ashing the slide (burning
away unwanted residue), placing the slide under an electron microscope, and counting the number of asbestos At trial, the Government asked Croft whether he, in fact, submitted Johnson's calculations to the Weston town
particles appearing upon the slide. Between January and March of 1981, Caplenas performed water chemistries board. Croft replied, "I do not know how it got there."
and analyzed various water samples for their asbestos count, including some preliminary water samples that
Croft obtained from the town of Weston. In addition, Caplenas visited numerous meat packing facilities
The following month, in November 1981, James Williams was forced to withdraw from his research position,
throughout Wisconsin, obtaining samples of cancerous cattle tissue and testing them for mesothelioma.
due to a recurring physical illness. As a result of his employment with Croft, Williams earned $13,685.00
during 1981 and according to the University of Wisconsin payroll records, a substantial amount of that
The aggressiveness index is used to calculate the rate at which water will corrode concrete pipes consisting of payment was made from the special EPA account. Sometime during the fall of 1981, Croft telephoned Laurel
cement and asbestos, thereby causing the release of asbestos fibers into the water system. Johnson at the University of Illinois, asking "if [she] had been contacted by anyone from the University [of
Wisconsin] . . . [r]egarding the summer work . . . ." Johnson responded that she had informed an auditor from
the University of Wisconsin that she "had been doing work for the summer for Dr. Croft." In February 1982,
In March 1981, Croft again traveled to Weston, Wisconsin; this time to meet with the town board and discuss
Nijole Caplenas resigned from her position as the project specialist for the EPA study in order that she might
his proposal for measuring the level of asbestos in the town's water supply. Croft assured the board that he was
well-trained in asbestos research and capable of performing the highly technical process of counting asbestos
pursue new career objectives. According to the University of Wisconsin payroll records, Caplenas received
$14,176.85 during 1981 and a substantial portion of that sum was drawn from the special EPA account.
Once the EPA officials became aware of Croft's private asbestos project for the town of Weston, they
commenced an investigation into whether or not EPA funds were disbursed in payment for research on that
project. The evidence obtained during that investigation was presented to a Federal Grand Jury, and on March
2, 1983, the Grand Jury returned a three-count indictment against Croft for knowingly converting, to his own
use, the services performed by James Williams, Laurel Johnson, and Nijole Caplenas on the Weston research
project and paid for with EPA funds, in violation of 18 U.S.C. § 641. Croft pled not guilty to all three counts of
the indictment. Some two months later, on April 27, 1983, the Grand Jury filed a superseding three-count
indictment alleging that Croft knowingly and unlawfully converted the services of Williams, Johnson, and
Caplenas to his own use in violation of 18 U.S.C. § 641. On August 8, 1983, the Government filed a bill of
particulars to clarify the indictment and notify Croft that the relevant time frame included the period during
which Williams, Johnson, and Caplenas "worked under the direction of the defendant [Croft], and during
which time the defendant converted [their] services. . . ." The case proceeded to trial and Croft claimed, as a
defense, that the water chemistries and asbestos counts performed by the three research assistants on the
Weston water samples were simply training procedures that allowed the students to refine the techniques
required for the successful completion of the EPA project. Croft claimed that none of the research assistants'
calculations nor work products were forwarded to the Weston town board. However, upon cross-examination,
Croft was unable to explain the presence of Johnson's calculations in the data submitted to the town board.
Based upon the evidence presented at trial, the jury found Croft guilty on one of the three counts of the
indictment; converting, to his own use, the services performed by Laurel Johnson and paid for with EPA funds.
On November 25, 1983, Croft was sentenced to one year imprisonment, fined $5,000, and ordered to pay
restitution in the amount of $2,955.13 to the United States Government. On appeal, Croft initially contends
that the services of Laurel Johnson are not a "thing of value" as that phrase is used in 18 U.S.C. § 641. In the
alternative, Croft claims that the indictment was insufficient because it failed to allege the element of specific
intent that is required for prosecution under 18 U.S.C. § 641. Finally, Croft contends that the district court
erred in admitting evidence of the payroll account records, in failing to properly instruct the jury on Croft's
defense and the elements of a section 641 offense, and in failing to provide the jury with the transcripts of
requested testimony.
II
A. "THING OF VALUE" UNDER 18 U.S.C. § 641
Croft initially contends that his actions do not fall within the purview of 18 U.S.C. § 641, which provides in
pertinent part:
"Whoever . . . knowingly converts to his own use . . . any . . . thing of value of the United States . . . [s]hall be
fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property
does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year,
or both."
According to Croft, the services of Laurel Johnson do not constitute a "thing of value" as that phrase is used
in 18 U.S.C. § 641. To support this position, Croft relies upon the reasoning of the Ninth Circuit in Chappell v.
United States, 270 F.2d 274(9th Cir. 1959) (" Chappell"), where a sergeant in the United States Air Force was
prosecuted under section 641 for ordering an airman to paint apartments, owned by the sergeant, during the
airman's normal duty hours. The court in Chappellstated that the purpose of 18 U.S.C. § 641 was to place
crimes such as "stealing, larceny, and its variants and equivalents" into one category and "[s]uch offenses were
never thought to be committed by one man making use of the services of another's servant without reimbursing
the master." Id. at 276. The court thus held that "[i]t is plain that there is no warrant in the language of [ 18
U.S.C. § 641] to sustain the Government's attempt to treat the services and labor of [the airman] as a thing of
value." Id. at 276.
Our analysis of Croft's claim under 18 U.S.C. § 641 begins with the Supreme Court's seminal decision
in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (" Morissette"). In that case, a
civilian deer hunter was prosecuted under section 641 for knowingly converting, to his own use, discarded
simulated bombs he found while hunting on United States Air Force property. The issue before the Supreme
Court was whether the Government was required to prove the defendant's intent to convert such property to his
own use. According to the Court, Congress' purpose in enacting 18 U.S.C. § 641 was "to collect from scattered
sources crimes so kindred as to belong in one category. Not one of these [crimes] had been interpreted to be a
crime without intention and no purpose to differentiate between them in the matter of intent is disclosed." Id. at
266-67, 72 S.Ct. at 251-52. Thus, the Court concluded that Congress did not seek "to eliminate intent from any
offense," enumerated in section 641, including knowing conversion. Id. at 273, 72 S.Ct. at 255. Following a
thorough review of the legislative history of 18 U.S.C. § 641, the Court added that, "[t]he history of § 641,
demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also
acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed
definitions." Id. at 269 n. 28, 72 S.Ct. at 253 n. 28 (emphasis added). In line with the Supreme Court's
reasoning in Morissette, this court has determined that "the purpose of § 641 . . . is to provide a sanction for
intentional conduct by which a person either misappropriates or obtains a wrongful advantage from
government property." United States v. Bailey, 734 F.2d 296, 304 (7th Cir. 1984) (emphasis added)
(citing Morissette, 342 U.S. at 271, 72 S.Ct. at 254) (" Bailey").
The broad scope of 18 U.S.C. § 641 as analyzed by the Supreme Court in Morissetteand this court
in Bailey has been interpreted by the Federal circuits to include the knowing conversion of intangible "things
of value." For example, in United States v. May, 625 F.2d 186 (8th Cir. 1980) (" May"), a former Adjutant
General of the National Guard used National Guard aircrafts, fuel, and personnel for "his own convenience
rather than that of the National Guard." Id. at 188-89. The general was convicted for knowing conversion of
United States property in violation of 18 U.S.C. § 641, and argued on appeal that under Chappell "any
evidence as to the value of intangibles, specifically the salaries of servicemen, was impermissible." May, 625
F.2d at 191. The Eighth Circuit rejected this argument, holding that " `valuables' not ordinarily subject to tort
conversion may nevertheless be subject to criminal conversion under section 641." Id. (emphasis added). The
court reasoned that "the statutory words `thing of value,' broaden the scope of section 641 beyond the subject
matter of the common law torts which are its foundation." Id. Thus, the court adhered to the language
in Morissette that section 641 applies to acts of "larceny or embezzlement at common law and also acts which
shade into those crimes but which, most strictly considered, might not be found to fit their fixed
definitions." Id. (quoting Morissette, 342 U.S. at 269 n. 28, 72 S.Ct. at 253 n. 28).
In United States v. Girard, 601 F.2d 69 (2d Cir. 1979), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d
96 (1980) (" Girard"), a DEA undercover agent retrieved information from a DEA computer file and sold it to
members of a narcotics ring. The agent was convicted for knowing conversion of United States property in
violation of 18 U.S.C. § 641, and argued on appeal that the statute only applied to tangible property; not
intangible information from a computer disk. The Second Circuit reviewed the legislative history of section
641 and stated that "we are impressed by Congress' repeated use of the phrase `thing of value' in section 641
and its predecessors. . . . The word `thing' notwithstanding, the phrase is generally construed to cover
intangibles as well as tangibles." Id. at 71. The court thus concluded that "[a]lthough the content of a writing is
an intangible, it is nonetheless a thing of value. . . . [T]he Government has a property interest in certain of its
private records which it may protect by statute as a thing of value. It has done this by the enactment of section
641." Id.
Similarly, in United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct.
733, 50 L.Ed.2d 749 (1977) (" DiGilio"), the defendant was convicted of procuring unauthorized copies of FBI
file documents in violation of 18 U.S.C. § 641. On appeal, the defendant argued that the unauthorized copies
of records were not themselves "records," and thus he could not be convicted under section 641 for converting,
to his own use, records of the United States. The Government responded that "the misappropriation of
information falls within § 641's sanction." Id. at 977. The Third Circuit held that because the defendant's
actions constituted an actual larceny of the records, there was no need to reach the issue of whether a
conversion of the information contained on those records had, in fact, occurred. The court added, however,
that:
"We do not, by resting upon the narrower ground that a technical larceny has been proved, intend to imply a
rejection of the government's broader interpretation of § 641 . . . . Much can be said in favor of the
government's argument that Chappell v. United States, supra, is inconsistent with the interpretation of 641 by
the Supreme Court in Morissette . . . ."
Id. at 978 (emphasis added). The Third Circuit relied upon the same language quoted by the Eighth Circuit
in May, that 18 U.S.C. § 641 applies to acts of "larceny or embezzlement at common law and also acts which
shade into those crimes but which, most strictly considered, might not be found to fit their fixed
definitions." DiGilio, 538 F.2d at 978 (quoting Morissette, 342 U.S. at 269 n. 28, 72 S.Ct. at 253 n. 28). See
also United States v. Truong Dinh Hung, 629 F.2d 908, 924 (4th Cir. 1980).
In the present case, Croft improperly converted to his own use a "thing of value," specifically the services of
Laurel Johnson. The record clearly reveals that Johnson, under Croft's supervision and direction, performed
water chemistries on the Weston water samples, analyzed the asbestos count of those samples, compiled
detailed calculations, and recorded the data that was later transmitted to the Weston town board. According to
the testimony of Weston's attorney, the town board paid Croft "between $40,000 and $50,000" to conduct the
Weston research project. At trial, Croft did not attempt to establish that he paid Laurel Johnson for her services
with the funds received from the Weston town board. Rather, the uncontradicted testimony and evidence
reveal that the services performed by Johnson in testing the Weston water samples and recording the results in
a laboratory log book were paid in full by the EPA. As a result of the EPA's payment for the services
performed by Johnson on the Weston research project, the EPA has a financial interest in those services that it
is entitled to protect as a "thing of value" under 18 U.S.C. § 641.
The record reveals that Laurel Johnson's services were paid for out of the special EPA account established by
the University of Wisconsin. According to the conditions set forth in the EPA agreement and the regulations
enumerated in 40 C.F.R. § 30.100 et seq., the EPA, an executive agency of the United States Government,
maintains substantial supervision and control over the funds in that account. Thus, for purposes of our analysis,
the EPA paid for Johnson's services. See United States v. Mitchell, 625 F.2d 158, 160-61 (7th Cir. 1980), cert.
denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1981); United States v. Maxwell, 588 F.2d 568, 570-
74 (7th Cir. 1978), cert. denied, 444 U.S. 877, 100 S.Ct. 163, 62 L.Ed.2d 106 (1979).
According to this court's analysis in Bailey, "the purpose of § 641 . . . is to provide a sanction for intentional
conduct by which a person either misappropriates or obtains a wrongful advantage from government
property." 734 F.2d at 304. It is evident that Croft obtained a wrongful advantage by converting and
misappropriating the services of Laurel Johnson for his personal research project while allowing those services
to be paid for by the EPA. Croft's conversion of Johnson's services for his own use, just as the conversion of
intangible services in May and the conversion of intangible information in Girard, is one of those acts referred
to by the Supreme Court that shades into the crimes of larceny or embezzlement "but which, most strictly
considered, might not be found to fit their fixed definitions." Morissette, 342 U.S. at 269 n. 28, 72 S.Ct. at
253 n. 28. We disagree with the Ninth Circuit's limited, narrow, and unrealistic interpretation in Chappellthat
intangible services do not constitute a "thing of value" as that phrase is used in section 641. Rather, we adopt
the logical construction of section 641 mandated by the Supreme Court in Morissette and this court
in Bailey, and hold that the services rendered by Laurel Johnson on the Weston research project do constitute a
"thing of value" under 18 U.S.C. § 641. Accord Burnette v. United States, 222 F.2d 426, 427(6th Cir. 1955)
(per curiam) (United States Army officer convicted under 18 U.S.C. § 641 for "convert[ing] to his own use the
services and labor of two employees of the United States"). Indeed, as Justice Holmes has so aptly reasoned,
"[w]e agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they obviously mean." Roschen v. Ward, 279
U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722 (1929).
The concurring opinion appears to misconstrue our holding with its emphatic statement that "services are not
property, at least since the 13th Amendment abolished slavery." As we state in the text of the opinion, our
narrow holding is that "the services rendered by Laurel Johnson on the Weston research project do constitute a
`thing of value' under 18 U.S.C. § 641."
B. "KNOWING CONVERSION" UNDER 18 U.S.C. § 641
Croft next claims that even if his actions fall within the purview of 18 U.S.C. § 641, the indictment was
insufficient because it only charged Croft with "knowingly and unlawfully" converting the services of Laurel
Johnson to his own use. As we have previously noted, the Supreme Court in Morissette interpreted the
language of 18 U.S.C. § 641 to include an element of intent. Croft contends that the phrase "knowingly and
unlawfully" does not sufficiently and clearly set forth this element of intent as it has been construed for
purposes of section 641. Thus, Croft reasons that the insufficient indictment renders the conviction based
thereon fatally defective. See, e.g., United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir. 1973).
In United States v. Watkins, 709 F.2d 475 (7th Cir. 1983) (" Watkins"), this court acknowledged that an
indictment under 18 U.S.C. § 641 is "sufficient if it, first, alleges the elements of the offense charged and fairly
informs a defendant of the charge against him or her, and, second, enables the defendant to plead an acquittal
or conviction in bar of future prosecutions." 709 F.2d at 478 (citing Hamling v. United States, 418 U.S. 87,
117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1973)). According to the Eighth Circuit in May, "specific intent is a
necessary element that must be alleged in the indictment" under section 641, but no "particular verbal formula"
is required. 625 F.2d at 190. See also Watkins, 709 F.2d at 478 ("no particular words or phrases must be used"
in an indictment under section 641). The relevant case law demonstrates that no particular verbal formula or
talismanic combination of words is required to properly allege the element of specific intent in an indictment
under 18 U.S.C. § 641. In Morissette, the Supreme Court approved a section 641 indictment charging, inter
alia, that the defendant "did unlawfully, wilfully and knowingly . . . convert to his own use." 342 U.S. at
270, 72 S.Ct. at 253. On the other hand, a number of Federal circuit courts have held that the phrase "wilfully
and knowingly" is sufficient to allege the specific intent element of section 641 and apprise the defendant of
the crime charged. See United States v. Baker, 693 F.2d 183, 186 (D.C. Cir. 1982); May, 625 F.2d at
189; O'Malley v. United States, 378 F.2d 401, 404 (1st Cir. 1967), cert. denied, 389 U.S. 1008, 88 S.Ct. 571,
19 L.Ed.2d 606 (1968). Neither our research nor the parties' briefs reveal any Federal circuit law construing
the phrase "knowingly and unlawfully" as used in the section 641 indictment presently before this court for
review.
Our examination of the sufficiency of the indictment in this case is guided by the Supreme Court's analysis
in Morissette that "knowing conversion requires more than knowledge that defendant was taking the property
into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the
taking a conversion." 342 U.S. at 270-71, 72 S.Ct. at 253-54. According to the Court, the section 641
indictment must charge the defendant with "criminal intent to . . . knowingly convert, that is, wrongfully to
deprive another of possession of property." Id. at 276, 72 S.Ct. at 256 (emphasis original). See also United
States v. Wilson, 636 F.2d 225, 226 (8th Cir. 1980). In the original indictment of March 2, 1983, the Grand
Jury charged Croft with knowingly converting, to his own use, the services performed by Williams, Johnson,
and Caplenas and paid for by the EPA. In the superseding indictment of April 27, 1983, the Grand Jury
charged Croft with knowingly and unlawfully converting those same services. The phrase "knowingly and
unlawfully" charges Croft with more than knowingly taking the services of Williams, Johnson, and Caplenas;
it charges him with knowingly taking those services in violation of the law. In sum, the phrase "knowingly and
unlawfully" properly charges Croft with wrongfully depriving the EPA of its services. Thus, we hold that the
indictment in this case sufficiently alleges the specific intent element of 18 U.S.C. § 641, as defined by the
court in Morissette, and accurately informs Croft of the crime charged.
Croft further contends that the indictment is insufficient because it failed to inform him of the "services" that
were converted. A review of the record reveals that this claim is likewise without merit. The Government, in
response to Croft's pre-trial motion to dismiss the indictment, filed a bill of particulars clarifying and
particularizing that the relevant time frame of the indictment was the period that Williams, Johnson, and
Caplenas "worked under the direction of the defendant [Croft], and during which time the defendant converted
[their] services." The Government further explained that the services consisted of Johnson's "laboratory work
on the defendant's personal project with the Town of Weston" and the "research and laboratory time" spent by
Williams and Caplenas "on the defendant's personal project with the Town of Weston." The detailed
information provided within the Government's bill of particulars clearly informed Croft of the type of services
converted to his own use, and thus we hold that the indictment, as amended, was more than sufficient to charge
Croft with a violation of 18 U.S.C. § 641. Accord Watkins, 709 F.2d at 478.
C. ALLEGED TRIAL ERRORS
Croft next contends that the district court erred in admitting computer printouts, containing the University of
Wisconsin's payroll records, into evidence and in denying Croft access to the computer program. At trial, the
Government elicited testimony from Richard Laufenburg, Director of Payroll and Benefits Services at the
University of Wisconsin-Madison, that the computer printouts in question were "individual income tax detail
summary for the . . . calendar year 1981 which reflects the individual payment made to all individuals through
the payroll system." According to Laufenburg, these computer-generated compilations of the 1981 payroll
records were kept in the regular course of business of the University of Wisconsin-Madison payroll office. The
computer printouts were made contemporaneously with or near the time that the payments were made and the
payroll data became available. Laufenburg added that the printouts accurately reflected the payroll data and
were maintained under his direction and supervision. Moreover, Laufenburg testified that his staff reviewed
and audited the payroll data contained on the computer printouts for accuracy, on a regular basis throughout
the year. Based upon this adequate foundation evidence, the district court properly admitted the computer
printouts as business records that satisfied the hearsay exception of Fed.R.Evid. 803(6). Croft contends that the
district court erred in admitting the computer printouts because the Government failed to prove that the
information entered into the computer was accurate and reliable. According to Croft, this court's decision
in United States v. Weatherspoon, 581 F.2d 595 (7th Cir. 1978) (" Weatherspoon"), requires that the
Government establish the accuracy of the input procedures before the computer printout can be introduced into
evidence.
Fed.R.Evid. 803(6) provides, in pertinent part:
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted activity, A memorandum, report, record, or data compilation, in any form,
of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness."
It is well-settled that computer data compilations may constitute business records for purposes of Fed.R.Evid.
803(6) and may be admitted at trial if a proper foundation is established. United States v. Young Bros.,
Inc., 728 F.2d 682, 694 (5th Cir.), cert. denied, ___ U.S. ___, 105 S.Ct. 246, 83 L.Ed.2d 184
(1984); Rosenburg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980); United States v. Scholle, 553 F.2d 1109,
1124-25 (8th Cir. 1977), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1978); Annot., 7 A.L.R.4th
8, 15 (1981). According to this court in United States v. Chappell,698 F.2d 308 (7th Cir.), cert. denied, 461
U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983), business records are admissible "if they are kept in the
course of a regularly conducted business activity, and if it was the regular practice of that business activity to
make the records, as shown by the testimony of the custodian or other qualified witness." 698 F.2d at 311. It is
important to note, however, that the business records are inadmissible "if the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness." Id. For purposes of review, we are
guided by the clearly established rule of law that the "trial court has broad discretion in ascertaining the
admissibility of business records, and its ruling should be disturbed only when that discretion is
abused." United States v. Young Bros., Inc., 728 F.2d at 694 (quoting Rosenberg v. Collins, 624 F.2d at
665); United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982).
In the present case, the evidence establishes that the computer printouts in question were maintained and
supervised by the Director of the Payroll and Benefits Services at the University of Wisconsin-Madison — one
Richard Laufenburg. According to Laufenburg, the printouts were made contemporaneously with or near the
time that the payroll data became available, the printouts were kept in the regular course of business, and it
was the regular practice of the University of Wisconsin-Madison to make such printouts. Moreover, with
regard to the reliability and trustworthiness of the payroll data information entered into the computer and
compiled in the printouts, Laufenburg testified that members of his staff performed "various reviews and
audits . . . throughout the year." Laufenburg further asserted that if errors occur in the input of payroll
information, these reviews "should pick it up." Finally, Laufenburg stressed the importance of the precautions
taken by his staff to ensure the accuracy of these printouts, which are relied upon by the University of
Wisconsin to complete the more than 60,000 W-2 employee payroll forms annually processed by the
institution for the Internal Revenue Service.
The record reveals that defense counsel thoroughly cross-examined Laufenberg concerning the accuracy of the
computer and the input procedures. According to the uncontroverted evidence, the computer printouts were
reviewed and audited for accuracy on a regular basis throughout the year and also relied upon by the
University of Wisconsin-Madison to complete tax forms for the Internal Revenue Service. This evidence,
when combined with the fact that the audits performed by Laufenburg's staff should have "picked up" any
errors in the input of payroll information, sufficiently establishes the reliability and trustworthiness of the
computer printouts. Thus, in view of the totality of the circumstances we hold that the district court did not
abuse its discretion in admitting the printouts into evidence under the hearsay exception of Fed.R.Evid.
803(6). We further note that the printouts in the present case were simply computer compilations of payroll
data information for 1981. The printouts contained no calculations or studies that relied upon a complex and
intricate computer program. Instead, the relevant payroll evidence was simply transferred from payroll data
sheets to a computer disk for convenient storage in the computer and easy retrieval on computer printouts. In
light of the fact that the actual computer program was of little if any importance in the present case, we hold
that no error was committed when the district court failed to allow Croft access to the program.
In Weatherspoon, this court held that computer printouts were properly admitted into evidence following the
Government's proof of "what the input procedures were, . . . that the input procedures and printouts were
accurate within two percent, . . . that the computer was tested for internal programming errors on a monthly
basis, and . . . that the printouts were made, maintained and relied on . . . in the ordinary course of . . . business
activities." 581 F.2d at 598. Although the evidence of computer input procedures in the present case is not as
thorough and all-encompassing as that in Weatherspoon; the evidence, nonetheless, "lays a foundation
sufficient to warrant a finding that such information is trustworthy and the opposing party is given [an] . . .
opportunity to inquire into the accuracy of the computer and its input procedures . . . ." United States v.
Liebert, 519 F.2d 542, 547 (3d Cir.), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 301 (1975)
(citing United States v. De Georgia, 420 F.2d 889, 893 n. 11 (9th Cir. 1969)). See also United States v.
Fendley, 522 F.2d 181, 187 (5th Cir. 1975); United States v. Russo, 480 F.2d 1228, 1241 (6th Cir. 1973), cert.
denied, 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109 (1974).
Croft next claims that the jury instructions concerning his theory of defense were incomplete and thus
improper. The district court instructed the jury:
"It is the defendant's theory of this case that he intended that the work performed upon the Weston water
samples by James Williams, Laurel Johnson and Nijole Caplenas was for the purpose of instructing them in the
technique of filtering water samples, preparing them for fiber analysis and counting asbestos fibers. The
defendant's additional theory of this case is that the Environmental Protection Agency did not lose the services
of James Williams, Laurel Johnson and Nijole Caplenas.
Now, the defendant has no burden to prove these theories. The government has the burden of proving guilt of
the defendant beyond a reasonable doubt. . . ."
Croft contends that the district court should have further informed the jury of the consequences of an acquittal,
that Croft believed training was permitted under the EPA grant, and that Croft believed he did not submit the
calculations and work product of his research assistants to the Weston town board.
The law is well-settled in this circuit that "[a] defendant is entitled to have the jury instructed on his theory of
the defense if the defense is supported by the law and the evidence." United States v. Martin-Trigona, 684 F.2d
485, 493 (7th Cir. 1982) (citing United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969)). See also United
States v. Moore, 627 F.2d 830, 832-33 (7th Cir. 1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d
342 (1981). In the instant case, Croft admits that he directed Williams, Johnson, and Caplenas to analyze the
Weston water samples. Croft simply claims as a defense that he acted in good faith, believing that his actions
were proper and did not constitute a violation of the law. In short, Croft's defense consists of his belief that he
lacked the specific intent required to be convicted of converting, to his own use, "a thing of value" of the EPA,
in violation of 18 U.S.C. § 641. According to the rule of law in this circuit, "[i]n determining the propriety of
instructions they are to be viewed as a whole, and as long as the instructions treat the issues fairly and
accurately they will not be interfered with on appeal." United States v. Ray, 683 F.2d 1116, 1127 (7th
Cir.), cert. denied, 459 U.S. 1091, 103 S.Ct. 578, 74 L.Ed.2d 938 (1982) (citing United States v. Patrick, 542
F.2d 381, 389 (7th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977)). The district
court's theory of defense instruction clearly and fairly informed the jury of Croft's belief that he acted in good
faith when he directed his EPA research assistants to analyze the Weston water samples. Thus, upon review of
the jury instructions as a whole, including the Government's burden of proving the specific intent element of
section 641 and Croft's belief that he did not violate the law, we hold that the theory of defense instruction, as
recited by the district court, was proper.
Croft next contends that the district court erred in instructing the jury on the issue of the EPA's ownership of
the services performed by Williams, Johnson, and Caplenas. Croft erroneously asserts that the district court
failed to allow the jury to determine the ownership issue as a question of fact. The district court instructed the
jury that for purposes of 18 U.S.C. § 641, the Government was required to prove, beyond a reasonable doubt:
"1. That the defendant converted a thing of value worth in excess of $100, an employee's services, to his own
use;
2. That the services involved belonged to the United States Government by virtue of the employee having been
paid with federal money.
3. That the conversion was done knowingly and unlawfully."
The court added that on the issue of "services belonging to the Federal Government, . . . when the University
of Wisconsin draws funds to pay an employee in a manner that debits a Federal grant for the amount of funds
drawn, the University is acting as an agent of the United States and the funds so drawn are funds of the United
States." This latter instruction properly informed the jury that, as a matter of law, the funds drawn from the
special EPA account belonged to the EPA, an executive agency of the United States Government. According
to the detailed regulations of 40 C.F.R. § 30.100 et seq., the EPA exercises substantial supervision and control
over grant funds, such as those held by the University of Wisconsin-Madison, and thus the funds do, as a
matter of law, belong to the EPA. See United States v. Mitchell, 625 F.2d 158, 160-61 (7th Cir. 1980), cert.
denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1981); United States v. Maxwell, 588 F.2d 568, 571-
74 (7th Cir. 1978), cert. denied, 444 U.S. 877, 100 S.Ct. 163, 62 L.Ed.2d 106 (1979). The jury, guided by this
legal principle, was properly required to decide the factual issue of whether the services of Williams, Johnson,
and Caplenas belonged to the EPA. Thus, we hold that the district court did not err in instructing the jury as to
the Government's ownership of the EPA funds.

