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G.R. No.

L-19550

June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners, vs. HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents. CONCEPCION, C.J.: Upon application of the officers of the government named on the margin 1 hereinafter referred to as Respondents-Prosecutors several judges2 hereinafter referred to as RespondentsJudges issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the corporations of which they were officers, 5 directed to the any peace officer, to search the persons above-named and/or the premises of their offices, warehouses and/or residences, and to seize and take possession of the following personal property to wit: Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers). as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be used as the means of committing the offense," which is described in the applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code." Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of Court because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of the present case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their agents and /or representatives from using the effects seized as aforementioned or any copies thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants and declaring the same null and void, and commanding the respondents, their agents or representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cash moneys seized or confiscated under the search warrants in question. In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things seized from the offices of the corporations above mentioned are concerned; but, the injunction was maintained as regards the papers, documents and things found and seized in the residences of petitioners herein.7 Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split into two (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b) those found and seized in the residences of petitioners herein. As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity. 11 Indeed, it has been held: . . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nor did it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of or any one were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its violation, if any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the personal defendants but embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.) With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court,12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in evidence against petitioners herein. In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence against petitioners herein.1wph1.t Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that accordingly, the seizures effected upon the authority there of are null and void. In this connection, the Constitution13 provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized. None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, nospecific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," as alleged in the aforementioned applications without reference to any determinate provision of said laws or To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even though by legal means. Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one specific offense." The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein made of the effects to be searched for and seized, to wit: Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of

Rights that the things to be seized be particularly described as well as tending to defeat its major objective: the elimination of general warrants. Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if the searches and seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American common law rule, that the criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer, against the party who procured the issuance of the search warrant and against those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may be provided by other laws. However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. In the language of Judge Learned Hand: As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.18 In fact, over thirty (30) years before, the Federal Supreme Court had already declared: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.19 This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.): . . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State. Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it used against the Federal Government.

Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be "a form of words," valueless and underserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to permit this Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that the Court held in Wolf that the amendment was applicable to the States through the Due Process Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches state or federal it was logically and constitutionally necessarily that the exclusion doctrine an essential part of the right to privacy be also insisted upon as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new constitutional Right by Wolf could not tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it" . . . . The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by its Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.) Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable cause. Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks the fact that violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minority usually but, understandably finds itself in prosecuting agents of the majority, one

must not lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the pardoning power of the party for whose benefit the illegality had been committed. In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the ArmyNavy Club, should be included among the premises considered in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to include personal belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts of federal courts of the United States. 22 We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, notin their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein. Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future. We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of herein petitioners is hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29) places, offices and other premises enumerated in the same Resolution, without special pronouncement as to costs. It is so ordered.

G.R. Nos. 114263-64 March 29, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOHN JENN PORRAS and SERGIO EMELO, accusedappellants. FRANCISCO, J.: The separate indictments are for MURDER and for FRUSTRATED MURDER respectively. The appealed judgment went for the People, found appellants John Jenn Porras and Sergio Emelo guilty of MURDER (Criminal Case No. 245-91) and sentenced them to "imprisonment of reclusion perpetua, to indemnify, the heirs of Rosendo Mortel in the amount of P50,000.00 plus actual damages, funeral expenses in the amount of P67,000.00 and moral damages in the amount of P100,000.00," 1 and appellant Sergio Emelo guilty of FRUSTRATED HOMICIDE (Criminal Case No. 246-91) and sentenced him to imprisonment of Four (4) years, two (2) months and one (1) day of prision correccional, as minimum to Eight (8) years of prision mayor, as maximum, John Jenn Porras is hereby acquitted. With costs in both instances. 2 Appellants impute fourteen alleged errors committed by the trial court which can be substantially reduced as follows: (1) misappreciation of facts, (2) giving credence to the inconsistent testimonies of the prosecution witnesses, i.e., Jose Malumay and Maribel German; (3) ignoring the defense of alibi; (4) not considering as fatal the prosecution's inability to present as witness Cpl. Crisanto de la Cruz; (5) admitting in evidence Sgt. Alvarez's hearsay testimony; and (6) in convicting appellants who were not positively identified in open court. 3 Hereunder is the recital of facts of the case as summarized by the trial court and duly substantiated by the evidence on record: Piecing together the testimonial and material evidence submitted in these cases, the Court cannot but conceive the following resume: that on the night of June 20, 1990, (sic) accused John Jenn Porras and Sergio Emelo went to the police Station looking for Pfc. Roldan Emelo of the Cavite City PNP, a cousin of the latter and was directed by Sgt. Pilapil to where he was; that they had some food and drinks at the Banaue Restaurant and Emelo asked for his black ammo pouch and some .38 caliber ammunition; that thereafter, perhaps in connivance with Marcelo Real of the Philippine Coast Guard who was then moonlighting in his tricycle, flagged him down along M. Gregorio St. and in which Marcos Luciano was a passenger at the time and was told to alight as they were already overloaded and whereat Luciano identified John Jenn Porras, who was then wearing a maong jacket and maong pants when he was focused by the headlights of the incoming vehicle; that they proceeded to the Aroma Beer House where the victim. Rosendo Mortel was tabled (sic) and wherein some misunderstanding happened and Ronnie Mortel went out and was shot at close range by either Porras or Emelo as seen by a waitress, Maribel Herman who pointed to Porras as the assailant and who after seeing Rosendo Mortel sprawled on the ground and bloodied, fled into an alley and thereafter returned and shot the prostrate victim twice and sped away and who hailed Sgt. Catalino Bermas (sic) was then monitoring the situation as an Intelligence Operative on his motorcycle to give chase; that during the shooting Jose Malumay who was on a bicycle on his way home after going to a house near Sangley Point also heard a gun shot which he mistook for a blow-out and when he offered to assist, he saw two men, one in dark attire and the other in white T-shirt who from the information of the witnesses fixed their identities as the two accused John Jenn Porras and Sergio Emelo who fired the initial shot and ran away and later on returned to finish the job with Porras allegedly having fired the last

two shots killing the victim instantaneously as he was brought to the hospital dead on arrival. During the chase given by Catalino Bermas he was shot by Emelo along the way after having told them (Emelo and Real) to go to the Police Station and Bermas, feeling the effects of his wounds chanced upon Cpl. Dela Cruz in front of the 501 Beer House and asked for his assistance and they rode in tandem and pursued the tricycle at the Saulog Terminal Compound where only the tricycle was left together with the driver Marcelo Real who pointed to the two accused as the assailants. Sgt. Amorico Alvarez who was then following up unsolved cases in the Station was apprised of the shooting and went to the place and was informed about the identity (sic) of the tricycle which they traced to the house of Real whereat they found the black ammo pouch. and the camouflage holster with the name of Emelo inscribed and with live and spent bullets on the back seat and putting together the evidence thus far gathered, he was able to apprehend the three, namely: Porras, Emelo and Real. 4 Now, to dispose of the issues raised: Appellants claim that some of the trial court's factual findings 5 are product of imagination and gross misrepresentation allegedly due to lack of. evidentiary support. While our examination of the record shows that the assailed factual findings are in some respects inaccurate they, however, did not debilitate the prosecution's case and neither did they affect the appellant's finding of guilt. SPO3 Rolando Villegas, one of the prosecution's witnesses, indeed, positively identified the appellants as the persons who showed up at the Cavite City police station at around 9:00 o'clock in the evening of June 19, 1990, looking for Pfc. Roldan Emelo persons who, the record reveals, were responsible for the dastardly crimes. Thus: xxx xxx xxx Q While doing it, Mr. Witness, while waiting for this report you have just mentioned, can you tell the Court if there was an incident which transpired in your office? A Because I have read my statement, I remember that two men arrived at the police station asking for the whereabouts of Pat. Roldan Emelo. Q And this Pat. Roldan Emelo is connected with your office? A Yes, ma'am. Q Do you know this person who asked for Roldan Emelo? A I came to know those persons when they were involved in a shooting incident in San Antonio. Q At the time they came to you asking for Roldan Emelo, could you still recall how they look like? A Yes, ma'am because the suspects were identified by the witnesses. One involved is a small man, dark, wearing white T-shirt, maong pants and carrying a black shoulder bag. The other one is chubby, and he is wearing a sleeveless cream T-shirt, carrying a maong jacket and wearing maong pants. Q If you will be able to see these persons again, can you recall them? A Yes, ma'am.. Q Kindly took around the Court room and point them out. A (Witness pointing to Emelo as the one carrying a shoulder bag and the other one who is chubby identified himself as John Jenn Porras.) Q You said these two persons came to you asking for Roldan Emelo, what did you do? A I pointed to the traffic division. Q And that is where Roldan Emelo was?

A Yes, ma'am. Q When the two men got your answer, what did they do? A They proceeded to the Traffic Division and a few moments later they went out. 6 (Emphasis supplied). Next, appellants impugn the credibility of the prosecution witnesses by citing the seeming inconsistency between the testimonies of Maribel German, who apparently saw one assailant, and Jose Malumay, who, on the other hand, claimed to have seen two assailants. The following are excerpts of the questioned testimonies: JOSE MALUMAY: xxx xxx xxx Q What was this incident, kindly relate to the Honorable Court? A On that night, from Sangley going to Rafael Palma St. and M. Gregorio St., I passed by a tricycle upon reaching the corner of Calpo, I heard a shot which I presumed it (sic) was a tire which exploded so, I stopped my bicycle because I thought they would need help. When I stopped and look towards the tricycle, I saw the man riding at the back seat of the driver alighted (sic), mam. xxx xxx xxx Q What happened to the man who used to sit at the back of the driver? A When the man went to the side of the sidecar, another man alighted from the sidecar, mam. Q And then, what happened when that man alighted from the sidecar. A When the man went to the side of the sidecar, another man alighted and (sic) jerked by the man coming from inside the sidecar? xxx xxx xxx FISCAL DIESMOS: Let us just say the man who alighted from the driver (sic) seat, let us call him the second man and the man who alighted inside (sic) the tricycle as the first man. COURT: What did you see? A When the first man jerked himself, (sic) the second man went to the front of the tricycle, sir. FISCAL DIESMOS: Q In what direction was the second man headed when he ran? A He crossed the street going to Capt. Jose St., mam. Q What else happened when the second man ran towards Capt. Jose St.? A I hear (sic) another shot, then that second man fell on the ground, mam.. Q And then, what else happened when that second man fell on the ground? A The third man alighted from the sidecar. When he alighted from the sidecar, he is going (sic) towards the back going to the fallen man, (referring to the second man). The third man went to the body of the fallen man which I thought he would help him but as I was about to go away, I heard another shot, then I saw a fire from the hands of that third man. Q When you saw that fire coming from the hands of the third man, at this point in time, where was the third man? A Beside the fallen man, mam. Q And his hands was (sic), how would you describe, how was the position as the fire was coming from his hand? A His hand was positioned as if, he was going to help the fallen man. xxx xxx xxx Q But, Mr. Witness since you saw the incident would you be able to tell the Honorable Court the attire of the third man who shot the second man? A As far as I can remember, the man who shot the second man was wearing a dark attire, mam. Q What about the first man, the man who alighted from the back of the driver of the tricycle, did you see how he was attired?

A It seems, he was wearing a white shirt because the upper portion of his attire was light, mam. MARIBEL GERMAN: Q While you were at work at Cathy's Refreshment, do you recall of ( sic) any unusual incident that happened? A Yes, Ma'am, there was. Q What was this, will you please tell the Honorable Court? A I heard two gunshots. Q When you heard two gunshots, what did you do? A I looked where the gunshots came from. Q And you saw what? Did you see anything? A There was. Q What did you see, Madam Witness? A A fallen man crawling on the ground. Q What else did you see, if you saw anything else? A And a man standing about to enter an alley. Q Was that man able to enter the alley? A Yes, Ma'am.. Q And what happened next after he enter (sic) the alley? A And who again emerged therefrom. Q After emerging from the alley, what did he do, if he did anything? A Again he shot the crawling man two times. Q After shooting the man twice, what did that man do next? A He poked (sic) his gun in our direction, so we went inside the Cathy's Refreshment. xxx xxx xxx Q You said you went inside the restaurant when that man poked a gun at you, is that right? A Yes, Ma'am. Q Inside the restaurant, what did you do? A I peeped. Q Where did you peep, through the window? A I peeped at the door. Q What did you see? A I saw the man boarded (sic) a bicycle. xxx xxx xxx Q But were you able to notice how he was dressed, his attire? A He was wearing a T-shirt and maong pants and rubber shoes. 8 We find that the purported inconsistency is more fancied than real. A closer scrutiny of Maribel German's testimony reveals that she merely saw an assailant shoot the victim (Mortel) while sprawled on the ground, but nowhere in her testimony did she state that there is only one assailant. In fact, Maribel German never testified witnessing the crime from its inception which Jose Malumay witnessed to have been authored by two assailants. This explains the apparent inconsistency between the witnesses' testimonies. At any rate, the alleged inconsistency just discussed, which was shown to be otherwise, is neither substantial nor of such nature to cast a serious doubt on the credibility of the prosecution witnesses. The established rule of evidence is that inconsistencies in the testimony of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity or the weight of their testimony. 9 Inconsistencies in the testimonies of witnesses, if only in minor details, reinforce rather than weaken their credibility, for it is usual that witnesses to a stirring event should see differently some details of a startling occurrence.'" Discrepancies on minor details, which do not destroy the substance of the witness' testimony show that the witness was not rehearsed. 11

Appellants' defense of alibi must likewise fail. Against their positive identification, alibi cannot prevail. 12Prosecution witness, Marcos Luciano positively identified appellant John Jenn Porras as one of the persons who were on board the tricycle which was used as get away vehicle by Mortel's assailants just before midnight on June 19 1990; 13 SPO3 Rolando Villegas identified Sergio Emelo and John Jenn Porras as the persons who arrived at the PNP station looking for Pfc. Roldan Emelo at around 9:00 o'clock on that evening of June 19, 1990; 14 Maribel German described one of the assailants as wearing a T-shirt, maong pants and rubber shoes, and was riding in a tricycle; 15 and Sgt. Catalino Bermas confirmed the person described by Maribel German to be Sergio Emelo, 16 the same person he identified as his assailant on that same night. 17 Furthermore, proof that they were somewhere else when the crime was committed is not enough. Appellants must likewise demonstrate that they could not have been physically present at the place of the crime, or in its vicinity, at the time of its commission. 18 In this connection, we quote with approval, the trial court's observation: The alibi set up by the two accused that they were in their barracks sleeping, all the time up to early morning, is of no moment, as alibi is the weakest of all defenses, specially (sic) so when the place where they alleged to have been at the time of the commission of the offense and the situs where the incident happened is (sic) not so far (sic) distant from each other and maybe (sic) reached within a reasonable time which, in the instant cases are no more than 100 or 200 meters apart. 19 Appellants also contend that the non-presentation of Cpl. Crisanto de la Cruz, one of the police officers who first investigated the crime, and Pfc. Roldan Emelo, the police officer who gave appellant Sergio Emelo the black ammo pouch bag and .38 caliber bullets, is fatal to the prosecution's case. We find this contention devoid of merit. The matter of deciding whom to present as witness for the prosecution is not for the accused or, for the trial court to decide, as it is the prerogative of the prosecutor." Moreover, if the appellants believed that the testimony of the said police officers would bolster their theory, then they could have availed of the compulsory process to have the latter produced as their witnesses, 21 which they failed to do so. Appellants likewise characterize as hearsay the testimony of Sgt. Amorico Alvarez on Pfc. Roldan Emelo's statements to the police investigator implicating them to the crime. This contention is bereft of legal basis for it is a settled rule that when a testimony is presented to establish not the truth but the tenor of a statement or the fact that such statement was made, as in this case, the same is not hearsay. 22 Furthermore, appellants' conviction did not hinge solely on the assailed testimony as there were other evidence extant in the records establishing their guilt beyond reasonable doubt. Finally, appellants argue that they were not positively identified in open court by the two prosecution's witnesses (German and Malumay) to be the culprits, hence they may not be convicted of the crime charged. The argument is specious and erroneously assumes that there was no identification made. While witnesses German and Malumay did not point out the appellants in open court they, nonetheless, described the perpetrators' attire at the time of the commission of the crime, with one assailant wearing a T-shirt, maong pants and rubber shoes, and the other assailant wearing a dark attire. These descriptions conform with the other witnesses' testimony identifying the appellants to be wearing the same attire during the commission of the crimes. In any event, it is a settled rule that there can be a conviction based on circumstantial evidence when the circumstances proved form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused, to the exclusion of all others, as the perpetrator of the crime, 23 as in this case. In order that circumstantial evidence may be sufficient to convict, the same must comply with these essential requisites, viz: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable

doubt. 24 The record reveals that there were at least eleven circumstances correctly considered by the trial court in arriving at its judgment of conviction, viz: moments before the incident of June 20, 1990, appellants were seen inside the Cavite City PNP Station looking for Pfc. Roldan Emelo; 25 (2) appellant Sergio Emelo was then wearing a white T-shirt, maong pants and rubber shoes while appellant John Jenn Porras was wearing a sleeveless cream T-shirt, maong pants and was carrying a maong jacket, 26 (3) on the same evening just before the incident, appellant John Jenn Porras, then wearing a maong jacket, was seen on board the tricycle of Marcelo Real, together with a man wearing a white T-shirt; 27 (4) the two assailants were described by Jose Malumay as respectively wearing a dark attire and white T-shirt, 28 (5) one of the persons who shot Rosendo Mortel was described by Maribel German as wearing a T-shirt, maong pants and rubber shoes; 29 (6) the assailants of Rosendo Mortel bearded a tricycle to flee from the scene of the crime, 30 (7) Sergio Emelo was identified by Sgt. Catalino Bermas as the person on board the tricycle that fled from the scene of the crime; 31 (8) Sergio Emelo was identified by Sgt. Catalino Bermas as the person who shot him during the chase; 32 (9) a magazine pouch, camouflaged holster with the name Emelo, .38 caliber empty shells and live bullets were found immediately after the shooting on the floor of the tricycle used by the appellants; 33 (10) Rosendo Mortel and Sgt. Catalino Bermas both sustained gunshot wounds from a .38 caliber handgun; 34 and (11) the flight of the appellants which was not sufficiently explained. There is no reason for us to disagree with the trial court on these matters. These findings are fully supported by the evidence on record and constitute an unbroken chain of events which by their concordant combination and cumulative effect, more than satisfy the requirements for the conviction of the appellants. 35 The trial court, however, erred in appreciating the qualifying circumstance of treachery in Criminal Case No. 245-91. Treachery must be proved by clear and convincing evidence, or as conclusively as the killing itself. 36 And to appreciate it, two conditions must concur, viz: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate, and (b) that said means of execution be deliberately and consciously adopted. 37 In this regard, the prosecution failed to definitively establish the manner in which the initial assault against the deceased victim was committed to justify the appreciation of treachery. This hiatus in the prosecution's evidence cannot be substituted by mere suppositions as what the trial court apparently did. It is a well settled rule that in order to appreciate treachery as a modifying circumstance in a continuous aggression, as in this case, the same must be shown present at the inception of the attack. 38 Absent any showing therefor, treachery as a qualifying circumstance may not be considered. With respect to Criminal Case No. 246-91, we find that the trial court properly discarded the qualifying circumstance of treachery and correctly ruled that the crime committed is Frustrated Homicide and not Frustrated Murder as alleged in the information. The shooting of Sgt. Catalino Bermas who was fully aware of the risks in pursuing appellants was, at best, done in a spur of the moment, an act which can hardly be characterized as treacherous for it was no where proved that the same was deliberately adopted to deny Sgt. Bermas the opportunity to defend himself. The actual participation of the appellants in the killing of Rosendo Mortel having been established by the prosecution, they are therefore equally liable pursuant to the rule on conspiracy "that the act of one is the act of all". 39 Conspiracy was duly proven by the positive testimonies of the prosecution witnesses pointing to acts done in concert by the appellants to carry out their unlawful design, but only with respect to the killing of Rosendo Mortel. When an act done is beyond the contemplation of the co-conspirators and is not a necessary or logical consequence of the intended crime then only the actual perpetrators are to be held liable." And in this case, the conspiracy proved corcerns solely the killing of Mortel and is not the shooting of Sgt. Catalino Bermas. Thus, appellant Sergio Emelo alone should be held liable for the crime of Frustrated Homicide in Criminal Case No. 246-91.

WHEREFORE, in view of the foregoing, judgment is hereby rendered in Criminal Case No. 24591, finding the appellants JOHN JENN PORRAS and SERGIO EMELO guilty beyond reasonable doubt of the crime of Homicide, defined and penalized under Article 249 of the Revised Penal Code. Considering the absence of any mitigating or aggravating circumstance and applying the Indeterminate Sentence Law, appellants are hereby sentenced to suffer an indeterminate penalty ranging from Eight (8) years and One (1) day of Prision Mayor, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day of Reclusion Temporal, as maximum, respectively, and to indemnify, jointly and severally, the heirs of the deceased Rosendo Mortel the amount of P50,000.00, plus actual damages and funeral expenses in the amount of P67,000.00. The award for moral damages in the amount of P100,000.00 which we find to be excessive is hereby reduced to P50,000.00. However, in Criminal Case No. 246-91, the judgment appealed from is hereby affirmed in toto. SO ORDERED. G.R. No. 123072 October 14, 1998 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CADIZ LAPAY, ANECITO LAPAY, MARIO LAPAY, PANCHITO VILLANUEVA, SEGUNDO OLBES, ROGELIO RETEZA, EMILIANO CRISOSTOMO, BASILIO GENEROSA, RUDY CONSTANTINO and PAYLITO TORRECAMPO, accused, CADIZ LAPAY, appellant. PANGANIBAN, J.: In rejecting this appeal, the Court relies on two basic rules: (1) the trial court's assessment of the credibility of witnesses and their testimonies is generally entitled to the highest degree of respect and will not be disturbed on appeal, and (2) positive identification prevails over denial and alibi. The Case Appellant Cadiz Lapay appeals from the October 24, 1990 Decision 1 of the Regional Trial Court of Tagum, Davao, 2 convicting him of murder and sentencing him to three counts of reclusion perpetua. On November 28, 1984, Second Assistant Provincial Prosecutor Pedro T. Casia filed three separate Informations 3for murder against herein appellant and the other accused, namely, Anecito Lapay, Mario Lapay, Panchito Villanueva, Segundo Olbes, Rogelio Reteza, Emiliano Crisostomo, Basilio Generosa, Rudy Constantino and Paylito Torrecampo. Except for the names of the victims, 4 the three Informations were similarly worded as follows: That on or about August 13, 1984, in the Municipality of San Vicente, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another, with treachery and evident pr[e]m[e]ditation, with intent to kill, armed with .30 Carbine rifles and short firearms, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one [Nelson Dumasis], thereby inflicting upon him wounds which caused his death, and further causing actual, moral and compensatory damages to the heirs of the victim. 5 When arraigned on December 28, 1984, the appellant and his co-accused, with the assistance of their counsel, entered a plea of not guilty. 6 However, Accused Mario Lapay, Panchito Villanueva, Rogelio Reteza, Emiliano Crisostomo and Rudy Constantino escaped from prison after being arraigned. 7

During trial and upon motion 8 of Second Assistant Provincial Prosecutor Diosdado A. Yamas, the lower court, in an Order 9 dated July 3, 1990, dismissed the charges against Basilio Generosa. On the motion of the defense counsel and without objection from Fiscal Yamas, the court a quo likewise ordered on January 4, 1985 the provisional dismissal of the case against Paylito Torrecampo on the ground of insufficiency of evidence. 10 After trial on the merits, the court a quo rendered the assailed Decision, the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING, this Court finds the accused Cadiz Lapay guilty beyond reasonable doubt of the crime of murder under Article 248, Revised Penal Code, and sentences him [thus]: a) In Criminal Case No. 6255, to reclusion perpetua, to pay the heirs of Nelson Dumasis the sum of P30,000.00, to suffer the accessory penaltiesprovided for by law and to pay the costs; b) In Criminal Case No. 6256, to reclusion perpetua, to pay the heirs of Rosario Sellado the sum of P30,000.00, to suffer all accessory penalties provided for by law and to pay the costs; c) In Criminal Case No. 6257, to reclusion perpetua, to pay the heirs of Juan Sellado the sum of P30,000.00, to suffer all accessory penalties provided for by law and to pay the costs; and accused Mario Lapay, guilty beyond reasonable doubt of the crime of murder under Article 248, Revised Penal Code, and sentences him [thus]: a) In Criminal Case No. 6255, to reclusion perpetua, to pay the heirs of Nelson Dumasis the sum of P30,000.00, to suffer all accessory penalties provided for by law and to pay the costs; b) In Criminal Case No. 6256, to reclusion perpetua, to pay the heirs of Rosario Sellado the sum of P30,000.00, to suffer all accessory penalties provided for by law and to pay the costs; c) In Criminal Case No. 6257 to reclusion perpetua; to pay the heirs of Juan Sellado the sum of P30,000.00, to suffer all accessory penalties provided for by law and to pay the costs. For insufficiency of evidence, the cases against the following accused, namely: a) Anecito Lapay b) Panchito Villanueva c) Segundo Olbes d) Rogelio Reteza e) Rudy Constantino, and f) Emiliano Crisostomo are hereby dismissed. Without costs.

As stated earlier in this Decision, the cases against accused Paylito Torrecampo and Basilio Generosa had been dismissed for lack of evidence. 11 Both Cadiz and Mario Lapay appealed. However, Mario Lapay escaped from detention on July 10, 1986 and has not been arrested. 12 Accordingly, this Court, in its Resolution dated July 21, 1997, dismissed the appeal of Mario Lapay. 13 Thus, only the appeal of Cadiz Lapay will be resolved. 14 The Version of the Prosecution Facts

Barrun's detailed narration of the incident was summarized by the trial court as follows: That at about eleven o'clock in the morning of August 13, 1984, Anecito Lapay and Loling Lapay came to their house to refer to her the summons they ha[d] received in connection with a case between the Lapays and the spouses Juan and Rosario Sellado. Witness told them to find out about the summons. At about three o'clock in the afternoon of the same day, Juan Sellado, Rosario Sellado and Nelson Dumasis were in her house. Loling Lapay, wife of Anecito Lapay was also in the house. Between 7:30 to 8:00 o'clock in the evening, witness went to the house of Rudy Joyo-a which [was] very close to their house because Anecito Lapay was there. She heard Anecito Lapay asking assistance from Rudy Joyo-a, but Rudy said, "You answer it all by yourselves because I have no money." After taking supper with Rudy, Anecito Lapay disappeared. Then witness saw Nelson Dumasis sitting in the balcony. Nelson told her that there [was] a person [named] Juan Sellado. Witness told Nelson Dumasis to stay put because she [would] go there herself. She approached the two (2) persons and she saw that they were Mario and Cadiz Lapay. Witness pointed to Mario and Cadiz Lapay in the courtroom. Witness heard Cadiz Lapay saying, "I received a summons coming from the court." Then she also heard Rosario saying, "Wait a minute". Cadiz and Mario Lapay were already in the house of Juan Sellado. Witness was not seen because she hid behind a pile of sand of the Suaybaguio Construction. Then there were gun burst[s] coming from the house of Juan Sellado. Cadiz and Mario Lapay caused the firing. Cadiz and Mario Lapay were armed but witness does not know what kind of firearms they had. Then after the gun burst, witness heard from the house of Juan Sellado, Cadiz Lapay saying: "Poldo is still around". Hearing these words, Poldo jumped out of the window of their house and ran away. Cadiz and Mario Lapay chased Poldo, firing two shots at him. Witness did not know whether or not Cadiz and Mario Lapay had companions because all she saw were the two. When Poldo saw two (2) men going to the house of Juan Sellado, he also followed her. Nelson Dumasis was also shot by Cadiz and Mario Lapay. Juan Sellado and Rosario Sellado were also shot by Cadiz and Mario Lapay. 17 Version of the Defense Appellant Cadiz Lapay denied killing the victims, contending that he could not have carried a carbine rifle and pulled its trigger, because his right hand was swollen. The Appellant's Brief contained a perfunctory statement of the facts. In fairness to the accused, we hereby reproduce the trial court's more detailed summary of Lapay's testimony: On August 5, 1984, witness, accused himself, was at his home lying down because he was sick; his right hand was swollen. On August 13, 1984, he was still lying down because his hand was still swollen. He could not carry an object with his right hand. Witness denied the testimony of prosecution witness Cornelio Valencia that between 7:30 to 8:30 in the evening, accused was in the vicinity of the house of Juan Sellado, and with a carbine, fired at the house of Sellado, because he said that [was] not true; the truth being, he (the accused) was in his house lying down at that time. Accused has a witness to show that on said time and date, he was at his house lying down, in the person of Crestito Pitaw, the one who brought him to the clinic. On August 14, 1984, I went to see a quack doctor at the municipality of Asuncion and on the way I met Segundo Olbes. Upon my request I lay down, waiting for a jeep. At the house of Segundo Olbes, I learned from him about the death of Juan Sellado, Rosario Sellado and Nelson Dumasis." Witness denied the testimony of prosecution witness Catalina Barrun, that he, together with his father and brother were going

The prosecution's account hinges on the testimonies of Eyewitnesses Cornelio Valencia and Catalina Barrun. 15The trial court summarized the testimony of Valencia in this manner: On August 12, 1984, witness was in Tagum, Davao, together with Juan and Rosario Sellado. They went home to Logdeck in the afternoon. Logdeck is a barrio in the [M]unicipality of San Vicente, Davao. At eight o'clock in the evening of August 12, 1984, witness was at Logdeck preparing for supper. Then he went to the house of Juan Sellado to call for Nelson Dumasis because supper was ready but upon reaching the house of Juan Sellado, Nelson Dumasis did not go home because he was not yet hungry and instead went to the store of Poldo. Witness also went to the store of Poldo because Nelson went there. He sat at the end of a bench while Sito (Anecito Lapay) was seated at the other end. While witness was still at the store of Poldo, Anecito Lapay left to the direction of the house of Francisco Dubos. Witness followed Sito, maintaining a distance of ten (10) meters away from him. When Anecito Lapay was in front of the house of Francisco Dubos, he turned towards the house of Jaime Argaoanon. When Anecito Lapay was nearing the house of Jaime Argaoanon, he was raising both hands "as if he was signalling". Witness hid among the bushes. Several men appeared. These men proceeded to the house of Juan Sellado. "Incidentally, Rosario Sellado was right at the door. Upon arriving at the house of Juan Sellado, they struck Rosario Sellado who was at the time seated by the door." The witness used the word "tira" and when asked to explain the meaning of the word, the witness said "they immediately sho[t] Rosario Sellado who was seated by the door." When the Court asked: "Who shot Rosario Sellado?", witness answered: "Cadiz Lapay and Mario Lapay." They used a carbine. Anecito Lapay was around. After Rosario Sellado was already dead, they also shot at Juan Sellado. Nelson Dumasis arrived to help [his] auntie but they also shot him Cadiz Lapay and Mario Lapay. Both Cadiz Lapay and Mario Lapay were armed that evening with a carbine. Cadiz Lapay shot Nelson Dumasis in succession, receiving sixteen (16) wounds. When Rosario Sellado was shot, Juan Sellado was only one (1) meter away from her. Both Mario Lapay and Cadiz Lapay fired at Juan Sellado, the latter receiving five (5) wounds. Juan Sellado was shouting for help because he was still alive. The witness further testified, thus: "At first, I assisted Nelson and I called his name and I only discovered that he was dead. Then, I came upon and assisted Juan Sellado who, at that time, was asking for help[.] I asked him who killed him and he told me it was Mario and Cadiz." Witness left for Kapatagan and asked assistance from the barangay captain. When asked: "By the way, that was nighttime. How were you able to identify those persons?" The witness answered: "There was [a] moon during that night and I already knew those persons." At the time of the incident, there was light at the Sellado[s"] house. To the question: "By the way, when Anecito Lapay made a signal, as you said, there appeared several persons[;] can you identify those persons?" and witness answered: "Cito, Mario, Cadiz, Crisostomo, Emiliano, Panchito, Generosa, Rudy, Juan I do not remember his family name." Testifying further, witness said that Anecito Lapay caused many troubles to the Sellados. They frequently ha[d] altercations. The Sellados filed a case against Cadiz Lapay for Arson. 16

towards the house of the victims on August 13, 1984, because he was in his house. From the house of Segundo Olbes, witness proceeded to the house of the quack doctor. xxx xxx xxx On cross examination, witness affirmed that he was sick and bedridden but qualified by saying that he could go out and manage to walk. 18 Corroborating the foregoing, Defense Witness Juanito Naquila took the witness stand. His testimony was narrated by the trial court thus: . . . On August 11, 1984, accused Cadiz Lapay went to his house which [was] about forty meters from the house of Cadiz Lapay[,] for treatment of a swollen right hand. After treatment, Cadiz Lapay remained in his house. On August 13, 1984, in the morning, witness met Cadiz Lapay again and on [the] same date, at six o'clock in the evening, witness served cooked fish to Cadiz Lapay in the house of Cadiz Lapay. Cadiz Lapay was lying in bed, his right [hand] still swelling. On August 14 and 15, 1984, in the evening, witness did not anymore see Cadiz Lapay. 19 To assail the eyewitness account of Prosecution Witness Valencia, the defense also presented Witness Guillermo Santillan, whose testimony was summarized by the trial court in this wise: . . . [A]t about ten o'clock of August 13, 1984, he was on duty as guard at Purok IV. Cornelio Valencia approached him and asked him to accompany Cornelio Valencia to barangay captain Eufracio Almocera. Witness said that he was going to report the killing of Juan Sellado, Rosario Sellado and Nelson Dumasis. When asked by the witness who was the assailant, Cornelio Valencia said, he did not know. Witness accompanied Cornelio Valencia to the barangay captain[.] Cornelio Valencia also told the barangay captain that he did not know the assailant of the Sellados. 20 The Trial Court's Ruling The trial court disbelieved the defenses of denial and alibi, but accorded great weight and credence to the testimonies of Valencia and Barrun, who had actually seen the appellant and his brother Mario shoot the victims. It further ruled that treachery qualified the killing to murder, because the deceased were unarmed and defenseless, and the attack was carried out suddenly and without warning. The lower court also appreciated the generic aggravating circumstances of abuse of superior strength and aid of armed men. Issues In his Brief, 21 appellant raises the following issues: I. Whether or not there [was] physical impossibility for the accused-appellant Cadiz Lapay to have fired a carbine rifle on August 13, 1984 given the fact that the said accused-appellant could not even hold a pen and/or sign the receipt of summons on the morning of the same day.

II. Whether or not the testimonies of Cornelio Valencia, who is an int[e]rested party, and Catalina Barrun, were supported by physical evidence that indeed Cadiz Lapay shot the victims with a use of a carbine rifle. III. Whether o[r] not witnesses Cornelio Valencia and Catalina Barrun ha[d] accurately identified the gunmen of victims Juan Sellado, Rosario Sellado and Nelson Dumasis in view of the fact that the said killing oc[c]urred at nighttime in a place which was notoriously known to be a rebel-infested area in 1984. IV. Whether or not an affidavit duly executed by a witness during his lifetime and which was properly identified by the administering officer, Special Prosecutor Teodoro Yamas, is inadmissible as evidence. 22 All the above alleged errors point to one core issue: the credibility of the prosecution witnesses and their testimonies. In addition, we shall discuss the defenses of denial and alibi, and the characterization of the crime committed. This Court's Ruling The appeal is bereft of merit. Core Issue: Credibility of Witnesses and Their Testimonies Appellant submits that the testimonies of Valencia and Barrun are not worthy of full faith and belief. He also points out that Valencia even admitted not knowing who the assailants were when he reported the incident to Witness Santillan and Barangay Captain Eufracio Almocera. Appellant further contends that he could not have killed the victims with a carbine rifle, because he was bedridden with a swollen right hand at the time of the incident. These arguments do not persuade. It is axiomatic that findings of the trial court with respect to the credibility of witnesses and their testimonies are entitled to great respect 23 and will not be disturbed on appeal, 24 absent any proof that it overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could have affected the result of the case. 25 We find no reason no depart from this rule. Both Valencia and Barrun were consistent in positively identifying Cadiz and Mario Lapay as the malefactors. Valencia testified: Q You mean to say, from the house of Juan Sellado, you went to the store of Poldo? A Yes, sir. Q Why? A I went there because Nelson went to that store. Q Now, aside from Nelson, who else was present in the store of Poldo? A Cito was there. Q Are you referring to Anecito Lapay? A Yes, sir. Q Then what happened after that? A While I was still in the store of Poldo, Cito left. Q To what direction? A He went to the direction of the road leading to the house of Francisco Dubos. Q Now, what did you do?

A I followed Cito maintaining a distance of ten (10) meters away from him. xxx xxx xxx Q Then what happened? A When Anecito Lapay was nearing the house of Jaime Argawanon [ sic], I saw him raising [both of his] hands as if he was signaling. Q Then what happened? A While witnessing the acts of Anecito, I was hiding along the bushes. Q Then what happened? A After that several men appeared. After that they left and they proceeded to the house of Juan Sellado. Incidentally, Rosario Sellado was right at the door. Upon arriving at the house of Juan Sellado, they struck Rosario Sellado who was at the time seated by the door. FISCAL: Your honor please, he used the word "tira". Q What do you mean by the word "tira"? WITNESS: A They immediately shot Rosario Sellado who was seated by the door. COURT: Q Who shot Rosario Sellado? A Cadiz Lapay and Mario Lapay. Q What weapon did they use? A They used a carbine. xxx xxx xxx Q Then what happened to Rosario Sellado when they fired at her? A When Rosario Sellado was already dead, they fired at Juan Sellado also. xxx xxx xxx Q By the way, did you see Nelson Dumasis? A Yes, sir. Q What happened to him? A When Nelson Dumasis arrived to assist his auntie, they also shot him. Q Who shot Nelson Dumasis? A The same men. Q Who are they? A Mario and Cadiz Lapay. 26 Witness Barrun gave this more detailed account of the incident: Q Then what did you observe after that? A Nelson told me that there [was] a person going to the direction of the house of Mama Adyong. Q So what did you do? A I told Nelson to stay put and I'[d] go there myself. xxx xxx xxx Q Then what happened after that? A I approached the two persons, then I saw that it was Cadiz and Mario. Q Do you refer to the person named Cadiz Lapay? A Yes, sir. xxx xxx xxx Q Did Mario and Cadiz Lapay see you in that evening? A They [did not see] me because I hid among the stockpiles. Q What are those stockpiles you are referring to? A Stockpiles of sand of Suaybaguio Construction. Q While there what happened after that? A I heard Cadiz saying, "I received a summons coming from the Corral. Q Then after that what happened? A I heard Rosario Sellado saying, "Wait a minute". Q Do you mean to say Mario and Cadiz Lapay were already in the house of Juan Sellado at that time? A Yes, sir. Q After Rosario Sellado answered, "Wait a minute", what happened? A There were already gun bursts.

Q Do you know where did those gun bursts come from? A Yes, sir, I know. Q Where? A From the house of Juan Sellado. Q Who caused the firing? A Cadiz and Mario caused the firing. xxx xxx xxx Q Did you hear anything from inside the house? A After the gun bursts coming from the house of Juan Sellado, I heard something. Q What [was] that which you heard? A I heard Cadiz saying, "Poldo is still around". Q By the way, were Mario and Cadiz Lapay bringing something? A They were bringing weapons but could not recognize what kind of weapons were those. Q Then what did you do after that? A After hearing the words from Cadiz saying, "Poldo is still around", Poldo immediately jumped out. Q From where did Poldo jump out? A From our window and he ran away. Q How about Mario and Cadiz Lapay, what did they do? A They chased Poldo and fired two shots. Q Did Mario and Cadiz Lapay have companions at that time? A I did not know if they had companions but all I [saw] were the two Mario and Cadiz. Q By the way, who were inside the house of Juan Sellado at the time when there was firing? A Only the two of them, the husband and wife. Q How about Nelson Dumasis, where was he? A He was in our house. Q What happened to Nelson Dumasis in that incident? A When Nelson Dumasis saw the two men, he followed me. Q Then what happened after he followed you? A He was also shot. Q Who shot him? A Cadiz and Mario shot him. 27 These testimonies were straightforward, consistent and replete with details. 28 Moreover, nothing in the record shows that the witnesses were moved by any improper motive; hence, the presumption is that the witnesses were not so actuated and their testimonies are entitled to full faith and credit. 29 Indeed, the trial court accorded these testimonies credence and weight. In light of these considerations, we find no reason to reverse or modify the ruling of the trial court. Delay in Revealing the Identities of the Malefactors Appellant argues that Valencia did not really know who the assailants were, because the said witness failed to disclose the names of the culprits when he reported the incident to Santillan and Almocera. We disagree. The failure of Valencia to immediately report the identities of the malefactors cannot be taken against him. In People v. Malimit, 30 this Court ruled that "[t]he non-disclosure by the witness to the police officers of appellant's identity immediately after the occurrence of the crime is not entirely against human experience. In fact, the natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in this case, is of judicial notice." 31 Delay in revealing the names of the malefactors does not, by itself, impair the credibility of the prosecution witnesses and their testimonies. 32 We explained in People v. Beduya: 33

Fear for one's life explains the failure on the part of witness to a crime to immediately notify the authorities of what exactly transpired. Once such fear is overcome by a more compelling need to narrate the truth, then the witness must be welcomed by the courts to help dispense justice. In fact, when confronted with his omission, Valencia admitted that he was afraid that the assailants would kill him also. 34 In any event, he was able to identify Appellant and Mario Lapay in open court. Counter-Affidavit Inadmissible in Evidence Appellant posits that the trial court erred in not admitting the counter-affidavit executed by Eufracio Almocera, who died before the trial. He argues that the counter-affidavit should have been admitted under the doctrine of independently relevant statement; that is, "not to prove the truth of the facts therein but only to prove that such writings were executed." 35 He further argues that the counter-affidavit "will corroborate . . . a very material fact that indeed Cornelio Valencia [did] not know who the assailants really were as he did not see them." We do not agree. Courts should consider a piece of evidence only for the purpose for which it was offered. 36 In this case, appellant argues that the said document should have been admitted for the sole purpose of proving that such counter-affidavit was executed. The counter-affidavit, therefore, should not have been used for the purpose specified by the defense counsel during the trial: to "disprove the testimony of Cornelio Valencia" 37 or, as he subsequently declared in the Appellant's Brief, to corroborate the testimony of Defense Witness Santillan. 38 For the court to consider the substance of the counter-affidavit is to give probative value to the statements of an affiant who could no longer be subjected to cross-examination, in violation of the hearsay rule. 39 In any event, even if the counter-affidavit were admitted to disprove the eyewitness account of Valencia, the prosecution's case would still prosper. The guilt of appellant rests not only on the testimony of Valencia, but also on the more detailed account of Barrun. Alleged Injury of Appellant While it may be true that the right hand of Cadiz was still swollen when the crime was committed, appellant failed to show that Cadiz could not have possibly perpetrated the killing. Appellant himself admitted in court that he could walk, 40 and this was corroborated by Defense Witness Naquila. 41 More important, no conclusive proof was presented to show that Cadiz could not, at the time, use his right hand to hold a gun and pull its trigger. Added to these facts was appellant's failure to present even a medical certificate to substantiate his claim. Besides, the prosecution eyewitnesses were categorical and consistent in saying that Cadiz and his brother Mario were the ones who had shot the victims. The eyewitnesses cannot be mistaken as to the identity of the felons, because the place was sufficiently illuminated by the moon and the light coming from the house of the Sabellas. 42Their positive declarations prevail over the negative assertions of the appellant and his witnesses. 43 Denial and Alibi

The defenses of denial and alibi deserve scant consideration when the prosecution has strong, clear and convincing evidence identifying appellant as the perpetrator. Appellant failed to show that it was physically impossible for him to be present at the time and the place of commission of the crime. 44 Thus, this Court has ruled that "alibi is one of the weakest defenses an accused can invoke and courts have always looked upon it with caution, if not suspicion, not only because it is inherently unreliable but likewise because it is rather easy to fabricate." 45 The Crime The court a quo correctly ruled that treachery qualified the killing. Present in this case indeed, is the essence of treachery, which is defined as a sudden and unexpected attack without the slightest provocation on the part of the person attacked. 46 The appellant, with his brother Mario, shot the victims who were unarmed and defenseless. However we do not agree with the trial court that two generic aggravating circumstances, abuse of superior strength and aid of armed men, also attended the killing. In People v. Torrefiel, 47 the Court held that treachery absorbs these two circumstances. Civil Indemnity The trial court ordered the appellant to pay the heirs of each victim the amount of P30,000, or a total of P90,000, without stating the reason for the award. We shall treat the award as civil indemnity to the heirs of the three victims, 48 but increase it to P50,000, or a total of P150,000, consistent with prevailing jurisprudence. 49 WHEREFORE, the appeal is DENIED and the assailed Decision is AFFIRMED, but the amount of P30,000 as civil indemnity for the heirs of each victim is INCREASED to P50,000, or a total of P150,000. SO ORDERED. G.R. No. 121439 January 25, 2000 AKLAN ELECTRIC COOPERATIVE INCORPORATED (AKELCO), petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION (Fourth Division), RODOLFO M. RETISO and 165 OTHERS,1respondents. GONZAGA-REYES, J.: In his petition for certiorari and prohibition with prayer for writ of preliminary injunction and/or temporary restraining order, petitioner assails (a) the decision dated April 20, 1995, of public respondent National Labor Relations Commission (NLRC), Fourth (4th) Division, Cebu City, in NLRC Case No. V-0143-94 reversing the February 25, 1994 decision of Labor Arbiter Dennis D. Juanon and ordering petitioner to pay wages in the aggregate amount of P6,485,767.90 to private respondents, and (b) the resolution dated July 28, 1995 denying petitioner's motion for reconsideration, for having been issued with grave abuse of discretion. A temporary restraining order was issued by this Court on October 9, 1995 enjoining public respondent from executing the questioned decision upon a surety bond posted by petitioner in the amount of P6,400,000.00.2 The facts as found by the Labor Arbiter are as follows:3

These are consolidated cases/claims for non-payment of salaries and wages, 13th month pay, ECOLA and other fringe benefits as rice, medical and clothing allowances, submitted by complainant Rodolfo M. Retiso and 163 others, Lyn E. Banilla and Wilson B. Sallador against respondents Aklan Electric Cooperative, Inc. (AKELCO), Atty. Leovigildo Mationg in his capacity as General Manager; Manuel Calizo, in his capacity as Acting Board President, Board of Directors, AKELCO. Complainants alleged that prior to the temporary transfer of the office of AKELCO from Lezo Aklan to Amon Theater, Kalibo, Aklan, complainants were continuously performing their task and were duly paid of their salaries at their main office located at Lezo, Aklan. That on January 22, 1992, by way of resolution of the Board of Directors of AKELCO allowed the temporary transfer holding of office at Amon Theater, Kalibo, Aklan per information by their Project Supervisor, Atty. Leovigildo Mationg, that their head office is closed and that it is dangerous to hold office thereat; Nevertheless, majority of the employees including herein complainants continued to report for work at Lezo Aklan and were paid of their salaries. That on February 6, 1992, the administrator of NEA, Rodrigo Cabrera, wrote a letter addressed to the Board of AKELCO, that he is not interposing any objections to the action taken by respondent Mationg. . . That on February 11, 1992, unnumbered resolution was passed by the Board of AKELCO withdrawing the temporary designation of office at Kalibo, Aklan, and that the daily operations must be held again at the main office of Lezo, Aklan;4 That complainants who were then reporting at the Lezo office from January 1992 up to May 1992 were duly paid of their salaries, while in the meantime some of the employees through the instigation of respondent Mationg continued to remain and work at Kalibo, Aklan; That from June 1992 up to March 18, 1993, complainants who continuously reported for work at Lezo, Aklan in compliance with the aforementioned resolution were not paid their salaries; That on March 19, 1993 up to the present, complainants were again allowed to draw their salaries; with the exception of a few complainants who were not paid their salaries for the months of April and May 1993; Per allegations of the respondents, the following are the facts: 1. That these complainants voluntarily abandoned their respective work/job assignments, without any justifiable reason and without notifying the management of the Aklan Electric Cooperative, Inc. (AKELCO), hence the cooperative suffered damages and systems loss; 2. That the complainants herein defied the lawful orders and other issuances by the General Manager and the Board of Directors of the AKELCO. These complainants were requested to report to work at the Kalibo office . . . but despite these lawful orders of the General Manager, the

complainants did not follow and wilfully and maliciously defied said orders and issuance of the General Manager; that the Board of Directors passed a Resolution resisting and denying the claims of these complainants, . . . under the principle of "no work no pay" which is legally justified; That these complainants have "mass leave" from their customary work on June 1992 up to March 18, 1993 and had a "sit-down" stance for these periods of time in their alleged protest of the appointment of respondent Atty. Leovigildo Mationg as the new General Manager of the Aklan Electric Cooperative, Inc. (AKELCO) by the Board of Directors and confirmed by the Administrator of the National Electrification Administration (NEA), Quezon City; That they engaged in ". . . slowdown mass leaves, sit downs, attempts to damage, destroy or sabotage plant equipment and facilities of the Aklan Electric Cooperative, Inc. (AKELCO). On February 25, 1994, a decision was rendered by Labor Arbiter Dennis D. Juanon dismissing the complaints.5 Dissatisfied with the decision, private respondents appealed to the respondent Commission. On appeal, the NLRC's Fourth Division, Cebu City,6 reversed and set aside the Labor Arbiter's decision and held that private respondents are entitled to unpaid wages from June 16, 1992 to March 18, 1993, thus:7 The evidence on records, more specifically the evidence submitted by the complainants, which are: the letter dated April 7, 1993 of Pedrito L. Leyson, Office Manager of AKELCO (Annex "C"; complainants' position paper; Rollo, p. 102) addressed to respondent Atty. Leovigildo T. Mationg; respondent AKELCO General Manager; the memorandum of said Atty. Mationg dated 14 April 1993, in answer to the letter of Pedrito Leyson (Annex "D" complainants' position paper); as well as the computation of the unpaid wages due to complainants (Annexes "E" to "E-3"; complainants' position paper, Rollo, pages 1024 to 1027) clearly show that complainants had rendered services during the period-June 16, 1992 to March 18, 1993. The record is bereft of any showing that the respondents had submitted any evidence, documentary or otherwise, to controvert this asseveration of the complainants that services were rendered during this period. "Subjecting these evidences submitted by the complainants to the crucible of scrutiny, We find that respondent Atty. Mationg responded to the request of the Office Manager, Mr. Leyson, which We quote, to wit: Rest assured that We shall recommend your aforesaid request to our Board of Directors for their consideration and appropriate action. This payment, however, shall be subject, among others, to the availability of funds. This assurance is an admission that complainants are entitled to payment for services rendered from June 16, 1992 to March 18, 1993, specially so that the recommendation and request comes from the office manager himself who has direct knowledge regarding the services and performance of employees under him. For how could one office manager recommend payment of wages, if no services were rendered by employees under him. An office manager is the most qualified person to know the performance of personnel under him. And therefore, any request coming from him for payment of wages addressed to his superior as in the instant case shall be given weight. Furthermore, the record is clear that complainants were paid of their wages and other fringe benefits from January, 1992 to May, 1992 and from March 19, 1993 up to the

time complainants filed the instant cases. In the interegnum, from June 16, 1992 to March 18, 1993, complainants were not paid of their salaries, hence these claims. We could see no rhyme nor reason in respondents' refusal to pay complainants salaries during this period when complainants had worked and actually rendered service to AKELCO. While the respondents maintain that complainants were not paid during this interim period under the principle of "no work, no pay", however, no proof was submitted by the respondents to substantiate this allegation. The labor arbiter, therefore, erred in dismissing the claims of the complainants, when he adopted the "no work, no pay" principle advanced by the respondents. 1wphi1.nt WHEREFORE, in view of the foregoing, the appealed decision dated February 25, 1994 is hereby Reversed and Set Aside and a new one entered ordering respondent AKELCO to pay complainants their claims amounting to P6,485,767.90 as shown in the computation (Annexes "E" to "E-3"). A motion for reconsideration was filed by petitioner but the same was denied by public respondent in a resolution dated July 28, 1995.8 Petitioner brought the case to this Court alleging that respondent NLRC committed grave abuse of discretion citing the following grounds:9 1. PUBLIC RESPONDENT COMMITTED GRAVE DISCRETION IN REVERSING THE FACTUAL FINDINGS AND CONCLUSIONS OF THE LABOR ARBITER, AND DISREGARDING THE EXPRESS ADMISSION OF PRIVATE RESPONDENTS THAT THEY DEFIED PETITIONER'S ORDER TRANSFERRING THE PETITIONER'S OFFICIAL BUSINESS OFFICE FROM LEZO TO KALIBO AND FOR THEM TO REPORT THEREAT. 2. PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN CONCLUDING THAT PRIVATE RESPONDENTS WERE REALLY WORKING OR RENDERING SERVICE ON THE BASIS OF THE COMPUTATION OF WAGES AND THE BIASED RECOMMENDATION SUBMITTED BY LEYSON WHO IS ONE OF THE PRIVATE RESPONDENTS WHO DEFIED THE LAWFUL ORDERS OF PETITIONER. 3. PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN CONSIDERING THE ASSURANCE BY PETITIONER'S GENERAL MANAGER MATIONG TO RECOMMEND THE PAYMENT OF THE CLAIMS OF PRIVATE RESPONDENTS AS AN ADMISSION OF LIABILITY OR A RECOGNITION THAT COMPENSABLE SERVICES WERE ACTUALLY RENDERED. 4. GRANTING THAT PRIVATE RESPONDENTS CONTINUED TO REPORT AT THE LEZO OFFICE, IT IS STILL GRAVE ABUSE OF DISCRETION FOR PUBLIC RESPONDENT TO CONSIDER THAT PETITIONER IS LEGALLY OBLIGATED TO RECOGNIZE SAID CIRCUMSTANCE AS COMPENSABLE SERVICE AND PAY WAGES TO PRIVATE RESPONDENTS FOR DEFYING THE ORDER FOR THEM TO REPORT FOR WORK AT THE KALIBO OFFICE WHERE THE OFFICIAL BUSINESS AND OPERATIONS WERE CONDUCTED. 5. PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AND SERIOUS, PATENT AND PALPABLE ERROR IN RULING THAT THE "NO WORK, NO PAY" PRINCIPLE DOES NOT APPLY FOR LACK OF EVIDENTIARY SUPPORT

