G.R.No. 74869 July 6, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.IDEL AMINNUDIN y AHNI, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Herminio T. Llariza counsel de-officio for defendant-appellant.

 

CRUZ, J.:

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a

fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted . 6

According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he

was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16

He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release.

There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable sources.

Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin.

Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.

Q Did you receive any other report aside from this intelligence report?

A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation.

COURT:

Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report regarding the activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot Identify the person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing?

A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he was already consummated the act of selling and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield positive result.

Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men.

The mandate of the Bill of Rights is clear:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured.

The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high- handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered.

Narvasa, Gancayco and Medialdea, JJ., concur.

 

SECOND DIVISION

[G.R. No. L-69809. October 16, 1986.]

EDGARDO A. GAANAN, Petitioner, v. INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court’s decision are not disputed by the petitioner.

"In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the living room of complainant’s residence discussing the terms for the withdrawal of the complaint for direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).

"That same morning, Laconico telephoned appellant, who is a lawyer to come to his office and advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to the office of Laconico where he was briefed about the problem. (Exhibit ‘D’, tsn, April 22, 1982, pp. 4-5).

"When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation through a telephone extension so as to hear personally the proposed conditions for the settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault"

"(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal’s Office;

"(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;

"(c) P1,000.00 to be given to the Don Bosco Faculty club;

"(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School;

"(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City Fiscal’s Office, whereas Montebon’s affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later;

"(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

"(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

"(h) P2,000.00 attorney’s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

"Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions. Laconico answered `Yes’. Complainant then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12).

"Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary.

"Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed against complainant. Since appellant listened to the telephone conversation without complainant’s consent, complainant charged appellant and Laconico with violation of the Anti-Wiretapping Act." cralaw virtua1aw library

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is covered in the term "device" as provided in Rep. Act No. 4200. chanrobles law library

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is covered by

the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides: jgc:chanrobles.com.ph

"Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or taperecorder, or however otherwise described;

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition."cralaw virtua1aw library

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense that the words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the caller’s message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal’s Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against the listener’s.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines." An unwary citizen who happens to pick up his

telephone and who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous results. chanrobles.com:cralaw:red

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their bosses’ telephones are sometimes asked to use answering or recording devices to record business conversations between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? Or for that matter, would a "party line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely used instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming part of a main telephone set which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a main telephone line to get the desired communication coming from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. chanrobles law library : red

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in

statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113, 120).

In the case of Empire Insurance Company v. Rufino (90 SCRA 437, 443-444), we ruled: jgc:chanrobles.com.ph

"Likewise, Article 1372 of the Civil Code stipulates that `however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.’ Similarly, Article 1374 of the same Code provides that ‘the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly.’

x       x       x

"Consequently, the phrase `all liabilities or obligations of the decedent’ used in paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that `particularization followed by a general expression will ordinarily be restricted to the former’ is based on the fact in human experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607; 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed., pp. 180-181." cralaw virtua1aw library

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138): chanrobles.com.ph : virtual law library

"Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of 605, interception, has not occurred." cralaw virtua1aw library

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule: jgc:chanrobles.com.ph

"American jurisprudence sets down the reason for this rule to be `the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d 549; Jennings v. Commonwealth, 109 VA 821, 63 SE 1080, all cited in 73 Am Jur 2d 452.) The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin’s Handbook on Statutory Construction, Rev. Ed. pp. 183-184)." cralaw virtua1aw library

In the same case of Purisima, we also ruled that in the construction or interpretation of a legislative measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited "device or arrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a telephone conversation.

x       x       x

Senator Tañada. Another possible objection to that is entrapment which is certainly objectionable. It is made possible by special amendment which Your Honor may introduce.

Senator Diokno. Your Honor, I would feel that entrapment would be less possible with the amendment than without it, because with the amendment the evidence of entrapment would only consist of government testimony as against the testimony of the defendant. With this amendment, they would have the right, and the government officials and the person in fact would have the right to tape record their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the court would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In these cases, as experienced lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. III, No. 33, p. 628, March 12, 1964).

x       x       x

Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he could falsify the testimony and there is no way of checking it. But if you allow him to record or make a recording in any form of what is happening, then the chances of falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If we could devise a way by which we could prevent the presentation of false testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to intercept private conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.

Feria, Fernan, Alampay and Paras, JJ., concur.

[G.R. No. 108179. September 6, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO MALAZARTE alias Nolly, defendant-appellant.

D E C I S I O N

KAPUNAN, J.:

Appellant Manolito Malazarte with Arnold Morales were charged with the crime of murder in the following information filed with the Regional Trial Court of Cebu City:

That on or about the 14th day of April, 1991, at about 11:30 P.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping each other, with deliberate intent, with intent to kill and with treachery and evident premeditation, did then and there suddenly and unexpectedly attack, assault and shot one Jimmy Balansagi[1] with handgun hitting the latter upon vital parts of his body and inflicting upon him the following physical injuries:

HEMORRHAGE INTRABANIAL (sic), EXTENSIVE, SEVERE, SECONDARY TO GUNSHOT WOUND OF THE HEAD, LEFT SIDE

and as a consequence of said injuries Jimmy Balansag died few minutes later.

CONTRARY TO LAW.ii[2]

A warrant for the arrest of the two accused was issued on May 2, 1991.iii[3]

On May 6, 1991, counsel for accused Morales filed an Urgent Motion for Reinvestigation and Reconsideration assailing the inclusion of the said accused in the information despite the admission of Malazarte that he alone planned and perpetrated the killing. The motion also alleged that the supporting affidavits of the witnesses were not sufficient to establish a prima facie case of conspiracy between the two accused.iv[4] The trial court granted the motion.v[5]

In his reinvestigation report, Assistant Prosecutor Rodolfo V. Perez recommended the dismissal of the case as against accused Morales as “there is no sufficient evidence to engender a well-founded belief that accused Arnold Morales connived and conspired with Manolito Malazarte in the killing of Jimmy Balansag.”vi[6] The report was with the express approval of City Prosecutor Jufelinito R. Pareja.vii[7] On June 3, 1991, the trial court ordered the dismissal of the case with respect to accused Morales.viii[8]

During the hearing on July 25, 1991, appellant Malazarte manifested willingness to plead guilty to the lesser offense of homicide, but the widow of the victim opposed the manifestation. Hence, a plea of not guilty was entered on behalf of appellant.ix[9]

The facts as established by the record are as follows:

Aileen Balanzarx[10] was with her husband, victim Jimmy Balanzar, on the night of April 14, 1990 at the Abellana basketball court, at Sitio Abellana, Barrio Luz, Cebu City. Jimmy was the coach of the Sto. Nino team which was to play at the second game. Aileen was seated behind her husband, who was standing and cheering. Appellant who was “wobbling” and appeared to be high on drugs, was standing at Aileen’s left side. Suddenly, appellant shot Jimmy with a .38 caliber handgun. The victim fell and died instantaneously. As appellant was leaving, he fired two more shots.

The medico-legal report prepared by Dr. Tomas P. Refe showed that 23-year-old Jimmy Balanzar died of a single gunshot wound in the head. The bullet entered the left side of the

occipital region, proceeded forward and upward through the skin and soft tissues, lacerated the brain and lodged underneath the fractured frontal bone.xi[11]

Dr. Refe testified that the assailant must have fired the gun from behind the victim at a distance beyond 24 inches because there was no evidence of near contact firing, like gun powder tattooing and burning. Based on the trajectory of the bullet and the fact that the victim was standing, the assailant must have been standing also.xii[12]

Aileen Balanzar was presented by the defense as a hostile witness to prove that she did not witness the actual shooting and that appellant “was under the influence of liquor.” xiii[13] Aileen testified that as early as seven o’clock in the evening of April 14, 1990, she and her husband were in the Abellana basketball court. The first game, which was between the Abellana and the New Era teams, started at 7:30 and lasted until nine o’clock in the evening. The second game between the Lambag and the Sto. Nino teams started at 9:30 p.m. A lot of people were at the game but she noticed appellant and Arnold Morales who arrived together. She was about a meter away from them when she heard Morales ask appellant in the vernacular, “Shall we do it now?” The latter answered, “No, later on.”xiv[14] Morales gave something to appellant and went to the gate about five meters away. Appellant then took the seat to Aileen’s left. Thirty minutes later, appellant shot her husband.

Prior to the incident, Aileen did not know the names of the two accused although appellant lived in their neighborhood. She came to know appellant’s name only after the incident as he lived a bit far from their place. As to Arnold Morales, Aileen came to know his name through a certain Atil who told her that, earlier that day, Morales was looking for Arnel Balansag (sic), the brother of her husband.xv[15]

The defense also presented Antonio Cadungog, a Social Security System pensioner who sold cigarettes to earn additional income. He claimed to be the friend of appellant’s father and had known appellant since he was a child.xvi[16] On the night of April 14, 1990, Cadungog passed by appellant’s house on his way to the Abellana basketball court to sell cigarettes. Hence, appellant’s mother knew that he witnessed the incident and requested him to testify.

According to Cadungog, at about eleven o’clock that night, he saw two men grappling for possession of a firearm. The people around scampered because of fear but he stayed to watch. One of the men got the gun and shot the other one as the latter was running away. Upon inquiry, he learned that the victim was Jimmy Balansar while the assailant was Arnold Morales. Cadungog did not see appellant when the shooting occurred but he knew that appellant appeared later probably to ask about the incident. He did not have the chance to talk to appellant that night as appellant later left with Morales.xvii[17]

On February 28, 1992, the trial court rendered the assailed Decisionxviii[18]convicting appellant of the crime of murder. The dispositive portion reads as follows:

THE FOREGOING CONSIDERED, this Court finds the accused Manolito Malazarte guilty beyond reasonable doubt of the crime of murder as defined and penalized in accordance with Article 248 of the Revised Penal Code and hereby imposes upon him the penalty by way of

imprisonment, of reclusion perpetua, to indemnify the surviving spouse and the heirs the amount of P50,000.00 and finally with costs against him.

SO ORDERED.

Appellant contends that the trial court erred in giving full credence to the testimonies of the prosecution witnesses and disregarding that of the defense. He asserts the trial court erred in convicting him of the crime of murder despite the failure of the prosecution to prove his guilt beyond reasonable doubt.

Appellant points out that Aileen Balanzar, in paragraph 3 of her affidavit, made a categorical declaration that she and her husband were sitting on the bench of the Sto. Niño team, but she did not declare that she saw him shoot her husband from behind.

He stresses that during Aileen’s testimony in court, she contradicted her affidavit by saying that while watching the basketball game, she was standing behind her husband with him on her left side and, for no apparent reason, appellant shot her husband.

He further claims that Aileen’s declaration in her affidavit that she was beside her husband when he was shot is more realistic and consistent with human experience because a wife always wants to be by her husband’s side. In such a position, appellant contends, it was impossible for her to identify the people standing or sitting behind her or notice what they were doing, without turning her head.

Appellant concludes that Aileen did not see the assailant fire the shot which killed her husband. xix

[19]

Appellant asserts that, on the contrary, the testimony of Antonio Cadungog is more credible as this does not suffer from any inconsistencies. Furthermore, Cadungog’s testimony that appellant was not the assailant is of the highest degree of sincerity and honesty as it was not motivated by any ill feeling towards the prosecution.

Appellant’s arguments hinge primarily on the issue of credibility of witnesses.

This Court has held in a long line of cases that the findings of the trial court on the issue of credibility of witnesses should not be disturbed on appeal, as the trial court is in a better position to decide the question, having observed the deportment of the witnesses and their manner of testifying during the trial, unless certain facts of value have been plainly overlooked, which, if considered, might have affected the outcome of the case.xx[20] We do not see any reason to depart from this well-entrenched rule.

There is actually no discrepancy between Aileen’s affidavit and her testimony in court. They can be reconciled. In paragraph 4 of her affidavit,xxi[21] she said she saw two persons conspiring with each other, shoot her husband once, hitting him on the back of his head, although she did not mention who actually pulled the trigger. Perhaps, because of the existence of conspiracy between the two accused, she believed, it was not particularly important to point out who of them

actually shot her husband. Assuming that there is such a discrepancy, the same does not destroy Aileen Balanzar’s credibility. This Court has consistently held that:

The general rule has always been that discrepancies between the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete. Affidavits are generally subordinated in importance to open court declarations because they are oftentimes executed when an affiant’s mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Further, affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to them.xxii[22]

As regards the circumstances of the crime, testimonial evidence carries more weight than affidavits.xxiii[23]

Furthermore, Aileen’s testimony in court is consistent with that of Dr. Tomas P. Refe, the medico-legal officer who autopsied the victim.xxiv[24] Her testimony that as she was standing behind her husband, and that appellant, who was on her left side, shot her husband, dovetails with Dr. Refe’s finding that, based on the trajectory of the bullet, the assailant must have been behind the victim who must have been standing like the assailant.

Appellant’s allegation that it is unbelievable for him to have committed the crime considering that, as Aileen herself admitted, no bad blood existed between him and the victim, simply does not hold water. Lack of enmity or “bad blood” between the culprit and the victim prior to the incident does not affect the credibility of the prosecution evidence. xxv[25] Crimes have been attributed to persons who appear to have no reason for committing them as long as they have been clearly identified as the offenders. Motive gains importance only when the identity of the culprit is suspect. Such is not the case here.xxvi[26]

On the other hand, it was not established that the sole prosecution witness had a motive to testify against appellant. Absent evidence to show any reason or motive why witnesses for the prosecution should have testified falsely, the logical conclusion is that no such improper motive exists and that their testimony is worthy of full faith and credit.xxvii[27]

We agree with the trial court that the crime committed is murder qualified by treachery. There is treachery when the offender commits any crime against a person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. xxviii[28] As found by the trial court, appellant strategically positioned himself behind the victim and aimed the fatal shot at his head at the time when the victim’s attention was on the basketball game. xxix[29] Such mode of attack deliberately resorted to by the appellant did not give the victim any opportunity to defend himself.

Under Art. 248 of the Revised Penal Code, the crime of murder is punishable by reclusion temporal in its maximum period to death. In the absence of any mitigating or generic

aggravating circumstances, the penalty shall be imposed in its medium period xxx[30] or reclusion perpetua.

WHEREFORE, the decision of the Regional Trial Court of Cebu City finding appellant Manolito Malazarte guilty beyond reasonable doubt of the crime of murder and imposing upon him the penalty of reclusion perpetua and the payment to the heirs of Jimmy Balanzar the indemnity of P50,000.00, is hereby AFFIRMED. No costs.

SO ORDERED.

G.R. No. 110290 January 25, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JAIME "JIMMY" AGUSTIN, WILFREDO "SONNY QUIAÑO, MANUEL "JUN" ABENOJA, JR., and FREDDIE "BOY" CARTEL, accused. JAIME "JIMMY" AGUSTIN, accused-appellant.

 

DAVIDE, JR., J.:

In five separate informations filed on 22 May 1987 with the Regional Trial Court (RTC), Branch 3, Baguio City, the accused were charged with murder in Criminal Cases Nos. 4647-R and 4648-R, with frustrated murder in Criminal Case No. 4649-R, and with attempted murder in Criminal Cases Nos. 4650-R and 4651-R. The crimes were allegedly committed on 6 September 1986 in Baguio City and resulted in the deaths of Dr. Napoleon Bayquen and Anna Theresa Francisco and the wounding of Anthony Bayquen, Dominic Bayquen, and Danny Ancheta.

The informations in the murder cases charged that the accused acted in conspiracy and alleged the presence of the qualifying circumstance

of treachery and the ordinary aggravating circumstances of evident premeditation and price. 1

Only the appellant and Wilfredo Quiaño were arrested. However, before Quiaño could be arraigned, he escaped on 12 July 1987 while under the custody of the Philippine Constabulary/PNP Regional Command I at Camp Dangwa, La Trinidad, Benguet. 2 The cases, which were consolidated and jointly tried, proceeded only against the appellant.

After the appellant pleaded not guilty at his arraignment on 4 September 1987, trial on the merits was held on various dates from 11 May 1988 until 10 January 1990.

On 30 May 1990, the trial court promulgated its decision 3 in the consolidated cases acquitting the appellant in Criminal Case No. 4649-R (frustrated murder) and Criminal Cases Nos. 4650-R and 4651-R (attempted murder) for insufficiency of evidence but convicting him in the two murder cases, Criminal Cases Nos. 4647-R and 4648-R, with treachery as the qualifying circumstance. 4 It also ruled that the aggravating circumstances of evident premeditation and price had been duly established. It then sentenced the appellant as follows:

Upon these premises, the accused Jaime Agustin is found GUILTY of two (2) counts of murder, the prosecution having proven his guilt beyond reasonable doubt. In each of the criminal cases aforesaid, he should be sentenced to the maximum penalty of Death, there being two aggravating circumstances. However, since the death penalty is not imposable at this time, the accused is sentenced to Reclusion Perpetua. He is further ordered to indemnify the heirs of the victims; Anna Theresa Francisco the sum of sixty Three Thousand Pesos (P63,000.00) as actual damages (Exhibits "F," "I" and "G"); and Dr. Napoleon Bayquen, the sum of Thirty Thousand Pesos (P30,000.00). With costs against the accused, Jaime Agustin.

SO ORDERED. 5

The version of the prosecution is based on the testimonies of (1) Isidoro Magpantay, a member of the Baguio City Police Force, who identified the initial report (Exhibit "A"); (2) Christie Napeñas, a stenographic reporter in the Office of the City Fiscal of Baguio City, who took down the stenographic notes of City Fiscal Erdolfo Balajadia's investigations of accused Wilfredo Quiaño (Exhibit "D") on 30 January 1987 and of the appellant on 10 February 1987, and who identified her stenographic notes containing the statement of the appellant (Exhibit "B") and the transcript of said stenographic notes (Exhibit "C"); (3) Dominic Bayquen, the victim in Criminal Case No. 4650-R, who testified on how they were shot; (5) Eulogio Francisco, the father of Anna Theresa Francisco, who identified her death certificate (Exhibit "I") and testified on the list of expenses (Exhibit "G"); (6) Rogelio Mumar, a supervising ballistics expert, who declared that the fourteen shell recovered from the scene of the crime were not fired from any of the three armalite rifles submitted to him; (7) Atty. Reynaldo Cajucom, who testified that he was the lawyer who assisted the appellant and accused Wilfredo Quiaño while they were being investigated by City Fiscal Balajadia; and (8) Lilian San Luis Bayquen, wife of Dr. Napoleon Bayquen and mother of Dominic Bayquen, who testified on what she did after Dominic informed her by telephone about the shooting incident.