Croft finally claims that the district court erred in failing to grant the jury's request to "hear the complete
testimony of Laurel Johnson; and the testimony of Mr. Croft regarding Laurel Johnson's employment." The
record reveals that the jury requested the testimony at 12:52 a.m., some five hours after it began deliberations.
The court informed the jury that the testimony was not available at that time and that arrangements would be
made to sequester the jury. The parties and the court agreed to contact the free-lance court reporters who
attended the trial, and order them to transcribe the testimony as soon as possible. The court reconvened some
ten hours later, at 10:45 a.m., and at that time the trial judge informed the parties that the free-lance reporters
who were to transcribe the forty-five minutes of Johnson's testimony and the three hours of Croft's testimony
were unavailable. In light of this dilemma, the trial judge reasoned that:

"I think to sequester a jury for several days in this matter is inappropriate. I also believe that because of the
publicity that there may very well be, that we certainly wouldn't want them or I think it would not be wise to
have them outside of sequestration for five or six or three or four or how many days it might take to round up
the transcripts . . . ."
Accordingly the trial judge informed the jury that the free-lance reporters were unavailable and "that it would
not be in order nor appropriate to await the preparation of these transcripts." The judge added that, "[a]s jurors,
you are requested to render your verdict based upon your recollection of all the testimony which has been
given and all the exhibits which have been provided."

The law is well-established in this circuit that "it is within the discretion of the trial court whether to read
portions of the trial transcript back to the jury at its request." United States v. Kuta, 518 F.2d 947, 954 (7th Cir.
1975), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1976). See also United States v. McCoy, 517
F.2d 41, 44 (7th Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 195, 46 L.Ed.2d 127 (1975). In the instant case, the
trial court judge solicited suggestions from the parties and properly weighed the interest of maintaining a
sequestered jury to reach a verdict against the interest of providing the jury with transcripts of the requested
testimony. Based upon the factors involved, including the inability to contact the free-lance court reporters, the
logistical problems of sequestering the jury for an extended period of time, and the very real likelihood of
exposing the jurors to adverse publicity if the order of sequestration were lifted, we hold that the district court's
decision does not rise to an abuse of discretion.

The record reveals that this trial was of public importance and had been the subject of a front-page, headline
article in the Capitol Times, a local Madison, Wisconsin newspaper.

III
United States Court of Appeals, Seventh CircuitJul 12, 1978Full title
We affirm the conviction of William Croft for knowingly and unlawfully converting, to his own use, a "thing 581 F.2d 595 (7th Cir. 1978)
of value" of the EPA, in violation of 18 U.S.C. § 641.