WHEN PRIVATE RESPONDENTS ALREADY ADMITTED THAT THEY DID NOT REPORT FOR WORK AT THE KALIBO OFFICE. 6. PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN ACCORDING WEIGHT AND CREDIBILITY TO THE SELF-SERVING AND BIASED ALLEGATIONS OF PRIVATE RESPONDENTS, AND ACCEPTING THEM AS PROOF, DESPITE THE ESTABLISHED FACT AND ADMISSION THAT PRIVATE RESPONDENTS DID NOT REPORT FOR WORK AT THE KALIBO OFFICE, OR THAT THEY WERE NEVER PAID FOR ANY WAGES FROM THE TIME THEY DEFIED PETITIONER'S ORDERS. Petitioner contends that public respondent committed grave abuse of discretion in finding that private respondents are entitled to their wages from June 16, 1992 to March 18, 1993, thus disregarding the principle of "no work, no pay". It alleges that private respondents stated in their pleadings that they not only objected to the transfer of petitioner's business office to Kalibo but they also defied the directive to report thereat because they considered the transfer illegal. It further claims that private respondents refused to recognize the authority of petitioner's lawful officers and agents resulting in the disruption of petitioner's business operations in its official business office in Lezo, Aklan, forcing petitioner to transfer its office from Lezo to Kalibo transferring all its equipments, records and facilities; that private respondents cannot choose where to work, thus, when they defied the lawful orders of petitioner to report at Kalibo, private respondents were considered dismissed as far as petitioner was concerned. Petitioner also disputes private respondents' allegation that they were paid their salaries from January to May 1992 and again from March 19, 1993 up to the present but not for the period from June 1992 to March 18, 1993 saying that private respondents illegally collected fees and charges due petitioner and appropriated the collections among themselves for which reason they are claiming salaries only for the period from June 1992 to March 1993 and that private respondents were paid their salaries starting only in April 1993 when petitioner's Board agreed to accept private respondents back to work at Kalibo office out of compassion and not for the reason that they rendered service at the Lezo office. Petitioner also adds that compensable service is best shown by timecards, payslips and other similar documents and it was an error for public respondent to consider the computation of the claims for wages and benefits submitted merely by private respondents as substantial evidence. The Solicitor General filed its Manifestation in lieu of Comment praying that the decision of respondent NLRC be set aside and payment of wages claimed by private respondents be denied for lack of merit alleging that private respondents could not have worked for petitioner's office in Lezo during the stated period since petitioner transferred its business operation in Kalibo where all its records and equipments were brought; that computations of the claims for wages and benefits submitted by private respondents to petitioner is not proof of rendition of work. Filing its own Comment, public respondent NLRC claims that the original and exclusive jurisdiction of this Court to review decisions or resolutions of respondent NLRC does not include a correction of its evaluation of evidence as factual issues are not fit subject for certiorari. Private respondents, in their Comment, allege that review of a decision of NLRC in a petition for certiorari under Rule 65 does not include the correctness of its evaluation of the evidence but is confined to issues of jurisdiction or grave abuse of discretion and that factual findings of administrative bodies are entitled great weight, and accorded not only respect but even finality when supported by substantial evidence. They claim that petitioner's Board of Directors passed an unnumbered resolution on February 11, 1992 returning back the office to Lezo from Kalibo Aklan with a directive for all employees to immediately report at Lezo; that the letter-reply of Atty. Mationg to the letter of office manager Leyson that he will recommend the payment of the private respondents' salary from June 16, 1992 to March 18, 1993 to the Board of Directors was an admission that private respondent are entitled to such payment for services rendered. Private respondents state that in appreciating the evidence in their favor, public respondent NLRC at

most may be liable for errors of judgment which, as differentiated from errors of jurisdiction, are not within the province of the special civil action of certiorari. Petitioner filed its Reply alleging that review of the decision of public respondent is proper if there is a conflict in the factual findings of the labor arbiter and the NLRC and when the evidence is insufficient and insubstantial to support NLRC's factual findings; that public respondent's findings that private respondent rendered compensable services were merely based on private respondents' computation of claims which is self-serving; that the alleged unnumbered board resolution dated February 11, 1992, directing all employees to report to Lezo Officer was never implemented because it was not a valid action of AKELCO's legitimate board. The sole issue for determination is whether or not public respondent NLRC committed grave abuse of discretion amounting to excess or want of jurisdiction when it reversed the finding of the Labor Arbiter that private respondent refused to work under the lawful orders of the petitioner AKELCO management; hence they are covered by the "no work, no pay" principle and are thus not entitled to the claim for unpaid wages from June 16, 1992 to March 18, 1993. We find merit in the petition. At the outset, we reiterate the rule that in certiorari proceedings under Rule 65, this Court does not assess and weigh the sufficiency of evidence upon which the labor arbiter and public respondent NLRC based their resolutions. Our query is limited to the determination of whether or not public respondent NLRC acted without or in excess of its jurisdiction or with grave abuse of discretion in rendering the assailed resolutions.10 While administrative findings of fact are accorded great respect, and even finality when supported by substantial evidence, nevertheless, when it can be shown that administrative bodies grossly misappreciated evidence of such nature as to compel a contrary conclusion, this court had not hesitated to reverse their factual findings.11 Factual findings of administrative agencies are not infallible and will be set aside when they fail the test of arbitrariness.12Moreover, where the findings of NLRC contradict those of the labor arbiter, this Court, in the exercise of its equity jurisdiction, may look into the records of the case and reexamine the questioned findings.13 We find cogent reason, as shown by the petitioner and the Solicitor General, not to affirm the factual findings of public respondent NLRC. We do not agree with the finding that private respondents had rendered services from June 16, 1992 to March 18, 1993 so as to entitle them to payment of wages. Public respondent based its conclusion on the following: (a) the letter dated April 7, 1993 of Pedrito L. Leyson, Office Manager of AKELCO addressed to AKELCO's General Manager, Atty. Leovigildo T. Mationg, requesting for the payment of private respondents' unpaid wages from June 16, 1992 to March 18, 1993; (b) the memorandum of said Atty. Mationg dated 14 April 1993, in answer to the letter request of Pedrito Leyson where Atty. Mationg made an assurance that he will recommend such request; (c) the private respondents' own computation of their unpaid wages. We find that the foregoing does not constitute substantial evidence to support the conclusion that private respondents are entitled to the payment of wages from June 16, 1992 to March 18, 1993. Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.14 These evidences relied upon by public respondent did not establish the fact that private respondents actually rendered services in the Kalibo office during the stated period. The letter of Pedrito Leyson to Atty. Mationg was considered by public respondent as evidence that services were rendered by private respondents during the stated period, as the recommendation and request came from the office manager who has direct knowledge regarding the services and performance of employees under him. We are not convinced. Pedrito Leyson is one of the herein private respondents who are claiming for unpaid wages and we find

his actuation of requesting in behalf of the other private respondents for the payment of their backwages to be biased and self-serving, thus not credible. On the other hand, petitioner was able to show that private respondents did not render services during the stated period. Petitioner's evidences show that on January 22, 1992, petitioner's Board of Directors passed a resolution temporarily transferring the Office from Lezo, Aklan to Amon Theater, Kalibo, Aklan upon the recommendation of Atty. Leovigildo Mationg, then project supervisor, on the ground that the office at Lezo was dangerous and unsafe. Such transfer was approved by then NEA Administrator, Rodrigo E. Cabrera, in a letter dated February 6, 1992 addressed to petitioner's Board of Directors. 15 Thus, the NEA Administrator, in the exercise of supervision and control over all electric cooperatives, including petitioner, wrote a letter dated February 6, 1992 addressed to the Provincial Director PC/INP Kalibo Aklan requesting for military assistance for the petitioner's team in retrieving the electric cooperative's equipments and other removable facilities and/or fixtures consequential to the transfer of its principal business address from Lezo to Kalibo and in maintaining peace and order in the cooperative's coverage area.16 The foregoing establishes the fact that the continuous operation of the petitioner's business office in Lezo Aklan would pose a serious and imminent threat to petitioner's officials and other employees, hence the necessity of temporarily transferring the operation of its business office from Lezo to Kalibo. Such transfer was done in the exercise of a management prerogative and in the absence of contrary evidence is not unjustified. With the transfer of petitioner's business office from its former office, Lezo, to Kalibo, Aklan, its equipments, records and facilities were also removed from Lezo and brought to the Kalibo office where petitioner's official business was being conducted; thus private respondents' allegations that they continued to report for work at Lezo to support their claim for wages has no basis. Moreover, private respondents in their position paper admitted that they did not report at the Kalibo office, as Lezo remained to be their office where they continuously reported, to wit:17 On January 22, 1991 by way of a resolution of the Board of Directors of AKELCO it allowed the temporary holding of office at Amon Theater, Kalibo, Aklan, per information by their project supervisor, Atty. Leovigildo Mationg that their head office is closed and that it is dangerous to hold office thereat. Nevertheless, majority of the employees including the herein complainants, continued to report for work at Lezo, Aklan and were paid of their salaries. xxx xxx xxx

The transfer of office from Lezo, Aklan to Kalibo, Aklan being illegal for failure to comply with the legal requirements under P.D. 269, the complainants remained and continued to work at the Lezo Office until they were illegally locked out therefrom by the respondents. Despite the illegal lock out however, complainants continued to report daily to the location of the Lezo Office, prepared to continue in the performance of their regular duties. Complainants thus could not be considered to have abandoned their work as Lezo remained to be their office and not Kalibo despite the temporary transfer thereto. Further the fact that they were allowed to draw their salaries up to May, 1992 is an acknowledgment by the management that they are working during the period. xxx xxx xxx

It must be pointed out that complainants worked and continuously reported at Lezo office despite the management holding office at Kalibo. In fact, they were paid their

wages before it was withheld and then were allowed to draw their salaries again on March 1993 while reporting at Lezo up to the present. Respondents' acts and payment of complainants' salaries and again from March 1993 is an unequivocal recognition on the part of respondents that the work of complainants is continuing and uninterrupted and they are therefore entitled to their unpaid wages for the period from June 1992 to March 1993. The admission is detrimental to private respondents' cause. Their excuse is that the transfer to Kalibo was illegal but we agree with the Labor Arbiter that it was not for private respondents to declare the management's act of temporarily transferring the AKELCO office to Kalibo as an illegal act. There is no allegation nor proof that the transfer was made in bad faith or with malice. The Labor Arbiter correctly rationalized in its decision as follows: 18 We do not subscribe to complainants theory and assertions. They, by their own allegations, have unilaterally committed acts in violation of management's/respondents' directives purely classified as management prerogative. They have taken amongst themselves declaring management's acts oftemporarily transferring the holding of the AKELCO office from Lezo to Kalibo, Aklan as illegal. It is never incumbent upon themselves to declare the same as such. It is lodged in another forum or body legally mantled to do the same. What they should have done was first to follow management's orders temporarilytransferring office for it has the first presumption of legality. Further, the transfer was only temporary. For: The employer as owner of the business, also has inherent rights, among which are the right to select the persons to be hired and discharge them for just and valid cause; to promulgate and enforce reasonable employment rules and regulations and to modify, amend or revoke the same; to designate the work as well as the employee or employees to perform it; to transfer or promote employees; to schedule, direct, curtail or control company operations; to introduce or install new or improved labor or money savings methods, facilities or devices; to create, merge, divide, reclassify and abolish departments or positions in the company and to sell or close the business. xxx xxx xxx

Private respondents claim that petitioner's Board of Directors passed an unnumbered resolution dated February 11, 1992 returning back the office from its temporary office in Kalibo to Lezo. Thus, they did not defy any lawful order of petitioner and were justified in continuing to remain at Lezo office. This allegation was controverted by petitioner in its Reply saying that such unnumbered resolution was never implemented as it was not a valid act of petitioner's Board. We are convinced by petitioner's argument that such unnumbered resolution was not a valid act of petitioners legitimate Board considering the subsequent actions taken by the petitioner's Board of Directors decrying private respondents inimical act and defiance, to wit (1) Resolution No. 411, s. of 1992 on September 9, 1992, dismissing all AKELCO employees who were on illegal strike and who refused to return to work effective January 31, 1992 despite the directive of the NEA project supervisor and petitioner's acting general manager; 19(2) Resolution No. 477, s. of 1993 dated March 10, 1993 accepting back private respondents who staged illegal strike, defied legal orders and issuances, out of compassion, reconciliation, Christian values and humanitarian reason subject to the condition of "no work, no pay"20 (3) Resolution No. 496, s. of 1993 dated June 4, 1993, rejecting the demands of private respondents for backwages from June 16, 1992 to March 1993 adopting the policy of "no work, no pay" as such demand has no basis, and directing the COOP Legal Counsel to file criminal cases against employees who misappropriated collections and officers who authorized disbursements of funds without legal authority from the NEA and the AKELCO Board.21 If indeed there was a valid board resolution transferring back petitioner's office to Lezo from its temporary office in Kalibo, there was no need for the Board to pass the above-cited resolutions. We are also unable to agree with public respondent NLRC when it held that the assurance made by Atty. Mationg to the letter-request of office manager Leyson for the payment of private respondents' wages from June 1992 to March 1993 was an admission on the part of general manager Mationg that private respondents are indeed entitled to the same. The letter reply of Atty. Mationg to Leyson merely stated that he will recommend the request for payment of backwages to the Board of Directors for their consideration and appropriate action and nothing else, thus, the ultimate approval will come from the Board of Directors. We find well-taken the argument advanced by the Solicitor General as follows:22 The allegation of private respondents that petitioner had already approved payment of their wages is without basis. Mationg's offer to recommend the payment of private respondents' wages is hardly approval of their claim for wages. It is just an undertaking to recommend payment. Moreover, the offer is conditional. It is subject to the condition that petitioner's Board of Directors will give its approval and that funds were available. Mationg's reply to Leyson's letter for payment of wages did not constitute approval or assurance of payment. The fact is that, the Board of Directors of petitioner rejected private respondents demand for payment (Board Resolution No. 496, s. 1993). We are accordingly constrained to overturn public respondent's findings that petitioner is not justified in its refusal to pay private respondents' wages and other fringe benefits from June 16, 1992 to March 18, 1993; public respondents stated that private respondents were paid their salaries from January to May 1992 and again from March 19, 1993 up to the present. As cited earlier, petitioner's Board in a Resolution No. 411 dated September 9, 1992 dismissed private respondents who were on illegal strike and who refused to report for work at Kalibo office effective January 31, 1992; since no services were rendered by private respondents they were not paid their salaries. Private respondents never questioned nor controverted the Resolution dismissing them and nowhere in their Comment is it stated that they questioned such dismissal. Private respondents also have not rebutted petitioner's claim that private respondents illegally collected fees and charges due petitioner and appropriated the collections among themselves to satisfy their salaries from January to May 1992, for which reason, private respondents are merely claiming salaries only for the period from June 16, 1992 to March 1993.

Even as the law is solicitous of the welfare of the employees it must also protect the right of an employer to exercise what are clearly management prerogatives. The free will of management to conduct its own business affairs to achieve its purpose can not be denied. The transfer of assignment of a medical representative from Manila to the province has therefore been held lawful where this was demanded by the requirements of the drug company's marketing operations and the former had at the time of his employment undertaken to accept assignment anywhere in the Philippines. (Abbot Laboratories (Phils.), Inc., et al. vs. NLRC, et al., G.R. No. L-76959, Oct. 12, 1987). It is the employer's prerogative to abolish a position which it deems no longer necessary, and the courts, absent any findings of malice on the part of the management, cannot erase that initiative simply to protect the person holding office (Great Pacific Life Assurance Corporation vs. NLRC, et al., G.R. No. 88011, July 30, 1990).

Private respondents were dismissed by petitioner effective January 31, 1992 and were accepted back by petitioner, as an act of compassion, subject to the condition of "no work, no pay" effective March 1993 which explains why private respondents were allowed to draw their salaries again. Notably, the letter-request of Mr. Leyson for the payment of backwages and other fringe benefits in behalf of private respondents was made only in April 1993, after a Board Resolution accepting them back to work out of compassion and humanitarian reason. It took private respondents about ten months before they requested for the payment of their backwages, and the long inaction of private respondents to file their claim for unpaid wages cast doubts as to the veracity of their claim. The age-old rule governing the relation between labor and capital, or management and employee of a "fair day's wage for a fair day's labor" remains as the basic factor in determining employees' wages. If there is no work performed by the employee there can be no wage or pay unless, of course, the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed,23 or otherwise illegally prevented from working,24 a situation which we find is not present in the instant case. It would neither be fair nor just to allow private respondents to recover something they have not earned and could not have earned because they did not render services at the Kalibo office during the stated period. Finally, we hold that public respondent erred in merely relying on the computations of compensable services submitted by private respondents. There must be competent proof such as time cards or office records to show that they actually rendered compensable service during the stated period to entitle them to wages. It has been established that the petitioner's business office was .transferred to Kalibo and all its equipments, records and facilities were transferred thereat and that it conducted its official business in Kalibo during the period in question. It was incumbent upon private respondents to prove that they indeed rendered services for petitioner, which they failed to do. It is a basic rule in evidence that each party must prove his affirmative allegation. Since the burden of evidence lies with the party who asserts the affirmative allegation, the plaintiff or complainant has to prove his affirmative allegations in the complaint and the defendant or the respondent has to prove the affirmative allegation in his affirmative defenses and counterclaim.25 WHEREFORE, in view of the foregoing, the petition for CERTIORARI is GRANTED. Consequently the decision of public respondent NLRC dated April 20, 1995 and the Resolution dated July 28, 1995 in NLRC Case No. V-0143-94 are hereby REVERSED and SET ASIDE for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction. Private respondents complaint for payment of unpaid wages before the Labor Arbiter is DISMISSED.1wphi1.nt SO ORDERED. G.R. No. 133477 January 21, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN RAFALES, accused-appellant. DAVIDE, JR., C.J.: Accused-appellant Benjamin Rafales (hereafter BENJAMIN) appeals from the 16 May 1997 judgment1 of the Regional Trial Court, Branch 2, of Balanga, Bataan, in Criminal Case No. 6115, which convicted him of statutory rape and sentenced him to suffer the penalty of reclusion perpetua with the accessory penalties, to pay the victim the amount of P40,000 as civil indemnity and to pay the costs. The information that charged BENJAMIN with rape reads as follows:

That in or about the month of November 1993 at Brgy. Gen. Lim, Orion, Bataan, Philippines and within the jurisdiction of this Honorable Court, the said accused thru force and intimidation, did then and there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, Rochelle Gabriel y Abanador, 11 year old minor girl, against the will and consent of the latter, to her damage and prejudice.2 BENJAMIN pleaded not guilty upon his arraignment. Trial on the merits followed. The prosecution first presented as witness the victim Rochelle Gabriel y Abanador (hereafter ROCHELLE). ROCHELLE testified that in 1993, her neighbor BENJAMIN thrice raped her. The first rape took place sometime in November. ROCHELLE was then at her home with her siblings while her parents were at the farm. BENJAMIN arrived, unceremoniously removed ROCHELLE's dress, laid her on the floor, undressed himself, placed himself on top of her and inserted his penis in her vagina. ROCHELLE felt pain. After the act was over, she saw a whitish substance on her vagina.3 The second incident of rape occurred three days after. It was mid-afternoon. ROCHELLE and playmate Gemma Benaro were playing in the latter's house. BENJAMIN appeared, ordered Gemma to leave, undressed ROCHELLE, laid her on the floor, undressed himself, placed himself on top of her and inserted his penis in her vagina. As before, ROCHELLE felt pain and noticed a white substance on her vagina.4 The third rape took place a few days after this incident. ROCHELLE and playmate Marissa Rafales were playing cards at the latter's house when BENJAMIN arrived and asked Marissa to leave. BENJAMIN removed ROCHELLE's dress and short. He laid her down, undressed himself, stayed on top of her and inserted his penis in her vagina. ROCHELLE again felt pain and saw a white substance on her vagina.5 Testifying that she was born on 30 August 1983, ROCHELLE was ten (10) years old when these incidents took place. ROCHELLE did not report or reveal to her parents or anyone else the sexual molestations.6 BENJAMIN's threats to kill her and her family proved too much of a deterrence. Claiming that she had frequent quarrels with her siblings, ROCHELLE ran away from home. She took refuge in the streets and sought the company of streetchildren.7 The police finally found her and brought her to one Vicky Santos, an employee of the Department of Social Welfare and Development.8 ROCHELLE stayed with Vicky for four (4) months before she was turned over to the orphanage. Hence, it was only after two (2) years or in 1995 when ROCHELLE finally disclosed her sexual ignominy from BENJAMIN's lecherous arms. Despite her fears that BENJAMIN would carry out his threats to kill her, ROCHELLE confessed the sexual molestations to Vicky when she confronted her (ROCHELLE) with stories of a childrace victim. ROCHELLE learned that Vicky heard these stories from Gemma, Marissa, and BENJAMIN's two sisters. Thus, Vicky accompanied ROCHELLE to the police station where she executed a sworn statement9 attesting to the incidents of the rape. After ROCHELLE's testimony, the other witnesses of the prosecution took the witness stand. Pacita Abanador, ROCHELLE's mother, testified that ROCHELLE was born on 30 August 1983. She also identified BENJAMIN as their neighbor.10 SPO Rolando Bernabe claimed that he was the investigating police officer who took ROCHELLE and Pacita Abanador's sworn statements. Dr. Jose Bernardo Gochoco, Jr. who physically examined ROCHELLE two years after the rape incidents affirmed his findings contained in a medico legal report 11 that ROCHELLE's hymenal

ring and posterior fourchette were intact. He concluded that there was no physical penetration of ROCHELLE's labia majora.12 For its part, the defense presented its lone witness, accused BENJAMIN. His defense consisted mainly of denial. He denied having raped ROCHELLE at any time. He denied the rape charge when he was interrogated at the police precinct. He denied his lechery when a representative of the Department of Social Welfare and Development visited and allegedly urged him while in prison to confess to the crime. Yet, he knew of no reason why ROCHELLE would falsely accuse him of rape.13 In weighing the evidence thus proffered, the trial court found that the prosecution proved beyond reasonable doubt BENJAMIN's culpability. Affording full credence to ROCHELLE's positive testimony, the trial court disposed: It could be seen that there is direct testimony by the young victim that the accused laid on top of her and raped her. While there seems to be a variance on how she was raped in her statement before the police, she was violated four (4) times and she was not sure whether there was penetration or not, but in her declaration in Court she said that she was raped three (3) times and that there was penetration and that she saw whitish substance in her genitali genitalia the stubborn fact is that the victim declared that she felt pain when the penis of the accused was directed at her private parts. The Court holds that the variance between the out of Court statement and the declaration in Court does not serve to discredit the testimony of the complainant that the accused raped her. Affidavits are generally incomplete and discrepancies between the statements of the affiant and those made on the witness stand do not necessarily discredit the witness. (People vs. Soan, 243 SCRA 627) Neither could the fact that the victim only revealed her ordeal some four (4) months after she was taken custody by the DSWD sufficient reason to discredit totally her testimony. A young firl [sic] below twelve (12) years could not be expected to be as prompt and punctilious in denouncing those who violate her chastity as a woman of age would. She ran away from home after she was molested by the accused and was found by the police roaming at the town plaza of sufficient excuse for her delayed revelation of the dastardly act committed against her. Delay in the prosecuting. [sic] the rape is not an indication of fabricated charges. (People vs. Cabresos, 244 SCRA 362). That the hymenal ring and fourchette of the victim were intact per the medico-legal certificate do not belie the testimony of the victim that she was raped. In the case of People vs. Castro, 196 SCRA 679, it was held that if the victim is of tender age, the penetration of the male organ could go only as deep as the labia. The visible effect had there been an immediate examination would have been swelling of the parts which suffered traumatic contact of the penis seeking entry. For rape to be committed entrance of the male organ within the labia or pudendum of the female organ is sufficient. Rupture of the hymen or laceration of the vagina ar not essential. Entry, to the least extent of the labia or lips of the female organ is sufficient. The victim remaining a virgin does not negate rape. The fact that the whitish substance was found at the pedendum [sic] is proof enough that the penis of the accused at least knocked at the door of the vagina. This is already considered rape.14 But while the prosecution proved that BENJAMIN thrice raped ROCHELLE, the information charged him with only one count of rape, thus the trial court held that BENJAMIN could only be convicted of one crime of rape. And since the rape was committed against a victim below twelve

(12) years old without any attendant modifying circumstances, the trial court imposed the penalty of reclusion perpetua. The dispositive portion reads as follows: WHEREFORE, the guilt of the accused having been proved beyond reasonable doubt for statutory rape, the accused is sentenced to reclusion perpetua with the accessory penalties provided by law. The accused is also ordered to indemnify the victim the sum of P40,000.00 and to pay the costs.15 In his appeal, BENJAMIN contends that the prosecution failed to establish his guilt beyond reasonable doubt. He emphasizes that certain facts, ignored by the trial court, underscore his innocence and ROCHELLE's lack of credibility, viz.: (1) the delay in the reporting of the rape charge coupled by the probability that ROCHELLE's wanderings and constant company of streetchildren might have undermined the stability of her mind at the time of her testimony; (2) the ponente's admission that he did not personally observe the deportment of the witnesses; (3) ROCHELLE's observation that she found a whitish substance on her vagina, where if she was indeed raped, she should have discharged blood; and (4) the failure of ROCHELLE's mother to notice any change in her daughter's behavior, for ROCHELLE should have exhibited the consequent physical and emotional trauma evident in a rape victim. Antithetic to BENJAMIN's disavowal is the Office of the Solicitor General's prayer (as contained in the Brief for the Appellee) for the affirmance of the challenged decision. Said Office maintains that there is moral certainty that BENJAMIN committed the crime charged. ROCHELLE positively identified BENJAMIN as her rapist. Her straightforward, candid and spontaneous testimony should dispel any doubt on her credibility or of the fact that the crime was actually perpetrated. Her sole testimony established BENJAMIN's conviction. Further, the inconsistencies between ROCHELLE's oral testimony and her affidavit were accurately noted and explained by the trial court. Significantly, BENJAMIN also failed to impute to ROCHELLE any ulterior motive why she would falsely testify against him. The only conclusion is that no such motive existed and that her testimony is worthy of full faith and credit. The Office of the Solicitor General additionally asserts that BENJAMIN's denunciation of ROCHELLE's conduct after the rape is purely speculative. There is no proof of ROCHELLE's mental imbalance. Her mother's failure to observe any change in her behavior and the absence of a bloody discharge did not militate against the fact that she was ravished. Also inconsequential is ROCHELLE's unlacerated hymenal ring and fourchette, for they do not disprove rape. "A mere knocking at the doors of the pudenda" by the accused's penis suffices to constitute rape. What is important is that there be penetration, no matter how slight, of the male organ within the labia or the pudendum of the female organ. Finally, the Office of the Solicitor General seeks to increase the civil indemnity from P40,000 to P75,000. BENJAMIN chose not to file a Reply Brief. We affirm the conviction of BENJAMIN. In the review of rape cases, we are always guided by the following principles:(1) an accusation of rape can be made with facility since it is difficult to prove but more difficult for the person accused, though innocent, to disprove it; (2) by reason of the intrinsic nature of rape, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its merits and it cannot draw strength from the weakness of the evidence for the defense.16

We have meticulously reviewed the records of the case, particularly the transcripts of the stenographic notes of the witnesses and found that the trial court did not err in convicting accused BENJAMIN. ROCHELLE's sincere, forthright and spontaneous declarations that she was raped by one whom she respectfully deferred to as "kuya"17 proved with moral certainty BENJAMIN's guilt, thus: Q Why do you know Benjamin Rafales? A Because he is our neighbor. Q Beside that can you tell us why you know him? A He raped me three times. Q Now, will you go to the first time that according to you he raped you. Do you remember what month was that when according to you he first raped you? A November, 1993, sir. Q Where? A In our house. Q Where was your house at the time? A At Gen. Lim, Orion, Bataan. Q You stated that he raped you for the first time in your house in 1993, what time was it? A 1:00 P.M. Q How did he rape you in your house? A He came to our house and he removed my dress, sir. Q And what happened next? A He lay me down on the floor, and he went on top of me, sir. Q And when the accused on top of you, what did he do? A He inserted his penis in my vagina, sir. Q What did you feel when he inserted his penis in your vagina? A I was hurt. I felt pain. xxx xxx xxx Q Did you notice something in your vagina after Benjamin Rafales stayed on top of you? A Yes, sir. Q What was the color? A White, sir. COURT Q Why do you know that it is colored white? A I saw it on my vagina, sir. PROS. BERNARDO Q For how long did the accused stayed [sic] on top of you? A Less than an hour. xxx xxx xxx Q Now, let us go to that time when according to you you were allegedly raped for the first time by Benjamin Rafales. You said that at the time your brother and sister were at your house, is that it? A Yes, sir. xxx xxx xxx Q And yet when the accused went on top of you you did not cry for help? xxx xxx xxx A I shouted. Q And the attentions of your brother and sister were called? A No, sir, because he immediately covered my mouth. Q But nonetheless you already shouted? A Yes, sir. xxx xxx x x x.

Q Let us do [sic] in detail about this rape allegedly committed. Will you tell the court how the rape was committed by the accused, he approached you, what did he do to you and what did he tell you? A He immediately removed my dress, sir. Q You mean to say that Benjamin Rafales approached you and without much ado he undressed you? A Yes, sir. Q And of course for you this is not ordinary for another person to undress you? A Yes, sir. Q And you did not tell Benjamin Rafales not to undress you? A I told him. Q And what was the reaction of Benjamin Rafales when you told him not to undress you? A He continued to remove my dress, sir. COURT Q Was Benjamin Rafales at that time holding anything? A None, sir. ATTY. AGUANTA Q And when you were already undressed, what happened? A He immediately lay me down on our papag. COURT Q And when you were already lying down what happened? A He immediately went on top of me sir. Q Were you at that time wearing any panty? A Yes, Your Honor. COURT Q What happened to your panty when according to you he lay you down? A He removed it. Q In other words he not only removed your dress but also your panty and you were totally naked? A Yes, sir. Q How about the accused did he also removed [sic] his clothing? A Yes, sir. Q All his clothings? A Yes, Your Honor, even his brief.18 The other two incidents of rape occurred some days after and in a similar manner. ROCHELLE's credibility is therefore beyond dispute. Her candor in responding to queries relating to shameful details of that episode in her childhood is palpable. Her responses were clear and categorical, all earmarks of truth. For the unassailable credence we grant to ROCHELLE's testimony, we reject BENJAMIN'S proposition that certain facts evince his innocence and the improbability of the crime having been committed. BENJAMIN assails ROCHELLE's failure to immediately disclose her alleged sexual molestations as a possible telltale mark of falsity or fabrication. But delay in the disclosure of a crime is not always an indication of prevarication. In rape cases, young girls usually conceal for sometime their ordeals due to the threats made by their assailants. 19 In this case, ROCHELLE dared not tell anyone her ordeal because she actually feared BENJAMIN who threatened to kill her and her parents should she reveal his misdeed. Further, ROCHELLE had for quite sometime been deprived of the counsel of parents or other adults. She ran away from home, and explained this behavior as a consequence of her frequent quarrels and misunderstanding. with her siblings. It was only during her stay at the orphanage when Vicky confronted her [ROCHELLE] with tales of a child-rape victim. ROCHELLE confessed to Vicky that she was the child-race victim alluded to

by her playmates Marissa, Gemma and the sisters of BENJAMIN. She revealed the details of the sexual violations quite hesitantly for she still feared BENJAMIN and his threats to kill her. These circumstances perforce satisfactorily explained and justified the two (2)-year delay in the disclosure of the crime. Besides, the prescriptive period for the filing of a rape charge is twenty years.20 BENJAMIN then posits that having roamed the streets and "having been in association with streetchildren, ROCHELLE may not have a stable mind when she testified in court." But as the Office of the Solicitor remarks, this is pure speculation. The defense failed to provide proof to support this hypothesis. Besides, this hypothesis is a ridiculous non-sequitur if not downright illogical; as if mere association with streetchildren necessarily undermines the stability of one's mind.1wphi1.nt BENJAMIN also deems as material the admission by the ponente of the assailed decision that he "did not hear the testimony of witnesses but only read their testimonies in cold print." The obvious import is the ponente could not have properly appreciated ROCHELLE's testimony in view of its incongruity with first, the affidavit she executed before the police and second, the doctor's medical certificate. BENJAMIN thus discloses another fallacy in his logic, for truth be told, he failed to produce evidence to buttress this allegation of unjust judgment. Besides, a judge who pens a decision is not immediately disqualified to render such judgment simply because another magistrate heard the case. Such fact does not necessarily render a ponente's decision void, unjust21 or reversible22 considering that the full record of the case was available for his perusal.23 Anyway, in such a case, the respect ordinarily accorded to the trial court's findings of fact does not apply, hence (as already adverted to) our careful and thorough scrutiny of the records particularly the transcript of stenographic notes. 24 Having thus complied with this injunction, we are now more than convinced that the records bolster the judgment of the trial court. To be specific, the inconsistencies in the details of ROCHELLE's testimony, on the one hand, and her affidavit and the medical certificate, on the other hand, were satisfactorily analyzed and explained by the ponente. At any rate the first inconsistencies refer only to the manner of the commission of the rape, i.e., ROCHELLE in her testimony was certain that the rape was committed three times, there was penile penetration and that she noticed a whitish substance on her vagina; in her affidavit, ROCHELLE was not certain if there was indeed penetration, she did not mention the white substance but specified that she was raped four times with the second rape being witnessed by her playmates. But ROCHELLE's steadfast claim of rape and that she felt pain during the time BENJAMIN was unleashing his lust on her trivialized these inconsistencies. It may even be reasonable to assume that at the time of the execution of her affidavit she had no idea that penile penetration in the vagina could be slight or full. It is also well settled that when a woman claims that she has been raped, she says in effect all that is necessary to show that she has been raped.25 As to ROCHELLE's failure to mention in her affidavit the presence of the white substance on her vagina, suffice it is to say that nothing in said affidavit indicated that SPO Bernabe ever addressed ROCHELLE any question on the topic. On BENJAMIN's assertion that the medical findings did not prove the rape charge, we have already ruled that proof of injury is not an element of rape.26 Even a medical examination is not required in the prosecution of rape cases.27 Moreover, as the trial court noted, the physical examination took place two (2) years after the rape occurrences. Naturally, whatever injuries ROCHELLE might have sustained must have healed, leaving no traces thereof. Anyway, even the absence of hymenal lacerations does not negate rape.28 We also deem the matter of Marissa and Gemma's witnessing of the second rape as trifling for the lone testimony of the rape victim is indeed sufficient for a verdict of conviction.29 Attempting to additionally assail ROCHELLE's credibility or cast doubt on the fact of rape, BENJAMIN theorizes that she should have noticed blood "oozing" from her vagina rather than the "white substance." We reiterate the rule that rape is consummated with the slightest penile penetration of the labia or pudendum of a female.30 Hence, blood or a whitish discharge of or on

the vagina after the sexual act is not necessary to prove rape. In the words of the ponente of the challenged decision "the fact that the whitish substance was found at the pedendum [ sic] is proof enough that the penis of the accused at least knocked at the door of the vagina. That is already considered rape." Finally, we reject for being absolutely frivolous, BENJAMIN's accusation that ROCHELLE's failure to exhibit the emotional and physical trauma evident in a rape victim assayed to the falsity of her tale of rape. At any rate, BENJAMIN's sole defense of denial, already considered as inherently weak, appears flimsy, feeble and self-serving. It cannot therefore prevail over the positive and credible testimony of the complainant.31 To recapitulate, the prosecution has satisfactorily discharged its onus of proving that BENJAMIN thrice raped ROCHELLE when she was only ten years old. No birth certificate was presented to establish her age but ROCHELLE and her mother testified that she was born on 30 August 1983. The defense made no objection.32Thus, carnal knowledge of a woman below twelve (12) years of age is sufficient for conviction.33 However, BENJAMIN can only be convicted of one count of rape since the information charged only one offense. 34 This is in compliance with the constitutional right of the accused to be informed of the nature and cause of accusation against him. We cannot, however, approve the recommendation of the Office of the Solicitor General to increase the award of civil indemnity to P75,000. Said amount could only be awarded if the crime of rape was committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws. 35 But the trial court erred in awarding the amount of P40,000 as civil indemnity. We hereby increase the amount to P50,000 in accordance with current jurisprudence.36 Also in order is an award of moral damages in the amount of P50,000 even without proof thereof. It is automatically awarded in rape cases, for it is assumed that the complainant has suffered moral injuries entitling her to such an award.37 WHEREFORE, the 16 May 1997 decision of the Regional Trial Court, Balanga, Bataan, Branch 2, in Criminal Case No. 6115 finding accused-appellant BENJAMIN RAFALES guilty beyond reasonable doubt of rape and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED, with the modification that the indemnity awarded is increased from P40,000 to P50,000 and accused-appellant is further ordered to pay Rochelle Gabriel y Abanador the sum of P50,000 as moral damages. No costs. SO ORDERED.1wphi1.nt G.R. No. 122739 January 19, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE M. PANTORILLA and BARTOLOME DAHAN, accused, JOSE M. PANTORILLA, accused-appellant. PARDO, J.: The case before the Court is an appeal taken by Jose M. Pantorilla from the decision 1 of the Regional Trial Court, Branch 17, Kidapawan, Cotabato convicting him of murder and sentencing him to the penalty of reclusion perpetua and to indemnify the heirs of the victim Franklin Bello in the amount of fifty thousand pesos (P50,000.00). The trial court acquitted co-accused Bartolome Dahan of the crime charged.

On March 27, 1990, Acting Second Assistant Provincial Prosecutor Alfonso B. Dizon, Jr. of Cotabato filed with the Regional Trial Court, Cotabato, Branch 17, Kidapawan an information charging Jose M. Pantorilla, Bartolome Dahan, Peter Doe, and John Doe with murder, committed as follows: That in the evening of December 24, 1989, at Poblacion, Municipality of Makilala, Province of Cotabato, Philippines, the above-named accused, in company with Peter Doe and John Doe, whose identity and true names still unknown, conspiring and confederating and mutually helping one another, with treachery and evident premeditation and availing the darkness of the night, with intent to kill, did then and there, willfully, unlawfully and feloniously drag FRANKLIN BELLO inside the house of Jose Pantorilla and once inside, with the use of a bolo, did then and there, willfully, unlawfully and feloniously attack, assault, hack and stab FRANKLIN BELLO, hitting and inflicting upon the latter mortal wounds in the different parts of his body which caused his instant death. CONTRARY TO LAW.2 At the arraignment on July 4, 1990, accused Jose M. Pantorilla and Bartolome Dahan pleaded not guilty. Trial on the merits ensued. The facts are as follows: On December 24, 1989, at around 7:00 in the evening, Allan Cablayan, Franklin Bello, Cezar Santos and Nelson Sanchez were having a drinking spree inside the store of Mrs. Lina Asibal in Poblacion, Makilala, Cotabato. Afterwards, Cablayan, Santos and Sanchez left Bello in the store and proceeded to the house of Danny Atienza to continue their drinking session. However, Atienza was not at home, so they returned to the store. They found Franklin Bello no longer inside the store but standing in front of it, so they asked him where he was going. Bello replied that he would go somewhere.3 Cablayan, Santos and Sanchez turned to go to the back of the store to continue drinking. While walking, Allan Cablayan looked back and saw Franklin Bello being dragged by three persons. Allan Cablayan identified them as accused-appellant Jose Pantorilla, accused Bartolome Dahan and a third person he did not know. 4 The three persons dragged Bello inside the house of Jose Pantorilla and locked it. Allan Cablayan then heard Bello from the inside crying, "Tabang! Tabang! Tabang!," meaning "Help! Help! Help!" Cablayan sought assistance from neighbors Ferdinand Ela, Norman Ela, Nelson Sanchez and Bobet Ela. They attempted to enter the house of Pantorilla, but the door was locked. They called for police assistance.1wphi1.nt Sgt. Benito Enot responded, followed by Sgt. Marba and other members of the police force. The door was locked, so they commanded the occupants to open the door and come out. When the occupants of the house refused, policemen fired warning shots in the air. 5 A few seconds passed before a woman's voice yelled, "Tama na, sir." Then, the front door opened; the wife and daughter of accused-appellant Jose Pantorilla, together with the wife and a one-year old son of accused Bartolome Dahan emerged. Accused-appellant Jose Pantorilla came out last, dressed in his underwear. Policemen then entered the house and found the body of Franklin Bello sprawled on the concrete floor of the kitchen, with blood and intestines protruding from his slashed stomach.6 They took photographs of the deceased lying on the floor and also recovered a bladed instrument from the scene.7

Dr. Hervacio Albano, municipal health doctor, conducted a post-mortem examination on deceased Franklin Bello and concluded that the cause of death was multiple stab wounds. 8 According to accused-appellant Jose Pantorilla, in the early evening of December 24, 1989, he was at his residence located in Tejada Subdivision, Poblacion, Makilala, Cotabato, with his wife and daughter, and the wife and one-year-old son of accused Bartolome Dahan. At around 8:30 in the evening, Pantorilla came out of his house to investigate the noise created by his chickens. He approached his chickens and gave them water. While returning to his house from the poultry, Franklin Bello, carrying a bolo, embraced Pantorilla from the side and said to him, "Hain ang imong kwarta?" ("Where is your money?"). They then entered Pantorilla's house through the kitchen. Pantorilla saw Francisco Cablayan and Allan Cablayan with Franklin Bello but they were not able to enter the house, since Pantorilla managed to kick the self-locking door against them. While in the kitchen, Bello started hacking Pantorilla with the bolo. Pantorilla fell to the ground. He suffered a scar on his upper breast with a wide line around three inches, and scars on the skin surface in different parts of his body. Then, Franklin Bello fell on his stomach, hitting the bolo. Pantorilla stood up, got the knife on the floor and used it to stab Bello. 9 Thereafter, policemen arrived. Pantorilla refused to come out of his house as commanded by the policemen, saying that there was no warrant for his arrest. When policeman strafed his house with bullets, his wife shouted "Tabang," meaning "help". Pantorilla decided to come out with his family, together with the family of accused Bartolome Dahan, who had paid a visit. 10 Bartolome Dahan was not with them.11 Policemen took accused-appellant Pantorilla to the municipal building and placed him in jail. On February 23, 1995, after due trial, the Regional Trial Court, Kidapawan, Cotabato rendered decision, the dispositive portion of which reads, to wit: WHEREFORE, the Court finds accused JOSE PANTORILLA guilty beyond reasonable doubt of the crime of MURDER as charged in the information and hereby sentences him to suffer the penalty of Reclusion Perpetua. He is hereby ordered to indemnify the heirs of Franklin Bello, the sum of P50,000.00. On reasonable doubt, the Court finds the accused, BARTOLOME DAHAN, not guilty of the crime charged and hereby ACQUITS him. Consequently, the Provincial Warden is hereby ordered to release accused Bartolome Dahan from his preventive custody, unless held for some other offense/s. SO ORDERED. Given this 23rd day of February, 1995, at Kidapawan, Cotabato, Philippines. RODOLFO M. SERRANO Judge12 Hence, this appeal. In his first assigned error, accused-appellant Jose Pantorilla alleges that the trial court erred in not believing his plea of self-defense. He claims that it was Franklin Bello who, under the influence of liquor, entered his house and started hacking him with a bolo. 13 He stabbed Bello out of fear for his own life and in order to protect his house from being robbed. To buttress his claim of unlawful aggression, accused-appellant presented a medical certificate14 which showed that he had contusions and hematoma, with an incised wound on his

left foot and on the second toe of his right foot. He claimed that he sustained the injuries when Franklin Bello hacked him. The rule is well-settled that when an accused invokes self-defense, the burden of evidence to prove his claim shifts to him.15 It is incumbent upon him to show the concurrent presence of all the elements of self-defense, namely, (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel it; (3) and lack of sufficient provocation on the part of the person defending himself. 16 Unlawful aggression is an indispensable element, whether in complete or incomplete self-defense.17 He must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if weak, it could not be disbelieved after the accused admitted to the killing. 18 In this case, the fact that accused-appellant sustained injuries did not signify that he was a victim of unlawful aggression. His examining doctor testified that the wounds he incurred were merely superficial, perhaps caused by a small bladed instrument,19 not a bolo. Furthermore, the medical certificate issued by Dr. Carlota Sandique of Sto. Nio Hospital, Makilala, Cotabato failed to indicate the purported injury of Pantorilla on his upper breast and on his hand, 20 rendering the testimony of accused-appellant Pantorilla doubtful. Moreover, his testimony was not corroborated by any witness. Neither his wife nor the wife of Bartolome Dahan, who were allegedly inside the house when the stabbing incident occurred, testified in court. Furthermore, prosecution witness Allan Cablayan identified accused-appellant as the aggressor, together with two other persons. Accused-appellant attempted to discredit the testimony of prosecution witness Allan Cablayan by alleging that he had been evicted from the house he was renting and had a grudge against accused-appellant for having initiated ejectment proceedings on behalf of the owner of the house. However, Allan Cablayan, in his testimony, denied bearing any grudge against accused-appellant.21 His testimony was given credence by the trial court, which was in a better position to determine the issue of credibility of witnesses, having heard the witness and observed his deportment and manner of testifying. We find no cogent reason to rule otherwise, absent certain facts of substance and value which may have been overlooked that might affect the result of the case.22 Further negating the claim of self-defense is the manner in which the victim had been stabbed to death, which does not show reasonable means to repel an aggression. Evidence shows that the victim Franklin Bello died from multiple stab wounds. Pictures taken at the scene of the crime reveal that the stomach of the deceased had been slashed and the intestines protruded. There were also several bloodied marks on the head and other parts of the body of the deceased. The nature, location and number of wounds inflicted on the victim indicate a determined effort to kill him.23 Therefore, the plea of self-defense cannot prosper. In his second assigned error, accused-appellant contends that the trial court convicted him on the basis of circumstantial evidence but failed to enumerate the circumstances supporting his conviction. He points out that prosecution witness Allan Cablayan only testified that he saw the victim being dragged and locked inside his house then heard a voice inside crying for help, and merely presumed that accused-appellant killed Franklin Bello. The second assigned error is inconsistent with the first one. Accused-appellant, in his testimony in court, admitted that he took a knife from the floor and used it to stab Franklin Bello. 24 In invoking self-defense, accused-appellant admitted killing Bello. Thus, he can not now assert lack of proof to convict him.

Therefore, we find no error of the trial court in placing responsibility on accused-appellant Jose M. Pantorilla for the death of Franklin Bello. We note, though, that the trial court failed to indicate any qualifying circumstance which would qualify the killing to murder. Without any qualifying circumstance, which will determine the degree of culpability and penalty to be imposed, accused-appellant Jose M. Pantorilla may be held liable only for homicide, not murder.25 WHEREFORE, the decision appealed from is hereby MODIFIED. The Court finds accusedappellant Jose M. Pantorilla guilty beyond reasonable doubt of homicide, defined and penalized under Article 249 of the Revised Penal Code. In the absence of any aggravating or mitigating circumstances, and applying the Indeterminate Sentence Law, the Court hereby sentences him to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years, and four (4) months of reclusion temporal, as maximum, with all its accessory penalties, and to pay the heirs of Franklin Bello in the amount of fifty thousand pesos (P50,000.00), as civil indemnity, and costs.1wphi1.nt SO ORDERED. G.R. No. 127572 January 19, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SALVADOR VILLAR, accusedappellant. MELO, J.: This Court is once again called upon to discharge the most awesome power in the criminal justice system, where, by way of automatic review, it is mandated to determine whether or not the Section 11 of Republic Act No. 7659, more commonly referred to as the Death Penalty Law, was correctly imposed by the trial court, in this case by Branch 52 of the Regional Trial Court of the Fourth Judicial Region, stationed at Puerto Princesa City, Palawan for the heinous crime of statutory rape committed by a de facto guardian against his l0-year old ward. Accused-appellant was charged in two separate Informations pertinently reading as follows: Criminal Case No. 11874 That on or about the 19th of January, 1994, at Barangay Bucana, Municipality of El Nido, Province of Palawan, Philippines and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, intimidation, did then and there willfully and feloniously have carnal knowledge with one Mary Ann Ramos, a child below 12 years old, against her will and consent to her damage and prejudice. (p. 8, Rollo.) Criminal Case No. 11875 That sometime in the month of January, 1993 at Barangay Bucana, Municipality of El Nido, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, intimidation, did then and there willfully and

feloniously have carnal knowledge with one Mary Ann Ramos, a child below 12 years old, against her will and consent to her damage and prejudice. (p. 10, Rollo.) The narration of facts by the trial court, supported as it is by the evidentiary record, is hereby adopted, to wit: Mary Ann Ramos is the eldest child of the spouses Danilo Ramos and Josefina Recasa who were joined in wedlock in Masbate, on January 15, 1982. Shortly thereafter, the spouses transferred residence to El Nido, Palawan, where in barangay Bucana of the same town, Mary Ann was born to said spouses on April 7, 1983. From Masbate, Danilo Ramos and Josefina Recasa-Ramos came to Palawan with several others, among whom were the accused Salvador Villar and his nephew identified only by his surname Ranilo. On getting to El Nido, Palawan, the group all stayed in one house. After a while, however, Salvador Villar built a house of his own in the island sitio of Lalutaya, barangay Bucana, El Nido, Palawan, and the spouses Danilo and Josefina Ramos lived with him in the same house. Being more advanced in age than them, and though still a bachelor, Salvador Villar had been regarded by the spouses as elder member of their family. Mary Ann Ramos became of school age in 1989. The island-sitio of Lalutaya where the Ramoses and other migrants from Masbate settled some years back, however, was yet without a school. The school nearest to the island-sitio is located in barangay Bucana, El Nido, Palawan. It was that school were Mary Ann Ramos and other children of school ages from sitio Lalutaya go to. To provide the school children from sitio Lalutaya with a place to stay in during school days, the Ramoses and Salvador Villa built a house where they were to live in barangay Bucana, El Nido, Palawan. Recognizing the need for someone to look after the welfare of the children and attend to their meals and all household needs, their parents engaged the services of Salvador Villar to act as their caretaker and some kind of a guardian. In that capacity Salvador Villar conducts the school children on a banca from sitio Lalutaya to barangay Bucana late in the afternoon of every Sunday. He stays with the children in barangay Bucana attending to the preparation of their meals and other household chores during school days. He conducts them back to sitio Lalutaya after dismissal from classes in the afternoon of every Friday.1wphi1.nt The accused consistently acted as caretaker and guardian of Mary Ann Ramos from the time she was enrolled in Grade I. By the start of school year 1993-1994, though, he had under his care in barangay Bucana, not only Mary Ann but four (4) others, namely; Mae Ramos, a younger sister of Mary Ann; Liezl Ranilo, and the brothers Ernie and Rene Maltos, all cousins of the Ramos sisters. For some time all went well in the manner Salvador performed his duties as guardian of the school children, until the happening of the incident which provided the basis for the institution of the instant twin indictments. The building serving some kind of a dormitory for Mary Ann and the four (4) other school children with her is a structure of light materials with a floor area measuring about 18 feet long and 16 feet wide. The walls are made of sawali, or wooden buho

(reed), and with roof of nipa shingles. Its floor, built about three (3) feet above the ground, is made of bamboo slats. The house they were living is so structured that it could be said to have two (2) rooms. One room serves as bedroom while on one side of the other is the place for the kitchen, and section for the dining room. Mary Ann and the two other girls sleep side by side on mats spread on the floor in the bedroom while the boys, Ernie and Rene Maltos, also sleep beside each other on another side of the room close to the kitchen. Salvador Villar, on the other hand, sleeps on a bed close to the two boys. Roughly 10:00 o'clock, one evening about the middle of January, 1993, and while all the four (4) other children with her were already asleep, Mary Ann noticed Salvador Villar approached her and with a knife poked at her chest, undressed her. Even as she struggled to prevent him from undressing her he also took off her panty and made her lie down. She attempted to shout but he covered her mouth with his hand. Then he laid on top of her and thereupon forcibly inserted his male organ in her female genitalia. With his penis inside her private organ he executed repeated pumping motions. The entry of his male organ in to her reproductive organ, and his execution of the pumping motions, caused her intense pain which made her momentary loss of consciousness. When shortly after she regained consciousness, she felt pain in her female organ. Realizing that her organ had been bleeding she became frightened. Just then, Salvador Villar warned her not to tell anyone what happened or he will kill her. (TSN, Roselyn N. Teologo, February 9, 1995, pp. 9-14.) Because of fear instilled in her by that threat she refrained from telling anyone about what the accused did to her. That was not to be the last time the accused forcibly imposed his sexual gratification on the complainant. For a period of about a year thereafter the accused repeatedly had forcible carnal knowledge of the complainant at intervals of more or less three days, or about ten (10) times a month. He raped her so many times, about a hundred (100) times, that she was unable to recall the precise dates of each assault on her. Aside from the first occasion which she recalled to have taken place one evening about the middle of January, 1993, the only other occasion which took place also in the house they were staying in barangay Bucana, El Nido, Palawan, was in the evening of January 19, 1994. (TSN, Roselyn N. Teologo, June 9, 1995, pp. 14-23) In the evening of January 19, 1994, the accused again forcibly had carnal knowledge of the complainant. About 10:00 o'clock that evening, and after all the other school children with Mary Ann have already been asleep, the accused approached her and for the nth time forcibly undressed her. Thereafter, he laid on top of her and inserted his male organ into hers. With his penis inside her female organ he executed pumping motions even as she struggled to free herself from him. With his weight over her body and with a knife poked on her she was unable to extricate herself. Occasioned by the fear instilled in her by the threat to her life by the accused, the repeated sexual assaults on the complainant by the said accused would not have been disclosed to her parents were it not for another unusual incident which may have some bearing to the successive commission of the offenses herein charged. As usual, on January 20, 1994, a Thursday, Salvador Villar cooked their supper, and at dinnertime set the table for their meals. They ate their supper at about 6:30 o'clock

in the evening, as usual. Salvador Villar partook of the meal with them and the children noticed that he was already drunk at the time. After having been through eating, the children, as usual, cleared the table and washed the dishes. Thereafter, Salvador Villar left and some time later the children went to bed, without Salvador Villar having been back. After the children have been asleep for some time they were awakened when Salvador Villar came. On getting up the house, Salvador Villar drank water first then threw the water container out on the window. Afterwards, he went inside the room where the children have been sleeping and in a drunken mode shouted: "Nasan na Kayo, mga putang ina kayo!" On seeing him with a drawn bolo on hand the children, overcame with fright, rose from bed, jumped out through the window and proceeded together to, and took refuge in, the house of one Minda Mentos. Ms. Mentos welcomed them and made them get up her house. After a while Salvador Villar came, fetching them, but they did not go back with him. Instead, they spent the night in the house of Minda Mentos to whom they related why they jumped out through the window. The children returned to their place of abode the following morning of January 21, 1994. Salvador Villar prepared their breakfast that morning which they partook with him. When asked while eating why he chased them the night before, the accused told them that he was drunk and did not know what he was doing. Soon after Mary Ann Ramos was sexually abused by Salvador Villar, she related to her 9-year old cousin, Liezl Ranilo, what the accused did to her. But Liezl likewise refrained from disclosing it to their parents because she was likewise afraid of the threat by the accused. It was that incident which made the children jump out of the window which led to the disclosure by Mary Ann of the sexual abuse on her by the accused. As was the habit, after dismissal from their classes late in the afternoon of Friday, January 21, 1994, the children proceeded home on a banca to their parents in sitio Lalutaya, barangay El Nido, Palawan. Thru Liezl Ranilo, the mother of Mary Ann Ramos learned about the incident which made them jump out through the window. Thereupon, her mother asked Mary Ann why they jumped out through the window and she related why, including what Salvador Villar had been doing to her. Her mother spanked her. But the following morning they proceeded to the town hall of El Nido and filed a complaint for rape against Salvador Villar. (TSN, Roselyn N. Teologo, 9 February, 1995, pp. 16-17). Aside from filing a complaint, Mary Ann, accompanied by her mother, also submitted for physical/medical examination by a physician on January 27, 1994. Dr. Nestor A. Reyes of the District hospital of Taytay, Palawan, conducted that examination and issued Medico Legal Certificate, marked Exhibit "C", the full text of which follows: Patient: Mary Ann Ramos, 10 years old residing at barangay Bucana, El Nido, Palawan Place of incident: Inside the room (Residential) Date of incident: From January 1993 to January 19, 1994 Time of incident: Nighttime Place of treatment: Taytay District Hospital, Taytay, Palawan Date of treatment: January 27, 1994 Time of treatment: 3:30 PM FINDINGS:

1. Breast undeveloped 2. Absence of pubic hair 3. Hymen with old healed lacerations at 6,8,9 and 12 o'clock 4. Vagina admits 1 finger easily. REMARKS: had possible sexual intercourse (pp. 18-24, Rollo.) Accused-appellant imputes two errors upon the trial court for convicting him of two counts of rape, to wit: I THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF TWO COUNTS OF RAPE (IN JANUARY 1993 AND ON JANUARY 19, 1994) DESPITE THE IMPROBABLE AND INCONSISTENT TESTIMONY OF THE COMPLAINING WITNESS. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT IN CRIMINAL CASE NO. 11874 AND SENTENCING HIM TO DEATH PURSUANT TO SECTION 11 OF REPUBLIC ACT NO. 7659 AMENDING ARTICLE 336 OF THE REVISED PENAL CODE. In his brief, accused-appellant resolutely questions the factual findings of the trial court concerning the credibility of the victim. For instance, accused-appellant cites the inconsistency between the victim's declaration in her sworn statement and her direct testimony in court as to the exact time when she was first raped by accused-appellant in 1993. The argument fails to persuade us. It may well be pointed out that not all kinds of inconsistency of a witness render the witness' testimony unworthy of credence. Verily, inconsistencies in minor details reinforce rather than weaken credibility (People vs. Del Prado, 110 Phil. 1034 [1960]), and such inconsistencies do not materially impair the credibility of the witness (People vs. Modelo, 35 SCRA 639 [1970]). Under the circumstances of the case at bar, the Court finds the materiality of the exact time the crime was committed as a minor detail and not of great significance. The more important consideration is that the declarations of the victim both in her sworn statement before the investigating police officer and in her testimony in court, are consistent on the basic matters constituting the elements of the crime charged. Besides, this Court has already ruled that discrepancy between the witnesses' testimony in court and the affidavits they had previously signed, as to minor details regarding the commission of the crime, do not constitute sufficient ground to impeach the credibility of said witnesses, where on material and important points their declarations are consistent (People vs. Valera, 5 SCRA 910 [1962]). Furthermore, the Court cannot impose the burden of exactness in the victim's recollection of her harrowing experience more so in the present case where the victim was an innocent and tender 9-year old lass when she was first raped. It is all the more understandable that the victim in the present case may have been confused as to the exact details of each and every rape incident, considering that she claimed she had been sexually ravished for more than 100 times in a span of one whole year. It is in fact expected that such a victim would rather wish and even purposely forget the abhorrent memories of every single occasion. This being the case, it would be

exacting too much should the Court demand a very accurate, detailed, and flawless account of the two occasions now subject of her charges out of the 100 occasions of forcible intercourse. In People vs. Sagucio (277 SCRA 183 [1997]), where this Court faced the same issue of alleged inconsistencies in the victim's narration, we held that errorless testimony cannot be expected especially when a witness is recounting details of a harrowing experience. A court cannot expect a rape victim to remember every detail of the appalling outrage. Accused-appellant also contends that the victim's testimony is unworthy of credence because of the inherent improbability of her testimony that nobody in their house learned of the repeated abuse that had been going which may be noticed from any unusual behavior on her part and in spite of the fact that there were five individuals sleeping side by side on the floor. The argument does not have much weight. We find no competent evidence showing that the victim exhibited no unusual behavior during the one-year period that she was being sexually abused by accused-appellant. The lack of concrete evidence of any unusual behavior on record does not prove that there was in fact no such unusual behavior. If accused-appellant wanted the court to consider such an allegation, it was incumbent upon him to prove the same with competent evidence. The fundamental rule is that upon him who alleges rests the burden of proof. He cannot simply rely on the lack of evidence showing the contrary. We likewise find no merit in accused-appellant's contention that it was improbable that nobody witnessed the rapes despite the fact that there were five of them sleeping inside the some room where the offenses were allegedly committed. This argument is not new in this jurisdiction. In fact, People vs. Sangil (276 SCRA 532 [1997]), we noted that: . . . the commission of rape was concededly "improbable but not impossible. . . In People vs. Ignacio we took judicial notice of the interesting fact that among poor couples with big families living in small quarters, copulation does not seem a problem despite the presence of other persons around them. Considering the cramped space and meager room for privacy, couples perhaps have gotten used to quick and less disturbing modes of sexual congresses which elude the attention of family members; otherwise, under the circumstances, it would be almost impossible to copulate with them around even when asleep. It is also not impossible nor incredible for the family members to be in deep slumber and not be awakened while the sexual assault is being committed. One may also suppose that growing children sleep more soundly than grown-ups and are not easily awakened by adult exertions and suspirations in the night. There is no merit in appellant's contention that there can be no rape in a room where other people are present. There is no rule that rape can be committed only in seclusion. We have repeatedly declared that "lust is no respecter of time and place," and rape can be committed in even the unlikeliest of places. (pp. 539-540) Finally, accused-appellant claims that the death penalty cannot be imposed upon him under the provisions of Section 11 of Republic Act No. 7659 which pertinently provides: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim. He posits that he was not a guardian of the victim. He argues that he was a mere employee of the victim's parents, spouses Danilo and Josefina Ramos, charged with the duty of looking after the needs of their children Mary Ann and May Ramos, and likewise given the task of conducting them by banca from Barangay Bucana to Sitio Lalutaya and vice-versa to attend school. He further contends that he cannot be said to have the power, control or authority over the person of Mary Ann Ramos which a guardian should have, because it is still her parents who exercise the same over her. He insists that he served as a mere companion of the children while they attended their classes. There may be ample evidence on record to show that accused-appellant qualified as a guardian of the victim the way the lawmakers intended the word to be understood, but the Court reserves its ruling on the issue considering that this special qualifying circumstance of being a guardian was not duly alleged in the information. The Court cannot affirm the death sentence imposed by the trial court anchored upon the abovecited provision of the Death Penalty Law. In People vs. Dela Cuesta (G.R. No. 126134, March 2, 1999), we held: The seven modes of committing rape introduced under R.A. 7659 and R.A. 4111 which warrant the automatic imposition of death penalty partake of the nature of a qualifying circumstance under the Revised Penal Code since it increases the penalty or rape to one degree. As such, this qualifying circumstance, that the child is under eighteen (18) and the offender is a guardian, should be alleged in the information to be appreciated as such. (pp. 10-11) Although the circumstances to qualify simple rape to the heinous crime of rape, namely: (a) victim under 18 years old (the certificate of live birth exhibit "A" was admitted by the defense), and (b) the offender being a guardian, were duly proven in the present case, these circumstance cannot considered for purposes of imposing the extreme penalty of death unless these were alleged in the information. An examination of the two informations in the present case reveals that only the qualifying circumstance that the child is under 12 was alleged. There was no allegation that the offender was a guardian of the victim. To consider said circumstance as qualifying, would constitute denial of the right of accused-appellant to due process and to be informed of the charges against him. At best, such circumstance may only be treated as a generic aggravating circumstance, which, in the case of simple statutory rape, however, is inconsequential because the imposable penalty is the singular indivisible penalty of reclusion perpetua. For each the two counts of simple statutory rape, accused-appellant may be held civilly liable for the amount of P50,000.00 by way of indemnity and an additional P50,000.00 as moral damages.1wphi1.nt WHEREFORE, finding the conviction of accused-appellant for two counts of rape justified by the evidence on record, the Court hereby AFFIRMS the decision of Branch 52 of the Regional Trial Court, Fourth Judicial Region, stationed at Puerto Princesa City (a) in Criminal Case No. 11875 sentencing accused-appellant to reclusion perpetua, with civil indemnity of P50,000.00 in favor

of the victim, with an ADDITIONAL P50,000.00 as moral damages; and (b) in Criminal Case No. 11875 MODIFYING the sentence to reclusion perpetua, also with civil indemnity of P50,000.00, and P50,000.00 as moral damages in favor of the victim. Costs de officio. SO ORDERED. G.R. No. 117487 December 12, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNEL ALICANDO y BRIONES, accused-appellant. PUNO, J.: The case at bar involves the imposition of the death penalty. With all our frailties, we are asked to play the role of an infallible God by exercising the divine right to give or take away life. We cannot err in the exercise of our judgment for our error will be irrevocable. Worse, our error can result in the worst of crimes murder by the judiciary. The records reveal that appellant Arnel Alicando was charged with the crime of rape with homicide 1 in an Information which reads: That on or about the 12th day of June 1994 in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, did then and there willfully, unlawfully and feloniously and by means of force, violence and intimidation to wit: by then and there pinning down one KHAZIE MAE PENECILLA, a minor, four years of age, choking her with his right hand, succeeded in having carnal knowledge with her and as a result thereof she suffered asphyxia by strangulation fractured cervical vertebra and lacerations of the vaginal and rectal openings causing profuse hemorrhages and other injuries which are necessarily fatal and which were the direct cause of her death. CONTRARY TO LAW. On June 29, 1994, appellant was arraigned with the assistance of Atty. Rogelio Antiquiera of the PAO, Department of Justice. Appellant pleaded guilty. After appellant's plea of guilt, the trial court ordered the prosecution to present its evidence. It also set the case for reception of evidence for the appellant, if he so desired. 2 The prosecution evidence shows that in the afternoon of June 12, 1994, Romeo Penecilla, father of the four year old victim Khazie Mae, was drinking liquor with Ramil Rodriguez and Remus Gaddi in his (Penecilla's) house at Barangay Rizal, Zone 1, Pulo Bala, Iloilo. Appellant joined them but every now and then would take leave and return. Appellant was living in his uncle's house some five (5) arm's length from Penecilla's house. At about 4:30 p.m., Penecilla's group stopped drinking and left. Luisa Rebada also lives in the Penecilla neighborhood, about one and a half (1-1/2) arm's length from the house of appellant. At about 5:30 p.m. of that day, she saw the victim at the window of appellant's house. She offered to buy her "yemas" but appellant closed the window. Soon she heard the victim crying. She approached appellant's house and peeped through an opening between its floor and door. The sight shocked her appellant was naked, on top of the victim, his left hand choking her neck. She retreated to her house in fright. She gathered her children

together and informed her compadre, Ricardo Lagrana, then in her house, about what she saw. Lagrana was also overcome with fear and hastily left. Romeo Penecilla returned to his house at 8 o'clock in the evening. He did not find Khazie Mae. He and his wife searched for her until 1 o'clock in the morning. Their effort was fruitless. Rebada was aware that the Penecillas were looking for their daughter but did not tell them what she knew. Instead, Relada called out appellant from her window and asked him the time Khazie Mae left his house. Appellant replied he was drunk and did not know. As the sun started to rise, another neighbor, Leopoldo Santiago went down from his house to answer the call of nature. He discovered the lifeless body of Khazie Mae under his house. Her parents were informed and so was the police. At 9:00 a.m., Rebada suffered a change of heart. She informed Romeo Penecilla and his wife Julie Ann, that appellant committed the crime. Forthwith, appellant was arrested and interrogated by PO3 Danilo Tan. He verbally confessed his guilt without the assistance of counsel. On the basis of his uncounselled verbal confession and follow up interrogations, the police came to know and recovered from appellant's house, Khazie Mae's green slippers, a pair of gold earrings, a buri mat, a stained pillow and a stained Tshirt all of which were presented as evidence for the prosecution. The body of Khazie Mae was autopsied by Dr. Tito Doromal, a medico-legal officer. His autopsy report reveals the following injuries sustained by the victim: HEAD & NECK/THORACO-ABDOMINAL REGIONS: 1) Contusion , purple in color, 11 x 11.3 cm., in dia., from left and right anterior neck, down to the medial portion of the left and right infraclavicular area. 2) Contusion, bluish purple, 5.5 x 6.3 cm., in dia., antero-lateral left chest wall. 3) Contusion, bluish in color, 3 in nos., 1, 0.5 & 1.1 cm., in dia., right antero- inferior chest wall. 4) Contusion, purple in color, 4 x 3.2 cm., in dia., left sub-costal arch. 5) Contusion, purple in color, 4.5 x 5 cm., in dia., supero-lateral, left iliac crest. ON OPENING THE SKULL 7 THORACO-ABDOMINAL CAVITIES: a) Fractured, 2nd cervical vertebra. b) Fractured, crecoid cartilage. c) Both lungs, expanded with multiple petechial hemorrhages. d) Other internal organs, congested. EXTREMITIES: 1) Confluent abrasion, 3 x 2.6 cm., in dia., posterior aspect, lower 3rd, left forearm. 2) Old wound, 2 x 1.5 cm., in dia., posterior middle 3rd, left forearm. 3) Old wound, 1.5 x 1 cm., in dia., antero-lateral aspect, middle 3rd, right forearm. VAGINAL FINDINGS/ANAL FINDINGS: a) Lacerated wound, from the fourchette up to the dome of the rectum.. b) Hematoma, from the fourchette up to the rectum. c) Lacerated wound, lateral wall of the vagina up to the level of the promontory of the sacrum with a length of 8 centimeters. d) A cylinder with a diameter of 2 cms., easily passes the vaginal and anal openings. CAUSE OF DEATH: A) ASPHYXIA BY STRANGULATION. B) FRACTURED, 2nd CERVICAL VERTEBRA. C) HEMORRHAGE, 2nd DEGREE TO LACERATED VAGINAL & RECTAL OPENINGS.

