PEOPLE OF THE PHILIPPINES vs. PRUDENCIO DOMINGUEZ and RODOLFO MACALISANG, accused-appellants.

PER CURIAM: Prudencio Dominguez and Rodolfo Macalisang, along with Roger C. Dominguez, were charged with the murders of Regional Trial Court Judge Purita A. Boligor and of her brother Luther Avancea. In their brief, accused-appellants assigned the following as errors allegedly committed by the trial court: First error the trial court gravely erred in giving credence to the prosecution's evidence, particularly the testimony of Oscar Cagod, and basing its judgment of conviction thereon. The facts as found by the trial court may be summarized in the following manner. Sometime after 8:00 o'clock in the evening of 6 February 1986, that is, on the eve of the "snap" presidential election held on 7 February 1986, appellant Prudencio Dominguez then Mayor of the Municipality of Sinacaban, Misamis Occidental and his brother Roger C. Dominguez went to visit their second cousin, Judge Purita A. Boligor. Judge Boligor, according to the defense, was promoting the candidacy of Mrs. Corazon C. Aquino, the opposition candidate in the presidential race. Mayor Dominguez was affiliated with the "Kilusan ng Bagong Lipunan" ("KBL") and was at that time working for the re-election of former President Marcos. Mayor Dominguez and Roger arrived at Judge Boligor's house in Sinacaban in an Integrated National Police ("INP") jeep driven by Felix Amis, a police officer detailed as security man of Mayor Dominguez. Rodolfo Macalisang, brother-in-law of Mayor Dominguez, emerged on the leftside of the jeep, spoke briefly with the Mayor, then stepped aside and stayed under the shadow of a citrus (calamansi) tree. The Mayor and his brother Roger proceeded towards Judge Boligor's house and entered that house. There they met with Judge Boligor and her brother Luther Avancea who was then the UNIDO Chairman in Sinacaban, Misamis Occidental. About ten (10) minutes later, Rodolfo Macalisang entered Judge Boligor's house with an M16 armalite automatic rifle and bursts of gunfire were heard. Shortly thereafter, Mayor Dominguez and Roger ran out of the house, got into the jeep which had been waiting for them and sped away. Macalisang then came out of the house and disappeared into the darkness. Judge Boligor and Luther were found inside the house, with multiple bullet wounds in vital parts of their bodies which caused their instantaneous death. The prosecution's case rested mainly on the testimony of Oscar Cagod who witnessed the above sequence of events from a store across the street. The defense, for its part, attacked the credibility and the testimony of Oscar Cagod on the following grounds: First, Cagod was not a disinterested witness, having lived in the house of Judge Boligor for eighteen (18) to nineteen (19) years and having treated the Judge like his own mother; Second, Cagod waited for four (4) months after the slaying of Judge Boligor and Luther Avancea before he executed his sworn statement;

Third, Cagod, according to the defense, executed his sworn statement only after the police authorities had arrested him and promised him immunity from prosecution. His testimony therefore came from a polluted source and should be received only with utmost caution. Fourth, Cagod had been convicted, when he was twelve (12) years old, of murder, a crime involving moral turpitude and accordingly his testimony deserved no credence. Last, the defense assailed the testimony of Cagod as being incredible in itself. So far as the record here is concerned, the killer or killers of witness Oscar Cagod remain unknown. Another prosecution witness, Diosdado Avancea brother of the two (2) deceased victims, mysteriously disappeared after his direct examination. We find the first contention of appellants to be without merit. In a long line of cases, the Court has consistently held that the relationship of a witness to a party to a case does not, by itself, impair the credibility of the witness. 2 In the instant case, assuming that Cagod had indeed treated the deceased victim Judge Boligor like his own mother, that circumstance would only add to the weight of his testimony, since he would then be most interested in seeing the real killers brought to justice rather than in falsely implicating innocent persons. In its second argument, the defense assails witness Cagod's credibility since he waited four (4) months after the slaying before executing his sworn statement. It is settled, however, that delay on the part of witnesses in informing the authorities of what they know about the occurrence of a crime will not, by itself, affect their credibility, where such delay is satisfactorily explained. 5 We consider that the delay of four (4) months before prosecution witness Cagod executed his sworn statement should not affect the credibility of his testimony. Cagod's credibility also comes under fire for the reason that it took him four months before he executed a statement revealing what he had witnessed on February 6, 1986. As the defense would have it, be should have gone straight-away to Boligor's son or to any member of the Boligor household with his story. That defense makes much of Cagod's conduct after the shooting of Boligor. Why did he remain silent when everyone wanted to know who the malefactors were? Why indeed? The defense forgets that the malefactors were not just any Tom, Dick and Harry they were, perhaps, the most powerful and influential men in the Municipality of Sinacaban. Alfeo Lucing, who had shadowed Cagod, had already given stern warning. Cagod's fears later took concrete shape when Macalisang (whose name, oddly enough, translates as "terrifying") threatened him at gun point with dire consequences if he as much as breathe a word of the incident. Was Cagod's conduct after the shooting natural, conforming to normal behavior? This Court believes that his conduct was as normal as that of Mrs. Gamotin who, upon learning of Boligor's death, is not shown to have roused up family, relatives and neighbors to succor the Boligors the

record only shows that "they cried." Cagod's conduct was as normal as that of Dionisio Burlat, Engracia Avancea and Diosdado Avancea who fled the Boligor house and remained holed up in a neighbor's house till the following morning. Cagod's conduct was as normal as that of neighbors who refused to succor the Boligor household. 12 In its fourth contention, the defense stresses that Oscar Cagod had been convicted of murder when he was twelve (12) years old and insists that, therefore, Cagod's testimony "deserves no credence and must be considered with extreme caution. 15 Initially, we note that Rule 130 of the Revised Rules of Court provides as follows: Sec. 20. Witnesses; their qualifications. Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. . . . [C]onviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. (Emphasis supplied). In Cordial v. People, 16 this Court echoed the above cited provision of law stating that even convicted criminals are not excluded from testifying in court so long as, having organs of sense, they "can perceive and perceiving can make known their perceptions to others. 17 The fact of prior criminal conviction alone does not suffice to discredit a witness; the testimony of such a witness must be assayed and scrutinized in exactly the same way the testimony of other witnesses must be examined for its relevance and credibility. None of the cases cited by the appellants militates against this proposition. 18 Oscar Cagod did not dispute his prior conviction for murder when he was only twelve (12) years old. Because of his minority, instead of being imprisoned, he was placed under the custody of Judge Boligor and her late husband, who was then Chief of Police of Sinacaban. Cagod lived with the for eighteen (18) or nineteen (19) years until Judge Boligor was slain. During that period of time, Cagod had no record of any bad or socially destructive behavior. He had in fact been of much help around the Boligors' house and had in fact worked for appellant Mayor Dominguez himself as a motorcar driver. 19 His testimony was not in favor of an accused "comrade," 20 and Oscar Cagod, moreover, was obviously not a hardened criminal. 21 Taking account of these circumstances, the Court considers that Oscar Cagod's credibility was not put in doubt by reason alone of conviction of a crime when he was twelve (12) years old. The defense expended a great deal of effort assailing the above testimony of Oscar Cagod concerning the goings-on on the terrace of the Mayor's house, the basic contention being that if the accusedappellants were indeed to plan a conspiracy, they would not have been so "stupid" as to batch it in broad day light within public view and within hearing distance of strangers, when they could have very well gone inside the Mayor's house. It does not seem necessary for

the Court to consider in detail the arguments of the defense in this connection. For the trial court did not interpret the above testimony of Oscar Cagod as showing conspiracy being hatched by the appellants and their associates while on the Mayor's terrace. For the trial court ruled that: . . . The Mayor at that precise time [need] not have been plotting a dastardly deed. He could have been merely expressing his disgust or anger with Boligor and Luther . . . nevertheless, . . . this Court is convinced that he (Cagod) was telling the facts as he had actually heard and seen them. He had no motive to testify falsely. 23 The trial court, however, did not give much weight to this ballistic report saying: . . . Cagod's testimony that he had seen Macalisang enter and exit from the house of the Boligor's moments before and after the shooting remains unshaken by Burgos's testimony, especially when taken with the defense story. 26 We agree with the trial court's appraisal that the testimony of Ballistic Technician Burgos did not have the effect of overturning the testimony of Oscar Cagod. We note that the defense had not shown that appellant Macalisang had no access to any M-16 rifle other than the eight (8) rifles of the Sinacaban Police Force from which the twenty-one (21) test bullets were said to have been fired. The negative allegation that Macalisang did not use any of the eight (8) M-16 rifles, particularly the rifle with Serial No. 162705, does not logically lead to the conclusion that Macalisang could not have used any other weapon nor does it prove that he was not the assailant. All that the testimony of Sgt. Burgos tended to show was that the murder weapon was not among the eight (8) rifles of the Sinacaban Police Force from which the test shells were said to have been fired. The applicable doctrine is that the defense of "alibi is worthless in the face of positive identification by the prosecution witnesses." In the instant case, Cagod did not, of course, see appellant Macalisang actually shooting Judge Boligor and her brother inside her house. But Cagod did see Macalisang enter the Boligor house with a firearm, hear automatic gunfire and later saw him leave the same house with a firearm and melt away in the night. We hold that in the circumstances of this case, the testimony of prosecution witness Cagod was sufficient to produce moral certainty of guilt on the part of both appellants. Clearly, here as in most criminal cases, the issues before this Court relate to the credibility of the witnesses, particularly of Oscar Cagod and of accused-appellants. It is very difficult to disagree with this finding of the trial court. We agree, further, that the aggravating circumstance of dwelling was present, but believe that the circumstance of abuse of superior strength is properly deemed absorbed by the qualifying circumstance of treachery. This modification, however, has no effect upon the penalty properly imposable upon accused-appellants. WHEREFORE, for all the foregoing, the decision of the trial court dated 10 May 1991 is hereby AFFIRMED, except that the element of abuse of superior strength is properly disregarded, and except that

the indemnity imposable is hereby, in accord with current jurisprudence, RAISED to P50,000.00 for the killing of Judge Purita A.. Boligor and another P50,000.00 for the slaying of Luther Avancea. Costs against appellants.

the appellants instructions, Adato did not leave the room except to eat and to relieve herself.[15] Maniks After a while, appellant and Adato transferred residence to a rented house in Barrio Bag-ay.[16] While they lived together, appellant repeatedly had sexual intercourse with Adato against her will. The appellant first abused Adato sexually on January 15, 1996 and this continued until the policemen rescued her and brought her home to Mendiola.[17] Appellant testified that he was an overseas contract worker in Saudi Arabia from 1984 to March 15, 1995 when he returned to the Philippines after hearing of his wifes critical condition. After his wifes demise on July 10, 1995, appellant decided not to go back to Saudi Arabia anymore. He stayed with his children in their house in Paco, Manila. According to the accused-appellant, he rented out the second floor of the said house to his cousin, Mendiola, who was living there with her family and ward, Adato.[18] After weighing the evidence presented by both parties, the trial court found appellants denial unworthy of merit in the face of Adatos positive declaration that appellant forcibly brought her first to a friends house and then to Tugugarao, and deprived her of liberty for more than two (2) months. The trial court thus declared that appellants guilt of the crime of kidnapping has been established beyond reasonable doubt. Accordingly, appellant was meted out the penalty of reclusion perpetua.[32] Hence, this appeal where the appellant contends that: "The Court A Quo Erred: "1) In convicting appellant of the crime of Kidnapping; and 2) In the appreciation of the Evidence presented by the parties."[33] We find for the accused-appellant. At the outset, this Court observes that a material point of inconsistency has unfortunately been totally disregarded by the trial court and even by the prosecution and defense. The actual date of the alleged commission of the crime has been subject of varying testimonies. What baffles this Court even more is that the trial court completely ignored this discrepancy, and the prosecution exerted no effort whatsoever to explain these inconsistencies. Ncm This is not to say, however, that we are acquitting appellant solely on the basis of Mendiolas inconsistent statements with respect to the date Adato failed to return home. But we acquit appellant because a judicious review of the records of this case reveals that the defense had presented evidence, which if given due credence by the trial court, would have been sufficient to acquit him on the ground of reasonable doubt. We refer to the corroborative testimony of defense witness Arvie Entila. The prosecution would have us believe that defense witness Arvie Entilas testimony was motivated by nothing more than the natural