Following a jury trial, Arnetta Weatherspoon was convicted of sixteen counts of violating the racketeering, mail fraud
and false statements statutes, 18 U.S.C. § 1001, 1341, 1961-63. The evidence presented at trial showed that
Weatherspoon, who operated a beauty college approved for veterans' vocational training by the Veterans
Administration, knowingly caused false student enrollment cards and attendance certificates to be mailed to the
Veterans Administration in furtherance of a scheme to defraud that agency. On appeal, Weatherspoon raises numerous
contentions in support of her claim that her convictions should be reversed. She argues: (1) that the Government failed
to lay a proper foundation for admission of certain computer printouts into evidence, (2) that the Government
breached a discovery agreement with her counsel, (3) that she could not be prosecuted under the mail fraud statute for
conduct subject to the reach of the false statements statute, (4) that the mail fraud counts failed to charge use of the
mails, (5) that the certifications she falsely made were too ambiguous to support a false statements prosecution, (6)
that one who causes several mailings to be made in furtherance of a single scheme to defraud cannot be prosecuted for
engaging in a "pattern" of racketeering activity within the meaning of 18 U.S.C. § 1962(c), and (7) that the district
court improperly amended the indictment by deleting a portion thereof.
I.
Weatherspoon owned and operated Arnetta's Beauty College in Chicago, where she offered courses in cosmetology
and beauty culture to tuition paying students. In January of 1970, Weatherspoon received approval to accept veterans
as students from the Department of Veterans Affairs of the State of Illinois, a contractual agent of the Veterans
Administration of the United States. She was authorized to enroll no more than 42 veteran students out of a total
student body of 50. The veteran students thereby became eligible to receive veterans' educational benefits from the
VA for attending Weatherspoon's vocational school.
To obtain benefits, the veteran made formal application to the VA, which issued an eligibility certificate. The VA
would refer eligible veterans to Arnetta's, and an enrollment certificate for each student would be completed by an
authorized official at the school. Upon receipt of the enrollment certificate, the VA would issue a check covering
educational expenses and tuition along with an attendance card. A full-time student was required to attend class thirty
hours per week in fulfillment of his course requirements in order to obtain the maximum monthly benefit payment,
which ranged from $220 to $500 per student. Both the student and Weatherspoon were required to certify attendance.
The indictment charged that Weatherspoon engaged in a scheme to defraud by enrolling students in excess of her
authorized limit and by falsely certifying the attendance of her students. The evidence did in fact show those charges
to be true, and Weatherspoon does not challenge the sufficiency of the evidence as such, but rather raises the other
issues noted above.
II.
Weatherspoon first assigns error in the trial court's admission of a series of computer printouts, which established that
she had enrolled over six times as many veterans as students than she had been authorized to do. In essence,
Weatherspoon contends that the Government failed to lay a proper foundation for admission of the printouts, which
were simply a computerized compilation of information taken from the enrollment certification forms submitted by
Weatherspoon and keypunched onto a tape fed into the computer. We disagree that an insufficient foundation was
laid.
Pursuant to the testimony of a VA supervisory employee who was familiar with the preparation and use of the
printouts, the Government showed to the satisfaction of the trial court (1) what the input procedures were, (2) that the
input procedures and printouts were accurate within two percent, (3) that the computer was tested for internal
programming errors on a monthly basis, and (4) that the printouts were made, maintained and relied on by the VA in
the ordinary course of its business activities. Moreover, all the enrollment certificate forms submitted by
Weatherspoon, which formed the data base fed into the computer, were made available to defense counsel for
inspection. Defense counsel also had adequate opportunity to inquire into the accuracy of the input procedures and
programming used. Under the circumstances, we believe that a sufficient showing of the reliability of the printouts
was made to warrant their admission into evidence under the standards set out in United States v. Liebert, 519 F.2d
542, 547 (3rd Cir. 1975), and United States v. Russo, 480 F.2d 1228 (6th Cir. 1973), cert. denied, 414 U.S. 1157, 94
S.Ct. 915, 39 L.Ed.2d 109 (1974).
III.
Weatherspoon next complains that the Government breached a discovery agreement made with her counsel to provide
her with a list of government witnesses a "reasonable time" prior to trial so that she would have a sufficient
opportunity to prepare to meet their testimony. According to Weatherspoon, because the Government did not provide
the witness list until two weeks before trial, the trial court should have granted her motion to preclude the government
witnesses not mentioned in the indictment itself from testifying. We disagree.
We recognize, of course, that the court is empowered to impose sanctions on the Government for intentional
noncompliance with pretrial discovery orders or agreements. E. g., United States v. Jackson, 508 F.2d 1001, 1005-
1008 (7th Cir. 1975). We cannot agree, however, that exercise of our supervisory power is warranted in the
circumstances of this case. The list of potential government witnesses in this case was virtually inexhaustible, and the
task of interviewing potential witnesses and determining whom the Government would call at trial was an arduous
one. Inasmuch as the Government turned over its witness list as soon as such witnesses had been selected, the
Government cannot be charged with bad faith or intentional noncompliance with its informal discovery agreement.
Moreover, we cannot see how the defense was prejudiced by the inevitable delay in the production of the witness list.
Almost all the witnesses who appeared at trial were known to the defendant, as most were former students of Arnetta's
whose testimony could have easily been anticipated by Weatherspoon. Inasmuch as defense counsel did not even find
it necessary to ask for a continuance in order to prepare to meet the witnesses' testimony, we must assume that the
two-week notice of its witnesses given by the Government was a "reasonable" time within which to prepare
Weatherspoon's defense to their testimony. In any event, we do not believe prejudice resulted from any delay in
turning over the witness list.
IV.
Weatherspoon next contends that she could not properly be charged under the mail fraud statute for the same acts
which supported her convictions under the false statements statute. According to Weatherspoon, because the false
statements statute, 18 U.S.C. § 1001, criminalized her submission of false enrollment certificates to the VA, she could
not simultaneously be charged with violating the mail fraud statute, 18 U.S.C. § 1341, simply because she used the
mails to submit the false enrollment certificates. We again disagree.
In support of her argument, Weatherspoon relies on United States v. Henderson, 386 F. Supp. 1048 (S.D.N.Y. 1974),
wherein the court held that the defendant was not subject to prosecution and punishment under the mail fraud
statute, 18 U.S.C. § 1341, for mailing income tax returns whose falsity formed the basis for the defendant's
simultaneous prosecution under various criminal provisions of the Internal Revenue Code, 26 U.S.C. § 7202-07. In the
course of so holding, the court reasoned that the mail fraud statute was designed to serve as a stopgap device to deal
on a temporary basis with new forms of fraud until particularized legislation could be devised to deal directly with the
villainous activity. Id. at 1053, citing United States v. Maze, 414 U.S. 395, 405-06, 94 S.Ct. 645, 38 L.Ed.2d 603
(1974)(Burger, J., dissenting). The court found in Congress's subsequent enactment of the criminal antifraud
provisions of the Internal Revenue Code a latent intent to preempt the field of sanctions available for tax fraud
violations, an intent that would be undermined if the Government were allowed to obtain "multiple sentences reaching
staggering, if not utterly unrealistic, years of imprisonment" by prosecuting violators simultaneously under the mail
fraud statute and the Code. Id.at 1053-54.
Although Henderson lends an aura of plausibility to Weatherspoon's argument, we find it of no help to her here. Even
if we were to agree that Henderson is good law, it would not apply here, for there is nothing in either the language or
the legislative history of the false statements statute, 18 U.S.C. § 1001, reflecting any Congressional intent to create a
hierarchy of sanctions that would preempt the application of the mail fraud statute, 18 U.S.C. § 1341, to the
submission of false statements to a government agency through the use of the mails. We note that the mail fraud
statute has long been used in concert with statutes proscribing the making of false statements to a government agency,
and no question has heretofore been raised as to the propriety of doing so as far as we know. E. g., Hartwell v. United
States, 107 F.2d 359 (5th Cir. 1939). After all, the mail fraud statute proscribes different conduct and requires proof
of different elements than the false statements statute, and Congress has the right to authorize additional sanctions for
abuse of the mails in connection with a scheme to defraud the Government even though the fraud may be separately
punished under another federal statute. Finally, we note that Weatherspoon received concurrent sentences under the
mail fraud and false statements counts, and thus has little to gain as a practical matter even if we were to adopt her
novel view that she could not be prosecuted under the mail fraud statute if her conduct could be reached, in whole or
part, under another federal criminal statute. We hold that, by using the mails to submit false statements to a
government agency, Weatherspoon subjected herself to separate prosecution and punishment under both the mail
fraud and false statements statutes.
Henderson has been expressly repudiated by the Ninth Circuit, which permitted simultaneous use of the mail fraud
and tax fraud statutes in United States v. Miller, 545 F.2d 1204, 1216 n. 17 (1976).
V.
Weatherspoon next argues that her convictions for mail fraud must be reversed because the indictment underlying her
convictions failed to charge an offense under 18 U.S.C. § 1341 in that it failed to allege use of the mails. Her
argument is apparently premised on the misguided assumption that the mail fraud counts must parrot the precise
language of the statute, which speaks of
"plac[ing] in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or
delivered by the Postal Service, . . . or knowingly caus[ing] to be delivered by mail according to the directions thereon
. . any such matter or thing." 18 U.S.C. § 1341.
In contrast to the precise language of the statute, the mail fraud counts at issue here alleged that the defendant, in
furtherance of a scheme to defraud, "did knowingly and wilfully cause to be delivered an envelope . . ., and thereafter
said envelope was delivered, according to the directions thereon, by the United States Postal Service . . .."
Weatherspoon's argument appears to be that, because the mail fraud counts alleged only that she caused an envelope
to be delivered, rather than alleging that she caused an envelope to be delivered by mail, that the counts were fatally
deficient. We disagree.
There is no requirement that an indictment track the exact language of the proscribing statute if the indictment
otherwise sufficiently charges each of the essential elements of the crime. United States v. Constant, 501 F.2d 1284,
1287 (5th Cir. 1974). Moreover, in determining whether an essential element of the crime has been omitted from the
charge, courts will not insist that any particular word or phrase, such as "mail" here, be used. United States v.
Camp, 541 F.2d 737, 740 (8th Cir. 1976). The element may be alleged "in any form" which substantially states
it. Hagner v. United States, 285 U.S. 427, 433, 52 S.Ct. 417, 76 L.Ed. 861 (1932).
Here, Weatherspoon contends that the indictment fails to allege that she used the mails. However, when the mail fraud
counts are given the commonsense reading to which they are entitled. United States v. Anderson, 532 F.2d 1218,
1222 (9th Cir. 1976), they clearly allege that Weatherspoon caused an envelope to be delivered by the United States
Postal Service. This necessarily constitutes an allegation that she caused the envelope to be delivered by mail, for 18
U.S.C. § 1341 itself defines "mail matter" as "any matter or thing whatever to be sent or delivered by the Postal
Service." We hold that the mail fraud counts sufficiently alleged an offense under 18 U.S.C. § 1341.
VI.
Weatherspoon's next argument is that her convictions under the false statements statute, 18 U.S.C. § 1001, must be
reversed because the allegedly false certifications she made were so vaguely worded and ambiguous that they cannot
support the imposition of penal sanctions. In support of her argument, Weatherspoon relies on Lanzetta v. New
Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939), wherein the Court held that a criminal statute that was
no vague and uncertain on its face that persons of ordinary intelligence must necessarily guess as to its meaning
offended the due process clause.
We have no problem, of course, with the vagueness doctrine of Lanzetta and its progeny. The doctrine is not,
however, applicable here, for the enrollment certification made by Weatherspoon was perfectly clear on its face. It
reads:
"Enrollment of this student does not exceed any limit established by the State Approving Agency for enrollment in
this course."
We find nothing vague about the above certification. Moreover, even if we agreed with Weatherspoon that the
language is not a model of clarity, we note that the "vagueness" argument was open to Weatherspoon at trial, for the
Government was required under 18 U.S.C. § 1001 to establish not only that the certification was false, but also that
Weatherspoon had made the certification knowing it to be false. The jury, obviously, was not impressed with
Weatherspoon's argument that she had made an understandable mistake in interpreting a vague government form.
Neither are we. Particularly in view of the intent element of 18 U.S.C. § 1001, which precludes a conviction for an
honest misinterpretation of a government form, we hold that the certification falsely made by Weatherspoon here was
not so vague on its face as to violate the due process clause as a matter of law.
VII.
Weatherspoon's next contention is that she did not engage in a "pattern of racketeering activity" within the meaning
of 18 U.S.C. § 1961(5), 1962(c) because she did not commit two separate "acts" of racketeering activity within the
meaning of 18 U.S.C. § 1961(1)(B). In essence, Weatherspoon argues that, because all of the mail fraud counts arose
out of a single scheme to defraud, there was only one "act" of racketeering activity even though she caused several
mailings in furtherance of the single scheme.
Weatherspoon's argument is premised on a unique (and rather imaginative, we might add) construction of 18 U.S.C. §
1961(1)(B), which defines "racketeering activity." It provides in relevant part that
"`racketeering activity' means . . . (B) any act which is indictable under any of the following provisions of title 18,
United States Code: . . . section 1341 (relating to mail fraud) . . .."
Weatherspoon's theory is that, as applied to "acts" indictable under the mail fraud statute, 18 U.S.C. §
1961(1)(B) refers to schemes to defraud rather than any mailings in furtherance of the schemes. Thus, according to
Weatherspoon, there was only one "act" of racketeering activity because all of the mailings which formed the basis for
the mail fraud counts were in furtherance of a single scheme to defraud. We cannot agree.
We are not cited to anything in the legislative history of the Organized Crime Control Act of 1970 supportive of
Weatherspoon's novel argument, and we believe that the plain language of the statute itself refutes it. As 18 U.S.C. §
1961(1)(B)makes plain, racketeering activity is any act indictable under the mail fraud statute, 18 U.S.C. § 1341. A
"scheme to defraud" is not an "act" indictable under the mail fraud statute, for though the offense of mail fraud "has
its genesis in the scheme to defraud, the very gist of [the crime] is the use of the mails in executing the
scheme." United States v. Crummer, 151 F.2d 958, 962 (10th Cir. 1946). It is for this reason that each mailing in
furtherance of a scheme to defraud is a separate offense under 18 U.S.C. § 1341 even if there is but one scheme
involved. United States v. Joyce, 499 F.2d 9, 19 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306
(1974). Accordingly, as it is clear that the only "acts" indictable under 18 U.S.C. § 1341 are mailings in furtherance of
a scheme to defraud, it follows that Weatherspoon has engaged in five acts of "racketeering activity" as defined in 18
U.S.C. § 1961(1)(B) by virtue of the fact that she committed five separate acts of mail fraud. As a consequence, she
engaged in a "pattern of racketeering activity" within the meaning of 18 U.S.C. § 1961(5), 1962(c) because she
committed two or more acts of "racketeering activity."
Indeed, if we were to adopt Weatherspoon's position, a serious question would arise as to the constitutionality of the
RICO statute. To save the statute from "void for vagueness" attacks, at least two district courts have construed a
"pattern of racketeering activity" to require a showing that the two indictable acts be connected by a common scheme,
plan or motive. E. g., United States v. Stofsky, 409 F. Supp. 609, 614 (S.D.N.Y. 1973); United States v. White, 386 F.
Supp. 882, 883-84 (E.D.Wis. 1974). Contra, United States v. Elliott, 571 F.2d 880, 899 n. 23 (5th Cir. 1978). In
contrast, Weatherspoon would require a showing of separate and unrelated schemes, as a precondition for finding two
indictable "acts" under 18 U.S.C. § 1341 that would constitute a "pattern of racketeering activity" under 18 U.S.C. §
1961(1)(B), (5), 1962(c).
VIII.
Weatherspoon last argues that the district court committed reversible error in granting the Government's motion to
strike a nonessential portion of count one of the indictment, which stated that the assets of Arnetta's Beauty College
were owned by Weatherspoon and subject to forfeiture under 18 U.S.C. § 1963.
We find no error in the district court's action. The language omitted was not essential to the charge specified in count
one, and the Government had not offered any evidence to show that Weatherspoon owned all the assets of the beauty
college, which therefore would have subjected the assets to forfeiture under 18 U.S.C. § 1963. The indictment was
thus not improperly amended. See United States v. Sir Kue Chin, 534 F.2d 1032 (2d Cir. 1976); United States v.
Dawson, 516 F.2d 796, 799-804 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975).
The district court's judgment is Affirmed.
United States Court of Appeals, Second CircuitJul 1, 1976Full title
 542 F.2d 111 (2d Cir. 1976)
In a diversity action for breach of contract which commenced on March 9, 1966, the Singer Company (Singer)
appeals from the judgment recovered by Perma Research and Development Company (Perma). The District
Court, sitting without a jury, found that Singer had breached a contractual obligation to use its best efforts to
perfect, manufacture, and market an automotive anti-skid device covered by a patent that Perma assigned to
Singer on December 21, 1964. The court awarded damages to Perma in the amount of $5,333,423.94, with
interest and costs amounting to more than $1.5 million.
Singer raises three points: (1) The District Court erred in holding that a contract between the parties imposed
upon Singer an implied obligation to use its best efforts to perfect the anti-skid device and make it fail-safe; (2)
The Perma anti-skid device was not perfectible and marketable; (3) The proof of damages was speculative and
based on postulated sales that could never actually take place. We find no merit in any of the contentions and
affirm the judgment.
1. The Course of the Action
The controversy grew out of two contracts between the parties, the first dated June 18, 1964, and the second,
December 21, 1964. The first provided Singer with an exclusive license to manufacture the automotive anti-
skid device involved here. The second contract superseded the first and provided for the assignment of Perma's
patents on the anti-skid device to Singer and the payment of a royalty thereon. The contract also provided for
the furnishing of technical assistance by Perma at the request of Singer "in the continuing design and
engineering and improvement of the Product and of the equipment for manufacturing the same" for a 6-month
period at a cost to Singer of $9800 per month. Upon Singer's abandonment of the contract, Perma brought this
suit to set aside the December 21, 1964 contract and to enforce the earlier one. On motion for summary
judgment, the complaint was dismissed save as to the "Wherefore" clause, which alleged that Singer did not
use its "best efforts to market and manufacture the invention." On appeal, this judgment was affirmed, 410
F.2d 572 (2d Cir. 1969). On remand the case came before Judge MacMahon, and a second Singer motion for
summary judgment was denied. The court found that, under the December 18, 1964 contract, Singer was
required to "continue collaborating with Perma for a reasonable length of time in a good faith effort to resolve
the problems then preventing the marketing of the product." D.C., 308 F.Supp. 743, 748. The principal issue,
the court found, was "Did Singer use its best efforts for a reasonable time in collaboration with Perma to
perfect the product" in order to prepare it for market. Id. at 749.
Singer then sought dismissal on the ground that it had been induced to enter the December 1964 contract on
the misrepresentation by Perma that the anti-skid device was fail-safe. This third motion for summary
judgment came before Judge Metzner who denied it, holding that "it is perfectly obvious from the record and
the prior opinions that defendant Singer could not have been under any delusions that the product was fail-
safe." Thereafter the case came before Judge McLean who agreed that the issue involved was as had been
stated by Judge MacMahon. Unfortunately Judge McLean died, and subsequently the case was assigned to
Judge Duffy, who entered the judgment here under review on April 11, 1975. 402 F.Supp. 881.
His 59-page opinion reveals the meticulous care and erudition that he gave to the trial and the "extraordinary
latitude" he permitted Singer "to prove all that it could and to make any argument it wished" in the hope "that
this trial would mark an end to this litigation." The ten-year, tortuous course of this litigation has involved five
different trial judges and is here now for the second time, and still Singer insists that the December 18, 1964
contract does not impose upon it the obligation to perfect the anti-skid device it obtained from Perma, or if it
does, that the abandonment of the contract was justifiable on the ground that the anti-skid device was not
sufficiently perfectible to satisfy Singer's standard of "absolute fail-safety". The district court found that this
was not only "an impossible standard" but was beyond the agreement of the parties. Finally, Singer claims that
"any damage award would nevertheless be speculative", as being based on phantom "sales of a non-skid device
which subsequent history has shown could not have been successfully sold."
We too have examined the record and find that substantial evidence supports the findings of the trial judge and
that they are not clearly erroneous.
2. The Obligation of Singer
We need not belabor the point that Singer was obligated under the December 1964 contract to use its best
efforts to perfect the anti-skid device covered by the Perma patents that were assigned to it. As the trial court
found: "Both parties recognized the need for engineering on the device." In fact before the contract was signed,
Singer employed William E. Hill and Company, Inc. to do a market survey on the anti-skid device, and the
results thereof were reported to Singer prior to its purchase of the patents. The report's principal findings and
conclusions included an evaluation of the anti-skid device:
The Perma anti-skid control falls short of meeting requirements of automotive engineers and does not provide
the improvement possible in theory. The consensus of many engineering tests that had been run on the unit
indicates that the Perma control as compared to a panic or locked wheel stop, gives improved steering control
but requires a greater stop distance to come to a complete stop.
The General Motors Research Center, the Ford Advance Design Corporation and the Chrysler Brake
Laboratory are against use of the control.
Based on evaluation by major automobile manufacturers, the Perma anti-skid control did not meet established
requirements. In the contract of December 1964, Singer specifically recognized its obligation for the
effectiveness of the anti-skid device by providing therein that Perma, in consideration of the payment of $9800
monthly, would furnish assistance to Singer in the "continuing design and engineering and improvement of the
Product and of the equipment for manufacturing the same."
It is significant also that two days after Singer signed the contract, it ordered a long list of engineering services
from Perma, advising "we must find a design which will yield consistent and higher results." Singer was aware
of the firms with which it was doing business and who had found defects in the anti-skid device. Singer knew
that some problems had arisen regarding the finishing of the product. Nevertheless it said: "We have taken
hold of the problem and resolved it. We feel that we have a product worthy of offering to the public and plan a
full marketing campaign." Letter to C. G. Morehouse, Portland, Oregon, July 7, 1965.
Despite this representation, as early as July 22, 1965, Singer had decided to restrict extensive experimentation
to short range projects. An internal managerial task force on August 10, 1965 recommended to Singer that
marketing of the anti-skid device be suspended. The explanation was that the device's future was uncertain as
a product item for Singer because it would place "us in the automotive parts industry dominated by the
purchasing power and engineering skills of the Big 3". Suspension was recommended although Denville
Special Report No. 62, which was charged with the technical evaluation of the antiskid device, reported on
August 10, 1965 that the device was not fail-safe, but estimated that the problem could be overcome at a cost
to Singer of around $30,000. Rather than proceed further to improve the anti-skid device as it had agreed to do,
Singer decided to abandon the project. On December 22, 1965, Singer advised Mr. Frank Perrino, the top
official of Perma, "Very bluntly, Frank, we do not want to be in the brake business — our people at Elizabeth
should not have gotten into the brake business." At the same time, Singer rejected Perrino's suggestion of
improvements that might make the anti-skid device fail-safe. On January 26, 1966, Singer finally abandoned
all efforts to perfect the anti-skid device.
3. The Record as to Perfectibility of the Anti-Skid Device
When Alfred DiScipio became Vice President of Singer in charge of consumer products, he visited the
Elizabeth plant. While there, tests of the anti-skid device were made, and every one proved to be disastrous.
Mr. DiScipio characterized the device as being not "fail-safe" and asserted that Singer would not market a
product which "could leave the purchaser . . . less safe than if he hadn't elected to purchase it . . ." While Perma
had represented that its anti-skid device had "fail-safe features", we find no representations that it ever claimed
that the device was "absolutely fail-safe." In fact, Singer's own brake expert testified that he knew of no anti-
skid device marketed in the United States that was completely fail-safe and that such perfection was not
obtainable. In any event, Singer has no ground for complaint in this regard since it knew before buying the
Perma patents and making the December contract that the device suffered operating failures and was not fail-
safe. It was for this reason that the District Court found this defense "to be totally a sham", and dismissed
Singer's counterclaim. We approve this action.
We have considered Singer's objection to the expert testimony by Daniel Goor and Andre L. DeVilliers. The
particular objection made to the use of the results of computer simulation was directed to the basis for this
expert testimony. While it might have been better practice for opposing counsel to arrange for the delivery of
all details of the underlying data and theorems employed in these simulations in advance of trial to both avoid
unnecessarily belabored discussion of highly technical, tangential issues at trial, Fed.R.Civ.P. 26(b)(4)(A), and
protect truly proprietary aspects of the programs. . . . The trial judge did not abuse his discretion in allowing
the experts to testify as to this particular basis for their ultimate conclusion that the Perma device was indeed
perfectible. On the record before us, however, we hold that Singer has not shown that it did not have an
adequate basis on which to cross-examine plaintiff's experts.