Appellant adopted the autopsy report of Dr. Doromal as his documentary evidence to prove that the proximate cause of Khazie Mae's death was asphyxia by strangulation. On July 20, 1994, the trial court found appellant guilty and sentenced him to death, viz: WHEREFORE, the court hereby finds the accused, Arnel Alicando, GUILTY beyond reasonable doubt for (sic) the Crime of Rape with Homicide penalized under Article 335 of the Revised Penal Code as amended by paragraphs 6 and 7 (No. 4) Section 11 of Republic Act No. 7659. Arnel Alicando is hereby sentenced to suffer a (sic) penalty of death and to indemnify the heirs of the offended party, Khazie Mae D. Penecilla, the sum of P50,000.00. The death sentence shall be executed by putting the person under sentence to death by electrocution (electric chair). As soon as facilities are provided by the Bureau of Prisons, the method of carrying out his sentence shall be changed by gas poisoning (sic). Here ends Khazie Mae's quest for justice. Her tormentor must suffer for the grievous offense he had committed. He deserves no mercy. Cost against the accused. SO ORDERED. The case is before us on automatic review considering the death penalty imposed by the trial court. A new counsel, Atty. Joel Tiongco, took the cudgel for appellant. In his Brief, appellant assails the decision of the trial court as a travesty of justice. We find that the Decision of the trial court sentencing the appellant to death is shot full of errors, both substantive and procedural. The conviction is on an amalgam of inadmissible and incredible evidence and supported by scoliotic logic. First. The arraignment of the appellant is null and void. The trial judge failed to follow section (1) (a) of Rule 116 on arraignment. Said section provides: xxx xxx xxx Sec. 1. Arraignment and plea; how made. (a) The accused must be arraigned before the court where the complaint or information has been filed or assigned for trial. The arraignment must be made in open court by the judge or clerk by furnishing the accused a copy of the complaint or information with the list of witnesses, reading the same in the language or dialect known to him and asking him whether he pleads guilty or not guilty. The prosecutor may, however, call at the trial witnesses other than those named in the complaint or information. The reading of the complaint or information to the appellant in the language or dialect known to him is a new requirement imposed by the 1985 Rules on Criminal Procedure. It implements the constitutional right of an appellant ". . . to be informed of

the nature and cause of the accusation against him." 3 The new rule also responds to the reality that the Philippines is a country divided by dialects and Pilipino as a national language is still in the process of evolution. 4 Judicial notice can be taken of the fact that many Filipinos have limited understanding either of the Pilipino or English language, our official languages for purposes of communication and instruction. 5 The importance of reading the complaint or information to the appellant in the language or dialect known to him cannot thus be understated. In the case at bar, the records do not reveal that the Information against the appellant was read in the language or dialect known to him. The Information against the appellant is written in the English language. It is unbeknown whether the appellant knows the English language. Neither is it known what dialect is understood by the appellant. Nor is there any showing that the Information couched in English was translated to the appellant in his own dialect before his plea of guilt. The scanty transcript during his arraignment, reads: 6 xxx xxx xxx Prosecutor Edwin Fama Appearing as public prosecutor Atty. Rogelio Antiquiera For the accused, Your Honor. Ready for arraignment. Interpreter (Reading the information to the accused for arraignment and pre-trial.) Note: (After reading the information to the accused, accused pleads guilty) One need not draw a picture to show that the arraignment of the appellant is a nullity. It violated section 1(a) of Rule 116, the rule implementing the constitutional right of the appellant to be informed of the nature and cause of the accusation against him. It also denied appellant his constitutional right to due process of law. 7It is urged that we must presume that the arraignment of the appellant was regularly conducted. When life is at stake, we cannot lean on this rebuttable presumption. We cannot assume. We must be sure. Second. The plea of guilt made by the appellant is likewise null and void. The trial court violated section 3 of Rule 116 when it accepted the plea of guilt of the appellant. Said section provides: Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf. The records reveal how the trial judge inadequately discharged this duty of conducting a "searching inquiry." In the hearing of June 28, 1994, the transcripts reveal the following: 8 Note (After reading the information to the accused, accused pleads guilty.) Court Question (sic) of the court to the accused.

Q Considering that this is a crime and under the amended law is a heinous crime, because of your plea of guilty without the consent or even against the discretion of the court, the court will give you a mandatory death penalty because of the crime charged, do you understand? Accused Yes, Your Honor. Q Did you enter a plea of guilty on your own voluntary will or without any force or intimidation from any one or whatever? Accused None, Your Honor. Q Are you sure? Accused Yes, Your Honor. Q Or maybe because you were manhandled or maltreated by anyone and that will just be the consideration for you to plead guilty? Accused No, Your Honor. Court Were you not manhandled, please let us see your body? Note (Accused raised his prison uniform or shirt and showed to the court his body from waist up.) Accused No, Your Honor. Court You were not maltreated in the jail? Accused No, Your Honor. Court Please let us see whether you have bruises so that you will be examined by a physician to the order of the court? Accused No, Your Honor. Court If you will plead guilty, that plea of guilty has no use because there will be a mandatory death penalty, do you still insist on your plea of guilty? Accused Yes, Your Honor.

Note (See Order dated June 28, 1994 attached to the records of this case.) In the next hearing on July 11, 1994, the following verbal exchange transpired, viz: 9 xxx xxx xxx Fiscal Fama: Appearing as the public prosecutor, ready, Your Honor. Our first witness is Dr. Tito Doromal, Your Honor. Atty. Antiquiera: For the accused, Your Honor. Court Before the court will proceed with the reception of evidence by the prosecution Arnel Alicando, please come here. (at this juncture, Arnel Alicando, come near to the court) The court is warning you again that this is reception of evidence by the prosecution after you plead guilty to the crime charged at, do you understand? A Yes. Q Do you still affirm and confirm to your plea of guilty of rape with homicide? A Yes, Your Honor. Q Do you still insist that your plea of guilty is voluntary without force, intimidation or whatsoever? A Yes. Q The court is warning you that after reception of evidence, the imposable penalty is mandatory death? A Yes, Your Honor. Q Despite of that, you still insist on your plea of guilty? A Yes, Your Honor. Court Okey, proceed.

Court If you plead guilty to the crime charged there will be some effects on your civil rights hut not until the decision will be affirmed by the Supreme Court. Accused Yes, Your Honor.

Section 3 of Rule 116 which the trial court violated is not a new rule for it merely incorporated the decision of this Court in People vs. Apduhan, Jr., 10 and reiterated in an unbroken line of cases. 11 The bottom line of the rule is that the plea of guilt must be based on a free and informed judgment. Thus, the searching inquiry of the trial court must be focused on: (1) the voluntariness of the plea, and (2) the full comprehension of the consequences of the plea. The questions of the trial court failed to show the voluntariness of the plea of guilt of the appellant nor

did the questions demonstrate appellant's full comprehension of the consequences of his plea. The records do not reveal any information about the personality profile of the appellant which can serve as a trustworthy index of his capacity to give a free and informed plea of guilt. The age, socio-economic status, and educational background of the appellant were not plumbed by the trial court. The questions were framed in English yet there is no inkling that appellant has a nodding acquaintance of English. It will be noted too that the trial court did not bother to explain to the appellant the essential elements of the crime of rape with homicide. A cursory examination of the questions of the trial court to establish the voluntariness of appellant's plea of guilt will show their utter insufficiency. The trial court simply inquired if appellant had physical marks of maltreatment. It did not ask the appellant when he was arrested, who arrested him, how and where he was interrogated, whether he was medically examined before and after his interrogation, etc. It limited its efforts trying to discover late body marks of maltreatment as if involuntariness is caused by physical abuse alone. Regretfully, it even turned a blind eye on the following damning entry on the June 13, 1994 Record of Events of the Iloilo PNP (Exh. "M") showing that after his arrest, the appellant was mobbed by inmates while in jail and had suffered hematoma, viz: c-0262-94 INFORMATION 2:50 PM, P02 Salvador Pastoloro, Jr., PNP assigned at 327th PNP MFC, informed this office thru SPO1 W. Garcera alleging that at about 9:00 AM this date when the suspect ARNEL ALICANDO Y BRIONES, 24 yrs. old, residence of Rizal, Palapala Zone I, CP, been arrested and mobbed by the irrate residents of Zone II Rizal, Palapala, GP, in connection of the Rape with Homicide case wherein the victim KHAZIE MAE PENECILLA Y DRILON, 4 yrs, old, residence of same place who was discovered dead under the house thereat. Suspect when turned over to this office and put on lock up cell was also mobbed by the angry inmates thus causing upon him hematoma contusion on different parts of his body. Likewise, the trial court's effort to determine whether appellant had full comprehension of the consequences of his plea is fatally flawed. It warned the appellant he would get the mandatory death penalty without explaining the meaning of "mandatory" It did not inform the appellant of the indemnity he has to pay for the death of the victim. It cautioned appellant there " . . . will be some effects on your civil rights" without telling the appellant what those "effects" are and what "civil rights" of his are involved. Appellant's plea of guilt is void and the trial court erred in using it to sentence him to death. We stress that under the 1985 Rules of Criminal Procedure, a conviction in capital offenses cannot rest alone on a plea of guilt. Section 3 of Rule 116 requires that after a free and intelligent plea of guilt, the trial court must require the prosecution to prove the guilt of the appellant and the precise degree of his culpability beyond reasonable doubt. This rule modifies prior jurisprudence that a plea of guilt even in capital offenses is sufficient to sustain a conviction charged in the information without need of further proof. The change is salutary for it enhances one of the goals of the criminal process which is to minimize erroneous conviction. We share the stance that "it is a fundamental value determination of our system that it is far worse to convict an innocent person than let a guilty man go free. 12 Third. Some prosecution evidence, offered independently of the plea of guilt of the appellant, were inadmissible, yet, were considered by the trial court in convicting the appellant.

Thus, the trial court gave full faith and credit to the physical evidence presented by the prosecution. To quote its Decision, 13 viz: xxx xxx xxx Further, there are physical evidence to prove Khazie was raped. These consists of a pillow with bloodstains in its center 14 and the T-shirt 15 of the accused colored white with bloodstains on its bottom. These physical evidence are evidence of the highest order. They strongly corroborate the testimony of Luisa Rebada that the victim was raped. These are inadmissible evidence for they were gathered by PO3 Danilo Tan of the Iloilo City PNP as a result of custodial interrogation where appellant verbally confessed to the crime without the benefit of counsel . PO3 16 Tan admitted under cross-examination, viz: xxx xxx xxx CROSS-EXAMINATION BY ATTY. ANTIQUIERA: Q Mr. Witness, when for the first time did you see Arnel Alicando? A June 13, 1994, when I arrested him. Q Previous to that you have never seen him? A Yes, sir. Q When for the first time did you start investigating Arnel Alicando? A After I finished investigating the body of the victim, Khazie Mae Penecilla. Q And that was also after you were informed that Arnel Alicando was a suspect in the raping of Khazie Mae Penecilla? A Yes, sir Atty. Antiquiera: Q And who was that person who informed you of the suspect? A Luisa Rebada. Q Mrs. Rebada who is the witness in this case? A Yes, sir.

Q And you started investigating Arnel Alicando in the morning of June 13, 1994? A Yes, sir. Q How long did you interrogate Arnel Alicando in the morning of June 13, 1994? A I cannot remember the length of time I investigated him.

Sustained. Atty. Antiquiera: Q When did you inform, the date when you informed Alicando of his Constitutional rights? A On June 13.

Q Did it take you the whole morning of June 13, 1994 in interrogating and investigating Arnel Alicando? A Yes, sir. Q And the investigation you conducted continued in the afternoon of the same date? A Yes, sir. Q The following day, June 14, 1994, you still investigated and interrogated Arnel Alicando. A Yes, sir. Q And when did you stop, finally, investigating and interrogating Arnel Alicando? A After I finished recovering all the exhibits in relation to this case. Q What date did you stop your investigation?

Q On what hour did you inform him? A After the witness identified him. Q What constitutional rights did you inform Alicando of? A The right to remain silent, and right to get his lawyer and I have interpreted in Visayan language. Q And during your investigation for almost two (2) days the accused was never represented by counsel, is that correct? A Yes, sir. Atty. Antiquiera: Q Are you aware of the law that enjoins a public officer to inform the person of his constitutional rights? A Yes, sir.

A June 14, 1994, when I finished recovering the white T-shirt and pair of earring. That is all, Your Honor. Atty. Antiquiera: Q You testified in this case, Mr. Witness, you never informed the court that you apprised the accused of his constitutional rights, is that correct? A I apprised him. Q My question is, during your testimony before this court under the direct examination of the prosecution you never informed the court that you apprised the accused of his constitutional rights? Pros. Fama: I did not ask him that question. How will he answer? Court: It is now familiar learning that the Constitution has stigmatized as inadmissible evidence uncounselledconfession or admission. Section 12 paragraphs (1) and (3) of Article III of the Constitution provides: xxx xxx xxx Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one.These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him.

In the case at bar, PO3 Tan did not even have the simple sense to reduce the all important confession of the appellant in writing. Neither did he present any writing showing that appellant waived his right to silence and to have competent and independent counsel despite the blatant violation of appellant's constitutional right, the trial court allowed his uncounselled confession to flow into the records and illicitly used it in sentencing him to death. It is not only the uncounselled confession that is condemned as inadmissible, but also evidence derived therefrom. The pillow and the T-shirt with the alleged bloodstains were evidence derived from the uncounselled confession illegally extracted by the police from the appellant. Again, the testimony of PO3 Tan makes this all clear, viz: 17 xxx xxx xxx

A It was already night time and it was only Kagawad Rodolfo Ignacio, my companion, who went to the place of the incident. Q You mean to say you were verbally instructed by the accused? A Yes, sir. Q In what particular place did you recover those things? A Inside the room where he raped the child. Q Whose house is that?

Q Did the accused Arnel Alicando accompany you to the place of the incident? A The house of Imelda Alicando. A Yes, sir. Q The wife of Romeo Alicando? Q When you arrived at the place of the incident what did you do? A Yes, sir. A He pointed to the fish basin. Q In what particular place is that situated? Q Can you identify this fish basin which you said pointed to you by Arnel Alicando? A Yes, sir. Q Please point? A (Witness pointing to the fish basin already marked as Exhibit "H".) Q Did you ask the accused what he did with this fish basin? A I asked the accused what he did with the fish basin and he answered that he used the fish basin to cover Khazie Mae Penecilla when she was already dead. Pros. Fama: Q You mean to say to conceal the crime? A Yes, sir. Q What else aside from this fish basin, what else did you recover? A At around 7 o'clock in the evening he further pointed to us the old mat and the pillowwherein he layed the victim Khazie Mae Penecilla Q You mean to say that you returned back to the scene of the incident that time? A Inside the room where the accused was sleeping at Rizal-Palapala. Pros. Fama: Q You mean to say inside that room the victim was raped by the accused? A Yes, sir. Q Can you point that pillow which you said you recovered inside the room of Imelda Alicando? A Yes, sir. Q And the mat? A (Witness taking out from the fish basin the mat and pillow.) Q Did you find something on the pillow? A The pillow have bloodstain in the middle. . . This was already marked as Exhibit "J", Your Honor and the mat as Exhibit "I". Q Aside from this what did you recover from the place of incident?

A On June 14, 1994, at about 10:00 o'clock in the morning the accused Arnel Alicando further informed me that he kept the gold earring of the victim and her clothes inside the room of the house of Imelda Alicando. Q Where? A I saw the clothes of Khazie Mae Penecilla inside the room where the rape took place hanged on the clothes line. And I found the pair of earring at the bamboo post of the fence. Court: Q Where is that bamboo post of the fence situated? A Around the fence of Imelda Alicando situated at the from gate on the right side. Pros. Fama: Q You mean to say you returned back on June 14, you recovered the items accompanied by the accused? A No more, I only followed his direction. Q He made verbal direction to you? A Yes, sir. Q Can you please show us the white t-shirt? A (Witness taking out a white t-shirt from the fish basin.) Q Please examine that white t-shirt? A The t-shirt have a bloodstain. We have not only constitutionalized the Miranda warnings in our jurisdiction. We have also adopted the libertarian exclusionary rule known as the "fruit of the poisonous tree," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone v. United States. 18 According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the " fruit " ) derived from it is also inadmissible. 19 Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is the indirect result of the same illegal act. The "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained. 20 We applied this exclusionary rule in the recent case of People vs.Salanga, et al., 21 a ponencia of Mr. Justice Regalado. Salanga was the appellant in the rape and killing of a 15-year old barrio lass. He was, however, illegally arrested. Soldiers took him into custody. They

gave him a body search which yielded a lady's underwear. The underwear was later identified as that of the victim. We acquitted Salanga. Among other reasons , we ruled that "the underwear allegedly taken from the appellant is inadmissible in evidence, being a so-called "fruit of the poisonous tree." 22 But even assuming arguendo that the pillow and the t-shirt were admissible evidence, still, the trial court erred in holding that they "strongly corroborated the testimony of Luisa Rebada that the victim was raped." For one, there was no basis for the trial court to conclude that the stains on the pillow and t-shirt were human bloodstains. The pillow and the t-shirt were not examined by any expert. To hold that they were human bloodstains is guesswork. For another, there was no testimony that the stains were caused by either the blood of the appellant or the victim. In addition, there was no testimony that the t-shirt was the one worn by the appellant when he allegedly committed the crime. It must also be noted that it is not unnatural for appellant to have bloodstains on his shirt. He is a butcher by occupation. Romeo Penecilla himself, the father of the victim, testified he knows the appellant "becausehe used to accompany me during butchering of animals." 23 The burden to prove that an accused waived his right to remain silent and the right to counsel before making a confession under custodial interrogation rests with the prosecution. It is also the burden of the prosecution to show that the evidence derived from confession is not tainted as "fruit of the poisonous tree." The burden has to be discharged by clear and convincing evidence. Indeed, par. 1 of Section 12 of Article III of the Constitution provides only one mode of waiver the waiver must be in writing and in the presence of counsel. In the case at bar, the records show that the prosecution utterly failed to discharge this burden. It matters not that in the course of the hearing, the appellant failed to make a timely objection to the introduction of these constitutionally proscribed evidence. The lack of objection did not satisfy the heavy burden of proof that rested on the prosecution. There is no and there ought not to be any disagreement on basic principles. The Court should be concerned with the heinousness of the crime at bar and its despicable perpetration against a 4-year old girl, an impersonation of innocence itself. The Court should also be concerned with the multiplication of malevolence in our midst for there is no right to be evil, and there are no ifs and buts about the imposition of the death penalty as long as it remains unchallenged as part of the laws of our land. These concerns are permanent, norms hewn in stone, and they transcend the transitoriness of time. Be that as it may, our commitment to the criminal justice system is not only to convict and punish violators of our laws. We are equally committed to the ideal that the process of detection, apprehension, conviction and incarceration of criminals should be accomplished with fairness, and without impinging on the dignity of the individual. In a death penalty case, the Court cannot rush to judgment even when a lowlife is involved for an erroneous conviction will leave a lasting stain in our escutcheon of justice. In sum, the Court cannot send the appellant to die in the electric chair on the basis of the procedural irregularities committed by, and the inadmissible evidence considered by the trial court. In Binabay vs. People, et al., 24ponencia of Mr. Chief Justice R. Concepcion, this Court held that no valid judgment can be rendered upon an invalid arraignment . Since in the case at bar, the arraignment of the appellant is void, his judgment of conviction is also void. In fairness to the appellant, and in justice to the victim, the case has to be remanded to the trial court. for further proceedings. There is no philosophy of punishment that allows the State to kill without any semblance of fairness and justice. IN VIEW WHEREOF, the Decision in Criminal Case No. 43663, convicting accused Arnel Alicando of the crime of Rape with Homicide and sentencing him to suffer the penalty of death is

annulled and set aside and the case is remanded to the trial court for further proceedings. No costs. SO ORDERED. G.R. No. 84905 February 1, 2000 REGINO CLEOFAS and LUCIA DELA CRUZ, petitioners, vs. ST. PETER MEMORIAL PARK INC., BASILISA ROQUE, FRANCISCO BAUTISTA, ARACELI WIJANGCO, DEL ROSARIO, BANCO FILIPINO, and REGISTER OF DEEDS OF RIZAL and REGISTER OF DEEDS OF QUEZON CITY, respondents. BUENA, J.: This case dates back to 1973. It has dragged on for 26 years and has reached this Court three times. We now write finis to this controversy. The property subject of the present controversy is Lot No. 719 of the Piedad Estate situated in the Municipality of Caloocan, Rizal, containing an area of 215,264 square meters. It forms part of the land covered by Original Certificate of Title No. 614 of the Registry of Deeds of Rizal, in the name of the Government of the Philippines. On March 20, 1909, the Director of Lands, as administrator of the Piedad Estate, executed a contract in favor of Antonio Cleofas, (predecessor-in-interest of herein petitioners) known as Sales Certificate No. 923. Antonio Cleofas took possession of the lot and occupied the same until his death sometime in 1945. Antonio's title was burned in a fire sometime in 1933. Subsequently, when petitioners tried to reconstitute the lost certificate, they discovered that the lot was already registered in the name of herein respondent Memorial Park. Hence, they filed on October 31, 1970 a suit against respondents for annulment of certificate of title and recovery of possession before then Court of First Instance of Rizal which was docketed as Civil Case No. Q15001. In their complaint, petitioners prayed, among others, that they be declared the rightful owners of Lot No. 719, that the title of their predecessor, Antonio Cleofas, be reconstituted and that all certificates of title over said lot issued in the names of the respondents be declared null and void. 1 Respondent Memorial Park, filed its answer alleging inter alia: that while Lot No. 719 was originally sold to Antonio Cleofas by the government, Cleofas subsequently assigned his rights to a certain Aniceto Martin and Trino Narciso, in whose favor Transfer Certificate of Title No. 21893 was issued on June 17, 1932; that Martin and Narciso in turn conveyed the property to Nazario Roque on May 11, 1937 resulting in the issuance of TCT No. 32258; and that Nazario's transfer certificate of title was cancelled and the property was passed on to his heirs, Carmen and Basilisa Roque from whom respondent St. Peter Memorial Park purchased the lot. 2 After trial, the lower court, on May 2, 1973, rendered judgment in favor of herein petitioners and against respondents, the decretal portion of which reads: IN VIEW OF ALL THE FOREGOING, it is hereby declared that the plaintiffs are the rightful owners of Lot 719 of the Piedad Estate and are entitled to possession of the same; that Transfer Certificate of Title No. 21893 issued by the defendant Register of Deeds of Rizal is declared null and void, and the following Transfer Certificates of Title Nos. 32258 issued by defendant Register of Deeds of Rizal cancelling TCT No. 21893; 12360 issued by defendants Register of Deeds of Quezon City, cancelling TCT No. 32258; 74978 in the name of defendant Araceli Wijangco del Rosario issued by defendant Register of Deeds of Quezon City and a transfer from TCT No. 12360; 98115, 130328 and 131768 in the name of defendant Basilisa Roque-Bautista and in

the name of defendant corporation which are all mortgaged to the defendant Bank, and all issued by defendant Register of Deeds of Quezon City; are hereby declared null and void and are deemed cancelled and of no effect. The plaintiffs' petition for reconstitution of their lost title having been consolidated with this case, the same is hereby granted, and the Register of Deeds of Quezon City is directed to reconstitute plaintiffs' title on Lot 719. Piedad Estate, based on all available records and other data appearing in said registry of property. It is further ordered that as prayed for the defendant corporation St. Peter Memorial Park, Inc., and the defendants Francisco M. Bautista and Basilisa Roque pay jointly and severally to the plaintiffs the amount of P40,000.00 as damages and the amount of P10,000.00 as Attorney's fees; plus costs. SO ORDERED. 3 On June 30, 1973, respondents Memorial Park and Banco Filipino filed a joint motion for new trial on the ground of newly discovered evidence consisting of documents to show that the title issued to Antonio Cleofas refers to lot 640 and not lot 719 of the Piedad Estate. The motion for new trial was denied by the trial court on February 5, 1974. Aggrieved, respondents filed with this Court a petition for certiorari and prohibition to set aside the trial court's order denying their motion. The petition was docketed as G.R. No. L-38280. 4 On March 21, 1975, this Court granted respondents' motion and remanded the case to the Court of First Instance for new trial. At the new trial, respondents introduced new evidence to show that Antonio Cleofas is the awardee of Lot 640 of the Piedad Estate as evidenced by Deed No. 18562 dated August 10, 1929, as well as TCT No. 15694 covering the same lot. It is their theory that Sheet 15 of Original Certificate of Title No. 614 which is the basis of petitioners' title over the subject lot, referred to Lot No. 640 and not to Lot 719. On March 19, 1977, the Court of First Instance of Rizal, Branch IV, Quezon City, then presided by Judge Ricardo P. Tensuan, rendered a decision, the dispositive portion of which reads 5: IN VIEW OF ALL THE FOREGOING, the Decision dated May 2, 1973 is hereby revived and reinstated, and it is hereby declared that the (1) plaintiffs are the rightful owners of Lot 719 of the Piedad Estate and are entitled to possession of the same; that Transfer Certificate of Title No. 21893 issued by the defendant Register of Deeds of Rizal is declared null and void, and the following Transfer Certificate of Title Nos. 32258 issued by defendant Register of Deeds of Rizal cancelling TCT Nos. 21893; 12360 issued by defendant Register of Deeds of Quezon City, cancelling TCT Nos. 32258; 74978 in the name of the defendant Araceli Wijangco del Rosario issued by defendant Register of Deeds of Quezon City and a transfer from T.C.T Nos. 12360, 98115, 130328 and 131768 in the name of defendant Basilisa Roque-Bautista and in the name of defendant corporation which are all mortgaged to the defendant Bank, and all issued by defendant Register of Deeds of Quezon City; are hereby declared null and void and are deemed cancelled and of no effect. The plaintiffs petition for reconstitution of their lost title having been consolidated with this case, the same is hereby granted and the Register of Deeds of Quezon City is directed to reconstitute plaintiffs' title on Lot 719, Piedad Estate, based on all available records and other data appearing in said registry of property. (2) It is further ordered that as prayed for, the defendant corporation St. Peter Memorial Park, Inc., pay to the plaintiffs the amount of P40,000.00 as damages and the amount of P10,000.00 as attorney's fees; plus costs.

SO ORDERED. The trial court found the Deed of Assignment in favor of Martin and Narciso, predecessors of herein respondent St. Peter Memorial Park, spurious. The trial court dwelled on the fact that the Assignment of Certificate of Sale No. 923 6 executed by Antonio Cleofas in favor of Martin and Narciso, Deed No. 25874 7 executed by the Director of Lands in favor or Martin and Narciso conveying lot 719 to the latter and the deed of sale executed by Martin and Narciso in favor Nazario Roque were all in the possession of respondent St. Peters and not with the proper custodians or repositories thereof and that the alleged assignment bears only a thumbmark of Antonio Cleofas although there is proof of his competence to sign the same. 8 Again, respondents elevated the case to this Court and on July 30, 1979, we rendered a decision affirming the trial court's decision, portions of which is hereunder quoted: The deed of assignment in question of Lot No. 719, although more than thirty years old, was not produced from a custody in which it would naturally be found if genuine. It was found in the custody of the St. Peter Memorial Park, Inc., not in the folder of Bureau of Lands for Lot No. 719. If, as contended by the petitioners the said deed of assignment was the basis of the sale of Lot No. 719 by the Bureau of Lands in favor of Aniceto Martin and Trino Narciso, the deed of assignment should have been placed in the folder of the Bureau of Lands for Lot No. 719. No reason was given why the deed of assignment of Lot No. 719 in favor of Aniceto Martin and Trino Narciso was produced from the possession of St. Peter Memorial Park, Inc. Moreover, the deed of assignment was principally signed by one Ruperto Cleofas who was not a co-owner of Lot No. 719. Antonio Cleofas, who was the sole owner of said lot, was only a co-assignor. Although he could write his name, Antonio Cleofas did not sign the deed of assignment. There appears only a thumb mark over the typewritten name of Antonio Cleofas. These suspicious circumstances were not explained by the petitioners. The deed of assignment cannot be presumed genuine and authentic under Sec. 22, Rule 132 of the Revised Rules of Court. It was not produced from a custody in which it would naturally be found if genuine and it is blemished by circumstances of suspicion. The fact that petitioner, St. Peter Memorial Park, Inc., was in possession of the deed of assignment of Lot No. 719 which the trial court found to be spurious is a badge of bad faith. 9 Again, respondents St. Peter Memorial Park and Banco Filipino moved to reconsider the aforesaid decision. During the pendency of the motion, respondent filed a Supplemental Motion for Reconsideration praying alternatively, (1) that the motion be considered in the light of the additional documentary evidence which they ask the Court to take judicial notice of; or (2) if this Court is not inclined to do so on procedural or technical grounds, that the case be remanded to the trial court for new trial in order to afford them the opportunity to present newly discovered evidence. In their prayer for another new trial, respondents have manifested that in view of the adverse finding as to the genuineness of the deed of assignment, they continued their search for evidence to bolster their contention that the deed of assignment of Sale Certificate No. 923 was a genuine document properly filed in a government office and confirmed by entries in the records of the same. 10 On March 28, 1983, this Court set aside its decision of July 30, 1979 and remanded the case to the trial court of Quezon City for new trial. In granting the second motion for new trial, this Court ratiocinated: 11

It is neither a valid objection that the petitioners had previously been afforded the opportunity to present evidence which they failed to do during the trial. A second new trial is expressly authorized by the Rules if "based on a ground not existing nor avoidable when the first motion was made" (Sec. 4, Rule 37, Rules of Court). As pointed out above, the circumstances surrounding the discovery of the evidence which the petitioners desire to present are adequate justification for the failure to make them available during the original trial, or in the new trial previously allowed. xxx xxx xxx

The evidentiary worth of the evidence proffered by the petitioners may not be brushed aside by a simplistic and sweeping appraisal that "they do not promise to change the results." Undeniably, if it is true that copies of Exhibits "1" and "2" had actually been filed in the proper government office, but were only misplaced or misfiled therein, there would be little doubt as to the authenticity of the copies in the possession of the petitioners which had been presented in court as Exhibits "1" and "2". Such a finding would meet squarely the pronouncement that Exhibits "1" and "2" are spurious. It would also serve to dissipate the doubts as to their genuineness arising from the fact that Exhibit "1" was executed not by Antonio Cleofas alone, and that it was thumbmarked and not signed by him. The peculiar circumstances surrounding the discovery of the evidence that the petitioners seek to present; their significance and materiality in arriving at a true appraisal of the matters involved in this case which, as had been previously observed by Us, is one that "involves public interest" affecting as it does many memorial lot buyers and the integrity of the torrens systems (63 SCRA 190); and the considerable value of the property herein litigated, behooves Us to proceed cautiously and with circumspection in the determination of the true merits of the controversy, regardless of technicalities and procedural niceties, with the primordial end in view of rendering justice to whomsoever it may be due. In the second new trial, respondents presented photocopies of OCT No. 543 of the Tala Estate which contain an entry of the sale by Antonio Cleofas in favor of Narciso and Martin covering lot no. 719 of the Piedad Estate and the Notarial Register of Notary Public Jose Ma. Delgado, showing entries of the deed of sale executed by the Director of Lands in favor of Trino Narciso and Aniceto Martin over 719. 12 On the basis of the new evidence presented by respondent, the trial court on November 20, 1985 rendered judgment dismissing petitioners' complaint. 13 The trial court opined that the deed of assignment was not found in the possession of the person in which it would naturally be found because the deed of conveyance was misrecorded in a memorandum sheet of OCT No. 543 of the Tala Estate. Petitioners appealed to the Court of Appeals which was docketed as CA-G.R. No. 12901. On September 2, 1988, the court rendered judgment 14 affirming in toto the trial court's decision. The Court of Appeals anchored its ruling on the doctrine that a title which emanated from a spurious source may be the root of a valid title. Petitioners now challenge the court's decision before this Court arguing that the Court of Appeals gravely abused its discretion when it disregarded pertinent and material facts of the case and went beyond the issues raised. They assert that the doctrine relied upon by the Court of Appeals is not applicable to the case at bar because in the three trials held, the only point raised is the spurious character of the alleged deed of assignment.

While we have in many cases recognized and applied the aforementioned doctrine, we cannot, given the facts of the case, apply the said doctrine. Rather, we will delve on the determination of the authenticity of the deed of assignment in relation to the additional evidence presented by respondents during the second new trial. We have scrutinized the evidence presented and we are convinced that the deed of assignment executed by Antonio Cleofas in favor of Narciso and Trino, is authentic. Thus, we are reconsidering our ruling in St. Peter Memorial Park, Inc. vs. Cleofas, (92 SCRA 407) where we held that the deed of assignment is a spurious document which may not be accorded any evidentiary value. It must be recalled that the decision of then Court of First Instance in May 1977 finding the Assignment of Sales Certificate No. 923 spurious, relied on the fact that said assignment and Deed of Conveyance No. 25874 were in the possession of respondent St. Peter Memorial Park, and were not in the custody of the government offices where they should ordinarily be. 15 This was sufficiently refuted by herein respondents during the second new trial where they presented evidence showing that the said assignment and Deed No. 25874 were properly filed in the Bureau of Land and confirmed by Risalina Concepcion, Chief of the Archives Division, Bureau of Records Management, and Norberto Vasquez, Jr., Deputy Register of Deeds, District III, Caloocan City. Respondents' failure to present evidence to show that the said documents were properly recorded in the books of the Register of Deeds can be attributed to the fact that there was a misrecording of the transactions on OCT No. 543 of the Tala Estate instead of OCT No. 614. When Aniceto Martin, who was also a grantee of two lots of the Tala Estate, presented the deed of assignment of lot 719, this was recorded in a sheet pertaining to OCT No. 543 instead of being inscribed in a sheet pertaining to OCT 614 covering the Piedad Estate. Moreover, we believe that respondent St. Peter Memorial's possession of the documents is reasonable considering that it is the vendee of the subject lot. In other words, it is reasonably expected that respondent, as successor-in-interest of the assignees Trino and Narciso, and the purchaser of the subject lot, be found in the possession of the documents. 1wphi1.nt The custody to be shown for the purpose of making a document evidence without proof of execution is not necessarily that of the person strictly entitled to the possession of the said document. It is enough that if the person in whose custody the document is found is so connected with the document that he may reasonably be supposed to be in possession of it without fraud. 16 Thus, documents are said to be in proper custody where they are in the place in which, and under the care of the person with whom, they would naturally be, as, for instance, where they are found among the family papers of the persons entitled thereto, or where they are found in the hands of an agent of the parties beneficially interested. 17 Additionally, the fact that the deed of assignment contain only a thumb mark of Antonio Cleofas is not indicative of the document's spuriousness. Petitioners failed to present evidence to prove that the thumb mark appearing in the deed of assignment is not that of Antonio Cleofas. Petitioners merely relied on the fact that in the Sales Certificate No. 923, Antonio Cleofas signed his name. Thus, we agree with the trial court's observation that: . . ., absent any evidence that the thumbmark purporting to be Antonio Cleofas' in the Assignment of Certificate of Sale (Exh. "1") is not really his, the presumption of law that the transfer transaction evidenced thereby was fair and regular must stand, more so when the document was acknowledged before a notary public and was, furthermore, the basis of several acts of public officers. 18 It is important to stress too that the deed of assignment was duly notarized by Notary Public Vicente Garcia on July 15, 1921. 19 Also, Deed No. 25874 issued and executed by the Director of Lands on behalf of the government, granting and conveying lot no. 719 to Trino and Martin

was notarized by Notary Public Jose Ma. Delgado. 20Having been notarized, the documents have in their favor the presumption of regularity, and to contradict the same, there must be evidence that is clear, convincing and more than merely preponderant. 21 Petitioners failed to rebut said presumption, hence the presumption stands. Finally, petitioners' failure or neglect for an unreasonable and unexplained length of time to assert their right over the property warrants a presumption that they have abandoned their right or declined to assert it. 22 Petitioners admit that they were in possession of the land only until 1945. From that time until the filing of the complaint, petitioners never questioned respondents' possession. They have waited more than 25 years before questioning respondents' title. Their long inaction and passivity in asserting their rights over the disputed property precludes them from recovering the same by laches. 23 WHEREFORE, the decision of the Court of Appeals in CA-G.R. No. 12901 is AFFIRMED. Costs against petitioners. SO ORDERED. G.R. No. 123541 February 8, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIOLO BARITA y SACPA, DENVER GOLSING y DELFIN, DIONISIO CUISON y FONTANILLA, accused-appellants. GONZAGA-REYES, J.: Before us is an appeal from the decision1 of the Regional Trial Court (RTC) of Baguio City, Branch 6, finding accused-appellants Diolo Barita, Denver Golsing and Dionisio Cuison guilty beyond reasonable doubt of violation of Section 4, Article II of Republic Act 6425 otherwise known as the Dangerous Drugs Act as amended by Section 13 of Republic Act 7659. 2 Diolo Barita (BARITA), Denver Golsing (GOLSING) and Dionisio Cuison (CUISON) were charged with violation of Section 4, Article II of Republic Act 6425 in an information that reads: That on or about the 9th day of June 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, did then and there willfully, unlawfully and feloniously sell and deliver more or less 2,800 grams of dried marijuana leaves with flowering tops knowing fully well that said leaves of marijuana is a prohibited drug, in violation of the above mentioned provision of law. CONTRARY TO LAW.3 On October 25, 1984, all three accused were arraigned and pleaded not guilty to the crime charged.4 The lower court summarized the facts as follows: The evidence shows that on June 9, 1994 at about 12:00 o'clock noon Police Supt. Felix Cadalli of the 14th Narcotics Regional Field Unit, Camp Bado Dangwa, La

Trinidad, Benguet received a report from a civilian informer that one alias Jun, a taxi driver, who usually waits for passengers at Nelbusco Terminal, Otek St., Baguio City is the middleman of those selling marijuana at Justice Village, Baguio City. After evaluating the information, P/Supt. Cadalli organized a buy-bust team composed of P/Insp. Virgilio Pelaez as team leader, PO3 Teofilo Juanata as poseur-buyer, SPO1 Edelfonso Sison driver and PO3 Rolando Gamit as back-up. A briefing ensued wherein Insp. Pelaez, PO3 Gamit and SPO1 Sison were instructed to proceed to Justice Village, and wait and position themselves strategically thereat so that they could witness the transaction between their poseur-buyer and the drug pushers. Supt. Cadalli gave PO3 Juanata two pieces of P100.00 bills together with machine copies thereof and pieces of paper cut into the size of money bills such that if put together with one of the two P100.00 bills on top and the other at the bottom, the whole bunch will have the appearance of a bundle of money to be used in the purchase of marijuana for entrapment purposes. The two P100.00 bills were previous the subject of an Authentication (Exh. E) dated June 3, 1994 before Prosecutor Octavio Banta. Juanata was instructed by Cadalli to proceed with the civilian informer to Nelbusco Terminal at Otek St., Baguio City to contact alias Jun, the middleman. In accordance with instructions, Pelaez, Gamit and Sison left for Justice Village at about 3:00 p.m. on board the red car owned and driven by Sison. In turn, Juanata and the civilian informer boarded a passenger jeepney and proceeded to the Nelbusco Terminal. There, they were able to see alias Jun waiting for passengers inside his taxi. Juanata was introduced by the civilian informer to alias Jun, later identified as Dionisio Cuison, as a buyer of marijuana. And the latter told then that the stocks of marijuana were available at Justice Village. The three proceeded to Justice Village on boards Jun's taxicab. Meanwhile, the Narcom team of Pelaez waited at the road junction of Justice Village and Marcos Highway. Not long after, they spotted the taxi driven by accused Cuison carrying Juanata and the civilian informer and followed it unnoticed. The taxi stopped by the side of the road at Justice Village. The red car of Sison following passed by the taxi and then took a U-turn at the dead end of the road such that when the red car was parked, those inside it were facing the taxi parked around 20 meters away. Soon after he parked his taxi, accused Cuison alighted and talked to some persons. When he returned, he informed Juanata that they have to wait because the sellers of marijuana were not around yet. After about five minutes, two persons walked towards the taxi. Accused Cuison went out of the taxi to meet them. And they talked. After which Juanata was introduced by Cuison to the two as a marijuana buyer. Juanata introduced himself as Jojo while the two introduced themselves as Diolo, later identified as Diolo Barita and Denver, later identified as Denver Golsing. Juanata ordered three kilos of marijuana and was told by accused Golsing that a kilo costs P800.00. Then accused Barita and Golsing told them to wait as they will get the marijuana. After about 5 minutes, accused Golsing and Barita returned. Accused Barita was carrying a transparent plastic bag which he handed to Juanata. After examining the contents of the plastic bag (Exh. G), consisting of three bundles (Exhs. H, I, J), two wrapped in a brown paper (Exhs. H and I) and the third wrapped in a newspaper page (Exh. J), and determining the contents thereof as marijuana, Juanata handed the boodle money to accused Golsing and immediately gave the pre-arranged signal by removing his cap.

Forthwith, the group of Insp. Pelaez rushed to where the transaction took place, identified themselves as Narcom agents, and arrested accused Barita, Golsing and Cuison. The accused together with the marijuana confiscated and the boodle money recovered were brought to the 14th Narcotics Regional Field Unit at Camp Dangwa. The accused were turned over for investigation while the marijuana was turned over to the evidence custodian after Juanata, Gamit and Sison inscribed and signed their initials on the transparent plastic bag (Exh. G) as well as on the wrappers of the three bundles (Exhs. H, I, J) contained therein to identify the confiscated items and avoid tampering. The Booking Sheet and Arrest Reports (Exhs. B, C, D) of the accused were made.5 On November 6, 1995, the RTC rendered its decision finding all the accused guilty beyond reasonable doubt for violating Section 4, Article II of Republic Act 6425 as amended, the dispositive portion of which reads: WHEREFORE the Court finds the accused Diolo Barita y Sacpa, Denver Golsing y Delfin and Dionisio Cuison y Fontanilla Guilty beyond reasonable doubt as principals by direct participation and/or by indispensable cooperation of the offense of Violation of Section 4, Article II of Republic Act 6425 as amended by Section 13 of Republic Act 7659 (Sale of 2.8 kilos of marijuana, a prohibited drug) as charged in the Information and hereby sentences each of them to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay the proportionate costs. The marijuana confiscated from the accuses (Exhs. G, H, I, J) being the subject and instrument of the crime is declared confiscated and forfeited in favor of the state and referred to the Dangerous Drugs Board for immediate destruction. The accused Diolo Barita, Denver Folsing and Dionisio Cuison, being detention prisoners are entitled to be credited in the service of their sentence 4/5 of their preventive imprisonment in accordance with Article 29 of the Revised Penal Code. SO ORDERED.6 Hence, this appeal where each of the accused-appellants filed their respective appellant's briefs. In support of his appeal, BARITA denies any participation in the alleged sale of marijuana. He claims that no buy-bust operation was conducted and that the accusation against him was all part of a frame-up. To prove this, BARITA alleges that the prosecution evidence is replete with numerous flaws and glaring inconsistencies considering that: 1.) Records (requests for physical examination made by P/Supt. Felix G. Caddali, Jr.) reveal that the buy bust team allegedly arrested five (5) persons 7 yet the prosecution witnesses insist that only three (3), herein accused-appellants, were arrested. Considering that the prosecution witnesses made no explanation concerning this, their testimonies should not be given credence. Moreover, the prosecution witnesses attempted to hide the fact of the arrest of the other two who were arrested, SIBAYAN and BINDADAN. According to them, since the prosecution witnesses were not able to give a sufficient explanation why only three accused were charged, they concocted the buy-bust operation. 2.) None of the accused-appellants reside or are from Justice Village, the place where the alleged sale took place and could not have committed the crime.

3.) There is a reasonable doubt as to the existence of the civilian informer for if there really was one, the NARCOM agents would not have taken his report without question. 4.) The events leading to the buy-bust are contrary to human experience and opposed to common sense inasmuch as the alleged sale of marijuana was not definite to happen and that Jun supposedly knew the sellers of marijuana yet upon arrival at Justice Village, he had to inquire about them thereat. 5.) The prosecution witnesses' accounts differ with respect to whether or not Jun alighted from the taxicab at the time when the alleged pushers neared the taxicab. 6.) PO3 Juanata's testimony is doubtful since he could not testify as to where his companions were at the time of the sale, which negates the existence of a buy-bust plan. 7.) There is a divergence of testimony as to where the sale took place. 8.) The prosecution witnesses gave different versions as to where the alleged sellers proceeded after they went to get the marijuana. 9.) The testimonies given with respect to the buy-bust money is shrouded with contradictions. 10.) There is a divergence of testimony as to the ownership of the red car used in the buy-bust operation. 11.) There is a divergence of testimony as to the existence of a safehouse. 12.) There is a divergence of testimony as to the participation of PO3 Gamit in the arrest of the accused-appellants. 13.) The taxicab was released without an order from the trial court and such release was never exlained. 14.) The joint affidavit of arrest does not contain the name of P/Insp. Virgilio Pelaez, the team leader, as one of the affiants. It is contended that the foregoing inconsistencies and unexplained facts in the testimonies of the prosecution witnesses cast doubt on their credibility. BARITA also claims that the trial court convicted the accused-appellants based on the weakness of their defense and not on the strength of the prosecution's evidence. Moreover, BARITA questions the identity of the marijuana presented in court considering that the description of the marijuana in the joint affidavit of arrest and the written request for laboratory examination differ and that the chain of custody of the confiscated marijuana leaves was not clearly established. Finally, BARITA alleges that the weight of the alleged marijuana leaves was not duly proved in light of the fact that the forensic chemist admitted that she only tested small quantities of the specimens given to her and that she could not determine whether the whole specimen was marijuana.8

Accused-appellants GOLSING and CUISON raise substantially identical arguments for the reversal of the decision of the RTC in their briefs. Thus, for the purpose of this appeal, we resolve to discuss their arguments jointly. We find no merit in the appeal. Accused-appellants' defenses consist of questioning the credibility of the witnesses for the prosecution and "frame-up". It is well established in this jurisdiction that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect unless the court a quo overlooked substantial facts and circumstances which, if considered, would materially affect the result of he case.9 We find no reason to depart from this rule in the present case. Accused-appellants were arrested by virtue of a buy-bust operation conducted by the 14th Narcotics Regional Command Field Unit. The buy-bust operation was established by prosecution witnesses PO3 Teofilo S. Juanata, Jr. (JUANATA), Rolando Gamit (GAMIT) and Idelfonso Sison (SISON), the apprehending officers, who positively identified BARITA and GOLSING as the two men who sold the marijuana and CUISON (the taxi driver) as the middleman in the sale. JUANATA, who acted as poseur buyer, testified that: PROS: CENTENO: Q: Who was your companion in going to the Nel Bosco Terminal after the briefing was conducted by Felix Cadalig? A: Our Civilian Informer, sir. Q: Do you know the name of this Civilian Informer? A: No, sir. Q: Until now? A: No, sir, it was my first time to see him. Q: Were you able to reach the Nel Bosco Terminal? A: Yes, sir. Q: How about the group of Pelaes, Gamit and Sison, do you know where they went? A: They proceeded, to Justice Village, Marcos Highway, Baguio City, sir. Q: Now, what time did you reach the Nel Bosco terminal located at Otek St., Baguio City on June 9, 1994? A: 4 p.m., sir. Q: And what was your purpose in going to the Nel Bosco Terminal on that day? A: To look for alias Jun, sir. Q: Were you able to locate alias Jun at Nel Bosco Terminal? A: Yes, sir, he was there because he is a taxi driver. Q: What happened when you saw alias Jun at the Nel Bosco Terminal which happened to be a taxi driver? A: I was introduced by the civilian informer as a prospective marijuana buyer, sir. Q: And what happened after this civilian informer introduced to you to alias Jun to be a prospective buyer of marijuana? A: Jun answered that he knows somebody who sells marijuana at Justice Vil., Marcos Highway, sir. Q: If this alias Jun will be seen again by you, will you be able to identify him? A: Yes, sir. Q: Will you please look inside the courtroom and tell us if this alias Jun present? A: (Witness pointing to a person in blue t-shirt who identified himself as Dionisio Cuison) xxx xxx xxx

PROS: CENTENO: Q: Now, after alias Jun left you and the civilian informer inside the taxi cab, what happened next Mr. Juanata? A: He returned, sir. Q: How many times lapsed when you noticed that alias June just returned to the place after he left you? A: About five minutes, sir. Q: Was he alone when he returned to your place? A: Yes, sir, he was not able to see the person selling marijuana. Q: So what happened when you saw alias Jun returned alone because he was not able to locate the person selling marijuana? A: We waited for a while, sir. Q: At that time when you were already at Justice Village waiting for a while as you said, did you know the other members of the buy bust team? A: I was not able to see them but I know they were their positioned, sir. Q: How long did you wait at Justice Village after alias Jun returned without having located the seller of marijuana as you said? A: About 5 minutes, sir. Q: And what happened after the lapse of five minutes? A: Two male persons arrived, sir. Q: Will you tell us the appearance of these two male persons walking? A: They look like bachelors, sir. Q: Aside from walking toward your place, what else did you observe if any? A: Alias Jun alighted from the taxi cab and met the two male persons sir. Q: How about you, what did you do when you saw that alias Jun alighted from the taxi cab and met these two persons? A: I remained inside the taxi, sir. Q: Was alias Jun able to meet these two persons? A: Yes, sir, they talked, sir. Q: How far was that place where you saw alias Jun and the two male persons talking from the place where you were seated inside the taxi cab? A: More or less five minutes, sir. Q: After you saw alias Jun and the two male persons talking as you said, what happened next? A: Alias Jun introduced me to that two male persons, sir. Q: How far were you from these two male persons when alias June introduced you to them? A: They approached the taxi, sir and I was introduced as a marijuana buyer. Q: After you were introduced by alias Jun to these two male persons that you were a marijuana buyer, what happened next? A: Denver said that a kilo of marijuana cost P800.00, sir. Q: By the way, what was the name you gave to these two male persons when you were introduced by alias Jun to them? A: I introduced myself as Jojo, sir. Q: And how did the two male persons introduced themselves to you? A: Diolo and Denver, sir. Q: If this Denver would be seen again by you, would you be able to identify him? A: Yes, sir. Q: If Denver is in the courtroom, will you please point to him? A: (Witness pointed to a person inside the courtroom who identified himself as Denver Golsing) Q: How about this other person who introduced himself to you as Diolo, if you will see him again, will you be able to identify him? A: Yes, sir. Q: Will you please point to him?

