OBJECT EVIDENCE G.R. No.

185715 January 19, 2011 PEOPLE v ERLINDA CAPUNO y TISON We review the May 27, 2008 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 30215, affirming with modification the April 3, 2006 decision2 of the Regional Trial Court (RTC), Branch 75, San Mateo, Rizal. The RTC decision found Erlinda Capuno y Tison (appellant) guilty beyond reasonable doubt of illegal sale of shabu, under Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. ANTECEDENT FACTS The prosecution charged the appellant with violation of Section 5, Article II of R.A. No. 9165 before the RTC, under an Information that states: That on or about the 21st day of July 2002, in the Municipality of Rodriguez, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to another, one (1) heat-sealed transparent plastic sachet of white crystalline substance weighing 0.04 gram which was found positive to the test for Methamphetamine Hydrochloride, a dangerous drug, and which substance produces a physiological action similar to amphetamine or other compound thereof providing similar physiological effects. CONTRARY TO LAW.3 The appellant pleaded not guilty to the charge.4 The prosecution presented Police Officer 1 (PO1) Jose Gordon Antonio and PO1 Fortunato Jiro III at the trial. The appellant and Maria Cecilia Salvador took the witness stand for the defense. PO1 Antonio narrated that at around 11:10 a.m. of July 21, 2002, he was at the Rodriguez Police Station when a civilian informant arrived and told him that a woman was openly selling dangerous drugs on Manggahan Street, Barangay Burgos, Montalban, Rizal. Upon receiving this information, he, PO1 Joseph G. Fernandez, and PO1 Jiro planned an entrapment operation: he (PO1 Antonio) was designated as the poseur-buyer, while his two companions would act as back-up. Before leaving the police station, they asked the desk officer to record their operation.5 They went to Manggahan Street, and when they were near this place, the informant pointed to them the appellant. PO1 Antonio alighted from the vehicle, approached the appellant, and told her, "Paiskor ng halagang piso"; he then handed the pre-marked one hundred peso bill to her. The appellant pulled out a plastic sachet from her left pocket and gave it to PO1 Antonio. PO1 Antonio immediately held the appellants arm, introduced himself to her, and stated her constitutional rights. It was at this time that PO1 Fernandez and PO1 Jiro approached them; PO1 Jiro recovered the marked money from the appellant. They brought the appellant to the police station for investigation.6 According to PO1 Antonio, the police forwarded the seized item to the Eastern Police District Crime Laboratory for examination.7 PO1 Jiro testified that at around 11:00 a.m. of July 21, 2002, he was at the Rodriguez Police Station when a confidential asset called and informed the police that he saw one "alias Erlinda" selling illegal drugs. The police planned a buy-bust operation wherein they prepared a one hundred peso bill (P100.00) marked money, and designated PO1 Antonio as the poseur buyer. Afterwards, PO1 Jiro, PO1 Antonio, PO1 Fernandez, and the confidential asset left the police station and proceeded to Manahan Street. On their arrival

there, the confidential asset pointed to them the appellant.8 PO1 Antonio alighted from the vehicle, approached the appellant, and talked to her. Thereafter, PO1 Antonio handed the marked money to the appellant; the appellant took "something" from her pocket and handed it to PO1 Antonio.9 Immediately after, PO1 Antonio arrested the appellant. He (PO1 Jiro) and PO1 Fernandez approached the appellant; he recovered the marked money from the appellants left pocket. They brought the appellant to the police station and asked the duty officer to blotter the incident. Afterwards, they brought the appellant to the police investigator; they also made a request for a laboratory examination.10 On cross-examination, PO1 Jiro stated that he was 10 meters away from PO1 Antonio when the latter was transacting with the appellant. He maintained that the buy-bust operation took place outside the appellants house.11 He recalled that the appellant had two other companions when they arrived. When they arrested the appellant, some residents of the area started a commotion and tried to grab her.12 The testimony of Police Inspector Abraham Tecson, the Forensic Chemist, was dispensed with after both parties stipulated on the result of the examination conducted on the specimen submitted to the crime laboratory. On the hearing of April 14, 2004, the prosecution offered the following as exhibits: Exhibit "A" the Sinumpaang Salaysay of PO1 Antonio, PO1 Jiro and PO1 Fernandez Exhibit "B" the request for laboratory examination Exhibit "C" Chemistry Report No. D-1373-02E Exhibit "D" the buy-bust money Exhibit "E" Chemistry Report No. RD-78-03 Exhibit "F" the specimen confiscated from the appellant Exhibit "G" Police Blotter13 The defense presented a different version of the events. The appellant testified that at around 11:00 a.m. of July 21, 2002, she was inside her house and lying on the bed, together with her 15-year old daughter, when two persons, who introduced themselves as police officers, entered her house. They wore maong pants and sando. They asked her if she was Erlinda Capuno and when she answered in the affirmative, they searched her house.14 They invited the appellant and her daughter to the Municipal Hall of Montalban, Rizal when they did not find anything in the house. Upon arriving there, the police told her to reveal the identity of the person who gave her shabu. When she answered that she had no idea what they were talking about, the police put her in jail.15 The appellant further stated that she saw the seized specimen only in court.16 On cross-examination, the appellant denied that she had been selling illegal drugs. She explained that she consented to the search because she believed that the two persons who entered her house were policemen.17 Maria, the appellants daughter, corroborated her mothers testimony on material points, but stated that the two policemen did not search their house but merely "looked around."18

The RTC, in its decision19 of April 3, 2006, convicted the appellant of the crime charged, and sentenced her to suffer the indeterminate penalty of imprisonment for twelve (12) years and one (1) day to twelve (12) years, ten (10) months and twenty (20) days. The RTC likewise ordered the appellant to pay a P100,000.00 fine. The appellant appealed to the CA, docketed as CA-G.R. CR No. 30215. The CA, in its decision20 dated May 27, 2008, affirmed the RTC decision with the modification that the appellant be sentenced to life imprisonment, and that the amount of fine be increased to P500,000.00. The CA found unmeritorious the appellants claim that the prosecution witnesses were not credible due to their conflicting statements regarding the place of the buy-bust operation. As the records bore, PO1 Antonio stated that they conducted the entrapment operation on Manggahan Street; PO1 Jiro testified that it was held on Manahan Street. The CA, nevertheless, ruled that PO1 Jiro made a slip of the tongue as there was no Manahan Street in Barangay Burgos, Montalban, Rizal.21 The CA added that despite the minor inconsistencies in the testimonies of PO1 Antonio and PO1 Jiro, the records do not show that they were ever motivated by any ulterior motive other than their desire to help wipe out the drug menace. It added that the appellants denial cannot prevail over the positive identification made by the prosecution witnesses, who, as police officers, performed their duties in a regular manner.22 Finally, the CA held that all the elements of illegal sale of dangerous drugs had been established.23 In her brief,24 the appellant claims that the lower courts erred in convicting her of the crime charged despite the prosecutions failure to prove her guilt beyond reasonable doubt. She harps on the fact that PO1 Antonio and PO1 Jiro gave conflicting statements on how they came to know of her alleged illegal activities. On one hand, PO1 Antonio claimed that an informant went to the police station and told them that the appellant was openly selling illegal drugs; PO1 Jiro, on the other hand, stated that a civilian informant called the police and informed them of the appellants illegal activities . The appellant also alleges that the testimonies of these two witnesses differ as regards the actual place of the entrapment operation. She further argues that the police did not coordinate with the Philippine Drug Enforcement Agency (PDEA) in conducting the buy-bust operation. The appellant likewise contends that the prosecution failed to show an unbroken chain of custody in the handling of the seized specimen. She claims that the apprehending team did not mark the seized items upon confiscation. Moreover, there was no showing that the police inventoried or photographed the seized items in her presence or her counsel, a representative of the media and the Department of Justice (DOJ), and any elected public official.25 For the State, the Office of the Solicitor General (OSG) counters with the argument that the testimonies of the police officers prevail over the appellants bare denial, more so since there was nothing in the records to show that they were motivated by any evil motive other than their desire to curb the vicious drug trade.26 The OSG added that when the buy-bust operation took place on July 21, 2002, there was no institution yet known as the PDEA, as the Implementing Rules of R.A. No. 9165 (IRR) took effect only on November 27, 2002.27 It further claimed that the failure to comply with the Dangerous Drugs Board Regulations was not fatal to the prosecution of drug cases.28

THE COURTS RULING After due consideration, we resolve to acquit the appellant for the prosecutions failure to prove her guilt beyond reasonable doubt. In considering a criminal case, it is critical to start with the laws own starting perspective on the status of the accused in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.29 The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. In so doing, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In which case, the presumption prevails and the accused should necessarily be acquitted.30 The requirements of paragraph 1, Section 21 of Article II of R.A. No. 9165 In a prosecution for the illegal sale of a prohibited drug under Section 5 of R.A. No. 9165, the prosecution must prove the following elements: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. All these require evidence that the sale transaction transpired, coupled with the presentation in court of the corpus delicti, i.e., the body or substance of the crime that establishes that a crime has actually been committed, as shown by presenting the object of the illegal transaction. To remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the appellant; otherwise, the prosecution for possession or for drug pushing under R.A. No. 9165 fails.31 The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.] This procedure, however, was not shown to have been complied with by the members of the buy-bust team, and nothing on record suggests that they had extended reasonable efforts to comply with the said statutory requirement in handling the evidence. The deficiency is patent from the following exchanges at the trial: FISCAL ROMNIEL MACAPAGAL: Q: Upon arrival at Manggahan Street, what did x x x your group do? PO1 JOSE GORDON ANTONIO: A: We proceeded to the place and before we reach[ed] that place[,] our civilian asset pointed to us the suspect.

Q: After your civilian informer pointed to the suspect, what did your group do? A: I alighted from our private vehicle at the time and I was the one who talked to Erlinda Capuno. Q: You said [that] you talked to Erlinda Capuno, what did you tell her when you approached her? A: I told her "Paiskor ng halagang piso." Q: When you told this to Erlinda that you buy one Hundred Peso of shabu, what did he do? [sic] A: When I gave her on [sic] piece of the marked money[,] he [sic] pulled out something from her pocket. Q: What is the denomination of the marked money? A: One Hundred Peso bill. Q: Upon receiving the plastic sachet, what did you do next? A: After she gave me the suspected shabu, I held her by the arm and my two companions who [were] then seeing me approached me. [sic] Q: What is the purpose of holding the hands of Erlinda when you received this plastic sachet? A: When I took the plastic sachet that was the time I held her and after that I introduced myself and explained to her Constitutional rights. [sic] Q: After arresting Erlinda, where did you proceed? A: We brought her to the Police Station for investigation where she gave her full name and also turned over the suspected items[.] Q: Who recovered the buy-bust money? A: Police Officer Hero [sic], Sir. Q: You stated you were the one who handed the buy bust money to Erlinda. Do you have that buy bust money with you? A: After I gave the marked money to her[,] she picked from her left pocket the suspected shabu and Police Officer Hero recovered the money. [sic] xxxx Q: The alleged specimen you got from Erlinda, where is it now? A: We brought it to the Eastern Police District Crime Laboratory for examination. Q: Were you able to know the result of this examination?

A: Yes, Sir. When we returned we already have the result.32 From the foregoing exchanges, it is clear that the apprehending team, upon confiscation of the drug, immediately brought the appellant and the seized specimen to the police station. No physical inventory and photograph of the seized items were taken in the presence of the appellant or her counsel, a representative from the media and the DOJ, and an elective official. We stress that PO1 Antonios testimony was corroborated by another member of the apprehending team, PO1 Jiro, who narrated that after arresting the appellant, they brought her and the seized item to the police station. At no time during PO1 Jiros testimony did he even intimate that they inventoried or photographed the confiscated item. A review of jurisprudence, even prior to the passage of R.A. No. 9165, shows that this Court did not hesitate to strike down convictions for failure to follow the proper procedure for the custody of confiscated dangerous drugs. Prior to R.A. No. 9165, the Court applied the procedure required by Dangerous Drugs Board Regulation No. 3, Series of 1979, amending Board Regulation No. 7, Series of 1974.33 Section 1 of this Regulation requires the apprehending team, having initial custody and control of the seized drugs, to immediately inventory and photograph the same in the presence of the accused and/or his representatives, who shall be required to sign the copies of the inventory and be given a copy thereof. The Court remained vigilant in ensuring that the prescribed procedures in the handling of the seized drugs were observed after the passage of R.A. No. 9165. In People v. Lorenzo,34 we acquitted the accused for failure of the buy-bust team to photograph and inventory the seized items. People v. Garcia35 likewise resulted in an acquittal because no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required by R.A. No. 9165. In Bondad, Jr. v. People,36 we also acquitted the accused for the failure of the police to conduct an inventory and to photograph the seized item, without justifiable grounds. We had the same rulings in People v. Gutierrez,37 People v. Denoman,38 People v. Partoza,39 People v. Robles,40 and People v. dela Cruz,41 where we emphasized the importance of complying with the required procedures under Section 21 of R.A. No. 9165. To be sure, Section 21(a), Article II of the IRR offers some flexibility in complying with the express requirements under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e.,"noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.]" This saving clause, however, applies only where the prosecution recognized the procedural lapses, and, thereafter, explained the cited justifiable grounds, and when the prosecution established that the integrity and evidentiary value of the evidence seized had been preserved.42 These conditions were not met in the present case, as the prosecution did not even attempt to offer any justification for its failure to follow the prescribed procedures in the handling of the seized items. The "Chain of Custody" Requirement Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti - the body of the crime whose core is the confiscated illicit drug. Thus, every fact necessary to constitute the crime must be established. The chain of

custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.43 Board Regulation No. 1, Series of 2002, defines chain of custody as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." As a method of authenticating evidence, the chain of custody rule requires that the admission of the exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would, thus, include a testimony about the every link in the chain, from the moment the item was seized to the time it was offered in court as evidence, such that every person who handled the same would admit as to how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The same witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.44 In the present case, the prosecutions evidence failed to establish the chain that would have shown that the shabu presented in court was the very same specimen seized from the appellant. The first crucial link in the chain of custody starts with the seizure of the plastic sachet from the appellant. From the testimonies and joint affidavit of PO1 Antonio and PO1 Jiro, it is clear that the police did not mark the confiscated sachet upon confiscation. Marking after seizure is the starting point in the custodial link, thus it is vital that the seized contraband is immediately marked because succeeding handlers of the specimen will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, "planting," or contamination of evidence.45 The second link in the chain of custody is its turnover from PO1 Antonio to the police station. Both PO1 Antonio and PO1 Jiro testified that they brought the appellant and the seized item to the police station. They, however, failed to identify the person to whose custody the seized item was given. Although the records show that the request for laboratory examination of the seized item was prepared by the Chief of Police, Police Senior Inspector Anastacio Benzon, the evidence does not show that he was the official who received the marked plastic sachet from PO1 Antonio. As for the subsequent links in the chain of custody, the records show that the seized item was forwarded to the Philippine National Police Crime Laboratory by a certain PO1 Sanchez. We stress, however, that PO1 Sanchez forwarded the said specimen only on the next day, or on July 22, 2002. To harp back to what we earlier discussed, there was a missing link in the custody of the seized drug after it left the hands of PO1 Antonio. We cannot, therefore, presume that PO1 Sanchez had custody of the specimen in the interim. We also stress that the identity of the person who received the seized item at the crime laboratory was not clearly identified. Due to the procedural lapses pointed out above, serious uncertainty hangs over the identification of the seized shabu that the prosecution introduced into evidence. In effect,

the prosecution failed to fully prove the elements of the crime charged, creating a reasonable doubt on the criminal liability of the accused. Credibility of the Prosecution Witnesses We likewise cannot acquiesce to the credibility accorded to the prosecution witnesses by the courts a quo. Contrary to the lower courts ruling, the inconsistencies in the statements of the prosecution witnesses are substantial, not trivial. To recall, PO1 Antonio, PO1 Jiro and PO1 Fernandez stated in their Pinagsamang Sinumpaang Salaysay46 that a civilian asset arrived at the police station on July 21, 2002, and informed them that one "alias Erlinda" was selling illegal drugs on Manahan Street, Barangay Burgos, Rodriguez, Rizal. PO1 Antonio reiterated this fact when he testified in court that a civilian informant arrived at the police station on July 21, 2002 and told them that a woman was openly selling dangerous drugs on Manggahan Street, Barangay Burgos, Montalban, Rizal. PO1 Jiro, however, changed his story in court and testified that the confidential informant called the police and informed then that one "alias Erlinda" was selling illegal drugs. We are at a loss how PO1 Antonio and PO1 Jiro could have given different accounts regarding how the confidential asset informed them of the appellants illegal activities when both of them were present at the police station on July 21, 2002. What baffles us even more is why PO1 Jiros gave conflicting statements in his joint affidavit and in his court testimony. To us, the conflicting statements and declarations of PO1 Antonio and PO1 Jiro destroyed their credibility; it made their testimonies unreliable. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself, such as the common experience and observation of mankind can approve as probable under the circumstances.47 Presumption of Regularity in the Performance of Official Duties In sustaining the appellants conviction, the CA also relied on the evidentiary presumption that official duties have been regularly performed. This presumption, it must be stressed, is not conclusive. It cannot, by itself, overcome the constitutional presumption of innocence. Any taint of irregularity affects the whole performance and should make the presumption unavailable.48 The presumption, in other words, obtains only when nothing in the records suggests that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. But where the official act in question is irregular on its face, as in this case, an adverse presumption arises as a matter of course.49 As we explained in People v. Sanchez: While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because "First, the presumption is precisely just that - a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.50

