People vs.

Narca 385 SCRA 185 FACTS: On March 10, 1990, between 7:00 to 8:00 oclock in the evening, after spouses Mauro Reglos, Jr. and Elizabeth Reglos have just come from the house of the father of Mauro Reglos, Jr. at Barangay Cavite Plum, Guimba, Nueva Ecija, who was then sick, and on their way home to Sta. Ana, Guimba, Nueva Ecija, accused Benjamin Narca suddenly hacked Mauro Reglos, Jr. at the back portion of his head with a long bolo known as panabas. When Mauro was about to fall at his back, Jaime Baldelamar, Rogelio Narca and Rodencio Rudy Narca suddenly appeared, and they took turns in hacking Mauro with bolos. When appellants failed in their motion to quash the above information, they filed a motion for bail. During the bail hearings on September 19, 1990, the victims wife Elizabeth Reglos, who was with him on that fateful night, testified on direct examination. Defense counsel requested the court that his crossexamination of Elizabeth be conducted on the next hearing, October 4, 1990. Such crossexamination on said date never took place because Elizabeth and her son were bludgeoned to death on September 28, 1990. RTC rendered judgment convicting all accused. WHEREFORE, premises considered, judgment is hereby rendered, finding the accused Benjamin Narca y Gagarin, Rodencio Rudy Narca y Gagarin, Rogelio Narca y Gagarin and Jaime Benjamin Baldelamar y Selmo, guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences EACH of them to suffer the penalty of LIFE IMPRISONMENT. The said accused are likewise ordered to pay, jointly and severally, the heirs of the deceased Mauro Reglos, Jr., the sum of P50,000.00 as indemnification fee, the sum of P29,000.00 as actual damages and expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. ISSUES: (1) Assail the validity of the preliminary investigation because they were not represented therein by counsel and was therefore deprived of due process (2) Argue that the testimony of Elizabeth Reglos in the bail hearings should not be given credence since she was not cross-examined (3) Claim that pending this appeal, appellant Benjamin executed an affidavit assuming full and sole responsibility for the victims death but nonetheless invokes self-defense while the other appellants in their respective affidavits state that they were not in the scene of the crime. HELD: 1. There is nothing in the Rules which renders invalid a preliminary investigation held without defendants counsel. Not being a part of the due process clause but a right merely created by

law, preliminary investigation if held within the statutory limitations cannot be voided. Section 1 of Rule 112, the purpose of a preliminary investigation is only to determine a well-grounded belief if a crime was probably committed by an accused. In any case, the invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the information or otherwise render it defective. 2. Mere opportunity and not actual cross-examination is the essence of the right to crossexamine. Appellants lost such opportunity when they sought the deferment of their crossexamination of Elizabeth, and they only have themselves to blame in forever losing that right by reason of Elizabeths demise. This Court held that the right to cross-examination is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. x x x (W)aiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. 3. One who claims self-defense must prove: (a) unlawful aggression, (b) reasonable necessity of the means employed to prevent or repel it and (c) lack of sufficient provocation on the part of the person defending himself. In the case at bench, the foremost element of unlawful aggression is absent. Unlawful aggression presupposes an actual or imminent danger on the life or limb of a person. Mere shouting, intimidating or threatening attitude of the victim, assuming that to be true, does not constitute unlawful aggression. If there be any such aggression, it obviously came from appellants. Evidence on record shows that the victim was only walking with his wife, when he was suddenly and without warning attacked by appellants with panabas and bolos. He was hit at the back of his head chopping off a part of his skull exposing his brain. Where the attack is perpetrated suddenly and without warning, there is treachery, thus, the claim of self defense cannot hold water. The circumstantial evidence on record also points to appellants guilt. Pursuant to Section 3 of Rule 133 conviction may be had on circumstantial evidence considering that the requisites thereof were satisfied herein, to wit: -there is more than one circumstance -the facts from which the inference are derived are proven; and -the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Loper vs. Standard Oil Co. G.R. No. 2345, January 19, 1906 385 Phil. 549 FACTS: This is an action to recover the sum of money for professional services rendered by him as architect and supervisor in the construction of certain buildings belonging to the defendant. The complaint alleged an express promise on the part of the defendant to pay this sum. It contained no allegation as to the reasonable value of his services. At the trial, however, evidence was received on the part of the plaintiff to show what the reasonable value of his services was. ($1,888.25) The defendant made no objection to the introduction of this evidence on the ground that the complaint contained no allegation as to the reasonable value of his services, or on any other ground. The trial court entered judgment for the plaintiff, as prayed for in the complaint, basing it upon the evidence relating to the reasonable value of the services. The appellant contends first, the fact that the decision is based upon an allegation not found in the complaint and that the evidence in regard to the reasonable value of the services was given in answer to questions directed by the court to the witness. Second, that because the court asked the questions and not the counsel for plaintiff, the defendant was not required to object thereto. ISSUE: Whether the evidence (reasonable value of the services) not found in the complaint and given only by way of answer to the questions directed by the court to the witness is admissible in evidence and justifies the decision rendered by the trial court? HELD: Yes. The evidence received in the court below justifies the decision. That evidence was admitted without objection on the part of the defendant. It is too late for him after judgment to say that it should not have been received because it was inadmissible under the pleadings. The high court said that it is difficult to conceive of a case in which, after a trial and decision of the controversy, as appearing on the proofs, when no question has been made during the trial in respect to their relevancy under the pleadings, it would be the duty of the court, or within its rightful authority, to deprive the party of his recovery on the ground of incompleteness or imperfection of the pleadings. With regard to the second contention of the plaintiff. The high court answered that they know of no authorities which support such rule. The defendant had a right to object to evidence

which he considered not admissible under the complaint, even if the questions were asked by the judge and it was his duty to do so.

People v. Velasco 307 SCRA 684 FACTS: Accused-appellant Nomer Velasco y Pangilinan together with Reynaldo Endrina y Roa and Ernesto Figueroa y Santos were charged with the crime of Murder. Leonardo Lucaban, the lone eyewitness to the incident, testified on November 22, 1994 that "he cannot remember the (referring to the person who stabbed Danilo Valencia) face because it was dark" contrary to the positive identification he made of the three accused which were given in his Supplemental Statement dated February 24, 1994. He likewise testified that "because of financial diffuculties he could not appear in court" and was only able to go when he was apprehended by the police a day before the hearing. After the presentation of evidence, the trial court in its decision promulgated on February 19, 1996 found the accused-appellant guilty beyond reasonable doubt but ordered the acquittal of Reynaldo Endrina and Ernesto Figueroa. In assailing the questioned decision the accused-appellant attacks the credibility of the lone eyewitness by pointing out that when Leonardo Lucaban first testified on November 22, 1994 he failed to name the appellant as the assailant even though the latter was in the courtroom at that time. But when he was recalled to the witness stand three (3) days thereafter or on November 25, 1994, he was able to do so. This change of heart by the said witness is attributed by the appellant Nomer Velasco to the former being thoroughly "prepared" by the police authorities when he was taken into custody for five (5) days. Accused-appellant likewise imputes that the "physical, emotional and psychological stress consequent to an apprehension of a prolonged and indefinite detention" provoked the witness to testify "in the manner desired by the police or the prosecution if only to win back his lift and freedom." HELD: We find that the deduction arrived at by the appellant is totally baseless. The police apprehended the eyewitness in compliance with two lawful orders of the trial court. And for the accused-appellant to impute otherwise is uncalled for, as is the implication that while under their custody the witness was coached into pointing an accusing finger at Nomer Velasco. A person when faced with an out of the ordinary situation is not expected to act in a manner similar to another. The conduct therefore of Lucaban should not be deemed suspect if the only person he recognized at the scene of the crime was Nomer Velasco or if he fails to enlist the help of the drivers or passengers of passing vehicles or for going to a remote tricyle spot instead of, for example, knowing on the doors of the houses in the neighborhood.

We do not deem the deficiencies of Lucaban in his testimonies so material as to put the trustworthiness of said witness open to serious doubt. Minor inconsistencies do not impair the essential integrity of the prosecution's evidence as a whole. Moreover discrepancies between sworn statements or affidavits and testimonies made at the witness stand do not necessarily discredit the witnesses. Lucaban testified that he personally knows velasco. Accused-appellant avers that the recall of the witness had no basis and was made with grave abuse of discretion. We disagree. In the case of Arce, et al. vs. Arce, et al., it was held that if, after hearing all the evidence adduced by the parties, the trial Judge is not satisfied, he may, in the exercise of his sound discretion, on his own motion and in furtherance of justice, call additional witnesses or recall some of the same witnesses, for the purpose of questioning them himself, in order to satisfy his mind with reference to particular facts or issues involved in the case.