4. The Damages Are Not Speculative

Since we hold that the anti-skid device was perfectible, Singer's argument that no market exists must
necessarily fail. The argument is that since the anti-skid device was not ready for the market, it could not be
sold. But as we have found, its obligation was to perfect the device, and the finding of its own people was that
the device was perfectible. This is a complete answer to Singer's defense. Nor will the bare fact that no other
manufacturer sold such a device in the after market prove that such a market did not exist. Indeed the record
includes proof to the contrary. Prior to the December 1964 contract, Perma itself had contracted for the sale of
139,000 units of the device. Within one month of the December 1964 contract, Singer itself had made a
contract with its distributor, Motor Enterprises, to take a minimum of 56,000 units in the first year, and
100,000 units annually thereafter. Motor Enterprises further agreed to spend $250,000 annually on the
promotion of the device. Moreover, the Singer-held report found that "with its strong emotional appeal to
safety and with demonstrable characteristics (the device) lends itself to a consumer-directed merchandising
effort. Typical of products of this type, sales volume will depend largely on the amount of promotional
efforts." Furthermore, as of 1966, Singer would have the only anti-skid device on the market and could have
enjoyed a monopoly for a period of two to three years. Finally, Singer never relinquished the patents and the
patents' very existence in Singer hands might well have discouraged other development.

It ill behooves Singer to cry "no market" when it actively sought to exploit the operation before it decided that
the anti-skid device was not the item for Singer. The fact of damage and the measure of its proof turn on the
particular facts of each case. One is entitled to the reasonable damage flowing from the breach of a
contract. For Children Inc. v. Graphics Int'l, Inc., 352 F.Supp. 1280 (S.D.N.Y. 1972).

In simple terms, the measure of the damage is the amount necessary to put the injured party in exact position
as he would have been if the contract had not been breached. If Singer had put its resources and ingenuity to
the anti-skid device, it probably would have been successful in the marketing of the same. Nor are the damages
too speculative to assess. At the outset, since Singer produced the damage, it must bear the uncertainty of
proof. Autowest Inc. v. Peugeot, Inc., 434 F.2d 556, 565(2d Cir. 1970). Thus the reasonable basis for damages
that the law requires is a precise one, barring only those damages which "are not the certain result of the
wrong, not . . . those damages which are definitely attributable to the wrong and only uncertain in respect of
their amount." (emphasis supplied). Story Parchment Company v. Paterson Parchment Paper Company, 282
U.S. 555, 562, 51 S.Ct. 248, 250, 75 L.Ed. 544 (1931).

We have carefully considered the damage calculations of the parties and the amount awarded by the trial court,
and we cannot say that the award is either unreasonable or unsupportable.

The judgment is therefore affirmed.

G.R. No. 73876 September 26, 1988

 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Lolito, who was killed, was buried and about P2,000.00 was spent for his burial
vs. LAURO CARIÑO y GUILLERMO, VIRGILIO DIAZ and JOHN DOE alias "BALINGIT" (At expenses.
Large), accused- appellants.
Rosalinda Inisa, Ricardo Sibay, and Rosalia Talisic (wife of Melencio Talisic),
PARAS, J.: eyewitness to the incident, corroborated the testimony of Melencio Talisic (victim) in its
material points.
Accused-appellants Lauro Cariño, Virgilio Diaz and a certain Balingit who remains at large were charged with
the crime of Robbery with Homicide and Frustrated Homicide in an information reading as follows: Dr. Bienvenido Munoz, of the NBI, who autopsied the cadaver of Lolito Talisic at Rey
Memorial Homes, on September 30,1980, issued an 'Autopsy Report' (Exh. B), with
these 'Postmortem Findings':
That on or about the 29th day of September, 1980, in Quezon City, Philippines, the
above-named accused, conspiring together, without any justifiable cause and with intent
to kill, did, then and there, willfully, unlawfully and feloniously, attack, assault and Pallor, conjunctivae and integument, marked and generalized.
employ personal violence upon the persons of Lolito Talisic y Meller and Melencio
Talisic y Meller, by then and there stabbing and hacking them with a kitchen knife and a
Contused abrasions: molar region, right, 2.0 x 3.0 cms. shoulder,
bolo, thereby inflicting serious and mortal injuries upon the said Lolito Talisic y Meller
right, posterior.
which caused his untimely death, and further caused serious and mortal injuries to
Melencio Talisic y Meller, which could have caused the crime of homicide but,
nevertheless, did not produce it by reason of the timely intervention of medical Wound, lacerated, scalp, occipital region, left, 3.5 cms.
treatment; that on the occasion of said killing and infliction of physical injuries, said
accused, conspiring together, with intent of gain and by means of force upon things,
stole, robbed and carried away cash money in different denominations amounting to Wound, stab, curvilineat convexity upward, edges cleancut, one
P5,000.00, and assorted used wristwatches, valued at P3,000.00, or a total of P8,000.00, extremity sharp, the other extremity blunt, located at the chest,
anterior aspect, level of 5th intercostal space left, 10.5 cms. from
Philippine Currency, belonging to Melencio Talisic y Meller to the damage and
prejudice of the heirs of deceased victim Lolito Talisic y Meller, and likewise to the anterior median line directed backward, upward and medially,
damage and prejudice of said Melencio Talisic y Meller in the aforementioned amount penetrating the left thoracic cavity thru the 5th intercostal space,
perforating the pericardial sac and then the apex of the heart with
of P8,000.00, and in such other amount as may be awarded them under the provisions of
our existing laws. an approximate depth of 14.0 cms.

Hemopericardium — 250 cc.

Contrary to law. (p. 4, Rollo)

Upon arraignment, both Cariño and Diaz pleaded "not guilty" to the crime charged. Hemothorax, left — 1,000 cc.

During trial, the lower court considered the two conflicting versions of the statement of facts summarized
hereinbelow:
The prosecution's evidence tends to prove: On September 29, 1980, at about 4:30 p.m.,
while Lolito Talisic was tending their store at 1312 Muñoz Avenue, Tandang Sora,
Quezon City, accused Cariño and Diaz and one Balingit (at large), who were armed with
knives, stoned the store and attacked Lolito Talisic. Rosalia Talisic, who was cooking at
the time near the store, upon seeing what happened, called for her husband, Melencio
Talisic, to help Lolito. Melencio rushed to the scene and tried to pacify the protagonists.
While he placed his arms on the shoulders of Diaz, Balingit suddenly stabbed Melencio
at the back with a knife, thereby wounding Melencio. After being stabbed, Melencio got
a bolo from the kitchen of his house, but Diaz grabbed it from him, and he (Melencio)
ran to a room in his store. Diaz then entered the room and, upon seeing Melencio, he
hacked him 4 times on the head, wounding Melencio and causing him to fall to the floor,
bleeding Lolito tried to run away from the store, but he was met (intercepted)on the way
by Cariño, who stabbed him on the chest, causing him to fall to the ground, dead. Diaz
then hacked (destroyed) the showcase of Melencio's watches and took away 50 pieces of
watches worth P3,000.00 and P5,000.00 of cash money from a drawer in the store.
While he was doing this, his companions and co-conspirators Cariño and Balingit
waited for him outside the store. After wrapping the watches with his T-shirt, Diaz and
his companions Cariño and Balingit hurriedly fled from the crime scene.
Brain and other visceral organs, markedly pale.
Heart chambers almost empty. Stomach-full with partly digested
rice and other food particles.
and declared that the cause of death was "stab wound on the chest." (Exh. B-5). He also
prepared an anatomical sketch (Exh. C) of the victim, showing the location of the
wounds of said victim. Dr. Munoz also issued a "Toxicology Report" (Exh- D), which
yielded negative results re presence of alcohol in the victim's blood (Exh. D-1). He
declared that the stab wound on the anterior chest wall "penetrated the heart," causing
"massive hemmorhage," and it must have been inflicted by a sharp-pointed, single-
bladed weapon like a knife or balisong, frontally.
Dr. Tito Sambilayan, of the Quezon City General Hospital, who attended to and treated
Melencio Talisic, issued a 'Medico-Legal Certificate (Exh. A), which reads:
MEDICO-LEGAL CERTIFICATE

Melencio's wife (Rosalia), eyewitness to the incident, called for help and a barangay
tanod came and helped her bring Melencio to the Quezon City General Hospital where
he was treated and confined for about a week.
 1
4
,

1
9
8
1

TO WHOM IT MAY CONCERN:

This is to certify that Melencio E. Talisic, 48 years old and presently residing at 1313 D.
Muñoz Ave., Q.C. has been/was confined/treated in this hospital under my medical care,
from/on 9-29-80 to 10-6-80 with the following injuries:

Findings: Stab wound, back (L), lacerated wound, 4 cm. parietal area.

The injuries will incapacitates or requires medical attendance for thirty (30) days under
normal conditions barring complications and deeper involvement.

Disposition: Admitted

This certificate is issued upon the request of patient to be used for — purpose.

(
S
G
D for a lacerated wound at the right vascular area and a stab wound at the
He declared that he treated Melencio
back (left), for about a week. He .performed a clausteracostomy (insertion of a chest tube into the chest) on
)
Melencio, in order to alleviate difficulty of breathing, as his lung was injured. The wounds or injuries
sustained by the victim must have been caused by a sharp and pointed instrument (knife). Without treatment, it
would have taken about a month forI the wounds to heal.
L
L
Prior to the E
incident, Melencio Talisic was earning about P80.00 a day, but due to his
injuries he was
G unable to earn the same, as he always felt dizzy. He spent more than
P7,000.00 forI his hospitalization and medical expenses.
B
The defenseL evidence, on the other hand, tends to prove: Accused Lauro Cariño,
declared thatEon September 29, 1980, at about 3:00 p.m., he went to the office of DM
Transit, with his wife and child, to collect the payment for his sick leave, as a mechanic
M As they failed to get the money, they went home at about 4:30 p.m. On
in said company.
the way, he Dmet a person who was walking in zigzag manner, who fell in front of him.
When he was about to look at the face of said person, he was suddenly stabbed by
Ricardo Sibay.
A When he saw blood oozing from the left side of his body, he went to the
Mt. Banaue tHospital, in Quezon City, where he was treated. He then went to Police
Precinct I, Quezon
t City, to report the incident. He knows Melencio Talisic, as he
frequently eats
e at his canteen, near DM Transit. At the police station, the police
informed him n he was a suspect in the killing of Lolito Talisic and wounding of Melencio
Talisic, and dhe was detained since then. He denied having hacked Melencio Talisic on
the head. i
n
g
Accused Virgilio Diaz, on the other hand, stated that on September 29, 1980, at about
4:00 p.m., he was taking a snack at the store of Melencio Talisic. After taking his snack,
P
he went in front of the store waiting for a ride. While there, he saw Melencio attack
h
Balingit. Melencio told him (Diaz) not to intervene. When he told Melencio 'that's
y
enough,' Melencio stabbed him, but he was not hit, although he fell to the ground while
 trying to parry the blow. Then he saw Balingit stoning Melencio's store. He kept quiet
and after Melencio and Balingit had left, he fled from the scene and went home.
He deniedhaving stabbed and killed Lolito Talisic. (pp. 26-29, Rollo)
After due trial, the Court rendered judgment 1 with the following dispositive portion:
WHEREFORE, the Court finds both accused Lauro Cariño y Guillermo and Virgilio
Diaz, guilty of the crimes of robbery with homicide (killing) of Lolito
Talisic and frustrated homicide (frustrated killing of Melencio Talisic) and pursuant to
Art. 294(l) of the Revised Penal Code hereby sentences each of them to suffer the
penalty of reclusion perpetua, to indemnify the heirs of the deceased Lolito Talisic in
the sum of P12,000.00 and the victim Melencio Talisic in the sum of P14,000.00 (for
hospitalization) and loss of income for I year, and to pay the costs, without subsidiary
imprisonment in case of insolvency, less the period of the preventive imprisonment of
accused Virgilio Diaz (detained pending trial).
Let this case be archived as against accused Balingit (at large), subject to reinstatement
upon his arrest and upon motion of the prosecution.
SO ORDERED. (pp. 30-31, Rollo)
From said judgment, accused Virgilio Diaz's assigns the following errors:
I. THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED UPON REASONABLE DOUBT
AS TO THEIR GUILT.
II. THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED COMMITTED THE CRIMES OF
ROBBERY WITH HOMICIDE AND FRUSTRATED HOMICIDE; (p. 4, Brief for Appellant Virgilio Diaz)
while accused Lauro Carifio assigns the following errors:
I by appellant Virgilio Diaz. The accused could have, if their sole intent was to appease their grievance against
THE TRIAL COURT ERRED IN CONSIDERING THAT THERE WAS CONSPIRACY IN KILLING
LOLITO TALISIC AND WOUNDING MELENCIO TALISIC AND ROBBERY;
II
THAT ROBBERY WITH HOMICIDE AND FRUSTRATED HOMICIDE WAS ESTABLISHED BY
PROOF BEYOND REASONABLE DOUBT; AND
III
DENYING ACCUSED LAURO CARIÑO'S ACQUITTAL. (P. 4, Brief for Appellant Cariño)
The interrelated errors assigned by both accused will be considered jointly.
It is the contention of accused-appellant Cariño that conspiracy has not been established in the case at bar.
Appellant made reference to the failure of the trial court to consider the sworn statements of Jenny Arceo,
Ricardo Sibay and victim Melencio Talisic which contradicted the finding of conspiracy. We find such
argument meritless. A perusal of the entire records of the case shows that the defense did not formally offer in
evidence such sworn statements and evidence not formally offered cannot be considered by the court. The trial
court only considered what was formally offered to it. From the testimonies of the prosecution's witnesses, the
trial court established that the three accused acted in concert and with a common design and purpose as shown
by their simultaneous arrival at the scene of the crime, mutually helping one another in the killing of Lolito
Talisic and in the stabbing of Melencio Talisic and in the robbing of the store and by their simultaneous flight
from the scene of the crime.
In further support of his argument, appellant Cariño cited the case of People vs. Marco (83 SCRA 338). Such
claim holds no water. There is no parallelism between the case at bar and the Marco case because in the latter,
We ruled out the presence of conspiracy in view of the fact that the assault was successive.
Appellant Lauro Cariño also averred that the trial court committed grave error in not giving weight to the
statement of co-accused Diaz confirming the absence of the accused Cariño at the time when the incident
started. Again, We cannot sustain such argument. A cursory reading of the testimony reveals that Diaz did not
actually and categorically state that Lauro Cariño was not at the scene of the crime. Witness was merely silent
on this point. Such silence did not negate Cariño's presence at the scene of the crime especially when the latter
was positively Identified as the malefactor by prosecution witness and the victim himself, Melencio Talisic.
Appellant Virgilio Diaz contends that the lower court's findings of facts are so riddled with inconsistencies that
his guilt has not been proved beyond reasonable doubt. The inconsistencies pointed out, such as who stabbed
whom first and the sequence of events narrated by them, are matters which are trivial and need not impair the
credibility of the prosecution's witnesses especially when such testimonies were corroborated on material
points in establishing that a crime was committed by the appellants.
Finally, appellant contends that the lower court erred in holding that the offense committed by them was the
special complex crime of Robbery with Homicide and Frustrated Homicide. The crime designated as Robbery
with Homicide is defined under Art. 294 par. (1) of the Revised Penal Code. In order to sustain a conviction
for the crime of robbery with homicide, it is necessary that the robbery itself be proven as conclusively as any
other essential element of a crime (People vs. Pacala, 58 SCRA 370) and that the homicide shall have been
committed by reason or on occasion of the robbery. There is robbery with homicide when there is a direct
relation, an intimate connection between the robbery and the killing, whether the killing be prior or subsequent
to the robbery or whether both crimes be committed at the same time (People vs. Hernandez, 46 Phil. 48). In
the case at bar, the series of overt acts executed by the accused, in their totality, show that the intent of the
accused was not only vengeance but also robbery. After failing to get credit from Lolito Talisic, whom they
stabbed out of anger, they turned their ire on Melencio Talisic whom they had no grievance against. Melencio
had already retreated into the store when the second set of injuries (back wounds) he sustained were inflicted
Lolito, escaped after fatally stabbing the latter and wounding Melencio outside the store.
We find, however, as correctly observed by the prosecution, that the lower court erred in designating the crime
as Robbery with Homicide and Frustrated Homicide. There is no crime of Robbery with Frustrated Homicide.
The term "Homicide" in paragraph 1, Art. 294 is to be understood in its generic sense. It includes murder and
slight physical injuries committed during the occasion of the robbery which crimes are merged in the crime of
robbery with homicide as defined in paragraph 1 of Article 294 of the Revised Penal Code (People vs.
Saquing, 30 SCRA 834).
WHEREFORE, premises considered the judgment appealed from is hereby AFFIRMED with
MODIFICATION as to the civil hability for the death of the victim Lolito Talisic which should be increased to
Thirty Thousand Pesos (P30,000.00).
SO ORDERED.
G.R. No. 86062 June 6, 1990
INTERPACIFIC TRANSIT, INC., petitioner,
vs. RUFO AVILES and JOSEPHINE AVILES, respondents.
CRUZ, J.: In assessing this evidence, the lower courts confined themselves to the best evidence rule and the nature of the
documents being presented, which they held did not come under any of the exceptions to the rule. There is no
question that the photocopies were secondary evidence and as such were not admissible unless there was
This case hinges on the proper interpretation and application of the rules on the admissibility of documentary
ample proof of the loss of the originals; and neither were the other exceptions allowed by the Rules applicable.
evidence and the viability. of a civil action for damages arising from the same acts imputed to the defendant in
The trouble is that in rejecting these copies under Rule 130, Section 2, the respondent court disregarded an
a criminal action where he has been acquitted.
equally important principle long observed in our trial courts and amply supported by jurisprudence.