All told, we find merit in the appellant's claim that the prosecution failed to discharge its burden of proving her guilt beyond reasonable doubt, due to the unreliability of the testimonies of the prosecution witnesses and substantial gaps in the chain of custody, raising reasonable doubt on the authenticity of the corpus delicti.1avvphi1 WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the May 27, 2008 Decision of the Court of Appeals in CA-G.R. CR No. 30215. Appellant Erlinda Capuno y Tison is hereby ACQUITTED for failure of the prosecution to prove her guilt beyond reasonable doubt. She is ordered immediately RELEASED from detention unless she is confined for another lawful cause. Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women, Mandaluyong City, for immediate implementation. The Superintendent of the Correctional Institution for Women is directed to report the action she has taken to this Court within five (5) days from receipt of this Decision. SO ORDERED. Romeo Sison v People GR no. 10820-83 November 16, 1995 Digest On June 27, 1986, Marcos loyalists scheduled a rally at the Luneta but their application for a permit to hold the rally was denied. They continued with the demonstration anyway. The police arrived and they could not produce a permit so they were asked to disperse in 10 minutes but instead of leaving, they became violent (shouting gulpihin niyo ang lahat ng mga Cory infiltrators). The police pushed them and used tear gas to disperse them. The group fled to Maria Orosa street and the situation stabilized a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. They then saw Annie Ferrer a starlet and supporter of Marcos. Annie Ferrer learned of their dispersal, she continued jogging while shouting Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, bugbugin ang mga nakadilaw (hindi rhyming). The group answered Bugbugin!. Annie was arrested later, which prompted someone to shout kailangang gu manti tayo ngayon! the group then started attacking persons in yellow. Renato Banculo saw this and removed his yellow shirt. Banculo later saw the group pursuing a man in yellow who was later found out to be Stephen Salcedo. The group caught up with Salcedo and boxed, and kicked and mauled him. He tried to free himself but they kept on hitting him. Ranulfo Sumilang came to Salcedo's help but the group kept on hitting Salcedo, somebody handed Sumilang a loyalist tag and he then presented this to the group. The group backed off for a while and Sumilang was able to get Salcedo away from them. But the accused in this case, namely, Raul Billosos, Richard de los Santos, Joel Tan, Nilo Pacadar, Joselito Tamayo, Romeo Sison continued with the hitting. Sumilang also saw Gerry Neri but did not see what he did to Salcedo. Salcedo was able to get away from the group and sat on some cement steps, he tried to flee to Roxas boulevard but Tan and Pacadar pursued him. Salcedo cried for help but no one answered. The mauling continued at the Rizal monument until Salcedo eventually collapsed. Sumilang hailed a van and brought Salcedo to the Medical Center Manila but was refused admission. He was then brought to PGH where he died upon arrival. The mauling was witnessed by many and the press took pictures and a video of the event which became front-page news the following day. Cory instructed the Western Police

district to investigate on it and Brigadier General Alfredo Lim offered a P10,000 reward for persons who could give information which could help arrest the killers. Sumilang and Banculo cooperated with the Police and several persons including the accused were investigated. Informations for murder were filed and these cases were consolidated. The prosecution presented twelve witnesses including Sumilang and Banculo. In support of their testimonies, the prosecution also presented documentary evidence consisting of newspaper accounts of the indicent and various photos. For their defense, the principal accused denied their participation in the mauling. Either they were not there (since they were not in the Photographs) or that they were there and were in the photos because they were just watching or trying to stop the maulers. Sison however said that he was not there and was in fact waiting for his photos to be developed ( he was a commercial photographer) and was afflicted with hernia which impaired his mobility. The RTC found Sison, Pacadar, Tan, de los Santos and Tamayo guilty as principals in the crime of murder qualified with treachery. Starlet Annie Ferrer was convicted as an accomplice. The court acquitted the others. On appeal, CA acquitted Starlet Annie Ferrer and increased the penalty of the rest of the accused except Tamayo. The Ca found them guilty of murder qualified by abuse of superior strength (penalty increased to RP). Hence auto review before the SC (for those sentenced to RP) Issue/s: 1. WON the CA erred in sustaining the testimonies of Sumilang and Banculo. NO 2. WON the CA erred in giving evidentiary weight to the photographs of the mauling incident. NO 1. the defense was arguing that the 2 only testified because of the reward and that Banculo submitted 3 sworn statements. They also pointed out that Banculo pointed at the wrong person when asked to identify Rolando Fernandez. The court disagreed there is no proof that they only testified because of the reward, since Sumilang went to the police station to issue a statement just 2 hours after the incident. Banculo on the other hand executed 3 statements to identify more suspects. This did not make his testimony incredible. Banuclo's mistake in identifying one of the accused does not make his whole testimony a falsity. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion the testimony of a witness can be believed as to some facts and disbelieved with respect to others 2. aside from the photographs, the appellants also questioned the way the court gave evidentiary weight to the joint affidavit of 2 patrolmen but the court held that the joint affidavit merely reiterated what the other witnesses testified to and was a mere surplusage. As for the photographs, the appellants were questioning such evidence for lack of proper identification by the person or persons who took the same the rule is that when Photos are presented in evidence, they must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. Value lies in it being a correct representation or reproduction of the

original. Admissibility determined by its accuracy in portraying the scene at the time of the crime. The correctness of the photo can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses. After which it can be admitted subject to its impeachment as to its accuracy. Therefore the photographer or another competent witness can testify as to the exactness and accuracy of the photograph. Initially the defense objected to the admissibility of the photos bu then they used the same photos in proving that some of the accused could not have participated since they were not in the photos. It was not until the third hearing where the Atty for the appellants interposed a continuing objection to their admissibility. The SC ruled that the use of the photographs by the atty for the appellants is an admission of the exactness and accuracy of such. That the photos were faithful representations of the mauling incident was affirmed when appellants de los santos, Pacadar and Tan identified themselves in the pictures and explained their presence in said pictures. 3 of the accused could be readily seen in various belligerent poses lunging or hovering behind or over the victim. The hernia afflicted Sison appeared only once and he was shown merely running after the victim. Tamayo was not identified in any of the photos but this does not exculpate him. He was still identified by Sumilang and Banculo the appellants also questioned that the lower court erred in finding conspiracy among the principals and finding them guilty of murder qualified by abuse of superior strength instead of death in tumultuous affray. SC disagreed and said Art. 251 of the RPC (Death caused in a tumultuous affray) takes place when a quarrel between several persons and they engage in a confused and tumultuous affray, in the course of which some are killed or wounded and the author cannot be ascertained. But in this case, the quarrel was between a group and an individual. The group took advantage of their superior strength and excessive force and frustrated any attempt by salcedo to excape. This qualifies the killing to murder. Also the SC held there was no treachery, though the essence of treachery is the sudden and unexpected attack without slightest provocation but in this case, the victim had the chance to sense the temper of the group and run away from them but he was overtaken by them. There was however conspiracy, there was a concerted effort to bring down salcedo. IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows: 1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua; 2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum; 3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts: (a) P74,000.00 as actual damages; (b) P100,000.00 as moral damages; and (c) P50,000.00 as indemnity for the death of the victim. Costs against accused-appellants. SO ORDERED. G.R. No. 109140 March 8, 1995

PEOPLE v TACIPIT This is an appeal from the decision dated November 24, 1992, of the Regional Trial Court of Sanchez Mira, Cagayan, Branch 12, finding accused-appellant Roland Tacipit guilty beyond reasonable doubt of the crime of rape, the dispositive portion of which reads as follows: WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of rape, as defined under paragraph (1) of Article 335 of the Revised Penal Code, as amended, without the use of a deadly weapon, and hereby imposes on him the penalty of reclusion perpetua with all the accessory penalties provided by law, and further sentences him to pay moral damages to one Onelia Pamittan in the amount of FIFTY THOUSAND PESOS (P50,000.00), Philippine currency and to pay the costs. . . . (Rollo, p. 32). The records of the case disclose that the complainant, Onelia Pamittan, was a 17-year old high school student at the Abulug School of Fisheries in Abulug, Cagayan at the time of he commission of the offense. She had a friend, Eden Molina, who studied at the same school and lived about two (2) kilometers from the school. In the afternoon of January 3, 1991, Eden invited some of her friends, including the complainant, over to her house. When the group arrived at Eden's house, at about 4:30 p.m., the accused-appellant Roland Tacipit was already there with Eden's brother, Elmer Molina, the latter being a friend and co-worker of the accused. Previous to this meeting, the complainant already knew the accused since he lived only a few meters from her home. She also knew the accused to be a married man. After partaking of a snack of tinubong (native rice cakes), the group decided to go home. At this point, the version given by the prosecution and the defense differed. According to the complainant, as she was about to leave the Molina house, the accused restrained her, held her left hand and her notebooks and told her friends to go ahead. Despite her cries and pleas for help, the owners of the house did nothing to help her. On the other hand, defense witness Elmer Molina alleged that the complainant and the accused were sweethearts. They left the house together, with their hands over each other's shoulders. At any rate, it is undisputed that the complainant left the Molina household with the accused. On the way, they passed through a coconut plantation of a certain Guillermo Agustin. By then, it was already getting dark. There, the accused took hold of the wrists of the complainant and wrestled her down to the ground. He tore off the T-shirt and skirt she was wearing and pinned her hands across her stomach. The accused then removed her shorts and panty and ravished her. After the carnal act, the accused accompanied the complainant to a point near her home and before leaving her, threatened to kill her or her family if she reports the matter to anyone. The complainant, however, did not heed the warning and immediately upon arriving at her house, reported the incident to her uncle, Ernesto Marantan, with whom she was residing. Marantan looked for the accused that same evening, but after failing in his search, he reported the matter instead to the barangay captain. The following day, the complainant accompanied by her mother, aunt and cousin, reported the incident to the police at the municipal building. She submitted her clothing for examination and after being investigated, submitted herself for medical examination. On January 5, 1991, the complainant executed a sworn statement narrating the circumstances surrounding the commission of the crime and filed the corresponding

complaint for rape. After a thorough investigation which resulted in the finding of probable cause, the municipal trial court issued a warrant of arrest against the accused. On February 18, 1991, an information was filed by the Provincial Prosecutor against the accused, as follows: The undersigned, Provincial Prosecutor, upon complaint filed by the offended party, Nelia T. Pamittan, in the Municipal Trial Court of Abulug, Cagayan, appearing on page 1, the record of the case, and forming an integral part of this Information, accuses Roland Tacipit y Manglapuz of the crime of Rape, defined and penalized under Article 335, of the Revised Penal Code, committed as follows: That on or about January 3, 1991, in the municipality of Abulug, province of Cagayan and within the jurisdiction of this Honorable Court, the said accused Roland Tacipit y Manglapuz, with lewd design, by means of force, violence and intimidation, and with the use of deadly weapon, did then and there wilfully, unlawfully and feloniously have sexual intercourse with the offended party, Onelia T. Pamittan, a minor, seventeen (17) years of age, against her will and consent. CONTRARY TO LAW. (Rollo, p, 7) Upon arraignment, the accused pleaded not guilty. As his defense, the accused claimed that he and the complainant were sweethearts since October 3, 1990 and that the complainant voluntarily yielded herself to him. As proof of their relationship, the accused presented a ring engraved with the name "Onelia" and alleged that it was given to him by the complainant as a token of her love. Defense witness Elmer Molina corroborated the testimony of the accused, stating that he courted the complainant but was spurned by her because she was already the accused's sweetheart. On the other hand, these contentions were firmly denied by the prosecution. The complainant testified that she knew the accused to be a married man and he never visited her house to court her. She also denied that Elmer Molina courted her or that she told him that he was the accused's girlfriend. As for the ring, the complainant denied ownership thereof. True enough, when the ring was tried on her hand, it was loose and did not fit her finger (Rollo, p. 23). The trial court, after consideration of the evidence presented, rendered the forequoted judgment against the accused. Hence, the present appeal wherein the following assigned errors are raised: I THE TRIAL COURT ERRED 1N GIVING WEIGHT AND CREDENCE TO THE OTHERWISE DOUBTFUL THEORY OF THE PROSECUTION AND IN DISREGARDING THAT OF THE DEFENSE. II THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. (Rollo, p. 56).