The evidence for the prosecution established the following facts. At past 7:30 p.m. of 6 September 1986 in Baguio City, Dr. Napoleon Bayquen, a dentist, together with his son, Anthony; Anthony's girlfriend, Anna Theresa Francisco; his daughter, Dominic; and Danny Ancheta, a family friend, were on their way aboard their Brasilia to the doctor's residence at Trancoville at 21-D Malvar Street, Baguio City, from his driving the car. While they were cruising along Malvar Street and nearing the Baptist church, a man came out from the right side of a car parked about two meters to the church. The man approached the Brasilia, aimed his armalite rifle through its window, and fired at the passengers. The Brasilia swerved and hit a fence. The gunman immediately returned to the parked car which then sped away.

All those in the car were hit and Dr. Bayquen and Anna Theresa died on the spot. Dr. Bayquen's head was blown off. Dominic was bale to get out of the Brasilia to run to the Alabanza store where she telephoned her mother and told her what had happened. Later, she and her mother brought her father and Anthony to the hospital. 6 Danny Ancheta went home and was then brought to the Notre Dame Hospital for treatment. 7 Anna Theresa Francisco was brought to the funeral parlor. 8 The police later arrived at the crime scene and conducted an investigation. they recovered some empty shells of an armalite rifle. 9

On 30 January 1987, accused Wilfredo "Sonny" Quiaño, an alleged former military agent or "asset" who had been picked up in La Union by the police authorities, confessed during the investigation conducted by Baguio City Fiscal Erdolfo Balajadia in his office that he was the triggerman in the fatal shooting of Dr. Bayquen and Anna Theresa Francisco. He implicated Manuel "Jun" Abenoja, Jr., allegedly a fellow military agent and the "bagman" who engaged him to kill Dr. Bayquen for a fee, Freddie "Boy" Cartel, who provided the armalite, and a certain "Jimmy." During the investigation, Wilfredo Quiaño was assisted by Atty. Reynaldo Cajucom, a representative of the Integrated bar of the Philippines (IBP). Ms. Christie Napeñas, a stenographic notes of the proceedings during the investigation. 10 Thereafter, she transcribed the notes and the transcription became the sworn statement of Wilfredo Quiaño which he signed, with the assistance of Atty. Cajucom, and swore to before City Fiscal Balajadia. 11

In the morning of 10 February 1987, "Jimmy," who turned out to be appellant Jaime Agustin, was picked up in Sto. Tomas, Pangasinan, by military personnel and brought to Baguio city. At 4:00 p.m. of that date, he was taken to the office of City Fiscal Erdolfo Balajadia where he was investigated in connection with the crime. Atty. Reynaldo Cajucom assisted the appellant during the investigation. Ms. Christie Napeñas took down stenographic notes of the proceedings during the investigation. The stenographic notes consisted of 22 pages (Exhibit "B"), each of which was signed afterwards by the appellant and Atty. Cajucom. Ms. Napeñas subsequently transcribed these notes which the prosecution marked as Exhibit "C." The appellant narrated therein his knowledge of the shooting of Dr. Bayquen and revealed the

identities of his cohorts in the crime. In a confrontation two days later, he identified Quiaño as "Sony," the triggerman.

The defense presented the appellant and his wife, Elizabeth Agustin. The appellant, who is a farmer and whose highest educational attainment was grad four, impugned the validity of his extrajudicial statement. he alleged that in the morning of 10 February 1987, he went to Carmen, Pangasinan, to buy some fertilizer and upon his return he was met by two armed men who took him to their car where two other companions, armed with armalites, were waiting. They then brought him out of Pangasinan. He later learned that they were on their way to Baguio City.

Inside the car, he was asked if he knew Boy and Jun, and he answered that he did not. Along Kennon Road, he was made to stoop down at the back seat whenever they would reach a toll booth, and then brought out three times near the ravines and made to kneel at gunpoint in order to force him to admit his involvement in the shooting, which he finally did out of fear. Then he was brought to the Office of the City Fiscal of Baguio City.

While he was giving his statement at the fical's office, the armed men stayed with him and their presence deterred him from telling the investigating fiscal that he was being threatened. He further declared that although he was given a lawyer, Atty. Reynaldo Cajucom, to assist him, he, nevertheless, asked for his uncle who is a lawyer, Atty. Oliver Tabin, and that Atty. Cajucom interviewed him from only two minutes in English and Tagalog but not in Ilocano, the dialect he understands. Then later, at Camp Dangwa to where he was taken, he told his wife to get in touch and talk with Atty. Tabin. Finally, he asserted that he was promised by his captors that he would be discharged as a state witness if he cooperates, but the plan did not push through because his co-accused, Quiaño, escaped. 12

Elizabeth Agustin corroborated her husband's story that he went to Carmen in the morning of 10 February 1987 to buy some fertilizer and that he failed to return. Her efforts to locate him proved futile until days later when she finally learned that he was detained at Camp Dangwa. 13

The trial court admitted the appellant's extrajudicial statement and gave scant consideration to his claim of force, intimidation, and other irregularities because of the following reasons: (a) the presence of material improbabilities in his tale of when and how he was allegedly taken at gunpoint from his hometown in Pangasinan; (b) it was improbable that he was made to kneel thrice at gunpoint along Kennon Road considering the vehicles which were passing along that road; (c) it was unbelievable that when he was in the Fiscal's Office he asked for his uncle, Atty. Tabin if he could not go home for a period of one month; (d) no less than the city Fiscal of Baguio City interrogated him and yet he did not tell the fiscal that he was being forced to give a statement; (e) the fiscal even provided him with a lawyer who conferred with him and apprised him of his rights; (f) he signed each and every page of the stenographic notes of his statement and this was witnessed by no less than the City Fiscal of Baguio and the lawyer who assisted him; and (g) he disclosed in his statement that he voluntarily gave it because of his ill feeling against his co-accused who did not give him any money.

The trial court then concluded that "[t]here was conspiracy and the accused was a direct participant in the crime," and that while he tried to minimize his culpability, his "extrajudicial confession" shows that "he was in on the plan," and even "expected to be paid, to be rewarded monetarily"; and that he "decided to give a statement only when he was not given the money." Since the proof of corpus delicti required in Section 3, Rule 133 of the Rules of Court was established by the prosecution's evidence, it found his conviction for murder inevitable.

The appellant filed a notice of appeal. In this brief, he imputes upon the trial court the commission of this lone error:

THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONSIDERING ACCUSED-APPELLANT'S EXTRAJUDICIAL CONFESSION AS ADMISSIBLE EVIDENCE AGAINST HIM. 14

The appellant insists that his extrajudicial confession was taken in violation of his rights under Section 11, Article III of the constitution. He argues that the lawyer who assisted him, Atty. Reynaldo Cajucom, was not of his own choice but was foisted upon him by the city Fiscal. Worse, the said lawyer is a law partner of the private prosecutor, Atty. Arthur Galace, and conferred with him in English and Tagalog although he understood only Ilocano. Moreover, when Atty. Cajucom briefly conferred with him and when the city Fiscal interrogated him, his military escorts were present.

He stresses that the lawyer "who assists the suspect under custodial interrogation should be of the latter's choice, not one foisted on him by the police investigator or other parties," 15 and that where there are serious doubts on the voluntariness of the extrajudicial confession, the doubts must be resolved in favor of the accused. 16 He then concludes that his extrajudicial confession is inadmissible and his conviction cannot stand, there being no other evidence linking him to the crimes charged.

In its brief, 17 the appellee, reiterating the reasons of the trial court in upholding the validity of the confession, prays for the affirmance of the appealed decision.

After a careful study of the records of Criminal Cases Nos. 4647-R and 4648-R and a painstaking evaluation of the evidence, we find this appeal to be impressed with merit. Indeed, the extrajudicial admission — not extrajudicial confession — of the appellant, which is the only evidence of the prosecution linking him to the commission of the crime charged, is wholly inadmissible because it was taken in violation of Section 12, Article III of the Constitution. We also see in these cases a blatant disregard of the appellant's right under Section 2 of Article III when he was unlawfully arrested.

Before we go any further, it should be pointed out that, contrary to the pronouncement of the trial court and the characterization given by the appellant himself, the assailed extrajudicial statement is not extrajudicial confession. It is only an extrajudicial admission. We take this opportunity to once more distinguish one from the other. Sections 26 and 33, rule 30 of the Rules of Court 18 clearly show such a distinction.

In a confession, there is an acknowledgment of guilt of the accused or of the criminal intent to commit the offense with which he is charged. 19 Wharton 20 defines a confession as follows:

A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, and admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt.

We have examined the assailed extrajudicial statement of the appellant, and we are satisfied that nothing therein indicates that he expressly acknowledged his guilt; he merely admitted some facts or circumstances which in themselves are insufficient to authorize a conviction and which can only tend to establish the ultimate fact of guilt. Nevertheless, when what is involved is the issue of admissibly in evidence under Section 12, Article III of the Constitution, the distinction is irrelevant because Paragraph 3 thereof expressly refers to both confession and admission. Thus:

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

The first two paragraphs of Section 12 read:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

These first and second paragraphs are taken from Section 20, Article IV (Bill of Rights) of the 1973 Constitution which read:

Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

The first two paragraphs of Section 12, Article III of the present Constitution have broadened the aforesaid Section 20 in these respects: (1) the right to counsel means not just any counsel, but a "competent and independent counsel, preferably of his own choice"; (2) the right to remain silent and to counsel can only be waived in writing and in the presence of counsel; and (3) the rule on inadmissibility expressly includes admissions, not just confessions.

In Morales vs. Enrile, 21 this Court, applying Section 20, Article IV of the 1973 Constitution, laid down the duties of an investigator during custodial investigation and ruled that the waiver of the right to counsel would not be valid unless made with the assistance of counsel:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory of inculpatory, in whole or in part, shall be inadmissible in evidence.

We reiterated the above ruling in People vs. Galit, 22 People vs. Lumayok, 23 People vs. Albofera, 24

People vs. Marquez, 25 People vs. Penillos, 26 and People vs. Basay, 27 among other cases.

The right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." 28 It is not enough for the investigator to merely repeat to the person under investigation the provisions of Section 20, Article IV of the 1973 Constitution or Section 12, Article III of the present Constitution; the former must also explain the effects of such provision in practical terms, e.g., what the person under investigation may or may not do, and in language the subject fairly understands.

The right to be informed carries with it a correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person undergoing the investigation.

In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he can ask for counsel if he so desires or that one will be provided him at his request. If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be made with the assistance of counsel. That counsel must be a lawyer. 29

The waiver of the right to counsel must be voluntary, knowing, and intelligent. 30 Consequently, even if the confession of an accused speaks the truth, if it was made without the assistance off counsel, it is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntarily given. 31

The extrajudicial admission of the appellant, 32 contained in twenty-two pages of yellow pad, does, indeed, appear to be signed by him and Atty. Reynaldo Cajucom. what we find in these yellow pads are stenographic notes. these were transcribed by the stenographer who took down the stenographic notes, but for reasons not explained in the records, the transcript of the notes (Exhibit "C"), which consists of twelve pages, 33 was not signed by the appellant since it does not indicate any jurat. On the other hand, the same stenographic reporter, who took down the stenographic notes when accused Wilfredo Quiaño was being investigated by City Fiscal Balajadia, transcribed the notes, and the transcription 34 was subscribed and sworn to by the accused before City Fiscal Balajadia and also signed by Atty. Cajucom, who represented the accused in the investigation.

Since we cannot even reads or decipher the stenographic notes in the yellow pads, we cannot expect the appellant, who is a farmer and who reached only the fourth grade, to read or decipher its contents. We have to rely solely on the transcript and presume its accuracy. A perusal of the transcript convinces us that the appellant was not given a fair deal and was deprived of his rights under Section 12(1), Article III of the Constitution. Firstly, he was not fully and properly informed of his rights. The transcript (Exhibit "C") shows the following preliminary questions of the City Fiscal and the answers of the appellant:

01. QUESTION — Mr. Jaime Agustin, I am informing you that you are under investigation in connection with the death of Dr. Nap Bayquen of which you are one of the principal suspects. I am informing you of your constitutional rights before you give any statement. First, you have the right to remain silent meaning, you may give a statement or you may not give any statement. If you will not give a statement, you will not be forced to do so, do you understand this right?

ANSWER — I understand, sir.

02. Q — If you will give a statement, you have the right to be assisted by a lawyer of your own choice, if you cannot afford to secure the services of a lawyer the government will provide a lawyer for you, do you understand this right?

A — I understand, sir.

03. Q — Now, do you want to be assisted by a lawyer?

A — Yes, sir.

04. Q — I am now informing you that a lawyer in the person of Atty. Reynaldo Cajucom is now present in this investigation room, do you wish to avail of his assistance in connection with this investigation?

A — I want, sir.

05. Q — I am also informing you that whatever you say in this investigation can be used as evidence in your favor and it can also be used as evidence against you in any criminal or civil case, do you understand that?

A — Yes, sir, I understand.

06. Q — After informing you of your constitutional rights, are you now willing to give a statement?

A — Yes, sir, I agree.

Investigator — Atty. Reynaldo Cajucom, the witness or respondent Jaime Agustin has chosen you to give him assistance in this investigation, are you willing to assist him?

Answer — I am willing, fiscal, to assist the witness.

Investigator — Have you appraised [sic] him of his constitutional rights?

Answer — Yes, fiscal.

Investigator — Do you know after examining him whether or not he is giving a free and voluntary statement of his own volition without any intimidation or force exerted on him?

A — As stated by him, fiscal, he is willing to give a free and voluntary statement in relation to what really happened.

It is at once observed that the appellant was not explicitly told of his right to have a competent and independent counsel of his choice, specifically asked if he had in mind any such counsel and, if so, whether he could afford to hire his services, and, if he could not, whether he would agree to be assisted

by one to be provided for him. He was not categorically informed that he could waive his rights to remain silent and to counsel and that this waiver must be in writing and in the presence of his counsel. He had, in fact, waived his right to remain silent by agreeing to be investigated. Yet, no written waiver of such right appears in the transcript and no other independent evidence was offered to prove its existence.

Secondly, Atty. Cajucom can hardly be said to have been voluntarily and intelligently "accepted" by the appellant as his counsel to assist him in the investigation. Atty. Cajucom's presence in the Office of the City fiscal at the time the appellant was brought there for investigation is unclear to us. At least two possibilities may explain it: it was a mere coincidence in the sense that he happened to be attending to some professional matter, or he was earlier called by the City Fiscal for the purpose of giving free legal aid to the appellant. These possibilities are not remote but whether it was one or the other, it is clear to us that Atty. Cajucom was in fact foisted upon the appellant, for as shown in the above-quoted portion of Exhibit "C," the city fiscal immediately suggested the availability of Atty. Cajucom without first distinctly asking the appellant if he had a counsel of his own choice and if he had one, whether he could hire such counsel; and if he could not, whether he would simply exercise his right to remain silent and to counsel. In short, after the appellant said that he wanted to be assisted by counsel, the City fiscal, through suggestive language, immediately informed him that Atty. Cajucom was ready to assist him.

While it is true that in custodial investigations the party to be investigated has the final choice of counsel and may reject the counsel chosen for him by the investigator and ask for another one, 35 the circumstances obtaining in the custodial interrogation of the appellant left him no freedom to intelligently and freely do so. For as earlier stated, he was not even asked if he had a lawyer of his own choice and whether he could afford to hire such lawyer; on the other hand, the city Fiscal clearly suggested the availability of Atty. Cajucom. then too, present at that time were Capt. Antonio Ayat and Sgt. Roberto Rambac, military officers of RUC I, who brought him to the City Fiscal's Office for investigation in the afternoon of the day when he was unlawfully arrested in Sto. Tomas, Pangasinan. Along Kennon road, on the way to Baguio City, he was coerced and threatened with death if he would not admit knowing "Jun" and "Sonny" and hi participation in the crime. This testimony was unrebutted by the prosecution. The presence of the military officers and the continuing fear that if he did not cooperate, something would happen to him, was like a Damocles sword which vitiated his free will.

Why it was the City Fiscal who had to conduct the custodial investigation is beyond us. Nothing in the records shows that at that time the criminal cases against the culprits had already been filed with the City Fiscal's Office for preliminary investigation and had, therefore, ceased to be a police matter. If they had been so filed, then the City Fiscal should have followed the usual course of procedure in preliminary investigations. It appears, however, from the informations in Criminal Cases Nos. 4647-R and 46648-R that it was Assistant City Fiscal Octavio M. Banta who conducted the preliminary investigation and who prepared, signed, and certified the informations. city Fiscal Balajadia merely approved them and administered the jurat in the certification. the conclusion then is inevitable that he did not conduct the preliminary investigation.

Even assuming for the sake of argument that the appellant voluntarily agreed to be assisted by Atty. Cajucom, we doubt it very much if he was an independent counsel. While we wish to give him the benefit of the doubt because he is an officer of the court upon whose shoulders lies the responsibility to see to it that protection be accorded the appellant and that no injustice be committed to him, 36 and, moreover, he generally has in his favor the presumption of regularity in the performance of his duties, 37 there are special circumstances in these cases which convince us that he was unable to assist the appellant in a satisfactory manner. For one, he admitted on cross-examination that at that time, and even until the time he took the witness stand, he was an associate of the private prosecutor, Atty. Arthur Galace, in these and the companion cases. Thus:

Q Mr. Witness, at the time you assisted the accused you belonged to the office of Atty. Galace, you were an associate at the time when you assisted the accused?