PEOPLE of the PHILIPPINES, plaintiff-appellee, vs. ALFREDO ENTILA y PINEDA alias "BOGIE", accused-appellant. Nex old Prosecution witness Araceli Mendiola testified that the victim, Theresa Adato, was entrusted to her custody since 1995 by a friend;[3] and that in 1995, her ten (10) year old ward was enrolled in the Justo Lucban Elementary School in Paco, Manila. On December 19, 1995, Adato failed to come home, from her afternoon classes, at the usual time of six oclock in the evening. Worried by Adatos failure to come home on time, Mendiola went to the school to look for her. When Mendiola arrived at the school at 6:30 in the evening, it was already closed. Outside the school, she met one of Adatos classmates who informed her that he saw Adato forcibly being taken by a man. Mendiola immediately reported the incident to the barangay authorities. But when the barangay authorities were unable to find Adato, Mendiola sought the help of one SPO2 Conrado Quilala.[4] Later, Mendiola received a call from one Bobby Cabanero who was a housemate of appellant in Tuguegarao, Cagayan informing her that appellant was there with Adato.[6] Mendiola relayed this information to Quilala on February 19, 1996. Thereafter, a team, composed of Quilala, Captain Cabigas and SPO2 Camacho, was organized to rescue Adato. The team then proceeded to Cagayan on February 21, 1996. Upon reaching Cagayan, they proceeded to Barangay Bag-ay where appellant was renting a house. They were, however, informed that appellant had already left for work at Barangay Abay and that Adato was with him.[7] In Barangay Abay, the team found appellant in a shop where he was painting a car. They approached him and informed him that Mendiola had filed a complaint against him. When asked about Adato, the appellant replied that she was just within the vicinity playing "sungka". True enough, they found Adato playing some fifty (50) meters away from the shop. The team arrested appellant on the spot and brought him and Adato back to Manila.[8] According to Adato, she was locked inside a room in Chits house for more or less one (1) week. During that time, she did not see appellant, and it was Chit who gave her food.[13] Adato only saw appellant again when the latter fetched her and brought her to the bus terminal where they were to board a bus for Tuguegarao. While waiting for their bus, Adato did not ask help from any of the other passengers in the bus terminal since appellant had threatened her life before leaving Chits house.*14+ When they reached Tuguegarao, they initially stayed in the house of Bobby Cabanero who was introduced to Adato as appellants cousin. Appellant and Adato occupied one room in Cabaneros house. Upon

desire to help the appellant who is his uncle. It is true that in most instances, corroboration by relatives of an accused is accorded scant consideration in view of the truism that blood is thicker than water.*39+ However, a witness testimony cannot be stripped of full faith and credit simply on account of his relationship to the parties.[40] Although relationship can put the testimony of a witness in doubt, it cannot affect credibility itself.[41] The Judge should have subjected the testimony of defense witness Arvie Entila to the ordinary process of evaluation and accordingly assigned to it the proper intrinsic weight.[42] Furthermore, the basis for disregarding Arvie Entilas testimony in this case, simply does not exist. It should be remembered that defense witness Arvie Entila is related to the families of both the appellant and Mendiola, guardian of Adato. While appellant is his uncle, Mendiola is also his aunt, being the first cousin of his father.[43] There is no indication whatsoever that defense witness Arvie Entila favored one relative over another nor is then any proof that he harbored any improper motive to testify against Mendiola or her ward.[44] On the contrary, there exists evidence that defense witness Arvie Entila was just as concerned over the welfare of his aunts ward, Theresa Adato. Thus, having heard that Mendiola was looking for Adato, Entila did not waste any time in informing Mendiola that he had seen Adato in Quirino Highway. Later that day, Entila again asked about Adato. Hence: Even the testimonies of prosecution witnesses, SPO2 Quilala and SPO2 Camacho, show that Adatos actuations were inconsistent with those expected of one who has been kidnapped. Curiously, Adato did not exhibit any sign of hostility towards her alleged tormentor. On the contrary, she prevented the police officers from handcuffing appellant during the trip from Tuguegarao to Manila. Adatos compassion towards appellant is more consistent with a debt of gratitude felt for one who had helped her escape a miserable life than anger and vengefulness at one who had taken her away from home and repeatedly abused her. In convicting the appellant, the trial court relied on the oft-cited rule that denial, like alibi, is a weak defense since it is easily fabricated or concocted. There are nonetheless settled pronouncements of this Court to the effect that where an accused sets up alibi, or denial for that matter, as his line of defense, the courts should not at once look at the same with wary eyes for taken in the light of all the evidence on record, it may be sufficient to reverse the outcome of the case as found by the trial court and thereby rightly set the accused free.[48] Furthermore, the defense of alibi or denial may assume significance or strength when it is amply corroborated by a credible witness, as in the instant case.[49] The trial court also pointed out that the defense had failed to establish any nefarious or sinister motive on the part of the victim to impute the commission of a crime to the appellant. It should be noted, however, that although Adato herself had no motive to falsely incriminate appellant, her guardian, Mendiola, had an axe to grind against appellant.

That appellant and Mendiola were feuding over the ownership of the house they were occupying in Paco, Manila is evident from their respective statements in open court. It is therefore not altogether impossible, as alleged by the defense, that Adato was merely cajoled by Mendiola into concocting the charges against appellant. Defense witness Arvie Entilas testimony, coupled with the aforementioned circumstances, has engendered in the mind of this Court a nagging doubt as to the guilt of the appellant. This uneasiness has been spawned by the failure of the prosecution to convince this Court of appellants guilt to that degree of moral certitude that is indispensable for the conviction of an accused. Hence, we have held in a long line of cases that if the inculpatory facts and circumstances are capable of two or more explanations, one consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.[52] WHEREFORE, the Decision of Branch 26 of the Regional Trial Court of Manila in Criminal Case No. 96-147974 is REVERSED and SET ASIDE. The accused-appellant, Alfredo Entila Y Pineda alias "Bogie" is hereby ACQUITTED on the ground that his guilt was not proven beyond reasonable doubt. francis

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO GARCHITORENA, accused-appellant. In resolving the sole issue raised by appellant, the Court relies on the time-tested doctrine that the trial courts assessment of the credibility of witnesses should be upheld, if it is not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence which, if considered, would materially affect the result of the case. Version of the Prosecution In its Brief,[4] the Office of the Solicitor General[5] presents the following narration of the facts: "Jennifer Acosta was nineteen (19) years old at the time she testified in court in 1996. Appellant is her step grandfather, being the live-in partner of her paternal grandmother Rosalina Acosta. Rosalina is separated from her husband. Rosalina and appellant took Jennifer to their custody when the latter was only two (2) years old and until Jennifer was about ten (10) or eleven (11) years old. During that period, however, Jennifer would reside alternately in her grandmother and appellants house at No. 1078 Sta. Monica Subdivision, Ugong, Valenzuela, Metro Manila and her parents house at # 2007 La Mesa St., Ugong, Valenzuela. Rosalina and appellants house is about two hundred (200) steps away, or about five (5) minutes walk *from+ Jennifers parents house. "Jennifer was ten (10) or eleven (11) years old when she resided permanently at her parents*+ x x x house. But Jennifer would still go to her grandmothers house when she would call for her. Sometimes

appellant would fetch Jennifer from her parents house pretending that her grandmother needed her. If Jennifer would refuse to go with appellant, Clarita would scold her. When she was ten (10) years old, Jennifer noticed that appellant treated her differently, such as placing her on his lap, kissing her on the neck or on the cheeks and touching her private parts. Jennifer calls appellant Daddy because her grandmother told her to address appellant as such. According to Jennifer, appellant started raping her when she reached the age of ten (10), but she could no longer remember how many times appellant raped her. The rapes were committed not only in her grandmothers house but also in her parents house. She did not tell anyone about the rapes committed by appellant against her because he threatened to kill her, her grandmother and sister should she (Jennifer) do so. "Dr. Noel Minay, a [m]edico-[l]egal [o]fficer of the National Bureau of Investigation, Manila conducted a physical examination on Jennifer on April 2, 1996. Dr. Minay testified that there was no physical injury on the body of Jennifer, but he found an old healed hymenal laceration at *the+ 6 oclock position. His examination revealed that Jennifer was no longer physically [a] virgin."[6] Version of the Defense In his Brief,[7] appellant did not present his version of the facts, but merely stated that Witnesses Rogelio and Rosalinda Acosta both testified that complainant had gone to his residence several times after the date when the alleged rape took place, and that there was thus no indication that the relationship between him and complainant was strained or abnormal. Ruling of the Trial Court After examining the evidence presented by both the prosecution and the defense, as well as the demeanor of the witnesses of both sides, the trial court concluded that the prosecutions account was more credible. The trial court accorded full faith to the victims narration of the incident which occurred on February 18, 1996. It observed that a girl of tender age would not willingly falsify a rape charge. Her lack of sufficient discretion and judgment, as well as the threats to her life and the lives of her sister and her grandmother, prevented her from resisting appellants advances, thus enabling him to perpetrate the crime. The trial court also noted the findings of the medicolegal officer, which lent support to the fact that rape had been committed against the victim. The Courts Ruling The appeal is devoid of merit. Solitary Issue: Credibility of the Witness The contentions of appellant are incorrect. He was convicted on the basis of the victims testimony which the trial court deemed to be a true and honest narration of the events that occurred on that fateful

day. During direct examination, Jennifer clearly testified as to how she had been raped by her grandfather, herein appellant. True, the statement of the complainant that she was ravished in the sala conflicted with that of Rogelio Acosta who, testifying for the defense, claimed that he was watching television in the same place at that time. After hearing the testimonies of both parties, however, the trial court attached greater weight and credence to the testimony of the victim, Jennifer Acosta. This Court finds no compelling reason to reverse or alter its holding. It is a time-tested doctrine that a trial courts assessment of the credibility of a witness is entitled to great weight and is even conclusive and binding, if it is not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence.[11] Furthermore, the trial court found no motive for complainant to testify falsely against appellant who was a close relative. In People v. Tidula, this Court stated that a witness testimony against a blood relative is given great weight, if it is not found to have been motivated by any ill will. The Court held: "A witness testimony is accorded great weight, particularly when his or her accusation is directed against a close relative. For one to prosecute a blood relative -- especially when, as in this case, no ill or evil motive is shown -- goes beyond logic and normal human experience."[12] Appellant insists that Jennifer fabricated the rape charge, because she had felt that her grandparents were too strict with her and her suitors. This allegation does not hold water, because no proof was ever offered to substantiate it. Moreover, one does not fabricate so serious a charge as rape simply because ones grandparents are strict, especially in this case wherein complainant was not even living with them but only visited them from time to time. In any event, her testimony is corroborated by the findings of the NBI medicolegal officer,[13] who found an old healed laceration in her sexual organ after conducting a genital inspection. WHEREFORE, the appeal is hereby DENIED and the Decision of the Regional Trial Court AFFIRMED, with the modification that appellant is ordered to pay the victim the amount of P50,000 as moral damages, in addition to the trial courts grant of P50,000 as indemnity ex delicto. Costs against appellant.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ILDEFONSO VIRTUCIO JR. alias "Gaga," accused-appellant. An Information was filed on 8 April 1996 charging Ildefonso Virtucio, Jr. with murder for the death of Alejandro Briones. To this day however the accused professes innocence. The conviction of the accused was based on the following evidence of the prosecution: At around ten o'clock in the evening of 31 March 1996 Alejandro Briones was standing outside his store in Mambaling, Cebu City. He was watching his neighbors play

"chikicha," a card game. Suddenly appearing from nowhere accused Ildefonso Virtucio Jr. approached the store muttering, "Ako nasay andar karon kay duna koy tawo nga nalagutan nga nagpa-raid nako sa shabu."[1] The accused then took out his gun and fired downwards. Then without any provocation the accused aimed his gun at the head of Alejandro Briones; the gun did not fire. Alejandro stood up and parried off the firearm. He asked Virtucio, "Unsa man, Ga?" In answer, Virtucio fired his gun and this time Alejandro was hit on his stomach. Virtucio fired another shot hitting Alejandro on his right forearm. Wounded and bleeding from his wounds, Alejandro tried to run but Virtucio finished him off with a fatal shot on the head which sent the victim falling to the ground. Betty Briones, wife of Alejandro, was in their store. She was just one and a half (1 1/2) meters away from her husband when shot. She saw the startling occurrence as did their 12-year old son "Aly Boy" who was playing outside the store. Accused Virtucio interposed alibi for his defense. He alleged that as early as eleven o'clock in the morning of 31 March 1996 he was already on his way to Tabuelan, Cebu, together with his business partner, Pablo Cuer, to await the arrival of seashells from Escalante, Negros Occidental. They arrived in Tabuelan at around four-thirty in the afternoon. He stayed in the house of Cuer until 2 April 1996 since the seashells did not arrive on the expected date. During his stay in Tabuelan he shared the same room with Cuer leaving the latter's wife to sleep in another room. On 2 April 1996 police authorities from the Tabuelan Police Station went to the Cuer residence and invited the accused to their headquarters where he was subsequently detained. He came to know that he was implicated in the killing of Alejandro Briones only on 3 April 1996. He could not think of any reason why Betty and "Aly Boy" Briones would implicate him in the crime. In fact, the Brioneses were his neighbors for three (3) years and they had maintained good relationship throughout those years. He admitted though that one (1) month before the killing, the house of his common-law wife's parents was raided for shabu; however, he never blamed anyone for the incident.