The defense argues that the weight of the evidence presented by the prosecution is grossly inadequate to overthrow the presumption of innocence granted by law to the accused. It is the contention of the accused-appellant that the testimony of complainant relied upon by the trial court in convicting him is incredible and not worthy of belief. There are inconsistencies in said testimony. It is also saddled with flaws which show her tendency to exaggerate things (Rollo, p. 61-64). Secondly, the accused argues that the physical evidence as well as the actuations of the parties concerned are not consistent with the allegation of rape but with carnal knowledge done with the consent of both the accused and the complainant. As proof, the accused pointed out the lack of external injuries on the body of the complainant. This fact negates the employment of force by the accused on the complainant and rules out struggle or any other form of resistance on the part of the complainant. The accused likewise points to the absence of an out cry on the part of the complainant which bolsters the position of the accused that the sexual intercourse was consensual. The rationale given by the complainant that she had a sore throat which prevented her from shouting was characterized by the defense as incredible. Finally, the accused argues that if rape had indeed been committed by him, he would not have accompanied the complainant to a place near her house, thereby exposing himself to the risk of being seen, but would have instead fled for safety, which is more consistent with he commission of an offense. In reviewing the evidence of this case, this Court was guided by the three(3) settled principles in reviewing rape cases, namely, (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense (People vs. Lim, 206 SCRA 176 [1992]). On these bases, the decision of the trial court must be affirmed. There is present in this case clear, convincing and competent physical and testimonial evidence to support a finding of guilt beyond reasonable doubt against the accused. The testimony of complainant Onelia Pamittan, was found by the trial court to be replete with details, negating the probability of fabrication. Although the trial court did not accord credence to that part of her testimony relating to how she ended up leaving the Molina household with the accused, the same did not militate against the credibility of the complainant as a prosecution witness. As far as alleged inconsistencies in her testimony are concerned, this Court has ruled time and again that a few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the basic aspects of the whys and wherefores of the crime, do not impair their credibility (People vs. Custodio, 197 SCRA 538 [1991] citing People vs. Muoz, 163 SCRA 780]. This is especially true in the crime of rape where the victim cannot be expected to remember with accuracy the details of her humiliating experience. At best, this Court relies upon the fact that the trial court found the complainant to be a credible witness. As often repeated by this Court: . . . the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge, who, unlike appellate magistrates, can weigh such testimony in the light of the declarant's demeanor, conduct and attitude at the trial

and is thereby placed in a more competent position to discriminate between the true and the false. Appellate courts will not disturb the credence, or lack of it, accorded by the trial court of the testimony of witnesses unless it be clearly shown that the latter court had overlooked or disregarded arbitrarily the facts and circumstances of significance in the case (People vs. Simbulan, 214 SCRA 537 [1992]). The appeal at hand presents no compelling reason to deviate from this general rule. Moreover, considering that the accused and the complainant are at most acquaintances, there appears to be no motive on the part of the complainant to testify against the accused which could render suspect her testimony in court. It is clear that her only intent was to seek redress for the injustice committed against her by appellant a married man. As held in People v. Guibao, (217 SCRA 64 [1993]): No woman would concoct a story of defloration, allow an examination of herself by being subjected to a public trial, if she was not motivated solely by the desire to have the culprit apprehended and punished. Anent the contention of the accused that the sexual act was committed with the mutual consent of the parties, the evidence presented by the prosecution sufficiently rebutted his point. For one, although there was an absence of external injuries on the body of the complainant, the clothes worn by her at the time of the offense speak well of the use of force and the presence of a struggle. As the trial court noted: Her T-shirt was torn which corroborates her testimony that it was forcibly removed. It also proves that she offered resistance to the criminal advances of the accused. Her shorts, like her panty, had blood stains. Her panty was detached from her shorts. Her bra was torn, also denoting that it was forcibly removed. These physical evidence . . . are consistent only with the force and compulsion applied on her; they prove she offered resistance and her defloration was against her will. (Rollo, p. 27) The actuations of the complainant subsequent to the commission of the crime are likewise consistent with her allegations of rape. Her immediate revelation of the incident to her uncle upon arrival as well as her swift recourse to the barangay Captain and the police authorities are not acts of a woman savoring an illicit tryst but that of a maiden seeking retribution for the outrage committed against her. Thus, the accused's reliance on the defense that he and the complainant were lovers is unfounded. But even if it were true, such relationship would not give the accused the license to deflower the complainant against her will, and will not exonerate him from the criminal charge for rape. Furthermore, there is nothing in the testimonies of either the complainant or even the accused himself which could indicate any sort of special relationship between the two. The alleged proof of such relationship, the ring with complainant's name engraved on it, does not even fit the fingers of the complainant. Their actuations with respect to each other before, during and even after the commission of the crime were consistent with the contention of the complainant that they are nothing more than acquaintances. The evidence of the prosecution, therefore, completely negates the existence of any relationship between the accused and the complainant. Finally, the accused's act of accompanying the complainant up to a point near her house does not appear to be a gesture of love. If the accused was not obsessed with a sense of guilt, he could have accompanied the complainant to the home since it was already dark at

night. Rather than a demonstration of his freedom from guilt, the actuation of the accused in the premises appears to be no less than a calculated move to ensure that the complainant will keep her silence about the sordid incident perpetrated against her will. WHEREFORE, the decision of the Regional Trial Court of Sanchez Mira, Cagayan, Branch 12, dated November 24, 1992 in Criminal Case No. 2190-S finding the accused-appellant Roland Tacipit guilty beyond reasonable doubt of the crime of rape, and sentencing him to suffer the penalty of reclusion perpetua, with all the accessory penalties, to pay the complainant Onelia Pamittan moral damages in the amount of fifty house and pesos (P50,000.00) and to pay the costs, is hereby AFFIRMED IN TOTO. SO ORDERED. People v. Kamad G.R. No. 174198, January 19, 2010 - digest FACTS: On October 16, 2002 the Philippine National Police Drug Enforcement Unit of the Southern Police District, Fort Bonifacio, Taguig received information from an asset that a certain Zaida was selling shabu at Purok IV, Silverio Compound, Paranaque City. At 10 PM of October 16, 2002, SPO2 Sanchez, poseur-buyer, gave marked PHP 300 bills to accused-appellant for the purchase of shabu. Upon receipt of the item, Zaida Kamad and her boyfriend, Leo, were arrested. The RTC Branch 259 of Paranaque City found accused guilty beyond reasonable doubt for violation of Section 5, Article II, of RA 9165 for the illegal sale of 0.20 gram of methamphetamine HCL. On appeal, the CA affirmed in toto the decision of the RTC.

ISSUE: Is accused-appellant guilty beyond reasonable doubt of violating Section 5, Article II of RA 9165 for the illegal sale of 0.20 gram of shabu? RULING: No, the Court ruled that in the prosecution of illegal sale of dangerous drugs, thethe following elements must must be established: (1) proof that the transaction took place, (2) corpus delicti presented as evidence. Records showed that the prosecution through SPO2 Sanchez, established the sale of the prohibited drug shabu by accusedappellant but the RTC and the CA failed to notice the defects in the prosecutions case such as (1) lapse in implementing Section 21, Article II of RA 9165 in the handling of the seized shabu and (2) failure of police to comply with the chain of custody rule. For violations of Section 21, Article II of RA 9165, no inventory and photographing of seized drugs was done at the place of arrest as well as the presence of the accused as it was being done nor a representative of the media, the DOJ, and any elected pubic official who will confirm that evidence seized were as they were found. Neither was it established by the prosecution why such thing were not followed by presenting (1) justifiable cause and (2) preserving the integrity and evidentiary value of seized evidence as required by the IRR of RA 9165 Section 21-A. For non-compliance of the chain of custody rule, which requires the documentation and description of evidence as it is being processed along the system was neither complied.

Court reverses and sets aside the decision of the CA affirming the final judgment of RTC Branch 259 of Paranaque City for the illegal sale of shabu of accused-appellant. Zaida Kamad is hereby acquitted and ordered released from detention. G.R. NO. 186527 June 29, 2010 PEOPLE v ROY PAMPILLONA Y REBADULLA Time and again the Court has condemned the illegal drug trade for being a scourge to our society. As an ardent sentinel of the peoples rights and welfare, this Court shall not hesitate to dispense justice on people who engage in such an activity.1 Drug pushers are merchants of death2 whose commodities cause so much physical, mental and moral pain not only to the immediate victims of their greed, but also to the families of the victims.3 Before this Court is the case of one of those merchants, accused Roy Pampillona y Rebadulla. After being apprehended for the sale of Methylamphetamine Hydrochloride also known as "shabu," a dangerous drug, the accused was charged with having committed a violation of Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The Information4 dated November 22, 2004 reads: "That on or about the 20th day of November, 2004, in Quezon City, Philippines, the said accused not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there willfully and unlawfully sell, dispense, deliver, transport, distribute, or act as a broker in the said transaction, point zero four (0.04) gram of white crystalline substance containing Methylamphetamine Hydrochloride, a dangerous drug. CONTRARY TO LAW." As culled from the evidence of the prosecution, it appears that on November 20, 2004, around 3:30 oclock in the morning, a female informant, a drug-user, appeared at the office of the Anti-Illegal Drugs Special Operations Team (SAID-SOAP), Galas Police Station, Quezon City, and informed team leader, Police Inspector (P/Insp.) Erwin Guevarra, about the illegal drug trade activities of one "Taroy" in Barangay Damayang Lagi, Quezon City. P/Insp. Guevarra then formed a team composed of PO2 Anthony Palimar, SPO2 Mario Abong, PO2 Erwin Bautista, and two (2) confidential agents. P/Insp. Guevarra then briefed the team members on the buy-bust operation they would be conducting based on the information relayed by the informant. PO2 Bautista was designated as the poseur-buyer, while SPO2 Abong would serve as back-up. The rest of the team would act as look-outs. P/Insp. Guevarra handed to PO2 Bautista a one hundred (P100.00) peso bill with Serial Number XE004371 to be utilized as the marked money. SPO2 Bautista then placed his initials "EB" inside the two zeros of the bill. A pre-operation report was also prepared for purposes of coordination with the Philippine Drug Enforcement Agency (PDEA). Later, at around 4:00 o'clock in the morning, the buy-bust team, together with the informant, proceeded to a house located in Barangay Damayang Lagi, Quezon City. The informant told PO2 Bautista that the person standing in front of the house was the drug pusher. In a little while, the informant introduced PO2 Bautista to the seller, who was identified as accused Roy Pampillona. The accused then asked PO2 Bautista, "Magkano ba bibilhin mo?" (How much are you going to buy?), to which the latter replied, "Isang Piso

Lang." (One Peso only.) The accused then asked for the money and the officer handed to him the marked one hundred peso bill. In exchange, the accused gave a plastic sachet to PO2 Bautista, who, after examining its content, was satisfied that it was shabu. Following a pre-arranged signal, PO2 Bautista removed his baseball cap. Immediately, the waiting team members rushed towards the scene and accosted the accused. SPO2 Abong introduced himself as a police officer and asked the accused to empty his pockets. SPO2 Abong then took the marked money from him and apprised him of his constitutional rights. Thereafter, the accused was taken to the Galas Police Station. Upon orders of the station investigator, PO2 Bautista marked the plastic sachet with the letters "EB-RP" so that it could be properly identified when delivered to the PNP Crime Laboratory for examination. During the trial, the prosecution and the defense agreed to dispense with the testimony of Senior Police Inspector Maridel C. Rodis, the forensic chemist of the Philippine National Police (PNP), and stipulated on the existence of a Letter-Request for examination of the specimen; the confirmatory report, Chemistry Report No. D-1111-04; and the finding that the specimen was found positive for Methylamphetamine Hydrochloride. The defense, on the other hand, presented the lone testimony of the accused who claimed that around 3:00 oclock in the morning of November 20, 2004, he was in his house with his wife and grandchild when he heard knocks on the door; that he did not mind them but his wife got out of bed and opened the door; that suddenly, several persons rushed to their bedroom and, after introducing themselves as policemen, handcuffed him; that they did not tell him why they did so and why they were bringing him to the police station; and that at the Galas Police Station, a certain police asset named "Manny" came over and talked to him. The accused also recalled that a day earlier, he was with his barkada together with a certain Manny playing kara y kruz. In that game, Manny lost P8,000.00. That Manny was the same "Manny" who approached him at the police station. He asked for the P8,000.00 he lost from the game explaining that the money belonged to some policemen who wanted it back. He told Manny, however, that he had only won P2,000.00 in their game and that he had given the money to his neighbor as payment for his electric bill covering two (2) months. According to him, his electric line was only connected to the line of his neighbor ("nakakabit"). For his failure to give P8,000.00 to Manny, he was framed up. Decision of the Trial Court On September 22, 2006, the trial court handed down its Decision5 convicting the accused of having violated Section 5, Article II of Republic Act No. 9165. The decretal portion of said decision reads: "ACCORDINGLY, judgment is hereby rendered finding the accused, ROY PAMPILLONA y REBADULLA, GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Article II of R.A. No. 9165 (for drug pushing) as charged and he is hereby sentenced to a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00. The plastic sachet of shabu involved in this case is ordered transmitted to the PDEA thru the DDB for proper disposition per R.A. 9165. PDEA is requested to be extra careful in safekeeping this shabu.

SO ORDERED." The accused was convicted on the strength of the testimonies of PO2 Bautista and SPO2 Abong. The trial court did not give weight to his defense of alibi. It wrote that PO2 Bautista and SPO2 Abong appeared to be candid and honest as they admitted that the pre-operation coordination report had been prepared in advance or prior to the arrival of their female informant. Their explanation that the said report had a lifetime or duration of twenty-four (24) hours and that the rest of the items in that report were entered after the informant had been interviewed, satisfied the court. The trial court was of the view that the buy-bust team performed their official duties in a regular manner. Although the plastic bag containing the shabu was only marked at the police station, its physical integrity was not affected because SPO2 Bautista was in possession of it at all times, until he marked the sachet with "EB-RP" at the station. They were the same specimen and sachet confirmed by the PNP Forensic Chemist in his Chemistry Report. The trial court did not give credence to the version of the accused basically because it was not corroborated by any of his co-players in the kara y cruz or barkadas. It could not also believe that the accused, a jobless person, would bet several thousand of pesos in a game of kara y kruz. Even his wife did not take the witness stand to confirm his story. Decision of the Court of Appeals In its Decision,6 the Court of Appeals affirmed the conviction stating that there was no reason to doubt the evaluation and assessment of the trial court regarding the credibility of the prosecution's witnesses. The appellate court noted that PO2 Bautista categorically narrated the buy-bust operation transaction and his testimony was corroborated on material points by SPO2 Abong who was waiting in the car, just a few meters away. The fact that SPO2 Bautista could not recall the name of the person who brought the specimen to the crime laboratory only proves that he was worthy of belief, as he was not coached. Neither could it be said that he rehearsed his lines. At any rate, the lapse in his memory was filled in by SPO2 Abong who claimed that he, together with the investigator, brought the confiscated shabu to the PNP Crime Laboratory for examination. On the claim of the accused that he was just being harassed by the policemen because he won in a game of kara y cruz, the appellate court opined that he could have filed the proper administrative charges against them if it were true. Since no administrative or criminal charges were filed, it concluded that his story was merely fabricated to enfeeble the case of the prosecution. Besides, it was lacking in corroboration. Thus, the accused failed to show that the police officers were impelled by improper and malicious motives in arresting him. The accused also contends that the Pre-Operation Report was defective since it was prepared in advance and that there was no evidence presented that the same was received and acted upon by the PDEA. To this, the appellate court ruled that such contention had no basis and that assuming there were defects, it would not impair the fact that the accused was arrested in the illegal sale of shabu during a buy-bust operation. THE COURTS RULING The Court finds no merit in this appeal. The elements necessary for the prosecution of illegal sale of drugs are (1) the identities of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing

sold and the payment therefor.7 What is material to the prosecution of illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.8 All these elements were present in this case. There is no doubt that the accused was caught red-handed in a buy-bust operation. The illegal sale of shabu was convincingly established by the credible and corroborated testimony of SPO2 Bautista who acted as the poseurbuyer. He had personal knowledge of the sale and positively identified the accused as the seller of the contraband. The object of the sale was examined and found to be positive for methylamphetamine hydrochloride (shabu), per Chemistry Report No. D-1111-04. The testimony of PO2 Bautista appears in the record as follows: Q: When you noticed that the subject was there, what did you do? A: Our female informant introduced me as the supposed shabu buyer, sir. Q: Were you able to talk to the subject at that time? A: Yes sir. Our subject immediately asked me. Q: Asked you what? A: Magkano ba ang bibilhin mo? Q: What was your answer? A: I said, "Isang piso lang" sir. Q: What was the answer of your subject? A: He asked me for money, sir. Q: Were you able to give the money? A: Yes, sir. Q: When he received the money, what happened next? A: He pulled out a piece of plastic sachet containing white crystalline substance suspected shabu, sir.9 The testimony of PO2 Bautista was indeed corroborated on material points by SPO2 Mario Abong who observed the transaction while waiting inside a car just a few meters away.10 Clearly, the accused was caught red-handed in the act of selling shabu to PO2 Bautista in a buy-bust operation. Contrary to the argument of the accused, the chain of custody of the seized prohibited drugs was not broken. PO2 Bautista was in possession of the sachet containing the shabu all that time after its confiscation. At the police station, he marked the specimen with the initial "EB-RP" upon orders of the investigator. After he had marked it, SPO2 Abong and the investigator brought the shabu to the crime laboratory for examination.

