Feb 27, 2013 distinguished from declaration against interest, see rule 130 section 38 Concept of self serving

evidence NDC v Workmens Compensation, G.R. No. L-21724. April 27, 1967, 19 SCRA 861 Exceptions Testimonial rehabilitation multiple admissibility Admission by conduct People v Sope and Cruz G.R. L-16, January 31, 1946, 75 Phil. 810 People v Ocampo, G.R. No. 80262, September 1, 1993, 226 SCRA 1 Admission by declaration Sison v Ambalada, G.R. 9943, March 18, 1915, 30 Phil. 118 People v Yatco,G.R. No. L-9181. November 28, 1955, 97 Phil 940 Admission by Silence, (qui tacet consentire videtur) rule 130 section 32 People v Paragsa, G.R. L-44060, July 20, 1978, 84 SCRA 105 (requisites) Compromises, rule 130 section 27 Res inter alios acta alteri nocere non debet, Admission by others, rule 130 section 28 Exceptions to res inter alios Acta Vicarious admissions agents and partners, rule 130 section 28 co-conspirators, rule 130 section 30 People v Yatco, supra People v Guevarra, G.R. 65017, Nov 13, 1989, 179 SCRA 325 People v Salvador, G.R. L-77964, July 26, 1988, 163 SCRA 574 admission by privies, rule 130 section 31 Alpuerto v Perez, G.R. 12794, Oct 14, 1918, 38 Phil. 785 City of Manila v del Rosario, G.R. 1284, Nov 10, 1905, 5 Phil. 227 By the same person, rule 130 section 34 and 35 see also Character evidence rule, Rule 132, section 14 Exceptions Malig v Sandiganbayan, G.R. L-71712, April 15, 1988, 160 SCRA 623 Testimonial knowledge In general, rule 130 section 36 People v Gaddi, G.R. No. 74065. February 27, 1989, 170 SCRA 649 Estrada v Desierto, G.R. 146710-15, April 3, 2001 Comilang v Barcena, G.R. 146853, Feb 13, 2006 People v Gumimba, G.R. 174056, Feb 27, 2007 Manila .FIRST DIVISION G.R. No. L-42617 June 30, 1977 LEONIDA ROMERO, petitioner, vs. WORKMEN'S COMPENSATION COMMISSION and REPUBLIC OF THE PHILIPPINES (BUREAU OF PUBLIC SCHOOLS), respondent. Prospers D. Urbano for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and Solicitor Diosdado Saavedra for respondent. MAKASIAR, J.: Petition for review on certiorari of the January 9, 1976 decision of the Workmen's Compensation Commission affirming the September 29, 1975 Order of its Hearing Officer, dismissing petitioner's compensation claim. Petitioner Romero was employed by the respondent Bureau of Public Schools as an elementary classroom teacher from 1943 until her retirement on January 9, 1974 at the age of fifty-two (52) years by reason of her disability due to hypertension and PTB. On March 11, 1974, she filed her claim for compensation with the Department of Labor, Regional Office IV, Manila, accomplishing for the purpose WCC Form No. I. Her compensation claim was accompanied by (a) Physician's Report [WCC Form No. 4] prepared by Dr. Jose T. Romero, the Municipal Health Officer of Aliaga, Nueva Ecija, who attended to petitioner during her attack of hypertension on March 8, 1971 while in the performance of her duties in school at 10:30 A.M.; (b) letter of said Dr. Romero dated March 30, 1975 addressed to the Director of Public Schools describing therein the claimant's duties as a school teacher which gave rise to her hypertension; (c) written Report of the Evaluation Committee of the District, composed of Dr. Felipe Capalad, Division Health Supervisor, as chairman, Mr. Rufino Campos, School Principal II and Acting District Supervisor and Dr. Jose T. Romero, Municipal Health Officer of Aliaga, Nueva Ecija, as members; (d) Service Record of petitioner; and (e) Employer's Report of Accident or Sickness [WCC Form No. 3] stating among others that respondent employer was not controverting the claim and certifying that petitioner suffered an attack of hypertension while teaching her pupils at school (pp. 40-41, rec.). Without conducting any hearing, the hearing officer, Pedro Pelaez, dismissed on September 29, 1975 the claim for lack of merit (p. 47, rec.). On appeal to the Commission en banc, the order of dismissal was affirmed. According to the Commission, the sole determinative issue "... is whether the claimant during her employment, had contracted disabling compensable ailment, necessitating retirement." It ruled that: We have always held in previous cases that such disease as pulmonary tuberculosis cannot be established by a mere physician's report. There should be an x-ray reading result in addition to this physician's report. And so, we shall conclude that the claimant was not suffering from any lung ailment on or before she retired on January 9, 1974. The claimant might have experienced temporary rise of blood pressure during her employment, for which reason she went on sick leave. But that is not the issue here. Claimant's cause of action is her alleged retirement on January 9, 1974, supposedly due to her hypertension. Her own service record will show that the claimant immediately before and at the time of her retirement, was not actually and physically disabled. In fact, she rendered service up to, her last day of employment, so her service record says. It is certain, therefore, that the claimant did not retire on grounds of disability; she was not suffering any at the time of her retirement. Consequently, she should not be entitled to, and the respondent not liable for, disability compensation. There is nothing to be compensated, in the first place. She retired under RA 1616 because she was qualified to do that. The claimant capitalizes so much on the recommendation of the local committee of the Bureau of Public Schools and the so-called noncontroversion of the respondent. The Commission is not hound by such recommendation. We believe that this case does not come within the compensatory ambit of the Act. We have no valid reason to disturb the findings and conclusion of the Referee below (Commission en banc decision, pp. 2627, rec.). Petitioner duly filed a motion for reconsideration, but respondent WCC refused to change its stand, Hence, this petition. Required to comment on the petition, the Solicitor General filed one on May 10, 1976 (pp. 64-72, rec.) On June 4, 1976, the Court resolved to treat the petition as a special civil action and further required the parties to file their respective memoranda (p. 73, rec.). On July 23, 1976, the Court upon motion of the Solicitor General granted him leave to adopt his May 7,1976 comment as his memorandum. With the subsequent submission by petitioner of her rejoinder (pp. 82-90, rec.) which she filed in lieu of memorandum, the Court resolved on August 18, 1976 to consider the case submitted for decision. The decision of the respondent Commission dismissing the compensation claim of petitioner must be reversed and set aside. 1. Patent from the records are the respondent employer's statement of non-controversion and its express admission of the compensability of the claim of petitioner. Thus, in answer to item number 2 of the Employer's Report (p. 40, rec.), respondent employer stated that it was not controverting the employee's right to compensation and the report dated June 7, 1971 of the District Evaluation Committee which was favorably indorsed on June 8, 1971 to the Director of Public Schools, Manila expressly stated that on the bases of its investigation and the physician's report, the claimant, herein petitioner, was found unfit to continue rendering service as a school teacher and thereby recommended approval of her compensation claim (pp. 43-44, rec.). Another report of the same Committee dated January 19, 1974 reiterated the same findings and recommendation (p. 38, rec.). Since there was no controversion of the claim and there was no showing or claim of fraud or collusion in the non-controversion of the claim, an outright award in favor of the claimant, herein petitioner, should have been made by the Commission. For it is now well settled that failure of the employer to controvert a claim for

compensation results in the loss of non- jurisdictional defenses and constitutes an ultimate admission of compensability (Vallo vs. Workmen's Compensation Commission, et al., L-41816, October 29, 1976, citing numerous cases). The award of compensation to herein claimant becomes more compelling because there was furthermore a recognition by the respondent employer of the compensability of the claimant's illnesses; hence an admission of liability. OUR ruling and observation in the very recent case of Dinaro vs. Workmen's Compensation Commission (70 SCRA 292 [1976]) where the employer, as in the present case, not only failed to controvert the claim but also admitted the compensability of the claim, find relevance and application in this present ease. Thus: What the Commission inexplicably failed to do, particularly in view of the approaching end of the 1975 deadline was to apply the express mandate of Section 45 of the Workmen's Compensation Act ... as it has heretofore done in an unbroken line of countless cases (Cf. Victories Milling Co. vs. WCC, 101 Phil. 1208 [May 13, 1957]; Magalona vs. WCC, 21 SCRA 1199 [Dec. 11, 19671) and issue outright an award, since a failure to controvert (and more so, an express admission of the compensability of the claim, as in this case) is a renunciation of the right to challenge the claim and a waiver of all non-jurisdictional defenses and there is nothing that the employer can legally prove in relation thereto. Here, there was an express statement of non-controversion of claim and no showing of any petition under oath for reinstatement of the right to controvert nor any claim of fraud or collusion in the non-controversion of the claim. The outright issuance of an award in favor of petitionerclaimant is therefore in order. ... (Pp. 295- 296). Consequently, the contention of the Solicitor General that the filing by claimant of her notice of claim for compensation beyond the reglementary period of two months as provided by Section 24 of the Workmen's Compensation Act, as amended, was fatal to the success of her claim, is likewise without merit. Aside from the fact that such defense is barred by the failure to controvert the claim (NDC vs. WCC, 10 SCRA 696, 699 [1964], citing cases), WE have held that said defense is not jurisdictional and that the statutory right to compensation prescribes in ten years (Art. 1144 [2], New Civil Code; Vallo vs. WCC, et al., supra). 2. The ample documentary evidence on record clearly established that the illnesses of petitioner supervened in the course of her employment with respondent employer. For it is undisputed that petitioner was striken with hypertension on March 8, 1971, at 10:30 A.M., during working hours and while in the performance of her regular duties as a school teacher. The report of the attending physician showed that she was suffering from hypertension, sclerotic heart, lungs KOCHS moderate. Hence, there is also in favor of petitioner the presumption that her illnesses arose out of, or were at least aggravated by, the nature of her work and therefore compensable. Consequence of that presumption is the duty of the employer to show by substantial evidence lack of connection between petitioner's illnesses and her employment. In the instant case, not only did respondent failed to discharge that burden, for not even an iota of disconnecting evidence was presented by it, but had likewise admitted the causal connection of said illnesses with the petitioner's employment. Respondent Commission therefore erred in ignoring the aforesaid presumption when it ruled that with respect to petitioner's illness of pulmonary tuberculosis, the same "... cannot be established by a mere physician's report. There should be an x-ray reading result in addition to this physician's report." At any rate, that conclusion of the respondent Commission is erroneous. WE have already ruled that under Section 49 of the Workmen's Compensation Act, as amended, a medical report of an attending physician may be received as evidence and used as proof of the fact in dispute (Vallo vs. WCC, et al., L-41816, Oct. 29, 1976, citing the case of NDC vs. Raymundo & WCC, L-21724, April 27, 1967, 19 SCRA 861, 864). In the instant case, the report of the attending physician was made part of the record and there was no showing that the same is false or erroneous. Likewise, We have categorically ruled that an x-ray or some other laboratory report is not an indispensable prerequisite to compensation (Vallo vs. WCC, et al., supra, invoking Jacob vs. WCC, et al., 72 SCRA 575, [1976]). With respect to her hypertension, respondent commission ruled that the petitioner did not suffer any physical disability for her service record not only showed that she was not actually and physically disabled immediately before and after retirement but also that she rendered service up to her last day of employment. Even if We are to disregard the presumption of compensability and the adverse consequence of non-controversion on respondent employer's defenses, as the respondent Commission gratuitously did, the above findings of the respondent Commission would still be erroneous. To begin with, petitioner's absences (sick leaves) between March 8, 1971, when she suffered from hypertension, and January 9, 1974, the effective date of her retirement, were already without pay. And the fact that she rendered service up to the last day prior to her retirement is not conclusive as to her non-disability nor is the same sufficient to overcome the finding of the attending physician and the District Evaluation Committee that petitioner was disabled by her illnesses from her work as a school teacher. For it may be that, while she was pronounced medically disabled since March 8, 1971, nevertheless by sheer determination, she was able to continue with her work as a school teacher to earn her salary, as she had already exhausted her sick and vacation leave credits. As discussed by Morabe and Inton in their book, The Workmen's Compensation Act, collating foreign jurisprudence on the matter Disability, as a basis for compensation, is the combination of partial or total physical incapacity and of inability to work, or inability to work with the same ease and competency as before the injury, or the loss, total or partial of earning power from the injury. (Corpus Juris, Section 535, p. 813). Disability is used either in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; it is also used to mean de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything. These medical and wage-loss aspects of disability may be more clearly illustrated as follows: A claimant may be, in a medical sense, utterly shattered and ruined, but may by sheer determination and ingenuity contrive to make a living for himself; conversely, a claimant may be able to work, in both his and doctor's opinion, but awareness of his injury may lead employers to refuse him employment. The problem of the administrators of the Act is the proper balancing of these medical and wageless factors. An absolute insistence on medical disability in the abstract would produce a denial of compensation in the latter case, although the wage-loss is as real and as directly traceable to the injury as in any other instance, At the other extreme, an insistence on wage-loss as the test would deprive the claimant in the former illustration of an award, thus not only penalizing his laudable efforts to make the best of his misfortune but also fostering the absurdity of pronouncing a man non-disabled in spite of the unanimous contrary evidence of medical experts and of common observation. (Larson, p. 3, Vol. III) [p. 76]. Indeed, her obstinacy and persistence ultimately had to give way to actuality when on January 9, 1974, petitioner, unable to contain or endure the disabling effects of her illnesses any longer, mentally and physically, had to retire at the age of fifty-two (52), thirteen (13) years short of the compulsory retirement age of sixty- five (65), under C.A. 186, as amended by R.A. 1616 and R.A. 4968. Memorandum Circular No. 133, issued on October 19, 1967 by the Office of the President, authorizes optional retirement even before reaching the compulsory age of retirement only when the employee "... is physically incapacitated to render sound and efficient service." The fact that petitioner retired under the said law is likewise acknowledged by the respondent Commission when it found out that petitioner"... retired under RA 1616 because she was qualified to do that." Respondent Commission, of course, was referring to C.A. 186, as amended by R.A. 1616 and RA 4968. Yet, it went on to rule that petitioner was not physically disabled at the time of her retirement. With the approval of petitioner's retirement (pp. 89-90, rec.) under C.A. 186, as amended in relation to Memorandum Circular No. 133, the fact of petitioner's disability is thus placed beyond question or doubt. Finally as a school teacher, petitioner has to commute daily from her house to the school located in the barrio, braving all kinds of weather, has to undergo the strenuous work of teaching school children of tender age and likewise engage in extracurricular activities like scouting, conducting demonstrations in different barrios and attending conferences (p. 37, rec.). Undoubtedly, these factors brought about her illnesses which sapped her physically and ultimately forced her to retire at the early age of fifty-two (52). In this connection, it must be pointed out that R.A. 4670, otherwise known as the Magna Charta For Public School Teachers directs that Teachers shall be protected against the consequences of employment injury in accordance with existing laws. The effects of the physical and nervous strain an the teacher's health that be recognized as compensable occupational diseases in accordance with existing laws. WHEREFORE, THE DECISION DATED SEPTEMBER 29, 1975 OF THE RESPONDENT WORKMEN'S COMPENSATION COMMISSION IS HEREBY SET ASIDE AND RESPONDENT BUREAU OF PUBLIC SCHOOLS IS HEREBY ORDERED TO PAY 1. THE CLAIMANT (A) THE SUM OF SIX THOUSAND (P6,000.00) PESOS AS DISABILITY BENEFITS AND (B) HER EXPENSES FOR MEDICAL AND HOSPITAL SERVICES SUPPORTED BY PROPER RECEIPTS; 2. CLAIMANT'S COUNSEL THE AMOUNT OF SIX HUNDRED (P600.00) PESOS AS ATTORNEY'S FEES; AND 3. THE WORKMEN'S COMPENSATION COMMISSION THE AMOUNT OF SIXTY-ONE (P61.00) PESOS AS ADMINISTRATIVE FEE. SO ORDERED. Teehankee (Chairman), Muoz-Palma, Martin, Fern Manila EN BANC G.R. No. L-16 January 31, 1946 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE SOPE and MARIO CRUZ, defendantsappellants. Francisco Angeles for appellants. First Assistant Solicitor General Jose B. L. Reyes and Acting Solicitor Apolonio V. Santiago for appellee. JARANILLA, J.: The two appellants herein, Vicente Sope and Mariano Cruz, were charged with the crime of robbery in criminal case No. 7170 of the Court First Instance of Manila, while their companion, Tomas Dimalanta, was accused in a separate information in criminal case No. 7443 of the same court of having conspired with Vicente Sope and Mario Cruz in the commission thereof. On motion of the fiscal and without any objection from the defense, a joint trial was held of both cases, at the conclusion of which the court rendered a decision finding all the accused guilty of the crime of the robbery and sentencing each and every one of them to suffer an indeterminate penalty ranging from six months of a arresto mayor to three years, eight months and one day of prision correccional, with the accessories of the law, to indemnity the complainant in the amount P80 and to pay the costs. Tomas Dimalanta did not appeal; but the other two accused did, submitting for our consideration two assignments of error allegedly committed by the court below, as follows: 1. The court a quo erred in finding that "the accused Vicente Sope followed on foot," thereby assuming without proof, that he was with his co-accused during all the time that the crime, if any, was allegedly committed.

2. The court a quo erred in sustaining the charge and in convicting the accused on the uncorroborated evidence of the complainant. These assignments of error may be reduced to the sole proposition that the facts at the trial do not establish the guilt of the accused beyond reasonable doubt. The complainant, Juliana Chan, testified that at about six o'clock in the evening of April 8, 1945, when she was on her way home after selling a ring in a Bambang market, a calesa suddenly stopped in front of her, from which the appellants Sope pointed his revolver to her, while Cruz poked her back with a hard object. The other accused, Tomas Dimalanta, remained in the calesa. Cruz ordered her to board the rig, which she did, followed by him. Sope did not join them but stayed behind. Cruz and Dimalanta pretended to be peace officers who had apprehended her because they had found her violating the law, pointing to her a bag in the rig which they themselves had brought along, by which they meant that she was unlawfully dealing in U.S. Army goods. The calesa was ordered to stop at Herbosa Street in front of the Victory Cafe where the two accused even asked the complainant to take coffee with them. But all the time they kept intimidating and threatening her if she did not give them money. As a result of their concerted action, she finally gave them P200. After the offended party had reported the commission of the crime to the proper authorities all the three accused were arrested and after the presentation of the corresponding information against them, Attorney Vega approached the complainant and offered to settle the case on the part of Tomas Dimalanta by paying to her the sum of P200 on condition that she would not testify against Dimalanta because she did not really see the latter among those who had held her up. The said proposition was turned down by the offended party, although subsequently Attorney Resurreccion managed to pay her the amount of P120, thus leaving P80 unrecovered from the accused. We have carefully reviewed the evidence in this case and we find that the contention of the appellants to the effect that the trial court erred in convicting them because the facts proven at the trial do not establish their guilt beyond reasonable doubt cannot be sustained for the reasons that the material facts above referred to were, in our opinion, conclusively proven in this case. The alleged contradictions, unreasonableness and inconsistencies in the testimony of the principal witness for the prosecution are not serious enough to effect the credibility of said witness nor to merit serious consideration. The testimony of the offended party is quite reasonable, and the trial judge who had the opportunity to observe her demeanor while on the stand gave it full weight and credit as against those of the appellants. Moreover, it has been repeatedly held by this Court that the testimony of a single witness which satisfies the court in a given case is sufficient to convict. (United States vs. Cabe, 1 Phil., 265; United States vs.Dacotan, 1 Phil., 669; United States vs. De la Cruz, 4 Phil., 438; United States vs. Bastas, 5 Phil., 251; United States vs. Sison, 6 Phil., 421; United States vs. Sy Quingco, 16 Phil., 416; United States vs. Ambrosio, 17 Phil., 295; United States vs. Oracion, 18 Phil., 530; United States vs. Mondejar, 19 Phil., 158; United States vs. Callapag, 21 Phil., 262; United States vs. Baua, 27 Phil., 103; United States vs. Olais, 36 Phil., 828.) On the other hand, it has been duly established that the offended party was asked by Attorney Resurreccion on behalf of Tomas Dimalanta, one of the accused, to drop the case upon the refund of the amount of P200 which the three accused had apparently conspired to get from her by means of threats and intimidation. We agree with the Solicitor General that the repeated offer of one conspirator constitutes a strong indication and an implied admission of guilt of said conspirator and the two accused and appellants in this case. (United States vs. Torres, 34 Phil., 994.) The accused, by pretending that they were officers of the law and by employing threats and intimidation to obtain, as they did, from the offended party the amount of P200, are guilty of the crime of robbery. (See United States vs.Smith, 3 Phil., 20; United States vs. Dedulo, 31 Phil., 298-301.) It is not well founded to consider that the offense committed by the accused appears to be bribery. It seems true that the offended witness was imputed to be carrying a bundle which might have contained contraband, and for fear of discovery of that contraband the husband of the offended party run away from the scene and did not come back. There exists, however, no evidence regarding said contraband other than the testimony of the accused themselves, which is not positive and convincing. Moreover, it should not escape our attention that said testimony, coming as it does from the accused who naturally want to exculpate themselves, cannot be regarded as a free from a bias and a desire to so intensify the details thereof as to suit their case. Regarding the disappearance of the husband of the offended party, we believe that nothing unfavorable to the case of the prosecution can be attributed thereby. For all we know, he might have gone to look for a policeman or any other agent of the law to report or make a complaint of what had happened; and, as if to lend support to this view, it has been established in this case that the offended party reported the occurrence to the police and was subsequently investigated by the prosecuting attorney's office which was the one that filed the robbery charges against the accused. It was not the offended party who determined what charges to be filed; neither did she have control of the case. What is clear and uncontradicted by the facts of this case is that it was the prosecuting attorney's office that took charge of the investigation and filing of the charges for robbery, and nothing like having so framed her accusation as to make the crime committed by the accused appear to the robbery instead of bribery could be attributed to the offended party. It is very logical that the prosecuting attorney, being the one charged with the prosecution of offenses, should be determine the information to be filed and cannot be controlled by the offended party. After considering all the facts and circumstances in this case, we are of the opinion that the prosecuting attorney's office was right in filing the charge for robbery, it having been clearly proven that the one of the accused threatened the offended party with a revolver while another was sticking something hard, possibly a revolver also, against her back at that because of the intimidation employed by the accused since the beginning she was prevailed upon to give them P200. Another circumstance with should not escape our attention is that, if true that there was a bundle in the rig and that the offended party gave said sum to the accused as a bribe in view of the supposed contraband that she had, she would not have denounced them to the authorities because, generally, those who bribe do not denounce such act for the reason that they do not want to object thereto, in this case the alleged contraband, to be further disclosed to or discovered by others. Such is not the case here, because it was the offended party herself who denounced the commission of the offenses to the authorities. In view of all the foregoing, we find that the prosecuting attorney did not commit any error in proceeding against the accused for robbery and that the court a quo did not likewise commit any error in convicting the accused of said crime and in imposing the penalty meted out to them, which is within the range prescribed by law. The judgment appealed from is therefore affirmed in toto with costs against the appellants. So ordered. Moran, C.J., Feria, and Pablo, JJ., concur. Paras, concurs in the result. Separate Opinions BRIONES, M., disidente: En esta causa no tenemos mas que el testimonio directo de la ofendida, Juliana Chan, en apoyo de la acusacion. Ella insinua, si bien con notoria vaguedad, que los acusados simularon el hallazgo de un contrabando atribuyendole luego la propiedad del mismo (planted evidence). "Mejor sera que Ud. arregle el asunto con nosotros" dice que la propuso el acusado Maria Cruz, sealando al propio tiempo un saco que habia en la carromata." "Le pregunte que era aquel pequeo saco y me contesto que me lo diria mas tarde" (t. n. t., pag. 5). Los acusados, en cambio, aseguran que en la tarde de autos ellos sorprendieron a la ofendida llevando consigo un saco lleno de camisas y pantalones de khaki pertenecientes al Ejercito Americano. Segun el acusado Cruz, su compaaro Tomas Dimalanta, que era agente o policia del C. I. D. (Criminal Investigation Division) suspechando que la ofendida llevaba un contrabando, quiso investigarla. "Bajamos de la carromata dice Cruz y el hombre que estaba con Mrs. Chan echo a correr. Le persegui y pregunte si era compaero de Mrs. Chan, y como me contestara que no, lo deje. Me acerque a Mrs. Chan e inspeccione el saco que llevaba y vi que contenia camisas y pantalones de khaki pertenecientes al Ejercito. Entonces mi compaero, que era empleado del C. I. D. (refiriendose a Dimalanta) le dijo a ella que se embarcara en la carromata. . . . Yo estaba comenzando a revolver el contenido del saco, pero Mrs. Chan dijo que esto crearia un escandalo, y que bien podiamos arreglas el asunto" (t. n. t., pags. 27, 28). Quien dice la verdad? Me parece mas sincero el testimonio de los acusados y apelantes; la denunciante da la impresion de que no ha revelado toda la verdad, de que oculta algo. Hay algunas circunstancias que hacen inverosimil la pretension de que a ella le simularon el hallazgo de un contrabando, le plantaron el cuerto de un delito, empleando un anglicismo, y de que con esta treta la intimidaron y le quitaron dinero. Resulta de autos que el hombre que estaba con ella y echo a correr al ver a los acusados, era su marido (t. n. t., pag. 36). Esta prueba no ha sido impugnada; por tanto, queda en pie. Si la simulacion, el plantamiento del contrabando fuera verdad por que habia de escaparse el marido, en vez de quedarse para proteger a su esposa? Esta hubiera sido la reaccion mas logica, mas natural. O bien, si para esto no tenia agallas, por lo menos hubiera hecho algo immediatamente para dar la alarma a la policia y al vecindario. Tanto mas podia hacerse esto cuanto que, segun declaracion de la ofendida, la carromata en que ella iba con Cruz y Dimalanta caminaba despacion, como que Sope, el otro acusado, iba a pie en su seguimiento, de suerte que hubiera sido facil no perderla de vista, entretanto que se provocaba la alarma. El silencio del marido y de sys familiares produce mas bien la impresion de que el contrabando, lejos de ser un amao, un planted evidence, era verdad, y que lo que se procuraba era no alborotar para evitar un escandalo. Ademas que clase de hold-up, de asalto era este que se paseo por varias calles, de las mas centricas y mas densamente pobladas en el populoso arrabal de Tondo, y en una hora en que se supone habia mas gente y todavia con buena luz solar, pues a las 6 de la tarde en aquel dia equivalia a las 5, hora normal? Segun la ofendida, ella estaba enfrente de su casa en la calle de Algue cuando los acusados llegaron y le ordenaron que subiera a la carromata; que ya en esta, sentada entre Cruz y Dimalanta, tomaron por las calles de Antonio Rivera y Herbosa, a paso lento, siguiendoles a pie durante algun tiempo el acusado Sope, hasta llegar al Victory Cafe, enfrente del mercado de Pretil, donde se apearon del vehiculo. En el Victory Cafe, ella tomo cafe con Cruz y Dimalanta, invitada por estos. Pase que ella no se librara de los acusados mientras estaba en la carromata, aunque en verdad bien podia haberlo hecho teniendo en cuenta que el vehiculo marchaba a paso lento y por calles harto populosas. Pero que excusa habia para su extraordinaria docilidad al llegar al Victory Cafe, enfrente del mercado de Pretil, donde, segun es de presumir, debia de haber en aquella hora gran aglomeracion de gente y policias de trafico y de guardia? Si fuera verdad que los acusados la estaban intimidando con la arteria de un supuesto contrabando que mejor ocasion que aquella para alborotar y denunciar publicamente la impostura? Notese que la ofendida no es una mujer ignorante; su testimonio denota inclusive cierta agudeza. La extraa docilidad de la ofendida en aquellas circunstancias mueve el animo a conceder mas credito a la version de los acusados; que la ofendida fue cogida con las manos en la masa, esto es, con un contrabando de articulos del ejercito; que Dimalanta trato de arrestarla y llevarla a la estacion del C. I. D.; que ella queria evitar un escandalo e insinuo una oferta para arreglar la cosa; que Dimalanta, el agente del C. I. D., vio la oportunidad para un cohecho y negocio con la ofendida, quien finalmente se avino a darle la cantidad de P200 en concepto de soborno. Esto explica porque ya no se llevo al cuartel como querian al principio los acusados, segun ella misma declara (t. n. t., pag. 9), y explica tambien porque ya no se volvio a hablar del saco que naturalmente se quedo en manos de la ofendida. En la ultima parte de la ponencia se da a entender que la denunciante dio el dinero mientras uno de los acusados la amenazaba con un revolver y otro acusado, le golpeaba en la espalda con una cosa algo dura, "posiblemente un revolver tambien." La inferencia es que la entrega del dinero se hizo por temor a un dao fisico