the amount of P50,000.00. The court a quo disregarded the alibi of the accused in view of his positive identification by the prosecution witnesses as the author of the crime. Besides, he miserably failed to prove that it was physically impossible for him to have been at the crime scene at the time it was committed. Accused-appellant is now before us impugning the testimonies of the victim's widow and son for allegedly being "biased and polluted." He suggests that their testimonies be considered fabricated as they were too harmonious with nary a hint of inconsistency in their narration of facts. In resolving the issue of credibility of witnesses, we must yield to the oft-repeated rule that the trial courts evaluation of the testimony of a witness is accorded the highest respect because of its direct opportunity to observe the witnesses on the stand and to determine if they are telling the truth or not.[3] Lacking any ground in questioning the discretion of the trial court, we consider its ruling on the credibility of the witnesses as settled. The witnesses' relationship to the victim does not automatically affect the veracity of their testimonies. No legal provision disqualifies relatives of the victim of a crime from testifying if they are competent. That the prosecutions eyewitnesses were the widow and son of the deceased, without more, is not reason enough to disregard and label their testimonies as biased and unworthy of credence. Plainly, relationship did not affect their credibility.[4] This Court is well aware that not too infrequently crimes are committed with just the relatives of the victim as witnesses.[5] On the same note, the testimony of "Aly Boy" should not be discarded simply because he was a mere child when he testified. A child is only disqualified if it can be shown that his mental maturity renders him incapable of perceiving the facts respecting which he is being examined and of relating them truthfully.[6] Once it is established that he understands or discerns the nature and character of an oath, full faith and credit should be given to his testimony. The narration of "Aly Boy" was vivid and full of details, stemming only from a recollection of what actually took place and not from a concocted story impressed upon him by his mother, as insinuated by accused-appellant. The prosecution witnesses positively identified accused-appellant as the author of the crime. Faced with this positive identification, he could only offer the defense of denial and alibi. Denials, as negative and self-serving evidence, do not deserve as much weight in law as a positive and affirmative testimony.[7] Alibi as a defense has an inverse relation to positive identification. It is regarded as the weakest and most unreliable of all defenses especially in the light of clear and positive identification of the accused by the prosecution witnesses against whom no motive to falsely testify against the accused can be imputed. Alibi can only prosper by indubitably proving that the accused was somewhere else when the crime was committed, and that he could not have been physically present at the locus criminis or its immediate vicinity at the time of its commission; physical impossibility, in other words, of being in two (2) places at the same time.[8]

Pablo Cuer corroborated the testimony of Virtucio. He said that once in Tabuelan, Cebu, the accused never left their house as they even shared the same room, while his wife slept in another room. On 1 April 1996 they woke up at four-thirty in the morning and proceeded to the wharf to wait for the seashells from Escalante, Negros Occidental. Since the seashells failed to arrive as scheduled Virtucio had to stay with the Cuers for another night. In the afternoon of the following day, 2 April 1996, Policeman Alfredo Arellano invited Virtucio to the police station where he was subsequently detained. According to Cuer, he did not bother to give Virtucio some food while detained because he (Cuer) returned to the wharf to get the seashells. On 21 October 1996 the Regional Trial Court of Cebu City found Virtucio guilty of murder and sentenced him to suffer the penalty of reclusion perpetua and to indemnify the heirs of Alejandro Briones

WHEREFORE, the Decision of the Regional Trial Court of Cebu City finding accused-appellant ILDEFONSO VIRTUCIO JR. alias "Gaga" guilty of murder and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the heirs of Alejandro Briones the amount of P50,000.00 as civil indemnity is AFFIRMED with the MODIFICATION that accused-appellant is additionally ordered to pay the heirs of the deceased P9,000.00 as actual damages. Costs against accused-appellant. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO PARDUA, ROGELIO PARDUA, GEORGE PARDUA, and WARLITO PARDUA, accused-appellants. The facts are as follows: About 8:00 in the morning of November 9, 1989, Toribio Simpliciano and his hired farm hands, including his nephews, Alfredo Villanueva and Orlando Simpliciano, were plowing Toribios rice field in Rangayan, Roxas, Isabela. All five accused, riding on a trailer drawn by a kuliglig arrived at said place. Forthwith, they jumped off the trailer and attacked Toribio. Rogelio Pardua hacked Toribio with a long bolo locally known as Tabas hitting him on the neck and the hips while Warlito Pardua, then holding a piece of wood known as dos por dos, hit the hapless victim as the latter fell to the ground. Then too, George Pardua and his brother-in-law Robert de la Cruz hit the fallen Toribio with their own long bolos while Ernesto Pardua, armed with a shotgun called quebrang in the locality, mauled the victim and pointed the same to Toribios farm companions to prevent them from coming to the rescue of Toribio. Thereafter, the five assailants hurried back to their ride and left the scene. Seeing the assailants gone, Toribios companions rushed him to the hospital, where he later expired.[8] Leonora Simpliciano, widow of the victim, testified that while she was sweeping their yard in front of their house that fateful morning, she overheard Atty. Bugarin talking with the accused Ernesto, Rogelio, Warlito, George and Robert in the house of one Danny Jose. Atty. Bugaring, who resented his ejectment from the house of Adora, daughter of Toribio and Leonora, told assailants that if they would kill Toribio, he (Atty. Bugarin) would be responsible for them. Leonora then saw Danny Jose hand a firearm to Rogelio. Sensing imminent danger to her husbands life, she hastened to seek assistance from the police but soon after she reached the police station, somebody arrived and frantically said her husband was slain in the ricefield. She also suffered mental anguish and pain, she had sleepless nights and could hardly eat.[9] Accused Ernesto Pardua invoked self-defense. He was an agricultural lessee of the riceland owned by Toribio and the latter tried to wrest physical possession of the riceland. He narrated that on that morning while he was fixing the dikes in the ricefield to let the water flow in, Toribio arrived with seven others, some of whom were Esperidio Pillos, Orlando Simpliciano, and Pablo Obra. When they got down from their tractors or kuliglig, Toribio, armed with an air rifle and holding a fork with two blades, pointed the gun at Ernesto, and told him to go home. Ernesto refused to leave the riceland where he derived his income. Toribio fired the gun at Ernesto, hitting the latter on his right arm. Acting in self-defense,

Ernesto grabbed the gun and thereafter swung and hacked Toribio with the bolo or panabas he (Ernesto) was holding at the time. Ernesto could not remember how many times he attacked Toribio because he saw darkness. Finally seeing his victim fall, he wanted to surrender but because he was afraid of a reprisal from Toribios companions, he took a passenger bus to Manila to escape.[12] Rogelio Pardua and his son, George, denied participation in the killing, as they claimed that they discerned trouble when they heard people shouting from Ernesto's ricefield but they did nothing because they were busy working in their own ricefields. Rogelio, however, was the one who hailed the tricycle that brought Toribio to the hospital.[13] Warlito Pardua did not take the witness stand to deny his participation. In their appeal, accused-appellants question the credibility of the prosecution witnesses. According to them, only Ernesto committed the hacking that led to Toribios death and he did so to defend his landholding from the unlawful entry of his brother-in-law, Toribio. It is well settled that the findings of a trial court on the credibility of witnesses deserve great weight, given the clear advantage of a trial judge over an appellate magistrate in the appreciation of testimonial evidence We have carefully reviewed the testimonies of the witnesses both for the prosecution and the defense as well as other evidence. We are convinced that the trial court correctly held that the accusedappellants guilt was established beyond reasonable doubt. We have no reason to doubt the testimony of Orlando and Juanito. They recounted details of the horrifying experience of seeing their uncle, Toribio, killed, in a manner reflective of honest and unrehearsed testimony. Their candid, plain, straightforward account of the untoward incident that happened in broad daylight and in an open field, was free of significant inconsistencies, unshaken by rigid crossexamination. Accused-appellants fault the trial court for considering the testimony of Juanito, who was not among those present at the scene of the crime by Orlando and Alfredo, and whose name was not listed in the information as among the prosecution witnesses. According to accused-appellants, Juanitos testimony is a fabrication, for he saw nothing of the incident which befell his uncle, Toribio. The Court is not persuaded. As long as a person is qualified to become a witness, he may be presented as one regardless of whether his name was included in the information or not.[17] The reason why Juanito was not mentioned by Orlando and Alfredo as one of their companions at the scene of the crime is explained by the fact that Juanito arrived in the farm later for the purpose of asking his uncle, Toribio, to help him cultivate his farm. Juanito, however, failed to talk to his uncle because as he was about to do so, the accused-appellants came and suddenly attacked Toribio; Juanitos presence could possibly not have been noticed by Orlando

and Alfredo because their attention at that time was focused on the startling occurrence that was unfolding before them. Accused-appellants claimed that Orlando and Juanito were biased witnesses for they were nephews of the victim. The prosecution could have presented other companions of the victim at the time of the hacking incident, like Esperidion Pillos, Alfredo Villanueva, Bobot Pillos, Ely la Fuente and Mariano la Fuente, who were not relatives of Toribio. Accused-appellants contention deserves scant consideration. Mere relationship of Orlando and Juanito to the victim does not automatically impair their credibility as to render their testimonies less worthy of credence where no improper motive may be ascribed to them for testifying. In fact, a witness relationship to a victim, far from rendering his testimony biased, would even render it more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real culprit.[18] WHEREFORE, the decision of the Regional Trial Court, Branch 23, Roxas, Isabela, is AFFIRMED with MODIFICATION. Accusedappellants Ernesto Pardua, Rogelio Pardua, George Pardua and Warlito Pardua are found guilty beyond reasonable doubt of murder, and are each sentenced to reclusion perpetua and all its accessory penalties. They are ordered to pay jointly and severally the heirs of the victim Toribio Simpliciano in the amounts of P30,000.00 as actual damages, P50,000.00 as moral damages and civil indemnity of P50,000.00 and costs.

trial without previously submitting his affidavit, citing the case of Gonzales v. Presiding Judge of Branch 1, RTC of Bohol. 7

In Orino vs. Judge Gervasio, 8 the Supreme Court ruled in a Minute Resolution that even if a witness has not properly submitted his/her affidavit, he may be called to testify in connection with a specific factual matter relevant to the issue. Thus, a medical doctor whose medical certificate is among the evidence on record may be called to testify. This also applies to a Register of Deeds or Provincial Assessor in connection with official documents issued by his office. Respondent Judge may not therefore be held guilty of ignorance of the law. IN SUMMARY, We resolved the eight complaints filed against respondent Judge as follows: FIRST COMPLAINT: Under Cannon 2 of the 1989 Code of Judicial Conduct, respondent Judge should avoid impropriety and the appearance of impropriety in all his activities. While respondent Judge was found to have written the police station Commander of Tupi, South Cotabato, in good faith, he should refrain from engaging in such activity, and other similar ones, so as not to tarnish the integrity and impartiality of the judiciary. SECOND COMPLAINT: There is no basis for the charge against respondent Judge of improperly issuing a search warrant and a warrant of arrest in relation to Criminal Case No. 5016. The issuance was not attended with malice or bad faith. The complaint is therefore hereby dismissed. THIRD COMPLAINT:This being the second complaint against respondent Judge for alleged issuance of a search warrant and/or a warrant of arrest in Criminal Case No. 5123 in violation of the requirement of personal knowledge, respondent Judge is hereby admonished to exercise more circumspection and prudence in the issuance of the said warrants so as not to unwittingly trample on the constitutionally guaranteed rights of the accused. FOURTH COMPLAINT: This complaint is dismissed. We hold respondent Judge not guilty of ignorance of the law when he allowed a witness to testify despite his non-submission of an affidavit. This is well within the Rules on Summary Procedure. FIFTH COMPLAINT: For the unauthorized notarization of nine private documents, respondent Judge is fined TEN THOUSAND PESOS (P10,000.00) with warning that the commission of similar acts in the future will warrant a more severe sanction. SIXTH COMPLAINT: This complaint is dismissed. That respondent Judge's decision of convicting accused in a criminal complaint for light threats was reversed on appeal on reasonable doubt is not an indication of respondent Judge's lack of correct appreciation of facts. A mere error in judgment is immaterial in an administrative complaint against a judge absent any showing of bad faith.

ATTY. HUGOLINO V. BALAYON, JR., petitioner, vs. JUDGE GAYDIFREDO O. OCAMPO, respondent. For our consideration is a letter-complaint of Atty. Hugolino V. Balayon, Jr., dated October 9, 1991, charging Judge Gaydifredo O. Ocampo of the Metropolitan, Trial Court, Tupi, South Cotabato with gross ignorance of the law and grave misconduct. The charge is grounded on eight complaints, separately discussed as follows: FOURTH COMPLAINT: The complaint states that respondent Judge, with gross ignorance of the law, allowed a witness to testify during the trial without previously submitting his affidavit as required under Section 14 of the Rules on Summary Procedure. 6

In People vs. Esther Ante, Criminal Case No. 5226 for Slight Physical Injuries, a prosecution witness who had not previously submitted his affidavit was allowed by respondent Judge to testify during the trial, over and above the objection of complainant. Complainant alleged that Section 14 of the Rules on Summary Procedure expressly prohibits any witness, without exception, from testifying during the

SEVENTH COMPLAINT: There is enough evidence to hold respondent Judge remiss in the performance of his duties as municipal judge when he dismissed a criminal case for theft filed with his sala for preliminary investigation despite his own finding that there was intent to gain on the part of the accused when they appropriated the galvanized iron sheets. Thus, respondent Judge is again admonished to exercise more prudence and circumspection in the performance of his duties as municipal judge.