10

Besides, the issue of chain of custody was never raised by the accused at the trial court level. It was only brought up belatedly by the accused which clearly demonstrated that such defense was merely an after-thought. At any rate, non-compliance with Section 21 of RA 916511 will not render the arrest of an accused illegal or the items seized or confiscated from him inadmissible.12 What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In this case, it has been shown that the integrity and evidentiary value of the seized items has been preserved. The Court likewise notes that the regularity in the preparation of the Pre-Operation Report was established by the testimony of PO2 Bautista and SPO2 Abong, when they explained that per office procedure, the entry "Duration" was filled in advance to reflect its effectivity or lifetime because the Pre-Operation Report had a lifetime or duration of twenty-four (24) hours. When a specific operation came up, the details of the pre-operation report would then be entered, and the report sent to the PDEA. In this case, the entry "Duration" in the Pre-Operation Report indicates "19220H to 2022200H Nov. 2004." The Court, therefore, sustains the regularity in the preparation of the Pre-Operation Report since it was valid or had a lifetime from 10:00 in the evening of November 19, 2004, to 10:00 in the evening of November 20, 2004. Again, taking into consideration the presumption of regularity in the performance of official functions and absent any evidence that would negate such presumption, the Court considers the Pre-Operation Report to have been properly received, noted and acted upon by the PDEA. As uniformly observed by the trial court and the appellate court, the account of the arresting/entrapping police officers, as to what took place in the evening of November 20, 2004, was credible. They rendered consistent and straightforward narration of what actually transpired that night. Besides, there is the presumption of regularity in the performance of official duty by the police operatives in this case and such presumption was never substantially rebutted by the defense. For the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity.13 Frame-up, like alibi, is generally viewed with caution by this Court because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecution of violations of the Dangerous Drugs Act.14 In this jurisdiction, the conduct of a buy-bust operation is a common and accepted mode of apprehending those involved in illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.15 Unless there is clear and convincing evidence that the members of the buy-bust team were impelled by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.161avvphi1 In the case at bench, with a practically uncorroborated testimony, the accused miserably failed to show that the members of the buy-bust team were driven by any improper motive or that they did not properly perform their duty. Against the positive testimonies of the prosecution witnesses, the plain denial by the accused simply fails.17 Under Section 5, Article II of Republic Act No. 9165, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00.18 With the effectivity, however, of Republic Act No. 9346,19 the imposition of the supreme penalty of death has been proscribed. Thus, the

penalty to be imposed on the accused shall only be life imprisonment and fine. Finding that the penalty imposed on him for selling shabu to be in accordance with law, the Court upholds it. WHEREFORE, the August 18, 2008 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 02547 is hereby AFFIRMED. SO ORDERED. DOCUMENTARY EVIDENCE G.R. No. 200134 August 15, 2012 ROBERTO OTERO v ROGER TAN Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the Decision1 dated April 29, 2011 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 02244, which affirmed the Judgment2 dated December 28, 2007 issued by the Regional Trial Court (RTC), Cagayan de Oro City, Branch 23 in Civil Case No. 2007-90. The Antecedent Facts A Complaint3 for collection of sum of money and damages was filed by Roger Tan (Tan) with the Municipal Trial Court in Cities (MTCC), Cagayan de Oro City on July 28, 2005 against Roberto Otero (Otero). Tan alleged that on several occasions from February 2000 to May 2001, Otero purchased on credit petroleum products from his Petron outlet in Valencia City, Bukidnon in the aggregate amount of P 270,818.01. Tan further claimed that despite several verbal demands, Otero failed to settle his obligation. Despite receipt of the summons and a copy of the said complaint, which per the records of the case below were served through his wife Grace R. Otero on August 31, 2005, Otero failed to file his answer with the MTCC. On November 18, 2005, Tan filed a motion with the MTCC to declare Otero in default for his failure to file his answer. Otero opposed Tans motion, claiming that he did not receive a copy of the summons and a copy of Tans complaint. Hearing on the said motion was set on January 25, 2006, but was later reset to March 8, 2006, Otero manifesting that he only received the notice therefor on January 23, 2006. The hearing on March 8, 2006 was further reset to April 26, 2006 since the presiding judge was attending a convention. Otero failed to appear at the next scheduled hearing, and the MTCC issued an order declaring him in default. A copy of the said order was sent to Otero on May 9, 2006. Tan was then allowed to present his evidence ex parte. Tan adduced in evidence the testimonies of Rosemarie Doblado and Zita Sara, his employees in his Petron outlet who attended Otero when the latter made purchases of petroleum products now the subject of the action below. He likewise presented various statements of account4 showing the petroleum products which Otero purchased from his establishment. The said statements of account were prepared and checked by a certain Lito Betache (Betache), apparently likewise an employee of Tan. The MTCC Decision On February 14, 2007, the MTCC rendered a Decision5 directing Otero to pay Tan his outstanding obligation in the amount of P 270,818.01, as well as attorneys fees and

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litigation expenses and costs in the amounts of P 15,000.00 and P 3,350.00, respectively. The MTCC opined that Oteros failure to file an answer despite notice is a tacit admission of Tans claim. Undeterred, Otero appealed the MTCC Decision dated February 14, 2007 to the RTC, asserting that the MTCCs disposition is factually baseless and that he was deprived of due process. The RTC Decision On December 28, 2007, the RTC rendered a Judgment6 affirming the MTCC Decision dated February 14, 2007. The RTC held that the statements of account that were presented by Tan before the MTCC were overwhelming enough to prove that Otero is indeed indebted to Tan in the amount of P 270,818.01. Further, brushing aside Oteros claim of denial of due process, the RTC pointed out that: As to the second assignment of error, suffice to say that as borne out by the record of the case, defendant-appellant was given his day in Court contrary to his claim. His wife, Grace R. Otero received a copy of the summons together with a copy of the Complaint and its corresponding annexes on August 31, 2005, per Return of Service made by Angelita N. Bandoy, Process Server of OCC-MTCC of Davao City. He was furnished with a copy of the Motion to Declare Defendant in Default on November 18, 2005, per Registry Receipt No. 2248 which was received by the defendant. Instead of filing his answer or any pleading to set aside the Order of default, he filed his Comment to the Motion to Declare Defendant in Default of which plaintiff filed his Rejoinder to Defendants Comment. The case was set for hearing on January 23, 2006, but defendant through counsel sent a telegram that he only received the notice on the day of the hearing thereby he was unable to appear due to his previous scheduled hearings. Still, for reasons only known to him, defendant failed to lift the Order of Default. The hearing on January 23, 2006 was reset on March 8, 2006 and again reset on April 26, 2006 by agreement of counsels x x x. It is not therefore correct when defendant said that he was deprived of due process.7 Otero sought reconsideration of the Judgment dated December 28, 2007 but it was denied by the RTC in its Order8 dated February 20, 2008. Otero then filed a petition for review9 with the CA asserting that both the RTC and the MTCC erred in giving credence to the pieces of evidence presented by Tan in support of his complaint. Otero explained that the statements of account, which Tan adduced during the ex parte presentation of his evidence, were prepared by a certain Betache who was not presented as a witness by Tan. Otero avers that the genuineness and due execution of the said statements of account, being private documents, must first be established lest the said documents be rendered inadmissible in evidence. Thus, Otero asserts, the MTCC and the RTC should not have admitted in evidence the said statements of account as Tan failed to establish the genuineness and due execution of the same. The CA Decision On April 29, 2011, the CA rendered the assailed Decision10 which denied the petition for review filed by Otero. In rejecting Oteros allegation with regard to the genuineness and due execution of the statements of account presented by Tan, the CA held that any defense

which Otero may have against Tans claim is already deemed waived due to Oteros failure to file his answer. Thus: Otero never denied that his wife received the summons and a copy of the complaint. He did not question the validity of the substituted service. Consequently, he is charged with the knowledge of Tans monetary claim. Section 1, Rule 9 of the Rules of Court explicitly provides that defenses and objections not pleaded are deemed waived. Moreover, when the defendant is declared in default, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant. Due to Oteros failure to file his Answer despite being duly served with summons coupled with his voluntary appearance in court, he is deemed to have waived whatever defenses he has against Tans claim. Apparently, Otero is employing dilatory moves to defer the payment of his obligation which he never denied.11 (Citation omitted) Oteros Motion for Reconsideration12 was denied by the CA in its Resolution13 dated December 13, 2011. Hence, the instant petition. Issues Essentially, the fundamental issues to be resolved by this Court are the following: first, whether Otero, having been declared in default by the MTCC, may, in the appellate proceedings, still raise the failure of Tan to authenticate the statements of account which he adduced in evidence; and second, whether Tan was able to prove the material allegations of his complaint. The Courts Ruling The petition is denied. First Issue: Authentication of the Statements of Account The CA, in denying the petition for review filed by Otero, held that since he was declared in default by the MTCC, he is already deemed to have waived whatever defenses he has against Tans claim. He is, thus, already barred from raising the alleg ed infirmity in the presentation of the statements of account. We do not agree. A defendant who fails to file an answer loses his standing in court. The effect of a defendants failure to file an answer within the time allowed therefor is primarily governed by Section 3, Rule 9 of the Rules of Court, viz: Sec. 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. x x x (Emphasis ours)

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A defendant who fails to file an answer may, upon motion, be declared by the court in default. Loss of standing in court, the forfeiture of ones right as a party liti gant, contestant or legal adversary, is the consequence of an order of default. A party in default loses his right to present his defense, control the proceedings, and examine or cross-examine witnesses. He has no right to expect that his pleadings would be acted upon by the court nor may be object to or refute evidence or motions filed against him.14 A defendant who was declared in default may nevertheless appeal from the judgment by default, albeit on limited grounds. Nonetheless, the fact that a defendant has lost his standing in court for having been declared in default does not mean that he is left sans any recourse whatsoever. In Lina v. CA, et al.,15 this Court enumerated the remedies available to party who has been declared in default, to wit: a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion, under oath, to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable neglect, and that he has meritorious defenses; (Sec 3, Rule 18) b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37; c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Section 2 of Rule 38; and d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him. (Sec. 2, Rule 41)16 (Emphasis ours) Indeed, a defending party declared in default retains the right to appeal from the judgment by default. However, the grounds that may be raised in such an appeal are restricted to any of the following: first, the failure of the plaintiff to prove the material allegations of the complaint; second, the decision is contrary to law; and third, the amount of judgment is excessive or different in kind from that prayed for.17 In these cases, the appellate tribunal should only consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence. A defendant who has been declared in default is precluded from raising any other ground in his appeal from the judgment by default since, otherwise, he would then be allowed to adduce evidence in his defense, which right he had lost after he was declared in default.18 Indeed, he is proscribed in the appellate tribunal from adducing any evidence to bolster his defense against the plaintiffs claim. Thus, in Rural Bank of Sta. Catalina, Inc. v. Land Bank of the Philippines,19 this Court explained that: It bears stressing that a defending party declared in default loses his standing in court and his right to adduce evidence and to present his defense. He, however, has the right to appeal from the judgment by default and assail said judgment on the ground, inter alia, that the amount of the judgment is excessive or is different in kind from that prayed for, or that the plaintiff failed to prove the material allegations of his complaint, or that the

decision is contrary to law. Such party declared in default is proscribed from seeking a modification or reversal of the assailed decision on the basis of the evidence submitted by him in the Court of Appeals, for if it were otherwise, he would thereby be allowed to regain his right to adduce evidence, a right which he lost in the trial court when he was declared in default, and which he failed to have vacated. In this case, the petitioner sought the modification of the decision of the trial court based on the evidence submitted by it only in the Court of Appeals.20 (Citations omitted and emphasis ours) Here, Otero, in his appeal from the judgment by default, asserted that Tan failed to prove the material allegations of his complaint. He contends that the lower courts should not have given credence to the statements of account that were presented by Tan as the same were not authenticated. He points out that Betache, the person who appears to have prepared the said statements of account, was not presented by Tan as a witness during the ex parte presentation of his evidence with the MTCC to identify and authenticate the same. Accordingly, the said statements of account are mere hearsay and should not have been admitted by the lower tribunals as evidence. Thus, essentially, Otero asserts that Tan failed to prove the material allegations of his complaint since the statements of account which he presented are inadmissible in evidence. While the RTC and the CA, in resolving Oteros appeal from the default judgment of the MTCC, were only required to examine the pieces of evidence that were presented by Tan, the CA erred in brushing aside Oteros arguments with respect to the admissibility of the said statements of account on the ground that the latter had already waived any defense or objection which he may have against Tans claim. Contrary to the CAs disquisition, it is not accurate to state that having been declared in default by the MTCC, Otero is already deemed to have waived any and all defenses which he may have against Tans claim. While it may be said that by defaulting, the defendant leaves himself at the mercy of the court, the rules nevertheless see to it that any judgment against him must be in accordance with the evidence required by law. The evidence of the plaintiff, presented in the defendants absence, cannot be admitted if it is basically incompetent. Althou gh the defendant would not be in a position to object, elementary justice requires that only legal evidence should be considered against him. If the same should prove insufficient to justify a judgment for the plaintiff, the complaint must be dismissed. And if a favorable judgment is justifiable, it cannot exceed in amount or be different in kind from what is prayed for in the complaint.21 Thus, in SSS v. Hon. Chaves,22 this Court emphasized that: We must stress, however, that a judgment of default against the petitioner who failed to appear during pre-trial or, for that matter, any defendant who failed to file an answer, does not imply a waiver of all of their rights, except their right to be heard and to present evidence to support their allegations. Otherwise, it would be meaningless to request presentation of evidence every time the other party is declared in default. If it were so, a decision would then automatically be rendered in favor of the non-defaulting party and exactly to the tenor of his prayer. The law also gives the defaulting parties some measure of protection because plaintiffs, despite the default of defendants, are still required to substantiate their allegations in the complaint.23 (Citations omitted and emphasis ours) The statements of account presented by Tan were merely hearsay as the genuineness and due