In the information filed against Rufo and Josephine Aviles, the private respondents herein, it was alleged that
This is the rule that objection to documentary evidence must be made at the time it is formally offered. as an
being then sub-agents of Interpacific Transit, Inc. and as such enjoying its trust and confidence, they collected
exhibit and not before. Objection prior to that time is premature.
from its various clients payments for airway bills in the amount of P204,030.66 which, instead of remitting it
to their principal, they unlawfully converted to their own personal use and benefit. 1
It is instructive at this paint to make a distinction between Identification of documentary evidence and its
formal offer as an exhibit. The first is done in the course of the trial and is accompanied by the marking of the
At the trial, the prosecution introduced photocopies of the airway bills supposedly received by the accused for
evidence an an exhibit. The second is done only when the party rests its case and not before. The mere fact that
which they had not rendered proper accounting. This was done in, the course of the direct examination of one
a particular document is Identified and marked as an exhibit does not mean it will be or has been offered as
of the prosecution witnesses. 2 The defense objected to their presentation, invoking the best evidence rule. The
part of the evidence of the party. The party may decide to formally offer it if it believes this will advance its
prosecution said it would submit the original airway bills in due time. Upon such undertaking, the trial court
cause, and then again it may decide not to do so at all. In the latter event, the trial court is, under Rule 132,
allowed the marking of the said documents a s Exhibits "B" to "OO." The e prosecution n did submit the
Section 35, not authorized to consider it.
original airway bills nor did it prove their loss to justify their substitution with secondary evidence.
Nevertheless, when the certified photocopies of the said bills formally were offered, 3 in evidence, the defense
interposed no objection. Objection to the documentary evidence must be made at the time it is formally offered, not earlier. The
Identification of the document before it is marked as an exhibit does not constitute the formal offer of the
document as evidence for the party presenting it. Objection to the Identification and marking of the document
In acquitting the accused, Judge Herminio I. Benito of the Regional Trial Court of Makati rejected the agency
is not equivalent to objection to the document when it is formally offered in evidence. What really matters is
theory of the prosecution and held that the relationship between the petitioner and Rufo Aviles was that of
the objection to the document at the time it is formally offered as an exhibit.
creditor and debtor only. "Under such relationship,' it declared, "the outstanding account, if any, of the accused
in favor of ITI would be in the nature of an indebtedness, the non- payment of which does not Constitute
estafa." 4 In the case at bar, the photocopies of the airway bills were objected to by the private respondents as secondary
evidence only when they, were being Identified for marking by the prosecution. They were nevertheless
marked as exhibits upon the promise that the original airway bills would be submitted later. it is true that the
The court' also held that the certified photocopies of the airway by were not admissible under the rule that
originals were never produced. Yet, notwithstanding this omission, the defense did not object when the
"there can be no evidence of a writing the content of which is the subject of inquiry other' than the writing
exhibits as previously marked were formally offered in evidence. And these were subsequently admitted by the
itself." Loss of the originals had not been proved to justify the exception to the rule as one of the prosecution
trial court. 7
witness had testified that they were still in the ITI bodega. Neither had it been shown that the originals had
been "recorded in an existing record a certified copy of which is made evidence by law."
In People v. Teodoro, 8 a document being Identified by a prosecution witness was objected to as merely
secondary, whereupon the trial judge ordered the testimony stricken out. This Court, in holding the objection
In its order denying the motion for reconsideration, the trial court declared that it "had resolved the issue of
to be premature, said:
whether the accused has civil obligation to ITI on the basis of the admissibility in evidence of the xerox copies
of the airway bills." 5
It must be noted that the Fiscal was only Identifying the official records of service of the
defendant preparatory to introducing them as evidence. ... The time for the presentation
Right or wrong, the acquittal on the merits of the accused can no longer be the subject of an appeal under the
of the records had not yet come; presentation was to be made after their Identification.
double jeopardy rule. However, the petitioner seeks to press the civil liability of the private respondents, on the
For what purpose and to what end the Fiscal would introduce them as evidence was not
ground that the dismissal of the criminal action did not abate the civil claim for the recovery of the amount.
yet stated or disclosed. ... The objection of counsel for the defendant was, therefore,
More to the point, ITI argues that the evidence of the airways bills should not have been rejected and that it
premature, especially as the Fiscal had not yet stated for what purpose he would
had sufficiently established the indebtedness of the private respondents to it.
introduce the said records. ...

The Court of Appeals 6 affirmed, the decision of the trial court in toto, adding that the existing record spoken
of in Section 2 (e) and (d) of Rule 130 of the Rules of Court must be in the custody, of a public officer only. It
also declared that:
Since no evidence of civil liability was presented, no necessity existed on the part of the
private respondents to present evidence of payment of an obligation which was not
shown to exist.
The petitioner now asks this Court to annul that judgment as contrary to law and the facts established at the As
in the courts below, it is insisting on the admissibility of its evidence to prove the civil liability of the private
respondents.
We agree with the petitioner. The certified photocopies of the airway bills should have been considered.
The time for objecting the evidence is when the same is offered. (Emphasis supplied).
The objection of the defense to the photocopies of the airway bins while they were being Identified and
marked as exhibits did not constitute the objection it should have made when the exhibits were formally
offered in evidence by the prosecution. No valid and timely objection was made at that time. And it is no
argument to say that the earlier objection should be considered a continuing objection under Sec. 37 of Rule
132, for that provision obviously refers to a single objection to a class of evidence (testimonial or
documentary) which when first offered is considered to encompass the rest of the evidence. The presumption
is, of course, that there was an offer and a seasonable objection thereto. But, to repeat, no objection was really
made in the case before us because it was not made at the proper time.
It would have been so simple for the defense to reiterate its former objection, this time seasonably, when the
formal offer of exhibits was made. It is curious that it did not, especially so since the objections to the formal
offer of exhibits was made in writing. In fact, the defense filed no objection at all not only to the photocopies clogging of court dockets and unnecessary duplication of litigation with all its attendant
but to all the other exhibits of the prosecution. loss of time, effort, and money on the part of all concerned.

The effect of such omission is obvious. The rule is that evidence not objected to is deemed admitted and may
be validly considered by the court in arriving at its judgment. 9 This is true even if by its nature the evidence is
inadmissible and would have surely been rejected if it had been challenged at the proper time.
The records certainly would have been the, beet proof of such former conviction. The
certificate was not the best proof. There seems to be no justification for the presentation
of proof of a character. ... Under an objection upon the ground that the said certificate
was not the best proof, it should have been rejected. Once admitted, however, without
objection, even though not admissible under an objection, we are not inclined now to
reject it. If the defendant had opportunely presented an objection to the admissibility of
said certificate, no doubt the prosecution would have presented the best proof upon the
questions to which said certificate relates. 10
By the same token, we find that remand of this case to, the trial court for further hearings would be a needless
waste of time and effort to the prejudice of the speedy administration of justice. Applying the above ruling, we
hereby declare therefore, on the basis of the evidence submitted at the trial as reflected in the records before us,
that the private respondents are liable to the petitioner in the sum of P204,030.66, representing the cost of the
airway bills.
WHEREFORE, the petition is GRANTED. The challenged decision of the Court of Appeals is SET ASIDE
and a new one is rendered ORDERING the private respondents to. pay to the petitioner the sum of
P204,030.66, with 6% interest from November 16, 1981, plus the costs of this suit.
SO ORDERED.

(It) is universally accepted that when secondary or incompetent evidence is presented

and accepted without any objection on the part of the other party, the latter is bound
thereby and the court is obliged to grant it the probatory value it deserves. 11

We hold therefore that it was erroneous for the lower courts to reject the photocopies of the airway bills to
prove the liability of the private respondents to the petitioner. While we may agree that there was really no
criminal liability that could attach to them because they had no fiduciary relationship with ITI, the rejected
evidence sufficiently established their indebtedness to the petitioner. Hence, we must reverse the ruling below
that "on account of the inadmissibility of the prosecution's Exhibits 'B' and 'OO', coupled with the denial made
by the accused, there appears to be no concrete proof of such accountability."

Accoording to Rule 120, Section 2, of the Rules of Court:

In case of acquittal, unless there is a clear showing that the act from which the civil
liability might arise did not exist, the judgment shall make a finding on the civil liability
of the accused in favor of the offended party.

With the admission of such exhibits pursuant to the ruling above made, we find that there is concrete proof of
the defendant's accountability. More than this, we also disbelieve the evidence of the private respondents that
the said airway bills had been paid for. The evidence consists only of check stubs corresponding to payments
allegedly made by the accused to the ITI, and we find this insufficient.

As it is Aviles who has alleged payment, it is for him to prove that allegation. He did not produce any receipt
of such payment. He said that the cancelled payment checks had been lost and relied merely on the check
stubs, which are self-serving. The prosecution correctly stressed in its motion for reconsideration that the
accused could have easily secured a certification from the bank that the checks allegedly issued to ITI had been
honored. No such certification was presented. In short, the private respondents failed to establish their
allegation that payment for the airway bills delivered to them had been duly remitted to ITI.

In Padilla v. Court of Appeals, 12 we held:

There appear to be no sound reasons to require a separate civil action to still be filed
considering that the facts to be proved in the civil case have already been established in
the criminal proceedings where the accused was acquitted. He was, in fact, exonerated
of the charge. The constitutional presumption of innocence called for more vigilant
efforts on the part of prosecuting attorneys and defense counsel, a keener awareness by
all witnesses of the serious implications of perjury, and a more studied consideration by G.R. No. 74768 August 11, 1989
the judge of the entire records and of applicable statutes and precedents. To require a
separate civil action simply because the accused was I acquitted would mean needless
 JUANA DE LOS REYES, petitioner, BATANGAS CITY
vs. HON. INTERMEDIATE APPELLATE COURT and SPOUSES CLARO C. YLAGAN and NATIVIDAD P. April 26, 1978
YLAGAN, respondents. Mrs. Juana de los Reyes
Manghinao, Bauan, Batangas
CRUZ, J.:
Madam:
The petitioner obtained a loan in the amount of P3,000.00 from the Rural Bank of Bauan and secured the payment
thereof with a real estate mortgage on a piece of land belonging to her. For her failure to pay the debt, the mortgage Replying your letter dated April 1978, much to our desire to accommodate your request, we regret to inform you that
was extrajudicially foreclosed and the land was sold at public auction to the private respondents for P4,925.00 on we could not for the meantime accept the redemption amount you are tendering to this Office for as per Certificate of
April 29, 1976. 1 The certificate of sale was registered with the Register of Deeds of Batangas on May 4,1977. 2 Sale dated April 29, 1976, the period of redemption of the property described in your said letter had already expired.
Nevertheless, your request is being seriously considered by this office.
On August 26, 1977, the private respondents filed a complaint with the Court of First Instance of Batangas asking the
petitioner to vacate the property and remove her improvements thereon. The petitioner countered that the auction sale
was irregular and void and asked that the complaint be dismissed.
Very truly yours,
While this case was pending, the petitioner wrote a letter dated April , 1978, to the Provincial Sheriff of Batangas (Sgd.) EUSTACIO C. CUEVAS
tendering the amount of P4,925.00 plus interest as the redemption price for the subject land. In a reply dated April 26, Provincial Sheriff
1978, the said officer refused to accept the tender on the ground that the period of redemption had already expired. He
added, though, that the petitioner's request was "being seriously considered."
On May 9, 1978, the trial court issued the following order: 5

The petitioner's letter 3 is reproduced as follows:

It appearing from the pleadings that the question involved here is whether the redemption
period, as alleged in the complaint, begins from the date of the extrajudicial sale of the
MENDOZA, PANGANIBAN & MACARANDANG LAW OFFICE property in question on April 29, 1976, and not on May 4, 1977, the date on which the sale
Cor. Rizal Avenue & P. Zamora St., Batangas City was registered with the Register of Deeds as contended by the defendant, and that the
Manghinao, Bauan Batangas defendant is ready to pay the redemption price but which was refused by the plaintiffs; that, in
April , 1978 fact, the defendant tendered payment to the Provincial Sheriff of Batangas on April 25, 1978,
The Provincial Sheriff which tender is still under consideration by said officer;
Province of Batangas
Capitol Site, Batangas City
Wherefore, the defendant is hereby allowed to deposit the amount for the redemption of the
property with this Court.
Dear Sir:
SO ORDERED.
I hereby tender to your good office the redemption price of FOUR THOUSAND NINE HUNDRED TWENTY FIVE
(P4,925.00) PESOS, plus the interest of 1 % per month for the said principal amount for the land your Office allegedly
sold at auction sale on April 29, 1976 at Bauan, Batangas. The land subject of said sale is more particularly described On February 8, 1982, the trial court, after holding that there was no genuine issue on the material facts and that the
as follows: only question of law to be resolved was the timeliness of the redemption, rendered a summary judgment in favor of
the private respondents. 6 The petitioner appealed. Judge Romeo R. Silva's decision was affirmed in toto 7 by the
respondent court, which is now sought to be reversed in this petition for review.
A residential and horticultural land under Tax Declaration No. 20729 in the names of
plaintiffs, located at Manghinao, Bauan, Batangas with a total area of 1,608 square meters,
more or less and a total assessed value of P 3,640.00 bounded on the North by Manghinao This petition was originally denied by the Court in a resolution dated October 6, 1986, for lack of merit. Thereafter,
Bridge, on the East by Manghinao River, on the South by Basilia de los Reyes and on the the petitioner filed a motion for reconsideration in which he complained that his reply to the private respondents'
West by Provincial Road. comment had not been taken into account when the said resolution was issued.

I wish to inform your good office that while the alleged sale of afore-described property was made on April 29, 1976, Filing of a reply is not a matter of right and may be done only if required or allowed by the Court; otherwise, it need
the registration of the sale was made on May 4, 1977. not be considered at all (especially if, as in this case, it was hardly legible).lâwphî1.ñèt Even so, in view of the serious
issues raised in the said motion, the Court resolved to direct the private respondents to comment thereon (to which a
reply was submitted, followed by a rejoinder and then a sur-rejoinder all without being required or permitted by the
Please acknowledge receipt hereof. Court). Finally, in our resolution dated September 22, 1987, we decided to give due course to this petition and to
require the parties to submit simultaneous memoranda.
Truly yours,
We find that several of the issue raised in this litigation can be resolved at the outset as they pose no serious
controversy.
(Sgd.) JUANA DE LOS REYES