A: (Witness pointed to a person inside the courtroom who identified himself as Diolo Barita). Q: You said a while ago that after you were introduced to these two male persons by this Jun, Denver told you that a price of a kilo of marijuana is P800.00, so what did you tell Denver when he told you that a price of a kilo of marijuana is P800? A: I told them that I will buy three kilos, sir. Q: At the time Denver was telling you that the cost of a kilo of marijuana is P800, where was Diolo? A: At this side, sir. Q: What was he doing at the time Denver was telling you that the cost of a kilo of marijuana was P800.00? A: He was there listening, sir. Q: After you told Denver that you wanted to buy 3 kilos of marijuana after you were told that the cost of a kilo is P800, what happened next? A: The two of them left, sir. Q: How about alias Jun, where did he go? A: He was left there, sir. Q: So the person who left were Denver and Diolo? A: Yes sir. Q: How about your civilian informer, where was he during all the time that you were ordering 3 kilos of marijuana? A: He was near inside the taxi cab, sir. Q: do you know where Denver and Diolo went after they left the place where you were told that a cost of a kilo of marijuana is P800? A: I don't know, sir. Q: What happened after Denver and Diolo left the place where you were with Jun and the civilian informer? A: They returned after five minutes, sir. Q: I am just curious Mr. Juanata, everytime you answer a question regarding the time element, you have been uniformed in saying that the interval is always five minutes. After the lapse of five minutes, you said they returned to the place, who returned to the place? A: Denver and Diolo, sir. Q: Did you see these two persons approach the place where you were with Jun at that time? A: I saw them, sir. Q: Will you tell us the appearance at that time they were returning to your place? A: Diolo was carrying a plastic bag, sir. Q: Could you tell us the size of this plastic bag being carried by Diolo at that time? A: (Witness demonstrating a with the size of about 2 feet in height). Q: How about the bulk? A: Two feet by 1/2 feed in width. Q: How about Denver, what was the appearance at that time? A: He was not carrying anything, it was only Diolo who was carrying something, sir. Q: If you see that plastic bag again which was carried by Diolo on June 9, 1994 at Justice Village, Baguio City, will you be able to identify the same? A: Yes, sir. Q: Were these two persons, Diolo and Denver able to reach the place where you were on June 9, 1994? A: Yes, sir. Q: What happened when they reached the place where you were? A: I alighted from the taxi cab and then Diolo handed to me the plastic bag, sir. Q: After Diolo handed to you the plastic bag, what did you do? A: I opened the contents of the object wrapped in a newspaper, sir.

COURT: You are saying therefore that inside the plastic bag was an object wrapped in a newspaper? Yes, sir.

A: COURT:

Continue, counsel. PROS. CENTENO: Q: Now, this plastic bag, is it transparent or not? A: Yes, sir, transparent. Q: What happened after you opened these items wrapped in a newspaper page found inside the transparent bag? A: I saw a marijuana wrapped inside the newspaper and then I gave the money to Denver and also, I gave my pre-arrange signal to the back up team, sir. Q: By the way, what was supposed to be the pre-arrange signal to be given to the back up team? A: by removing my yellow cap, sir. Q: And after you have delivered the money to Denver at the same time giving your signal by removing your yellow cap as you said, what happened? A: I introduced myself as a Narcom Agent and gave my name as PO3 Teofilo Juanata, Jr. Q: What happened after you gave your pre-arrange signal and at the same time you introduced yourself as a Narcom Agent to the persons? A: The back up team arrived and we apprehended them, sir. Q: Who were the persons whom you apprehended upon arrival of the back up team? A: Jun, Denver and Diolo, sir. Q: The persons you earlier identified in Court? A: Yes, sir.10 JUANATA's testimony is corroborated by the testimonies of GAMIT11 and SISON12 who gave similar accounts of the events that transpired. The alleged inconsistencies and/or flaws in the testimonies of the prosecution witnesses pointed out by accused-appellants are insufficient to overturn the judgment of conviction against them inasmuch as the testimonies of these witnesses are consistent with each other on material points. Their testimonies sufficiently establish all the facts necessary for the conviction of the accused for what is material and indispensable is the submission of proof that the sale of the illicit drug took place between the seller and the poseur-buyer.13 At any rate, the inconsistencies pointed out by the accusedappellants are trivial in nature and do not prove that they did not commit the crime charged. Furthermore, the testimonies of the three police officers carry with it the presumption of regularity in the performance of official functions.14 Accused-appellants failed to convincingly prove that in testifying against them, these witnesses were motivated by reasons other than their duty to curb the sale of prohibited drugs. In the absence of such ill motive, it is presumed that none exists. Aside from proving the fact of the sale, the prosecution also successfully established the identity of the packages taken from the accused-appellants in court through the testimonies of JUANATA,15 GAMIT,16 SISON17 and Forensic Chemist P/Ins. Alma Margarita Villaseor (VILLASEOR).18 In addition, JUANATA's testimony traces the chain of custody of the packages to the effect that after arresting the accused-appellants, they were brought to Camp Dangwa together with the confiscated marijuana. The marijuana was turned over to the Investigation Division after the apprehending officers properly initiated the bags. Thereafter, a request for laboratory exam was prepared and SPO1 Modesto Carrera delivered the three packages to the PNP Crime Laboratory Service assigned to Camp Dangwa. 19 The said office received the three packages, which were properly identified in court by VILLASEOR.20

It was also proved that the substance sold by the accused-appellants was approximately 2,800 grams of marijuana. On the witness stand, VILLASEOR, who was qualified as an expert witness,21 testified that she subjected samples taken from the three packages to three examinations all of which resulted in a positive finding that the samples she tested were marijuana. She also weighed the packages and established that their total weight came out to 2,810.5 grams.22 Her findings were placed in the chemistry report23, which states that "Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the test for the presence of Marijuana, a prohibited drug." We are not persuaded by the claim of accused-appellants that in order for them to be convicted of selling 2,800 grams of marijuana, the whole specimen must be tested considering that Republic Act 7659 imposes a penalty dependent on the amount or the quantity of drugs seized or taken. This Court has ruled that a sample taken from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant.24 Likewise, accused-appellants' defense of "frame-up" does not convince us of their innocence. Such defense has been invariably viewed by this Court with disfavor for it can easily be concocted but difficult to prove and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act. 25BARITA's26 and GOLSING's27 attempt to prove the "frame-up" by claiming that they were abused by the police officers28 in order to confess to the crime is belied by the testimony of defense witness, Dr. Vladlmir Villaseor. (DR. VILLASEOR). DR. VILLASEOR testified that BARITA, GOLSING and CUISON did not exhibit any signs that they were maltreated after he examined them and that none of them sustained any physical injuries. 29 Similarly, BARITA's claim that he was arrested by the police in order to extort P200,000.00 from him is not worthy of belief. No evidence, aside from his bare assertions was presented to establish such as fact. Neither of his co-accused, GOLSING or CUISON substantiated this allegation. In the absence of clear and, convincing evidence to prove the alleged "frame-up" or extortion, such defenses must fail. Finally, the fact that the requests for physical examination show that five persons were examined does not discredit the testimonies of the prosecution witnesses that only three persons were arrested at Justice Village. As aptly observed by the trial court: Apparently, only Barita, Golsing and Cuison were caught in the actual act of the selling the marijuana along the road in Justice Village, Sibayan and Bindadan were not caught on the road as they were in their houses. Sibayan and Bindadan were invited and taken into custody afterwards when implicated by Barita when the latter was asked to point to the house of his companions where they got the marijuana. This explains why Dr. Villaseor examined five persons instead of only the three accused. This also explains why Juanata, Sison and Gamit insisted only three accused as they really arrested only the three accused in the actual act of selling marijuana. This is supported by the fact that only Barita, Gosling and Cuison have booking sheet and arrest reports (Exh. B, C and D). There were no booking sheet and arrest reports of Sibayan and Bindadan presented by both the prosecution and the defense. If there were any booking sheet and arrest reports of Sibayan and Bindadan, the defense would have demanded their production in court by Subpoena duces tecum. Why did not defendants do so?

Further, the two requests for physical examination (Exhs. 1 and 2) would show that Barita, Golsing and Cuison were arrested together as they were lumped together in one request for physical examination (Exh. 1 for defense). And that Sibayan and Bindadan were not taken together with the aforesaid 3 accused as the request for their physical examination was in a separate paper (Exh. 2 for defense). In any event, a close scrutiny of the physical examination papers signed by Barita, Cuison, Golsing, Sibayan and Bindadan (Exh. 8 to 12) would show that the alleged case against them is "suspected drug pushers" or "Violation of Section 4 Article II RA 6425." Hence, even assuming 5 persons were arrested for drug pushing, the 3 accused herein, Barita, Golsing and Cuison were definitely among those arrested . So, instead of contradicting or destroying the truth and veracity of the drug pushing charge against the 3 accused, the physical examination papers actually confirm and strengthen the case against them because the same would show that they were really arrested for drug pushing.30 Any person who sells or acts as a broker in the sale of marijuana shall be punished with reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos31 if 750 grams or more of marijuana is sold.32 In the Present case, BARITA, GOLSING and CUISON (as broker) were correctly meted the penalty of reclusion perpetua and a fine of five hundred thousand pesos (P500.000.00) by the RTC considering that the prosecution has clearly established that they delivered and sold 2,800 grams of marijuana to JUANATA, the poseur-buyer. Moreover, the RTC also correctly ordered the confiscation and forfeiture of the marijuana in favor of the state for its immediate destruction as this is in accordance with law.33 WHEREFORE, the appealed AFFIRMED.1wphi1.nt SO ORDERED. G.R. No. 123860 January 20, 2000 decision of the Regional Trial Court is hereby

That on or about the fifteenth (15th) day of November, 1990, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederatingtogether and mutually helping one another armed with a knife and with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack and stab therewith spouses Atty. Rodrigo Fontelera, Sr. and Rosita Fontelera, with treachery and evident premeditation, and as a result thereof, said spouses Rodrigo and Rosita Fontelera suffered multiple stab wounds, which directly caused their death shortly thereafter, to the damage and prejudice of the members of the family and relatives of said spouses. All contrary to law and with the qualifying circumstance of evident premeditation. Only accused-appellant was arrested and tried. The other accused, Joselito Alcantara, remained at large. The evidence for the prosecution consisted of the autopsy reports and testimony of Dr. Richard Patilano, medico-legal officer of Olongapo City, the dying declarations of Rosita Fontelera, and accused-appellant's extrajudicial confession. Dr. Patilano conducted autopsies on the victims in the evening of November 15, 1990 and prepared reports. His autopsy report (Exh. F)3 on Rodrigo Fontelera, Sr. is as follows: This is a body of a 60 year old male, Filipino, Sthenic in body built, measuring about 5 feet and 2 inches in length, not yet rigid post mortem. FINDINGS Lips and nailbeds: pale Stab Wounds: 13 Stab wounds over the face and neck areas. Most of the scab wounds were 1.5 cm in length with one extremity being sharp, mostly oriented at vertical position. The ones at the right lateral side of the neck severed the right jugular blood vessels. 8 stab wounds were located at the back of the head and at the nuchal area of the neck. The ones at the head were at horizontal orientation while those at the nuchal area were vertically oriented. STWs ranged from 1 cm to 3.5 cm in length, only one extremity was sharp. 6 STWs were located at the right side of the chest and abdominal areas, ranging from 0.5 cm to 3 cm in length, vertical or left oblique in orientation, only one extremity was sharp. 6 STWs were located at the back, most of the STWs were oriented at horizontal direction, mostly 1.5 cm long, one extremity sharp. 4 STWs were located at the posterior aspect of the left upper extremity, ranging from 0.5 cm to 1.5 cm long, mostly at vertical orientation, only one sharp extremity, 3 STWs were located at the antero-lateral aspect of the left arm, mostly were at vertical orientation, one extremity was sharp. 6 STWs were located at the right arm and forearm, posterior aspect, mostly were at vertical orientation with an average length of 1.5 cm. (Total STWs-46) Incised wounds: 1.5 cm over the distal phalanx, 2nd finger, right hand, posterior aspect; 1.5 cm over the distal phalanx, posterior aspect, 3rd finger, right hand, all were at horizontal orientation.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN NAAG y ROQUE and JOSELITO ALCANTARA, accused, EDWIN NAAG y ROQUE, accused-appellant. MENDOZA, J.: This is an appeal from the decision,1 dated November 15, 1995, of the Regional Trial Court, Branch 72, Olongapo City, finding accused-appellant Edwin Naag y Roque guilty on two counts of murder aggravated by abuse of superior strength and sentencing him to suffer two terms of reclusion perpetua. Accused-appellant was ordered to pay the heirs of the deceased P38,000.00 for the funeral expenses, P100,000.00 for moral damages, and the costs. The antecedent facts are as follows: In an amended information, dated January 9, 1991, accused-appellant Edwin Naag y Roque was charged, together with Joselito Alcantara, with two counts of murder allegedly committed as follows:2

Lungs: Left lower lobe 1 STW, 1 cm. right lobe with adhesions. Liver 1 cm STW at the right lobe. Stomach: Full of undigested food, no alcoholic odor. Cause of Death: Hypovolemic Shock due to Multiple Stab Wounds The autopsy report (Exh. G)4 on Rosita Fontelera, on the other hand, reads: This is a body of a 54 year old female, Filipino, Hypersthenic in body built, measuring about 4 feet and 11 inches in length, not yet rigid post mortem. FINDINGS Lips and nailbeds: pale Stab Wounds: 3 cm in length, sharp extremity directed towards the left, oriented at horizontal position, located at the right upper chest, 4th interspace, mid-clavicular line, directed backward and to the left, making a 1.5 cm STW at the right side of the heart which progressed into the right auricle causing massive bleeding with the left thoracic cavity; 2 cm. oriented horizontally, located at the right lower chest wall, arrested by the 6th right rib, sharp extremity directed leftward; 1.5 cm sharp extremity directed upward and to the left, oblique orientation, located at the right hypochondriac area resulting to 0.5 cm STW of the right lobe of the liver; 2.5 cm left oblique in orientation with sharp extremity directed upward and to the left, located at the left side of the abdomen; 1.5 cm horizontally oriented, located at the right upper back, bone-deep; 1.5 cm horizontally oriented, located at the right back, over the right scapula, bone-deep; 3.5 cm horizontally oriented, sharp extremity directed towards the left, progressed beneath the right scapula, inferior margin, making a 2 cm STW at the inferior margin of the right lung. Incised wound: 6 cm, skin-deep over the upper third, posterior aspect, right arm; 2.5 cm left oblique in orientation located over the distal third, artero-medical aspect, left forearm. Stomach: Full of undigested food, no alcoholic odor. Cause of Death: Hypovolemic Shock Due to Multiple Stab Wounds Dr. Patilano testified5 that most of the 46 stab wounds inflicted on Rodrigo Fontelera, Sr. were fatal; that he was of the opinion that only one person frontally stabbed Fontelera, Sr., but "as [the stab wounds at the back] have different orientations," he could not tell how many stabbed Fontelera, Sr. With regard to Rosita Fontelera, Dr. Patilano testified that she suffered fewer stab wounds than her husband and that, from the nature of her wounds, she (Rosita Fontelera) did not die immediately. Dr. Patilano said that both victims were stabbed by means of a pointed, but not double bladed, instrument. However, he could not tell if only one instrument was used in stabbing the victims.

The second prosecution witness was Eufracio Banal, a member of the Scriptures Baptist Church. He testified6 that on November 15, 1990, at around 5 p.m., while he was checking the sound system in his church, one of his churchmates, Angie Dizon, came rushing in and told him that Rosita Fontelera was at the "Siesta Pizza," which Angie owned, in need of urgent help. Banal said he followed Angie Dizon, and he found Rosita Fontelera lying on the pizza parlor's floor, seriously wounded. While they were lifting her up in order to take her to the hospital, she said, "Si Edwin, si Edwin," twice. Rosita Fontelera died on arrival at the hospital. According to Banal, he did not know accused-appellant and only came to know him as the "Edwin" whom Rosita Fontelera referred to when he saw accused-appellant in court. Earlier, on November 16, 1990, Banal gave a sworn statement (Exh. Q)7 about the final words of Rosita Fontelera. PO3 Ramon Fernandez testified8 that he was the one who took down the statement of Eufracio Banal. Pfc. Leo Batinga, another police investigator at the Olongapo Police Station, also testified. 9 He said that he received a telephone report of the incident at 6:20 in the evening of November 15, 1990. Together with other police officers, he proceeded to the victims' residence at No. 21 21st Street, East Bajac-Bajac, where they found the body of Rodrigo Fontelera, Sr. with multiple wounds. They also found on the top of the lavatory a kitchen knife with a brown handle. A worker at the "Siesta Pizza," Mercy Salapanti Seballa, told them that Rosita Fontelera four times said "Edwin, taga-Novaliches" as she stumbled into "Siesta Pizza," seriously wounded. 1wphi1.nt Pfc. Batinga said he had asked the son of the victims, Rodrigo Fontelera, Jr., if he knew "a certain Edwin from Novaliches," and was told that Edwin is accused-appellant who was their former caretaker; that on orders of their station commander and then Olongapo City Mayor Richard Gordon, he and his fellow police officers went to accused-appellant's house in Aguardiente, Novaliches, but accused-appellant was not there; that they later learned that accused-appellant had been arrested by the barangay tanod of Aguardiente, Novaliches; that accused-appellant was taken to Olongapo City; that there accused-appellant admitted to them that he was one of the assailants of the Fonteleras. Accused-appellant executed a waiver (Exh. A)10 relative to his warrantless arrest and subsequent detention. Atty. Norberto de la Cruz was the lawyer who signed accused-appellant's confession (Exh. O)11 as assisting counsel. He testified12 that on November 16, 1990, he was at the La Paz Batchoy Restaurant in front of the police station, when Pfc. Leo Batinga and Lt. Esteban showed him a "ready-made sworn statement, a sort of confession" of accused-appellant which they asked him to sign, as assisting counsel. According to Atty. De la Cruz, while accused-appellant said he had voluntarily executed the same, he (Atty. De la Cruz) nevertheless insisted that another investigation be conducted in his presence. According to Atty. De la Cruz, prior to the questioning by the police, he asked accused-appellant in the latter's native Bicol dialect whether he had been forced or intimidated to confess and the latter answered in the negative, and said "never mind" when Atty. De la Cruz told him he could be imprisoned as a result of his confession. The investigation was then conducted by Pfc. Batinga who typed accusedappellant's answers to the questions of the investigator. Aside from him, the other one present at the investigation was Lt. Esteban. Atty. De la Cruz said that, before signing, he read the confession (Exh. O). As the opening statement did not state that the confession was taken in his presence, he called the attention of the police investigators to the omission, but he was told "Never mind, anyway your name is at the bottom." He therefore signed the confession (Exh. O), which he later identified as the following:13 SALAYSAY NI EDWIN NAAG NAIBINIGAY KAY PFC LEO BATINGA SA TANGGAPAN NG TAGAPAGSIYAT NG KAGAWARAN NG PULISYA LUNGSOD NG OLONGAPO NITONG IKA-16 NG NOBYEMBRE 1990 SA GANAP NA ALAS 4:30 NG HAPON SA HARAP NI P/LT ESTEBAN: xxx xxx xxx

LAYUNIN: Ang inbistigasyon ito ay may kaugnayan sa pagpatay sa magasawang ATTY. RODRIGO FONTELERA at Gng. Rosita Fontelera na naganap kahapon ika-15 ng Nobyembre 1990 mga alas 5:20 ng hapon sa kanilang bahay na nasa 21-21st. EBB, Olongapo City, naiintindihan mo? SAGOT: Opo. PAALALA: Bago tayo magsimula, nais kong ipagbigay alam sa iyo na sa Ilalim ng ating Saligang Batas, ikaw Edwin ay may mga KARAPATAN ng mga sumusunod: (1) KARAPATAN mong manahimik, magbigay o huwag magbigay ng ano man salaysay. Ihinto ng ano mang oras ang imbistigasyon ito; (2) KARAPATAN mong kumuha ng abogado na tutulong sa iyo at kung hindi mo kaya, magbibigay kami at ito ay walang bayad; (3) Ang sasabihin mo ay maaaring gamitin ng PANIG o LABAN sa iyo sa alin mang hukuman dito sa Pilipinas; TANONG: Ngayon masabi namin sa iyo ang LAYUNIN pati na ang iyong mga KARAPATAN, ito ba ay iyong nauunawan o naiintindihan? SAGOT: Opo. TANONG: Nais mo pa rin bang pagpatuloy natin ito? SAGOT: Opo. 01. T: Ang buo mong pangalan at mga bagay hingil sa tunay mong pagkatao? S: EDWIN NAAG Y ROQUE, 21 anyos, binata, laborer at nakatira sa Agua Fiente Forest Hill Subd. Novaliches, Quezon City. 02. T: Kung ikaw ay nakapagaral, anong grado ang inabot mo at eskwelahan? S: High School Graduate, Novaliches High School. 03. T: Nakakaintindi ka at nakakabasa ng wikang tagalog? S: Opo. 04. T: Marunong kang sumulat ar bumasa? S: Marunong po. 05. T: Kailan ka dumating ng Olongapo City? S: Kahapon mga alas 5:00 ng hapon ika-15 ng Nob. 1990. 06. T: Saan ka naman galing? S: Sa Novaliches po. 07. T: Anong oras kang umalis sa Novaliches? S: Mga alas 2:00 ng hapon. 08. T: Sino naman ang kasama mong dumating sa Olongapo kahapon ika-15 ng Nobyembre 1990 ng hapon? S: Sina Joel at Joselito Alcantara.

09. T: Taga saan naman itong sina Joel at Joselito Alcantara? S: Si Joselito po ay taga Cavite City hindi ko po alam doon. Si Joel na hindi ko naman alam din ang apelyido ay taga-Pangasinan alam po ito ng aking tatay. 10. T: Saan naman kayo nagtuloy ng dumating kayo sa Olongapo? S: Ako muna ang nagtuloy sa bahay ni Uncle Fontelera at Auntie Rosing (Reffering to Rosita and Fontelera) at sumunod na lang sila. 11. T: Ano naman ang sadya mo dito kay Atty. Fontelera at kanyang asawa? S: Nais ko sanang makausap si Atty. Fontelera na turing sana kaming kamaganak dahil naghirap kami sa pangangalaga sa kanilang lote sa Novaliches at kung ibebenta niya ang lupa, sana naman may bigyan kami ng kaunti. Pinalayas pa kami. E. N. 12. T: Ano naman ang nangyari, nakausap mo ba si Atty. Fontelera? S: Hindi ko po nakausap. Pumasok po itong si Joel at Joselito na bigla na lang sinaksak si Atty. at si Auntie Rosing. Nasaksak ko nang tatlong beses si Uncle Fontelera (Reffering to Atty. Fontelera) at ng sasaksakin naman si Auntie Rosing, inawat si Joel ngunit sinabi ni Joel na testigo pa sa atin ito kayat ipinagpatuloy nito ang pagsaksak. Nakita ko po na nakatakbo pa si Auntie Rosing patungong Pizza at nagsisigaw ng Edwin Novaliches kayat natakot ako at lumabas kaagad ako kasama na sina Joel at Joselito at nagkita kami sa Victory Liner Terminal. 13. TANONG: Magkakasama kayong umalis, saan naman kayo sumakay ng nasa Victory Liner Terminal na kayong tatlo? SAGOT: Dalawa lang kami ni Joselito Alcantara ang nagkita, si Joel po ay hindi ko alam kung saan nagtungo. Parehong Balintawak ang binabaan namin dalawa at doon kami nagkahiwalay. 14. T: Anong patalim ang ginamit mo, ni Joel at Joselito? S: Itong nasa ibabaw ng lamesa po sa ngayon ay si Joselito Alcantara. (Affiant was referring and pointing to a kitchen knife HIGH CARBON STAINLESS with a brown handle whose blade measure about 6 inches more or less). Ako po ay beinte nueve na naagaw kay Atty. Fontelera. Naagaw po nito ang Beinte Nueve balisong kay Joselito at ito naman ay naagaw ko kay Atty. Fontelera. Beinte Nueve rin ang ginamit ni Joel. 15. T: Sino ang unang sinaksak sa magasawa? S: Unang sinaksak si Atty. Fontelera nina Joel at Joselito at ako ay sumaksak din tatlong beses kay Atty. habang nasa dirty kitchen sa labas ng kainan. Ang sumunod ay si Auntie Rosing naman ang sinaksak ni Joel. 16. T: Anong dahilan at pati sina Joselito at Joel ay nakisali sa pagsaksak dito sa magasawa? S: Kasi ang balak nilang dalawa ay makakuha ng mga gamit doon sa bahay. 17. T: Saan naman nila balak ito, sa Novaliches o dito na sa Olongapo? S: Sa Novaliches pa po. 18. T: May nakuha naman sila sa bahay ng magasawa? S: Wala po. 19. T: Kailan naman binalak ang pagnanakaw? S: Noon ika-14 ng Nobyembre 1990 mga alas 4:00 ng hapon. 20. T: Bakit naman binalak nila ito? S: Dahil alam nila na abogado ito at maraming gamit. Naikwento ko sa kanila.

21. T: Kailan mo pa nakilala itong si Joselito at Joel? S: Si Joselito mula ng Elementary at si Joel ay nitong 1990 lang. 22. T: Nang makarating ka sa Balintawak, saan ka nagtuloy? S: Dumiretso ako sa NUTRI SNACK sa 58 Gen Luis Bo. Capri Novaliches. 23. T: Mga anong oras kang nakarating doon? S: Mga 9:30 ng gabi po. 24. T: Bakit ka naman nagtungo doon? S: Kakausapin ko si SUSIE PANGILINAN 20 anyos na aking girlfriend. 25 T: Nakausap mo naman? S: Opo. 26. T: Anong oras naman ang trabaho nitong si Susie Pangilinan? S: Alas 6:00 ng gabi hangang alas 6:00 ng umaga po. 27. T: Anong nangyari ngayon? S: Nanghiram ako ng P200.00 at ito po ay nag-check-out ng alas 10:00 ng gabi, sa trabaho at sumama sa akin. 28. T: Saan kayo nagtuloy ni Susie? S: Sa kanilang bahay po. 29. T: Habang naroroon kayo, may nangyari ba. S: Opo. 30. T: Ano ito? S: Nakita ko po na dumating kayo. (affiant was reffering to Lt. Esteban and Pfc. Batinga) may iba pa na may armalite kayat nagtago ako. 31. T: Ano ngayon ang nangyari? S: Nagbantay po ang mga pulis doon at pinagpapasok nila ang ibang bahay at ako naman po ay pinanonood lang sila. Nais ko sanang sumurender ngunit natakot ako na baka barilin ako ng naka-armalite. Ng madaling araw na. Nakita ako at nagkahabulan po ngunit hindi ako nahuli ng mga pulis. Ang mga Barangay na tumulong sa mga pulis ang siyang nakahuli sa akin at ibinigay ako sa Novaliches Police Substation at doon pinaguusapan ng mga pulis ang tungkol sa mga Pulis Olongapo City na nagreport rin doon na naghahanap sa akin. 32. T: Paano ka ngayon dinala dito sa Olongapo. S: Kinuha na lang ako ng mga pulis Olongapo sa Novaliches Police Sub Station at dinala dito sa inyong tanggapan. 33. T: Lalagdaan at panunumpaan mo ito? S: Opo. 34. T: Ang suot mo damit at sapatos ng saksakin ang magasawang Fontelera? S: Itong suot kong pantalon ngayon (Affiant was referring and pointing to his\stripped pants a blue and black stripe pants believe to be with blood stain) 35. TANONG: (Karugtong) SAGOT: Puting ordinaryong T-shirt po. Naiwan ko po ito sa Novaliches) at ang sapatos po ay iyan. (Affiant was pointing to low cut white rubber shoes ROBERTSON). 36. T: May nais ka pa bang sabihin sa amin?

S: Laging galit kasi si Uncle Fontelera. 37. T: Itong Auntie Rosing Fontelera mo may galit ka rin ba sa kanya? S: Wala naman po. 38. T: Lalagdaan mo ito? S: Opo. [Sgd.] EDWIN NAAG -Nagsalaysay[Sgd.] ASSISTED BY: ATTY. NORBERTO DE LA CRUZ SUBSCRIBED AND SWORN to before me this 17th day of Nov. 90 of Olongapo City. I hereby certify that I personally examined the affiant and I am satisfied that he voluntary executed and understood the foregoing statement. [Sgd.] ASS'T CITY PROSECUTOR The last witness for the prosecution was the victims' son, Rodrigo Fontelera, Jr. He testified14 that he used to meet accused-appellant whenever he went to Novaliches to spend vacations which his cousin Salvador Jordan. On the other hand, accused-appellant used to go three to four times a year to the Fontelera house in Olongapo City to do odd jobs. Fontelera, Jr. said that accused-appellant once told him that he (accused-appellant) felt bad because the senior Fontelera was ejecting accused-appellant's family from the lot they were occupying in Novaliches. Fontelera, Jr. testified that his father earned from P100,000.00 to P150,000.00 a year from his law practice. He also said that he suffered shock and anxiety because of the circumstances under which his parents died. He submitted receipts (Exhs. L to L-7;15 M to M-116) as proof of the expenses for his parents' funeral services. Accused-appellant testified in his behalf.17 He knew the victims because accused-appellant's father was the adopted son of Rosita Fontelera's parents. They all hailed from Bicol. Moreover, his father was caretaker of the Fontelera lot in Novaliches. He said that at around four 4 o'clock in the afternoon of November 15, 1990, he went to Olongapo City with Joselito Alcantara and a certain Joel to do some repairs on the Fontelera house; that while outside the house talking to Rosita Fontelera, he heard a commotion inside; that when he went inside, he saw Joel and Joselito stabbing Atty. Fontelera, Sr.; that he managed to pacify Joel and take him outside the house; that when he returned inside the house, however, he saw Joselito attacking Atty. Fontelera, Sr.; that when he went outside to look for Rosita Fontelera so that they could take Atty. Fontelera, Sr. to the hospital, he found Rosita Fontelera herself being stabbed; that he saw her run to the house while shouting "Edwin, Edwin, Novaliches"; that due to confusion, accusedappellant immediately left and took a bus home to Novaliches, arriving there between 9 and 10 p.m.; that when he saw many policemen arrive at their house, he became afraid and went to his girlfriend's house and from there, called up his father; that upon the advice of his father, he surrendered to their barangay captain who turned him over to the custody of the police in Novaliches; that he was fetched from Novaliches by the Olongapo police on November 16, 1990 at around 9 a.m. and brought to their station in Olongapo City; that he was subjected to torture and electric shock and doused several times with water taken from the urinal; that at one point he was even taken outside the police station and told to run which he, however, refused to do knowing that he would be shot on the pretext that he was escaping; that Lt. Batinga asked him to sign a piece of paper (which turned out to be a confession) in exchange for his release; that he only signed one page out of the three pages; and that Atty. De la Cruz did not sign the document in his presence.

On cross-examination, accused-appellant testified18 that he had known Joselito Alcantara for about five years because they were neighbors in Novaliches and that Joel, whose surname he did not know, was actually Joselito's friend; that they had been working at the Fontelera house for two days already prior to the incident; that Atty. Fontelera shouted "bad words" at him and his companions because he was drunk; that he signed the document purporting to be his confession inside the detention cell and never affirmed his signature thereon before the prosecutor. Jose Naag, accused-appellant's uncle, also testified. He said that on November 15, 1990, he accompanied accused-appellant to the barangay authorities. Two days before, on November 13, 1990, at around 7 a.m., he saw accused-appellant at the bus terminal and was told by him that he (accused-appellant) was going to Olongapo City. On rebuttal, Rodrigo Fontelera, Jr. testified20 that, although for a time accused-appellant stayed on his parents' lot in Novaliches, the actual caretaker of the lot was his aunt Mely Roque who is his mother's sister, and that accused-appellant was a relative of the husband of Mely Roque. He denied that accused-appellant did some repairs on the Fontelera house in November 1990. On November 15, 1995, the trial court rendered its decision. It dismissed accused-appellant's claim that he had no hand in the killing of the Fonteleras. It held that he bore them a grudge because the Fonteleras drove accused-appellant from the Fontelera lot in Novaliches. The court noted that accused-appellant's name was mentioned several times by Rosita Fontelera as she was dying and that accused-appellant fled. The court considered the killings of the couple qualified by evident premeditation and aggravated by abuse of superior strength. However, it did not appreciate the mitigating circumstance of voluntary surrender because accused-appellant did not surrender immediately to the police who went looking for him in his house in Novaliches. The dispositive portion of its decision21 reads: WHEREFORE, in view of the foregoing considerations, the Court finds the guilt of the accused has been proved beyond reasonable doubt and hereby sentences accused Edwin Naag y Roque guilty of the crime of Double Murder with the aggravating circumstance of abuse of superior strength and is hereby sentenced to suffer two (2) terms of reclusion perpetua; to indemnify the family of the victims in the sum of THIRTY-EIGHT THOUSAND PESOS (P38,000.00) funeral expenses, ONE HUNDRED THOUSAND PESOS (P100,000.00) moral damages and to pay the costs. Hence, this appeal. Accused-appellant contends:22 I. WITH THE TOTALITY OF FACTS AND CIRCUMSTANCES PROFFERED IN THE COURSE OF TRIAL ON THE MERITS, THE TRIAL COURT LIKEWISE ERRED IN "PRESUMING" CONSPIRACY. II. THE TRIAL COURT ERRED IN ITS MISPLACED RELIANCE ON CIRCUMSTANTIAL EVIDENCE, INTERTWINED WITH OTHER DOCTRINES OF LAW ON EVIDENCE IN SECURING A CONVICTION. III. THE TRIAL COURT MADE A WRONG AND SWEEPING VERDICT THAT "FLIGHT" IS PER SE ALWAYS TRANSLATED AS ONE OF GUILT. IV. THE TRIAL COURT'S FAVORABLE PRONOUNCEMENT ON DYING DECLARATION, ABSENT ITS PRE-REQUISITE ELEMENTS IS ERRONEOUS. V. WITH THE DEARTH AND PAUCITY OF FACTS AND CIRCUMSTANCES INDUBITABLE AND ESTABLISHED IN THE COURSE OF TRIAL, THE COURT A
19

QUO ERRED IN CONCLUDING THAT THE MIRANDA SAFEGUARDS ARE OBSERVED. I. The prosecution's case is anchored on accused-appellant's extrajudicial confession (Exh. O) and on Rosita Fontelera's dying declarations. A. Anent the extrajudicial confession, accused-appellant claims that there was really no investigation made in the presence of counsel because after he had been interrogated by the police, he was simply made to sign the confession. Accused-appellant makes capital of the testimony of Atty. Norberto De la Cruz that he had been asked to sign a prepared confession of accused-appellant. To be sure, what Atty. De la Cruz said was that he refused the request and demanded another investigation to be conducted in his presence and that the confession which he signed, which is marked Exhibit O, was the result of accused-appellant's interrogation during which he was present. However, we are inclined to believe accused-appellant's claim that he was interrogated without the assistance of counsel. In the first place, the opening statement of the confession (Exh. O) says that the confession was taken in the presence of P/Lt. Esteban, but not in the presence of Atty. De la Cruz as well. Atty. De la Cruz's explanation, that when he noticed the omission and asked that his presence be mentioned he was assured that it was not necessary because anyway his name appeared at the bottom of the confession, is too pat to be believed. The opening statement is intended to indicate the circumstances under which the confession was taken, including the persons present, and, therefore, there was no reason why the name of Atty. De la Cruz was omitted. The reason seems to be that Atty. De la Cruz was not really present at the investigation allegedly conducted on November 16, 1990. In the second place, an examination of Exhibit O shows that Atty. De la Cruz's name was simply added at the end of the confession after it had been prepared. The confession appears to have been prepared on a typewriter different from that used to type the name of the accusedappellant, Atty. De la Cruz, and the acknowledgment clause and the name of the Assistant City Prosecutor before whom the confession was sworn to. The text of the confession is darker suggesting that their ribbon used was new, whereas the names of accused-appellant, Atty. Norberto de la Cruz, and the Assistant City Prosecutor, as well as the acknowledgment clause are lighter, suggesting that the ribbon used was almost faded. It is not quite probable that the typist simply changed the ribbon of his machine, otherwise the first portion should be lighter and the latter part darker. For these reasons, we hold that accused-appellant was interrogated without the assistance of counsel, in violation of Art. III, 12(1). Nor does it appear that accused-appellant effectively waived effectuation of the rights in Art. III, 12(1) of the Constitution, which provides: Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The following appears in accused-appellant's confession:

PAALALA: Bago tayo magsimula, nais kong ipagbigay alam sa iyo na sa Ilalim ng ating Saligang Batas, ikaw Edwin ay may mga KARAPATAN ng mga sumusunod: (1) KARAPATAN mong manahimik, magbigay o huwag magbigay ng ano man salaysay. Ihinto ng ano mang oras ang imbistigasyon ito; (2) KARAPATAN mong kumuha ng abogado na tutulong sa iyo at kung hindi mo kaya, magbibigay kami at ito ay walang bayad; (3) Ang sasabihin mo ay maaring gamitin ng PANIG o LABAN sa iyo sa alin mang hukuman dito sa Pilipinas; TANONG: Ngayon masabi namin sa iyo ang LAYUNIN pati na ang iyong mga KARAPATAN, ito ba ay iyong nauunawaan o naiintindihan? SAGOT: Opo. TANONG: Nais mo pa rin bang ipagpatuloy natin ito? SAGOT: Opo. Authoritative interpretations of the Miranda rule23 as embodied in Art. III, 12(1) require, however, that the suspect in custodial interrogations be warned: (1) that he has a right to remain silent; (2) that he has a right to the assistance of counsel; (3) that if he cannot afford counsel one will be provided to him; and (4) that anything he will say can and will be used against him.24 While accused-appellant was told what his rights were and answered in the affirmative when asked whether he understood what he had been told, the crucial question is whether he effectively waived the effectuation of these rights. We find that he did not and, therefore, his confession (Exh. O) is inadmissible in evidence. Accused-appellant was not asked whether he was willing to testify even without the assistance of counsel. If he was willing to testify only with the assistance of counsel, he should have been asked if he had one. If he said he wanted to have counsel but could not afford one, he should have been asked if he wanted one to be appointed for him.25 As a result of the investigator's failure to ask these questions before taking down accused-appellant's statement, there was no effective waiver of his rights to remain silent and to counsel. B. The trial court likewise relied on Rosita Fontelera's dying declarations for its conclusion that accused-appellant was one of those who killed the Fonteleras. As already stated, as Rosita Fontelera lay dying, she was heard repeatedly saying. "Si Edwin, si Edwin." Two witnesses, Eufracio Banal and Pfc. Leo Batinga, testified to this fact. Accused-appellant also admitted that, as he was coming out of the Fontelera house to tell Rosita Fontelera that her husband had been stabbed, the latter shouted, "Edwin, Novaliches, Edwin, Novaliches," as she was running from him. It is contended, however, that the declaration is incomplete and cannot be taken to mean that Rosita Fontelera was pointing to accused-appellant as an assailant. Accused-appellant cites the case of People v. De Joya,26 in which it was held: . . . It is not disputed that "Paqui" is the nickname of appellant Pioquinto de Joya. It must be noted at once, however, that the words "Si Paqui" do not constitute by themselves a sensible sentence. Those two words could have been intended to designate either (a) the subject of a sentence or (b) the object of a verb. If they had been intended to designate the subject, we must note that no predicate was uttered by the deceased. If they were designated to designate the subject of a verb, we must note once more that no verb was used by the deceased. The phrase "Si Paqui" must,

moreover, be related to the question asked by Alvin: "Apo, Apo, what happened?" Alvin's question was not: "Apo, Apo, who did this to you? It has been held that a dying declaration to be admissible must be complete in itself. . . . The doctrine of completeness has also been expressed in the following terms in Prof. Wigmore's classic work: The application of the doctrine of completeness is here peculiar. The statement as offered must not be merely a part of the whole as it was expressed by the declarant; it must be complete as far it goes. But it is immaterial how much of the whole affair of the death is related, provided the statement includes all that the declarant wished or intended to include in it. Thus, if an interruption (by death or by an intruder) cuts short a statement which thus remains clearly less than that which the dying person wished to make, the fragmentary statement is not receivable, because the intended whole is not there, and the whole might be of a very different effect from that of the fragment; yet if the dying person finishes the statement he wishes to make, it is no objection that he has told only portion of what he might have been able to tell." (Emphasis supplied) The reason upon which incomplete declarations are generally excluded, or if admitted, accorded little or no weight, is that since the declarant was prevented (by death or other circumstance) from saying all that he wished to say, what he did say might have been qualified by the statements which he was prevented from making. That incomplete declaration is not therefore entitled to the presumption of truthfulness which constitutes the basis upon which dying declarations are received. This case is, however, different from People v. De Joya. In this case, the deceased was saying "Si Edwin, si Edwin" not only when found inside the pizza parlor by Banal and Seballa but also as she was running away wounded. The circumstances in which she was saying "Si Edwin, si Edwin" make it clear that she was referring to accused-appellant as her assailant or at least one of her assailants. Indeed, accused-appellant himself testified that he heard Rosita Fontelera shouting, "Edwin, Edwin, Novaliches" as she was running away from him. Contrary to accused-appellant's claim that he was approaching Rosita Fontelera to inform her that her husband, Atty. Fontelera, had been stabbed, it is clear that Rosita Fontelera was fleeing from him and running inside the pizza parlor beside her house to seek refuge from her attacker. She was running away from accusedappellant because the latter was after her. Rule 130, 42 provides that "[s]tatements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto, with respect to the circumstances thereof, may be considered as part ofres gestae."27 It was in the context of a startling event that Rosita Fontelera was shouting "Edwin, Edwin, Novaliches." In that context, her words can only mean that accused-appellant was her attacker. After all, she did not just name accusedappellant when she staggered into the pizza parlor seriously wounded but also as she was fleeing from her assailant. Rosita Fontelera became hysterical and shouted accused-appellant's name and place of residence. That is why, in panic, accused-appellant fled. Indeed, there is circumstantial evidence strongly pointing to accused-appellant's guilt, to wit: (1) accused-appellant's admitted he was present at the time of the killing of the Fonteleras; (2) he later fled from the place and went into hiding; and (3) accused-appellant had a motive for killing the Fonteleras.

Accused-appellant admitted being at the Fontelera residence in Olongapo City at the time of the killing. He was from Novaliches. Why he went to Olongapo City, to the residence of the Fonteleras, has not been satisfactorily explained. His claim that he went to the Fontelera residence to do some repair jobs was belied by Rodrigo Fontelera, Jr. who denied that there were repairs done on their house in November 1990.28 Now, Joselito Alcantara and Joey were total strangers to the Fonteleras. It was accused-appellant who was known to the Fonteleras. It is hard to believe accused-appellant's claim that it was his companions alone who killed the couple and that he had no part in the commission of the crime. Accused-appellant himself testified29 that while he was outside the house talking with Rosita Fontelera, he heard a commotion from inside. Upon entering the house, he allegedly saw "My two companions . . . stabbing Atty. Fontelera, [Sr.];" that after stopping Joel and bringing him outside the house, accused-appellant went back inside the house for his other companion, Joselito Alcantara, but by then Atty. Fontelera, Sr. had already suffered many stab wounds; that when he went outside to call Rosita Fontelera, "[he] saw that Mrs. Fontelera was likewise stabbed," presumably by Joel whom accused-appellant had earlier brought outside the house; that when accused-appellant approached Rosita Fontelera, the latter, "suddenly stood up and ran to the house"; that Rosita then started shouting his name, as a consequence of which he became so "confused . . . that I . . . went straight to the terminal." Now, why should Rosita Fontelera run towards the house shouting "Edwin, Edwin, Novaliches" if she was not running away from accused-appellant because the latter was attacking her? And why should accused-appellant panic and flee from the scene of the killing and go into hiding in Novaliches if he was not guilty? Flight is evidence of guilt. 30 For as the proverb says, "the wicked flee when no man pursueth; but the righteous are as bold as a lion." 31 Accused-appellant's excuse that he went home to "tell my parents about what happened" 32 is puerile and is not worthy of credence. The explanation in his brief33 that it was because he feared for his safety and that he wanted "to surrender in a safer place like his hometown" is an admission that he is guilty of the killing of the couple. He feared for his safety because of possible revenge by relatives and friends of the victims. Finally, accused-appellant had the motive to kill the couple. He went to Olongapo City and brought along his two companions because he resented his family's eviction from the land of the Fonteleras in Novaliches. In his own words, Atty. Fontelera, Sr. "fired" his father as caretaker of the land.34 He thus had a motive to think ill of them. This concatenation of details constitute circumstantial evidence which, under Rule 133, 4 of the Revised Rules on Evidence, is sufficient to convict accused-appellant if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. II. Judging from the number and severity of the stab wounds inflicted on the victims, the crime committed was murder qualified by treachery. Apparently, accused-appellant and his companions made sure they succeeded in killing their victims without risk to themselves.35 Treachery absorbs she circumstance of abuse of superior strength, 36 so there was no need for the trial court to take it into account as an aggravating circumstance. On the other hand, there is no basis for appreciating evident premeditation as there is no evidence of the planning and preparation to kill or when the plan was conceived. 37 Since the killing of the couple was committed inside their house, the aggravating circumstance of dwelling should be appreciated. Considering the presence of one aggravating circumstance and the absence of any mitigating circumstance, the penalty for the crimes committed in this case

would have been death. However, as the crimes were committed after the effectivity of the 1987 Constitution and prior to the reimposition of the death penalty by R.A. No. 7659, the trial court properly imposed on accused-appellant two terms of reclusion perpetua for the killing of both Rodrigo Fontelera, Sr. and Rosita Fontelera. III. With regard to the question of damages, Rodrigo Fontelera, Jr. presented receipts showing that the victims' family spent P18,000.00 for, "funeral coach chandeliers, (First Class) embalming" (Exh. L);38 P4,000.00 for the vault (Exh. L-3);39 P1,100.00 for two tombstones (Exhs. L-7 and L5);40 P1,0000.00 for "exc. fee" (Exhs. L-2 and L-6);41 and P950.00 for "Prep." fees for Rosita Fontelera (Exh. L-4);42 or the total amount of P25,050.00. Accordingly, the amount of P38,000.00 awarded as funeral expenses to the heirs of Rodrigo Fontelera, Sr. and Rosita Fontelera should be reduced to P25,050.00. The award of P100,000.00 as indemnity for the death of Rodrigo Fontelera, Sr. and Rosita Fontelera is in accord with our current rulings 43 and should be affirmed. The award of P100,000.00 as moral damages for each death is likewise appropriate. 44 WHEREFORE, the decision of the Regional Trial Court, Branch 72, Olongapo City, is AFFIRMED with the MODIFICATION as above indicated. SO ORDERED.1wphi1. G.R. No. 102723-24 June 19, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO CABALLES and REYNALDO MABINI, accused, EDUARDO CABALLES, appellant. PANGANIBAN, J.: This Court is appalled at the unabated commission of heinous crimes in our country. Particularly disheartening is the high incidence of rape perpetrated day by day in urban and rural areas alike. In this ponencia, the Court finds occasion to clarify existing jurisprudence on the grant of damages in the crime of rape, which is likewise applicable to the crimes of murder, homicide and parricide. Civil indemnity in the amount of P50,000.00 (consistent with prevailing jurisprudence) is automatically granted to the offended party, or his/her heirs in case of the former's death, without need of further evidence other than the fact of the commission of any of the aforementioned crimes. Moral and exemplary damages may be separately granted in addition to indemnity. Moral damages can be awarded only upon sufficient proof that the complainant is entitled thereto in accordance with Article 2217 of the Civil Code, while exemplary damages can be imposed if the crime was committed with one or more aggravating circumstances duly proven. The amounts thereof shall be at the discretion of the courts. In the case before us, Appellant Eduardo Caballes is charged with two (2) counts of rape allegedly committed in concert with Co-accused Reynaldo Mabini against Miguela Baculi in the evening of September 26, 1987. The two Amended Complaints, both dated October 26, 1987, sworn to by the victim and certified by 4th Asst. Fiscal Rodulfo G. Ugsad, indicted the accused as follows:

That on or about the 26th day of September, 1987, at about 8:00 P.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, took turns in having sexual intercourse with the complainant by the use of force and intimidation, that is, while accused Eduardo Caballes was having sexual intercourse with the complainant, accused Reynaldo Mabini who at that time was pointing a knife at the complainant pulled Eduardo on top of the complainant, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the complainant against her will. 1 And, That on or about the 26th day of September, 1987, at about 8:00 P.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, to wit: while the two accused hold ( sic) her body by the use of force, violence and intimidation, accused Reynaldo Mabini hold ( sic) her hands and pointing a knife at her, pressing her to the ground, accused Eduardo Caballes did then and there wilfully, unlawfully and feloniously have carnal knowledge of the complainant against her will, and inflicting upon her the following physical injuries: CONTUSSION (sic) 1 x 1 CM (R) INFRAORBITAL; CONTUSSION (sic) 1 x l CM (R) ARM P/3 ANTERIOR; LINEAR ERUTHEMA (sic) 1 CM CLAVICULAR (L) MEDIAL 3rd-LINEAR ERYTEMA (sic) (L) CM (R) SUBMANDIBULAR, LINEAR ABRASION 0.5 CM (L) UPPER LIP MUCOSA. 2 The accused, with the assistance of their counsel de parte, 3 both entered a plea of not guilty during their arraignment on January 13, 1988. 4 Trial ensued in due course in the consolidated cases. 5 Thereafter, on July 16, 1991, Judge Priscila S. Agana of the Regional Trial Court of Cebu, Branch 24, rendered judgment 6 convicting both accused of two counts of rape. The dispositive portion of the assailed Decision is quoted hereinbelow: THEREFORE, IN VIEW OF ALL THE FOREGOING PREMISES, accused Eduardo Caballes is hereby sentenced twice to suffer the penalty of RECLUSION PERPETUA. With respect to accused Reynaldo Mabini, he is hereby sentenced twice to suffer an imprisonment ranging from twelve (12) years of prision mayor as minimum to eighteen (18) years of reclusion temporal as maximum, after appreciating minority in his favor. Moral and exemplary damages to be paid jointly and severally by the accused, in the sums of FIFTY THOUSAND PESOS (P50,000.00) and FIFTY THOUSAND PESOS (P50,000.00) respectively, are hereby awarded to the private complainant Miguela Baculi. 7 The Facts Version of the Prosecution The prosecution relied heavily on the testimony of the private complainant, Miguela Baculi, twenty-five (25) years of age and married. According to Miguela, on Septembers 8 26, 1987, while on her way home from work about 7:30 p.m., she was accosted by Accused Eduardo

Caballes and Reynaldo Mabini. She recognized both because they had been her neighbors at Sambag 4, Guadalupe, Cebu City for the past eight years. Upon confronting her, Mabini covered her mouth and pointed a knife at her while Caballes held her hands. They led her to a secluded area where they initially molested her. She was able to wriggle herself free and run for a short distance but her abductors caught up with her. She was slapped, punched and strangled before she was brought to another secluded and dark area farther away. While Mabini held her hands and pointed a knife at her, Caballes raised her skirt and removed her underwear. She was forced to lie down. Caballes next took off his own trousers and underwear, mounted Miguela and inserted his erect penis into her vagina. After satisfying his lust, Caballes exchanged positions with Mabini who likewise violated her chastity against her will. Thereafter, Miguela was escorted towards her home by the accused. Mabini threatened to kill her if she reported the incident to the police. After parting from her attackers, the rape victim went home but, not finding her husband, proceeded to the house of his relatives, the spouses Bernardo and Juanita Jumaoas, to whom she related her shameful experience. It was the spouses Jumaoas who reported the rape to the police which led to the arrest of the accused that same evening. 9 Miguela was thereafter examined at the Cebu City Medical Center. The medical doctor who examined her genitalia found her cervix "hyperemic, with edema of the anterior lip" which might have been caused by trauma or forced contact resulting in the rupture of the capillaries, hyperemia and edema. Sperm analysis yielded negative result, but the doctor explained that there might have been no ejaculation or it might have happened outside the vagina. 10 The victim was further observed to have suffered contusions below her right eye and on her right arm just below the shoulder, possibly caused by a blunt object applied with force or a fistic blow, and linear erythema (redness) on the clavicle (collarbone), possibly caused by force applied to induce choking. 11 Version of the Defense In their respective testimonies, both accused admitted having had sexual intercourse with Miguela successively in the same evening of September 26, 1987. But they gave contradicting versions. According to Accused Eduardo Caballes, he and Co-accused Reynaldo Mabini attended a dance-affair in the neighboring barrio that evening. They had consumed about nine or ten bottles of Red Horse beer when they saw Miguela Baculi a few meters away. Reynaldo approached her. From where he was sitting, Eduardo saw his co-accused pulling the arm of Miguela who in turn appeared to be resisting. He approached both and asked what the commotion was about. Miguela expressed her surprise why Reynaldo was pulling her; the latter said that he wanted to tell her something. Eduardo convinced Miguela to walk along with them so they could talk. Miguela allegedly went voluntarily with them. After a distance of about twenty (20) meters, Eduardo told Miguela that he liked her and asked if he could touch her. Miguela replied that she already had a husband. Eduardo assured her that nobody would know. She did not resist when he kissed and embraced her. He then went to gather some banana leaves which they used as a mat. Then they undressed themselves and had sex, while Reynaldo waited about five (5) meters away. Thereafter, at the suggestion of Eduardo, Miguela allegedly agreed to have sex with Reynaldo also. Both accused later walked Miguela to the corner of the road leading to her house. Before parting ways, she allegedly even agreed to meet with them again if nobody would learn about their tryst. Eduardo further testified that he did not know why Miguela filed rape charges against them. 12 The testimony in court of the other accused, Reynaldo Mabini, was delayed for sometime because he was observed to be suffering from mental disorder. The Psychiatric Evaluation Report of Dr. Renato D. Obra of the Southern Islands Medical Center, Cebu City, however, indicated that he was capable of facing trial. 13 Mabini scantly declared that in the evening of September 26, 1987, he drank beer and Aejo rum with Eduardo Caballes. At around 8:00 p.m., they saw Miguela pass by. The accused admitted that he made a "quick intimidation" of Miguela with the use of a knife, and thus succeeded in having sexual intercourse with her against her will. 14

The Trial Court's Decision In weighing the credibility of the witnesses, the court a quo declared: . . . the Court is inclined to believe the testimony of the victim Miguela Baculi to be credible and convincing. No Filipino woman would herself (sic) and be exposed to public ridicule by concocting and inventing a story that she was raped. It would be a great shame on her part if what she has told the court is not true. And it must be noted that in this case Miguela Baculi was crying when she narrated in court her sad story. She told the court how she was accosted by the two accused, Mabini pointing a knife at her and gagging her mouth with his hands and Caballes holding her hands. And then the accused dragged her to a secluded place but on the way she was able to free herself. Unfortunately though, she was caught by the accused only a few faces (sic) and through force and intimidation she was brought to a secluded place where she was raped one at a time by the two accused. 15 With respect to the defense witnesses, the trial court characterized their testimonies this wise: . . . the testimony of accused Caballes cannot be given any importance at all for it runs counter to the normal course of human nature. For the court cannot believe him when he testified that Miguela Baculi consented to his having sexual intercourse with her. Considering that Miguela is a decent, virtuous and a happily married woman, it would be hard to imagine, nay impossible for her to give her consent to have sexual intercourse with a man who conveyed to her his love for the first time and who was drunk at the time. Moreso (sic), to have carnal knowledge with men one after another voluntarily in the presence of each other accused (sic). The court is inclined to believe that accused Caballes did not tell the truth. And to top it all, the other accused Reynaldo Mabini admitted that he raped Miguela Baculi. Although a medical certificate (Exhibit 2-Mabini) was presented and submitted in court regarding the mental capacity of the accused to stand trial, nevertheless the attneding (sic) physicial (sic) recommended that accused is (sic) ready to stand trial. 16 The court a quo further ruled that both accused had conspired in the commission of the offense, observing that "the two accused planned to commit the crime of rape before complainant showed up and they both executed the heinous act exactly as planned." It thus held that two counts of rape were committed by each of the accused. In addition, the trial court held that the crime was "aggravated by the fact that both accused are relatives of the victim's husband . . . , the commission was planned and premiditated ( sic) after the accused finished drinking liquor, with abuse of superior strength and use of a knife, in an uninhabited place and during nighttime." 17 From the above decision, only Eduardo Caballes appealed. 18 Issues In his appeal brief, the trial court:
19

I The trial court erred in finding the accused-appellant guilty beyond reasonable doubt of the crime of rape. II The trial court erred in finding that the accused had pre-planned the alleged act of rape before the complainant showed up and they both executed the heinous act exactly as planned. III The trial court erred in finding that the crime of rape was more aggravated by the fact that both accused are relatives of the victim's husband and their neighbor. IV The trial court erred in awarding moral and exemplary damages to be paid jointly and severally by the accused in the sum of FIFTY THOUSAND PESOS (P50,000.00) AND FIFTY THOUSAND (P50,000.00) respectively. 20 In questioning the sufficiency of the prosecution evidence, Accused- appellant Caballes points to the absence of laceration and sperm in the victim's vagina, negating forced penetration. Neither could he and his co-accused have preplanned their advances on Miguela considering that they only chanced upon her and were under the influence of liquor. With the above circumstances, appellant avers that at most he could be held guilty only of attempted rape with physical injuries. Furthermore, appellant contends that for relationship to be appreciated as aggravating, it is the victim who should be related by consanguinity to the perpetrator of the act. Finally, citing this Court's 1990 decision in People vs. Timbang, 21 indemnity due the rape victim should not exceed P20,000.00. 22 The Solicitor General, on the other hand, asserts that the private complainant's testimony alleging she was raped is sufficient to convict appellant and his co-accused of the offense charged. A married woman will not publicly admit that she had been sexually abused by two men unless that is the truth. Moreover, the contusions on different parts of the complainant's body support her allegation that force was applied on her by her offenders to make her submit to their abject sexual desires. Besides, the absence of spermatozoa in the complainant's sexual organ does not negate the commission of rape since it is penetration, however slight, that consummates rape. 23In addition, the Solicitor General opines that there was conspiracy between the two accused since, while one was ravishing the victim, the other was holding her hands and vice versa, thereby facilitating the commission of rape. 24 The Court's Ruling The appeal has no merit. First Issue: Sufficiency of Prosecution Evidence

Appellant Caballes attributes the following alleged errors upon

The law provides that carnal knowledge of a woman under any of the following instances constitutes rape: (1) when force or intimidation is used; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when she is under twelve (12) years of age. 25 It is important to note that both accused admitted having had sexual congress with the private complainant. Appellant claims though that said complainant copulated with him voluntarily. However, the medical findings on the victim, which included contusions on various parts of her body, belie appellant's claim. Rather, they support Miguela's declarations that she was manhandled by the accused before and during her molestation. It is well-settled that the absence of spermatozoa in the victim's vagina does not necessarily negate the commission of rape. 26 Neither is the existence of laceration indispensable. What is essential is that there be penetration of the sexual organ no matter how slight. 27 In the instant case, the victim gave a spontaneous, positive and unclouded picture of how appellant, with the help of his co-accused, disgustingly consummated the rape: Q Now, considering that after you were molested the accused forced (you) to stand up and brought you to a far secluded place, what happened next when you arrived (at) that place? A Mabini grabbed my hands and pointed a knife at me while Caballes raised my skirt and took off my pantie (sic). Q Considering that you were being held by the accused Mabini and (he was) pointing a knife at you while this accused Caballes was removing your pantie ( sic), what happened next? A They forced me to lie down on the ground. Q Now, after you were forced to lie down on the ground, what happened next? A Mabini lay at my side and pointed a knife at my neck while he was grabbing my hands and Caballes took off his trouser and his brief and expose(d) his organ. Q After Caballes exposed his organ, what did he do with that? xxx xxx xxx A He penetrated me with his organ forcefully without my consent.
28

contact applied on the affected part. 31 Gathering from the testimony of the victim, the forceful "push and pull movements" of appellant could well have been the cause of hyperemia in her sexual organ. Clearly then, appellant committed the felony under the first circumstance, i.e., with the use of force and intimidation. Indeed, no young woman of decent repute would publicly expose herself to the shame and embarrassment of admitting having been sexually abused by two men successively within each other's full view if such were not the truth. 32 No ulterior motive was offered by the appellant to explain why Miguela would falsely charge him with the serious offense. Neither did appellant attempt to explain the disparity between his testimony and that of his co-accused, a disparity which supported the victim's contentions. The only logical conclusion is that no other reason impelled the complaining witness to come to court than to seek justice for the dastardly crime committed against her virtue. 33 Even her sole testimony which is credible suffices to make a conviction, 34 for when a woman says that she has been raped, she almost always says it all. 35 Finally, it is doctrinal that the evaluation by the trial court of the testimony of a witness is generally accorded great respect because of its direct opportunity to observe the witness' demeanor on the stand and to determine whether she is telling the truth. Such assessment is generally binding on this Court except when the same was reached arbitrarily or when the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have affected the disposition of the case. 36 None of these exceptions is found in the instant case. Second Issue: Attendance of Aggravating Circumstances No Evident Premeditation We find merit in the contention of accused-appellant that the trial court wrongly concluded that the sexual assault was planned and premeditated. For evident premeditation to be appreciated, it is necessary that the prosecution prove the following elements: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to their determination to commit the crime; and (3) the lapse of a period of time between the decision and the execution of the crime sufficient to allow the accused to reflect upon the consequences of the act. 37 The prosecution, however, failed to establish with clear and convincing evidence the attendance of any of these elements which cannot be inferred merely from conjectures and suppositions. Degree of Relationship Between the Parties Not Aggravating In order that the alternative circumstance of relationship may be taken into consideration in the imposition of the proper penalty, the offended party must either be the (a) spouse, (b) ascendant, (c) descendant, (d) legitimate, natural or adopted brother or sister, or (e) relative by affinity in the same degree, of the offender. 38 The complaining witness simply stated that accused-appellant was related to her husband through their grandparents. 39 And although appellant admitted being related with the private complainant's husband, he said that he was a third-degree cousin of the former's grandmother. 40 Neither the prosecution nor defense counsel attempted to clarify the witnesses' statements. We cannot positively conclude from such bare declarations that appellant is an ascendant or descendant by affinity of the complainant. It seems rather doubtful that the relationship between the offended party and the offender falls within the statutorily defined concept of relationship determinative of the penalty to be imposed. Since the degree of relationship was not clearly established to be one of those provided for by law, we cannot use such circumstance against the accused.