Appellant argues that Evelyns testimony is not categorical and is replete with contradictions, thus engendering grave doubts as to his criminal culpability. In giving credence to Evelyns testimony and finding against appellant, the trial court made the following observations, quoted verbatim: 1) Despite her weak and dull mental state the victim was consistent in her claim that her Papay Badong (accused Salvador Golimlim) had carnal knowledge of her and was the author of her pregnancy, and nobody else 2) She remains consistent that her Papay Badong raped her only once; 3) That the contradictory statements she made in open court relative to the details of how she was raped, although would seem derogatory to her credibility and reliability as a witness under normal conditions, were amply explained by the psychiatrist who examined her and supported by her findings (See: Exhibits F to F-2); 4) Despite her claim that several persons laid on top of her (which is still subject to question considering that the victim could not elaborate on its meaning), the lucid fact remains that she never pointed to anybody else as the author of her pregnancy, but her Papay Badong. Which only shows that the trauma that was created in her mind by the incident has remained printed in her memory despite her weak mental state. Furthermore, granting for the sake of argument that other men also laid on top of her, this does not deviate from the fact that her Papay Badong (the accused) had sexual intercourse with her.22 The trial judges assessment of the credibility of witnesses testimonies is, as has repeatedly been held by this Court, accorded great respect on appeal in the absence of grave abuse of discretion on its part, it having had the advantage of actually examining both real and testimonial evidence including the demeanor of the witnesses.23 In the present case, no cogent reason can be appreciated to warrant a departure from the findings of the trial court with respect to the assessment of Evelyns testimony. That Evelyn is a mental retardate does not disqualify her as a witness nor render her testimony bereft of truth. Sections 20 and 21 of Rule 130 of the Revised Rules of Court provide: SEC. 20. Witnesses; their qualifications. Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. xxx SEC. 21. Disqualification by reason of mental incapacity or immaturity. The following persons cannot be witnesses:

EIGHTH COMPLAINT: The denial of a demurrer to the evidence is left to the sound discretion of the Court, rather than an indication of ignorance of the law. It was well within the respondent Judge's discretion, absent any showing of bad faith or excess of jurisdiction, for him to have denied complainant's Demurrer to the Evidence in Criminal Case No. 5180. The complaint is therefore dismissed. PEOPLE OF THE PHILIPPINES, appellee, vs. SALVADOR GOLIMLIM @ "BADONG", appellants. Private complainant Evelyn G. Canchela (Evelyn), is a mental retardate. When her mother, Amparo Hachero, left for Singapore on May 2, 1996 to work as a domestic helper, she entrusted Evelyn to the care and custody of her (Amparos) sister Jovita Guban and her husband Salvador Golimlim, herein appellant, at Barangay Bical, Bulan, Sorsogon.4 Sometime in August 1996, Jovita left the conjugal residence to meet a certain Rosing,5 leaving Evelyn with appellant. Taking advantage of the situation, appellant instructed private complainant to sleep,6 and soon after she had laid down, he kissed her and took off her clothes.7 As he poked at her an object which to Evelyn felt like a knife,8 he proceeded to insert his penis into her vagina.9 His lust satisfied, appellant fell asleep. When Jovita arrived, Evelyn told her about what appellant did to her. Jovita, however, did not believe her and in fact she scolded her.10 A week after she brought Evelyn to stay with her, Lorna suspected that her sister was pregnant as she noticed her growing belly. She thereupon brought her to a doctor at the Pascual General Hospital at Baeza, Novaliches, Quezon City for check-up and ultrasound examination. In the meantime or on May 7, 1997, Evelyn gave birth to a girl, Joana Canchela, at Guruyan, Juban, Sorsogon.17 Appellant, on being confronted with the accusation, simply said that it is not true "[b]ecause her mind is not normal,"18 she having "mentioned many other names of men who ha[d] sexual intercourse with her."19

(a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. A mental retardate or a feebleminded person is not, per se, disqualified from being a witness, her mental condition not being a vitiation of her credibility. It is now universally accepted that intellectual weakness, no matter what form it assumes, is not a valid objection to the competency of a witness so long as the latter can still give a fairly intelligent and reasonable narrative of the matter testified to.25 It can not then be gainsaid that a mental retardate can be a witness, depending on his or her ability to relate what he or she knows.26 If his or her testimony is coherent, the same is admissible in court.27 To be sure, modern rules on evidence have downgraded mental incapacity as a ground to disqualify a witness. As observed by McCormick, the remedy of excluding such a witness who may be the only person available who knows the facts, seems inept and primitive. Our rules follow the modern trend of evidence.28 From a meticulous scrutiny of the records of this case, there is no reason to doubt Evelyns credibility. To be sure, her testimony is not without discrepancies, given of course her feeblemindedness. By the account of Dr. Chona Cuyos-Belmonte, Medical Specialist II at the Psychiatric Department of the Bicol Medical Center, who examined Evelyn, although Evelyn was suffering from moderate mental retardation with an IQ of 46,30 she is capable of perceiving and relating events which happened to her. As noted in the above-quoted testimony of Dr. Belmonte, Evelyn could give spontaneous and consistent answers to the same but differently framed questions under conditions which do not inhibit her from answering. It could have been in this light that Evelyn was able to relate in court, upon examination by a female government prosecutor and the exclusion of the public from the proceedings, on Dr. Belmontes suggestion,32 how, as quoted below, she was raped and that it was appellant who did it: WHEREFORE, the assailed Decision of the Regional Trial Court of Sorsogon, Sorsogon, Branch 65 in Criminal Case No. 241 finding appellant, Salvador Golimlim alias "Badong," GUILTY beyond reasonable doubt of rape, which this Court finds to have been committed under paragraph 1, Article 335 of the Revised Penal Code, and holding him civilly liable therefor, is hereby AFFIRMED. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER RAMA, accused-appellant. The prosecution's story was gathered mainly from the testimony of five-year old Roxanne Cabiguin, a cousin of Joyce Ann. On January 1, 1998, Roxanne, her sister Rose Ann, Mama Weng, Uncle Dony, grandmother Diana, Joyce Ann and the latter's younger brother Pogi

were at the Dagupan public plaza. Roxanne played with her Uncle Dony, Rose Ann, and Joyce Ann at the plaza's stage while her Mama Weng sat at the side of the stage, feeding Pogi. Mama Diana went to a store to buy some food. At that time, the accused Rama and another man were also at the plaza. Rama called Roxanne and told her that if she would bring the beautiful girl (referring to Joyce Ann) to him, he would give Roxanne a biscuit. Rama gave her one biscuit. She ate it. She then carried Joyce Ann to the accused Rama who ran away with little Joyce Ann. Roxanne told her Mama Weng and Mama Diana that Joyce Ann was taken by a man. They looked for Joyce Ann and the man but they were nowhere to be found. During her testimony, Roxanne pointed to the accused Rama as the man who took away Joyce Ann.[2] Roxanne's testimony was corroborated by Pierre Torio. On January 1, 1998, he was with his cousin and niece at the Dagupan City plaza from about 1:15 p.m. to 4:30 p.m. Facing the stage, they sat on a bench to its right. They were about nine to ten meters away from the stage. There were about seven children playing on the stage. At about 1:30 p.m. to 2:00 p.m., the accused Rama entered the plaza and sat about five to six meters away from them. He was with two other men and a pregnant woman. He entered the plaza playground where many kids were playing. He stared at the children and looked confused, then came out seemingly not knowing what to do, and approached the stage. But before he could reach the stage, he returned to the playground. Subsequently, at about 2:45 p.m., a tall man asked Torio if he saw the missing Joyce Ann. He replied that he saw the accused Rama acting suspiciously in the plaza. He did not see though whether Rama took Joyce Ann. By this time, Rama was nowhere in sight.[3] Diana Laviste Cabiguin, paternal grandmother of Joyce Ann, also testified. Along with Joyce Ann and other relatives, she went to the Dagupan plaza on January 1, 1998. At the time Joyce Ann disappeared, Diana went to McDonald's to buy some snacks. When she went back to her relatives, Joyce Ann was already gone. One of the children playing in the plaza playground, Bryan Ocampo, informed Diana's group that Joyce Anne was taken by a man. They searched in vain for the missing Joyce Ann. Two days later, or on January 3, 1998, after receiving tips from the townspeople, Diana went to Binmaley, Pangasinan, the vicinity where the accused lived. She was with a certain Elvira Sebastian, some policemen, and three children at the plaza playing with Joyce Ann on January 1, 1998, namely: thirteen-year old Bryan Ocampo, eleven-year old Benjamin Sarmiento, and Jesus Ulanday. When the group reached the house of the accused Rama, they found the latter and his wife and their children sleeping. They were permitted by the accused Rama to examine the premises of his house and to look for the missing Joyce Anne. Their search was fruitless but all three kids pointed to the accused Rama as the kidnapper. Jesus even urinated upon seeing the accused Rama because the latter spanked him when he (Jesus) ran after Rama as the latter took away Joyce Ann. Rama threatened Jesus not to follow him or else he (Rama) would throw a stone at him.

The accused Rama testified. From 1975 up to 1998, he was a cart pusher at the Magsaysay market in Dagupan City. He would go to work at about 6:30 p.m. and go home at about 9:00 the following morning. Fish vendors would usually hire him to carry their goods in his cart. On January 1, 1998, he was at home in Binmaley, Pangasinan, the whole day. He fetched water, helped his wife wash clothes, and took care of his youngest daughter. At 1:00 p.m. to 5:00 p.m., he went to sleep. He did not go to work in the evening as his customers usually did not sell fish on New Year's Day. The next day, he again stayed in the house. At 6:30 in the evening, he went to work and went home the following morning at 9:00. On January 3, 1998, he went to work as usual. Upon arriving home the next morning, his wife told him that at about 11:00 p.m. the previous night, some policemen went to their house looking for something. On January 4, 1998, at about 11:00 in the evening, two policemen went to his house looking for a baby. They were with an old woman whom Rama later on identified in the courtroom as Diana Laviste, a man, Bryan and Benjamin. He let the group in. They did not find the baby they were looking for. The two children stated that he (Rama) was not the man who took the missing Joyce Ann. We come now to the second issue raised by the defense. The accused Rama faults the trial court for finding him guilty beyond reasonable doubt despite the insufficiency of evidence. First, he makes much of the fact that the prosecution did not present Bryan and Benjamin, the two children who allegedly saw the accused Rama take Joyce Ann. This fact, however, does not militate against the story of the prosecution. It is well-settled that the nonpresentation of certain witnesses by the prosecution is not a plausible defense and the matter of choosing witnesses to present lies in the sound discretion of the prosecutor handling the case.[20] Besides, the prosecution adequately explained that the parents of the two children, Bryan and Benjamin, reneged on their willingness to have their children testify after the wife of the accused talked to them for fear of their safety. Likewise, as correctly pointed out in the appellee's brief, nothing could have prevented the defense from presenting Bryan and Benjamin as its own witnesses in order to discredit the testimony of Roxanne, the lone eyewitness presented by the prosecution. The presumption of suppressed evidence does not apply when the same is equally accessible or available to the defense.[21] Secondly, the accused points out that since Bryan and Benjamin were not presented as prosecution witnesses, Diana Laviste's claim that these children pointed to the accused as the man who took away Joyce Ann does not bear any weight in evidence. This therefore leaves only the testimony of Roxanne as the basis for the prosecution's identification of the accused Rama as the culprit. The defense contends, however, that Roxanne's testimony, coming from the mouth of a five-year old, does not deserve credit because she could not answer many questions and appeared to have been coached by her grandmother, Diana. We cannot subscribe to the accused's contention. The Rules of Evidence provide in Rule 130, Secs. 20 and 21:

"Sec. 20. Witnesses; their qualifications. - Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Sec. 21. Disqualification by reason of mental incapacity or immaturity. - The following persons cannot be witnesses: (b) Children whose mental maturity is such as to render them incapable pf perceiving the facts respecting which they are examined and relating them truthfully." "It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States v. Buncad, this Court stated: The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing, it is setted that the trial court is called upon to make such determination." (emphasis supplied) In the case at bar, while the five-year old witness, Roxanne, was not able to answer some questions such as which was her left and her right, she was straightforward in identifying the accused Rama as the culprit, viz: We thus find no reason to disturb the trial court's assessment of the credibility of the child witness, Roxanne. The determination of the competence and credibility of a child as a witness rests primarily with the trial judge as he had the opportunity to see the demeanor of the witness, his apparent intelligence or lack of it, and his understanding of the nature of the oath. As many of these qualities cannot be conveyed by the record of the case, the trial judge's evaluation will not be disturbed on review, unless it is clear from the record that his judgment is erroneous.[26] This conclusion is in accord with the spirit and letter of the Rule on Examination of a Child Witness (the "Rule") which became effective last December 15, 2000. The following provisions are apropos: "Section 1. Applicability of the Rule. -- Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses." (emphasis supplied) "Section 3. Construction of the Rule. -- This Rule shall be liberally construed to uphold the best interests of the child and to promote the maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused." (emphasis supplied) "Section 6. Competence. -- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child

to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a) Proof of necessity. -- A party seeking a competency examination must present proof of necessity of competence examination. The age of the child by itself is not a sufficient basis for a competency examination." (emphasis supplied) Thirdly, the defense faults the trial court for relying on a single eyewitness account in convicting the accused Rama. The Court has long held that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial court.[27] The Rule also provides in Section 22, viz: "Section 22. Corroboration.-- Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and noncriminal cases." (emphasis supplied) The records of the instant case bear out the clear and straightforward manner by which Roxanne testified. The trial court thus correctly relied upon the sole testimony of Roxanne. In view of the positive identification made by Roxanne, the accused's defense of denial and alibi must fall. Well-settled is the rule that positive identification of the accused will prevail over the defense of denial and alibi.[30] Furthermore, for alibi to prosper, it must be shown that there was physical impossibility for the accused to have been at the scene of the crime. The defense has failed to satisfy this requirement. The trial court took judicial notice of the fact that Gayaman where the accused supposedly was at the time Joyce Ann disappeared is only about five to six kilometers away from the plaza where Joyce Ann was playing. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTOR BORMEO, accused-appellant. At around 3:00 o'clock in the afternoon of 2 April 1989, in barangay San Fernando, Laur, Nueva Ecija, while Carmelita Galzote was walking back to her home after peddling eggplants and tomatoes, she was met by her 2 1/2-year old granddaughter, Raylin, who was running "pabisaklat" (with legs wide apart) and crying. Carmelita put her basket down and cradled Raylin on her lap. She then discovered that the child's private organ was bleeding. when queried as to why it was bleeding, Raylin replied, "Tatay," referring to the accused, the common-law husband of Carmelita Galzote. The following morning, Carmelita brought Raylin to the Rural Health Unit in Laur, Nueva Ecija. The latter was examined by Dr. Felimon V. Veneracion after Carmelita gave her written consent in the form of a "Salaysay". 1 Upon examination, Dr. Veneracion discovered a fresh laceration of Raylin's hymen "at 3:00 to 9:00 o'clock position in the face of the clock" and some slight bleeding; there was, however, no extra-genital, physical injury. The doctor concluded that Raylin's virginity was lost. Such findings are embodied in the medical certificate which he subsequently issued. 2