First, the private respondents argue that the tender of payment made by the petitioner was inefficacious because it was
The reply 4 of the Provincial Sheriff ran thus: made to the sheriff and not the purchaser as required by Rule 39, Section 30, of the Rules of Court. However, while it
is admittedly stated therein that the judgment debtor or redemptioner "may redeem the property from the purchaser," it
REPUBLIC OF THE PHILIPPINES is also provided in Section 31 of the same rule that:
OFFICE OF THE PROVINCIAL SHERIFF
 ... The payments mentioned in this and the last preceding sections may be made to the
purchaser or redemptioner, or for him to the officer who made the sale.
And as observed by Chief Justice Moran in his definitive work on the Rules of Court:
... It is expressly provided that the tender of the redemption money may be made either to the
purchaser or redemptioner, or to the sheriff who made the sale, and, in the last instance, it is
the duty of the sheriff to accept the tender and execute the certificate of redemption. 8
xxx
The sheriff to whom payment may be made, is not necessarily the same sheriff who conducted
the sale, if the latter is no longer in office, in which case payment may be made to his
successor. And when the sale was made by a deputy sheriff, the redemption money may be
paid to the provincial sheriff. 9
Second, on the sufficiency of the amount tendered, Section 30 clearly states that it should be equivalent to the amount
of the purchase price plus one per cent monthly interest up to the time of the redemption. In the petitioner's letter to
the provincial sheriff, she tendered the amount of P4,925.00 with interest. This was refused by the said officer on the
ground that the redemption period had expired. The trial and respondent courts, for their part, later considered the
tender insufficient.
It must be recalled that pursuant to the order of the trial judge on May 9, 1978, the petitioner deposited on that date the
amount of P6,107.00. This was exactly equivalent to the purchase price plus the accrued 1% monthly interest thereon
as of that date.
Finally, there is the question of the starting point of the redemption period which, the petitioner argues, started on May
4, 1977, and ended on May 4, 1978. This means that the tender she made to the Provincial Sheriff on April 26,1978,
was within the one-year period prescribed by the Rules of Court.
While agreeing that the period did end on May 4, 1978, the trial and respondent courts held nevertheless that this was
exceeded by the petitioner because the original amount tendered on April 26, 1978 was insufficient. As the
discrepancy was corrected only on May 9, 1978, the redemption was in their view made four days late.
We have already observed that the amount tendered on April 26, 1978, was not insufficient as the petitioner offered
the sum of P 4,925.00 "plus the interest of 1% per month for the said principal amount." In fact, the deposit made on
May 9, 1978, was merely an affirmation of the earlier offer and was not even necessary at all. According to Chief
Justice Moran again:
Where the judgment debtor or a redemptioner validly tenders the necessary payment for the
redemption and the tender is refused, it is not necessary that it be followed by the deposit of
the money in court or elsewhere, and no interest after such tender is demandable on the
redemption money. 10
The basic question in this case is whether or not the petitioner's letter tendering the redemption price to the sheriff and
the latter's reply thereto may be taken into account in determining the timeliness of the redemption.
The private respondents question the admissibility of these documents, stressing that they have not at any time been
formally offered. The petitioner contends otherwise. She maintains that they were part of the record of the case and
that the trial judge had a right and duty to consider them in arriving at his summary judgment.
The private respondents insist that the two letters had never been offered in evidence as required by Section 35, Rule
132 of the Rules of Court. This provides that:
Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.
We find, however, that the letters were formally submitted during the hearing of the petitioner's motion to dismiss on
May 9,1978, at which counsel for both parties were present. 11 Judge Benjamin Relova took cognizance of the
correspondence and even noted in his order of the same date that "the defendant tendered payment to the Provincial
Sheriff of Batangas on April 25, 1978, which tender is still under consideration by said officer. 12 The same posture
was taken by the respondent court, which observed from the petitioner's letter that "what was tendered to the sheriff
was only the amount of the bid, P4, 925, 13 and held this to be insufficient.
In other words, both courts found as established facts the tender made by the petitioner and the rejection thereof by the
sheriff as manifested in their respective letters.
While the above-cited provision must be strictly interpreted in ordinary trials, such a policy is hardly applicable in
summary proceedings where no full-blown trial is held in the interest of a speedy administration of justice. It is noted
that when the two letters were presented at the hearing on May 9, 1978, the private respondents did not object to their
admission. They did so only when the case was already on appeal. Furthermore, the rule on summary judgments is
that the judge must base his decision on the pleadings, depositions, admissions affidavits and documents on file with
the court. This is what the trial judge did, presumably after examining the authenticity and credibility of the evidence
before him.
We hold therefore that the lower court did not err when it took into account Exhibits A and A-1, without objection
from the private respondents, as evidence of the petitioner's timely offer of redemption and its erroneous rejection by
the sheriff.
At this point, it is well to recall the following pronouncements from this Court:
Finally, the appellant bank objects to the redemption on the ground that the amount tendered
is inadequate to meet the redemption price. Considering, however, that the sum tendered was
the amount of the purchase price paid at the auction sale and that the tender was timely made
and in good faith, we believe that the ends of justice would be better served by affording the
appellees the opportunity to redeem the property by paying the bank the auction purchase
price plus 1% interest per month thereon up to the time of redemption. 14
xxx
Considering that appellee tendered payment only of the sum of P317.44, whereas the three
parcels of land she was seeking to redeem were sold for the sums of Pl,240.00, P21,000.00,
and P30,000.00, respectively, the aforementioned amount of P 317.44 is insufficient to
effectively release the properties. However, the tender of payment was timely made and in
good faith; in the interest of justice we incline to give the appellee opportunity to complete the
redemption purchase of the three parcels, as provided in Section 26, Rule 39 of the Rules of
Court, within fifteen (15) days from the time this decision becomes final and executory. In this
wise, justice is done to the appellee who had been made to pay more than her share in the
judgment, without doing all injustice to the purchaser who shall get the corresponding interest
of 1 % per month on the amount of as purchase up to the time of redemption. 15
The rule on redemption is liberally interpreted in favor of the original owner of the property. The fact alone that he is
allowed the right to redeem clearly demonstrates the tenderness of the law toward him in giving him another
opportunity, should his fortunes improve, to recover his lost property. This benign motivation would be frustrated by a
too literal reading that would subordinate the warm spirit of the rule to its cold language.
WHEREFORE, the decision of the trial court dated February 8, 1982, is SET ASIDE. The decision of the respondent
court dated April 3,1986, is also REVERSED insofar as it denies the petitioner the right of redemption. The private
respondents are hereby directed to allow the petitioner to redeem the disputed property for the amount of P6,107.00,
now on deposit with the Regional Trial Court of Batangas. It is so ordered.
G.R. No. L-9181 November 28, 1955
 THE PEOPLE OF THE PHILIPPINES, petitioner,
vs. THE HON. NICASIO YATCO, Judge of the Court of First Instance of Rizal, Quezon City Branch, and JUAN
CONSUNJI and ALFONSO PANGANIBAN, respondents.
REYES, J.B.L., J.:
In an amended information filed by the City Attorney of Quezon City on March 22, 1955, Juan Consunji, Alfonso Panganiban,
and another whose identity is still unknown, were charged with having conspired together in the murder of one Jose Ramos
(Criminal Case No. Q-1637 of the Court of First Instance of Quezon City). Trial of the case started on May 3, 1955, and in
several hearings the prosecution had been presenting its evidence. During the progress of the trial on May 18, 1955, while the
prosecution was questioning one of its witnesses, Atty. Arturo Xavier of the National Bureau of Investigation, in connection
with the making of a certain extra-judicial confession (allegedly made before him) by defendant Juan Consunji to the witness,
counsel for the other defendant Alfonso Panganiban interposed a general objection to any evidence on such confession on the
ground that it was hearsay and therefore incompetent as against the other accused Panganiban. The Court below ordered the
exclusion of the evidence objected to, but on an altogether different ground: that the prosecution could not be permitted to
introduce the confessions of defendants Juan Consunji and Alfonso Panganiban to prove conspiracy between them, without
prior proof of such conspiracy by a number of definite acts, conditions, and circumstances. Thereafter, according to the
transcript, the following remarks were made:
FISCAL LUSTRE:
May we know from counsel if he is also objecting to the admissibility of the confession of Consunji as against the
accused Consunji himself?
COURT:
That would be premature because there is already a ruling of the Court that you cannot prove a confession unless
you prove first conspiracy thru a number of indefinite acts, conditions and circumstances as required by law.
Annex "B" of the petition, p. 9
The prosecution then moved in writing for a reconsideration of the order of exclusion, but again the motion was denied.
Wherefore, this petition for certiorari was brought before this Court by the Solicitor General, for the review and annulment of
the lower Court's order completely excluding any evidence on the extrajudicial confessions of the accused Juan Consunji and
Alfonso Panganiban without prior proof of conspiracy.
We believe that the lower Court committed a grave abuse of discretion in ordering the complete exclusion of the prosecution's
evidence on the alleged confessions of the accused Juan Consunji at the stage of the trial when the ruling was made.
Section 14, Rule 123, Rules of Court, is specific as to the admissibility of the extrajudicial confession of an accused, freely and
voluntarily made, as evidence against him.
SEC. 14. Confession. — The declaration of an accused expressly acknowledging the truth of his guilt as to the
offense charged, may be given in evidence against him.
Under the rule of multiple admissibility of evidence, even if Consunji's confession may not be competent as against his co-
accused Panganiban, being hearsay as to the latter, or to prove conspiracy between them without the conspiracy being
established by other evidence, the confession of Consunji was, nevertheless, admissible as evidence of the declarant's own
guilt (U. S. vs. Vega, 43 Phil. 41; People vs. Bande, 50 Phil. 37; People vs. Buan, 64 Phil. 296), and should have been admitted
as such.
The rule cited by the Court below in support of its exclusion of the proffered evidence is Sec. 12 of Rule 123, providing that:
The act or declaration of a conspirator relating to the conspiracy and during its existence may be given in
evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.
Manifestly, the rule refers to statements made by one conspirator during the pendency of the unlawful enterprises("during its
existence") and in furtherance of its object, and not to a confession made, as in this case, long after the conspiracy had been
brought to an end (U. S. vs. Empeinado, 9 Phil., 613; U. S. vs. Raymundo, 14 Phil., 416; People vs. Badilla, 48 Phil., 718;
People vs. Nakpil, 52 Phil., 985).
Besides, the prosecution had not yet offered the confessions to prove conspiracy between the two accused, nor as evidence
against both of them. In fact, the alleged confessions (both in writing and in tape recordings) had not yet even been identified
(the presentation of Atty. Xavier was precisely for the purpose of identifying the confessions), much less formally offered in
evidence. For all we know, the prosecution might still be able to adduce other proof of conspiracy between Consunji and
Panganiban before their confessions are formally offered in evidence. Assuming, therefore, that section 12 of Rule 123 also
applies to the confessions in question, it was premature for the respondent Court to exclude them completely on the ground
that there was no prior proof of conspiracy.
It is particularly noteworthy that the exclusion of the proferred confessions was not made on the basis of the objection
interposed by Panganiban's counsel, but upon an altogether different ground, which the Court issued motu proprio.
Panganiban's counsel objected to Consunji's confession as evidence of the guilt of the other accused Panganiban, on the
ground that it was hearsay as to the latter. But the Court, instead of ruling on this objection, put up its own objection to the
confessions — that it could not be admitted to prove conspiracy between Consunji and Panganiban without prior evidence of
such conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the confessions on
that ground. By so doing, the Court overlooked that the right to object is a mere privilege which the parties may waive; and if
the ground for objection is known and not reasonably made, the objection is deemed waived and the Court has no power, on its
own motion, to disregard the evidence (Marcella vs. Reyes, 12 Phil., 1).
We see no need for the present to discuss the question of the admissibility of the individual extrajudicial confessions of two or
more accused for the purpose of establishing conspiracy between them through the identity of the confessions in essential
details. After all, the confessions are not before us and have not even been formally offered in evidence for any purpose.
Suffice it to say that the lower Court should have allowed such confessions to be given in evidence at least as against the
parties who made them, and admit the same conditionally to establish conspiracy, in order to give the prosecution a chance to
get into the record all the relevant evidence at its disposal to prove the charges. At any rate, in the final determination and
consideration of the case, the trial Court should be able to distinguish the admissible from the inadmissible, and reject what,
under the rules of evidence, should be excluded.
Once more, attention should be called to the ruling of this Court in the case of Prats & Co. vs. Phoenix Insurance Co., 52 Phil.,
807, 816-817:
In the course of long experience we have observed that justice is most effectively and expeditiously administered
in the courts where trial objections to the admission of proof are received with least favor. The practice of
excluding evidence on doubtful objections to its materiality or technical objections to the form of the questions
should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the
development of the proof, to know with any certainty whether testimony is relevant or not; and where there is no
indication of bad faith on the part of the Attorney offering the evidence, the court may as a rule safely accept the
testimony upon the statement of the attorney that the proof offered will be connected later. Moreover, it must be
remembered that in the heat of the battle over which the presides, a judge of first instance may possibly fall into
error in judging of the relevancy of proof where a fair and logical connection is in fact shown. When such a
mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself
embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial, — a
step which this Court is always very loath to take. On the other hand, the admission of proof in a court of first
instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to
either litigant, because the trial judge is supposed to know the law; and it is duty, upon final consideration of the
case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the
cause is prosecuted to the Supreme Court upon appeal, this Court then has all the material before it necessary to
make a correct judgment.
There is greater reason to adhere to such policy in criminal cases where questions arise as to admissibility of evidence for the
prosecution, for the unjustified exclusion of evidence may lead to the erroneous acquittal of the accused or the dismissal of the
charges, from which the People can no longer appeal.
Wherefore, the order excluding the confessions of the accused Juan Consunji and Alfonso Panganiban is annulled and set aside
and the Court below is directed to proceed with the trial in accordance with law and this opinion. Costs against respondents
Juan Consunji and Alfonso Panganiban. So ordered.
G.R. No. 87434 August 5, 1992
 PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC. and TAGUM PLASTICS, INC., petitioners,
vs. SWEET LINES, INC., DAVAO VETERANS ARRASTRE AND PORT SERVICES, INC. and HON. COURT OF
APPEALS, respondents.
REGALADO, J.:
A maritime suit 1 was commenced on May 12, 1978 by herein Petitioner Philippine American General Insurance Co., Inc.
(Philamgen) and Tagum Plastics, Inc. (TPI) against private respondents Sweet Lines, Inc. (SLI) and Davao Veterans Arrastre
and Port Services, Inc. (DVAPSI), along with S.C.I. Line (The Shipping Corporation of India Limited) and F.E. Zuellig, Inc.,
as co-defendants in the court a quo, seeking recovery of the cost of lost or damaged shipment plus exemplary damages,
attorney's fees and costs allegedly due to defendants' negligence, with the following factual backdrop yielded by the findings
of the court below and adopted by respondent court:
It would appear that in or about March 1977, the vessel SS "VISHVA YASH" belonging to or
operated by the foreign common carrier, took on board at Baton Rouge, LA, two (2) consignments of
cargoes for shipment to Manila and later for transhipment to Davao City, consisting of 600 bags Low
Density Polyethylene 631 and another 6,400 bags Low Density Polyethylene 647, both consigned to
the order of Far East Bank and Trust Company of Manila, with arrival notice to Tagum Plastics, Inc.,
Madaum, Tagum, Davao City. Said cargoes were covered, respectively, by Bills of Lading Nos. 6
and 7 issued by the foreign common carrier (Exhs. E and F). The necessary packing or Weight List
(Exhs. A and B), as well as the Commercial Invoices (Exhs. C and D) accompanied the shipment.
The cargoes were likewise insured by the Tagum Plastics Inc. with plaintiff Philippine American
General Insurance Co., Inc., (Exh. G).
In the course of time, the said vessel arrived at Manila and discharged its cargoes in the Port of
Manila for transhipment to Davao City. For this purpose, the foreign carrier awaited and made use of
the services of the vessel called M/V "Sweet Love" owned and operated by defendant interisland
carrier.
Subject cargoes were loaded in Holds Nos. 2 and 3 of the interisland carrier. These were commingled
with similar cargoes belonging to Evergreen Plantation and also Standfilco.
On May 15, 1977, the shipment(s) were discharged from the interisland carrier into the custody of
the consignee. A later survey conducted on July 8, 1977, upon the instance of the plaintiff, shows the
following:
Of the cargo covered by Bill of Lading No. 25 or (2)6, supposed to contain 6,400 bags of Low
Density Polyethylene 647 originally inside 160 pallets, there were delivered to the consignee 5,413
bags in good order condition. The survey shows shortages, damages and losses to be as follows:
Undelivered/Damaged bags as tallied during discharge from vessel-173
bags; undelivered and damaged as noted and observed whilst stored at the
pier-699 bags; and shortlanded-110 bags (Exhs. P and P-1).
Of the 600 bags of Low Density Polyethylene 631, the survey conducted on the same day shows an
actual delivery to the consignee of only 507 bags in good order condition. Likewise noted were the
following losses, damages and shortages, to wit:
Undelivered/damaged bags and tally sheets during discharge from vessel-
17 bags.
Undelivered and damaged as noted and observed whilst stored at the pier-
66 bags; Shortlanded-10 bags.
Therefore, of said shipment totalling 7,000 bags, originally contained in 175 pallets, only a total of
5,820 bags were delivered to the consignee in good order condition, leaving a balance of 1,080 bags.
Such loss from this particular shipment is what any or all defendants may be answerable to (sic).
As already stated, some bags were either shortlanded or were missing, and some of the 1,080 bags
were torn, the contents thereof partly spilled or were fully/partially emptied, but, worse, the contents
thereof contaminated with foreign matters and therefore could no longer serve their intended
purpose. The position taken by the consignee was that even those bags which still had some contents
were considered as total losses as the remaining contents were contaminated with foreign matters and
therefore did not (sic) longer serve the intended purpose of the material. Each bag was valued, taking
into account the customs duties and other taxes paid as well as charges and the conversion value then
of a dollar to the peso, at P110.28 per bag (see Exhs. L and L-1 M and O). 2
Before trial, a compromise agreement was entered into between petitioners, as plaintiffs, and defendants S.C.I. Line and F.E.
Zuellig, upon the latter's payment of P532.65 in settlement of the claim against them. Whereupon, the trial court in its order of
August 12, 1981 3 granted plaintiffs' motion to dismiss grounded on said amicable settlement and the case as to S.C.I. Line and
F.E. Zuellig was consequently "dismissed with prejudice and without pronouncement as to costs."
The trial court thereafter rendered judgment in favor of herein petitioners on this dispositive portion:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff Philippine General American
Insurance Company Inc. and against the remaining defendants, Sweet Lines Inc. and Davao Veterans
Arrastre Inc. as follows:
Defendant Sweet Lines, Inc. is ordered to pay said plaintiff the sum of P34,902.00, with legal interest
thereon from date of extrajudicial demand on April 28, 1978 (Exh. M) until fully paid;
Defendant Sweet Lines Inc. and Davao Veterans Arrastre and (Port) Services Inc. are directed to pay
jointly and severally, the plaintiff the sum of P49,747.55, with legal interest thereon from April 28,
1978 until fully paid;
Each of said defendants are ordered to pay the plaintiffs the additional sum of P5,000 is reimbursable
attorney's fees and other litigation expenses;
Each of said defendants shall pay one-fourth (1/4) costs. 4
Due to the reversal on appeal by respondent court of the trial court's decision on the ground of prescription, 5 in effect
dismissing the complaint of herein petitioners, and the denial of their motion for reconsideration, 6 petitioners filed the instant
petition for review on certiorari, faulting respondent appellate court with the following errors: (1) in upholding, without proof,
the existence of the so-called prescriptive period; (2) granting arguendo that the said prescriptive period does exist, in not
finding the same to be null and void; and (3) assuming arguendo that the said prescriptive period is valid and legal, in failing
to conclude that petitioners substantially complied therewith. 7
Parenthetically, we observe that herein petitioners are jointly pursuing this case, considering their common interest in the
shipment subject of the present controversy, to obviate any question as to who the real party in interest is and to protect their
respective rights as insurer and insured. In any case, there is no impediment to the legal standing of Petitioner Philamgen, even
if it alone were to sue herein private respondents in its own capacity as insurer, it having been subrogated to all rights of
recovery for loss of or damage to the shipment insured under its Marine Risk Note No. 438734 dated March 31, 1977 8 in
view of the full settlement of the claim thereunder as evidenced by the subrogation receipt 9 issued in its favor by Far East
Bank and Trust Co., Davao Branch, for the account of petitioner TPI.
Upon payment of the loss covered by the policy, the insurer's entitlement to subrogation pro tanto, being of the highest equity,
equips it with a cause of action against a third party in case of contractual breach. 10 Further, the insurer's subrogatory right to
sue for recovery under the bill of lading in case of loss of or damage to the cargo is jurisprudentially upheld. 11 However, if an
insurer, in the exercise of its subrogatory right, may proceed against the erring carrier and for all intents and purposes stands in
the place and in substitution of the consignee, a fortiori such insurer is presumed to know and is just as bound by the
contractual terms under the bill of lading as the insured.
On the first issue, petitioners contend that it was error for the Court of Appeals to reverse the appealed decision on the
