Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 173780 March 21, 2011
METROPOLITAN BANK AND TRUST COMPANY, Petitioner,
vs.
MARINA B. CUSTODIO, Respondent.
D E C I S I O N
SERENO, J .:
This civil case is essentially a demand by a bank for the recovery of a sum of money from one of its
tellers who allegedly failed to account for funds entrusted to her, amounting to six hundred thousand
pesos (PhP600,000).
Petitioner Metropolitan Bank and Trust Company (Metrobank) is a banking corporation. On the other
hand, respondent Marina Custodio is a bank teller employed at the Laoag City branch of petitioner
Metrobank.
On 13 June 1995 at 8:18 a.m., respondent Custodio reported for work in petitioner banks branch in
Laoag City. At the start of the banking day, respondent Custodio received loose money (picos)
4
for
the days business and was assigned as Teller No. 3. In the course of performing her duties,
respondent Custodio handled several cash transactions with the customers on behalf of petitioner
bank.
At 12:10 p.m., a cash transfer of two hundred thousand pesos (PhP200,000) was made from Teller
No. 1 to respondent Custodio. Petitioner Metrobank explained that, usually, a transfer of money from
one teller to another occurs if the latter "needs money, maybe to pay for the withdrawal." However,
petitioner bank pointed out that it was unnecessary for respondent Custodio to borrow from another
teller at that time, since respondent had sufficient cash on hand to cover a withdrawal in the same
amount as the cash transfer.
At 12:25 p.m., respondent Custodio was reported to have taken her lunch break alone and returned
to work thereafter at 1:12 p.m.
The security guard for the Laoag City branch of petitioner Metrobank, Mr. Hannibal Jara, testified
that respondent Custodio would ordinarily go out for lunch at noon with another teller, Ms. Mary
Paula Castro. However, he explained that the two employees did not go out for lunch together that
day, since another teller was on leave. Mr. Jara also noticed that when respondent Custodio went
out for lunch, she was carrying a shoulder bag and a paper bag. He, however, did not check the
contents of the bags carried by respondent.
At the close of banking hours, respondent Custodio balanced her transactions for the day and turned
over the funds to the banks cash custodian, Ms. Marinel Castro, in the amount of two million one
hundred thirteen thousand five hundred pesos (PhP2,113,500). Ms. Marinel Castro acknowledged
receipt of the bundled cash turned over and signed a Cash Transfer Slip.
around 5:05 p.m., after all tellers had turned over their cash on hand, Ms. Castro discovered that
there was a shortage amounting to PhP600,000.
18
She notified Mr. Adriano Lucas, the branch
manager, of the missing money.
19
The latter then instructed the cashier and the accountant to review
all cash transactions to find out the reason for the cash shortage.
20
However, no errors were found in
the records of the transactions, and the shortage was confirmed.
21

Thereafter, Mr. Lucas instructed all bank employees to check all desks, drawers and even personal
bags.
22
The guards were likewise instructed to search anybody going out of the office from that time
on.
23
However, the missing money was not found.
24
Thus, the amount "CASH IN VAULT" was
reported to be short of PhP600,000.
25

Respondent Custodio left work that day, together with some of the employees, at 8:30 p.m.
26

Later on, petitioner Metrobank alleged that it was able to recover eight bill wrappers only for bundles
of five-hundred-peso bills (without the bills thereunder) that purportedly corresponded to the missing
four hundred thousand pesos (PhP400,000).
27
These bill wrappers bore a rubber stamp "PEPT-3" for
Teller No. 3.
28
Respondent Custodio countered that the discovery of the bill wrappers being attributed
to her care was never mentioned at the time the cash shortage occurred, and that these wrappers
could have been obtained subsequently by stamping unmarked ones.
29

Respondent Custodio was allowed to continue to render services as a teller in petitioner banks
Laoag City branch from 14 June 1995 to 23 June 1995.
30
She argued that had she been found
responsible for the cash shortage, then she would not have been allowed to continue working as a
teller on subsequent days.
31

On 15 June 1995, investigators from the regional office of petitioner Metrobank as well as from its
Department of Internal Affairs, Head Office, arrived at the Laoag City branch to investigate the cash
shortage.
32
On a one-on-one basis, the investigators confronted the employees, including
respondent Custodio.
33
After these meetings, Ms. Castro, the cash custodian, allegedly admitted that
she received and acknowledged the cash bundles and signed the Cash Transfer Slip for the funds
turned over by respondent Custodio.
34

On 16 June 1995, employees of the Laoag City branch of petitioner Metrobank including the new
accounts clerk, the remittance clerk and all the other tellers were made to take polygraph tests at
the National Bureau of Investigation, except for respondent Custodio.
35
Respondent was eight
months pregnant at that time and, thus, was not required to take the lie detector test.
36

On 22 June 1995, petitioner Metrobank filed a Complaint for a sum of money with ex-parte
application for a writ of preliminary attachment, praying that respondent Custodio pay the amount of
PhP600,000, including attorneys fees and costs of suit.
37
The trial court subsequently granted the
application for a writ of preliminary attachment against the properties of respondent Custodio.
38

On 23 June 1995 at around 1:30 p.m., while respondent Custodio was performing her duties as a
teller, she was served the trial courts summons
39
and a copy of petitioner Metrobanks Complaint,
including the attachment writ.
40

After she was served the summons, respondent Custodio was supposedly caught bringing out a
tellers copy of the journal print transactions with the related cash transfer slips for that particular
banking day (23 June 1995).
41
These bank records were confiscated from respondent Custodio,
when they were discovered in her dress pocket during a body search done on all employees leaving
the office.
42

Respondent teller later explained that she had mistakenly brought out these records because she
was no longer allowed to go inside the tellers cage to file the transaction journal, after she was
served the summons and Complaint.
43
She claimed that, at that time, she was confused by the
banks Complaint filed against her, so she placed the transaction journal in her right pocket.
44
It was
admitted by the bank manager, however, that no cash shortage occurred on that day.
45

Thereafter, respondent Custodio was relegated to a non-accountable position.
46

Because of her alleged attempt to take the journal print transactions, Mr. Lucas, the branch
manager, recommended that respondent Custodio be preventively suspended.
47
Thereafter,
respondent received an Inter-Office Letter
48
requiring her to explain why no disciplinary action should
be meted out to her for her attempt to "surreptiously bring out bank records."
49
After respondent teller
filed her explanation, petitioner Metrobank found it unacceptable and suspended her from work for
seven days without pay.
50

On 27 June 1995, respondent Custodio requested from petitioner Metrobank a copy of the Cash
Transfer Slip that was signed by the cash custodian, Ms. Castro.
51
In reply, Mr. Lucas notified
respondent that her request would be sent to the Head Office of petitioner Metrobank for
approval.
52
This request was, however, not acted upon by petitioner.
53
Despite respondents motion
to have the Cash Transfer Slip produced in the trial proceedings
54
and the manifestation of petitioner
Metrobanks counsel that it would present the slip,
55
the document was not entered into the records.
On 06 July 1995, respondent Custodio filed an Answer with Compulsory Counterclaim, denying the
allegations of petitioner Metrobank that she was responsible for the cash shortage.
56
Respondent
argued that Ms. Castro, not she, was the one who incurred the cash shortage, since the loss was
discovered only after the cash and other accountabilities were turned over to her, as cash
custodian.
57

After the case was submitted for decision,
58
the trial court rendered its Decision granting petitioner
Metrobanks Complaint and ordering respondent Custodio to pay the amount of six hundred
thousand pesos (PhP600,000) plus interest.
59

On 06 August 2003, respondent teller subsequently filed a Notice of Appeal.
60

On 29 July 2004, respondent Custodio, thru her counsel Atty. Oliver Cachapero, filed a Brief for the
Appellant.
61
Meanwhile, petitioner Metrobank submitted a Brief for the Appellee on 15 September
2004.
62

On 16 July 2006, the Court of Appeals (10th Division)
63
found respondent Custodios appeal
meritorious and reversed the trial courts Decision:
WHEREFORE, the appeal being meritorious, the assailed decision dated July 25, 2003 of the RTC,
Branch 11, Laoag City, in Civil Case No. 10814 is REVERSED and SET ASIDE. Consequently, the
plaintiff-appellees complaint against defendant-appellant is DISMISSED.
64

On 10 August 2006, petitioner Metrobank, through the Sediego & Associates Law Office, in
collaboration with Atty. Cachapero, filed in this Court a Motion for Extension of Time to File Petition
for Review on Certiorari.
65
On 28 August 2006, Atty. Cachapero informed the Court that he had
withdrawn as counsel for petitioner Metrobank.
66

Respondent Custodio averred, however, that she received, through counsel, a separate Petition for
Review on Certiorari filed by petitioner Metrobanks counsel, Atty. Cachapero, on 07 August 2006.
67

Within the thirty-day extension period granted by the Court,
68
petitioner Metrobank filed the Petition
for Review under Rule 45, through its new counsel of record, Sediego & Associates Law Office.
69
On
30 October 2007, respondent Custodio submitted her Comment on the instant Petition.
70
In
response, petitioner Metrobank subsequently filed a Reply on 31 January 2008.
71

After the instant Petition was given due course,
72
the parties submitted their respective
memoranda.
73

Before resolving the substantial legal issue, the Court will first resolve the procedural matters with
respect to the propriety of raising questions of fact in the instant Petition and the receipt by
respondent Custodio of another Petition through Atty. Cachapero.
In a petition for review on certiorari filed under Rule 45, the issues that can be raised are limited only
to questions of law.
74
Questions of fact are not reviewable in a Rule 45 petition.
75
Nonetheless, this
rule permits of exceptions, which the Court has long since recognized.
76

Unless the party availing of the remedy clearly demonstrates at the first opportunity that the appeal
falls under any of the established exceptions, a Rule 45 petition that raises pure questions of fact
shall be subject to dismissal by the Court, since it is principally not a trier of facts. Although the
emerging trend in the Courts rulings is to afford all party-litigants the amplest opportunity for the
proper and just determination of their cause,
77
this is not a license for erring litigants to violate the
rules with impunity.
78

Respondent Custodio reasons that the banks Petition before the Court seeks a review of factual
issues, and that such kind of review is not countenanced by the Rules.
79
Although she recognizes
the exceptions to the prohibition against raising a question of fact in a Rule 45 petition, respondent
insists that the instant Petition fails to measure up to any of them, which would have permitted a
review of the factual circumstances of the case.
80
Respondent Custodios bare allegation that the
present controversy
81
does not fall within the established exceptions fails to convince the Court.
The difference in appreciation by the trial court and the appellate court of the evidence with respect
to the circumstances surrounding the cash shortage is prima facie justification for the Court to review
the facts and the records of the case. While factual issues are not within the province of this Court,
as it is not a trier of facts and is not required to examine or contrast the oral and documentary
evidence de novo, this Court has the authority to review and, in proper cases, reverse the factual
findings of lower courts when the findings of fact of the trial court are in conflict with those of the
appellate court.
82

In her Comment, respondent Custodio likewise assails the separate Petition she received from Atty.
Cachapero, the former counsel of petitioner Metrobank.
83
She claims that the separate Petition
should not be entertained by the Court, since there is no proof of payment of the docket fees or proof
of service. Moreover, the Petition coming from Atty. Cachapero should preclude the instant Petition
filed by the banks new counsel, Sediego & Associates. Aside from the fact that this issue is not
raised in respondents Memorandum, nothing in the record shows that the separate Petition signed
by Atty. Cachapero was ever filed and docketed with the Court.
Courts will not entertain and act on petitions that have yet to be properly filed, even if a copy has
been served on the other party. Moreover, the separate Petition that came into the hands of
respondent has no bearing on this case, since Atty. Cachapero has already withdrawn as counsel
for petitioner Metrobank. Therefore, the Court will only confine itself to the instant Petition, which was
duly filed by the banks new counsel and submitted within the extended reglamentary period, after
docket fees were paid and the Court had given due course to it.
84

The Court now proceeds to the substantial merits of the case.
The resolution of the instant Petition hinges on whether there is a preponderance of evidence to
establish that respondent Custodio incurred a cash shortage of PhP600,000 at the close of the
banking day on 13 June 1995 and is therefore liable to pay petitioner Metrobank the said amount.
85

In civil cases such as in the instant action for a sum of money, petitioner Metrobank carries the
burden of proof and must establish its cause of action by a preponderance of evidence.
86
The
concept of preponderance of evidence refers to evidence that is of greater weight or more
convincing, than that which is offered in opposition to it; at bottom, it means probability of truth.
87

The Court sustains the appellate courts finding that petitioner Metrobank failed to discharge its
burden of proving that respondent Custodio was responsible for the cash shortage. Petitioner
Metrobanks evidence on record does not sufficiently establish that respondent Custodio took the
funds that were entrusted to her as a bank teller.
The issue of respondent Custodios civil liability for the cash shortage turns on whether she is the
proximate or direct cause of the loss. There is nothing on record that will show that there were any
missing bundles of one-thousand-peso and five-hundred-peso bills when respondent Custodio
turned over the funds to the cash custodian, Ms. Marinel Castro. As the appellate court correctly
found, the Cash Transfer Slip was the best evidence that respondent Custodio had properly turned
over the amounts in her care, and that the cash custodian received them without any shortage.
88