A I was represented [sic] then as IBP Legal Aid.

Q The question is not answered, we are only requesting him if he was an associate of Atty. Galace up to the present?

A Yes. 38

Then we have misgivings on whether Atty. Cajucom was in fact understood by the appellant when the former informed the appellant of his constitutional rights in English and Tagalog considering that the appellant, a fourth grader and a farmer, could only understand Ilocano. Thus:

ATTY. TABIN:

So in other words when you appraised [sic] him of his constitutional rights using English Language and Tagalog Dialect you did not have any Ilocano dialect Interpreter. . . .

xxx xxx xxx

WITNESS:

As far as I can remember, I explained it in Tagalog and English. 39

And when asked whether he was sure if the appellant understood him, Atty. Cajucom merely answered:

A At least I put everything as far as I could give to him to appraise [sic] him of his constitutional rights. 40

Then too, even if he were fully understood by the appellant, we are not satisfied that his explanations were adequate. On direct examination, he gave the following answers:

Q — Did you explain the constitutional rights of the accused to caution him of the consequences of his statement?

A — I explained to him that he has the right to remain silent, to confront in person the witnesses against him and that he has the right to choose a counsel to assist him in the hearing of the case which was being investigated then.

Q — And what was his reply regarding the consequences of thisstatement?

A — He told me that he is willing to give a truthful statement and in order to shed light. 41

It appears to us that Atty. Cajucom did not actually impress upon the appellant that he was one of the accused; rather, Atty. Cajucom made the appellant believe that he was only a witness. Thus:

Q [by the prosecutor]

— But, nevertheless, you gave the precautionary measure entitled to any witness?

A — Yes, sir.

Q — Why do you say that it was given voluntarily?

A — Before presenting him to the investigation we were given time to talk personally without any other people and that was the time that I explained to him all his rights and consequences pertaining to him as witness to this case. 42

On cross-examination, Atty. Cajucom also declared:

ATTY. TABIN:

That is why I am requesting him how he explained in that language, Your Honor.

WITNESS:

I told him that this is a grave case which he would be giving some narrations as a witness and his involvement would mean the most grievous offense and if found guilty will bring him for some years in jail and I told him that I could help him if he will be presenting the truth and narrate is the truth. This is in combination, English and Tagalog, and most of the time, I made it in Tagalog. 43

Moreover, considering that the appellant is familiar only with Ilocano, the Court has serious doubts about his ability to understand Atty. Cajucom's explanation of his constitutional rights since Atty. Cajucom did so in English and Tagalog.

Finally, Atty. Cajucom knew, as admitted by him on cross-examination, that the appellant was picked up on 10 February 1987 by military men in Pangasinan without a warrant for his arrest. 44 Since the crimes with which the appellant was charged were allegedly committed on 6 September 1986 or more than five months earlier, no arrest without a warrant could have been legally and validly effected. a warrantless arrest should comply with the conditions prescribed in Section 5, rule 113 of the Rules of Court. Said section provides:

Sec. 5. Arrest without warrant when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

None of these exceptional circumstances were present at the time the appellant was arrested on 10 February 1987. The prosecution did not even insinuate that the crimes were committed in the presence of the arresting officers (for otherwise they could have arrested the appellant on 6 September 1986 yet) or

that the appellant was a prisoner who had escaped from his place of detention; or that the crimes had just been committed for they were in fact committed more than five months earlier. Atty. Cajucom knew or ought to have known that the arrest was unlawful. If he were then truly moved by his duty to fully assist the appellant, he should have forthwith taken the appropriate measures for the immediate release of the appellant instead of allowing the City Fiscal to investigate him. Needless to say, the conduct of Atty. Cajucom under the circumstances only strengthen our belief that the appellant had all the cards stacked against him.

Thus, we do not hesitate to declare the appellant's extrajudicial statement inadmissible in evidence because it was obtained in violation of Section 12 (1), Article III of the Constitution. since it is the only evidence which links him to the crimes of which he was convicted, he must then be acquitted.

His acquittal must not write finis to these murder cases. These crimes must be solved and the triggerman and the mastermind apprehended. We see in these cases the failure of the Government to exert the necessary efforts to bring the guilty parties to the bar of justice. Until now, the accused, who were implicated by the triggerman as having ordered for a price the murder of Dr. Bayquen, remain at large and the records do not show any diligent effort to effect their arrest. The triggerman escaped while in the custody of the PC/INP at Camp Dangwa. The City Prosecutor's Office of Baguio City should then use all the resources at its command, in coordination with the law-enforcement agencies of the Government, such as the National Bureau of Investigation and the Philippine National Police, to immediately arrest the other accused.

WHEREFORE, judgment is hereby rendered REVERSING the challenged judgment of the Regional Trial Court, branch 3, Baguio City, in Criminal Case No. 4647-R and Criminal Case No. 4648-R, and ACQUITTING appellant JAIME "JIMMY" AGUSTIN. His immediate release from confinement is hereby ORDERED unless for some other lawful cause his continued detention is warranted.

Costs de oficio.

EN BANC

G.R. No. L-28355 July 17, 1969

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. APOLINARIO LUMANTAS @ PEOLE, Defendant-Appellant.

Enrique D. Tayag as counsel de officio for defendant-appellant.Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro and Solicitor Norberto P. Eduardo for plaintiff-appellee.

REYES, J.B.L., J.:chanrobles virtual law library

          Olimpio Badiang and Apolinario Lumantas were convicted of the crime of murder by the Honorable Mariano A. Zosa of the Court of First Instance of Misamis Occidental (Branch III - Oroquieta) and sentenced to different penalties. The dispositive part is phrased as follows:

          ...; and, pursuant to the provisions of Article 248 taken together with the provisions of Article 14, paragraphs 9 and 15 and Article 64, paragraph 6 of the same Revised Penal Code, as to Olimpio Badiang alias Lim, the court sentences him to suffer an imprisonment of SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY to TWENTY (20)

YEARS of Reclusion Temporal; and, likewise sentences Apolinario (Peole) Lumantas, who, after having made a stab wound to the deceased, fleed (sic) from the scene of the crime, to suffer an imprisonment of one degree lower or TEN (10) YEARS, and ONE (1) DAY of prision mayor in its maximum period, to indemnify the heirs of Laureto Limpahan in the sum of P1,500.00 each, without subsidiary imprisonment in case of insolvency, to pay the proportionate costs of the proceedings and suffer the accessory penalties provided for by law. chanroblesvirtualawlibrarychanrobles virtual law library

          The instruments exhibited are hereby declared confiscated.

          Both accused appealed the decision to the Court of Appeals, but the appeal of Olimpio Badiang was dismissed on 14 September 1965 upon his own petition. The Court of Appeals found that the imposable penalty upon the remaining appellant, Apolinario Lumantas, is reclusion perpetua, for which reason it certified the case to the Supreme Court. 1

chanrobles virtual law library

          The evidence on record shows that many people had gathered in the marketplace of Mobod, Oroquieta, Misamis Occidental, at about five o'clock in the afternoon of Thursday, 14 November 1963. Although it was not a market day, a fair was being held in extended celebration of All Saints' Day. There was cockfighting and a "hantak" game was being played. Among the players in the said game was the late Laureto (or Laurito) Limpahan. chanroblesvirtualawlibrarychanrobles virtual law library

          The principal witness for the prosecution, Francisco Bati-on, who was about two (2) meters away from where the "hantak" game was being played (t.s.n., page 31), saw accused Badiang and Lumantas at both sides of the deceased. This witness narrated what happened moments later, as follows:

Q. - You said that you knew Apolinario Lumantas, do you know what he was doing at that time?chanrobles virtual law library

A. - I saw only Peoley (Apolinario Lumantas) who was standing beside Laurito Limpahan. chanroblesvirtualawlibrarychanrobles virtual law library

Q. - What did Peoley do there?chanrobles virtual law library

A. - When Laurito was in the "hantak" game I saw him stood up and counted his money; and, it was at that time that this Lim Badiang slapped him with the back of his palm at his face and with his left hand delivered a thrust to him. chanroblesvirtualawlibrarychanrobles virtual law library

Q. - What happened next?chanrobles virtual law library

A. - When Laurito was hit (witness was pointing to the left side of his body his hand up; next he made a motion jerking up) and then Peoley stabbed him at the right side of the body (witness pointing to the right side of his body below the armpit). When Peoley stabbed him, Lim stabbed him by the left hand.chanroblesvirtualawlibrarychanrobles virtual law library

Q. - You said that Apolinario Lumantas stabbed Laurito Limpahan where did that land in the body of Limpahan? .chanroblesvirtualawlibrarychanrobles virtual law library

A. - Peoley thrust him to the right armpit of Laurito. (T.S.N., pages 11-12) (sic)

          After he was stabbed, Laurito Limpahan ran away, with Badiang and Lumantas in pursuit. Limpahan collapsed after running a distance of ten meters. Badiang kicked him in the face. Prosecution witness Bati-on, who was a friend of Badiang, entreated the latter to stop kicking Limpahan as he was already dead, but Badiang tried to stab Bati-on instead. When Lumantas saw that Limpahan was dead, accused left the place and went home. chanroblesvirtualawlibrarychanrobles virtual law library

          The people scampered away even as Badiang brandished his bloody bolo and challenged everyone to a fight. Policeman Hospecio Pausal happened to be in the marketplace at the time, serving subpoena. He was attracted by the commotion and, seeing Olimpio Badiang carrying a bolo covered with blood, fired a shot in the air and commanded Badiang to put down his weapon. Badiang did as commanded. Pausal brought him to the municipal building and turned him over to the guard on duty.chanroblesvirtualawlibrarychanrobles virtual law library

          Policeman Pausal inspected the body of Laurito Limpahan and found at the left side a sharp-pointed bolo, with the blade partly drawn from its scabbard about two (2) inches, and an Indian slingshot in the right pocket. chanroblesvirtualawlibrarychanrobles virtual law library

          The municipal health officer of Oroquieta, Dr. Henry Y. Dullin, performed a post-mortem examination of the cadaver of Laureto Limpahan at eight o'clock that evening and found the following:

- wound located over the left chest just below the nipple about 4 inches in length, deep penetrating which injured the heart, lung and great blood vessels around the heart and lungs; chanrobles virtual law library

- wound located over the right axilla about 2 inches in length, deep; chanrobles virtual law library

- wound located over the right chest about 2 inches in length, deep, situated over the 6 intercostal space along the right mid-axillary line; chanrobles virtual law library

- wound over the left forearm lateral surface 5 inches in length; chanrobles virtual law library

- wound over the right thenar eminence; chanrobles virtual law library

- abrasion over the forehead, bridge of the nose and left cheek. (Exhibit "A")

          As this appeal pertains only to Apolinario Lumantas, we shall limit this review to his case, skipping the version of his co-accused, Olimpio Badiang. chanroblesvirtualawlibrarychanrobles virtual law library

          The appellant's defense is alibi, claiming that at the time of the commission of the crime, in the afternoon of 14 November 1963, he was not at Mobod but at Upper Lamak, about one and a half to two kilometers away, to gather tuba from 17 coconut trees. chanroblesvirtualawlibrarychanrobles virtual law library

          Appellant argues that the testimony of prosecution witness Francisco Bati-on is unreliable because while he recognized the weapon used by Badiang the witness was not clear on the weapon used by appellant Lumantas. This uncertainty as to the kind of weapon used does not necessarily impair his reliability. There was a wound just below the left nipple of the deceased,

while two wounds existed at the right side of his body. These wounds tally with Bati-on's testimony that Badiang inflicted one wound at the left and the knife came out at the right side, and that the second wound at the right side of the victim was inflicted by Lumantas. Bati-on's non-recognition of the weapon used by Lumantas did not alter the fact that the latter did use a weapon to produce the wound described.chanroblesvirtualawlibrarychanrobles virtual law library

          Neither do we find that this eyewitness acted through improper motives, the charge of personal enmity by the accused not being adequately supported. chanroblesvirtualawlibrarychanrobles virtual law library

          A defense witness, Anselmo Mahawan, testified that, as a member of the police force at the time of the stabbing, he was designated to look for witnesses. He went to the scene of the crime, saw the mother of the deceased crying over her son, and asked her about the companion of her son. The mother pointed to Francisco Bati-on. When Mahawan inquired from Bati-on what he knew about the incident, Bati-on denied knowledge of anything. This testimony of defense witness Mahawan was unrebutted; but while the fact that Bati-on denied any knowledge about the crime soon after its commission before the investigating policeman reduces the credibility of Bati-on, such diminution is not substantial. It is not unusual for witnesses at first refusing to be involved in a criminal proceeding. The witness disclosed what he knew about the incident shortly thereafter, on 16 November 1963, when he signed a statement taken from him by the police at the municipal building; gave additional answers to interrogations by the municipal judge; and swore to the truth thereof on 17 November 1963 (CFI Criminal Case Rec. Wrapper, page 7). This sworn statement was not offered in evidence, but it forms part of the record of the preliminary investigation conducted by the municipal judge and can be taken judicial notice of by both the trial court and the Supreme Court. (People vs. Bautista, 60 Phil. 1026) chanrobles virtual law library

          Alibi is one of the weakest defenses that can be resorted to by an accused (People vs. De la Cruz, 76 Phil. 701). To establish it, the accused must show that he was at some other place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (U.S. vs. Oxiles, 20 Phil. 587; People vs. Palomos, 49 Phil. 601; People vs. Resabal, 50 Phil. 780). These requisites accused-appellant failed to establish; he did not even show how long he stayed in Upper Lamak, which was only two kilometers away from the Mobod market place. chanroblesvirtualawlibrarychanrobles virtual law library

          Appellant Lumantas props his defense of alibi with the fact that prosecution witness, policeman Hospecio Pausal, did not see said appellant in the market place when he apprehended Badiang after the stabbing incident. That appellant was not seen by Pausal may be explained by the fact that appellant Lumantas had left the place when he saw that Limpahan was already dead, and the patrolman's attention was concentrated on Badiang who was challenging all and sundry while brandishing a bolo.chanroblesvirtualawlibrarychanrobles virtual law library

          The prosecution did not prove any motive of appellant Lumantas for committing the crime, but lack of motive does not preclude conviction of the offense when the crime and the participation of the accused are definitely proved, as was done in this case (People v. Tanco, 58 Phil. 255; People v. Reyno, L-19071, 30 April 1965; People v. Villalba, L-17243, 23 August 1966, 17 SCRA 948).chanroblesvirtualawlibrarychanrobles virtual law library

          The crime committed is murder, qualified by treachery, established by the sudden and unexpected attack upon the victim by the two accused, who situated themselves on both sides of the deceased and rendered the victim unable to defend himself (U.S. vs. Castellon, 2 Phil. 160; People vs. Macarinfas, 40 Phil. 1). Abuse of superior strength also attended the commission of the crime, but this circumstance is absorbed in treachery (People v. Limaco, 88 Phil. 35; People v. Ruzol, et al., 100 Phil. 537).chanroblesvirtualawlibrarychanrobles virtual law library

          The Solicitor General admits that the prosecution failed to prove evident premeditation (Brief, page 10). We agree; and we, likewise, find no mitigating circumstance. chanroblesvirtualawlibrarychanrobles virtual law library

          Murder is penalized by "reclusion temporal in its maximum period to death" (Article 248, Revised Penal Code). Since there is no aggravating or mitigating circumstance, the penalty should have been imposed in its medium period, which is reclusion perpetua.chanroblesvirtualawlibrarychanrobles virtual law library

          The errors of the trial court in the imposition of the penalties, based on its own findings, are at once noticeable; for, having declared Olimpio Badiang 2 guilty of murder, with the aggravating circumstances of recidivism and superior strength (Nos. 9 & 15, Article 14, Revised Penal Code), without any mitigating circumstance, the court imposed the minimum penalty for murder, reclusion temporal, instead of the maximum, which is death, and misapplied Article 64, paragraph 6, 3 of the code, on the wrong assumption that the maximum penalty for murder is the maximum period of reclusion temporal. As for Apolinario Lumantas, the court imposed upon him a penalty one degree lower because, after stabbing the victim, he fled from the scene of the crime. Flight may indicate guilt, 4 but certainly, it is not a reward for committing a crime nor a mitigation of criminal responsibility. On the contrary, the simultaneity of the attacks and the strategy of assailing the deceased from both sides fully establish conspiracy and common intent.chanroblesvirtualawlibrarychanrobles virtual law library

          Not the least of its error, also on the face of the dispositive portion of its decision, is the trial court's imposition of compensatory damages in the amount of P3,000.00 for the death of the victim (P1,500.00 from each of the two accused). The decision was promulgated on 12 December 1964, but the then existing jurisprudence (since 1948, People vs. Amansec, 80 Phil. 424) fixed the amount of indemnification at P6,000.00. The amount was later raised to P12,000.00 in People vs. Pantoja, L-18793, 11 October 1968.chanroblesvirtualawlibrarychanrobles virtual law library

          Normally, co-conspirators of a crime are held jointly and severally liable in the amount of P12,000.00, by way of indemnification for the death of their victim. But here, the trial court condemned Olimpio Badiang to pay only P1,500.00, and the decision with respect to him has become final when his appeal was dismissed by the Court of Appeals at his own request. The question, therefore, arises: how much should the co-conspirator, Apolonio Lumantas, the herein remaining appellant, be made to pay? We believe that, in justice to the heirs of Laurito Limpahan, he should pay an indemnity of P12,000.00, but with the right to demand contribution from his co-accused in the sum of P1,500.00. While it may appear that this award is to some extent unfair to this appellant, it is a necessary consequence of the withdrawal of Badiang's appeal, which rendered final the low indemnity awarded by the court below (erroneous though it should be), and above all, to the need of doing justice to the heirs of the victim, whose right to adequate indemnification is paramount. chanroblesvirtualawlibrarychanrobles virtual law library

          FOR THE FOREGOING REASONS, the appealed decision, insofar as Apolinario Lumantas is concerned, is hereby modified to the effect that he shall suffer the penalty of reclusion perpetua, with its accessory penalties, and to pay the heirs of Laurito Limpahan the amount of P12,000.00, without subsidiary imprisonment in case of insolvency, and to pay the proportionate share of the costs; but with a right to demand contribution from his co-accused Olimpio Badiang, in the sum of P1,500.00, to the payment of which said Badiang was sentenced by the court below.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee, and Barredo, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 6817             July 31, 1958

ESTEFANIA R. VDA. DE PIROVANO, plaintiff-appellant, vs.DE LA RAMA STEAMSHIP CO., INC., defendant-appellee.