Carmelita then proceeded to the Laur Police Headquarters where here statement, "Kusang loob na Salaysay", was taken by Pfc. Bienvenido P. Carse and sworn to before P/Lt. Hipolito Bernardo. 3 In the afternoon of 3 April 1989, the accused was arrested and detained at the Laur municipal jail. Being Raylin's only living relative, Carmelita filed on 7 April 1989 a criminal complaint for rape dated 4 April 1989 against the accused before the Municipal Circuit Trial Court (MCTC) of Laur and Gabaldon, Nueva Ecija. 4 The prosecution presented Carmelita Galzote and Dr. Felimon V. Veneracion as its witnesses. It dispensed with the presentation of Raylin Galzote on account of her tender age. The accused testified in his behalf with the prosecution not even attempting to crossexamine him. 7 On 28 September 1989, the trial court promulgated its decision, dated 14 September 1989, 8 finding the accused guilty of the crime charged. The dispositive portion thereof reads as follows: The conviction is anchored on the evidence for the prosecution which the trial court gave full faith and credit and which it summarized as follows: The accused has been a problem to Carmelita. He attempted to rape her eldest daughter Flordeliza by entering thru a window and then pulled (sic) out his belt. He molested Victoria by pulling out her skirt while dressing up. He entered the mosquito net of Aurelia when they were in Bulacan. He also attempted to rape her youngest daughter 7-year old Anna when they were in Baler. She did not bother to file cases against the accused because his actuations did not materialize. She admonished him though." 10 Although it considered as hearsay Carmelita's testimony with respect to Raylin's answer when asked why her private organ was bleeding, the trial court nevertheless admitted the same as part of the res gestae. 11 Our careful scrutiny of the records of this case and exacting evaluation of the testimonies of the witnesses lead to nothing but an unearthing of the scant and unreliable evidence for the prosecution. On the basis thereof, Our minds cannot rest easy upon the certainty of guilt of the accused. He may without doubt be an evil man, but for as long as the evidence against him is not enough to satisfy the degree of proof required for conviction, Our feelings for Raylin and Our human prejudice against her defiler, who has certainly descended to the level of a beast, must not color Our judgment. In the instant case, the prosecution relied solely on the testimonies of Carmelita Galzote and Dr. Veneracion. The victim herself was not, for obvious reasons, called to the witness stand to testify. Being only 2 1/2-years old at that time, she was disqualified from testifying as a witness under Section 21, Rule 130 of the Rules of Court; by reason of her tender age, she was incapable of perceiving the facts respecting her ordeal and intelligently making known such perceptions or narrating them truthfully.

In its decision, the court a quo stated that the prosecution opted to dispense with her testimony "on account of her tender age and inability to communicate coherently." 29 Carmelita was not an eyewitness to the alleged rape. She frankly admitted that the only piece of evidence she has against the accused is Raylin's response of "Tatay" to her question "Bakit anak, bakit dumudugo ang kiki mo?" Thus, upon being questioned by the trial court, she offered the following answers: It is clear from Carmelita's answers that she merely concluded that the bleeding of Raylin's private organ resulted from carnal knowledge. Carnal knowledge has been defined as the act of a man having sexual bodily connections with a woman; sexual intercourse. 31 An essential ingredient thereof is the penetration of the female sexual organ by the sexual organ of the male. In cases of rape, however, mere proof of the entrance of the male organ into the labia of the pudendum 32 or lips of the female organ 33 is sufficient to constitute a basis for conviction. There exists no credible and competent evidence to show carnal knowledge in this case. No one, save perhaps Raylin, saw whatever it is the accused did to her. The fresh laceration of Raylin's hymen and the fact that she had lost her virginity do not at once support a conclusion that they were caused sexual intercourse. It is to be noted that Dr. Veneracion did not categorically testify that the injury in the hymen could have been caused by a male organ; as a matter of fact, the prosecutor did not even ask him if it is possible that it could be caused by such an organ. The trial court, however, gave undue weight to the word "Tatay" which Raylin uttered in answer to Carmelita's question "Bakit anak, bakit dumudugo ang kiki mo?" Although such a declaration is hearsay because Raylin was not presented as a witness and could not be cross-examined, the trial court considered her alleged utterance as part of the res gestae and, therefore, admissible in evidence as an exception to the hearsay rule under Section 42, Rule 130 of the Rules of Court. We have already mentioned the requisites for the admission of evidence as part of the res gestae. In People vs. Ner, 38 We ruled: "All that is required for the admissibility of a given statement as part of the res gestae, is that it be made under the influence of a startling event witnessed by the person who made the declaration before he had time to think and make up a story, or to concoct or to contrive a falsehood, or to fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending circumstances." The first two requisites of admissibility of a declaration as part of res gestae may be conceded in this case. There are, however, serious doubts as to the existence of the third requirement. Due precisely to the incompetence of Raylin, which flows from her inability to communicate coherently, it is unclear if her utterance of the word "Tatay" has reference to sexual intercourse. Finally, this Court concludes that the weakness of the accused's defense of alibi, which the Solicitor General stresses to further

bolster the case for the prosecution, is entirely irrelevant. Since the prosecution has failed to prove the accused's guilt beyond reasonable doubt, he is, as a matter of right, entitled to an acquittal. WHEREFORE, judgment is hereby rendered REVERSING the Decision of Branch 40 of the Regional Trial Court of Palayan City in Criminal Case No. 0135-P and ACQUITTING, on the ground of reasonable doubt, the accused VICTOR BORMEO. His immediate release from detention is hereby ordered. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADEL TUANGCO, NELSON PINEDA, JR. and SONNY TUANGCO, accused. ADEL TUANGCO and SONNY TUANGCO, accused-appellants. In the morning of January 4, 1995, the naked cadaver of Aurea Eugenio, a bookkeeper employed by the Centro Escolar University Credit Cooperative in Manila was found lying beside a creek about 50 meters away from the national highway in Apalit. Her body bore multiple stab wounds and her private parts were bloodied and showed signs of sexual abuse. The principal evidence against the accused consisted of the testimony of an eyewitness, Silvestre Sanggalan, a deaf-mute. He gave his testimony through sign language, which was interpreted by a sign language expert. The court's summation of the evidence is as follows: "On January 3, 1995 at around 6:00 o'clock in the evening, he was inside a 'beer house' along the national highway. He had seven (7) companions at that time. (TSN, July 10, 1995, pp. 55-57). The group consisting of eight (8) persons including the witness arrived at the said place at day time. When nighttime came, witness Sanggalan together with three (3) of his companions left the place and proceeded to a rice field near the highway. (Ibid, p. 58). Sanggalan described and identified the said three (3) other persons as a) tricycle driver with tatoos over his body and scars on his arms; b) a person with a long chin and known as 'Baba' and c) accused Adel Tuangco. Sanggalan stepped down from the witness stand and identified accused Adel Tuangco as one of the three (3) other persons together with whom, he went to the rice field. (Ibid, pp. 5859). The tricycle driver with tatoos over his body and the person with an elongated chin were not inside the court room at the hearing of these cases on July 10, 1995. Accused Adel Tuangco and the person with elongated chin are brothers. (Ibid, p. 60). The group of eight (8) persons were drinking beer and gin inside the 'beer house'. When night time came, Sanggalan, accused Adel Tuangco, the person with tatoos over his body and the one with elongated chin proceeded to the rice field where there was a waiting shed in which they stayed for a while. Inside the waiting shed, the person with tatoos over his body, known as 'Tatoo', and the one with elongated chin, known as 'Baba', took Pidol cough syrup. (Ibid, pp. 61-65). They went to the rice field because they were very drunk. (Ibid, pp. 66). The four (4) stayed at the waiting shed until 8:00 o'clock in the evening. (TSN, July 21 , 1995, p. 12).

The three, accused Adel Tuangco, 'Baba' and 'Tatoo' later left the waiting shed and went to the rice field to follow a girl who was wearing a long hair. Through photographs of the deceased Aurea Eugenio, witness Sanggalan identified her to be the girl whom the three followed into the rice field. (Ibid, pp. 14 and 27-28). As soon as they caught up with the deceased, Tatoo' pushed her. Adel Tuangco got hold of the shoulder bag which the deceased Aurea Eugenio was carrying at that time. 'Baba' and 'Tattoo' then pushed Aurea against a tree and stabbed her with a knife several times on the neck. At this point, Adel Tuangco joined the two and also stabbed the deceased. The deceased fell down. (Ibid, pp. 15-19). After the deceased fell down on the ground, 'Tatoo' inserted a bottle of Pidol cough syrup into her private parts. Then 'Baba' pushed the bottle further into the private parts of the deceased. While the bottle was being pushed, Adel Tuangco was hugging the deceased who at that time was still alive and resisting the assault. Together, the three removed the blouse, bra, skirt and panty of Aurea Eugenio. Adel Tuangco raped the deceased. 'Tatoo' and 'Baba' likewise successively raped Aurea in that order. (Ibid, pp. 19-23). At the time that the three accused were raping Aurea Eugenio, witness Sanggalan was about three and one half (3) meters away from them. While Adel Tuangco was raping the victim, 'Tatoo' and 'Baba' were beside them. When 'Baba' and 'Tatoo' took their respective turns in raping the victim the other two were holding her hands. (Ibid, pp. 24-25). After raping the victim, Adel Tuangco took her bag, 'Tatoo' got her camera and cash money while 'Baba got her ring, earrings and watch. (Ibid, pp. 25-26). After the incident, 'Tatoo' and 'Baba' went to the rice field while Adel Tuangco went to the other direction. (Ibid, p. 29). Earlier, during the incident, Adel Tuangco, 'Tatoo' and 'Baba', on two occasions, asked witness Sanggalan to leave. However, the witness merely hid behind the grasses and trees. (Ibid, p. 30 and TSN, August 7, 1995, p. 31). When recalled to the witness stand on January 17, 1996, Sanggalan identified accused Sonny Tuangco as the one he referred to as 'Baba' The victim Aurea Eugenio, single and a resident of Sitio Dalan Baka, Barangay Sulipan, Apalit Pampanga was working as a bookkeeper in Centro Escolar University Credit Cooperative located at the City of Manila. On January 3, 1995, the first working day of the year, she reported to office bringing with her a Kodak camera to take pictures of her officemates for souvenir. At about 5:00 o'clock in the afternoon of the same day, she told her officemates that she will go to their house in Apalit, Pampanga although she was not scheduled to do so as it was an ordinary week day. She brought with her, the camera and the P3,000.00 cash money to be spent on the occasion of their town fiesta. From the office, she proceeded to the terminal of Victory Liner Bus at Caloocan City, where, at 6:00 o'clock in evening, she boarded Victory Liner Bus No. 272. The body of the victim was already stiff when found by witness Michael Enriquez the following day lying on the rice field owned by his grandfather, Ignacio Enriquez. The body was lying on its back with the hands upraised, the blouse raised upwards and naked from