Although the Cash Transfer Slip was not introduced in evidence, Ms. Castro admitted having signed
it. Had there been any cash shortage at that point, then the cash custodian could have refused to
sign the Cash Transfer Slip, and respondent Custodio could have been required to account for any
missing funds. However, having acknowledged receipt of the funds from respondent, it is reasonably
presumed that Ms. Castro found nothing out of order in respondents records of cash transactions
and the amounts transferred.
Petitioner Metrobank admits the existence of the cash transfer slip and the custodians signature
thereon. It reasons, though, that it was not unusual for the custodian to sign the slip without counting
the money, since she trusted her co-employees. Petitioner seeks to impress upon this Court that the
custodians negligence was in good faith and should not exonerate respondent Custodio from the
cash shortage.
As the Court of Appeals correctly surmised, Ms. Castros procedural lapse in trusting her co-
employees by automatically signing the cash transfer slip without ensuring its correctness
contributed significantly to the loss of the banks money.
89
The proper accounting of funds through
the cash transfer slip was precisely instituted as a safety mechanism to trace the flow of money from
one employee to another. Specifically, the cash transfer slip was meant to ensure that the tellers had
properly counted the money that they turned over to the cash custodian.
90
If Ms. Castro, as cash
custodian, had not been remiss in her responsibilities, petitioner Metrobank would have been able to
identify who among the tellers failed to turn over the proper amount as reflected in the Cash Transfer
Slip. The cash custodian is not to be admonished for reposing her trust in her co-employees;
nonetheless, she was negligent, insofar as ignoring established bank procedures meant to prevent
loss, especially when one of her co-employees had broken that trust.
The Court of Appeals underscored the "highest degree of diligence" from the banking business,
considering that it is impressed with public interest and of paramount importance.
91
However, as
petitioner Metrobank pointed out,
92
the exacting standard of diligence required by the appellate court
pertains to the relationship between a bank and a depositor, and not between a bank and its
employees. In this case, no depositors were affected, as the transactions during that day were
accounted for, and no error was found in the recording thereof. The relevant standard of diligence
that we need to examine here is that of a bank teller who was entrusted monies by the bank and
who may have failed to account for them.
93
In this case, petitioner Metrobank was unable to prove
that respondent Custodio failed to exercise the necessary degree of diligence that would justify the
banks action for damages. Respondent Custodio was not remiss in her duties as all her dealings
with the banks money were clearly reflected on the records of the bank.
If petitioner bank had to attribute any negligence on the part of its employees, then it should have set
its sights on the acts and/or omissions of Ms. Marinel Castro, the cash Custodian, and Mr. Hanibal
Jara, the security guard. If theft of the money cannot be established, and negligence is the only legal
phenomenon that is evident on the records, then the proximate cause of the loss of the banks
PhP600,000 is Ms. Castro, who, as cash custodian, disregarded established procedures and blindly
signed the tellers cash transfer slips without counting the money turned over to her. Meanwhile, Mr.
Jara failed to inspect respondent Custodios belongings as she left the bank on that day for
lunch.1vvph! 1 Despite his own suspicions of respondent tellers conduct, he ignored them and decided not
to check the bags. This omission can conceivably be considered as a grave omission of his duties
as a security guard. The Court of Appeals succinctly explained both matters in this wise:
The foregoing circumstance is not sufficient basis for the court to assume that the said paper and
should bag contained the cash shortage (P600,000). Ordinary diligence dictates that as a security
guard, Jara should have checked and inspected the things of all the bank employees, especially
those who were in charge of handling money before going out of the premises. Upon seeing a teller
going out for lunch with an expandable shoulder bag and paper bag, prudence dictates that the
security guard should have inspected and checked the tellers bags. Bu the security guard failed to
do so. It should be noted that the security guards testimony reveals that the said shoulder bag had
been used by appellant even prior to June 13, 1995, and on said days, there were no shortages.
x x x
The signature of the cash custodian in the transfer slip means that the amount reflected therein
corresponds to the bills turned over to her. The cash transfer slip is the best evidence that appellant
turned over the amount of P2,113,500.00 on June 13, 1995. The cash transfer slip signed by the
cash custodian was not presented despite the written requires of appellant. However, the existence
of the signed transfer slip was admitted by the cash custodian. She even admitted that she did not
follow the banks standard operating procedure to count the money delivered by the teller to her
before signing the cash transfer slip, x x x.
x x x
In her testimony, the cash custodian, attested that it was not only the cash transfer slip of appellant
which she signed without counting the money submitted to her, but also those of the other tellers.
Under the circumstance, it cannot be determined at what point of the transactions the shortage
occurred. But the cash custodian was negligent in not following the standard operating procedure of
the bank. Her negligence was the root cause why the cash shortage was not discovered earlier
because, had she counted first the money bills delivered to her before signing the cash transfer slip,
the shortage could have been detected. x x x
94
(Emphasis supplied)
Verily, it is highly doubtful that Ms. Castro and Mr. Jara had performed the necessary care and
caution required of bank employees in this instance, which directly contributed to the loss of
PhP600,000 for petitioner Metrobank.
Considering the failure of the cash custodian and the security guard to abide by the procedural
safeguards, petitioner bank is now left to find other evidence to determine the person liable for the
cash shortage. The Court, however, is not sufficiently convinced that petitioner Metrobank has
introduced a preponderance of circumstantial evidence to show that respondent Custodio was liable
for the missing bundles of cash worth PhP600,000.
As regards respondents receipt of PhP200,000 from another teller during the course of the business
day, it was never demonstrated that the cash transfer was highly irregular. Neither was it
conclusively proven that respondent took the money that was transferred by the other teller.
During one of the hearings, Mr. Lucas, the branch manager, explained that it was unusual for
respondent Custodio to have requested a cash transfer, considering that she had sufficient funds to
cover the amount.
95
However, as the appellate court explained, the trial court should not have
considered his testimony in this respect, since the judge had ordered that particular statement
stricken out during the trial court proceedings.
96
A fact elicited from a witness during testimony
cannot be considered in the disposition of the case if it has been ordered stricken out, unless it is
established by any other evidence on record.
97

Even if the Court were to take cognizance of the bank managers statement, the unusual cash
transfer does not tend to prove that respondent Custodio took the money. There was no reason why
respondent Custodio would appropriate several bundles of cash from another teller, because the
transfer would be reflected in her transaction journals and those of the other teller anyway. Besides,
respondent would be held to account for all the transactions and funds at the end of the banking day.
If at all, the cash transfer, which was reflected in the records, indicated a movement of funds from
one teller to another, but did not establish the movement from the banks coffers to respondent
Custodios pockets. In any case, based on the transaction journal, no error was found in the records,
as all the entries were duly accounted for by respondent Custodio and the other teller.
The security guards testimony that respondent Custodio left for lunch alone with an expandable
shoulder bag and a paper bag is inadequate proof for the Court to believe that she carted away the
missing cash. Although she ordinarily took her lunch break at noon with another teller Ms. Mary
Castro the same security guard explained that respondent deviated from her usual practice,
because one of the tellers was on leave. Presumably, respondent Custodio had to take her lunch
alone, rather than go with Ms. Castro. Otherwise, the branch would have been left under-staffed and
unable to serve the branchs clients fully. The daily time records submitted by petitioner Metrobank
even show that there were other instances in which respondent did not have lunch together with her
co-teller, yet, no cash shortage was reported.
98

On the other hand, the bags carried by respondent Custodio when she went out for lunch were
never inspected by the security guard. The latter failed to search these bags, which could have
determined whether respondent teller had carried away the banks missing money during her break.
As it were, the security guard saw nothing unusual or out of the ordinary, with respect to respondent
Custodios bags that would have aroused his suspicion and prompt him to inspect her belongings
before she left.
Meanwhile, the eight wrappers of five-hundred-peso bills allegedly recovered by petitioner
Metrobank are likewise of doubtful credibility and are inconclusive in determining liability. The bill
wrappers bear the stamp assigned to Teller No. 3, who is respondent Custodio. Yet, as respondent
explains, these stamped wrappers can easily be procured by stamping unmarked bill wrappers with
tools and materials that are readily available to petitioner Metrobank. Moreover, the wrappers offered
into evidence by petitioner bank do not bear respondent Custodios initials to prove that the bundles
of money which these wrappers correspond to were in respondents care, as is the common practice
in the branch and as testified to by the cash custodian, Ms. Castro:
Q: Madam witness, going over Exhibit G, you claim that these bill wrappers belong to defendant
Marina Custodio because all these bill wrappers are stamped "PEPT-3"?
A: Yes, sir.
Q: Despite the fact that Marina Custodio did not affix her signature on these bill wrappers, you claim
that these belong to her just by the mere stamp?
A: Yes, sir.
Q: Is it not a fact, madam witness, that the date when these ball wrappers are turned over to you is
supposed to be reflected?
A: It is supposed to reflect the date, sir; in fact, it is supposed to contain their signatures.
99

Moreover, the circumstances surrounding the discovery of these bill wrappers by petitioner
Metrobank remain unclear. Despite the bank managers instructions and the bank employees efforts
in conducting a thorough search for the missing cash bundles, neither the money nor the bill
wrappers were found on the day of the cash shortage. The cash custodian who identified these bill
wrappers did not explain how she came to discover them.
100

In addition, respondent Custodio was never confronted with these wrappers when the cash shortage
was discovered. Neither were the wrappers presented to her when the banks investigators
conducted a one-on-one meeting with the employees two days after the incident. Not even a report
by the investigation team of petitioner Metrobank regarding the incident was submitted to show when
the bill wrappers were discovered, or when respondent Custodio was suspected of taking the
money.
101

It appears highly unlikely that respondent Custodio would be able to cart away several bundles of
cash without being detected at all, only to carelessly leave the purported wrappers of the stolen
cash, wrappers stamped with marks that might lead to her identity. The sudden appearance of these
bill wrappers begs the question as to where and when they were discovered by petitioner
Metrobank. If these empty bill wrappers were allegedly found to be under the account of respondent
Custodio soon after the cash shortage was discovered, then there was no reason for petitioner
Metrobank to have allowed her to continue with her duties in handling bank funds. Yet, respondent
Custodio was subsequently permitted to report for work after the incident until 23 June 1995.1wphi 1
Contrary to the banks assertions in the Complaint,
102
respondent Custodio was never asked to
account for and/or turn over the missing money. Neither did the bank, prior to the service of the
summons and the complaint, demand that she return the money. Respondent Custodio was only
informed that she was accused of stealing the missing funds when the summons was served upon
her on 23 June 1995.
103
Indeed, after the discovery of the cash shortage, every employee was held
suspect,
104
and respondent was never singled out for the loss until petitioner bank filed the Complaint
with the trial court.
Petitioner Metrobank also argues that respondent Custodios prior involvement in a cash shortage in
its Cubao branch is admissible as evidence to prove a scheme or habit on her part.
105

The general evidentiary rule is that evidence that one did or did not do a certain thing at one time is
not admissible to prove that one did or did not do the same or a similar thing at another
time.
106
However, evidence of similar acts may be received to prove a specific intent or knowledge,
identity, plan system, scheme, habit, custom or usage and the like.
107
In Citibank N.A., (Formerly
First National City Bank) v. Sabeniano, the Court explained the rationale for this rule:
The rule is founded upon reason, public policy, justice and judicial convenience. The fact that a
person has committed the same or similar acts at some prior time affords, as a general rule, no
logical guaranty that he committed the act in question. This is so because, subjectively, a man's
mind and even his modes of life may change; and, objectively, the conditions under which he may
find himself at a given time may likewise change and thus induce him to act in a different way.
Besides, if evidence of similar acts are to be invariably admitted, they will give rise to a multiplicity of
collateral issues and will subject the defendant to surprise as well as confuse the court and prolong
the trial.
108

Evidence of similar acts may frequently become relevant, especially to actions based on fraud and
deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into
such person's motive or intent; it uncovers a scheme, design or plan, or it reveals a mistake.
109

In this case however, respondent Custodios prior involvement in a cash shortage in the banks
Cubao branch does not conclusively prove that she is responsible for the loss of PhP600,000 in the
Laoag City branch, subject of the instant case.
Although the previous cash shortage in Cubao could possibly shed light on the intent, scheme or
habit of respondent Custodio, that previous cash shortage is not sufficient to affirm a definitive
finding of fact that she took the funds in the Laoag City branch. If the prior cash shortage in Cubao
showed a reasonable intent or habit on the part of respondent, then there was no reason for
petitioner Metrobank to continue to employ her, considering the degree of trust and confidence
required of a bank teller. Nevertheless, respondent Custodio continued to serve the bank even after
the case in petitioner Metrobanks Cubao branch. Her continued employment was an affirmation that
she was still worthy of the banks trust, insofar as she was allowed to continue to handle sums of
money in the Laoag City branch.
With respect to the taking of the journal transaction slip by respondent Custodio, no correlation was
ever established between this incident and the cash shortage subject of the instant case. The same
journal transaction slip, which respondent allegedly attempted to take away, has to do with
transactions occurring on 23 June 1995. It does not pertain to the transactions on 13 June 1995, the
day of the cash shortage. No reasonable explanation has been offered regarding how this incident is
relevant to the instant case or how it tends to prove that respondent Custodio was the one
responsible for a cash shortage that occurred ten days earlier. This incident was distinct and
separate from the cash shortage, as shown by the fact that she was subsequently penalized with a
seven-day preventive suspension for the incident on 23 June 1995, a penalty that is not the subject
of the instant proceedings.
In any event, respondent Custodio sufficiently explains that the incident arose from confusion on her
part. It is understandable that at the time she was caught with the journal transaction slip, she was
just confronted with petitioner Metrobanks serious accusations that she had taken the missing
funds. When the complaint was presented to her and she was barred from entering the tellers cage,
respondent must have been so confused that she mistakenly placed the transaction journals in her
pocket. That no cash shortage occurred at that time emphasizes that there was no direct and causal
link between the transaction journal slip and the cash shortage.
It is not denied that petitioner Metrobank discovered the lost money after all the tellers had turned
over their cash for the day, and the cash custodian had signed the Cash Transfer Slip. Without the
cash custodian counting the money before signing the Cash Transfer Slip, many probabilities
arise.
110
The shortage may have occurred even prior to the turnover of the cash by respondent
Custodio. The missing cash may have also resulted from the transfers done by the other tellers, and
not necessarily by respondent Custodio. It may have been taken away during the counting of the
money by the cash custodian and the other tellers themselves.
Petitioner Metrobank even argued that respondent Custodio may have taken the money after the
cash custodian had returned the amounts turned over to the tellers and other employees for sorting
and counting.
111
To begin with, this position is directly contrary to petitioner Metrobanks theory that
respondent Custodio carried away the money in the morning of 13 June 1995. In addition, the cash
custodian had asked for assistance from the other bank employees to speed up the counting and
sorting, which necessarily opens the possibility that any of those involved could have been a suspect
as well.
112
Respondent Custodio even argued that the money she had counted and sorted were
funds turned over by other tellers, and not the same funds she herself had given to the cash
custodian.
113
More disconcerting is the failure of the cash custodian to even remember who were the
employees who had helped her in counting the cash at that time, since everybody was in a hurry to
go home.
114
The procedural shortcuts resorted to by petitioner banks employees threw open the
doors to a multitude of probable scenarios, leading to ambiguity in determining civil liability.1wphi1
The secondary and incidental facts offered by petitioner Metrobank do not prove the primary factual
issue that it wishes to establish in demanding the instant relief from the courts that respondent
Custodio took the money.
Regrettably, the evidence offered by petitioner Metrobank is insufficient to convince to the Court that
the probability of respondent Custodios having taken the money is greater than its having been
taken by another employee. Verily, weighing the evidence on record, the Court finds that petitioner
Metrobank failed in its burden of proving by a preponderance of evidence that respondent Custodio
took PhP600,000 from petitioner Metrobank and is liable to return the amount to the latter.
In view of the foregoing, the Court DENIES the instant Petition for Review filed by Metropolitan Bank
and Trust Company. The Court of Appeals 14 July 2006 Decision, which dismissed the complaint
against respondent Marina Custodio, is hereby AFFIRMED.
SO ORDERED.






Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 109172 August 19, 1994
TRANS-PACIFIC INDUSTRIAL SUPPLIES, INC., petitioner,
vs.
The COURT OF APPEALS and ASSOCIATED BANK, respondents.
Gancayco Law Offices for petitioners.
Jose A. Soluta, Jr. & Associates for private respondent.