Angel S. Gamboa for appellant.Del Rosario and Garcia for appellee.

PADILLA, J.:

Plaintiff seeks to recover from the defendant the sum of P221,975.45, the balance of the amount of dividends at P100 per share, declared by Resolution No. 50-127 of 29 December 1950, to which she is entitled as the registered owner of 3,424 shares of stock in the defendant corporation, after deducting the sum of P120,424.55 she had withdrawn or received from the defendant for advances made to her after the death of the late Esteban de la Rama, 20 per cent of the sum sought to be recovered for attorney's fees and expenses of litigation by way of damages, and costs.

Answering the complaint, the defendant avers that although the plaintiff is entitled to the dividends claimed in the complaint, yet she is indebted to the defendant as of 29 December 1950 in the sum of P444,202.52, and that by reason of the unnecessary commencement of the suit, the defendant suffered damages in the sum of P100,000. Upon the foregoing allegations the defendant asks for the dismissal of the complaint and prays that judgment rendered condemning the plaintiff to pay the amount of damages it has suffered and costs.

After hearing, the Court dismissed both the complaint and the counterclaim without pronouncement as to costs. The plaintiff has appealed.

Appellant's theory is that the cash advances to her in the United States during the Pacific War for her personal expenses and for the support and education of her children were assumed by Esteban de la Rama, as set forth in his letter dated 5 May 1947 (Exhibit B) to the appellee and the Hijos de I. de la Rama & Co., Inc., consented to and approved by both corporations. She claims that the advances made to her by the appellee were debited against the account of Hijos de I. de la Rama & Co., Inc., another corporation practically owned by Esteban de Ia Rama; that the only sum the appellee corporation may deduct from the amount of dividends to which she is entitled is P120,424.55 which she received after the death of her father Esteban de la Rama and was not assumed by him; and that as a matter of fact in special proceedings No. 401 of the Court of First Instance of Iloilo for the administration and settlement of the estate of the late Esteban de la Rama, the Hijos de I. de la Rama & Co., Inc., filed a claim charging the estate with the aforesaid advances for expenses of the appellant and of her children which had been assumed by the deceased in his lifetime, a claim which, although reduced to P26,000 as per Ballentyne schedule of monetary value, was approved by the Court of First Instance of Iloilo on 27 September 1950, and the executor of the estate of the late Esteban de la Rama was directed to pay the claim thus allowed (Exhibit O).

The appellee resists appellant's claim upon the ground that the assumption by Esteban de la Rama of the total sum of withdrawals by the appellant for her expenses and of her children was never consented to by the appellee and hence not binding upon it; and that the accounting method by which the withdrawals were charged against the Hijas de I. de la Rama & Co., Inc. was to circumvent the prohibition imposed upon the appellee to declare dividends, agreed upon in the deed of trust executed by the appellee and the National Development Company, a prohibition which lasted from 26 February 1940 to 23 September 1949 (Exhibit 7).

There is no dispute that the appellant is the registered owner of 3,424 shares of stock in the appellee corporation; that on 29 December 1950 the appellee by Resolution No. 50-127 declared a dividend of P100 for each share of stock; that the appellee further resolved that the personal accounts of the stockholders of the De la Rama Steamship Co., Inc., which include that of the appellant in the sum of P444,202.52 set up in the books of De la Rama Steamship Co., Inc. against the Hijos de I. de la Rama & Co., Inc., be credited to the account of the last named corporation and debited to accounts receivable from the stockholders; and that from the amount of dividends, the personal account of each and every stockholder be deducted (Exhibit A-1).

The determination of the controversy hinges on whether the assumption made by the late Esteban de la Rama in his lifetime of all the advances made by the appellee to the appellant was binding upon it. There is no doubt that because of the prohibition agreed upon in the deed of trust to the effect that no dividends could be declared by the appellee during the period of time already stated, advances to the stockholders would constitute a violation of section 12 of the deed of trust. For that reason it was made to appear that such advances were made to the Hijos de I. de la Rama & Co., Inc. and debited the same against the latter in the books of the appellee, and in the books of the Hijos de I. de la Rama & Co., Inc. the said advances were debited against the individual the stockholders, the stockholders of both corporations being the same. The pivotal point is whether the assumption by Esteban de la Rama of the advances made to the appellant by the appellee, as stated in his letter of 5 May 1947, was consented to by the appellee to constitute a novation. Express sent by the creditor is necessary to substitute another for the debtor. 1 Such

consent does not appear to have been given by the board of directors of the appellee. Corporate acts of a corporation must appear in its books or records. No such consent appears in the books or records of the appellee.

The appellant does not dispute the total sum of her withdrawals which is P444,202.52 as claimed by the appellee.

Aside from the letter of 5 May 1947 of Esteban de la Rama, the appellant relies upon the financial statements and books of the appellee where the withdrawals by the appellant were entered in the account of Hijos de I. de la Rama & Co., Inc. or transferred to the account of Esteban de la Rama. The entries on the withdrawals by the appellant entered in the account of Hijos de I. de la Rama & Co., Inc. or transferred to the account of Esteban de la Rama have already been explained satisfactorily. They were done so in order to circumvent the prohibition referred to above. As a matter of fact the withdrawals made by the appellant were made by her and not by the Hijos de I. de la Rama & Co., Inc. Nor is there any evidence that those advances were used by the Hijos de I. de la Rama & Co., Inc.

As to the inclusion of the withdrawals made by the appellant in the claim of the Hijos de I. de la Rama & Co., Inc. filed against the estate of the late Esteban de la Rama in special proceedings No. 401 of the probate court of Iloilo and allowed by the court although in a reduced amount, suffice it to say that such act of the Hijos de I. de la Rama & Co., Inc. cannot and does not bind the appellee. Its appearance in the probate court was by order of that court of 19 June 1950 (Exhibit M), and in its pleading the appellee disclaimed any interest in the claim filed by the Hijos de I. de la Rama & Co., Inc. against the estate of the late Esteban de la Rama (Exhibit N).

Resolution No. 50-127 of the board of directors of the appellee of 29 December 1950, whereby a cash dividend of P2,000,000 was declared in favor of stockholders of record as of 1 December 1950, or at the rate of P100 per share, subject to the conditions already stated, does not suffer from any legal infirmity. The segregation from the account of Hijos de I. de la Rama & Co., Inc. and the setting up in the books of the De la Rama Steamship Co., Inc. of withdrawals made by the stockholders of the appellee as accounts receivable due from said stockholders was even suggested by the President of Hijos de I. de la Rama & Co., Inc. in a letter dated 9 April 1945, addressed to the De la Rama Steamship Co., Inc. (Exhibit A-1).

There is no room for the application of the in pari delicto principle to the instant case, because the appellee corporation and the Hijos de I. de la Rama & Co., Inc. have committed no crime or violation of law, but a violation of section 12 of the deed of trust by the appellee corporation which gave rise to a cause of action by the National Development Company, the injured party, against the appellee corporation. However, the National Development Company chose not to avail itself of its right.

The appellant must answer for the personal advances made to her by the appellee corporation and the latter may set off the total sum of such advances against the amount of dividends to which she is entitled.

For the foregoing considerations, the judgment appealed from is affirmed, without pronouncement as to costs.

Paras, C. J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

G.R. No. L-20241 November 22, 1974

IN THE APPLICATION FOR REGISTRATION OF ONE PARCEL OF LAND SITUATED AT PANAKAGAN, PATIIS, SAN MATEO, RIZAL. LUIS R. SANTIAGO, applicant-appellant, vs.PACITA V. DE LOS SANTOS and BUREAU OF FORESTRY, oppositors-appellees.

Luna & Manalo for applicant-appellant.

Fortunato de Leon for private oppositor-appellee.

 

FERNANDO, J.:p

It is an occurrence, not too often repeated, that counsel, either through a display of candor, which is commendable or a failure to appreciate the untoward consequences, which is something else again, submits a pleading, which on its face demonstrates the lack of merit of the action he has filed. It did happen here. Plaintiff, now appellant, applied for registration of a parcel of land. In a motion to set the case for hearing, he attached documents indicative of the land being public in character, thus lending support to the opposition of the Director of Forestry, the Director of Lands, and a certain Pacita V. de los Santos. The then Judge Cecilia Muñoz Palma, now an Associate Justice of this Court, dismissed the suit. Its reversal is sought in this appeal. It is to be admitted that the brief submitted by new counsel, the firm of Luna and Manalo, is both thorough and comprehensive. It does not, however, avail. The infirmity of the case for appellant is incurable. We affirm.

The facts of the case and why it should be dismissed are set forth with clarity in the appealed order of the then Judge Muñoz Palma. Thus: "This is an application filed by Luis R. Santiago for registration of his title over a parcel of land containing an area of 1,288,337 sq. meters located in San Mateo, Rizal. The application is opposed by the Director of Lands, Director of Forestry and by Mrs. Pacita V. de los Santos. On September 15, 1961, after examination of the records, this Court ordered the applicant to show cause why his application should not be dismissed outright on the ground that the property applied for is part of the public domain. Subsequently, motions to dismiss the application were filed by the oppositor Pacita V. de los Santos and the Director of Forestry which motions are principally based on the allegation that the property applied for is a portion of the public domain which was leased to Mrs. Pacita de los Santos under Pasture Lease Agreement No. 1305. After due consideration of the allegations of said oppositors and taking into account certain documents existing in the records of this case, we find the Motion to Dismiss to be justified and meritorious. The Court makes reference to the documents attached to applicant's motion dated August 24, 1961 all of which show that the land object of this registration proceeding is part of the public domain which was leased under Pasture Lease Agreement No. 1305 to the oppositor Pacita V. de los Santos and which was excluded from said lease

agreement only in the month of August this year." 1

Even the most cursory reading of the order of dismissal can lead to no other conclusion except that it should be affirmed. It would be an affront to reason if on the undisputed facts, there would be any other outcome. It does follow therefore that notwithstanding the vigor with which the appeal is prosecuted by new counsel, it does not and cannot suffice for a reversal.

1. The pleading that left no choice to the then Judge Muñoz Palma except to dismiss the case reads thus: "[Comes now] the Applicant by the undersigned counsel to this Honorable Court respectfully request that the above-entitled Land Registration Case be calendared for hearing in view of the fact that a portion of the said parcel of land subject of this registration which was claimed as part of the public forest has already been released by the Honorable Secretary of Agriculture and Natural Resources for agricultural purposes as evidenced by its order dated August 10, 1961, ... ." 2 Attached to such pleading were the documents, which, in the language of the then Judge Palma, "show that the land object of this registration proceeding is part of the public domain ... ." Former counsel ought to have realized the fatal effect on his client's case of such an admission. If it were his intention to demolish entirely the pretension of plaintiff to the claim that he had been in open, public, uninterrupted, peaceful and adverse possession in the concept of owner from July 26, 1894 up to the present, he could not have succeeded any better. What was so categorically therein set forth as to such parcel of land being a part of a public forest, although

thereafter released by the Secretary of Agriculture and Natural Resources for agricultural purposes, is conclusive and binding. Our decisions from Irlanda v. Pitargue, 3 announced in a 1912 decision, to De Borja v. Vda. de Borja, 4 promulgated in 1972, speak to that effect. "It is a familiar doctrine," according to Justice J.B.L. Reyes in Joe's Radio & Electrical Supply v. Alto Electronics Corp., 5 "that an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith, should be ignored, whether objection is interposed by the party or not ... ." 6 Even if there had been a full hearing on the case, therefore, the result would not have been any different. There was no choice then for the lower court except to dismiss the complaint.

2. Laboring under such a handicap, how did the present counsel for plaintiff, the law firm of Luna and Manalo, seek to extricate him from a predicament of his own making? It would rely on certain procedural doctrines; more specifically, it would insist on the motion to dismiss of oppositor Pacita V. de los Santos as not being entitled to recognition as there was a general order of default except as to the Bureau of Lands and the Bureau of Forestry, not lifted as to her, and that she had no interest to oppose the application of the registration of her land, although admittedly there was a claim on her part under a pasture lease agreement in her favor. Hence the plea for the order of dismissal being set aside and plaintiff being allowed to present evidence. What purpose, it may pertinently be asked, would be served thereby if, after the time-consuming effort, it would clearly appear that plaintiff could not in truth show that there was such an open, uninterrupted, peaceful and adverse possession in the concept of owner? Nor is it to be forgotten that in the motion to dismiss of oppositor de los Santos, it was stated: "That the son of applicant Luis Santiago, namely Juanito S. Santiago, was one time the Lessee of the aforesaid timber area sought to be registered by him under Pasture Lease Agreement No. 182 on April 18, 1955, which Lease Agreement was cancelled by the Government on August 18, 1958 for failure of Lessee Santiago to make the improvements and comply otherwise with the terms and conditions of the Lease Contract; ... ." 7

There was no denial of such allegation. It is quite obvious then that the facts, no less than the law, call for precisely the conclusion reached by the then Judge Muñoz Palma.

There is here once more an apt illustration of the Moreland dictum in Alonso v. Villamor: 8 "Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts." 9 So, too, is this excerpt from an opinion of Chief Justice Moran in Co Tiamco v. Diaz: 10 "Rules of pleading are intended to secure a method by which the issues may be properly laid before the court. When those issues are already clear before the court, the deficiency in the observance of the rules should not be given undue importance. What is important is that the case be decided upon the merits and that it should not be allowed to go off on procedural points." 11

To show how committed is this Court to such a doctrine, reference may be made to the opinion in Economic Insurance Company, Inc. v. Uy Realty Company: 12 "It is understandable for a party in the situation of petitioner to make full use of every conceivable legal defense the law allows it. In the appraisal, however, of such attempts to evade liability to which a party like petitioner should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as a means for its frustration. Even if the petition were impressed with a greater degree of plausibility, it would be, considering all the circumstances, to crown with success an unworthy scheme to evade a just obligation by perverting the ends procedural requisites are intended to accomplish. Not once but several times, from Alonso v. Villamor, we have stressed that we are not to lend the imprimatur of our approval to any such effort, the result of which would be to render illusory substantive rights. We do so again. Technicalities, in the appropriate language of Justice Makalintal, "should give way to the realities of the situation." 13 Well could Justice Cardozo observe: "A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity." 14

3. The appealed order of dismissal is thus impressed with merit. It has likewise in its favor the soundest policy considerations, based no less on one of the prime objectives of the fundamental law. Both under the 1935 and the present Constitutions, the conservation no less than the utilization of the natural resources is ordained. 15 There would be a failure to abide by its command if the judiciary does not

scrutinize with care applications to private ownership of real estate. To be granted, they must be grounded in well-nigh incontrovertible evidence. Where, as in this case, no such proof would be forthcoming, there is no justification for viewing such claim with favor. It is a basic assumption of our polity that lands of whatever classification belong to the state. 16 Unless alienated in accordance with law, it retains its rights over the same as dominus. Its disposition is justified only when shown that its utilization promotes the public welfare. Especially so in case of doubt, considering that our forest resources have been unduly depleted, courts should not lightly accept claims that a parcel of land no longer can be classified as forestal. That is certainly one mode of assuring the realization of the national patrimony being held in trust for future generations. There is thus fealty to the ideal of conservation.

WHEREFORE, the appealed order of November 17, 1961 of the then Judge Muñoz Palma is affirmed. Costs against appellant Luis R. Santiago.

G.R. No. L-37420 July 31, 1984

MACARIA A. TORRES, petitioner, vs.COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, TOMAS NARCISO, AMADO NARCISO, SALUD NARCISO, DEMETRIA NARCISO and ADELINA NARCISO, respondents.

G.R. No. L-37421 July 31, 1984

MACARIA A. TORRES, petitioner, vs.COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, SALUD NARCISO, BALDOMERO BUENAVENTURA, DEMETRIA NARCISO, LEONARDO QUINTO, ADELINA NARCISO, CESARIO PUNZALAN, TOMAS NARCISO and AMADO NARCISO, respondents.

Juan R. Liwag for petitioner.

Cesar Nocon for respondents.

 

MELENCIO-HERRERA, J.:

This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment rendered by the then Court of Appeals in the consolidated cases, CA-G.R. NO. 34998-R entitled "Macaria A. Torres, plaintiff-appellee vs. Vicente Santillan, et al., defendants-appellants", and CA-G.R. No. 34999-R entitled "Vicente Santillan, et al., plaintiffs-appellants vs. Macaria A. Bautista, et al., defendants-appellees and the Resolution denying the Motion for Reconsideration and Petition for New Trial, be set aside; and that, instead, The Order of the Court of First Instance of August 7, 1963 be affirmed, or, in the alternative, that the case be remanded to it for new trial.

Involved in this controversy are the respective claims of petitioner and private respondents over Lot No. 551 of the Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite, with an area of approximately 1,622 square meters. covered by Transfer Certificate of Title No. T-6804 issued in the name of the legal heirs of Margarita Torres.

The facts of the case cover three generations. The propositus, Margarita Torres, during the Spanish regime, was married to Claro Santillan. Vicente and Antonina were begotten of this union. Claro died leaving Margarita a widow. Antonina married and had six children, namely: Alfredo, Salud (married to Baldomero Buenaventura), Demetria (married to Leonardo Quinto), Adelina (married to Cesario Punzalan), Tomas and Amado all surnamed Narciso, who, together with Vicente Santillan, are the private respondents. Antonina died before the institution of

the cases while Vicente died on June 4, 1957, 2 during the pendency of the cases in the Trial Courts, without progeny .