Q Now, what was accused Caballes doing while he was inserting his sex organ to your sex organ? A He made a (sic) push and pull movements. 29 On the basis of the above testimony, there was penetration of the victim's sexual organ. Forced coitus is further corroborated by the findings of the physician who examined Miguela on the very evening after the sexual abuse was consummated. In his examination of the victim's genitalia, Dr. Gilberto Magallon of the Cebu City Medical Center said that the cervix was "hyperemic with edema of the anterior lip." 30 He added that such condition of the cervical layer was not normal for a woman, and explained that the probable cause thereof was trauma resulting from forced

Abuse of Superior Strength, Nighttime, and Uninhabited Place The trial court further said that the crime was also aggravated by "abuse of superior strength and use of a knife, in an uninhabited place and during nighttime." 41 Scouring the evidence on record, we do not find any evidence by the prosecution to support the unexplained conclusion of the trial court. The prosecution merely showed that the crime was committed at nighttime and in an uninhabited place. These circumstances, by themselves, do not aggravate the offense. Nighttime 42 and uninhabited place, 43 to be appreciated, must have been purposely sought and taken advantage of in order to facilitate the commission of the offense. There is nothing in the records, however, to show that appellants had deliberately chosen or used these circumstances to their advantage. Furthermore, the trial court erred in appreciating the aggravating circumstance of abuse of superior strength. Although the trial court did not elaborate on the basis of its conclusion, it relied apparently on the finding that the crime was committed by two persons who also used a knife to terrorize the victim into submission. We cannot sustain this view. The use of a knife or the commission of the crime by two persons cannot be considered as generic aggravating circumstances in rape, for they are included as an integral part of the crime. Article 335 of the Revised Penal Code provides that "[w]henever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death." (Emphasis supplied.) Third Issue: Damages

damages, he is only liable, jointly and severally with Appellant Caballes, for the sum of P50,000.00 as moral damages for the two counts of rape as adjudged by the trial court. Moreover, he is not affected by the increase in the amount of the said award. In the same vein that the additional moral damages can no longer be imposed upon Reynaldo Mabini, so we cannot order him to pay civil indemnity. Article 335 of the Revised Penal Code provides that whenever the crime of rape is committed by two or more persons, the penalty shall be reclusion perpetua to death. Considering that appellant is answerable for two counts of rape, we find no error in the imposition by the trial court of the double penalty of reclusion perpetua upon him.47 WHEREFORE, all premises considered, the assailed Decision of the trial court convicting Appellant Eduardo Caballes of the crime of rape on two counts and sentencing him to reclusion perpetua for each count is hereby AFFIRMED subject to the modification that, in addition to his joint and several liability with Accused Eduardo Mabini for P50,000.00 as moral damages imposed by the trial court, appellant shall further pay the following amounts to Miguela Baculi: 1. Additional amount of P25,000.00 as moral damages for each count of rape, or a total of P50,000.00; and 2. Civil indemnity in the amount of P50,000.00 for each count of rape or a total of P100,000.00. SO ORDERED. G.R. No. 95386 May 29, 1997

The trial court ordered the two accused separately to pay P50,000.00 as moral and exemplary damages to the victim. In effect, the trial court imposed the amount of P25,000.00 as exemplary damages and another P25,000.00 as moral damages for each count of rape. The trial court correctly awarded moral damages to the victim, pursuant to Articles 2217 and 2219 of the Civil Code. Miguela testified in court that as a consequence of the vicious and detestable act perpetrated upon her by the accused, she suffered from depression, shock and sleepless nights. 44 The award of exemplary damages is not justified, however, in view of the failure of the prosecution to prove one or more aggravating circumstances. 45 In view of the above discussion, the amount of moral damages should be increased to P50,000.00 for each count of rape, but the award of exemplary damages should be deleted. The trial court further erred in not granting civil indemnity to the private complainant which, as we explained at the outset, is automatically imposed upon the accused without need of proof other than the fact of the commission of the offense. Indemnity of P50,000.00 should, therefore, be reckoned for each count of rape committed by the accused. In the exercise of our discretion, and since an appeal in a criminal case throws the whole case open for review, it is proper for this Court to impose additional damages upon appellant. Appellant is therefore liable for the increased amount of P50,000.00 as moral damages for each count of rape. He is additionally liable to Miguela Baculi in the amount of P100,000.00 as indemnity for the two counts of rape committed against her. The same cannot apply, however, in the case of Reynaldo Mabini who did not appeal his conviction. Additional penalties cannot prejudice him, but modifications to the judgment beneficial to him are considered in his favor. 46Because of the deletion of the award of exemplary

MIGUELA CAMPOS ONG, Surviving Spouse of MANUEL ONG, petitioner, vs. COURT OF APPEALS, ALFREDO ONG and ROBERT ONG respondents. MENDOZA, J.: This is a petition for review of the decision of the Court of Appeals dated January 26, 1990, affirming the decision of the Regional Trial Court, Branch 19, Cebu City, which declared Alfredo Ong, Jr. and Robert Ong the illegitimate children of Manuel Ong and thus, entitled to support. Also assailed herein is the resolution issued on August 16, 1990, denying the motion for reconsideration filed by petitioner. Petitioner Miguela Campos Ong is the surviving spouse of Manuel Ong. The latter died on May 21, 1990, while the case was pending appeal in the Court of Appeals. On the other hand, private respondents Alfredo Ong, Jr. and Robert Ong are children of Saturnina Caballes allegedly by Manuel Ong. They brought this case to compel Manuel Ong to recognize them as his illegitimate children and to give them support. They presented evidence showing the following: On December 20, 1953, Manuel Ong, representing himself as Alfredo Go, was introduced to Saturnina Caballes at the Yarrow Beach Resort, a night club in Talisay, Cebu, by Constancia Lim and Vicente Sy. In no time, the two had a relationship. Since October 1954, Manuel started spending the night with Saturnina. Saturnina testified that she and Manuel Ong lived together for four months, first on A. Lopez Street and later in Talamban. In addition, Manuel Ong gave her money, a sack of rice each month, and other supplies. On June 28, 1955, Alfredo Ong, Jr. was born in Talamban. He was registered in the Local Civil Registry as Alfredo Go, Jr. On August 17,

1956, Robert Ong was born. Because the midwife told Saturnina that the child should carry her surname as she was not married to Manuel Ong, "alias" Alfredo Go, the child was therefore registered as Robert Caballes. Thereafter, the financial support from Manuel Ong started to dwindle, until seven months later when Manuel Ong stopped seeing her. This prompted Saturnina to look for him. She discovered his identity as Manuel Ong. Saturnina asked Manuel Ong for financial support of their children, but he refused her request. In the latter part of 1961, Saturnina and private respondents again asked Manuel Ong for monetary assistance because of financial difficulties. But Ong denied them assistance. The records disclose that on December 25, 1976, Alfredo and Robert Ong visited Manuel Ong in his house on M.J. Cuenco Avenue where they were entertained and presented to Manuel Ong by Dolores Dy, Manuel's Chinese commonlaw wife. Alfredo Ong, Jr. testified that on March 29, 1979, he was given a China Banking Corp. check for P100.00 by Manuel Ong as his gift on his graduation from high school. Later, when Alfredo Ong was in his senior year in college, he saw Manuel in the latter's office and asked him for money to defray his educational expenses. Manuel Ong gave him P100.00 cash and told him to make a list of his school needs. After getting the list which Alfredo had prepared, Manuel Ong told him to come back. Alfredo returned with some friends in September 1982, but Manuel Ong turned down his request and ordered him to leave and threatened to call the police if he did not leave. On September 30, 1982, Alfredo filed a complaint for recognition and support against Manuel Ong. The complaint was amended on November 25, 1982 to include Robert as co-plaintiff. After trial, private respondents were found to be the illegitimate children of Manuel Ong in accordance with Art. 283, pars. 2 and 4 of the Civil Code. Accordingly, the trial court ordered: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs: 1. declaring the plaintiffs as the illegitimate children of Manuel Ong, begotten by him with Saturnina Caballes; 2. ordering Manuel Ong to pay the said plaintiffs the monthly support of P600, effective from the date of this decision. 1 On appeal, this decision was affirmed by the Court of Appeals. 2 Petitioner moved for reconsideration, but his motion was denied on August 16, 1990 for lack of merit. The appellate court cited Art. 283, par. 3 as an additional ground for ordering the recognition of private respondents as illegitimate children of Manuel Ong. Hence, this petition. The pertinent provisions of Art. 283 of the Civil Code state: Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child: xxx xxx xxx 2. When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or his family; 3. When the child was conceived during the time when the mother cohabited with the supposed father;

4. When the child has in his favor any evidence or proof that the defendant is his father. Art. 289 allows the investigation of paternity of spurious children on the same grounds specified in this article and in Art. 284. The records of this case bear out the following findings of both the Court of Appeals and the trial court: (1) that Manuel Ong introduced himself to Saturnina Caballes as Alfredo Go; (2) that Saturnina Caballes and Manuel Ong had an illicit relationship from 1954 until sometime in March of 1957, during which they had repeated sexual intercourses; (4) that during this period, Manuel Ong gave support to Saturnina and private respondents; (5) that Dolores Dy, Manuel's commonlaw wife, treated private respondents like close relatives of Manuel Ong by giving them on November 2, 1979 and January 6, 1977 tokens of affection, such as family pictures of Dolores Dy and Manuel Ong, 3 and by visiting them in their house on A. Lopez Street in 1980; (6) that on two occasions Manuel Ong gave money to Alfredo, first, as the latter's high school graduation gift and second, for the latter's educational support. The trial court and the Court of Appeals dismissed Manuel Ong's claim that Alfredo tried to extort money from him. They noted that Alfredo had written his name on the piece of paper and that if this was a case of extortion, the amount demanded would have been in round figures and not P4,974.28. On this basis they concluded that the amount written on the list was the total of the itemized expenses which Alfredo Ong, Jr. was asking his father to defray as his school expenses. Petitioner questions the morality and credibility of Saturnina Caballes. She refers to Saturnina's admission that before she had relation with Manuel she was cohabiting with a paralytic from San Fernando, in order to distinguish this case from that of Navarro v. Bacalla 4 in which the compulsory recognition of a natural child was ordered on the basis of the testimony of the mother of the child that the putative father had impregnated her. Petitioner points out that, in that case, there was also evidence presented that at no time before and during the child's conception did the mother have any relation with any other man. Thus: Specifically, as the records shows, the paternity of defendant herein was proved by the testimony of plaintiff's mother that "he (defendant) impregnated me" and that at the time, before, and during plaintiff's conception she had no affair with any other man aside from the defendant. . . We agree with appellant that the foregoing evidence is included in the broad scope of paragraph 4, Article 283, New Civil Code. 5 To begin with, factual questions as determined by the trial court, especially rulings on the credibility of witnesses, 6when affirmed by the appellate court, are binding on this Court and are accorded utmost respect. It is only when it is shown that the trial court ignored or overlooked or did not appreciate correctly matters of substance which affect the results of the controversy that this Court will depart from this rule. 7 In the case at bar, no sufficient reason has been shown for this Court not to adhere to the general rule. Inconsistencies there are in the testimony of Saturnina Caballes, but they are not of such a nature as to put in doubt the testimony of Saturnina that Manuel Ong was the father of private respondents Alfredo Ong, Jr. and Robert Caballes. The discrepancies concern minor details and, if at all, only show that Saturnina Caballes was an uncoached witness. 8 Saturnina testified that shortly after getting acquainted with each other, she and Manuel Ong had relation and in

fact lived together at A. Lopez Street in Cebu City for four months, and that Manuel Ong gave her support consisting of money and the necessities of life, like rice. Saturnina's testimony was corroborated by Constancia Lim Monteclaros. Constancia was the person who introduced Saturnina to Manuel Ong. Constancia and Vicente Sy, Manuel Ong's close friend, lived together in a room in the house of Ong. She knew Manuel very well. No reason has been given why she should testify falsely against Manuel Ong. Two circumstances are mentioned which allegedly make it improbable that Manuel Ong was the father of private respondents. The first is that Saturnina Caballes admitted having cohabited with another man before meeting Manuel Ong. The records show, however, that the man, who was a paralytic, was taken by his mother in 1953, before Saturnina started having an affair with Manuel Ong in 1954. Private respondent Alfredo Ong, Jr. was born on June 28, 1955, more than a year after the paralytic had left Saturnina. The other private respondent, Robert Caballes, was born on August 17, 1956. Hence, private respondents could not have been conceived during the period of cohabitation of their mother with the unidentified paralytic. The other circumstance mentioned is that Manuel Ong was allegedly sterile. Ong claimed that, in addition to petitioner Miguela Campos Ong, he lived with a commonlaw wife, Dolores Dy, and with another woman named Anatolia Veloria but he had no child with anyone of them. He said that during World war II he got sick and was treated by a certain Dr. Deiparine who allegedly told him that as a result of his illness he would not be able to beget any child. Ong further claimed that he cohabited with Dolores Dy before and during his marriage with petitioner Miguela Campos Ong. His inability to procreate is said to be the reason why petitioner and Manuel Ong raised six children not related to them by blood. We think both the trial court and the Court of Appeals correctly dismissed claims that Manuel Ong was sterile and therefore could not have been the father of private respondents. No competent medical testimony was presented to prove this claim. His testimony that he had been told by a certain Dr. Deiparine that because of an illness he contracted during the war he would no longer be able to procreate is plain hearsay. On the other hand, the claim that although he lived with three women (including petitioner) no one bore him a child is belied by the fact that he acknowledged a certain Lourdes Balili as his natural child. The record shows that on May 24, 1948, the Court of Instance of Cebu rendered a decision which in part stated: 9 This is a case of acknowledgment of a natural child and support. When this case was called for trial today, the parties entered into the following agreement: That the defendant is agreeable to acknowledge Lourdes Ong as his natural child and the mother, Victoria Balili, acknowledges the right of the said defendant to the custody of the child. Plaintiff Lourdes Ong, therefore, is hereby declared acknowledged natural child of Manuel Ong, with the right to bear the name of natural father, who shall have the custody upon her, without prejudice for the mother to see and visit her from time to time. In the complaint for support filed in that case, it was alleged:

4. That in the month of January, 1938, to the day when the last war broke out, the guardian-ad-litem, Victoria Balili, and the herein defendant Manuel Ong with repeated promises by the latter to marry the former, they lived together as husband and wife; 5. That while they lived as such, the plaintiff Lourdes Ong was begotten or born on March 31, 1939, at the City of Cebu; 10 These allegations contradict the claim of Manuel Ong 11 that during the war he lived with Victoria Balili (not Victoria Veloria, which is apparently a typographical error) but because of his sterility they did not beget any child. Petitioner contends that the decision in that case cannot be presented as evidence of his virility because it was based on a compromise agreement relating to the civil status of persons, which is prohibited under Art. 2035, par. 1 of the Civil Code. This contention is untenable. The evidence was not presented to establish in chief a fact but to impeach the credibility of Manuel Ong as a witness. Moreover, as is clear from the quoted portion of the judgment, the parties did not really enter into a compromise in the sense in which the term is used in Art. 2028 as "a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced." Rather what Manuel Ong did was actually to make a voluntary recognition of the child pursuant to Art. 278, which provides that recognition shall be made in the record of birth, a will, a statement before the court of record, or in any authentic writing. What he agreed to do was to acknowledge the child as his, rather than to agree to consider the child to be his natural child. Indeed, the evidence for petitioner does not show that Manuel Ong was sterile and could not have begotten private respondents or that even if he was so during the war that he could not have been cured ten years later of that condition when Alfredo Ong, Jr. was conceived. On the other hand, as this Court has ruled 12 an adult male is presumed to have normal powers of virility and the burden of evidence to prove the contrary rests upon him who claims otherwise. Petitioner has not overcome this presumption. The Court of Appeals declared private respondents the illegitimate children of Manuel Ong pursuant to Art. 283, pars. 2, 3 and 4. In regard to the finding that private respondents had been in the continuous possession of status as children of Manuel Ong, petitioner cites the ruling in De Jesus v. Syquia, 13 wherein it was stated: The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean that the concession of status shall continue forever, but only that it shall not be of an intermittent character while it continues. Petitioner contends that Manuel Ong's acts of recognition were intermittent and isolated and not continuous, as Alfredo Ong, Jr. claims to have encountered his putative father only four times, in 1961, on December 25, 1976, March 29, 1979 and sometime in September 1982, whereas Robert had only two such encounters, which were in 1961 and on December 25, 1976. Petitioner also contends that the refusal of Manuel Ong to recognize and give support to private respondents is proof that he never recognized them as his children because, as held in Mendoza v. Ibaez: 14 . . . the enjoyment of the status of a natural child referred to in the said article must necessarily be proven by acts showing an express desire on the

part of the father, or of his family, as the case may be, to recognize the claimant as his natural child, such as the keeping of the child, or by other analogous acts, of equal weight and efficacy, showing that such relationship exists between the child and the alleged father or his family. With regard to the Court of Appeals' finding that there was cohabitation between Manuel Ong and Saturnina, thus justifying the application of par. 3 of Art. 283, petitioner points out that the Court of Appeals simply referred to its main decision and that of the trial court in holding that there was cohabitation when the fact is that neither in the appellate court's decision nor in that of the trial court was it found that there was cohabitation. On the contrary, the trial court held that there was no cohabitation because Manuel Ong and Saturnina Caballes did not openly live together as husband and wife, for a period of time, under the same roof, but did so clandestinely. 15 We agree that this case does not fall under pars. 2 and 3 of Art. 283 of the Civil Code. As petitioner well states, the four times during which Manuel Ong met Alfredo and gave the latter money cannot be considered proof of continuous possession of the status of a child. The father's conduct toward his son must be spontaneous and uninterrupted for this ground to exist. Here there are no acts shown of Manuel Ong treating Alfredo Ong, Jr. as his son except on the four occasions during which they met. In the case of Robert Caballes, there is no proof at all that Manuel Ong treated him as his son. Nor can it be said that there was proof of cohabitation in this case. While Saturnina Caballes testified that she and Manuel Ong lived together for four months as husband and wife in order to justify a finding of cohabitation, the relationship was not open and public so as to constitute cohabitation. 16 While the parties are not required to hold themselves out as husband and wife, neither must they act clandestinely or secretly, otherwise they will be considered to have merely engaged in illicit sexual intercourse. 17 Nonetheless, we hold that the evidence in this case sufficiently makes this case fall under the last paragraph of Art. 283, i.e., any other evidence showing that Manuel Ong was the father of private respondents. In Ilano v. Court of Appeals, 18 this Court held that the phrase "any evidence or proof" in the last paragraph of Art. 283 operates as a blanket provision covering all cases in the preceding ones, so that evidence, even though insufficient to constitute proof under the other paragraphs, may nonetheless be enough to qualify the case under par. 4. In this case, the testimony of Saturnina Caballes that she had illicit sexual relation with Manuel Ong over a long period (1954-1957) which, had it been openly done, would have constituted cohabitation under par. 3 is proof that private respondents were conceived and born during such relationship and constitutes evidence of Ong's paternity. This relationship was further established through the testimony of Constancia Lim. The evidence for private respondents is not negated by the admission of Saturnina Caballes that she had relation with another man before, because the relationship terminated at least a year before the birth of Alfredo Ong, Jr. and two years before the birth of the second child Robert Caballes. WHEREFORE, the decision of the Court of Appeals, dated January 26 1990, and its resolution, dated August 16, 1990, are AFFIRMED. SO ORDERED. G.R. Nos. 80437-38 July 11, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO B. ABORDO, accused-appellant.

MENDOZA, J.:p Roberto Abordo was the houseboy of Antonio Tan. He was accused of the rape and attempted rape of his employer's 10-year old daughter, Arlene Tan, in two separate complaints filed with the Regional Trial Court, Branch 100, at Quezon City. In criminal Case No. 80437, the complaint alleged: That on or about the 7th day of August, 1982, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, said accused, by means of force and intimidation, did, then and there, wilfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant, a minor, 10 years of age, against her will and in her own house. In criminal Case No. 80438 it was alleged: That on or about the 15th day of August, 1982, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, said accused did then and there, wilfully, unlawfully and feloniously, and by means of force and intimidation, commence the commission of rape directly by overt acts, to wit: while the undersigned complaint, a minor, 10 years of age, was inside their bedroom, the said accused, without the permission of any one, entered the said room, lay on top of the undersigned, embraced, kissed and touched her private parts and with intent of having carnal knowledge of her by means of force and threats to kill her, and if the accused did not accomplish his purpose, that is, to have carnal knowledge of the undersigned, it was not because of his voluntary desistance but because of the opportune intervention of her brother and another relative who responded to her cries for help. Accused-appellant was found guilty of the charges. For the crime of rape, he was sentenced to a prison term of reclusion perpetua and ordered to indemnify Arlene Tan in the sum of P10,000.00, without subsidiary imprisonment in case of insolvency. For attempted rape, he was sentenced to suffer an indeterminate penalty of 4 years, 2 months, and 1 day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum, and to indemnify Arlene Tan in the sum of P2,000.00, also without subsidiary imprisonment in case of insolvency. The facts are as follows: Arlene Tan was ten (10) years old at the time of the commission of the crimes. She and her brothers Aris Tan and Arthur Tan lived in Quezon City with their father. Her mother worked abroad. The complainant's father, Antonio Tan, ran a store on the ground floor of their house, selling snacks (merienda) and car spare parts. The store usually closed between 9:00 o'clock and 10:00 o'clock in the evening. Antonio Tan and his son Arthur occupied the room on the second floor of the house, while Arlene and her four-year old brother Aris occupied the room at the mezzanine. Accused-appellant had been employed as a houseboy on August 1 or 2, 1982, 1 less than a week before the commission of rape charged in Criminal Case No. 80437. He cooked the food, washed the clothes and cleaned the house. He was also in charge of opening the store in the morning and closing it at 9:00 in the evening. He slept in the sala located at the mezzanine, near the room of Arlene. 2

On August 7, 1982, at around 10:30 in the evening, Arlene was awakened by the weight of accused-appellant on top of her. She found she had been undressed. Accused-appellant kissed her and with his two hands pinned down her shoulders. Then with the use of his right hand, accused-appellant inserted his penis into her vagina. Arlene said she suffered pain but she could not shout because accusedappellant placed his mouth on her mouth all the while that he was doing the sexual act. He threatened Arlene with harm if she shouted. Arlene testified that when the incident happened, her brother, Aris, was outside the room playing near the door. Although Aris saw that accused-appellant was doing to her, because of his tender age, being then only four years old, Aris did not do anything. 3 The next day, August 8, 1982, accused-appellant warned Arlene not to tell anybody about the incident, otherwise she and her brother Aris would get hurt. 4 On August 15, 1982, at around 10:00 in the morning, while Arlene was in her room playing hide-and-seek with Aris, accused-appellant entered their room, undressed her and from behind inserted his penis. 5 Aris testified 6 that he saw accused-appellant on top of his sister and both lay straight on the floor. Aris said he saw Arlene's skirt raised up to her waist and her panty removed. 7 Arlene pushed accused-appellant as she asked Aris to help her. Aris hit accused-appellant on the head with a piece of wood. When accused-appellant stood up, Aris said he saw accused-appellant's penis because his pants was unzipped. 8 Accused-appellant ran down the stairs and went away. In her sworn statement, 9 Arlene said that at about 11:00 in the morning, she told her cousin Tadeo de Lara about what accused-appellant had done to her. On the same day, at 1:00 o'clock p.m., Antonio Tan, who was in San Juan, Metro Manila attending a conference of real estate brokers, was fetched by his brother-inlaw, Benjamin Henerala, and told about what happened to Arlene. The two proceeded to complainant's house and arrived at 1:30 o'clock in the afternoon. Antonio Tan confronted accused-appellant and asked him, "What have you done?" Accusedappellant at first did not answer, but when Tan demanded an answer accused appellant said, "None, sir, I just went on top of her." 10 Aris testified that when he told his father that accused-appellant had gone on top of Arlene, Antonio Tan hit accused-appellant. 11 Antonio Tan said that he was shocked and because he did not know what to do in such situation, he waited for his compadre and neighbor, Co. Manuel S.J. Pea. At 7:00 in the evening a certain Eddie Cruz arrived and, after an hour, they went to the police station at the Araneta Coliseum in Quezon City, together with Arlene, Aris, Tadeo de Lara, bringing with them accusedappellant. 12 When asked during his cross-examination why he decided to take accused-appellant to the police station, Tan said it was because he believed what Arlene had told him about the incident and Arlene would never lie about such a serious matter. On August 17, 1982, Arlene was taken to the medico-legal branch of the Philippine Constabulary headquarters at Camp Crame where she was examined by Dr. Gregorio C. Blanco. Dr. Blanco's findings are contained in the medico-legal report (Exh. E) he issued. The report states: GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished and coherent female child. Breasts undeveloped. Abdomen is flat and tight. There is a contusion at the left mandibular region, measuring 1.5 by 1 cm, 4.5 cm from the anterior midline.

GENITAL: There is absence of public hair. Labia majora are full, convex and coaptated with the pinkish-brown labia minora presenting in between. On separating the same are disclosed a congested vulvar mucosa and an elastic, fleshytype hymen with a deep, healing laceration at 3 and shallow, healing lacerations at 7 and 9 o'clock. External vaginal orifice offers strong resistance to the introduction of the examining index finger and the virginsized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and consistency with scanty amount of whitish secretion. Vaginal and peri-urethral smears are positive for gram-negative diplococci but negative for spermatozoa. REMARKS: Subject is in non-virgin state physically. In addition Dr. Blanco testified. After identifying his report, 13 he testified that based on his examination Arlene had been sexually abused and the hymenal lacerations could have been caused by sexual intercourse. Dr. Blanco explained that he observed "healing lacerations," not "healed lacerations" nor "fresh lacerations," which indicated that the sexual intercourse took place from 6 to 12 days before the examination was made, i.e., between August 5 and August 12, 1982. Accused-appellant's defense was basically denial. Accused-appellant testified that on August 7, 1982, at about 10:00 in the evening, the stayed in the sala on the second floor. Complainant's father was then in the store on the ground floor. 14 He said he could not have committed the rape "because Mr. Tan was there." 15He could not have attempted to rape Arlene on August 15, 1982 either "because Mr. Tan was [also] there [in the house at the time]." On the other hand he was doing household chores from 6:00 o'clock in the morning to 9:00 o'clock in the evening. 16 The trial court sustained the prosecution version and convicted accused-appellant of rape committed on August 7, 1982. The trial court declared that it could have found accused-appellant guilty of consummated rape for the August 15, 1982 incident were it not for the fact that the Information in the second case charged only attempted rape. Hence the appeals from the decisions in the two cases which were consolidated. In Criminal Case No. 80437 (Rape) it is alleged that the trial court erred: I In believing the testimony of the offended party Arlene Tan and witness Aris Tan taking into account the improbability and impracticability of the commission of the crime charged considering the presence of all the members of the household during its alleged commission on August 7, 1982 in the very house of the victim. II

In not considering the absence of the possible physical effects of the crime charged, upon the body of the alleged victim. III In giving credence to the testimony of the examining physician, the physical examination of whom was of doubtful veracity as may be viewed from the testimony of the victim. IV In not believing and not giving significance and importance to the fact that accused has all the time stayed in the alleged victim's home from the day the crime complained of was allegedly committed to that day the complaint was filed. On the other hand, in Criminal Case No. 80438 (Attempted Rape), it is alleged that the trial court erred: V In convicting the accused based on the uncorroborated testimony of the alleged victim. First. Accused-appellant argues that he could not have raped Arlene on August 7, 1982 since the members of her family were in the house and were within a hearing distance from Arlene's room. He contends that much less could he have performed the sexual act "in the actual presence of another person" (Arlene's brother Aris). The contention has no merit. We have had cases 17 showing that fear of discovery or the possible appearance of other people does not necessarily deter the commission of rape. In People v. Opea, 102 SCRA 755 (1981), we said that it is not impossible to commit rape in a small room even if there are several other persons in it. Lust does not respect either time or place. 18 Besides, accused-appellant admitted that at 10:00 in the evening of August 7, 1982, Arlene's father was in the store on the ground floor of the house. Knowing that Arlene's father usually went to bed between 11:00 o'clock and 12:00 o'clock midnight 19accused-appellant must have thought it safe to enter the room where Arlene was sleeping. Because of accused-appellant's threats, Arlene was forced to keep quite and yield to accused-appellant's desire. Accused-appellant makes much of the fact that the prosecution failed to present evidence to show the "possible physical effects" of rape. It is argued that if there was rape the lacerations of the hymen, noted by the medico-legal officer, would have caused profuse bleeding even the day after the rape and Arlene would have complained of persistent severe pains. What Dr. Blanco testified he found were "healing lacerations," not fresh ones. After all, when he examined Arlene Tan, it had been ten days after the rape. There was still some bleeding but not too much because the lacerations were already drying. 20 Anyway, since Arlene was less than twelve (12) years old at the time of the rape, it is not necessary to prove that force had been used against her since the gist of the offense of statutory rape is carnal knowledge of a woman below 12 years of age. 21

Arlene may not have related the details of the rape but her simple answers to questions asked her on the witness stand leave no doubt that she was telling the truth. As she told her story: ATTY. MENDOZA. Q What happened at 10:30 in the evening of August 7, 1982? WITNESS: A "Hinubaran po niya ako, tapos pinatungan." COURT Q What else happened? A "Inilagay niya iyong kanya sa akin." Q What do you mean by "he inserted his into mine"? A "Iyong dito niya." ATTY. MENDOZA Witness pointing to the front. COURT Q "Iyong titi"? WITNESS A Yes, sir. Q Into your "pekpek"? A Yes, sir. COURT Q After that, when the accused . . . no. When the accused placed his penis inside your vagina, what happened or what else did the accused do? WITNESS A He kissed me. Q Beside kissing you, what else happened? Tell the court so that we will finish this. A "Pinatungan, hinalikan, inilabas iyong kanya, tapos ipinasok." Q What else did he do? A That is all. Q Did you feel anything when the penis of accused was inside your vagina? A Yes, sir. "Masakit." 22 Arlenes's testimony was supported by the medico-legal report of Dr. Gregorio C. Blanco who found that she was in "non-virgin state physically," meaning to say she had sexual intercourse. He also explained that the deep, healing laceration at 3:00 o'clock and shallow, healing lacerations at 7:00 o'clock and 9:00 o'clock in the hymen could have been caused by the forcible insertion of the male organ into Arlene's genital tract. Accused-appellant contends that complainant's failure to recall the name of the doctor who examined her casts doubt on the testimony of Dr. Blanco that a physical examination had in fact been conducted on her. This is not correct. It only means Arlene did not know Dr. Blanco very well or did not remember his name or never knew his name in the first place. Accused-appellant also argues that the fact that he never escaped shows he was innocent of the charges. The proverb "the wicked flee even when no man pursueth, but the innocent are as bold as a lion" (Prov. 28:1) has been adopted as rule of evidence, 23 but there is no rule holding the converse. Accused-appellant probably did not think his offense would be discovered, especially since it appeared he had succeeded in silencing his very young victim. As already stated Arlene did not complain because she had been threatened with harm by accused-appellant.

Accused-appellant assails his conviction for the crime of attempted rape on the ground that the testimony of the complainant was uncorroborated. The rule is clear that the lone testimony of the victim in the crime of rape, if credible, is sufficient to sustain a conviction. By the nature of rape the only evidence that oftentimes is available is the victim's own declaration. 24 Testimonies of rape victims who are young and immature are credible. This is especially true where the victim has no motive to testify against the accused. 25 As we said in People v. Manzana, 26 no woman, especially one of tender age, would concoct a story of defloration, allow an examination of her private parts and expose herself to humiliation as a result of a public trial if she is not motivated solely by a desire to vindicate her honor. Besides, Arlene's narration of the incident on August 15, 1982 was corroborated by her younger brother. Aris testified that he saw accused-appellant on top of his sister; that Arlene's skirt was raised up to her waist and her panty removed; and that he saw accused-appellant's penis when accused-appellant stood up. Aris' testimony may be nebulous in some portions, but this could be due to lack of clarity in the questions themselves. Aris was only five (5) years old at the time he testified. Rather than exhibiting untruthfulness his testimony shows candor and lack of guile or prevarication. Thus the lack of definiteness in his statement as to the time he played hide-and-seek with his sister, whether it was daytime or nighttime, whether the fact that accused-appellant went on top of her sister was not part of their game or whether he actually saw his father hit accused-appellant does not detract from the substance of his testimony. WHEREFORE, the decision of the trial court is AFFIRMED with the MODIFICATION that the indemnification to the victim, Arlene Tan, is increased to P50,000.00 for the crime of rape and P10,000.00 for the crime of attempted rape. SO ORDERED.

between Clodualdo and Bienvenida, saw the birth of the couple's children, namely, Agronoemi, Clodualdo, Jr. and Rommel. Following Clodualdo's release from prison in 1988, the family started to reside in Sto. Tomas, Davao. Upon attaining the age of eleven years, Alienaven began to be subjected to sexual abuse by her stepfather. The attack on her virtue kept on for about two or three times a week. The threat on her life had gagged her for years but the incident on 07 August 1992, the subject matter of the information, was to be the last straw. On that day of 07 August 1992, while Bienvenida, then a laundry woman, was doing her daily washing at the house of a neighbor, Clodualdo returned home from a billiard game. He found Alienaven, by then already fifteen years of age and a HighSchool sophomore, going through her school work. He told Agronoemi, Clodualdo, Jr., and Rommel to leave the house and to play at the creek. Once the children had left, Clodualdo started to make his sexual advances on Alienaven. Alienaven resisted but, frightened by the double-bladed knife wielded by her stepfather, she, once again, was unable to fend the bestial act. This time, however, Alienaven had enough courage to seek the assistance of Ella Caballero, an employee of the Department of Social Welfare and Development ("DSWD"). She also had herself medically examined. The results disclosed these findings: 1. Old healed lacerated wounds at the 7:00 o'clock and 10:00 o'clock of the hymen; 2. Admits three (3) fingers of the examinee into the vagina with ease. 3 Clodualdo denied the charges. He cited various reasons, reiterated in this appeal and hereinafter discussed, why he could not have committed the offense charged. On 12 July 1994, the trial court convicted the accused. The dispositive portion of the decision read:

G.R. No. 117684 January 30, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLODUALDO CABILLAN, accused-appellant. VITUG, J.: An information, dated 21 October 1992, filed with the court a quo charged Clodualdo Cabillan with rape, to wit: That on or about August 7, 1992, in the Municipality of Sto. Tomas, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of Alienaven Aida Devaras, against her will. CONTRARY TO LAW. 1 The plight and traumatic experience in the early life of private complainant Alienaven Aida Devaras was recounted in the decision 2 of the trial court. Alienaven, born in Manila on 29 April 1977, was an illegitimate child of Bienvenida Devaras. Some time in 1980, she and her mother moved to the Davao Penal Colony ("DAPECOL") where the latter met and later married Clodualdo Cabillan, an inmate. The marriage, contracted in 1983

WHEREFORE, finding the accused Clodualdo Cabillan guilty beyond reasonable doubt of the crime of RAPE, punishable under Article 335 of the Revised Penal Code, the court hereby sentences said accused to suffer a penalty of RECLUSION PERPETUA, together with the accessory penalties provided by law, to pay the costs, and is hereby further ordered to indemnify the victim by the way of moral damages in the amount of P50,000.00, in accordance with the current case doctrine of the Supreme Court. SO ORDERED. 4 The Court, in this appeal, sees no sound reason to overturn the conviction. Certainly, looking at the records, the trial court cannot be faulted for giving credence to the testimony of private complainant. Alienaven's account of the incident, delivered straightforwardly, was narrated in a manner that is typical of young victims of rape. Thus Q You said you were in your house at Menzi, Sto. Tomas, what were you doing at that time, at 10:00 o'clock in the morning? A I was studying my lesson. Q You were then in what year? A Second year. Q And where were you studying at that time?

A In Sto. Tomas Barangay High School. Q While you were studying, where was your mother? A My mother was out. She went to the house of Warny Bolences? Q And what was your mother doing at the house of Warny Bolences? A She went there to wash clothes. Q How far was the house of Warny Bolences from your house? A Maybe, one (1) kilometer. Q How about your stepfather, the accused, where was he at that time? A He was in the Billiard Hall. Q Where was that Billiard Hall located? A In Menzi, near the basketball court. Q How far is that basketball court from your house? A It's about 25 meters. Q What time did your mother leave in your house? A At around 9:00 o'clock in the morning. Q And while you were studying, who was with you in your house? A I was with my stepbrothers and a stepsister. Q After your mother left, what time did your stepfather return to your house? A At around 10:00 o'clock in the morning. Q And upon returning to your house, what did he do? A He went to the creek. Q Where is this creek located in relation to your house? A In the lower part of our house. Q Your house stands near a creek? A Yes, Sir. Q And what was your stepfather doing, standing by the creek? A He just stood there. Q How long did he stay near the creek? A He did not stay long. He went back to the house. Q And upon returning to your house, what did he do? A When he went back to the house, he looked for my stepbrothers and sister and told them to go to the creek because Danny and Noli were there. Q And after the young children left the house, what did your stepfather say and do? A He told me, while your brothers and sister are away, let us have sexual intercourse immediately. Q And what was your answer? A I said, I don't and because I was studying. Q And how did your stepfather react to that? A He went down and came back and got angry. Q You said, came back, got angry, what did he do to you? A He pulled me to the division. Q What kind of division was that? A A division which he put a stick and a blanket. Q And while inside that division, what did he do to you? A He covered my mouth and told me "don't shout or else I will kill you. Q And what happened next? A He removed my panty. Q What were you wearing at that time? A A skirt.

Q Did he remove all your dress? A No, only my panty. Q And after getting your panty, what did he do to you? A He undressed himself. Q And then what did he do? A He placed on top of me. Q And after that, what did he do to you? A He fucked me. He made me lie down and try to pull my legs apart. Q Pulling your legs apart, what did he do to you? A He continued fucking me. Q When you said he fucked you, using the word "kayat," what did he do? A He inserted his penis into my vagina and pushed and pulled it. Q How long? A Less than three (3) minutes. Q After three minutes, what happened? A After he fucked me, I told him "watch out I will tell my Mom" and he told me, "are you not ashamed," and I told him, "Why? What I be ashamed? She is my mother." Q You said you were forced by your stepfather in having sexual intercourse, does he have weapon? A Yes, Sir, a double bladed knife. Court Interpreter: Witness demonstrating how long, which is 6 inches in length. Pros. Tirol: Q And while he was having intercourse with you, where did he place this knife? A On my side. Q You said a while ago that when your younger brothers and sister left the house, your stepfather said let us make a quick fuck, was there a time that you were fucked by your stepfather? A Yes, Sir. Q At what age or in what year that your stepfather first had intercourse with you? A When I was 11 years old. Court: Q You describe it. A When I was 11 years old, he did it to me standing and afterwards, he ordered me to lie down. That was the first time he raped me. Pros. Tirol: Q How often when you were still 11 years old that your stepfather have intercourse with you? A Two or three times a week. Q And you are saying this was the frequency between 1988 up to August of 1992? A Yes, Sir. Court: Q Did you not get pregnant? A No. Q Why? A I do not know. Pros. Tirol: Q Now, this matter, did you not report this to your mother? A I revealed it once to my mother, but my mother forgive him.

Q You said you were forcibly fucked on August 7, 1992, what made you to report this incident to the authorities after four years of frequent intercourse? A I can not swallow it anymore and if I will not give him, he will maltreat me. 5 A young girl's revelation that she has been raped, coupled with her voluntary submission to medical examination and her willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily dismissed as mere concoction. 6 Here, particularly, the person she has accused is her own stepfather. 7 It would be highly improbable for a girl of her age to fabricate a charge so humiliating to herself and her family as well had she not been truly subjected to the pain and the harrowing experience of sexual abuse. 8 The Court rejects the argument of accused-appellant that the rape could not have been committed without thereby courting the curiosity of neighbors who live nearby. Lust is no respecter of time and precinct; 9 it can be committed in most unlikely places 10 such as in a park, along a roadside, within school premises, or even in an occupied room. 11 Neither can the Court accept the averment that at an age of 62 years, accused-appellant would be unable to indulge in the sexual act. Except for his self-serving testimony, there is utterly no proof to support the claim. Accused-appellant has admitted that he suffers from no ailment, 12 and that, in fact, he still does heavy work. 13 Appellant would, regrettably, even sullen the reputation of Alienaven by pointing to her supposed sexual experience in the past not only with him but also with others. This attempt will not detract the Court from the established fact that in the particular instance complained of, the sexual congress has taken place against the will of the victim. 14 WHEREFORE, the decision appealed from is AFFIRMED in toto. Costs against accusedappellant. SO ORDERED. G.R. No. 105556 April 4, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO SAN JUAN, accusedappellant. PANGANIBAN, J.: Rape is horrible and nauseating. The crime is even more disgusting and infuriating when the victim is a mental retardate who is incapable of giving intelligent consent to the sexual act. This is an appeal from the Decision 1 dated September 2, 1991 of the Regional Trial Court of Valenzuela, Metro Manila, Branch 171, 2 in Criminal Case No. 9370-V-89 convicting Accused Rodolfo San Juan of the crime of rape, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to indemnify the offended party in the amount of P20,000.00 and to pay the costs. 3 The Criminal Complaint, which was treated as the Information 4 after a preliminary investigation had been conducted by Asst. Provincial Prosecutor Calixtro O. Adriatico, reads as follows:

The undersigned complainant, assisted by her father, accuses Rodolfo San Juan of the crime of rape, penalized under the provisions of Art. 335 of the Revised Penal Code, committed as follows: That on or about the 30th day of September, 1988, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rodolfo San Juan did then and there wilfully, unlawfully and feloniously, by means of force, threats and intimidation, have carnal knowledge of the offended party Vivian Enriquez, a mentally retarded, (sic) against her will and consent. Contrary to law. When arraigned, the accused, assisted by Counsel de Oficio Ricardo Neri, pleaded not guilty. 5 After trial, the trial court found the accused guilty as charged. Hence, this appeal. The Facts Version of the Prosecution The prosecution presented four witnesses: (1) the offended party and complainant Vivian Enriquez, who gave an account of the rape; (2) the victim's father Vicente Enriquez, an eyewitness to the crime; (3) Dr. Erlinda Ramos-Marfil, who testified on the mental condition of the victim; and (4) Dr. Maximo Reyes, who testified on the results of his medical examination of the victim. Their testimonies were summarized by the trial court as follows: VICENTE ENRIQUEZ, father of victim Vivian Enriquez, substantially testified that his daughter Vivian who is 26 years old is mentally retarded. That on September 30, 1988 between the hours of 6:00 and 6:30 in the evening while he was by the window of his house tending to his grandchild in the cradle, he was watching his daughter Vivian fetching water from a communal water system located in front of his house. That he has been keeping watch of his daughter Vivian because he received news that the accused often called her. That after a while, he noticed that Vivian was no longer in (sic) the faucet so he started to look for her. That he went to the residence of his nephew about 10 meters away from the faucet but failed to find Vivian there. That he returned home and accompanied by his son Junior, they proceeded to a vacant house owned by the sister of the accused about 3 to 4 meters away from his house and saw the accused on top of the body of his daughter Vivian with the accused's penis inserted inside the sex organ of his daughter Vivian. That Vivian's dress was raised up to the shoulder and the hands of the accused were on the breast ( sic) of Vivian. That when the accused noticed them, the accused rose up, put on his brief and short pants and jumped out of the window. That he and his son Junior chased the accused but the accused jumped over the fence and they failed to overtake him. That he returned to the house where he found Vivian and the accused and asked Vivian to go home. That because of his anger, he slapped Vivian and the latter revealed to him that she was often threatened by the accused, placed his arms around her neck and admonished not to shout. (sic) That Vivian informed him that the accused had sexually abused him (sic) about five (5) times. That he went to the house of the eldest sister of the accused where the accused was but the

latter did not come out so he went home. That after a while, accused called him and invited him to the store. That he followed and while they were walking, he told the accused, "Traidor kang kapitbahay" and the accused boxed him twice. That he fell down to the ground and the accused's brotherin-law approached and kicked him. That his children came to his assistance but the accused threw stones to (sic) his children. That he brought his daughter Vivian to the Valenzuela District Hospital and then to the Valenzuela Police Station. That Vivian was examined by the NBI. xxx xxx xxx VIVIAN ENRIQUEZ, substantially testified that in the afternoon of September 30, 1988, she saw the accused in front of his house. That the accused approached her and asked her to go with him to an empty house. That the accused told her that if she will not go with him, her parents, brothers and sisters will die. That inside the empty house, the accused embraced her and asked her to lay (sic) down. That the accused removed her panty and inserted his penis inside her organ. That she felt painful ( sic). That accused raised her upper clothes and embraced her tightly and had sexual act with her. That her father saw them through the window of the accused and the accused ran away. That her father slapped her and brought her home. That the empty house is near the house of the accused and near the public faucet. That she told the accused not to remove her panty but the accused continued removing her panty. That she could not resist because the accused was on top of her and her hands were not free to move. That the accused touched her breasts and her sex organ and she resisted because it was painful and told the accused she don't like (sic). That the accused raped her several times before the incident at bar. That while the accused was performing sexual act with her, she resisted and told the accused "Wag na ho" and she slapped his arms. That she did not continue to struggle while the accused was doing the sexual act because she felt weak and her arms were painful and the accused held her hands. On redirect, she said that she affixed her thumbmark on the complaint. On Court's clarificatory question, she said that she attended school and reached up to Grade V. That she cannot write her name without sample from where she could copy. That she do (sic) not know her age and do (sic) not know when she was born. DRA. ERLINDA RAMOS-MARFIL, Psychiatrist and Officer-in-Charge of the Neuro-Psychiatric Service of the NBI, testified that she examine (sic) and evaluate (sic) mentally sick people referred to their section by the Medico Legal Section of the NBI. That she conducted examination and made evaluation on the mental condition of the victim Vivian Enriquez when she was referred to their department by their Medico Legal Section. That victim Vivian Enriquez is premature or childish in her ways and her mental age is only of a five (5) years and ten (10) months old child. That her speech is delayed and she is playful. That she can also be taught to do something and relay things that she has experienced or happened (sic) to her. That victim is suffering from mental retardation. That she prepared a Neuro-Psychiatric Evaluation Report. That psychological test was conducted by Ma. Cynthia A. Alcuaz who concluded that Vivian Enriquez is within the mentally retarded group with a mental age of five years and ten months.

DR. MAXIMO REYES, Medico Legal Officer of the NBI, substantially testified that he conducted examination on the person of the victim. That he did not find physical injuries on the body of the victim on account of lapse of time. That he found old healed hymenal laceration which under the normal course could be caused by fully erected (sic) male organ. That the old hymenal laceration was inflicted for a long time. That he prepared the Living Case Report. On cross-examination, he said that the old healed hymenal laceration could have been inflicted more than three months ago. That hymenal laceration could also be caused by instrumentation, horse or bicycle riding and masturbation. 6 Version of the Defense Against the prosecution's theory that Vivian was raped by Accused-appellant Rodolfo San Juan in the empty house of his elder sister, the defense relies on denial, claiming that the accusedappellant spent almost half the day drinking tuba with his brothers-in-law and that, when he went to his sister's house that afternoon, he slept on the floor because he was already very tipsy. He claims not to have seen anybody else there. The defense presented three witnesses, to wit: the accused himself, his brother-in-law Domingo Jubilla, and Purificacion Roldan. Their testimonies were summarized by the trial court as follows: Accused (herein appellant San Juan) substantially testified that on September 30, 1988 from 9:00 in the morning, he was in his house and had a drinking spree with his brothers-in-law Domingo Jubilla, Jaime Jubilla, Jr. and Boy Jubilla up to 4:00 in the afternoon. That at about 4:00 in the afternoon, he left his companions and went to a nearby fence and answered to the call of nature. That the fence where he urinated is about 1 1/2 arms length to the place where his companions where (sic). That because he was drunk, he was not able to return to his companions and he went to the house of his sister which is about two arms length from where his companions were. That he was drunk that he could not stand without support or hold on solid thing and cannot recognize the things before him (sic). That upon entering the house of his sister, he almost stumbled down. That the house of his sister has no partition and the windows are made of glass and visible to the place where they had a drinking spree. That the house is also visible to the house of Vivian Enriquez which is about two arms length away. That he had not seen Vivian Enriquez. That the communal water system is near the house of his sister and about 1 1/2 arms length from the place he urinated. (sic) That while urinating, he heard voices of people coming from the communal water system. That he fell asleep at about 4:00 in the afternoon and woke up between 5:00 and 6:00 in the same afternoon. That when he woke up, he went home and noticed Vicente Enriquez and Junior Enriquez in their (Enriquez) yard. That when he reached home, he took a bath and changed his clothes to go to his stall at the "talipapa" in Dalandanan. That it is not true that he raped Vivian Enriquez. That it is not also true that he was on top of Vivian and inserted his sex organ inside her private part. That he was then sleeping. That there was no occasion that (sic) Vicente Enriquez confronted him on that day. That there was a misunderstanding that existed between him and Vicente Enriquez and/or his children in the past because they envy (sic) him since their (accused) financial standing improved. That there are (sic) times that they fought with each other that resulted to (sic) bodily harm/physical injuries.