resultante de una agresion material, violenta. Creo que esta aseveracion forzada rie con el giro de las pruebas. El aire, el tono predominante en estas es que la ofendida obro infuida por el miedo a que le arrestaran y la llevaran a la estacion del C. I. D. Si algun revolver relucion en la escena, ello fue solo incidental y no fue el factor determinante en la dacion del dinero. Se arguye, sin embargo, que si la denunciante hubiera sido sorprendida con articulos de contrabando sobornando a sus aprehensores para evitar un escandalo, lo mas natural es que se hubiese callado ya en vez de denunciar el hecho a las autoridades. El argumento no tiene mas que una fuerza aparente. Ella tenia por que temer el escandalo mientras Dimalanta y sus compaeros tuviesen bajo su control los articulos de contrabando; pero desaparecido ese control, que era lo que podia temer todavia? Todo lo contrario, ella podia quejarse impunemente contra sus aprehensores no solo para vengarse, sino hasta para inutilizarlos y asi evitar que en lo sucesivo volvieran a importunarla en sus enredos de contrabandista. La pregunta ahora en orden es la siguiente: a la luz de los hechos que anteceden que delito se ha cometido? Mi contestacion es que no es el de robo sino el de cohecho, y naturalemente el que lo cometio fue solo Dimalanta, quien recibio el soborno en su concepto de policia o agente del C. I. D., pues los otros acusados no lo eran. Es evidente que la ofendida dio el dinero no porque le tuvieran apuntado un revolver o la amenazaran con matarlo o con infligirle algun dao fisico, pues no fue este el caso segun los hechos: ella solto el dinero porque le amenazaron con detenerla y llevarla al cuartel del C. I. C. por habersele hallado un contrabando de articulos del ejercito. Ha resultado de esta intimidacion el delito de robo? De ningun modo; porque ella, a su vez, habiacometido un delito el de posesion ilegal de articulos del ejercito y dio dinero voluntariamente al policia o agente que tenia el deber de arrestarla para corromperle, librandose asi de las consecuencias de su accion delictiva. Seria robo el delito si la imputacion fuera falsa o si Dimalanta fuera un impostor, uno que fingiera ser policia o agente; pero evidentemente no es este el caso, porque la imputacion del contrabando no era falsa y porque no se niega que Dimalanta era un agente debidamente nombrado del C. I. D., con facultad para investigar y arrestar a contrabandistas de articulos del ejercito que fueran sorprendidos con las menos en la masa. La causa que nos ocupa es en cierto sentido identica a la de Estado Unidos contra Fulgencio (2 Jud. Fil., 476). En esta causa resultaba que un tal Eulogio con ciertos compaeros habian volcado un barril que llevaban en un carreton derramando todo su contendio por la calle. El procesado y sus compaeros le detuvieron por tal motivo al testigo o lo amenazaron con detenerle a menos que se les diera dinero. Despues de practicado el arresto, el acusado, que era un policia, dijo a Eulogio que si le daba P20 le pondria en libertad. Eulogio pago el dinero que se le pidio y efectivamente el policia le puso en libertad. En dicha causa esta Corte declaro que el delito cae bajo la sancion del articulo 383 del Codigo Penal diciendo que "un policia que recibe dinero por abstenerse de detener a una persona culpable de la infaccion de una ordenanza municipal, comete el delito de cohecho, previsto y penado en el articulo 383 del Codigo Penal." Como se ve, aqui hubo intimidacion, pero no por ello se califico de robo el delito. En otra causa, la de Los Estados Unidos contra Flores (19 Jur. Fil., 188) se reafirmo y hasta se explayo la doctrina. En dicha causa el acusado, Constancio Flores, fue condenado por el Juzgado de Primera Instancia de Cebu como autor del delito de cohecho porque "siendo individuo del cuerpo de policia municipal designado al servicio secreto debidamente nombrado, maliciosa y criminalmente exigio y recibio del dicho Chan Cham la cantidad de P25 a cambio de que dicho Constancio Flores se abstuviera, como en efecto se abstuvo, de denunciar y arrestar al mencionado Chan Cham por infraccion de la Ley No. 1761" (Ley de Opio). Sin embargo, esta Corte, al revisar la causa en apelacion, absolvio al acusado por la razon de que los hechos probados en la vista no eran constitutivos del delito de cohecho sino del de robo. La Corte sento la siguiente doctrina: En la causa que nos ocupa consta claramente de las pruebas que el chino a quien le fue exigido el dinero,no cometio el delito por el cual el apelante le amenazo con detenerle, ni ningun otro acto ilegal. Es igualmente indiscutible que el acusado conocia este hecho. Siendo esto asi no esta comprendido en el principio envuelto en la decision de la causa antes citada, puesto que el motivo especial por el cual el acusado en aquella causa fue condenado como autor del delito de cohecho, era que no constaba que la persona de la cual se obtuvo el dinero, no era culpable de ningun delito sino que por el contrario era muy probable que el delito se hubiera cometido y que el acusado tuviese motivos razonables para practicar el arresto. Es consecuencia que necesariamente se sigue de aquella causa que, si se hubiera probado que al acusado no constaba que se hubiese cometido ningun delito y que, por tanto, no tenia nada en que fundarse para aplicar el arresto; en otras palabras, si hubiera detenido al acusado sabiendo que no tenia derecho a detenerlo habria sido culpable del delito previsto y penado en el articulo 19 de la Ley No. 175, y no del delito de cohecho bajo el articulo 383 del Codigo Penal. Esto, por razon de que el arresto se habria efectuado con el objeto necesariamente de sacarle dinero al ofendido. Constando en la presente causa que el chino Chan Cham no era culpable de nignun delito cunado fue detenido y que al aqui apelante le constaba este hecho, la consecuencia forzosa es la de que "el arresto se practico con el objeto de arrancar al denunciante la cantidad de referencia." (Estados Unidos contra Flores, 19 Jur. Fil., 190, 191.) A renglon seguido la Corte comenta lo resuelto en la causa de Estados Unidos contra Fulgencio arriba citada y dice: "Se observara que alli concurrio, como uno de los elementos esenciales de dicha causa, el hecho dehaberse cometido un delito y que era el deber del acusado practicar el arresto y hacer comparecer al delincuente ante las authoridades competentes para su examen. (Estados Unidos contra Navarro, 3 Jur. Fil., 651; Estados Unidos contra Valdehueza, 4 Jur. Fil., 478; Estados Unidos contra Horca, 6 Jur. Fil., 53). La concurrencia de este elemento del delito distingue claramente aquella causa de la que ahora nos ocupa." (Estados Unidos contraFlores, 19 Jur. Fil., 191.) Al final la Corte declara: Como hemos visto, en la querella aqui presentada se imputa al acusado el delito de cohecho. Esto excluye por completo los elementos esenciales del delito de robo o sea la fuerza o intimidacion o ambas cosas, por cuanto que se alega que era el deber del acusado practicar la detencion, indicando asi necesariamente con esta afirmacion que el chino habia cometido un delito y que debio haber sido detenido y procesado. En tal supuesto, el chino se desprendio de su dinero espontaneamente para evitar su detencion, condena y castigo. Los delitos de cohecho y robo tienen entre si muy poca analogia por lo que respecta a los elementos que los integran. En el primero, el acto es natural y voluntario. En el segundo, ni es natural ni voluntario sino que se consuma por la fuerza o intimidacion. En la querella aqui presentada no se consignan hechos constitutivos del delito de robo y el acusado no puede ser condenado en esta causa por dicho delito. Integrando los hechos probados el delito de robo segun jurisprudencia sentada en la causa de Estados Unidos contra Smith, supra y no el de cohecho que aqui se persigue, procede revocar como revocamos la sentencia apelada y el sobreseimiento de la querella, con las costas de oficio. Asi se ordena. (Estados Unidos contra Flores, 19 Jur. Fil., 195, 196.) En la opinion de la mayoria se citan las causas de Estados Unidos contra Smith (3 Jur. Fil., 20) y Estados Unidoscontra Dedulo (31 Jur. Fil., 315) para fundamentar su acuerdo, pero creo que la doctrina sentada en dichas causas sostiene precisamente la tesis de esta disidencia. En la causa contra Smith, este fue condenado por roboporque obtuvo dinero mediante amenazas de detencion fingiendo ser agente de la autoridad; y en la causa contra Dedulo, este fue tambien convicto de robo porque simulo el hallazgo de una botella de opio en poder de unos chinos. He aqui lo declaro por esta Corte en la referida causa contra Dedulo: Creemos que es un principio perfectamente establecido en esta jurisdiccion, que el que obtiene dinero fingiendo ser agente de la autoridad mediante amenazas de detencion y de prision, es culpable del delito de robo con fuerza e intimidacion. (Estados Unidos contra Smith, 3 Jur. Fil., 20.) El policia que, a sabiendas de que una persona no ha cometido delito alguno por el cual pueda ser detenida y enjuiciada legalmente, arresta sin embargo a dicho individuo, acusandole falsamente de delito; y despues, mediante amenazas de denuncia y prision, jugando de esta manera con su ignorancia y su temor, obtiene dinero de dicha persona, lo consigue mediante fuerza e intimidacion, y comete el delito de roboprevisto en el Codigo Penal. (Estados Unidos contra Fulgencio, 2 Jur. Fil., 476; Estados Unidos contraFlores, 19 Jur. Fil., 188; Estados Unidos contra Martin, 23 Jur. Fil., 59; 3 Viada, 341; Sentencia, Tribunal Supremo de Espaa, junio 24, 1875. (Estados Unidos contra Dedulo, 31 Jur. Fil., 317, 318.) De lo dicho se colige que la doctrina sobre la materia sentada por este Supremo Tribunal de modo invariable y uniforme en una serie de causa, es la siguiente: Existe el delito de cohecho cuando el actos es funcionario o agente genuino de la autoridad y no media una imputacion falsa, sino que el dador del soborno es sorprendido cometiendo algun delito o acto ilegal y por temor a las consecuencias de su infraccion efectua la entrega de lo que se le ha exigido. Existe el delito de robo ora cuando el actor finge ser autoridad o agente de la autoridad, ora cuando, sin ser importor, hace una imputacion falsa a otro y le arranca dinero o cosa mueble de valor con la amenaza de tal imputacion. Esta es la doctrina firmemente establecida en esta jurisdiccion y no veo ninguna razon para abrogarla o alterarla. La opinion de la mayoria representa una radical desviacion de la que, por cierto, no se da ninguna explicacion. Mi concusion, pues, es que el na presente causa los hechos establecidos constituyen el delito de cohecho y no el de robo, por las siguientes razones: (1) porque Dimalanta no fingio ser agente de la autoridad, sino que era agente autentico del C. I. C.; (2) porque la denunciante habia cometido una infraccion o delito, la posesion de articulos de contrabando; (3) porque la denunciante, temiendo un escandalo, entrego voluntariamente dinero al agente como soborno para librarse de la investigacion y arresto; (4) porque si aqui hubo intimidacion, no es la intimidacion que caracteriza el delito de robo, sino el temor de que habla el Tribunal Supreme de Espaa en su sentencia de 3 de Noviembre de 1879, por el delito de cohecho, a saber: Existe el delito de cohecho, no solo cuando la dadiva es ofrecida voluntariamente por el particular, y cuando habiendola solicitado el funcionario accede aquel voluntariamente a entregarla, sino que tambien constituye dicho delito la dadiva exigida por el funcionario para abstenerse de un acto que debiera practicar cumpliendo los deberes de su cargo, y entregada por el particular por temor de las consecuencias de su deber por parte del funcionario. (Sentencia de 3 de Noviembre de 1879.) Sin embargo, los apelantes Cruz y Sope no pueden ser condenados porque en la fecha de autos no eran policias o agentes del C. I. D. sino mero particulares, y porque, ademas, el trato y la entrega del dinero medio entre Dimalanta y la denunciante. De todas maneras, la vindicta publica esta mas que plenamente satisfecha, pues Dimalanta, el autor del cohecho, no ha apelado de la sentencia y se halla en la carcel extinguiendo la condena de robo que se le ha impuesto en la presente causa. andez and Guerrero, JJ., concur. Manila.THIRD DIVISION G.R. No. 80262 September 1, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FERNANDO OCAMPO y CABRERA, accused-appellant. The Solicitor General for plaintiff-appellee.Public Attorney's Office for accused-appellant. MELO, J.:

Accused-appellant was charged with the commission of the crime of rape with homicide before the Regional Trial Court of Macabebe, Pampanga in an information reading as follows: INFORMATION The Undersigned Provincial Fiscal and Assistant Provincial Fiscal accuse FERNANDO OCAMPO y CABRERA of the felony of Rape with Homicide, committed as follows: That on or about the 8th day of February, 1987, in Barangay Capalangan, municipality of Apalit, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, FERNANDO OCAMPO y CABRERA, with lewd designs, and by means of force, threats and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of Evelyn Bildan y Danganan, a minor of ten (10) years of age, against her will and without her consent, and on the occasion thereof, with intent to kill and with grave abuse of superior strength, did then and there wilfully, unlawfully and feloniously assault, attack and employ personal violence upon said Evelyn Bildan y Danganan, inflicting upon her fatal and mortal injuries which caused her death short thereafter. ALL CONTRARY TO LAW. (p. 2, Record) Upon arraignment, accused-appellant pleaded not guilty. After trial, the court a quo rendered a decision, on September 18, 1987, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds the accused Fernando Ocampo y Cabrera guilty beyond reasonable doubt of the crime of qualified rape or rape with homicide, defined and penalized under Article 335 of the Revised Penal Code, as amended, and as consequence thereof, he is hereby sentenced to suffer the penalty of Reclusion Perpetua and/or be imprisoned for the remaining years of his life, together with all the necessary penalties provided in Article 41 of the same code. In addition, the said accused shall indemnify the heirs of the victim in the amount of P30,000.00 and reimburse them the further sum of P28,566.40 with interest at the rate of 12% per annum computed from February 8, 1987, and to pay the cost of the proceedings.(p. 61, Rollo.) From said decision, the instant appeal was interposed on the lone alleged error that the trial court erred in convicting accused-appellant. Upon a painstaking evaluation of the evidence, we find that the following facts are clearly established by the evidence. The victim, Evelyn Bildan y Danganan, was 10 years, 3 months, and 4 days old at the time of the incident on February 8, 1987. Accused-appellant is the widower of a sister of the victim's mother. His house is adjacent to that of the victim and her parents, located at Barangay Capalangan, Apalit, Pampanga. At around 11 o'clock on the morning of February 8, 1987, Mary Jane Bildan, an elder sister of the victim, was proceeding from the house of Amalia Lorenzo, her aunt, just across the road from their house, Capalangan, Apalit, Pampanga. As she was entering the gate of their residence, she saw accused-appellant Fernando Ocampo ascending the stairs. Curios at what accused-appellant was up to, Mary stayed under the house. After about four minutes, she heard a loud thud coming from inside the house. She immediately went upstairs to verify. But since the door was locked, she peeped through a hole near the door and she thereupon saw accused-appellant naked making coital movements over the naked body of her sister Evelyn who appeared to be unconscious. Frightened, Mary Jane shouted for help, causing accused-appellant to jump out of the window, still naked, bringing with him his clothes. Hearing Mary Jane's outcry, Jerry Lorenzo, Mary Jane's cousin, who was strolling nearby, arrived at the scene, followed by another neighbor. Ten minutes later, accused-appellant arrived. He opened the door by climbing through a window by means of a ladder. As soon as the door was opened, Mary Jane and Jerry Lorenzo went inside the house and saw the lifeless body of Evelyn, lying prostrate and naked on the floor. Mary Jane noticed discolorations on Evelyn's stomach and nose. Rural Health Physician Melinda Cabugawan conducted a post mortem examination on the body of the victim on February 9, 1987, and in her report (Exhibit A) she stated that : "The victim's clitoris has slight bleeding and hematoma on the tip. Abrasion and hematoma is also noted on the 11th and 1 o'clock. The vaginal mucosa has evidence of irritation"; that the "victim was sexually abused"; and that "the victim did not commit suicide" (Exhibit A, p. 1, Prosecution's Exhibit Folder). On February 17, 1987 the Medico Legal Officer of Pampanga Regional Office of the National Bureau of Investigation conducted an autopsy on the body of the victim and his autopsy report confirmed the findings of the Rural Health Physician and concluded that the cause of death was asphyxia by strangulation. (Exhibit C, p. 3, ibid.) Under his lone assigned error, accused-appellant assails the testimony of Mary Jane Bildan, the sister of the victim, as incredible. Accused-appellant contends that Mary Jane was prodded by her relatives, for lack of any other suspect, to point to accused-appellant as the culprit. This is sheer conjecture by accused-appellant without any shred of evidence. Such conjecture cannot prevail over Mary Jane Bildan's positive identification of accused-appellant as the author of the rape-homicide of Evelyn Bildan. We quote at length her testimony: FISCAL Questioning. At about eleven o'clock of February 8, 1987, where were you? A I came from my aunt and going home. Q What is the name of your aunt that you came from? A Amalia Lorenzo, sir. Q Where was the house of Amalia Lorenzo where you came from on your way home on February 8, 1987? A The house of my aunt is across the road. Q Is it on the same barangay at Capalangan? A Yes, sir. xxx xxx xxx FISCAL Questioning How about your younger sister Evelyn Bildan, where was she on February 8, 1987 at about eleven o'clock in the morning? A She was in our house, sir. Q As you said you were on your way home coming from your aunt's house at about eleven o'clock on February 8, 1987, did you reach you house on that date and hour? A Yes, sir, I reached our house. Q Before reaching your residence, did you notice if there was a person inside your house? A While I was entering the gate or yard of our house, I saw Fernando Ocampo going upstairs of our house and then I tried to follow him up. Q Did you see if Fernando Ocampo was able to enter your house? A Yes, sir. A Why do you know this Fernando Ocampo whom you saw on February 8, 1987 entered your house? WITNESS He is our neighbor, sir. Q At Capalangan, Apalit, Pampanga? A Yes, sir. Q You said you tried to follow him up and listen. Where did you go and listen to Fernando Ocampo in your house?. A I went downstairs or under the house, sir. Q And while you were under the house listening, did you hear anything unusual? A..... ATTY. RIVERA The question is very leading, Your Honor. COURT Answer. She was listening at that time, so she knows. WITNESS I heard a strong thus and I went upstairs and I saw Fernando Ocampo without any clothes. FISCAL Questioning Where did you see Fernando Ocampo inside your house without any clothes or naked? WITNESS Near the door where there was a hole. xxx xxx xxx FISCAL Questioning Could you tell us the position of Fernando Ocampo when you saw him inside your sala naked? WITNESS

I saw Fernando Ocampo naked standing while I saw him on top of my sister who was then lying and already dead and he was then making coitus movements. Q Alright, could you tell us what was the physical condition of your sister when you saw her with the accused on top of your sister and making coitus movements? A She was already dead or I mean she was unconscious, sir. Q Was she dressed when you saw her? A Without clothes, sir. Q Did you notice if she was wearing panty at that time? xxx xxx xxx WITNESS She was without panty, sir. FISCAL Questioning Alright, when you saw accused Fernando Ocampo on top of your naked sister unconscious and was making coitus movements, what did you do? A Because I was then confused, I shouted and called for help, sir. A What did you say in your shout? A I said my sister was killed by Fernando Ocampo, sir. Q Where was Fernando Ocampo when you were shouting those words? A I suddenly saw him jumped out on one of the windows, sir. (pp. 9-14, TSN May 14, 1987.) We find the aforequoted testimony of Mary Jane all too candid and forthright to preclude prevarication or evasiveness. Accused-appellant maintains that the delay of Mary Jane in revealing the identity of the rapist-killer of her sister (from February 6, 1987, the date of the incident, to February 12, 1987, when she gave her sworn statement at the CIS Office in Camp Olivas) is a clear indication that her testimony, pointing to the accused-appellant as the perpetrator of the rape-killing of her sister, is pure concoction. We do not subscribe to accused-appellant's theory. The delay of four (4) days from the time she witnessed the rape-killing of her sister up to the time she confided to her mother and uncle, Federico Danganan, the identity of the malefactor, does not impair her credibility. A delay of thirty-five (35) days before the victim reported the sexual assault upon her was not considered an unreasonable delay by this Court in People vs. Santiago (197 SCRA 556 [1991]). Delay or vacillation in making a criminal accusation does not impair the credibility of the witness, if such delay in satisfactorily explained (People vs. Elizaga, 73 SCRA 524 [1976]; People vs. Roxas (73 SCRA 583 [1976]). Mary Jane categorically testified that she did not immediately name accused-appellant as the author of the crime because "because I was afraid that he might do something to me, sir." (TSN, May 14, 1987, pp. 44-47). Tardiness in making an accusation due to fear of reprisal does not vitiate the credibility of the witness (People vs. Artieda, 90 SCRA 144 [1979]). Judging from her age at the time she witnessed the crime on February 8, 1987 until she sat on the witness stand three months thereafter, Mary Jane's timidity to relay what she saw is thus understandable for a fifteen-year old teenager who could not be expected to act like a matured woman. Withal, her inability to speak out her mind then was sufficiently clarified and her delay in informing others of what she knew about a criminal offense will not impair her credibility (People vs. Martinada, 194 SCRA 36 [1991]). Verily, Mary Jane's procrastination was brought about by the natural reticence and abhorrence of most individuals to get involved in a criminal case (People vs. Punzalan, 153 SCRA 1 [1987]). At any rate, it is a longstanding rule consistently adhered to by this Court that findings of fact of the judge who tried the case and heard the witnesses are not to be disturbed on appeal unless there are substantial facts and circumstances which, if properly considered, might affect the result of the case (People vs. Brioso, 37 SCRA 336 [1971]). Where the issues raised on appeal hinge on the credibility of witnesses, as in the case at bar, the appellate tribunals will accord due respect to the assessment of facts made by the trial court, said court having had the opportunity, not only of receiving the evidence, but also of observing the conduct and demeanor of the witnesses while testifying (People vs. Sales, 44 SCRA 489 [1972]). A sedulous examination of the record fails to disclose the presence of facts or circumstances of sufficient weight which would justify setting aside the findings of fact of the trial court. The inconsistencies in the testimony of the prosecution witnesses pointed out by accused-appellant are so minor and trivial and thus do not impair the probative value of said testimony. To the query of whether or not the identity of accused-appellant was adequately established, there seems to be a variance between Mary Jane's declaration vis-avis Jerry Lorenzo's own statement on which accused-appellant rests his plea for exculpation. While the sister of the victim was categorical enough to utter that Evelyn was killed by Fernando Ocampo (TSN, May 14, 1987, p. 14), the cousin, who was then accidentally present, testified that he heard Mary Jane shouting that her sister was dead without anything said about the identity of the culprit (TSN, May 20, 1987, p. 19; p. 22; p. 27; p. 31; p. 33). Notwithstanding such discrepancy, it has been stressed that when the testimony of two witnesses contradict each other, the court is not precluded from adopting the testimony which it believes to be true, as in this case where the trial court relied on the positive testimony of the victim's sister in support of its finding of accused-appellant's culpability (U. S. vs. Lasada, 18 Phil. 90 [1910]; 2 Regalado, Remedial Law Compendium, Fifth Rev. Ed., 1988, p.553; Sibal and Salazar, Jr., Compendium on Evidence, Second Ed., 1988, p. 393). In practical terms, accused-appellant is engaged in a subtle experiment to impeach, nay, assail Mary Jane's credibility which issue, to repeat, should not now be reviewed in the light of the well entrenched axiom in law that the faculty of assigning values to declarations at the witness stand is primarily and almost exclusively conferred upon a trial judge who, unlike appellate magistrates, is distinctly and advantageously positioned to properly evaluate such testimony (People vs. Magallanes, et al., 650. G. 19216; 2 Regalado, supra, at p. 552). Accused-appellant also argues next that if he was indeed responsible for what happened to Evelyn, he should not have immediately returned to the situs of the crime, much less opened the door to the house after passing through the window from where he escaped, for such actuations are incongruous with human nature. There can be no dispute to the legal proposition that flight from the scene of the felony is one of the indicia of a guilty conscience. However, it is equally true that in exceptional cases, culprits have become bolder by returning to their prey to ensure that the victim was successfully eliminated under the pretext of feigning innocence. The fact that this form of reverse psychology does not happen as often as flight does not mean that it can never take place. The defense of the alibi by accused-appellant is unavailing in the face of Mary Jane's positive identification of accused-appellant as the author of the rape-killing of Evelyn (People vs. Mercado, 38 SCRA 168 [1971]; People vs. Cardesan, 56 SCRA 631 [1974]. For the defense of alibi to be tenable, the accused must prove that it was physically impossible for him to be at the scene of the crime at the time of its commission (People vs. Cortez, 57 SCRA 308 [1974]). According to accused-appellant, from 11 A.M. to 1 P.M. of February 8, 1987, the day of the rape-killing of Evelyn, he was playing card game called "paris-paris" at his house with 4 other persons when he was informed by Angelita, another sister of the victim (TSN, July 7, 1987, p. 9), that Evelyn died such that he responded to the call for help by proceeding to the house where he found the unconscious Evelyn. However, his house, by his own admission, is adjacent to the house of the victim where the crime was committed (p. 7, T.S.N., July 7, 1987; p. 18, T.S.N., June 25, 1987). Definitely, therefore, there was no physical impossibility for accused-appellant mentioned were with him was presented to corroborate his version (People vs. Brioso, 67 O.G. 4438). WHEREFORE, the decision appealed from is hereby AFFIRMED with the modification as to the amount of indemnity to be paid to the heirs of the victim which is hereby increased to Fifty Thousand Pesos (P50,000.00) in line with current jurisprudential pronouncements (People vs. Alegado, 201 SCRA 37 [1991]). SO ORDERED. Feliciano, Bidin, Romero and Vitug, JJ., concur. Manila.EN BANC.DECISION March 18, 1915. G.R. No. L-9943 VICENTE SISON, ET AL., plaintiffs-appellants, vs. JULIAN AMBALADA, defendant-appellant.

Ramon Diokno for plaintiffs.Silvestre Apacible for defendant. Arellano, J.: Julian Ambalada and Modesta Afable lived together as husband and wife from 1870 until July 30, 1886, when Modesta Afable died. During their union, as Sambalada himself testified at the trial, eight children were born to them, of whom Maria Ambalada alone survived her mother. This Maria married Sancho Sison on September 19, 1890, having three children, Vicente, Maria Consolacion, and Conrado, all surnamed Sison. These three grandchildren of Ambalada and Afable have instituted the present suit against Julian Ambalada seeking liquidation of the estate belonging to the conjugal partnership between Julian Ambalada and Modesta Afable, and partition of the property constituting it, so that to them might be adjudicated the half of its products belonging to the portion of the spouse who died first, Modesta Afable. For this purpose the plaintiffs enumerate in their complaint six parcels of land as constituting the conjugal partnership property mentioned.

The defendant Julian Ambalada denies the existence of the conjugal partnership he said to have had with Modesta Afable, to whom, he avers, he was never legally married. He acknowledges in his written answer that he had by Modesta Afable among other children (four altogether enumerated in the instrument) Maria Ambalada, who, he says was born on September 11, 1875, and died on November 12, 1902, leaving the plaintiffs as her sole descendants. With respect to the property enumerated in the complaint, he says; (1) That he has never possessed the lot indicated as No. 6, because it belongs to Martina Ambalada; (2) that those indicated as Nos. 1, 2, 3, 4, and 5 belonged to Father Gabino de los Reyes, for whom during his lifetime he acted as a mere agent; (3) that those indicated as Nos. 2, 4 and 5, Father Gabino de los Reyes had ceded during his lifetime to Victorino Buhy; and (4) that those designated as NO. 1 and 3 he had inherited from Father Gabino de los Reyes when the latter died in 1897. The Court of First Instance of Batangas, which tried the case, found (1) with respect to the conjugal partnership, that it existed, and that in 1870 Julian Ambalada had entered into a religious marriage with Modesta Ambalada; and (2), with reference to property sought as belonging to such conjugal partnership property, because it had never belonged to said conjugal partnership; absolving the defendant from the complaint, without special finding as to costs. Both parties appealed and submitted bills of exception to this higher court, with rights to a review of the evidence. The defendant appealed from the first finding in the judgment, which is adverse to him. He bases his assignment of error to the judgment solely on the absence of the parish certificate of performance of the marriage ceremony, which was not presented, and on the critical examination he makes of the subsidiary parol evidence presented at the trial by the plaintiffs without making any allegation regarding the documentary. But the proof whereby the trial court has held the fact to be fully proven that is, the marriage is irrefragable. It consists of documentary and parol evidence. Among the parol evidence, the defendants testimony is prominent, despite his endeavor to deny that fundamental allegation of the complaint. Replying to questions from his own counsel, he said: I knew Modesta Afable from 1869; we were to have been married, but it (the marriage) was not carried out. I am ashamed of the fact that we never really married. The banns were published in Silang and Balayan. I spoke to Agustin Apacible and Marcela Tianco about being our godfathers, and when the time for our marriage drew near, Modesta did not want to get married in the daytime because she was seven months pregnant, and I, furthermore, was courting a prettier girl than Modesta, which was Marcela Asuncion, who was unwilling to accept me as a suitor because she was a relative of Modestas. Father Gabino was in Balayan, and he became angry because Modesta did not want to get married in the daytime, reproaching her with being ashamed in the presence of men but not in the presence of God. He went away to Silang, but returned after a fortnight, and as we were then already united, our mother told the priest that we were then married, for we were living together. Replying to cross-examination he came to the point of saying that as he was in love with another girl he wanted to run away in order not to carry out his promise to marry Modesta, but then he saw that the latter was pregnant and became ashamed. Q. How do you explain your conduct at that time? Were you determined to marry her or were you merely trying to deceive her? A. I am now perplexed by those questions, because I have already told the truth. I recall now that I have grandchildren without a grandfather and there are grandfather without grandchildren. Q. And you made Father Gabino de los Reyes believe that you were married? A. Yes, sir. Q. Your parents made Father Gabino believe the same? A. Yes, sir. Q. You have had various children by Modesta? A. Yes, sir; eight children. Q. All those children were baptized in Balayan? A. Yes, sir. Q. And you know that as a general rule those baptisms had to be registered in the church? A. Yes, sir. Q. But you know that every one of those baptisms had to be entered in the registry? A. Yes sir. Q. Did those eight children of yours bear your surname? A. Yes, sir. Q. They were regarded by everybody as your children? A. Yes, sir. Q. And you and Modesta lived as husband and wife? A. Yes, sir; so many have seen. Q. And Father Gabino, the same as your parents, considered that you were husband and wife? A. Yes, sir. In this way he went on admitting that as he was capitan municipal Modesta Afable was called capitana, because she was publicly accepted in that town as was his lawful wife, and when after Modestas death he tried to get married in Navotas he represented himself to be a widower, and in his personal cedula he was stated to be married when he sought title to the land indicated as No. 2. The other parol evidence is the testimony of the witnesses Manuel Consul, Eugenio Tolentino, and Telesforo Castigador. the former and the latter having been eyewitnesses to the marriage. Consul testifies that at daybreak one morning his mother awakened him and had him take to the church a head wrap which he delivered to the sacristan, and after the curate had celebrated the mass (the coadjutor, who was the priest Antonio Medina, others say) he married Julian Ambalada and Modesta Afable, about 4 oclock in the

morning, and this was one day about the year 1869 or 1870. It is the custom in Balayan says Eugenio Tolentino, to ascribe the ringing of bells at daybreak to a wedding; the witness heard at daybreak the sound of bells summoning worshipers to mass, at the close of which he saw the bridal couple Julian Ambalada and Modesta Afable in the customary ceremonial dress in the house of Serapio Afable, brother of the bride, wherein had gathered quite a crowd received the bridal couple at the door, the function having been attended with music from the church. Telesforo Castigador, 63 years of age, testifies that his house is near the church; that the bells rang for mass at daybreak; he went to attend it, and saw the marriage between Julian Ambalada and Modesta Afable celebrated; that marriages at daybreak were frequent, if the curate were paid; that a nephew of his paid 6 pesos to the curate were and was married at daybreak. Timoteo Martinez, merchant, who was born in 1872, says that he went to get his baptismal certificate and did not find it in the books of the parish of Balayan, which he himself had searched through. Sancho Sison says that he also did not find the baptismal certificates of any of Julian Ambaladas children, nor the certificate of the death of another daughter of theirs, also named Maria Ambalada. Rafael Apacible, who has kept the parish record since 1896, testifies that at the request of Modesta Toribio, Isidro Apacible, Severa Apacible, and others, he sought for their baptismal records and did not find them, nor the record of the marriage of Julian Ambalada and Modesta Afable. Then appear as evidence certain parish certificates of baptism, in no way impugned by the defendant, in all of which it is certified that the boys and girls baptized are all legitimate issue of the lawful marriage of Julian Ambalada and Modesta Afable; some of these certificates are attested by Father Gabino de los Reyes as the parish priest of Balayan. These are precisely those of the two daughters, both named Maria Ambalada. In the parish burial certificates of Modesta Afable and various children of hers by Julian Ambalada, it is stated: In the first Doa Modesta Afable, married to Don Julian Ambalada; and in the last two, children of Don Julian and Doa Modesta Afable. In the marriage certificate of Sancho Sison with Maria Ambalada she is stated to be daughter of Don Julian and Doa Modesta Afable. In the baptismal certificates of the three children of Sancho Sison it is stated that their maternal grandparents are Don Julian and Doa Modesta Afable. In the inscription of the property title of the land in the sitio of Tuyuntuyon (Exhibit N), Julian Ambalada, in a document of his own and unimpeachable by him, is described as married in 1893, when he applied for said title, and as he was then living with Modesta Afable, it would not be understood that he was married to any else than Modesta Afable. From all this evidence, held by the trial judge to be conclusive, it is a fact that Julian Ambalada and Modesta Afable were united in lawful canonical marriage. The legal presumption is that a man and woman living together as husband and wife have entered into a lawful contract of marriage (Code Civ, Proc., sec. 334, No. 28.); but presumptions established by law may be destroyed by proof to the contrary (Civil Code, art. 1251). Proof to the contrary rests upon the defendant, and he has adduced more whatever, for proof to overcome the legal presumption is not constituted by absence of the marriage certificate in the books of the parish of Balayan, wherein it is seen that other entries as important as that of the marriage in question are lacking. Lack of record of an act or fact in certain books of registry is not per se proof of the non-existence of the fact or act, outside of the cases where the laws specifically requires as essential evidence the record itself or the inscription of the fact or act to be proven. A particular point on this instance in support of the presumption established by law is that Julian Ambalada earnestly insists on his averment that from his infancy he always lived with father Gabino de los Reyes until the death of the latter, who was the parish priest of Balayan. It has been proven in an efficacious manner, and is a fact admitted by the litigating parties, that Father Gabino de los Reyes was a priest of acknowledged probity, and as such parish priest of Balayan would not have falsely attested the entry in the church record of his parish of the baptism of the two daughters of Julian Ambalada and Modesta Afable, both named Maria Ambalada, one born in 1873 and the other in 1875, by registering them as legitimate and issue from the legitimate marriage of Julian Ambalada and Modesta Afable. (Exhibits A and D. ) From his own knowledge, according to the previous facts established by the defendant himself, and convinced in his own mind, he must have made those entries, which in assuring the legitimacy of such daughters took for granted at the same time the legitimacy of their parents marriage. Whatever may have been the reason for the absence of record, the fact established herein all conclusively support the marriage affirmed in the judgment appealed from. The plaintiffs have objected to the second finding therein because the character of partnership property has been denied to the property claimed in paragraph 10 of the complaint. One of these pieces of property is that indicated in the complaint as No. 1, a tract of land situated in Talon, municipality Tuy, with an area of 97 hectares, 64 ares, and 68 centares, and with the boundaries as set forth in the complaint. Title of ownership to this tract is inscribed in the registry of the Province of Batangas. The inscription reads: Don Julian Ambalada, resident of Tuy, applied for composition with the State for this property and by decree of the Direccion General de Administration Civil on June 13, 1882, said property was gratuitously adjudicated to him in accordance with the Royal Decree of June 25, 1880. On November 6, 1882, the Director General de Administracion Civil of these Islands, Don Manuel Llana, issued in Manila title of ownership to this property in favor of the grantee, which title was signed also by the Inspector General de Montes. Don Luis de la Escosura, and record of the same was made on the same day in the Inspeccion General de Montes at Manila. (Exhibit O.) Another is that designated as No. 2, a tract of land situate in Tuyuntuyon of the municipality of Tuy, of 68 hectares, 20 ares, and 63 centares, with the boundaries as set forth in the petition. The title of ownership is inscribed in the registry of the Province of Batangas. The inscription read thus: Don Julian Ambalada y de los Reyes, 47 years of age, married, and resident of Tuy, is the owner of the property, according to the composition title issued in his name at Manila on February 15, 1883, by the Director General de Administracion Civil of these Islands, don Manuel Llana, etc. (Exhibit N.) In the judgment appealed from, it is held that Julian Ambalada inherited parcel No. 1 from Father Gabino de los Reyes; but as this latter died in 1896 (1897, his nephew Rufino de los Reyes says) and Modesta Afable died in 1886, it could not be understood to have been acquired during the conjugal partnership, and furthermore even if it had been acquired during the conjugal partnership it could not be regarded as partnership property, because its acquisition was by gratuitous title, that is, inheritance. But there is no evidence in the record of the title by inheritance alleged by the defendant. The deposition of Rufuna de los Reyes, sister of Father Gabino de los Reyes, was submitted in the effort thereby to prove this transfer of title by inheritance; but such design did not succeed. This question was addressed to the deponent: Do you know to whom were granted Father Gabinos properties in Tuy and Balayan? But the court sustained the object made by counsel for the plaintiffs on the grounds he alleged, and the answer given to this question is the same as if it had not been made.