After the death of her husband, Margarita Torres cohabited with Leon Arvisu Arbole, without benefit of marriage. Out of their cohabitation, petitioner Macaria Torres (later married to Francisco Bautista) was born on June 20, 1898, and baptized on June 26, 1898. In a Certificate of Baptism issued by the Parish Priest of Tanza, Cavite, Leon Arvisu Arbole and Margarita Torres were named as father and mother of petitioner whose name was listed as Macaria Arvisu", (Exhibit "C" Another Baptismal Certificate, however, listed her name as Macaria Torres, while her father's name was left blank (Exhibit "4"). Subsequently, or on June 7, 1909, Leon Arbole and Margarita Torres were married (Exhibit "A"). Petitioner lived with and was reared by her parents. Margarita, the mother, died on December 20, 1931 (Exhibit "D"), while Leon, the father, passed away on September 14, 1933 (Exhibit " E ").

Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased temporarily by the Government (Lease No. 17) to Margarita Torres who was the actual occupant of the lot. The date of the lease cannot be determined with exactitude from the records. On December 13, 1910, the Government, through the Director of Lands, issued to Margarita Torres, Sale Certificate No. 222 (Exhibit "B") over the said lot at the price of P428.80, payable in 20 annual installments of P20.00 each. The rental/s previously paid of P17.40 was credited to the purchase price. Testimonial evidence is to the effect that Leon Arbole paid the installments out of his earnings as a water tender at the Bureau of Lands, Tanza, Cavite. The last installment, however, was paid on December 17, 1936, or three (3) years after his death.

On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a notarial deed all his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of petitioner, for the sum of P300.00. 3

On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and asking for the issuance of title in his name, which he filed with the Bureau of Lands. Based thereon, the Bureau of Lands issued the corresponding patent in the name of the legal heirs of Margarita Torres. Transfer Certificate of Title No. T-6804 was eventually issued by the Register of Deeds of Cavite on November 7, 1957, also in the name of said heirs.

On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry, with the Justice of the Peace Court of Tanza, Cavite, alleging that petitioner had entered a portion of Lot No. 551 without their consent, constructed a house. and refused to vacate upon demand. For her part, petitioner claimed that she is a co-owner of the lot in question, being one of the daughters of Margarita Torres. The ejectment case was decided against petitioner and the latter appealed to the then Court of First Instance of Cavite, where it was docketed as Civil Case No. 5547 (Ejectment Case).

On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then Court of First Instance of Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that said lot was conjugal property of the spouses Margarita Torres and Leon Arbole, and that she is their legitimated child. Private respondents filed an Answer alleging that the lot belonged exclusively to Margarita Torres; that they are her only heirs, and that the complaint for partition should be dismissed.

The Ejectment Case and the Partition Case were jointly tried and decided on November 20, 1958 with a finding that Lot No. 551 is the paraphernal property of Margarita Torres and adjudicating to private respondents two-thirds (2/3) of the property in equal shares, and to petitioner a one-third (1/3) portion. 4

Petitioner moved for reconsideration, which private respondents opposed. Pending its resolution, the Provincial Capitol of Cavite was burned, resulting in the complete destruction of the records of the two cases, which, however, were later partially reconstituted.

On August 7, 1963, the then Court of First Instance of Cavite, Branch 1, issued an Order granting reconsideration and amending the Decision of November 20, 1958. The positive portion thereof reads as follows:

Wherefore, judgment is hereby rendered in Civil Case No. .5505:

(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon Arbole and Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres;

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(3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and two-sixths (2/6th) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, all surnamed Narciso, legitimate children and heirs of the deceased Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases. 5

In concluding that petitioner is a legitimated child, the Trial Court opined:

It is undisputed that when Macaria A. Torres was born on June 20, 1898, her parents, Leon Arbole and Margarita Torres, had the capacity to marry each other. There was no legal impediment for them to marry It has also been established that Macaria A. Torres had been taken care of, brought up and reared by her parents until they died. The certificate of baptism (Exh. "G") also shows that Macaria Torres was given the family name of Arvisu, which is also the family name of her father, Leon Arbole, and that her father is Leon Arvisu and her mother is Margarita Torres. Such being the case, Macaria A. Torres possessed the status of an acknowledged natural child. And when her parents were married on June 7, 1909, she became the legitimated daughter of on Arbole and Margarita Torres. 6

Private respondents appealed. On April 2, 1973, the then Court of Appeals 7 rendered the judgment sought to be set aside herein, the decretal part of which states:

Wherefore, judgment is hereby rendered in Civil Case No. 5505:

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(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres; and

(3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and the other half (1/2) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, an surnamed Narciso, legitimate children and heirs of Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases. 8

The Appellate Court was of the opinion that:

Macaria A. Torres is not a legitimated daughter of Leon Arvisu Arbole and Margarita Torres, the former not having been legally acknowledged before or after the marriage of her parents. As correctly pointed out by the appellants in their brief, the fact that she was taken cared of, brought up and reared by her parents until they died, and that the certificate of baptism (Exhibit "C") shows that she was given the family name of Arvisu did not bestow upon her the status of an acknowledged natural child.

Under Article 121 of the old Civil Code, the governing law on the matter, children shall be considered legitimated by subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof, and Article 131 of the same code provides that the acknowledgement of a natural child must be in the record of birth, in a will or in some public document. Article 131 then prescribed the form in which the acknowledgment of a natural child should be made. The certificate of baptism of Macaria A. Torres (Exhibit "C") is not the record of birth referred to in Article 131. This article of the old Civil Code 'requires that unless the acknowledgement is made in a will or other public document, it must be made in the record of birth, or in other words, in the civil register (Samson vs. Corrales Tan, 48 PhiL 406). 9

A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In support thereof, petitioner submitted a typewritten Sworn Statement, dated March 5, 1930, of spouses Leon Arvisu (Arbole) and Margarita Torres, 10 reading in full as follows:

SWORN STATEMENT

We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority age, and residents of the Municipality of Tanza, Province of Cavite, P.I., after being duly sworn to according to law depose and say

That Macaria de Torres is our legitimized daughter she being born out of wedlock on the 26 th of June 1898 all Tanza, Cavite, but as stated she was legitimized by our subsequent marriage.

That at the time of her birth or conception, we, her parents could have married without dispensation had we desired.

That as natural child our aforesaid daughter was surnamed de Torres after that of her mother's at the time she was baptized as per record on file in the Church.

That as a legitimized daughter she should now be surnamed Arvisu after her father's family name.

Wherefore, it is respectfully requested to anybody concerned that proper remedy be made for the change of the surname of said Macaria de Torres as desired.

In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day of March 1930.

 

(Thumbmarked) (Thumbmarked)LEON ARVISU MARGARITA TORRES

Signed in the prsence of:

(Sgd.) Illegible (Sgd.) Macaria Bautista

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UNITED STATES OF AMERICA )PHILIPPINE ISLANDS )MUNICIPALITY OF TANZA ) ssPROVINCE OF CAVITE )

Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon Arvisu exhibited to me no cedula certificate being exempt on account of going over 60 years of age and Margarita Torres having exhibited no cedula certificate being exempt on account of her sex.

Witness my hand and seal of office on the date and place aforesaid.

CONSTANCIO T. VELASCO Notary Public, Cavite ProvinceUntil Dec. 31, 1930.

Not. Reg. No. 56 P. No. 2Book No. III Series of 1930. 11

The reason given for the non-production of the notarial document during trial was that the same was only found by petitioner's daughter, Nemensia A. Bautista, among the personal belongings of private respondent, Vicente Santillan, an adverse party, after his death and who may have attempted to suppress it. Private respondents, for their part, argued against new trial, and contended that it is not newly discovered evidence which could not have been produced during the trial by the exercise of due diligence.

The Decision of the Appellate Court was rendered by a Division of three, composed of Justices Jesus Y. Perez, Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for Reconsideration and New Trial was considered, there was disagreement, possibly as to whether or not new trial should be granted in respect of the sworn statement of March 5, 1930. A Special Division of five was then formed, composed of Justices Antonio Lucero Magno S. Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio and Luis B. Reyes (Justice Perez having retired or having disqualified himself). In a minute resolution of August 24, 1973, the Division of five, by a vote of three or two, denied both reconsideration and new trial.

To warrant review, petitioner, has summarized her submission based on two assignments of error. The first was expressed as follows:

Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres, it has overlooked to include in its findings of facts the admission made by Vicente Santillan and the heirs of Antonina Santillan (herein respondents) that Macaria A. Torres and Vicente Santillan and Antonina Santillan are brother and sisters with a common mother Margarita Torres and they are the legal heirs and nearest of relatives of Margarita Torres, and as a consequence thereof, the Court of Appeals had drawn an incorrect conclusion in adjudicating the entire share of Margarita Torres in the conjugal property solely to Vicente Santillan and the heirs of Antonina Santillan. (emphasis supplied)

As we understand it, petitioner has conceded, with which we concur, that, without taking account of the sworn statement of March 5, 1930, she cannot be considered a legitimated child of her parents. Continuous possession of the status of a natural child, fact of delivery by the mother, etc. will not amount to automatic recognition, but an action for compulsory recognition is still necessary, which action may be commenced only during the lifetime of the putative parents, subject to certain exceptions. 12

The admission adverted to appears in paragraph 3 of private respondents' original complaint in the Ejectment Case reading:

the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of Margarita Torres, who died in Tanza, Cavite on December 20, 1931. (Emphasis supplied).

The statement, according to petitioner, is an admission of her legitimation and is controlling in the determination of her participation in the disputed property.

We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment Case, the underlined portion was deleted so that the statement simply read:

That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza, Cavite, on December 20, 1931.

In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded as abandoned and ceases to perform any further function as a pleading. The original complaint no longer forms part of the record. 13

If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, required its formal offer. Contrary to petitioner's submission, therefore there can be no estoppel by extrajudicial admission made in the original complaint, for failure to offer it in evidence. 14

It should be noted that in the Partition Case private respondents, in their Answer (parag. 4), denied the legitimacy of petitioner.

The second error attributed to the Appellate Court has been pleaded as follows:

Also, the Court of Appeals has gravely abused its discretion when it denied the petition for new trial, knowing as it does that the judgment is clearly erroneous in view of the evidence which is offered and no amount of diligence on the part of the petitioner could it be produced in court at any time before it was offered as it was found from the personal belongings of Vicente Santillan, an adverse party, after his death.

It is our considered opinion that new trial was warranted to prevent a possible miscarriage of justice. Assuming that the genuineness and due execution of the Sworn Statement of March 5, 1930 is established in accordance with procedural due process, a new trial would resolve such vital considerations as (1) whether or not said Sworn Statement qualifies as the public document prescribed in Article 131 of the old Civil Code; 15 (2) whether or not it conforms to an act of acknowledgment by the parents after the celebration of their marriage as required by Article 121 of the same code; 16 and (3) whether or not petitioner's signature as a witness to said document was the equivalent of the consent necessary for acknowledgment of an adult person under Article 133 of that Code. 17 Affirmative answers would confer upon petitioner the status of a legitimated child of her parents, and would entitle her to enjoy hereditary rights to her mother's estate.

Private respondents stress that since petitioner signed as a witness to the document she should be chargeable with knowledge of its existence, and, therefore, the Sworn Statement was not newly discovered evidence. In our view, the document can reasonably qualify as newly discovered evidence, which could not have been produced during the trial even with the exercise of due diligence; specially if it really had been in the possession of Vicente Santillan, an adverse party who, it was alleged, suppressed the document.

In the interest of judicial expediency, the new trial can be conducted by respondent Appellate Court, now empowered to do so under Section 9 of Batas Pambansa Blg. 129.

WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new trial, and depending on its outcome, said Court shall also resolve the respective participation of the parties in the disputed property, inclusive of the estate of the deceased Vicente Santillan. No costs.

SO ORDERED.

Plana, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.

 

G.R. No. L-39013 February 29,1988

FRANCISCO BUNAG, petitioner, vs.COURT OF APPEALS, ESTRUDES BAUTISTA Vda. de BITUIN and BRUNO BAUTISTA, respondents.

 

CORTES, J.:

The core of the controversy in this case is a thumb-marked. non-notarized and non-witnessed deed of sale of a parcel of unregistered land, which on its face cannot but cause a prudent man to doubt its due execution and authenticity.

The facts are briefly summarized in the decision of the Court of Appeals:

The evidence of the plaintiff consisting of the sole testimony of said plaintiff is to the effect that the property in question was originally owned by his father Apolonio Bunag Aguas as shown by Tax Declaration Nos. 546 for 1941 and 320 for 1960 (Exhs. B & E), located at San Nicolas, Betis, Pampanga; that he had been living in their house thereon with his father until 1920 when they transferred their residence to Tarlac; that in 1925 their house thereon was demolished as it was old; that they planted bamboos on the land; that Jose Bautista Santiago, a nephew-in-law, erected a house on said lot and lived therein for sometime until he became a widower when he transferred to another house; that said Jose Bautista Santiago one day accompanied his sister Estrudes Bautista to stay in that house; and that Santiago was allowed by his father to build a house on said lot on condition that he would pay for the land taxes as compensation for the use of the land. He admitted, however, that be only learned about this agreement from his father. On September 15,1962, and September 24,1962 he sent written demands to defendant Bruno Bautista, thru his lawyer, to vacate the lot and remove the houses thereon, (Exhs. A & B). The testimony of the other witness Juan Bunag was stricken from the records as he failed to return to court for cross-examination.

On the other hand, the evidence for the defendant consist of the testimony of defendant Bruno Bautista who testified that he is the owner of the land in question by virtue of a deed of sale, of January 3, 1941, signed by Apolonio Bunag with his thumbmark; that Bunag first offered it for sale to his brother Jose Bautista, but as the latter had no money, he referred the matter to his father; that after he was contacted in Baguio by his father, he sent the P100.00 as consideration of the sale and so the sale was consummated between his father and Bunag; that he came down from Baguio and had the house repaired and he stayed there with his family until liberation when they left the house and allowed his sister Estrudes Bautista to live therein; that he planted bananas, chicos, trees, calamansi, eggplants, thereon; that he had been paying the land taxes thereon (Exhs. 5 to 5-M); that the property is declared in his name (Exh. 6); and he denies that her sister Estrudes requested Apolonio Bunag to allow her to stay on the property as her sister had a house of her own then.

Brigida Bautista testified that her brother bought the said property from Apolonio Bunag and that she was present when Bunag affixed Ms thumbmark on the document (Exh. 1); that aside from this deed, there were other documents supporting the sale as the note (Exh. 2) containing the consideration and the parties. Assessor's Field Sheet of the property (Exh. 3) and the letter of the assessor to Bunag in 1941 informing him of the revision of the assessment. (Rollo, pp. 15-18).

The trial court decided in favor of petitioner, the dispositive portion of the decision reading as follows:

IN VIEW OF THE FOREGOING, judgment is rendered in favor of the plaintiff. The defendants, Bruno Bautista and Estrudes Bautista vda. de Bituin, are hereby ordered to vacate the property herein described and to deliver possession thereof to the plaintiff, Francisco Bunag; ordering the said defendants, jointly and severally, to pay the land taxes of the property up to and including the year 1968; and to pay the plaintiff the sum of P15.00 per month as reasonable rentals thereof from the date of this judgment until the property is delivered to the plaintiff; to pay the plaintiff the sum of P200.00 as expenses of litigation and costs. For lack of merit, the counterclaim of the defendants are dismiss (Rollo, pp. 14-15)

The Court of Appeals, finding the deed of sale (Exhibit 1) to have been validly executed and, thus, concluding that "the preponderance of evidence leans heavily in favor of the claim of the ownership of defendant Bruno Bautista" [Rollo p. 18], set aside the decision of the trial court and dismissed the complaint. The motion for reconsideration was subsequently denied by the Court of Appeals in a minute resolution for lack of merit.

Consequently, resolution of the instant petition primarily revolves around the issue of the due execution authenticity of the deed of sale (Exhibit 1). The petitioner assigned the following errors:

I

THE COURT OF APPEALS ERRED IN HOLDING THAT THE DEED OF SALE (EXHIBIT "1") WAS DULY EXECUTED AND AUTHENTICATED.

II

THE COURT OF APPEALS ERRED IN MAKING CONCLUSION (SIC) NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD.

At the outset, it must be emphasized that the deed of sale (Exhibit 1) was not acknowledged before a notary public and neither are there any signatures in the blank spaces for the signatures of attesting witnesses. The document is typewritten in English and over the similarly typewritten words "APOLONIO BUNIAG" is a thumbprint.

The deed of sale (Exhibit 1) is not notarized and is, therefore, a private writing (U.S. v. Orera, 11 Phil. 596 (1908)], whose due execution and authenticity must be proved before it can be received in evidence (Nolan v. Sales, 7 Phil. 1 (1906); U.S. v. Evangelists, 29 Phil. 215 (1915); Antillon v. Barcelon, 37 Phil. 148 (1917)].

Proof of the due execution and authenticity of private writings is required under Section 21, Rule 132 of the Revised Rules of Court, to wit:

Sec. 21. Private writing, its execution and authenticity, how proved. — Before any private writing may be received in evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the writing executed;

(b) By evidence of the genuineness of the handwriting of the maker; or

(c) By a subscribing witness.

To support its conclusion as to the due execution and authenticity of the deed of sale (Exhibit 1), the Court of Appeals relied on the testimony of Brigida Bautista, a sister of private respondents. She testified as follows:

Q. Who is the owner of the property?

A My brother Bruno Bautista.

Q. Do you know how your brother, Bruno Bautista, came to own the same property?

A. Yes, sir. He bought it from Apolonio Bunag.

Q. Do you know if there is any document evidencing the purchase of the said property from Apolonio Bunag.?

A. Yes, sir.

Q. Showing to you this document already marked as Exhibit 1, do you recognize this?

A. Yes, sir, this is the document showing the purchase and sale of the lot in litigation.

Q. At the bottom portion thereof, appears a thumbmark above the typewritten name Apolonio Bunag, do you know whose thumbmark this is?

A. That is the thumbmark of Apolonio Bunag, sir, and I know that is his because I saw him affixed (sic) his thumbmark. TSN, March 25,1967, pp. 1-2).

However, the trial court found proof of the due execution and authenticity of the deed of sale (Exhibit 1) wanting, reasoning that:

The testimony of this witness (Brigida Bautista) has to be received with caution, coming as it does from a sister of the defendants. The circumstances other alleged presence during the "execution" of the deed of sale was not related. Neither does she give any light as to whether Apolonio Bunag understood the document. It should be noted that (Exhibit "1") was written in English. Since it appears that said document was merely thumb-marked, it could reasonably be inferred that Apolonio Bunag, the supposed vendor, was illiterate. Under the stances, the minimum proof necessary to establish due authenticity should, in the least, include evidence that the document (Exhibit "1") was duly read, explained and translated to Apolonio Bunag. Unfortunately, no such evidence was presented. Another fact which compels this Court to proceed with caution is the fact that there are no instrumental witnesses in the document. The mischief that lurks behind accepting at face value a document that is merely thumb-marked. without any witnesses to it, and not acknowledged before a notary public could be one of the reasons behind the requirement of the rules on evidence that a private writing must be shown to be duly executed and authenticated. The probative value of the testimony of Brigida Bautista, who did not furnish us with any details surrounding the execution of Exhibit "l," coming as it does from a person whose partisanship can not, and should not, be overlook (sic), fags short from (sic) the minimum requirements of credibility. Indeed it has been said that the testimony of an eye-witness as to the execution of a private document must be positive. He must state that the document was actually executed by the person whose name is subscribed thereto. It is not sufficient if he states in a general manner that such person made the writing (Nolan vs. Salas, Bail. More so if the document was merely thumb-marked.

Regretably, this Court can not accept, for failure of proof as to its due execution and authenticity, the probative value of Exhibit "1". (Record on Appeal, pp.38-39).

The Court sustains and adopts the trial court's findings and its conclusion that private respondents have failed to prove the due execution and authenticity of the deed of sale (Exhibit 1).

The due execution and authenticity of the deed of sale, (Exhibit 1) not having been satisfactorily proven, such private document should be excluded [Paz v. Santiago, 47 Phil. 334 (1925); Alejandrino v. Reyes, 53 Phil. 973 (1929); Chapman v. Garcia, 64 Phil. 618 (1937); General Enterprises v. Lianga Bay Logging Co., G.R. No. L-18487, August 31, 1964, 11 SCRA 733].

2. Petitioner contends that the Court of Appeals erred in arriving at a conclusion not supported by the record, when it said:

The pretension of the plaintiff that the defendant bound himself to pay the taxes for the use of the land is belied by the fact that the defendant paid the taxes in his own name and not in the name of Bunag, and the defendant kept the receipts of payment and did not deliver even one of those receipts to Bunag. (Rollo, p. 19.)

Petitioner argues that this finding is grossly erroneous, considering that in the stipulation of facts submitted by both parties before the trial court, it is expressly provided:

3. That the parties hereto hereby stipulate and agree that the defendant, Bruno Bautista, has been paying the land taxes due on the aforesaid property, personally or thru his wife, Consolacion Capati, for the period from 1940 to 1964, as shown by the corresponding official land tax receipts duly issued by the Municipal Treasurer of Guagua, Pampanga; however, under the column NAME OF DECLARED OWNER thereof, the name Bunag Aguas Apolonio is written.

As this fact was stipulated by the parties, it need not be proven, it cannot be contradicted by evidence to the contrary, and it is conclusive upon the parties, unless it is shown that the admission was made through a palpable mistake [Irlanda v. Pitargue, 22 Phil. 383 (1912); Board of Administrators, Philippine Veterans Administration v. Agcaoili, G.R. No. L-38129, July 23,1974, 58 SCRA 72].

There being no allegation of a palpable mistake that would relieve private respondents from the stipulation of facts, the stipulated fact above-quoted is conclusive upon the parties.

The Court of Appeals cannot arbitrarily disregard the statement of facts agreed upon by the parties [Siping v. Cacob, 10 Phil. 717 (1908)]. It is duty bound to render judgment strictly in accordance with the stipulation of facts [Cabrera v. Lacson, 71 Phil. 182 (1940)].

It may also be added that, indeed, in the Real Estate Tax Receipts (Exhibits 5-5-M) covering the years 1947 to 1964 presented by private respondents as their evidence, under the column entitled "NAME OF DECLARED OWNER" the name "Bunag Aguas Apolonio" is written.

This assumes greater significance considering that the payors in these receipts were either private respondent Bruno Bautista, his wife Consolacion Capati or Ambrosio Bautista.

Thus, this Court finds merit in petitioner's contention that the Court of Appeals's conclusion is not supported by the record, for said conclusion is contrary to the stipulated fact and the evidence offered by private respondents, which support petitioner's contention that his father did not sen the disputed property to private respondents' father, but merely allowed their brother to build a house on the land on the condition that the latter would pay for the realty taxes due.

With the exclusion of the deed of sale (Exhibit 1), the conclusiveness of the stipulation regarding the payment of realty taxes and the declaration of Apolonio Bunag Aguas as the owner in the Real Estate Tax Receipts (Exhibits 5-5-M) it becomes apparent that petitioner's father never ceased to own the disputed property.

At this juncture, it would be opportune to address private respondent's submission that the questions raised in petitioner's petition for review are questions of fact and not of law and, therefore, this Court should not disturb the findings of fact of the Court of Appeals. While the Court agrees with private respondents that, ordinarily, the Supreme Court should not review questions of fact in appeals of this nature, the Court finds, however, that an exception obtains in the instant case, for clearly evident is a misapprehension of facts [De la Cruz v. Sosing, 94 Phil. 26 (1953); Castillo v. Court of Appeals, G.R. No. 1,48290, September 29, 1983, 124 SCRA 808]. As summarized by the Court in a recent decision:

The jurisdiction of this Court in cases brought to us from the Court of Appeals (now Intermediate Appellate Court) is limited to the review of errors of law, said appellate court's findings of fact being conclusive upon us except (1) when the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly absurd, mistaken or impossible; (3) when there is grave abuse of discretion in the appreciation of facts; (4) when the judgment is premised on a misapprehension of facts; (5) when the findings of fact are conflicting; and (6) when the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee ... [Rizal Cement Co., Inc. v. Villareal, G.R. No. L-30272, February 28, 1985, 135 SCRA 151].

WHEREFORE, the petition is hereby GRANTED, the decision of the Court of Appeals is set aside and the decision of the trial court is affirmed in toto. This Decision is immediately executory.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 79269 June 5, 1991

PEOPLE OF THE PHILIPPINES, petitioner, vs.HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, respondents.

The Solicitor General for petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

 

DAVIDE, JR., J.:p

The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No.

86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for reconsideration

of 16 July 1987 by increasing the bail bond from P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987.

The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived.

The following are the antecedents of this petition:

In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later amended in an Amended Information 3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows:

That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New People's Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations' leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the country's territory or part of it;

That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . .

(then follows the enumeration of specific acts committed before and after February 1986).

At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture. 4

A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpus for private respondent and his co-accused was filed with this Court 5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person.

On November 7, 1986 , private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished, 6 to which petitioner filed an Opposition 7 citing, among other

grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that:

xxx xxx xxx

Par. 2 (B) — Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person.

In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash.

Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail, 9 which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion the accused is no longer entitled to bail as evidence of his guilt is strong.

On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored.

Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987.

In his Order of 7 July 1987 11 respondent Judge, taking into consideration Executive Order No. 187, granted private respondent's petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated:

. . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense.

As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied:

True, there now appears a clash between the accused's constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, "the existence of the government that bestows the right, the paramount interest of the state." Suffice to state that the Bill of Rights, one of which is the right to bail, is a "declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of

individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating" (Quisumbing-Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those "who oppose, threathen (sic) and destroy a just and orderly society and its existing civil and political institutions." The prosecution's fear may or may not be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of light to bail. Dura est lex sed lex.

In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the, provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an alien system based on a foreign ideology is attained."

On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail –– to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of:

1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested;

2. He was not arrested at his residence as he had no known address;

3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Driver's License to substantiate his false identity;

4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address;

5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false;

6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of P250,000.00 was offered and paid for his arrest,

which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised

Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings, 14 and that an arrestee may be incarcerated until trial as he presents a risk of flight; 15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel. 16

On 30 July 1987 respondent Judge handed down the Order 17 adverted to in the introductory portion of this decision the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, the Court finds the "supplemental" motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58).

In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in its opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil, 172.

Unable to agree with said Order, petitioner commenced this petition submitting therein the following issues:

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS.

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS.

in support of which petitioner argues that private respondent is estopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it

never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents' criminal background, the gravity of the pending charge, and the likelihood of flight. 18

In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00.

In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds:

I

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL.

II

RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

III

RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION.

IV

THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED.

V

THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.

We required the petitioner to reply to the comment of private respondent. 21 The reply was filed on 18 September 1987. 22

In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice.

In their respective manifestations and motions dated 5 November 24 and 23 November 1987 25 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our resolution of 19 November 1987 26 and 1 December 1987, 27

respectively.

In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this petitions, 28 which he complied with by filing his Manifestation on 30 May 1990 29

wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the light to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him which would be frustrated by the "almost certainty that respondent Salas will lump bail of whatever amount"; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge.

And now on the issues presented in this case.

I.

Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail.

We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. 30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus:

Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Section 3, Rule 114 of the Rules of Court, as amended, also provides:

Bail, a matter of right: exception. — All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong.

Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent the right is absolute. 32

And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held:

. . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom.

The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The court's discretion is limited to determining whether or not evidence of guilt is strong. 33 But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held:

The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that:

The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great! 34

Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 35

We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People vs. Dacudao, et al., 170 SCRA, 489, 495:

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not

the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . .

In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail.

II.

It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads:

Article 135. Penalty for rebellion, insurrection or coup d'etat. ––– Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua.

Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua.

xxx xxx xxx

This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. 36

III.

We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009.

On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montaño, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case:

1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 o'clock in the morning.

2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Mangga being leaders or members of the Communist Party of the Philippines, New People's Army and National Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually

committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any, safe conduct pass issued by competent authorities.

3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows:

When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners with Atty. Capulong arguing for the petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva appeared for the respondents, with Solicitor General Ordoñez arguing for the respondents.

Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately.

Solicitor General Sedfrey Ordoñez, also in open Court, confirmed the foregoing statement made by petitioners' counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required.

In addition, he stated that he is willing to confer with petitioners' counsel today relative to the compromise agreement that they have previously undertaken to submit.

Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefina Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release.

Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J., is on official leave.

4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoñez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows:

COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest:

1. That in the discussion between Romeo Capulong, petitioners' counsel, and Solicitor General Sedfrey A. Ordoñez on October 13, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play.

2. That in the conference both counsel agreed to the following terms of agreement:

a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance.

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person.

c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person.

3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record.

4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning.

WHEREFORE, it is prayed that the petition for habeas corpus be dismissed.

5. On 16 October 1986 We issued the following resolution:

G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montaño and Col. Virgilio Saldajeno] considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the condition that petitioners' lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to

ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave.

It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37 Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver.

Interestingly, private respondent admits that:

"Custody" has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by virtue of a lawful authority, or the "care and possession of a thing or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)

He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38

When the parties in G.R. No. 76009 stipulated that:

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person.

they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement.

In defining bail as:

. . . the security given for the release of a person in custody of the law, . . .

Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 40

Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail.

But, is such waiver valid?

Article 6 of the Civil Code expressly provides:

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 41

As to what rights and privileges may be waived, the authority is settled:

. . . the doctrine of waiver extends to rights and privileges of any character, and, since the word "waiver" covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . .

Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived.

While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver. 42

In Commonwealth vs. Petrillo, 43 it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to

the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be.

It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." 44

This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to be heard. 47

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(l) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states:

. . . These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the private respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE.

SO ORDERED.

G.R. No. 96251 May 11, 1993

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.DANIEL C. NAVARRO, accused-appellant.

 

NOCON, J.:

A picture speaks a thousand words, it has been said. The prosecution presented a Polaroid picture of accused-appellant Daniel C. Navarro with his sexual organ halfway inside his daughter's private part. His daughter, then eleven years old, testified that it was painful when her

father inserted his organ inside her private part. His wife, who took the picture with a Polaroid camera given by one Robert Tanner, 1

testified that she took the picture when her husband's sexual organ had already penetrated her daughter's private part and was on the verge of completely being inserted, as this was the instruction of said Robert Tanner. Accused-appellant waived his right to present evidence on his behalf even if his Demurrer to Evidence would be denied. He now appeals his conviction for rape.

Accused-appellant Daniel C. Navarro was charged with the crime of rape alleged to have been committed as follows:

That in or about September 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully arid feloniously, have carnal knowledge of . . . ANGELITA NAVARRO y CRUZ, his daughter, a girl 11 years of age. 2

As found by the trial court, the antecedents of this case are, as follows:

Angelita Navarro is a pretty Grade IV pupil at Immaculate Concepcion Elementary School at Tetuan, Zamboanga City. She is called An-An by her parents and by the kids in their neighborhood. She testified that she is eleven years old. She was born on April 28, 1978. This fact was indubitably established by her Certificate of Birth marked as Exhibit "F". She resided with her parents, Daniel and Elizabeth Navarro, and her brothers Dennis, 17 yrs. old, and Robert, 4 years old, at their house at Gov. Alvarez St., Camino Nuevo, Zamboanga City.

When she was five (5) years old, her father, accused Daniel Navarro, took her to Lantaka Hotel where he was then working as waiter and introduced her to an American named Robert Tanner who used to come to Zamboanga City every year. When she was eight (8) years old, her father again took her to Tanner's room at Lantaka Hotel. Her father had conversation with Tanner and then left her inside Tanner's room. When she was alone with Tanner in the room, the latter took her pictures while she was naked. Then Tanner asked her to pose with her legs apart and took her pictures while she was in that position. . . .

Angelita calls Tanner "Papa Bob". Tanner calls her "Bobbi". Tanner calls Daniel Navarro "Boone", "Osi-san", "old Dan", and Elizabeth Navarro "Beth", and "Beautiful Girl" (tsn, p. 34, id). Tanner gave Angelita a wrist watch, magazines and toys. He gave to her father two Polaroid cameras which she identified in court. (Exh. "I") A picture taken with a Polaroid camera develops in itself in a few seconds (tsn, pp. 60-61, id). With a Polaroid camera, "Pictures are taken, developed and printed in less than a minute" (Merit Students Encyclopedia, Vol. 4, p. 69). Angelita's father and mother used the Polaroid cameras to take her nude pictures which were sent to Tanner in the United States. In return, Tanner sent dollars to her father. Tanner was the one paying for the tuition fees of Angelita and for her school uniforms and other needs since 1985. Angelita said: "It is just like paying me because he used to have pictures coming from me" (tsn, p 67, id).

From 1985 to 1986, many pictures were sent by her parents to Tanner. In all the pictures, she was naked. Tanner does not like pictures with her clothes on. In some pictures, she was lying down with her legs spread apart and her vagina exposed. On one occasion twenty (20) pictures were taken. Sixteen (16) were sent to Tanner and the four were left behind. The pictures were taken by her father or by her mother on orders of her father (tsn, pp. 55-57, 76, 81, id). When Tanner's money arrive, her parents play mah-jong. Angelita joins her mother in playing mahjong using Tanner's money (tsn, p. 79, id).

xxx xxx xxx 3

Sometime in the month of September or October, 1989, while Angelita was inside a room in their house at Governor Alvarez, her father asked her to undress in the presence of her mother who was also in the room. It was about 4:30 in the afternoon. Angelita just came from school. When she was already naked, her father ordered her mother to take several pictures with the use of a Polaroid camera. One picture shows Angelita standing, completely naked, wearing a hat, with her private parts exposed (Exh. "A"). Another picture shows Angelita with her open mouth and tongue a few centimeters below her father's bared penis (Exh. "C"). A picture was taken while she was actually sucking inside her mouth her father's penis; another with her legs spread apart. On this occasion, her

father inserted his penis inside her vagina while her mother took pictures of the sexual connection (Exh. "B"). All the pictures, including one with her father's penis lodged inside her vagina, except the three (3) pictures marked as Exhibits "A", "B" and were sent to Robert Tanner in the United States (tsn, pp. 10-11, 15-20, 23, 76-77, April 16, 1990). Angelita testified that it was painful when her father pushed his erected penis into her sexual organ because his penis was able to penetrate inside her vagina. She said: ". . . My father just inserted his penis. When I felt the pain, I told my father that it is painful. According to my, father, never mind" (tsn, p. 76, id) . . .

xxx xxx xxx

Elizabeth Cruz Navarro 38 years old, is the wife of accused Daniel Navarro and mother of Angelita Navarro. She testified that one afternoon in the month of October, 1989, she was commanded by her husband to take pictures with the use of a Polaroid camera while he was having sexual intercourse with their daughter, Angelita, then eleven (11) years old, inside a room in their house located at Governor Alvarez, Camino Nuevo, Zamboanga City. One of the pictures taken by her of the sexual act which is marked as Exhibit "B" shows a mans penis inserted in the vagina of a woman.

xxx xxx xxx

After trial, the lower court found accused-appellant guilty as charged, and sentenced him to suffer the penalty of reclusion perpetua, to pay Angelita Navarro the sum of P30,000.00 as indemnity and P30,000.00 moral damages, P20,000.00 as exemplary damages and the costs. 4

Hence, this appeal.

The Court clarifies for the record that G.R. Nos. 96250-51 correspond to Criminal Case No. 9779, entitled "People vs. Navarro and Tanner," for Corruption of Minor, and Criminal Case No. 9761, entitled "People vs. Navarro," for Rape, which cases were jointly decided by the trial court. After the decision of conviction, the trial court directed accused-appellants Navarro and Tanner to filed separate Notice of Appeal with the Court of Appeals for Criminal Case No. 9779. 5 This decision reviews only the appeal of accused-appellant Daniel Navarro with respect to Criminal Case No. 9781 for Rape.

Accused-appellant claims error on the part of the lower court in convicting him of the crime of rape as his penis was not erect during the supposed intercourse, thereby negating any assertion by the prosecution that his penis had been inserted inside his daughter's vagina. He claims that it is impossible to insert and lodge a soft, flaccid and limp penis between the lips of his daughter's private part; as his penis was just "attached" to the labia. 6

Accused-appellant's arguments are fallacious in the face of the damaging evidence of the Prosecution showing how he raped his daughter, to wit: the testimonies of both the victim and accused-appellant's wife narrating how the accused-appellant had sexual intercourse with Angelita, the medical report on the condition of the victim's private part after the rape showing lacerations on the victim's hymen and the actual picture of the rape. 7 At any rate, there is consummated rape where the penis of the accused touched the middle part of the vagina, having penetrated the labia of the pudendum; full penetration or rupture of the hymen is not essential. 8

The accused-appellant's pretension of innocence is utterly devoid of merit.

To understand, why such a heinous and shocking incident could have happened, this Court quotes, with approval, the following finding of fact by the trial court, as follows:

The uncontradicted evidence of the prosecution established that accused Daniel Navarro facilitated or promoted the corruption of his eleven-year old daughter by leaving her to sleep alone in the hotel room of Robert Tanner; allowing her to go with Tanner to Manila where she slept in the same bed in a hotel with Tanner; taking nude pictures of his daughter in different obscene poses and forcing his wife to do so; inserting his penis inside his daughter's vagina and asking his wife to take pictures of the sexual act; sending the obscene picture of his minor daughter to Tanner in the United States to satisfy the lust of Tanner, all because of the dollars he received and expected to receive every month from Tanner as requital of his daughter's loss of innocence.

Moreover, there is proof that Tanner received the salacious, naked pictures of Angelita sent to him by Daniel Navarro. Thus, in a letter postmarked in San Francisco, California on October 6, 1988, addressed to the "NAVARROS", Tanner said:

"Folks: Thank you MUCHO for the picture of My Daughter's beautiful Cunt. She is a big girl. . . .

xxx xxx xxx

I hope your Polaroid film has not increased like mine has those pics I just sent you come to P27.85 per picture. I expect 20 pictures of only sex, no other nonsense . . . When I say sex, I mean with the "LOVE JUICES" flowing FROM SNAKE AND BOBBI'S CUNT". . . I have enough pictures of the others.

Beth, find some of Bobbi's friends for pictures, because as I said, they are the same as Bobbi, only no one gives them the opportunity to show it and admit it . . . Bobbi is not different. . . .

xxx xxx xxx

ALL OF YOU, My Daughter included, DON'T send me "HOWDY" letters, send interesting letters and INTERESTING pictures-or-NOTHING!

xxx xxx xxx

I like sex, albeit, fucking, sucking, etc. but jou have been very minimal in your response . . ."(Exh. "T"; "T-1", "T-2", "T-3")." 9

Accused-appellant's daughter, Angelita, positively declared that she was the girl in the picture and her father as the man in the picture who inserted his erect penis inside her private part causing her to cry in pain. Her testimony is as follows:

FISCAL NUVAL:

Q. What relation has this picture with the picture you said that was taken when your father was having sexual intercourse with you?

A. This is the one already.

Q. Who is this man with his exposed penis which is inserted in the vagina of a woman?

A. That is my father.

Q. Who is this woman with whom he is having sexual intercourse?

A. Its me.

Q. Who took this picture?

A. My mother.

Q. What kind of camera was used in taking this picture?

A. Polaroid.

Q. When for the first time did you see this picture?

A. The time he took the picture.

xxx xxx xxx

COURT:

Q. You said that when he inserted his penis, you complained to your father that it was painful?

A. Yes your Honor.

Q. Why was it painful?

A. Because your Honor, his penis was being inserted inside.

Q. You mean his penis was hard and erected?

A. Yes your Honor.

Q. And it entered your vagina?

A. Yes your Honor.

Q. That is why you felt pain?

A. Yes your Honor.

Q. So this post was just to take the picture as declared by your father?

A. Yes. 10

Accused-appellant's wife testified that she took the picture while her husband was having sexual intercourse with Angelita, as follows:

Q. I show you another picture which was previously marked as Exh. "B", what relation is this to that picture you said that you took?

A. This is the picture.

Q. Where did you take this picture?

A. In the house.

Q. What part of the house?

A. In the room.

Q. Who took this picture?

A. I was the one who took this picture.

Q. Who is this man having sexual intercourse with the woman?

A. It was Daniel Navarro.

Q. Who was this woman?

A. Angelita my daughter.

Q. When for the first time you saw this picture?

A. Yes. I saw this.

Q. When?

A. The time when I took the picture.

Q. What kind of camera did you use?

A. Polaroid.

Q. At the back of this picture is a signature above the date 2/9/89, whose signature is this?

A. My signature. 11

Dr. Ma. Socorro R. Galvez, who physically examined Angelita, corroborated the fact of rape with her testimony that Angelita's hymen had a healed incomplete laceration at 3 o'clock and healed complete lacerations at 6 o'clock and 8 o'clock, and that the lacerations could have been caused by the penetration of a male organ. 12

A close examination of the picture presented by the prosecution 13 indeed shows the actual sexual intercourse between accused-appellant and his daughter, Angelita, with the former's penis almost completely inserted in Angelita's vagina.

Against these four (4) pieces of evidence for the People, accused-appellant's assertion of the impossibility of rape being committed as his penis was just "attached" to his daughter's labia is plain nonsense. His daughter would NOT have cried out in pain IF it were otherwise. Denial is the weakest defense and will not prosper against a positive testimony identifying accused-appellant as the person who had sexual intercourse with the victim. 14

Article 335 of the Revised Penal Code states that the crime of "Rape" is committed by having Carnal knowledge of a woman under any of the following circumstance:

3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.

It appearing from the evidence on record that accused-appellant had sexual intercourse with his daughter, Angelita, who was then 11 years old on September 1989 when the alleged offense was committed, having been born on April 28, 1978 as shown by her birth certificate, Exhibit "F", there is no question of accused-appellant's guilt beyond reasonable doubt.

In line with current policy for the indemnity 15 imposed on rape cases, the same is increased to P50,000.00. 16

WHEREFORE, the appeal is hereby DISMISSED for lack of merit. With the modification that the indemnity is increased to P50,000.00, the judgment appealed from is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Padilla and Regalado, JJ., concur.

 

G.R. Nos. 108280-83 November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, petitioners, vs.PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

G.R. Nos. 114931-33 November 16, 1995

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants.

 

PUNO, J.:

The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista."

From August to October 1986, several informations were filed in court against eleven persons identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo.

The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence consisting of newspaper accounts of the incident and various photographs taken during the mauling.

The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa

Street and the situation later stabilized. 1

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!" 5 Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry Neri approach the victim but did not notice what he did. 7

Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9

The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he died upon arrival.

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem findings:

Cyanosis, lips, and nailbeds.

Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow.

Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.

Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.

Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital region, right side.

Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa.

Hemorrhage, subdural, extensive.

Other visceral organs, congested.

Stomach, about 1/2 filled with grayish brown food materials and fluid. 10

The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The press took pictures and a video of the event which became front-page news the following day, capturing national and international attention. This prompted President Aquino to order the Capital Regional Command and the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the killers. 11 Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons, including the accused, were apprehended and investigated.

For their defense, the principal accused denied their participation in the mauling of the victim and offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in Quezon City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the mauling which explains why his face appeared in some of the photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The maulers however ignored him. 21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense.

On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows:

WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows:

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322 , the Court finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge;

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;

3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal as Maximum;

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;

5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt and hereby acquits him of said charge;

6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge;

7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum.

The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos and Joselito Tamayo had been under detention during the pendency of these cases shall be credited to them provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause or charge.

The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of merit.

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled. 22

On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying circumstance. The dispositive portion of the decision reads:

PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows:

1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby sentenced to suffer the penalty of Reclusion Perpetua;

2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him;

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of Murder.

CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant consolidated cases, the said

cases are now hereby certified to the Honorable Supreme Court for review. 24

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the decision of the Court of Appeals against the four accused-appellants sentenced to reclusion perpetua.

Before this court, accused-appellants assign the following errors:

I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO SUMILANG.

III

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.

V

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED IS

MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY. 25

In their additional brief, appellants contend that:

I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE.

II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE

FACTUAL GROUNDS SURROUNDING THE INCIDENT. 26

Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect because they surfaced only after a reward was announced by General Lim. Renato Banculo even submitted three sworn statements to the police geared at providing a new or improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner in another case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him several times. 28

There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less that both or either of them ever received such reward from the government. On the contrary, the evidence shows that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the mauling, even before announcement of any reward. 29 He informed the police that he would cooperate with them and identify Salcedo's assailants if he saw them again. 30

The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedo's death. 31

The records show that Sumilang was admonished several times by the trial court on the witness stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness' testimony.

Banculo's mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as to some facts but disbelieved with respect to the others. 34

We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on all important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each other and their narration of the events are supported by the medical and documentary evidence on record.

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had various wounds on his body which could have been inflicted by pressure from more than one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument. 37

Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was pummeled by his assailants with stones in their hands. 38

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta — starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard, 41 — as he was being chased by his assailants 42 and as he sat pleading with his assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants for lack of proper identification by the person or persons who took the same.

The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. 50 The photographer, however, is not the only witness who can identify the pictures he has taken. 51

The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. 53

This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification. 54

However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in any of the pictures and therefore could not have participated in the mauling of the victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to cross-examine all the accused who took the witness stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility. 57

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person who took the same was not presented to identify them. We rule that the use of these photographs by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for their presence thereat. 58

An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison appears only once and he, although afflicted with hernia is shown merely running after the victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two

appellants in the photographs does not exculpate them. The photographs did not capture the entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and Banculo 61Appellants' denials and alibis cannot overcome their eyeball identification.

Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused and in convicting them of murder qualified by abuse of superior strength, not death in tumultuous affray.

Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:

Art. 251. Death caused in a tumultuous affray. — When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prison mayor.

If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim.

For this article to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence

can be identified. 62

A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. 63

The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. 64

As the lower courts found, the victim's assailants were numerous by as much as fifty in number 65 and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder.

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. 66

The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was not preceded by cool thought and reflection.

We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all. 68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia. 69

The reckless disregard for such a young person's life and the anguish wrought on his widow and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71

IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum;

3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts:

(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and

(c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

SO ORDERED.

THIRD DIVISION

[G.R. No. 94339. November 9, 1990.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROLANDO TALINGDAN @ Boyet, RAYMUNDO TIERRA @ Remy, and ALCETO TALLEDO @ Asing, Accused. ALCETO TALLEDO @ Asing, and ROLANDO TALINGDAN @ Boyet, Accused-Appellants.

The Solicitor General for Plaintiff-Appellee.

Rosita B. Salazar for Alceto Talledo.

Eliseo M. Cruz for Rolando Talingdan.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; DYING DECLARATION; DEFINITION AND REQUISITES THEREOF. — The Court of Appeals correctly ruled that the dying declaration of the victim, Bernardino Biniegas is admissible in evidence. A dying declaration is made by a person under a consciousness of impending death concerning the cause and circumstances of the injury from which he thereafter dies. The requisites for its admissibility are as follows: 1) that the declaration must concern the cause and surrounding circumstances of the declarant’s death; 2) that at the time the declaration was made, the declarant was under a consciousness of an impending death; 3) that the declarant is competent as a witness; 4) that the declaration is offered in a criminal case for homicide, murder or parricide, in which the declarant is the victim. (Section 31, Rule 130, Rules of Court)

2. ID.; ID.; ID.; ADMISSIBLE BEING AN EXCEPTION TO THE HEARSAY RULE. — The contention that Bernardino Biniegas’ statement is worthless since he can no longer be cross-examined was sufficiently answered by the Court of Appeals. A dying declaration is an exception to the constitutional right of an accused to confront and cross examine the witness against him. It is admissible being one of the exceptions to the rule excluding hearsay evidence on grounds of necessity and trustworthiness.

3. ID.; ID.; RES GESTAE; ANOTHER EXCEPTION TO THE HEARSAY RULE. — Adelina Biniegas, wife of the victim testified that her husband revealed to her the identities of his assailants. The appellants contend that her testimony should not be given credence since she did not personally see them in the act of shooting. In refutation, the Court of Appeals explained that the statements made by the victim to his wife are part of the res gestae which is another exception to the hearsay rule. The victim’s revelation of the identities of the appellants as the ones who called him was made before and subsequent to the shooting incident. (People v. Roca, 162 SCRA 696 [1988]). Its admissibility is beyond question. The wife’s testimony is therefore worthy of belief.

4. ID.; ID.; ALIBI; PHYSICAL IMPOSSIBILITY TO BE AT THE SCENE OF THE CRIME,

NOT SHOWN IN THE CASE AT BAR. — Alibi is a defense easily fabricated. These places where appellants claimed to have been at the time of the commission of the crime were only about 2 to 3 kilometers from the scene thereof. The appellants failed to demonstrate or present clear and convincing evidence that it was physically impossible for them to proceed to the place of the commission of the crime, commit the crime and immediately return thereafter. The distance from the place where the appellant was allegedly at the time of the incident to the place where the incident happened does not certainly preclude that the appellants committed the crime. (People v. Melicor, 160 SCRA 580 [1988]). The appellants’ alibi can not overcome the dying declaration of the victim and the positive testimonies of the prosecution witnesses. (People v. Orongan, 168 SCRA 586 [1988]; People v. Garcia 141 SCRA 336 [1986])

5. ID.; ID.; PARAFFIN TEST; NEGATIVE RESULT THEREOF, NOT CONCLUSIVE TO SHOW THAT A PERSON HAS NOT FIRED A GUN. — Moreover, the defense also presented NBI chemist Rolando Vitug who testified that the paraffin test results of his laboratory examination on the persons of the appellants were found to be negative. This finding, however, is not conclusive to show that a person has not fired a gun. As pointed out by the Court of Appeals, it is possible for a person to fire a gun and yet be negative for the presence of nitrates, as when firing while wearing gloves or by washing the hands afterwards. (People v. Roallos 113 SCRA 584 [1982])

6. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; CONSPIRACY AND TREACHERY, ESTABLISHED IN THE CASE AT BAR. — The Court of Appeals correctly appreciated the presence of the aggravating circumstances of conspiracy and treachery. There is no doubt that from the circumstances of the case, appellants Talingdan and Talledo, together with Tierra and a fourth man acted in concert pursuant to the same criminal objective. The prosecution clearly established that all these four men went to the victim’s house at nighttime. Talingdan and Talledo posted themselves below the house of Biniegas, Tierra near the post of the house and the fourth man, under a nearby acacia tree, acting as look out. After Tierra and Talingdan shot Bernardino Biniegas, all the four fled toward the same direction. There was deliberate, sudden and unexpected attack on the person of Bernardino Biniegas who merely responded to the call of Tierra. And when the victim pushed the window, he was immediately met by a volley of shots. Bernardino Biniegas had no opportunity whatsoever to defend himself or repel the assault.

7. ID.; MURDER; RECLUSION PERPETUA, IMPOSABLE PENALTY IN THE ABSENCE OF ANY MITIGATING CIRCUMSTANCE. — The trial court correctly convicted the appellants but erred in the imposition of the penalty. The Court of Appeals then made the following corrections: ". . . [U]nder Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. The imposable penalty which has three periods, namely, minimum (reclusion temporal), medium (reclusion perpetua) and the maximum (death), makes Article 64 of the Revised Penal Code applicable. In this case, the prosecution was able to establish the qualifying aggravating circumstances of treachery and abuse of superior strength and the ordinary aggravating circumstance of nighttime. However, abuse of superior strength and nighttime or nocturnity are absorbed by treachery. (People v. dela Cruz, 147 SCRA 359) In the absence of any mitigating circumstance, the imposable penalty should be reclusion perpetua, the medium period of the penalty pursuant to Article 64 of the Revised Penal Code."

D E C I S I O N

GUTIERREZ, JR., J.:

In the information filed with the then Court of First Instance of Abra Rolando Talingdan (alias Boyet), Raymundo Tierra (alias Remy) and Alceto Talledo (alias Asing) were charged with the crime of murder committed as follows: jgc:chanrobles.com.ph

"That on or about the 2nd day of August, 1975, in Cabaruan, Dolores, Abra, and within the jurisdiction of this Honorable Court, the three above-named accused, conspiring and confederating with each other and helping one another, did then and there, wilfully, unlawfully and feloniously, with treachery and taking advantage of nighttime, shoot and kill Bernardino Biniegas." (Rollo, p. 6)

After trial, the lower court rendered judgment finding the three accused guilty of the crime charged. The dispositive portion of the decision reads as follows: jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered that there being a prima facie case beyond reasonable doubt that the accused are guilty of the crime of murder as charged they are hereby sentenced to suffer the penalty of reclusion temporal in its maximum period to death as defined under Article 248 of the Revised Penal Code or a period of SEVENTEEN (17) YEARS and ONE (1) DAY as minimum to TWENTY (20) YEARS as maximum by applying the Indeterminate Sentence Law and to indemnify the heirs of the late Bernardino Biniegas in the sum of TWELVE THOUSAND (P12,000.00) PESOS, without subsidiary imprisonment in case of insolvency and to pay the cost.