PURIFICACION ROLDAN substantially testified that on September 30, 1988 between 5:00 and 6:00 in the afternoon she was at the artesian well located along the roadside fetching water. That there were many people fetching water at that time. That she the accused sleeping in the house of his (accused) sister located about two meters away from the faucet with the door and windows opened. (sic) That the accused was sleeping because he was drunk. That she saw Vivian Enriquez entered (sic) the house and stood (sic) inside the house and after about 30 seconds, her (Vivian) father and Junior Enriquez arrived and took her. That the house of the sister of the accused and the house of Vivian Enriquez is around four to five meters away. That after Vivian was brought home, there was altercation between Vivian's father Vicente and the accused. That they had a long time grudge and she saw them having heated argument on the New Year of 1988. DOMINGO JUBILLA substantially testified that on September 30, 1988 at 9:00 in the morning he was in the house of the accused at Isla, Valenzuela, Metro Manila on occasion of the baptismal party of the child of his (witness) elder brother Renato alias Boy held in the house of the accused because his brother do (sic) not own yet a house. That upon arriving in the house of the accused, he, his elder brother, the accused and the latter's elder brother had a drinking spree at the terrace of the house of the accused that lasted up to 5:00 in the afternoon. That at 5:00 in the afternoon, they left the accused sleeping in the house of his sister about one house away to (sic) the house of the accused. That he know (sic) that the accused was sleeping because they located him upon his (accused) wife (sic) request and found him sleeping inside his sister's house. That upon seeing the accused sleeping, they prepared to leave and go home. That they left the house of the accused at about 5:30 in the afternoon. That while in the house of the accused, he saw Vicente Enriquez and Vivian in their house looking out their window. 7 The Trial Court's Ruling Granting full credence and probative weight to the prosecution witnesses' testimonies, the trial court, on September 2, 1991, rendered its Decision convicting the appellant, viz.: In sum, the Court is convinced beyond doubt of the existence and commission of the offense. Vivian's mental deficiency, her lack of sufficient discretion, judgment and moral courage to seriously resist was taken advantage of by the accused who is experienced in the ways of life. WHEREFORE, finding the accused Rodolfo San Juan guilty beyond reasonable doubt of the offense charged in the complaint, he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA, with the accessory penalties prescribed by law and to pay the costs. Accused is hereby ordered to indemnify the offended party the sum of P20,000.00. 8 SO ORDERED. 9 The Issues

In his appeal brief, appellant through Counsel Manuel A. Dalucapas assignment of errors: 11 I

10

submitted the following

The lower court erred in giving full faith and credit to the testimonies of complainant and her witnesses, while rejecting altogether the truthful and credible testimony of accused-appellant which was corroborated by his witnesses. II The lower court erred in convicting the accused-appellant despite the prosecution's failure to prove his guilt beyond reasonable doubt. Ultimately, the errors assigned by the appellant may be reduced to the single issue of credibility of witnesses. The Court's Ruling The appeal is unmeritorious. Credibility of Witnesses In deciding this appeal, the Court is guided by three well-entrenched principles in reviewing rape cases, to wit: (a) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, though innocent, to disprove the charge; (b) considering that, in the nature of things, only two (2) persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and (c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence of the defense. 12 The foregoing principles involve questions of fact and credibility of witnesses particularly that of the offended party. In a long line of cases, it has been held that "the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and note their demeanor, conduct and attitude under grilling examination. These are the most significant factors in evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. Through its observations during the entire proceedings, the trial court can be expected to determine, with reasonable discretion, whose testimony to accept and which witness to disbelieve. Verily, findings of the trial court on such matters will not be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the

disposition of the case." 13 After a thorough scrutiny of the records of the case at bench, the Court finds that the trial court did not err in giving full faith and credence to the testimonies of Vivian and the other prosecution witnesses which it characterized as "clear, positive and convincing." 14 Complaining Witness Credible The mere fact that 26-year old Vivian had the mental development of a child 5 years and 10 months old does not lessen her credibility, since she has shown her ability to communicate her ordeal clearly and consistently. Her steadfast account of the rape both on direct and crossexamination are replete with details that jibe on material points. Moreover, her testimony, taken together with her father's, paints a convincing picture of the whole sordid incident. Her positive identification of Rodolfo San Juan as the one who raped her is credible because she knew and recognized Appellant San Juan, her neighbor. Furthermore, Vivian's mental age lends credence to her testimony. Considering her childlike naivete and innocence, it is indeed highly unlikely for her to testify so tenaciously and convincingly on the details of the rape if she has not in fact suffered such crime at the hands of appellant. It has been held that "no woman especially one who is of tender age would concoct a story of defloration, allow an examination of her private parts and thereafter permit herself to be subjected to a public trial, if she is not motivated solely by the desire to have the culprit apprehended and punished." 15 No Fixed Reaction to a Shocking Crime The defense assails the credibility of Vicente and Vivian's testimonies by asserting that some portions thereof are "at odd (sic) with natural human experience." 16 Vicente allegedly saw the appellant raping his daughter for one or two minutes, yet he and his son 17 who was then with him did not stop the alleged rape or utter a word of outrage.18 Appellant argues further that "[i]f it were true that she was raped and shouted for help, then the people present in the artesian well fetching water should have heard her considering that the well is only 3 or 4 meters away from the place of the incident. Experience has proved beyond cavil that when a lady is being abused, she will shout on the top of her voice to attract the attention of the persons around the vicinity to lend a helping hand. This is specially true in the present case considering that Vivian never testified that the appellant covered her mouth during the incident." 19 After a thorough study of the records in this case, the Court is convinced that the reaction of Vicente and his son, Junior, when they witnessed the rape of Vivian, is not contrary to human experience as to be unbelievable. We have repeatedly ruled that "the workings of the human mind placed under a great deal of emotional and psychological stress (such as during rape) are unpredictable, and different people react differently. There is no standard form of human behavioral response when one is confronted with a strange, startling, frightful or traumatic experience some may shout, some may faint, and some may be shocked into insensibility." 20 In People vs. Villaruel, 21 Appellant Villaruel assailed Eyewitness Rosaleo Cagado's "supposed unusual behavior in just watching appellant assault his victim instead of putting a stop to it, or at least calling for help." The Court ruled there that "(w)hile it may be true that Rosaleo Cagado acted in a rather odd manner, he could not be faulted for being indecisive. There is no standard rule by which witnesses to a crime may react thereto." (Emphasis supplied.) In the present case, that Eyewitnesses Vicente and Junior had probably been shocked into inaction at the sight of Appellant San Juan raping Vivian should not detract from the credibility of their testimonies.

Nonetheless, it should be observed that Vicente and his son subsequently recovered from their shock and sprang in pursuit of the appellant. This may be gleaned from the testimonies of both father and daughter. Vivian testified to the following: FISCAL VICENTE: That is very fair to the witness, I am only asking if (she) had seen her father. COURT: Witness may answer. WITNESS: A I saw him through the window. xxx xxx xxx Q How about Mang Rudy, what did he do when he saw your father through the window? A When Mang Rudy saw my father, he ran away. 22 This confirms the following testimony of Vicente: Q What happened when you arrived at that house finding your daughter and the accused in that position and appearance? A Then he rose up and put on his pair of short pants his brief and short pants and jumped out of the window. Q What did you do when you saw the accused jumped out of the window? A We chased him. Q When you said "we", who was your companion in chasing the accused? A My son Junior. Q Where did the accused go? A He jumped over the fence, I did not follow him anymore and he proceeded to his house. Q What did you do when you desisted from chasing the accused up to his house? A I returned to the place where my daughter was. 23 (Emphasis supplied.) Corollarily, in stating that he watched the rape for one or two minutes, Vicente did not necessarily determine the duration on the basis of a timepiece. He merely gave an estimate of what then felt to him to be one or two minutes. His subjective sense of time under such distressful circumstances cannot be deemed exactly accurate. Equally bereft of merit is the argument of the defense that Vivian's testimony is incredible. Appellant contended that her alleged cries for help would have been heard by the people fetching water from the artesian well just three or four meters from the nearby house. But as the Solicitor General astutely and correctly states, "(b)eing a mentally retarded woman, and in a state of shock and surprise, Vivian may have mistaken her plea for help as loud outcries albeit in truth, her voice was muffled." 24 Her voice could have been silenced by shock. This was supported by the fact that at no instance did Vivian testify that her mouth had been covered by appellant. Parenthetically, that the rape took place in a house with people nearby does not diminish the credibility of Vivian's rape charge. "In a long line of rape cases, the Court has held that rape can be committed even in places where people congregate, in parks, along the roadside, within school premises and even inside a house where there are other occupants or where other members of the family are also sleeping. Lust is no respecter of time and place."25 Hymenal Laceration Not Vital to Proving Rape The defense submits that "Dr. Maximo Reyes, the Medico-Legal Officer of the NBI who conducted the medical examination on the victim, . . . ruled out the commission of rape on the date complained of and alleged in the Information instituted by the Fiscal. The victim was examined on October 1, 1988 whereas, the alleged commission of the rape took place on

September 30, 1988. And Dr. Reyes found out that the injury in the hymen of the victime ( sic) was inflicted more than three (3) months before the medical examination." 26 This argument does not defeat Vivian's assertion that Appellant San Juan raped her that fateful afternoon. We reiterate the well-settled doctrine that ". . . lack of lacerated wounds does not negate sexual intercourse. Moreover, the fact that hymenal lacerations were found to be 'healed round edge' and that no spermatozoa was found does not necessarily negate rape. A freshly broken hymen is not an essential element of rape. For that matter, in crimes against chastity, the medical examination of the victim is not an indispensable element for the successful prosecution of the crime, as her testimony alone, if credible, is sufficient to convict the accused thereof," 27 as in this case. The fact that Vivian had an old, healed hymenal laceration only gives credence to her testimony that she was raped several times before by the appellant. 28 Mental Retardate Incapable of Giving Consent The mere fact that Vivian was mentally retarded, the defense argues, "should not work against the appellant as the former is a normal person after all." 29 In support of this contention, the defense cites the testimony of prosecution witness and psychiatrist, Dr. Erlinda Martin: Fiscal Vicente: (To the witness) Q We would like to solicit your opinion on this matter whether a person although 26 years old but with a mental state of 5 years and 10 months child, can resist seriously a sexual abuse on her person? A She has a mental age of 5 years old, but she can be placed in equal footing to a normal person. (TSN, December 17, 1990, p. 13). The defense then quotes from her cross-examination as follows: Q Now if your actual age is 26 but your mental age is 5 years old only, is there still coherency (of) action or intelligence in the answer that you can extract from the subject? A Yes, that would be equivalent to her mental age (TSN, December 17, 1990, p. 24). xxx xxx xxx

vs. Manlapaz, 88 SCRA 704, We held that the victim, 13 years old at the time of the commission of the act but with the mentality of a 5-year old child, "is incapable of giving rational consent to the carnal intercourse." And in the case of People vs. Gallano, 108 SCRA 405, the judgment of conviction by the trial court was affirmed by Us because complainant Victoria Micaller, who was then 31 years old at the commission of the act but had the mentality of a 7-year old child, "is a retardate or one mentally ill, such that she was incapable of offering any effective or real resistance to appellant's sexual assault (p. 407, Id.). . . Her mental condition was such that she would not resist sexual advances because she was so deprived of reason to make any effective resistance. Hence, by being so deprived, the act is made possible in the same way when there is active resistance but same is overcome by force and threat, which is the essence of the crime of rape (p. 413, Id.). Assuming that complainant . . . voluntarily submitted herself to the bestial desire of appellant still the crime committed is rape under paragraph 3 of Article 335 of the Revised Penal Code. This is so even if the circumstances of force and intimidation, or of the victim being deprived of reason or otherwise unconscious are absent. The victim has the mentality of a child below seven years old. If sexual intercourse with a victim under twelve years of age is rape, then it should follow that carnal knowledge with a seventeen-year old girl whose mental age is that of a seven year old child would constitute rape. 30 (Emphasis supplied.) In any case, Dr. Martin's assertions support the earlier conclusion regarding the admissibility of Vivian's testimony in view of the quality of her perceptions and her ability to communicate these to the court. No False Accusation of Rape The contention of the defense that "the complaint was initiated merely because of the long time grudge by Vicente Enriquez on (sic) the appellant," 31 deserves scant consideration. We reiterate that "it is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject a daughter to embarrasment and even stigma." It is plainly inconceivable that Vicente would expose his mentally retarded daughter Vivian, whom he had loved and cared for through the years, to the travails and indignities accompanying a rape trial out of mere spite for his neighbor Rodolfo San Juan over some petty spats. Indeed, it is improbable that a father would prejudice his own daughter if he "was not motivated by an honest desire to have the culprit punished." 32 Weight and Sufficiency of Evidence

Q Now, in layman's language, please explain to us your findings on the subject that she is coherent. A Coherent is tama ang sinasabi (TSN, December 17, 1990, pp. 25-26). Dr. Martin's testimony that Vivian was coherent and able to communicate her perceptions on the stand cannot in any way support the submission that she was a "normal person" capable of giving lawful consent to a sexual intercourse. The defense overlooked well-entrenched doctrines laid down by this Court, to wit: The issue . . . that a mentally retarded woman could not have given valid and legal consent to the sexual act is not new. In the case of People

In sum, the Court finds Vivian's testimony, together with the testimonies of the other witnesses of the prosecution, overwhelmingly straightforward, logical and convincing as to be worthy of belief and impervious to a mere denial by Appellant San Juan. "It is a well-settled rule that an affirmative testimony is far stronger than a negative testimony, especially so when it comes from the mouth of a credible witness . . ." 33 Therefore, we agree with the trial court that the evidence for the prosecution has proved beyond reasonable doubt that Appellant Rodolfo San Juan is guilty of the crime of rape. This conclusion is reached pleno jure. However, the indemnity of P20,000.00 awarded by the trial court to Vivian must be increased to P50,000.00 pursuant to prevailing jurisprudence. 34

WHEREFORE, the appeal is DENIED and the questioned Decision of the trial court, finding Appellant Rodolfo San Juan guilty beyond reasonable doubt of the crime of rape and imposing on him the penalty of reclusion perpetua is hereby AFFIRMED. The indemnity in favor of Complainant Vivian Enriquez is hereby INCREASED to fifty thousand pesos (P50,000.00). SO ORDERED. G.R. No. 126367 June 17, 1999 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIONISIO MONFERO y SOLTE, accussed-appellant. ROMERO, J.: Hell hath no fury like a woman scorned." On this adage, the accused-appellant erects the foundation of his defense. By presenting his victim, the complainant herein, as a spurned lover driven by blind rage and jealousy to concoct rape charges against him, accused-appellant attempts to impress upon this Court that whatever sexual relations he and the complainant had were purely consensual and voluntary. We are not persuaded. Dionisio Monfero alias Harold Monfero was indicted before Branch 33 of the Regional Trial Court of Siniloan, Laguna for three (3) counts of rape committed on January 6, 23, and 30, 1992 respectively. Except for the time and date, the three informations filed against Monfero and docketed as Crim. Cases Nos. S-1456, S-1457, and S-1458, were identically worded as follows: That on or about . . . o'clock in the afternoon of January . . ., 1992 at Barangay G. Redor, Municipality of Siniloan, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused with lewd design and by means of force and violence, did then and there wilfully, unlawfully and feloniously have sexual intercourse with one MaryJane P. Calinagan, a 14 year old girl against her will and consent to her damage and prejudice. CONTRARY TO LAW. 1 On arraignment, accused-appellant entered a plea of not guilty to each of the informations. Hence, the cases were consolidated for trial. In a decision dated January 27, 1995, the trial court convicted and sentenced accused-appellant as follows: WHEREFORE, premises considered, judgment is hereby rendered finding accused DIONISIO MONFERO y SOLTE alias HAROLD MONFERO Guilty beyond reasonable doubt of the three (3) crime (sic) of rape as charged. In Criminal Case No. S-1456 to undergo imprisonment of RECLUSION PERPETUA and to pay the victim the amount of P30,000.00 as moral damages. In Criminal Case No. S-1457 to undergo imprisonment of RECLUSION PERPETUA and to pay the victim the amount of P30,000.00 as moral damages.

In Criminal Case No. S-1458 to undergo imprisonment of RECLUSION PERPETUA and to pay tile victim the amount of P30,000.00 as moral damages. In all these three (3) cases to pay the sum of P20,000.00 as Attorney's fee and to pay the cost. SO ORDERED. 2 The facts, as established by the prosecution, are as follows: In January 1992, private complainant Mary Jane Calinagan, a thirteen-year old barrio lass living with her mother and sister in Siniloan, Laguna, was a Grade V student at the Siniloan Elementary School. At that time, accused-appellant Dionisio Monfero alias Harold Monfero was also residing with Mary Jane's family together with his live-in partner Vangie Vargas, a friend of Mary Jane's mother. On January 6, 1992, Mary Jane was alone in their house resting as she was then afflicted with smallpox. 3 At around 3:00 o'clock in the afternoon, accused-appellant Monfero arrived and asked about the whereabouts of her mother and Vangie Vargas. Mary Jane replied that her mother was at the house of Atty. Salvador Reyes watching "betamax" while Vangie was in Balian, Pangil, Laguna making paper mache. After learning that Mary Jane was alone in the house, accused-appellant suddenly embraced her and forcibly removed her pair of shorts and panty. He covered her mouth with his arm and pushed her near the stairs. Being sick, she could not resist his advances successfully. As he held her down, he removed his pants and brief and laid on top of her, causing her pain as he inserted his penis into her vagina. When he was done, accused-appellant got up and used a T-shirt to wipe his penis and her vagina. It was then that Mary Jane saw that she was bleeding. Before he left, Monfero threatened to kill her, her mother, and her sister if she reported the incident. Her mother returned home at 4:00 o'clock in the afternoon while Monfero's live-in partner, Vangie, arrived at 7:00 o'clock that evening. Afraid that the accused would carry out his threat, Mary Jane kept silent about her ordeal. 4 On January 23, 1992, Mary Jane was again violated by Monfero. At around 2:00 o'clock in the afternoon, accused-appellant arrived at her house and finding her alone, he again forced himself on her. In her attempt to free herself from the accused, her shorts and T-shirt were torn. After removing her shorts and panty, Monfero pushed Mary Jane near the stairs and placed himself on top of her while at the same time kissing her and touching her breasts. She continued to fight him but as before, she did not succeed for he was too strong for her. Mary Jane testified that, unlike the first sexual assault, the second rape caused her less pain and she did not bleed as much. In both instances, however, accused-appellant was able to penetrate her. 5 After satisfying his lust, Monfero left but not without warning her not to report the incident to anyone. The third rape happened on January 30, 1992 at around 3:00 o'clock in the afternoon. Being alone in their house, as before, Mary Jane was once again abused by Monfero. In a standing position, accused-appellant tried to insert his penis into her vagina but did not succeed in penetrating her. Before he left, he threatened her again. It was only in June 1992 that Mary Jane told her mother about her ordeal in the hands of Monfero. Eugenia Paguinto, noticing that her daughter was gaunt and pale, compelled the latter to reveal the dastardly acts of the accused. No formal complaint was immediately filed as Eugenia got sick and had to be hospitalized. Upon learning of the rapes, however, Eugenia drove Monfero and Vangie out of their house. 6

On July 13, 1992, Mary Jane's uncle, Federico and her grandfather accompanied her to the General Cailles Memorial Hospital where she was examined by Dr. Aurora Cantara. The physical examination revealed that Mary Jane's hymen had healed lacerations at 3 o'clock and 9 o'clock and her vagina admits a finger with minimum resistance. Thereafter, on July 17, 1992, Mary Jane assisted by her mother filed the three complaints for rape. While the case was pending trial, relatives of the accused-appellant offered to settle the cases filed against Monfero and even proposed that the latter and Mary Jane get married. Mary Jane refused even as her mother was open to the proposition at first. Later, however, Eugenia decided to support her daughter in her decision to pursue the rape charges. Accused Dionisio Monfero alias Harold Monfero, 31 years old at the time of the trial and single, was making a living as a tricycle driver when he committed the alleged rapes. For his part, Monfero claims as his defense that he and Mary Jane were sweethearts and that whatever sexual relations they had were purely voluntary and consensual. He testified that he first met Mary Jane on October 10, 1991 when she happened to board his tricycle on her way home with her sister Annabelle. Upon reaching their house, Mary Jane told accused-appellant that she wanted to introduce him to her mother. Since then, he became a regular visitor of Mary Jane, courting her for about three months until they became sweethearts. Monfero further claimed that during said courtship, he became close to Mary Jane's mother, even calling her "biyenan." In fact, he contended, it was with Eugenia's consent that he and Mary Jane lived together as husband and wife from January to July 1992. He likewise maintained that he was the one who paid for Mary Jane's tuition fee at Laguna State Polytechnic College where she was enrolled as a first year high school student. According to Monfero, during the time they lived together, he and Mary Jane had sexual intercourse almost every day. He claimed that many people knew about their cohabitation his fellow tricycle drivers, his neighbors in Bgy. Isla, even Mary Jane's family, including her mother who often visited them at Bgy. Isla to bring food. As to why Mary Jane filed the complaints for rape against him, Monfero explained that she was driven by jealousy because she had suspected that he was having an affair with Vangie Vargas. Moreover, he added, Mary Jane's mother got mad at him when she learned that the wedding plans could not push through as he did not have enough money to pay for the expenses. To corroborate accused-appellant's claims, the defense presented a signed resolution signed by the members of the Tricycle Drivers Association of Pangil, Laguna attesting to the fact that Monfero and Mary Jane indeed cohabited from January to July 1992. The defense also presented Monfero's mother, the president of the tricycle drivers association, Vangie Vargas, and some of his neighbors as witnesses to support Monfero's version of the facts. At the outset, worth recalling are the three guiding principles in rape prosecutions. First, an accusation for rape is easy to make, difficult to prove and even more difficult to disprove. Second, in view of the intrinsic nature of the crime, the testimony of the complainant must be scrutinized with utmost caution. And third, the evidence of the prosecution must stand on its own merits and cannot draw strength from the weakness of the evidence of the defense. 7 With these principles in mind, this Court finds no cogent reason to reverse accused-appellant's conviction. As shown in the transcripts of her testimony, on direct and cross examination, Mary Jane vividly narrated how accused-appellant raped her on three occasions. Thus, on direct examination, she testified: Atty. Fadul

Q And when this accused Harold Monfero arrived at your residence in Brgy. G. Redor Street, Siniloan, Laguna, what did he ask you if any? A He asked me about my mother's whereabouts and I informed him that my mother was in the house of Atty. Reyes watching betamax. Q And how about the live in partner of Harold Monfero, where was she on that time? A She was in Balian making pap(i)er mache. Q What did Harold Monfero do after asking those questions and you answered him? A He suddenly embraced me. Q Aside from embracing you, what else did he do to you? A He removed my short(s) and panty Afterwards, he covered my mouth with his arm. Q And did you exert effort to evade him? Atty. Bellosillo Leading, Your Honor. Court: May answer. A Yes, sir. Atty. Reyes Q What did you do when you said you resisted him? A I tried to evade him by removing his hands. But he pushed me near the stairs. Q Were you able to put aside his hands? A Because during that time I was very weak because of my small pox. Q And afterwards, what happened next when you were pushed according to you? A After he removed my short and panty, he put off his pants and brief. Q And after removing his pants and brief, what did he do? A He laid on top of me. Q And after lying on top of you, what did he do? A He inserted his penis inside my vagina and it was very painful. There was blood. I do not know if he was already finished with his desire when he rose and got a Tshirt and used it in wiping his penis and my vagina and threatened me that if I will report the matter, he will kill me, my mother and my sister. xxx xxx xxx Q How about on January 23, 1992 at about 2:00 in the afternoon, where were you? A Also in our house. Q And did you have any visitor on that date and hour? A None sir. Q How about accused Harold Monfero? A He was there. Q What happened if there was anything? A He again abused me. Q When you said he again abused you, what did he do specifically? A He removed my short(s), panty, lady sando and he removed his pants and brief. Q How did he remove your short(s) and panty, will you inform the Court? A He forcibly removed my short(s) while I was resisting, in the process, the automatic was cut off and he was able to remove my T-shirt which was torn. Q After removing your short(s) and panty, what did the accused do next? A I went near our stairs and the accused placed himself on top of me while I was resisting but I was not able to evade him because he was very strong. Q Aside from lying on top of you, what else did he do to you? A He kissed my neck and at the same time touching my bust. Q How long (did) Harold Monfero laid (sic) on top of you?

A Around five to seven minutes sir. Q Do you know whether the sexual intercourse have been committed ( sic) by the accused and you? A I do not know. Q Was there blood after the sexual intercourse? A During the first time that he abused me, there was blood, plenty, but the second time he abused me, only few drops of blood. Q Did the accused (leave) after the sexual intercourse (with) you? A Before he left, he threatened to kill me, my mother, my brother and in addition thereto, he threatened to kill my uncle as well as Atty. Reyes. xxx xxx xxx Q How about on January 30, 1992, more or less 3:00 in the afternoon, did you have occasion to see Harold Monfero alias Dionisio (sic)? A Yes, sir. Q What transpired there, when Harold Monfero arrived? A He went inside our house while looking outside (sic) and I told him not to go inside anymore but he approached me and touched my shoulder. Q Did you consent with (sic) the touching of your shoulder? A No, sir because it was very painful. Q What else did he do with you aside from touching your shoulder? A While he was holding my shoulder, he opened the (zipper) of my pants and removed my pants and panty and he removed his pants. Q Aside from his pants, what did he remove? A No more. Q You mean to say he has no brief? A I have said already that he removed his pants as well as his brief. Q After removing his pants and brief, what did he do to you? A He embraced me and while we were standing by the door, he inserted his penis inside my vagina. Q You mean to say you were in the standing position? A Yes, sir. Q Was he able to have his penis penetrate your private part? A No, sir. Q And how long did he have this thing done to you? A For a short time only sir. Court: After that, what else happened? A He did not threatened (sic) me anymore because I did not report the first and second threat but he said that he will push through with his threat if I will report the matter. Court: In that incident, was he able to insert his penis to your private part? A No, Your Honor. Court: (What) (a)bout in the first incident? A Yes, Your Honor. Court: (What) (a)bout in the second incident? A Yes, Your Honor. Court: More or less on the first incident, what time did it (take) place? A Around 3:00 in the afternoon Your Honor. Q (What) (a)bout the second time? A More or less 2:00 in the afternoon Your Honor.

Court: The third time? A 3:00 in the afternoon. xxx xxx xxx 8 From the evidence adduced at the trial, there is no dispute that Mary Jane is no longer a virgin. A medical examination of her genitalia revealed healed hymenal lacerations. In fact, the accused himself admitted having had carnal knowledge of Mary Jane but he denied having raped her, claiming that she consented to have sex with him as they were living together as husband and wife from January to July 1992. Well settled is the rule that when an alleged victim of rape says she was violated, she says, in effect, all that is necessary to show that rape has been inflicted on her and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof. 9 Certainly, no woman, especially one who is of tender age, would concoct a story of defloration, allow an examination of her private parts and thereafter permit herself to be subjected to a public trial if she is not motivated solely by the desire to have the culprit apprehended and punished. 10 With respect to the first and second sexual assaults, Mary Jane was certain that Monfero was able to penetrate her. In fact, she testified that she bled after each of the two rapes. As for the third rape, however, Mary Jane was unsure whether there was penetration or not, but she said she felt his penis touch her vagina. Thus, on cross examination, Mary Jane narrated: Q On the 3rd occasion, January 30, 1992, you said that was around 3:00 in the afternoon, you said that the accused allegedly was not able to insert his penis at (sic) your vagina, is it not correct? A I felt that his penis touched my vagina. Q That was only what you felt Miss witness, can you say that the penis was not able to go inside your vagina? A I do not know whether he was able to insert it or not, I just felt that it was touching my vagina. Q So, you were changing your answer that the accused was not able to insert his penis in your vagina because you felt that it only touched your vagina? A He was able to insert it sir. 11 Considering that Mary Jane is obviously an ingenue barely out of puberty and considering also their relative positions at that time, it is understandable that she was unable to categorically state whether or not accused-appellant was able to penetrate her fully. One thing she was sure about though was that Monfero's penis touched her vagina as he attempted to insert it into her genital. Well settled is the rule that full penetration of the vaginal canal is not an essential element of rape. The slightest introduction of the male organ into the labia of the victim already constitutes rape. 12

As for accused-appellant's claim that Mary Jane failed to show that she exerted sufficient resistance to Monfero's sexual advances, it is enough to point out that, in rape cases, it is not necessary that the victim should have resisted unto death. 13 Physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself, against her will, to the rapist's embrace because of fear for life and personal safety. 14 Actual resistance on the part of the victim is not an essential element of rape. What the victim should adequately prove is the use of force or intimidation by the alleged rapist. In any case, from Mary Jane's testimony during trial, it is clear that she tried to stop Monfero's advances during each of the three assaults but her efforts proved futile as her strength was no match to his. Furthermore, as held by this Court, the failure of the complainant to immediately report the rapes to her family or to the police authorities does not detract from her credibility, her hesitation being attributable to her age, the moral ascendancy of the accused-appellant and his threats against the former. 15 Regarding the alleged inconsistencies in the statements made by Mary Jane before and during trial, the same refer only to minor details that are not at all related to the incidents complained of. The Court has held that the credibility of a witness is not impaired where there is consistency in relating the principal occurrence and positive identification of the accused. Inconsistency on minor details is insignificant. Rather than eroding the credibility of the witness, such difference in fact constitutes a sign of veracity. 16 From the records, there is also nothing that would reveal that Mary Jane had a motive other than to bring her rapist to justice and vindicate her honor. Worth noting is the fact that when Mary Jane testified that her mother at first acquiesced to settle the case, she cried on the witness stand. 17 Her tears clearly evinced her frustration over her mother's willingness to come to a settlement. Besides, Mary Jane's sincere, straightforward and candid statements regarding the details of her rape by the accused-appellant hardly indicate that she was just weaving a tall tale to secure a conviction. It is doctrinal that the evaluation by the trial court of the testimony of a witness is accorded the highest respect because it has the direct opportunity to observe the witness' demeanor on the stand and determine if she is telling the truth or not. 18 The decision of the trial court is bereft of any finding that Mary Jane is a girl of loose morals as the accusedappellant holds her out to be. On the other hand, the "sweetheart theory" propounded by the defense hardly convinces the Court that accused-appellant is entitled to an acquittal. In the first place, Monfero's version of the facts is simply incredible. As Monfero would have us believe, Mary Jane introduced him to her mother the same day they first met and three months later, agreed to live and have sex with him. That a thirteen-year old barrio lass would voluntarily have a relationship with a man more than twice her age is already hard enough to conceive. Even harder to accept is the claim that the girls mother consented to it. Certainly, these circumstances do not conform to reality. As the Solicitor General put it, evidence to be believed, must not only come from a credible source but must also be credible in itself. It must be natural and in conformity with human experience. As to Monfero's claim that Mary Jane and her mother fabricated the rape charges because they suspected that he was having an affair with Vangie Vargas and because he did not have enough money to finance his wedding to Mary Jane, the same strains one's credibility. Even when consumed with hate and revenge, it would take a certain degree of moral depravity for a girl to concoct a story, publicize occurrences that cast a stain on her honor, and drag her entire family to shame just to sate her need for vengeance. As for Mary Jane's mother, it is unnatural for a parent to use her offspring as an engine of malice if it will subject her to embarrassment and even stigma. 19Moreover, as the Court ruled in a similar case,"(n)o mother would stoop so low as to subject her daughter to the hardships and shame concomitant to a rape prosecution just to assuage her own hurt feelings. It is unthinkable that a mother would sacrifice her daughter's honor to satisfy a grudge, knowing fully well that such an experience would certainly damage her

daughter's psyche and mar her entire life. A mother would not subject her daughter to a public trial with its accompanying stigma on her as the victim of rape, if said charge is not true." 20 Regarding the document signed by Monfero's fellow tricycle drivers attesting to the fact that he and Mary Jane lived together as husband and wife from January to July 1992, the same has no probative value because, as the Solicitor General correctly observed, it was not subscribed to before a person authorized by law to take sworn statements. Neither was the attestation affirmed by the signatories on the witness stand. Although the president of the "tricycle drivers" association, Rene Gabatan, was presented as defense witness to identify the said certification and to testify about Monfero and Mary Jane's alleged relationship, his testimony hardly helped in exculpating the accused-appellant. In the first place, according to Gabatan, the said certification was prepared and signed at the request of accused-appellant's mother. Second, the transcripts of Gabatan's testimony clearly show the inconsistencies in his statements. For instance, Gabatan earlier testified that he knew that Monfero and Mary Jane were living together as husband and wife in accused-appellant's house in Brgy. Isla. However, on further questioning, he admitted that he had never been to Monfero's house and that he only saw the latter and Mary Jane riding the tricycle together and on another occasion, when Mary Jane allegedly accompanied Monfero to one of the association's meetings. 21 Furthermore, on cross-examination, he completely changed his answers to the questions propounded to him after being reminded that he could be held liable for perjury if he lied. Thus, Court: And you know for a fact that if you are telling a lie before this Court, you will be punished for perjury? A I know that, sir. Q You are very sure that you saw Harold Monfero and Mary Jane Calinagan in the month of January 1992? A I saw them sir. Q You will not change your answer? A I cannot tell whether it was in January 1992. xxx xxx xxx Court: How about on February, 1992? A I am not sure. I think it was in the month of May because I called for a meeting during that month, your Honor. (On Redirect) Q Mr. witness, you stated that you used to see Harold Monfero and the victim Mary Jane Calinagan always together in a tricycle, is that correct? A Not always, sir. Q But you used to see Harold Monfero and the victim Mary Jane Calinagan together in a tricycle? A Not very often, sir. Q Can you still recall Mr. witness, how often did you see the accused and Mary Jane Calinagan together? A I do not remember because the incident does not call my attention. I do not mind them together. Court: How about in the house of Harold Monfero, have you seen them together? A No, your Honor. Atty. Gatdula: But you know that the victim resides also in the house of Harold Monfero? A I know nothing about that. Q How come you testified before this Court that they are living together as husband and wife? A I just said that they were together on a tricycle. Court: But you have not informed this Court that they were living together as husband and wife? A I did not said (sic) that, your Honor.

Q But you always see them from the period of January up to July that the accused and the victim were together? A Sometimes. 22 The defense presented other witnesses and evidence to support accused-appellant's "sweetheart theory," but the trial court did not give credence to the same and we find no reason to hold otherwise. All told, it appears that the alleged love affair between Monfero and Mary Jane is but a mere fabrication by the former to exculpate himself from the rape charges filed against him. In a similar case where the "sweetheart theory" was also used as a defense, the Court ruled that the absence of love notes, mementoes or pictures casts doubt on the accused's claim that he and the victim were sweethearts. 23 Being an affirmative defense, the allegation of a love affair must be supported by convincing proof. This accused-appellant failed to do. In any case, being sweethearts does not prove consent by the complainant to the sexual act. 24 A love relationship, even if true, will not necessarily rule out force. 25 In view of the circumstances of this case, we find that the accused-appellant is guilty of all the charges under Article 335 of the Revised Penal Code: Art. 335. When and how rape is committed Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; xxx xxx xxx The crime of rape shall be punished by reclusion perpetua. xxx xxx xxx As regards the civil liability of the accused-appellant, the award of P30,000 in moral damages should be increased to P50,000 for each count of rape in line with current jurisprudence. 26 In People vs. Prades, 27 we held that "the fact that complainant suffered the trauma of mental, physical and psychological sufferings which constitute the bases for moral damage are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assumes and acknowledges such agony on her part as a gauge of her credibility. What exists by necessary implication as being ineludibly present in the case need not go through the superfluity of still being proved through a testimonial charade. Moreover, accused-appellant is likewise liable to pay his victim P50,000.00 as civil indemnity for each rape committed. WHEREFORE, premises considered, the appeal is hereby DENIED and the judgment of the lower court is AFFIRMED with the MODIFICATION that for each of the three counts of rape, accused-appellant is ordered to pay the victim P50,000 as civil indemnity and P50,000 as moral damages. Costs against the appellant.1wphi1.nt SO ORDERED. G.R. Nos. 118441-42 January 18, 2000

ARMANDO JOSE y PAZ and MANILA CENTRAL BUS LINES (MCL), represented by its General Manager MR. DANILO T. DE DIOS, petitioners, vs. COURT OF APPEALS, ROMMEL ABRAHAM, represented by his father FELIXBERTO ABRAHAM, JOSE MACARUBO and MERCEDES MACARUBO, respondents. MENDOZA, J.: This is a petition for review on certiorari of the decision1 of the Court of Appeals, reversing the decision of the Regional Trial Court, Branch 172, Valenzuela, Metro Manila and ordering petitioners to pay damages for injuries to persons and damage to property as a result of a vehicular accident. The facts are as follows: Petitioner Manila Central Bus Lines Corporation (MCL) is the operator-lessee of a public utility bus (hereafter referred to as Bus 203) with plate number NVR-III-TB-PIL and body number 203. Bus 203 is owned by the Metro Manila Transit Corporation and is insured with the Government Service Insurance System.1wphi1.nt On February 22, 1985, at around six o'clock in the morning, Bus 203, then driven by petitioner Armando Jose, collided with a red Ford Escort driven by John Macarubo on MacArthur Highway, in Marulas, Valenzuela, Metro Manila. Bus 203 was bound for Muntinlupa, Rizal, while the Ford Escort was headed towards Malanday, Valenzuela on the opposite lane. As a result of the collision, the left side of the Ford Escort's hood was severely damaged while its driver, John Macarubo, and its lone passenger, private respondent Rommel Abraham, were seriously injured. The driver and conductress of Bus 203 rushed Macarubo and Abraham to the nearby Fatima Hospital where Macarubo lapsed into a coma. Despite surgery, Macarubo failed to recover and died five days later. Abraham survived, but he became blind on the left eye which had to be removed. In addition, he sustained a fracture on the forehead and multiple lacerations on the face, which caused him to be hospitalized for a week. On March 26, 1985, Rommel Abraham, represented by his father, Felixberto, instituted Civil Case No. 2206-V-85 for damages against petitioners MCL and Armando Jose in the Regional Trial Court, Branch 172, Valenzuela. On July 17, 1986, the spouses Jose and Mercedes Macarubo, parents of the deceased John Macarubo, filed their own suit for damages in the same trial court, where it was docketed as Civil Case No. 2428-V-86, against MCL alone. On the other hand, MCL filed a third-party complaint against Juanita Macarubo, registered owner of the Ford Escort on the theory that John Macarubo was negligent and that he was the "authorized driver" of Juanita Macarubo. The latter, in turn, filed a counterclaim for damages against MCL for the damage to her car. Civil Case No. 2206-V-85 and Civil Case No. 2428-V-86 were consolidated and later tried jointly. The facts, as found by the trial court, are as follows: In Civil Case No. 2206-V-85, the Court heard the testimonies that during the night previous to the accident of February 22, 1985 at 6:15 a.m., Rommel Abraham and John Macarubo were at a party. There was therefore, no sleep for them, notwithstanding testimony to the contrary and the service of drinks cannot be totally discounted. After the party at 11 p.m., while both Rommel and John were enroute home to Valenzuela from La Loma, the car encountered mechanical trouble and had to be repaired as its cross-joint was detached. The defect of a cross-joint is not minor and repair thereof would as testified to by Rommel lasted up to early dawn and the car started to run only after five o'clock in the morning. With lack of sleep, the strains of a party still on their bodies, and the attention to the repair coupled with the wait until the

car was ready to run, are potentials in a driver for possible accident. The accident happened at 6:15 a.m. when the physical and mental condition of the driver John Macarubo was as expected not too fit for the driving as he could not anymore control the car. The desire to be home quick for the much needed sleep could have prompted him to overtake the preceding vehicle. Indeed the pictures taken of the two vehicles (Exh. 1, 2 and 3) will clearly show that the MCL bus was at its proper lane and not in an overtaking position while the car driven by John Macarubo was positioned in a diagonal manner and crossed the line of the MCL, which is an indication of an overtaking act. If it were the bus that was overtaking at the time, the car would have been thrown farther away from the point of the impact. The court is convinced of the close supervision and control of MCL over their drivers, and its exercise of due diligence in seeing to it that no recklessness is committed by its employees, drivers especially, from the unrebutted testimonies of Cesar Cainglet. The Court noted the respective damages of the two vehicles especially the point of the impact. From these damages as shown by the picture, it can be clearly deduced which vehicle did the bumping. It was the car driven by John Macarubo that hit the MCL which was on its right and correct lane.2 Based on the foregoing facts, the trial court rendered judgment on September 28, 1989, dismissing both civil cases against MCL and ruling favorably on its third-party complaint against Juanita Macarubo, ordering the latter to pay MCL P54,232.12 as actual damages, P24,000.00 for lost income, and P10,000.00 as attorney's fees. Rommel Abraham, the Macarubo spouses, and third-party defendant Juanita Macarubo then appealed to the Court of Appeals which, on December 21, 1994, rendered a decision reversing the decision of the trial court. It held (1) that the trial court erred in disregarding Rommel Abraham's uncontroverted testimony that the collision was due to the fault of the driver of Bus 203; (2) that the trial court erred in relying on photographs (Exhs. 1-3) which had been taken an hour after the collision as within that span of time, the positions of the vehicles could have been changed; (3) that the photographs do not show that the Ford Escort was overtaking another vehicle when the accident happened and that John Macarubo, its driver, was negligent; and (4) that MCL failed to make a satisfactory showing that it exercised due diligence in the selection and supervision of its driver Armando Jose. The dispositive portion of the decision reads: WHEREFORE, the appealed decision is hereby REVERSED and the defendants-appellees MCL and Armando Jose are adjudged to pay jointly and severally: 1. Rommel Abraham, represented by his father Felixberto Abraham: (a) P37,576.47 as actual damages; (b) P50,000.00 as compensatory damages; (c) P15,000.00 as moral damages; (d) P5,000.00 as exemplary damages; and (e) P10,000.00 as attorney's fees.

2. The heirs of John Macarubo: (a) P50,000.00 as indemnity for his death; (b) P50,000.00 as moral damages; (c) P10,000.00 as exemplary damages; and (d) P10,000.00 as attorney's fees. Costs against the appellees. SO ORDERED. Hence, this petition for review on certiorari. Petitioners MCL and Armando Jose raise four issues which boil down to the question whether it was the driver of Bus 203 or that of the Ford Escort who was at fault for the collision of the two vehicles. It is well-settled that a question of fact is to be determined by the evidence offered to support the particular contention.3 In the proceedings below, petitioners relied mainly on photographs, identified in evidence as Exhibits 1 to 3, showing the position of the two vehicles after the collision. On the other hand, private respondents offered the testimony of Rommel Abraham to the effect that the collision took place because Bus 203 invaded their lane. 4 The trial court was justified in relying on the photographs rather than on Rommel Abraham's testimony which was obviously biased and unsupported by any other evidence. Physical evidence is a mute but an eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence.5 In criminal cases such as murder or rape where the accused stands to lose his liberty if found guilty, this Court has, in many occasions, relied principally upon physical evidence in ascertaining the truth. In People v. Vasquez,6 where the physical evidence on record ran counter to the testimonial evidence of the prosecution witnesses, we ruled that the physical evidence should prevail.7 In this case, the positions of the two vehicles, as shown in the photographs (Exhs. 1 to 3) taken by MCL line inspector Jesus Custodio about an hour and fifteen minutes after the collision, disputes Abraham's self-serving testimony that the two vehicles collided because Bus 203 invaded the lane of the Ford Escort and clearly shows that the case is exactly the opposite of what he claimed happened. Contrary to Abraham's testimony, the photographs show quite clearly that Bus 203 was in its proper lane and that it was the Ford Escort which usurped a portion of the opposite lane. The three photographs show the Ford Escort positioned diagonally on the highway, with its two front wheels occupying Bus 203's lane. As shown by the photograph marked Exhibit 3, the portion of MacArthur Highway where the collision took place is marked by a groove which serves as the center line separating the right from the left lanes. The photograph shows that the left side of Bus 203 is about a few feet from the center line and that the bus is positioned parallel thereto. This negates the claim that Bus 203 was overtaking another vehicle and, in so doing, encroached on the opposite lane occupied by the Ford Escort. Indeed, Bus 203 could not have been overtaking another vehicle when the collision happened. It was filled with passengers,8 and it was considerably heavier and larger than the Ford Escort. If it was overtaking another vehicle, it necessarily had to accelerate. The acceleration of its speed and its heavy load would have greatly increased its momentum so that the impact of the collision would have thrown the smaller and lighter Ford Escort to a considerable distance from the point

of impact. Exhibit 1, however, shows that the Ford Escort's smashed hood was only about one or two meters from Bus 203's damaged left front. If there had been a great impact, such as would be the case if Bus 203 had been running at a high speed, the two vehicles should have ended up far from each other. In discrediting the physical evidence, the appellate court made following observations: We cannot believe that it the car which overtook another vehicle and proceeded to the lane occupied by the bus. There was a traffic jam on the "bus lane" while traffic was light on the "car lane." Indeed, we find it inconceivable that the car, occupying the lane without any traffic, would overtake and traverse a heavy traffic lane.9 (Emphasis supplied.) This is correct. However, the fact remains that when the Ford Escort finally came to a stop, it encroached on the opposite lane occupied by Bus 203. Significantly, Rommel Abraham testified that on February 21, 1985, the night before the accident, he and John Macarubo went to a friend's house in La Loma where they stayed until 11 p.m.10 Abraham's explanation as to why they did not reach Valenzuela until six o'clock in the morning of the next day when the accident happened indicates that the Ford Escort careened and slammed against Bus 203 because of a mechanical defect. Abraham told the court. 11 ATTY. RESPICIO:

Q: What time was that when you have this cross-joint problem? A: About 12:00 o'clock perhaps, sir. Q: What happened to the cross joint? A: It was cut, ma'am. Q: You were able to repair that cross-joint 12:00 o'clock and you were able to run and reached this place of accident at 6:00 o'clock? A: No, we we're not able to get spare parts, ma'am. Q: Why were you able to reach this place at 6:00 o'clock? A: We went home and look for the spare parts in their house, ma'am. Q: House of Macarubo? A: Yes, ma'am. Q: So you were able to repair the car?

Q: I am sorry, Your honor. After leaving Arnel's place where did you go? A: Yes, ma'am. ROMMEL ABRAHAM Q: What time were you able to repair the car? A: We proceeded in going home, sir. A: Around 5:00 o'clock in the morning, sir. Q: You were on your way home? Q: You were able to replace the cross-joint or what? A: Yes, sir. A: Ginawaan ng paraan, ma'am. Q: What time did you . . . I will reform the question. You met the accident at about 6:00 o'clock the next day, 6:00 o'clock in the morning the next day, did it take you long to reach BBB? A: Our car had a mechanical trouble somewhere at 2nd Avenue, sir. Q: What kind of trouble? A: The cross-joint were detached, sir. Q: Are you familiar with cars? A: A little, sir. COURT: Q: How? A: The cross-joint were welded in order to enable us to go home, ma'am. Q: No spare parts was replaced? A: No, ma'am. Thus, as Rommel Abraham himself admitted, the Ford Escort's rear cross-joint was cut/detached. This mechanism controls the movement of the rear tires. Since trouble in the cross-joint affects a car's maneuverability, the matter should have been treated as a serious mechanical problem. In this case, when asked if they were able to repair the cross-joint, Abraham said "Ginawaan ng paraan, ma'am," by simply welding them just so they could reach home. His testimony indicates that the rear cross-joint was hastily repaired and that, at most, the kind of repairs made thereon were merely temporary; just enough to enable Abraham and

Macarubo to reach home. Given such fact, the likelihood is that while the Ford Escort might not have been overtaking another vehicle, it actually strayed into the bus' lane because of the defective cross-joint, causing its driver to lose control of the vehicle. The appellate court refused to give credence to the physical evidence on the ground that the photographs were taken an hour after the collision and that within such span of time the bus could have been moved because there was no showing that the driver left the scene of the accident. This is not correct. Constancia Gerolada, Bus 203's conductress, testified that, immediately after the collision, she and bus driver, petitioner Armando Jose, took the injured driver and passenger of the Ford Escort to the Fatima Hospital. 12 This fact is not disputed by private respondents. Rommel Abraham mentioned in his appellant's brief in the appellate court a sketch of the scene of the accident allegedly prepared by one Patrolman Kalale, which shows Bus 203 to be occupying the Ford Escort's lane. However, the records of this case do not show that such a sketch was ever presented in evidence in the trial court or that Patrolman Kalale was ever presented as a witness to testify on the sketch allegedly prepared by him. Under Rule 132, 3 of the Rules on Evidence, courts cannot consider any evidence unless formally offered by a party. Finally, the appellate court also ruled that MCL failed to make a satisfactory showing that it exercised the diligence of a good father of a family in the selection and supervision of its bus driver, Armando Jose.13 Under the circumstances of this case, we hold that proof of due diligence in the selection and supervision of employees is not required. The Civil Code provides in pertinent parts: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this chapter. Art. 2180 The obligation imposed in Art. 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx

supervision of the employee. The theory of presumed negligence, in contrast with the American doctrine of respondent superior, where the negligence of the employee is conclusively presumed to be the negligence of the employer, is clearly deducible from the last paragraph of Article 2180 of the Civil Code which provides that the responsibility therein mentioned shall cease if the employers prove that they observed all the diligence of a good father of a family to prevent damages (12 Manresa, 657; Balica vs. Litonjua and Leynes, 30 Phil. 624; Cangco vs. Manila Railroad Co., 30 Phil. 768), as observed in the same cases just cited. Therefore, before the presumption of the employer's negligence in the selection and supervision of its employees can arise, the negligence of the employee must first be established. While the allegations of negligence against the employee and that of an employer-employee relation in the complaint are enough to make out a case of quasi-delict under Art. 2180 of the Civil Code, the failure to prove the employee's negligence during the trial is fatal to proving the employer's vicarious liability. In this case, private respondents failed to prove their allegation of negligence against driver Armando Jose who, in fact, was acquitted in the case for criminal negligence arising from the same incident.15 For the foregoing reasons, we hold that the appellate court erred in holding petitioners liable to private respondents. The next question then is whether, as the trial court held, private respondent Juanita Macarubo is liable to petitioners. Art. 2180 of the Civil Code makes the persons specified therein responsible for the quasidelicts of others. The burden is upon MCL to prove that Juanita Macarubo is one of those specified persons who are vicariously liable for the negligence of the deceased John Macarubo. In its third-party complaint, MCL alleged that Juanita Macarubo was the registered owner of the Ford Escort car and that John Macarubo was the "authorized driver" of the car. 16 Nowhere was it alleged that John Macarubo was the son, ward, employee or pupil of private respondent Juanita Macarubo so as to make the latter vicariously liable for the negligence of John Macarubo. The allegation that John Macarubo was "the authorized driver" of the Ford Escort is not equivalent to an allegation that he was an employee of Juanita Macarubo. That John Macarubo was the "authorized driver" of the car simply means that he drove the Ford Escort with the permission of Juanita Macarubo. Nor did MCL present any evidence to prove that Juanita Macarubo was the employer of John Macarubo or that she is in any way liable for John Macarubo's negligence under Art. 2180 of the Civil Code. For failure to discharge its burden, MCL's third-party complaint should be dismissed. WHEREFORE, the decision of the Court of Appeals is REVERSED and the complaints filed in Civil Cases Nos. 2206-V-85 and 24428-V-86 against Manila Central Bus Lines and Armando Jose, as well as the third-party complaint filed in Civil Case No. 2206-V-85 against Juanita Macarubo, are hereby DISMISSED. SO ORDERED.1wphi1.nt G.R. No. 118828 & 119371 February 29, 2000

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. Thus, the responsibility of employers is premised upon the presumption of negligence of their employees. As held in Poblete v. Fabros:14 [I]t is such a firmly established principle, as to have virtually formed part of the law itself, that the negligence of the employee gives rise to the presumption of negligence on the part of the employer. This is the presumed negligence in the selection and

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HENRY LUGARTO Y PETILLA and ERNESTO CORDERO y MARISTELA, accused-appellants. PER CURIAM:

On 31 January 1995, the Regional Trial Court of Manila, Branch 47, per Judge Lorenzo B. Veneracion, handed down a judgment in Criminal Case No. 94-138071 and Criminal Case No. 94-138138, finding accused-appellants Henry Lagarto y Petilla (hereaffer LAGARTO) and Ernesto Cordero y Maristela (hereafter CORDERO) guilty beyond reasonable doubt of raping and slaying seven-year old Alquiza y Lagman (hereafter Angel) in the early hours of 2 August 1994. They were initially sentenced to suffer the penalty of reclusion perpetua in each with damages. In our Decision of 12 October 1995 in G.R. Nos. 119987-88 (319 Phil. 364), a special civil action forcertiorari filed by the Office of the Solicitor (OSG) questioning the propriety of the sentence imposed, we ordered the court to impose the correct penalty prescribed by law in light of its findings of and conclusions, i.e., the death penalty, subject to automatic review by us at proper time. Conformably with the decision in G.R. Nos. 119987-88, Judge Veneracion on 22 May 1996 an Order correcting the sentence in Criminal Case No. 94-138071 and Criminal Case No. 94138138 and imposing the penalty of death. The Order was read in open court at the National Penitentiary. Thereafter, the records of these cases were forwarded to us far automatic review, in accordance with Article 47 of the Revised Penal Code, as amended, and Section 10, Rule 122 of the Rules of Court. The pertinent facts follow: At 5:10 p.m. on 2 August 1994, PO3 Edgardo E. Ko of the Western Police District Command, Directorate for Investigation, Crimes Against Persons Division, Philippine National Police, Manila, received an information from PO3 Mabilisan of Station 11 that a dead body in a sack was found at around 4:30 p.m. floating in the flooded street of Del Pan near the corner of Lavizares St., Binondo, Manila. Residents discovered the corpse wrapped in a round yellow tablecloth tied with a nylon cord inside a sack. The responding policemen PO3 Ko, SPO1 Edgardo Manuel, and PO3 Rosalie Fernandez noticed the victim's feet and left hand protruding from the sack and round yellow tablecloth. They untied the sack and nylon cord and saw the victim, a young girl, wearing nothing but her duster, with gaping wounds on the left ear and chin, her genitals lacerated, her eyes missing, and her head bashed in. They immediately brought the body to the police morgue at Tres Amigos Memorial Chapel. 1 A. certain Romezen Alquiza called the police station, inquiring about the body recovered from Del Pan, Tondo, Manila, whose description matched his sister Angel who, had been missing since the night of 1 August 1994. He was advised to proceed to the Tres Amigos Memorial Chapel. Together with his mother Zenaida and some family members, Romezen went to said mortuary to look at the body. Indeed, it was Angel Alquiza. 2 He then requested the National Bureau of Investigation (NBI) Medico-Legal Office to autopsy Angels body.3 Said office also issued a Certificate of Identification of Dead Body,4 which was signed by Romezen. The autopsy was conducted by NBI Medico-Legal Officer Ludivino J. Lagat, who concluded that Angel Alquiza died due to multiple stab wounds and traumatic injuries. The severity of her injuries were vividly described in Autopsy No. N-94-1553,5 thus: POSTMORTEM FINDINGS Pallor, generalized. Both eyes, missing. Hematoma: 5.0 x 9.0 cms., and 5.0 x 17.0 cms., right and left inguinal area.

Abrasion: 4.0 x 5.0 cms., and 4.0 x 4.0 cms., periorbital area, right and left respectively; 12.0 x 4.0 cms., left thigh; 19.0 x 20.0 cms., posterior chest wall. Contused hematoma: 10.0 x 9.0 cms., left side of the neck to the clavicular area. Incised wounds: 14.0 cms, left pre-auricular area up to the temple; 21.0 cms, vagina, to the anus then to the sacral area with evisceration of the intestines, 2:0 cm. Knee. Fractures: Axial fractures of the skull, open, compound; mandibular bone; right femur, upper third; 1st to the 10th ribs, anteriorly right and left. Dislocation, left hip joint. Liver multiple lacerations. Stab wounds: all elliptical, clean-cut edges, with a sharp and a blunt extremities in different orientations. 1) 2.5 cms., forehead, right side; directed backwards, involving the soft, tissues; fracturing the temporal bone; then to the right-cerebral hemisphere; with a depth of 7.0 cm. 2) 2.0 cms., temple, left side; directed medially; involving the soft tissues; fracturing the temporal bone; then to the left cerebral hemisphere; with a depth of 5:0 cm 3) 3.0 cms.; mandibular area, left side; fracturing the mandibular bone Hemothorax, 500 c.c. Hemoperitoneum, 1,100 c.c. Brain Hemorrhagic with minor portion missing. Visceral organs, pale. Stomach, empty. CAUSE OF DEATH: MULTIPLE STAB WOUNDS, TRAUMATIC INJURIES. REMARKS: Vaginal swab submitted to Chemistry Division for examination. PO3 Ko's Advance Information,6 which was based on his investigation of Zenaida Alquiza, Rosalina Puno, Alicia de la Vega, Ligaya Cordero, Mario Blorecia, and Eliseo Sendiego, disclosed that at around 9:30 on the night of 1 August 1994, Angel, a seven-year old Grade 2 student of the Rosario Almario Elementary School and a resident of 1200 Sunflower St., Tondo, Manila, went out to buy champorado from a store at nearby Kagitingan St. When she did not

return after some time, the members of her family searched for her in the neighborhood, but they did not find her. At around 1:25 p.m. of 2 August 1994, they reported her missing to the police. Rosalina Puno, the owner of he store at 1144 Kagitingan St., said that Angel did drop by her store at around 9:30 p.m. to buy,champorado and ate it there before heading home via Bougainvillea7 St. Said street is adjacent to Sunflower St. and leads to Tagumpay St., a dimly lit area used by CORDERO and his wife Ligaya as a parking space for their pedicabs. 8 One of said pedicabs, "No. 14," was driven by a certain Abundio Lagunday on 1 August 1994 but was found the following day abandoned and covered with cartons and plastics at the comet of Kagitingan and Salvacion Sts., near the junk shop of the late Mang Gorio (Mauro Gregorio). Because of this, Ligaya Cordero was invited by the police on 3 August 1994 to answer some questions.9 Mario Blorecia, a scavenger and a friend of Lagunday, said the latter, who appeared nervous (balisa), came to him at around 6:30 p.m. on 3 August 1994, left the pedicab to his care (kasi nagkahulihan), and immediately departed after covering the pedicab with scraps of carton and plastic. They both used to work at the junk shop of Mang Gorio, which was later converted into a warehouse.10 Follow-up investigation disclosed that around 9:30 p.m. on 1 August 1994, a certain Jose Soriano of 1155 Kagitingan St. was buying a cigarette at Rosalina Puno's store when he saw Angel with Lagunday (akay ni Lagunday) at the corner of Bougainvillea and Kagitingan Sts. He did not think she was in any trouble because he knew Lagunday sometimes picked up Angel from school.11 Based on these pieces of information, Lagunday was arrested on 4 August 1994 as the primary suspect in the case. During custodial investigation, and after he was apprised of his constitutional rights, Lagunday admitted his culpability and pointed to two other men as his cohorts, namely, @ "Boboy" and @ "Boyet." In the ensuing investigation, Lagunday also positively identified LAGARTO as one of companions on that fateful night. 12 A major breakthrough in the case was provided by a 50-year old widow and laundry woman by the name of Herminia Barlam, who was accompanied to the Homicide Section on 4 August 1994 by SPO2 Enrico Miranda, a neighbor and occasional laundry client. She allegedly saw three men molest and kill a little girl inside the warehouse of Mang Gorio during a downpour in the early hours of 2 August 1994. When asked if she could recognize these men from a police lineup, she positively identified Lagunday and LAGARTO as two of the men who raped and killed the girl.13 Her sworn statement, taken by PO3 Ko with the aid of SPO2 Miranda, who acted as interpreter between the investigator and the hearing impaired, is hereunder substantially reproduced: 03. T.: Noong isang araw, petsa 2 ng Agosto 1994 . . . ano and nakita mo? S.: Nakita kong bata saksak . . . takip ilong at wala panty. 04. T.: Sino ito bata iyo kita? S.: Hindi kilala pero liit lang. . . 05. T.: Saan mo kita bata saksak at takip bibig at ilong? S.: Doon marami lata at saka plastic. 06. T.: Kanino ito lugar o sino may ari? S.: Gorio. 07. T.: Saan ito lugar? S.: Kagitingan. 08. T.: Ano pa iyo kita o dinig? S.: Kita ko bata takip ilong, at tali bibig, sigaw siya, saksak sa leeg. 09. T.: Kita mo ba kung sino ang gawa nito sa bata? S.: Tatlo. 10. T.: Kilala mo sila? S.: Oo. 11. T.: Asan sila nayon?