the waist down. The private parts of the victim had an opening of about two (2) inches and with blood all over it. The fresh lacerations on the hymen of the victim as well as the massive blood clots accumulated within the vaginal canal were caused not only by human penis that penetrated her private parts but by hard foreign object like a bottle. The abrasions on the breast of the victim could have been caused by human bites. The stab wounds located within the neck area of the victim were inflicted by her assailant using a single bladed weapon. The nine (9) stab wounds in the neck induced severe hemorrhage which was the proximate cause of the victim's death. The abrasions and hematomas on the body of the victim are indications of struggling during the sexual attack on the victim."[8] The trial court ruled that the guilt of the accused as charged was established with the required quantum of evidence and concluded that the three accused conspired to commit the crimes charged. The accused were sentenced as follows: "WHEREFORE, the Court finds the accused Adel Tuangco y Dizon and Sonny Tuangco y Dizon guilty beyond reasonable doubt as principals of the crime of theft defined in Article 309 in relation to Article 308 of the Revised Penal Code and of the crime of Rape with Homicide defined in Article 335, as amended, of the same Code and hereby renders judgment as follows: In discrediting the testimony of the deaf-mute eyewitness, accusedappellant points out that because Silvestre Sanggalan has had no formal schooling in a special school for deaf-mutes, the possibility that resort to conjectures and surmises, brought about by overzealousness to understand what his witness really wanted to say could not be discounted. Thus, accused-appellant cites certain portions of Sanggalan's testimony which appeared unclear, e.g., the witness admitted that the place where the incident happened was "very dark", and he was inconsistent as to who, between Adel Tuangco or Jun Tatoo, was the first to rape the victim. Thus, his handicap prevented a truthful narration of what really transpired. After a very careful examination of the evidence of record, we resolve to affirm the judgment of conviction. We find no cogent justification to disturb or set aside the finding of the trial court upholding the credibility of the deaf-mute witness, on the following rationalization: "This Court, cognizant of the physical handicap of the eyewitness Silvestre Sanggalan, carefully scrutinized his testimony and noted that the same were made, on several occasions from July 10, 1995 when he was called for the first time to testify until July 5, 1996 when he was recalled for the purpose of cross-examination on behalf of accused Sonny Tuangco, in a candid and straightforward manner. While the Court observes minor inconsistencies in his declarations, these are not reasons to render his testimony incredible. On the contrary, it is well-established that minor inconsistencies in the testimony of a witness are indications that the same is not rehearsed and all the more should be considered credible. Thus, discrepancies in minor details indicate veracity rather

than prevarication and only tend to bolster the probative value of such testimony. (People vs. Mocasa, 229 SCRA 422). This Court likewise evaluated very carefully, the qualifications and competence of Eva Sangco, the sign language expert utilized by the prosecution and found the same to be sufficient to put on record with accuracy, the declarations being made by witness Sanggalan on the witness stand. According to Eva Sangco, sign language experts have different mode of communications. These are a) oral method b) simultaneous method c) pantomine d) reverse interpretation e) speech reading f) natural signs and gestures and g) interactive writings which are more on dramatization and drawing illustrations. In the interpretation of the declarations of witness Sanggalan, Eva Sangco employed the natural homemade sign method. Eva Sangco has undergone several trainings on this particular method. In People vs. Dominguez, 217 SCRA 170, it was held that even a fact of prior criminal conviction alone does not suffice to discredit a witness. And in People vs. Tanco, 218 SCRA 494, it was held that the mere pendency of a criminal case against a person does not disqualify him from becoming a witness. For the test to measure the value of the testimony of a witness is whether or not such is in conformity to knowledge and consistent with experience of mankind. (People vs. Morre, 217 SCRA 219). This Court finds it unnecessary to reiterate the earlier discussion as to why it gives credence to the testimony of witness Sanggalan. The theory of the accused-appellant that Sanggalan "could not truthfully and convincingly convey what really transpired on that fateful night" because he had no formal schooling in a school for special persons like him and the interpreter was not the one who had taught him is not tenable. A deaf-mute is not incompetent as a witness. All persons who can perceive, and perceiving, can make known their perception to others, may be witnesses.[12] Deaf-mutes are competent witnesses where they (1) can understand and appreciate the sanctity of an oath; (2) can comprehend facts they are going to testify on; and (3) can communicate their ideas through a qualified interpreter.[13] Thus, in People vs. De Leon[14] and People vs. Sasota,[15] the accused was convicted on the basis of the testimony of a deaf-mute. Although in People vs. Bustos[16] the testimony of a deaf-mute was rejected, this was because there were times during his testimony that the interpreter could not make out what the witness meant by the signs she used. In the instant case, the interpreter was a certified sign language interpreter with twenty-two (22) years teaching experience at the Philippine School for the Deaf, had exposure in television programs and had testified in five other previous court proceedings. She possessed special education and training for interpreting sign language. The trial court evaluated her competence to put on record with accuracy the declaration made by witness Sanggalan on the witness stand, and she testified that she employed the natural or homemade sign method.[17] Needless to stress, the manner in which the examination of a deaf-mute should be conducted is a matter to be regulated and controlled by the trial court in its discretion, and the method adopted will not be reviewed by the appellate court in the absence of a showing that the

complaining party was in some way injured by reason of the particular method adopted.[18] The imperfections or inconsistencies cited in appellants' brief arise from the fact that there is some difficulty in eliciting testimony where the witness is deaf-mute, but these do not detract from the credibility of his testimony, much less justify the total rejection of the same. What is material is that he knew personally the accused-appellants, was with them on the fateful night when the incident happened, and had personally witnessed the rape-slay and theft three and (3 ) meters away from the scene. He did not waver in the identification of the three accused despite rigorous cross-examination, and positively pointed to the accused-appellants as the persons who raped and killed Eugenio and took her personal effects.[19] The trial court's assessment of the credibility of Sanggalan, whose testimony was found to be candid and straightforward, deserves the highest respect of this Court. WHEREFORE, the judgment convicting Adel Tuangco y Dizon and Sonny Tuangco y Dizon for the crimes of theft and rape with homicide in Criminal Case Nos. 95-1609(M) and 95-1610(M) is hereby affirmed with the modification that the civil indemnity ex delicto is increased to P100,000.00. Upon finality of this decision, let certified true copies thereof, as well as the records of this case, be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. TERESITA P. BORDALBA, petitioner, vs. COURT OF APPEALS, HEIRS OF NICANOR JAYME, namely, CANDIDA FLORES, EMANNUEL JAYME, DINA JAYME DEJORAS, EVELIA JAYME, and GESILA JAYME; AND HEIRS OF ASUNCION JAYME-BACLAY, namely, ANGELO JAYMEBACLAY, CARMEN JAYME-DACLAN and ELNORA JAYME BACLAY, respondents. The instant controversy stemmed from Lot No. 1242 (Lot No. 799-C) with an area of 1,853 square meters and located at Barrio Looc, Mandaue City. The subject lot is part of a parcel of land situated on the corner of Mabini and Plaridel Streets in Mandaue City, and originally owned by the late spouses Carmeno Jayme and Margarita Espina de Jayme. In 1947, an extra-judicial partition,[3] written in the Spanish language was executed, describing said parcel of land as 1) 1/3 in favor of - (a) their grandchild Nicanor Jayme, the deceased spouse of private respondent Candida Flores and the father of private respondents Emmanuel, Dina, Evelia and Gesila, all surnamed Jayme; and (b) their grandchild Asuncion Jayme-Baclay, whose heirs are private respondents Angelo Baclay, Elnora Baclay and Carmen Jayme-Daclan; 2) 1/3 to their daughter Elena Jayme Vda. de Perez, mother of petitioner Teresita P. Bordalba; and 3) 1/3 to an unidentified party. Built on the land adjudicated to the heirs of the spouses is Nicanor Jaymes house, which his family occupied since 1945.

Sometime in July 1964, Elena Jayme Vda. de Perez, petitioners mother, filed with the Regional Trial Court of Cebu, Branch IV, an amended application for the registration[5] of the lot described with the following boundaries: Elena Jayme Vda. de Perez alleged that the lot sought to be registered was originally a part of a land owned by her late parents, the spouses Carmeno Jayme and Margarita Espina de Jayme; and that 1/3 of said land was adjudicated to her in an extra-judicial partition. She further stated that a portion of the lot for which title is applied for is occupied by Nicanor Jayme with her permission. Consequently, Nicanor Jayme and Asuncion Jayme-Baclay filed their opposition[6] contending that said application included the 1/3 portion inherited by them in the 1947 extra-judicial partition. The case was, however, dismissed for lack of interest of the parties. Subsequently, petitioner filed with the Bureau of Lands of Cebu City an application[7] dated January 10, 1979, seeking the issuance of a Free Patent over the same lot subject of the aborted application of her mother, Elena Jayme, now known as Lot No. 1242 (799-C), On April 16, 1980, petitioner was successfully granted Free Patent No. (VII-I) 11421 and Original Certificate of Title No. 0-571 (FP) over said lot.[9] Thereafter, petitioner caused the subdivision and titling of Lot No. 1242 (799-C), into 6 lots,[10] as well as the disposition of two parcels thereof, thus: Upon learning of the issuance in favor of petitioner of the aforesaid Free Patent and Original Certificate of Title over Lot No. 1242, as well as the conveyances made by petitioner involving the lot subject of the controversy, private respondents filed with the Regional Trial Court of Mandaue City, Branch 28, the instant complaint against petitioner Teresita Bordalba, spouses Genaro U. Cabahug, and Rita Capala, Rural Bank of Mandaue and the Director of the Bureau of Lands. In the said complaint, private respondents prayed that Free Patent No. (VII-I) 11421 and OCT No. 0-571 (FP), as well as TCT Nos. 2277122776 be declared void and ordered cancelled. Private respondents also prayed that they be adjudged owners of Lot No. 1242 (799-C), and that spouses Genaro V. Cabahug and Rita Capala as well as the Rural Bank of Mandaue be declared buyers and mortgagee in bad faith, respectively. In addition, they asked the court to award them actual, compensatory, and moral damages plus attorneys fees in the amount of P20,000.00. Petitioner, on the other hand, averred that Lot No. 1242 (799-C) was acquired by her through purchase from her mother,[11] who was in possession of the lot in the concept of an owner since 1947. In her answer, petitioner traced her mothers ownership of the lot partly from the 1947 deed of extra-judicial partition presented by private respondents,[12] and claimed that Nicanor Jayme, and Candida Flores occupied a portion of Lot No. 1242 (799-C) by mere tolerance of her mother. On cross-examination, petitioner admitted that the properties of the late Carmeno Jayme and Margarita Espina de Jayme were partitioned by their heirs in 1947, but claimed that she was not aware of the existence of said Deed of Extra-judicial

Partition. She, however, identified one of the signatures in the said Deed to be the signature of her mother.[13] On May 28, 1990, the trial court, finding that fraud was employed by petitioner in obtaining Free Patent No. (VII-I) 11421 and OCT No. 0571 (FP), declared said patent and title void and ordered its cancellation. However, it declared that spouses Genaro U. Cabahug and Rita Capala as well as the Rural Bank of Mandaue are purchasers and mortgagee in good faith, respectively; and consequently upheld as valid the sale of Lot No. 1242-A covered by Transfer Certificate of Title No. 22771 (FP) to spouses Genaro U. Cabahug and Rita Capala, and the mortgage of Lot No. 1242-B covered by TCT No. 22772 in favor of the Rural Bank of Mandaue. The dispositive portion of the decision reads: Both petitioner Teresita Bordalba and private respondents appealed to the Court of Appeals, which affirmed with modification the decision of the trial court. It ruled that since private respondents are entitled only to 1/3 portion of Lot No. 1242 (799-C), petitioner should be ordered to reconvey 1/3 of Lot No. 1242 (799-C) to private respondents. Thus, petitioner filed the instant petition, assailing the decision of the Court of Appeals. Petitioner contends that the testimonies given by the witnesses for private respondents which touched on matters occurring prior to the death of her mother should not have been admitted by the trial court, as the same violated the dead mans statute. Likewise, petitioner questions the right of private respondents to inherit from the late Nicanor Jayme and Asuncion Jayme-Baclay, as well as the identity between the disputed lot and the parcel of land adjudicated in the Deed of Extra-judicial Partition. The contentions are without merit. It is doctrinal that findings of facts of the Court of Appeals upholding those of the trial court are binding upon this Court. While there are exceptions to this rule, petitioner has not convinced us that this case falls under one of them.[16] The Court sees no reason to deviate from the findings of the trial court that petitioner resorted to fraud and misrepresentation in obtaining a free patent and title over the lot under scrutiny. The Court of Appeals correctly pointed out that misrepresentation tainted petitioners application, insofar as her declaration that the land applied for was not occupied or claimed by any other person. Her declaration is belied by the extra-judicial partition which she acknowledged, her mothers aborted attempt to have the lot registered, private respondents predecessors-in-interests opposition thereto, and by the occupancy of a portion of the said lot by Nicanor Jayme and his family since 1945. As to the alleged violation of the dead mans statute,*18+ suffice it to state that said rule finds no application in the present case. The dead mans statute does not operate to close the mouth of a witness as to any matter of fact coming to his knowledge in any other way than through personal dealings with the deceased person, or communication made by the deceased to the witness.[19]

Since the claim of private respondents and the testimony of their witnesses in the present case is based, inter alia, on the 1947 Deed of Extra-judicial Partition and other documents, and not on dealings and communications with the deceased, the questioned testimonies were properly admitted by the trial court. WHEREFORE, in view of all the foregoing, the October 20, 1992 Decision of the Court of Appeals in CA-G.R. CV No. 27419, and the May 28, 1990 Decision of the Regional Trial Court of Mandaue City, Branch 28, in Civil Case No. MAN-386, insofar as it relates to the recognition of the 1/3 share of private respondents over Lot No. 1242 (799-C) is AFFIRMED. The case is remanded to the trial court in order to determine what part of Lot No. 1242 (799-C) is included in the parcel of land adjudicated in the 1947 Deed of Extrajudicial Partition to the predecessors-in-interest of the parties herein. ENRIQUE RAZON, petitioner, vs. INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his capacity as Administrator of the Estate of the Deceased JUAN T. CHUIDIAN, respondents. The main issue in these consolidated petitions centers on the ownership of 1,500 shares of stock in E. Razon, Inc. covered by Stock Certificate No. 003 issued on April 23, 1966 and registered under the name of Juan T. Chuidian in the books of the corporation. The then Court of First Instance of Manila, now Regional Trial Court of Manila, declared that Enrique Razon, the petitioner in G.R. No. 74306 is the owner of the said shares of stock. The then Intermediate Appellate Court, now Court of Appeals, however, reversed the trial court's decision and ruled that Juan T. Chuidian, the deceased father of petitioner Vicente B. Chuidian in G.R. No. 74315 is the owner of the shares of stock. Both parties filed separate motions for reconsideration. Enrique Razon wanted the appellate court's decision reversed and the trial court's decision affirmed while Vicente Chuidian asked that all cash and stock dividends and all the pre-emptive rights accruing to the 1,500 shares of stock be ordered delivered to him. The appellate court denied both motions. Hence, these petitions. Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the purpose of bidding for the arrastre services in South Harbor, Manila. The incorporators consisted of Enrique Razon, Enrique Valles, Luisa M. de Razon, Jose Tuason, Jr., Victor Lim, Jose F. Castro and Salvador Perez de Tagle. On April 23, 1966, stock certificate No. 003 for 1,500 shares of stock of defendant corporation was issued in the name of Juan T. Chuidian. On the basis of the 1,500 shares of stock, the late Juan T. Chuidian and after him, the plaintiff-appellant, were elected as directors of E. Razon, Inc. Both of them actually served and were paid compensation as directors of E. Razon, Inc.