13

execution of the same were not established. Anent the admissibility of the statements of account presented by Tan, this Court rules that the same should not have been admitted in evidence by the lower tribunals. Section 20, Rule 132 of the Rules of Court provides that the authenticity and due execution of a private document, before it is received in evidence by the court, must be established. Thus: Sec. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: a) By anyone who saw the document executed or written; or b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. A private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private document requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court. The requirement of authentication of a private document is excused only in four instances, specifically: (a) when the document is an ancient one within the context of Section 21, Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an actionable document have not been specifically denied under oath by the adverse party; (c) when the genuineness and authenticity of the document have been admitted; or (d) when the document is not being offered as genuine.24 The statements of account which Tan adduced in evidence before the MTCC indubitably are private documents. Considering that these documents do not fall among the aforementioned exceptions, the MTCC could not admit the same as evidence against Otero without the required authentication thereof pursuant to Section 20, Rule 132 of the Rules of Court. During authentication in court, a witness positively testifies that a document presented as evidence is genuine and has been duly executed, or that the document is neither spurious nor counterfeit nor executed by mistake or under duress.25 Here, Tan, during the ex parte presentation of his evidence, did not present anyone who testified that the said statements of account were genuine and were duly executed or that the same were neither spurious or counterfeit or executed by mistake or under duress. Betache, the one who prepared the said statements of account, was not presented by Tan as a witness during the ex parte presentation of his evidence with the MTCC. Considering that Tan failed to authenticate the aforesaid statements of account, the said documents should not have been admitted in evidence against Otero. It was thus error for the lower tribunals to have considered the same in assessing the merits of Tans Complaint. Second Issue: The Material Allegations of the Complaint In view of the inadmissibility of the statements of account presented by Tan, the remaining question that should be settled is whether the pieces of evidence adduced by Tan during

the ex parte presentation of his evidence, excluding the said statements of account, sufficiently prove the material allegations of his complaint against Otero. We rule in the affirmative. In civil cases, it is a basic rule that the party making allegations has the burden of proving them by a preponderance of evidence. The parties must rely on the strength of their own evidence and not upon the weakness of the defense offered by their opponent.26 This rule holds true especially when the latter has had no opportunity to present evidence because of a default order. Needless to say, the extent of the relief that may be granted can only be so much as has been alleged and proved with preponderant evidence required under Section 1 of Rule 133.27 Notwithstanding the inadmissibility of the said statements of account, this Court finds that Tan was still able to prove by a preponderance of evidence the material allegations of his complaint against Otero. First, the statements of account adduced by Tan during the ex parte presentation of his evidence are just summaries of Otero's unpaid obligations, the absence of which do not necessarily disprove the latter's liability. Second, aside from the statements of account, Tan likewise adduced in evidence the testimonies of his employees in his Petron outlet who testified that Otero, on various occasions, indeed purchased on credit petroleum products from the former and that he failed to pay for the same. It bears stressing that the MTCC, the R TC and the CA all gave credence to the said testimonial evidence presented by Tan and, accordingly, unanimously found that Otero still has unpaid outstanding obligation in favor of Tan in the amount of P 270,818.01. Well-established is the principle that factual findings of the trial court, when adopted and confirmed by the CA, are binding and conclusive on this Court and will generally not be reviewed on appeal.28 The Court sees no compelling reason to depart from the foregoing finding of fact of the lower courts. WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The Decision dated April 29, 2011 rendered by the Court of Appeals in CA-G.R. SP No. 02244 is AFFIRMED. SO ORDERED. Lim Tanhu vs. Ramolete 66 SCRA 425 - Digest FACTS: Private respondent Tan Put alleged that she is the widow of Tee Hoon Lim Po Chuan, who was a partner and practically the owner who has controlling interest of Glory Commercial Company and a Chinese Citizen until his death. Defendant Antonio Lim Tanhu and Alfonso Leonardo Ng Sua were partners in name but they were mere employees of Po Chuan and were naturalized Filipino Citizens. Tan Put filed complaint against spouses-petitoner Lim Tanhu and Dy Ochay including their son Tech Chuan and the other spouses-petitoner Ng Sua and Co Oyo including also their son Eng Chong Leonardo, that through fraud and machination took actual and active management of the partnership and that she alleged entitlement to share not only in the capital and profits of the partnership but also in the

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other assets, both real and personal, acquired by the partnership with funds of the latter during its lifetime." According to the petitioners, Ang Siok Tin is the legitimate wife, still living, and with whom Tee Hoon had four legitimate children, a twin born in 1942, and two others born in 1949 and 1965, all presently residing in Hong Kong. Tee Hoon died in 1966 and as a result of which the partnership was dissolved and what corresponded to him were all given to his legitimate wife and children. Tan Put prior of her alleged marriage with Tee Hoon on 1949, was engaged in the drugstore business; that not long after her marriage, upon the suggestion of the latter sold her drugstore for P125,000.00 which amount she gave to her husband as investment in Glory Commercial Co. sometime in 1950; that after the investment of the above-stated amount in the partnership its business flourished and it embarked in the import business and also engaged in the wholesale and retail trade of cement and GI sheets and under huge profits. Defendants interpose that Tan Put knew and was are that she was merely the common-law wife of Tee Hoon. Tan Put and Tee Hoon were childless but the former had a foster child, Antonio Nunez. ISSUE: Whether Tan Put, as she alleged being married with Tee Hoon, can claim from the company of the latters share. HELD: Under Article 55 of the Civil Code, the declaration of the contracting parties that they take each other as husband and wife "shall be set forth in an instrument" signed by the parties as well as by their witnesses and the person solemnizing the marriage. Accordingly, the primary evidence of a marriage must be an authentic copy of the marriage contract. While a marriage may also be proved by other competent evidence, the absence of the contract must first be satisfactorily explained. Surely, the certification of the person who allegedly solemnized a marriage is not admissible evidence of such marriage unless proof of loss of the contract or of any other satisfactory reason for its non-production is first presented to the court. In the case at bar, the purported certification issued by a Mons. Jose M. Recoleto, Bishop, Philippine Independent Church, Cebu City, is not, therefore, competent evidence, there being absolutely no showing as to unavailability of the marriage contract and, indeed, as to the authenticity of the signature of said certifier, the jurat allegedly signed by a second assistant provincial fiscal not being authorized by law, since it is not part of the functions of his office. Besides, inasmuch as the bishop did not testify, the same is hearsay. An agreement with Tee Hoon was shown and signed by Tan Put that she received P40,000 for her subsistence when they terminated their relationship of common-law marriage and promised not to interfere with each others affairs since they are incompatible and not in the position to keep living together permanently. Hence, this document not only proves that her relation was that of a common-law wife but had also settled property interests in the payment of P40,000. IN VIEW OF ALL THE FOREGOING, the petition is granted. All proceedings held in respondent court in its Civil Case No. 12328 subsequent to the order of dismissal of October 21, 1974 are hereby annulled and set aside, particularly the ex-parte proceedings against petitioners and the decision on December 20, 1974. Respondent court is hereby ordered to enter an order extending the effects of its order of dismissal of the action dated October 21, 1974 to herein petitioners Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo. And respondent court is hereby permanently enjoined from taking any further action in said civil case gave and except as herein indicated. Costs against private respondent.

People vs Tanjutco (April 29, 1968) This is a case charging Tanjutco with qualified theft. Pau: Art. 310. Qualified theft. The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic erruption, or any other calamity, vehicular accident or civil disturbance. Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. Facts: Mr. Roman Santos, businessman, financier, and Chairman of the Board of Directors of the Prudential Bank and Trust Company (PBTC) which he had founded. Accused Tanjutco was the secretary to the Board-Charimanas such he access to all ofces of the bank and free use of its equipment. The relationship between the accused and his employer was so intimate and confidential that the latter used to send to the former sums of money to be deposited to Don Romans current accounts with Prudential Bank. Mr. Santos maintained four accounts, all current with the bank. Mr. Santos would send money to the accused to be deposited, the accused will deposit and obtain a duplicate of the deposit slip duly stamped by the bank. This would be shown to Mr. Santos and he would check it. Later on, the accused was tempted to use part of the money entrusted to him. He then deposited smaller amounts than that he received. At times, no deposit at all. To hide his crime, the accused used to falsify duplicate deposit slips which he showed to Mr. Santos. When he received the monthly customer ledger, he likewise falsified a duplicate monthly customers ledger, entering in the falsified ledger the correct amount he received from Mr.

15

Santos for deposit in place of the maount he actually deposited. He prepared statements after work hours indicating amounts purportedly deposited although the actual deposits were made for lesser amount or no deposits were made at all. Appellant does not dispute that a number of duplicate deposit slips and monthly bank statements, supposed to have been submitted by him to complainant Roman Santos, were found to be falsified. What he is contesting here is that he authored such falsifications, which conclusion, he claims, is not supported by evidence. He also question the amount of what is misappropriated (Pau: Because penalty of imprisonment will differ). Issue: WON the evidence providedduplicates, ledgers and banks statements are best evidence. Held: Yes. They , ledgers and bank statements are not just secondary, but the primary evidence of the deposits made, while the monthly bank statements found in the files of the complainant Santos which were supposed to confirm the amounts he had ordered the accused to be deposited, are the best evidence of the amounts actually entrusted to the latter. It is true that not a single witness testified to having personally seen the accused in the act of falsifying the duplicate deposit slips or bank statements. But direct evidence on this point is not imperative. Considering that:

reversible error, if repeated references thereto in the course of the trial by counsel for the accused and of the court convincingly show that the documents were part of the prosecution's evidence.8 No error, therefore, was committed by the trial court in giving due credence and weight to the deposit slips. These 40 duplicate deposit slips were admitted by the Court below, not to prove falsification, but only to establish the fact that accused-appellant has received money to be deposited for the account of his employer, and determine the exact amount thus received. The relevancy of these documents to prove that fact is not affected by the absence of appellant's signature thereon. As regards those without corresponding originals, we have given the reason for their inclusion in the total sum for which appellant is accountable, in our discussion of those individuals items. Furthermore, it appearing that even some of the original deposit slips delivered to the bank do not bear appellant's signature, the absence alone of such signature is no indication that the 40 duplicate slips in question were not in fact prepared by him. Appellant assails the admissibility of the: a. entries appearing in the ledgers of the PBTC, b. of the bank statements from its file, and

a. b.

it was the accused-appellant who prepared the original and deposit slips; that there appeared discrepancies between the original deposit slips retained by the Prudential Bank and the duplicates thereof which were found by the auditors; that the amounts indicated in the originals were accordingly credited by the bank for the account of the depositor Roman R. Santos; that there were supposed duplicate deposit slips, duly signed by accused-appellant which contained forged initials of the bank-teller, or else not covered by any original slip at all; 4 that accused-appellant admitted, not only of having manipulated the records of his employer, but also of having been able, by that means, to abstract an undetermined amount from the funds of the latter5

c. the monthly bank statements taken from the files of Ramon Santos. Claiming that under the prosecutions theory, the best evidence to prove his guilt would be the original slips and their duplicates. There is no merit to the contention. It must be remembered that the prosecution had to prove the amount allegedly embezzled by the accused. This, the prosecution tried to do by establishing the amounts received by the accused-appellant and comparing it with those deposited in the bank; the resulting difference being treated as the amount abstracted from the funds of the complainant. Under this theory, the ledgers and bank statements naturally are not just secondary, but the primary evidence of the deposits made, while the monthly bank statements found in the files of complainant Roman Santos which were supposed to confirm the amounts he had ordered the accusedappellant to be deposited, are the best evidence of the amounts actually entrusted to the latter. Consequently, the trial court committed no error in ruling in favor of the admissibility of the above-mentioned exhibits. The allegation that there was no positive, direct evidence to show that the monthly bank statements found in the file of the complainant were the same documents delivered by him to the latter. But in accused act of urging his 5th assignment of error, that the deduction from the total sum covered by all the duplicate deposit slips coming from the files of the complainant of the amounts of the covered 40 unsigned deposit slips and that their resulting difference is the correct total amount covered by duplicate deposit slips for which the accused can be held liable, said accused in fact acknowledged that these duplicate deposit slips were the ones delivered by him to Santos.

c.

no other conclusion could be drawn from the foregoing facts than that the falsified documents were the ones prepared by appellant to hide his misdeeds. Even assuming these evidences to be circumstantial, they nevertheless constitute legal evidence6 that may support a conviction, affording as they are basis for a reasonable inference of the existence of the fact thereby sought to be proved. There is no necessity for all the duplicate deposit slips to be identified one by one before they may be properly be considered against the accused. These slips were not only bundled into a bunch and formally presented as Exhibit, they had also been consistently referred to as one of the bases of the prosecutions claim that the misappropriation amounted to P400K. As ruled by this Court in another criminal case, the absence of any record of the formal presentation of certain exhibits does not render their consideration

16

Alleged hearsay because of the testimony of two auditors: The lower court give due weight to the report of the auditors because it was found to be clear and duly supported by testimonial and documentary evidence-monthly bank accounts, bank statements, deposit slipsthe materiality and relevancy of which were already here sustained) presented during the trial to which conclusion the Supreme Court fully agrees. Finally, making capital of the acceptance by complainant of properties belonging to the accused and his relatives allegedly assigned to the former for the settlement of his obligations, accused-appellant claims that there had been novation of the relationship between him and the said complainant, resulting in the obliteration or extinction of his criminal liability. Nery case as basis of accused. In Nery case, there was a contractual relationship. Here no such relationship is involved. Secondly, payment cannot obliterate or extinguish criminal liability. It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence, the role of novation may only be to either prevent the rise of criminal liability or to cast doubt on the true nature of the original basic transaction, whether or not it was such that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to. Furthermore, it may be mentioned that the mother and sister of accused-appellant, before the criminal case here was filed, instituted in the Court of First Instance of Pampanga an action for annulment of the deeds of assignment of their properties (Civil Case No. 875) on the ground that they were induced to execute the same through fraud and deceit. G.R. No. L-23893 October 29, 1968 VILLA REY TRANSIT, INC. v FERRER This is a tri-party appeal from the decision of the Court of First Instance of Manila, Civil Case No. 41845, declaring null and void the sheriff's sale of two certificates of public convenience in favor of defendant Eusebio E. Ferrer and the subsequent sale thereof by the latter to defendant Pangasinan Transportation Co., Inc.; declaring the plaintiff Villa Rey Transit, Inc., to be the lawful owner of the said certificates of public convenience; and ordering the private defendants, jointly and severally, to pay to the plaintiff, the sum of P5,000.00 as and for attorney's fees. The case against the PSC was dismissed. The rather ramified circumstances of the instant case can best be understood by a chronological narration of the essential facts, to wit: Prior to 1959, Jose M. Villarama was an operator of a bus transportation, under the business name of Villa Rey Transit, pursuant to certificates of public convenience granted him by the Public Service Commission (PSC, for short) in Cases Nos. 44213 and 104651, which authorized him to operate a total of thirty-two (32) units on various routes or lines from Pangasinan to Manila, and vice-versa. On January 8, 1959, he sold the aforementioned two certificates of public convenience to the Pangasinan Transportation Company, Inc. (otherwise known as Pantranco), for P350,000.00 with the condition, among others, that the seller (Villarama) "shall not for a period of 10 years from the date of this sale, apply for any TPU service identical or competing with the buyer."