Title by inheritance, especially when voluntary in the collateral line, is proven either by a will or by a sworn declaration in a special proceeding, and not by the declaration of a witness, when, as in this case, there is contradiction and opposition. Title of ownership inscribed in the property registry in the name of one person in his own right, and not derived from another, cannot be invalidated by the declaration of a witness who ascribes the ownership to a different person and makes it appear to be derived from such person. With respect to the parcels of realty Nos. 2,4 and 5 of paragraph 10 of the complaint, the court held that Father Gabino de los Reyes had given them in his lifetime to Victorino Buhay in payment of a debt of 11,111 pesos. (B. of E., 19.) It has already been stated that No. 2 is a tract of land in the sitio of Tuyuntuyon, municipality of Tuy, inscribed in the property registry of Batangas as belonging to Julian Ambalada. No. 4 is a lot in the municipality of Tuy. No. 5 is also a lot in the municipality of Balayan, with a building of strong materials. No. 2, according to the registry, was acquired by Julian Ambaladan under title of composition with the State on February 15, 1883. The party who applied for inscription of this composition title in the registry was Victorino Buhay, who on March 12, 1895, inscribed the public instrument recording the sale he had made of said land to Julian Ambalada on January 24 of the same year, 1895. There is no evidence that this land belonged to Father Gabino; nor is there any that Father Gabino de los Reyes ceded it to Victorino Buhay in payment of a debt of 11,111 pesos. What is proven in an irrefutable manner is that it belonged to the conjugal property of the marriage as having been acquired by Julian Ambalada on February 15, 1883, while his wife Modesta Afable was still living. (Civil Code, art. 1401, par. 1.) And it appears in the registry that the party who sold this land to Buhay was Julian Ambalada, and that the price was 3,500 pesos, not 11,111 pesos. Nor is there any evidence that the lots 4 and 5, the latter situated in the municipality of Balayan with a building of strong materials, and the former in the municipality of Tuy, belonged to Father Gabino de los Reyes and that they had been ceded to Voctorino Buhay for the debt stated. What appears in Exhibit Z, presented by the defendant, an instrument executed before the gobernadorcillo of Balayan, his witnesses who were present and those who signed the instrument, is that Julian Ambalada on August 6, 1891, sold to Victorino Buhay said lots and a building with an iron roof, together with the tract No. 2 of Tuyuntuyon of 68 and a fraction hectares for the price of 11,661 pesos; but they were not so inscribed in the registry, only the tract No. 2 of Tuyuntuyon for the price of 3,500 pesos, and instrument of sale was not executed in Balayan on August 6, 1891, but before the capitan municipal of Tuy on January 24, 1895, as has been stated. The trial court found that the lot No. 6 of paragraph 10 of the complaint had been donated by Father Gabino de los Reyes to Martina Ambalada, sister of the defendant. But there is no proof of the ownership of Father Gabino de los Reyes, nor of the donation said to have been made, which to be valid must have been made in a public instrument. (Civil Code, art. 633.) On the other hand, the plaintiffs have proven by their witnesses Manuel Consul and Timoteo Martinez, that the Ambalada couple acquired lots Nos. 5 and 6 of paragraph 10 of the complaint. With reference to the parcels of realty Nos. 1 and 3 of paragraph 10 of the complaint, the lower court held that they had been donated by Father Gabino de los Reyes in his lifetime to the defendant. But there is no proof either of Gabinos ownership or of his donation. Rather, on the contrary, it has already been stated that the tract NO. 1 is inscribed in the property registry in the name of the defendant, who is on record as having acquired it by composition with the State in the lifetime of his wife, Modesta Afable. All the property of the marriage shall be considered as partnership property until it is proven that it belongs exclusively to the husband or to the wife. (Civil Code, art. 1407.) In his written reply, the defendant says that half of tract No. 1 was sold to Lorenzo Ermita in order to pay with its proceeds a debt that drew interest in favor of Ignacio Ilagan. There is no ground in this case for making any finding or rendering any judgment with regard to this sale and that which appears to have been made to Victorino Buhay: (1) Because they are not the object of the action prosecuted; (2) because the person said to be the purchasers are not parties to this suit; and (3) because there are provisions in the law regarding said conveyances, when once liquidation of the partnership property has been declared to be proper. The judgment appealed from is affirmed in so far as it declares that there was a legal marriage between Julian Ambalada and Modesta Afable; and it is reversed in so far as it declares that the property set forth in paragraph 10 of the complaint is not partnership property. It is held on the contrary that said property is such, and that it is proper to proceed to liquidate such partnership property in accordance with the provisions of section 7, chapter 5, title 3, book 4, of the Civil Code; without special finding as to the costs in this instance. So ordered. Torres, Johnson, Carson, Trent and Araullo, JJ., concur. Manila..EN BANC G.R. No. L-9181 November 28, 1955 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HON. NICASIO YATCO, Judge of the Court of First Instance of Rizal, Quezon City Branch, and JUAN CONSUNJI and ALFONSO PANGANIBAN, respondents. Office of the Solicitor General Ambrosio Padilla, Solicitor Meliton G. Soliman, City Attorney Pedro R. Revilla and Assistant City Attorney Julian E. Lustre for petitioner. Estanislao A. Fernandez, Augusto Ilagan, Claro T. Almeda and Rufino Navarro for respondents. REYES, J.B.L., J.: In an amended information filed by the City Attorney of Quezon City on March 22, 1955, Juan Consunji, Alfonso Panganiban, and another whose identity is still unknown, were charged with having conspired together in the murder of one Jose Ramos (Criminal Case No. Q-1637 of the Court of First Instance of Quezon City). Trial of the case started on May 3, 1955, and in several hearings the prosecution had been presenting its evidence. During the progress of the trial on May 18, 1955, while the prosecution was questioning one of its witnesses, Atty. Arturo Xavier of the National Bureau of Investigation, in connection with the making of a certain extra-judicial confession (allegedly made before him) by defendant Juan Consunji to the witness, counsel for the other defendant Alfonso Panganiban interposed a general objection to any evidence on such confession on the ground that it was hearsay and therefore incompetent as against the other accused Panganiban. The Court below ordered the exclusion of the evidence objected to, but on an altogether different ground: that the prosecution could not be permitted to introduce the confessions of defendants Juan Consunji and Alfonso Panganiban to prove conspiracy between them, without prior proof of such conspiracy by a number of definite acts, conditions, and circumstances. Thereafter, according to the transcript, the following remarks were made: FISCAL LUSTRE: May we know from counsel if he is also objecting to the admissibility of the confession of Consunji as against the accused Consunji himself? COURT: That would be premature because there is already a ruling of the Court that you cannot prove a confession unless you prove first conspiracy thru a number of indefinite acts, conditions and circumstances as required by law. Annex "B" of the petition, p. 9 The prosecution then moved in writing for a reconsideration of the order of exclusion, but again the motion was denied. Wherefore, this petition for certiorari was brought before this Court by the Solicitor General, for the review and annulment of the lower Court's order completely excluding any evidence on the extrajudicial confessions of the accused Juan Consunji and Alfonso Panganiban without prior proof of conspiracy.

We believe that the lower Court committed a grave abuse of discretion in ordering the complete exclusion of the prosecution's evidence on the alleged confessions of the accused Juan Consunji at the stage of the trial when the ruling was made. Section 14, Rule 123, Rules of Court, is specific as to the admissibility of the extrajudicial confession of an accused, freely and voluntarily made, as evidence against him. SEC. 14. Confession. The declaration of an accused expressly acknowledging the truth of his guilt as to the offense charged, may be given in evidence against him. Under the rule of multiple admissibility of evidence, even if Consunji's confession may not be competent as against his co-accused Panganiban, being hearsay as to the latter, or to prove conspiracy between them without the conspiracy being established by other evidence, the confession of Consunji was, nevertheless, admissible as evidence of the declarant's own guilt (U. S. vs. Vega, 43 Phil. 41; People vs. Bande, 50 Phil. 37; People vs. Buan, 64 Phil. 296), and should have been admitted as such. The rule cited by the Court below in support of its exclusion of the proffered evidence is Sec. 12 of Rule 123, providing that: The act or declaration of a conspirator relating to the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. Manifestly, the rule refers to statements made by one conspirator during the pendency of the unlawful enterprises("during its existence") and in furtherance of its object, and not to a confession made, as in this case, long after the conspiracy had been brought to an end (U. S. vs. Empeinado, 9 Phil., 613; U. S. vs. Raymundo, 14 Phil., 416; People vs. Badilla, 48 Phil., 718; People vs. Nakpil, 52 Phil., 985). Besides, the prosecution had not yet offered the confessions to prove conspiracy between the two accused, nor as evidence against both of them. In fact, the alleged confessions (both in writing and in tape recordings) had not yet even been identified (the presentation of Atty. Xavier was precisely for the purpose of identifying the confessions), much less formally offered in evidence. For all we know, the prosecution might still be able to adduce other proof of conspiracy between Consunji and Panganiban before their confessions are formally offered in evidence. Assuming, therefore, that section 12 of Rule 123 also applies to the confessions in question, it was premature for the respondent Court to exclude them completely on the ground that there was no prior proof of conspiracy. It is particularly noteworthy that the exclusion of the proferred confessions was not made on the basis of the objection interposed by Panganiban's counsel, but upon an altogether different ground, which the Court issuedmotu proprio. Panganiban's counsel objected to Consunji's confession as evidence of the guilt of the other accused Panganiban, on the ground that it was hearsay as to the latter. But the Court, instead of ruling on this objection, put up its own objection to the confessions that it could not be admitted to prove conspiracy between Consunji and Panganiban without prior evidence of such conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the confessions on that ground. By so doing, the Court overlooked that the right to object is a mere privilege which the parties may waive; and if the ground for objection is known and not reasonably made, the objection is deemed waived and the Court has no power, on its own motion, to disregard the evidence (Marcella vs. Reyes, 12 Phil., 1). We see no need for the present to discuss the question of the admissibility of the individual extrajudicial confessions of two or more accused for the purpose of establishing conspiracy between them through the identity of the confessions in essential details. After all, the confessions are not before us and have not even been formally offered in evidence for any purpose. Suffice it to say that the lower Court should have allowed such confessions to be given in evidence at least as against the parties who made them, and admit the same conditionally to establish conspiracy, in order to give the prosecution a chance to get into the record all the relevant evidence at its disposal to prove the charges. At any rate, in the final determination and consideration of the case, the trial Court should be able to distinguish the admissible from the inadmissible, and reject what, under the rules of evidence, should be excluded. Once more, attention should be called to the ruling of this Court in the case of Prats & Co. vs. Phoenix Insurance Co., 52 Phil., 807, 816-817: In the course of long experience we have observed that justice is most effectively and expeditiously administered in the courts where trial objections to the admission of proof are received with least favor. The practice of excluding evidence on doubtful objections to its materiality or technical objections to the form of the questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether testimony is relevant or not; and where there is no indication of bad faith on the part of the Attorney offering the evidence, the court may as a rule safely accept the testimony upon the statement of the attorney that the proof offered will be connected later. Moreover, it must be remembered that in the heat of the battle over which the presides, a judge of first instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial, a step which this Court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this Court then has all the material before it necessary to make a correct judgment. There is greater reason to adhere to such policy in criminal cases where questions arise as to admissibility of evidence for the prosecution, for the unjustified exclusion of evidence may lead to the erroneous acquittal of the accused or the dismissal of the charges, from which the People can no longer appeal. Wherefore, the order excluding the confessions of the accused Juan Consunji and Alfonso Panganiban is annulled and set aside and the Court below is directed to proceed with the trial in accordance with law and this opinion. Costs against respondents Juan Consunji and Alfonso Panganiban. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ.,concur. Manila.EN BANC G.R. No. L-44060 July 20, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.BIENVENIDO PARAGSA, alias "BENBEN", defendantappellant. MAKASIAR, J.: Bienvenido Paragsa, alias "Benben", appealed to the Court of Appeals the decision of the Court of First Instance of Cebu (Judge Agapito Hontanosas, presiding), the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered convicting the accused Bienvenido Paragsa of the crime of Rape as charged in the Information beyond reasonable doubt and applying the Indeterminate Sentence Law, hereby sentences him to suffer the indeterminate penalty of twelve (12) years of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as the maximum and to indemnify the complaining witness in the amount of P8,000.00 (People vs. Rogato Rivera, 58, O.G. and People vs. Chan et al., CA No. 03545GR, August 11, 1967) with all legal accessories and to pay the costs. Being a detention prisoner, he is entitled to the full credit of his preventive imprisonment from the time of his confinement up to the date of the promulgation of this judgment. xxx xxx xxx (pp. 10-19, rollo). Because the penalty of reclusion perpetua was imposed by the Court of Appeals on the accused, this case is now before US for review pursuant to Section 34, Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948. The evidence for the prosecution consists of the testimony of Mirasol Magallanes, the alleged rape victim, her aunt-in-law, Mrs. Lita Parochel, and Dr. Luis L. Gandiongco of the Bantayan Emergency Hospital, Bantayan, Cebu, who examined the offended party and submitted Exhibit A embodying his findings thereon, Substantially, the records show that in the afternoon of July 13, 1971, Mirasol, who was then a little over twelve and a half (12) years old (Exhibit B, p. 7, rec.), was alone in her parents' house in Sitio Tabagac of Barrio Bunacan, Municipality of Madridejos, Cebu, cooking hog feed. Her parents were away at the time her father was in Cadiz, while her mother was in Sagay, both in Negros Occidental (p. 16, t.s.n., Jan. 5, 1972) while the rest of the family were with Mirasol's grandmother in Barrio Codia; also in Madridejos, Cebu. Mirasol was a 6th grade student of the Bunacan Elementary School (p. 6, t.s.n., Dec. 3, 1971). Upon instruction of her mother, she did not go to school that afternoon so that she could look after the pigs and cook their feed. Thus, she was alone in the ground floor of their house cooking hog feed when the accused, Bienvenido Paragsa, armed with a hunting knife, entered the house and closed the door after him. Approaching from behind, he placed his left arm around Mirasol's neck, encircled her abdomen with his right arm, at the same time pointing the hunting knife with s right hand at her breast, and threatened her not to shout otherwise she would be killed. Thereafter, the accused pushed her to a bamboo bed nearby, rolled up her dress and, with his two hands, removed her panties. The accused then placed his hunting knife on the bed by Mirasol's side, opened the zipper of his pants while kneeling on the bed, opened Mirasol's thighs, picked up the hunting knife again, placed himself on top of Mirasol, inserted his erect penis into her sexual organ and then made four push and pull movement until he ejaculated (pp. 7, 10-11, 12, 13, 14, t.s.n.,Ibid). In the process, Mirasol's dress and panties were not torn, since, because of fear, she allowed the accused to roll up her dress and pull her panties without any resistance whatsoever. During the intercourse, the accused was not holding the hunting knife. After the accused had discharged, he ran to the storeroom of the house upstairs because he heard Mrs. Lita Parochel, wife of the younger brother of Mirasol's father, calling from outside the gate of the house, asking Mirasol to open the gate. Mirasol did not answer because she was then in the act of putting on her panties (p. 14, t.s.n., Ibid; p. 10, t.s.n., Jan. 5, 1972). After she had put on her panties, she opened the gate and saw her aunt Lita, who asked her what the accused did to her, but she did not answer because she was afraid as the accused was still inside the house. She also did not tell her aunt Lita that the accused had sexual intercourse with her under threats and against her will. Her aunt Lita then walked away. Thereafter, the accused reappeared in the room and told Mirasol that if she would tell her aunt Lita what he did, he would kill her (pp. 13-14, t.s.n., Dec. 3, 1971). After the incident, Mirasol went to Barrio Codia later in the afternoon of the same day and joined her brother and sister and grandmother. She did not reveal to any of them what transpired between her and the accused in Tabagac. Mirasol's father returned from Cadiz, Negros Occidental that same day; but Mirasol did not also reveal the incident to him because she was afraid her father might punish her. Her mother returned home on July 16, 1971 from Sagay, Negros Occidental; but Mirasol did not also tell her mother about what happened to her on July 13 in Tabagac It was her aunt Lita who revealed the matter to Mirasol's mother, who thereupon confronted her daughter. Mirasol had to reveal the incident of July 13 to her mother only when her mother asked her about it; because, according to her, she wanted to take revenge on the accused (p. 15, Dec. 3, 1971). Three days after her return

from Sagay, Negros Occidental on July 19, 1971 Mirasol's mother brought her to the Bantayan Emergency Hospital in Bantayan, Cebu, where she was examined by Dr. Luis L. Gandiongco, who submitted his findings as follows: Abrasion of inguinal region Abrasion, left thigh, medial side INTERNAL FINDINGS: 1. Discharges sticky, milky in color, found at the anterior fornix but negative for spermatozoa (Exh. A, p. 8, rec.; p. 2, t.s.n., Nov. 16, 1971). Mrs. Lita Parochel, the aunt-in-law of Mirasol, testified that she is the wife of the younger brother of Mirasol's father. Her house is fifty (50) meters away from the house of her brother-in-law, Ruperto Magallanes. In the afternoon of July 13, 1971, she went to the house of her brother-in-law in Tabagac Arriving there, she saw, through the gate which was made of split bamboos, the accused running away when she shouted to Mirasol, who was then in the act of putting on her panties, to open the gate (p. 10, t.s.n., Jan. 15, 1972). Mirasol opened the gate after she had put on her panties. Entering the house, Mrs. Parochel asked Mirasol what the accused did to her, but Mirasol did not answer. So, she hid and from her hiding place she saw the accused emerge from his hiding place and run away, passing through the gate of the fence. Thereupon, she told Mirasol to go home to barrio Codia because she was also going there (p. 15, t.s.n., Ibid). Mrs. Parochel met Mirasol's father at about 4:00 o'clock the same afternoon but she did not talk to him about what she saw earlier in Tabagak However, she revealed the incident to her husband (p. 17, t.s.n., Ibid). When Mirasol's mother returned from Sagay, Negros Occidental, Mrs. Parochel had a conversation with her regarding the person of the accused and thereafter Mirasol's mother filed the corresponding complaint against the accused (p. 18, t.s.n., Ibid). Incidentally, in support of the complaint of Bernandina Magallanes, mother of Mirasol, Mrs. Parochel executed an affidavit which she subscribed and swore to before the municipal judge of Madridejos, Cebu, on July 30, 1971, wherein she stated, among other things: 1. That at about 3:00 o'clock in the afternoon of July 13, 1971, I went to the house of Ruperto Magallanes, my neighbor; 2. That when I entered their fence, I found out that one Benben Paragsa ran from the bed where Mirasol Magallanes was sitting on while putting on her panties; 3. That she, Mirasol Magallanes, upon my arrival, did not say anything to me about the happening; and that I was only thinking that something had happened (Exh. 1, p. 5, rec.). In his typewritten brief, the appellant enumerated and discussed five errors as having been committed by the trial court. These errors may, however, be boiled down to the issue of credibility. Appellant admits having sexual intercourse with Mirasol, the complaining witness, but he stoutly denied that he did so by employing force or intimidation against Mirasol. He claims he and Mirasol were sweethearts; that on the day of the incident, it was Mirasol who invited him to the latter's house where they had sexual intercourse after kissing each other; and that the intercourse they had that afternoon was, as a matter of fact, their third sexual intercourse (pp. 2, 3, 5, 6, 8-9, t.s.n., March 21, 1972). The foregoing testimony of the accused was substantially corroborated by two witnesses for the defense, Mercado Batosbatosan and Eduardo Ducay (pp. 5, 6-7, 12, 1516, 17, 18, 19, 20, 25, t.s.n., Feb. 1, 1972). A careful scrutiny of the record reveals that the prosecution's evidence is weak, unsatisfactory and inconclusive to justify a conviction. Certain circumstances negate the commission by the appellant of the crime charged and point to the conclusion that the sexual intercourse between the appellant and the complaining witness was voluntary. Force and intimidation were not proven. Mirasol did not offer any resistance or vocal protestation against the alleged sexual assault. She could have easily made an outcry or resisted the appellant's advances without endangering her life. But she did not. She was allegedly raped in her own home, not far from her neighbors and during the daytime. If, indeed, she was raped under the circumstances narrated by her, she could have revealed the same the very moment she was confronted by her aunt Lita who asked her what the accused did to her upon entering the house immediately after the intercourse took place and when the accused ran from the bed to a storeroom of the house to hide upon seeing and/or hearing the voice of her aunt Lita. or, she could have grabbed the hunting knife by her side when the copulation was going on, and with it she could have possibly prevented the accused from consummating the sexual act. But she did not. Another circumstance is that Mirasol did not reveal immediately to her parents that she was raped. It was only after her mother arrived from Sagay, Negros Occidental, three (3) days after the incident, and confronted her about the rape incident that her mother learned through her aunt Lita that she eventually revealed to her mother what the accused did to her in the afternoon of July 13, 1971. Still another circumstance is the fact that Mirasol did not bother at all to rebut the testimony of the appellant and his witnesses to the effect that the accused and Mirasol were actually sweethearts; and that they had had two previous sexual communications before July 13, 1971, one of which happened on June 29, 1971 in the house of the accused, where Mirasol and the accused slept together in the evening of the same day after the mother of the accused and Mirasol had returned from the town fiesta of Bantayan, Cebu (p. 10, t.s.n., March 21, 1972). The rule allowing silence of a person to be taken as an implied admission of the truth of the statements uttered in his presence is applicable in criminal cases. But before the silence of a party can be taken as an admission of what is said, it must appear: (1) that he heard and understood the statement; (2) that he was at liberty to interpose a denial; (3) that the statement was in respect to some matter affecting his rights or in which he was then interested, and calling, naturally, for an answer; (4) that the facts were within his knowledge; and (5) that the fact admitted or the inference to be drawn from his silence would be material to the issue (IV Francisco, The Revised Rules of Court in the Philippines, 1973 ed., p. 316). These requisites of admission by silence all obtain in the present case. Hence, the silence of Mirasol on the facts asserted by the accused and his witnesses may be safely construed as an admission of the truth of such assertion. One more circumstance which engenders serious doubt on the truthfulness of Mirasol is the testimony of Dr. Gandiongco that he did not notice any laceration in the walls of Mirasol's vagina, thus Q Doctor, you testified that according to your findings a foreign body might have inserted the internal organ of the offended party? A Yes, sir. Q And as a matter of fact, in your examination there was no laceration? A There was no laceration (p 5, t.s.n., November 16, 1971; Emphasis supplied). Considering Mirasol's tender age, if she had no previous sexual experience, she must have been a virgin when she was allegedly raped by the accused. Yet she did not state that she felt some pain as the accused tried to insert his organ into her private part. Neither did she state that she was bleeding during and after the alleged forced coition. Instead, she matter-of-factly narrated that the accused made four push and pull movements after which the latter ejaculated indicating that he had an easy time doing it. If WE are to believe her story, certainly the doctor who examined her could have noticed the lacerations even after the lapse of three (3) days from the coition, if the intercourse on July 13, 1971 was in fact her first experience. WE believe the absence of lacerations in the walls of Mirasol's vagina, as testified to by Dr. Gandiongco, supra,eloquently confirms the truth of the accused's assertion that before the incident in question, he and Mirasol had two prior copulations. And still another circumstance which casts serious doubt on the credibility of the complaining witness and her aunt Lita is the matter of the hunting knife. While it is true that on the witness stand these two witnesses practically corroborated each other on this particular point, the matter of the accused having a hunting knife with him on the day of the incident was not, however, mentioned by Mrs. Parochel in her affidavit, Exhibit 1, which she executed on July 30, 1971 five months before she testified in court. Besides, at the trial, the prosecution did not bother to present such "hunting knife". A last circumstance which also engenders serious doubt on the veracity of Mrs. Parochel, whose testimony the trial court summarized, runs thus: ... The victim did not answer the call of her aunt nor did she open the barred door. ... She returned to the opened door and asked Mirasol what had happened. Mirasol was very pale, trembling and in a state of shock, did not answer her inquiries ...(p. 3, Decision; p. 64, rec.; emphasis added). The Solicitor General adopted the above factual summary made by the trial court by stating that Mirasol's aunt, Lita Parochel ... found her niece in a state of shock (p. 4, Brief for the Plaintiff-Appellee; p. 49, rec.; Emphasis supplied). A painstaking scrutiny of the record, particularly the transcript of stenographic notes, shows that contrary to the finding of the trial court, Mirasol answered the call of her aunt and opened the gate of the house after she had put on her panties (p. 14, t.s.n., Dec. 3, 1971); and that Mirasol only seemed to be afraid, besides trembling (p. 23, t.s.n., 1972); nowhere in the record is any evidence of Mirasol having been in a state of shock. If Mirasol was in fact in a state of shock 1. How come she was able to put on her panties and thereafter open the gate of the house when she heard her aunt Lita calling from the outside? 2. Her aunt Lita would feel so alarmed and so concerned that she would not lose any time to bring her to a doctor or to a hospital for medical treatment or assistance; 3. Her aunt Lita would have confronted the accused who was still hiding in the closet in a corner of the ground floor, or she would have gone to the nearest police authority or barrio captain, who could have easily apprehended the accused: 4. Her aunt could have sought the assistance of their barriomates or neighbors; or 5. She could have brought Mirasol to her own house which was on about 50 meters away (pp. 7, 20, t.s.n., Jan. 5, 1972). But what did she do? She abandoned Mirasol "because" she Mirasol had to feed her hogs (p. 24, Idem). That Mirasol was pale, afraid and trembling can only be attributed to the fact that her aunt discovered her having sexual intercourse at so young an age and that she feared that her aunt would report the same to her parents. And if Mrs. Parochel really believed that her niece Mirasol was raped by appellant about 3 o'clock that afternoon of July 13, 1971, why did she not report the outrage to Mirasol's father her husband's brother whom she met about 4 o'clock that same afternoon, just one hour after the alleged rape? Mrs. Parochel's close relationship to her niece-daughter of her brother-in-law vitiates her credibility.

Appellant cannot be legally convicted of simple seduction under Article 338 of the Revised Penal Code, for the same is not warranted by the wording of the information, which does not alleged deceit, although appellant testified that he promised to marry Mirasol if "something happens to her body." Much less can simple seduction include rape. WHEREFORE, APPELLANT BIENVENIDO PARAGSA, ALIAS "BENBEN", IS HEREBY ACQUITTED, WITH COSTSde oficio AND HIS IMMEDIATE RELEASE IS HEREBY ORDERED UNLESS HE IS BEING DETAINED ON OTHER CHARGES. SO ORDERED. Fernando, Concepcion, Jr., Santos, Fernandez, and Guerrero, JJ., concur. Muoz-Palma, J., vote for the affirmance of the judgment. Separate Opinions TEEHANKEE, J., concurring: I concur in the acquittal of the accused-appellant in the light of the salient facts and circumstances discussed in the decision penned by Mr. Justice Makasiar 1 which justly cast serious doubts on the guilt of the accused and entitle him to a verdict of acquittal founded on the constitutional presumption of innocence. The ratio decidendi in the analogous case of People vs. Ramirez 2 (where the 15-year old daughter of the accused's common-law wife charged him with double rape and his defense was "that there was consent on her part, as indeed there had been previous instances where he had access to her is fully applicable to the case at bar, thus: "The pronouncement in People vs. Damayo 3 as to the extent of the protection accorded by the Constitution to a person indicted for a criminal offense once again possesses relevance. Thus: 'Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to d demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the text of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certain. 4 There as in tills case, we held that the accused could not be convicted of seduction under the rape charge, citing the case of People vs. Castro 5 because "the rape charge did not place [the accused] in jeopardy of being convicted for qualified seduction. He is entitled to be informed of the nature and cause of the accusation against him." I have written this brief concurrence, principally, because I noted from the decision 6 that this is a case where as against the prevailing view and practice under section 34 of Republic Act 296, as amended (the Judiciary Act of 1948) and incorporated in Rule 124, section 12 of the Rules of Court (whereby in any criminal case submitted to a division of the Court of Appeals whenever said court should be of the opinion that the higher penalty of death or life imprisonment should be imposed than the lesser penalty imposed by the trial court in the decision subject of the appeal before it, said court "shall refrain from entering judgment thereon and shall forthwith certify the case to the Supreme Court for final determination, as if the case had been brought before it on appeal") the Court of Appeals rendered judgment imposing the penalty of reclusion perpetua instead of forthwith certifying by resolutionthe case to this Court as falling with this Court's exclusive appellate jurisdiction under section 17 of the Judiciary Act. Some members of the Court have asked for re-examination of the prevailing view and practice and to set down as the proper procedure that followed by the Court of Appeals in the case at bar. But since the Court's verdict is one of acquittal, there was no need to take up the question in this case. I make this of record so that the present decision may not be taken as impliedly sanctioning such procedure, or as an indication of approval thereof on the part of any member of the Court taking part herein. The question will be definitively resolved in several cases pending before the Court where such reexamination has been squarely raised, e.g. in Case L-40330, entitledPeople of the Philippines vs. Amado Danie alias "Amado Ato". submitted for decision of August 5, 1975. AQUINO, J., dissenting: The evidence for the prosecution was summarized by the Solicitor General in this wise: Mirasol Magallanes, aged twelve-and-a-half, was alone in her parent's house in Sitio Tabagak of Barrio Bunacan, in Madridejos Cebu in the early afternoon of July 13, 197 1, cooking hog feed. Both of her parents were then away, in Negros Occidental, and the rest of the family were with Mirasol's grandmother in Barrio Codia also in Madridejos, Cebu, Mirasol, although a six-grader in the Bunacan Elementary School, was at home on this date, on instructions of her mother to look after their pigs, and cook hog feed in the afternoon. While thus alone on the ground floor of their house in Tabagak innocently cooking food for the family's pigs, the a accused Bienvenido Paragsa, with a hunting knife in hand, stealthily entered the house, barring the door as he entered, And approaching Mirasol from behind, he hooked his left arm around the young girl's neck and simultaneously thrust his knife at Mirasol's tender breast, barking at the same moment for the girl not to shout, under threat of instant death. His left arm still hooked around the poor girl's neck, and the knife he held perilously poised upon the girl's vulnerable breast, the accused pushed the girl to the bamboo bed nearby, and there laid her down. He then removed her panties, and opened the fly of his own pants. Forcibly, he opened the girl's thighs, and himself in between, he then penetrated young Mirasol's private part with his erect private part, and hastily consummated his guilt-ridden forcible, physical intrusion into the young girl's body. Mirasol's aunt, Lita Parochel, arriving later, too late to prevent the dastardly abuse of her niece, nevertheless, saw the accused as he surreptitiously fled the scene and found her niece in a state of shock. Subsequently, report of the crime was made to the girl's parents, and a complaint lodged against the accused for the crime of rape. (pp. 6-8, tsn Dec. 3, 1971; pp. 7-18, tsn Jan. 5, 1972; pp 1-3, tsn Nov. 16, 1971; Exh. A). The accused admitted that he had sexual intercourse with the complaint girl. His defense is that the copulation was voluntary. The doctor, who examined the complainant, found that she sustained an "abrasion, left thigh, medial side" in addition to an "abrasion of inguinal region" (Exh. A). He testified that there was laceration of the hymen. The pertinent portion of his testimony is quoted below: Q Can you tell us your external findings? A My external findings is that there was an abrasion of inguinal region and abrasion, left thigh, medial side. Q How about your internal examination? A I was able to get some of the secretion found at the anterior fornix of the cervic. xxx xxx xxx Q From your findings, Doctor, there was something foreign which got inside the vaginal tract of the complainant. A There might be foreign body which got inside the vaginal tract not so deep that caused laceration of the hymen. Q In your study of medicine, when a foreign object is penetrated but not so deep, will that produce laceration of the viginal tract or the hymem of the woman, is that possible? Q When there is a penetration but not deep, will it produce laceration of the vaginal tract of a woman? A Yes, sir. xxx xxx xxx Fiscal: Can you tell us what could have possibly caused the on your external examination of the woman Mirasol Magallanes? xxx xxx xxx A Maybe the assailant used force. (3tsn). The trial court and the Court of Appeals (Justice Lorenzo Relova, ponente) both held that rape was committed. That conclusion is supported by the following testimony of the complainant: Q You said that in the afternoon of July 13, 1971, you saw Bienvenido Paragsa entered under your house where you were cooking the hog feeds, can you tell this Honorable Court what was he doing when he entered your premises? A Yes, sir. Q What did he do? A When he entered under the house he immediately held my neck and then embraced my abdomen and he was carrying a hunting knife. Q When he grabbed your neck and hugged you, did he say anything to you? A Yes, sir, he told me, 'Do not shout, if you will shout, I will kill you. Q After hugging you and telling you not to shout, what did Paragsa do next? A He pushed me to bed and he let me lie on the bed and he immediately pulled out my panty, Q After removing your panty, what next did Paragsa do. A He tried to open my thigh but I insisted closing them because I was ashamed. Q In effect, was he able to open your thigh A Yes, sir, because he threatened me with his hunting knife: You not open. if you will not open, I will stab you. xxx xxx xxx Q After he succeeded in inserting his penis into your sexual organ, what did he do next? ATTY. FLORES: I want to make of record that witness is spontaneous in answering the question, considering that she is minor and this is her first time. WITNESS: He made a push and pull movement. ATTY. SALGADO:

Q After he finished picking you, what was or where did Paragsa go? A He ran to one of the room of the house to hide. xxx xxx xxx Q Did you have a conversation with your Tia Lita after you opened the door? A Tia Lita asked me what Benben did to me but I did not answer because I was afraid. Q That was the only question that was being asked on you by your Tia Lita? A Yes, sir. Q You did not make any answer? A I did not. Q Did you tell anybody of what had happened to you as what you had testified? A I did not. Q Why? A I did not tell because I was warned by the accused that if I would tell he would be coming back to kill me. xxx xxx xxx Q And after that while he was holding your neck and embracing your abdomen you were then sitting near the place where you were cooking your hog's feeds? A When he entered under our house when he was nearing I immediately stood up; I was no longer sitting. Q So. you recognized him before he took hold of your neck? A Yes, sir. Q And when he took hold of your neck and embraced your abdomen, what did he do next? A He told me: 'Do not shout, if you will shout I will kill you. Q He was uttering those words when he was holding your neck and embracing your abdomen? A Yes, sir. Q And after that he immediately carried you to the bed inside your house? A He did not carry me but he pushed me to the bed. Q How far was the bed to the place where you were pushed by accused Paragsa? A One and one-half meters. xxx xxx xxx ATTY. FLORES: Q And how long did your Tia Lita went home after the conversation? A Tia Lita walked away passing thru our 'banguera and Ka Benben appeared and he told me that if I will tell Tia Lita he will kill me and I was afraid because he was still holding the hunting knife. xxx xxx xxx Q You did not tell your father about the incident that evening? A No, I did not tell because I was afraid, he might punish me and he might kill me. xxx xxx xxx Q When your mother arrived home, did she inquire from you about the incident? A Yes, she asked me because Tia Lita related to her the incident. ATTY. FLORES: Q You want to tell the Court that if your mother had not inquired from you about the incident you have not told Your mother about the incident. A No, I will not tell. Q How would you reconcile your testimony when a moment ago you said that you told the incident to your mother because you took revenge of what Ka Benben had done to you'? A Because before she asked one of the incident I had in mind not to tell her of the incident but after she asked me I (told) her of the incident because I want to take revenge on Ka Benben. TSN, hearing on December 3, 197 1, pp. 6 to 15). The trial court's vivid summary of the prosecution's evidence, which reveals how the rape was committed and why the complainant did not disclose the outrage right away to her aunt and parents and which mentions the flight of the accused, and the trial court's reasons for convicting the accused are as follows: The prosecution thru the testimonies of the complaining witness', and the other State witnesses has established the following facts: That at about 1:30 o'clock in the afternoon of July 13, 1971. the offended party, Mirasol Magallanes, aged 12 years, 6 months and 4 days as shown in Exhibit "B", was in the house of her parents at Sitio Tabagak Barrio Bunacan, Municipality of Madridejos, Province of Cebu. She was alone and under the house cooking hog feeds. The house, the lower portion of which, is fenced with bamboo strips, while the surrounding lawn is likewise enclosed with fence. Her father at the time was in Cadiz, Negros Occidental, where he was employed in one of the Fishing Outfits. Her mother was in Sagay, Negros Occidental, while all her younger sisters and brother were in the house of her grandmother at Barrio Codia Madridejos, Cebu, where all of the children were left for care when their mother left for Sagay on July 10, 1971. The girl Mirasol Magallanes was a grade six pupil in tile Bunacan Elementary School, and she did not attend her classes on that day upon instruction of her mother not to attend her classes during the period of her (mother's) absence. She was instructed to go to Bunacan in order to feed their pig in the morning, cook its foods and the afternoon and after feeding return to the house of her grandmother at Codia While Mirasol was cooking the hog feeds, at about 1:30 in the afternoon of July 13, 1971, the accused Bienvenido Paragsa, armed with a hunting knife, surreptitiously entered the fenced ground floor of the house, then barred the door after him. The accused approached Mirasol from behind, hook his left forearm around her neck, at the same time thrust the knife which was held by his right hand at the breast of Mirasol Magallanes, and told her not to shout for help under the threat of instant death. With his left forearm still around the neck of Mirasol and the knife's point at her breast, the accused pushed the victim to a nearby bamboo bed and laid her. He then placed the knife beside Mirasol, removed her panty, and opened his pants. He forced the victim to open or spread her legs by placing his hands on the inside portion of both thighs according to the testimony of Mirasol and corroborated by Medical Certificate, Exhibit "A", indicating confusion. Placing himself between the legs, directly in front of the sexual organ of Mirasol, the accused inserted his erected penis into her vagina and hurriedly proceeded with the act of copulation by up and down movement. After completing the act, the accused was about to leave when, unexpectedly, Lita Parochel, aunt of Mirasol (wife of the younger brother of victim's father), arrived outside the barred door. She called for Mirasol, who was already sitting at the edge of the bamboo bed, putting on her panty, to open the door, On hearing the call, the accused ran away and hid himself in a closet located at the corner of the ground floor. The victim did not answer the call of her aunt nor did she open the barred door. Lita Parochel, suspecting that something unusual had happened to her niece, walked away from the door, making it appear t at she was going out and hid herself behind an outside projection of the ground floor where she could see and observe the door. No sooner had she hidden herself when she saw the accused came out of the door, holding a hunting knife in his right hand, and ran towards the general direction of the seashore. She returned to the opened door and asked Mirasol what had happened. Mirasol was very pale, trembling and in a state of shock did not answer her inquiries. Without pressing further, the aunt instructed her niece to return immediately to her grandmother's home at Barrio Codia after feeding the pig, then she (Lita) returned to her house which is about 50 fathoms away. At about 4:00 o'clock that same afternoon, before Mirasol Magallanes could return to her grandmother's house, her father arrived from Cadiz, Negros Occidental. Lita Parochel, having only her suspicion as she did not actually see the accused abuse her niece, did not report the incident to her brother-in-law. But she reported the incident to her husband at 7:00 o'clock that evening on his return home. On July 15, 1971, upon the return of Mirasol's mother from Sagay, Negros Occidental, Lita Parochel personally reported the matter to the mother. Acting upon the report, the mother immediately investigated her daughter who, having been given the assurance that she would not be subjected to physical punishment, and who had already recovered from her fears and shock, readily told her mother that she was raped by Bienvenido Paragsa. She was brought to the Bantayan Emergency Hospital and subjected to an internal examination by Dr. Luis L. Gandiongco, M.D. Medico- Legal-Incharge, who found her positive of having sexual intercourse. A complaint for rape was filed against Bienvenido Paragsa by the Chief of Police of Madridejos, Cebu, at the instance of Bernardina R. Magallanes, mother of the victim, who at the time she was raped was a little more than 12 years old as stated above (Exhibit "B"). In the meantime the accused had left Madridejos, Cebu and was finally arrested at Danao City on the strength of a Warrant of Arrest issued by the Municipal Judge of Madridejos, Cebu, before whom the Complain, for rape was filed. xxx xxx xxx After a careful consideration of the evidence of the parties in its totality, the Court is of the view that the prosecution has been able to establish beyond reasonable doubt that the accused committed the crime of RAPE as charged in the Information. It is true that the offended party did not

exert strong and effective efforts to thwart the attack of the accused in disgracing or dishonoring her womanhood but considering that the accused was carrying with him a knife which he used in threatening her to death, it is not unusual that the young and innocent girl of over 12 years of age would just meekly submit for fear of her life. xxx xxx xxx In the instant case, the accused admitted having sexual intercourse with the complaining minor of a little over 12 years of age and his testimony regarding their being sweetheart and especially as to the first intercourse he allegedly had with the victim in their house in the first week of July 1971 and the second in the first week of June 1971 is so unnatural, unbelievable and contrary to common sense that this Court is of the opinion and so holds that his story is fabricated and self-serving and untrustworthy for it if it were true that the victim was his own sweetheart and he was her boyfriend then there could have been no reason for this young innocent girl of a little above 12 years to tell her mother about the criminal attack by the accused upon her womanhood and virginity. Her story regarding her being threatened to death by the accused who carried with him a hunting knife is being corroborated by witness Lita Parochel who had no motive whatsoever to declare falsely against the accused. xxx xxx xxx The Court had observed that Mirasol Magallanes is an intelligent, honest and reliable witness notwithstanding the fact that she was of a very tender age and the Court cannot accept the theory of the defense that the intercourse that took place on July 13, 1971 was voluntary on her part. It would be very hard to believe that the complainant would easily submit to such an intercourse if her will to resist had not been overpowered or overcome by threat, intimidation and force on the part of the accused who was armed with a knife. The accused was twenty-one (21) years old while the victim was twelve years and six months old. The fact of the accused in taking advantage of the victim's immaturity is a form of unpardonable sexual perversion which is worse than the offense committed by Roman Polanski the Hollywood director who was convicted of cohabiting with thirteen-year old girl. To acquit the accused would be a miscarriage of justice. The lower court's judgment of conviction should be affirmed and the accused should be sentenced to reclusion perpetua. Separate Opinions TEEHANKEE, J., concurring: I concur in the acquittal of the accused-appellant in the light of the salient facts and circumstances discussed in the decision penned by Mr. Justice Makasiar 1 which justly cast serious doubts on the guilt of the accused and entitle him to a verdict of acquittal founded on the constitutional presumption of innocence. The ratio decidendi in the analogous case of People vs. Ramirez 2 (where the 15-year old daughter of the accused's common-law wife charged him with double rape and his defense was "that there was consent on her part, as indeed there had been previous instances where he had access to her is fully applicable to the case at bar, thus: "The pronouncement in People vs. Damayo 3 as to the extent of the protection accorded by the Constitution to a person indicted for a criminal offense once again possesses relevance. Thus: 'Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to d demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the text of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certain. 4 There as in tills case, we held that the accused could not be convicted of seduction under the rape charge, citing the case of People vs. Castro 5 because "the rape charge did not place [the accused] in jeopardy of being convicted for qualified seduction. He is entitled to be informed of the nature and cause of the accusation against him." I have written this brief concurrence, principally, because I noted from the decision 6 that this is a case where as against the prevailing view and practice under section 34 of Republic Act 296, as amended (the Judiciary Act of 1948) and incorporated in Rule 124, section 12 of the Rules of Court (whereby in any criminal case submitted to a division of the Court of Appeals whenever said court should be of the opinion that the higher penalty of death or life imprisonment should be imposed than the lesser penalty imposed by the trial court in the decision subject of the appeal before it, said court "shall refrain from entering judgment thereon and shall forthwith certify the case to the Supreme Court for final determination, as if the case had been brought before it on appeal") the Court of Appeals rendered judgment imposing the penalty of reclusion perpetua instead of forthwith certifying by resolutionthe case to this Court as falling with this Court's exclusive appellate jurisdiction under section 17 of the Judiciary Act. Some members of the Court have asked for re-examination of the prevailing view and practice and to set down as the proper procedure that followed by the Court of Appeals in the case at bar. But since the Court's verdict is one of acquittal, there was no need to take up the question in this case. I make this of record so that the present decision may not be taken as impliedly sanctioning such procedure, or as an indication of approval thereof on the part of any member of the Court taking part herein. The question will be definitively resolved in several cases pending before the Court where such reexamination has been squarely raised, e.g. in Case L-40330, entitledPeople of the Philippines vs. Amado Danie alias "Amado Ato". submitted for decision of August 5, 1975. AQUINO, J., dissenting: The evidence for the prosecution was summarized by the Solicitor General in this wise: Mirasol Magallanes, aged twelve-and-a-half, was alone in her parent's house in Sitio Tabagak of Barrio Bunacan, in Madridejos Cebu in the early afternoon of July 13, 197 1, cooking hog feed. Both of her parents were then away, in Negros Occidental, and the rest of the family were with Mirasol's grandmother in Barrio Codia also in Madridejos, Cebu, Mirasol, although a six-grader in the Bunacan Elementary School, was at home on this date, on instructions of her mother to look after their pigs, and cook hog feed in the afternoon. While thus alone on the ground floor of their house in Tabagak innocently cooking food for the family's pigs, the a accused Bienvenido Paragsa, with a hunting knife in hand, stealthily entered the house, barring the door as he entered, And approaching Mirasol from behind, he hooked his left arm around the young girl's neck and simultaneously thrust his knife at Mirasol's tender breast, barking at the same moment for the girl not to shout, under threat of instant death. His left arm still hooked around the poor girl's neck, and the knife he held perilously poised upon the girl's vulnerable breast, the accused pushed the girl to the bamboo bed nearby, and there laid her down. He then removed her panties, and opened the fly of his own pants. Forcibly, he opened the girl's thighs, and himself in between, he then penetrated young Mirasol's private part with his erect private part, and hastily consummated his guilt-ridden forcible, physical intrusion into the young girl's body. Mirasol's aunt, Lita Parochel, arriving later, too late to prevent the dastardly abuse of her niece, nevertheless, saw the accused as he surreptitiously fled the scene and found her niece in a state of shock. Subsequently, report of the crime was made to the girl's parents, and a complaint lodged against the accused for the crime of rape. (pp. 6-8, tsn Dec. 3, 1971; pp. 7-18, tsn Jan. 5, 1972; pp 1-3, tsn Nov. 16, 1971; Exh. A). The accused admitted that he had sexual intercourse with the complaint girl. His defense is that the copulation was voluntary. The doctor, who examined the complainant, found that she sustained an "abrasion, left thigh, medial side" in addition to an "abrasion of inguinal region" (Exh. A). He testified that there was laceration of the hymen. The pertinent portion of his testimony is quoted below: Q Can you tell us your external findings? A My external findings is that there was an abrasion of inguinal region and abrasion, left thigh, medial side. Q How about your internal examination? A I was able to get some of the secretion found at the anterior fornix of the cervic. xxx xxx xxx Q From your findings, Doctor, there was something foreign which got inside the vaginal tract of the complainant. A There might be foreign body which got inside the vaginal tract not so deep that caused laceration of the hymen. Q In your study of medicine, when a foreign object is penetrated but not so deep, will that produce laceration of the viginal tract or the hymem of the woman, is that possible? Q When there is a penetration but not deep, will it produce laceration of the vaginal tract of a woman? A Yes, sir. xxx xxx xxx Fiscal: Can you tell us what could have possibly caused the on your external examination of the woman Mirasol Magallanes? xxx xxx xxx A Maybe the assailant used force. (3tsn). The trial court and the Court of Appeals (Justice Lorenzo Relova, ponente) both held that rape was committed. That conclusion is supported by the following testimony of the complainant: Q You said that in the afternoon of July 13, 1971, you saw Bienvenido Paragsa entered under your house where you were cooking the hog feeds, can you tell this Honorable Court what was he doing when he entered your premises? A Yes, sir. Q What did he do? A When he entered under the house he immediately held my neck and then embraced my abdomen and he was carrying a hunting knife. Q When he grabbed your neck and hugged you, did he say anything to you?

A Yes, sir, he told me, 'Do not shout, if you will shout, I will kill you. Q After hugging you and telling you not to shout, what did Paragsa do next? A He pushed me to bed and he let me lie on the bed and he immediately pulled out my panty, Q After removing your panty, what next did Paragsa do. A He tried to open my thigh but I insisted closing them because I was ashamed. Q In effect, was he able to open your thigh A Yes, sir, because he threatened me with his hunting knife: You not open. if you will not open, I will stab you. xxx xxx xxx Q After he succeeded in inserting his penis into your sexual organ, what did he do next? ATTY. FLORES: I want to make of record that witness is spontaneous in answering the question, considering that she is minor and this is her first time. WITNESS: He made a push and pull movement. ATTY. SALGADO: Q After he finished picking you, what was or where did Paragsa go? A He ran to one of the room of the house to hide. xxx xxx xxx Q Did you have a conversation with your Tia Lita after you opened the door? A Tia Lita asked me what Benben did to me but I did not answer because I was afraid. Q That was the only question that was being asked on you by your Tia Lita? A Yes, sir. Q You did not make any answer? A I did not. Q Did you tell anybody of what had happened to you as what you had testified? A I did not. Q Why? A I did not tell because I was warned by the accused that if I would tell he would be coming back to kill me. xxx xxx xxx Q And after that while he was holding your neck and embracing your abdomen you were then sitting near the place where you were cooking your hog's feeds? A When he entered under our house when he was nearing I immediately stood up; I was no longer sitting. Q So. you recognized him before he took hold of your neck? A Yes, sir. Q And when he took hold of your neck and embraced your abdomen, what did he do next? A He told me: 'Do not shout, if you will shout I will kill you. Q He was uttering those words when he was holding your neck and embracing your abdomen? A Yes, sir. Q And after that he immediately carried you to the bed inside your house? A He did not carry me but he pushed me to the bed. Q How far was the bed to the place where you were pushed by accused Paragsa? A One and one-half meters. xxx xxx xxx ATTY. FLORES: Q And how long did your Tia Lita went home after the conversation? A Tia Lita walked away passing thru our 'banguera and Ka Benben appeared and he told me that if I will tell Tia Lita he will kill me and I was afraid because he was still holding the hunting knife. xxx xxx xxx Q You did not tell your father about the incident that evening? A No, I did not tell because I was afraid, he might punish me and he might kill me. xxx xxx xxx Q When your mother arrived home, did she inquire from you about the incident? A Yes, she asked me because Tia Lita related to her the incident. ATTY. FLORES: Q You want to tell the Court that if your mother had not inquired from you about the incident you have not told Your mother about the incident. A No, I will not tell. Q How would you reconcile your testimony when a moment ago you said that you told the incident to your mother because you took revenge of what Ka Benben had done to you'? A Because before she asked one of the incident I had in mind not to tell her of the incident but after she asked me I (told) her of the incident because I want to take revenge on Ka Benben. TSN, hearing on December 3, 197 1, pp. 6 to 15). The trial court's vivid summary of the prosecution's evidence, which reveals how the rape was committed and why the complainant did not disclose the outrage right away to her aunt and parents and which mentions the flight of the accused, and the trial court's reasons for convicting the accused are as follows: The prosecution thru the testimonies of the complaining witness', and the other State witnesses has established the following facts: That at about 1:30 o'clock in the afternoon of July 13, 1971. the offended party, Mirasol Magallanes, aged 12 years, 6 months and 4 days as shown in Exhibit "B", was in the house of her parents at Sitio Tabagak Barrio Bunacan, Municipality of Madridejos, Province of Cebu. She was alone and under the house cooking hog feeds. The house, the lower portion of which, is fenced with bamboo strips, while the surrounding lawn is likewise enclosed with fence. Her father at the time was in Cadiz, Negros Occidental, where he was employed in one of the Fishing Outfits. Her mother was in Sagay, Negros Occidental, while all her younger sisters and brother were in the house of her grandmother at Barrio Codia Madridejos, Cebu, where all of the children were left for care when their mother left for Sagay on July 10, 1971. The girl Mirasol Magallanes was a grade six pupil in tile Bunacan Elementary School, and she did not attend her classes on that day upon instruction of her mother not to attend her classes during the period of her (mother's) absence. She was instructed to go to Bunacan in order to feed their pig in the morning, cook its foods and the afternoon and after feeding return to the house of her grandmother at Codia While Mirasol was cooking the hog feeds, at about 1:30 in the afternoon of July 13, 1971, the accused Bienvenido Paragsa, armed with a hunting knife, surreptitiously entered the fenced ground floor of the house, then barred the door after him. The accused approached Mirasol from behind, hook his left forearm around her neck, at the same time thrust the knife which was held by his right hand at the breast of Mirasol Magallanes, and told her not to shout for help under the threat of instant death. With his left forearm still around the neck of Mirasol and the knife's point at her breast, the accused pushed the victim to a nearby bamboo bed and laid her. He then placed the knife beside Mirasol, removed her panty, and opened his pants. He forced the victim to open or spread her legs by placing his hands on the inside portion of both thighs according to the testimony of Mirasol and corroborated by Medical Certificate, Exhibit "A", indicating confusion. Placing himself between the legs, directly in front of the sexual organ of Mirasol, the accused inserted his erected penis into her vagina and hurriedly proceeded with the act of copulation by up and down movement. After completing the act, the accused was about to leave when, unexpectedly, Lita Parochel, aunt of Mirasol (wife of the younger brother of victim's father), arrived outside the barred door. She called for Mirasol, who was already sitting at the edge of the bamboo bed, putting on her panty, to open the door, On hearing the call, the accused ran away and hid himself in a closet located at the corner of the ground floor. The victim did not answer the call of her aunt nor did she open the barred door. Lita Parochel, suspecting that something unusual had happened to her niece, walked away from the door, making it appear t at she was going out and hid herself behind an outside projection of the ground floor where she could see and observe the door. No sooner had she hidden herself when she saw the accused came out of the door, holding a hunting knife in his right hand, and ran towards the general direction of the seashore. She returned to the opened door and asked Mirasol what had happened. Mirasol was very pale, trembling and in a state of shock did not answer her inquiries. Without pressing further, the aunt instructed her niece to return immediately to her grandmother's home at Barrio Codia after feeding the pig, then she (Lita) returned to her house which is about 50 fathoms away.

At about 4:00 o'clock that same afternoon, before Mirasol Magallanes could return to her grandmother's house, her father arrived from Cadiz, Negros Occidental. Lita Parochel, having only her suspicion as she did not actually see the accused abuse her niece, did not report the incident to her brother-in-law. But she reported the incident to her husband at 7:00 o'clock that evening on his return home. On July 15, 1971, upon the return of Mirasol's mother from Sagay, Negros Occidental, Lita Parochel personally reported the matter to the mother. Acting upon the report, the mother immediately investigated her daughter who, having been given the assurance that she would not be subjected to physical punishment, and who had already recovered from her fears and shock, readily told her mother that she was raped by Bienvenido Paragsa. She was brought to the Bantayan Emergency Hospital and subjected to an internal examination by Dr. Luis L. Gandiongco, M.D. Medico- Legal-Incharge, who found her positive of having sexual intercourse. A complaint for rape was filed against Bienvenido Paragsa by the Chief of Police of Madridejos, Cebu, at the instance of Bernardina R. Magallanes, mother of the victim, who at the time she was raped was a little more than 12 years old as stated above (Exhibit "B"). In the meantime the accused had left Madridejos, Cebu and was finally arrested at Danao City on the strength of a Warrant of Arrest issued by the Municipal Judge of Madridejos, Cebu, before whom the Complain, for rape was filed. xxx xxx xxx After a careful consideration of the evidence of the parties in its totality, the Court is of the view that the prosecution has been able to establish beyond reasonable doubt that the accused committed the crime of RAPE as charged in the Information. It is true that the offended party did not exert strong and effective efforts to thwart the attack of the accused in disgracing or dishonoring her womanhood but considering that the accused was carrying with him a knife which he used in threatening her to death, it is not unusual that the young and innocent girl of over 12 years of age would just meekly submit for fear of her life. xxx xxx xxx In the instant case, the accused admitted having sexual intercourse with the complaining minor of a little over 12 years of age and his testimony regarding their being sweetheart and especially as to the first intercourse he allegedly had with the victim in their house in the first week of July 1971 and the second in the first week of June 1971 is so unnatural, unbelievable and contrary to common sense that this Court is of the opinion and so holds that his story is fabricated and self-serving and untrustworthy for it if it were true that the victim was his own sweetheart and he was her boyfriend then there could have been no reason for this young innocent girl of a little above 12 years to tell her mother about the criminal attack by the accused upon her womanhood and virginity. Her story regarding her being threatened to death by the accused who carried with him a hunting knife is being corroborated by witness Lita Parochel who had no motive whatsoever to declare falsely against the accused. xxx xxx xxx The Court had observed that Mirasol Magallanes is an intelligent, honest and reliable witness notwithstanding the fact that she was of a very tender age and the Court cannot accept the theory of the defense that the intercourse that took place on July 13, 1971 was voluntary on her part. It would be very hard to believe that the complainant would easily submit to such an intercourse if her will to resist had not been overpowered or overcome by threat, intimidation and force on the part of the accused who was armed with a knife. The accused was twenty-one (21) years old while the victim was twelve years and six months old. The fact of the accused in taking advantage of the victim's immaturity is a form of unpardonable sexual perversion which is worse than the offense committed by Roman Polanski the Hollywood director who was convicted of cohabiting with thirteen-year old girl. To acquit the accused would be a miscarriage of justice. The lower court's judgment of conviction should be affirmed and the accused should be sentenced to reclusion perpetua. Manila.SECOND DIVISION G.R. No. L-65017 November 13, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.STALIN GUEVARRA y PAPASIN accused-appellant. The Office of the Solicitor General for plaintiff-appellee.Pedro A. Venida for accused-appellant. SARMIENTO, J.: Stalin Guevarra was convicted of murder by the Court of First Instance (now Regional Trial Court) of Oriental Mindoro. 1 On appeal, the then Intermediate Appellate Court (now Court of Appeals) rendered judgment on August 17, 1983, increasing the indeterminate penalty from "TEN (10) YEARS and ONE (1) DAY, of prision mayor, as minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS, of reclusion temporal, as maximum, to indemnify the heirs of the deceased in the amount of P12,000.00, without subsidiary imprisonment in case of insolvency and to pay the costs," imposed by the trial court, to reclusion perpetua, and affirmed in all other respects the appealed decision. 2 However, considering that this case involves a capital offense, the appellate court could not enter judgment. Conformably, therefore, to Daniel, 3 Ramos, 4 Galang, 5 and similar cases the entire records were certified and elevated to us for review. The facts are as follows: On November 29, 1980, Joselito de los Reyes, twenty-three years of age, assistant chief security guard at "Baklad" Naujan Oriental Mindoro, together with Teofilo Martinez, a thirty-two year-old fisherman of Bancurro Naujan attended a dance sponsored by the San Agustin Barangay High School. Teofilo saw Eduardo Romero (still at large) and Stalin Guevarra together at the dance hall. The affair was interrupted abruptly when someone stoned the school. At about midnight, Joselito and Teofilo went home to Bancurro. Together with them were Rosabel , Magno and Babylyn Martinez, both students, seventeen and seventeen and eighteen years of age, respectively. Along the way, Teofilo held a flashlight to illuminate the rocky path whereon Joselito, Rosabel, and Babylyn walked. Suddenly, they were waylaid by Stalin and Eduardo. Stalin, 27 years old, went immediately behind Joselito, and embraced him with both hands. 6 Joselito struggled from the clutches of Stalin but in vain; the firm embrace locked the whole body and both arms of Joselito. Facing the hapless Joselito, Eduardo got his knife from his pocket, opened it, 7 and thrust the shiny and pointed end of the weapon at the right side of Joselito's body just below his navel. 8 "May tama ako," were the words uttered by Joselito just before he fell to the ground. 9 Teofilo, Babylyn, and Rosabel froze where they stood. The abruptness of the incident petrified them. But after the stabbing the assailants fled in the direction of San Agustin and disappeared in the dark. The beam of light from the flashlight Teofilo carried, however, was sufficient to enable him and his two female companions to witness clearly the stabbing of Joselito and to recognize the appellant and Eduardo Romero, both known to them (Teofilo, Babylyn, and Rosabel), as the perpetrators of the crime. Bathed in blood, the victim was pedalled in a tricycle to the Naujan Police Station. Unfortunately, Private First Class (Pfc) Henry Aceremo, the officer-in-charge, was not able to get an ante mortem statement because the victim could hardly talk. 10 He was hovering between life and death when he was rushed to the clinic of Dr. Nicolas B. Balbin. As a result of the mortal wound inflicted by Eduardo Romero, Joselito died. Dr. Nicolas B. Balbin who conducted a post mortem examination, certified that the cause of death was hemorrhage within the adbominal cavity, and that the wound might have been caused by a sharp-bladed instrument, probably a "balisong." 11 As a consequence, Pfcs Bautista and Aceremo accompanied by Rosabel and Babylyn, went to the house of the appellant where he was found drunk. As to Eduardo, he vanished from the barrio without a trace. Subsequently, an information was filed stating: That on or about the 29th day of November, 1980 at around 12:00 o'clock in the evening, in Barangay San Agustin II, Municipality of Naujan, Province of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable Court, the above named accused, with deliberate intent to kill, by means of treachery and evident premeditation, conspiring and confabulating with Eduardo Romero, who is still at large and therefore no preliminary investigation has yet been conducted against him, did then and there wilfully, unlawfully and feloniously attack, assault and stab with a sharp- pointed instrument one Joselito delos Reyes, who was then unaware and helpless, inflicting upon the latter a fatal stab wound, as a result of which caused his udden and unexpected death. That in the commission of the offense, the qualifying circumstances of treachery and evident premeditation, in addition to the aggravating circumstances of superior strength and nocturnity, were present. Contrary to Article 248 of the Revised Penal Code. 12 After trial, the trial court found Stalin Guevarra guilty and imposed the penalty adverted to at the outset. The appellant vehemently denies killing Joselito de los Reyes. He argues that if indeed he had embraced the victim from behind to facilitate the commission of the crime without posing any danger to his supposed co-conspirator or ,without fear of reprisal from the victim, then he could have fled the scene out of a sense of guilt, out of fear, or to avoid arrest and ultimate imprisonment. He did not leave his barrio, however, instead, a few hours after the alleged commission of the crime, he was found by the policemen boiling and eating bananas with the Hernandez girls. He quotes: "It has been truly said, since long ago that the wicked teeth, even when no man pursueth whereas the righteous are brave as the lion." 13 We can not accept the appellant's submission. As a review of the records shows, after the stabbing incident, both the appellant and Eduardo Romero hastily fled into the night. This flight from the stabbing scene is a strong indication of a guilty mind. 14 In small localities where people generally know one another and are inclined, nay, expected, to show great concern for neighbors and even nodding acquaintances who fall victim to cruel and inhuman acts, it would have been natural for the appellant, if indeed he was innocent of the crime charged, to have gone to the succor of the fallen Joselito; he would have taken him to the nearest hospital. Or, at the very least, he could have reported the incident to the local police authorities. But he did neither of these Good Samaritan acts. By his account, he went home, obviously confident that he was not Identified as it was nighttime. While it may be true that Romero escaped and remains at large, the appellant, appearing like a brave lion, stayed home, Yet it now appears that he did so not because he was innocent but because he believed he could not be Identified. But he was wrong. He was clearly and positively Identified by the prosecution eyewitnesses. Teofilo Martinez recognized Stalin as the person who embraced the victim to ensure the killing 15 of Joselito. Rosabel Magno, one of the student companions of Joselito, pointed an accusing finger at Stalin as one of the culprits. 16Babylyn Martinez, likewise, Identified the appellant as the one who immobilized the hands of the victim to render him vulnerable to the assault of Eduardo. 17

In his attempt to absolve himself of guilt, the appellant contends that there is an absolute variance between the allegations in the information and the proofs presented by the prosecution witnesses. But Rosabel Magno's testimony on cross-examination showed her unwavering Identification of Stalin Guevarra as a co-perpetrator of the killing of Joselito. xxx xxx xxx Q. Now, you stated that a stabbing incident transpired while you and your companions were walking towards the direction of your respective houses. Please tell the Court what happened? A. We were walking side by side, sir. While we were walking side by side on our way there was a sudden appearance of two persons one of whom was Stalin Guevarra, one of those persons who appeared went immediately behind Joselito de los Reyes and embraced the latter and immediately thereafter Eduardo Romero stabbed Jose de los Reyes. 18 Q. Please tell the court? A. I told the police investigators that Eduardo Romero stabbed Joselito while Stalin Guevarra embraced Joselito. 19 xxx xxx xxx The defense deposits that the prosecution witnesses uttered contradictory statements, in effect trying to raise doubts as to their veracity. First, the appellant points out that Teofilo Martinez contradicted his own testimony: xxx xxx xxx Q. When you arrived there at the dance at ten o'clock of November 29, 1980, in the evening, did you see Eduardo Romero and Stalin Guevarra at the dance. A. Yes, sir. Yet, 12 pages later, he did not see them: Q. Let us go now to the incident in the dance floor. You stated that you did not see the accused Stalin Guevarra and Romero dancing. In what part of the dance floor or in the dance hall were they before the incident in question? A. It was already on our way home when we saw them. Q. So, while you were witnessing the dance you did not see them in the dance hall that evening? A. That is right, sir. 20 xxx xxx xxx The alleged contradictions are minor inconsistencies. Whether or not Teofilo saw Stalin at the dance is immaterial. That has nothing to do with the stabbing of the victim. At any rate, Teofilo's narration of the incident was replete with details, clear and straight-forward, which is a convincing indication that he had actually witnessed the killing of Joselito. Hence, the trivial and unimportant details that the appellant emphasizes do not detract from the veracity of the testimony of the prosecution witnesses. Secondly, Stalin contends that he could not have embraced Joselito to give Eduardo Romero the chance to stab the former as he was not at the scene of the crime in the evening of November 29, 1980 at about 12:00 o'clock midnight. This defense of alibi was not established at all. Alibi is one of the weakest of all defenses. lt can be easily concocted. To sustain the defense of alibi, the accused must not only prove satisfactorily that he was at some other place at the time the crime happened, but more so, that it was physically impossible for him to have been at the place where the crime was committed. 21 The very evidence for the defense convinces us that it was physically possible for the appellant to be where the prosecution witnesses testified he was, at the scene of the crime, and then rush away to his house after the fatal incident. The place where the stabbing took place is only about seventy meters from the appellant's house. xxx xxx xxx He Stalin Guevarra) however, admitted that he and his companions were walking towards the direction of his house on the same evening of November 29, 1980, where they were about seventy (70) meters away from the place of the incident. The testimony of the accused was corroborated by defense witnesses Myra Hernandez and Julio Guevarra when they took the witness stand. 22 xxx xxx xxx We have stated, time and again, the almost inflexible rule that alibi cannot prevail over the positive testimony of prosecution witnesses and their clear Identification of the accused as the perpetrator of the crime. 23 In the instant case, prosecution witness Teofilo Martinez, who carried a flashlight, positively and clearly pinpointed the appellant as one of the assailants. Likewise, Babylyn Martinez and Rosabel Magno, the female companions of the deceased, sufficiently corroborated Teofilo Martinez's Identification of Stalin. Thirdly, the appellant disputes the finding that he had conspired and confabulated with Eduardo to attack, assault, and stab Joselito. Thus, he denies conspiracy. We do not agree. Conspiracy, it is true, is "always predominantly 'mental in composition' because it consists primarily of a meeting of minds and an intent." 24 Hence, direct proof is not essential to establish it. By its nature, conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. 25 Although here there is no well founded evidence that the appellant and Romero had conferred and agreed to kill Joselito, their complicity can be justified by circumstantial evidence, that is, their community of purpose and their unity of design in the contemporaneous or simultaneous performance of the act of assaulting the deceased. 26 The appellant cooperated with Romero in the commission of the offense by another act without which it would not have been accomplished. Therefore, the appellant is guilty as a principal by indispensable cooperation under Article 17, paragraph 3 of the Revised Penal Code. The requisites for criminal liability under this provision are: 1) participation in the criminal resolution, i.e., there is either anterior conspiracy or unity of criminal purpose and intention immediately before or simultaneously with the commission of the crime charged; and 2) cooperation in the commission of the offense by performing another act without which it would not have been accomplished. 27 At the locus criminis was the appellant. His presence did not merely give aid or support, but emboldened the attacker as the victim was immobilized by the appellant. There can be no question that the appellant's act in holding the victim from behind immediately before the latter was stabbed by Eduardo constitutes a positive and an overt act towards the realization of a common criminal intent, although the intent may be classified as instantaneous. 28 The act was impulsively done on the spur of the moment. It sprang from the turn of events, thereby uniting with the criminal design of the slayer immediately before the commission of the offense. That is termed as implied conspiracy. 29 The appellant's voluntary and indispensable cooperation was a concurrence of the criminal act to be executed. Consequently, he is a coconspirator by indispensable cooperation, although the common desire or purpose was never bottled up by a previous undertaking. It can be safely inferred that the appellant was animated to cooperate in the taking of the 'life of the deceased. Had it not been of the appellant's embrace of the victim from behind, the latter could have fought back, parried the thrust, or could have even run away. If, indeed, the appellant intended to save the deceased from the attack, he could have wrestled for the "balisong" from Eduardo's hands and prevented the assault. Or, he could have placed himself between the assailant and the victim, instead of grabbing him from behind and holding both his arms. The appellant's actuations thus belie his claimed innocence. True, the appellant did not inflict any wound or injury materially contributing to the death of the victim. But, as already stated, his act of immobilizing Joselito's arms establishes the indispensable cooperation required by law to make him equally guilty with Romero who alone stabbed and wounded the former. Curiously, appellant Stalin Guevarra filed in the Court a motion to withdraw his appeal, dated July 22, 1985. He expressed that he was no longer interested in his appeal and manifested his willingness to serve his sentence and subsequently apply for executive clemency or parole. Considering that the appellant in his motion was unassisted by counsel, the Court denied the motion. The Court of Appeals ruled that the crime committed by the appellant is "murder as the killing is qualified by evident premeditation." We do no agree. Not one of the three basic elements of evident premeditation was proven, to wit: First, the time when the offender determined to commit the crime itself, second, an act manifestly indicating that the culprit had tenaciously clung to his obsession to commit the crime; and third, a sufficient lapse of time between the determination and the execution to allow him to reflect upon the consequence of his act. On the other hand, what the evidence on record shows is that both the appellant and Romero, assaulted the victim spontaneously and cooperated fully. This circumstance, we rule, precludes evident premidatation. Be that as it may, the crime committed is still murder, the killing being qualified by treachery. The evidence shows beyond reasonable doubt that the attack by Romero, with the indispensable cooperation of the appellant, was so sudden and unexpected as to deprive the victim of any opportunity to defend himself or to inflict retaliation. WHEREFORE, the appealed judgment is AFFIRMED WITH MODIFICATION as to the civil indemnity which is hereby increased to P30,000.00. Costs against the appelant. SO ORDERED. Paras Padilla and Regalado, JJ., concur. Melencio-Herrera (Chairperson). J., is on leave. Manila.SECOND DIVISION G.R. No. 77964 July 26, 1988 PEOPLE OF THE PHILIPPINES, petitioner, vs. EDGARDO SALVADOR y KIAMCO and RICARDO MANOSCA y TOLUWA, respondents. The Solicitor General for plaintiff-appellee.Carpio, Villaraza and Cruz for respondents. SARMIENTO, J.: A reversal of the decision 1 dated February 16, 1987 of the Regional Trial Court of Manila, Branch XLIII, finding the accused-appellant and his co-accused Ricardo Maosca, guilty beyond reasonable doubt of the special complex crime of robbery with homicide and physical injuries, with its accessory penalties, is sought by the accused-appellant in this appeal before us. The decretal portion of the decision reads:

WHEREFORE, the Court finds the accused Edgardo Salvador y Kiamco and Ricardo Maosca y Toluwa, both guilty beyond reasonable doubt of the special complex crime of robbery with homicide and physical injuries, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code, and considering the aggravating circumstance of nighttime which facilitated the commission of the offense, hereby sentences each of them to reclusion perpetua, in lieu of the death penalty by virtue of the 1987 Constitution, with its accessory penalties, to indemnify jointly and severally the heirs of the deceased Susan Esmao y Eacuaryasa in the amount of P5,200.00 as actual damages, for funeral and burial expenses, and the further sum of P30,000.00 for death indemnity and P20,000.00 as moral damages, and to also jointly and severally indemnify the victim Alfredo C. Mabuhay, Jr. in the amount of P730.00 as actual damages for the cash money, wallet and wristwatch stolen from him, and P10,000.00 as moral damages for the physical injuries inflicted upon him, and cost of suit. SO ORDERED. The antecedent facts culled from the records are summarized by the Solicitor General as follows: 2 At about 8:30 o'clock in the evening of August 20, 1985, Alfredo C. Mabuhay, 24 years of age, single, and his girlfriend, Susan Esmao, decided to go to the Cultural Center Compound within the boundary of the City of Manila as Susan had something to tell Alfredo about their relationship with one another. Weary from the day's work, the couple proceeded to a grassy portion on the side of the Cultural Center building. Alfredo laid (sic) down on the grass, his head resting on the palm of his left hand and his left elbow touching the ground. Susan sat slightly above Alfredo's head. (t.s.n., pp. 5-10, June 6, 1986.) As they were conversing, two male persons approached them. One of them later identified as accusedappellant Edgardo Salvador held Susan and pushed her to the ground in a lying position, while the other later identified as accused Ricardo Maosca did the same to Alfredo. Maosca then announced that it was a hold-up as both men poked knives at their victims. Alfredo readily gave his wallet to Maosca. Susan, who was being held by Salvador, offered some resistance out of fear. When Alfredo told her to obey him (Salvador), Maosca stabbed Alfredo in the nose and told him in the vernacular: "You are meddling." (t.s.n., pp. 11-14, June 6, 1986). As Alfredo attempted to rise, Maosca stabbed him again hitting him near the left eye. Whereupon, Maosca told Salvador to pull away from Susan. Salvador did as he was told and the two men exchanged positions Salvador holding Alfredo as he pulled him away from Susan, while Maosca held Susan. Still lying on his back, Alfredo had difficulty in opening his eyes but heard Susan weeping aloud. So, Alfredo told Salvador, who was holding him, to mind his girlfriend (Susan) as his companion (Maosca) appeared determined to kill her. Alfredo then gave his wristwatch to Salvador. (t.s.n., pp. 14-17, June 6, 1986). Whereupon, Maosca stabbed Susan several times amidst her screams as Salvador held Alfredo to prevent the latter from lending aid to Susan. (t.s.n., pp. 26-27, Nov. 4, 1986). Alfredo heard Salvador shouting to Maosca and saying "Richard, huwag" (Richard, do not kill her). Maosca continued stabbing Susan until she died. Maosca then told Salvador: "Pare, tapusin mo na yan. Tapos na ako rito." (Finish him up already. I am already finished here). At this juncture, Salvador whispered to Alfredo to play dead as he (Salvador) would pretend to stab him. Thus, Salvador, using the back handle of his knife, pretended to stab Alfredo at the back. Afterwards, the two malefactors ran away. (t.s.n., pp. 18-21, June 6, 1986). Some construction workers in the vicinity rescued Alfredo who told them that he and his girlfriend were attacked and robbed. The workers summoned the police who arrived shortly and brought Alfredo to the Ospital ng Maynila for treatment of his wounds. The peace officers told Alfredo that his girlfriend was already dead. (t.s.n., pp. 22-24, June 6, 1986). At about 1:00 o'clock in the morning of the following day, Alfredo was brought to the Western Police District for investigation. Alfredo issued a written statement to the police authorities. (t.s.n., pp. 25-27, June 6, 1986). Meanwhile, at around past 9:00 o'clock on the evening of the fatal occurrence, Policemen Renato Baes and Johnny Young of the Homicide Section Investigation Division, Western Police District, were sent to the crime scene for an on-the-spot investigation. They saw sprawled on the cement portion of the ground the bloody and lifeless body of Susan Esmao. While scouting the area for possible suspects, they were informed by Capt. Jose Garcia, the detachment commander of the CCP Complex of the arrest of two men (the two accused herein) as they were in the act of robbing another couple. (t.s.n., pp. 3-8, Oct. 16, 1986). On the other hand, the trial court summarized the testimony of the accused-appellant in this wise: 3 xxx xxx xxx On the other hand, the accused Edgardo Salvador y Kiamco testified that about 9:00 o'clock in the evening of August 20, 1985, he was with coaccused Ricardo Maosca at the CCP Complex strolling. He has known Ricardo Maosca since he was seven (7) years old but they became close only in 1985. While strolling at the CCP Complex, Ricardo Maosca approached a couple and he followed Maosca. Suddenly, Maosca pulled a knife, went near the man and stabbed him hitting him on the right eye. He (Salvador) pulled the man away because he might be killed by accused Maosca forgetting about the woman because he was nervous. Maosca ordered him to kill the man but the man pleaded and he told the man that he was not a killer. The man told him to help his girlfriend because at this point Maosca was stabbing the girlfriend and he (Salvador) shouted at Maosca saying "Richard, huwag." Maosca stopped stabbing the girlfriend. On the other hand, he told the man to pretend to be dead because Maosca might turn on him and he told Maosca that the man was already dead. Accused Maosca left and he (Salvador) also left. They went to Legaspi Towers and stayed there for a while. While there, the police flashed their flashlights on them, they tried to run but were stopped. They were brought to the police station where he executed a written statement. He denied having touched or hurt the woman, he also denied having hurt the man but told him to pretend to be dead because accused Maosca was already out of his mind and might kill him (the man). In his brief, the accused-appellant submits the following assignments of errors. 4 ASSIGNMENT OF ERRORS THE TRIAL COURT ERRED IN CONVICTING APPELLANT EDGARDO K. SALVADOR OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE AND PHYSICAL INJURIES, DEFINED AND PUNISHED UNDER ARTICLE 294, PARAGRAPH 1 OF THE REVISED PENAL CODE. II THE TRIAL COURT ERRED IN CONSIDERING NIGHTIME AS AN AGGRAVATING CIRCUMSTANCE WHICH FACILITATED THE COMMISSION OF THE OFFENSE, ASSUMING THAT APPELLANT EDGARDO K. SALVADOR COMMITTED THE SAME. The bone of contention in this case centers on whether or not the trial court committed a reversible error in finding that there was conspiracy between the accusedappellant and his co-accused. The record belies the accused-appellant's contention that there was no conspiracy, express or implied, between him and his co-accused. One is considered a party to a conspiracy when he intentionally participates in an act or deed with a view to the furtherance of common design and purpose. There must be unity of purpose and unity in the execution of the unlawful objective. Mere knowledge, acquiescense, or approval of the act, without cooperation or agreement to cooperate is not enough. 5 Moreover, conspiracy implies concert of design but not participation in every detail of execution. 6 The concert of action at the moment of consummating the crime and the form and manner in which assistance was rendered to the person inflicting the fatal wound established their common criminal design. Tacit and spontaneous coordination of the attack by two accused shows existence of conspiracy. 7 In the instant case the acts and circumstances from which a logical inference of the existence of a common design can be drawn are as follows: a) armed with knives the two accused while ostensibly strolling at the Cultural Center of the Philippines (CCP for short) complex simultaneously approached their victims, Susan and Alfredo, from behind; 8 b) immediately the accused-appellant took hold of Susan while the other accused held Alfredo, pushing the latter to the ground with Maosca (the other accused) shouting "hold up." All the time the knives were poked at the bodies of their victims. 9 c) Subsequently both accused divested their victims of their belongings, Maosca taking Alfredo's wallet while Salvador took Alfredo's wrist watch; 10 d) rendered unconscious by the stab wounds inflicted on him, Alfredo was pulled away by the accused-appellant, while the other accused took hold of Susan who was then crying. 11 e) All the time that the other accused was stabbing Susan, the accusedappellant was holding Alfredo, thrusting the latter to the ground to prevent him from giving aid to Susan; 12 f) that the accused-appellant did nothing to prevent the commission by the other accused of his dastardly act of stabbing Susan to death. Shouting (by the accused-appellant) "Richard, huwag" was of course not enough to prevent the commission of the offense, absent any overt act to show that indeed he tried to prevent the other accused from stabbing Susan; 13 g) both accused left the crime scene together; in fact, they were even talking about the incident; 14 h) both were arrested in front of the CCP complex while they were in the act of victimizing their second victim. 15 No doubt the existence of conspiracy is established from the foregoing acts and circumstances. In Roca, 16 we stated that "the sudden appearance of Herman at the scene of the crime armed with a bayonet following the appellant who arrived earlier, and the fact that Herman stabbed Florencio from behind and continued to stab Florencio as appellant stood by as a support or alalay to see to it that no one would come to the aid of the victim are circumstances unmistakably pointing to the existence of conspiracy. (Emphasis supplied) The accused-appellant in seeking the reversal of the trial court's decision stresses the admission of Ricardo Maosca that he was "high on drugs." 17 He argues that due to Ricardo Maosca's agitated state brought about by his being "high on drugs" he was touchy and sensitive. Further he contends that it is highly improbable that he consented, much less actually cooperated in the stabbing of Alfredo Mabuhay, Jr. by Maosca. He claims there was no cooperation in the perpetration of the offense. No common design, understanding, and agreement can be inferred from the circumstances, he submits. He asserts that Maosca acted unilaterally and spontaneously in stabbing Mabuhay after the latter had voluntarily given up his wallet and urged Susan "to just obey." Arguing even further, he maintains that the fact that Maosca was high on drugs at the time of the incident precludes any express conspiracy between him and Maosca. Because of his drugged state, Maosca was incapable of any coherent thought or reasoning. He rationalizes that under the circumstances, it would be highly improbable that there was any "agreement concerning the commission of a felony" and a decision "to commit it" within the purview of Article 8 of the Revised Penal Code. 18 We do not agree with the accused-appellant's pretensions. For one thing, the allegation that the accused Maosca was high on drugs at the time of the commission of the crime is self-serving. No credible evidence was ever presented that Maosca was indeed high on drugs. Even the Booking Sheet and Arrest Report of Maosca (Exhibit "Q") made no mention that Maosca when arrested was high on drugs. It was only during the trial that Maosca stated that he was high on drugs at the time of his

commission of the crime. Even the accused-appellant did not say anything about Maosca's being high on drugs when he gave his Salaysay (Exhibit "2" and Exhibit "M") before the Manila Police. It was also only during the trial that he mentioned it. He must have merely heard it from his co-accused Maosca when the latter testified earlier. In fact his testimony on cross-examination contradicts his claim that Maosca was high on drugs. Q. And at the time, Ricardo Manosca appeared natural. There was nothing unusal about his appearance. A. Yes, sir. 19 The settled rule is that when the conspiracy to commit the crime of robbery was conclusively shown by the concerted acts of the accused, and homicide was committed as a consequence thereof, all those who participated as principals in the robbery would also be held as principals in the complex crime of robbery with homicide although they did not actually take part in the homicide unless it appears that they attempted to prevent the killing. The question as to who actually robbed or who actually killed is of no moment, since all of them would be held accountable for the crime of robbery with homicide. 20 In People v. Adriano, 21 we reiterated this wellsettled rule, thus: It is, however, well settled in this jurisdiction that when, as in this case, there is "a direct relation, an intimate connection between the robbery and the killing whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time it is unquestionable that they constitute the complex special crime defined and penalized in article 503, paragraph 1, of the Penal Code." (robbery with homicide). (People vs. Hernandez, 46 Phil. 48). (See also People vs. Madrid, 88 Phil. 1; People vs. Cocoy, et. al., 94 Phil. 91; U.S. vs. Palmares, 7 Phil. 120, 124, citing the decision dated August 21, 1872 of the Supreme Court of Spain; U.S. vs. Ibaez, et al., 19 Phil. 463). What has been said in the cases above cited makes it clear that the killing, whether done before, during or after the robbery, with obvious and unmistakable connection with the robbery, raises the crime to the special complex crime of robbery with homicide, defined in Article 294, paragraph 1, of the Revised Penal Code. This is the crime for which Apolonio Adriano, Mariano Domingo and Mario San Diego, as well as Pedro Miranda who is still at large are guilty as principals, for which death is the imposable penalty. Leonardo Bernardo, as already explained, is guilty only of simple robbery. The act of the appellant in holding fast to Alfredo as Susan was being stabbed to death by Manosca betrayed his (appellant's) alleged exhortation to Manosca not to kill Susan. Indeed, if the appellant was sincere in his plea to Manosca to spare Susan, he (appellant) should have at least released his hold on Alfredo so that the latter could have gone to the aid of Susan. 22 The belated exculpation of the accused-appellant by the private complainant for the killing of Susan and the physical injuries inflicted upon him, would not detract from the former's liability considering that conspiracy has already been established. It is too late in the day for this pretense of truthfulness and the motivation is highly suspicious. Moreover, the record discloses that the accused in the course of the trial offered to enter a plea of guilty to the crime of simple robbery which however did not materialize due to the objection of the prosecuting fiscal. Such offer militates against the accused-appellant's submission that he is not liable for the offense charged. Confession constitutes an evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. 23 Anent the second assigned error, we find that nocturnity was correctly appreciated by the court below to have been especially sought to facilitate the commission of the crime. More so, if we consider the fact that when the two accused were arrested they were in the act of victimizing another couple. 24 WHEREFORE, the judgment appealed from is AFFIRMED in toto. SO ORDERED. Melencio-Herrera, Paras and Padilla, JJ., concur. Manila.EN BANC G.R. No. L-12794 October 14, 1918 ELADIO ALPUERTO, plaintiff-appelle, vs. JOSE PEREZ PASTOR and MANUEL ROA, provincial sheriff of Cebu, defendants-appellants. Jose Martinez de San Agustin for appellants.Gullas & Briones for appellee. STREET, J.: The three parcels of real property which constitutes the subject matter of the contention in this case formerly belonged to Juan Llenos, and both the interested parties in this action claim titled under, the plaintiff as party in possession under a contract of sale with pacto de retro, and the defendant as purchaser at a public sale under an execution directed against Llenos. the plaintiff, Eladio Alpuerto, asks the court to make a declaration against the defendant, Jose Perez Pastor, to the effect that the plaintiff is the owner thereof in full and absolute dominion. He also prays that the sale of the property effected by the sheriff, Manuel Roa, to said defendant be declared null. The defendant Pastor denies the right of the plaintiff to the relief sought, and asserts that the transaction by which the plaintiff claims to have acquired titled was simulated or fictitious and that the supposed conveyance was effected for the purpose of defrauding the defendant as creditor of Juan Llenos. This defendant therefore in turn prays the court to declare that he himself is the true owner of the property and that a judgment be entered condemning the plaintiff to surrender possession to him. From a judgment entered in the Court of First Instance of Cebu in favor of the plaintiff , the defendants have appealed. It appears that, pending the proceedings, the defendant Pastor has died and an administrator, Eustaquio Lopez, has been substituted in his stead. Throughout the opinion, however, Pastor, the name of the original party defendant, will be used in referring to the interest now represented by the administrator. The plaintiff claims by virtue of the document (Exhibit A), which purports to be a contract of sale with the privilege of repurchase. It recites a consideration of P2,500 the payment of which is acknowledged; and the stipulated period within which is acknowledge; and the stipulated period within which the vendor may repurchase the property is fixed at two years. This documents is signed by the two contracting parties (Juan Llenos and Eladio Alpuerto) and is attested by two subscribing witnesses. It purports on its face to have been executed on July 3, 1912; just it was not acknowledged before a notary until December 3, 1914. The property in question is assessed for the purposes of taxation at P5,000 or P6,000; and is worth more than twice the amount which the plaintiff claims to have paid for it. At the time of the supposed sale to Eladio Alpuerto there had been pending for nearly two years, in the Court of First Instance of Cebu, an action in which Jose Perez Pastor was plaintiff and Juan Llenos was defendant. In this action the plaintiff sought to recover from Juan Llenos a considerable sum of money; and Eladio Alpuerto, as son-in-law of Juan Llenos, was aware of this litigation from the beginning. On January 27, 1913, or about six months after the alleged sale of the property in question to Eladio Alpuerto judgment was rendered in said action in favor of the plaintiff for the sum of P3,789.13, with interest and costs. This judgment was affirmed upon appeal to the Supreme Court on November 20, 1914. 1 An execution was thereafter issued on April 12, 1915, from the Court of First Instance upon said judgment was levied upon the property in question as the property of Juan Llenos. Before the sale was effected the plaintiff herein, Eladio Alpuerto, notified the sheriff that he claimed the property as his own. Nevertheless, the sheriff proceeded under indemnification and sold the property at public sale to Jose Perez Pastor for the sum of P1,100. The case stated in the cross-complaint as a ground of relief to the defendant has its basis in the rule stated in subsection 3 of article 1291 of the Civil Code, which declares generally that a contract executed in fraud of creditors is subject of rescission; and upon this issue the burden of proof is of course upon Pastor, as the party assailing the transaction, to show that the transfer was fraudulent; though it should here be remembered that proof on this point may be accomplished by the aid of presumptions, as in other cases. The argument against the validity of the conveyance from Juan Llenos to Eladio Alpuerto is based on two propositions, namely: (1) that said conveyance must, under the second paragraph of article 1297, in connection with article 1227, of the Civil Code, be presumed to be fraudulent; and (2) that furthermore is shown by the evidence to have been fraudulent in fact. The second paragraph of article 1297 of the Civil Code says that a transfer of property made by one against whom a condemnatory judgment has been pronounced in either instance is to be presumed fraudulent. The cardinal question on this branch of the case is therefore this. Was the transfer in question made after a judgment had been entered against Juan Llenos in either instance? This in turn depends upon the question whether the contract of sale shall be considered effective as from the date upon which it purports to have been executed (July 3, 1912) or from the date when it was acknowledge before a notary public (December 3, 1914) for in the interval between these two dates final judgment had been rendered against Juan Llenos both in the Court of First Instance and in the Supreme Court. The solution of the problem thus presented requires us to consider the combined effect of articles 1225 and 1227 of the Civil Code. Article 1225 declares that a private document legally recognized shall have, with regard to those who sign it and their privies (causahabientes), the same force as a public instrument. The expression "legally recognized" (reconocido legamente), as here used, must be taken to mean recognized, or acknowledged by the person or persons, executing or emitting the document-in this case the vendor, Juan Llenos, and the vendee-Eladio Alpuerto. The act of legal recognition occurred, we assume, when the document was signed by parties and delivered in the presence of the attesting witnesses, who were called upon to bear witness to the transaction. Concerning the meaning of the expression "privies" (causabientes), in this article, the following passage is found in the Commentary of Manresa: The said word denotes the idea of succession, not only be right of heirship and testamentary legacy, but also that of succession by singular title, derived form acts inter vivos, and for special purposes; hence, an assignee of a credit, and one subrogated to it, etc., will be privies; in short, he, who by succession is placed in the position of one of those who contracted the juridical relation and executed the private document and appears to be substituting him in his personal rights and obligations, is a privy. (Manresa,Codigo Civil, pp. 492 and 492.) Under the interpretation thus placed upon the meaning of the term "privies", it is clear that Jose Perez Pastor, the purchaser at the public sale under an execution directed against Juan Llenos, must be considered a privy or successor in interest of the execution debtor. He is therefore undoubtedly bound by the instrument which conveyed the property to Eladio Alpuerto and this from the date of the execution of that instrument as a private document-unless this result is prohibited by article 1227 of the Civil Code, which reads as follows: The date of a private instrument shall be considered, with regard to third persons, only from the date on which it may have been filed or entered in a public registry, from the date on which it may have been delivered to a public official by virtue of his office. In considering this article it is important to bear in mind that it has reference merely to the probative value of the document with respect to the date of its execution, and is not intended to lay down any rule concerning the efficacy of the act or acts evidenced by the document. (Manresa, Codigo Civil, vol. 8, p. 501.) The

importance of the rule here declared is therefore most conspicuously revealed in the situation where the document itself contains the only competent evidence before the court bearing upon the date upon which the instrument in question was executed as a private document. This can be most conveniently exhibited by means of illustrations based on the language of the text itself. For instance, let it be supposed that a document is produced bearing the signatures of the parties who participated in it and purporting to have been executed upon a certain date, prior to the date upon which the document was filed or inscribed in a public register. In such case the instrument can take effect, as against third persons, only from the date when it was so filed or inscribed in a public register. It is, however, proved that one of the signatory parties has died upon a certain date subsequent to that upon which case the instrument can take effect, as against third persons, only from the date of the death of the deceased signatory party. Again, be it supposed, a document is produced in court bearing the signatures of the parties and purporting to have been executed upon a certain date. The instrument has at no time been elevated into a public document and it is not shown that either of the signatory parties is dead. In this case the instrument can take effect, as against third persons, only from the date of the death of the deceased signatory party. Again, be it supposed, a document is produced in court bearing the signatures of the parties has died upon a certain dated subsequent to that upon which the instrument purports to have been executed. In this case the instrument can take effect, as against third persons, only from the death of the deceased signatory party. Again, be it supposed, a document is produced in court bearing the signatures of the parties and purporting to have been executed upon a certain date. The instrument has at no time been elevated into a public document and it is not shown that either of the signatory parties is dead. In this case the instrument can take effect, as against third persons, only from the date when the document was filed in court, this being considered to be delivery to a public official by virtue of his office. All of these illustrations have reference to the situation where the document itself contains only evidence before the court bearing upon the date of its original execution; and the execution of the instrument is supposed to be proved by force of the act of notarial acknowledgment or by proof that the names of the parties signed to the document are genuine. It must be borne in mind in this connection that article 1227 is not primarily or exclusively concerned with instruments which after being executed originally as private documents are at a later date elevated to the status of public documents. On the contrary, it deals primarily with private documents, and the instrument in question may at all times remain a private document is not converted into a public document either by the death of one of the signatory parties or by the fact that it is delivered to a public official by virtue of his office. The due execution of such instruments must therefore be proved when they are introduced in court, if not made self-proving by notarial acknowledgment, which operate to raise them to the status of public documents. The commentator Manresa, discussing article 1227, observes with discernment that there may be other facts than those mentioned in said article which be received as determinative of the date from which the instrument should be considered to be effective against third person. Thus, if it should appear that, subsequent to the date upon which the document purports to have been executed, one of the signatory parties had lost his penhand by amputation, this should be accepted as being fully conclusive that the instrument was in fact executed before such occurrence. (Manresa, Codigo Civil, vol. 8 p. 503.) In the same connection Manresa says that if a third person is affected with notice of the existence of a private document or by any act of his own recognizes its existence, it will have effect, as against him, from the date of such notice or recognition. (Opus citat., id.) These observations all go to show that article 1227 states a presumption which may be rebutted. The question then arises. Is there anything in article 1227, or elsewhere, which prohibits the introduction of the testimony of attesting witnesses, or other persons who may be present when a private document is executed, to prove that the act was accomplished upon the date stated therein to be date of its execution? We are of the opinion that such testimony is admissible, even as against third parties. This conclusion is fully supported by the opinion of the supreme court of Spain in the case of Alvarez vs.Yaez. (177 Juris, Civil, 663, decided April 16, 1910). The facts in that case were that by private documents dated respectively August 2 and August 3, 1908, Alvarez purchased four tracts of land. On August 17, of the same year Carlos Vega sold, by public instrument, to Yaez several tracts were adjacent to part of the land purchased by Alvarez who, upon learning of the sale, brought his action, under article 1523 of Civil Code, to be subrogated to the buyer, exercising his right of retracto legal. The defendant answered that on August 17, 1908, plaintiff was not the owner of any land adjacent to that acquired on that date by defendant the contention being that the private documents upon which the complaint was based, in addition to the fact that they are not proof of ownership, were not presented for the payment of the tax on real estate, which was fourteen days after defendant purchased the properties in contest . . . . The trial court permitted plaintiff to produce witnesses for the purpose of proving that the private documents relied upon by him were in fact executed and delivered upon the dates therein recited and that plaintiff went into possession under them, and upon that evidence made finding in accordance with plaintiff's contentions, and held that the right to take over the purchase retracto existed. The defendant appealed to the supreme court of Spain, and argued that by its ruling the Audiencia had disregarded article 1227 of the Civil Code, the specific contention being that as against persons who are not parties to them private documents must be treated as though their existence commenced only from the date upon which they are made of public record. This contention was overruled, the Court saying: It cannot be denied that the appellant Constantino Vega is to be regarded as a third person, because he was not a party to the two contracts of sale by virtue of which Vicente Alvarez acquired from Ildefonso Alvarez the ownership of the three tracts of country real estate from which he derives his right to be subrogated as purchaser of our other tracts adjacent thereto sold, with others, by Carlos Vega to the defendant by public instrument dated August 17, 1908. Nevertheless, it is not to be inferred from this fact as appellant contends, that the legal dates of the two first contracts, evidenced by private documents, are not those which are recited therein, but that as regards third persons, in accordance with Art. 1227 of the Civil Code, they must be regarded as dated on the day . . . on which they were noted in the tax office. That article established a legal presumption which must yield to contrary evidence, and the trial court, basing its conclusion on the testimony of the witnesses, has established the finding, which we cannot disturb, that the dates recited in these documents are the true dates upon which the contracts were made. Clearly articles 1225 and 1227 should be construed in such manner as to harmonize with each other and to give effect, so far as possible, to the legislative intent expressed in each; and the only interpretation of article 1227 which can be adopted consistently with the meaning of article 1225 is that the rule announced in article 1227 has reference exclusively to the situation where there is no accredited evidence before the court, independent of the recitals of the document itself, showing the date upon which it was in fact executed. It has been settled in many decisions that a document which originates as private document and never arises above that status will, under article 1225, be given full effect as such. (Samson vs. Salvilla and Sierra, 12 Phil. Rep., 497, 505; Tanguinot vs. Municipality of Tanay, 9 Phil. Rep., 369, 401; Guillermo vs. Mantiezo, 8 Phil. Rep., 368, 372; Irureta, Goyena vs. Tambunting, 1 Phil. Rep., 490, 493.) It follows that article 1227 does not, as against the signatory parties and their successors in interest, postpone the operation of an instrument, proved as private document, if it is shown by competent evidence that it was in fact executed upon the date recited therein as the date of its execution. If this were not true, the result would be that a person having rights under an instrument, probable as a private document, might lose those rights by reason of the happening of some one of the occurrences mentioned in article 1227. The contrary conclusion is evidently the proper one, that is, that if a party has rights under an instrument, provable as a private document, and it is so proved, it will prevail from the true and proven date of its execution with all the effect attributable to it under article 1225. The expression "third parties" (terceros) as used in article 1227, evidently means persons who have not intervened in the execution of the document. It has been so interpreted by the supreme court of Spain and by this court. (Lao Simbieng vs. Palencia, 18 Phil. Rep., 325, 328; Easton vs. E. Diaz & Co. and Sheriff of Albay, 32 Phil. Rep., 181; decision of the supreme court of Spain of April 16, 1910, already cited.) Manresa is therefore in error in supposing that it has the more limited meaning of persons who have not intervened in the execution of the document and are neither heirs nor successors in interest of those who signed the same. (Manresa, Codigo Civil, vol. 8, p. 501.) In the case now before us the two witnesses examined with reference to the execution of the document in question testify that it was originally executed and delivered on July 13, 1912, the date stated upon its face. For the purpose of disposing of this branch of the case without further discussion, we provisionally accept this statement as true and deduce the conclusion that he presumption stated in paragraph 2 of article 1297 of the Civil Code is not applicable. This brings us to the question whether the transaction evidenced by Exhibit A should be pronounced fraudulent in fact. Upon turning to the evidence for the purpose of determining this question, the following circumstances are revealed, namely; (1) the grantee is the son-in-law of the grantor; (2) at the time conveyance is made an action is pending against the grantor to recover several thousand pesos of money; and of the pendency of this action the grantee has full knowledge; (3) the debtor has no other satisfied (4) the consideration for the transfer is less than half of the value of the property in question. These circumstances are familiar badges of fraud, and their combined effect is such, we think, as to raise a presumption of fraud, even apart from the legal presumption expressed in article 1297, and to impose upon the vendee the burden of proving the bona fides of the transaction by a preponderance of evidence and to the satisfaction of the court.1awph!l.net We are of the opinion that the proof adduced not only fails to remove the imputation of fraud thus cast upon the transaction but strongly tends to engender the suspicion that the transaction was wholly fictitious. It is true that both the plaintiff himself and Simon Batuigas, one of the subscribing witnesses, declared in the clearest terms that the transaction took place on July 3, 1912, as claimed; that two thousand pesos of the money charged hands in the act; and that the balance of the consideration consisted in the satisfaction and released of the debt for five hundred pesos owing from Juan Llenos to Eladio Alpuerto. It should not escape notice that neither Juan Llenos nor the other attesting witness, Geronimo Godinez, were examined as to the circumstances attending the transaction; and no explanation is given as to why these witnesses were not produced. Where the law imposes the burden of proof upon the party to established the bona fides of such a transaction as this, against the presumption of the fraud, it is his duty, if the experts to be believed, to lay before the court, so far as is within his power, a complete and true revelation of all circumstances surrounding the affair; and where he supresses evidence or negligently falls to call a witness supposed to know the facts, it may be presumed that the testimony of the witness, if adduced, would be unfavorable. The plaintiff did not try to show where or how he acquired the two thousand pesos of ready money with which the purchased was made, and it does not appear that his resource are sufficient to enable him readily to command that sum. The proof of the existence of the debt of five hundred pesos which Juan Llenos is supposed to have owed to the plaintiff and which constituted the balance of the purchase price over and above the amount which was paid in cash rests almost exclusively in the statement of the plaintiff himself. Upon these important points the testimony of Juan Llenos, if adduced, might possibly have shed something about what become of the money. the effect of these observations cannot be evaded by saying that the defendant might himself have summoned Juan Llenos and examined him in court. The burden of the proof was on the plaintiff; and the defendant could not be expected to call of the principles in the transaction which was impeached.