"In case of appeal, the bailbond fixed without any reduction for each of the accused is P40,000.00." (CA-Record, p. 37)

Thereafter, the three accused elevated their case to the Court of Appeals. chanrobles law library : red

On October 12, 1978, the Court of Appeals issued a resolution certifying the case to the Supreme Court for final determination considering that in the court’s opinion, the imposable penalty is reclusion perpetua.

On October 27, 1985, Raymundo Tierra, one of the accused, filed a motion to withdraw his appeal which was granted by the Second Division of the Supreme Court in a resolution dated November 25, 1985.

On November 7, 1988, the Supreme Court resolved to return the case to the Court of Appeals for proper disposition pursuant to the court’s ruling in People v. Daniel, (86 SCRA 511, 540 [1978]).

Finally on July 23, 1990, the Court of Appeals made its own findings and affirmed the

conviction of the appellants. It then certified this case to the Supreme Court for final determination.

As to how the crime was committed, and the events immediately preceding and following the commission thereof, the prosecution’s version is presented in the People’s Brief as follows: jgc:chanrobles.com.ph

"On August 2, 1975, between 7:30 to 8:30 p.m. m Cabaruan, Dolores, Province of Abra, the victim Bernardino Biniegas a member of the police force of that town and his wife, Adelina, were inside their house conversing with each other. As they were about to sleep they heard a voice calling ‘Pari, pari.’ Consequently, the victim stood up, peeped through a slit in the window and saw four persons. His wife then asked him who were the persons outside and the victim identified them as Leonico Talingdan and accused-appellants Rolando Talingdan, Raymundo Tierra, and Alceto Talledo. Thereafter, the victim pushed the window and was met by a volley of shots inflicting wounds on him. As the victim told his wife went to his aid. The victim told his wife that the aforenamed persons were the ones who fired at him (pp. 81-84, tsn, May 11, 1976).

"Meanwhile, Honorata Biniegas, the victim’s mother who was living in the next house, upon hearing the shots, went down her house and saw the appellants and a fourth man who, henceforth, ran away from the scene of the crime. Appellants Talingdan and Tierra were armed with rifles (pp. 147-151, 154, tsn, June 14, 1976). Thereafter, the victim’s neighbor came to his aid and brought him to a place called Talogtog. Later, the mayor and others arrived at Talogtog, loaded the victim in their jeep and brought him to the Abra Provincial Hospital for treatment (pp. 101-102, tsn, May 11, 1976).

"At the hospital, at about 3:00 a.m. of the following day (August 3, 1975), PC CIC Josefino Valencia arrived and took the ante-mortem statement of the victim identifying appellants and Leonico Talingdan as the perpetrators (pp. 4-10, tsn, December 11, 1975) the contents of which are as follows:chanrob1es virtual 1aw library

1. Q What’s your name?

A Bernardino Biniegas, sir.

2. Q What happened to you?

A I was shot, sir.

3. Q Who shot you?

A Asing Barbosa, Boyet Talingdan, Remie Tierra and Leonico

Talingdan, were the ones I saw, sir.

4. Q Why did they shoot you?

A Because of a criminal suit they wanted to be settled, sir.

5. Q What gun did they use?

A Carbine, sir.

6. Q At what time did they shoot you?

A At 8:00 p.m. on the 2nd day of August, 1975, sir.

7. Q How are you feeling now?

A Very critical, sir.

8. Q Can you sign your statement?

A No, sir.

BLOOD

THUMBMARK OF PAT. BINIEGAS

(Record, p. 10, Exh. "A" — Translation)

"As a result of the above shooting, the victim suffered the following injuries which subsequently caused his death on August 3, 1975 at about 11:00 p.m.: chanrob1es virtual 1aw library

‘This is to certify that Mr./Mrs./Miss PATROLMAN BERNARDINO BINIEGAS Male/Female 26 years of DOLORES, ABRA was examined/treated in this Hospital from on 8/2/75 at 11:00 p.m., 19 ___ to ___ for the following: chanrob1es virtual 1aw library

— Circular wound 8th intercostal space left, parasternal line, directed posteriorly upward, thru and thru. Wound of entrance measures 1/2 inch in diameter; wound of exit — 1 x 1 inch in diameter, infra scapular region, left.

— Circular wound, lumbar region left about 2 inches above the anterior superior iliac spine, non-penetrating directed posteriorly downward. Wound of entrance measures 5 mm. in diameter; wound of exit — measures 1/2 inch in diameter, about 2 inches posterior to the wound of entrance.

— Circular wound, wrist, exterior aspect radial side, penetrating the bone of the index finger. Wound of entrance — measures 5 mm. diameter; wound of exit — measures 7 mm. in diameter.

Exploratory Laparotomy Findings: chanrob1es virtual 1aw library

— Perforating wound, stomach thru and thru measuring 1 1/2 x 1 1/2 inch in diameter;

— Lacerated wound involving the left lobe of liver and anterior surface of the spleen.

— Perforating injury diaphragm inferior portion right about 1 1/2 inch in diameter.

— Fracture costochondral junction 9th rib. left.

Note: Distal portion of fractured ribs perforated the superior aspect of diaphragm, left.

Cause of Death:chanrob1es virtual 1aw library

— Irreversible shock, secondary to gunshot wound involving the diaphragm stomach, spleen and liver. (Record, p. 3, Exhibit "G")

"Previous to the incident, the victim, who was a member of the police force of Dolores, Abra was investigating a case involving a theft of large cattle where the appellants were the suspects. The appellants were then persuading the victim to drop the case or settle the matter amicably but the latter refused to accede to their demands (p. 54, tsn., January 21, 1976; pp. 99-101, tsn., May 11, 1976, p. 158-161, tsn., June 14, 1976).

"At the scene of the crime the investigators found eleven shells of a .30 caliber carbine on the ground, around four meters from the house of the victim, and immediately below the window where he had peeped. They also found bullet holes on the said window and at the adjoining wall (p. 14, tsn., December 11, 1975, p. 12-14, tsn, January 19, 1976)." (People’s Brief, pp. 3-7)

In their appeal, the appellants made the following assignment of errors: chanrob1es virtual 1aw library

I

"THE TRIAL COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANTS ARE THE AUTHORS OF THE CRIME.

II

THE TRIAL COURT ERRED IN NOT GIVING FAITH AND CREDIT TO THE TESTIMONIES OF THE ACCUSED AND THEIR WITNESS.

III

THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANTS." (Rollo, pp. 151-152)

We agree with the Court of Appeals that the appellants are indeed guilty beyond reasonable doubt of the crime charged. They were identified as two of the perpetrators of the crime through the dying declaration of the victim, Bernardino Biniegas and the testimonies of PC CIC Josefino

Valencia, Adelina Biniegas, the victim’s wife and Honorata Biniegas, the victim’s mother.

The Court of Appeals correctly ruled that the dying declaration of the victim, Bernardino Biniegas is admissible in evidence. A dying declaration is made by a person under a consciousness of impending death concerning the cause and circumstances of the injury from which he thereafter dies. The requisites for its admissibility are as follows: chanrob1es virtual 1aw library

1) that the declaration must concern the cause and surrounding circumstances of the declarant’s death;

2) that at the time the declaration was made, the declarant was under a consciousness of an impending death;

3) that the declarant is competent as a witness;

4) that the declaration is offered in a criminal case for homicide, murder or parricide, in which the declarant is the victim. (Section 31, Rule 130, Rules of Court)

In the case at bar, the requisites were all satisfied. When Bernardino Biniegas made his statement, he was still in full possession of his mental faculties, although he was then weak due to his wounds. He declared with clarity and certainty that he was shot with a carbine by Asing Barbosa, Boyet Talingdan, Remie Tierra and Leonico Talingdan because of a criminal case his assailants wanted him to drop.

Asing Barbosa is the same Alceto Talledo alias "Asing", one of the appellants in this case and Boyet Talingdan is none other than Rolando Talingdan, the other appellant. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

When asked how he was feeling, Biniegas replied that he was very critical which just shows that he was conscious of the fact that his death, which occurred a day after, was imminent.

The contention that Bernardino Biniegas’ statement is worthless since he can no longer be cross-examined was sufficiently answered by the Court of Appeals. A dying declaration is an exception to the constitutional right of an accused to confront and cross examine the witness against him. It is admissible being one of the exceptions to the rule excluding hearsay evidence on grounds of necessity and trustworthiness.

PC CIC Josefino Valencia who conducted the investigation of the shooting incident was the one who took the ante-mortem statement of Bernardino Biniegas. He testified that the victim was already in serious condition when his statement was taken. He then requested Dr. Herminio B. Venus and Estrella Damian, two of the people who were present when Biniegas made his dying declaration to sign the statement as witnesses.

Adelina Biniegas, wife of the victim testified that her husband revealed to her the identities of his assailants. The pertinent portions of her testimony are as follows: jgc:chanrobles.com.ph

"A For the length of time that we have been conversing with my husband that night, there was

somebody who uttered, ‘pari, pari’ from the ground under the floor of the house, sir and my husband having heard the voice stood up and went to peep thru a space created by the bamboo split and after having peeped thru, he said, ‘they are Remy, Boyet, Asing and Leonico Talingdan,’ he said.

Q And after your husband has said those words to you, what transpired next, if any?

A He again peeped looking thru the window shutter and after that, that was the time when a gun detonated, sir. A gun detonation occurred.

Q How did your husband open your window?

A He did not open, sir. He merely pushed it like this. (The witness demonstrating an act of pushing forward with her left hand, putting the shutter forward)

Q And the moment your husband has opened your window by pushing forward-upward with his left hand, what transpired next?

A That was the time there was a gun detonation; that guns were fired and after the firing, he fell and lost his balance and fell to the place where we were lying down already wounded.

Q And when your husband fell already wounded, what did you do?

A At that moment I asked repeatedly, ‘Who are those who are those,’ I said and he said, ‘they are Remy, Boyet, Arsing and Leonico.’" (Rollo, pp. 159-160)

The appellants contend that her testimony should not be given credence since she did not personally see them in the act of shooting. In refutation, the Court of Appeals explained that the statements made by the victim to his wife are part of the res gestae which is another exception to the hearsay rule. The victim’s revelation of the identities of the appellants as the ones who called him was made before and subsequent to the shooting incident. (People v. Roca, 162 SCRA 696 [1988]). Its admissibility is beyond question. The wife’s testimony is therefore worthy of belief. Honorata Biniegas, the victim’s mother also testified that she recognized three of the four assailants on the night of the shooting as she testified, to wit: jgc:chanrobles.com.ph

"Q On the night of August 2, 1975, between the hour of 7:30 and 8:30 where were you?

A I was in our house, sir.

Q While you were in your house at that hour, do you recall if there was anything unusual that happened?

A There was, sir.

Q Will you please tell the Honorable Court what is that unusual incident that happened on that night of August 2, 1975?

A I heard gun reports and on the second time that I heard gun reports, I went down our house.

Q From what direction did you hear the gun reports coming from in relation to your house?

A According to my hearing, the gun detonations took place in front of the house of my son, Bernardino, sir.

Q Now, upon hearing the gun detonation coming from the direction of the house of Bernardino Biniegas, what did you do?

A I took the light and match and walked towards the house of Bernardino Biniegas and while I was walking I saw that there was also a lamp on the window of Bernardino Biniegas and where were persons that were lighted by that lamp, sir.

Q When you saw that there were persons lighted by that lamp in the house of Bernardino Biniegas, what did you do with the match and the light that you were then holding?

INTERPRETER

The witness answered the questions of the Fiscal without first being interpreted and the answer was:chanrob1es virtual 1aw library

A I lighted the lamp and the lamp that I lighted is a kerozene lamp which is made of a bottle and had a wick.

Q After you have lighted that lamp which is made of bottle with a wick as you said, what did you do next?

A I ran to the place along side the window where there were persons, sir.

Q And what happened or what did you do when you were at that place near the window?

A I saw that there were four male persons, one of whom was under the acacia tree; two were just under the window of the house and the one was under the house, sir.

Q Now, you mentioned four male persons that you saw after you lighted your lamp. Were you able to recognize any of these four persons?

ATTY. BLANCO

We object, very leading, Your Honor.

COURT

Next question.

FISCAL PAREDES

Q Now, do you know who were . . . . .

COURT

Q Who was that person under the acacia tree if you recognized him really?

A I was not able to recognize the person under the acacia tree because he ran away, sir. The other three were the ones I was able to recognize.

FISCAL PAREDES

Q And who are these three persons you said whom you were able to recognize?

A Rolando Talingdan, Remy Tierra and Asing Talledo, sir. They are the ones whom I recognized.

Q Now, you mentioned three persons and three names and you mentioned Rolando Talingdan. Where was Rolando Talingdan when you saw him?

A He was on the place just below the window of the house of Bernardino Biniegas but at that time they were already attempting to run away, sir.

Q How about Reynaldo Tierra alias Remy Tierra, where was he at the time you saw him?

A He was near the post of the house of Bernardino Biniegas under the house, sir.

Q How about Alceto Talledo alias ‘Asing Talledo, where was he at the time you saw him?

A He was with Talingdan sir. He was there side by side with Talingdan.

Q You mean Rolando Talingdan?

A Yes, sir.

Q Now, when you saw and recognized these four male persons you mentioned and you named, how far were you from them?

A Maybe five meters or more, sir.

Q And how were you able to recognize these three persons at that distance?

A I lighted the bottle and after having lighted it, I did like this. (The witness raises her right hand as if raising a lamp) and upon raising the lamp like this, I saw their figures and I saw their faces,

that is why I recognized them, sir." (Rollo, pp. 160-164)

The witness was very certain on direct and cross-examinations that she recognized three of the four assailants as she identified them to be Rolando Talingdan, Remy Tierra, and Asing Talledo. She was not very sure of the fourth man but this uncertainty is not enough to overthrow her whole testimony.

On the other hand, the defenses presented by the appellants are weak as against the clear and positive identification made by the prosecution witnesses as the perpetrators of the crime. (People v. Pineda, 157 SCRA 71 [1988])

The main thrust of the defense of the appellants is alibi.

Appellant Talledo claimed that he was in the house of Honorata Timbuga in Kinalaba, Dolores, Abra from 7:30 to 8:00 o’clock that night listening to a radio program "Crisanta." Thereafter, he went to a dance nearby and stayed there until 11:00 o’clock. He declared that after the dance, he went home in the company of Danila Barber and Mazareno Talledo and slept in his house until 6:00 o’clock the following morning. Appellant Talingdan, meanwhile alleged that from 7:00 to 9:00 o’clock in the evening of August 2, 1975, he and Raymundo Tierra were in the house of Mr. and Mrs. Modesto Alcantara in Talogtog, Dolores, Abra listening to the radio program "Crisanta" together with Purisimo Viloria and Flomio Valera. chanrobles virtual lawlibrary

Alibi is a defense easily fabricated. These places where appellants claimed to have been at the time of the commission of the crime were only about 2 to 3 kilometers from the scene thereof. The appellants failed to demonstrate or present clear and convincing evidence that it was physically impossible for them to proceed to the place of the commission of the crime, commit the crime and immediately return thereafter. The distance from the place where the appellant was allegedly at the time of the incident to the place where the incident happened does not certainly preclude that the appellants committed the crime. (People v. Melicor, 160 SCRA 580 [1988]). The appellants’ alibi can not overcome the dying declaration of the victim and the positive testimonies of the prosecution witnesses. (People v. Orongan, 168 SCRA 586 [1988]; People v. Garcia 141 SCRA 336 [1986])

Moreover, the defense also presented NBI chemist Rolando Vitug who testified that the paraffin test results of his laboratory examination on the persons of the appellants were found to be negative. This finding, however, is not conclusive to show that a person has not fired a gun. As pointed out by the Court of Appeals, it is possible for a person to fire a gun and yet be negative for the presence of nitrates, as when firing while wearing gloves or by washing the hands afterwards. (People v. Roallos 113 SCRA 584 [1982])

The Court of Appeals correctly appreciated the presence of the aggravating circumstances of conspiracy and treachery.

There is no doubt that from the circumstances of the case, appellants Talingdan and Talledo, together with Tierra and a fourth man acted in concert pursuant to the same criminal objective. The prosecution clearly established that all these four men went to the victim’s house at

nighttime. Talingdan and Talledo posted themselves below the house of Biniegas, Tierra near the post of the house and the fourth man, under a nearby acacia tree, acting as look out. After Tierra and Talingdan shot Bernardino Biniegas, all the four fled toward the same direction. There was deliberate, sudden and unexpected attack on the person of Bernardino Biniegas who merely responded to the call of Tierra. And when the victim pushed the window, he was immediately met by a volley of shots. Bernardino Biniegas had no opportunity whatsoever to defend himself or repel the assault.

The trial court correctly convicted the appellants but erred in the imposition of the penalty. The Court of Appeals then made the following corrections: jgc:chanrobles.com.ph

". . . [U]nder Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. The imposable penalty which has three periods, namely, minimum (reclusion temporal), medium (reclusion perpetua) and the maximum (death), makes Article 64 of the Revised Penal Code applicable. In this case, the prosecution was able to establish the qualifying aggravating circumstances of treachery and abuse of superior strength and the ordinary aggravating circumstance of nighttime. However, abuse of superior strength and nighttime or nocturnity are absorbed by treachery. (People v. dela Cruz, 147 SCRA 359) In the absence of any mitigating circumstance, the imposable penalty should be reclusion perpetua, the medium period of the penalty pursuant to Article 64 of the Revised Penal Code." (Rollo, p. 166)

WHEREFORE, the appealed judgment of the trial court as certified by the Court of Appeals is MODIFIED. The appellants, are found GUILTY beyond reasonable doubt of the crime of murder and are hereby SENTENCED to SUFFER the penalty of reclusion perpetua and to indemnify the heirs of the late Bernardino Biniegas. In accordance with recent decisions of this Court (see People v. Alegria, G.R. No. 86455, September 14, 1990; People v. Sazon, G.R. No. 89684, September 18, 1990), the civil indemnity is increased from P12,000.00 to P50,000.00.

SO ORDERED.