Barely three months thereafter, or on March 6, 1959: a corporation called Villa Rey Transit, Inc. (which shall be referred to hereafter as the Corporation) was organized with a capital stock of P500,000.00 divided into 5,000 shares of the par value of P100.00 each; P200,000.00 was the subscribed stock; Natividad R. Villarama (wife of Jose M. Villarama) was one of the incorporators, and she subscribed for P1,000.00; the balance of P199,000.00 was subscribed by the brother and sister-in-law of Jose M. Villarama; of the subscribed capital stock, P105,000.00 was paid to the treasurer of the corporation, who was Natividad R. Villarama. In less than a month after its registration with the Securities and Exchange Commission (March 10, 1959), the Corporation, on April 7, 1959, bought five certificates of public convenience, forty-nine buses, tools and equipment from one Valentin Fernando, for the sum of P249,000.00, of which P100,000.00 was paid upon the signing of the contract; P50,000.00 was payable upon the final approval of the sale by the PSC; P49,500.00 one year after the final approval of the sale; and the balance of P50,000.00 "shall be paid by the BUYER to the different suppliers of the SELLER." The very same day that the aforementioned contract of sale was executed, the parties thereto immediately applied with the PSC for its approval, with a prayer for the issuance of a provisional authority in favor of the vendee Corporation to operate the service therein involved.1 On May 19, 1959, the PSC granted the provisional permit prayed for, upon the condition that "it may be modified or revoked by the Commission at any time, shall be subject to whatever action that may be taken on the basic application and shall be valid only during the pendency of said application." Before the PSC could take final action on said application for approval of sale, however, the Sheriff of Manila, on July 7, 1959, levied on two of the five certificates of public convenience involved therein, namely, those issued under PSC cases Nos. 59494 and 63780, pursuant to a writ of execution issued by the Court of First Instance of Pangasinan in Civil Case No. 13798, in favor of Eusebio Ferrer, plaintiff, judgment creditor, against Valentin Fernando, defendant, judgment debtor. The Sheriff made and entered the levy in the records of the PSC. On July 16, 1959, a public sale was conducted by the Sheriff of the said two certificates of public convenience. Ferrer was the highest bidder, and a certificate of sale was issued in his name. Thereafter, Ferrer sold the two certificates of public convenience to Pantranco, and jointly submitted for approval their corresponding contract of sale to the PSC.2 Pantranco therein prayed that it be authorized provisionally to operate the service involved in the said two certificates. The applications for approval of sale, filed before the PSC, by Fernando and the Corporation, Case No. 124057, and that of Ferrer and Pantranco, Case No. 126278, were scheduled for a joint hearing. In the meantime, to wit, on July 22, 1959, the PSC issued an order disposing that during the pendency of the cases and before a final resolution on the aforesaid applications, the Pantranco shall be the one to operate provisionally the service under the two certificates embraced in the contract between Ferrer and Pantranco. The Corporation took issue with this particular ruling of the PSC and elevated the matter to the Supreme Court,3 which decreed, after deliberation, that until the issue on the ownership of the disputed certificates shall have been finally settled by the proper court, the Corporation should be the one to operate the lines provisionally. On November 4, 1959, the Corporation filed in the Court of First Instance of Manila, a complaint for the annulment of the sheriff's sale of the aforesaid two certificates of public convenience (PSC Cases Nos. 59494 and 63780) in favor of the defendant Ferrer, and the subsequent sale thereof by the latter to Pantranco, against Ferrer, Pantranco and the PSC.

17

The plaintiff Corporation prayed therein that all the orders of the PSC relative to the parties' dispute over the said certificates be annulled. In separate answers, the defendants Ferrer and Pantranco averred that the plaintiff Corporation had no valid title to the certificates in question because the contract pursuant to which it acquired them from Fernando was subject to a suspensive condition the approval of the PSC which has not yet been fulfilled, and, therefore, the Sheriff's levy and the consequent sale at public auction of the certificates referred to, as well as the sale of the same by Ferrer to Pantranco, were valid and regular, and vested unto Pantranco, a superior right thereto. Pantranco, on its part, filed a third-party complaint against Jose M. Villarama, alleging that Villarama and the Corporation, are one and the same; that Villarama and/or the Corporation was disqualified from operating the two certificates in question by virtue of the aforementioned agreement between said Villarama and Pantranco, which stipulated that Villarama "shall not for a period of 10 years from the date of this sale, apply for any TPU service identical or competing with the buyer." Upon the joinder of the issues in both the complaint and third-party complaint, the case was tried, and thereafter decision was rendered in the terms, as above stated. As stated at the beginning, all the parties involved have appealed from the decision. They submitted a joint record on appeal. Pantranco disputes the correctness of the decision insofar as it holds that Villa Rey Transit, Inc. (Corporation) is a distinct and separate entity from Jose M. Villarama; that the restriction clause in the contract of January 8, 1959 between Pantranco and Villarama is null and void; that the Sheriff's sale of July 16, 1959, is likewise null and void; and the failure to award damages in its favor and against Villarama. Ferrer, for his part, challenges the decision insofar as it holds that the sheriff's sale is null and void; and the sale of the two certificates in question by Valentin Fernando to the Corporation, is valid. He also assails the award of P5,000.00 as attorney's fees in favor of the Corporation, and the failure to award moral damages to him as prayed for in his counterclaim. The Corporation, on the other hand, prays for a review of that portion of the decision awarding only P5,000.00 as attorney's fees, and insisting that it is entitled to an award of P100,000.00 by way of exemplary damages. After a careful study of the facts obtaining in the case, the vital issues to be resolved are: (1) Does the stipulation between Villarama and Pantranco, as contained in the deed of sale, that the former "SHALL NOT FOR A PERIOD OF 10 YEARS FROM THE DATE OF THIS SALE, APPLY FOR ANY TPU SERVICE IDENTICAL OR COMPETING WITH THE BUYER," apply to new lines only or does it include existing lines?; (2) Assuming that said stipulation covers all kinds of lines, is such stipulation valid and enforceable?; (3) In the affirmative, that said stipulation is valid, did it bind the Corporation? For convenience, We propose to discuss the foregoing issues by starting with the last proposition. The evidence has disclosed that Villarama, albeit was not an incorporator or stockholder of the Corporation, alleging that he did not become such, because he did not have sufficient funds to invest, his wife, however, was an incorporator with the least subscribed number

of shares, and was elected treasurer of the Corporation. The finances of the Corporation which, under all concepts in the law, are supposed to be under the control and administration of the treasurer keeping them as trust fund for the Corporation, were, nonetheless, manipulated and disbursed as if they were the private funds of Villarama, in such a way and extent that Villarama appeared to be the actual owner-treasurer of the business without regard to the rights of the stockholders. The following testimony of Villarama,4 together with the other evidence on record, attests to that effect: Q. Doctor, I want to go back again to the incorporation of the Villa Rey Transit, Inc. You heard the testimony presented here by the bank regarding the initial opening deposit of ONE HUNDRED FIVE THOUSAND PESOS, of which amount Eighty-Five Thousand Pesos was a check drawn by yourself personally. In the direct examination you told the Court that the reason you drew a check for Eighty-Five Thousand Pesos was because you and your wife, or your wife, had spent the money of the stockholders given to her for incorporation. Will you please tell the Honorable Court if you knew at the time your wife was spending the money to pay debts, you personally knew she was spending the money of the incorporators? A. You know my money and my wife's money are one. We never talk about those things.

Q. Doctor, your answer then is that since your money and your wife's money are one money and you did not know when your wife was paying debts with the incorporator's money? A. Because sometimes she uses my money, and sometimes the money given to her she gives to me and I deposit the money. Q. Actually, aside from your wife, you were also the custodian of some of the incorporators here, in the beginning? A. Not necessarily, they give to my wife and when my wife hands to me I did not know it belonged to the incorporators. Q. It supposes then your wife gives you some of the money received by her in her capacity as treasurer of the corporation? A. Q. A. Q. A. Maybe. What did you do with the money, deposit in a regular account? Deposit in my account. Of all the money given to your wife, she did not receive any check? I do not remember.

Q. Is it usual for you, Doctor, to be given Fifty Thousand Pesos without even asking what is this? xxx xxx xxx

JUDGE: Reform the question.

18

Q. The subscription of your brother-in-law, Mr. Reyes, is Fifty-Two Thousand Pesos, did your wife give you Fifty-two Thousand Pesos? A. I have testified before that sometimes my wife gives me money and I do not know exactly for what. The evidence further shows that the initial cash capitalization of the corporation of P105,000.00 was mostly financed by Villarama. Of the P105,000.00 deposited in the First National City Bank of New York, representing the initial paid-up capital of the Corporation, P85,000.00 was covered by Villarama's personal check. The deposit slip for the said amount of P105,000.00 was admitted in evidence as Exh. 23, which shows on its face that P20,000.00 was paid in cash and P85,000.00 thereof was covered by Check No. F-50271 of the First National City Bank of New York. The testimonies of Alfonso Sancho5 and Joaquin Amansec,6 both employees of said bank, have proved that the drawer of the check was Jose Villarama himself. Another witness, Celso Rivera, accountant of the Corporation, testified that while in the books of the corporation there appears an entry that the treasurer received P95,000.00 as second installment of the paid-in subscriptions, and, subsequently, also P100,000.00 as the first installment of the offer for second subscriptions worth P200,000.00 from the original subscribers, yet Villarama directed him (Rivera) to make vouchers liquidating the sums.7 Thus, it was made to appear that the P95,000.00 was delivered to Villarama in payment for equipment purchased from him, and the P100,000.00 was loaned as advances to the stockholders. The said accountant, however, testified that he was not aware of any amount of money that had actually passed hands among the parties involved,8 and actually the only money of the corporation was the P105,000.00 covered by the deposit slip Exh. 23, of which as mentioned above, P85,000.00 was paid by Villarama's personal check. Further, the evidence shows that when the Corporation was in its initial months of operation, Villarama purchased and paid with his personal checks Ford trucks for the Corporation. Exhibits 20 and 21 disclose that the said purchases were paid by Philippine Bank of Commerce Checks Nos. 992618-B and 993621-B, respectively. These checks have been sufficiently established by Fausto Abad, Assistant Accountant of Manila Trading & Supply Co., from which the trucks were purchased9 and Aristedes Solano, an employee of the Philippine Bank of Commerce,10 as having been drawn by Villarama. Exhibits 6 to 19 and Exh. 22, which are photostatic copies of ledger entries and vouchers showing that Villarama had co-mingled his personal funds and transactions with those made in the name of the Corporation, are very illuminating evidence. Villarama has assailed the admissibility of these exhibits, contending that no evidentiary value whatsoever should be given to them since "they were merely photostatic copies of the originals, the best evidence being the originals themselves." According to him, at the time Pantranco offered the said exhibits, it was the most likely possessor of the originals thereof because they were stolen from the files of the Corporation and only Pantranco was able to produce the alleged photostat copies thereof. Section 5 of Rule 130 of the Rules of Court provides for the requisites for the admissibility of secondary evidence when the original is in the custody of the adverse party, thus: (1) opponent's possession of the original; (2) reasonable notice to opponent to produce the original; (3) satisfactory proof of its existence; and (4) failure or refusal of opponent to produce the original in court.11 Villarama has practically admitted the second and fourth requisites.12 As to the third, he admitted their previous existence in the files of the Corporation and also that he had seen some of them.13 Regarding the first element, Villarama's theory is that since even at the time of the issuance of the subpoena duces

tecum, the originals were already missing, therefore, the Corporation was no longer in possession of the same. However, it is not necessary for a party seeking to introduce secondary evidence to show that the original is in the actual possession of his adversary. It is enough that the circumstances are such as to indicate that the writing is in his possession or under his control. Neither is it required that the party entitled to the custody of the instrument should, on being notified to produce it, admit having it in his possession.14 Hence, secondary evidence is admissible where he denies having it in his possession. The party calling for such evidence may introduce a copy thereof as in the case of loss. For, among the exceptions to the best evidence rule is "when the original has been lost, destroyed, or cannot be produced in court."15 The originals of the vouchers in question must be deemed to have been lost, as even the Corporation admits such loss. Viewed upon this light, there can be no doubt as to the admissibility in evidence of Exhibits 6 to 19 and 22. Taking account of the foregoing evidence, together with Celso Rivera's testimony,16 it would appear that: Villarama supplied the organization expenses and the assets of the Corporation, such as trucks and equipment;17 there was no actual payment by the original subscribers of the amounts of P95,000.00 and P100,000.00 as appearing in the books;18 Villarama made use of the money of the Corporation and deposited them to his private accounts;19 and the Corporation paid his personal accounts.20 Villarama himself admitted that he mingled the corporate funds with his own money.21 He also admitted that gasoline purchases of the Corporation were made in his name22 because "he had existing account with Stanvac which was properly secured and he wanted the Corporation to benefit from the rebates that he received."23 The foregoing circumstances are strong persuasive evidence showing that Villarama has been too much involved in the affairs of the Corporation to altogether negative the claim that he was only a part-time general manager. They show beyond doubt that the Corporation is his alter ego. It is significant that not a single one of the acts enumerated above as proof of Villarama's oneness with the Corporation has been denied by him. On the contrary, he has admitted them with offered excuses. Villarama has admitted, for instance, having paid P85,000.00 of the initial capital of the Corporation with the lame excuse that "his wife had requested him to reimburse the amount entrusted to her by the incorporators and which she had used to pay the obligations of Dr. Villarama (her husband) incurred while he was still the owner of Villa Rey Transit, a single proprietorship." But with his admission that he had received P350,000.00 from Pantranco for the sale of the two certificates and one unit,24 it becomes difficult to accept Villarama's explanation that he and his wife, after consultation,25 spent the money of their relatives (the stockholders) when they were supposed to have their own money. Even if Pantranco paid the P350,000.00 in check to him, as claimed, it could have been easy for Villarama to have deposited said check in his account and issued his own check to pay his obligations. And there is no evidence adduced that the said amount of P350,000.00 was all spent or was insufficient to settle his prior obligations in his business, and in the light of the stipulation in the deed of sale between Villarama and Pantranco that P50,000.00 of the selling price was earmarked for the payments of accounts due to his creditors, the excuse appears unbelievable. On his having paid for purchases by the Corporation of trucks from the Manila Trading & Supply Co. with his personal checks, his reason was that he was only sharing with the Corporation his credit with some companies. And his main reason for mingling his funds

19

with that of the Corporation and for the latter's paying his private bills is that it would be more convenient that he kept the money to be used in paying the registration fees on time, and since he had loaned money to the Corporation, this would be set off by the latter's paying his bills. Villarama admitted, however, that the corporate funds in his possession were not only for registration fees but for other important obligations which were not specified.26 Indeed, while Villarama was not the Treasurer of the Corporation but was, allegedly, only a part-time manager,27 he admitted not only having held the corporate money but that he advanced and lent funds for the Corporation, and yet there was no Board Resolution allowing it.28 Villarama's explanation on the matter of his involvement with the corporate affairs of the Corporation only renders more credible Pantranco's claim that his control over the corporation, especially in the management and disposition of its funds, was so extensive and intimate that it is impossible to segregate and identify which money belonged to whom. The interference of Villarama in the complex affairs of the corporation, and particularly its finances, are much too inconsistent with the ends and purposes of the Corporation law, which, precisely, seeks to separate personal responsibilities from corporate undertakings. It is the very essence of incorporation that the acts and conduct of the corporation be carried out in its own corporate name because it has its own personality. The doctrine that a corporation is a legal entity distinct and separate from the members and stockholders who compose it is recognized and respected in all cases which are within reason and the law.29 When the fiction is urged as a means of perpetrating a fraud or an illegal act or as a vehicle for the evasion of an existing obligation, the circumvention of statutes, the achievement or perfection of a monopoly or generally the perpetration of knavery or crime,30 the veil with which the law covers and isolates the corporation from the members or stockholders who compose it will be lifted to allow for its consideration merely as an aggregation of individuals. Upon the foregoing considerations, We are of the opinion, and so hold, that the preponderance of evidence have shown that the Villa Rey Transit, Inc. is an alter ego of Jose M. Villarama, and that the restrictive clause in the contract entered into by the latter and Pantranco is also enforceable and binding against the said Corporation. For the rule is that a seller or promisor may not make use of a corporate entity as a means of evading the obligation of his covenant.31 Where the Corporation is substantially the alter ego of the covenantor to the restrictive agreement, it can be enjoined from competing with the covenantee.32 The Corporation contends that even on the supposition that Villa Rey Transit, Inc. and Villarama are one and the same, the restrictive clause in the contract between Villarama and Pantranco does not include the purchase of existing lines but it only applies to application for the new lines. The clause in dispute reads thus: (4) The SELLER shall not, for a period of ten (10) years from the date of this sale apply for any TPU service identical or competing with the BUYER. (Emphasis supplied) As We read the disputed clause, it is evident from the context thereof that the intention of the parties was to eliminate the seller as a competitor of the buyer for ten years along the lines of operation covered by the certificates of public convenience subject of their transaction. The word "apply" as broadly used has for frame of reference, a service by the seller on lines or routes that would compete with the buyer along the routes acquired by