It is the course somewhat perplexing to a court to weight the uncontradicted testimony of a witness against mere presumption of fraud stands as a witness, thought mute, pointing the finger of denunciation at the questioned transaction, and the imputation thus cast upon it can only be removed by a full and honest revelation sufficient to convince the court that the fraudulent intent did not exist. It is not to be denied that the secretary of a transaction like that now under consideration, arising from the fact that the conveyance was affected by a private document, is a circumstance tending to cast suspicion upon it. strong consideration of public policy require that in such case the parties should held to strict proof of good faith; and this court cannot give it approval to a doctrine which would permit the property of a failing and impleaded debtor to be put beyond the reach of this creditors by a trick such as we believe was attempted in this case. When a legal proceeding is ended and the sheriff goes to take property of the debtor in execution, he is not infrequently met with the statutory that the property now belongs to some other persons; and a document is produced to prove it which nobody, except the immediate parties, ever heard of before. The courts must be executed if they refused to listen with childish credulity to mentions of this character. We do not overlook the circumstances that the supposed sale in this case was effected by a contract withpacto de retro; and where such a sale is made, as frequently occurs, to secure money intended as a mere loan, the consideration is naturally less than the true value of the property. In such case, if the bona fides of the original contract is not under suspicion, the fact that the consideration for the sale is less than the value of the property is not indicative of fraud. But where the original sale is presumptively tained with fraud. But where the original sale is presumptively tained with fraud, the entire transaction from the time of the making of the contract until the consolidation of the title in the purchaser should be considered as a whole, and absolutely transferred at once. otherwise the contract of sale with pacto de retro could be as an instrument to shield parties in their efforts to defraud creditors. this cannot be permitted. In the connection reliance is placed by the appellee upon the case of Chiong Veloso vs. Ro and Levering (37 Phil. Rep., 63); and it is urged that this decision affords support for the view that the transaction in question, having been accomplished by means of contract of sale with facto de retro, cannot be considered fraudulent. It must be remember, however, that the original sale to contract of pacto de retro was made in the case last cited to a purchaser for value and in good faith; and the question was not so much whether the original transaction was fraudulent as whether the failure of the debtor to redeem was fraudulent as whether, it being the theory of the defendant that the plaintiff had colluded with the debtor (who as a sister) and had redeemed the property with her money or for her benefit. Moreover, it was found in that case that at the time of the original conveyance the debtor had other property more than sufficient to satisfy any judgment that might be recovered in the pending action. The conclusion to which we come is that the questioned transaction, if actually any simulated, was made in fraud of creditors and must be annulled. The judgment entered in this cause in the court below must accordingly be reversed; and judgment will be here entered dismissing the complaint of Eladio Alpuerto and requiring in the complaint to Eustaquio Lopez, as administrator to be a declared that the documents (Exhibit A), purporting to be a contract of sale conveying the property in question from Juan Llenos to Eladio Alpuerto, acknowledged before a notary public upon December 3, 1914, was executed in fraud of creditors and the same is hereby annulled. No special adjudication as to costs will be made. So ordered. Torres, Johnson, Carson and Avancea, JJ., concur. Separate Opinions FISHER, J., dissenting: While we concur fully with the views expressed in the majority opinion concerning the interpretation of articles 1225 and 1227 of the Civil Code, we are unable to agree with the conclusion that the transaction here in dispute is fraudulent in fact. Assuming for the sake of the argument that the circumstances surrounding the transaction, if unexplained, would warrant the presumption of fraud, we consider that the presumption has been overcome in this case by the positive and uncontradicted testimony of the plaintiff of Batuigas that the money was in fact paid as recited in the deed. The record shows that plaintiff was possessed of sufficient means to permit him to make such purchase; and while it is true that the consideration named was less than the full value of the property, the different is not greater is usual in sale under pacto de retro such as this purports to have been. This difference in value, rather than tending to show a fraudulent intent, tends to negative it. During the period within which the right to repurchase is reversed, which in this case was two years, any judgment creditors of the vendor may exercise the right to redeem. Consequently, in case of the simulation of a sale of this kind, it is rather to be expected that the value will be inflated than understand. As regards the failure to call the other subscribing witnesses, this court, following the general presumption trend of judicial opinion, has held that no unfavorable presumption arises in such a case when that no unfavorable presumption arises in such a case when it appears that the witnesses were equally available to both parties. The fact that a party refrains from cumbering the record with merely corroborative evidence should not be considered to his prejudice. We think the judgment should be affirmed. Malcolm, J., concurs. Manila.EN BANC G.R. No. 71712 April 15, 1988 HONORATO MALIG and ANTONIO LACSON, petitioners, vs.SANDIGANBAYAN (Second Division), and PEOPLE OF THE PHILIPPINES, respondents. Farolan, Canal & Associates for petitioners.The Solicitor General for respondents. MELENCIO-HERRERA, J.: An appeal from the Decision of the Sandiganbayan, dated June 26, 1985, convicting herein petitioners-accused, Honorato Malig and Antonio Lacson, of violating Section 3(b) of the Anti-Graft & Corrupt Practices Act (Republic Act No. 3019, as amended), and sentencing them to suffer an indeterminate penalty of imprisonment ranging from three (3) years, as minimum, to six (6) years, as maximum; to suffer perpetual disqualification from public office; and to pay the costs. The Amended Information, charging them with the offense, reads: That on or about the 15th and the 21st day of March 1983, in the municipality of Sta. Maria, province of Bulacan, Philippines, and within the jurisdiction of this honorable court, accused Honorato Malig and Antonio Lacson, both duly appointed Senior Technical Property Inspectors of the Commission on Audit for Region III and as such conduct verification and post inspection of government infrastructure projects, did then and there wilfully and unlawfully request Celso R. Halili, President and General Manager of Halrey Construction Inc. who had a contract with the Provincial Government of Bulacan for the construction of Bocaue-San Jose Road (Bagbaguin Section) thru his employee to give P20,000.00 in connection with said contract wherein said accused had to intervene under the law in their official capacity in violation of RA 3019. The testimonial evidence has been aptly summarized by the Sandiganbayan: Testifying as first witness for the prosecution, Danilo Francisco y Radam, 39, declared that he is the foreman of the Halrey Construction, Inc., with office of Bagbaguin, Santa Maria, Bulacan. He recalled that on March 15, 1983, he reported for duty at their construction office and his tour of duty was from 8:00 o'clock in the morning up to 5:00 o'clock in the afternoon. At about 10:00 o'clock in the morning of that same day, while he was at the shop of Halrey Construction, somebody called and informed him that the construction secretary, one Emiliana Gerona, was calling for him. Responding to the call, he immediately proceeded to the office of the secretary who instructed him to accompany the two COA inspectors, accused Malig and Lacson, as they were going to conduct an inspection on the Bocaue-San Jose Road (Bagbaguin Section) project which had just been completed. Thereupon, he accompanied the two accused and boarded the car, a Toyota Corolla four-door, with Plate No. CCW-551, which they (accused) were using at the time. Lacson was driving the car and Malig was seated in front while he in turn was seated at the rear seat of the car. When they reached the beginning of the project, Malig told him that they were going to start with the measurement of the project. He (witness) suggested that the project be measured with a tape which he had brought with him. However, Malig replied that instead of using the tape, they will just measure it by using the odometer which they had attached in their car. He continued by saying that Dominador Nicolas, the construction supervisor, later followed them at the project site upon his instruction. He pointed to the two accused the beginning of the Project and from there, they rode on towards Bocaue, Bulacan, up to Bagbaguin Road which is the end of the project. After that, Malig told him that they were already through with the measurement and so they returned to the office of Halrey Construction. He and Dominador Nicolas alighted from the car at the construction office and then Malig, who was then beside Lacson in the car, called for him. He approached Malig in front of the right door of the car and the latter told him to inform his boss to prepare P20,000.00 so that the report will be finished (TSN, October 18, 1984, p. 15). Malig was referring to Celso Halili, the President and Manager of Halrey Construction. Malig also informed him that they will come back to their office before the Holy Week. After their conversation, he went to their office and told the secretary, Emiliana Gerona, to inform him as soon as their manager who was attending to another project, arrives from Iloilo. On March 21, 1983, at about 10:00 o'clock in the morning during their work breaktime, he again saw the two accused in front of their construction office near their car parked at the office gate. He approached them and the two accused inquired if he had already told his boss, Celso Halili, regarding the amount which they were asking (p. 16, Ibid.). He replied that his boss had not yet arrived from Iloilo and the two accused then boarded their car, pouting, as they left. On March 25, 1983, their Manager, Celso Halili, arrived from Iloilo. He talked to him in his office and related to him about the arrival of the two accused COA inspectors on March 15 and 21, 1983, the inspection the two had conducted on the project, as well as the amount of P20,000.00 which they were asking. Halili did not make any comment relative to the amount the two had requested. Then follows the testimony of Emiliana Gerona y Agapito, 32 Secretary of the Halrey Construction, Inc., who testified to the following facts: ... at about 10:00 o'clock in the morning of March 15, 1983 as she was performing her duties inside the construction office, two inspectors from the Commission on Audit, Region III, accused Honorato Malig and Antonio Lacson, arrived. The two inquired if their Manager, Celso Halili, was around because they were going to inspect and measure the San Jose-Bocaue Road project, Bagbaguin Section. She told them that Halili was not in the office at the time, as he was in Iloilo. Nevertheless, she told them that she will ask the foreman, Danilo Francisco, to accompany them to the project site. She then called up Danilo Francisco to come to the office and upon the latter's arrival, she told him to accompany the two accused COA inspectors to the site of the project. Francisco rode in the car with the two accused and proceeded to the project site. After the lapse of more or less 15 minutes, the three returned and she saw them conversing near the gate about three meters away from the office. Malig was then seated

on the front right seat of the car while Lacson was behind the steering wheel and Francisco was standing outside. They conversed for about one minute, after which the two accused left in the car they were using at the time. Francisco went inside the office and asked her to inform him the moment their manager arrives because he was going to tell him something important about the project. On March 21, 1983, the two accused again came back at about 10:00 o'clock in the morning during merienda time. She saw them near the gate of the office talking for a while with Francisco, after which they left. Gerona claims she had known the two accused even before March 15, 1983 when the bridge project in Matictic Norzagaray, Bulacan, was under construction as she used to give them the representation expenses they usually ask from their manager, Celso Halili, during their inspection trips to the project site. She Identified cash vouchers (Exhibits C,-C-1, C-2 and C-3) as well as the entries recorded in the journal (Exhibits, D, D-1, D2, E, E-1, F and F-1) showing the various amounts the accused received, to wit: (a) Cash voucher (Exhibit C) dated December 16, 1982 for representation expenses in the Matictic project for the amount of P 25,000.00 with the annotation Malig/Lacson' (Exhibit C-4) at the back thereof; (b) Cash voucher (Exhibit C-1) for representation expenses for Matictic project dated August 18, 1982 for the amount of P5,000.00 with annotation at the back thereof "Eng. Malig & Co." (Exhibit C-5); (c) Cash voucher (Exhibit C-3) dated July 21, 1982 for representation expenses for Matictic project for the amount of P2,000.00 with notation "c/o Engr. Malig" (Exhibits C-7) at the back thereof, (d) Entry (Exhibit D-1) in the columnar pad (Exhibit D) dated July 28, 1982 for representation expense STPI, Matictic project for the amount of P3,000.00; (e) Another entry (Exhibit D-2) in Exhibit D corresponding to the date July 21, 1982 for the amount of P2,000.00 for representation expenses; (b) Another entry (Exhibit E-1) in the columnar pad (Exhibit E) corresponding to the month of August 1982 for "COA representation expenses, Matictic" in the amount of P5,000.00; (g) Another entry (Exhibit F-1) in the columnar pad (Exhibit F) corresponding to the date December 16, 1982 for "CashCOA Region 3, San Fernando, Representation Expenses, Matictic" in the amount of P 25,000.00. She stated that she personally gave the said amounts appearing in the above-mentioned cash vouchers to the persons whose names appear at the back thereof as well as the amounts reflected in the entries in the columnar pads. Next is the declaration of Celso Halili y Reyes, 50, contractor, President of Halrey Construction, Inc., who stated: ... he commenced the construction of the Bocaue-San Jose Road, Bagbaguin Section, as per their contract (Exhibit A) on November 2, 1982 by virtue of a Notice to Proceed (Exhibit G) dated October 29, 1982 which he received from the Office of the Provincial Engineer of Bulacan. As the work went on and before the project could be finished, he received a letter (Exhibit K) dated November 24, 1982 instructing him for the revision of the station limits on the project as stipulated in the contract. He then went to the Office of the Provincial Engineer and while there, the latter told him that the Provincial Governor had said that the end of the project was much better than the start of the project, hence, the Provincial Governor suggested that the 200 linear meters at the end be instead placed at the beginning of the project (TSN, December 6, 1984, p. 16). He received two blue print plants (Exhibits L and L-1) from the Provincial Engineer's Office in connection with said revision. In compliance with said instruction of the Provincial Governor and the Provincial Engineer, he called up his men and instructed them that the 200 meters be placed instead at the beginning of the project. In turn, his men followed his instruction and the construction of the project with the revised station limits was finished on February 16, 1983. He admitted that he had not seen the two accused, Malig and Lacson, even during the period that the project in question was still under construction. In fact, on March 15, 1983, he was then in Iloilo and only returned to his house in Bagbaguin, Sta. Maria, Bulacan, on March 25, 1983. On that same day, March 25, he was told by his foreman, Danilo Francisco, that the two accused had been asking P20,000.00 from him in connection with the Bocaue-San Jose Road project so that their report thereon will be fixed (TSN, December 6, 1984, p. 23). Their request for the amount was made on March 15, 1983 after they made an inspection on the project. When this information was relayed to him by Francisco, he did not say anything about it. However, later, on March 29, 1983, he went to the Office of the Provincial Engineer in the Provincial Capitol of Bulacan because of the Post- Inspection Report (Exhibit B) which states that the project as undertaken was short of 200 linear meters and that the completion thereof was also delayed (TSN, p. 24, Ibid.). He claimed that there was no truth to the report of accused that there was a shortage of 200 linear meters in the project and that the construction of the project had been delayed. At that time, he added, he had not yet been paid in full for the project as he had not yet collected his 10% retention fee (p. 25, Ibid.). The retention fee was supposed to be released only after the post-inspection report has been submitted by the Commission on Audit, as the report itself will show whether the project had been completed in accordance with the stipulations of the contract or that all the requirements had been fully satisfied, for the payment thereof. He was supposed to collect a retention fee of P69,161.97 in connection with the project in question, but because the accused were asking from him the amount of P20,000.00, he inquired and consulted his fellow contractors and his lawyer on the matter. He was determined to file the complaint because he felt that what they have done was too much and they had been doing it oftentimes (p. 26, Ibid.). He cited the bridge project in Matictic, Norzagaray, Bulacan, where he claimed the same accused had asked money from him and he gave them what they wanted (p. 27, Ibid.). He knew very well that such act of giving was illegal but with his experience as a contractor, he knew that the accused will not sign the required papers unless he gave them money. Consequently, he filed the instant case because he felt that he has had enough (p. 23, Ibid.). He Identified the contract (Exhibit M) regarding the construction of the Matictic bridge project which he and the Provincial Governor of Bulacan entered into on April 16, 1982. He also recalled that on four different occasions during the construction of the Matictic bridge project, he gave the two accused money through his secretary, Mely Gerona. He further claimed that he has not secured any contract anymore after he filed the case on April 14, 1983 because the accused had told him that they would retaliate against him. In fact, he, along with six engineers in the Office of the Provincial engineer of Bulacan, were charged for Diversion of Public Funds, although he stated the complaint filed against him and his coaccused by COA Chairman Francisco Tantuico was subsequently dismissed. He also recalled that before the trial of this case on October 17, 1984 started, and while waiting for the case to be called for trial outside the courtroom of this Court, the accused asked him to withdraw the case he had filed against them. The same request was also made to him by the accused during the hearing of the other case is Bulacan, during which time, they admitted that their Report on the project was wrong and that, actually the Bocaue-San Jose Road project was not short of 200 linear meters (p. 31, Ibid.). On his behalf, petitioner-accused, Honorato Malig y Carreon, 35, Senior Technical Property Inspector (STPI) of the Commission on Audit (COA), Region III, and a resident at St. Jude Village, San Fernando, Pampanga, testified: ... he has been a Senior Technical Property Inspector of the Commission on Audit, Region III, since 1978. Among his duties were to review contracts as to its technical aspect and to conduct inspections on government infrastructure projects. He recalled that on March 15, 1983, he went to Sta. Maria, Bulacan, from their office at San Fernando, Pampanga, accompanied by accused Engineer Lacson, to inspect the road project at Bocaue-San Jose, Bagbaguin Section. His inspection was for the purpose of contract review to determine whether the quantity of construction materials involved in the project conforms to the submitted plans and specifications. His inspection was duly authorized by Regional Director Arturo Dadulfaza, as shown by the duly approved Personnel Locator Slip (Exhibit 12) dated March 15, 1983. From their office, they passed by the office of the contractor, Celso Halili, but was unable to talk to him as the latter was not around. He only talked to a woman employee whom he came to know later on as Zenaida Calma. Calma asked a driver to accompany them to the project site and when a construction driver came, they proceeded to the project site. He did not know the name of the driver since he did not ask his name as he was not interested. They used the car owned by Engineer Lacson. He denied having talked with Emiliana Gerona, the secretary of Halrey Construction, at the same office. They inspected the beginning to the end of the project for about fifteen minutes, after which, he and his companion, Engineer Lacson, brought the driver who had guided them back to the construction office and they left thereafter. He did not see Danilo Francisco on that same occasion when they made the inspection. On their way back to the COA regional office, they passed by the Provincial Auditor's Office of Bulacan situated at the Provincial Capitol of Malolos and stayed there for about ten minutes. They talked with the Provincial Auditor and found that there were some documents which, the latter had indorsed to the COA regional office. These were the certificate of completion and request for post inspection of the San Jose-Bocaue Road project, Bagbaguin Section, which papers were handcarried by them to the COA regional office. On March 21, 1983, he, Antonio Lacson and Gregorio Yamzon again returned to Bulacan to conduct a post-inspection of the San Jose-Bocaue Road project, Bagbaguin Section. The same inspection was authorized and approved by COA Regional Director Arturo D. Dadulfaza on March 21, 1983 as evidenced by the COA Personnel Locator Slip (Exhibit 7). They left the Regional office of the COA to conduct the inspection at the project site at about 1:00 o'clock of the same day. They measured the project as completed and found out that the project was short by 200 meters. Thereafter, they returned to their office and did not pass by any other place anymore. They prepared the post-inspection report (Exhibit 6-B) dated March 22, 1983 which he, Yamzon and Lacson submitted to their superior. He denied having had any occasion to talk with the contractor, Celso Halili, either in connection with the San Jose-Bocaue Road project or with the Matictic Bridge project. Neither had he any occassion to talk to Halili in connection with the case at bar or of having approached him (Halili) sometime in October 1983 in the premises of the Court for the purpose of pleading to him for the withdrawal of the instant case filed against him. He branded the instant charge of Halili as fabricated. He declared further that when the COA central office learned of the case filed against them, the said central office sent a team of inspectors to Bulacan for the purpose of determining whether administrative charges should be filed against them or whether legal assistance will be extended to them by their office relative to the charge filed against them. He learned later that as a result of the inspection conducted by the COA national office, COA Chairman Francisco Tantuico sustained their findings in their reports as shown by Decision No. 324 (Exhibit 4) dated October 20, 1983. They were not charged administratively in connection with the inspection reports they submitted but the COA national office sought the assistance of the Office of the Solicitor General to represent them in the case, as a result of which the said office filed a motion for reconsideration and reinvestigation. xxx xxx xxx

... He admitted having gone to the project site on March 15, 1983 to conduct a contract review and in order to see the actual as built condition of the project. He returned to the same project site on March 21, 1983 to conduct a post-inspection for purposes of the requirement in the Office of the Provincial Auditor of a post-inspection report in its post-audit work as well as to verify whether the certificate of completion is correct and in accordance with the plans and specifications. They prepared their joint report dated March 22, 1983 for both their contract review conducted on March 15, 1983 and the post-inspection conducted on March 21, 1983. As of March 15, 1983, they found out that the quantity of materials supposedly used for the project were not totally placed thereon as they were some items that were not delivered. He did not know if the project had already been completed when they went there on March 15, 1983 since their inspection was only for contract review purposes. He admitted that it was upon their own initiative that they were assigned to undertake the contract review and post-inspection because their requests were approved by their Regional Director as shown by the two Personnel Locator Slips (Exhibits 7 and 12). Both locator slips, however, indicated that the purpose was for the inspection of the San Jose-Bocaue Road project (Bagbaguin Section) and not for contract review. He also admitted having inspected the Matictic Bridge project of the Halrey Construction and recalled that the said project was paid in two installments. As regards the Bocaue-San Jose Road project, he said that the project was paid only once and the same had been accepted by the Provincial Engineer and the Provincial Governor of Bulacan. There was no pre-audit made on the voucher for the amount paid on March 7, 1983 for the project such that at the time of their inspection, the project had already been fully paid. He said that payment could still be made even without the inspection report from the COA because the same report is needed only for purposes of post-audit. Thus, after a post-audit has been conducted, they have to make recommendation as to the amount of refunds to be made by the contractor. He also declared that the Provincial Engineer issued a certificate of completion on the San Jose-Bocaue Road project and he accepted the same as having been fully completed. As a result of the certificate of completion issued and the acceptance of the Provincial Engineer, the contractor was paid for the price under the contract. He admitted that their inspection revealed deficiencies in the project such that the Chairman of the COA recommended the prosecution of the Provincial Engineer and others although the latter's case was dismissed. He did not seek the voucher for the amount paid for the project at the time of their inspection and was not aware if the contractor has been paid for the contract price of the project. However, he assumed that the contractor has already been paid because, usually, after a certificate of completion has been accepted, the project should automatically be paid without necessity of pre-audit. He also did not see the Notice to Proceed (Exhibit G) during his inspection on March 15, 1983 which showed that the construction of the project was supposed to start on November 2, 1982 but he said that the same was no longer necessary because the commencement of the work was already stated in the contract. He indicated in the original plan (Exhibit L) by placing point "A" on the start of the project and point "B" at the end of the station limit 1 + 020. He said that when he measured the beginning up to the end of the project, it was only 820 meters and deficient by 200 meters. He further declared that once a project is accepted by the agency as complete, the 10% retention fee can already be collected by the contractor and a post-audit is no longer necessary for the contractor to collect the same even if the post-inspection report shows that there are defects or deficiencies in the project. He admitted that on the basis of their post-inspection report on the project, the COA made some disallowance on the contract price as shown by the computation in the voucher marked in evidence as Exhibit A-1. He knew for a fact that the implementing official for the contract (Exhibit A) signed by the Province Governor is the Provincial Engineer and that pursuant to the implementing rules and regulations of P.D. 1594 (Exhibit P), a change order can be made by the implementing official subject to the approval of the Provincial Governor. He further admitted that the on made by Gulmatico on the project was after the contractor, Celso Halili, had filed a complaint against them and they only learned that the COA central office took action by sending a team of inspectors to the project site to determine whether administrative charges could be filed against them or whether legal assistance will be extended to them. For his part, petitioner-accused Antonio Lacson y Santos, 40, Technical Property Inspector (TPI) of the COA, Region III, residing at 215 Ventura St., Marisol, Angeles City, declared that: ... he became the Technical Property Inspector of the COA, Region III, since April 1980. Among his duties were to conduct inspection and review of infrastructure projects. He recalled that at around 1:00 o'clock in the afternoon of March 15, 1983, they went to the project site in question to conduct the post-inspection. From the COA regional office, they went direct to the office of the contractor, Celso Halili, of Sta. Maria, Bulacan, purposely to ask for a companion to pinpoint to them the exact location of the project. Upon reaching the office of the contractor, a lady approached them and they introduced themselves to her. The lady then looked for someone who could accompany them and when a driver of the construction firm came, she instructed him to accompany them to the project site. He did not know the name of the lady he talked to at the time but he came to know later that she was Zenaida Calma. He denied having met Emiliana Gerona or Danilo Francisco on that same occasion when they went to the construction office of Halili. He only came to know the said persons during the preliminary investigation of the case in Bulacan. He also had no occassion to talk to the man who accompanied them to the project site and neither did he ask him his name as he was not interested. From the office of the contractor, they proceeded to the project site with accused Malig and the driver. They verified and passed through the project for about 10 to 15 minutes after which they went back and dropped the driver who accompanied them at the construction office. Then they returned to their regional office passing by the Office of the Provincial Auditor of Bulacan where they learned of a certain indorsement on the certificate of completion of the project in question that they were inspecting. They were asked by the Provincial Auditor to handcarry the said documents and upon reaching the regional office, they had the same received by the receiving section of their office and they continued with their evaluation of the project. In the morning of march 21, 1983, he and Malig reported for duty at the regional office and took their lunch in front of their office. At about 1:00 o'clock in the afternoon of that same day, he and Malig returned to the project which had already been accepted as completed to conduct a postinspection upon the request of the Provincial Auditor of Bulacan. They proceeded directly to the project site and upon arrival thereat, they started measuring the total length of the project with a measuring tape, after which they returned to their office. As a result of their inspection on March 15 and 21, 1983, they submitted a post-inspection report (Exhibit 6-B) to their superior. Consequently, a case of technical malversation was filed against the contractor and the provincial engineers. Insofar as the complaint for anti-graft filed against him and Malig, they requested for legal assistance from the COA central office and the COA Chairman asked the assistance of the Office of the Solicitor General regarding the case. From all the foregoing, the following salient points emerge: 1. On October 29, 1982,after public bidding,a contract was entered into between the Provincial Governor of Bulacan and Halrey Construction, Inc., represented by its President, Celso Halili, for the construction of the Bocaue-San Jose Road (Bagbaguin Section) with a total length of 1,020 lineal meters for the total amount of P963,850.00. The contract provided for a period of completion of 120 calendar days from date of award, and liquidated damages of no less than 20% of the total agreed contract price in case of failure to comply with the terms and conditions of the contract, and a ten (10%) percent retention fee. 2. The Notice to Proceed was issued on the same date, the work to commence from November 2, 1982 and the "Contract Time" to begin from the same date (Exhibit "0l"). That Notice was approved by the Provincial Governor upon recommendation of the Provincial Engineer, Eduardo M. Isidro, Jr. (Exhibit "G"). 3. On November 24, 1982, the Provincial Engineer addressed a letter to Halrey Construction changing the "station limits" in the contract by eliminating the end portion of 200 meters, more or less, and transferring it to the starting point. "No change in length is involved, the original quantities and total cost of the project will remain in their original amount" (Exhibit "K"). Petitioners-accused maintain, however, that they knew nothing of said change at the time they inspected the projects on March 15 and 21, 1983 because it was not included in the documentation furnished them. 4. On March 3, 1983, Celso R. Halili, President of Halrey Construction wrote the Provincial Engineer stating that the project had been completed and requesting for the first and final payment (Exhibit "I"). 5. On March 8, 1983, a Certificate of 100% completion as per plans and specifications based on the Statement of Work Accomplished as of February 16, 1983 (Exhibits "H" & "9"), was made by the Provincial Engineer, among others, and approved by the Provincial Governor (Exhibits "J" & "10"). The Statement of Work Accomplished (Exhibits "H" & "9") clearly stated a length of 1,020 meters (1.2 kms). 6. On March 7, 1983, Disbursement Voucher No. 11-199 was prepared in the amount of P834,212.18, net of P96,385.00 or the ten (10%) percent retention (Exhibit "A1"). Check No. 047164, dated March 10, 1983, was thereafter issued in payment. 7. On March 15, 1983, allegedly unaware of the completion of the project, petitioners-accused went to the contractor's office in Bulacan around 10:00 in the morning. As narrated by prosecution witness, Danilo Francisco, it was then that they asked for the amount of P20,000.00. Petitioners stoutly deny it contending that they saw neither Danilo Francisco nor Emiliana Gerona thereat that morning but merely talked to one Zenaida Calma. 8. On March 21, 1983, the versions of what transpired also differ. The prosecution maintains that petitioners went to the contractor's office again at 10:00 in the morning and asked Danilo Francisco whether he had told his boss of the amount they were asking for. When told that the latter had not yet arrived from the province, petitioners left "pouting." Petitioners deny having gone to complainant-contractor's office that day and contend, instead, that they went direct to the project site at 1:00 P.M., together with Engineer Yamzon and took measurements of the project. 9. The day after,or on March 22, 1983, Petitioners-accused together with Engineer Yamzon submitted a Contract Review Report and a Contract Review Work Sheet, which, aside from data given, stated that "the stipulated contract amount was found to be excessive." Jointly submitted was a Post Inspection Report stating that only 820 lineal meters were completed out of the entire contractual length of 1,020 lineal meters, or a shortage of 200 meters, and recommending payment of only P691,619.72 on account of the contractual deficiency as well as a penalty of Pl 92,770. 00 for the delay in the completion of the project leaving a balance of only P498,849.72 due complainant contractor out of the total contract price of P963,850.00. 10. On April 14,1983, Celso R. Halili, President of Halrey Construction Inc., fed up by the actuations of petitioners, which were just "too much" for him, filed an AntiGraft case against petitioners and Yamzon. The case against the latter, however, was dismissed for insufficiency of evidence. 11. On April 19, 1983, Voucher No.11-199 covering the payment to the contractor was post-audited by the Provincial Auditor. On the basis of the Post Inspection Report submitted by petitioners, the Auditor made a total disallowance of P373,944.75 therefrom.

It appears that in a letter-complaint of former COA Chairman Francisco S. Tantuico, Jr., dated July 27, 1983, to former Tanodbayan Benardo Fernandez, the former charged the Provincial Engineer, complainant-contractor Celso R. Halili, and four other provincial officials of Malolos, Bulacan, having to do with the road project, with violation of the Anti-Graft Law and Article 220 of the Revised Penal Code (Exhibit "2"). The basis for the charge was the Post Inspection Report dated March 22, 1983 submitted by petitioners-accused and Yamzon (Exhibits "B" & "6-B"), and another Inspection Report, dated July 20, 1983 by Technical Property Inspectors Gulmatico, Jr., and Lasmarinas (Gulmatico Report), both of whom are from the COA Technical Service Office (Exhibit "3") who were sent to inspect the project after the complainant-contractor had filed the anti-graft case against petitioners. The Gulmatico Report stated that only 820.19 lineal meters were completed instead of 1,020 lineal meters as contracted for and as alleged in the contractor's complaint before the Sandiganbayan; and that the remaining length of 201.70 meters was diverted to Paso Road or the road to San Jose, which was constructed not in accordance with original approved plans and specifications. Of note is the fact that the Report did not consider the "diverted" portion as part of the road project, hence the finding of shortage. In a Resolution, dated September 4, 1984, the Tanodbayan dismissed the Tantuico Complaint for lack of prima facie showing of violation of the Anti-Graft Act since it found, among others, that: ... The contract, therefore, is not disadvantageous to the Government. Neither could it be said that damages to the Province of Bulacan resulted because of the said contract. On the contrary, respondent Halili directly sustained damage and prejudice due to the erroneous Post Inspection Report made by the TPI Engineers, Malig, Yamzon and Lacson, whose report resulted to the disallowance of P373,944,75 by the Provincial Auditor of Bulacan, in spite of the fact that the total 1,020 lineal meters of concreted road subject of the contract was fully constructed and completed in accordance with the terms, specifications and conditions agreed upon by the contracting parties. ... ... The revision was made upon the instruction of the Provincial Governor and conformed to by respondent Halili. Had Engineers Malig, Yamzon and Lacson inspected the project in question thoroughly and in good faith without any ulterior motive, they could have arrived at a correct conclusion and report to the Honorable COA Chairman Francisco Tantuico, Jr. ... What was changed, ... was the starting point of the construction of the road which benefited the province of Bulacan because the portion of the road supposed to be covered by the 200 L.M. in question could still be economically maintained with little expense. It was also satisfactorily shown that the total 1,020 lineal meters of the concreted road subject of the contract was completed contrary to the allegation that only 820 L.M. was completed. ... It further appears that on January 29, 1985, while trial before the Sandiganbayan was in progress and almost two (2) years after the completion of the project, COA Senior Technical Property Inspectors De la Cruz, Pineda and Dimalanta submitted still another Report to the COA Regional Director, Region III (the De la Cruz Report) of an ocular inspection of the project conducted by them on January 14, 1985, wherein they concluded inter alia: 5. Using the specifications required for the Bagbaguin Section, it is very obvious that the constructed road at Paso Section, although meeting the required length, is still deficient in width and shoulder. ... and that there were deficiencies in the computations of quantities of items involved with an equivalent amount of P80,792.28, exclusive of the 20% of the total contract price as penalty for unsatisfactory completion of the project as stipulated in the contract. This time, the required length was deemed to have been met but other deficiencies were unearthed. After trial, and as heretofore stated, the Sandiganbayan rendered a guilty verdict. In this appeal, petitioners aver that: I. The Sandiganbayan erred in concluding that the Post-inspection report prepared by the accused and Gregorio B. Yamzon were done in bad faith and precipitated by the failure of the complainant (Celso Halili) to give the amount of P20,000.00 which they demanded from the complainant for favorable post-inspection report. II. The Sandiganbayan erred in ruling that the said Post-inspection report in question is erroneous which circumstance is purportedly evidence of guilt of the accused, notwithstanding the fact that the findings of the accused had been sustained by the COA. III. The Sandiganbayan erred in admitting in evidence exhibits C to C-7, D, D-1, D-2, E, E-1, F, F-1, G, K, despite their inadmissibility for being purely hearsay, self-serving and immaterial. IV. The Sandiganbayan erred in giving weight to the testimonies of the prosecution witnesses which are likewise purely hearsay, self-serving and incredible. V. The Sandiganbayan erred in convicting the accused despite the lack of evidence to establish their guilt beyond reasonable doubt. In a Manifestation and Motion filed on January 2, 1986, the Office of the Solicitor General, then headed by Hon. Estelito Mendoza, disclosed that upon request for legal assistance of petitioners, his office appeared as counsel on their behalf when the case was before the Tanodbayan for preliminary investigation and that they asserted, after a review of the records, that petitioners were innocent of the charges against them; that the Tanodbayan, however, believed otherwise and filed the corresponding Information against petitioners before the Sandiganbayan; and that it maintains its position that petitioners' guilt has not been proven beyond reasonable doubt. That is now the question before the Court. The former Solicitor General maintains that the lone testimony of prosecution witness, Danilo Francisco, who testified that petitioners-accused told him to inform his employer, Celso Halili, to give them P20,000.00 for their investigation report on the project is insufficient to convict, for being inconsistent with human experience and showing irreconcilable contradiction. We disagree. Notwithstanding petitioners' denials, Danilo Francisco was not a complete stranger to them. Danio knew them as early as the Matictic Bridge Project awarded to the same Halrey Construction in 1981. The secretary of the construction firm, Emiliana Gerona, did not have to introduce Danilo to petitioners. She just asked the latter to accompany them to the project. That petitioners choose to ask Danilo, instead of Emiliana, to relay their demand to complainant-contractor is neither strange since Danilo was also an employee of the construction firm. It can hardly be claimed that good faith attended the actuations of petitioners-accused in the preparation of their Post Inspection Report, based on the following considerations: 1) petitioners' first trip to the project site on March 15, 1983 was ostensibly for "inspection" and, on second thought, for "contract review" but in reality, to demand for P20,000.00. Thus, a) the Personnel Locator Slip authorizing them to make the "inspection" on March 15, 1983 (Exhibit "12") never mentioned "contract review" as the purpose but merely "to conduct inspection in connection with the construction of Bocaue-San Jose Road (Bagbaguin Section) at Sta. Maria, Bulacan." And as petitioners themselves admit, the assignment was secured at their instance; b) the project having been completed on February 16, 1983, it was too late to conduct a "contract review;" c) a contract review would not have necessitated an ocular inspection of the project. In fact, their Contract Review Report merely stated that "the stipulated contract amount was excessive;" d) that the so-called "contract review" was merely a ploy to make the trip official is shown by the fact that their "inspection" on March 15 was merely to drive from the beginning to the end of the project. They asked no questions from Danilo Francisco and they got no answers. They saw nothing, or they chose not to see, not even the change in the end and starting points, which could not but have been visible to the naked eye, if they had made an honestto-goodness inspection. They made no measurements whatsoever despite the suggestion of Danilo Francisco that a tape be used, petitioners opting instead to rely merely on the "odometer" in their car; e) it was only on March 22, 1983 that petitioners submitted their Contract Review Report jointly with their Post Inspection Report after having been informed by Danilo Francisco on March 21 that his boss had not arrived from the province, and inferentially, that the amount they were asking for was not forthcoming. 2) Petitioners' second trip in the morning of March 2l, 1983 to complainant-contractor's office was purposely to inquire about the answer to their request. Although petitioners deny having gone there and contend, instead, that they went direct to the project site at 1:00 P.M. that day in the company of Engineer Yamzon, presenting a Personnel Locator Slip (Exhibit "7") to prove the same, Danilo Francisco and Emiliana Gerona emphatically stated that petitioners were in their office at 10:00 A.M. of that day inquiring. Evidently, failing to get a favorable reply they pushed through with their second inspection that afternoon and with their adverse Post-Inspection Report the next day. 3) The Post-Inspection Report (Exhibits "B" & "6-B") lacks basis in fact. a) It reported a delay in the completion of the project when, actually, there was none. In fact, the project was completed ahead of time. Petitioners relied merely on the contract provision that the date of award was October 12, 1982 when on the face of the contract it clearly appears that it was signed only on October 29, 1982. Petitioners' insistence to reckon the contract time from October 12, 1982 betrays their determination to disregard facts that contradict their finding of delay. Even granting that they were not aware of the Notice to Proceed (Exhibit "G") indicating that the contract time starts on November 2, 1982, since the project was completed on February 16, 1983, the period of completion was earlier than the 120 days stipulated in the contract reckoned from October 29, 1982, the date it was perfected. b) The Report concluded that there was a shortage in the completed road project by approximately 200 lineal meters. But there was no such shortage. There was an authorized change in the station limits in that the 200 lineal meters at the end of the section to be repaired was transferred and added to the starting point of the project, without involving any change in the length of the project nor in the original quantities and total cost of the project. This is evident from the letter dated November 24, 1982 of the Provincial Engineer of Bulacan to Halrey Construction (Exhibit "K"). Petitioners claim, however, that they were unaware of such revision. The then Solicitor General's Office avers that the same was communicated only to the COA Central Office and not to its Regional office. Even granting those contentions, it is obvious that had petitioners made an honest-to-goodness inspection they could not but have noticed the change and could have asked about it, since the project was just one single stretch of concrete road within the same Barangay Bagbaguin. c) Petitioners' Post Inspection Report also included a finding that the shoulder of the road was not completed and that the concrete pavement was defective, with no particulars mentioned. And yet, as admitted later in the De la Cruz Report of January 29, 1985, "no detail on the pavement and shoulder width were drawn on the plan" (Exhibit "11"). It is also significant that said Report admitted that the required length had been complied with and in open Court De la Cruz testified that the team saw the diverted portion of 200 lineal meters which should be considered as part of the project (t.s.n., February 18, 1985, pp. 15-16). Moreover, the so-called cost deficiency was estimated only at P80,792.28 exclusive of the 20% penalty.