From the time the certificate of stock was issued on April 1966 up to April 1971, Enrique Razon had not questioned the ownership by Juan T. Chuidian of the shares of stock in question and had not brought any action to have the certificate of stock over the said shares cancelled. The certificate of stock was in the possession of defendant Razon who refused to deliver said shares to the plaintiff, until the same was surrendered by defendant Razon and deposited in a safety box in Philippine Bank of Commerce. Defendants allege that after organizing the E. Razon, Inc., Enrique Razon distributed shares of stock previously placed in the names of the withdrawing nominal incorporators to some friends including Juan T. Chuidian Stock Certificate No. 003 covering 1,500 shares of stock upon instruction of the late Chuidian on April 23, 1986 was personally delivered by Chuidian on July 1, 1966 to the Corporate Secretary of Attorney Silverio B. de Leon who was himself an associate of the Chuidian Law Office (Exhs. C & 11). Since then, Enrique Razon was in possession of said stock certificate even during the lifetime of the late Chuidian, from the time the late Chuidian delivered the said stock certificate to defendant Razon until the time (sic) of defendant Razon. By agreement of the parties (sic) delivered it for deposit with the bank under the joint custody of the parties as confirmed by the trial court in its order of August 7, 1971. Thus, the 1,500 shares of stook under Stock Certificate No. 003 were delivered by the late Chuidian to Enrique because it was the latter who paid for all the subscription on the shares of stock in the defendant corporation and the understanding was that he (defendant Razon) was the owner of the said shares of stock and was to have possession thereof until such time as he was paid therefor by the other nominal incorporators/stockholders (TSN., pp. 4, 8, 10, 24-25, 25-26, 28-31, 31-32, 60, 66-68, July 22, 1980, Exhs. "C", "11", "13" "14"). (Ro11o 74306, pp. 66-68) In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's decision on its alleged misapplication of the dead man's statute rule under Section 20(a) Rule 130 of the Rules of Court. According to him, the "dead man's statute" rule is not applicable to the instant case. Moreover, the private respondent, as plaintiff in the case did not object to his oral testimony regarding the oral agreement between him and the deceased Juan T. Chuidian that the ownership of the shares of stock was actually vested in the petitioner unless the deceased opted to pay the same; and that the petitioner was subjected to a rigid cross examination regarding such testimony. Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules on Evidence) States: Sec. 20. Disqualification by reason of interest or relationship The following persons cannot testify as to matters in which they are interested directly or indirectly, as herein enumerated.

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact accruing before the death of such deceased person or before such person became of unsound mind." (Emphasis supplied) xxx xxx xxx

It is also settled that the court cannot disregard evidence which would ordinarily be incompetent under the rules but has been rendered admissible by the failure of a party to object thereto. Thus: Since then, the Petitioner had in his possession the certificate of stock until the time, he delivered it for deposit with the Philippine Bank of Commerce under the parties' joint custody pursuant to their agreement as embodied in the trial court's order. The petitioner maintains that his aforesaid oral testimony as regards the true nature of his agreement with the late Juan Chuidian on the 1,500 shares of stock of E. Razon, Inc. is sufficient to prove his ownership over the said 1,500 shares of stock. The petitioner's contention is not correct. In the instant case, there is no dispute that the questioned 1,500 shares of stock of E. Razon, Inc. are in the name of the late Juan Chuidian in the books of the corporation. Moreover, the records show that during his lifetime Chuidian was ellected member of the Board of Directors of the corporation which clearly shows that he was a stockholder of the corporation. (See Section 30, Corporation Code) From the point of view of the corporation, therefore, Chuidian was the owner of the 1,500 shares of stock. In such a case, the petitioner who claims ownership over the questioned shares of stock must show that the same were transferred to him by proving that all the requirements for the effective transfer of shares of stock in accordance with the corporation's by laws, if any, were followed (See Nava v. Peers Marketing Corporation, 74 SCRA 65 [1976]) or in accordance with the provisions of law. LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners, vs. LAMBERTO T. CHUA, respondent. On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint against Lilibeth Sunga Chan (hereafter petitioner Lilibeth) and Cecilia Sunga (hereafter petitioner Cecilia), daughter and wife, respectively of the deceased Jacinto L. Sunga (hereafter Jacinto), for Winding Up of Partnership Affairs, Accounting, Appraisal and Recovery of Shares and Damages with Writ of Preliminary Attachment with the Regional Trial Court, Branch 11, Sindangan, Zamboanga del Norte. Respondent alleged that in 1977, he verbally entered into a partnership with Jacinto in the distribution of Shellane Liquefied Petroleum Gas (LPG) in Manila. For business convenience, respondent and Jacinto allegedly agreed to register the business name of their partnership, SHELLITE GAS APPLIANCE CENTER (hereafter Shellite), under the name of Jacinto as a sole proprietorship. Respondent allegedly delivered his initial capital contribution of P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as his counterpart contribution, with the intention that the profits would be equally divided between them. The partnership allegedly had Jacinto as manager, assisted by Josephine Sy (hereafter Josephine), a sister of the wife of respondent, Erlinda Sy. As compensation, Jacinto would receive a managers fee or remuneration of 10% of the gross profit and

The purpose of the rule has been explained by this Court in this wise: The reason for the rule is that if persons having a claim against the estate of the deceased or his properties were allowed to testify as to the supposed statements made by him (deceased person), many would be tempted to falsely impute statements to deceased persons as the latter can no longer deny or refute them, thus unjustly subjecting their properties or rights to false or unscrupulous claims or demands. The purpose of the law is to "guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party." (Tongco v. Vianzon, 50 Phil. 698; Go Chi Gun, et al. v. Co Cho, et al., 622 [1955]) The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the administrator or its representative of an estate upon a claim against the estate of the deceased person. (See Tongco v. Vianzon, 50 Phil. 698 [1927]) In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein) to the affect that the late Juan Chuidian, (the father of private respondent Vicente Chuidian, the administrator of the estate of Juan Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that the 1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant unless the deceased Juan Chuidian opted to pay the same which never happened. The case was filed by the administrator of the estate of the late Juan Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the late Juan T. Chuidian. It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the rule. The case was not filed against the administrator of the estate, nor was it filed upon claims against the estate. Furthermore, the records show that the private respondent never objected to the testimony of the petitioner as regards the true nature of his transaction with the late elder Chuidian. The petitioner's testimony was subject to cross-examination by the private respondent's counsel. Hence, granting that the petitioner's testimony is within the prohibition of Section 20(a), Rule 130 of the Rules of Court, the private respondent is deemed to have waived the rule. We ruled in the case of Cruz v. Court of Appeals (192 SCRA 209 [1990]):

Josephine would receive 10% of the net profits, in addition to her wages and other remuneration from the business. On January 30, 1993, petitioners filed their Answer with Compulsory Counterclaims, contending that they are not liable for partnership shares, unreceived income/profits, interests, damages and attorneys fees, that respondent does not have a cause of action against them, and that the trial court has no jurisdiction over the nature of the action, the SEC being the agency that has original and exclusive jurisdiction over the case. As counterclaim, petitioner sought attorneys fees and expenses of litigation.

Allegedly, from the time that Shellite opened for business on July 8, 1977, its business operation went quite well and was profitable. Respondent claimed that he could attest to the success of their business because of the volume of orders and deliveries of filled Shellane cylinder tanks supplied by Pilipinas Shell Petroleum Corporation. While Jacinto furnished respondent with the merchandise inventories, balance sheets and net worth of Shellite from 1977 to 1989, respondent however suspected that the amount indicated in these documents were understated and undervalued by Jacinto and Josephine for their own selfish reasons and for tax avoidance.

On August 2, 1993, petitioner filed a second Motion to Dismiss this time on the ground that the claim for winding up of partnership affairs, accounting and recovery of shares in partnership affairs, accounting and recovery of shares in partnership assets /properties should be dismissed and prosecuted against the estate of deceased Jacinto in a probate or intestate proceeding.

Upon Jacintos death in the later part of 1989, his surviving wife, petitioner Cecilia and particularly his daughter, petitioner Lilibeth, took over the operations, control, custody, disposition and management of Shellite without respondents consent.

On August 16, 1993, the trial court denied the second motion to dismiss for lack of merit.

Despite respondents repeated demands upon petitioners for accounting, inventory, appraisal, winding up and restitution of his net shares in the partnership, petitioners failed to comply. Petitioner Lilibeth allegedly continued the operations of Shellite, converting to her own use and advantage its properties.

On November 26, 1993, petitioners filed their Petition for Certiorari, Prohibition and Mandamus with the Court of Appeals docketed as CA-G.R. SP No. 32499 questioning the denial of the motion to dismiss.

On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out of alibis and reasons to evade respondents demands, she disbursed out of the partnership funds the amount of P200,000.00 and partially paid the same to respondent. Petitioner Lilibeth allegedly informed respondent that the P200,000.00 represented partial payment of the latters share in the partnership, with a promise that the former would make the complete inventory and winding up of the properties of the business establishment. Despite such commitment, petitioners allegedly failed to comply with their duty to account, and continued to benefit from the assets and income of Shellite to the damage and prejudice of respondent.

On November 29, 1993, petitioners filed with the trial court a Motion to Suspend Pre-trial Conference.

On December 13, 1993, the trial court granted the motion to suspend pre-trial conference.

On November 15, 1994, the Court of Appeals denied the petition for lack of merit.

On December 19, 1992, petitioners filed a Motion to Dismiss on the ground that the Securities and Exchange Commission (SEC) in Manila, not the Regional Trial Court in Zambaonga del Norte had jurisdiction over the action. Respondent opposed the motion to dismiss.

On January 16, 1995, this Court denied the petition for review on certiorari filed by petitioner, as petitioners failed to show that a reversible error was committed by the appellate court."[2]

On January 12, 1993, the trial court finding the complaint sufficient in form and substance denied the motion to dismiss.

On February 20, 1995, entry of judgment was made by the Clerk of Court and the case was remanded to the trial court on April 26, 1995.

On September 25, 1995, the trial court terminated the pre-trial conference and set the hearing of the case on January 17, 1996. Respondent presented his evidence while petitioners were considered to have waived their right to present evidence for their failure to attend the scheduled date for reception of evidence despite notice.

(6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust and in bad faith and hold them liable to the plaintiff the sum of P50,000.00 as moral and exemplary damages; and,

(7) DIRECTING them to reimburse and pay the sum of P25,000.00 as attorneys (sic) and P25,00.00 as litigation expenses.

On October 7, 1997, the trial court rendered its Decision ruling for respondent. The dispositive portion of the Decision reads:

NO special pronouncements as to COSTS.

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, as follows:

SO ORDERED.*3+

(1) DIRECTING them to render an accounting in acceptable form under accounting procedures and standards of the properties, assets, income and profits of the Shellite Gas Appliance Center since the time of death of Jacinto L. Sunga, from whom they continued the business operations including all businesses derived from the Shellite Gas Appliance Center; submit an inventory, and appraisal of all these properties, assets, income, profits, etc. to the Court and to plaintiff for approval or disapproval;

On October 28, 1997, petitioners filed a Notice of Appeal with the trial court, appealing the case to the Court of Appeals.

On January 31, 2000, the Court of Appeals dismissed the appeal. The dispositive portion of the Decision reads:

WHEREFORE, the instant appeal is dismissed. The appealed decision is AFFIRMED in all respects.*4+ (2) ORDERING them to return and restitute to the partnership any and all properties, assets, income and profits they misapplied and converted to their own use and advantage that legally pertain to the plaintiff and account for the properties mentioned in pars. A and B on pages 4-5 of this petition as basis;

On May 23, 2000, the Court of Appeals denied the motion for reconsideration filed by petitioner.