S.: Declarant was pointing to and positively identifying . . . ABUNDIO LAGUNDAY . . . and HENRY LAGORTE . . . . . 12. T.: Ano gawa nitong si Abundio sa batang babae? S.: (declarant was demonstrating her fingers in a pumping motion and covering her mouth). 13. T.: Ito isang turo mo, ano gawa sa batang babae? S.: Saksak leeg batang babae (declarant was demonstrating with her right index finger pointing to her neck.) 14. T.: Kilala mo ba ito dalawang turo mo? S.: hindi kilala, pero isa Lando * takas, wale ipen. 15. T.: Ano gawa Lando sa bata babae? S.: Palo ulo bata kahoy kapal. 16. T.: Ano gawa mo bago ikaw kita sila? S.: Ihi ako sa tabi bodega, kita ko sila butas. 17. T.: Asan na batang babae? S.: Patay na suot puti damit ganda. 18. T.: Ikaw silip sa butas, ano iyo kita? S.: Bata babae saksak at kantot tatlo lalaki, at iyak iyak sigaw pa. 19. T.: Sino kita mo kantot bata babae? S.: Iyon sampal ko kanina (declarant was referring to ABUNDIO LAGUNDAY who was slapped by the declarant during the line up) 20. T.: Ano oras mo kita ito? S.: Alas 2 umaga, lakas ulan. 21. T.: Ano pa iyo kita? S.: Bata patay at tali nila sako. 22. T.: Ano iyo gawa? S.: Sigaw ako lakas at palo nila ako kahoy. 23. T.: Sino palo sa iyo kahoy? S.: Siya (declarant was pointing to and positively identified HENRY LAGARTO) 24. T.: Ano yari ng ikaw sigaw lakas? S.: Wala pansin akin, at ako iyak. 25. T.: Ano pa iyo kita sa loob bodega? S.: Iyak iyak bata tapos tigil na, patay na. 26. T.: Ikaw ba ay may asawa? S.: Patay na. 27. T.: Ano pangalan asawa mo? S.: Tony. 28. T.: Ilan anak mo? S.: Dalawa. 29. T.: Anong pangalan anak mo? S.: Junior at Totoy. 30. T.: Totoo ba sabi mo? S.: Totoo, hindi ako nanloloko. 31. T.: Susumpaan mo ba ito? S.: Oo.14 As the inquest continued, more suspects were brought in for questioning, namely, the following persons implicated by Lagunday: Rolando Manlangit y Mamerta @ "Lando," Richard Baltazar y Alino @ "Curimao," and Catalino Yaon y Aberin @ "Joel." Accused-appellant CORDERO @ "Booster" was not initially implicated by Lagunday; hence, he was not indicted under the first Information dated 8 August 1994. When they were in detention together, however, Lagunday CORDERO as the mastermind15 and pointed to Manlangit, Baltazar, and Yaon as their lookout. CORDERO was further linked to the crime by a certain laundry woman named Ofelia Lagman, who, having washed laundry for Corderos several times; allegedly remembered seeing on top of their washing machine a round yellow tablecloth matching the one in which Angels body was wrapped. She also confirmed that the Corderos had a round table with a glass top. 16 If further appeared that CORDERO had previously raped his two daughters although no case was filed against him.17

On the basis of these findings, criminal charges for rape with homicide were filed against the suspects by the City Prosecutor's Office of Manila. The first information, dated 8 August 1994, was filed on 10 August 1994 and was docketed Criminal Case No. 94-138071, entitled People of the Philippines v. Abundio Lagunday, a.k.a. "Jr. Jeofrey," and Henry Lagarto y Petilla. It stated thus: That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one alias "LANDO", and other persons whose true names, identities and present whereabouts are still unknown and helping one another, with treachery, taking advantage of their superior strength and nocturnity, and Ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA Y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and there wiifully, unlawfully and feloniously have carnal knowledged the person of said ANGEL ALQUIZA Y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a. "Jr. Jeofrey", HENRY LAGARTO Y PETILLA, and one a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW.18 The other information, dated 11 August 1994 and filed on 12 August 1994, and docketed as Criminal Case No. 94-138138, is entitled of the People of the Philippines v. Ernesto Cordero y Maristela @ "Booster," Rolando Manlangit y Mamerta @ "Lando," Richard Baltazar y Alino @ "Curimao," and Catalino Yaon y Aberin @ "Joel." Its accusatory portion reads: That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused conspiring and confederating with ABUNDIO LAGUNDAY Alias "JR. JEOFREY" and HENRY LAGARTO y PETILLA who have already been charged in the Regional Trial Court of Manila of the same offense under Criminal Case No. 94138071, and helping one another, with treachery, taking advantage of their superior strength and nocturnity and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said accused together with their confederates ABUNDIO LAGUNDAY Alias "JR. JEOFREY" and HENRY LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW.19 Prior to arraignment, however, the court was informed by the prosecution that Lagunday had been shot and killed while trying to grab the gun of one of his police escorts on 12 August 1994.20 Upon motion of the private prosecutor, Lagunday's name was dropped from the information. His co-accused in Criminal Case No. 138071, LAGARTO, and other accused in Criminal Case No. 138138, all pleaded "not guilty" to the charges. Thereafter, upon motion of the prosecution,21 the two cases were consolidated.22 The prosecution relied mainly on the statements and testimonies of PO3 Ko, Dr. Lagat, Herminia Barlam, Ofelia Lagman, and Rolando Javar.

The testimony of PO3 Edgardo Ko merely replicated the contents of his Advance Information dated 3 August 1994 (Exh. "K"), Progress Report 1 dated 5 August 1994 (Exh. "L"), and Progress Report 2 dated 9 August 1994 (Exh. "M") on which the criminal informations were based. He presented to the court some of the items recovered with the body of Angel, which were marked as evidence for the prosecution, namely, a yellow tablecloth (Exh. "F"), a sack (Exh. "I"), nylon cord, exh. "H"); a piece of embroidered cloth or crocheted curtain (Exh. "J"), and a girl's (Exh. "G").23 Even as the trial judge deplored the sloppy handling of evidence by the police and their lack of control over the crime scene,24 it was revealed during PO3 Ko's cross-examination that CORDERO was investigated and attested on 8 August 1994 on the basis of Lagman's sworn statements before the NBI and the police, not on Lagunday's verbal confession. 25 Dr. Ludivino Lagat, NBI Medico-Legal Officer; autopsied the body of Angel on 2 August 1994, after receiving a request for autopsy (Exh. "A") and examining certificate of identification (Exh. "B"), both signed by Angel's brother Romezen.26 His findings disclosed that Angel died due to multiple stab wounds and traumatic injuries. Both of her eyes were missing. Dr. Lagat found, among other injuries, two stab wounds on the head and one at the neck; a head fracture which part of her brain was leaking out27; severe head deformity due to force; an incised wound 21 centimeters long from the vagina to her anus up to the "sacral area with evisceration of the intestines" caused by a "sharp bladed weapon."28 On cross-examination, the defense, banking on a "possibility" that some of injuries of Angel might have been caused by other factors, suggested that Angel was ran over by a motor vehicle before she was stabbed.29 When confronted about the absence of spermatozoa, Dr. Lagat said it "could be due to soaking (of the body in floodwater). It could be washed out." And the body was, indeed, washed at the Tres Amigos Memorial Chapel. Moreover, no spermatozoa was found because "the area was expose(d) and there were some other things that were present in the area like the intestine,"30 which spilled out of vagina.31 Ofelia Lagman, on whose statement CORDERO was initially arrested and investigated, testified that when she heard the news about a child found dead in neighborhood, she inquired and learned that it was Angel, her husband's niece. Angel had been missing since the night of 1 August 1994. She learned that the body had been taken to the Tres Amigos Memorial Chapel so she immediately went there. The sight that greeted her shivers down her spine because the round yellow tablecloth where Angels body was wrapped was familiar to her. She had seen one just like it in the house of CORDERO, a neighbor whom she had known for four years so that she was able to positively identify him in court,32 and for whom she had done three-days' laundry work in the last week of July 1994. She saw it on top of their washing machine, folded the way round materials are folded. It was about a meter in diameter, made of a material like linoleum.33 On 3 August 1994, she decided to share this information with NBI. Five days later, on 8 August 1994, she made a similar statement to the police. Another key witness, Rolando Javar, a mason and resident of 1190 Tagumpay St., said that between 9:30 and 10:00 in the evening of 1 August 1994, as he was going home in a pedicab, he saw CORDERO and LAGARTO standing in front of the warehouse at Kagitingan St., as if waiting for somebody. When he alighted in front of his house at Tagumpay St., he saw Lagunday driving "Ernie Sidecar No. 14," with Angels as passenger. 34 LAGARTO was one of the pedicab drivers of CORDERO.35 On cross-examination, Javar said that he first told his story to Angel's mother Zenaida on 12 September 1994. She is his neighbor, while Ernesto CORDERO is his neighbor and balae, the latter being the father of his son's wife. He was at first reluctant to tell Zenaida about what he knew because of his relationship with the Corderos.36

Prosecution witness Herminia37 Barlam categorically pointed to CORDERO and LAGARTO as among the three men (the other one being deceased Lagunday) she saw in the warehouse at Kagitingan St. at around 2:00 a.m. on 2 August 1994. She witnessed how they stabbed the face and genitals of Angel, hit her with a piece of wood, raped her as she bled, and eventually killed her. She saw how they tied her hands and feet, wrapped her lifeless form in a yellow tablecloth, and put her inside a sack. Because of her hearing impairment, however, the defense sought to disqualify her on the basis of incompetence and repeatedly requested that she be taken to the National Center for Mental Health (NCMH) to determine if she was competent to testify.38 The court initially denied 39 said motion but eventually granted40 it. Nevertheless, on 26 August 1994, prior to her psychiatric evaluation, the court heard the testimony of Barlam. In essence, she said she was Kagitingin St. at around 2:00 a.m. on 2 August 1994. She saw three men and a child whose name, she later learned, was "Jingjing." One of the men saw her and asked her to be quiet. This man hit her. Another man, who wore glasses,41 stabbed the child and tied the sack where the child's body was placed. She positively (and angrily) identified these two men as LAGARTO and CORDERO. The third man was already dead.42 On 27 September 1994, the NCMH submitted to the court its Report 43 on the phychiatric evaluation of Herminia (Marina) Barlam. . . . signed by Dr. Benjamin D. Vista and Dr. Isagani S. Gonzales. The following is a verbatim reproduction of its contents: GENERAL DATA: MARINA DELOS SANTOS, 53 years old, female, single, Filipino, Roman Catholic, unschooled, from 1267 Kagitingan St. Tondo, Manila brought for the first time to the National Center for Mental Health on August 26, 1994 for examination. BACKGROUND HISTORY: From collateral interviews with relatives and friends, the patient has been deaf since birth and has not been given any formal education. She has worked as a balut vendor and laundry woman to help support her family consisting of two sons. She has been noted to function well in areas of self care and daily living. No assaultiveness ( sic), irritability nor destructiveness were reported. There was no history of previous psychiatric consultation and treatment, nor history of alcohorism and prohibited drug use. MENTAL STATUS EXAMINATIONS: Initial examination revealed an adult female, sthenic (sic), fairly kempt in a dress. Behaved and cooperative, but severe deafness was obvious and questions had to be repeated several times in a loud manner before she answered. She was able to state her personal data accurately. She was oriented to time; place and person. She related "kita bata babae" and indicated the height of the child with her hand. "Sinaksaksak" and made a stabbing action with the forefinger at the throat of her companion, then she made slashing motions on each of her arms and groin. She pointed at her right eye, "tangal mata." She indicated that there were three men, one of them (she indicated eye glasses) stabbed the victim, and that another took the victim's earrings . She explained that this happened at 3:00 A.M. ("alas tres, umuulan") and then demonstrated that she was urinating at a bodega. She further demonstrated that one of the men hit her with a piece of wood on her left elbow and knee, and showed her scars. She was able to identify familiar objects, and was able to identify the 2 peso coins, 10, 20, and 100 peso bills. She was able to do simple mathematic(al)

operations. She related that she is no longer staying at their house "baka ako patayin." Mood was euthymic (sic), affect adequate. She was next examined on August 29 and 31, 1994 when she was given a battery of psychological tests. On interview, she gave the same account of what she saw consistently, and expressed her irritation "paulit-ulit tanong." Attention span is short and patient tends to confabulate when she unable to hear the question properly, hence gives inconsistent answer at times. She is friendly and tends toward familiarity with the interviewer, at times slapping the desk with her hand especially when embarrassed. She tends to be anxious when many people are around. Patient was recommended to an ear specialist for assessment and fitting of a hearing aid, after which psychological examinations were repeated and the patient reinterviewed. PHYSICAL AND NEUROLOGICAL EXAMINATIONS: (B)ilateral deafness, all other findings with normal limits. PSYCHIATRIC EVALUATION RESULTS: Evaluation shows that patient is classified as having moderate mental retardation associated with deafness, which is characterized by a subaverage intelligence quotient (between 35-55), but may achieve self-maintenance in unskilled or semiskilled work under sheltered conditions, but needs supervision and guidance when under social or economic stress. At present, she may be deemed competent based on the following finding: no evidence of insanity of psychosis, a consistency in relating her story, she appreciates the meaning of the oath she takes as a witness before the court, and is capable of cooperating with counsel. REMARKS AND RECOMMENDATIONS: Because of her deafness and associated mental retardation, this patient is prone to anxiety, panic and inconsistency when threatened by intimidation or a large crowd of people. The accuracy of her testimony will depend much on the cooperation of the people who would examine her in court. Gubjonsson and Gunn (1982), as quoted in the Principles and Practice of Forensic Psychiatry, state that "even a severely mentally handicapped person may be capable of giving reliable testimony on items of basic fact," but "may demonstrate a high degree of suggestibility when an individual was unsure of the facts." For example, such patients may agree that the color of a green leaf is pink when unsure of its real color, however, suggesting false perceptions that a pencil being held is getting increasingly hot may not be successful. An accurate testimony, therefore will depend much on an environment free distraction and intimidations. (Emphasis ours) On the basis of the NCMH report, Barlam was fitted with a hearing aid and testified anew on 3 October 1994. Her examination was marked by countless objections, comments, and arguments

of counsels. She began by saying that on the night of 1 August 1994, after drinking coffee, she went near the warehouse at Kagitingan St. to relieve herself. While there, she sensed some commotion inside so she peeped through a hole in the wall. She saw three men and a child. Two of these men were in the courtroom and she identified them as LAGARTO and CORDERO. The other one was already dead.44 Barlam was then shown six pictures of seven different girls (Exhibits "BB," "BB-1" to "BB-6"). She positively identified Angel Alquiza in one picture where angel was seated beside another girl, both of them clad in "flower girl" attire.45 She added that one of the men hit her knee and left elbow. They ordered her to leave, but she did not, so one of them hit her with a piece of wood. Another man gouged out the child's eyes, cut off her ear, removed her earring, slashed her vagina, then raped her. She said this man wore eyeglasses, all the while pointing at CORDERO.46 After the child was raped, a man hit her head while another stayed by the door. They tied her feet, wrapped her in some yellow material, then put her in sack. She pointed to CORDERO as the man who wrapped the child in the yellow material. She even saw tears in the child's eyes when she lit a small candle.47 On cross-examination Barlam declared that she already knew Angel before the incident of 2 August 1994 because, at one time when she was washing some laundry, she had seen Angel eating porridge (lugaw). She noticed how pretty the girl was. On the other hand, she first saw CORDERO on that fateful day.48 Barlam proceed to narrate that she saw Angel on her knees, with CORDERO standing beside her while LAGARTO stood by the door. The man who was already dead, Lagunday, saw her, told her to leave, and when she refused, went outside and hit her with a piece of wood on the left knee and right elbow. CORDERO slashed the left side of Angel's face twice, then her vagina, gouged out her eyes, and took off her earrings. Both LAGARTO and Lagunday hit Angel's head with a piece of wood.49 On re-direct examination, Barlam maintained that CORDERO was the one who slashed Angel's vagina then raped her. ("Hiwa dito hiwa dito, anunta, anunta, hiwa kiki, tanda na hiwa pa kiki.")50 When she was asked to identify the man who hit Angel with a thick piece of wood, she went straight to LAGARTO whom she slapped and boxed. 51 As the defense tried to derail this witness by confronting her with her sworn statement where she described the man who hit Angel with a piece of wood as a certain "Lando walang ipen," the prosecution clarified that while it is true that one of the accused, Rolando Manlangit @ "Lando," in fact had no front teeth (bungal), the sworn statement was prepared by PO3 Ko during the investigation conducted when she was not yet wearing a hearing aid a statement she never read because she was illiterate. In any case, the prosecution insisted that on the witness stand, Barlam was more than consistent in specifying the participation of Lagunday, CORDERO, and LAGARTO.52 The court also observed that from a distance, LAGARTO looked as if his front teeth were missing. 53 After the prosecution had rested its case, the court, upon motion of PAO lawyer Atty. Jesse Tiburan, and without opposition from the prosecution, discharged accused Manlangit, Yaon, and Baltazar in Criminal Case No. 94-138138 for insufficiency of evidence. LAGARTO and CORDERO, however, objected to the discharge of Manlangit on the ground that he was allegedly identified by Barlam. In view of such objection, the court reconsidered its order with regard to Manlangit, who, by counsel, waived the right to present evidence and prayed that the case against him be deemed submitted for resolution.54 The defense of CORDERO and LAGARTO consisted mainly of denial and alibi. LAGARTO even posed insanity as an alternative defense, but this failed to convince the trial court. 55 CORDERO denied that he had anything to do with the rape-slay of Angel Alquiza. He maintained that around 7:30 p.m. on 1 August 1994, he was at home talking to a certain Gerardo Eriste, who was asking his help in borrowing money from an Indian moneylender. After Eriste left around 9:30 p.m., he ate, rested, a video on television with his children for about an hour before

going to bed at about 11:00 p.m. He woke up at 7:00 a.m. the following day and began counting the pedicab boundary money which he would remit to the Indian moneylender. On 3 August 1994, around 11:00 a.m., police arrived at his house, saying he was being invited by Maj. Gacutan to the station. He denied any of knowledge of the incident in question, but he was nevertheless instructed to stay in the office. In the afternoon, he accompanied Maj. Gacutan to his house to see their dining table which had a glass top instead of a tablecloth. Then, they went back to Station 2, where he stayed for about 12 hours, leaving around 1:00 or 2:00 in the morning of 4 August 1994. He was allowed to leave because, apparently, he did not know anything about the killing of Angel. On 7 August 1994, he was again invited to the police station. There, Maj. Gacutan said he would be brought to the Homicide Section at UN Avenue because they were being pestered by some members of the press. Maj. Gacutan even allegedly asked some money in exchange for his liberty. While in detention with Lagunday, Manlangit, Yaon, and Curimao, he learned that Lagunday implicated him upon the instance of two corpulent women who had visited the latter and banged his banged his head on the wall. He was detained for about 12 hours and left the station around 1:00 or 2:00 p.m. on 8 August. On cross-examination, CORDERO said he was unaware of the warehouse at Kagitingan St., which is about ten blocks from his house at Sunflower St.56He also said that he did not know Lagunday prior to 8 August 1994, even if the latter was one of their pedicab drivers, because his wife was the one who dealt with them.57 CORDERO's alibi was corroborated by his daughter Emily58 and Gerardo Eriste.59 Rebuttal witness Maj. Franklin A. Gacutan, however, claimed that on 4 August 1994, while CORDERO was being questioned in relation to the case of Angel Alquiza, he told CORDERO he could leave because they have not yet found any evidence against him. He also denied the allegation that CORDERO was arrested because of media pressure and that the latter offered him a bribe.60 On cross-examination, Maj. Gacutan said Lagunday did not implicate CORDERO or LAGARTO,61 and it was Barlam who pointed to CORDERO when the latter was already in detention.62 And in the early hours of 4 August 1994, he and his men, accompanied by Lagunday, inspected the warehouse where the alleged crime took place. It was surrounded by houses and some street lights were on. They entered the dark warehouse but found no evidence. Peeping inside, nothing could be seen because of the darkness.63 SPO2 Enrico Miranda was summoned to testify on the veracity of the sworn statement of Barlam. Since they were neighbors and she laundered their clothes, they supposedly understood each other using crude sign language. In the investigation conducted by PO3 Ko on 4 August 1994, he acted as interpreter between the latter and Barlam. The defense sought to capitalize on said sworn statement, where Barlam did not mention either the name of LAGARTO or CORDERO.64 Moreover, during the hearing of 17 August 1994, he allegedly saw Barlam outside the courtroom talking to another woman who was showing to her a newspaper and pointing to a picture of CORDERO, but he did not hear what they were talking about. 65 Another witness, Gloria Sigua, corroborated this point and added that she had an argument with the woman who was apparently coaching Barlam to point to CORDERO. The woman was a companion of Angel's mother Zenaida.66 To show further that Lagunday did not implicate either CORDERO or LAGARTO, the defense presented Vivencio Singalawa, who testified that on 5 August 1994, when he visited his friend Jr. Jeofrey (Lagunday's alias) shortly after lunch at Precinct 2, the latter allegedly confessed that he was the sole author of crime under investigation. Lagunday also mentioned the names "Lando," "Joel" and "Curimao" (the aliases of CORDERO's co-accused in Criminal Case No. 94-138138), who served as lookout. Lando was a worker of Mang Gorio, while Joel and Curimao were scavengers (nagtutulak ng kariton). Singalawa, a barangay tanod, knew the warehouse at Kagitingan St. where the crime was committed because he grew up in that place; yet, he claimed he did not know CORDERO, who lived in the same barangay. 67

LAGARTO denied any involvement in the crime and claimed he was also at home at the time of its commission. At the hearing of 4 August 1994, his attorney moved that he be taken to the NCMH for examination. The Court granted said motion, but as of the time LAGARTO was called to testify on 5 December 1994, the result of such assessment had not yet been submitted to the court.68 Under oath, LAGARTO said he was a garbage collector. On the night of 1 August 1994, he collected Rosita Besonia's trash, then asked rice from her as his customary "fee." He went home with a plate of rice, ate dinner, then slept on the floor by the door from 7:00 p.m. to 5:00 a.m. the following day. On 4 August 1994, while on his way to his cousin at Don Bosco, policemen in two vehicles a car and an owner-type jeep suddenly forced him into the jeep. A man in the car (Lagunday) was allegedly being compelled by the other policemen to point him. In the evening, after spending some time at the Luneta detachment of the WPDC, he went home with the police because they were looking for a certain "Buboy Bungal." Although his brother's nickname was Buboy, the latter was not "bungal." In any event, they also brought Buboy to the Luneta detachment only to be released when it was confirmed that Buboy's front teeth were indeed intact. He denied the charges against him, as well as the allegation that he drove a pedicab for CORDERO.69 LAGARTO's neighbors; Rosita Besonia70 and Janet Badilla,71 and his mother Noriana Lagarto72 confirmed his alibi. When cross-examined, however, LAGARTO admitted he was alone at home at 7:00 p.m. on 1 August 1994.73 In its Decision74 of 31 January 1995, the trial court, per Judge Lorenzo B. Veneracion, gave full credit to the version of the prosecution and convicted CORDERO and LAGARTO for the crime of rape with homicide, but exonerated as follows: WHEREFORE, premises considered, judgment is hereby rendered, dismissing the Information as against ROLANDO MANLANGlT for lack of evidence, and finding both accused HENRY LAGARTO Y PETILLA and ERNESTO CORDERO Y MARISTELA "guilty" beyond reasonable doubt of the crime of RAPE WITH HOMICIDE charged in the Information of these cases, and sentencing both accused (with) the penalty ofreclusion perpetua with all the accessories provided for by law. Said accused are further ordered to indemnify, jointly and severally, the private complainant the sum of P100,000 for the death of the victim, ANGEL ALQUIZA; the sum of P500,000 for moral damages; and the amount of P52,000 for actual damages representing expenses incurred for the wake and funeral of the victim. They are further ordered to pay the cost of these suits. SO ORDERED. Disagreeing with the penalty imposed, the City Prosecutor of Manila filed on 8 February 1995 a motion for reconsideration75 of the Decision, and asked that it be modified by imposing the proper penalty of death instead of reclusion perpetua. In its Order dated 10 February 1995,76 the trial court did not take cognizance of the motion on the belief that "the accused Lagarto and Cordero have complied with the legal requirements for the perfection of an appeal." This prompted the Office of the Solicitor General to elevate the matter to this Court by certiorari. The petition, docketed as G.R. Nos. 119987-88, was unanimously granted by the Court en banc on 12 October 1995, thus: WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance with respondent's judge's

finding that the private respondents in the instant case had committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, subject to automatic review by this Court of the decision imposing the death penalty. SO ORDERED.77 Accordingly, on 22 May 1996, Judge Veneracion promulgated an Order in open court at the National Penitentiary, imposing the proper penalty of death upon the accused. 78 In his Appellant's Brief filed on 9 September 1997, LAGARTO pointed out that the trial court seriously erred: 1. In rendering a judgment of conviction on accused Henry Lagarto apparently by conclusions or assumptions without considering the fact that there is no conclusive evidence to show that Angel Alquiza was really raped and killed by somebody; 2. In failing to consider that there was no credible and acceptable identification which is free from doubt that anyone of the accused and more particularly Lagarto committed of participated in the commission of the crime charged. The prosecution witnesses were coached and (this) was very apparent constraining even the court to warn to (sic) private prosecutor regarding his coaching of the witnesses. Witness Barlam had changed her testimony several times and her general appearance would not merit belief against the constitutional presumption of innocence of the accused. 3. In failing to consider that by physical evidence, the bodega could not have been the situs of the crime disproving thereby the claim that the victim was raped and killed inside is not also because no evidence or traces was found inside it but also because the bodega which is not big simply an uninhabited house, is within the heart of the community and surrounded by houses and an unusual commotion or noise would certainly invite attention. 4. In failing to consider that Henry Lagarto demonstrated his innocence before the court and was supported by witnesses. For his part, after several extensions, CORDERO filed on 29 September 1997, through counsel, his Appellant's Brief. He claims therein that the trial court committed grave and reversible error in the following: 1. In rendering the order dated May 22, 1996 and in considering the same as the promulgation of the penalty of death against accused-appellant Ernesto M. Cordero. 2. In failing to hold that the prosecution failed to prove the corpus delicti. 3. In failing to hold that the evidence of the prosecution and defense both points ( sic) to the fact that accused-appellant Ernesto M. Cordero is completely innocent of the offense charged. 4. In not finding as a fact that the testimony of prosecution's ( sic) witness Major Franklin Gacutan is adverse against the prosecution and points to the fact that the accused-appellant Ernesto M. Cordero is innocent of the offense charged.

5. In failing to hold that prosecution's (sic) witness Herminia Barlam is not qualified to become a witness. 6. In taking into account of, and according evidentiary value to the finding and recommendation of (the) psychiatrist from (the) National Center for Mental Health. 7. In not finding as a fact that it is highly impossible and improbable for witness Herminia Barlam to have seen what had (sic) supposedly happened in the subject warehouse on August 2, 1994. 8. In not finding as a fact that the testimony of prosecution's (sic) witness Heminia Barlam is full of discrepancies and self contradictions. 9. In not finding as a fact that the testimony of prosecution witness Herminia Barlam is highly improbable and contrary to human experience. 10 In not finding as a fact that prosecution witness Herninia Barlam is a perjured, biased and rehearsed witness. 11. In failing to hold that the adverse result against the prosecution of the ocular inspection is a proof that the accused-appellant Ernesto M. Cordero is innocent of the offense charged. 12. In not finding as a fact that the testimonies of the other witnesses for the prosecution are unworthy of belief. 13. In failing to hold that conspiracy is (sic) not proven beyond reasonable doubt by the prosecution and that therefore criminal liability is individual, not collective, and thus exempts the herein accused-appellant from the offense charged. 14. In not finding as a fact that the late Abundio Lagunday was the sole author of the offense charged, 15. In failing to hold that the defense of alibi assumes importance where the evidence for the prosecution is weak and came (sic) from (a) source that cannot be characterized as fully unbiased and disinterested. 16. In falling to hold that accused-appellant Ernesto M. Cordero was illegally arrested and not accorded the right to preliminary investigation. 17. In holding (that) the accused-appellant Ernesto M. Cordero is liable to private complainant for damages. As the issues raised by LAGARTO are covered by CORDERO's assignment of errors, we will concurrently dispose of them. CORDERO claims that the trial court never amended or modified its Decision of 31 January 1995, as mandated by us in People v. Veneracion (G.R. Nos. 119987-88). He argues that the trial court merely "ordered that its Order pursuant to the Decision of this Honorable Court be promulgated by reading to both accused the same Order in the language known and understood by both of them" and did not state that the penalty being imposed was death.

CORDERO's apprehension is unwarranted because the trial court issued two orders in open court at the National Penitentiary on 22 May 1996. The first was made in compliance with our ruling in People v. Veneracion: Pursuant to the Decision of the Honorable Supreme Court in G.R. No. 119987-88 directing the imposition of the penalty of death upon the herein accused in consonance to (sic) the findings that they had committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, the penalty imposed to (sic) the herein accused, HENRY LAGARTO Y PETILLA and ERNESTO CORDERO Y MARISTELA shall, as it is hereby imposed, be the penalty of death. Pursuant further to the aforesaid Decision, after this Order is duly promulgated, let the entire record of these cases be returned to the Honorable Supreme Court for automatic review. SO ORDERED.79 while the other dealt with its promulgation: When these cases were called, both accused appeared assisted by counsel de oficio, Atty. Jovito Salvador, PAO lawyer of Muntinlupa, Metro Manila, who, was appointed counsel de oficio. In view of the failure of counsel on record Atty. Miguel Badando for accused Henry Lagarto and Atty. Paterno Esmaquel for accused Ernesto Cordero to appear despite notice. (sic) Private Prosecutor Pete Prinsipe interposed no objection to the promulgation of the Order in the absence of counsel on record. Thereafter, the Court ordered that the Order of this Court pursuant to the Decision of the Honorable Supreme Court be promulgated by reading to both accused the same Order in the language known and understood by both of them. Thereafter, the order for the transmittal of the entire records of these cases to the Honorable Supreme Court for automatic review is hereby reiterated. SO ORDERED.80 Both LAGARTO and CORDERO claim that the prosecution failed to prove the act of death of Angel Alquiza because her death certificate was not proffered in evidence. Instead, the prosecution presented the Autopsy Report (Exh. "C"), which allegedly cannot be considered as proof of the fact of death of Angel "because there was no proper and sufficient identification of the victim that was mentioned in said autopsy Report."81 This issue, however, is answered in CORDERO's Brief itself: "The said Autopsy Report states that the body of the supposed victim, Angel Alquiza, was identified by a certain Romezen Alquiza, a brother of the victim."82 The records show that Romezen submitted to the NBI a request for autopsy and the NBI issued a Certificate of Identification of Dead Body which he also signed.83 These were essential for the autopsy which was eventually made by Dr. Lagat. In any case, there is no rule that specifies who may identify a victim. It is enough that such persons knows the one being identified. Certainly, a brother of the victim can recognize his own sister even with her manifest physical injuries. The prosecution cannot be faulted for not

presenting other witnesses to verify Romezen's identification, the choice of witnesses being a matter of legal strategy and prerogative. Neither was CORDERO denied any opportunity to cross-examine him regarding such fact because the Autopsy Report is an official document the authenticity of which is presumed. Its validly, therefore, cannot be collaterally attacked by putting Romezen on the witness stand.1wphi1.nt As to the legal failure of the prosecution to prove the cause of Angel's death, LAGARTO and CORDERO maintain that the fact of stabbing which, according to the post-mortem findings of Dr. Lagat, was the cause of death of the victim was not adequately established. Dr. Lagat said that there might be other causes of death, such as Angel being hit by a motor vehicle. But then, this is a mere probability. If we were to stretch this line of reasoning further, other possibilities may be apparent: Angel could have still been alive when she was ran over by the motor vehicle, as suggested by the defense; on the other hand, she could have already been dead at the time. Preliminary police findings showed the that sack wherein Angel's body was placed was found along a truck route. In the flooded street, it could have easily been hit by a truck, thus, producing the cranial injury which the defense suggests might be the true cause of Angel's death. Or, it is also likely that she could have been severely hit on the head by a hard object. This last scenario, being supported by the testimony of prosecution witness Barlam, seems more plausible. It is worth mentioning that Angel suffered numerous injuries which could not all have been caused by a motor vehicle. Neither could the defense explain why or how the body could be wrapped in a round yellow tablecloth, then put inside a sack, if Angel was still alive at the time. CORDERO even stresses that his table has a glass top, instead of a mantle. He fails to consider the implication of this fact: The round yellow tablecloth seen in his house by Ofelia Lagman in July 1994 was the one used in wrapping Angel's body because said tablecloth was no longer there after the incident in question. The prosecution, for its part, offered convincing and logical answers to these questions, based on the testimonies of its witnesses. It is further argued that the prosecution failed to prove the fact of rape because the Autopsy Report did not categorically state that Angel was, in fact, raped. Dr. Lagat's examination revealed that Angel's genital injury was caused by a sharp-bladed weapon. Ultimately, CORDERO concludes, "the testimony of witness Barlam regarding the rape in question cannot prevail over the aforesaid finding and autopsy report of Dr. Lagat." This is non sequitur. The finding that the incised wound on Angel's genitals was caused by a sharp-bladed instrument does not necessarily mean that she was not raped. Barlam, whose competence and credibility as a witness was upheld by Judge Veneracion based on the NCMH report and on his own observation of her deportment during the three days she testified in court, swore that she saw Angel being raped in the early hours of 2 August 1994. CORDERO also claims he was never properly identified as one of the perpetrators of the crime charged. Jose Soriano said he saw Angel with Lagunday on the night of 1 August 1994 and they "appeared normal." Barlam's sworn statement of 4 August 1994 mentioned Lagunday, LAGARTO, and a certain Lando, but not CORDERO, a fact confirmed by PO3 Ko and SPO2 Miranda. Maj. Gacutan said they had no evidence against CORDERO, so they allowed him to go home after he was initially invited to the police station. Vivencio Singalawa claimed Lagunday admitted sole authorship of the crime. And because he was not properly identified by the State's prime witness, CORDERO suggests that Barlam was merely coached by the family of Angel to implicate him. We are not convinced. Jose Soriano could not have seen CORDERO with Angel that night because CORDERO was somewhere else at the time. Prosecution witness Rolando Javar saw CORDERO and LAGARTO between 9:30 and 10:00 p.m. on 1 August 1994 standing by the warehouse at Kagitingin; as if they were waiting for someone (palinga-linga). Javar is even related to CORDERO by affinity; his son being married to CORDERO's daughter, so there appears no plausible reason for him to lie, especially in this case where his balae is faced with death sentence. On the other hand, whatever Lagunday revealed to Singalawa is purely hearsay, since Lagunday died even before arraignment.

As stated earlier, Barlam's sworn statement of 4 August 1994 was taken by PO3 Ko with the assistance of SPO2 Miranda. Since she is illiterate and at the time had not yet been equipped with a hearing aid, it is highly probable that the essence of her narration was not captured in the translation and transcription. In any event, even if she did not name CORDERO in her sworn statement, she undoubtedly and consistently pointed to him and LAGARTO in open court, even slapping and boxing them at times to demonstrate her indignation. We agree with the trial court that by her words and actions, Barlam had sufficiently and convincingly identified CORDERO and LAGARTO as two of the men who raped and killed on 2 august 1994. The manner in which Barlam testified in court betray not a single hint that anyone had coached or coaxed her to implicate CORDERO. Defense witnesses Gloria Sigua and SPO2 Miranda supposedly witnessed how a companion of Zenaida Alquiza showed Barlam a newspaper with CORDERO's picture in it. Sigua allegedly argued with this woman after hearing her say, "ito ba, isama mo na ito sa pagturo."84 Yet, SPO2 Miranda, who was standing besideBarlam at the time, heard nothing.85 What is even more telling is he believed there was nothing wrong with Barlam, save for her hearing impairment, and that she was telling the truth. 86 For his part, Maj. Gacutan supposedly did not arrest CORDERO because had no evidence against him. The information supplied by prosecution Lagman and Javar, linking CORDERO to the crime, was sufficient to give the police a reason to arrest him. Ultimately, CORDERO's role in the crime charged was duly established when he was positively identified in court by Barlam as the cohort of Lagunday and LAGARTO. From the moment Barlam surfaced as an eyewitness to the crime, accused-appellants LAGARTO and CORDERO, through counsel, have desperately tried to disqualify her on ground of incompetence. Obviously aware of the futility of any to objection to Barlam's testimony on account of the psychiatric finding by the NCMH, after the three examinations, that "she may be deemed competent," the defense attacked instead the damaging contents of the NCMH psychiatric evaluation report anchored on the following grounds: (1) said report is hearsay because the doctors who prepared and issued the same were not presented in court; and (2) it was not offered in evidence by the prosecution. This argument fails to consider the very nature of the NCMH report. Having made upon order of the trial court, such report is in the nature of an official document in aid of judicial determination. It is not evidence for the prosecution or against the defense but a document a scientific report prepared and issued by an entity totally removed from the criminal proceedings, hence, indifferent, objective, and impartial. To be utilized by the trial court, it need not be offered in evidence by the prosecution because the court may take judicial notice of its existence and composition. It is also for this reason that its contents cannot be rejected on account of being hearsay. The fate of accused-appellants LAGARTO and CORDERO depends greatly on the credibility of Barlam as a witness. The trial court also recognized this, such that it propounded numerous classificatory questions throughout the hearings of 3 and 4 October 1994, when Barlam was testifying on the witness stand after her psychiatric examination, just to elucidate her responses amid the sea of queries unleased by the lawyers. It is in cases like this where we find ourselves adhering more to the principle that factual findings of the trial court must be accorded respect and even finality on appeal because the trial judge had every opportunity to question the witness, hear her testify, and observe her demeanor and deportment. 87 Exceptions to this rule exist, such as when the trial court's evaluation was arbitrarily made, or when some substantial fact or circumstance which might affect the result of the case has been overlooked, misunderstood, or misapplied, but no such peculiarity is apparent in the case at bar. 88 The trial court has "keenly observed (Barlam) during her testimony and . . . is convinced that she is speaking the truth."89 After poring over the voluminous records of this case and scrutinizing the assailed Decision of 31 January 1995, we see no reason to depart from this conclusion.

We agree with the observation of the trial court that Barlam was referred to the NCMH precisely upon the repeated motion of defense counsels. Because of her damaging testimony, her disqualification was the best ploy for the defense. Barlam, however, adequately met the minimum requirements for qualifying as a witness under Sections 20 and 21, Rule 130 of the Revised Rules on Evidence, thus: Sec. 20. Witnesses; their, qualifications. Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime, unless otherwise provided by law, shall not be a ground for disqualification. Sec. 21. Disqualification by reason of mental incapacity or immaturity. The following persons cannot be witnesses: (a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) . . . Barlam could certainly perceive and make known her perception to others. Even if she is deaf, she saw what happened on 2 August 1994. She related what she saw to the police on 4 August 1994; to the psychiatrists who examined her at NCMH on 26, 29, and 31 August 1994; and to the trial court on 26 August, 3 and 4 October 1994. Did she "intelligently" make known her perception to others, especially when she testified in court? Certainly, she did. Everybody understood her even if some of her statements on minor points were inconsistent. A perusal of the transcript of stenographic notes would readily reveal that counsels for the defense attempted in vain to confuse her on relevant facts, even confronting her with her sworn statement a clear indication that she connected with them "intelligently." Because of Barlam's "deafness and associated mental retardation," the defense harped that she should be disqualified from testifying. The disquisition above, notwithstanding, we have ruled that even a mental retardate or a feeble-minded person could qualify as a competent witness.90 Instead of finding Barlam, unfit to be a witness, the NCMH even bolstered her credibility by declaring her to be competent and consistent in her recollection and narration of the events she witnessed on 2 August 1994. Barlam was ordered by the court to undergo psychiatric tests because she exhibited some aberrant behavior. Her speech was fragmented, at times unintelligible or incongruous, but this was due in most part to her congenital deafness and anxieties. The fact remains that the thrust of her testimony regarding the circumstances surrounding the events that transpired on 2 August 1994 never varied. Against the recommendation of the NCMH that her examination in court should be free from distraction and intimidation, defense counsels literally tried every trick in the book to badger and confuse her, derail her testimony by confronting her with her sworn statement, and otherwise cast doubt on her capacity to testify. Yet, her testimony held. When Barlam testified on 26 August 1994, prior to her psychiatric examination, she declared thus: ATTY. PRINSIPE (Private Prosecutor):

Q On August 2, 1994 at around 2:00 in the morning, will you tell the Court where were you? Will you (the interpreter) please whisper to the right ear (of the witness) because this is a vital witness and we (the prosecution) will request repeatedly. WITNESS: Kalsada. ATTY. ESMAQUEL (Counsel de parte for Cordero): At this juncture, may we manifest that the answer of the witness is not responsive. The only question is - - - (cut short) COURT: She answered "kalsada" ATTY. PRINSIPE: Q A Where is that street you mentioned? Kagitingan.

Q And will you kindly tell the Honorable Court whether there was an unusual incident that happened on that date and time? A It's Monday - - - (cut short)

ATTY. ESMAQUEL: May we manifest that the answer is not responsive to the question. The question is whether there was an unusual incident that happened on that date and time. A Oh, hindi ako nanloloko peksman.

ATTY. PRINSIPE: Please related (sic) it to the Court. A Mama na naka salamin - - -

ATTY. ESMAQUEL: May we request that the answer be stricken out of the record for not being responsive.

ATTY. BADANDO (Counsel de parte for Lagarto): Your honor, I would like to make an observation on record that I could not see any man wearing an eye glasses. COURT: Sige. WITNESS: The man wearing eye glasses - - sinaksak ang bata. COURT: Go down from where you, were and go to the person whom you said - - (cut short) ATTY. PRINSIPE:

Q You stated that somebody was hogtied or tying a sack, do you know whatever there was (anyone ) inside, that sack. A xxx Marami sako, maraming tali, damit ng bata sira-sira na. xxx xxx

ATTY. PRINSIPE: You were stating that you saw Cordero tying the sack, were there any other person present during that tying of the sack? A isa. Wala ngang tao. Lima kami, iyan, iyan, isa patay na. Anim iyon, patay na ang

ATTY. BADANDO: The first thing she said was "siya, ako at siya." ATTY. ESMAQUEL:

Before that your honor, I just want to make an important observation that immediately after the witness pointed, that man Cordero, he removed his eye glasses, your honor. INTERPRETER:

Yes, let it be on record. ATTY. BADANDO: Which means three including herself.

Please make it of record that the witness step(ped) down from the witness stand and she is now going to the place - - - (cut short) COURT: Point to the man. INTERPRETER: - - - and she is now pointing to a man, and when asked to identify himself, he claims that he is Ernesto Cordero and the other one is Henry Lagarto. ATTY. PRINSIPE: The witness is very angry your honor, in pointing to the accused.91 xxx xxx xxx

ATTY. PRINSIPE: You said three? A Iyong isa patay na.

ATTY. PRINSIPE: Will you please look around and see whether the two whom you are referring to are inside the courtroom? Will you please step down from the witness stand and approach the two, tap them on the shoulder. INTERPRETER: The witness step(ped) down from the witness stand and she is now going to the two men, who, when asked to identify themselves claim(ed) that they are (sic) Ernesto Cordero and Henry Lagarto. ATTY. PRINSIPE:

You pinpointed Cordero a while ago, why did you pinpoint him? A Iyan ang nakita ko. Iyan tali sako tapos tapon Moriones.

Q You said that you saw Cordero tying the sack, why do you know, do you know the reason why he was tying that sack? ATTY. ESMAQUEL:

ATTY. PRINSIPE: Q A Do you know the name of the child who was stabbed? Oh oh.

Incompetent to answer. The only thing is because the witness - - - he is asking about Cordero. COURT: Sustain. ATTY. PRINSIPE: Q Why were you in that place you mentioned a while ago on that date and time?

ATTY. ESMAQUEL: May we manifest that the witness failed to answer. COURT: In the interest of justice, repeat the question. (Interpreter repeating) A. Oho.

A Iinom ako kape. Iiyak iyak bata. Nagugutom ako. Dinig sabi nang mama, huwag ka ingay. - - tapos pinalo ako, sabi ko bakit iyak bata, tapos sabi ko wala na patay na, ah ah ah. FISCAL (Should be either Atty.; Esmaquel or Atty. Badando):

ATTY. PRINSIPE: What is the name? Do not allow her to be relating a story. A ATTY. PRINSIPE: Q Who was the child you saw and you heard crying? What is the name? A ATTY. BADANDO: Q Your honor, I object because she was (not) able to identify any child. What she stated (earlier) is a certain Tetchie, a mother of that woman. There is no basis. COURT: Answer. ATTY. ESMAQUEL: A May I join the objection on the ground that earlier, she was asked - - - (cut short) COURT: Let the witness answer. Objection overruled. A Batang sinaksak. Iinom ako kape. Lalaba. Iihi ako. (24) Iihi ako sa dulo. May tubig sa dulo. Doon ako huhugas. (25) FISCAL: Q Were you able to finish washing? A If I will show you the picture of Jingjing, would you be able to recognize her? Oho.92 Dinig ko sa kalsada. Why do you know that the name of the child is Jingjing? Jingjing.

On 3 October 1994, Barlam went back to court after being cleared by the NCMH to testify and after being fitted with a hearing aid. Excerpts from that day's hearing are hereunder quoted minus the objections, comments, and oral arguments of counsels. The questions were translated into Tagalog and her responses quoted verbatim by the court interpreter. The pages where they appear in the TSN are in parentheses. Fiscal Narciso J. Rosero, Jr. began the examination by asking what Barlam was doing in the morning of 1 August 1994 (or evening of 2 August 1994).

A Q

Oh. After you were able to finish washing, what did you observe, if any?

FISCAL: Q So what happened when you answered them that you will not leave, maski na patayin ka. A Malayo ako doon, binato ako ng kahoy. Hindi ako loloko. Totoo yon.

ATTY. BADANDO: Very vague. COURT: Answer. A Kita ko tatlo lalake, isa bata apat tao, tatlo lalake isa bata. Totoo sinasabi ko. Q After you said one of these male persons hit you with a piece of wood on your left knee and on your left elbow, what did you do next after that? A Aalis mata, aalis tenga, aalis hikaw, hiwa dito, hiwa kiki niya." Pag hindi totoo, ikukulong ako tapos. (32) ATTY. BADANDO: Let it be made of record that. the witness is mentioning or motioning that after slashing the child including the private part, she motion(ed) "anunta, anunta". The witness is touching her index finger into her palm, and then pointing to her private part. That was aside from slashing. FISCAL: A Oho. Q Q Will you please look around inside the courtroom and find out whether they are all here? INTERPRETER: The witness step(ped) down from the witness stand and the witness now is slapping the face of one male person two male persons, and when asked to identify themselves, they claimed that they are (sic) Ernesto Cordero and Henry Lagarto. A Isa patay na. Who, of these three male persons, who among them "anunta, anunta"?

FISCAL: Q These three male persons who you saw that morning these three male persons whom you saw together with the female child, would you be able to recognize these three male persons if you see them again? (27)

ATTY. BADANDO: Your honor, let it be reflected also on record that the witness said that there was a person who has an eyeglasses, but when we look(ed) around, there was no such person wearing an eyeglasses. INTERPRETER: The witness is pointing to the two accused, (33) which, when asked answered by the name of Ernesto Cordero. ATTY. ESMAQUEL: I would like to request, your honor, that the witness be admonished not to slap the accused. FISCAL: The actuation of the witness is merely a sign of her sincerity in conveying the truth to the Honorable Court. (34) xxx FISCAL: xxx xxx

FISCAL: Q How about the female child whom you saw in the company of these three male persons, if you see her again; would you be able to recognize her? A Oho. (28)

At this point, Barlam was shown six pictures of seven different girls from she correctly picked out the picture of Angel Alquiza.93 WITNESS: Sabi nila, alis na, alis na sabi. Sabi ko ayoko, patayin na ninyo ako, hindi ako aalis.

Q if any?

Alright, aside from this "anunta, anunta", what did these two persons do next,

You go down again and point to the one who wrapped the child with the yellow material? A Iyan tali. Iyan na nga ho.

A Isa palo ulo, isa alis diyan, isa pinto, diyan ka, sabi, diyan ka muna, isa palo ako tapos hikaw alis. Q A (A)fter all those things, what next did these three persons do?

COURT: The witness pointed to the accused Cordero. Isa tali paa, pula, tapos isa dilaw, balot sako, kurtina, wala na, tapos na. Q COURT: ATTY. BADANDO: Who was the one of the two accused who tie(d) the sack? And the witness was shouting yanyanyan. INTERPRETER: COURT: The witness step(ped) down from the witness stand and (s)he is now going to the accused (cut short) (41) ATTY. ESMAQUEL: May I manifest, your honor, that what has been pointed out by the witness is the accused Lagarto, your honor. ATTY. BADANDO: Let it be recorded that what has been stated earlier, the one pointed was Cordero. It is clear from the transcript of stenographic notes dated August 26, 1994 that when asked by (sic) the same question, the witness pointed to the accused Cordero as the one who tie(d) the sack. FISCAL: That is already on record. ATTY. ESMAQUEL: And now, the one pointed to was the accused Lagarto. (42) COURT: Who was the one who wrapped her with the yellow tablecloth? Q COURT: Iyan. A Sabi ko, kawawang bata, tapos hiwa dito, tangal mata. Totoo iyon, hindi ako nagsisinungaling. (44) ATTY. BADANDO: The witness, a while ago, is motioning that tears (were) flowing down from the eye of the child. A Ayan, ayan. Q A You said that the face, was slash(ed), who slash(ed) the face? (43). Kalbo. You said that the eye was taken out, who remove(d) the eye?

INTERPRETER: The witness step(ped) down again to (sic) the witness stand and she is now pointing to the accused Lagarto. COURT: Who was the one who slashed the private part of the child? Iyan nga dalawa. Kulit mo kausap. Iihi ako, saan ako iihi ako.

FISCAL: Q You stated a while ago that you heard a child somewhere crying, when you heard somewhere a child crying, what did you do, if any?

FISCAL: Q A How did you come to know that tears were flowing from the eye of the child? Sindi ako kandila, kita ko tulo

FISCAL: Q At the time the portion of her body was slashed, and the private part of the body was slashed (46) by the accused, what was her attire, was she still wearing that attire? A Q A Hindi na. What do you mean? Patay na siya. Wala nang damit. (47)

INTERPRETER: Witness referring to her two eyes. WITNESS: Hina lang. FISCAL: Q A At the time you lighted the candle, how far were you from the child?

The following day, 4 October 1994, Barlam was cross-examined. Her testimony, as that on direct, are similarly quoted and paginated: Q Before the incident that you saw on August 2, 1994, did you already know Angel Alquiza? A Oo. Kakain ng lugaw.

Dito ako ihi, sa dulo, butas dito, dito bata. Q When for the first time did you meet Angel Alquiza before that incident on August 2, 1994? A xxx Lima taon siya. Ito bahay, ito kalsada, ako lalaba. Ang ganda bata. (11) xxx xxx

ATTY. BADANDO: We would like to stipulate as to the distance that that is only one arm(s) length. (45) FISCAL:

ATTY. ESMAQUEL: About one arm(s)length or one a half arm(s)length. Q A Where was (sic) these three persons at the time you saw the child crying? Sa gilid. Dito kahoy, tapos tali sako, tapos balot dilaw, tali pula, tali paa. Q Before the incident which you saw on August 2, 1994, have you already met or saw (sic) the accused Cordero? (15) A Q A Q A Q What was the attire of the child, if any, when you saw her crying, if any? Dilaw daster may manggas. A Hindi pa. So when for the first time did you see the man with an eye glasses? Noon nga, noong una doon. Tatlo iyan. Patay na isa. When you said "noon nag, what are you referring to? Isa bata tatlo lalaki. And where did you see those three male(s) and one child? Iihi ako dulo. Sindi ako kandila. Doon tubig huhugas ako, "uulan-ulan.

INTERPRETER: Witness is motioning to her feet. WITNESS: Totoo ho, hindi ako nanloloko. FISCAL: Q A

INTERPRETER:

Witness is motioning the size of the candle. A Tapos ligo na ako. Ihi ako tapos dito rinig ko bata aray. Nihiwa na.

INTERPRETER: Witness is motioning to the eye, the ears, (16) the throat, the private organ. A Ako nga palo kahoy. (17)

Barlam's erratic behavior became manifest as the hearing droned on, but so did the clarity and consistency of her narration. She pretended picking lice off the interpreter's head; she said her father's cousin was a tin can; she even allegedly exposed her private part to the defense counsels. There is no denying, however, that she saw Angel surrounded by these three men one a pedicab operator with a history of abusing even his own daughters; the other two, scavengers and occasional pedicab drivers. CORDERO stood before her as she knelt on the floor. LAGARTO stayed by the door. Lagunday saw Barlam, shooed her away, then went after her and hit her with a piece of wood when she would not leave. The left side of Angel's face was slashed twice by CORDERO, who also gouged out her eyes and cut her vagina all the way to and beyond her anus. He took her earrings. Angel's head was bashed in when she was hit with a piece of wood by LAGARTO and Lagunday.94 Even on re-direct examination, Barlam was certain that it was CORDERO who slashed Angel's vagina and raped her. ("Hiwa dito hiwa dito, anunta, anunta, hiwa kiki, tanda na hiwa pa kiki.")95 The one who hit Angel with a thick piece of wood was LAGARTO, and Barlam identified him in dramatic fashion by slapping and boxing him.96 When confronted with her sworn statement where she said that the man who hit Angel with a piece of wood was "Lando walang ipen," it was made clear by the prosecution that such sworn statement was made in connection with an investigation conducted by PO3 Ko when Barlam had not yet been fitted with a hearing aid. In fact, she did not and could not read such statement so it had to be "read" to her by SPO2 Miranda without her hearing aid. Barlam never deviated in relating to the court the complicity of Lagunday, CORDERO, and LAGARTO in the rape-slay of Angel. In the assailed decision, the trial court even observed that from afar, LAGARTO looked as if his front teeth were missing. 97 Barlam's testimony, in our opinion, adequately established the liability of Lagunday, LAGARTO, and CORDERO for raping and killing Angel Alquiza. She not only proved to be competent but also truthful in her narration of what transpired on 2 August 1994. Her sworn statement might not entirely jibe with her oral testimony, but we have ruled that in case of conflict between the contents of a sworn statement and testimony in open court, the latter generally prevails since ex parte affidavits are often incomplete and inaccurate because by their nature, they are ordinarily prepared by a person other than the affiant.98 Barlam may have strangely at times, but such idiosyncrasy has no bearing on the consistency and veracity of her testimony. She repeatedly pointed to accused-appellants LAGARTO and CORDERO as she spoke, and slapped, boxed, and glowered at them when she was asked by the court to identify the malefactors. Neither can we discount the psychiatric report which gave Barlam a clean bill of mental health. For three days, she was examined by professional psychiatrists, but her story remained the same. It was the same story she narrated in court, albeit with some minor inconsistencies. It must also be noted that Barlam absolutely has no motive to falsely testify against LAGARTO and CORDERO. The absence of evidence of any improper motive actuating her as the principal witness of the prosecution strongly tends to sustain the conclusion that no such improper motive existed at the time she testified and her testimony is worthy of full faith and credit.99

LAGARTO and CORDERO deny the allegations against them and said they were sleeping in their respective homes at the time the crime was supposedly committed. By itself, alibi is a relatively weak defense; it is further emasculated in the absence of any showing that it was physically impossible for the accused to have been at the crime scene or its immediate vicinity at the moment it was being perpetrated.100 CORDERO's home is merely ten blocks from the warehouse at Kagitingan St. He denied any knowledge of its existence, which is highly dubious considering that it is a roadside structure. His daughter Emily and Eriste supported his alibi, but only up to the time that he supposedly slept at around 11:00 p.m. on 1 August 1994. LAGARTO, on the other hand, lived with his family at Parola Area D, Tondo, Manila, which is a jeepney and tricycle ride from the warehouse at Kagitingan St. His neighbors, Besonia and Badilla, and mother Noriana corroborated his story that he slept at around 7:00 p.m. on 1 August 1994 until 5:00 a.m. the following day. But on cross-examination, he admitted he was all alone in their house when he slept. The fact that LAGARTO and CORDERO were at home in the evening of 1 August and in the morning of 2 August is no indication that they were there the whole time. They were both placed at the crime by two witnesses. Javar saw them in front of the warehouse between 9:30 and 10:00 on 1 August 1994, as if waiting for someone. Barlam saw them inside the warehouse around 2:00 a.m. on 2 August 1994. CORDERO was the one who stabbed Angel in the face, slashed her organ, raped her, and tied her feet. LAGARTO hit angel on the head. Together with Lagunday, the three wrapped her in yellow tablecloth identical with the one Lagman saw CORDERO's house, put her in a sack which they tied with a nylon cord, then, under a mantle of heavy rain, set her adrift in murky floodwater. Incidentally, CORDERO raises in issue the delay in which Javar reported to the authorities what he knew about Angel Alquiza's case. This was properly addressed by Javar when he said that he did not initially want to report the matter to anyone because CORDERO was his balae.101 In the end, his conscience convinced him to shun family ties in order to help bring justice to Angel. Besides, LAGARTO and CORDERO were positively identified by prosecution witness Barlam as the authors of the crime charged. Their denial and alibi cannot prevail over the positive identification and assertions of Barlam.102 LAGARTO and CORDERO make much of the perceived impossibility of committing the crime in the warehouse of Mang Gorio. Maj. Gacutan visited the place on 4 August 1994 and found its perimeter adequately lit and surrounded by residential houses, but its interior was so dark that anyone who peeped from the outside would not have seen anything inside. He did not even find any evidence in the dark bodega. This argument is untenable. It is established that rape is no respecter of time or place. It can be committed in small, confined places, like a one-room shack and in the presence of other family members,103 or a small hut on a raft (alang).104 The same can be said of any other crime that accompanies and compounds the rape. In the case at bar, even if there were houses around the warehouse and there was a lamppost nearby, there is no dispute that Angel was assaulted therein at 2:00 in the morning during a heavy downpour. Under the condition then prevailing, the desolation of the warehouse and its immediate vicinity provided a perfect cover for the atrocities perpetrated against Angel. On the other hand, when the court conducted an ocular inspection of the warehouse on 22 November 1992, it was noted that the holes through one or more of which Barlam had witnessed the crime have been patched up. The protestation of CORDERO and LAGARTO cannot be given serious consideration because the trial court gathered "from the Barangay Captain and other residents that there have been alterations in the warehouse; that the opening had been covered, so much so that the actual conditions of the warehouse at the time of the commission of the offense are no longer obtaining during the ocular inspection."105 LAGARTO and CORDERO likewise question the wisdom of this observation because there is allegedly no evidence, testimonial or otherwise, which would support it. The ocular inspection was, however, conducted with the assistance of the Barangay Captain and some residents. The conclusions of the court, therefore, is not conjectural but based on

information supplied by the escorts who were more familiar with the physical condition of the warehouse. As regard Maj. Gacutan's investigation, which allegedly yielded no evidence against LAGARTO and CORDERO, the trial court correctly observed that this is to be expected because Maj. Gacutan "did not take with him any (forensics) expert to any instrument to recover any physical evidence."106 Nonetheless, his failure to obtain any evidence from the crime scene does not ipso facto eliminate the fact that a crime was committed therein, especially in view of the damning testimonies of the prosecution witnesses. The next crucial question to be resolved is whether LAGARTO and CORDERO, together with deceased Lagunday, conspired to rape and kill Angel. The following undisputed facts must be taken into consideration and read in connection with Barlam's testimony: 1. On the night in question, Angel was last seen being led by the hand of Lagunday. Javar saw Angel riding "Ernie Sidecar No. 14" which was driven by Lagunday. Ligaya, wife of CORDERO, confirmed that on 1 August 1994, Lagunday drove "sidecar No. 14" which was part of their fleet of pedicabs. 2. LAGARTO was arrested by the police after Lagunday implicated him along with accused Manlangit, Baltazar, and Yaon. 3. Eyewitness Barlam positively identified Lagunday and LAGARTO from a police line-up as two of the tree men she saw raping and killing a girl in the abandoned warehouse of Mang Gorio at Kagitingan St. 4. Lagunday and his co-accused Manlangit both used to work for Mang Gorio at the latter's junk shop, which is the abandoned warehouse where the crime took place. 5 Lagman told the NBI and the police that the yellow tablecloth where Angel's body was wrapped was the one she saw at the CORDERO residence. 6. Javar saw CORDERO and LAGARTO in front of the warehouse on the night in question as if they were waiting for somebody. 7. During detention, Lagunday pointed to CORDERO as the alleged mastermind. 8 Barlam saw CORDERO slash Angel's face and genitals before raping her, while LAGARTO stood by the door. Lagunday and LAGARTO both hit Angel's head with a piece of wood. When angel was dead, they tied her feet, wrapped her in a round yellow tablecloth possibility owned by CORDERO, placed her in sack, then set adrift in the floodwater of Del Pan. All these demonstrate that the prosecution established beyond reasonable doubt that LAGARTO, CORDERO, and Lagunday shared a common design to rape and kill Angel Alquiza. Although there is no direct proof of such unity of purpose, conspiracy was properly appreciated in these premises by the trial court because their individual acts, taken as a whole, showed that they were acting in unison and cooperation to achieve the same unlawful objective. 107 Under these premises. it is not even necessary to pinpoint the precise participation of each of the accused, the act of one being the act of all. 108 Thus, the trial court correctly observed that "conspiracy is established by the concerted action of the accused in the commission of the crime

as well as in their concerted efforts after the commission of the crime as well as in their concerted efforts after the commission of the crime," 109as when they attempt to dispose of the body of the victim to hide their misdeed. In the case at bar, the trial court found that CORDERO, LAGARTO, and Lagunday acted in concert to slay the victim and thereafter conceal her body by wrapping it in a round yellow tablecloth, putting it in a sack, and leaving it in flooded street in Del Pan. Jurisprudence constantly points out that the conduct of the accused before, during, and after the commission of the crime may be considered to show an extant conspiracy. 110 Even if by Barlam's testimony it would appear that only CORDERO raped Angel, LAGARTO is still liable for the crime of rape with homicide because where conspiracy is adequately shown, the precise modality or extent of participation of each individual conspirator becomes secondary. The applicable rule, instead, is that the act of one conspirator is the act of all of them. 111 CORDERO insists that the trial court erred in failing to hold that he was illegally arrested and was not accorded the right to a preliminary investigation. This argument has no merit. CORDERO voluntarily entered a plea of "not guilty" when he was arraigned on 22 August 1994.112 By so pleading, he submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest, for the legality of an arrest affects only the jurisdiction of the court over his persons.113 Besides, his act of entering a plea when arraigned amounted to a waiver of the right to question any irregularity in his arrest. 114 It is too late for CORDERO to protest his arrest because a valid information had been filed against him, he was properly arraigned, trial commenced and was terminated, and a judgment of conviction had been rendered against him.115 Besides, his illegal arrest, if such was the fact, did not have any bearing on his liability since an allegation of an invalid warrantless arrest cannot deprive the State of his right to prosecute the guilty when all the facts on record point to his culpability. 116 Any irregularity in his arrest will not negate the validity of his conviction duly proven beyond reasonable doubt by the prosecution.117 LAGARTO and CORDERO were charged with and convicted and the special complex felony118 of rape with homicide, defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, viz.: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. . . .; 2. . . .; 3. When the woman is under twelve years of age or is demented. xxx xxx xxx

When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death. xxx xxx xxx

It having been established beyond any shadow of a doubt that LAGARTO and CORDERO raped and killed her on the occasion of the rape, the mandatory penalty of death is inescapable. Four Justices have continued to maintain their stand that R.A. No. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the

effect that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In view of foregoing, it may no longer be necessary to consider if any of the qualifying and generic aggravating circumstances alleged in the informations had been proven or if any mitigating circumstance had been established. Article 63 of the Revised Penal Code, as amended, provides that in all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. However, for determining the civil liability, an appreciation of one aggravating circumstance the cruelty that attended the rape and killing of Angel may be in order. Angel was a seven-year old child. Her captors and tormentors were grown-up men. The Autopsy Report (Exh. "C") listed her injuries: numerous hematomas, abrasions, contused-hematomas, incised wounds, fractures, lacerations, and stab wounds. Both of her eyes were missing. Her vagina was sliced, producing an incised wound 14 centimeters long that went beyond her anus and causing disembowelment. This was done presumably so that her underdeveloped organ could accommodate the organs of the assailants. She was bleeding to death, her intestines spilling out, when CORDERO raped her in the presence of LAGARTO and Lagunday. Her head was hit so hard that part of her brain began to leak through the fracture. Angel Alquiza suffered through all these. She did not die instantaneously. The cruelty inflicted was too much and could only come from persons turned beast. The presence of the aggravating circumstance of cruelty119 warrants the award of exemplary damages,120 which we hereby fix at P100,000. The award of P500,000 as moral damages, which no longer requires proof per current case law,121 has to be reduced to P100,000. Current jurisprudence122 has fixed at 100,000 the indemnity in cases of rape with homicide. WHEREFORE, the judgment of the Regional Trial Court of Manila, Branch 47, as modified in the Order of 22 May 1996, in Criminal Case Nos. 94-138071 and 94-138138 dated 31 January 1995, imposing the death penalty on accused-appellants HENRY LAGARTO y PETILLA. and ERNESTO CORDERO y MARISTELA is AFFIRMED, with the MODIFICATION that said accused-appellants are hereby ordered, jointly and severally, to pay the heirs of the victim, Angel L. Alquiza, the amounts of P100,000 as indemnity, P100,000 as moral damages, and P100,000 as exemplary damages, in addition to the P52,000 awarded by the trial court as actual damages.1wphi1.nt In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, upon finality of this decision, let the records of these cases be forwarded to the Office of the President for possible exercise of executive clemency. Costs against accused-appellants. SO ORDERED. G.R. No. 71523-25 December 8, 2000

G.R. No. 72420-22

December 8, 2000

JESUS E. ESTACIO, petitioner, vs. SANDIGANBAYAN, respondent. x-----------------------x G.R. No. 72384-86 December 8, 2000

ALFREDO R. FAJARDO, JR., petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. x-----------------------x G.R. No. 72387-89 December 8, 2000

MARCELO S. DESIDERIO, petitioner, vs. PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents. DECISION BUENA, J.: Challenged in these four separate petitions for review on certiorari is the Decision dated July 19, 19851 of the Sandiganbayan disposing of Criminal Case Nos. 5949 to 5951 as follows: "WHEREFORE, judgment is hereby rendered, finding accused Alfredo Fajardo, Jr. alias Boy Fajardo, Marcelo Desiderio y Silvestre, Jesus Estacio y Estrella and Rolando Santos y Ramirez alias Mickey Mouse, GUILTY as co-principals in the three (3) separate complex crimes of Estafa Thru Falsification of Public Documents and hereby sentences them as follows: "1. In Criminal Case No. 5949, there being no modifying circumstance in attendance, each of said accused to suffer the indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY ofprision correccional as the minimum, to TEN (10) YEARS and ONE (1) DAY of prision mayor as the maximum; to pay a fine of P5,000.00 each, to indemnify, jointly and severally, the Bank of the Philippine Islands and/or the Central Bank of the Philippines in the amount of P1 million representing the amount defrauded, and to pay their proportionate costs of said action; "2. In Criminal Case No. 5950, there being no modifying circumstance in attendance, sentences each of said accused to suffer the indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional as the minimum, to TEN (10) YEARS and ONE (1) DAY of prision mayor as the maximum, to pay a fine of P5,000.00 each, to indemnify, jointly and severally, the Bank of the Philippine Islands and/or the Central Bank of the Philippines, in the amount of P3 million representing the amount defrauded, and to pay their proportionate share of the costs of said action;

ROLANDO SANTOS y RAMIREZ, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. x-----------------------x

"3. In Criminal Case No. 5951, there being no modifying circumstance in attendance, sentences each of them to suffer the indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional as the minimum, to TEN (10) YEARS and ONE (1) DAY of prision mayor as the maximum, to pay a fine of P5,000.00 each, to indemnify, jointly and severally, the Bank of the Philippine Islands in the amount of P5 million representing the amount defrauded, and to pay their proportionate share of the costs of said action. "Accused Estacio, Fajardo, Jr., Santos and Desiderio appear to have been detained at the NBI as of February 16, 1982 by virtue of a Presidential Commitment Order, although all of them were later bonded and released on different dates, except Santos who has remained in custody up to the present. Accordingly, they should be granted the benefits of such preventive imprisonment under Article 29 of the Revised Penal Code, as amended, as follows: Santos from February 16, 1982 up to the date of the promulgation of this decision; Estacio up to April 29, 1985; Fajardo, Jr. up to April 26, 1982 and Desiderio up to April 19, 1982. "Let copies of this decision be furnished the Hon. Governor, Central Bank; the Citibank; the Bank of the Philippine Islands and the Bankers Association of the Philippines for their information and guidance. "SO ORDERED."

amounting to (P1,000,000.00 in Crim. Case No. 5949,P3,000,000.00 in Crim. Case No. 5950, and P5,000,000.00 in Crim. Case No. 5951) and thereafter all the accused appropriated among themselves the proceeds thereof to their own personal use and benefit and to the damage and prejudice of the Central Bank of the Philippines or the Bank of the Philippine Islands, Laoag City Branch in the aforementioned amount of (P1,000,000.00 in Crim. Case No. 5949, P3,000,000.00 in Crim. Case No. 5950, andP5,000,000.00 in Crim. Case No. 5951)." Upon arraignment, accused Fajardo, Jr. @ Boy Fajardo, Desiderio, Estacio, Valentino and Santos, assisted by their respective counsel, pleaded not guilty to the crimes charged.3 Salamanca, Basilio Tan, Jaime Tan, Reyes and Bustamante have remained at-large while San Pedro died. Upon agreement of the prosecution and the defense, a joint trial of the three cases was ordered conducted.4 Estacio was first discharged as an accused to be utilized as a state witness. 5 Later, he filed a motion for his re-inclusion in the information as an accused allegedly for the sake of the safety of his family. The Sandiganbayan granted his motion and thus he was re-included as an accused in Crim. Case Nos. 5949-5951.6 The prosecution also moved for the discharge of Valentino as an accused but the Sandiganbayan denied that motion. Exercising its discretion, the Sandiganbayan eventually discharged Valentino from the three informations to be a state witness.7 The antecedent facts that gave rise to the instant petitions are as follows:

On April 15, 1982, the Tanodbayan filed with the Sandiganbayan three (3) informations for estafa thru falsification of public documents against Felipe Salamanca, Mariano Bustamante, Basilio Tan, Alfredo Fajardo, Jr., Jesus Estacio, Rolando San Pedro, Manuel Valentino, Rolando Santos, Marcelo Desiderio, Jaime Tan and Emilio Reyes. 2 The informations filed were similarly worded except for the dates of commission of the crime charged, the number of the checks involved, and the amounts allegedly misappropriated. Thus: "That on or about (October 19, 1981 in Crim. Case No. 5949, November 20, 1981 in Crim. Case No. 5950, and October 30, 1981 in Crim. Case No. 5951), in the City of Manila and within the jurisdiction of this Honorable Court, accused Manuel Valentino, employed as Bookkeeper detailed at the Clearing Office, Central Bank of the Philippines and accused Jesus Estacio y Estrella, employed as Janitor-Messenger of the Central Bank of the Philippines, and as such are public employees, with abuse of confidence and taking advantage of their official position, in order to implement a plan or scheme to defraud the Bank of the Philippine Islands, Laoag City Branch, which plan or scheme was previously formulated and agreed upon by all the herein accused immediately prior to (October 19, 1981 in Crim. Case No. 5949, November 20, 1981 in Crim. Case No. 5950, and October 30, 1981 in Crim. Case No. 5951), accused Manuel Valentino pursuant to said plan or scheme, did then and there wilfully, unlawfully and feloniously and taking advantage of his official position and with intent to gain and to defraud, falsify the Clearing Statement prepared by the Central Clearing office of the Bank of the Philippine Islands and submitted to the Clearing Section of the Central Bank of the Philippines as well as the Manifest prepared by the Central Bank Clearing Office in connection thereto by crossing out the entry in the duplicate copies of the aforesaid Clearing Statement and Manifest which entries refer to Check No. (27101 in Crim. Case No. 5949, 27111 in Crim. Case No. 5950, and 27108 in Crim. Case No. 5951) and Check No. (27105 in Crim. Case No. 5949, 27118 in Crim. Case No. 5950 and 27121 in Crim. Case No. 5951) issued by accused Bustamante against his checking account at the Bank of Philippine Islands, Laoag City Branch, which has only an outstanding balance of P1,000.00 and which checks were deposited in the current account of Magna Management Consultant with the Citibank Greenhills Branch by accused Rolando San Pedro and as a result of the aforesaid falsification which made it appear that no such checks were submitted by the Bank of Philippine Islands to the Central Bank of the Philippines for clearing, the Bank of the Philippine Islands, Laoag City Branch has not issued any notice of dishonor or stop payment to the Citibank Greenhills Branch, and as a consequence thereof accused Rolando San Pedro was able to withdraw from the Citibank the full amount of the two checks

Sometime in 1981, a syndicate masterminded by Felipe Salamanca infiltrated the Clearing Center of the Central Bank of the Philippines (Central Bank, for brevity). In its operation, the syndicate employed two schemes: the switching scheme, and the pilferage scheme. In the switching scheme, a syndicate would open a current account with such banks as the Bank of America (BA) and the Philippine Veterans Bank (PVB) in Iloilo. As a matter of procedure, checks drawn on the BA were forwarded to the Central Bank for clearing. Upon receipt of those checks by the clearing clerk of the Central Bank, who was a member of the syndicate, he would substitute those checks with ones bearing the stamp of another bank. Thus, instead of forwarding the checks to the BA, these were misrouted to cause delay in the clearing procedure. Upon the lapse of the clearing period, the depositor would withdraw the amount of the checks. However, the scheme faltered as the huge amounts covered by the checks caused suspicion on the part of the PVB. It called up the BA to inquire about those checks and hence, the former bank discovered that the checks were insufficiently funded. In the pilferage scheme, current accounts would be opened with a provincial bank, such as the Bank of the Philippine Islands (BPI), Laoag branch, and a city bank such as the CitibankGreenhills, Manila. A BPI check deposited with Citibank would then be forwarded to the Central Bank clearing house where members of the syndicate, who were employed there, would pilfer the check and alter the Central Bank manifest and the entries in the clearing bank statements. The pilferage was intended to provide opportunity for the syndicate to blot out entries referring to the pilfered check. Consequently, BPI-Laoag would not know that a check drawn on it had been deposited with Citibank. After the lapse of the five-day clearing period, the syndicate would withdraw the amount deposited from Citibank simply because said bank would have considered the check cleared and funded, as no protest or notice of dishonor could be received from BPILaoag. In utilizing this scheme in the commission of the crimes charged in Criminal Case Nos. 5949 to 5951, the syndicate netted Nine Million Pesos (P9,000,000.00). EVIDENCE FOR THE PROSECUTION

The prosecution offered the testimonies of sixteen (16) witnesses, 8 and documentary evidence marked Exhibits "A" to "DD", and Annexes "B" to "QQ", with sub-markings, to prove the following: On October 14, 1981, one Mariano Bustamante9 opened a savings account with BPI-Laoag with an initial deposit of P3,000.00: P2,000.00 of which was in check, and P1,000.00 in cash.10 That same day, he opened a current account with P1,000.00 as initial deposit in the same bank. Upon his request, a checkbook was issued to him.11 That same month, Marcelo Desiderio, allegedly a representative of Magna Management Consultant, approached Maria Nieves Garrido, personal banker of Citibank-Greenhills, and requested signature cards and other requirements for the purpose of opening a current account. Thereafter, Desiderio returned to the bank, submitted the required documents and duly accomplished forms, and made an initial deposit of P10,000.00. Thus, a checking account in the name of Magna Management Consultant was opened in Citibank-Greenhills with Rolando San Pedro as its representative. A checkbook was given to Desiderio. 12 On October 15, 1981, at the Ramada Hotel, Felipe Salamanca informed Manuel Valentino that two (2) checks were to be deposited with Citibank the following day. Salamanca instructed Valentino to watch out for those checks in the clearing house at the Central Bank. On October 16, 1981, two (2) checks in the amounts of Four Hundred Ninety-Eight Thousand Seven Hundred Nineteen Pesos (P498,719.00), and Five Hundred One Thousand Two Hundred Sixty Pesos and Thirty Centavos (P501,260.30) were indeed deposited with the Citibank-Greenhills under the current account of Magna Management Consultant, represented by Rolando San Pedro. On October 30, 1981, two (2) more checks were deposited at the same bank in the total amount of P3,000,000.00. Another deposit of checks was made on November 20, 1981 in the total amount of P5,000,000.00. All these checks were brought to the Central Bank Clearing Center. The checks deposited on October 16, 1981 did not reach the Central Bank on that day, which was a Friday, but on Monday, October 19, 1981. Manuel Valentino, a bookkeeper at the Clearing Operations Division of the Central Bank, received from Jesus Estacio, a Central Bank janitor-messenger, the demand envelope containing the two (2) BPI-Laoag checks in the total amount of P1,000,000.00 in the comfort room on the fourth floor of the Central Bank administration building. Therein Valentino altered the amount of P1,076,416.95 by crossing out the amount of One Million Pesos. Thus, under the column "Total amount received", only the amount of P76,416.95 was reflected in order that BPI-Laoag would not look for the P1 million check.13 Valentino then brought the altered clearing statement back to the Clearing Center and prepared a Central Bank Manifest where he changed the figure in the original copy to tally with those in the altered clearing statement. On October 30, 1981, the syndicate employed the same scheme. As soon as the demand envelope containing the BPI-Laoag checks arrived, Valentino took it and gave it to Jesus Estacio who then brought the same to the comfort room at the fourth floor. Valentino followed him there and took the two BPI checks amounting to P3,000,000.00, and altered the figures in the BPI Clearing Statement. Valentino thereafter brought said envelopes to the clearing house, and prepared the Central Bank Manifest, likewise altering the figures in the original to tally with the figures in the altered clearing statement. At the last operation on November 20, 1981, the group followed the same procedure Valentino asked Estacio to give him the demand envelope and the former then went to the comfort room. Valentino took the two BPI-Laoag checks in the total amount of P5,000,000.00 which he later gave to Salamanca. Again, he altered the figures in the clearing statement and those in the Central Bank Manifest so that these would conform with each other. 14

As a matter of procedure, the demand envelopes containing the checks intended for BPI-Laoag, the altered Central Bank Manifests, and the clearing statements were forwarded to the Regional Clearing Center. The pilfered checks deposited in the account of Magna Management Consultant were not included in those envelopes. Because BPI-Laoag did not receive the checks with a total value of P9,000,000.00, these were not processed. Consequently, as no objection or protest regarding the checks were registered and no notice of dishonor of the checks for insufficient funds was made by the BPI-Laoag, and since the reglementary period for making such protest or notice of dishonor had elapsed, Citibank-Greenhills considered the checks as good and funded. Hence, on different dates covering the period from October 26 to December 6, 1981, CitibankGreenhills allowed withdrawals in the aggregate amount of P9,000,000.00 from the account of Magna Management Consultant. Withdrawals were made through checks endorsed by Rolando San Pedro and encashed by Jaime R. Tan.15 The proceeds of the anomalous transactions were divided among the members of the syndicate. Salamanca gave Estacio P10,000.00 after the October 19, 1981 operation, P4,900.00 after the October 30, 1981 operation andP5,000.00 after the November 20, 1981 operation. Valentino received P20,000.00, P10,000.00 and P20,000.00 after the October 16 and 30, and November 20, 1981 operations. On January 28, 1982, Segundo Gonzaga, then Administrative Assistant for Transit Center (Clearing Center of BPI), was informed through a long distance telephone call by the manager of BPI-Laoag that their clearing transactions on October 19, 1981, October 30, 1981 and November 20, 1981 registered an outstanding discrepancy of P9,000,000.00 as reflected in their inter-office reconciliation statement. The manager of BPI-Laoag and the BPI Regional Manager for Northern Luzon who went to the office at BPI-Ayala showed the clearing statements to Gonzaga. Upon comparing the xerox copies of the BPI Clearing Statements (Laoag copies) and xerox copies of the clearing envelope sent to Citibank Manila, Gonzaga noticed the alterations. Thus, he went to the Accounting Department of BPI-Ayala and found out that the Central Bank debited their bank in the amount ofP9,000,000.00.16 Gonzaga went to Citibank-Greenhills and talked to Jake Ocampo, its assistant manager, about the clearing items. After checking their outgoing clearing checks for October 19, 1981, October 30, 1981 and November 20, 1981, Ocampo told Gonzaga that they did not recall said clearing checks. He gave Gonzaga reproduced microfilm copies of those checks. Gonzaga submitted the checks to his superiors with an accompanying report. 17 The BPI and the Central Bank jointly referred the matter for investigation to the National Bureau of Investigation (NBI) which assigned the case to Head Agent Salvador Ranin of the Special Investigation Division. 18 On February 12, 1982, the Chief of the Anti-Bank Fraud Unit of the Central Bank, Atty. Agapito Fajardo, the banks Chief Security Officer, and the BPI Vice -President and Comptroller brought Manuel Valentino to the NBI. The following day, Agent Ranin took Valentinos statement. Valentino waived his rights to remain silent and to counsel. He signed the waiver on the first page of his statement. On March 22, 1982, Agent Ranin took Valentinos supplementary sworn statement. The same NBI agent took Jesus Estacios statement on February 17, 1982 and supplementary statement on March 22, 1982. Like Valentino, Estacio waived his right to counsel. In their respective statements, Valentino and Estacio admitted their participation in the commission of the crime, narrated how they carried out the plan to defraud the banks, and identified those who participated in the criminal acts. After the investigation, Agent Ranin came out with a Memorandum Report dated April 26, 1982.19 EVIDENCE FOR THE DEFENSE On December 2, 1969, the Central Bank of the Philippines employed Jesus Estacio as janitormessenger. In 1978, a certain Rico Javier introduced Estacio to Felipe Salamanca. When Salamanca learned that Estacio was connected with the Central Bank, he asked Estacio if he

knew any bookkeeper thereat as his compadre needed one. Estacio replied that he would look for one. A week later, Salamanca called up Estacio and asked him if he had found a bookkeeper. Estacio mentioned Manuel Valentino. Salamanca instructed Estacio to bring Valentino to Jacks Restaurant in Quezon City after office hours. In that restaurant, Estacio introduced Valentino to Salamanca. Valentino was in turn introduced to Basilio Tan. During their conversation, Valentino told Salamanca about his work as a bookkeeper at the Central Bank.20 Sometime in October 1981, Valentino requested Estacio to accompany him to the EDCOR office. There they met Salamanca, Marcelo Desiderio, Rolando Santos and Basilio Tan. Salamanca told Estacio to stay outside the office because the group was going to discuss something. Half an hour later, the group dispersed. That same month, Estacio saw Romeo Villasanta, another accused, at the clearing office of the Central Bank. When Estacio asked why Villasanta was there, the latter answered that he was "just expediting something." Estacio saw Villasanta for the second time that same month talking with Valentino at the clearing office. Valentino asked Estacio to point out the office of the Department of Economic Research to Villasanta because Villasanta would be doing some research. Estacio went with Villasanta to the fourth floor and showed him the said office. Villasanta then inquired where the comfort room in that floor was. Estacio thereafter went back to his work and did not see Villasanta anymore. 21 1 On November 20, 1981, Valentino asked Estacio to bring an envelope to the fourth floor and to wait for him at its lobby. Estacio acceded and later, Valentino arrived. Valentino took the envelope from Estacio and went to the comfort room. Thereafter, Estacio went to the Clearing Office.22 Sometime in February 1982, upon learning that somebody from the NBI was looking for him, Estacio went to the NBI. There he told Agent Ranin that he wanted to call a lawyer but Agent Ranin did not allow him to do so. Agent Ranin investigated him from 5:30 p.m. until 7:30 p.m. on February 17, 1982. This continued the following day and lasted a week. In the course of the investigation, Agent Ranin promised Estacio that he would not be harmed should he cooperate and admit the charges against him, and that he would be freed once he becomes a state witness. However, Agent Ranin hit him with a newspaper and poked his gun at him. Estacio was allowed to read the statement before he signed it.23 On cross-examination, Estacio admitted that during his stay at the NBI for about two months, his wife and children would visit him every week and he could talk to them freely.24 He was transferred to Muntinlupa and detained at the Death Row for two years. On March 22, 1982, Agent Ranin took his second statement that was a continuation of his first statement. He was unable to read his supplementary statement because of fear of Agent Ranin, who was scaring him. He stressed that the statements he made before the NBI were not true and that he only signed those documents25 because he was afraid of Agent Ranin.26 Rolando Santos came to know Felipe Salamanca when he sold his car to him (Salamanca) on installment withP15,000.00 as down payment with the balance of P20,000.00 to be paid in two or three months. He accepted partial payment for the car. After a time, Salamanca fully paid the balance. In July 1981, Salamanca gave himP3,000.00. Twice or thrice, Salamanca tried to convince him to join a scheme to defraud a bank. After Salamanca had paid him the full price of the car, Salamanca asked him again to join his group. All he had to do was to open a checking account. He could have easily facilitated this, being the Vice-President for Finance of American Steamship Agencies. In those meetings with Salamanca where he was persuaded to open a checking account with a bank, Basilio Tan, the son of a general and his classmate at San Beda College, Valentino, and Desiderio were present. When he told Salamanca that he was not interested in the scheme to defraud a bank, as he was busy with his job, Salamanca got mad. On October 20, 1981, an unidentified assailant shot him in his house. He sustained three (3) gunshot wounds and was confined at the Paraaque Medical Center.27

Marcelo Desiderio came to know Felipe Salamanca sometime in July 1981 when Salamanca went to his office28because he wanted to open an account with Citibank-Greenhills. Desiderio went to Citibank-New York to inquire about the requirements for opening an account. Two days later, he gave Salamanca the bank forms and signature cards to be accomplished. He learned from Salamanca that the forms would be filled up by Rolando San Pedro. For the initial deposit, Salamanca gave him P10,000.00 in cash and check. He also received P2,500.00 as consultancy fee. He went to Citibank-Greenhills to make the deposit and the bank issued him a checkbook. 29 Desiderio denied that he was present in any meeting where Salamanca and his group discussed a plan to defraud a bank. He acceded in opening the bank account at Citibank-Greenhills because Salamanca assured him that the account would be opened in connection with a loan application with the Citibank of New York. He denied that Salamancas group tasked him and Rolando Santos with opening accounts in Metro Manila banks, particularly with CitibankGreenhills. He denied knowing Santos and Estacio personally although he admitted that Estacio, with Manuel Valentino, came to his office to deliver a tailored suit for a certain Atty. Martin. He further denied knowing Jaime Tan but admitted knowing Alfredo Fajardo, who was his client when he was still connected with BPI.30 Alfredo Fajardo opted to waive his right to testify and said that he has no documentary evidence to present before the Sandiganbayan.31 Another accused, Emilio Reyes, voluntarily surrendered to the Sandiganbayan and was detained at the Security and Sheriff Services office.32 He filed a motion for reinvestigation on June 16, 1987 but it was resolved against him.33 He pleaded not guilty to the charges against him. 34 However, since July 17, 1989, Reyes failed to appear for trial. On February 16, 1990, the Sandiganbayan acquitted him in these cases on account of the prosecutions failure to prove his guilt beyond reasonable doubt. 35 Because the cases against Reyes were tried in absentia, the Sandiganbayan ordered that these be archived without prejudice to revival "for purposes of contempt citation in the event that he shall have been apprehended and brought within the jurisdiction" of the court. 36 Rolando San Pedro was arrested on March 22, 1988 at the vicinity of the Sandiganbayan. 37 He entered a plea of not guilty to the charges against him. 38 On June 11, 1989, he died.39 Thus, the Sandiganbayan dismissed the cases against him. In the Resolution of February 23, 1990, which was promulgated on March 12, 1990, the Sandiganbayan resolved that the cases against Felipe Salamanca, Basilio Tan, Jaime Tan and Mariano Bustamante be archived.40 As stated earlier, the Sandiganbayan convicted Estacio, Desiderio, Santos, and Fajardo of the complex crimes of estafa thru falsification of public documents. Estacio, Desiderio and Fajardo filed separate motions for reconsideration,41 while Santos filed with the Supreme Court a motion for extension of time to file a petition forcertiorari.42 On September 26, 1985, the Sandiganbayan denied those motions for reconsideration.43 Hence, the instant petitions for review on certiorari that they individually filed with this Court, but which were consolidated in the Resolution of December 10, 1985.44 In its consolidated comment on the petitions, the Office of the Solicitor General (OSG) questions the propriety of raising factual issues in a petition for review on certiorari under Rule 45 of a Decision of the Sandiganbayan.45The OSG asserts that in such a petition, this Courts jurisdiction is "confined to questions of law" and hence, this Court "is not supposed to reweigh evidence but only to determine its substantiality." On this matter, in Filoteo, Jr. vs. Sandiganbayan,46 this Court, after citing Jariol, Jr. vs. Sandiganbayan,47 said: "As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606 expressly provides that `(d)ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. However, in exceptional cases, this Court has taken cognizance of questions of fact in order to resolve legal issues, as where there was palpable error or grave

misapprehension of facts by the lower court. Criminal cases elevated by convicted public officials from the Sandiganbayan deserve the same thorough treatment by this Court as criminal cases involving ordinary citizens simply because the constitutional presumption of innocence must be overcome by proof beyond reasonable doubt. In all c riminal cases, a persons life and liberty are at stake." While only petitioner Estacio is a government employee in these cases, as the three others are private individuals, it is in the light of this pronouncement that the instant petitions shall be considered and resolved. Moreover, in the recent case of Armed Forces of the Philippines Mutual Benefit Association, Inc. vs. Court of Appeals,48 the Court, citing Supreme Court Circular No. 2-90 dated March 9, 1990, held that a petition for review on certiorariquestioning the final judgment, order, or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Courts or other courts, may raise factual issues. In the exercise of its sound discretion, taking into account the attendant circumstances, this Court retains the option of either taking cognizance of, and deciding such issues, or referring the case to the proper court for determination. In these criminal cases, this Court chooses to take cognizance of factual questions raised in the interest of proper administration of justice. In their separate petitions, petitioners assert that there was no proof beyond reasonable doubt that they committed the crimes charged principally because: (a) the extrajudicial confessions of petitioner Estacio and Valentino are inadmissible in evidence as their right to counsel was violated when said confessions were executed; (b) the discharge of Valentino from the informations to be a state witness was improper; and (c) conspiracy, which made all petitioners equally guilty, was not adequately proven. Notably, petitioners Santos and Estacio aver that, should they be convicted as charged, they should be held individually liable only as an accomplice.49 Relevant to petitioners contention on the admissibility of the extrajudicial confessions of petitioner Estacio and Valentino is Article IV, Section 20 of the 1973 Constitution providing for the rights of an accused during custodial investigation. 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 rights. 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." On the other hand, the first paragraph of Article III, Section 12 of the 1987 Constitution states: "(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." A comparison of these provisions would readily show that the 1973 Constitution does not specify the right against uncounselled waiver of the right to counsel, which is found in paragraph 1, Section 12, Article III of the 1987 Constitution. However, the latter constitutional provision cannot

be applied to extrajudicial confessions made prior to its date of effectivity. In Filoteo, Jr. vs. Sandiganbayan, this Court held that: "x x x the specific provision of the 1987 Constitution requiring that a waiver by an accused of his right to counsel during custodial investigation must be made with the assistance of counsel may not be applied retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Constitution. Accordingly, waivers of the right to counsel during custodial investigation without the benefit of counsel during the effectivity of the 1973 Constitution should, by such argumentation, be admissible. Although a number of cases held that extrajudicial confessions made while the 1973 Constitution was in force and effect, should have been made with the assistance of counsel, the definitive ruling was enunciated only on April 26, 1983 when this Court, through Morales, Jr. vs. Enrile, issued the guidelines to be observed by law enforcers during custodial investigation. The Court specifically ruled that `(t)he right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Thereafter, in People vs. Luvendino, the Court through Mr. Justice Florentino P. Feliciano vigorously taught: `x x x. The doctrine that an uncounselled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs. Galit. x x x. While the Morales-Galit doctrine eventually became part of Section 12 (1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales and Galit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the date of promulgation of Morales."50 Clearly then, the Morales-Galit rulings are inapplicable in these cases as the extrajudicial confessions in question here, were taken on February 13, February 17 and March 22, 1982, long before the date of promulgation of theMorales Decision on April 26, 1983. Prior to this date, the guidelines requiring that waiver of the right to counsel by an accused can be properly made only with the presence and assistance of counsel, had yet to be formulated and pronounced by this Court.51 The rule on prospective application of "judge-made laws" was stressed in Co vs. Court of Appeals.52 In that case, the Court, through then Chief Justice Andres R. Narvasa, ruled that in accordance with Article 8 of the Civil Code providing that "(j)udicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines," and Article 4 of the same Code stating that "(l)aws shall have no retroactive effect, unless the contrary is provided," the principle of prospectivity of statutes, original or amendatory, shall apply to judicial decisions, which, although in themselves are not laws, are nevertheless evidences of what the law means. As to the admissibility of the uncounselled waivers of Valentino and petitioner Estacio of their right to counsel during custodial investigation, the intelligent and voluntary execution thereof should be determined. The pre-interrogation advisories to the extrajudicial confessants uniformly state: "01. QUESTION: Mr. MANUEL VALENTINO, we are informing you that you are under investigation in connection with the alleged Estafa thru Falsification of Commercial/Official Documents committed at the Central Bank of the Philippines. But before we ask you any question, you must understand your legal rights. You have the right to remain silent. You have the right not to give any statement if you do not wish to. Anything you say may be used as evidence against you in any proceeding. You are entitled to the assistance of counsel of your own choice. If you cannot afford a lawyer and you want one, a lawyer will be appointed for you before we ask you any question. Now, after having been so informed, are you still willing to give

a free and voluntary statement and swear to tell the truth and nothing but the truth in this investigation? ANSWER: Yes, sir. "02. Q: Are you willing to sign a Waiver of your rights? "A: Yes, sir. "WAIVER "I have been advised of my right to remain silent; that anything that I say may be used as evidence against me and that I have the right to a lawyer to be present with me while I am being questioned. "I understand these rights and I am willing to make a statement and answer questions. I do not want the assistance of counsel and I understand and know whag (sic) I am doing. No promises or threats have been made to me and no force or pressure of any kind has been used against me. (Sgd. MANUEL VALENTINO y SOCAN 13 February 1982, NBI, Manila"53 It is settled that once the prosecution has shown that there was compliance with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue.54 The defense attempted to prove that Valentino and petitioner Estacio were subjected to threats and intimidation at the NBI to obtain their confessions. Other than their bare assertions, Valentino and petitioner Estacio miserably failed to present any convincing evidence to prove the NBIs use of force or intimidation on their persons. Before signing their statements, they never protested against any form of intimidation, much more, of maltreatment that they could have relayed to relatives visiting them at the NBI. In People vs. Pia,55 the Court said: "x x x It has been held that where the defendants did not present evidence of compulsion or duress or violence on their persons; where they failed to complain to the officers who administered the oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies and where they did not have themselves examined by a reputable physician to buttress their claim, all these should be considered as factors indicating voluntariness of confessions." That the statements were intelligently executed is borne out by the fact that both confessants have reached the tertiary level of education: Valentino holds the degree of Bachelor of Science in Commerce56 while petitioner Estacio reached the first year of college education in banking and finance.57 Possessed with sufficient education and not proven to be mentally unfit, they could have protested the forced extraction of culpability from themselves if indeed that was true. Moreover, the extrajudicial confessions in question are replete with details on the manner in which the crimes were committed, thereby ruling out the probability that these were involuntarily made.58 Voluntariness of a confession may be inferred from its language such that, if upon its with thumbmark)

face the confession exhibits no sign of suspicious circumstances tending to cast doubt upon its integrity, it being replete with details which could possibly be supplied only by the accused reflecting spontaneity and coherence which, psychologically, cannot be associated with a mind to which violence and torture have been applied, it may be considered voluntary. 59 In U.S. vs. De los Santos,60 the Court said: "If a confession be free and voluntary the deliberate act of the accused with a full comprehension of its significance, there is no impediment to its admission as evidence, and it then becomes evidence of a high order; since it is supported by the presumption a very strong one that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience." In these cases, the NBI investigator would not have known the members of the syndicate and the sophisticated manner by which the crimes in question were perpetrated if Valentino and Estacio, who were directly involved therein, did not reveal these. With respect to the admissibility of the extrajudicial confessions of Valentino and petitioner Estacio against their co-accused, once again, this Court declares that although an extrajudicial confession is admissible only against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts that tend to establish the guilt of his coaccused.61 In People vs. Alvarez,62 this Court ruled that where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator, that confession is receivable as evidence against a co-accused. The Court elucidated further in People vs. Encipido63 as follows: "It is also to be noted that APPELLANTS extrajudicial confessions were independently made without collusion, are identical with each other in their material respects and confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against their co-accused implicated therein to show the probability of the latters actual participation in the commission of the crime. They are also admissible as corroborative evidence against the others, it being clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof." Petitioner Estacio claimed that, to his surprise, he found Valentino at the NBI. They talked for a while and Valentino told him to say whatever he (Valentino) would say. 64 That allegation alone cannot be considered as indicative of collusion between them as their sworn statements both contain facts showing their deep involvement in the scheme to defraud a bank. Human experience dictates that no one would volunteer to demonstrate ones culpability unless it was the truth. It may thus be safely presumed that in telling petitioner Estacio to say whatever he would say, Valentino was merely cautioning petitioner Estacio to tell the truth. Nevertheless, even without the extrajudicial confessions of petitioner Estacio and Valentino, evidence on record is sufficient to sustain a finding of culpability.65 On the validity of the discharge of Valentino from the information to be a state witness, the determination of who should be used as a state witness to bolster the successful prosecution of criminal offenses is part of prosecutorial discretion. 66 However, it is the courts that finally determine whether the requirements of the Rules of Court 67 have been satisfied to justify the discharge of an accused to become a state witness. It should be recalled that petitioner Estacio was originally discharged to be a state witness. Upon his manifestation that he would rather remain an accused in these cases for the protection of his

family, the court re-included him in the information. Apparently considering the nature of the crimes and the secrecy by which these were perpetrated, the prosecution was left with no recourse but to side with Valentinos motion for his discharge to be a state witness. The absolute necessity for the testimony of someone who was a participant in the criminal scheme is buttressed by the ruling that where a crime is contrived in secret then the discharge of one of the conspirators is essential so he can testify against the other conspirators. 68 In a conspiracy which was done in secret, there is a necessity to discharge one of the accused to provide direct evidence of the commission of the crime.69 Worth noting, however, is that Valentinos testimony and his sworn statements differ with regard to petitioner Estacios participation in the commission of the October 19, 1981 criminal act, and the participation of petitioner Fajardo in the three crimes. Valentino stated in his sworn statement that on October 19, 1981, when he noticed that the BPI representative had placed the demand envelope containing the BPI-Laoag checks for clearing at the Laoag counter behind him, petitioner Estacio, who was the syndicates messenger, immediately came with a push cart. Petitioner Estacio placed the demand envelope in the pushcart and proceeded to the comfort room in the fourth floor where Valentino followed him to alter the documents to suit the syndicates purposes. On the other hand, when he testified, Valentino asserted that he did not see petitioner Estacio at the meeting when they hatched the first operation on October 16, 1981. When the alterations were made on October 19, 1981, Valentino claimed that petitioner Estacio was not with them70 for it was he himself who brought the bundle of checks to the fourth floor comfort room where Villasanta took the checks and altered the bank statements. With respect to petitioner Fajardo, Valentino averred in his supplementary sworn statement that petitioner Fajardo was present in three or four conferences where he participated in the discussion to defraud a bank.71 However, on the witness stand, Valentino swore that petitioner Fajardo had "no participation in these cases"72 or in the three operations subjects of these cases. These discrepancies in Valentinos sworn statements and testimony are material ones as far as petitioners Estacio and Fajardo are concerned. On this issue, the Court has consistently held that: "x x x discrepancies between the statement of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete. Affidavits are generally subordinate in importance to open court declarations because they are oftentimes not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired in his affidavit and those made by him. This is so because affidavits are frequently prepared by the administering officer and cast in the latters language or the latters understanding of what the affiant had said, while the affiant frequently simply signs the affidavit after the same has been read to him." 73 In People vs. Fabro, the Court ruled that repudiation and recantation of confessions which have been obtained in accordance with the Constitution are looked upon with disfavor as unreliable.74 However, that ruling may not find application under the circumstances of these cases. In Fabro, it was the accused himself who recanted his confession when, on the witness stand, he denied he committed the crime. No other witness testified for the defense. On the other hand, in these cases, Valentino, a co-conspirator who appeared as a state witness before the court, adhered to his confession as regards the participation of the accused, except that he testified that petitioner Estacio was absent when the first crime was planned and committed, and that petitioner Fajardo was not involved in the three cases. It has been held that where a witness who testified for the prosecution subsequently testifies for the defense by retracting his previous testimony, the test to decide which testimony to believe is a comparison coupled with the application of the general rules of evidence.75 Although these cases do not involve the conflicting testimonies of a witness, that rule may be applied in a conflict between a sworn statement and the testimony while recognizing the inferiority of a sworn statement to a testimony. In these

cases, the narration of facts in Valentinos sworn statements were in substance reproduced in his testimony which, in turn, was supported by other testimonial evidence and the voluminous documentary evidence. In the absence of any reason to question the credibility of Valentino and that of his testimony, that portion of his testimony on the nonparticipation of petitioner Estacio in Crim. Case No. 5949 and petitioner Fajardo in all three cases shall be controlling. We deem the variance in Valentinos testimony as endeavors to rectify his sworn statements to conform to the truth. To reiterate, such variance, does not make him a less credible witness or affect the merit of his testimony, as the other pieces of prosecution evidence support it and do not prove that it is untruthful or contrived. The value of Valentinos testimony in the prosecution of these cases cannot be underestimated. It fills in the gaps in the prosecution evidence that the other prosecution witnesses failed to cover. Without it, conspiracy to defraud the BPI-Laoag of P9,000,000.00 through falsification of the clearing statement and manifest would not have been proven beyond reasonable doubt. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.76 As creditably shown by the prosecution, the crimes were committed not solely by the person who altered the clearing statement and manifest. That all-important act, the conception of which could have been hatched only by one familiar with banking procedures, would not have been possible if not for the indispensable cooperation of others. Thus, Valentino testified: "Q Will you please describe in detail what was agreed upon during the meeting? A It was agreed upon that Salamanca and Villasanta will open an account at Laoag Branch of the Bank of the Philippine Islands and Desiderio also and Santos are also in charge in opening accounts in Metro Manila, particularly Citibank, Greenhills. Basilio Tan, he is stationary in the office. Jaime Tan and Rolando San Pedro are the ones in charge in withdrawals at the Citibank."77 However, the liability of each of the petitioners must be considered within the purview of the following pronouncement in the celebrated case of People vs. Berroya78 where the Court said that: "x x x to hold an accused liable as co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the time of the commission of the crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or implement the conspiracy. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it without any active participation in the same, is not enough for purposes of conviction. Thus, assuming Vienes was a participant in the planning to abduct a Taiwanese national, in the absence of eyewitnesses to the actual abduction, there is a paucity of evidence as to whether or not Vienes carried out his part of the plan." (emphasis supplied) In these cases, even if Valentinos supplementary sworn statement stating that petitioner Fajardo participated in the discussion of the scheme to milk money from a bank should be given evidentiary weight, still, that evidence is not enough to convict him. There is no evidence showing that he participated in opening a bank account in the procedure to alter the clearing manifests and statements, or in the withdrawal of substantial amounts resulting from

such alteration of documents. There is thus insufficient evidence against petitioner Fajardo to find him culpable for the crimes charged in these cases and hence, he should be acquitted. Similarly situated as petitioner Fajardo, is petitioner Santos. His admission to having attended several meetings of Salamancas group did not satisfactorily define his liability as a conspirator considering the absence of any proof that he committed an overt act in pursuance of the syndicates scheme. His pretext of having entered into a "car sale" with Salamanca may ring hollow in truth but the weakness of his defense cannot be taken against him considering the insufficiency of prosecution evidence on his participation in the actual commission of the crime. His acquittal is, therefore, likewise in order. With respect to petitioner Estacio, Valentinos testimony on the first syndicate operation on October 16, 1981 should be counted in his favor. There is insufficient evidence that he participated in the alteration of documents at the Central Bank Clearing Office on October 19, 1981 much more in the prior discussion to perpetrate the crime. Hence, his acquittal in Criminal Case No. 5949 should follow. However, as regards the syndicate operations on October 30, 1981 and November 20, 1981, there is proof beyond reasonable doubt of his role in carrying the demand envelopes to the Central Banks fourth floor comfort room where alterations were made. By the nature of his work, he had access to these demand envelopes containing BPI checks. His participation in the conspiracy was therefore vital to the realization of the syndicates objectives. Parenthetically, the Court notes with dismay the Sandiganbayans pronouncement that petitioner Estacios "wishy-washy" attitude in offering himself as a state witness "confirmed his knowledge of the intimate details of the conspiracy and the mode or manner by which its operations and schemes would be initiated and consummated."79Such conclusion is in consonance with the presumption of guilt, not with that of innocence. An accused may have some reasons for his irresolute action as far as testifying for the prosecution is concerned. Petitioner Estacio had such reason he feared for the safety of his family considering that he would be up against a syndicate that, because of the success of its evil scheme, had the money to harm their perceived "enemies." That petitioner Estacio was deeply enmeshed in the syndicates activities to bleed money from banks is shown by the fact that in Crim. Case No. 6603 involving the syndicates operation in the Solidbank, his conviction for the crime of estafa thru falsification of public/commercial documents was affirmed by this Court in G.R. No. 75362. 80 But such conviction for another crime must not be the basis for a conclusion that the accused is guilty of another crime charged, although basically, the same criminal acts were committed. We therefore find the Sandiganbayans pronouncement totally unexpected of a court that must determine the culpability of an accused based on the prosecution evidence and not on the weakness of the defense or the reputation of an accused. Petitioner Desiderio, on the other hand, has been proven guilty beyond reasonable doubt for having participated both in the discussion and mapping out of the malevolent scheme and in its actual execution. Desiderios knowledge of banking procedures provided the rationale for his giving "birth", or having "authored" the scheme along with Salamanca and Villasanta. 81 He had served as branch manager in the BPI where he was employed for twenty-seven years, or until he was charged with estafa for accommodating a clients loan against an uncollected deposit.82 Nieves Garrido, a personal banker at Citibank-Greenhills, who entertained him when he made queries about opening a current account, confirmed his having opened said account for Magna Management Consultant, thereby lending credence to and corroborating Valentinos testimony on his role in the implementation of the criminal scheme. Petitioner Desiderios claim that he opened that account in accordance with his legitimate role as consultant in Mardes Management Consultant is a lame excuse. Anyone, especially a businessman such as San Pedro or Salamanca, could have opened a current account without hiring the services of a management consultant. That lame excuse sounds even lamer considering the evidence showing that his alleged client was also engaged in management consultancy. Desiderio thus relied on denial as a mode of defense. A denial, like other defenses,

remains subject to the strength of the prosecution evidence which is independently assessed. When the evidence for the prosecution convincingly connects the crime and the culprit, the probative value of the denial is negligible.83 Desiderios denial of complicity in the scheme cannot, therefore, prevail over the positive testimonies of Nieves Garrido and Valentino that he played the important role of opening the current account that paved the way to the "inside jobs" of petitioner Estacio, Valentino and, probably, Villasanta. His sole overt act under the syndicates scheme facilitated the commission of all three counts of estafa thru falsification of public documents. Notably, in these cases, the Sandiganbayan observed that none of the accused refuted the documentary exhibits offered in evidence by the prosecution. 84 The pieces of documentary evidence consist of bank records including deposit slips, ledger cards, specimen cards, checks for deposit and withdrawal, clearing statements and clearing manifests. All of these clearly and positively buttress the prosecutions theory as to how the pilferage scheme was successfully implemented. The defense obviously could not demolish the evidentiary weight of the prosecutions documentary evidence and hence, it focused on the prosecution evidence on the membership of the accused in the syndicate, and on the probative value of the interlocking confessions of Valentino and petitioner Estacio. There is thus no alternative to giving full credence and merit to the prosecutions documentary evidence, and to declaring them to be in complete accord with the prosecution theory on the commission of the offenses and the nature and extent of participation of the accused. The informations filed in these cases individually charge an offense "defined and penalized under Article 315, par. 2 (a) in relation to Article 171, par. 2" of the Revised Penal Code. The elements of estafa are as follows: (1) the accused defrauded another by abuse of confidence, or by means of deceit; and (2) the offended party or a third party suffered damage or prejudice capable of pecuniary estimation.85 It is indubitable that estafa was committed by abuse of confidence in these cases. The conspirators that enlisted and utilized the assistance of Central Bank employees abused the confidence that the banking system reposed upon such employees. As a result of such abuse of confidence, the BPI sustained damage in the aggregate of Nine Million Pesos (P9,000,000.00). Verily, the perpetrators of the crimes breached even the confidence that people reposed on the Central Bank and the whole banking system. By falsifying clearing documents, the offenders committed the complex crime of estafa thru falsification of public documents. Under Article 171 (4) of the Revised Penal Code, any public officer or employee who, taking advantage of his official position, makes untruthful statements in a narration of facts, commits the crime of falsification of public documents. This kind of falsification requires the concurrence of the following requisites: (a) the offender makes in a document untruthful statements in a narration of facts; (b) he has a legal obligation to disclose the truth of the facts narrated by him; and (c) the facts narrated by the offender are absolutely false.86 The prosecution has duly proven these requisites. Valentino occupies a public position as bookkeeper at the Clearing Office of the Central Bank. He intercepted and pilfered BPI-Laoag checks with the assistance of petitioner Estacio, a janitor-messenger at the Central Bank. In the comfort room, Valentino and/or Villasanta, who has so far avoided the clutches of the law, tampered with the clearing statements and clearing manifests which Estacio had taken from Valentinos desk. The tampered documents, along with the pilfered demand envelopes, were then sent to the Central Bank Regional Clearing Center in Laoag. These "inside jobs" were perpetrated as part of the decadent scheme that private individuals had hatched to gain monetary gratification. Article 315, paragraph 2 (a) under which the defendants were charged in these cases, states that any person who shall defraud another by means of "using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits"shall be held liable for the crime of

swindling (estafa). Under the peculiar circumstances proven in these cases, the crime actually committed by the offenders is that defined in Article 318 of the Revised Penal Code on other deceits. The first paragraph of this article states that "(t)he penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the preceding articles of this chapter." Although the information charged the accused with violation of paragraph 2 of Article 171 of the Revised Penal Code defining the crime of falsification by public officer of employee, the Sandiganbayan correctly found that the accused violated paragraph 4 of the same Article which states as follows: "The penalty of prision mayor and a fine not to exceed P5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxx xxx xxx

Article 64 of the Revised Penal Code states that when the penalty prescribed by law is a single divisible penalty, the accused shall be imposed the medium period of such penalty when there are neither aggravating nor mitigating circumstances. The propriety of imposing the medium period of the more serious penalty for a complex crime after considering the modifying circumstances notwithstanding that Article 48 requires the imposition of the penalty in its maximum period has been settled.93 It is supported by the doctrine that penal provisions shall be interpreted in favor of the accused. The medium period of prision mayor is eight (8) years and one (1) day to ten (10) years. In the absence of impediments to the application of the Indeterminate Sentence Law, for each crime committed, the penalty that should be imposed upon petitioner Estacio in Crim. Case Nos. 5950 and 5951, and upon petitioner Desiderio in Crim. Case Nos. 5949, 5950 and 5951, shall be the indeterminate sentence comprising of the minimum penalty within the range of prision correccional, to the maximum penalty of prision mayor medium plus a fine of P5,000.00. It will be observed that the maximum penalty erroneously imposed by the Sandiganbayan is ten (10) years andone (1) day which is already within the period of prision mayor maximum. WHEREFORE, IN VIEW OF THE FOREGOING, petitioner Rolando Santos y Ramirez in G.R. Nos. 71523-25, petitioner Alfredo R. Fajardo, Jr. in G.R. No. 72384-86 and petitioner Jesus E. Estacio in G.R. No. 72420-22 with respect to Criminal Case No. 5949 are hereby ACQUITTED of the crimes charged for lack of proof beyond reasonable doubt. The Decision of the Sandiganbayan as far as petitioner Marcelo S. Desiderio in G. R. No. 72387-89 and petitioner Jesus E. Estacio, with respect to Criminal Case Nos. 5950 and 5951 are concerned, is herby AFFIRMED subject to the modification that, for each crime, they shall suffer the indeterminate sentence of four (4) years, two (2) months, and one (1) day of prision correccional maximum to ten (10) years of prision mayormedium. SO ORDERED.

"4. Making untruthful statements in a narration of facts." Inasmuch as the crime committed in these cases is the complex crime of estafa thru falsification of public documents and Article 48 of the Revised Penal Code states that when an offense is a necessary means for committing another offense, "the penalty for the most serious crime shall be imposed" in its maximum period, the penalty for the crimes committed in these cases is that imposed for falsification of public documents or prision mayor in its maximum period and a fine of P5,000.00. While it appears that the Sandiganbayan correctly held that the basis for imposition of penalty should be that imposed by law for falsification of public documents, it erred in imposing the maximum penalty of the indeterminate sentence it meted upon the accused. Finding no modifying circumstances, the Sandiganbayan imposed for each complex crime of estafa thru falsification of public document, the indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional to ten (10) years and one (1) day of prision mayor. Under the procedural guidelines for imposing penalties for complex crimes enunciated in Nizurtado vs. Sandiganbayan,87 the first step in determining the proper penalty is to consider whether or not aggravating and/or mitigating circumstances attended the commission of the crimes. Only petitioner Estacio claimed that he voluntarily surrendered. 1wphi1 For said mitigating circumstance to be appreciated, surrender must be made spontaneously or in such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt, or because he wishes to save them the trouble and expense of finding and capturing him.88 According to NBI Agent Ranin, petitioner Estacio went to the NBI bearing a referral note from Atty. Agapito Fajardo, Chief of Anti-Fraud Unit of the Central Bank.89 However, it was proven by the prosecution beyond peradventure of doubt that petitioner Estacios alleged surrender was anything but spontaneous. He went to the NBI on February 17, 1982,90 five days after Atty. Fajardo had brought Valentino to that office for questioning, and a day after a Presidential Commitment Order (PCO) had been issued against him and Valentino.91 Moreover, the booking sheet and arrest report states that petitioner Estacio was "arrested" on February 16, 1982.92 Voluntary surrender having been insufficiently proven, as far as penalty is concerned, petitioner Estacio in Crim. Cases Nos. 5950-51 shall suffer the same penalty as petitioner Desiderio who did not present proof that could mitigate the penalty that he should suffer for the crimes.

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