The finding of Chairman Tantuico, Jr. in his 6th Indorsement (Decision No. 324) dated October 20, 1983 (Exhibit "4" & "O") that the change in plans was an attempt in extremis to defeat the disallowance made by the Provincial Auditor of Bulacan is negated by the fact that the change order from the Provincial Engineer antedated the disallowance since the change was made as far back as November 24, 1982. And if, as claimed, the Provincial Engineer was not authorized to make that change, it could not have been the fault of complainant-contractor who merely followed instructions. As concluded by the Tanodbayan "had they petitioners inspected the project in question thoroughly and in good faith without any ulterior motive they could have arrived at a correct conclusion and report to the Honorable COA Chairman, Francisco Tantuico, Jr.," It is further averred that the vouchers and journals testified to and Identified by witness Emiliana Gerona (Exhibits "C," "C-1" to "C-3;" Exhibits "D," "E" and "F") are hearsay and inadmissible in evidence in that they do not bear the signatures of petitioners acknowledging receipt of the money as representation expenses for the Matictic Bridge Project of complainant-contractor. As testified to, however, by Emiliana Gerona, petitioners refused to sign, which, of course, was but natural considering its incriminatory implications. That petitioner Lacson was assigned in Iba, Zambales, from November 1982 to January 1983, (t.s.n., March 29, 1985, p. 28; Exhibit "13") would not actually render it impossible for him to have joined his co-petitioner Malig in soliciting and collecting representation expenses from the contractor during that period considering the ease of travel to and from provinces specially if one has his own means of transportation as, apparently, petitioner Lacson had in this case. While it may be that pursuant to Section 48, Rule 130 of the Rules of Court "evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time," the same Rule also provides that "it may be received to prove a specific intent or knowledge, Identity, plan, system, scheme, habit, custom or usage and the like." Emiliana Gerona's credible testimony regarding the amounts petitioners received from the Matictic project sufficiently establishes petitioners "intent" and/or "habit" of demanding and receiving money from the contractor-complainant, such that the latter, in exasperation, felt that enough was enough, to the prejudice of his future contracts. In the final analysis, the errors assigned center on the issue of credibility of witnesses in respect of which we have consistently held that Appellate Courts will generally not disturb the findings of the Trial Court, considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it has plainly overlooked certain facts of substance and value, that if considered, might affect the result of the case (People vs. Garcia, 89 SCRA 440). As the Sandiganbayan had concluded: We have carefully examined in detail the evidence adduced by both parties in the trial of the case under consideration, but WE failed to uncover any valid and cogent reason to suspect that the institution of this case has been improperly motivated. While it is true that the accused endeavored to question the sincerity and honesty of the testimonies of the prosecution witnesses, the reason ventured by the accused in an effort to cash serious doubts on the credibility of said witnesses, is insufficient to overcome the probable value or weight of their testimonies which are properly confirmed by the documentary and circumstantial evidence adduced by the prosecution in this case. It is hard to believe that the complainant who is a contractor would jeopardize and prejudice his business interests and risk being black-listed in government infrastructure projects, knowing that with the institution of the case, he may find it no longer advisable nor profitable to continue in his construction ventures. It is hardly probable that the complainant would weave out of the blue a serious accusation just to retaliate and take revenge on the accused. xxx xxx xxx It can be gainsaid, therefore, that a proper appreciation and reasonable consideration of the aforesaid testimonies of the prosecution witnesses, properly confirmed and sustained by documentary and circumstancial evidence flatly reject a favorable consideration of the claim of accused that the evidence presented against them were fabricated. All told, the testimonial, documentary and circumstantial evidence point to the guilt of petitioners-accused beyond reasonable doubt. WHEREFORE, the judgment appealed from is hereby AFFIRMED. Costs against petitioners Honorato Malig and Antonio Lacson. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes and Grio-Aquino, JJ., concur. Separate Opinions SARMIENTO, J., dissenting: I am not convinced, based on the evidence of record, that the guilt of the petitioners has been shown beyond reasonable doubt. I therefore vote for acquittal. The petitioners are charged under paragraph (b), of Section 3, of Republic Act No. 3019, as follows: (b) Directly or indirectly request or receiving any gift, present, share, percentage, or benefit, for himself or for any person, in connection with any contract or transaction between the Government and any other party wherein the public officer in his official capacity has to intervene under the law. It is the gravamen of the offense that the accused should have "[d]irectly or indirectly request[ed] or receive[ed]" some consideration in connection with a government project in which the accused public officer "in his official capacity has to intervene under the law." I regret that I see nothing on record that would evidence, beyond reasonable doubt, that the petitioners have indeed directly or indirectly requested or received the sum of P20,000.00 they had allegedly solicited. The circumstances the majority unveil that would allegedly point to the accused's guilt are not, in my view, sufficient to support a conviction. The petitioners' trip to the project site on March 15, 1983 can not, by itself, be said to have been for the purpose of making the demand now complained of. Such a trip is not necessarily incompatible with their claim that they went to the site either for inspection or contract review. It is plain speculation to say that an inspection being improper, and a contract review being "too late," they would not have gone there except to demand grease money from the contractor. It is suspicious behaviour, but still, it is no evidence that they in fact solicited a bribe. Neither does the fact that they repaired thereto on March 21, 1983 establish such a charge. To be sure, there are testimonies to the effect that on both occasions, they did ask for P20,000.00, that is the say-so of the contractor's witnesses. I do not find such testimonies sufficient to prove the fact of "demand" within the meaning of the Anti-Graft statute. The Post-Inspection Report subsequently submitted by the petitioners were erroneous, even negligent, but they were nothing more. I do not see how it can furnish proof that it was the result of a deliberate effort by them to penalize the contractor for failing to come across with a kickback. For purposes of this case, I find the correlation unclear. The petitioners' claim that there was a delay in the completion of the project mentioned by the petitioners in their Post-inspection Report, a claim the majority would likewise reject, can withstand criticism. It is not necessary at war with the facts. The contract is dated October 12, 1982 and 120 days therefrom is February 10, 1983. While it would later turn out that the contract period should have been reckoned from November 2, 1982 pursuant to the Provincial Engineer's instructions, it is the petitioners' contention, a contention never seriously disputed, that they were never notified of any change of plans. My brethren would fault them nevertheless ("had petitioners made an honest-to-goodness inspection they could have asked about it ...") but they would leave the vital inquiry unanswered: Is this evidence of an infraction of the Anti-Graft law? As I have noted, the petitioners are vulnerable to charges of negligence, but a conviction for corrupt practices is quite another question. Prescinding from the Post-Inspection Report, what remains is the testimony of Danilo Francisco, foreman of the contractor, who insists that on March 15, 1983, the petitioners instructed him to "inform his boss to prepare P20,000.00." I find that this is the only evidence that would directly link the petitioners to the offense charged. The petitioners, however, categorically deny having given such an instruction. I am not saying that mere disclaimers are enough to absolve one from liability, but it is equally true that the onus probandi lies upon him who alleges. I find the witness Francisco's bare testimony, without more, hardly sufficient to justify putting the petitioners in jail. In ordinary civil cases that require mere preponderance of evidence, perhaps the majority's inferences would hold water, but I do not believe that they are enough for purposes of this petition, and of prosecutions of criminal cases in general that require evidence beyond reasonable doubt. The majority decision states that there is evidence that the petitioners had, in the past, exacted similar bribe money from the same contractor in connection with other projects. Certainly, that is another case. But it is not proof that the petitioners are, ergo, guilty of this particular accusation, in this particular case. Res inter alios acta. The majority would say that it is evidence of "intent" or "habit" pursuant to Section 48, of Rule 130, of the Rules of Court. But the question that remains is: Is it evidence of "guilt?" In fine, I find the circumstances as narrated by the Sandiganbayan to be not inconsistent with innocence. At most, I entertain a reasonable doubt about the petitioners' guilt. On such a doubt alone, I vote for their acquittal. Gutierrez, Jr., J., dissent. Separate Opinions SARMIENTO, J., dissenting: I am not convinced, based on the evidence of record, that the guilt of the petitioners has been shown beyond reasonable doubt. I therefore vote for acquittal. The petitioners are charged under paragraph (b), of Section 3, of Republic Act No. 3019, as follows: (b) Directly or indirectly request or receiving any gift, present, share, percentage, or benefit, for himself or for any person, in connection with any contract or transaction between the Government and any other party wherein the public officer in his official capacity has to intervene under the law. It is the gravamen of the offense that the accused should have "[d]irectly or indirectly request[ed] or receive[ed]" some consideration in connection with a government project in which the accused public officer "in his official capacity has to intervene under the law." I regret that I see nothing on record that would evidence, beyond reasonable doubt, that the petitioners have indeed directly or indirectly requested or received the sum of P20,000.00 they had allegedly solicited. The circumstances the majority unveil that would allegedly point to the accused's guilt are not, in my view, sufficient to support a conviction.

The petitioners' trip to the project site on March 15, 1983 can not, by itself, be said to have been for the purpose of making the demand now complained of. Such a trip is not necessarily incompatible with their claim that they went to the site either for inspection or contract review. It is plain speculation to say that an inspection being improper, and a contract review being "too late," they would not have gone there except to demand grease money from the contractor. It is suspicious behaviour, but still, it is no evidence that they in fact solicited a bribe. Neither does the fact that they repaired thereto on March 21, 1983 establish such a charge. To be sure, there are testimonies to the effect that on both occasions, they did ask for P20,000.00, that is the say-so of the contractor's witnesses. I do not find such testimonies sufficient to prove the fact of "demand" within the meaning of the Anti-Graft statute. The Post-Inspection Report subsequently submitted by the petitioners were erroneous, even negligent, but they were nothing more. I do not see how it can furnish proof that it was the result of a deliberate effort by them to penalize the contractor for failing to come across with a kickback. For purposes of this case, I find the correlation unclear. The petitioners' claim that there was a delay in the completion of the project mentioned by the petitioners in their Post-inspection Report, a claim the majority would likewise reject, can withstand criticism. It is not necessary at war with the facts. The contract is dated October 12, 1982 and 120 days therefrom is February 10, 1983. While it would later turn out that the contract period should have been reckoned from November 2, 1982 pursuant to the Provincial Engineer's instructions, it is the petitioners' contention, a contention never seriously disputed, that they were never notified of any change of plans. My brethren would fault them nevertheless ("had petitioners made an honest-to-goodness inspection they could have asked about it ...") but they would leave the vital inquiry unanswered: Is this evidence of an infraction of the Anti-Graft law? As I have noted, the petitioners are vulnerable to charges of negligence, but a conviction for corrupt practices is quite another question. Prescinding from the Post-Inspection Report, what remains is the testimony of Danilo Francisco, foreman of the contractor, who insists that on March 15, 1983, the petitioners instructed him to "inform his boss to prepare P20,000.00." I find that this is the only evidence that would directly link the petitioners to the offense charged. The petitioners, however, categorically deny having given such an instruction. I am not saying that mere disclaimers are enough to absolve one from liability, but it is equally true that the onus probandi lies upon him who alleges. I find the witness Francisco's bare testimony, without more, hardly sufficient to justify putting the petitioners in jail. In ordinary civil cases that require mere preponderance of evidence, perhaps the majority's inferences would hold water, but I do not believe that they are enough for purposes of this petition, and of prosecutions of criminal cases in general that require evidence beyond reasonable doubt. The majority decision states that there is evidence that the petitioners had, in the past, exacted similar bribe money from the same contractor in connection with other projects. Certainly, that is another case. But it is not proof that the petitioners are, ergo, guilty of this particular accusation, in this particular case. Res inter alios acta. The majority would say that it is evidence of "intent" or "habit" pursuant to Section 48, of Rule 130, of the Rules of Court. But the question that remains is: Is it evidence of "guilt?" In fine, I find the circumstances as narrated by the Sandiganbayan to be not inconsistent with innocence. At most, I entertain a reasonable doubt about the petitioners' guilt. On such a doubt alone, I vote for their acquittal. Gutierrez, Jr., J., dissent. Manila.THIRD DIVISION G.R. No. 74065 February 27, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NERIO GADDI y CATUBAY, defendant-appellant. The Solicitor General for plaintiff-appellee.Citizen Legal Assistance Office for defendant-appellant. CORTES, J.: Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y Navarro in an information which reads as follows: xxx xxx xxx That on or about the 11th day of December, 1981, in Quezon City, Metro Manila, Philippines, the above-named accused, with intent to kill, without any justifiable cause, qualified with treachery and with evident pre-meditation (sic), did then and there, wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by then and there stabbing him several times with a knife, hitting him on the different parts of his body, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of the offended party in such amount as maybe awarded under the provision of the Civil Code. CONTRARY TO LAW. [Rollo, p. 15.] After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a verdict of guilt for the crime charged, the decretal portion of which reads: xxx xxx xxx WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond reasonable doubt of the crime of murder, as charged in the information, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of Augusta Esguerra the sum of P50,000.00 without subsidiary imprisonment in case of insolvency, with all the accessory penalties provided for by law, and to pay the costs. SO ORDERED. [Rollo, p. 31.] On appeal to this Court, Gaddi assigns as errors of the trial court the following: I THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE. III THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION [Rollo, p. 38.] The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto Guzman, Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the defense. The prosecution's version of the facts are as follows: xxx xxx xxx At about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome, Novaliches, Quezon City, Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the morning of the following day, December 12, 1981, appellant told Ernesto Guzman that he killed his drinking partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police. After work, Guzman went to the police and reported what appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983). At around 2:00 o'clock in the afternoon of the same day, December 12, 1981, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to where the body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and took down the confession of appellant (Exhibit F). Later, the cadaver was subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984). A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where the body of the victim was dug out. The T-shirt and shorts were Identified by Ernesto Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber slipper, bottle of wine and glass were likewise recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for the Appellee, pp. 35; Rollo, p. 52.1 On the other hand, the defense's version of the facts are as follows: Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusta Esguerra (Bong Kuleleng) near the house of Ernesto Guzman. At about 5:00 p.m., be was requested by Ernesto Guzman to buy gin. He left Ernesto Guzman and Augusta Esguerra (who were allegedly drinking) in order to buy a bottle of gin in a nearby store, about 200 meters away. At the store, he met an acquaintance and they talked for a while before returning. Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood in the place where they had been drinking and Augusta Esguerra, alias Bong Kuleleng was not there anymore. He inquired from Ernesto Guzman the whereabouts of Augusta Esguerra and was told that the latter "went home already". He then asked Guzman about the blood and was told that it was the blood stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto Guzman informed him about the killing of Augusta Esguerra. Guzman narrated to him that Bong Kuleleng (Augusta Esguerra) held his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased by him. He did not report the killing to the authorities. Guzman likewise requested ban to admit the killing but he refused. While in the house, Guzman filed the case ahead. He was later arrested and investigated while looking for the corpse. When brought to the police station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20, 1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.]

The Court finds the instant appeal unmeritorious. Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the validity of such conviction that: 1) there be more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court, People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is required is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with any other hypothesis except that of guilty [People v. Constante, G.R. No. L-14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132, September 26, 1964, 12 SCRA 9.] In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra. 1. The fact that said victim was last seen on the day he was killed in the company of the accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9,1983, p. 1.] 2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was 'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto Guzman [TSN, August 9,1983, p. 7.] 3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the Northern Police District by the barangay people who apprehended him, be admitted the truth of the charge of the barangay residents that he killed someone and that he dumped the body of the victim in a place being dug out as an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the barangay people started digging for the body of the victim, the appellant was even instructing them as to the exact location where the body was buried [TSN, August 24, 1983, p. 6.] 4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the victim was found there after the digging [TSN, January 3, 1984, p. 5.] 5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were later recovered from the place where the victim was buried [TSN, September 2, 1982, p. 3.] Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses is entitled to great weight and respect [People v. Valentino, G.R. Nos. L-49859- 60, February 20, 1986, 141 SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.] Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal bad previously declared that a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a crime can be presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those facts which he merely learned from other persons but not as to those facts which he "knows of his own knowledge: that is, which are derived from his own perception." Hence, while the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement [People v. Cusi Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement. That the testimony of Guzman on appellant's oral confession is competent evidence finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 4311 which upheld the trial court's reliance on an extrajudicial confession given, not to a police officer during custodial interrogation, but to an ordinary farmer as the basis for conviction. The Court's pronouncements in the aforesaid case find relevance in the instant case: The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him' (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae. The Rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.) Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused [citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) [at pp. 436-437; Emphasis supplied.] The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the community as a member of a religious movement participating in such activities as "maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a "maanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all that he was actuated by improper motives in testifying against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the former to sleep in the porch of his house as the former had no immediate relatives in Quezon City [TSN, August 9, 1983, p. 14.] As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant, credence should be given to their narration of how the appellant was apprehended and how he led the police and the barangay residents to the place where he dumped the body of his victim since those police officers are presumed to have performed their duties in a regular manner in the absence of evidence to the contrary [People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30 1987, 149 SCRA 464.] Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi. It has been ruled time and again that courts look upon the evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because of its easy fabrication [People v. Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil 828 (1917).] This test requires not only proof that the accused was somewhere else other than the scene of the crime but clear and convincing proof of physical impossibility for the accused to have been at the place of the commission of the crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984. 130 SCRA 540; People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA 113.] The testimony of the accused himself believes any claim of physical impossibility for him to be at the scene of the crime since according to him, the store where he allegedly bought another bottle of gin was only 200 meters away. He was able to return to Guzman's house only after half an hour since he still had a chat with an acquaintance at the store. Even granting the truth of appellant's story that he was ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after thirty minutes, it was not impossible for him to have committed the crime since Guzman and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus, his statements on the witness stand, far from demonstrating physical impossibility of being at the scene of the crime, cast serious doubt on the veracity of his alibi. As the culpability of the accused has been established beyond reasonable doubt by the evidence of the prosecution, there is no need to dwell on the admissibility of appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be sustained independently of said confession. However, in the absence of proof as to how the victim was killed, the aggravating circumstances of treachery and evident premeditation cannot be properly appreciated. The killing must be considered as homicide only and not murder since the circumstance qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case that As heretofore stated, not a single eyewitness to the stabbing incident had been presented by the prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by appellant in attacking the victim. It is needless to add that treachery cannot be deduced from mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is required before any conclusion may be reached respecting the attendance of alevosia[People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied. ] Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of 1. the time when the of tender determined to commit the crime; 2. an act manifestly indicating that the culprit clung to his dead termination; and 3. a sufficient laspe of time between the determination and the execution to allow him to reflect upon the consequences of his act [People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.] As the evidence on record does not disclose the existence of treachery and evident premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and not murder, Since there are neither mitigating nor aggravating circumstances, the penalty for homicide which is reclusion temporal should be imposed in its

medium period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the indemnity of P 30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly. WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P 30,000.00. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur. EN BANC.[G.R. Nos. 146710-15. March 2, 2001] JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. [G.R. No. 146738. March 2, 2001] JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent. DECISION PUNO, J.: On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected VicePresident. Some (10) million Filipinos voted for the petitioner believing he would rescue them from lifes adversity. Both petitioner and the respondent were to serve a six-year term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governos, Luis Chavit Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.[1] The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled I Accuse. He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.[2] The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern.[3] Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.[4] Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the supreme self-sacrifice of resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services[6] and later asked for petitioners resignation.[7] However, petitioner strenuously held on to his office and refused to resign. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. [8] On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry. [9] On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino. [10] The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment[11] signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentabella. [12] On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.[13] The political temperature rose despite the cold December. On December 7, the impeachment trial started. [14] the battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature Jose Velarde on documents involving a P500 million investment agreement with their bank on February 4, 2000. [15] After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioners Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading. [16] Then came the fateful day of January 16, when by a vote of 11-10[17] the senator-judges ruled against the opening of the second envelop which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name Jose Velarde. The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.[18] The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal. [19] Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.[20] January 18 saw the high velocity intensification of the call for petitioners resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the peoples solidarity in demanding petitioners resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.[21] On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. [22] In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that on behalf of your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government.[23] A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement.[24] Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.[25] Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial second envelop.[26] There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacaangs Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.[27] Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. [28] At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.[29] He issued the following press statement:[30] 20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA It also appears that on the same day, January 20, 2001, he signed the following letter:[31] Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January 20.[32] Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.[33] On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit: A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice-President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that maybe filed by a proper party. Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.[34] Recognition of respondent Arroyos government by foreign governments swiftly followed. On January 23, in a reception or vin d honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo. [35] US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government. [36] On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives. [37] The House then passed Resolution No. 175 expressing the full support of the House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo, President of the Philippines.[38] It also approved Resolution No. 176 expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nations goals under the Constitution.[39] On January 26, the respondent signed into law the Solid Waste Management Act. [40] A few days later, she also signed into law the Political Advertising Ban and Fair Election Practices Act.[41] On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. [42] the next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr. [43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmea voted yes with reservations, citing as reason therefore the pending challenge on the legitimacy of respondent Arroyos presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.[44] The House of Representatives also approved Senator Guingonas nomination in Resolution No. 178.[45] Senator Guingona took his oath as Vice President two (2) days later.[46] On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.[47] Senator Miriam Defensor-Santiago stated for the record that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post. [48] Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.[49] In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the Es or very poor class. [50] After his fall from the pedestal of power, the petitioners legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him. Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted. Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution. Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents to comment thereon within a non-extendible period expiring on 12 February 2001. On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents comments on or before 8:00 a.m. of February 15. On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52]recused themselves on motion of petitioners counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have compromised themselves by indicating that they have thrown their weight on one side but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for Gag Order on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: (1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic.[53] The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy. II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I
Whether or not the cases at bar involve a political question

Private respondents raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the legitimacy of the Arroyo administration. They stress that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket which the Court cannot enter. We reject private respondents submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills constitutional law. [55] In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr,[56] viz: x x x Prominent on the surface on any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretions; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political questions presence. The doctrine of which we treat is one of political questions, not of political cases. In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question.[57] Our leading case is Tanada v. Cuenco,[58] where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure. To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceablebut also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.[59] Heretofore, the judiciary has focused on the thou shalt nots of the Constitution directed against the exercise of its jurisdiction.[60] With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x. Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people,albeit a peaceful one. No less than the Freedom Constitution[63] declared that the Aquino government was installed through a direct exercise of the power of the Filipino people in defiance of the provisions of the 1973 Constitution, as amended. It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.[64] In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution. In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution whichoverthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among the reforms sine quibus non.[65] The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively. These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances. The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.[66] Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. The indispensability of the peoples freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus. [69] In this sense, freedom of speech and of assembly provides a framework in which the conflict necessary to the progress of a society can take place without destroying the society.[70] In Hague v. Committee for Industrial Organization,[71] this function of free speech and assembly was echoed in the amicus curiae brief filed by the Bill of Rights Committee of the American Bar Association which emphasized that the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force;and this means talk for all and by all.[72] In the relatively recent case of Subayco v. Sandiganbayan,[73] this Court similarly stressed that "... it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers. Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II, [74] and section 8[75]of Article VII, and the allocation of governmental powers under section 11[76] of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case ofMarbury v. Madison,[77] the doctrine has been laid down that it is emphatically the province and duty of the judicial department to say what the law is . . . Thus, respondents invocation of the doctrine of political is but a foray in the dark. II
Whether or not the petitioner resigned as President

[54]

We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as president. The issue brings under the microscope of the meaning of section 8, Article VII of the Constitution which provides: Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then acts as President until President or Vice President shall have been elected and qualified. x x x. The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14th President of the Republic. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment. [78] The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts shows that petitioner did not write any formal letter of resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January 20, 2001 or by thetotality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioners alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioners powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and Former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the peoples call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the Final Days of Joseph Ejercito Estrada, the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.[79] The Angara Diary reveals that in morning of January 19, petitioners loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)[80] An hour later or at 2:30, p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFPs withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of dignified exit or resignation.[81] Petitioner did nor disagree but listened intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would allowed to go abroad with enough funds to support him and his family.[83] Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country.[84] At 10:00 p.m., petitioner revealed to Secretary Angara, Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace.[85] This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, Ed, magtulungan tayo para magkaroon tayo ng (lets cooperate to ensure a) peaceful and orderly transfer of power.[86] There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioners resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner.[87] Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: x x x I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name. If the envelope is opened, on Monday, he says, he will leave by Monday. The President says. Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its too painful. Im tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go.[88] Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said x x x Ayoko na masyado nang masakit. Ayoko na are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: Oppositions deal 7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled Negotiating Points. It reads: 1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning today, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice president to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned. 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police effective immediately. 4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the security of the president and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: 1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. 2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guaranteed freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities Vice President (Macapagal). 3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. 4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the Transition Period), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function under Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in Annex A heretofore attached to this agreement.[89] The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. According to Secretary Angara, the draft agreement which was premised on the resignation of the petitioner was further refined. It was then signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara Diary narrates the fateful events, viz:[90] x x x 11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. xxx The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. 3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority Vice President. 4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities.

5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex B heretofore attached to this agreement. xxx 11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United Opposition. And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you wait? What about the agreement)? I asked. Reyes answered: Wala na, sir (Its over, sir). I asked him: Di yung transition period, moot and academic na? And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that part). Contrary to subsequent reports, I do not react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provision on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The president is too stunned for words. Final meal 12 noon Gloria takes her oath as President of the Republic of the Philippines. 12:20 p.m. The PSG distributes firearms to some people inside the compound. The President is having his final meal at the Presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada familys personal possessions as they can. During lunch, Ronie Puno mentions that the President needs to release a final statement before leaving Malacaang. The statement reads: At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as president, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shrik from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY! It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacaang. In the press release containing his final statement, (1) heacknowledged the oath-taking of the respondent as President of the Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioners reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioners valedictory, his final act of farewell. His presidency is now in the past tense. It is, however, urged that the petitioner did not resign but only took a temporary leave of absence due to his inability to govern. In support of this thesis, the letter dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: Sir By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting President. (Sgd.) Joseph Ejercito Estrada To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time being. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly showing his resignation from the presidency, then the resignation must prevail as a later act. If, however, it was prepared after the press release, still, it commands scant legal significance. Petitioners resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his repudiation by the people. There is another reason why this Court cannot give any legal significance to petitioners letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery. A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire.[92] During the period of amendments, the following provision was inserted as section 15: Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official from office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency.[93] The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the Presidents immunity should extend even after his tenure. Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right. [94] A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioners contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned.

III
Whether or not the petitioner is only temporarily unable to act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of Article VII. [95] This contention is the centerpiece of petitioners stance that he is a President on leave and respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides: SEC. 11. Whenever the President transmit to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session within twelve days after it is required to assemble, determines by a twothirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office." That is the law. Now the operative facts: (1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House; (2) Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.; (3) Despite receipt of the letter, the House of Representative passed on January 24, 2001 House Resolution No. 175;[96] On the same date, the House of the Representatives passed House Resolution No. 176[97]which states: RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATIONS GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.; WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrendering its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nations goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General On February 7, 2001, the House of the Representatives passed House Resolution No. 178[98] which states: RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines - qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General (4) Also, despite receipt of petitioners letter claiming inability, some twelve (12) members of the Senate signed the following: RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolute cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and overcome the nations challenges.[99] On February 7, the Senate also passed Senate Resolution No. 82[100] which states: RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is it vacancy in the Office of the Vice-President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Phillippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence, and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice. Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101] which states: RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and has been terminated. Resolved, further, That the Journals of the Impeachment Court of Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the second envelope be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate President. Resolved, finally. That all parties concerned be furnished copies of this Resolution. Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate (5) On February 8, the Senate also passed Resolution No. 84 certifying to the existence of a vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr. (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President. (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioners claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses ofCongress recognizing respondent Arroyo as President of the Philippines. Following Taada v. Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue in regard to which full discretionary authority has been delegated to the Legislative x x x branch of the government. Or to use the language in Baker vs. Carr,[103] there is a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it. Clearly, the Court cannot pass upon petitioners claim of inability to discharge the powers and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue which cannot be decided by this Court without transgressing the principle of separation of powers. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court. IV
Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioners contentions, a revisit of our legal history on executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emergedas a case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104] the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either, that a person injured by the executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the matter is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more that it can a member of the Philippine Commission or the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercise discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to protection in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, he acts, not as Governor-General but as a private individual, and, as such, must answer for the consequences of his act. Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz: x x x. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself.[105] Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential Immunity And All The Kings Men: The Law Of Privilege As A Defense To Actions For Damages,[106]petitioners learned counsel, former Dean of the UP college of Law, Atty. Pacifico Agabin, brightlined the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only from civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome). The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism the king can do no wrong. [107] The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas, viz:[108] Mr. Suarez. Thank you. The last question is with reference to the committees omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I thank the Commissioner for the clarification. We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the Impeachment Court is Functus Officio.[109] Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:[110] x x x Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts. This is in accord with our ruling in In re: Saturnino Bermudez[111]that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance in the case of Lecaroz vs. Sandiganbayan[112] and related cases[113]are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the allege mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.[114] Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,[115] US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixons associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washingtons Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. In the 1982 case of Nixon v. Fitzgerald,[116] the US Supreme Court further held that the immunity of the President from civil damages covers only official acts.Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones[117] where it held that the US Presidents immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.[118] It declared as a state policy that (t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption."[119] It ordained that (p)ublic officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.[120] It set the rule that (t)he right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel.[121] It maintained the Sandiganbayan as an anti-graft court.[122] It created the office of the Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. [123] The Office of the Ombudsman was also given fiscal autonomy. [124] These constitutional policies will be devalued if we sustain petitioners claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency. V
Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases.[125]The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. [126] The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases.[127] In People vs. Teehankee, Jr.,[128] later reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129] we laid down the doctrine that: We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we now rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. x x x xxx x x x. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. InMartelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable if change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.[130] and its companion cases. viz.: Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case

at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. Inn the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held: x x x (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that the time this Nations organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that societys criminal process satisfy the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof. [131] He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioners submission, the respondent Ombudsman has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs.[132] News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner [133]and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigating prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors. [134] They can be reversed but they can not be compelled to change their recommendations nor can they be compelled to prosecute cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the finding of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI.
Epilogue