(3) DIRECTING them to restitute and pay to the plaintiff shares and interest of the plaintiff in the partnership of the listed properties, assets and good will (sic) in schedules A, B and C, on pages 4-5 of the petition;

Hence, this petition wherein petitioner relies upon the following grounds:

(4) ORDERING them to pay the plaintiff earned but unreceived income and profits from the partnership from 1988 to may 30, 1992, when the plaintiff learned of the closure of the store the sum of P35,000.00 per month, with legal rate of interest until fully paid;

1. The Court of Appeals erred in making a legal conclusion that there existed a partnership between respondent Lamberto T. Chua and the late Jacinto L. Sunga upon the latters invitation and offer and that upon his death the partnership assets and business were taken over by petitioners.

(5) ORDERING them to wind up the affairs of the partnership and terminate its business activities pursuant to law, after delivering to the plaintiff all the interest, shares, participation and equity in the partnership, or the value thereof in money or moneys worth, if the properties are not physically divisible;

2. The Court of Appeals erred in making the legal conclusion that laches and/or prescription did not apply in the instant case.

3. The Court of Appeals erred in making the legal conclusion that there was competent and credible evidence to warrant the finding of a partnership, and assuming arguendo that indeed there was a

partnership, the finding of highly exaggerated amounts or values in the partnership assets and profits.*5+

Petitioners question the correctness of the finding of the trial court and the Court of Appeals that a partnership existed between respondent and Jacinto from 1977 until Jacintos death. In the absence of any written document to show such partnership between respondent and Jacinto, petitioners argue that these courts were proscribed from hearing the testimonies of respondent and his witness, Josephine, to prove the alleged partnership three years after Jacintos death. To support this argument, petitioners invoke the Dead Mans Statute or Survivorship Rule under Section 23, Rule 130 of the Rules of Court that provides:

The Dead Mans Statute provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.[9] But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:

1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted.

2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind;

SEC. 23. Disqualification by reason of death or insanity of adverse party.-- Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person, or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind;

4. His testimony refers to any matter of fact which occurred before the death of such deceased person or before such person became of unsound mind.*10+

Petitioners thus implore this Court to rule that the testimonies of respondent and his alter ego, Josephine, should not have been admitted to prove certain claims against a deceased person (Jacinto), now represented by petitioners.

Two reasons forestall the application of the Dead Mans Statute to this case.

We are not persuaded.

A partnership may be constituted in any form, except where immovable property or real rights are contributed thereto, in which case a public instrument shall be necessary.[6] Hence, based on the intention of the parties, as gathered from the facts and ascertained from their language and conduct, a verbal contract of partnership may arise.[7] The essential points that must be proven to show that a partnership was agreed upon are (1) mutual contribution to a common stock, and (2) a joint interest in the profits.[8] Understandably so, in view of the absence of a written contract of partnership between respondent and Jacinto, respondent resorted to the introduction of documentary and testimonial evidence to prove said partnership. The crucial issue to settle then is whether or not the Dead Mans Statute applies to this case so as to render inadmissible respondents testimony and that of his witness, Josephine.

First, petitioners filed a compulsory counterclaim[11] against respondent in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from the ambit of the Dead Mans Statute.*12+ Well entrenched is the rule that when it is the executor or administrator or representatives of the estate that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim.[13] Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of fact occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased.[14]

Second, the testimony of Josephine is not covered by the Dead Mans Statute for the simple reason that she is not a party or assignor of a party to a case or persons in whose behalf a case is prosecuted. Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners insistence that Josephine is the alter ego of respondent does not make her an assignor because the term assignor of a party means assignor of a cause of action which has arisen, and not the assignor of a right assigned before any

cause of action has arisen.*15+ Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff.

We are not convinced by petitioners allegation that Josephines testimony lacks probative value because she was allegedly coerced by respondent, her brother-in-law, to testify in his favor. Josephine merely declared in court that she was requested by respondent to testify and that if she were not requested to do so she would not have testified. We fail to see how we can conclude from this candid admission that Josephines testimony is involuntary when she did not in any way categorically say that she was forced to be a witness of respondent. Also, the fact that Josephine is the sister of the wife of respondent does not diminish the value of her testimony since relationship per se, without more, does not affect the credibility of witnesses.[16]

in this case, it was after Jacintos death that respondent as the surviving partner had the right to an account of his interest as against petitioners. It bears stressing that while Jacintos death dissolved the partnership, the dissolution did not immediately terminate the partnership. The Civil Code[23] expressly provides that upon dissolution, the partnership continues and its legal personality is retained until the complete winding up of its business, culminating in its termination.[24]

Petitioners reliance alone on the Dead Mans Statute to defeat respondents claim cannot prevail over the factual findings of the trial court and the Court of Appeals that a partnership was established between respondent and Jacinto. Based not only on the testimonial evidence, but the documentary evidence as well, the trial court and the Court of Appeals considered the evidence for respondent as sufficient to prove the formation of a partnership, albeit an informal one.

In a desperate bid to cast doubt on the validity of the oral partnership between respondent and Jacinto, petitioners maintain that said partnership that had an initial capital of P200,000.00 should have been registered with the Securities and Exchange Commission (SEC) since registration is mandated by the Civil Code. True, Article 1772 of the Civil Code requires that partnerships with a capital of P3,000.00 or more must register with the SEC, however, this registration requirement is not mandatory. Article 1768 of the Civil Code[25] explicitly provides that the partnership retains its juridical personality even if it fails to register. The failure to register the contract of partnership does not invalidate the same as among the partners, so long as the contract has the essential requisites, because the main purpose of registration is to give notice to third parties, and it can be assumed that the members themselves knew of the contents of their contract.[26] In the case at bar, noncompliance with this directory provision of the law will not invalidate the partnership considering that the totality of the evidence proves that respondent and Jacinto indeed forged the partnership in question.

Notably, petitioners did not present any evidence in their favor during trial. By the weight of judicial precedents, a factual matter like the finding of the existence of a partnership between respondent and Jacinto cannot be inquired into by this Court on review.[17] This Court can no longer be tasked to go over the proofs presented by the parties and analyze, assess and weigh them to ascertain if the trial court and the appellate court were correct in according superior credit to this or that piece of evidence of one party or the other.[18] It must be also pointed out that petitioners failed to attend the presentation of evidence of respondent. Petitioners cannot now turn to this Court to question the admissibility and authenticity of the documentary evidence of respondent when petitioners failed to object to the admissibility of the evidence at the time that such evidence was offered.[19]

ZENAIDA M. SANTOS, petitioner, vs. CALIXTO SANTOS, ALBERTO SANTOS, ROSA SANTOS-CARREON and ANTONIO SANTOS, respondents. Petitioner Zenaida M. Santos is the widow of Salvador Santos, a brother of private respondents Calixto, Alberto, Antonio, all surnamed Santos and Rosa Santos-Carreon. The spouses Jesus and Rosalia Santos owned a parcel of land registered under TCT No. 27571 with an area of 154 square meters, located at Sta. Cruz Manila. On it was a four-door apartment administered by Rosalia who rented them out. The spouses had five children, Salvador, Calixto, Alberto, Antonio and Rosa. On January 19, 1959, Jesus and Rosalia executed a deed of sale of the properties in favor of their children Salvador and Rosa. TCT No. 27571 became TCT No. 60819. Rosa in turn sold her share to Salvador on November 20, 1973 which resulted in the issuance of a new TCT No. 113221. Despite the transfer of the property to Salvador, Rosalia continued to lease receive rentals form the apartment units.1wphi1.nt

With regard to petitioners insistence that laches and/or prescription should have extinguished respondents claim, we agree with the trial court and the Court of Appeals that the action for accounting filed by respondent three (3) years after Jacintos death was well within the prescribed period. The Civil Code provides that an action to enforce an oral contract prescribes in six (6) years[20] while the right to demand an accounting for a partners interest as against the person continuing the business accrues at the date of dissolution, in the absence of any contrary agreement.[21] Considering that the death of a partner results in the dissolution of the partnership[22],

On November 1, 1979, Jesus died. Six years after or on January 9, 1985, Salvador died, followed by Rosalia who died the following month. Shortly after, petitioner Zenaida, claiming to be Salvador's heir, demanded the rent from Antonio Hombrebueno,2 a tenant of Rosalia. When the latter refused to pay, Zenaida filed and ejectment suit against him with the Metropolitan Trial Court of Manila, Branch 24, which eventually decided in Zenaida's favor. On January 5, 1989, private respondents instituted an action for reconveyance of property with preliminary injunction against petitioner in the Regional Trial Court of Manila, where they alleged that the two deeds of sale executed on January 19, 1959 and November 20, 1973 were simulated for lack of consideration. They were executed to accommodate Salvador in generation funds for his business and providing him with greater business flexibility. In her Answer, Zenaida denied the material allegations in the complaint as special and affirmative defenses, argued that Salvador was the registered owner of the property, which could only be subjected to encumbrances or liens annotated on the title; that the respondents' right to reconveyance was already barred by prescription and laches; and that the complaint state no cause of action. The trial court reasoned that notwithstanding the deeds of sale transferring the property to Salvador, the spouses Rosalia and Jesus continued to possess the property and to exercise rights of ownership not only by receiving the monthly rentals, but also by paying the realty taxes. Also, Rosalia kept the owner's duplicate copy of the title even after it was already in the name of Salvador. Further, the spouses had no compelling reason in 1959 to sell the property and Salvador was not financially capable to purchase it. The deeds of sale were therefore fictitious. Hence, the action to assail the same does not prescribe.4 Upon appeal, the Court of Appeals affirmed the trial court's decision dated March 10, 1998. It held that in order for the execution of a public instrument to effect tradition, as provided in Article 1498 of the Civil Code,5 the vendor shall have had control over the thing sold, at the moment of sale. It was not enough to confer upon the purchaser the ownership and the right of possession. The thing sold must be placed in his control. The subject deeds of sale did not confer upon Salvador the ownership over the subject property, because even after the sale, the original vendors remained in dominion, control, and possession thereof. In this petition, we are asked to resolve the following: 1. Are payments of realty taxes and retention of possession indications of continued ownership by the original owners? 2. Is a sale through a public instrument tantamount to delivery of the thing sold? 3. Did the cause of action of Rosalia Santos and her heirs prescribe? 4. Can petitioner invoke the "Dead Man's Statute?"8

Lastly, petitioner in her memorandum seeks to expunge the testimony of Rosa Santos-Carreon before the trial court in view of Sec. 23, Rule 130 of the Revised Rules of Court, otherwise known as the "Dead Man's Statute."19 It is too late for petitioner, however, to invoke said rule. The trial court in its order dated February 5, 1990, denied petitioner's motion to disqualify respondent Rosa as a witness. Petitioner did not appeal therefrom. Trial ensued and Rosa testified as a witness for respondents and was cross-examined by petitioner's counsel. By her failure to appeal from the order allowing Rosa to testify, she waived her right to invoke the dean man's statute. Further, her counsel cross-examined Rosa on matters that occurred during Salvadors' lifetime. In Goi vs. CA, 144 SCRA 222, 231 (1986) we held that protection under the dead man's statute is effectively waived when a counsel for a petitioner cross-examines a private respondent on matters occurring during the deceased's lifetime. The Court of appeals cannot be faulted in ignoring petitioner on Rosa's disqualification.1wphi1.nt

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN, and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents. These cases touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based - the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client. The facts of the case are undisputed. The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al."[1] Among the defendants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the

correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings.[2] 14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed. conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984.[5] Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco.[8] The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court. In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its clients covering their respective shareholdings.[9] ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA

lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make the disclosures required by the PCGG. The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco. Neither can this Court. WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack of merit.[12] ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds: Petitioners' contentions are impressed with merit. I It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the bigger fish as they say in street parlance. This ploy is quite clear from the PCGGs willingness to cut a deal with petitioners -- the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit: It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. II The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers' services may be compensated by honorarium or for hire,[17] and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a

contract in his name, but gives up all that he gained by the contract to the person who requested him.[18] But the lawyer-client relationship is more than that of the principal-agent and lessorlessee. Passed on into various provisions of the Rules of Court, the attorneyclient privilege, as currently worded provides: Sec. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: xxx An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.[29] Further, Rule 138 of the Rules of Court states: Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his clients business except from him or with his knowledge and approval. This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that: The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative. As a matter of public policy, a clients identity should not be shrouded in mystery.[30] Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.[31] The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. A party suing or sued

is entitled to know who his opponent is.*32+ He cannot be obliged to grope in the dark against unknown forces.[33] Notwithstanding these considerations, the general rule is however qualified by some important exceptions. 1) Client identity is privileged where a strong probability exists that revealing the clients name would implicate that client in the very activity for which he sought the lawyers advice. 2) Where disclosure would open the client to civil liability, his identity is privileged 3) Where the governments lawyers have no case against an attorneys client unless, by revealing the clients name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the clients name is privileged. Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the clients name itself has an independent significance, such that disclosure would then reveal client confidences.[46] The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be no attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly established in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners ticket to non-prosecution should they accede thereto: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their clients shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that

identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, that would inevitably form the chain of testimony necessary to convict the (client) of a... crime."[47] In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case that it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link that would inevitably form the chain of testimony necessary to convict the (client) of a crime. It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer. While we are aware of respondent PCGGs legal mandate to recover ill-gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyer-client confidentiality privilege.

WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, *Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al.".