People v. Perez 397 SCRA 12 FACTS: Jesus S. Perez found guilty of raping Mayia P. Ponseca (Mayia-6yr-old) and imposing on appellant the death penalty Appellant contends that his identification in open court by Mayia was highly irregular. Appellant points out that the prosecutor had already identified him as the man wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged rapist. Appellant stresses that when Mayia identified him in open court, she referred to him as a man named Johnny and did not give any description or any identifying mark. ISSUES:

1)w/n leading questions are allowed? 2) w/n appelllant identification not being done in police line up but in open court is valid? HELD: 1) As a rule, leading questions are not allowed. However, the rules provide for exceptions when the witness is a child of tender years as it is usually difficult for such child to state facts without prompting or suggestion. Leading questions are necessary to coax the truth out of their reluctant lips. In the case at bar, the trial court was justified in allowing leading questions to Mayia as she was evidently young and unlettered, making the recall of events difficult, if not uncertain. The reasons are spelled out in our Rule on Examination of a Child Witness, which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice.

2) Valid, True, Mayia did not identify appellant in a police line-up when Mayia identified appellant in his cell. However, appellant, in his testimony admitted that he had two other companions in his cell. Moreover, the Court has held that there is no law requiring a police line-up as essential to a proper identification. Even without a police line-up, there could still be a proper identification as long as the police did not suggest such identification to the witnesses. Mayias identification in open court of appellant as her rapist dispels any doubt as to the proper identification of appellant.

People v. Aranda 226 SCRA 563 FACTS: (VIOLATION OF DANGEROUS DRUGS ACT) Accused-appellant: TERESITA ANRANDA appeal in the RTC Judgment finding her guilty beyond reasonable doubt in Violation of Section 15, Article III of the Dangerous Drugs Act (R.A. No. 6425 as amended). Aranda allegedly sell and deliver to BENITO VILLANUEVA, two (2) small white transparent plastic bags containing METHAMPHETAMINE HYDROCHLORIDE (SHABU) ISSUE/RULING: Appellant is hereby ACQUITTED of the crime charged. 1. INCONSISTENCIES IN THE TESTIMONY OF APPREHENDING OFFICERS

-We find that there are notable inconsistencies in the testimonies of the three apprehending officers, namely: Pfc. Alexander Corpuz, Pfc. Elmario Adelante and Pat. Romeo Sengco. - These inconsistencies served to shake the foundation of the prosecution's case inasmuch as they engendered serious doubts as to the credibility of the prosecution witnesses (Benito Villanueva) 2. W/N BENITO VILLANUEVA IS A HOSTILE WITNESS? NO.

- The prosecution also failed to show that Villanueva had an adverse interest in the case, or was unjustifiably reluctant to testify, or had misled the prosecution into calling him to the witness stand. Hence, Villanueva cannot be considered as a hostile witness and the prosecution is bound by his testimony that nothing was delivered to him by the appellant. -There was no showing that Villanueva was declared by the trial court as a hostile witness as required in Section 12 of Rule 132 of the Rules of Evidence. Section 12, Rule 132 of the Rules on Evidence, provides as follows: Sec. 12. Party may not impeach his own witness. Except with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. (Emphasis supplied)

The unwilling or hostile witness so declared, or, the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief.

People vs. Castillano G.R. No. 139412, April 2, 2003 400 SCRA 401 FACTS: 1. Jaime Castillano Sr. and Diosdado (victim) had deep animosity due to the formers indiscriminate gun firing. One night, Jaime Sr. et al fired his gun at Diosdados house. The wife was about 5 meters away from her husband when the Castillanos barged inside their house and ganged up on Diosdado, stabbed and shot him to death. 2. The three were placed under arrest for the killing of Diosdado. Upon arraignment, the 3 pleaded not guilty. Ronald admitted when he testified that he killed Diosdado but insisted that he did so in self-defense and in defense of his brother Jaime, Jr. and that Jaime Sr. did not have anything to do with the crime charged. 4. RTC Ruling: Ronald and Jaime Jr. are convicted while Jaime Sr. is acquitted. Hence, the appeal of Ronald and Jaime Jr. ISSUE: WON the inconsistency in the testimony of Luz, the widow of Diosdado, in her sworn statement and before the police, is sufficient to acquit Ronald and Jaime Jr. HELD: No. 1. Office of the Solicitor General: the testimony of Luz cannot be impeached via her testimony during the preliminary examination before the municipal trial court nor by her sworn statement given to the police investigators for the reason that the transcripts and sworn statement were neither marked and offered in evidence by the appellants nor admitted in evidence by the trial court. 2. Moreover, the appellants did not confront Luz with her testimony during the preliminary examination and her sworn statement to the police investigators. Luz was not, therefore, accorded a chance to explain the purported inconsistencies, as mandated by Section 13, Rule 132 of the Revised Rules of Evidence which reads: How witness is impeached by evidence of inconsistent statement. - Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.

3. The appellants did not even mark and offer in evidence the said transcript and sworn statement for the specific purpose of impeaching her credibility and her present testimony. Unless so marked and offered in evidence and accepted by the trial court, said transcript and sworn statement cannot be considered by the court. 4. The Court fully agrees with the foregoing ruminations of the Office of the Solicitor General. The inconsistencies adverted to by the appellants pertained only to minor and collateral matters and not to the elements of the crime charged; hence, they do not dilute the probative weight of the testimony. It bears stressing that even the most truthful witness can make mistakes but such innocent lapses do not necessarily affect his credibility. 5. The testimonies of witnesses must be considered and calibrated in their entirety and not by their truncated portions or isolated passages. And then again, minor contradictions among several witnesses of a particular incident and aspect thereof which do not relate to the gravamen of the crime charged are to be expected in view of their differences in impressions, memory, vantage points and other related factors.

VICENTE PALO-PALO vs. INTERMEDIATE APPELLATE COURT, ZOSIMA TAO and JUSTIN TAO, ABRAHAM PALALON and AGRIPINA GADIANE 214 SCRA 175 FACTS: 1. Petitioner Vicente Palo-Palo sought to be allowed to exercise the right of redemption or pre-emption granted to a tenant under Republic Act No. 3844 over a certain landholding situated in Negros Oriental. 2. In his complaint, he alleged that:

a. He started his tenancy over the land in 1949 when the property was still owned by Zacarias Palacain; b. The property was sold in 1965 to the spouses Juston and Zosima Tao who recognized petitioner's tenancy and continued with the arrangement of sharing the harvest from the landholding; c. The spouses Tao sold the property sometime in October 1978 to herein private respondents Abraham Palalon and Agripina Gadiane, who at first allowed petitioner to cultivate the area until May 25, 1979, at which time they plowed the farmholding and planted it to corn, thus effectively dispossessing petitioner of the land 3. Private respondents initially contended that petitioner was never a tenant of the property sold, which landholding, in any event, they claim is different from the property allegedly tenanted by petitioner. 4. The trial court declared that the petitioner cannot avail himself of the right of preemption of a tenant because he is not a tenant of the property, solely premised on the ground that petitioner, as did private respondents, offered in evidence the Deed of Absolute Sale of the property in favor of Abraham Palalon and Agripina Gadiane for P1,850.00, for which reason, so the trial court ruled, petitioner is bound by the statement in said deed that the property is "not tenanted". 5. IAC re-echoed the trial court's conclusion that petitioner is bound by the statement in the deed of sale that the property is not tenanted, holding that: The rule is that any party introducing a document is conclusively bound thereby. The appellant himself adopted this document as his own evidence and marked it as his own Exhibit "B". Since said document explicitly reveals that the sale was not tenanted, appellant is bound by the contents thereof particularly regarding the fact that it was not tenanted at all.

ISSUE: Whether or not petitioner is bound by the statement in the deed of sale that the property is "not tenanted" HELD: 1. Petitioner introduced the deed of sale but this was done solely for the purpose of proving the fact of conveyance of the landholding. This is clear from petitioner's memorandum of exhibits and offer of evidence where he declared that he was submitting the deed of sale as his Exhibit "B" to show the transfer of the tenanted land from the spouses Zocima Palacain Tao and Juston Tao to the spouses Abraham Palalon and Agripina Gadiane for the consideration of P1,850.00 which fact of conveyance entitled the plaintiff to exercise the right of redemption. 2. Verily petitioner had to show the fact of transfer of the landholding, this being an essential requisite before he can claim the right of pre-emption or redemption. He cannot be bound by the statement in the document to the effect that the property is not tenanted, for petitioner was not a party nor a signatory in the transaction and the deed. 3. Intermediate Appellate Court went no further after it pronounced that petitioner is not a tenant of the property on the basis of the deed of sale. Considering, however, our rejection of such position, it becomes necessary to resolve two additional issues, namely: (a) whether the landholding of which petitioner claims to be a tenant is the same property sold by the spouses Tao to Abraham and Agripina, and (b) whether petitioner is indeed a tenant of the landholding. 4. We found it necessary to refer to the Original Record of the case.

5. Even before the case was decided by the trial court, the fact that the landholding claimed to be tenanted by petitioner and the property sold to Abraham and Agripina by the spouses Tao are one and the same was already a settled matter. 6. Thus CAR Deputy Sheriff Montano A. Galvez, Sr. who was directed by the trial court to determine the identity of the property, rendered his report: It is further agreed by both parties present that the land inspected by the undersigned is the same land in question. 7. It is on this basis that the trial court later said: There is no question now as to the identity of the land described in paragraph 2 of the Complaint. The sketch is the sketch of the land described in the second paragraph of Exhibit "B" of plaintiff which is also Exhibit "6" for the defendants and is also the sketch of the land described in paragraph 2 of the Complaint. There is evidence to show that there is no more question as to the identity of the land when Atty. Pajunar for the defendants stated that "Before we proceed since the land in question has been identified already jointly by the plaintiff and it would seem that the only question now would be whether there was a sale or not.

8. Going to the question of tenancy, this too was settled in the amended answer of private respondent wherein they admitted "that the plaintiff had been a tenant of the late Zacarias Palacain in the land of the latter", the very land shown to have been sold by the Taos to Abraham and Agripina. 9. In fine, both the court of origin and the appellate court could have found for petitioner were said courts not unduly swayed by the circumstance that petitioner presented as his own evidence the deed of sale wherein it was stated that the land involved is not tenanted. Such conclusion having been rejected and the identity and the landholding as well as the fact of the tenancy thereon of petitioner being established matters, there is no further hindrance to the exercise by petitioner of the right of redemption or pre-emption extended and granted to him by law. 10. WHEREFORE, the decision under review is hereby set aside and another is granted recognizing the right of pre-emption or redemption of petitioner over the subject property in accordance with the provisions of Republic Act No. 3844, as amended by Republic Act No. 6389.

FERNANDO VALDEZ alias WILSON VALDEZ, petitioner, vs. HONORABLE JUDGE GREGORIO U. AQUILIZAN, Presiding Judge of the Regional Trial Court, 12th Judicial Region, Branch XVI, Kabacan, North Cotabato, respondents. G.R. No. L-67422-24 October 31, 1984

ABAD SANTOS, J.: This is a petition for certiorari which was posted on March 22, 1984, in Cotabato City by speed airmail but was received only on April 26, 1984. The petitioner is accused of rape in three cases Criminal Case Nos. 13, 14 and 15 filed in the court presided by the respondent judge. The private complainant is the same in all the three cases but the rapes were alleged to have been committed on different dates, namely: February 10, 1982, March 17, 1982 and April 10, 1982. The petition seeks to annul the proceedings which were conducted by the respondent judge and to disqualify him from the case. Because the verified petition imputed serious irregularities to the respondent judge, this Court issued a temporary restraining order on May 21, 1984, restraining him from further proceeding with Criminal Case Nos. 13, 14 and 15. In the comment which the respondent judge was required to submit, he said that he had already decided the three cases. (Petitioner Wilson Valdez was convicted of rape in each of the three cases and was sentenced to three reclusion perpetua plus indemnity.) The decision is dated April 2, 1984, but the petitioner claims that it was promulgated on May 3, 1984, without the presence of his counsel and even of the Fiscal; that no notice was issued in respect of the promulgation; and that no copy of the decision was given to the defense counsel of record. The case was set for hearing on August 6, 1984, and thereafter the Court issued a resolution which reads: At the hearing this morning the following appeared: Attys. Jose V. Juan and Antonio T. Nicolas of the Special Appealed Cases Division, Citizens' Legal Assistance Office, Ministry of Justice, Padre Faura, Manila, for the petitioner; respondent Judge Gregorio U. Aquilizan on his own behalf; and North Cotabato Provincial Fiscal Aquiles Narajos who brought the record of Criminal Case Nos. 13, 14 and 15 in the sala of the respondent judge. Counsels for the petitioner mentioned several irregularities said to have been committed by the respondent judge in the handling of the case above-mentioned. Resort to the record proved to be fruitless because it was grossly deficient.

Counsels for the petitioner are hereby given ten (10) days from notice hereof to submit a memorandum specifying the irregularities said to have been committed by the respondent judge with supporting evidence. A copy of the memorandum shall be furnished to the respondent judge who is required to answer the same point by point within ten (10) days from receipt. (Rollo, p. 127.) The memoranda are now before this Court and the immediate reaction is that the petition is highly impressed with merit. In the hearing of the three criminal cases on May 26, 1983, the private complainant was to be cross- examined inasmuch as her direct examination had been finished at the previous hearing on April 7, 1983. On May 26, the private prosecutor, Atty. Norberto Ela, was absent. Thereafter, the respondent judge stated: "It appears in the records that the complaining witness is still under cross. It is the Honorable Judge who is examining her ... (Addressing the witness) During the last hearing of this case, the Honorable Court reserved its right to cross examine you on your testimony." And the respondent judge examined the witness but the examination is better described as direct rather than cross. Witness the following: t.hqw COURT: ... After going over the records of the cases and the supposed exhibits, you mentioned about a pair of scissors used to intimidate you, coerced and forced by the accused, by pressing the same at your left side? A. Yes, your Honor. COURT: Proceed Fiscal. FISCAL FULVADORA: Q You mentioned about a pair of scissors used by the accused. Showing to you this scissors, what relation is this scissors which was used by the accused in threatening you on February 10, 1982? A Yes, sir, this is the one being used by him. COURT: Q Is this the very scissors that you saw when he pressed it? A Yes, your Honor.

Q When was this used by the accused Wilson Valdez? A On February 10, 1982, your Honor. FISCAL FULVADORA: May we request that this scissors Identified by the witness be marked as Exh. "F", your Honor. COURT: t.hqw Mark it. Q Please demonstrate to the Court how this Exh. "F" was used by the accused in intimidating you? A (Witness demonstrating to the Court) The witness demonstrating to the supposed victim the pressing of the pointed scissors at the left side abdomen. Q Did he also use that during the accord rape he committed A Yes your Honor. Q About the third time, he use also? A Yes your Honor. (TSN, May 26, 1983.) To be sure a trial judge has the right, nay even the duty, to address questions to witnesses. But the questions should be clarificatory; they should not build the case for any of the adversaries. On June 23, 1983, a hearing was scheduled. The transcript for that day shows that Fiscal Camilo Fulvadora appeared for the prosecution but private prosecutor Ela, was absent. Also absent was Atty. Jorge Zerrudo, counsel for the accused. The transcript does not show whether or not the accused was brought to court. Notwithstanding the absence of counsel for the accused and probably the accused himself, the respondent judge continued his "cross-examination" of the private complainant. The respondent judge explained his behaviour thus: WHEREFORE, premises considered, in view of the absence of Atty. Zerrudo who in spite of due notice in open court, during the last hearing of this case and without justifiable reason failed to appear, however, for the sake of justice in order not to prejudice the right of the accused as the

complaining witness was on cross- examination, stated the witness is being cross examined by the court in order to get an illustration of certain facts needed by all defense here or the prosecution of the accused Wilson Valdez alias Willy. (TSN, June 23, 1983.) In his memorandum the respondent judge claims that he "did not proceed with the trial but merely sought clarifications on vital aspects taken up in the hearing of April 7, 1983." The explanation of the respondent judge is belied by the transcript which shows that he asked the private complainant searching questions and this is reflected on pages 4 to 12 of the transcript. The statement of the respondent judge that he wanted to protect the right of the accused to a speedy trial is not appreciated. He "protected" the rights of the accused by holding a trial in the absence of the latter's counsel. If an accused has a "protector" like the respondent judge, there is no need for a fiscal or a private prosecutor. It may not be amiss to state in this connection that the accused did not complain of delay in the trial of his case probably because he was not there. At any rate if the respondent judge had wanted to expedite the trial he should have appointed a temporary counsel for the accused. The hearing on the three cases was resumed on August 18, 1983. In the meantime, Atty. Zerrudo was replaced by Atty. Julian Ruiz as counsel for the accused because he wanted an Ilocano lawyer to represent him for better communication. On that day. the private complainant was still on cross-examination. Without any request from the parties, the respondent judge decided to hold the hearing in his chamber "due to delicadeza." Present in the chamber were counsel for the accused, the fiscal and the stenographer only; the accused was not allowed to go inside. The respondent judge claims, however, "that the accused together with his guard were at the door of a make-shift room, so-called judge's chamber." This might well have been the case but the accused was entitled as of right to be inside the room because it was his liberty and honor which were at stake. On August 31, 1983, the respondent judge announced, "We will hear this in chamber." And then the following took place: ATTY. RUIZ: Now, last time this case was presented and was scheduled for hearing inside the chamber. Counsel for the accused requested that the accused be given chance to confront the complaining witness but this, your honor was denied so at this instance it is reiterated that the accused be given again a chance to be present during the investigation (sic). COURT:

Fiscal. FISCAL CAMILO FULVADORA: With the sound discretion of the Honorable Court. COURT: Denied. (TSN, August 31,1983.) On February 7, 1984, the following took place: ATTY. RUIZ: Your honor, we are still in the process of direct examination for the accused. We are recalling the accused in the witness stand. I understand your honor last time, due to lack of material time, we requested for a resetting of these three cases inasmuch as the matter whether to give the accused for the meantime your honor, I am petitioning that he must be recalled and placed in the witness stand. COURT: It is discretionary on the part of the Judge. What can you say Fiscal? FISCAL FULVADORA: I remembered right that it is the purpose for the trial, that the manifestation of the defense counsel that he is through with the testimony of the witness, he requested that the prosecution will be continued in some other time. ATTY. RUIZ: We concur with the Provincial Fiscal but prior, we are petitioning the Honorable Court to recall the witness for further direct examination and I am requesting that will have to continue the proceeding. We are convinced with the observation of the Court that it is discretionary of the Honorable Court but this representation however, we would like to request and reiterate and manifest for the petition that he be recalled. It is not the intention of the defense counsel, your honor, to delay the speedy termination of these cases. As a counsel for the accused, I would like to reiterate that the accused be recalled to the witness stand. FISCAL FULVADORA:

The Honorable Court will decide on that part of presentation of the accused, whether to grant it or not the manifestation. COURT: How many questions are you asking? ATTY. RUIZ: Due to lack of material time, the three cases, I forgot to ask few questions regarding the evidences or exhibits which are the panty, knife, and scissors, in the direct examination in that, it was overlooked in the part of this representation that the three after presented some of the exhibits per prosecution, were not questioned. FISCAL FULVADORA: It is not the matter of forgotting the exhibits of the counsel, there are time given to present this trial. I remembered that he propounded few questions for the defense and he manifested that he is through in his direct examination and it is my time to cross the testimony of the accused. ATTY. RUIZ: I forgot, before the Honorable Court that this representation have reasons of overlooking why I was not able to question to all the matters considering of the lack of material time and that there are other cases waiting which are ready for the hearing. It is the discretionary on the part of the Honorable Court specially that the criminal penalty is death and while the Provincial Fiscal having further presentation of exhibits at the beginning of the case, where the questioning we were already finished, yet the Provincial Fiscal continued separately to the presentation of other cases. COURT': Denied. Under cross. (TSN Feb. 7, 1984.) It is obvious from the foregoing that the respondent judge did not manifest the requisite cold impartiality which the petitioner deserved. The petition which questions the actuations of the respondent judge and seeks his disqualification was received by him on March 29, 1984. Prudence dictated that he refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision

pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases on April 2, 1984, and promulgating his decision on May 3 of the same year. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner. WHEREFORE, the petition is hereby granted. The decision in Criminal Case Nos. 13, 14 and 15 of the respondent judge is set aside; the aforesaid cases shall be transferred to Branch XVII of the Regional Trial Court in Kidapawan for trial de novo which shall also resolve the petitioner's motion for release on recognizance under Sec. 191 of P.D. No. 603. No costs. SO ORDERED. Makasiar (Chairman), Concepcion, Jr., Guerrero, Escolin and Cuevas, JJ., concur. Aquino, J., took no part.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PLASENCIA y DESAMPARADO alias "Tonying," ROBERTO DESCARTIN y PASICARAN alias "Ruby" and JOELITO (JULITO), DESCARTIN y PASICARAN, accused-appellants. G.R. No. 90198 November 7, 1995

VITUG, J.: Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin were accused of robbery with homicide in an information, dated 20 December 1984, that read: That on or about the 29th day of November, 1984 at around 3:00 o'clock in the afternoon, more or less, in sitio San Juan, Barangay Patao, Municipality of Bantayan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused conspiring and confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously, and with treachery, evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault and use personal violence upon Herminio Mansueto, thereby inflicting upon him the following physical injuries: 1. Stab wounds which was approximately two inches in length, parallel to the ribs and is located 1 1/2 inches below the right nipple on the right anterior axillary line and on the fifth intercostal space. On probing the wound was penetrating immediately up to the left parasternal border approximately hitting the heart; 2. Hacking wound 9 inches in length extending from the coracoid process of the left clavicle passing between the left anterior and the left mid axillary line up to the left 4th intercostal space including all muscle underlying the skin exposing the ribs. Cause of death: Internal hemorrhage due to stab wound. after which the body was placed inside a plastic bag and brought to an open sea by the pump boat owned by Roberto Descartin y Pasicaran and operated by Joelito Descartin y Pasicaran and dumped to the water by herein accused, and as a result of which said Herminio Mansueto died, herein accused, in pursuance of their conspiracy, wilfully, unlawfully and feloniously and with intent to gain, took and carried away the personal property belonging to Herminio Mansueto, namely: one (1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1) Bicycle (standard size) valued at P1,000.00; and cash in the amount of P10,000.00, all in the total amount of FOUR-

TEEN THOUSAND PESOS (P14,000.00), Philippine Currency, to the damage and prejudice of said oner (sic) in the said total sum. All contrary to law, and with the qualifying circumstance of alevosia, and the generic aggravating circumstance of known premeditation. CONTRARY TO LAW. 1 When arraigned, all the accused entered a plea of "not guilty" to the charge; whereupon, trial commenced. The prosecution sought to establish, as follows: At around ten o'clock in the morning of 29 November 1984, Herminio Mansueto, wearing a blue and white striped t-shirt, maong pants, Seiko 5 stop watch and a pandan hat, left on his bicycle for Barangay Patao, Bantayan, Cebu. He had with him P10,000.00 cash which he would use to purchase hogs from a certain "Ruby." In Patao, Francisca Espina, also known in the locality as Pansing and whose house was just across the street from the respective residences of the three accused, saw at the roadside Herminio Mansueto and Roberto Descartin alias "Ruby" engaged in conversation. Pansing approached them and asked Mansueto if he would be interested in buying two of her pigs for P1,400.00. Mansueto said "yes" and promised that he would be right back. Mansueto and Ruby meantime proceeded to the latter's piggery. Joelito Descartin and his brother-in-law Rene were also seen going to the place. After some time, Pansing noticed Joelito take Mansueto's bicycle. Believing that Mansueto was already preparing to leave and in her desire to catch up with him, Pansing promptly walked towards the piggery which was around 100 meters away from her house. She could see Mansueto leaning on the pigsty with Ruby on his right side and Antonio Plasencia alias "Tonying" on his left; behind was Joelito. 2 Midway, she was halted on her tracks; she suddenly saw Antonio stab Mansueto. The latter staggered towards Ruby who himself then delivered another stab blow. Mansueto fell on his back. Joelito started hitting Mansueto on the forehead while Rene held Mansueto's legs. 3 Except for a coconut tree and some ipil-ipil trees around the area, nothing obstructed Pansing's line of vision. Pansing rushed back home. The image of Antonio waving the weapon and the thought that she might herself be killed kept her from revealing to anyone what she saw. 4 The following day, in Kodia, Madridejos, Cebu, where Mansueto resided, his daughter Rosalinda reported to Francisca Tayo, the barangay captain, that her father had not returned home. Tayo proceeded to Putian, which was in Mansueto's itinerary, and then to Ruby's piggery in Patao,

where a youngster, who turned out to be Ruby's son, innocently informed her that Mansueto's bicycle was taken by Joelito. 5 The day after, Francisca Tayo, accompanied by police officers of Madridejos, Cebu, and some relatives of Mansueto, went back to Ruby's place. On a railing of the pigpen, she saw blood stains. When she asked Ruby's father about it, he said that the stains had come from chicken blood. Going around the piggery, she also saw blood stains on a bamboo pole, which Ruby's father once again so identified as chicken blood. At the back of the piggery, Francisca noticed a digging which looked like an empty grave. The digging was measured and photos were taken. The police found a hat at the back of a hut beside the piggery, which was later recognized to be that which belonged to Mansueto. 6 In the morning of 30 November 1984, Patrolman Elpidio Desquitado of the Bantayan police went back to the piggery. This time, the police learned from Pansing herself that Joelito took Mansueto's bicycle. 7 Joelito was invited to the police headquarters to shed light on the case. Later, Joelito, waiving his right to counsel, executed a "confession." 8 Joelito narrated that, upon Ruby's instruction, he brought the bicycle to the piggery. Unexpectedly, he said, Tonying Plasencia stabbed Mansueto. Stunned, Joelito tried to run away but Tonying stopped him. Tonying then dragged the victim to a nearby house. Threatened by Tonying, Joelito agreed to later return to where the victim's body was dragged. At around eleven o'clock that evening, tonying and Joelito placed the body in a sack. Tonying asked Ruby to allow the use of the latter's pumpboat to ferry the body. Tonying paddled the pumpboat to the island of Po-Po'o where he picked up some pieces of stones. Then, again paddling the pumpboat farther away from the island, he ordered Joelito to start the engine of the boat. They headed for the islet of Gilotongin (Hilotongan). On the way, Tonying filled the sack with stones and, using a rope, tied to it the body of the victim. Tonying then unloaded their cargo into the sea. Guided by Joelito, members of the Bantayan police force headed for the islet of Hilotongan on two pumpboats 9 in the area pinpointed to be the place where the body was dumped. On the second day of the search, the group was informed that the body had already surfaced near the vicinity of the search and delivered to the municipal building. 10 The municipal health officer of Bantayan, Dr. Oscar Quirante, examined the body and concluded that the victim died of internal hemorrhage due to stab wounds. 11 The bloated body was in a late stage of decomposition and its skin had sloughed off. 12 He found the victim's face to be "beyond recognition." There were "some rope signs in the body particularly in the waistline and in the knees." 13 The main defense interposed is one of alibi.

Antonio stated that on the whole day of 29 November 1984, he was out at sea fishing with his son. Joelito, on his part, asserted that he was in Barrio Baod, about an hour's walk from his residence, at the house of his fiancee. He returned to his house, he said, only the day after. Roberto ("Ruby"), Joelito's uncle, testified that on that fateful day, he was in Samoco Purok 2, Iligan City, and then left for Cebu on 06 December 1984 only after receiving a telegraph that Joelito was implicated in the crime. The Regional Trial Court 14 did not give credence to the defense of alibi. It convicted the three accused of murder (punishable under Article 248 of the Revised Penal Code), instead of robbery with homicide, explaining that the term "homicide" was used in the information in its generic sense. 15 Finding conspiracy, the trial court ruled that the killing was qualified by both treachery and abuse of superior strength with the latter, however, being absorbed by the former. No other aggravating or mitigating circumstances being attendant in the commission of the crime, the trial court said, the penalty that could be imposed upon each of the accused was reclusion perpetua with a joint and several civil liability for indemnification to the heirs of Herminio Mansueto in the amount of P30,000.00. The instant appeal was interposed by the three convicted appellants. Appellant Antonio Plasencia attacks the credibility of the prosecution's lone eyewitness, Francisca Espina, alleging that she is a pejured witness who has an axe to grind against him because his dog had once bitten Francisca's child. 16 He bewails the fact that it has taken Francisca until 29 December 1984 to reveal what she supposedly has seen to the police authorities. Contending that treachery has not been duly proven as "no wound was inflicted at the back and as a matter of fact only one wound was fatal," 17 appellant argues that even if conspiracy were to be considered to have attended the commission of the crime, he could be held liable with the others, if at all, only for homicide. Appellant Roberto Descartin, likewise challenging Francisca Espina's credibility because of her alleged inconsistencies, faults the trial court for allowing the witness to glance at the notes written on her palm while testifying. He also argues that his alibi, being corroborated, should have been given weight. Appellant Joelito Descartin, in assailing the credibility of Francisca, has noted her "jittery actuation" while giving her testimony. He also questions the findings of the ponente for not being the presiding judge during the examination of Francisca on the witness stand. The focus of this appeal is clearly one of credibility. The initial assessment on the testimony of a witness is done by the trial court, and its findings still deserve due regard notwithstanding that the presiding judge who pens the decision is not the one who personally may have heard the

testimony. 18 The reliance on the transcript of stenographic notes should not, for that reason alone, render the judgment subject to challenge. 19 The continuity of the court and the efficacy of its decision are not affected by the cessation from the service of the judge presiding it 20 or by the fact that its writer merely took over from a colleague who presided at the trial. 21 It is asserted that the testimony of Francisca Espina should not be given worth since, while testifying, she would at times be seen reading some notes written on her left palm. Thus Q. May I see your left hand, may I see what is written there? A. Witness showing to the court her left palm and the following words have been written in her palm in ball pen handwritten words and number of the pumpboat No. 56 and there is another word "petsa" and there are words which cannot be deciphered and all found in the palm of the left hand. ATTY. MONTECLAR: That is all. ATTY. GONZALES: RE-CROSS Q Mrs. witness, you cannot deny of what these physical evidences or writings on the palm of your left hand. I want you to be honest, the law will not allow you to lie, you are subject to punishment and penalty. My question is, who wrote this on the palm of your left hand? A I was the one who wrote this. Q Why did you write that down? A I was the one who wrote this. Q Why, what was your purpose of writing that in your palm? A I wrote this in my palm because I wanted to be sure of what time the incident happened, was the same as that I wrote in my palm. Q And who furnished you the data in which you wrote in the palm of your hand? A I was the one who made that. ATTY. GONZALES:

Q You don't understand my question. You wrote that writing but where did you get that data? A. This is just of what I know. Q Since you claim to have all this knowledge of your mind, why did you find it necessary to write that in the palm of your hand and I notice during the trial that you used to look in your palm, why, is that necessary in your believe to testify here to what you knew about the incident. A Because of the fact that I have an headache. Q When did this headache occur? A After I left my house because my sick child. Q Now, knowing that you have an headache, did you not bring this to the attention of the Fiscal? A No, I did not tell the Fiscal. Q Do you know of your own that doing this is unfair and is not allowable while testifying in open court, do you know that is illegal act? A No, I did not, know. Q And you did all of this claiming that you do not know about the incident for the purpose of giving here testimony against the accused? A Yes, sir. 22 The use of memory aids during an examination of a witness is not altogether proscribed. Section 16, Rule 132, of the Rules of Court states: Sec. 16. When witness may refer to memorandum. A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the

particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (Emphasis supplied.) Allowing a witness to refer to her notes rests on the sound discretion of the trial court. 23 In this case, the exercise of that discretion has not been abused; the witness herself has explained that she merely wanted to be accurate on dates and like details. Appellants see inadvertency on Francisca's appearing to be "jittery" on the witness stand. Nervousness and anxiety of a witness is a natural reaction particularly in the case of those who are called to testify for the first time. The real concern, in fact, should be when they show no such emotions. Francisca did fail in immediately reporting the killing to the police authorities. Delay or vacillation, however, in making a criminal accusation does not necessarily adulterate the credibility of the witness. 24 Francisca, in her case, has expressed fears for her life considering that the assailants, being her neighbors, could easily exact retribution on her. 25 Also, the hesitancy in reporting the occurrence of a crime in rural areas is not unknown. 26 Francisca's inability to respond to the summons for another appearance in court for further questioning was satisfactorily explained by the prosecution. Francisca at the time just had a miscarriage and was found to be too weak to travel. The recall of the witness was, after all, at the sound discretion of the trial court. 27 The claim of appellant Roberto Descartin that Francisca and her husband, a tuba-gatherer, owed him P300.00, and the assertion made by appellant Antonio Plasencia on the dog-biting story involving Francisca's son truly were too petty to consider. It would be absurd to think that Francisca, for such trivial reasons was actually impelled to falsely implicate appellants for so grave an offense as murder. Appellants questioned Francisca's ability to recognize them from a distance. Francisca knew appellants well; they all were her neighbors while Antonio Plasencia himself was her cousin. 28 The crime occurred at around three o'clock in the afternoon only about fifty (50) meters away from her. With an unobstructed view, Francisca's positive identification of the culprits should be a foregone matter. 29 The alleged inconsistencies in Francisca's testimony and in her sworn statement of 18 December 1984, cover matters of little significance. Minor inconsistencies in the testimonies of witnesses do not detract from their credibility; 30 on the contrary, they serve to strengthen their credibility and are taken as badges of truth rather than as indicia of falsehood 31 even as they also erase suspicion of rehearsed testimony. 32

All considered, the case against the appellants has been proven beyond reasonable doubt even with the retracted extra-judicial admission of Joelito Descartin. 33 The testimony of a single witness, if found to be credible, is adequate for conviction, 34 The defense of alibi hardly can overcome the positive identification of an unprejudiced eyewitness. 35 Like the trial court, we are not persuaded that robbery has been proven to be the principal motive for the crime that can warrant the conviction of appellants for the complex crime of robbery with homicide. 36 Appellants could only thus be held responsible for the killing of Mansueto. Conspiracy among the appellants has been established beyond doubt by the sum of their deeds pointing to a joint purpose and design. 37 Three aggravating circumstances were alleged in the information, i.e., treachery, evident premeditation and abuse of superior strength. The trial court disregarded the circumstance of evident premeditation and concluded that the attack upon Mansueto was committed with treachery and abuse of superior strength. On its finding that the assault was unexpectedly perpetrated upon the unarmed victim to ensure its execution without risk to themselves from the defense that the victim might make, the trial court appreciated treachery, which it deemed as having so absorbed abuse of superior strength. The trial court was correct when it concluded that the crime committed was murder, a crime technically lower than robbery with homicide, 38 not, however, because of the attendance of treachery but of abuse of superior strength. Treachery, in our view, was not satisfactorily proven by the prosecution. Francisca Espina simply testified that appellant Plasencia stabbed Mansueto while the latter and the appellants were in a huddle. There was nothing adduced on whether or not the victim gave provocation, an indispensable issue in the proper appreciation of treachery. 39 The presence, nonetheless, of the aggravating circumstance of abuse of superior strength qualified the killing to murder. 40 The three appellants utilized superiority in numbers and employed deadly weapons in assaulting the unarmed Mansueto. There being no other aggravating or mitigating circumstances to consider, the trial court aptly imposed the penalty of reclusion perpetua, the medium period 41 of the penalty of reclusion temporal maximum to death prescribed by Article 248 of the Revised Penal Code. In conformity with prevailing jurisprudential law, the heirs of the victim should be indemnified in the amount of P50,000.00. 42 WHEREFORE, the decision of the trial court convicting appellants Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin of the crime of murder and imposing on each of them the penalty of reclusion perpetua is hereby AFFIRMED with the modification that the indemnity to the heirs of the victim, Herminio Mansueto, is raised to P50,000.00. Costs against appellants.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEOFILO KEMPIS, accused-appellant. The Solicitor General for plaintiff-appellee. Efren N. de la Cruz for accused-appellant. G.R. No. 97169 May 10, 1993

DAVIDE, JR., J.: This is an appeal from the decision in Criminal Case No. 841 of Branch 10 of the Regional Trial Court (RTC), Eighth Judicial Region, at Abuyog, Leyte, promulgated on 9 October 1990 1 finding the accused guilty beyond reasonable doubt of the crime of murder, and sentencing him: . . . to suffer the penalty of RECLUSION PERPETUA, to indemnify the heirs of Lolito Rivero the amount of P30,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. The accused who has been detained since his arrest on May 19, 1989 up to the present is hereby accorded full credit of the preventive imprisonment he has undergone, pursuant to Art. 29 of the Revised Penal Code. SO ORDERED. 2 Accused Teofilo Kempis, then a member of the Philippine Constabulary (PC), was initially charged with two (2) counts of murder, viz.: for the stabbing of Antonio Miraflor and the shooting of Lolito Rivero, grave threats and abuse of authority. In preparation for a general court martial proceedings, Sgt. Samuel Rosales of the Office of the Regional Inspector (ORI) of the PC/INP Regional Command 8 at Camp September 21st Movement, Palo, Leyte, conducted an investigation. In his Investigation Report to the Regional Inspector General of the said command dated 13 December 1988, Sgt. Rosales recommended that the case be referred to the Regional Judge Advocate for the latter's legal opinion. 3 In the meantime, however, the accused was discharged from the service. The records of the case were then transmitted to the Office of the Provincial Prosecutor of Leyte for appropriate action.

In due course, the Provincial Prosecutor of Leyte caused to be filed on 13 April 1989 the Information in Criminal Case No. 841, the accusatory portion of which reads: That on or about the 15th day of September, 1988, in the Municipality of Mayorga, province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, shot (sic) and wound one LOLITO RIVERO with an M-16 ride with which said accused had purposely provided himself, thereby causing and inflicting upon him gunshot wounds on his body which caused his death. Contrary to law. 4 The accused entered a plea of not guilty during his arraignment on 29 June 1989. 5 Trial on the merits then ensued. Seven (7) witnessess 6 testified for the prosecution. For the defense, the accused testified on his behalf and presented six (6) other witnesses, 7 including the common-law wife of the victim. In convicting the accused, the trial court relied on the prosecution's version which, except for the name of the victim which should read Lolito Rivero and not Rivera, is succinctly, but faithfully, summarized in the Brief for the Appellee 8 as follows: At about 3:00 o'clock in the afternoon of September 15, 1988, Lolito Rivera was at his house located in Bgy. Talisay, Mayorga, Leyte. Rivera had just butchered a pig and was cooking lunch for his guests which included Carmencita Navarro, Corazon de Paz, Rivera's common-law wife and Rivera's sister Rosalina Adonis. Suddenly, appellant Kempis a member of the Philippine Constabulary (PC) and a companion, Wilfredo Bautista arrived at the yard of Rivera's house on a board (sic) a motorcycle. Both were armed with armalite rifles. Appellant insisted on bringing Rivera with them and directed Rivera who was standing near the kitchen door to board the motorcycle. Rivera, however, declined saying that he was cooking. Angered by such refusal, appellant successively fired his armalite rifle at Rivera hitting the latter's arm, chest and mouth while Bautista whip stationed himself behind a banana tree had his rifle Rivera (sic) died instantly. Thereafter, appellant and Bautista boarded their motorcycle and left (pp. 4-9, tsn, June 15, 1989). Adonis went to the house of the barangay captain to report the incident but since the latter was not there, Adonis immediately proceeded to the Police Station at Mayorga, Leyte (pp. 21-22, supra).

Postmortem Examination shows that five of the seven wounds inflicted on Rivera were gunshot wounds. 9 On the other hand, the accused's version discloses that the incident in question actually occurred on 16 September 1988 not on 15 September 1988 and that he killed Lolito Rivero under circumstances that could exempt or mitigate his liability. His counsel puts the matter in more explicit terms before starting with the direct examination of the accused: xxx xxx xxx. Additionally, we are offering the testimony of the witness to show that the incident happened under circumstances that could exempt or mitigate the liability of the accused. 10 As condensed in his Brief, 11 the accused's version reveals that:. At about 3:00 o'clock on September 16, 1988 not September 15, 1988 the accused, who was a PC soldier, went to the house of one Lolito Rivero, at Barangay Talisay, Mayorga, Leyte, for the purpose of advising the latter not to steal and create trouble in their town. Upon reaching Rivero's house, the accused met his common-law-wife Corazon de Elaz Catanoy who had a visitor then by the name of Francisca Rinoza (Francisca Rinoza was there because she was demanding payment of Corazon's debt to her). When the accused asked from Corazon where Rivero was, she told the accused that Rivero was in their kitchen doing something. At the time, the accused was carrying his M-16 rifle slung on his left shoulder with its barrel pointing down. Upon reaching the door of the kitchen, the accused did advise Rivero as he intended Rivero told him "I will not do it again, Sir, as I have just come out of jail." Hearing Rivero's promise, the accused turned his back to leave. It was at that juncture that Rivero immediately grabbed the accused's M-16 rifle. They grappled for the rifle until it went off and Rivero was hit. The latter died because of gunshot wounds. 12 As to the prosecution's claim that the incident occurred on 15 September 1988, the accused set up the defense of alibi. According to him, he was in barangay Cabacungan, Dulag, Leyte specifically in the house of Dominador Kempis from: About 12:00 o'clock noontime up to late afternoon. 13 for the wake of his cousin, Diosdado Kempis, who had been killed. 14 Dominador Kempis testified that the accused arrived at his house at about "1:00 o'clock to 2:00 o'clock" and left at about 6:00 o'clock in the afternoon. 15 The trial court gave full faith and credit to the testimonies of the prosecution witnesses and pronounced that Lolito Rivero was in fact shot and killed by the accused on 15 September 1988.

It brushed aside the alibi interposed by the latter because Rivero's place is located in the Municipality of Mayorga which is adjacent to the Municipality of Dulag. It is in Dulag where the accused claims to have been for the wake of Diosdado Kempis. The court a quo observed that "it would not have been impossible for the accused to have gone to Bgy. Talisay (in Mayorga) and kill Lolito as accused admitted he owns a motorcycle." 16 Moreover, the court declared that the accused "was positively identified by the prosecution witnesses that he killed Lolito Rivero on September 15, 1988." 17 Anent the accused's claim of self-defense, the trial court rejected the same as it was of the opinion that the accused, being a soldier, was more knowledgeable and trained in the use of firearms than the victim, a mere farmer, "who at the time of the incident was not even armed with a bolo or any weapon." The court added that "even granting . . . that Lolito was able to grab the gun . . . Lolito . . . would have not know (sic) how to use it on the accused. " 18 It further observed that although the accused reported the killing to the police, he failed to inform the latter that he had merely acted in self-defense. After the promulgation of the decision on 9 October 1990, the accused seasonably filed a Motion for Reconsideration 19 alleging therein that the trial court erred (a) in not crediting him with the mitigating circumstance of voluntary surrender and (b) in ruling that the incident actually took place on 16 September 1988 and not on 15 September 1988 as testified to by prosecution witnesses Rosalina Adonis, Urbano Adonis and Carmen Navarro, and as evidenced by the death certificate of the victim, a xerox copy of which was annexed to the motion. The prosecution opposed the motion. 20 In its Order of 8 January 1991, the trial court denied the motion. 21 On 21 January 1991, the accused filed his Notice of Appeal. 22 In his Brief, the accused imputes upon the lower court the commission of the following errors First Assignment of Error . . . IN IGNORING THE TESTIMONIAL AND DOCUMENTARY EVIDENCE OF THE DEFENSE WHICH CLEARLY SHOWED THAT THE TESTIMONIES OF PROSECUTION WITNESSES ROSALINA ADONIS AND CARMEN NAVARRO WERE UNTRUE AND INCREDIBLE. xxx xxx xxx Second Assignment of Error

THE LOWER COURT WAS BIASED AGAINST THE ACCUSED AND FAILED TO EXERCISE THE COLD NEUTRALITY EXPECTED OF AN IMPARTIAL ARBITER, IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED. xxx xxx xxx Third Assignment of Error . . . IN GIVING CREDENCE TO THE TESTIMONY (sic) OF THE PROSECUTION WITNESSES DESPITE THE FACT THAT THE SAME ARE INHERENTLY INCREDIBLE AND CONTRARY TO THE COMMON EXPERIENCE OF MAN. xxx xxx xxx Fourth Assignment of Error . . . IN NOT GIVING THE DEFENSE AN OPPORTUNITY TO PRESENT THE DEATH CERTIFICATE OF THE DECEASED LOLITO RIVERO, OR AT LEAST CONSIDER THE SAME IN ITS DECISION. The primary reasons relied on for the first assigned error are that (a) the declarations of prosecution witnesses Rosalina Adonis and Carmen Navarro that the incident in question took place on 15 September 1988 are false because according to defense witness Antonio Varona, it actually happened on 16 September 1988, the day he requested the victim, Lolito Rivero, to slaughter a pig, and (b) the trial court disregarded Entries No. 904 and No. 905 of the Mayorga Police Blotter which were made immediately after the incident on 13 September 1988. The second assigned error is premised on the accused's conclusion that the trial court was biased in (a) stating in its decision that the defense did not submit any documentary evidence when in fact it did submit Exhibit "1", 24 a portion of the Investigation Report prepared by the Office of the Regional Inspector, PC/INP Regional Command 8 that refers to Entry No. 904 in the Police Blotter of Mayorga, Leyte which in turn states that the accused reported that he shot Lolito Rivero to death on 16 September 1988; (b) considering the aforesaid Investigation Report for the prosecution although the same was not offered in evidence; and (c) restricting the cross-examination of the prosecution witnesses, and in being liberal during the crossexamination of the defense witnesses. In support of the third assigned error, the accused contends that the trial court took "hook-lineand-sinker and regarded as a gospel truth the testimony (sic) of the prosecution witnesses, specifically that of Rosalinda (sic) Adonis, the elder sister of the deceased Lolito Rivera." 25

At the bottom of the first and third assigned errors is the issue of the credibility of the witnesses. In view thereof, both errors will be discussed jointly. One well-settled rule which this Court has consistently upheld and faithfully adhered to is that the issue of credibility is to be resolved primarily by the trial court because it is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during the trial. 26 The trial court's findings on the matter of credibility are thus entitled to the highest degree of respect 27 and will not be disturbed on appeal in the absence of any showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which would have affected the result of the case. 28 Our careful review and evaluation of the testimonies of the witnesses for the prosecution as well as for the defense yield no cogent or compelling reason to alter the findings of fact made by the trial court. Accused's insistence that the shooting took place on 16 September 1988 as testified to by Antonio Varona and as allegedly borne out by Exhibit "1" and not on 15 September 1988 as testified to by prosecution witnesses Rosalina Adonis and Carmen Navarro, deserves scant consideration. It is to be observed that Varona's testimony is based entirely on his recollection of the date he requested the victim to slaughter a pig. The judge who observed his demeanor while he was on the witness stand found the testimony to be unworthy of credit. The accused provides Us with no weighty reason to overturn the trial court's findings. As to Exhibit "'L", a portion of page 5 of the Investigation Report of Sgt. Samuel Resales, investigator of the Office of the Regional Inspector submitted to the Regional Inspector General of the PC/INP Regional Command 8, 29 which reads: 28. In the police blotter from Hqs. Mayorga INP, page number 117, Entry Number 904 dated September 16, 1988 states that C2C Teofilo Kempis OIC presently assigned as Hqs Svc Coy, HRECOM 8, reported to this station that he shot to death one alyas Lolito Rivero of an unknown resident(sic) at Brgy Talisay, Mayorga, Leyte at more or less 3:00 o'clock in the afternoon of September 16, 1988. Said victim was known to be a suspect of some illegal activities (Kawat) on the said Brgy. He also reported that his parents were mistreated by said suspect. (Exh. "P-1") 30 it is quite evident that the accused himself was the informant. The trial court found that Entry No. 904, referred to in Exhibit "1", and Entry No. 905 in the Mayorga police blotter, do not state when Lolito Rivero was shot by the accused. Thereupon, on the basis of the testimonies of the witnesses for the prosecution, it concluded that the incident did in fact occur on 15 September 1988. The court's careful analysis reads: . . . While both entries 904 & 905 were entered on September 16, 1988, the accused who reported the killing of Lolito Rivero did not reveal in said entry No. 904 the exact date of the killing but the entry just stated that accused killed somebody at Bgy. Talisay, Mayorga, Leyte. The victim was Lolito Rivero. He also reported that his parents were maltreated by the said victim. The accused did not mention the date of the killing. To the mind of the Court, the date

September 16, 1988 is the date accused reported the incident but not the date Lolito Rivero was killed which was on September 15, 1988. Again, as to Entry No. 905 reported by Corazon de Paz Catanoy, the exact date of the incident was not also given by her. The entry only states: 'September 1988', no day was mentioned by Corazon de Paz Catanoy as she left immediately after reporting the incident. These entries Nos. 904 & 905 which are dated September 16, 1988 were used by the defense to destroy the credibility of the testimonies of prosecution, witnesses Rosalina Adonis, Urbano Adonis and Carmen Navarro as to the real date of the incident as the incident happened on September 15, 1988, which testimonies the Court lends full faith and credence as these prosecution witnesses testified in a clear, concise and straightforward manner and the Court finds no infirmity in their testimonies at the trial. The records of this case showed ample proof at the investigation made of these prosecution witnesses at the Headquarters, PC/INP Regional Command 8, Office of the Regional Inspector dated December 13, 1988 conducted at Camp September 21st movement, at Palo, Leyte which showed from the affidavits of these prosecution witness (sic) that the killing of Lolito Rivero happened on 'September, 1988 15, 1500H' meaning to say in military parlance as September 15, 1988 at 3:00 o'clock in the afternoon, which date dovetails with the declarations of the prosecution witnesses. 31 Then too, We find it rather strange that the accused merely assails the testimonies of Rosalina Adonis and Carmen Navarro only insofar as the date of the commission of the crime is concerned. He seems to have forgotten that two (2) other prosecution witnesses, namely Urbano Adonis 32 and Pascual Vega, 33 the latter being the Municipal Mayor of Mayorga at that time and who considers the accused as his grandson a claim not even rebutted by the latter collaborated the testimonies of Rosalina and Carmen. Accused further failed to remember that in his motion for reconsideration, 34 he attempted to assail Urbano's testimony and place Urbano himself in the same category as Rosalina and Carmen. Thus: Finally, and at the hazard of seeking a new trial, Rosalina Adonis, Urbano Adonis, and Carmen Navarro perjured themselves in open court by testifying that the incident took place on September 15, 1988. 35 The accused's deafening silence in his Brief as regards Urbano's declaration signifies nothing less than the recanting of his previous imputation that Urbano had likewise perjured himself. In an effort to save his theory that Lolito Rivero was shot on 16 September 1988, the accused now faults the trial court, by way of his fourth assigned error, for not giving him the opportunity to present the death certificate of the deceased Lolito Rivero, or at least consider the same in its decision. He asseverates that this certificate indicates that Lolito Rivero died on 16 September 1988. This claim is unfounded. Neither the records of the case nor the transcripts of the stenographic notes reveal that at any time before the case was submitted for decision,

counsel for the accused had sought to offer in evidence the said death certificate or compel its production by compulsory process. It was only in his motion for the reconsideration of the adverse decision that he referred to the death certificate, attaching to the said motion a hardly legible photocopy thereof as Annex "A". 36 A motion for reconsideration is not the proper procedural remedy for such a purpose. Hence, the same was correctly rejected by the trial court. This disposes of the fourth assigned error. Coming back to the second assigned error, We find the three(3) grounds invoked in support thereof to be without any merit. In the first place, while it may be true that the trial court should not have taken into consideration that portion of the Investigation Report of the Office of the Regional Inspector (PC/INP Regional Command 8), which is not included in Exhibit "1", to bolster its conclusion that the incident in question did in fact occur on 15 September 1988, such an erroneous recourse did not in any way affect the veracity of its findings which were based principally on the testimonies of the witnesses given in open court and subjected to rigorous scrutiny during cross-examination by counsel for the accused. We, of course, agree with the accused that since only a portion thereof, Exhibit "1", was offered in evidence, the trial court should not have taken the rest into account in the formulation of its conclusions. Section 17, Rule 132 of the Revised Rules of Court provides: SEC. 17. When part of transaction, writing of record given in evidence, the remainder admissible. When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (11a) Thus, in order that the rest of the Investigation Report may have been considered by the trial court, the prosecution should have offered the same in evidence 37 or moved that the entire document be received in evidence. 38 It bears stressing at this point that the Report attached to the records of Criminal Case No. 841 is only an uncertified plain copy which is actually annexed to an Order of the Provincial Prosecutor dated 31 March 1989. 39 This Order was not identified or offered in evidence. How it found its way into the records of the case was never explained. Hence, the trial court cannot even take judicial notice thereof. Nevertheless, stated above, this error was of no consequence. In the second place, the claim of an alleged restriction on the cross-examination of the prosecution witnesses is unfounded. A valid objection was interposed by the prosecutor on the ground of relevancy or materiality. After the court had sustained the objection, counsel for the accused did not further press his point. He did not even ask for a reconsideration of the ruling.

It having been conclusively established that the incident on question actually took place on 15 September 198, accused's first defense of alibi may be appropriately looked into. Unfortunately, however, this defense provides him of no relief. Prosecution witnesses Rosalina Adonis, Carmen Navarro and Urbano Adonis all saw him at the scene of the crime at the time of the killing. In fact, the first two were eyewitnesses to the actual shooting. Moreover, the accused further failed to prove that it was physically impossible for him to have been at the scene of the crime at the time the crime was committed. It is a fundamental juridicial dictum that the defense of alibi cannot prevail over the positive identification of the accused. 40 For it to prosper, it is not enough that, an accused show that he was somewhere else when the crime was committed; he must, more importantly, demonstrate that it was physically impossible for him to have been at the scene of the crime. 41 In the instant case, the trial court found that Barangay Cabacungan, Dulag, Leyte the place where the accused claims to have stayed in the afternoon of 15 September 1988 is only a few kilometers from Barangay Talisay, Mayorga, Leyte, the place where Lolito Rivero was killed. The municipalities of Dulag and Mayorga adjoin each other; considering that the accused has a motorcycle, it was then not physically impossible for him to have been in Talisay at the time of the killing. The accused's second defense based on the theory that the incident occurred on 16 September 1988 was erroneously considered by the trial court as self-defense. As earlier noted, however, the accused, via the manifestation of his counsel, had offered his oral testimony "to show that the incident happened under circumstances that could exempt or mitigate" his liability. 42 In other words, it would seem that the accused himself is not convinced that he had acted in self-defense. The exempting circumstance alluded to could, at most, be that prescribed in paragraph 4, Article 12 of the Revised Penal Code, viz.: 4. Any person who, while performing a lawful act with due care, cause an injury by mere accident without fault or intention of causing it. He claims that the trigger of his M-16 Armalite rifle "was accidentally pulled" by him while he and the victim were grappling for the possession of the said weapon. Thus: ATTY. TABAO: Q Mr. Kempis, what was the purpose in your going to the house of Lolito Rivero? A My purpose was to advice him that he should not be stealing and challenging people to a fight, because he is causing trouble to other persons. Q When Corazon de Paz told you that Lolito Rivero was at the kitchen, what if anything did you do?

A After telling Lolito to come out to the yard and Lolito Rivero came near, so I said to him: You, Lolito, do not steal again and do not be challenging people because you are causing them trouble. Q After telling Lolito Rivero, what did he say in reply? A He said: I will not steal anymore, sir, because I have just been released from jail, and so I said: Thank you. Then when I turned my back he immediately grabbed my M-16 because at that time I was carrying my M-16. Q Where was your M-16 located at the very moment? A It was slung on my left shoulder. Q Now, after Lolito Rivero grabbed your M-16 rifle, what happened? A We grappled for the possession of the gun and in the process both of us fell down. Q Now, after both of you fell down, what if anything happened? A The trigger was accidentally pulled. Q Now, who was hit after the trigger of the M16 was pulled? A He was the one hit because I was holding the gun by the trigger, while he was holding the muzzle portion. Q How many shots were fired accidentally? A Three (3) successive shots." 43 (underscoring supplied for emphasis). This allegation of an accidental pulling of the weapon's trigger hardly deserves even the most liberal or sympathetic consideration. As aptly observed by the trial court, the accused is a "trained soldier" 44 while the victim was "defenseless . . .who . . . was not even armed with a bolo or any weapon and,. . . untrained . . . in firearms . . . . " 45 The characterization by the court of the victim was not even rebutted by the accused in his Brief. And even if We are to assume, for the sake of argument, that the victim did grab the weapon which was then slung over the accused's left shoulder, the latter if indeed he did not have murder in his heart could have easily warded off the hand of the victim which was allegedly only holding the muzzle of the rifle. Instead of taking this defensive posture, however, the accused held on to the trigger, thereby manifesting an unequivocal intent to fire the gun. Furthermore, if indeed he

had realized that the trigger was accidentally pulled, he, being a trained soldier, could have easily stopped the firing to prevent further injury to the victim, who was then already lying on the ground. Yet, the accused did not stop firing; as a result, the victim sustained five (5) gunshot wounds. The transcript of the stenographic notes of the accused's testimony partly records these facts, thus: COURT: It is a fact that he pulled the trigger because he was holding the muzzle. Let him answer. WITNESS: A That is true, because when he grabbed my gun, we grappled and he was able to hold the middle portion of the gun, while I was able to hold the handle or trigger portion and in the process of grappling I was already on top of him and that was when the trigger was accidentally pulled. PROS. MERIN: Q What was the position of the victim at that time when you were able to shoot him? A Laying (sic) on the ground. Q You mean you were standing up? A Not yet, we were still grappling and both of us were still on the ground. Q That means both of you were still on the ground when the three shoots were made that hit the victim? A Yes, we were still laying (sic) on the ground. Q On the first shoot, which portion of the body of the victim was hit? A I was not sure what part of his body because I was apprehensive as I was fighting for my life. Q How about the second shot, which portion of the body of the victim was hit? A I was not able to clearly take note. Q But it is a fact now that it was the victim who was only hit?

A Yes sir. Q And he was hit while he was on the ground? A He was hit while he was still on the ground and while I was also still on the ground. 46 Finally, by his own Exhibit "1" , is quite obvious that the accused was not inspired by any noble as he sought the victim out in the afternoon of 15 September 1988 (or, as per his account, 16 September 1988). The accused's purpose in looking for the victim was to confront the latter for his alleged "illegal activities" and to avenge the wrong he had done to the accused's parents. Per said Exhibit "1" the accused reported to the Mayorga police station that "his parents were mistreated" by the victim. As this Court sees it, the accused wanted to impress upon the victim that he (accused) can enforce the law by himself and exact punishment for infractions thereof without recourse to the proper authorities. If his purpose in visiting the victim was merely: A . . . to advice him that he should not be stealing and challenging people to a fight, because he is causing trouble to other persons. 47 it was necessary for him have brought a deadly weapon. It is to be noted here that the accused does not even assign as an error in his Brief the trial court's alleged failure to appreciate in his favor the exempting circumstance which he had manisfested immediately before testifying on direct examination, or consider his plea of selfdefense." He realizes only too well the futility of their invocation. The trial court ruled that treachery attended the killing of Lolito Rivero; hence, the accused is his guilty of Murder as defined and penalized in Article 248 of the Revised Penal Code. We agree. Lolito Rivero was unarmed. The attack was sudden, unprovoked, unexpected and done in a manner which directly and specially insured the execution of the act without any risk to the accused arising from defense which the victim, then unarmed, may have made. 48 No mitigating circumstance has been duly proven or even invoked in the appeal. The appealed decision must perforce be affirmed, except as to the indemnity which must be increased to P50,000.00 in accordance with the prevailing jurisprudence. WHEREFORE, the appealed decision in Criminal Case No. 481 of Branch 10 of the Regional Trial Court of the Eighth Judicial Region is hereby AFFIRMED with the modification as to the indemnity, which is hereby increased to P50,000.00.