supposed ground of prescription when SLI failed to adduce any evidence in support thereof and that the bills of lading said to
contain the shortened periods for filing a claim and for instituting a court action against the carrier were never offered in
evidence. Considering that the existence and tenor of this stipulation on the aforesaid periods have allegedly not been
established, petitioners maintain that it is inconceivable how they can possibly comply therewith. 12 In refutation, SLI avers
that it is standard practice in its operations to issue bills of lading for shipments entrusted to it for carriage and that it in fact
issued bills of lading numbered MD-25 and MD-26 therefor with proof of their existence manifest in the records of the
case. 13 For its part, DVAPSI insists on the propriety of the dismissal of the complaint as to it due to petitioners' failure to
prove its direct responsibility for the loss of and/or damage to the cargo. 14
On this point, in denying petitioner's motion for reconsideration, the Court of Appeals resolved that although the bills of lading
were not offered in evidence, the litigation obviously revolves on such bills of lading which are practically the documents or
contracts sued upon, hence, they are inevitably involved and their provisions cannot be disregarded in the determination of the
relative rights of the parties thereto. 15
Respondent court correctly passed upon the matter of prescription, since that defense was so considered and controverted by
the parties. This issue may accordingly be taken cognizance of by the court even if not inceptively raised as a defense so long
as its existence is plainly apparent on the face of relevant pleadings. 16 In the case at bar, prescription as an affirmative defense
was seasonably raised by SLI in its answer, 17 except that the bills of lading embodying the same were not formally offered in
evidence, thus reducing the bone of contention to whether or not prescription can be maintained as such defense and, as in this
case, consequently upheld on the strength of mere references thereto.
As petitioners are suing upon SLI's contractual obligation under the contract of carriage as contained in the bills of lading,
such bills of lading can be categorized as actionable documents which under the Rules must be properly pleaded either as
causes of action or defenses, 18 and the genuineness and due execution of which are deemed admitted unless specifically
denied under oath by the adverse party. 19 The rules on actionable documents cover and apply to both a cause of action or
defense based on said documents. 20
In the present case and under the aforestated assumption that the time limit involved is a prescriptive period, respondent carrier
duly raised prescription as an affirmative defense in its answer setting forth paragraph 5 of the pertinent bills of lading which
comprised the stipulation thereon by parties, to wit:
5. Claims for shortage, damage, must be made at the time of delivery to consignee or agent, if
container shows exterior signs of damage or shortage. Claims for non-delivery, misdelivery, loss or
damage must be filed within 30 days from accrual. Suits arising from shortage, damage or loss, non-
delivery or misdelivery shall be instituted within 60 days from date of accrual of right of action.
Failure to file claims or institute judicial proceedings as herein provided constitutes waiver of claim
or right of action. In no case shall carrier be liable for any delay, non-delivery, misdelivery, loss of
damage to cargo while cargo is not in actual custody of carrier. 21
In their reply thereto, herein petitioners, by their own assertions that —
2. In connection with Pars. 14 and 15 of defendant Sweet Lines, Inc.'s Answer, plaintiffs state that
such agreements are what the Supreme Court considers as contracts of adhesion (see Sweet Lines,
Inc. vs. Hon. Bernardo Teves, et al., G.R. No. L-37750, May 19, 1978) and, consequently, the
provisions therein which are contrary to law and public policy cannot be availed of by answering
defendant as valid defenses. 22
thereby failed to controvert the existence of the bills of lading and the aforequoted provisions therein, hence they impliedly
admitted the same when they merely assailed the validity of subject stipulations.
Petitioners' failure to specifically deny the existence, much less the genuineness and due execution, of the instruments in
question amounts to an admission. Judicial admissions, verbal or written, made by the parties in the pleadings or in the course
of the trial or other proceedings in the same case are conclusive, no evidence being required to prove the same, and cannot be
contradicted unless shown to have been made through palpable mistake or that no such admission was made. 23 Moreover,
when the due execution and genuineness of an instrument are deemed admitted because of the adverse party's failure to make a
specific verified denial thereof, the instrument need not be presented formally in evidence for it may be considered an admitted
fact. 24
Even granting that petitioners' averment in their reply amounts to a denial, it has the procedural earmarks of what in the law on
pleadings is called a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading
responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. 25 Thus, while
petitioners objected to the validity of such agreement for being contrary to public policy, the existence of the bills of lading
and said stipulations were nevertheless impliedly admitted by them.
We find merit in respondent court's comments that petitioners failed to touch on the matter of the non-presentation of the bills
of lading in their brief and earlier on in the appellate proceedings in this case, hence it is too late in the day to now allow the
litigation to be overturned on that score, for to do so would mean an over-indulgence in technicalities. Hence, for the reasons
already advanced, the non-inclusion of the controverted bills of lading in the formal offer of evidence cannot, under the facts
of this particular case, be considered a fatal procedural lapse as would bar respondent carrier from raising the defense of
prescription. Petitioners' feigned ignorance of the provisions of the bills of lading, particularly on the time limitations for filing
a claim and for commencing a suit in court, as their excuse for non-compliance therewith does not deserve serious attention.
It is to be noted that the carriage of the cargo involved was effected pursuant to an "Application for Delivery of Cargoes
without Original Bill of Lading" issued on May 20, 1977 in Davao City 26 with the notation therein that said application
corresponds to and is subject to the terms of bills of lading MD-25 and MD-26. It would be a safe assessment to interpret this
to mean that, sight unseen, petitioners acknowledged the existence of said bills of lading. By having the cargo shipped on
respondent carrier's vessel and later making a claim for loss on the basis of the bills of lading, petitioners for all intents and
purposes accepted said bills. Having done so they are bound by all stipulations contained therein. 27 Verily, as petitioners are
suing for recovery on the contract, and in fact even went as far as assailing its validity by categorizing it as a contract of
adhesion, then they necessarily admit that there is such a contract, their knowledge of the existence of which with its attendant
stipulations they cannot now be allowed to deny.
On the issue of the validity of the controverted paragraph 5 of the bills of lading above quoted which unequivocally prescribes
a time frame of thirty (30) days for filing a claim with the carrier in case of loss of or damage to the cargo and sixty (60) days
from accrual of the right of action for instituting an action in court, which periods must concur, petitioners posit that the
alleged shorter prescriptive period which is in the nature of a limitation on petitioners' right of recovery is unreasonable and
that SLI has the burden of proving otherwise, citing the earlier case of Southern Lines, Inc. vs. Court of Appeals, et al. 28 They
postulate this on the theory that the bills of lading containing the same constitute contracts of adhesion and are, therefore, void
for being contrary to public policy, supposedly pursuant to the dictum in Sweet Lines, Inc. vs. Teves, et al. 29
Furthermore, they contend, since the liability of private respondents has been clearly established, to bar petitioners' right of
recovery on a mere technicality will pave the way for unjust enrichment. 30 Contrarily, SLI asserts and defends the
reasonableness of the time limitation within which claims should be filed with the carrier; the necessity for the same, as this
condition for the carrier's liability is uniformly adopted by nearly all shipping companies if they are to survive the concomitant
rigors and risks of the shipping industry; and the countervailing balance afforded by such stipulation to the legal presumption
of negligence under which the carrier labors in the event of loss of or damage to the cargo. 31
It has long been held that Article 366 of the Code of Commerce applies not only to overland and river transportation but also
to maritime
transportation. 32 Moreover, we agree that in this jurisdiction, as viewed from another angle, it is more accurate to state that the
filing of a claim with the carrier within the time limitation therefor under Article 366 actually constitutes a condition precedent
to the accrual of a right of action against a carrier for damages caused to the merchandise. The shipper or the consignee must
allege and prove the fulfillment of the condition and if he omits such allegations and proof, no right of action against the
carrier can accrue in his favor. As the requirements in Article 366, restated with a slight modification in the assailed paragraph
5 of the bills of lading, are reasonable conditions precedent, they are not limitations of action. 33 Being conditions precedent,
their performance must precede a suit for enforcement 34and the vesting of the right to file spit does not take place until the
happening of these conditions. 35
Now, before an action can properly be commenced all the essential elements of the cause of action must be in existence, that
is, the cause of action must be complete. All valid conditions precedent to the institution of the particular action, whether
prescribed by statute, fixed by agreement of the parties or implied by law must be performed or complied with before
commencing the action, unless the conduct of the adverse party has been such as to prevent or waive performance or excuse
non-performance of the condition. 36
It bears restating that a right of action is the right to presently enforce a cause of action, while a cause of action consists of the
operative facts which give rise to such right of action. The right of action does not arise until the performance of all conditions
precedent to the action and may be taken away by the running of the statute of limitations, through estoppel, or by other
circumstances which do not affect the cause of action. 37 Performance or fulfillment of all conditions precedent upon which a
right of action depends must be sufficiently alleged, 38considering that the burden of proof to show that a party has a right of
action is upon the person initiating the suit. 39
More particularly, where the contract of shipment contains a reasonable requirement of giving notice of loss of or injury to the
goods, the giving of such notice is a condition precedent to the action for loss or injury or the right to enforce the carrier's
liability. Such requirement is not an empty formalism. The fundamental reason or purpose of such a stipulation is not to relieve
the carrier from just liability, but reasonably to inform it that the shipment has been damaged and that it is charged with
liability therefor, and to give it an opportunity to examine the nature and extent of the injury. This protects the carrier by
affording it an opportunity to make an investigation of a claim while the matter is fresh and easily investigated so as to
safeguard itself from false and fraudulent claims. 40
Stipulations in bills of lading or other contracts of shipment which require notice of claim for loss of or damage to goods
shipped in order to impose liability on the carrier operate to prevent the enforcement of the contract when not complied with,
that is, notice is a condition precedent and the carrier is not liable if notice is not given in accordance with the stipulation, 41 as
the failure to comply with such a stipulation in a contract of carriage with respect to notice of loss or claim for damage bars
recovery for the loss or damage suffered. 42
On the other hand, the validity of a contractual limitation of time for filing the suit itself against a carrier shorter than the
statutory period therefor has generally been upheld as such stipulation merely affects the shipper's remedy and does not affect
the liability of the carrier. In the absence of any statutory limitation and subject only to the requirement on the reasonableness
of the stipulated limitation period, the parties to a contract of carriage may fix by agreement a shorter time for the bringing of
suit on a claim for the loss of or damage to the shipment than that provided by the statute of limitations. Such limitation is not
contrary to public policy for it does not in any way defeat the complete vestiture of the right to recover, but merely requires the
assertion of that right by action at an earlier period than would be necessary to defeat it through the operation of the ordinary
statute of limitations. 43
In the case at bar, there is neither any showing of compliance by petitioners with the requirement for the filing of a notice of
claim within the prescribed period nor any allegation to that effect. It may then be said that while petitioners may possibly
have a cause of action, for failure to comply with the above condition precedent they lost whatever right of action they may
have in their favor or, token in another sense, that remedial right or right to relief had prescribed. 44
The shipment in question was discharged into the custody of the consignee on May 15, 1977, and it was from this date that
petitioners' cause of action accrued, with thirty (30) days therefrom within which to file a claim with the carrier for any loss or
damage which may have been suffered by the cargo and thereby perfect their right of action. The findings of respondent court
as supported by petitioners' formal offer of evidence in the court below show that the claim was filed with SLI only on April
28, 1978, way beyond the period provided in the bills of lading 45 and violative of the contractual provision, the inevitable
consequence of which is the loss of petitioners' remedy or right to sue. Even the filing of the complaint on May 12, 1978 is of
no remedial or practical consequence, since the time limits for the filing thereof, whether viewed as a condition precedent or as
a prescriptive period, would in this case be productive of the same result, that is, that petitioners had no right of action to begin
with or, at any rate, their claim was time-barred.
What the court finds rather odd is the fact that petitioner TPI filed a provisional claim with DVAPSI as early as June 14,
1977 46 and, as found by the trial court, a survey fixing the extent of loss of and/or damage to the cargo was conducted on July
8, 1977 at the instance of petitioners. 47 If petitioners had the opportunity and awareness to file such provisional claim and to
cause a survey to be conducted soon after the discharge of the cargo, then they could very easily have filed the necessary
formal, or even a provisional, claim with SLI itself 48 within the stipulated period therefor, instead of doing so only on April
28, 1978 despite the vessel's arrival at the port of destination on May 15, 1977. Their failure to timely act brings us to no
inference other than the fact that petitioners slept on their rights and they must now face the consequences of such inaction.
The ratiocination of the Court of Appeals on this aspect is worth reproducing:
xxx xxx xxx
It must be noted, at this juncture, that the aforestated time limitation in the presentation of claim for
loss or damage, is but a restatement of the rule prescribed under Art. 366 of the Code of Commerce
which reads as follows:
Art. 366. Within the twenty-four hours following the receipt of the
merchandise, the claim against the carrier for damage or average which
may be found therein upon opening the packages, may be made, provided
that the indications of the damage or average which gives rise to the claim
cannot be ascertained from the outside part of the packages, in which case
the claims shall be admitted only at the time of the receipt.
After the periods mentioned have elapsed, or the transportation charges
have been paid, no claim shall be admitted against the carrier with regard to
the condition in which the goods transported were delivered.
Gleanable therefrom is the fact that subject stipulation even lengthened the period for presentation of
claims thereunder. Such modification has been sanctioned by the Supreme Court. In the case of Ong
Yet (M)ua Hardware Co., Inc. vs. Mitsui Steamship Co., Ltd., et al., 59 O.G. No. 17, p. 2764, it ruled
that Art. 366 of the Code of Commerce can be modified by a bill of lading prescribing the period of
90 days after arrival of the ship, for filing of written claim with the carrier or agent, instead of the 24-
hour time limit after delivery provided in the aforecited legal provision.
Tested, too, under paragraph 5 of said Bill of Lading, it is crystal clear that the commencement of the
instant suit on May 12, 1978 was indeed fatally late. In view of the express provision that "suits
arising from
. . . damage or loss shall be instituted within 60 days from date of accrual of right of action," the
present action necessarily fails on ground of prescription.
In the absence of constitutional or statutory prohibition, it is usually held or
recognized that it is competent for the parties to a contract of shipment to
agree on a limitation of time shorter than the statutory period, within which
action for breach of the contract shall be brought, and such limitation will
be enforced if reasonable . . . (13 C.J.S. 496-497)
A perusal of the pertinent provisions of law on the matter would disclose that there is no
constitutional or statutory prohibition infirming paragraph 5 of subject Bill of Lading. The stipulated
period of 60 days is reasonable enough for appellees to ascertain the facts and thereafter to sue, if
need be, and the 60-day period agreed upon by the parties which shortened the statutory period
within which to bring action for breach of contract is valid and binding. . . . (Emphasis in the original
text.) 49
As explained above, the shortened period for filing suit is not unreasonable and has in fact been generally recognized to be a
valid business practice in the shipping industry. Petitioners' advertence to the Court's holding in the Southern
Lines case, supra, is futile as what was involved was a claim for refund of excess payment. We ruled therein that non-
compliance with the requirement of filing a notice of claim under Article 366 of the Code of Commerce does not affect the
consignee's right of action against the carrier because said requirement applies only to cases for recovery of damages on
account of loss of or damage to cargo, not to an action for refund of overpayment, and on the further consideration that neither
the Code of Commerce nor the bills of lading therein provided any time limitation for suing for refund of money paid in
excess, except only that it be filed within a reasonable time.
The ruling in Sweet Lines categorizing the stipulated limitation on venue of action provided in the subject bill of lading as a
contract of adhesion and, under the circumstances therein, void for being contrary to public policy is evidently likewise
unavailing in view of the discrete environmental facts involved and the fact that the restriction therein was unreasonable. In
any case, Ong Yiu vs. Court of Appeals, et al., 50 instructs us that "contracts of adhesion wherein one party imposes a ready-
made form of contract on the other . . . are contracts not entirely prohibited. The one who adheres to the contract is in reality
free to reject it entirely; if he adheres he gives his consent." In the present case, not even an allegation of ignorance of a party
excuses non-compliance with the contractual stipulations since the responsibility for ensuring full comprehension of the
provisions of a contract of carriage devolves not on the carrier but on the owner, shipper, or consignee as the case may be.
While it is true that substantial compliance with provisions on filing of claim for loss of or damage to cargo may sometimes
suffice, the invocation of such an assumption must be viewed vis-a-vis the object or purpose which such a provision seeks to
attain and that is to afford the carrier a reasonable opportunity to determine the merits and validity of the claim and to protect
itself against unfounded impositions. 51 Petitioners' would nevertheless adopt an adamant posture hinged on the issuance by
SLI of a "Report on Losses and Damages," dated May 15, 1977, 52 from which petitioners theorize that this charges private
respondents with actual knowledge of the loss and damage involved in the present case as would obviate the need for or render
superfluous the filing of a claim within the stipulated period.
Withal, it has merely to be pointed out that the aforementioned report bears this notation at the lower part thereof: "Damaged
by Mla. labor upon unloading; B/L noted at port of origin," as an explanation for the cause of loss of and/or damage to the
cargo, together with an iterative note stating that "(t)his Copy should be submitted together with your claim invoice or receipt
within 30 days from date of issue otherwise your claim will not be honored."
Moreover, knowledge on the part of the carrier of the loss of or damage to the goods deducible from the issuance of said report
is not equivalent to nor does it approximate the legal purpose served by the filing of the requisite claim, that is, to promptly
apprise the carrier about a consignee's intention to file a claim and thus cause the prompt investigation of the veracity and
merit thereof for its protection. It would be an unfair imposition to require the carrier, upon discovery in the process of
preparing the report on losses or damages of any and all such loss or damage, to presume the existence of a claim against it
when at that time the carrier is expectedly concerned merely with accounting for each and every shipment and assessing its
condition. Unless and until a notice of claim is therewith timely filed, the carrier cannot be expected to presume that for every
loss or damage tallied, a corresponding claim therefor has been filed or is already in existence as would alert it to the urgency
for an immediate investigation of the soundness of the claim. The report on losses and damages is not the claim referred to and
required by the bills of lading for it does not fix responsibility for the loss or damage, but merely states the condition of the
goods shipped. The claim contemplated herein, in whatever form, must be something more than a notice that the goods have
been lost or damaged; it must contain a claim for compensation or indicate an intent to claim. 53
Thus, to put the legal effect of respondent carrier's report on losses or damages, the preparation of which is standard procedure
upon unloading of cargo at the port of destination, on the same level as that of a notice of claim by imploring substantial
compliance is definitely farfetched. Besides, the cited notation on the carrier's report itself makes it clear that the filing of a
notice of claim in any case is imperative if carrier is to be held liable at all for the loss of or damage to cargo.
Turning now to respondent DVAPSI and considering that whatever right of action petitioners may have against respondent
carrier was lost due to their failure to seasonably file the requisite claim, it would be awkward, to say the least, that by some
convenient process of elimination DVAPSI should proverbially be left holding the bag, and it would be pure speculation to by the time the cargo was discharged to DVAPSI, loss or damage had already occurred and that the same could not have
assume that DVAPSI is probably responsible for the loss of or damage to cargo. Unlike a common carrier, an arrastre operator possibly occurred while the same was in the custody of DVAPSI, as demonstrated by the observations of the trial court quoted
does not labor under a presumption of negligence in case of loss, destruction or deterioration of goods discharged into its at the start of this opinion.
custody. In other words, to hold an arrastre operator liable for loss of and/or damage to goods entrusted to it there must be
preponderant evidence that it did not exercise due diligence in the handling and care of the goods.
ACCORDINGLY, on the foregoing premises, the instant petition is DENIED and the dismissal of the complaint in the court a
quo as decreed by respondent Court of Appeals in its challenged judgment is hereby AFFIRMED.
Petitioners failed to pinpoint liability on any of the original defendants and in this seemingly wild goose-chase, they cannot
quite put their finger down on when, where, how and under whose responsibility the loss or damage probably occurred, or as
stated in paragraph 8 of their basic complaint filed in the court below, whether "(u)pon discharge of the cargoes from the
original carrying vessel, the SS VISHVA YASH," and/or upon discharge of the cargoes from the interisland vessel the MV
"SWEET LOVE," in Davao City and later while in the custody of defendant arrastre operator. 54

The testimony of petitioners' own witness, Roberto Cabato, Jr., Marine and Aviation Claims Manager of petitioner Philamgen,
was definitely inconclusive and the responsibility for the loss or damage could still not be ascertained therefrom:

Q In other words, Mr. Cabato, you only computed the loss on the basis of
the figures submitted to you and based on the documents like the survey
certificate and the certificate of the arrastre?

A Yes, sir.

Q Therefore, Mr. Cabato, you have no idea how or where these losses were
incurred?

A No, sir.

xxx xxx xxx

Q Mr. Witness, you said that you processed and investigated the claim
involving the shipment in question. Is it not a fact that in your processing
and investigation you considered how the shipment was transported?
Where the losses could have occurred and what is the extent of the
respective responsibilities of the bailees and/or carriers involved?

xxx xxx xxx

A With respect to the shipment being transported, we have of course to get

into it in order to check whether the shipment coming in to this port is in
accordance with the policy condition, like in this particular case, the
shipment was transported to Manila and transhipped through an interisland
vessel in accordance with the policy. With respect to the losses, we have a
general view where losses could have occurred. Of course we will have to
consider the different bailees wherein the shipment must have passed
through, like the ocean vessel, the interisland vessel and the arrastre, but
definitely at that point and time we cannot determine the extent of each
liability. We are only interested at that point and time in the liability as
regards the underwriter in accordance with the policy that we issued.

xxx xxx xxx

Q Mr. Witness, from the documents, namely, the survey of Manila

Adjusters and Surveyors Company, the survey of Davao Arrastre
contractor and the bills of lading issued by the defendant Sweet Lines, will
you be able to tell the respective liabilities of the bailees and/or carriers
concerned?
G.R. No. 105813 September 12, 1994

A No, sir. (Emphasis ours.) 55

CONCEPCION M. CATUIRA, petitioner,
vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Neither did nor could the trial court, much less the Court of Appeals, precisely establish the stage in the course of the shipment
when the goods were lost, destroyed or damaged. What can only be inferred from the factual findings of the trial court is that
BELLOSILLO, J.: Court in hearing the testimony of the witness that after all according to her was
inadmissible. And for her failure to make known her objection at the proper time, the
procedural error or defect was
Is the testimony of a witness inadmissible in evidence if not formally offered at the time the witness is called to
waived. 9
testify, as required in Sec. 35, in relation to Sec. 34, Rule 132, of the Revised Rules on Evidence? 1

On 8 June 1990, two (2) Informations for estafa were filed against petitioner Concepcion M. Catuira with the
Regional Trial Court of Calamba, Laguna, for having issued two (2) checks in payment of her obligation to
private complainant Maxima Ocampo when petitioner had no sufficient funds to cover the same, which checks
upon presentment for payment were dishonored by the drawee bank. 2
After the prosecution had presented its evidence, petitioner Concepcion M. Catuira filed a Motion to Dismiss
(by way of Demurrer to Evidence) under Sec. 15, Rule 119, of the 1985 Revised Rules on Criminal
Procedure. 3 Petitioner contended that the testimony of private respondent Ocampo was inadmissible in
evidence since it was not properly introduced when she was called to testify as mandated in Sec. 35, Rule 132,
of the Revised Rules on Evidence. Petitioner also argued that even if the testimony of private respondent was
considered, the evidence of the prosecution still failed to prove that the checks were issued in payment of an
obligation.
On 26 July 1991, the trial court denied the motion to dismiss for lack of merit. On 18 October 1991, it likewise
denied the motion to reconsider its denial of the motion to dismiss.
On 4 November 1991 petitioner elevated her case to the Court of Appeals through a petition for certiorari,
prohibition and mandamus. In a similar move, the appellate court rejected her petition and sustained the trial
court in its denial of the motion to dismiss. Hence, this recourse seeking to annul the decision of the Court of
Appeals rendered on 27 February 1992 as well as its resolution of 1 June 1992. 4
Indeed, the rationale behind Sec. 34, Rule 132, is manifest in the minutes of the Revision of Rules
Committee. 10Thus —
The new rule would require the testimony of a witness to offer it at the time the witness
is called to testify. This is the best time to offer the testimony so that the court's time
will not be wasted. Since it can right away rule on whether the testimony is not
necessary because it is irrelevant or immaterial.
If petitioner was genuinely concerned with the ends of justice being served, her actuations should have been
otherwise. Instead, she attempted to capitalize on a mere technicality to have the estafa case against her
dismissed. 11 But even assuming that petitioner's objection was timely, it was at best pointless and superfluous.
For there is no debating the fact that the testimony of complaining witness is relevant and material in the
criminal prosecution of petitioner for estafa. It is inconceivable that a situation could exist wherein an offended
party's testimony is immaterial in a criminal proceeding. Consequently, even if the offer was belatedly made
by the prosecution, there is no reason for the testimony to be expunged from the record. On the contrary, the
unoffered oral evidence must be admitted if only to satisfy the court's sense of justice and fairness and to stress
that substantial justice may not be denied merely on the ground of technicality. 12
WHEREFORE, the decision of the Court of Appeals sustaining the order of the Regional Trial Court of
Calamba, Laguna, Br. 35, denying petitioner's motion to dismiss (by way of demurrer to evidence) is
AFFIRMED. Costs against petitioner.

Petitioner claims that the Court of Appeals erred when it accepted the testimony of private respondent despite
the undisputed fact that it was not offered at the time she was called to testify; her testimony should have been
stricken off the record pursuant to Sec. 34, Rule 132, which prohibits the court from considering evidence
which has not been formally offered; and, it was error for respondent appellate court to declare that petitioner's
objection was not done at the proper time since under Sec. 36, Rule 132, 5 objection to evidence offered orally
must be made immediately after the offer is made. Evidently, petitioner could not have waived her right to
object to the admissibility of the testimony of private respondent since the rule requires that it must be done
only at the time such testimony is presented and the records plainly show that the opportunity for petitioner to
object only came when the prosecution attempted, albeit belatedly, to offer the testimony after it has rested its
case. 6

The petition is devoid of merit. The reason for requiring that evidence be formally introduced is to enable the
court to rule intelligently upon the objection to the questions which have been asked. 7 As a general rule, the
proponent must show its relevancy, materiality and competency. Where the proponent offers evidence deemed
by counsel of the adverse party to be inadmissible for any reason, the latter has the right to object. But such
right is a mere privilege which can be waived. Necessarily, the objection must be made at the earliest
opportunity, lest silence when there is opportunity to speak may operate as a waiver of objections. 8

Thus, while it is true that the prosecution failed to offer the questioned testimony when private respondent was
called to the witness stand, petitioner waived this procedural error by failing to object at the appropriate
time, i.e., when the ground for objection became reasonably apparent the moment private respondent was
called to testify without any prior offer having been made by the proponent. Most apt is the observation of the
appellate court:

While it is true that the prosecution failed to offer in evidence the testimony of the G.R. No. 116149 November 23, 1995
complaining witness upon calling her to testify and that it was only after her testimony
and after the petitioner moved that it be stricken that the offer was made, the respondent
Court did not gravely err in not dismissing the case against the petitioner on the ground ELVIRA MATO VDA. DE OÑATE, substituted by her heirs MARIA MATO-ALAMEDA, AIDA
invoked. For, she should have objected to the testimony of the complaining witness MATO, ZOE MATO, PACITA MATO and JUAN MATO II, petitioners,
when it was not first offered upon calling her and should not have waited in ambush vs. THE COURT OF APPEALS and EULALIA M. TAGUBA, respondents
after she had already finished testifying. By so doing she did not save the time of the
KAPUNAN, J.:
Petitioners challenge the decision of the trial court, as affirmed by respondent court, for lack of basis. They
argue that the lower court and the Court of Appeals erred in considering evidence not formally offered by
private respondent in accordance with the Rules of Court.
The controversy involves Lot No. 1571, a riceland located at Toran, Aparri, Cagayan covered by Transfer
Certificate of Title No. T-5168. On January 10, 1980, an action for specific performance with damages was
filed in the then Court of First Instance of Cagayan, Branch II by Eulalia Marcita Taguba in her capacity as
administratrix of the estate of the deceased Leonor Taguba against Elvira Mato Vda. de Oñate.
As the trial court found, the deceased Leonor Taguba bought the subject parcel of land from Elvira Mato Vda.
de Oñate sometime in 1976 for a consideration of P5,000.00 payable in four (4) installments. Accordingly, she
paid P2,250.00 on January 20, 1976,1 P750.00 on February 23, 1976,2 P1,000.00 on March 20, 19763 and
P1,000.00 on July 29, 1976.4 After full payment was made on July 29, 1976, the parties however failed to
reduce their contract in writing. On December 30, 1976, Leonor Taguba died. The instant complaint was filed
when demand was made upon Elvira Mato Vda. de Oñate to execute a public document of sale in favor of the
deceased and her heirs and she refused.
The trial court rejected the petitioners' defense that Elvira Mato Vda. de Oñate contracted a verbal loan from
Leonor Taguba in the amount of P12,000.00 payable within a period of 4 years with 12% interest. Also
disbelieved was the allegation that two (2) parcels of land covered by TCT No. 5167 and TCT No. 5168 (the
land in dispute) were mortgaged by Elvira Mato Vda. de Oñate to Leonor Taguba as security for the payment
of the loan and that only P5,000.00 of the P12,000.00 loan was given by Taguba.
On July 12, 1990, the trial court rendered judgment, the dispositive portion of which reads:
WHEREFORE judgment is hereby rendered as follows:
1. Declaring the agreement between the late Leonor Taguba and deceased defendant
Elvira Mato Vda. de Oñate entered into on 20 January 1976, as a contract of "to sell";
2. Ordering the defendants to execute the proper document to give effect to the contract
within thirty (30) days, otherwise, this Court shall be forced to order the cancellation of
the certificate of title covering Lot No. 1571 of the Aparri Cadastre, and the Register of
Deeds of Cagayan to issue another certificate of title in the name of the Estate of Leonor
Taguba;
3. Ordering the plaintiff to prosecute their money claims against deceased defendant's
estate in accordance with Section 21, Rule 3 of the Rules of Court.
Costs de oficio.
SO ORDERED. 5
Petitioners appealed to respondent Court of Appeals faulting the trial court's factual findings. They contended
that the trial court erred when it took cognizance of the plaintiff's evidence, particularly Exhibits "F," "F-1,"
"F-2" and "F-3", which had been marked but never formally submitted in evidence as required by the Rules of
Court. Consequently, it was claimed that the trial court erred in relying on the said evidence in deciding for
private respondents.
On December 13, 1993, respondent court affirmed the decision of the trial court.6 In sustaining the lower court,
the respondent court held that Exhibits "F, "F-1," "F-2" and "F3" though not formally offered, may still be
admitted in evidence for having complied with the two (2) requisites for admission enunciated in our
jurisprudence,7 that is, (1) evidence must be duly identified by testimony duly recorded and (2) it must be
incorporated in the records of the case.
A motion for reconsideration of said decision was denied for lack of merit on June 13, 1994.8
Hence, the present petition for review. Petitioners ascribe to the respondent court the following errors, to wit:
THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING THAT
DOCUMENTS WHICH ARE MARKED AS EXHIBITS BUT NOT FORMALLY
OFFERED ARE NOT TO BE CONSIDERED BY THE COURT;
THE HONORABLE COURT OF APPEALS ERRED IN NOT RULING THAT SINCE
THERE WAS NO FIXED PURCHASE PRICE OF THE LAND AGREED UPON BY
THE PARTIES, SPECIFIC PERFORMANCE COULD NOT BE AVAILED BY THE
BUYER TO FORCE THE OWNER OF THE LAND TO EXECUTE A DEED OF
SALE.9
Section 35 (now Section 34) of Rule 132 of the Rules of Court provides:
Sec. 35. Offer of evidence. — The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.
From the foregoing provision, it is clear that for evidence to be considered, the same must be formally offered.
Corollarily, the mere fact that a particular document is identified and marked as an exhibit does not mean that
it has already been offered as part of the evidence of a party. In Interpacific Transit, Inc. v. Aviles,10 we had the
occasion to make a distinction between identification of documentary evidence and its formal offer as an
exhibit. We said that the first is done in the course of the trial and is accompanied by the marking of the
evidence as an exhibit while the second is done only when the party rests its case and not before. A party,
therefore, may opt to formally offer his evidence if he believes that it will advance his cause or not to do so at
all. In the event he chooses to do the latter, the trial court is not authorized by the Rules to consider the same.
However, in People v. Napat-a11 citing People v. Mate,12 we relaxed the foregoing rule and allowed evidence
not formally offered to be admitted and considered by the trial court provided the following requirements are
present, viz.: first, the same must have been duly identified by testimony duly recorded and, second, the same
must have been incorporated in the records of the case.
In the case at bench, we find, as respondent court did, that these requisites have been satisfied.
The evidence in question refers to Exhibits "F," receipt for P2,250.00 dated January 20, 1976; "F-1," receipt
for P750.00 dated February 23, 1976, "F-2," receipt for P1,000.00 dated March 20, 1976; and "F-3," receipt for
another P1,000.00 dated July 29, 1976, all showing the varying amounts paid by Leonor Taguba to Elvira
Mato Vda. de Oñate. These exhibits were marked at the pre-trial for the purpose of identifying them. In fact,
the payment of P5,000.00 was admitted by herein petitioners in the same pre-trial. On March 5, 1984, Eulalia
Marcita Taguba identified the said exhibits in her testimony which was duly recorded. She testified as follows:
ATTY. LUCERO:
Q Now, you said that the offer of P5,000.00 selling price accepted
by your sister and that she paid P2,250.00 on January 20, 1976
(Exhibit "F") how about the balance on the consideration?
A The amount of Seven hundred fifty (P750.00) pesos to make it
Three thousand (P3,000.00) pesos was paid on February 23, 1976
and the two (2) at One thousand pesos (P1,000.00) were paid on
March 20, 1976 and July 29, 1976, ma'am.
 COURT: Likewise, extant from the records is the witness' explanation of the contents of each of the said
exhibits. Also telling is petitioners' counsel vigorous cross-examination of the said witness who
testified on the exhibits in question.16
Was that admitted by the other party?

Herein subject exhibits were also incorporated and made part of the records of this case. 17
ATTY. LUCERO:

Finally, petitioners' allegation that an action for specific performance cannot be availed of in this case because
May we put it on record that the amount of P750.00 was paid by
the parties did not agree on a fixed price is likewise devoid of merit. Private respondent's evidence and
Miss Leonor B. Taguba on February 23, 1976, Your Honor.
testimony remain unrebutted that the contract price for the parcel of land in question is P5,000.00.

COURT:
WHEREFORE, finding no reversible error on the part of respondent court, the decision appealed from is
hereby AFFIRMED in toto.
First receipt is P2,250.00.13

xxx xxx xxx

ATTY. LUCERO:

The receipt for the amount of Two Thousand two hundred fifty
(P2,250.00) pesos be marked as Exhibit "F", Your Honor.

COURT:

Mark it as Exhibit "F."14

ATTY. LUCERO:

May we request Your Honor that the amount of 750.00 receipt be

marked as Exhibit "F-1" dated February 23, 1976; Exhibit "F-2"
is the receipt for P1,000.00 paid on March 20, 1976; all in all, the
amount is P5,000.00 including Exhibit "J" or rather Exhibit "F-3"
which is the amount of P1,000.00 and was paid apparently on
July 29, 1976 as partial payment for the parcel of land covered by
TCT No. 5167 (sic),Your Honor.

xxx xxx xxx

COURT:

Q Will you look at Exhibit "F3" and tell the Court if you know
this Exhibit and why do you know this?

A This was the receipt prepared by my sister paid to Elvira M.

Vda. de Oñate the amount of One thousand (P1,000.00) pesos as
the payment of the land she purchased.

Q Why do you say that the same receipt was prepared by your
late sister Leonor Taguba?

A Yes ma'am because I was present when she made that receipt. 15