the latter. In this jurisdiction, prior authorization is needed before anyone can operate a TPU service,33whether the service consists in a new line or an old one acquired from a previous operator. The clear intention of the parties was to prevent the seller from conducting any competitive line for 10 years since, anyway, he has bound himself not to apply for authorization to operate along such lines for the duration of such period.34 If the prohibition is to be applied only to the acquisition of new certificates of public convenience thru an application with the Public Service Commission, this would, in effect, allow the seller just the same to compete with the buyer as long as his authority to operate is only acquired thru transfer or sale from a previous operator, thus defeating the intention of the parties. For what would prevent the seller, under the circumstances, from having a representative or dummy apply in the latter's name and then later on transferring the same by sale to the seller? Since stipulations in a contract is the law between the contracting parties, Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19, New Civil Code.) We are not impressed of Villarama's contention that the re-wording of the two previous drafts of the contract of sale between Villarama and Pantranco is significant in that as it now appears, the parties intended to effect the least restriction. We are persuaded, after an examination of the supposed drafts, that the scope of the final stipulation, while not as long and prolix as those in the drafts, is just as broad and comprehensive. At most, it can be said that the re-wording was done merely for brevity and simplicity. The evident intention behind the restriction was to eliminate the sellers as a competitor, and this must be, considering such factors as the good will35 that the seller had already gained from the riding public and his adeptness and proficiency in the trade. On this matter, Corbin, an authority on Contracts has this to say.36 When one buys the business of another as a going concern, he usually wishes to keep it going; he wishes to get the location, the building, the stock in trade, and the customers. He wishes to step into the seller's shoes and to enjoy the same business relations with other men. He is willing to pay much more if he can get the "good will" of the business, meaning by this the good will of the customers, that they may continue to tread the old footpath to his door and maintain with him the business relations enjoyed by the seller. ... In order to be well assured of this, he obtains and pays for the seller's promise not to reopen business in competition with the business sold. As to whether or not such a stipulation in restraint of trade is valid, our jurisprudence on the matter37says: The law concerning contracts which tend to restrain business or trade has gone through a long series of changes from time to time with the changing condition of trade and commerce. With trifling exceptions, said changes have been a continuous development of a general rule. The early cases show plainly a disposition to avoid and annul all contract which prohibited or restrained any one from using a lawful trade "at any time or at any place," as being against the benefit of the state. Later, however, the rule became well established that if the restraint was limited to "a certain time" and within "a certain place," such contracts were valid and not "against the benefit of the state." Later cases, and we think the rule is now well established, have held that a contract in restraint of trade is valid providing there is a limitation upon either time or place. A contract, however, which

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restrains a man from entering into business or trade without either a limitation as to time or place, will be held invalid. The public welfare of course must always be considered and if it be not involved and the restraint upon one party is not greater than protection to the other requires, contracts like the one we are discussing will be sustained. The general tendency, we believe, of modern authority, is to make the test whether the restraint is reasonably necessary for the protection of the contracting parties. If the contract is reasonably necessary to protect the interest of the parties, it will be upheld. (Emphasis supplied.) Analyzing the characteristics of the questioned stipulation, We find that although it is in the nature of an agreement suppressing competition, it is, however, merely ancillary or incidental to the main agreement which is that of sale. The suppression or restraint is only partial or limited: first, in scope, it refers only to application for TPU by the seller in competition with the lines sold to the buyer; second, in duration, it is only for ten (10) years; and third, with respect to situs or territory, the restraint is only along the lines covered by the certificates sold. In view of these limitations, coupled with the consideration of P350,000.00 for just two certificates of public convenience, and considering, furthermore, that the disputed stipulation is only incidental to a main agreement, the same is reasonable and it is not harmful nor obnoxious to public service.38 It does not appear that the ultimate result of the clause or stipulation would be to leave solely to Pantranco the right to operate along the lines in question, thereby establishing monopoly or predominance approximating thereto. We believe the main purpose of the restraint was to protect for a limited time the business of the buyer. Indeed, the evils of monopoly are farfetched here. There can be no danger of price controls or deterioration of the service because of the close supervision of the Public Service Commission.39 This Court had stated long ago,40 that "when one devotes his property to a use in which the public has an interest, he virtually grants to the public an interest in that use and submits it to such public use under reasonable rules and regulations to be fixed by the Public Utility Commission." Regarding that aspect of the clause that it is merely ancillary or incidental to a lawful agreement, the underlying reason sustaining its validity is well explained in 36 Am. Jur. 537-539, to wit: ... Numerous authorities hold that a covenant which is incidental to the sale and transfer of a trade or business, and which purports to bind the seller not to engage in the same business in competition with the purchaser, is lawful and enforceable. While such covenants are designed to prevent competition on the part of the seller, it is ordinarily neither their purpose nor effect to stifle competition generally in the locality, nor to prevent it at all in a way or to an extent injurious to the public. The business in the hands of the purchaser is carried on just as it was in the hands of the seller; the former merely takes the place of the latter; the commodities of the trade are as open to the public as they were before; the same competition exists as existed before; there is the same employment furnished to others after as before; the profits of the business go as they did before to swell the sum of public wealth; the public has the same opportunities of purchasing, if it is a mercantile business; and production is not lessened if it is a manufacturing plant. The reliance by the lower court on tile case of Red Line Transportation Co. v. Bachrach41 and finding that the stipulation is illegal and void seems misplaced. In the said Red Line case, the agreement therein sought to be enforced was virtually a division of territory between two operators, each company imposing upon itself an obligation not to operate in any territory covered by the routes of the other. Restraints of this type, among common

carriers have always been covered by the general rule invalidating agreements in restraint of trade. 42 Neither are the other cases relied upon by the plaintiff-appellee applicable to the instant case. In Pampanga Bus Co., Inc. v. Enriquez,43the undertaking of the applicant therein not to apply for the lifting of restrictions imposed on his certificates of public convenience was not an ancillary or incidental agreement. The restraint was the principal objective. On the other hand, in Red Line Transportation Co., Inc. v. Gonzaga,44 the restraint there in question not to ask for extension of the line, or trips, or increase of equipment was not an agreement between the parties but a condition imposed in the certificate of public convenience itself. Upon the foregoing considerations, Our conclusion is that the stipulation prohibiting Villarama for a period of 10 years to "apply" for TPU service along the lines covered by the certificates of public convenience sold by him to Pantranco is valid and reasonable. Having arrived at this conclusion, and considering that the preponderance of the evidence have shown that Villa Rey Transit, Inc. is itself the alter ego of Villarama, We hold, as prayed for in Pantranco's third party complaint, that the said Corporation should, until the expiration of the 1-year period abovementioned, be enjoined from operating the line subject of the prohibition. To avoid any misunderstanding, it is here to be emphasized that the 10-year prohibition upon Villarama is not against his application for, or purchase of, certificates of public convenience, but merely the operation of TPU along the lines covered by the certificates sold by him to Pantranco. Consequently, the sale between Fernando and the Corporation is valid, such that the rightful ownership of the disputed certificates still belongs to the plaintiff being the prior purchaser in good faith and for value thereof. In view of the ancient rule of caveat emptor prevailing in this jurisdiction, what was acquired by Ferrer in the sheriff's sale was only the right which Fernando, judgment debtor, had in the certificates of public convenience on the day of the sale.45 Accordingly, by the "Notice of Levy Upon Personalty" the Commissioner of Public Service was notified that "by virtue of an Order of Execution issued by the Court of First Instance of Pangasinan, the rights, interests, or participation which the defendant, VALENTIN A. FERNANDO in the above entitled case may have in the following realty/personalty is attached or levied upon, to wit: The rights, interests and participation on the Certificates of Public Convenience issued to Valentin A. Fernando, in Cases Nos. 59494, etc. ... Lines Manila to Lingayen, Dagupan, etc. vice versa." Such notice of levy only shows that Ferrer, the vendee at auction of said certificates, merely stepped into the shoes of the judgment debtor. Of the same principle is the provision of Article 1544 of the Civil Code, that "If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property." There is no merit in Pantranco and Ferrer's theory that the sale of the certificates of public convenience in question, between the Corporation and Fernando, was not consummated, it being only a conditional sale subject to the suspensive condition of its approval by the Public Service Commission. While section 20(g) of the Public Service Act provides that "subject to established limitation and exceptions and saving provisions to the contrary, it shall be unlawful for any public service or for the owner, lessee or operator thereof, without the approval and authorization of the Commission previously had ... to sell, alienate, mortgage, encumber or lease its property, franchise, certificates, privileges, or rights or any part thereof, ...," the same section also provides:

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... Provided, however, That nothing herein contained shall be construed to prevent the transaction from being negotiated or completed before its approval or to prevent the sale, alienation, or lease by any public service of any of its property in the ordinary course of its business. It is clear, therefore, that the requisite approval of the PSC is not a condition precedent for the validity and consummation of the sale. Anent the question of damages allegedly suffered by the parties, each of the appellants has its or his own version to allege. Villa Rey Transit, Inc. claims that by virtue of the "tortious acts" of defendants (Pantranco and Ferrer) in acquiring the certificates of public convenience in question, despite constructive and actual knowledge on their part of a prior sale executed by Fernando in favor of the said corporation, which necessitated the latter to file the action to annul the sheriff's sale to Ferrer and the subsequent transfer to Pantranco, it is entitled to collect actual and compensatory damages, and attorney's fees in the amount of P25,000.00. The evidence on record, however, does not clearly show that said defendants acted in bad faith in their acquisition of the certificates in question. They believed that because the bill of sale has yet to be approved by the Public Service Commission, the transaction was not a consummated sale, and, therefore, the title to or ownership of the certificates was still with the seller. The award by the lower court of attorney's fees of P5,000.00 in favor of Villa Rey Transit, Inc. is, therefore, without basis and should be set aside. Eusebio Ferrer's charge that by reason of the filing of the action to annul the sheriff's sale, he had suffered and should be awarded moral, exemplary damages and attorney's fees, cannot be entertained, in view of the conclusion herein reached that the sale by Fernando to the Corporation was valid. Pantranco, on the other hand, justifies its claim for damages with the allegation that when it purchased ViIlarama's business for P350,000.00, it intended to build up the traffic along the lines covered by the certificates but it was rot afforded an opportunity to do so since barely three months had elapsed when the contract was violated by Villarama operating along the same lines in the name of Villa Rey Transit, Inc. It is further claimed by Pantranco that the underhanded manner in which Villarama violated the contract is pertinent in establishing punitive or moral damages. Its contention as to the proper measure of damages is that it should be the purchase price of P350,000.00 that it paid to Villarama. While We are fully in accord with Pantranco's claim of entitlement to damages it suffered as a result of Villarama's breach of his contract with it, the record does not sufficiently supply the necessary evidentiary materials upon which to base the award and there is need for further proceedings in the lower court to ascertain the proper amount. PREMISES CONSIDERED, the judgment appealed from is hereby modified as follows: 1. The sale of the two certificates of public convenience in question by Valentin Fernando to Villa Rey Transit, Inc. is declared preferred over that made by the Sheriff at public auction of the aforesaid certificate of public convenience in favor of Eusebio Ferrer; 2. Reversed, insofar as it dismisses the third-party complaint filed by Pangasinan Transportation Co. against Jose M. Villarama, holding that Villa Rey Transit, Inc. is an entity distinct and separate from the personality of Jose M. Villarama, and insofar as it awards the sum of P5,000.00 as attorney's fees in favor of Villa Rey Transit, Inc.;

3. The case is remanded to the trial court for the reception of evidence in consonance with the above findings as regards the amount of damages suffered by Pantranco; and 4. On equitable considerations, without costs. So ordered.

SPOUSES PATRICIO and MYRNA BERNALES vs. HEIRS OF JULIAN SAMBAAN G.R.No. 163271, January 15, 2010 - digest Facts: Spouses Julian and Guillerma Sambaan were the registered owner of a property located in Bulua, Cagayan de oro City. The respondents and the petitioner Myrna Bernales are the children of Julian and Guillerma. Myrna, who is the eldest of the siblings, is the present owner and possessor of the property in question. Julian died in an ambush in 1975. Before he died, he requested that the property in question be redeemed from Myrna and her husband Patricio Bernales. Thus, in 1982 one of Julians siblings offered to redeem the property but the petitioners refused because they were allegedly using the property as tethering place for their cattle. In January 1991, respondents received an information that the subject property was already transferred to Myrna Bernales. The Deed of Absolute Sale dated December 7, 1970 bore the forged signatures of their parents, Julian and Guillerma. On April 1993, the respondents, together with their mother Guillerma, filed a complaint for Annulment of Deed of Absolute Sale and cancellation of TCT No. T-14204 alleging that their parents signatures were forged. The trial court rendered a decision on August 2, 2001 cancelling the TCT and ordering another title to be issued in the name of the late Julian Sambaan. Petitioners went to the CA and appealed the decision. The CA affirmed the decision of the lower court. A motion for reconsideration of the decision was, likewise, denied in 2004. Hence, this petition for certiorari. Issue: Whether or not the Deed of Absolute Sale is authentic as to prove the ownership of the petitioners over the subject property. Held: It is a question of fact rather than of law. Well-settled is the rule that the Supreme Court is not a trier of facts. Factual findings of the lower courts are entitled to great weight and respect on appeal, and in fact accorded finality when supported by substantial evidence on the record. Substantial evidence is more than a mere scintilla of evidence. It is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise. But to erase any doubt on the correctness of the assailed ruling, we have carefully perused the records and, nonetheless, arrived at the same conclusion. We find that there is substantial evidence on record to support the Court of Appeals and trial courts conclusion that the signatures of Julian and Guillerma in the Deed of Absolute Sale were forged. Conclusions and findings of fact by the trial court are entitled to great weight on appeal and should not be disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence, as well as to observe the demeanor of the witnesses while testifying in the case. The fact that the CA adopted the findings of fact of the trial court makes the same binding upon this court.

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Thus, we hold that with the presentation of the forged deed, even if accompanied by the owners duplicate certificate of title, the registered owner did not thereby lose his title, and neither does the assignee in the forged deed acquire any right or title to the said property. G.R. No. 185906 June 29, 2010 LOURDES AZARCON v PEOPLE On petition for review are the Court of Appeals September 30, 2008 Decision2 and January 6, 2009 Resolution3 affirming with modification the September 15, 2006 Decision of Branch 224 of the Regional Trial Court (RTC) of Quezon City in Criminal Case Nos. Q-38021202 to 021288 which upheld the November 15, 2005 Decision of Branch 38 of the Metropolitan Trial Court (MeTC) of Quezon City convicting Lourdes Azarcon (petitioner) of eighty-four (84) counts of violation of Batas Pambansa (B.P.) Bilang 22,4 otherwise known as the Bouncing Checks Law. Since 1990, petitioner, a businesswoman, had been borrowing money from Marcosa Gonzales (Marcosa) who was engaged in informal money-lending. Between the months of August to December 1992, as was usual in the normal course of their transactions, petitioner issued several Premiere Bank checks payable to Marcosa, dated at ten-day intervals, in exchange for cash received. Due to business reverses suffered by petitioner, however, the checks were, on maturity, dishonored for the reason "Account Closed." Marcosa, through counsel, thus demanded, by letter5 of December 1, 1993 to petitioner, the settlement of her P749,000.00 obligation for which she issued "several Premium Bank checks, with [the] assurance that all will be honored" but that they were all dishonored due to "Account Closed." Replying, petitioner, by letter6 of December 17, 1993, sought a "reconciliation of her accountability since [she] has also some receipt payments covering the checks she has issued." She, in the same letter, expressed willingness to settle her outstanding account. Petitioners husband, Manuel Azarcon (Manuel), later paid on February 15, 1994 the amount of P200,000.00 representing "initial payment on the account of [petitioner]" with the undertaking to settle the balance within one year via monthly installments.7 More than two and a half years later, as petitioner had not settled her outstanding obligation, Marcosa filed on September 4, 1996 a complaint8 for violation of B.P. 22 before the Quezon City Prosecutors Office against her involving 120 dishonored checks amounting to P746,250.00, 87 of which were made the basis of 87 Informations filed against her. Except for the numbers, dates and amounts (ranging from P1,500.00 to P6,250.00) of the checks9 issued by petitioner subject of the 87 Informations filed against her, each Information uniformly charged as follows: That on or about the _______________ in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and feloniously make or draw and issue to MARCOSA GONZALES to apply on account or for value PREMIERE BANK check no. 000367 dated ______________ payable to the order of MARCOSA GONZALES in the amount of _________________ Philippine Currency, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment which check when presented for payment was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said MARCOSA GONZALES the

amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW. Petitioner maintained that her obligations under the various checks had been released, superseded and novated by her husbands assumption of her liabilities.10 Brushing this position aside, the trial court convicted petitioner. It, however, deducted from the total amount of the face value of the 87 checks the sum of P11,000.00 representing the face value of three checks11 which the prosecution failed to offer in evidence, and another sum of P20,000.00 claimed to have been paid to Marcosa which she failed to dispute. Thus, the trial court, by Decision12 of November 15, 2005, disposed: WHEREFORE, premises considered, this Court finds accused LOURDES AZARCON guilty, beyond reasonable doubt, of eighty-four (84) counts of violation of the Batas Pambansa Blg. 22 in Criminal Case Nos. 21202 to 21247, 21249 to 21261, 21263 to 21277 and 21279 to 21288, and hereby sentences her to suffer a penalty of SIX (6) MONTHS IMPRISONMENT for each count of violation; to restitute to the private complainant the amount of TWO HUNDRED NINETY FIVE THOUSAND TWO HUNDRED FIFTY PESOS (P295,250.00) representing the value of the checks less the payment of P20,000.00 plus 12% per annum interest from the date of final demand until said amount is fully paid. The accused is also ordered to pay the complainant the reasonable sum of P20,000.00 as attorneys fees. Further, pursuant to Sec. 34, Rule 132 of the Revised Rules on Criminal Procedure which provides that the court shall consider no evidence which has not been formally offered, Criminal Cases Nos. 21248, 21262 and 21278 are hereby DISMISSED, for insufficiency of evidence. SO ORDERED. On appeal, the Quezon City RTC, Br. 22413 affirmed the trial courts judgment by Decision14 of September 15, 2006. At the Court of Appeals before which petitioner appealed, she questioned 1) the lack of prior demand for the settlement of the checks after their dishonor, the December 1, 1993 demand letter15 for the payment of her outstanding balance having failed to mention or enumerate any particular check involved therein, and (2) the lower courts failure to appreciate that novation had taken place with respect to her civil liability.16 By the challenged decision, the appellate court affirmed the appellants conv iction but found the imposition of the penalty of imprisonment (six months for each of the 84 checks) too harsh, citing SC Administrative Circular 12-200017 and Lim v. People.18 It thus modified the RTC decision, disposing as follows: WHEREFORE, premises considered, the assailed Judgment of the Regional Trial Court of Quezon City is hereby modified, to wit: This Court finds Petitioner Lourdes Azarcon guilty of having violated the provisions of Batas Pambansa Bilang 22 and hereby sentences her to pay a fine double the amount stated on each of the 84 checks, to suffer subsidiary imprisonment in case of non-payment or insolvency and to restitute to the Private Respondent the amount of TWO HUNDRED NINETY FIVE THOUSAND TWO HUNDRED FIFTY PESOS (P295,250.00) representing the value of the checks less the payment of P20,000.00, plus 12% per annum interest from the date of final demand until said amount

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is fully paid. The accused is also ordered to pay the complainant the reasonable sum of P20,000.00 as attorneys fees. SO ORDERED. (emphasis supplied; underscoring in the original) Reconsideration having been denied by Resolution of January 6, 2009, petitioner echoes before this Court substantially the same issues proffered before the appellate court. Petitioners conviction stands. Liability for violation of B.P. 22 attaches when the prosecution establishes proof beyond reasonable doubt of the existence of the following elements: 1. The accused makes, draws or issues any check to apply to account or for value; 2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment; and 3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.19 The evidence clearly demonstrates the presence of all three elements. It is not the function of this Court to undertake a review of the factual findings of the trial court, which were sustained by the RTC and the Court of Appeals. Petitioner argues, however, that acquittal is in order as the second element of the crime is wanting, citing lack of knowledge of the insufficiency of her credit due to Marcosas failure to specify or enumerate the dishonored checks in her December 1, 1993 demand letter. Petitioners argument fails. What constitutes proof of knowledge of insufficiency of funds, Dico v. Court of Appeals20 enlightens: xxxx This knowledge of insufficiency of funds or credit at the time of the issuance of the check . . . involves a state of mind of the person making, drawing or issuing the check which is difficult to prove. [Thus] Section 2 of B.P. Blg. 22 creates a prima facie presumption of such knowledge. Said section reads: SEC. 2. Evidence of knowledge of insufficient funds. The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. x x x In other words, the presumption is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangements for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice

of nonpayment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period. A notice of dishonor received by the maker or drawer of the check is thus indispensable before a conviction can ensue. The notice of dishonor may be sent by the offended party or the drawee bank. The notice must be in writing. A mere oral notice to pay a dishonored check will not suffice. The lack of a written notice is fatal for the prosecution. The requirement of notice, its sending to, and its actual receipt by, the drawer or maker of the check gives the latter the option to prevent criminal prosecution if he pays the holder of the check the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that the check has not been paid. (emphasis and underscoring supplied) All that the Bouncing Checks Law thus requires is that the accused must be notified in writing of the fact of dishonor.211avvphil Petitioner admittedly received the December 1, 1993 demand letter of Marcosa. In fact, in her reply letter of December 17, 1993, petitioner sought a reconciliation of accounts and expressed willingness to settle - an indication of her awareness of what checks Marcosa was referring to in the December 1, 1993 letter. As for petitioners assertion that novation of her civil liability occurred, it is likewise unavailing. Iloilo Traders Finance, Inc. v. Heirs of Oscar Soriano, Jr.22 on novation teaches: Novation may either be extinctive or modificatory, much being dependent on the nature of the change and the intention of the parties. Extinctive novation is never presumed; there must be an express intention to novate; in cases where it is implied, the acts of the parties must clearly demonstrate their intent to dissolve the old obligation as the moving consideration for the emergence of the new one. Implied novation necessitates that the incompatibility between the old and new obligation be total on every point such that the old obligation is completely superseded by the new one. The test of incompatibility is whether they can stand together, each one having an independent existence; if they cannot and are irreconciliable, the subsequent obligation would also extinguish the first. An extinctive novation would thus have the twin effects of, first, extinguishing an existing obligation and, second, creating a new one in its stead. This kind of novation presupposes a confluence of four essential requisites: (1) a previous valid obligation; (2) an agreement of all parties concerned to a new contract; (3) the extinguishment of the old obligation; and (4) the birth of a valid new obligation. Novation is merely modificatory where the change brought about by any subsequent agreement is merely incidental to the main obligation (e.g., a change in interest rates or an extension of time to pay); in this instance, the new agreement will not have the effect of extinguishing the first but would merely supplement it or supplant some but not all of its provisions. (emphasis and underscoring supplied) The novation which petitioner suggests as having taken place, whereby Manuel was supposed to assume her obligations as debtor, is neither express nor implied. There is no showing of Marcosa explicitly agreeing to such a substitution, nor of any act of her from which an inference may be drawn that she had agreed to absolve petitioner from her financial obligations and to instead hold Manuel fully accountable.

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It bears pointing out that the February 15, 1994 receipt23 acknowledging payment of P200,000, apparently that given by Manuel, reads: February 15, 1994 Received the sum of TWO HUNDRED THOUSAND PESOS only (P200,000.00) covered by two separate checks BPI Check No. 390971 dated February 15, 1994 and BPI Check No. 390970 dated March 15, 1994 representing initial payment on the account of Mrs. Lourdes N. Azarcon with Mrs. Marcosa Gonzales. The balance of Mrs. Azarcons account shall be payable in one year through monthly payments until her indebtedness is fully settled. This is without prejudice to whatever legal action Mrs. Marcosa Gonzales may undertake in case of failure of the spouses Manuel and Lourdes Azarcon to settle in full their obligation, as provided above. x x x x (underscoring supplied) Finally, practically all the other receipts24 thereafter issued by Marcosa acknowledging installment payments invariably disclose that they were either made by petitioner herself, or received for "the account of Mrs. Lourdes Azarcon." WHEREFORE, the petition is DENIED. SO ORDERED. G.R. No. 176389 December 14, 2010 ANTONIO LEJANO v PEOPLE Brief Background On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Paraaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre. Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.1 The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.2 The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband.

For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi appeared the strongest since he claimed that he was then across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony. But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.3 On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde.4 The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister. On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,5 hence, the present appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence6 to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case. Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process. Issues Presented

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Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidence that would prove his innocence. In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are: 1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and 2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he led the others in committing the crime. The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission. The Right to Acquittal Due to Loss of DNA Evidence Webb claims, citing Brady v. Maryland,7 that he is entitled to outright acquittal on the ground of violation of his right to due process given the States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.8 If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland9 that he cites has long be overtaken by the decision in Arizona v. Youngblood,10 where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime.

Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.11 They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. Now, to the merit of the case. Alfaros Story Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio "Dong" Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990. As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car. On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer and a wo man came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center. The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her ca rs headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived. Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the Ayala Alabang Commercial

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Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the evening ("bad trip"). Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said, "Ako ang susunod" and the others responded "Okay, okay." They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmelas house shortly before midnight. Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout ("Pasabugin kaya natin ang transformer na ito"). But Alfaro shrugged off the idea, telling Fernandez, "Malakas lang ang tama mo." When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, "O sige, dito lang kami, magbabantay lang kami." Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it ("para daw walang ilaw"). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surpr ised to hear a womans voice ask, "Sino yan?" Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, "Okay ba?" After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said: "Ikaw na nga dito, maghanap ka ng susi." She asked him what key he wanted and he replied: "Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key. Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the masters bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed. Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, "Prepare an escape. Aalis na tayo." Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not

know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame. As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area. The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the "blaming session" took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, "Bakit naman pati yung bata?" Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone. At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, "Pera lang ang katapat nyan." Biong answered, "Okay lang." Webb spoke to his companions and told them, "We dont know each other. We havent seen each otherbaka maulit yan." Alfaro and Es trada left and they drove to her fathers house.12 1. The quality of the witness Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices. According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an "asset." She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the "Martilyo gang" that killed a police officer. Because of her talent, the task force gave her "very special treatment" and she became its "darling," allowed the privilege of spending nights in one of the rooms at the NBI offices. When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus: ATTY. ONGKIKO:

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Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court? xxxx A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor. ATTY. ONGKIKO: Q. And what did you say? xxxx A. I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. xxxx Q. Atty. Sacaguing, were you able to interview this alleged witness? WITNESS SACAGUING: A. No, sir. ATTY. ONGKIKO: Q. Why not? WITNESS SACAGUING: A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify. ATTY. ONGKIKO: Q. All right, and what happened after that? WITNESS SACAGUING: A. She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong" COURT: How was that? WITNESS SACAGUING: A. "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan." xxxx

ATTY. ONGKIKO: Q. All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan?" WITNESS SACAGUING: A. I said, "hindi puwede yan, kasi hindi ka naman eye witness." ATTY. ONGKIKO: Q. And what was the reply of Ms. Alfaro? WITNESS SACAGUING: A. Hindi siya nakakibo, until she went away. (TSN, May 28, 1996, pp. 49-50, 58, 77-79) Quite significantly, Alfaro never refuted Sacaguings above testimony. 2. The suspicious details But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them. Secondly, the police had arrested some "akyat-bahay" group in Paraaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaros NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents. Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following: a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at

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that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going straight into the house. And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work.lavvphil After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying. At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case.13 Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. 3. The quality of the testimony

There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb, Lejano, Vent ura, and Alfaro entered the house. Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs companions out on the street did not figure in a planned gang-rape of Carmela. Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela. Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang -rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see. Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a

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potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparen tly stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look. Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies. 4. The supposed corroborations Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses: Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained14 and the presence of semen in Carmelas genitalia,15 indicating that she had been raped. Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the masters bedroom, the bag on the dining table, as we ll as the loud noise emanating from a television set.16 White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going. But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her. Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly "cleaned up" Vizconde residence on Webbs orders. What is more, White did not notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the

subdivision. White actually discredited Alfaros testimony abo ut the movements of the persons involved. Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,17 White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaros testimony.1avvphi1 Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker. Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required.18 But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but not in recording the visit. Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.19 On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony. Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.20 She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood. Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms.

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What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep. And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit. Lolita De Birrer was accused Biongs girlfriend around the time the Vizco nde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.21 The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier? At most, Birrers testimony only established Biongs theft of certa in items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused. Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called "Bagyo," because he was a Paraaque politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house. 5. The missing corroboration There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated! For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony.

But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a five -hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal. What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals. Webbs U.S. Alibi Among the accused, Webb presented the strongest alibi. a. The travel preparations Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money.22 Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets. Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.23 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.24 b. The two immigration checks The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808.25 Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through.26 He was listed on the United Airlines Flights Passenger Manifest.27 On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,28 the computer-generated print-out of the USINS indicating Webb's entry on March 9, 1991,29 and the US-INS Certification dated

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August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.30 c. Details of U.S. sojourn In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.31 In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in the Philippines.32 In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.33 During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler34 and working at his cousin-in-laws pest control company.35 Webb presented the companys logbook showing the tasks he performed,36 his paycheck,37 his ID, and other employment papers. On June 14, 1991 he applied for a driver's license38 and wrote three letters to his friend Jennifer Cabrera.39 On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit.40 On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.41 Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car.42 To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle43 and a car plate "LEW WEBB."44 In using the car in the U.S., Webb even received traffic citations.45 On June 30, 1991 Webb, again accompanied by his father and Aragon,46 bought a bicycle at Orange Cycle Center.47 The Center issued Webb a receipt dated June 30, 1991.48 On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.49 Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez.50 There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards.51 In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house.52 He left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992. d. The second immigration checks As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.53 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,54 certified by Agnes Tabuena55 confirmed his return trip.

When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webbs reentry.56 Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court. e. Alibi versus positive identification The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated. But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing, "I saw him do it."? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stonecast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accuseds claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye. Rather, to be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front

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door glass frames even when they were trying to slip away quietlyjust so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood. Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. f. A documented alibi To establish alibi, the accused must prove by positive, clear, and satisfactory evidence57 that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.58 The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially fi led in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions.

The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,59 the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.60 The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webbs passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.61 The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus: While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request. The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..62

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The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours. If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigration services regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the fear of the unknown that it p lanted in the lower courts minds. 7. Effect of Webbs alibi to others Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall . CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause. Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision. SO ORDERED.

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