A word of caution to the hooting throng. The cases against the petitioner will now acquire a different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the most fundamental of all freedoms.[135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls the impatient vehemence of the majority. Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to mans progress from the cave to civilization. Let us not throw away that key just to pander to some peoples prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO ORDERED. Bellosillo, Melo, Quisumbing, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Davide, Jr., C.J., no part in view of expression given in the open court and in the extended explanation. Vitug, J., see concurring opinion. Kapunan, J., concur in the result and reserve the right to write a separate opinion. Mendoza, J., see concurring opinion. Panganiban, J., no part per letter of Inhibition dated Feb. 15, 2000 mention in footnote 51 of ponencia. Pardo, J., in the result; believes that petitioner was constrained to resign and reserve his vote in immunity from suit Buena, J., in the result. Ynares-Santiago, J., concur in the result and reserve the filing of a separate opinion. Sandoval-Gutierrez, J., concur in the result and reserve the right to write a separate opinion. Manila.FIRST DIVISION G.R. No. 146853 February 13, 2006 SALVADOR COMILANG, Petitioner, vs. FRANCISCO BURCENA and MARIANO BURCENA, Respondents. DECISION AUSTRIA-MARTINEZ, J.: 1 Before the Court is a petition for review on certiorari of the Decision dated October 16, 2000 of the Court of Appeals (CA) in CA-G.R. CV No. 53794 which affirmed in toto the Decision dated March 28, 1996 of the Regional Trial Court, Branch 22, Narvacan, Ilocos Sur (RTC) and the CA Resolution dated December 19, 2000 which denied petitioners motion for reconsideration. The factual background of the case is as follows: On April 29, 1985, Francisco Burcena and Mariano Burcena (respondents), together with their mother, Dominga Reclusado Vda. de Burcena (Dominga), filed a complaint for annulment of document with damages against Salvador Comilang (petitioner). The complaint alleges that: respondents are the owners of a 918-square meter parcel of land located in Manueva, Santa, Ilocos Sur and the house with a floor area of 32 square meters built thereon; respondents acquired the subject property through their earnings while working abroad; the subject property was declared for taxation purposes in Domingas name as administrator thereof; on or about March 12, 1984, petitioner caused the execution of a Deed of Donation 2 over said property by taking advantage of Domingas blindness, old age and physical infirmity; the said Deed of Donation is null and void because: (a) Dominga had no right to donate the same since she is not its owner, (b) Dominga did not give her consent and was

misled to the execution of such document, (c) granting Dominga had authority to donate, the donation is void because the property donated is the only property declared in her name and therefore she could not have reserved for herself in full ownership sufficient property to support herself; petitioner is in possession of the subject property, depriving respondents of its ownership and enjoyment of its fruits.3 In his Answer dated February 24, 1986, petitioner contends that: the Deed of Donation was freely and voluntarily executed by Dominga in consideration of her love and affection for him; the subject property was acquired by Dominga together with her two sisters, Aniceta Reclusado and Juana Reclusado, long before respondents went to Hawaii; Dominga erected a house on the land long before the outbreak of World War II; Dominga financed out of her own money the construction of the house and subsequent improvements thereof, she being a merchant when she could still travel to Cagayan Valley; granting that respondents had been sending money to Dominga, said money already belonged to her; if Dominga used said money for improving the house, respondents have no right over the house.4 During the pendency of the case and before she could take the witness stand, Dominga died. 5 Following pre-trial, trial on the merits ensued. Witnesses for the plaintiffs were respondents and their aunt, Margarita Burcena (Margarita); while petitioner testified on his own behalf. On March 28, 1996, the RTC rendered a Decision in favor of the respondents, the dispositive portion of which reads as follows: WHEREFORE, decision is hereby rendered declaring the parcel of land and the improvement therein consisting of the house mentioned and described under paragraph 3 of the complaint, owned by the plaintiffs Francisco Burcena and Mariano Burcena, but declaring the possession of the defendant in good faith and further: a) That the Deed of Donation, Exhibit "1" and submarkings null and void; b) That the defendant must vacate the property and turnover the same to the plaintiffs. c) Without pronouncement as to moral, actual and other forms of damages as well as non-accounting of the produce from the property by virtue of the defendants possession, thereof, as well as attorneys fees. SO ORDERED.6 The RTC held that the donation is void because Dominga could not have validly disposed of the subject property since it was bought with the money sent by respondents while working abroad, although declared for taxation purposes in Domingas name. Dissatisfied, petitioner filed an appeal with the CA. In its Decision dated October 16, 2000, the CA found no cogent reason to disturb the factual findings of the RTC, as well as the latters assessment of the credibility of witnesses. The CA held that the case involves an implied trust known as purchase price resulting trust under Article 1448 of the Civil Code where property sold is granted to one party but the price is paid for by another; that the evidence presented by the respondents convincingly show that the subject property was bought with money belonging to respondents but declared in Domingas name as administrator thereof; and that Domingas act of donating the property to petitioner was beyond her authority and capacity, done without the consent of the real owners, herein Respondents. Thus, the CA sustained the conclusion of the RTC that the donation is void.7 Petitioner filed a motion for reconsideration8 but it was denied by the CA in its Resolution dated December 19, 2000. 9 Hence, the present petition for review on certiorari anchored on the following assigned errors: The Honorable Court of Appeals erred: 1. IN DECLARING IN ITS QUESTIONED DECISION xxx THAT "xxx implied trust arises over the subject property xxx"; xxx; AND/OR 2. IN DECIDING THE INSTANT CASE NOT IN ACCORDANCE WITH LAW AND/OR APPLICABLE DECISIONS OF THIS HONORABLE COURT; AND/OR 3. IN MISAPPRECIATING CIRCUMSTANCES OF SUBSTANCE AND VALUE WHICH GREATLY AFFECT THE OUTCOME OF THE CASE OR REVERSE THE DECISION OF THE HONORABLE REGIONAL TRIAL COURT OF NARVACAN, ILOCOS SUR, BRANCH 22. 10 Petitioner assails the CAs application of the principle of implied trust to nullify the Deed of Donation executed in his favor. He asserts that the existence of an implied trust between respondents and Dominga in relation to the subject property was never treated by the RTC nor was it brought in issue on appeal before the CA. Petitioner further argues that Margaritas statement on the witness stand that Dominga told her that the respondents sent her money to buy the subject property, should not have been given weight or credence by the RTC and the CA because it is hearsay and has no probative value. On the other hand, respondents maintain that the CA has the judicial prerogative to rule on matters not assigned as errors in an appeal if indispensable or necessary to the just resolution of the case. As to Margaritas testimony, respondents submit that it is not hearsay since Margarita merely stated what Dominga said. The petition is bereft of merit.1avvphil.net Once a court acquires jurisdiction over a case, it has wide discretion to look upon matters which, although not raised as an issue, would give life and meaning to the law. Indeed, the Rules of Court recognize the broad discretionary power of an appellate court to consider errors not assigned. Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides: SEC. 8 Questions that may be decided. No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered, unless stated in the assignment of errors, or closely related to or dependent on an assigned error and properly argued in the brief, save as the court may pass upon plain errors and clerical errors. Thus, an appellate court is clothed with ample authority to review rulings even if they are not assigned as errors in the appeal in these instances: (a) grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent.11 In this case, since the petitioner directly brought in issue on appeal in his Appellants Brief the declaration of the RTC that Dominga could not have validly disposed of the subject property because respondents are the real owners of the subject property since it was bought with money sent by them, it was well-within the CAs authority to review and evaluate the propriety of such ruling. In holding that an implied trust exists between respondents and Dominga in relation to the subject property and therefore Dominga had no right to donate the same to petitioner, the CA merely clarified the RTCs findings. Article 1448 of the Civil Code on implied trust provides: Art. 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child. (Emphasis supplied) The trust created under the first sentence of Article 1448 is sometimes referred to as a purchase money resulting trust, the elements of which are: (a) an actual payment of money, property or services, or an equivalent, constituting valuable consideration; and (b) such consideration must be furnished by the alleged beneficiary of a resulting trust.12 Respondents have shown that the two elements are present in the instant case. Dominga was merely a trustee of the respondents in relation to the subject property. Therefore, Dominga could not have validly donated the subject property to petitioner, as expressly provided in Article 736 of the Civil Code, thus: Art. 736. Guardians and trustees cannot donate the property entrusted to them. Truly, nobody can dispose of that which does not belong to him. 13 Anent Margaritas testimony that Dominga told her that the respondents sent her (Dominga) money to buy the subject property, it cannot be categorized as hearsay evidence. Margaritas testimony was not presented to prove the truth thereof, but only to establish the fact that Dominga narrated to Margarita the source of the funds used in the purchase of the subject property.14 What was sought to be admitted in evidence, and what was actually admitted in evidence, was the fact that the statement was made by Dominga to Margarita, not necessarily that the matters stated by her were true. The said utterance is in the nature of an independently relevant statement which may be admitted in evidence as such, but not necessarily to prove the truth thereof. 15 Thus, while it is true that the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement. Regardless of the truth or falsity of a statement, when the fact that it has been made is relevant, the hearsay rule does not apply and the statement may be shown. As a matter of fact, evidence as to the making of the statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact.16 For this reason, the statement attributed to Dominga regarding the source of the funds used to purchase the subject property related to the court by Margarita is admissible if only to establish the fact that such statement was made and the tenor thereof. Besides, the testimony of Margarita is not the main basis for the RTCs decision. In fact, her testimony is not indispensable. It merely serves to corroborate the testimonies of the respondents on the source of the funds used in purchasing the subject property. The testimonies of all three witnesses for the plaintiffs were found to be convincing and credible by the RTC. This Court will not alter the findings of the RTC on the credibility of witnesses, principally because trial courts have vastly superior advantages in ascertaining the truth and in detecting falsehood as they have the opportunity to observe the manner and demeanor of witnesses while testifying.17 All told, the CA did not commit any reversible error in rendering the assailed Decision dated October 16, 2000 and the Resolution dated December 19, 2000 in CA-G.R. CV No. 53794. The factual determinations of the CA therein are binding and conclusive upon this Court as no compelling reasons exist necessitating a re-examination or reversal of the same. WHEREFORE, the petition is DENIED and the assailed Decision and Resolution are AFFIRMED. Costs against petitioner. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Manila.EN BANC

G.R. No. 174056 February 27, 2007 [Formerly G.R. No. 138257] THE PEOPLE OF THE PHILIPPINES, Appellee vs. ROGELIO GUMIMBA y MORADANTE alias ROWING and RONTE ABABO (acquitted), Appellants, DECISION TINGA, J.: For review before the Court is the Decision 1 of the Court of Appeals (CA) dated 26 April 2006, affirming with modification the Decision 2 of the Regional Trial Court (RTC), Ozamiz City, Branch 15,3 dated 10 March 1999, finding appellant guilty beyond reasonable doubt of the crime of rape with homicide. In an Information4 dated 17 April 1997, appellant Rogelio Gumimba y Morandante alias Rowing and co-accused Ronie Abapo (Abapo) were charged before the RTC, with the crime of rape with homicide of an eight (8)-year old child, thus: That on or about April 8, 1997, in Barangay Pantaon, Ozamiz City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with each other, did then and there willfully, unlawfully and feloniously and by means of force, violence and intimidation, to wit: by then and there pinning down one [AAA],5 a minor, 8 years of age, and succeeded in having carnal knowledge with her and as a result thereof she suffered 6-12 o'clock lacerated wounds of [sic] the vagina as well as fatal stab wounds on the different parts of her body and which were the direct cause of her death thereafter. CONTRARY to Article 335 in relation with Article 249 of the Revised Penal Code. On 16 May 1997, appellant and Abapo both entered a plea of not guilty on arraignment. 6 Thereafter, the case proceeded to trial with the prosecution first presenting two witnesses: (1) Emelio Magallano, President of Purok I, Barangay Pantaon, Ozamiz City; and (2) Sofronio Araas, a Civilian Volunteer Officer (CVO) of the same barangay. Magallano and Araas testified that at around 9 o'clock in the evening of 10 April 1997, appellant went to Magallano's home and confessed to him that he alone and by himself raped and killed his (appellant's) niece, AAA, in Purok Pantaon, Ozamiz City. Subsequently, Magallano accompanied appellant to the residence of Araas where he reiterated his confession. That same night, Magallano, Araas, appellant and family members of the witnesses proceeded to the home of Barangay Captain Santiago Acapulco, Jr. who conducted an investigation. Appellant repeated his narration and confessed to the barangay captain that he had raped and killed the victim, and that he was alone when he committed the crime. As a result thereof, Acapulco, Jr., in the company of the others, brought appellant to the Ozamiz City Hall and turned him over to the police authorities.7 However, appellant manifested though counsel (before the court) at the following hearing on 22 May 1997 that he would like to change his earlier plea of not guilty to a plea of guilty.8 The RTC ordered appellant's re-arraignment and the latter accordingly entered a plea of guilty.9 The court conducted an inquiry to ascertain the voluntariness of appellant's plea and his full comprehension of the consequences thereof. Prosecution was likewise charged to establish the guilt and degree of culpability of appellant.10 In accordance with the court's directive, the prosecution continued with the presentation of its evidence in chief. It presented Dr. Pedrita Rosauro, the physician who conducted the autopsy on the body of the victim, and who testified that the victim was raped before she was killed. The examination by Dr. Rosauro revealed that AAA sustained four (4) stab wounds in front, two (2) stab wounds in her back and one (1) lacerated wound each on her neck and on her middle upper extremity. Furthermore, she found 6 and 12 o'clock laceration wounds on the external genital organ of the victim. 11 Before resting its case, the prosecution presented appellant as witness against his co-accused Abapo. Appellant testified that he and Abapo raped and killed the victim. He likewise explained that he had previously confessed to Magallano, Araas and Acapulco that he alone committed the crime in the hope that the parents of the victim, who were relatives of his, might take pity on him.12 In his defense, Abapo testified that at the time the crime was allegedly committed, he was with his mother and three (3) siblings at the Labo River, about two (2) kilometers away from Barangay Pantaon, washing their clothes.13 In support thereof, Abapo presented his mother Virgencita Abapo, Elisa Carreon and Raymundo Orot, all of whom corroborated his alibi.14 The defense also presented witness Araas who reiterated his earlier testimony that appellant confessed to him that he alone was responsible for the raping and killing of the victim.15Finally, Eugenio Bucog, a teacher at Capucao Elementary School, was presented to demonstrate Abapo's good character when he was his student.16 On 10 March 1999, the RTC promulgated its Decision. On the basis of appellant's plea of guilty, the RTC found him guilty beyond reasonable doubt of the crime as charged. Appellant was sentenced to suffer the death penalty and ordered to indemnify the heirs of the victim in the amounts of P50,000.00 as indemnity for the life of the victim,P30,000.00 as moral damages, and costs.17 On the other hand, the trial court acquitted Abapo on the ground that his guilt was not established beyond reasonable doubt. Except for the lone testimony of appellant, the RTC held that no other evidence was adduced to prove the participation of Abapo. Moreover, the court a quo found that appellant's testimony implicating Abapo was not worthy of credence coming as it did from a polluted source. 18 With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. Pursuant to this Court's decision in People v. Mateo,19 the case was transferred to the Court of Appeals. On 26 April 2006, the appellate court rendered its Decision20 affirming the appellant's conviction, but with modification as to damages awarded to the heirs of the victim. The dispositive portion of the said Decision states: "WHEREFORE, premises considered, the instant Appeal is DISMISSED for lack of merit. The Decision dated March 10, 1999 of the Regional Trial Court, Branch 15, of Ozami[s] City, is hereby AFFIRMED with the MODIFICATION that the amount of civil indemnity ex delicto is hereby increased from P50,000.00 to P100,000.00, including the award of moral damages from P30,000.00 to P50,000.00. Conformably with the ruling of the Supreme Court in People of the Philippines v. Efren Mateo, We refrain from entering judgment, and the Division Clerk of Court is hereby directed to elevate the entire records of the case to the Honorable Supreme Court for its final disposition. SO ORDERED."21 On 3 October 2006, the Court issued an order requiring the parties to simultaneously submit supplemental briefs within thirty (30) days from notice should they so desire.22 On 21 November and 24 November 2006, appellant and appellee filed similar manifestations that they are adopting the briefs they filed before the Court of Appeals.23 Thus, appellant raises the following errors in this petition for review: I THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT ON THE BASIS OF HIS IMPROVIDENT PLEA OF GUILTY AND HIS ALLEGED SEPARATE CONFESSIONS TO ONE EM[I]LIO MAGALLANO, AND ONE SOFRONIO ARAAS, THE LATTER BEING HEARSAY AND WITHOUT PROBATIVE VALUE WHATSOEVER. II THE COURT A QUO LIKEWISE ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WITH HOMICIDE DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE LATTER'S GUILT BEYOND REASONABLE DOUBT, AND THE ACCUSED-APPELLANT OWNING UP ONLY TO THE CRIME OF SIMPLE RAPE.24 The ultimate issue is whether appellant's guilt was established by evidence beyond reasonable doubt. It must be conceded at the outset that the trial court failed in its duty to conduct the prescribed "searching inquiry" into the voluntariness of appellant's plea of guilty and full comprehension thereof. Consequently, appellant's plea of guilty was made improvidently and it is rendered inefficacious.25 Nevertheless, the Court must rule against appellant as the evidence on record is ample to sustain the judgment of conviction independent from his plea of guilty. The crime of rape with homicide is punishable with death under Article 335 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, which provides: Article 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape is punishable by reclusion perpetua. xxxx When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. xxxx The Information, to which appellant pleaded guilty, alleged that homicide was committed by reason or on the occasion of the rape of AAA. This, if proven, would warrant the penalty of death at that time.26 Accordingly, a plea of guilty to such charges calls into play the provisions of Section 3, Rule 116 of the 2000 Revised Rules of Criminal Procedure, thus Sec. 3. Plea of guilty to capital offense; reception of evidence. - When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf. Based on this rule, when a plea of guilty to a capital offense is entered, there are three (3) conditions that the trial court must observe to obviate an improvident plea of guilty by the accused: (1) it must conduct a searching inquiry into the voluntariness and full comprehension by the accused of the consequences of his plea; (2) it must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) it must ask the accused whether he desires to present evidence on his behalf, and allow him to do so if he so desires. 27 There is no hard and fast rule as to how a judge may conduct a "searching inquiry," or as to the number and character of questions he may ask the accused, or as to the earnestness with which he may conduct it, since each case must be measured according to its individual merit. 28 However, the logic behind the rule is that courts must proceed with caution where the imposable penalty is death for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty.29 An improvident plea of guilty on the part of the accused when capital crimes are involved should be avoided since he might be

admitting his guilt before the court and thus forfeit his life and liberty without having fully comprehended the meaning and import and consequences of his plea.30 Moreover, the requirement of taking further evidence would aid this Court on appellate review in determining the propriety or impropriety of the plea.31 In the instant case, when the accused entered a plea of guilty at his re-arraignment, it is evident that the RTC did not strictly observe the requirements under Section 3, Rule 116 above. A mere warning that the accused faces the supreme penalty of death is insufficient.32 Such procedure falls short of the exacting guidelines in the conduct of a "searching inquiry," as follows: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. This is intended to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent quarters or simply because of the judge's intimidating robes. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused of the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. For not infrequently, an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to ensure that the accused does not labor under these mistaken impressions because a plea of guilty carries with it not only the admission of authorship of the crime proper but also of the aggravating circumstances attending it, that increase punishment. (5) Inquire if the accused knows the crime with which he is charged and to fully explain to him the elements of the crime which is the basis of his indictment. Failure of the court to do so would constitute a violation of his fundamental right to be informed of the precise nature of the accusation against him and a denial of his right to due process. (6) All questions posed to the accused should be in a language known and understood by the latter. (7) The trial judge must satisfy himself that the accused, in pleading guilty, is truly guilty. The accused must be required to narrate the tragedy or reenact the crime or furnish its missing details.33 An examination of the records of the proceedings will illustrate the court's treatment of appellant's change of plea,viz: Atty. Cagaanan: Considering the voluntary plea of guilty of the accused[,] we pray that the mitigating circumstance to prove his plea of guilty be appreciated in favor of the accused. We likewise pray that another mitigating [circumstance] of voluntary surrender be appreciated in his favor. Pros. Edmilao: Considering the gravity of the crime, may we ask your Honor that we will present evidence inorder [sic] that it will give also justice to the victim. Court: Present evidence to prove gravity of the crime. Pros. Edmilao: Our first witness is the ABC president. Court: What matter will Santiago Acapulco testify? Court: Was there cruelty done by the accused in picking [sic] the life of the minor girl? xxxx Pros. Edmilao: May we ask that we will present her [sic] in the next hearing.1awphi1.net Court: The court will call the accused to the witness stand. xxxx (The witness after having administered an oath, took the witness stand and declared that he is: ROGELIO GUMIMBA 20 years old Single Occupation- duck raising Resident of Capucao, Ozamiz City) xxxx Court: The court will allow the prosecutor or the defense to profound [sic] question [sic] on the matter and the accused understand [sic] and fully comprehend [sic] the consequence of his plea of guilty. xxxx Pros. Edmilao: Q Mr. Rogelio Gumimba[,] are you the same accused in this case in Crim. Case No. RTC 2074? A Yes, sir. Q Now the victim in this case is [AAA], a minor, 8 years of age[.] Since you have admitted this in what particular place wherein [sic] you raped and slew [AAA]? A Purok Pantaon, Ozamiz City. Q How far is that place wherein you slew and raped [AAA] from her house? A Very near, sir. Q Can you estimate how many meters? A One meter, sir. Q Was it committed inside or outside the house? A Outside. Q In what particular place of the house[:] in front, at the side or at the back? A At the back of the house of the victim. Q Will you please tell the court, how did you do it, will you please narrate. A I raped her by tying her hand, then I killed her. Q Before you raped and killed [AAA], where did you get her? A I saw her roaming around. Q In committing the crime, were you alone? Atty. Anonat: Objection Court: Sustained. Pros. Edmilao: You stated that you pushed her and even tied her hand and raped her and stabbed her, were you the one alone [sic]? Atty. Anonat: Objection Court: Sustained. Court: Q When you said you raped her, you mean you inserted your penis inside the vagina of [AAA]? A No, Your Honor. Q When you said you raped her, what do you mean? A I was drank [sic] at that time. Q And you said you tied [AAA], what did you use in tying her? A Banana skin. Q How did you tie [AAA]? A I tied both her hands.

Q The hands of [AAA], you placed at the back? A In front of her. Q After tying her [,] what did you do to her? A After that I went home. Q You did not stab [AAA]? A I stabbed her, Your Honor. Q What weapon did you use in stabbing her? A A long bolo. Q You mean you were bringing [a] long bolo at that time? A Yes, Your Honor. Q After stabbing her, what did you do to her? A No more, Your Honor. Q How many times did you stab [AAA]? A I could not count how many stab wounds I inflicted to [sic] her. Q But you will agree that you have stabbed her many times? A I could no longer count how many stab wounds, Your Honor. Q When you were arraigned, you pleaded guilty, do you understand the consequence of your pleading guilty? A I do not know Your Honor [,] the consequence. Q You pleaded guilty to the offense of rape with homicide, did you understand? A Yes, Your Honor, I understand. Q That by your pleading guilty to the offense you will be sentenced to die? A Yes, I am aware. Q Your act of pleading guilty to the offense charged is your voluntary will? A Yes, I admitted that crime, but we were two. Q You mean to say there were two of you who raped [AAA]? A Yes, your Honor. Q Before raping her, was [AAA] wearing clothes? A Yes, Your Honor. Q Was [AAA] wearing [a] panty before you raped her? A Yes, Your Honor. Q Did you remove her panty before raping her? A No, You Honor, I did not. Q How did you rape [AAA]? A I have sexed [sic] with her. Q What do you mean by I "remedio" her, you mean you have inserted your penis into the vagina of [AAA]? A No, Your Honor, my penis did not penetrate into the vagina of [AAA]. Q Why your penis did [sic] not able to penetrate into the vagina of [AAA]? A The vagina of [AAA] is very small. Q Can you tell this Court how tall was [AAA]? A (The witness demonstrated that from the floor about 3 feet high was the height of [AAA]) Q If you are standing and [AAA] is also standing side by side with you, up to what part of your body is the height of [AAA]? A Up to my waist line. Atty. Cagaanan: Q When you pleaded guilty [,] was it in your own free will? A Yes, sir. Q Were you not forced or coerced by anybody with this crime? A No, sir.34 The inefficacious plea of guilty notwithstanding, the totality of the evidence for the prosecution undeniably establishes appellant's guilt beyond reasonable doubt of the crime of rape with homicide. Apart from his testimony upon changing his plea to a plea of guilty, appellant gave a subsequent testimony when he was presented by the prosecution as a witness against his co-accused. This second testimony which constitutes another judicial confession, replete with details and made consciously as it was, cured the deficiencies which made his earlier plea of guilty improvident. The latter testimony left no room for doubt as to the voluntariness and comprehension on appellant's part of his change of plea, as well as completed his narration of how he raped and killed the victim. The pertinent portions of the second testimony follow, thus: Pros. Jose A. Edmilao: Q While you were gathering firewoods [sic] and Ronie Abapo was pasturing carabao, do you recall of any untoward incident that happened? A We raped and killed. Q Whom did you rape and kill? A [AAA]. Q And when you said [AAA], who was then your companion, because you said we? A Ronie Abapo. xxxx Q While she [AAA] was there gathering oranges, you mean to say you were close to the place [AAA] was? A I, together with Ronie Abapo go [sic] near to the place [AAA] was. Q When you were already near at [sic] the place where [AAA] was climbing, was she still up there at the orange tree? A She already came down. Q When she came down, what followed next then? A We held her hands. Q Who held her hands? A The two of us. Q You mean one hand was held by you and the other hand was held by Ronie Abapo? Atty. Anonat: Objection, leading. Pros. Edmilao: Q You said that you were holding the hands of [AAA], how did you do it? A We held her hands and tied it [sic] with banana skin. Q Who tied the hands of [AAA]? A Both of us. Q After tying the hands of [AAA][,] with banana stalk where did you place her? A We brought her to the [sic] grassy place. Q What happened then after [AAA] was brought to the [sic] grassy place? A We killed her. Q Before you killed her, what did you do to her? A We raped her. Q Who raped her first? A It was Ronie Abapo, then followed by me. Q How did you rape her? A We undress[sed] her. Q What was she wearing at that time? A She wore a dress. Q What about Ronie Abapo? A He did not undress. Q How did you let your penis out? A I removed my t-shirt.

Q How about your pants? A I also removed my pants. Q What was then the reaction of [AAA], when you first tied her hand? A She did not cry, because we covered her mouth. Q Who covered her mouth? You or Ronie? A Ronie. Q What [sic] you said that it was Ronie Abapo, what did you do then when he was on [sic] the act of raping her? A I was just near to [sic] them. Q The after Ronie Abapo, what did you do then? A He told me that you will be the next [sic]. Q So when he told you that you will be the next [sic], what did you do next? A I also raped her. Q Again, when you said you raped her, you inserted your penis into the vagina of [AAA]? A It did not enter [sic]. Q Why? A It did not penetrate, because I was afraid. Q But your penis erected [sic]? A No, Your Honor. Q You said that Ronie was the first to have sexual intercourse, was he able to insert his penis into the vagina of [AAA]? A No, sir, because he was watching, if there was person [sic] around. Q Were you able to see the penis of Ronie inserted into the vagina of [AAA]? A I have [sic] not seen. xxxx Q You said that you and Ronie Abapo raped [AAA], what do you mean or what do you understand by the word rape? A We undressed her. Q Why did you undress her? A We undressed her, because we want [sic] to do something to her. Q What is that something that you want [sic] top do to [AAA]? A We raped her. Q When you said we raped her, you mean, you inserted your penis inside the vagina of [AAA]? A No, sir. Q But you tried to insert your penis inside the vagina? A Yes, sir. Q And your penis touched the vagina of [AAA]? A Yes, sir. Q Only your penis was not able to enter the vagina because [AAA] is [sic] still a small girl? A Yes, sir. Q After trying to insert your penis after Ronie Abapo, what did you do to [AAA]? A I walked away, but he called me. Q Who called you? A Ronie Abapo. Q Why did he call you? A He asked me, what to do with [AAA]. It might be that she will tell us to somebody [sic], we will kill her. Q What did you do? A I did not answer. Q And what was your answer? A Because he keep [sic] on persuading me. Q How did he persuade you? A He persuaded me because we might be caught. Q And what did he tell you to do? A That we will kill [AAA]. Q How did he tell you that? A Rowing[,] we will kill her. Q And what was your reply? A I refused. Q When you refused, what did he do then? A He keep [sic] on persuading me. Q And what did eventually came [sic] to your mind? A Evil came to my mind, so we killed her. Q How did you kill her? A We stabbed her. Q What weapon you used [sic] when you killed her? A A long bolo. Q Whose [sic] the owner of that long bolo? A Mine, but Ronie Abapo used it. Q Who was the first one to use it? A Ronie Abapo. Q But the bolo was in your hands, how did [sic] he be able to use it? A I put it on the ground and he got it. Q You said that he made the first struck [sic]. Where was [AAA] first hit? A In the stomach. Q How many times did Ronie Abapo strike her with the use of that bolo? A I cannot remember anymore. Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit? A At the left side. Q How about you, did you made [sic] the following stab to [AAA]? A I was hesitant to stab, but eventually I stabbed her. Q How many times? A Only one. Q What part of her body was she hit? A At the stomach. Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo and also stabbed [AAA]? A Yes, sir. Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her? A He [sic] was already dead. Q Why did you stab her, when she was already dead? A I just stabbed her, because I thought that she was still alive. xxxx Q Do you know where is [sic] the bolo used in stabbing [AAA]? A No, sir. Q After killing [AAA], where did you place the bolo? A In our place. Q It [sic] it there in your home?

A Already taken. Q Who got? A The barangay captain. Q Now, did you tell to [sic] anybody regarding the raping and killing of [AAA] aside from here in Court? A I have already told. Q Who was the person whom you talked about [sic]? A My neighbor. Q Whose [sic] the name of that neighbor? A Emilio Magallano. Q After Emilio Magallano[,] to whom did you report? A Sofronio Aranas. Q Who else? A Rico Magallano. Q Who else? A The wife of Panyong. Q In the reporting [sic] this matter[,] were you together with Ronie Abapo telling these persons that you raped [AAA]? A I was alone. Q And did you tell her that you were two in killing and raping with Ronie Abapo? A No, sir. Q Why not? A According to Emilio that the mother of the victim might be [sic] pity enough to me, because I am related to them. Q When you reported to these persons you have mentioned, did you also tell them that you were together with Ronie Abapo in killing and raping? A No, sir.35 While the trial court found appellant's second testimony insofar as it implicated his co-accused to be unworthy of credence, there is absolutely nothing on record which militates against its use as basis for establishing appellant's guilt. In fact, in his Brief, appellant submits that he must be convicted of simple rape alone and not rape with homicide. Thus, he admits in writing, albeit implicitly, that he raped the victim. Convictions based on an improvident plea of guilt are set aside only if such plea is the sole basis of the judgment. If the trial court relied on sufficient and credible evidence to convict the accused, the conviction must be sustained, because then it is predicated not merely on the guilty plea of the accused but on evidence proving his commission of the offense charged.36 Thus, as we have ruled in People v. Derilo:37 While it may be argued that appellant entered an improvident plea of guilty when re-arraigned, we find no need, however, to remand the case to the lower court for further reception of evidence. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of improvidence thereof and when such plea is the sole basis of the condemnatory judgment. However, where the trial court receives evidence to determine precisely whether or not the accused has erred in admitting his guilt, the manner in which the plea of guilty is made (improvidently or not) loses legal significance, for the simple reason that the conviction is based on evidence proving the commission by the accused of the offense charged. Thus, even without considering the plea of guilty of appellant, he may still be convicted if there is adequate evidence on record on which to predicate his conviction. x x xx Here, the prosecution was able to establish, through the separate testimonies of appellant, that at around 1:00 o'clock in the afternoon of 8 April 1997, appellant was gathering firewood not far from the house of the victim AAA in Barangay Pantaon, Ozamiz City. He met co-accused Ronie Abapo who was then pasturing his carabao also within the vicinity of the victim's home. They spotted the victim picking oranges with her three (3)-year old brother at the back of their house and together approached her from behind, tied her hands with banana skin and dragged her to a grassy place. 38 Abapo raped the victim first.39 Thereafter, appellant followed suit.40 Once they had finished with their dastardly acts, they stabbed and killed the victim with a long bolo which belonged to appellant.41 Through the testimony of the physician who conducted the autopsy on AAA's body, it was established that the victim had 6 and 12 o'clock lacerations on her external genital organ. Thus, it is clear that the rape was consummated. Appellant challenges the testimonies of the witnesses Magallano and Araas on what appellant had confessed to or told them for being hearsay. The challenge fails. The testimonies, it should be conceded, cannot serve as a proof of extrajudicial confession for an extrajudicial confession has to be in writing, among others, to be admissible in evidence.42 That is why the testimonies are of use in the case as corroborative evidence only. Such utility, however, cannot be defeated by the hearsay rule. The testimonies covered are independently relevant statements which are not barred by the hearsay rule.1awphi1.net Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant, and the truth or falsity thereof is immaterial. The hearsay rule does not apply. The statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. 43 Moreover, where, as in the case at bar, there is no evidence to show any dubious reason or improper motive for a prosecution witness to bear false testimony against the accused or falsely implicate him in a crime, his or her testimony should be given full faith and credit.44 Next, we address appellant's contention that he can only be convicted of simple rape, as this is the only crime to which he has owned up. Arguing that the victim may have already been dead after his co-accused had allegedly hacked her first, appellant theorizes that he, at most, would be guilty of an impossible crime. Appellant is clutching at straws. It is extremely doubtful that appellant could have known positively that the victim was already dead when he struck her. The proposition not only completely contradicts his judicial confession, it is also speculative as to cause of death. In light of the particular circumstances of the event, appellant's mere conjecture that AAA had already expired by the time he hacked her cannot be sufficient to support his assertion of an impossible crime. An examination of the testimony is again called for, thus: Pros. Edmilao: Q You said that he (Abapo) made the first strike, where was [AAA] first hit? A In the stomach. Q How many times did Ronie Abapo strike her with the use of that bolo? A I cannot remember anymore. Q Aside from the stomach, where were the other pants [sic] of [AAA] also hit? A At the left side. Q How about you, did you made [sic] the following stab to [AAA]? A I was hesitant to stab, but eventually I stabbed her. Q How many times? A Only one. Q What part of her body was she hit? A At the stomach. Q Do you mean to say that you also got the bolo from the hands of Ronie Abapo and also stabbed AAA? A Yes, sir. Q Why was [AAA] not killed, when Ronie Abapo made stabbed [sic] on her? A He [sic] was already dead. Q Why did you stab her, when she was already dead? A I just stabbed her, because I thought that she was still alive.45 Thus, the finding of guilt as pronounced by the RTC and the Court of Appeals should be sustained. However, with the passage of R.A. No. 9346, entitled "An Act Prohibiting the Imposition of Death Penalty in the Philippines," the penalty of death can no longer be imposed. Accordingly, the penalty imposed upon appellant is reduced from death to reclusion perpetua without eligibility for parole.46 With respect to the civil liability of appellant, we modify the award in light of prevailing jurisprudence. Accordingly, appellant is ordered to indemnify the heirs of AAA in the amount of P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as temperate damages and P100,000.00 as exemplary damages.47 WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No. 00193 is AFFIRMED WITH MODIFICATION. Appellant is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay the heirs of the victim, AAA, in the amounts of P100,000.00 as civil indemnity, P75,000.00 as moral damages, P25,000.00 as temperate damages, and P100,000.00 as exemplary damages, plus costs. SO ORDERED. DANTE O. TINGA Associate Justice the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO