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(p. 1, Exhibit E)
Forthwith, we must stress that with regard to the
credibility of Melencio Manalang, Sr. as witness, we find
no reason to disturb the trial court's findings. The settled The witness reiterated the material points of this sworn
and time-tested jurisprudence is that the findings and statement during his testimony before the trial court. He
conclusions of the trial court on the credibility of also established the basis for the admissibility of the
witnesses enjoy the respect of appellate courts for the dying declaration, as an exception to the hearsay rule,
reason that trial courts have the advantage of observing to wit:
the demeanor of witnesses as they testify (People vs.
Cabiles, G.R. No. 112035, January 16, 1998; People vs. COPY
Moran, 241 SCRA 709 [1995]; People vs. Gamiao, 240
SCRA 254 [1995]). In the absence of any arbitrariness Q. You said that the victim when he arrived at your
in the trial court's findings and evaluation of evidence house he was holding his wounds?
which tends to show that it overlooked certain material
facts and circumstances, such findings and evaluation of
A. Yes, your honor.
evidence should be respected on review (People vs. Dio,
226 SCRA 176 [1993]). The presiding judge of the trial
court had the opportunity to actually observe the Q. Immediately when he arrived at your house, what did
conduct and demeanor of the witnesses on the witness he do?
stand while being asked direct-examination questions
by the prosecution, cross-examination questions by the A. He sat down, your honor.
defense, as well as clarificatory questions by the trial
judge himself. Between the trial judge and this Court, Q. He sat down, where?
A. He sat down on the floor, your honor. requisites must concur, namely: that the declaration
must concern the cause and surrounding circumstances
Q. And, you talk at him? of the declarant's death; that at the time the declaration
was made, the declarant was under a consciousness of
an impending death; that the declarant is competent as
A. Yes, your honor.
a witness; and that the declaration is offered in a
criminal case for homicide, murder or parricide, in which
Q. And, he was just sitting on the floor, and was he was the declarant is a victim (People vs. Israel, 231 SCRA
holding his wounds? 155 [1994]; People vs. Lazarte, 200 SCRA 361 [1991]).
A. Yes, your honor. Capitalizing on the fact that the victim was still able to
stand and walk even after the first declaration was
Q. And, did you see any blood coming from his wounds? made, accused-appellant contends that there could not
have possibly been a belief of a looming and impending
A. Yes, your honor. death on the part of the victim.
Q. Now, did you ask him how he felt? We cannot quite agree. From the established facts in the
case at bar, the trial court correctly considered the
declaration of the victim a dying declaration and,
A. He told me to bring him to the hospital, your honor. therefore, admissible. The declarant was conscious of
his impending death. This may be gleaned not only from
Q. Did he tell you why he should be taken to the the victim's insistence right after he reached their house
hospital? that he should immediately be brought to the hospital
and that he was becoming weaker by the moment, but
A. Because he is getting weak, your honor. also from the serious nature of his wounds (People vs.
Sarabia, 127 SCRA 100 [1984] and the fact that the said
victim died shortly afterwards (People v. Araja, 105
Q. Now, did you ask him why he was getting weak?
SCRA 133 [1981]).
As a rule, a dying declaration is hearsay and is From a perusal of the decision of the trial court, one gets
inadmissible as evidence. In order that a dying the impression that the supposed eyewitness account
declaration may be admissible as evidence, four was heavily relied upon. Thus, on motion for
reconsideration, accused-appellant pointed to the companions ganged up on the victim, who had no inkling
inevitable fact that because of retraction by the of any impending attack, having placed himself in the
supposed eyewitness of the sworn statement executed safekeeping of persons who then turned vicious
by him before the investigating officer, full credence assailants.
thereto may no longer be accorded. The trial court
justified the conviction anyway, upon the strength of the The defense of alibi presents itself to be very weak vis-
dying declaration as related by Melencio Manalang, Sr. à-vis the evidence adduced by the prosecution pointing
to accused-appellant as the perpetrator of the crime.
The court has re-assessed the evidence of the Besides, as correctly pointed out by the Solicitor General
prosecution minus the supposed eyewitness account to in the People's Brief.
determine whether it would be correct to convict
accused-appellant of murder, and not simple homicide. For alibi to prosper, it would not be enough for the
This Court finds ample basis to uphold the conviction of accused to prove that he has been elsewhere when the
accused-appellant for the killing of Melencio Manalang, crime was committed but he must further demonstrate
Jr. qualified by treachery, as alleged in the Information. that it would have been physically impossible for him to
be at the scene of the crime at the time of its
While the victim was being brought to the Perpetual Help commission. (People vs. Esquilona, 248 SCRA 139
Hospital at Las Piñas, Metro Manila boarded on a jeep [1995]).
hired for the purpose, the victim related the following to
his father. (pp. 8-9, Appellee's Brief.)
It seems fairly established, therefore, that more than The award of actual and compensatory damages in the
one person attacked the victim. While he was being case at bar must, therefore, be reduced to the amount
duly proved at the trial which is to P23,217.65.
stabbed by accused-appellant, some of the companions
of accused-appellant were holding the victim in a
defenseless position. The manner in which the stabbing WHEREFORE, premises considered, the decision
was done tended directly and specially to ensure its appealed from is hereby AFFIRMED with the
execution, affording the victim no chance to put up any MODIFICATION as to the actual damages as
defense. This constitutes alevosia. The killing, hereinabove indicated. No special pronouncement is
therefore, was qualified to murder. It is to be noted also made as to costs.
that accused-appellant and his companions were
supposed to assist the victim home. However, instead SO ORDERED.
of bringing him safely home, accused-appellant and his
G.R. No. L-48883 August 6, 1980 account of said promised consideration
or prize which was accepted, the said
THE PEOPLE OF THE PHILIPPINES, petitioner, accused Mario Nemenio y delos
vs. Santos and Salim Doe, did then and
HON. ALBERTO V. SENERIS, As District Judge, there, willfully and feloniously assault,
Court of First Instance, Branch II, Sixteenth attack and stab with a knife with which
Judicial District, Zamboanga City and PILAR they were conveniently provided, the
ANGELES DE PIMENTEL, respondents. person of said Eduardo Pimentel y
Orario, thereby inflicting upon the latter
MAKASIAR, J.: mortal wound which directly caused his
death; that the above-named accused
Moises Andaya y Julkanain although
The legal issue posed in this special civil action
without having participated directly in
for certiorari, with prayer for a writ of preliminary
the commission of the offense above-
injunction, spawned by the August 4, 1978 order of
described, took part prior to its
respondent judge in Criminal Case No. 750 for
commission by then and there acting
parricide against therein accused Pilar Angeles de
as the contact man in the execution of
Pimentel, hereinafter referred to as private respondent,
their plot to kill said Eduardo Pimentel
is the admissibility in evidence of the testimony of a
y Orario.
prosecution witness in the said criminal case who dies
before completion of his cross-examination. That issue
is crucial to the fate of private respondent, considering Contrary to law (p. 13, rec.)
that the deceased prosecution witness "... is the most
vital and the only eyewitness available to the On January 17, 1978, private respondent, assisted by
prosecution against respondent Pilar Angeles de her counsel, moved and was granted a separate trial
Pimentel for the commission of the gruesome crime of (p. 16, rec.).
parricide ..." (p. 10, rec.).
On February 22, 1978, the accused Mario Nemenio y
The factual background of the action is undisputed. delos Santos, assisted by his counsel de oficio,
entered on arraignment a plea of guilty. Respondent
On February 8, 1978, Assistant Provincial Fiscal judge thereafter rendered judgment convicting
Camilo E. Tamin, who was then on official detail with accused Mario Nemenio y delos Santos of murder —
the office of the City Fiscal, Zamboanga City, filed with qualified by the circumstance of prize and reward-and
the Court of First Instance, Sixteenth Judicial District, not of parricide as charged in the information; because
Zamboanga City, an amended information for parricide he "... had no relation whatsoever to the deceased
in Criminal Case No. 1742, charging herein private Eduardo Pimentel ..." and appreciating the mitigating
respondent as principal by inducement, Mario circumstances of voluntary plea of guilty and lack of
Nemenio y delos Santos and Salim Doe as principals instruction and education, imposed on him the
by direct participation and Moises Andaya y Julkanain, indeterminate penalty of eight (8) years of prision
as accomplice, in the fatal stabbing on September 6, mayor as the minimum, to fourteen (14) years and
1977 in Zamboanga City of Eduardo Pimentel y Orario, eight (8) months of reclusion temporal as the
the lawful husband of private respondent. The maximum; to indemnify the heirs of the deceased
amended information reads: Eduardo Pimentel the amount of P12,000.00 and to
pay one-fourth (¼) of the costs of the proceedings (pp.
15-19, rec.).
That on or about September 6, 1977, in
the City of Zamboanga, Philippines,
and within the jurisdiction of this Court, Immediately after promulgation of judgment, accused
the above-named accused Pilar Mario Nemenio y delos Santos offered to testify against
Angeles de Pimentel, with deliberate his co-accused, herein private respondent, in her
intent to kill her husband, Eduardo separate trial earlier granted by the respondent judge
Pimentel y Orario, with whom she was in the same criminal case, now numbered 750.
united in lawful wedlock, did then and Allowed, he testified as prosecution witness on
there, willfully, unlawfully and February 28, March 6, and March 22, 1978 and as
feloniously, induce and offer a sum of summarized by the petitioner, his testimony on direct
money as consideration or prize to said examination contained in seventy-six (76) pages of
accused Mario Nemenio y delos transcripts of stenographic notes (pp. 21-44, 57-64,
Santos and Salim Doe to kill her said rec.), is to the effect "...that he and Salim Doe were
lawfully wedded husband Eduardo hired by respondent Pilar Angeles de Pimentel, for the
Pimentel y Orario, and because and on consideration of P3,000.00 to kill Eduardo Pimentel,
husband of respondent Pilar Angeles de Pimentel, in Salim Doe, witness Mario Nemenio and respondent
the evening of September 6, 1977, in the latter's Pilar Angeles de Pimentel to kill Eduardo Pimentel, in
residence in Zamboanga City, and that it was the latter's residence in Zamboanga City in the evening
respondent Pilar Angeles de Pimentel herself who of September 6, 1977, and also on the actual stabbing
actually pointed out the victim Eduardo Pimentel to the by witness Mario Nemenio of the victim Eduardo
witness, who then stabbed the said victim to Pimentel who was pointed out to the witness-killer by
death...That he did not know the Identity of the victim his wife, respondent Pilar Angeles de Pimentel ..." (p.
Eduardo Pimentel at the time of the stabbing in the 7, rec.). This is not disputed by private respondent.
evening of September 6, 1977. He was guided solely
by respondent Pilar Angeles de Pimentel, who pointed Continuation of the cross-examination was, as
out her victim spouse to him ..." (allegation No. 4, aforestated, set for July 3, 1978 at 8:30 o'clock in the
petition, pp. 4-5, rec.). morning.
After the prosecution had terminated on March 22, However, prosecution witness Mario Nemenio y delos
1978 the direct examination of its witness Mario Santos was shot dead by the Integrated National Police
Nemenio y delos Santos, counsel for private patrols on June 21, 1978 while allegedly escaping from
respondent moved for the holding in abeyance of the the San Ramon Prison and Penal Farm, Zamboanga
cross-examination of the said prosecution witness until City, where he was then serving his sentence.
after he (counsel) shall have been furnished with the Consequently, the completion of his cross-examination
transcripts of the stenographic notes of the direct became an impossibility.
examination of said prosecution witness (p. 47, TSN,
March 22, 1978, p. 64, rec.); allegation No. 5, petition, On July 20, 1978, petitioner, without any motion on the
p. 5, rec.). The same was granted by the respondent part of the defense for the striking out of the deceased
judge who ordered the resumption of the hearing on witness's testimony, filed with the respondent court a
April 19, 1978 (pp. 64, 94, 108, rec.). motion praying for a ruling on the admissibility of the
testimony of deceased witness Mario Nemenio y delos
But on April 19, 1978, aforesaid prosecution witness Santos.
failed to appear because he was not served with a
subpoena (p. 108, rec.). Consequently, the hearing On August 4, 1978, respondent judge issued an order
was reset for June 7, 1978 (ibid.) declaring as inadmissible the entire testimony of the
deceased witness Mario Nemenio y delos Santos on
On June 7, 1978, counsel for private respondent the principal ground "... that the defense was not able
commenced his cross- examination of prosecution to complete its cross-examination of said witness ...",
witness Mario Nemenio y delos Santos, which cross- relying on the case of Ortigas, Jr. vs. Lufthansa, etc.,
examination however was not completed on that L-28773, June 30, 1975, 64 SCRA, pp. 610,636-37).
session for lack of material time, thus:
Hence, this action, to which WE gave due course on
ATTY. CALVENTO: December 4, 1978, after considering private
respondent's comment as well as those of the Solicitor
I reserve my right to cross-examine the General and of the respondent judge who was required
witness further. to file one. On even date, WE likewise issued a
temporary restraining order "... effective immediately
COURT and until further orders from this Court enjoining
respondent District Judge from continuing with the trial
Reservation to continue the cross- of Criminal Case No. 750 (1742) entitled People of the
examination is granted. Philippines, plaintiff, versus Pilar Angeles de Pimentel,
accused, in the Court of First Instance of Zamboanga
City, Branch II."
ORDER: For lack of material time, as
prayed for and upon agreement of the
parties today's hearing is hereby Petitioner contends that respondent judge gravely
adjourned and to be resumed on July abused his discretion in ruling as inadmissible the
3, 1978 at 8:30 o'clock in the morning testimony of prosecution witness Mario Nemenio y
(p. 84, rec.). delos Santos.
Petitioner concedes that while his former counsel failed That he is the occupant of a residential building located
to make a formal offer of his documentary evidence at Forbes Park, Reservation No. 1, Baguio City which
before the trial court and that the court shall consider is the subject of an advicement addressed to him
no evidence which has not been formally offered, he emanating from the Office of the City Assessor, Baguio
maintains that the said rule is not absolute, citing the City, for assessment and declaration for taxation
case of Bravo, Jr. v. Borja; 6 that his documentary purposes;
evidence which were not formally offered in evidence
were marked during the presentation of the testimony That I am not the owner of the building in question;
of petitioner’s witnesses and were part of their
testimonies; that these evidence were part of the That the building in question is owned by Mr. Simeon
memorandum filed by him before the trial court on July B. Prudencio who is presently residing at 55 Hyacinth,
12, 1993. Roxas District, Quezon City.
Petitioner insists that even in the absence of the Further, affiant say not.8 (Underscoring supplied)
documentary evidence, his testimony as well as that of
his witnesses substantiated his claim of co-ownership
Section 38 of Rule 130 of the Rules of Court provides:
of the subject house between his late father and
respondent as found by the trial court.
SEC. 38. Declaration against interest. – The
declaration made by a person deceased, or unable to
Petitioner argues that the CA erred in finding the
testify, against the interest of the declarant, if the fact
affidavit of petitioner’s father declaring respondent as
asserted in the declaration was at the time it was made
owner of the subject house as conclusive proof that
so far contrary to the declarant's own interest, that a
respondent is the true and only owner of the house
reasonable man in his position would not have made
since the affidavit should be read in its entirety to
the declaration unless he believed it to be true, may be
determine the purpose for which it was executed.
received in evidence against himself or his successors-
in-interest and against third persons.
Petitioner further contends that since he had
established his father’s co-ownership of the subject
The theory under which declarations against interest
house, respondent has no legal right to eject him from
are received in evidence notwithstanding they are
the property; that he could not be compelled to pay
hearsay is that the necessity of the occasion renders
rentals for residing in the ground floor of the subject
the reception of such evidence advisable and, further
house; that respondent should bear his own expenses
that the reliability of such declaration asserts facts
and be adjudged liable for damages which petitioner
which are against his own pecuniary or moral interest.9
sustained for being constrained to litigate.
The affiant, Florentino, who died in 1989 was
The principal issue for resolution is whether petitioner
petitioner’s father and had adequate knowledge with
was able to prove by preponderance of evidence that
respect to the subject covered by his statement. In said
his father was a co-owner of the subject two-storey
affidavit, Florentino categorically declared that while he
residential house.
is the occupant of the residential building, he is not the
owner of the same as it is owned by respondent who is
The issue raised by petitioner is mainly factual in residing in Quezon City. It is safe to presume that he
nature. In general, only questions of law are appealable would not have made such declaration unless he
to this Court under Rule 45. However, considering that believed it to be true, as it is prejudicial to himself as
the findings of the RTC and CA are contradictory, the well as to his children’s interests as his heirs.10 A
review of the case is in order.7 declaration against interest is the best evidence which
affords the greatest certainty of the facts in
We agree with the CA that respondent had shown dispute.11 Notably, during Florentino’s lifetime, from
sufficient evidence to support his complaint for 1973, the year he executed said affidavit until 1989, the
recovery of possession of the ground floor of the year of his death, there is no showing that he had
subject house as the exclusive owner thereof. revoked such affidavit even when a criminal complaint
Respondent presented the affidavit dated September for trespass to dwelling had been filed by respondent
24, 1973 executed by Florentino and sworn to before against him (Florentino) and petitioner in 1988
the Assistant City Assessor of Baguio City, G.F. regarding the subject house which the trial court
Lagasca, which reads: dismissed due to the absence of evidence showing that
petitioner entered the house against the latter’s will and In this case, the records show that although petitioner’s
held that the remedy of respondent was to file an action counsel asked that he be allowed to offer his
for ejectment;12 and even when a complaint for documentary evidence in writing, he, however, did not
unlawful detainer was filed against petitioner and his file the same.20 Thus, the CA did not consider the
wife also in 1988 which was subsequently dismissed documentary evidence presented by petitioner.
on the ground that respondent’s action should be Section 34 of Rule 132 of the Rules of Court provides:
an accion publiciana which is beyond the jurisdiction of
the Municipal Trial Court.13 Section 34. Offer of evidence. – The court shall
consider no evidence which has not been formally
Moreover, the building plan of the residential house offered. The purpose for which the evidence is offered
dated January 16, 1973 was in the name of respondent must be specified.
and his wife. It was established during petitioner’s
cross-examination that the existing structure of the two- A formal offer is necessary because it is the duty of a
storey house was in accordance with said building judge to rest his findings of facts and his judgment only
plan.14 and strictly upon the evidence offered by the parties to
the suit.21 It is a settled rule that the mere fact that a
Notably, respondent has been religiously paying the particular document is identified and marked as an
real estate property taxes on the house declared under exhibit does not mean that it has thereby already been
his name since 1974.15 In fact, petitioner during his offered as part of the evidence of a party.22
cross-examination admitted that there was no occasion
that they paid the real estate taxes nor declared any Petitioner insists that although his documentary
portion of the house in their name.16 evidence were not formally offered, the same were
marked during the presentation of the testimonial
We agree with the CA that while tax receipts and evidence, thus it can properly be taken cognizance of
declarations are not incontrovertible evidence of relying in Bravo, Jr. v. Borja.23
ownership, they constitute at least proof that the holder
has a claim of title over the property.17 The house which Such reliance is misplaced. In Bravo Jr., we allowed
petitioner claims to be co-owned by his late father had evidence on minority by admitting the certified true
been consistently declared for taxation purposes in the copy of the birth certificate attached to a motion for bail
name of respondent, and this fact, taken with the other even if it was not formally offered in evidence. This was
circumstances above-mentioned, inexorably lead to due to the fact that the birth certificate was properly
the conclusion that respondent is the sole owner of the filed in support of a motion for bail to prove petitioner’s
house subject matter of the litigation. minority which was never challenged by the
prosecution and it already formed part of the records of
Respondent having established his claim of exclusive the case. The rule referred to in the Bravo case was
ownership of the subject property, it was incumbent Section 7 of Rule 133 of the Rules of Court which
upon petitioner to contravene respondent’s claim. The provides:
burden of evidence shifted to petitioner to prove that
his father was a co-owner of the subject house. Section 7. Evidence on motion.- When a motion is
based on facts not appearing of record, the court may
We held in Jison v. Court of Appeals, to wit:18 hear the matter on affidavits or depositions presented
by the respective parties, but the court may direct that
xxx Simply put, he who alleges the affirmative of the the matter be heard wholly or partly on oral testimony
issue has the burden of proof, and upon the plaintiff in or depositions.
a civil case, the burden of proof never parts. However,
in the course of trial in a civil case, once plaintiff makes and not Section 34 of Rule 132 of the Rules of Court
out a prima facie case in his favor, the duty or the which is the one applicable to the present case.
burden of evidence shifts to defendant to controvert
plaintiff's prima facie case, otherwise, a verdict must be Even assuming arguendo that the documentary
returned in favor of plaintiff. Moreover, in civil cases, evidence of petitioner should be considered in his
the party having the burden of proof must produce a favor, the evidence showing that respondent had filed
preponderance of evidence thereon, with plaintiff civil and criminal cases against petitioner which were
having to rely on the strength of his own evidence and dismissed as well as the alleged Special Power of
not upon the weakness of the defendant’s. The concept Attorney of petitioner’s parents whereby they
of "preponderance of evidence" refers to evidence authorized petitioner to stay in the ground floor of the
which is of greater weight, or more convincing, that house, did not establish co-ownership of Florentino
which is offered in opposition to it; at bottom, it means and respondent of the subject house.
probability of truth.19
The testimonies of petitioner and his witnesses failed attorney’s fees and expenses of litigation should be
to show that the subject house is co-owned by recovered 35 which are both shown in the instant case.
petitioner’s father and respondent.
WHEREFORE, the decision of the Court of Appeals
Candelario Regua merely testified that he was hired by dated March 31, 2000 and its Resolution dated
petitioner’s father, Florentino, to construct the November 28, 2000 are AFFIRMED.
residential building in 1972;24 that he listed the
materials to be used for the construction which was
purchased by Florentino;25 that he and his men
G.R. No. L-44988 October
received their salaries every Saturday and Wednesday 31, 1936
from Florentino or his wife, respectively;26 that he had
not met nor seen respondent during the whole time the THE PEOPLE OF THE PHILIPPINE
construction was on-going.27 On cross-examination,
however, he admitted that he cannot tell where the ISLANDS, Plaintiff-Appellee,
money to buy the materials used in the construction vs. CANUTO BERNAL, Defendant-
came from.28 Appellant.
Corazon Garcia merely testified that Florentino started
building the house when he was allocated a lot at DPS Juan M. Ladaw for appellant.
compound, that she knew Florentino constructed the Acting Solicitor-General Melencio for
subject house29 and never knew respondent. 30 The
bare allegation that Florentino was allocated a lot is not
appellee.
sufficient to overcome Florentino’s own affidavit
naming respondent as the owner of the subject house. IMPERIAL, J.: chanrobles vi rtua l law lib rary
Petitioner himself testified that it was his father who The accused was charged with the
saw the progress of the construction and purchased
the materials to be used; 31 and as a young boy he crime of theft, the information
would follow-up some deliveries upon order of his alleging that, aside from the
father 32 and never saw respondent in the construction
site. The fact that not one of the witnesses saw
presence of the aggravating
respondent during the construction of the said house circumstance of nocturnity, the
does not establish that petitioner’s father and accused is an habitual delinquent
respondent co-owned the house.
because he had been convicted, prior
We also find that the CA did not err in ordering to the commission of the offense at
petitioner to pay respondent being the sole owner of bar, thrice of the same crime of theft.
the subject house a monthly rental of P2,000.00 from
April 1988, the date of the extra-judicial demand, until
The accused pleaded not guilty, but
petitioner actually vacates the subject house. Although the court, after trial, found him guilty
the CA made no ratiocination as to how it arrived at the as charged, and sentenced him to
amount of P2,000.00 for the monthly rental, we find the
same to be a reasonable compensation for the use of
four (4) months and one (1) day
the ground floor of the subject house which consists of of arresto mayor, to pay the
a living room, a dining room, a kitchen and three accessories of the law, to return the
bedrooms. The rental value refers to the value as
ascertained by proof of what the property would rent or three stolen roosters to Mariano de
by evidence of other facts from which the fair rental Leon or to indemnify the latter the
value may be determined. 33 value thereof in the sum of P3, and
We likewise affirm the CA’s award of attorney’s fees in
to pay the costs. As an habitual
favor of respondent. Article 2208 of the Civil Code delinquent, because previously
allows the recovery of attorney’s fees in cases when convicted three times of the same
the defendant’s act or omission has compelled the
plaintiff to litigate with third persons or to incur crime of theft, he was sentenced to
expenses to protect his interest 34 and in any other an additional penalty of seven (7)
case where the court deems it just and equitable that years of prision mayor. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary
The facts are not disputed by the General in his brief agrees with the
defense. It has been established that defense, and recommends that the
late in the evening of October 11, penalty fixed in subsection ( a) of
1935, the accused, without the paragraph 5 of article 62 of the
owner's consent, took three Revised Penal Code be imposed upon
gamecocks belonging to Elias the accused. We hold that the third
Piamonte valued at P50, and three conviction, having taken place after
other roosters belonging to Mariano the commission of the last offense
de Leon valued at P3. Only two of the with which the accused is now
gamecocks of Elias Piamonte, valued charged, should not be reckoned with
at P30, were recovered. It has in determining habitual delinquency
equally been established that the and the additional penalty to be
accused had been thrice convicted of imposed, upon the authority of the
the crime of theft; The first time on decisions of this court in People vs.
April 25, 1935 by the justice of the Santiago (55 Phil., 266), People vs.
peace court of San Pablo, Laguna; Ventura (56 Phil., 1, 5), and People
the second time on June 24, 1935 by vs. Reyes (G.R. Nos. 43904, 43905,
the justice of the peace court of San October 18, 1935 [62 Phil., 966). chanroblesvi rtua lawlib rary chanrob les
In United States vs. Campo (23 Phil., convictions, like any qualifying
368), this court held that the circumstance, must be alleged and
existence of the generic aggravating proved.chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry
THE COURT A QUO ERRED IN CONSIDERING THE As testified to by prosecution witness Sonny Boy
ALLEGED DYING DECLARATION OF ASIM Redovan, the supposed dying declaration of the victim
MAMANSAL AS PART OF THE RES GESTAE RULE. was made as follows:
The Office of the Solicitor General ("OSG"), for its part, PROS. DE GUZMAN:
filed a Manifestation in Lieu of Brief47 where it
recommended that the accused-appellants be Q: Did you reach the Kidapawan Doctor’s Hospital,
acquitted of the crime charged against them. In this Inc.?
Manifestation, the OSG reasoned that the identity of
the assailants was not sufficiently established by the A: Yes, sir.
evidence of the prosecution and that the trial court
erred in admitting the alleged dying declaration of the Q: What did you discover?
victim as an exception to the hearsay rule.
A: Upon arrival, I immediately proceeded to the
From the records of the case, the conviction of the two emergency room.
accused-appellants was based largely on the alleged
dying declaration of the victim made to two witnesses
Q: What did you do in the emergency room?
of the prosecution and the apparent weakness of their
defense of alibi. It behooves us therefore to determine
the admissibility of the alleged oral dying declaration of A: I saw my uncle there lying.
the deceased Asim Mamanal as testified to by
prosecution witnesses Sonny Boy Redovan and Police Q: Are you referring to SPO2 Asim Mamansal?
Investigator Alexander Tagum.
A: Yes, sir.
As a rule, a dying declaration is hearsay, and is
inadmissible as evidence.48 This is pursuant to Rule Q: What did you do after that?
130, section 30 of the Rules of Court which states:
A: Upon seeing his condition I went near him and
Sec. 30. Testimony generally confined to personal whispered "Ano ba ang nangyari sa yo?" meaning
knowledge; hearsay excluded. – A witness can testify "What happened to you?"
only to those facts which he knows of his own
knowledge; that is, which are derived from his own Q: What was the answer, if any?
perception, except as otherwise provided in these
rules. A: His answer (sic) that he was waylaid.
There are several exceptions however to the rule of Q: What else did he tell you?
inadmissibility of hearsay evidence, the first one of
which is the admissibility of dying declarations given A: I was worried after saying those words, I asked him
under the circumstances specified in Section 31, Rule who are the perpetrators.
130 of the Rules of Court, to wit:
Q: What was the answer?
Sec. 31. Dying declaration. – The declaration of a
dying person, made under a consciousness of an
impending death, may be received in a criminal case A: And he said "It’s Juany and Tony Palmones."
wherein his death is the subject of inquiry, as evidence
of the cause and surrounding circumstances of such Q: When those words uttered to you (sic) where there
death other persons inside the room?
As such, the requirements for the admissibility of A: Attendants, nurses, "ususero," I do not know the
an ante mortem statement are: (a) it must concern the others.50
crime and the surrounding circumstances of the
In a similar vein, Police Investigator Alexander Tagum given up the hope of life55 , the circumstances
likewise testified that the victim named the two accused surrounding his declaration must justify the conclusion
as his assailants prior to the victim’s death. Thus: that he was conscious of his impending death.56 In the
instant case, it was not proven that the victim was ever
Q: What did you do at the Kidapawan Doctor’s aware of the seriousness of his condition. As testified
Hospital? to by Dr. Mark Aguayo, the vital signs of the victim, prior
to his operation, were quite stable.57 Moreover, from the
A: I immediately went to the room wherein SPO1 time the victim was brought to the hospital at 10:30
Mamansal was lying. p.m. until his operation at 12:00 midnight, he was still
able to talk intelligently with at least four (4) other
persons on various matters. The fact that his vital signs
Q: What did you do while you were inside the room
were strong and that he still had strength to converse
where SPO1 Mamansal was lying?
with these four (4) witnesses belie the conclusion that
the victim was under the consciousness of death by
A: I immediately confronted him sir and immediately reason of the gravity of his wounds.
asked the question: Who shot you?
Neither may the alleged statements attributed to the
Q: What was the answer? victim be admissible as part of the res gestae. Res
gestae refers to those exclamations and statements
A: SPO1 Mamansal answered sir, it is Juany and Tony made by either the participants, victims, or spectators
Palmones. to a crime immediately before, during, or immediately
after the commission of a crime, when the
XXX circumstances are such that the statements were made
as a spontaneous reaction or utterance inspired by the
Q: Can you remember who were your companions (sic) excitement of the occasion and there was no
inside the room where SPO2 Mamansal was lying? opportunity for the declarant to deliberate and to
fabricate a false statement.58
A: I noticed two (2) ladies medical orderly (sic) and Dr.
Aguayo.51 In order to admit statements as evidence part of the res
gestae, the element of spontaneity is critical. The 1âwphi 1
In cases where an alleged dying declaration is sought following factors have generally been considered in
to be admitted, it must be proven that that the determining whether statements offered in evidence as
declaration was made "under a consciousness of part of the res gestae have been made spontaneously:
impending death" which means simply that the (1) the time that lapsed between the occurrence of the
declarant is fully aware that he is dying or going to die act or transaction and the making of the statement; (2)
from his wounds or injuries soon or imminently, or shall the place where the statement was made; (3) the
have a complete conviction that death is at hand, or condition of the declarant when he made the
there must be "a settled hopeless expectation."52 statement; (4) the presence or absence of intervening
events between the occurrence and the statement
relative thereto; and (5) the nature and circumstances
In the instant case, it was not established by the
prosecution that the statements of the declarant of the statement itself.59
concerning the cause and surrounding circumstances
of his death were made under the consciousness of Tested against these factors to test the spontaneity of
impending death. No proof to this effect was ever the statements attributed to the victim, we rule that
presented by the prosecution. It was not shown these statements fail to qualify as part of the res
whether Sonny Boy Redovan or Inspector Alexander gestae. When Mamansal allegedly uttered the
Tagum ever asked the victim whether he believed that statements attributed to him, an appreciable amount of
he was going to die out of his injuries or any other time had already elapsed from the time that he was
similar question. Sonny Boy Redovan claimed that he shot as the victim was shot at around 10:00 p.m. but he
was able to talk with the victim for around an hour but only uttered the statements attributed to him about 30
the only thing he revealed of their conversation was the minutes to an hour later. Moreover, he allegedly made
alleged identification of the victim of his two these statements not at the scene of the crime but at
assailants.53 For his part, Inspector Tagum admitted the hospital where he was brought for treatment.
that the only question he asked of the victim was if the Likewise, the trip from the scene of the crime to the
victim knew who had shot him.54 hospital constituted an intervening event that could
have afforded the victim opportunity for deliberation.
These circumstances, taken together, indubitably show
While it is true that the law does not require that the
that the statements allegedly uttered by Mamansal lack
declarant explicitly state his perception that he has
the requisite spontaneity in order for these to be the weakness of the prosecution’s evidence, the
admitted as part of the res gestae. reason being that in a criminal prosecution, the State
must rely on the strength of its own evidence and not
Finally, after a thorough reading of the testimonies on the weakness of the defense.62
presented by both sides, it is even doubtful that the
victim ever uttered these alleged ante WHEREFORE, premises considered, the judgment
mortem statements in the first place. We note that the dated 8 May 1998 of Branch 17 of the Regional Trial
testimonies of Sonny Boy Redovan and Investigator Court of Kidapawan, Cotabato is hereby REVERSED
Alexander Tagum are contradicted not only by the and SET ASIDE. Accused-appellants Anthony Melchor
witnesses for the defense but also by the prosecution’s Palmones and Anthony Baltazar Palmones are
own witnesses. ACQUITTED and ordered RELEASED from
confinement unless they are being held for some other
Dr. Mark Aguayo, the doctor who performed the legal grounds.
operation on the victim and who is an impartial and
disinterested witness, categorically stated that the SO ORDERED.
victim told him that he did not recognize those who had
shot him.60 He likewise testified that witness Sonny Boy G.R. No. 99287 June 23, 1992
Redovan told him in the emergency room that the
victim was not able to recognize his assailants because PEOPLE OF THE PHILIPPINES, petitioner,
of darkness.61 Similarly, the wife and the daughter of vs.
Asim Mamansal, who were also able to talk with the HON. MARTIN S. VILLARAMA, JR., AND JAIME
victim prior to his death, likewise denied that the victim MANUEL, respondents.
ever told them the identity of his assailants. We fail to
see why the victim should choose to tell some people
the identity of his assailants and deny his knowledge of
the same to others.
MEDIALDEA, J.:
With respect to the witnesses for the defense, Alex
Siago and Patricio Fuertes, who were both present at This petition for certiorari seeks to reverse the decision
the site of the shooting immediately after the incident, and the order of the Regional Trial Court, National
testified that they did not hear the victim identify his Capital Region at Pasig, Metro Manila dated February
assailants. Patricio Fuertes even stated that at the 25 and March 13, 1991, respectively in Criminal Case
hospital, he heard Mamansal tell the police officers No. 1345-D entitled "People of the Philippines v. Jaime
present that he did not recognize those who had shot Manuel y Ohide" for violation of Section 16, Article 111,
him. Most importantly, Alice Villamor, who was the RA 6425, as amended.
lover of the victim and who was with him during the
shooting, categorically stated that it was not possible to Briefly, the antecedent facts of the case are as follows:
recognize the assailants as the area where the
shooting happened was dark. Moreover, she was able On August 24, 1990, Jaime Manuel y Ohide was
to talk with Mamansal at the hospital where he told her charged with violation of Section 16, Republic Act No.
that he did not see the persons who had shot him. This 6425, as amended. The penalty prescribed in the said
testimony of Villamor is quite significant and we fail to section is imprisonment ranging from six years and one
see why the trial court failed to consider the same in its day to twelve years and a fine ranging from
decision. Alice Villamor, as the lover of the victim, had six thousand to twelve thousand pesos. The
no motive to lie for the defense and had all the reason information against him reads:
to speak the truth in order to seek justice for the death
of her lover. That on or about the 21st day of
August, 1990, in the Municipality of San
As previously stated, the trial court based its judgment Juan, Metro Manila, Philippines, and
of conviction on the alleged ante mortem statements of within the jurisdiction of this Honorable
the victim and the apparent weakness of the defense Court, the above-named accused,
put up by the two accused-appellants. As it now stands without the corresponding license or
however, the weakness of the alibi of the two accused- prescription did then and there willfully,
appellants cannot be held against them in view of the unlawfully and feloniously have in his
absence of a clear and positive identification of them possession, custody and control 0.08
as the perpetrators of the crime. And while their alibi grams of Methamphetamin
may not have been proven so satisfactorily as to leave Hydrocloride (Shabu) wrapped with an
no room for doubt, such an infirmity can not strengthen aluminum foil, which is a regulated
drug.
CONTRARY TO LAW. (p. 15, Rollo) Atty. Fernando Fernandez of the PAO,
there is nothing in the said provision
During the arraignment, the accused entered a plea of which requires that the same be
not guilty. Thereafter, trial ensued. On November 21, availed of prior to the presentation of
1990, the prosecution rested its case. On January 9, the evidence for the prosecution. It is
1991, counsel for private respondent verbally conceded though, as pointed out by the
manifested in open court that private respondent was prosecution, that such is a waste of
willing to change his former plea of "not guilty" to that time on the part of the Office of the
of "guilty" to the lesser offense of violation of Section Provincial Prosecutor and of the Court,
17, R.A. No. 6425, as amended. The said section nonetheless, this Court, having in
provides a penalty of imprisonment ranging from six mind Section 2 of Rule 1 which
months and one day to four years and a fine ranging provides that the rules shall be liberally
from six hundred to four thousand pesos shall be construed in order to promote their
imposed upon any pharmacist, physician, dentist, object and to assist the parties in
veterinarian, manufacturer, wholesaler who violates or obtaining just, speedy and inexpensive
fails to keep the records required under Section 25 of determination of every action and
the Act; if the violation or failure involves a regulated proceeding and also for humanitarian
drug. That same day, the respondent Judge issued an considerations, hereby APPROVES
order (Annex "B," p. 17, Rollo) directing private and GRANTS the Motion at bar.
respondent to secure the consent of the prosecutor to
the change of plea, and set the promulgation of Moreover, such an admission of guilt
decision on January 30, 1991. On January 30, 1991, by the accused indicates his
respondent Judge postponed the promulgation of the submission to the law and a moral
decision to February 18, 1991 to give private disposition on his part to reform. (Vide:
respondent another opportunity to secure the consent People vs. Coronel, G.R. No. L-19091,
of the prosecutor. Also, on the said date, the private June 30, 1966)
respondent filed his Request to Plead Guilty to a
Lesser Offense. On February 18, 1991, respondent Let it be made of record however that
Judge issued another order (Annex "D," p. 19, Rollo) the Court is not putting a premium on
postponing the promulgation of decision to February the change of heart of the accused in
25, 1991 to give private respondent further opportunity mid-stream.
to secure the consent of the prosecutor. On February
20, 1991, the prosecutor filed his Opposition to the WHEREFORE, finding the accused
Request to Plead Guilty to a Lesser Offense (annex JAIME MANUEL Y CHIDE @ Manny
"E," p. 20, Rollo) on the grounds that: (1) the guilty beyond reasonable-doubt of the
prosecution already rested its case on November 21, crime of violation of Section 17, Article
1990; (2) the possibility of conviction of private III, Republic Act No. 6425, as
respondent of the crime originally charged was high amended, he is hereby sentenced to a
because of the strong evidence of the prosecution; and straight prison term of two (2) years
(3) the valuable time which the court and the and one (1) day of prision correccional,
prosecutor had expended would be put to waste. On to pay a fine of Two Thousand Pesos
February 21, 1991, private respondent filed his Reply (P2,000.00) with subsidiary
to Opposition with Leave of Court to Plead Guilty to a imprisonment in case of insolvency and
Lesser Offense (annex F, p. 21, Rollo), alleging to pay the costs.
therein, among other matters, that the Rules on
Criminal Procedure does not fix a specific period within
In the service of his sentence, the
which an accused is allowed to plead guilty to a lesser
accused shall be credited in full with the
offense. Subsequently, on February 25, 1991,
period of his preventive imprisonment.
respondent Judge rendered a decision granting the
accused's motion, to wit:
Pursuant to Section 20, Article IV of
Republic Act No. 6425, as amended,
It may well be appropriate at this time
let the 0.08 grams of
to state that the accused is not availing
methamphetamine hydrochloride
of the "voluntary plea of guilt" as a
(shabu) subject matter of this case be
mitigating circumstance envisioned
confiscated and forfeited in favor of the
under Article 13, paragraph 7 of
Government and be turned over to the
the Revised Penal Code. The accused
Dangerous Drugs Board Custodian,
simply wants to avail of Section 2, Rule
NBI, to be disposed of according to law.
116 of the Rules. As pointed out by
SO ORDERED. (Rollo, pp. 24-25) CHARGED OF VIOLATION OF
SECTION 16 OF THE SAME LAW, IN
Forthwith, the prosecutor filed a Motion for VIEW OF THE ABSENCE OF A VALID
Reconsideration of the aforestated decision but the CHANGE OF PLEA. (Rollo, pp. 74-75)
same was denied in the order of March 13, 1991, which
states: In the resolution of January 20, 1992, We issued a
temporary restraining order to enjoin the respondent
It is the considered view of this Court Judge from enforcing the questioned judgment in the
that Section 2, Rule 116 of aforesaid criminal case (Rollo, p. 86).
the Rules should not be interpreted to
the letter in "victimless crimes" such as The petition is meritorious.
this case, possession of regulated
drugs, which is more of a "social Plea bargaining in criminal cases, is a process whereby
disease" case so to speak and in the the accused and the prosecution work out a mutually
light of (the) provision itself that "with satisfactory disposition of the case subject to court
the consent of the offended party and approval (see Black Law Dictionary, 5th Ed., 1979, p.
the fiscal." Is the fiscal the offended 1037). It usually involves the defendant's pleading
party? guilty to a lesser offense or to only one or some of the
counts of a multi-count indictment in return for a lighter
Moreover as the records show, the sentence than that for the graver charge (ibid).
Office of the Provincial Fiscal has not Ordinarily, plea-bargaining is made during the pre-trial
been very consistent on this "lesser stage of the criminal proceedings. However, the law
offense plea" thing. It would perhaps be still permits the accused sufficient opportunity to
in consonance with justice that a change his plea thereafter. Thus, Rule 116 of the Rules
guideline be laid down by the said of Court, Section 2 thereof, provides:
Office, if only to apprise the public, the
Court and the accused on when said Sec. 2. Plea of guilty to a lesser
consent is to be given by the fiscal as a offense. — The accused, with the
matter of course and when it will be consent of the offended party and the
withheld. For to leave the same fiscal, may be allowed by the trial court
undefined is in the mind of this Court, to plead guilty to a lesser offense,
not conducive to a "just, speedy and regardless of whether or not it is
inexpensive determination of every necessarily included in the crime
action and proceeding. charged, or is cognizable by a court of
lesser jurisdiction than the trial court.
SO ORDERED. (Rollo, pp. 41-42) No amendment of the complaint or
information is necessary.
Hence, this petition raising the following issues:
A conviction under this plea, shall be
I. WHETHER OR NOT RESPONDENT equivalent to a conviction of the offense
JUDGE ERRED IN GRANTING charged for purposes of double
PRIVATE RESPONDENT'S jeopardy.
REQUEST TO PLEAD GUILTY TO A
LESSER OFFENSE BECAUSE THE However, the acceptance of an offer to plead guilty to
REQUEST WAS FILED OUT OF TIME a lesser offense under the aforequoted rule is not
AND THE CONSENT THERETO OF demandable by the accused as a matter of right but is
THE PROSECUTOR AND THE a matter that is addressed entirely to the sound
OFFENDED PARTY WAS NOT discretion of the trial court (Manuel v. Velasco, et al.,
OBTAINED. G.R. No. 94732, February 26, 1991, En
Banc Resolution).
II. WHETHER OR NOT
RESPONDENT JUDGE ERRED IN In the case at bar, the private respondent (accused)
CONVICTING PRIVATE moved to plead guilty to a lesser offense after the
RESPONDENT OF THE LESSER prosecution had already rested its case. In such
OFFENSE OF VIOLATION OF situation, jurisprudence has provided the trial court and
SECTION 17, REPUBLIC ACT NO. the Office of the Prosecutor with yardstick within which
6425, AS AMENDED, INSTEAD OF their discretion may be properly exercised. Thus,
THE OFFENSE ORIGINALLY in People v. Kayanan (L-39355, May 31, 1978, 83
SCRA 437, 450), We held that the rules allow such a of guilty to a lesser offense (see Manuel v. Velasco, et
plea only when the prosecution does not have sufficient al., supra, p. 6). The reason for this is obvious. The
evidence to establish guilt of the crime charged. In his Fiscal has full control of the prosecution of criminal
concurring opinion in People v. Parohinog (G.R. No. L- actions (Cinco, et al. v. Sandiganbayan, et al., G.R.
47462, February 28, 1980, 96 SCRA 373, 377), then Nos. 92362-67, October 15, 1991). Consequently, it is
Justice Antonio Barredo explained clearly and tersely his duty to always prosecute the proper offense, not
the rationale of the law: any lesser or graver one, when the evidence in his
hands can only sustain the former (see People v.
. . . (A)fter the prosecution had already Parohinog, supra, concurring opinion of then Justice
rested, the only basis on which the Barredo, p. 377; also Vda. de Bagatua, et al. v. Revilla,
fiscal and the court could rightfully act et al., 104 Phil. 393, 395-396).
in allowing the appellant to charge his
former plea of not guilty to murder to It would not also be correct to state that there is no
guilty to the lesser crime of homicide offended party in crimes under RA 6425 as amended.
could be nothing more nothing less While the acts constituting the crimes are not wrong in
than the evidence already in the record. themselves, they are made so by law because they
The reason for this being that Section 4 infringe upon the rights of others. The threat posed by
of Rule 118 (now Section 2, Rule 116) drugs against human dignity and the integrity of society
under which a plea for a lesser offense is malevolent and incessant (People v. Ale, G.R. No.
is allowed was not and could not have 70998, October 14, 1986, 145 SCRA 50, 58). Such
been intended as a procedure for pernicious effect is felt not only by the addicts
compromise, much less bargaining. themselves but also by their families. As a result,
society's survival is endangered because its basic unit,
As evident from the foregoing, the trial court need not the family, is the ultimate victim of the drug menace.
wait for a guideline from the Office of the Prosecutor The state is, therefore, the offended party in this case.
before it could act on the accused's motion to change As guardian of the rights of the people, the government
plea. As soon as the fiscal has submitted his comment files the criminal action in the name of the People of the
whether for or against the said motion, it behooves the Philippines. The Fiscal who represents the government
trial court to assiduously study the prosecution's is duty bound to defend the public interests, threatened
evidence as well as all the circumstances upon which by crime, to the point that it is as though he were the
the accused made his change of plea to the end that person directly injured by the offense (see United
the interests of justice and of the public will be served. States v. Samio, 3 Phil. 691, 696). Viewed in this light,
A reading of the disputed rulings in this case failed to the consent of the offended party, i.e. the state, will
disclose the strength or weakness of the prosecution's have to be secured from the Fiscal who acts in behalf
evidence. Apparently, the judgment under review dwelt of the government.
solely on only one of the three objections (i.e. waste of
valuable time already spent by the court and Lastly, the counsel for the private respondent maintains
prosecution) interposed by the Fiscal which was the that the private respondent's change of plea and his
least persuasive. It must be recalled that the other two conviction to the lesser offense of violation of Section
grounds of objection were that the prosecution had 17, RA No. 6425 as amended is no longer open to
already rested its case and that the possibility of review otherwise his constitutional right against double
conviction of the private respondent of the crime jeopardy will be violated.
originally charged was high because of the strong
evidence of the prosecution. Absent any finding on the Such supposition has no basis. The right against
weight of the evidence in hand, the respondent judge's double jeopardy given to the accused in Section 2,
acceptance of the private respondent's change of plea Rule 116 of the Rules of Court applies in cases where
is improper and irregular. both the fiscal and the offended party consent to the
private respondent's change of plea. Since this is not
The counsel for the private respondent argues that only the situation here, the private respondent cannot claim
the consent of the fiscal is needed in crimes involving, this privilege. Instead, the more pertinent and
violation of RA 6425 as amended because there is no applicable provision is that found in Section 7, Rule 117
offended party to speak Of and that even the latter's which states:
consent is not an absolute requirement before the trial
court could allow the accused to change his plea. Sec. 7. Former conviction or acquittal;
double jeopardy. —
We do not agree. The provision of Section 2, Rule 116
is clear. The consent of both the Fiscal and the xxx xxx xxx
offended party is a condition precedent to a valid plea
However, the conviction of the accused
shall not be a bar to another
prosecution for an offense which
necessarily includes the offense
charged in the former complaint or
information under any of the following
instances:
(a) . . . ;
(b) . . . ;
SO ORDERED.