BIDIN, J .:
In this petition for review on certiorari, petitioner Trans-Pacific Industrial Supplies, Inc. seeks the
reversal of the decision of respondent court, the decretal portion of which reads:
WHEREFORE, the decision of June 11, 1991 is SET ASIDE and NULLIFIED; the
complaint is dismissed, and on the counterclaim, Transpacific is ordered to pay
Associated attorney's fees of P15,000.00.
Costs against Transpacific.
SO ORDERED. (Rollo, p. 47)
Sometime in 1979, petitioner applied for and was granted several financial accommodations
amounting to P1,300,000.00 by respondent Associated Bank. The loans were evidenced and
secured by four (4) promissory notes, a real estate mortgage covering three parcels of land and a
chattel mortgage over petitioner's stock and inventories.
Unable to settle its obligation in full, petitioner requested for, and was granted by respondent bank, a
restructuring of the remaining indebtedness which then amounted to P1,057,500.00, as all the
previous payments made were applied to penalties and interests.
To secure the re-structured loan of P1,213,400.00, three new promissory notes were executed by
Trans-Pacific as follows: (1) Promissory Note No. TL-9077-82 for the amount of P1,050,000.00
denominated as working capital; (2) Promissory Note No. TL-9078-82 for the amount of P121,166.00
denominated as restructured interest; (3) Promissory Note No. TL-9079-82 for the amount of
P42,234.00 denominated similarly as restructured interest (Rollo. pp. 113-115).
The mortgaged parcels of land were substituted by another mortgage covering two other parcels of
land and a chattel mortgage on petitioner's stock inventory. The released parcels of land were then
sold and the proceeds amounting to P1,386,614.20, according to petitioner, were turned over to the
bank and applied to Trans-Pacific's restructured loan. Subsequently, respondent bank returned the
duplicate original copies of the three promissory notes to Trans-Pacific with the word "PAID"
stamped thereon.
Despite the return of the notes, or on December 12, 1985, Associated Bank demanded from Trans-
Pacific payment of the amount of P492,100.00 representing accrued interest on PN No. TL-9077-82.
According to the bank, the promissory notes were erroneously released.
Initially, Trans-Pacific expressed its willingness to pay the amount demanded by respondent bank.
Later, it had a change of heart and instead initiated an action before the Regional Trial Court of
Makati, Br. 146, for specific performance and damages. There it prayed that the mortgage over the
two parcels of land be released and its stock inventory be lifted and that its obligation to the bank be
declared as having been fully paid.
After trial, the court a quo rendered judgment in favor of Trans-Pacific, to wit:
WHEREFORE, premises considered and upon a clear preponderance of evidence in
support of the stated causes of action, the Court finds for the plaintiffs and against
defendant, and
(a) declares plaintiff's obligations to defendant to have been already
fully paid;
(b) orders defendant to execute and deliver to plaintiffs a release on
the i September 11, 1981 mortgage over TCT (50858)
S-10086 and TCT (50859) S-109087, and ii December 20, 1983
chattel mortgage, within fifteen (15) days from the finality hereof;
(c) orders defendant to pay plaintiffs Romeo Javier and Romana
Bataclan-Javier the sum of P50,000.00 as and for moral damages;
and
(d) orders defendant to pay plaintiffs the sum of P30,000.00 as
attorney's fees, plus expenses of the suit.
Defendant's counterclaims are dismissed for lack of merit.
With costs against defendant.
SO ORDERED. (Rollo, p. 101)
Respondent bank elevated the case to the appellate court which, as aforesaid, reversed the decision
of the trial court. In this appeal, petitioner raises four errors allegedly committed by the respondent
court, namely:
I
RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT THE ACCRUED
INTEREST IN THE AMOUNT OF 492,100.00 HAS NOT BEEN PAID WHEN
ARTICLE 1176 OF THE CIVIL CODE PROVIDES THAT SUCH CLAIM FOR
INTEREST UPON RECEIPT OF PAYMENT OF THE PRINCIPAL MUST BE
RESERVED OTHERWISE IT IS DEEMED PAID.
II
RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT WITH THE
DELIVERY OF THE DOCUMENTS EVIDENCING THE PRINCIPAL OBLIGATION,
THE ANCILLARY OBLIGATION OF PAYING INTEREST WAS NOT RENOUNCED
CONTRARY TO THE PROVISIONS OF ART. 1273 OF THE CIVIL CODE AND THE
UNDISPUTED EVIDENCE ON RECORD.
III
RESPONDENT APPELLATE COURT ERRED IN NOT HOLDING THAT
PETITIONER HAS FULLY PAID ITS OBLIGATION CONFORMABLY WITH
ARTICLE 1234 OF THE CIVIL CODE.
IV
RESPONDENT APPELLATE COURT ERRED IN AWARDING ATTORNEY'S FEES
IN FAVOR OF ASSOCIATED BANK (Rollo, p. 15).
The first three assigned errors will be treated jointly since their resolution border on the common
issue, i.e., whether or not petitioner has indeed paid in full its obligation to respondent bank.
Applying the legal presumption provided by Art. 1271 of the Civil Code, the trial court ruled that
petitioner has fully discharged its obligation by virtue of its possession of the documents (stamped
"PAID") evidencing its indebtedness. Respondent court disagreed and held, among others, that the
documents found in possession of Trans-Pacific are mere duplicates and cannot be the basis of
petitioner's claim that its obligation has been fully paid. Accordingly, since the promissory notes
submitted by petitioner were duplicates and not the originals, the delivery thereof by respondent
bank to the petitioner does not merit the application of Article 1271 (1st par.) of the Civil Code which
reads:
Art. 1271. The delivery of a private document evidencing a credit, made voluntarily
by the creditor to the debtor, implies the renunciation of the action which the former
had against the latter.
Respondent court is of the view that the above provision must be construed to mean the original
copy of the document evidencing the credit and not its duplicate, thus:
. . . [W]hen the law speaks of the delivery of the private document evidencing a
credit, it must be construed as referring to the original. In this case, appellees (Trans-
Pacific) presented, not the originals but the duplicates of the three promissory notes."
(Rollo, p. 42)
The above pronouncement of respondent court is manifestly groundless. It is undisputed that the
documents presented were duplicate originals and are therefore admissible as evidence. Further, it
must be noted that respondent bank itself did not bother to challenge the authenticity of the duplicate
copies submitted by petitioner. In People vs. Tan, (105 Phil. 1242 [1959]), we said:
When carbon sheets are inserted between two or more sheets of writing paper so
that the writing of a contract upon the outside sheet, including the signature of the
party to be charged thereby, produces a facsimile upon the sheets beneath, such
signature being thus reproduced by the same stroke of pen which made the surface
or exposed impression, all of the sheets so written on are regarded as duplicate
originals and either of them may be introduced in evidence as such without
accounting for the nonproduction of the others.
A duplicate copy of the original may be admitted in evidence when the original is in the possession
of the party against whom the evidence is offered, and the latter fails to produce it after reasonable
notice (Sec. 2[b], Rule 130), as in the case of respondent bank.
This notwithstanding, we find no reversible error committed by the respondent court in disposing of
the appealed decision. As gleaned from the decision of the court a quo, judgment was rendered in
favor of petitioner on the basis of presumptions, to wit:
The surrender and return to plaintiffs of the promissory notes evidencing the
consolidated obligation as restructured, produces a legal presumption that
Associated had thereby renounced its actionable claim against plaintiffs (Art. 1271,
NCC). The presumption is fortified by a showing that said promissory notes all bear
the stamp "PAID", and has not been otherwise overcome. Upon a clear perception
that Associated's record keeping has been less than exemplary . . ., a proffer of bank
copies of the promissory notes without the "PAID" stamps thereon does not impress
the Court as sufficient to overcome presumed remission of the obligation vis-a-vis the
return of said promissory notes. Indeed, applicable law is supportive of a finding that
in interest bearing obligations-as is the case here, payment of principal (sic) shall not
be deemed to have been made until the interests have been covered (Art. 1253,
NCC). Conversely, competent showing that the principal has been paid, militates
against postured entitlement to unpaid interests.
In fine. the Court is satisfied that plaintiffs must be found to have settled their
obligations in full.
As corollary, a finding is accordingly compelled that plaintiffs (sic) accessory
obligations under the real estate mortgage over two (2) substituted lots as well as the
chattel mortgage, have been extinguished by the renunciation of the principal debt
(Art. 1273, NCC), following the time-honored axiom that the accessory follows the
principal. There is, therefore, compelling warrant (sic) to find in favor of plaintiffs
insofar as specific performance for the release of the mortgages on the substituted
lots and chattel is concerned. (Rollo, p. 100)
premised by:
Records show that Associated's Salvador M. Mesina is on record as having testified
that all three (3) December 8, 1990 promissory notes for the consolidated principal
obligation, interest and penalties had been fully paid (TSN, July 18, 1990, p. 18). It is,
moreover, admitted that said promissory notes were accordingly returned to Romeo
Javier. (Ibid.)
The above disquisition finds no factual support, however, per review of the records. The presumption
created by the Art. 1271 of the Civil Code is not conclusive but merely prima facie. If there be no
evidence to the contrary, the presumption stands. Conversely, the presumption loses its legal
efficacy in the face of proof or evidence to the contrary. In the case before us, we find sufficient
justification to overthrow the presumption of payment generated by the delivery of the documents
evidencing petitioners indebtedness.
It may not be amiss to add that Article 1271 of the Civil Code raises a presumption, not of payment,
but of the renunciation of the credit where more convincing evidence would be required than what
normally would be called for to prove payment. The rationale for allowing the presumption of
renunciation in the delivery of a private instrument is that, unlike that of a public instrument, there
could be just one copy of the evidence of credit. Where several originals are made out of a private
document, the intendment of the law would thus be to refer to the delivery only of the
original original rather than to the original duplicate of which the debtor would normally retain a copy.
It would thus be absurd if Article 1271 were to be applied differently.
While it has been consistently held that findings of facts are not reviewable by this Court, this rule
does not find application where both the trial and the appellate courts differ thereon (Asia Brewery,
Inc. v. CA, 224 SCRA 437 [1993]).
Petitioner maintains that the findings of the trial court should be sustained because of its advantage
in observing the demeanor of the witnesses while testifying (citing Crisostomo v. Court of Appeals,
197 SCRA 833) more so where it is supported by the records (Roman Catholic Bishop of Malolos v.
Court of Appeals, 192 SCRA 169).
This case, however, does not concern itself with the demeanor of witnesses. As for the records,
there is actually none submitted by petitioner to prove that the contested amount, i.e., the interest,
has been paid in full. In civil cases, the party that alleges a fact has the burden of proving it (Imperial
Victory Shipping Agency v. NLRC 200 SCRA 178 [1991]). Petitioner could have easily adduced the
receipts corresponding to the amounts paid inclusive of the interest to prove that it has fully
discharged its obligation but it did not.
There is likewise nothing on the records relied upon by the trial court to support its claim, by
empirical evidence, that the amount corresponding to the interest has indeed been paid. The trial
court totally relied on a disputable presumption that the obligation of petitioner as regards interest
has been fully liquidated by the respondent's act of delivering the instrument evidencing the principal
obligation. Rebuttable as they are, the court a quo chose to ignore an earlier testimony of Mr.
Mesina anent the outstanding balance pertaining to interest, as follows:
Court:
Q Notwithstanding, let us go now specifically to promissory note No.
9077-82 in the amount of consolidated principal of P1,050,000.00.
Does the Court get it correctly that this consolidated balance has
been fully paid?
A Yes, the principal, yes, sir.
Q Fully settled?
A Fully settled, but the interest of that promissory note has not been
paid, Your Honor.
Q In other words, you are saying, fully settled but not truly fully
settled?
A The interest was not paid.
Q Not fully settled?
A The interest was not paid, but the principal obligation was removed
from our books, Your Honor.
Q And you returned the promissory note?
A We returned the promissory note. (TSN, July 18, 1990, p. 22)
That petitioner has not fully liquidated its financial obligation to the Associated Bank finds more than
ample confirmation and self-defeating posture in its letter dated December 16, 1985, addressed to
respondent bank, viz.:
. . . that because of the prevailing unhealthy economic conditions, the business is
unable to generate sufficient resources for debt servicing.
Fundamentally on account of this, we propose that you permit us to fully liquidate the
remaining obligations to you of P492,100 through a payment in kind (dacion en pago)
arrangement by way of the equipments (sic) and spare parts under chattel mortgage
to you to the extent of their latest appraised values." (Rollo, pp. 153-154; Emphasis
supplied)
Followed by its August 20, 1986 letter which reads:
We have had a series of communications with your bank regarding our proposal for
the eventual settlement of our remaining obligations . . .
As you may be able to glean from these letters and from your credit files, we have
always been conscious of our obligation to you which had not been faithfully serviced
on account of unfortunate business reverses. Notwithstanding these however, total
payments thus far remitted to you already exceede (sic) the original principal amount
of our obligation. But because of interest and other charges, we find ourselves still
obligated to you by P492,100.00. . . .
. . . We continue to find ourselves in a very fluid (sic) situation in as much as the
overall outlook of the industry has not substantially improved. Principally for this
reason, we had proposed to settle our remaining obligations to you by way of dacion
en pago of the equipments (sic) and spare parts mortgaged to you to (the) extent of
their applicable loan values. (Rollo, p. 155; Emphasis supplied)
Petitioner claims that the above offer of settlement or compromise is not an admission that anything
is due and is inadmissible against the party making the offer (Sec. 24, Rule 130, Rules of Court).
Unfortunately, this is not an iron-clad rule.
To determine the admissibility or non-admissibility of an offer to compromise, the circumstances of
the case and the intent of the party making the offer should be considered. Thus, if a party denies
the existence of a debt but offers to pay the same for the purpose of buying peace and avoiding
litigation, the offer of settlement is inadmissible. If in the course thereof, the party making the
offer admits the existence of an indebtedness combined with a proposal to settle the claim amicably,
then, the admission is admissible to prove such indebtedness (Moran, Comments on the Rules of
Court, Vol. 5, p. 233 [1980 ed.); Francisco, Rules of Court, Vol. VII, p. 325 [1973 ed.] citing McNiel v.
Holbrook, 12 Pac. (US) 84, 9 L.ed. 1009). Indeed, an offer of settlement is an effective admission of
a borrower's loan balance (L.M. Handicraft Manufacturing Corp. v. Court of Appeals, 186 SCRA 640
[1990]). Exactly, this is what petitioner did in the case before us for review.
Finally, respondent court is faulted in awarding attorney's fees in favor of Associated Bank. True,
attorney's fees may be awarded in a case of clearly unfounded civil action (Art. 2208 [4], CC).
However, petitioner claims that it was compelled to file the suit for damages in the honest belief that
it has fully discharged its obligations in favor of respondent bank and therefore not unfounded.
We believe otherwise. As petitioner would rather vehemently deny, undisputed is the fact of its
admission regarding the unpaid balance of P492,100.00 representing interests. It cannot also be
denied that petitioner opted to sue for specific performance and damages after consultation with a
lawyer (Rollo, p. 99) who advised that not even the claim for interests could be recovered; hence,
petitioner's attempt to seek refuge under Art. 1271 (CC). As previously discussed, the presumption
generated by Art. 1271 is not conclusive and was successfully rebutted by private respondent.
Under the circumstances, i.e., outright and honest letters of admission vis-a-vis counsel-induced
recalcitrance, there could hardly be honest belief. In this regard, we quote with approval respondent
court's observation:
The countervailing evidence against the claim of full payment emanated from
Transpacific itself. It cannot profess ignorance of the existence of the two letters,
Exhs. 3 & 4, or of the import of what they contain. Notwithstanding the letters,
Transpacific opted to file suit and insist(ed) that its liabilities had already been paid.
There was thus an
ill-advised attempt on the part of Transpacific to capitalize on the delivery of the
duplicates of the promissory notes, in complete disregard of what its own records
show. In the circumstances, Art. 2208 (4) and (11) justify the award of attorney's
fees. The sum of P15,000.00 is fair and equitable. (Rollo, pp. 46-47)
WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.
SO ORDERED.
Feliciano, Romero, Melo and Vitug, JJ., concur.






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 137407 January 28, 2003
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
WILLERIE AVENDAO, accused-appellant.
QUISUMBING, J .:
On automatic review is the decision
1
dated January 29, 1999 of the Regional Trial Court of San
Jose, Occidental Mindoro, Branch 46, in Criminal Case No. R-4227. Appellant Willerie Avendao
was found guilty of murder and accordingly sentenced to suffer the penalty of death.
The facts of this case, culled from the records, are as follows:
In an information dated August 18, 1997, Willerie Avendao was charged with two counts of murder
allegedly committed as follows:
That on or about the 29th day of July, 1997 at night time (sic) in Purok Bagong Silang,
Barangay Aguas, Municipality of Rizal, Province of Occidental Mindoro, Philippines and
within the jurisdiction of this Honorable Court, the accused being then armed with a jungle
knife, with intent to kill, with treachery, did then and there willfully, unlawfully and feloniously,
attack, assault and stab with the said weapon Remedios Castillo and Melvin Castillo inflicting
upon the victims serious wounds which caused their untimely death.
CONTRARY TO LAW.
2

Upon arraignment, the accused pleaded not guilty. Thereafter, trial on the merits ensued.
The principal witness for the prosecution was JEFFRE CASTILLO, an eight-year-old son of the
victim Remedios Castillo and brother of the victim Melvin Castillo. In his testimony, he stated that his
parents were named Remedios and Boyet; that they were six children in the family, namely, Michael,
Dikong, Ape, Manolito, the victim Melvin and himself, and that he was a Grade I pupil at the Aguas
Elementary School. He testified that he knows appellant, having known him for about three or four
years before the incident of July 29, 1997. On said date, at around 6:00 P.M., he saw appellant in
their house, looking for his plow and asking if he knew who got it, to which he replied that he did not.
While appellant was in their house, his mother was upstairs and his Kuya Melvin was also inside the
house. His father and the rest of his brothers and sisters were in Cabanatuan City. He recalled that
appellant was then wearing a green t-shirt and shorts, the color of which he could not
remember.
3
Thereafter, appellant left. After dinner, he, his mother and brother went to sleep. Before
they slept, he recalled they had apangmagdamagan or overnight lamp which was turned on.
That night, according to Jeffre, they slept in the same room. He was suddenly awakened when he
heard a commotion (kalambugan). However, by the time he woke up, the room was very dark
because the lamp was already turned off. He heard his mother shout, "Dikong, tulungan mo kami."
When he heard the kalambugan he immediately eased his way to where they kept their pillows and
tried to hide. Then, there was silence. Then he heard somebody going downstairs. His brother
Melvin lit the lamp, while Jeffre stayed where he was. He then heard the person downstairs going up
again.
4
He saw through his blanket that the person had come up: "Naaninag ko po sa kumot yung
tao."
5
That was when he distinctly heard his Kuya Melvin say, "Kuya Willie, tama, na, tama na!" That
was just before Melvin was killed.
6

Jeffre recalled that someone coughed and he recognized the cough as that of his Kuya Willie. He
recognized it because he had heard a similar cough on several occasions in the past when appellant
frequented their house. He remained where he was until appellant left.
Jeffre said he fell asleep and was awakened only the following morning by persistent knocking on
their door. He opened the door to find his Ate Annie (Juliana Castillo), Ate Norma (Roldan) and Ate
Ann (Roldan) looking for his mother. He then told his Ate Annie that Willerie Avendao killed both his
mother Remedios and his Kuya Melvin. He remembered that thereafter, their relatives as well as
some policemen arrived.
7

Jeffre recounted that he was brought to the police station where his sworn statement was taken and
he signed it in the presence of Mayor Bartolome Miranda of Rizal town.
8
He said he was
accompanied by his Lola Nena who read to him what was written in the statement because he did
not know how to read. He said no one coached him to answer the way he did, particularly to the
question: "Sino ang taong umubo na yon?" His answer was: "Hindi ko po nakita pero kilala ko ang
boses niya na si Kuya Willie."
9

In the course of his testimony, Jeffre was shown a green t-shirt and a pair of shorts which he
recognized as those appellant wore the night of July 29, 1997, when appellant went to their house
earlier in the evening.
10

On cross-examination, Jeffre said his father talked to him about the case four times, and that before
coming to court, several of his relatives also talked to him about the case and told him to point to
appellant as the person who killed his mother and brother.
11
The child further testified that on the
night his brother and mother were killed, he heard his Kuya Willie cough four times three times
downstairs and once upstairs, after which he again pointed to appellant as the culprit behind the
deaths of his mother and brother.
12

Witnesses JULIANA CASTILLO
13
and VIRGILIO CASTILLO
14
testified that they were neighbors and
relatives of the victims. They lived in a compound in Brgy. Aguas, Rizal, Occidental Mindoro where
the houses of three brothers were built: the house of Ramon Castillo, Juliana's husband; the house
of Virgilio Castillo, who was still single and lived alone; and the house of Benedicto Castillo, his wife
Remedios, and their children.
According to witnesses, appellant was the adopted son (or palaki) of an aunt of the Castillo brothers.
Appellant had four children. His wife lived in San Roque I, Occidental Mindoro, and seldom visited
him.
15
He owned and worked on a seven-hectare farm adjacent to the lot where the witnesses and
the victims lived. He frequented the neighborhood while he bought food and supplies from the store
of Juliana.
16
He spoke with Virgilio at times, although Virgilio said that they were not close because
Virgilio was not used to having a barkada.
17

Both witnesses claimed that when appellant was working on his farm, he frequented the house of
Remedios, dropping by almost three times a day, especially when the victim's husband was not
around. He sometimes had coffee or left some of his farm implements there. They claimed that
appellant had spent a night there. Juliana further testified that on two occasions prior to the
incident,
18
the victim Remedios confided to her that she was angry at appellant because he was
courting her. Witness Juliana added she already suspected that fact even before Remedios confided
in her, but she did not tell appellant's wife because the wife might not believe her.
19

Juliana recalled that at about 7:00 P.M. on July 29, 1997, appellant arrived at her store and bought a
cigarette. After that he invited Virgilio, who was then having dinner, for a drink. The latter
declined.
20
She recalled that on that night, she and her children slept at around 8:30 P.M. She did
not recall hearing any noise coming from Remedios' house because it was raining heavily then and
she was also listening to the radio.
21
The next day, at about 7:00 A.M., her neighbor Norma Roldan
and her daughter, Ann, arrived and asked her to accompany them to Remedios, to ask the latter for
their wages for planting palay. Remedios was their kabisilya at that time. They knocked for about 30
minutes, calling "Nanie". Jeffre then opened the door and told them that his mother and brother were
both dead and that the killer was his Kuya Willie.
22

In his testimony, 23 Virgilio Castillo stated that, at approximately 7:00 to 7:10 P.M. of July 29, 1997,
while he was seated in the terrace of Juliana Castillo's house, he saw appellant with a lighted
cigarette enter the kitchen door of the victims' house. At that time, he saw Remedios washing
clothes in the poso (water pump), about six arms-length from her house where her two sons were.
Appellant inquired where his plow was. After about three minutes, he left. Virgilio recalled that
appellant, returned at about the same time he went out of Juliana's house. Appellant followed and
invited him to "go around". According to Virgilio, he declined because he was tired. He could not
recall where appellant went after. He remembered appellant wore a green t-shirt with the words
"Landbank" printed in front and back, and a pair of dark green shorts. When shown a green t-shirt
and short pants (marked as Exhibit "C"), witness identified the clothes as those worn by appellant
the night of July 29, 1997. He said he learned of Remedios and Melvin's death the following
morning. He said he did not hear anything the previous night as it was raining hard and because a
cement wall separated his house from that of Remedios.
The fourth witness for the prosecution was SPO2 ESTEBAN MARIANO DIMALALUAN,
24
Chief of
the Police Relations Section and Chief Investigator assigned at the Rizal Police Station. He testified
that on July 30, 1997, his office received a radio report of an incident in Sitio Bagong Silang,
Barangay Aguas, Rizal, Occidental Mindoro. Upon arrival at the scene he and three other policemen
found the bodies of Remedios and Melvin Castillo, soaked in blood. They bore numerous stab
wounds. The room where the bodies were found measured about three meters by four meters. After
they took pictures of the bodies, and after further inspection, he noticed fresh footprints with mud on
the toilet bowl and on the wall made of light materials. He also took pictures of the footprints but the
negatives got exposed prematurely.
In the course of his investigation, said SPO2 Dimalaluan, he met eight-year-old Jeffre Castillo, who
had survived the carnage. The boy told him that he heard his mother shout "Dikong, tulungan mo
kami" and also his brother shouting ". . . Kuya Willie," and "Tulungan nyo kami, hindi na po ako
uulit." According to Jeffre, the last time he saw appellant in their house was before nighttime of the
day of the crime.
25
Dimalaluan added that Juliana and Virgilio also saw appellant then.
Later, according to Dimalaluan, they went to the house of appellant 150 meters away from the crime
scene. There they found appellant who had just taken a bath. They asked him what he wore the day
of the incident, and appellant pointed to the clothes he was wearing. Doubting appellant, Dimalaluan
went inside the house. In the bathroom, a green t-shirt with "Landbank" print and dark short pants,
newly washed and still wet, were hanging from the clothesline. He said he noticed dark stains on
them. These were brought to the police station. During Dimalaluan's testimony he marked the stains
found on the clothes.
26
These, however, were not subjected to laboratory examination.
Appellant voluntarily went with the police to the police station, according to Dimalaluan. While
detained, appellant made an oral admission that he killed the victims and that he used a knife, said
the police officer. Hence, on July 31, 1997, Dimalaluan accompanied appellant back to his house,
where appellant got from the cabinet a hunting knife with scabbard and then handed it over to
him.
27
According to Dimalaluan, appellant's admission was not reduced into writing
28
because when
appellant made the admission, he was not assisted by a lawyer. The knife was likewise not
subjected to any laboratory examination.
The last prosecution witness, DR. MICHAEL C. JIMENEZ,
29
Municipal Health Officer of Rizal,
testified that he conducted the autopsy on the bodies of the victims. He issued their respective death
certificates.
30

Appellant WILLERIE AVENDAO
31
was presented by the defense as its sole witness. He denied
committing the crimes and interposed an alibi. He said the deceased Remedios and he had no
disagreements.
32
He did admit that in the late afternoon of July 29, 1997, he bought cigarettes from
Juliana's store and there saw Virgilio Castillo. He denied he invited him for a drink.
33

According to appellant, he learned of the stabbing incident the following day, July 30, 1997, at about
8:00 A.M. He then went to the place where the victims were killed.
Thereafter he went back home. A few moments later five policemen, headed by SPO2 Dimalaluan,
arrived. They asked him to accompany them to Remedios' house. After taking them there, he
returned home to cook. He later went back to Remedios' house and SPO2 Dimalaluan no longer
allowed him to go home. Accompanied by policemen, he was allowed to go home only to lock the
door of his house. There, they took one t-shirt and a pair of shorts. Thereafter, he was brought to the
Rizal police station and detained.
According to appellant, he was told to admit to the killings but he refused, saying he did not do it. He
did not give a written statement while under detention. The following day, July 31, 1997, the
policemen brought him back to his house using a service jeep. They took a knife from his house and
before they left, took a photograph of him pointing to the knife. He did not protest or say anything at
the time because he was afraid.
34

On the witness stand, he admitted ownership of the t-shirt and short pants taken from his house but
denied having worn them in the afternoon of July 29, 1997. He averred he did not wash them and
said that these were hanging for sometime when the police found them. Later, however, he said he
hanged said clothes on July 29, 1997.
35

On January 29, 1999, the RTC convicted appellant as follows:
WHEREFORE, and in the light of all the foregoing considerations, the Court finds that the
accused Willerie (Willy) Avendano is guilty beyond reasonable doubt of the crime of Murder,
as defined and penalized under Article 248 of the Revised Penal Code, and Section 6 of
Republic Act Number 7659, otherwise referred to as the Death Penalty Law, and is hereby
sentenced to DEATH.
The accused is ordered to indemnify the heirs of the victims Remedios Hilario Castillo and
Melvin Hilario Castillo in the amount of FIFTY THOUSAND PESOS (P50,000.000) for each
victim, and to furthermore pay said heirs the amount of ONE HUNDRED THOUSAND
PESOS (P100,000.00) for each victim as and for moral damages.
The Provincial Warden is hereby directed to cause the immediate transfer of the accused
from the Provincial Jail at Magbay, San Jose, Occidental Mindoro to the New Bilibid Prisons,
Muntinlupa City, Metro Manila.
SO ORDERED.
36

Hence, this appeal. Appellant, in his brief, assigns the following errors for our consideration:
I. THAT THE HONORABLE LOWER COURT ERRED IN GIVING DUE COURSE TO THE
TESTIMONY OF JEFFRE (sic) CASTILLO WHO IS ONLY EIGHT YEARS OLD.
II. THAT THE HONORABLE LOWER COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF JEFFRE CASTILLO WHO PLAYS IN THE COURTROOM AND
UNMINDFUL OF THE TRIAL AND WHO DOES NOW (sic) UNDERSTAND THE VALUE OF
AN OATH.
III. THAT THE HONORABLE LOWER COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF JEFFRE CASTILLO WHO WAS COACHED BY THE FATHER AND MANY
RELATIVES.
IV. THAT THE HONORABLE COURT ERRED IN GIVING CREDENCE TO THE
TESTIMONY OF THE POLICE OFFICER THAT ACCUSED ADMITTED THE OFFENSE
VERBALLY TO HIM.
V. THAT THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION THAT
THE ACCUSED WAS ARRESTED WITHOUT ANY WARRANT AND PUT TO JAIL UP TO
THE PRESENT.
VI. THAT THE LOWER COURT ERRED IN GIVING DUE COURSE TO THE
CONFISCATED T-SHIRT AND SHORT PANTS WHICH THE PROSECUTION CLAIMED TO
HAVE BLOOD STAINS WITHOUT LABORATORY EXAMINATION.
VII. THAT THE TESTIMONY OF THE CHILD IS CONTRARY TO HUMAN BEHAVIOR,
EXPERIENCE, OBSERVATION AND NATURAL COURSE OF THINGS.
37

From the foregoing, the main issue for resolution is whether the prosecution's evidence suffices to
convict appellant of murder beyond reasonable doubt, and impose on him the death penalty. We
must, for this purpose, inquire (1) whether the testimonies of prosecution witnesses are credible; (2)
whether the arrest and the confinement of appellant are legal; and (3) whether the T-shirt and short
pants taken from appellant are admissible in evidence.
Appellant assails the credibility of the prosecution's witness, Jeffre Castillo. According to appellant,
the boy is only a playful eight-year-old who could not possibly understand the value of an oath.
Appellant points out that during Jeffre's testimony, the defense counsel called the attention of the
court that Jeffre was playing with a rubber band while testifying and appeared to be inattentive to the
questions propounded to him.
3
8 Moreover, appellant states that Jeffre did not understand his oath
because he did not even know his birthday, did not know how to read and write even in Tagalog, and
did not know where he was born.
39
According to the appellant, based on these observations, Jeffre's
credibility is questionable.
In previous cases, the Court has held that a witness is not incompetent to give testimony simply
because he or she is of tender age. The requirements of a child's competence as a witness are: (1)
capacity of observation; (2) capacity of recollection; and (3) capacity of communication.
40
It is the
degree of a child's intelligence that determines the child's competence as a witness. If the witness is
sufficiently mature to receive correct impressions by his senses, to recollect and narrate intelligently,
and to appreciate the moral duty to tell the truth, he is competent
41
to testify. A minor's testimony will
suffice to convict a person accused of a crime so long as it is credible.
42

The determination of a child's intellectual preparedness to be a witness rests primarily with the trial
judge, who assesses the child's manners, his apparent possession or lack of intelligence, as well as
his understanding of the obligations of an oath. These abstract matters cannot be photographed into
the record. The judgment of the trial judge will not be disturbed on review, unless from that which is
preserved, it is clear that it was erroneous.
43

In the case at bar, the trial court found that despite Jeffre's age, his testimony was delivered in a
firm, candid, and straightforward manner and that his demeanor while at the witness stand was
credible.
44
On this point, we see no reason to depart from the evaluation by the trial judge, who had
the advantage of directly observing the witness' deportment and manner of testifying, as well as
having certain potent aids in understanding and weighing the testimony of the witness.
45

Moreover, the alleged inconsistencies in Jeffre's testimony were only on minor details and trivial
matters that serve to strengthen rather than destroy Jeffre's credibility.
Appellant avers that Jeffre's father and relatives coached him on what to say and that his testimony
and identification of appellant appeared rehearsed. He points out that Jeffre's father was allowed to
sit near him while he was testifying. He also places emphasis on the admission made by Jeffre in
open court
46
that on several occasions, including the night before he was to testify, his father and
relatives talked to him about the case and taught him what to say and who to point to as the culprit.
These, according to appellant, strip the testimony of the child of any shred of credibility.
The records of this case, however, do not support appellant's claim. As found by the trial court,
Jeffre's testimony was delivered in a firm, candid, and straightforward manner. There is no showing
that Jeffre wavered from the basic facts of his testimony, even when he was subjected to rigorous
cross-examination.
If we are to believe the defense's assertion that the child was coached before he testified, wouldn't
his coaches also teach him to vehemently deny that such was the fact? Being a child of tender age,
Jeffre naturally needed guidance to face the ordeal of testifying before the court on a matter as
gruesome as the death of his own mother and brother. His spontaneous admission that his elders
talked to him beforehand did not diminish, but rather bolstered, his truthfulness. With regard to the
proximity of his father to him while he was testifying, the records bear out that the defense had the
opportunity to manifest its objection. Such proximity was duly noted by the trial court yet upon its
own judgment allowed it, with the observation that any improper behavior would be readily observed
by the judge as he was close enough to do So.
47

When it comes to the issue of credibility, this Court ordinarily defers to the assessment and
evaluation given by the trial court, for only the trial judge has the unique opportunity to observe that
elusive and incommunicable evidence of the witness' deportment on the witness stand while
testifying, an opportunity denied to the appellate courts which usually rely on the cold pages of the
records of the case.
48
Only when such assessment is tainted with arbitrariness or oversight of some
significant fact or circumstance will the appellate court depart from the trial court's factual
conclusions.
49

The records reveal that the trial court duly noted the objections, closely observed the proceedings,
and propounded its own questions to satisfy itself of the accuracy of the witness' testimony. We find
no reason to disturb the factual findings of the trial court.
Jeffre's credibility is also being assailed on the ground that his testimony, particularly his reaction to
what transpired in his presence, was a contrary to human behavior, experience, observation and the
natural course of things. Appellant alleges that the natural reaction of a child his age is to be afraid
and either shout for his mother or brother or hide, or else run away outside the house. This Court
observes that was exactly how this child witness reacted. He was afraid and realized something was
definitely wrong, which then prompted him to inch his way to a place where he felt safer and out of
harm's way. He hid where he could not be found, in the dark but safe area for pillows, and escaped
the bloody carnage that took her mother's and his brother's lives.
We have long recognized that different people react differently to a given situation and there is no
standard form of behavioral response when one is confronted with a strange, startling or frightful
experience.
50
Witnessing a crime is one novel experience that elicits different reactions from
witnesses for which no clear-cut standard of behavior can be drawn.
51
This is especially true if the
assailant is physically near.
52
Moreover, it is not proper to judge the actions of children who have
undergone traumatic experiences by the norms of behavior expected under the circumstances from
mature persons.
53

Appellant questions the child's testimony with respect to his recognition of the coughing made by the
assailant as that of appellant himself. Appellant contends this is unbelievable, and that any
identification made in this manner is subject to mistakes.
In People vs. Reyes,
54
however, the Court held that once a person has gained familiarity with
another, identification becomes quite an easy task even from a considerable distance. The sound of
a person's voice is an acceptable means of identification where it is established that the witness and
the accused knew each other personally and closely for a number of years.
55

In this case, Jeffre has known appellant for about three to four years. The latter lived in the same
barangay and his farm was right beside the house where the witness lived. They were in close
contact with each other, especially since appellant often came to the house of the Castillos. Such
day-to-day familiarity and close proximity lend credence to the child's testimony that he would indeed
recognize the distinctive cough of appellant. The child testified that on that fateful night, the assailant
coughed not only once but a total of four times. Taking into account all the other circumstances of
this case, this Court is convinced that Jeffre's identification of appellant's coughing is credible.
When there is no evidence to indicate that the witness against the accused has been actuated by
any improper motive, and absent any compelling reason to conclude otherwise, the testimony given
by a witness is ordinarily accorded full faith and credit.
56
As a whole, we find the prosecution's
witnesses and their testimonies credible.
With regard to the legality of the arrest and confinement of appellant, it was shown that upon
arraignment, appellant voluntarily entered a plea of "not guilty" without first questioning the legality of
his arrest. By so pleading, he has submitted to the jurisdiction of the trial court, thereby curing any
defect in his arrest. Such act amounted to a waiver of the right to question any irregularity in his
arrest.
57

It was error on the part of the trial court, however, to give probative value to the alleged verbal
admission made by appellant to SPO2 Dimalaluan. The alleged admission was not reduced into
writing. It was obtained in violation of appellant's right under custodial investigation.
58
As regards the
items of clothing as well as the knife found in and taken from the house of appellant, a search
warrant should have been obtained as required under Article III, Section 3 (2) of the
Constitution.
59
Failing thus, the exclusionary rule applies. Hence neither the knife with scabbard nor
the T-shirt with shorts ought to be allowed in evidence.
Appellant denies the commission of the crime and interposes the alibi that he was in his house on
the night of July 29, 1996. For alibi to stand, it must be shown that not only was appellant
somewhere else when the crime was committed but also that it was physically impossible for him to
have been at the scene of the crime at the time it was committed. Appellant failed in this regard. His
house was only about 150 to 200 meters from the house of Remedios; it was not impossible for him
to have been at the scene of the crime.
Alibi is inherently weak and unreliable, unless corroborated by disinterested witnesses. Since
appellant is unable to substantiate his alibi with the testimony of a credible witness, it is reduced to
self-serving evidence undeserving of any weight in law.
60

In sum, we find appellant's defense of denial and alibi unavailing. Given the testimonial evidence for
the prosecution which we find credible, we entertain no doubt as to his criminal liability for the death
of Remedios and Melvin Castillo. The only remaining question is whether these killings were
attended by qualifying and aggravating circumstances.
The qualifying circumstance of treachery was found present by the trial court, resulting in appellant's
conviction for two counts of murder. Under the Revised Penal Code, there is treachery "when the
offender commits any of the crimes against the person, employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make." 1 For treachery to exist, two
conditions must be found: (1) that at the time of the attack the victim was not in a position to defend
himself; and (2) the offender consciously adopted the particular means, method or form of attack
employed by him.
62

In this case, we find no adequate proof of treachery. Evidence on record does not show that
appellant consciously and purposely adopted means and methods to ensure the commission of the
crime without any risk to himself. Thus, absent treachery or any circumstance that would otherwise
qualify an offense to murder, the crime committed is only homicide. Hence, appellant should only be
held for two counts of homicide, not double murder.
The trial court appreciated the aggravating circumstances of nighttime, dwelling, and unlawful entry.
Of the three, however, only nighttime was properly alleged in the information. The Revised Rules of
Criminal Procedure which took effect on December 1, 2000, requires that every complaint or
information should state not only the qualifying but also the aggravating circumstances.
63
This rule
may be given retroactive effect in the light of the settled doctrine that statutes regulating the
procedure of the court will be construed as applicable to actions pending and undetermined at the
time of their passage. Procedural laws are retroactive in that sense and to that extent.
64
Hence,
following this new rule, we cannot appreciate the aggravating circumstances of dwelling and
unlawful entry, since they were not alleged in the information.
As to nighttime, this circumstance is considered aggravating only when (1) it was especially sought
by the offender; or (2) the offender took advantage of it; or (3) it facilitated the commission of the
crime by ensuring the offender's immunity from identification or capture.
65
In this case, the
prosecution did not adduce evidence that the appellant deliberately sought the cover of the night to
commit the offense. The mere fact that the killing was committed at night would not suffice to sustain
nocturnity for, by, and of itself.
66
Aggravating circumstances must be established with the same
quantum of proof as fully as the crime itself, and any doubt as to their existence must be resolved in
favor of appellant.
67

At this juncture, we note the observation of the trial court that only one criminal information was filed
for the two deaths, in violation of Rule 110, Section 13
68
of the Rules of Court which mandates that
one information for each crime should be filed, except in cases for which the law prescribes a single
punishment for various offenses. This observation, however, should not stop the court from imposing
a penalty for each crime committed in the light of appellant's failure to object to the defect in the
information. As held in People vs. Ramon:
69

Regrettably for the accused-appellant, however, he has failed to timely question the above
defect, and he may thus be deemed to have waived his objection to the multiplicity of
charges. In People vs. Conte, this Court has ruled:
. . . Under Sections 1 and 3(e) of Rule 117, the appellant, before entering his plea, should
have moved to quash the complaint for being duplicitous. For his failure to do so, he is
deemed to have waived the defect. Hence, pursuant to Section 3 of Rule 120, the court
could convict him of as many offenses as are charged and proved, and impose on him the
penalty for each and every one of them. (Citations omitted)
The penalty for homicide is reclusion temporal. There being neither mitigating nor aggravating
circumstances, the appropriate penalty therefore is reclusion temporal in its medium period. Applying
the Indeterminate Sentence Law, appellant's sentence for each homicide should be an indeterminate
penalty of eight years and one day ofprision mayor, as minimum, to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal, as maximum.
Finally, on the award of damages. For each count of homicide, the award of P50,000 as civil
indemnity for the death of the victim, is in accord with prevailing jurisprudence. 70 Given the facts of
this case, where mother and son perished in a shocking carnage from numerous wounds inflicted by
the malefactor, the amount of P50,000 as moral damages for the death of each victim should also be
awarded.
WHEREFORE, the decision of the Regional Trial Court of San Jose, Occidental Mindoro, Branch 46,
in Criminal Case No. R-4227, is hereby MODIFIED. Appellant WILLERIE AVENDAO is found
GUILTY of two counts of homicide. For each count, there being no aggravating nor mitigating
circumstance, he is sentenced to suffer the indeterminate penalty of eight years and one day
of prision mayor, as minimum, to fourteen years, eight months and one day of reclusion temporal, as
maximum, with all the accessory penalties prescribed by law. Appellant is also ordered to pay the
heirs of each victim the amount of P50,000.00 as civil indemnity and another sum of P50,000.00 as
moral damages, together with the costs.
SO ORDERED.
Davide, Jr., C . J ., Puno, Vitug, Mendoza, Panganiban, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Bellosillo, J ., on leave.


Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 188603 January 16, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
RAMIL RARUGAL alias "AMAY BISAYA," Accused-Appellant.
D E C I S I O N
LEONARDO-DE CASTRO, J .:
Before this Court is the appeal of the June 30, 2008 Decision
1
of the Court of Appeals in CA-G.R.
CR.-H.C. No. 02413,
2
which affirmed with modification the May 29, 2006 Decision
3
of the Regional
Trial Court (RTC), Branch 86, Quezon City in Crim. Case No. -Q-99-82409, entitled People of the
Philippines v. Ramil Rarugal that found appellant Ramil Rarugal alias "Amay Bisaya" guilty beyond
reasonable doubt for the crime of murder.
On December 8, 1998, the following information for the crime of murder was filed against appellant:
That on or about the 19th day of October, 1998, in Quezon City, Philippine, the above-named
appellant, with intent to kill, qualified by evident premeditation and treachery, did, then and there,
willfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of
one Arnel M. Florendo, by then and there stabbing him with a bladed weapon, 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 untimely death, to the damage and prejudice of the heirs of the
said Arnel M. Florendo.
4

Appellant was only arrested sometime in August 2001. During his arraignment on August 27, 2001,
appellant pleaded not guilty.
5
Trial on the merits ensued.
Based on the testimonies of witnesses presented by the prosecution, the RTC found that on the
night of October 19, 1998 at around 9:45 p.m., while victim Arnel Florendo (Florendo) was cycling
along Sampaguita Street, Barangay Capari, Novaliches, Quezon City, appellant, with the use of a
long double-bladed weapon, stabbed Florendo; thus, forcibly depriving him of his bicycle.
Immediately thereafter, appellant hurriedly fled the scene. This incident was witnessed by Roberto
Sit-Jar, who positively identified appellant in court.
Florendo arrived home bleeding. He was quickly attended to by his siblings, including his brother
Renato. When Renato recounted the events of that night to the court, he testified that Florendo told
him and his other relatives that it was appellant who had stabbed him. They then took Florendo to
Tordesillas Hospital but had to transfer him to Quezon City General Hospital, due to the
unavailability of blood. It was there that Florendo died
6
on October 26, 1998 with the family spending
about P2,896.00
7
for his hospitalization and P25,000.00
8
for his funeral.
Autopsy Report signed by Medico-Legal Officer, Dr. Dominic L. Aguda, showed the following
Postmortem Findings
9
:
Cyanosis, lips and fingernailbeds
Brain- pale
Heart-chambers, contain small amount of dark clotted blood
STAB WOUND-
sutured, healing, 3.0 cms, located on left chest, 15.0 cms. from the anterior median line
directed backwards and medially involving the skin and underlying tissues passing between
the 6th and 7th left ribs, entering the thoracic cavity and severed the lower lobe of the left
lung with a depth of 7-8 cms.
THORACOSTOMY INCISIONS-
sutured, 3.5 cms., located on the left chest, 19.0 cms. from the anterior median line; sutured,
3.2 cms. located on the right chest 20 cms. from the anterior median line
Hemothorax- left, 500 cc
Visceral organs- pale
Stomach- empty
CAUSE OF DEATH:
STAB WOUND, LEFT CHEST
In his defense, appellant denied that he stabbed Florendo since he was at that time working as a
farm administrator for the town mayor in Pangasinan. He said he was living with his cousin in
Urbiztondo, Pangasinan on October 19, 1998, where he had been staying since 1997. He stated that
during the period 1997 to 1998, he did not visit Manila at any point. On cross-examination, appellant
stated that he was arrested in front of his house in Novaliches, Quezon City.
10

On May 29, 2006, the RTC found appellant guilty beyond reasonable doubt of the crime of murder
as defined under Article 248 of the Revised Penal Code. It stated:
After evaluation, the Court finds that the guilt of the appellant was proven beyond reasonable doubt.
Witness Sit-Jar positively identified appellant as the assailant of Florendo. In view of the positive
identification made by Sit-Jar, the denial and alibi made by [appellant] has no leg to stand on. Under
prevailing jurisprudence alibis and denials are worthless in light of positive identification by witnesses
who have no motive to falsely testify.
Moreover, Florendo did not immediately die after he was stabbed by the appellant. Florendo,
apparently conscious that he could die of his wound, identified his assailant as the appellant Ramil
Rarugal. Under the rules, statements made by a person under the consciousness of an impending
death is admissible as evidence of the circumstances of his death. The positive identification made
by the victim before he died, under the consciousness of an impending death is a strong evidence
indicating the liability of herein appellant.
x x x x
As shown by the evidence, the killing of Arnel Florendo was sudden indicating treachery and the
appellant being then armed with a knife, the killing was done with abuse of superior strength. These
circumstances qualify the crime to murder, all of the elements of the offense being present.
x x x x
WHEREFORE, premises considered judgment is hereby rendered finding the appellant Ramil
Rarugal alias "Amay Bisaya" GUILTY beyond reasonable doubt of the crime of murder and hereby
sentences him to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim the
amount of P28,124.00 for actual damages, P50,000.00 for civil indemnity and P50,000.00 as and for
moral damages.
11
(Citations omitted.)
Appellant filed his notice of appeal on July 21, 2006.
12
He questioned the RTCs finding of guilt
beyond reasonable doubt in the commission of the crime and its appreciation of treachery as a
qualifying circumstance. He argued that witness Sit-Jar lacked credibility for giving inconsistent
testimony. Moreover, he averred that there was no basis for the finding that treachery qualified the
crime to murder since its elements were not established.
13

On June 30, 2008, the Court of Appeals affirmed with modification the May 29, 2006 decision of the
RTC. It stated that witness Sit-Jars positive identification of appellant as the one who stabbed
Florendo takes precedence over appellants defense of denial and alibi. Moreover, appellant failed to
adduce evidence to show that Sit-Jar had any improper motive to falsely testify against him. The
Court of Appeals thus disposed of the appeal in the following manner:
WHEREFORE, premises considered, the Decision appealed from is AFFIRMED with the
MODIFICATION that the appellant RAMIL RARUGAL is hereby ordered to pay the heirs of the victim
the amount of P27,896.00 as actual damages and the amount of P25,000.00 as exemplary
damages. The said Decision in all other respect STANDS.
14

Hence, this appeal.15 Petitioners confinement was confirmed by the Bureau of Corrections on
September 30, 2009.
16

Both the appellee
17
and the appellant
18
waived the filing of supplemental briefs and adopted the
briefs they filed before the Court of Appeals.
We affirm the June 30, 2008 decision of the Court of Appeals, with modification respecting the award
of damages.
This Court has consistently stated that the trial court is in a better position to adjudge the credibility
of witnesses, especially if its decision is affirmed by the Court of Appeals.
19
We have been reminded
in People v. Clores
20
that:
When it comes to the matter of credibility of a witness, settled are the guiding rules some of which
are that (1) the appellate court will not disturb the factual findings of the lower court, unless there is a
showing that it had overlooked, misunderstood or misapplied some fact or circumstance of weight
and substance that would have affected the result of the case x x x; (2) the findings of the trial court
pertaining to the credibility of a witness is entitled to great respect since it had the opportunity to
examine his demeanor as he testified on the witness stand, and, therefore, can discern if such
witness is telling the truth or not; and (3) a witness who testifies in a categorical, straightforward,
spontaneous and frank manner and remains consistent on cross-examination is a credible witness.
(Citations omitted.)
The rationale for these guidelines is that the trial courts are in a better position to decide the question
of credibility, having heard the witnesses themselves and having observed firsthand their deportment
and manner of testifying under grueling examination.
21

We see no need to depart from the aforestated rules. After a careful review of the records, we find
that appellant failed to negate the findings of the trial court with concrete evidence that the latter had
overlooked, misconstrued, or misapplied some fact or circumstance of weight and substance that
would have affected the result of the case. We agree with the Court of Appeals that the prosecution
witness recounted the details of that fateful night in a "clear, straightforward and convincing manner,
devoid of any signs of falsehood or fabrication."
22

First, prosecution witness Sit-Jar positively identified appellant as the victims assailant in contrast to
the appellants defense of denial and alibi. We have stated in Malana v. People
23
that:
It is elementary that alibi and denial are outweighed by positive identification that is categorical,
consistent and untainted by any ill motive on the part of the eyewitness testifying on the matter. Alibi
and denial, if not substantiated by clear and convincing evidence, are negative and self-serving
evidence undeserving of weight in law. The prosecution witnesses positively identified appellants as
two of the perpetrators of the crime. It is incumbent upon appellants to prove that they were at
another place when the felony was committed, and that it was physically impossible for them to have
been at the scene of the crime at the time it was committed. x x x. (Citations omitted.)
The records are devoid of any indication that it was physically impossible for appellant to have been
in the scene of the crime at the time it was committed. Appellants bare alibi that he was working as
a farm administrator in Urbiztondo, Pangasinan and was allegedly staying there at the time of the
commission of the crime does not suffice to prove the alleged physical impossibility that he
committed the crime charged, moreso in the face of positive identification by the witness, who was
not motivated by any improper motive to falsely testify against him.
Second, the victim was still alive after the stabbing incident. He had time to reach his house and
confide in his brother, witness Renato, that it was appellant who had stabbed him.
Rule 130, Section 37 of the Rules of Court provides:
SEC. 37. Dying declaration. The declaration of a dying person, made under the consciousness of
an impending death, may be received in any case wherein his death is the subject of inquiry, as
evidence of the cause and surrounding circumstances of such death.
The Court has stated in People v. Maglian
24
:
The Rules of Court states that a dying declaration is admissible as evidence if the following
circumstances are present: "(a) it concerns the cause and the surrounding circumstances of the
declarants death; (b) it is made when death appears to be imminent and the declarant is under a
consciousness of impending death; (c) the declarant would have been competent to testify had he or
she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry
involves the declarants death." x x x. (Citation omitted.)
We agree with the Court of Appeals that the statement of Florendo made to his brother Renato has
complied with the requisites of a dying declaration. It is important to note that Florendo, after being
stabbed by appellant twice on the chest, went home and under labored breathing, told Renato that it
was appellant who had stabbed him. Clearly, the statement made was an expression of the cause
and the surrounding circumstances of his death, and under the consciousness of impending death.
There being nothing in the records to show that Florendo was incompetent, he would have been
competent to testify had he survived.
25
It is enough to state that the deceased was at the time
competent as a witness.
26
Lastly, the dying declaration is offered in an inquiry the subject of which
involves his death. We reproduce the statement of the RTC:
Moreover, the victim did not immediately die after he was stabbed by the appellant. The victim,
apparently conscious that he could die of his wound, identified his assailant as the appellant Ramil
Rarugal. Under the rules, statement made by a person under the consciousness of an impending
death is admissible as evidence of the circumstances of his death. The positive identification made
by the victim before he died, under the consciousness of an impending death is a strong evidence
indicating the liability of herein appellant.
27

It is of no moment that the victim died seven days from the stabbing incident and after receiving
adequate care and treatment, because the apparent proximate cause of his death, the punctures in
his lungs, was a consequence of appellants stabbing him in the chest.
Anent the finding of treachery by the RTC, we agree that appellants act of suddenly stabbing
Florendo while he was innocently cycling along Sampaguita Street, Barangay Capari, Novaliches,
Quezon City constituted the qualifying circumstance of treachery. As we previously ruled, treachery
is present when the offender commits any of the crimes against persons, employing means,
methods, or forms in the execution, which tend directly and specially to insure its execution, without
risk to the offender arising from the defense which the offended party might make.
28
Here, appellant
surprised Florendo when he suddenly and swiftly attacked and stabbed him in the chest. The swift
turn of events left Florendo defenseless to protect himself, allowing appellant to commit the crime
without risk to his own person. Thus, we sustain the findings of the trial court and the Court of
Appeals that the qualifying circumstance of treachery attended the commission of the crime.
Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, provides for the
penalty of reclusion perpetua to death for the crime of murder. There being no aggravating or
mitigating circumstance, the RTC, as affirmed by the Court of Appeals, properly imposed the penalty
of reclusion perpetua, pursuant to Article 63, paragraph 2, of the Revised Penal Code.
29

However, to conform to existing jurisprudence, the Court must modify the amount of indemnity for
death and exemplary damages awarded by the courts a quo.
Anent the award of damages, when death occurs due to a crime, the following may be recovered: (1)
civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral
damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6) interest, in
proper cases.
30

We agree with the Court of Appeals that the heirs of the victim were able to prove before the trial
court actual damages in the amount of P27,896.00 based on the receipts
31
they submitted.
Moreover, we agree with the Court of Appeals that the award of exemplary damages is proper in this
case. We have stated that:
Unlike the criminal liability which is basically a State concern, the award of damages, however, is
likewise, if not primarily, intended for the offended party who suffers thereby. It would make little
sense for an award of exemplary damages to be due the private offended party when the
aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of consequence
to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the
case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party
to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil
Code.
32
(Emphasis omitted.)
We, however, increase the award of exemplary damages to P30,000.00
33
and the award for
mandatory civil indemnity to P75,000.00
34
to conform to recent jurisprudence.
We sustain the RTCs award for moral damages in the amount of P50,000.00 even in the absence of
proof of mental and emotional suffering of the victims heirs.
35
As borne out by human nature and
experience, a violent death invariably and necessarily brings about emotional pain and anguish on
the part of the victims family.
36

In addition, and in conformity with current policy, we also impose on all the monetary awards for
damages interest at the legal rate of 6% per annum from date of finality of this Decision until fully
paid.
37

WHEREFORE, the appeal is DENIED. The June 30, 2008 Decision of the Court of Appeals in CA-
G.R. CR.-H.C. No. 02413 is AFFIRMED. Appellant RAMIL RARUGAL alias "Amay Bisaya" is found
GUILTY beyond reasonable doubt of MURDER, and is sentenced to suffer the penalty of reclusion
perpetua. Appellant is further ordered to pay the heirs of Arnel M. Florendo the amounts of
P27,896.00 as actual damages, P75,000.00 as civil indemnity, P50,000.00 as moral damages, and
P30,000.00 as exemplary damages. All monetary awards for damages shall earn interest at the legal
rate of 6% per annum from date of finality of this Decision until fully paid.
No pronouncement as to costs.
SO ORDERED.












Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-43955-56 July 30, 1979
RENATO LAZATIN alias RENATO STA. CLARA, petitioner,
vs.
HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE LEON,
ARLENE DE LEON and IRMA L. VELOSO, respondents.
Ernesto T. Zshornack, Jr. for petitioner.
Jose W. Diokno Law Office private respondents the Leons.
Arturo E. Balbastro for privates respondent Veloso.

TEEHANKEE, J .:1wph1.t
The Court dismisses the petition which seeks to overrule respondent judge's orders declaring that
petitioner has failed to establish by competent evidence his alleged status as an adopted child of the
deceased Lazatin spouses and prays for judgment of this Court "declaring as established the fact of
(his) adoption as a son of the deceased spouses entitling him to succeed in their estates as such."
Respondent judge correctly ruled that he could not allow petitioner (who had filed a motion to
intervene in the proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to
settle her estate as her adopted son, after having earlier filed a motion to intervene in the intestate
proceedings of her pre-deceased husband as his admitted illegitimate [not natural] son), over the
opposition of private respondents, to introduce evidence that he had "enjoyed ... the status of an
adopted child of the without his first producing competent and documentary that there had been
judicial proceedings for his by the said spouses which resulted in the final judgment of a competent
court decreeing his adoption.
On January 13, 1974, Dr. Mariano M. Lazatin diamond intestate in Pasay City, survived by his wife,
Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon, married to
respondent Bernardo de Leon, and respondent Irma Lazatin, married to Francisco Veloso.
One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate proceeding
before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P. Mariano, Oscar,
Virgilio and Yvonne, claiming to be admitted illegitimate (not natural) children of Dr. Lazatin with one
Helen Munoz, intervened. Subsequently, one Lily Lazatin also intervened, claiming to be another
admitted illegitimate (not natural) child.
Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a &
holographic will executed on May 29, 1970, providing, among others, for a legacy of cash, jewelry,
and stocks to respondent Arlene de Leon, a granddaughter; a legacy of support to Rodolfo Gallardo,
a son of her late sister; and a legacy of education to Ramon Sta. Clara, son of petitioner Renato
Lazatin alias Renato Sta. Clara.
During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and Trust
Company, Roxas Boulevard branch, which either she or respondent Nora L. de Leon could open.
Five days after Margarita's death, respondent Nora L. de Leon, accompanied by her husband,
respondent Bernardo de Leon, opened the safety deposit box and removed its contents: (a) shares
of stock; (b) her adoption papers and those of her sister, respondent Irma L. Veloso; and (c) jewelry
belonging to her and to her mother. Respondent Nora L. de Leon claims that she opened the safety
deposit box in good faith, believing that it was held jointly by her and her deceased mother. Her sole
reason for opening the box was to get her stock certificates and other small items deposited therein.
When she was to close the deposit box, the bank personnel informed her that she needed an
authority from the court to do so, in view of her mother's death and so, she removed everything from
the box.
On June 3, 1974, private respondents filed a petition to probate the will of the late Margarita de Asis,
before docketed as Sp. Proc. No. 2341-P of respondent Court, Days after having learned that
respondent Nora L. de Leon had opened this safety deposit box, petitioner's son, Ramon Sta. Clara,
filed a motion in the probate court, claiming that the deceased had executed a will subsequent to
that submitted for probate and demanding its production. He likewise prayed for the opening of the
safety deposit box. Respondent Nora L. de Leon admitted that she opened the box but there was no
will or any document resembling a will therein.
Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the safety deposit
box was opened on November 6, 1974, at which time it was found to be empty, because prior
thereto respondent Nora L. de Leon had already removed its contents.
On November 22, 1974, or seven months after, the death of Margarita de Asis, petitioner intervened
for the first time in the proceedings to settle the estate of the late Dr. Mariano M. Lazatin (Sp. Proc.
No. 2326- P), as an admitted illegitimate (not natural) child.
Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in the estate
proceedings of Margarita de Asis to examine private respondents on the contents of the safety
deposit box, Whereupon, on January 31, 1975, the probate court ordered respondent Nora L. de
Leon to deliver the properties taken from the safety deposit box to the Clerk of Court. Subsequently,
however, the two cases (Sp. Proc. No. 2326-P, Mariano Lazatin, and 2341-P, Margarita de Asis)
were transferred to the sala of respondent Judge Jose C. Campos, Jr.
On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora L. de
Leon and Bernardo de Leon to produce all those papers and items removed from the safety deposit
box and to deliver the same to the custody of the court within one week. Within the period ordered,
respondent Nora L. de Leon deposited with the Clerk of Court, not the items themselves, but two
keys to a new safety deposit box which could only be opened upon order of the court.
On August 20, 1975, petitioner Renato to Lazatin alias Renato Sta. Clara filed a motion to intervene
in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on the basis of an
affidavit executed by Benjamin Lazatin, brother of the deceased Dr. Mariano M. Lazatin, the
petitioner was an "illegitimate son" of Dr. Lazatin and was later adopted by him. This affidavit was
later modified on August 19, 1975 to state that petitioner was adopted by both Mariano M. Lazatin
and his wife Margarita de Asis.
On September 29, 1975, Judge Campos found respondent' Nora L. de Leon guilty of contempt of
court for not complying with the orders of January 31, 1975 and May 29, 1975, requiring her to
produce and deliver to the court an the papers and items removed from the safety deposit box. Her
former counsel was also found guilty of contempt, sentenced to pay a fine of P00.00 and suspended
from appearing in the two cases (Sp. Proc. No. 2326-P, Mariano M. Lazatin, and Sp. Proc. No.
2341-P, Margarita de Asis), on her testimony that she, Nora L. de Leon, acted upon his advice.
Respondent court heard petitioner's motion to intervene as an adopted son in the estate of Margarita
de Asis, Sp. Proc. No. 2341-P, at which hearings petitioner presented no decree of adoption in his,
favor. Instead, petitioner attempted to prove, over private respondents' objections, that he had
recognized the deceased spouses as his parents; he had been supported by them until their death;
formerly he was known as "Renato Lazatin" but was compelled to change his surname to "Sta.
Clara" when the deceased spouses refused to give consent to his marriage to his present wife; that
at first, he and his wife stayed at the residence of Engracio de Asis, father of Margarita, but a few
months later, they transferred to the Mercy Hospital at Taft Avenue, Manila, owned by the deceased
spouses, where they continuously resided up to the present. Photographs were also intended to be
presented by petitioner, e.g., photograph of Irma Veloso where she addressed herself as sister of
petitioner; photograph of deceased Margarita de Asis and petitioner when he was a boy; document
showing that petitioners real name is "Renato Lazatin."
1

Respondent court first reserved its ruling on private respondents' objections to the admission of
petitioner's evidence, but on November 14, 1975, when petitioner could not present evidence on the
issue of his alleged legal adoption, respondent court discontinued the hearing and gave the parties
time to file memoranda on the question of the admissibility of the evidence sought to be introduced
by petitioner.
On March 4, 1976, respondent court barred the introduction of petitioner's evidence because: t. hqw
All the evidence submitted by Renato and Ramon Sta. Clara through their counsel do
not prove or have no tendency to prove the existence of any judicial proceeding
where the adoption of the parties above named were taken up by any court. Neither
do the evidence tend to establish the presence of any record of a proceeding in court
where the adoption of the above named persons was held. The evidence, however,
tends to prove a status of a recognized natural child which, however, is not the legal
basis for which Renato and Ramon seek to intervene in this proceedings. In view
thereof, and taking into consideration the evidence heretofore presented by the
petitioners, any further introduction of similar evidence, documentary or oral, would
not prove or tend to prove the fact of their adoption but rather of a recognized natural
child.
Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established the fact of
adoption in view of respondent Nora L. de Leon's refusal to comply with the orders of respondent
court to deposit the items she had removed from the safety deposit box of Margarita de Asis. As
authority therefor, petitioner invokes the sanction of Rule 29, Section 3 of the Rules of Court, since
according to him, the order of the court for the production of the items in the safety deposit box can
be considered as an order for production and inspection of documents under Rule 27.
Private respondents opposed the motion, and on March 26, 1976, respondent court denied
petitioner's motion. On April 26, 1976, respondent Nora L. de Leon deposited with respondent court
the items she had removed from the safety deposit box. An inventory was conducted by respondent
court, with notice to the parties, and the items surrendered consisted only of pieces of jewelry and
stock certificates.
On June 3,1976, respondent court, ruling on petitioners motion for definite resolution on his previous
n declare as established the fact of adoption, issued the f order: t.hqw
As far as the case of Renato Sta. Clara is his Petition to establish his status as an
adopted child, The Court has ruled that he has failed to establish such status. The
any motion for reconsideration unless based on some documentary proof.
Hence, the petition at bar.
We find the ruling of the respondent court to be in conformity with law and jurisprudence.
1. Adoption is a juridical act, a proceeding in rem
2
which creates between two persons a relationship
similar to that which results from legitimate paternity and filiation.
3
Only an adoption made through the
court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this
jurisdiction.
4
It is not of natural law at all, but is wholly and entirely artificial.
5
To establish the relation, the
statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity.
6
The
fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence.
The destruction by fire of a public building in which the adoption papers would have been filed if existent
does not give rise to a presumption of adoption nor is the destruction of the records of an adoption
proceeding to be presumed. On the contrary, the absence of a record of adoption has been said to evolve
a presumption of its non-existence.
7
Where, under the provisions of the statute, an adoption is effected by
a court order, the records of such court constitute the evidence by which such adoption may be
established.
8

2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial adoption.
We can not pluck from his chain of evidence any link to the real existence of a court decree of
adoption in his favor. Petitioner's proofs do not show or tend to show that at one time or another a
specific court of competent jurisdiction rendered in an adoption proceeding initiated by the late
spouses an order approving his adoption as a child of the latter. No judicial records of such adoption
or copies thereof are presented or attempted to be presented. Petitioner merely proceeds from a
nebulous assumption that he was judicially adopted between the years 1928 and 1932. By what
particular court was the adoption decreed or by whom was the petition heard, petitioner does not
even manifest, much less show. There are no witnesses cited to that adoption proceeding or to the
adoption decree. Apparently on the assumption that the adoption was commenced in Manila,
petitioner's counsel secured a certification from the Court of first Instance of Manila which, however,
negatively reported "(T)hat among the salvaged records now available in this Office, there has not
been found, after a diligent search, any record regarding the adoption of Mr. Renato Lazatin alias
Renato Sta. Clara allegedly filed sometime in the years 1928 to 1931 by the spouses Dr. Mariano M.
Lazatin and Margarita de Asis Lazatin." The certification of the Local Civil Registrar of Manila "(T)hat
our pre-war records relative to decisions of the Court of First Instance were either destroyed or
burned during the Liberation of the City of Manila," does not furnish any legal basis for a
presumption of adoption in favor of petitioner. This is because there was no proof that petitioner was
really adopted in Manila or that an adoption petition was filed in the Court of first Instance of Manila
by the deceased spouses, where, after hearing, a judgment of approval was rendered by said court.
Moreover, if there was really such adoption, petitioner could have conveniently secured a copy of the
newpaper publication of the adoption as required under Section 4, Rule 99 of the Rules of Court
(formerly Section 4, Rule 100) or a certification of the publishing house to that effect. Petitioner's
failure on this point is anotherer strong indication of the non-existence of the one who gave the
written consent of the non-existence of the adoption paper. We also observed to the adoption
(Section 3, Rule 99, Rules of Court), whether the parents or orphanage, does not appear on this
point is not so difficult and such proof must be presented if only to prove the real existence of the
adoption. And of course, if the war, the clear right and duty of petitioner was to duly reconstitute the
records as provided by law.
3. The absence of proof of such order of adoption by the court, as provided by the statute, cannot be
substituted by parol evidence that a child has lived with a person, not his parent, and has been
treated as a child to establish such adoption.
9
Even evidence of declaration of the deceased, made in
his lifetime, that he intended to adopt a child as his heir, and that he had adopted him, and of the fact that
the child resided with the deceased, as a member of his family, from infancy until he attained his majority,
is not sufficient to establish the fact of adoption.
10
Nor does the fact that the deceased spouses fed,
clothed, educated, recognized and referred to one like petitioner as an adopted child, recognized and
referred to one like petitioner as an adopted child, necessarily establish adoption of the child.
11
Withal,
the attempts of petitioner to prove his adoption by acts and declarations of the deceased do not discharge
the mandatory presentation of the judicial decree of adoption. The thrust of petitioner's evidence is rather
to establish his status as an admitted illegitimate child, not an adopted child which status of an admitted
illegitimate child was the very basis of his petitioner for intervention in the estate proceedings of the
late Dr. Lazatin, as above stated. (Supra, at page 3 hereof)
We do not discount though that declarations in regard to pedigree, although hearsay, are admitted
on the principle that they are natural expressions of persons who must know the truth.
12
Pedigree
testimony is admitted because it is the best that the nature of the case admits and because greater evil
might arise from the rejection of such proof than from its admission.
13
But, in proving an adoption, there is
a better proof available and it should be produced. The whereabouts of the child's family and circulation of
the jurisdiction in which they resided and investigation in those courts where adoption are usually granted
would surely produce an adoption order, if indeed there was an order.
14
Besides, since the point in favor
of receiving hearsay evidence upon matters of family history or pedigree is its reliability, it has been set
forth as a condition upon which such evidence is received that it emanate from a source within the family.
Pursuant to this view, before a declaration of a deceased person can be admitted to prove pedigree, or
ancestry, the relationship of the declarant, by either of blood or affinity to the family in question, or a
branch thereof, must ordinarily be established by competent evidence.
15
Section 33 of Rule 130 states:
"The act or declaration of a person deceased, or outside of the Philippines, or unable to testify, in respect
to the pedigree of another person related to him by birth or marriage, may be received in evidence where
it occurred before the controversy, and the relationship between the two persons is shown by evidence
other than such actor declaration ..."
4. Secondary evidence is nonetheless admissible where the records of adoption proceedings were
actually lost or destroyed. But, prior to the introduction of such secondary evidence, the proponent
must establish the former existence of the instrument. The correct order of proof is as follows:
Existence; execution; loss; contents; although this order may be changed if necessary in the
discretion of the court.
16
The sufficiency of the proof offered as a predicate for the admission of an
alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the
particular case.
17
As earlier pointed out, petitioner failed to establish the former existence of the adoption
paper and its subsequent loss or destruction. Secondary proof may only be introduced if it has first beer.
established that such adoption paper really existed and was lost. This is indispensable.
18
Petitioner's
supposed adoption was only testified to by him and is allegedly to be testified to a brother of the
deceased Mariano M. Lazatin or others who have witnessed that the deceased spouses treated petitioner
as their child. If adoption was really made, the records thereof should have existed and the same
presented at the hearing or subsequent thereto or a reasonable explanation of loss or destruction thereof,
if that be the case, adduced.
19

Assuming the mere fact that the deceased spouses treated petitioner as their child does not justify
the conclusion that petitioner had been in fact judicially adopted by the spouses nor does it
constitute admissible proof of adoption.
We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied to consider
as established the fact of his adoption due to the refusal of respondent Nora L. de Leon to produce
the document of adoption, because first, the fact or real existence of petitioner's adoption had not
been established; second, there is no proof that such document of adoption is in the possession of
respondent Nora L. de Leon; third, the motu proprio order of the court for Nora de Leon to produce
the items retrieved from the safety deposit box cannot be treated as a mode of discovery of
production and inspection of documents under Rule 27; and fourth, the items deposited in the safety
deposit box have already been surrendered by respondent Nora L. de Leon on April 26; 1976 and no
document of adoption in favor of petitioner was listed as found in the safety deposit box.
5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot properly
intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No. 2341-P as an adopted
child because of lack of proof thereof. For one to intervene in an estate proceeding, it is a requisite
that he has an interest in the estate, either as one who would be benefited as an heir or one who has
a claim against the estate like a creditor.
20
A child by adoption cannot inherit from the parent creditor.
by adoption unless the act of adoption has been done in strict accord with the statue. Until this is done, no
rights are acquired by the child and neither the supposed adopting parent or adopted child could be
bound thereby.
21
The burden of proof in establishing adoption is upon the person claiming such
relationship. He must prove compliance with the statutes relating to adoption in the jurisdiction where the
adoption occurred.
22
A fortiori if no hereditary interest in the estate can be gained by a claimant who failed
to submit proof thereof, whether the will is probated or not, intervention should be denied as it would
merely result in unnecessary complication.
23
To succeed, a child must be ligitimate, legitimated, adopted,
acknowledged illegitimate natural child or natural child by legal fiction or recognized spurious child.
24

In the face of the verified pleadings of record (constituting judicial admissions) which show that
petitioner sought to intervene on November 22, 1974 in the estate proceedings of his alleged
adoptive father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P) as an admitted illegitimate (not
natural) child,
25
while his intervention on August 20, 1975 in the estate of Margarita de Asis, widow of the
deceased Dr. Lazatin (Sp. Proc. No. 2341-P) was as her adopted child on the basis of the affidavit of a
brother of the deceased Dr. Lazatin, Benjamin Lazatin, executed August 19, 1975 (which affidavit
modified a first affidavit executed on May 31, 1975, which failed to estate by "oversight" petitioner, but
stated that affiant knew petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him)
as a son before the Court of First Instance of Manila sometime between the years 1928 and 1921") and
prescinding from the question of whether a natural or spurious child may be legally adopted by the
putative father, we hold that no grave abuse of discretion nor error of law as committed by respondent
judge in issuing the questioned orders of March 4, 1976, March 26, 1976 and June 3, 1976 denying
petitioner's petition "to declare as established in this proceeding the fact of adoption" and denying "any
motion for reconsideration unless based on some documentary proof." The Court finds no basis to grant
the affirmative relief sought in this proceeding by petitioner for a rendition of judgment "declaring as
established the fact of your petitioner's adoption as a son of the deceased spouses entitling him to
succeed in their estates as such in accordance with the applicable law on succession as to his
inheritance."
Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining order;
which as amended on July 21, 1976, restrained respondent judge "from proceeding with the hearing
scheduled on June 17, 1976 at 8:30 a.m., requiring the submission of evidence to establish heirship
in Special Proceedings No. 2326-P entitled 'Intestate Estate of the Late Mariano M. Lazatin' and
Special Proceedings No. 2341-P, entitled 'Testate Estate of the late Margarita de Asis Vda. de
Lazatin,' and from proceeding with the probate of the alleged holographic will of the deceased Do;a
Margarita de Asis Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976 and on any
other dates." With the Court's determination of the issues as herein set forth, there is no longer any
need for restraining the proceedings below and the said restraining order shall be immediately lifted.
On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow respondent
judge "to take the deposition of petitioner's witnesses to perpetuate their testimonies pursuant to
Rule 134, Section 7 of the Rules of Court, subject to the Court's ruling in due course on the
admissibility of such testimonies." The Court thereby permitted in effect the advance testimonies of
petitioner's witnesses, principally among them Rafael Lazatin and Esteban L. Lazatin, both brothers
of the deceased Dr. Mariano L. Lazatin and as stated in petitioner's motion of January 11, 1977: t.hqw
Substantially, the testimony of the above-named witnesses will be on the fact that
they had been informed by the deceased spouses, Mariano and Margarita Lazatin
that your petitioner was their [Mariano's and Margarita's] judicially adopted son and
to elicit further from them the fact that your petitioner enjoys the reputation of being
their judicially adopted son in the Lazatin family.
The Court's resolution allowing the advance testimonies of petitioner's witnesses was but in
application of the Court's long standing admonition to trial courts is reaffirmed in Lamagan vs. De la
Cruz,
26
, "to be liberal in accepting proferred evidence since even if they were to refuse to accept the
evidence, the affected party will nevertheless be allowed to spread the excluded evidence on the record,
for review on appeal." The Court therein once again stressed the established rule that "it is beyond
question that rulings of the trial court on procedural questions and on admissibility of evidence during the
course of the trial are interlocutory in nature and may not be the subject of separate appeal or review on
certiorari, but are to be assigned as errors and reviewed in the appeal properly taken from the decision
rendered by the trial court on the merits of the case,"
27
and that a party's recourse when proferred
evidence is rejected by the trial court is to make a offer stating on the record what a party or witness
would have testified to were his testimony not excluded, as well as to attach to the record any rejected
exhibits.
At the continuation of the proceedings below for declaration of heirship and for probate of the alleged
holographic the deceased Margarita de Asis Vda. de Lazatin, pet who has failed to establish his
status as an alleged ;m child of Margarita de Asis (unless, as reserved to him by the court below, he
can show some documentary proof),and whose intervention in the estate of the deceased Dr.
Mariano Lazatin is as an admitted illegitimate child, win have to decide whether he will pursue his
first theory of having the of such admitted illegitimate child of said deceased. Whatever be his theory
and his course of action and whether or not he may be duly snowed to intervene in the proceedings
below as such alleged admitted illegitimate child, his recourse in the event of an adverse ruling
against him is to make a formal offer of proof and of his excluded evidence, oral and documentary,
and seek a reversal on an appeal in due course.
ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's petition
below "to declare as established in this proceeding the fact of [his] adoption" are hereby affirmed.
The temporary restraining order issued on June 16, 1976 and amended on July 21, 1976 is ordered
lifted, effective immediately. Without costs.
SO ORDERED.
Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ., concur.1wph 1. t
De Castro, J., took no part.






Republic of the Philippines
SUPREME COURT
Manila
EN BANC

A.M. No. 533 September 12, 1974
IN RE: FLORENCIO MALLARE, respondent,
R E S O L U T I O N

FERNANDEZ, J .:p
On complaint of then Acting Immigration Commissioner, Martiniano P. Vivo, this Court ordered the
investigation of the matter of citizenship of Florencio Mallare, who was admitted to the Philippine Bar
on March 5, 1962, for the purpose of determining whether his name should be stricken from the roll
of persons authorized to practice law in the Philippines.
After an investigation conducted by this Court's Legal Officer Investigator, a decision was rendered
by this Court on April 29, 1968, holding that by preponderance of evidence, it appeared that
respondent Mallare's father, Esteban Mallare, was a Chinese up to his death; and his mother
admittedly being a Chinese, respondent is likewise a Chinese national. Consequently respondent
Florencio Mallare was declared excluded from the practice of law; his admission to the bar was
revoked, and he was ordered to return to this Court, the lawyer's diploma previously issued to him.
Respondent moved for reconsideration of the decision, which was denied by the Court in its
resolution of January 10, 1969. On February 4, 1969, respondent petitioned the Court for the
reopening of the case and for new trial on the ground, inter alia, of newly discovered evidence, the
introduction of which could alter the decision previously promulgated. The evidence proposed to be
presented consisted of (1) an entry in the registry of baptism of the Immaculate Concepcion Church
at Macalelon, Quezon, purporting to show that Estaben Mallare (respondent's father) is the natural
son of Ana Mallare, a Filipino; and (2) testimonies of certain persons who had a known Esteban
Mallare and his mother during their lifetime.
By resolution of July 31, 1969, this Court ruled:
Considering that the respondent, as a duly admitted member of the bar, should be
given ample opportunity to establish the true facts about his citizenship and that no
effort should be spared to ascertain the truth before strippling him of the privilege
granted to him by this Court since 1962, and denying him the practice of his chosen
profession which he has honorably discharged as far as the records show:
The Court Resolved to set aside the decision of April 29, 1968 and to grant the re-
opening and new trial prayed for, which shall take place before the Court's
Investigating Officer on the days specified by him upon notice to respondent Mallare,
the Commissioner of Immigration and the Solicitor General, wherein said parties may
adduce all proper additional evidence that they may desire to present. The proofs
taken at the original investigation shall not be retaken, but considered as part of the
evidence in the new trial. Thereafter, the Court Investigator shall submit his report on
this Tribunal. (Emphasis supplied)
Accordingly, the parties submitted their respective additional evidences before the Court's
investigator.
Respondent's petition to set aside the decision of this Court of April 29, 1968, as well as the
resolution of January 10, 1969, is premised upon three basic arguments, to wit: (a) Respondent's
father, Esteban Mallare, being the natural son of Ana Mallare, a Filipino, was a Filipino citizen; (b)
Esteben Mallare, the son of a Filipino mother, by his own overt acts, had chosen Philippine
citizenship; and (c) respondent, a legitimate son of Esteban Mallare, is a Filipino citizen.
The determinative issue in this controversy, therefore, revolves around the citizenship of
respondent's father, Esteban Mallare, for if Esteban were a Filipino as respondent claims, the latter
axiomatically would also be a Filipino and the objection against his inclusion in the Roll of Attorneys
in the Philippines would lose legal basis.
After a painstaking study of the original and additional evidences herein presented, the Court finds
sufficient grounds to warrant a definite setting aside of Our decision of April 29, 1968, and a
definitive declaration that respondent Florencio Mallare is a Filipino citizen and therefore with
qualification and right to continue the practice of law in the Philippines.
To support his contention that respondent Florencio Mallare is not a Filipino, the Commissioner of
Immigration presented:
Exhibits "A" and "B", Opinions Nos. 90 and 166 of the Secretary of Justice dated March 31, 1955
and July 10, 1959, respectively, to the effect that respondent and his brothers and sisters had failed
to establish their claim to Philippine citizenship;
Exhibit "C", the death certificate of Esteban Mallare dated June 7, 1945, wherein he was reported to
be of Chinese nationality;
Exhibits "D", "E", "F" and "G", the birth certificates of respondent, his brothers and sisters, dated
October 23, 1929, November 8, 1932, October 26, 1939, and February 10, 1943, respectively,
stating that their father was a Chinese citizen, born in Amoy, China, and wherein respondent was
reported to be a Chinese, born in Macalelon, Quezon;
Exhibits "H" to "M" the records of Civil Case No. 329-G and Special Proceeding No. 3925, both of
the Court of First Instance of Quezon; and
Exhibit "N", respondent's alien certificate of registration, dated August 25, 1950.
Upon the other hand, respondent submitted
Exhibit "1", the decision of the Court of First Instance of Quezon in Civil Case No. 329-G, dated
November 18, 1959, upholding the validity of a contract of sale, the vendees therein (including
respondent) being citizens of the Philippines;
Exhibit "2", an order by the Acting Commissioner of Immigration, canceling respondent's alien
certificate of registration on the strength of the court's decision in Civil Case No. 329-G; Exhibit "3",
identification certificate No. 11712 issued by the Bureau of Immigration, declaring respondent "as a
citizen of the Philippines by birth being the legitimate son of Esteban Mallare, a Filipino citizen as
'per order of this office dated 8 June 1960 CEBNO 4223-R'";
Exhibit "4", final order of the Court of First Instance of Quezon, dated November 28, 1960, in Special
Proceedings No. 3925, ordering the Municipal Treasurer of Macalelon, Quezon, to correct the entry
in the Registry of Birth book of the municipality by changing respondent's nationality from "Chinese"
to "Filipino";
Exhibit "5", respondent's affidavit dated October 7, 1961 showing him to be a registered voter of
Macalelon, Quezon;
Exhibit "6", respondent's passport issued on March 5, 1962, showing that he is a citizen of the
Philippines;
Exhibit "7", opinion of the Solicitor General, dated July 25, 1962, recognizing respondent Florencio
Mallare as a Filipino citizen;
Exhibit "L", landing certificate of Te Na (respondent's mother), dated July 7, 1926, wherein she was
certified as "wife of P.I. citizen";
Exhibit "K-9", certification by the municipal treasurer of Macalelon, Quezon that Esteban Mallare was
registered in the Registry List of Voters on April 14, 1928; and
The entry in the baptismal registry of the Immaculate Concepcion Church at Macalelon, Quezon,
purporting to show that Esteban Mallare was the natural child of Ana Mallare, a Filipina.
Respondent also presented the following residents of Macalelon, Quezon:
(a) Damiana Cabangon, 80 years old who declared that she was with her mother, the "hilot" who
attended to Ana Mallare during her delivery, when Esteban Mallare was born;
1
that she was present
when Esteban was baptized;
2
that Ana Mallare had lived continuously in Macalelon and was reputed to
be unmarried;
3
that she had never met (seen) Esteban's father, a certain Mr. Dy.
4

(b) Rafael Catarroja 77 years old and former mayor of Macalelon who declared that he knew
Esteban Mallare even as a child;
5
that Esteban was then living with his mother, Ana Mallare, a Tagala,
who was cohabiting with a Chinese;
6
that Esteban started voting in 1934, and became one of his (the
witness') campaign leaders when he ran for the mayor ship in 1934.
7

(c) Salomon Gimenez, 75 years old and former mayor of Macalelon, who declared having known
Esteban Mallare; that in the elections of l925, when Esteban campaigned for a rival candidate
against him, he (the witness) wanted to seek for Esteban's disqualification; that he sought the
counsel of Judge Gaudencio Eleazar (a relative of the witness), who advised him that a
disqualification move would not prosper because Esteban's mother was not married to Esteban's
Chinese father;
8
that as of 1940, when witness was municipal mayor, there were only about 3,000
residents in Macalelon.
9

(d) Joaquin Enobal, 69 years old, who declared that he was a classmate and playmate of Esteban
Mallare, whose house was only about five houses away from theirs; 10 that he had not seen the
husband of Ana Mallare;
11
that Ana was a Tagalog who had lived in Macalelon.
12

In Our decision of April 29, 1968, respondent's claim that he is a Filipino was denied for lack of
evidence proving the Philippine citizenship of his father, Esteban Mallare. It was ruled that Ana
Mallare (Esteban's mother) can not be considered a Filipino, there being no proof that she was "an
inhabitant of the Philippines continuing to reside therein who was a Spanish subject on the eleventh
day of April, eighteen hundred and ninety-nine"; that the landing certificate issued by the Bureau of
Immigration which referred to respondent's mother, Te Na, as "wife of Dy Esteban, P.I. citizen", was
based upon an ex parte determination of the evidence presented by therein applicant and
consequently carries little evidentiary weight as to the citizenship of her said husband; and that the
affidavit of Esteban Mallare, executed on February 20, 1939, to the effect that he had chosen to
follow the citizenship of his Filipino mother was not only self-serving, but also it can not be
considered a re-affirmation of the alleged election of citizenship since no previous election of such
citizenship has been proved to exist.
With the additional evidence submitted by respondent pursuant to the authority granted by this
Court, the aforementioned void in the proof of respondent's citizenship has been duly filled.
The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and
residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is
a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born
out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of
Esteban Mallare. Reputation has been held admissible as evidence of age, birth, race, or race-
ancestry, and on the question of whether a child was born alive. Unlike that of matters of pedigree,
general reputation of marriage may proceed from persons who are not members of the family the
reason for the distinction is the public interest that is taken in the question of the existence of marital
relations.
13

The principle could not have been more true than in a Philippine rural community where
relationships not in conformity with established contentions become the subject of criticisms and
public cynosure. Thus, the public reputation in Macalelon that Esteban was Ana's natural child,
testified to by the witness, would constitute proof of the illegitimacy of the former. Besides, if Estaban
were really born out of legal union, it is highly improbable that he would be keeping the surname
"Mallare" after his mother, instead of adopting that of his father. And it would be straining the
imagination to perceive that this situation was purposedly sought by Esteban's parents to suit some
ulterior motives. In 1903, we can not concede that alien inhabitants of his country were that
sophisticated or legally-oriented.
The assertion of the witnesses, which have not been controverted, that Ana Mallare is a Tagalog
(and, therefore, a Filipino citizen), cannot be assailed as being mere conclusions devoid of
evidentiary value. The declarations were not only based on the reputation in the community
regarding her race or race-ancestry, which is admissible in evidence, but they must have certain
factual basis. For it must be realized that in this Philippine society, every region possesses certain
characteristics all its own. Thus, a Tagalog would normally detect if a person hails from the same
region even from the way the latter speaks. Considering that the witnesses testified having known,
and lived with, Ana Mallare in Macalelon, their declaration that she is a Tagalog should receive a
high degree of credibility.
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other
act would be necessary to confer on him all the rights and privileges attached to Philippine
citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands,
42 Phil. 543; Serra vs. Republic, L-4223, May 12, 1952; Sy Quimsuan vs. Republic, L-4693, Feb. 16,
1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act taken on the erroneous
belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully
entitled.
14

And even assuming arguendo that Ana Mallare were legally married to an alien, Esteban's exercise
of the right of suffrage when he came of age, constitutes a positive act of election of Philippine
citizenship. It has been established that Esteban Mallare was a registered voter as of April 14, 1928
(Exh. "K-9"), and that as early as 1925 (when he was about 22 years old), Esteban was already
participating in the elections and campaigning for certain candidate. These acts are sufficient to
show his preference for Philippine citizenship.
15
Indeed, it would be unfair to expect the presentation of
a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7,
1941, no particular proceeding was required to exercise the option to elect Philippine citizenship, granted
to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine Constitution.
It is true that in the death certificate of Esteban Mallare (Exh. "C"), he was referred to as a Chinese
national, and in the birth certificates of respondent and his brothers and sister (Exhs. "D", "E", "F"
and "G"), they were declared to be of Chinese nationality. Respondent likewise appeared to have
applied for alien registration on August 25, 1950 (Exh. "N"). While said documents are public and the
entries therein are, consequently, presumed to be correct, such presumption is merely disputable
and will have to yield to more positive evidence establishing their inaccuracy.
Artemio Mallare, Esteban's eldest son and who supposedly supplied the data appearing in Exhibit
"C", denied having any hand in the funeral arrangements and the preparation of the said death
certification of his father. He declared that he was merely 16 years old when his father met his death
in an accident in 1945, and he came to know of it only when he was brought to the funeral parlor on
the following day.
16
The entries in the birth certificates (Exhs. "D", "E", and "G"), on the other hand,
appeared to have been prepared upon information given by the nurse or midwife who attended to
respondent's mother during her deliveries and who would have no knowledge of the actual fact of the
place of birth and the citizenship of Esteban, the father; and in the case of respondent Florencio Mallare,
the informant was neither his father or mother; it was Maria Arana a "hilot". In the case of the birth
certificate of Esperanza Mallare (Exh. "F"), the informant appeared to be Esteban Mallare himself. It is
noted, however, that no proof has been presented to show that it was Esteban Mallare who personally
gave the information that the child's and parents' nationality is Chinese. And any error on his part can not
affect respondent Florencio Mallare. With respect to the registration of respondent as a citizen of China in
1950 (Exh. "N"), it was explained that this was secured by respondent's mother, on the belief that upon
the death of her husband, Esteban Mallare, she and her children reverted to Chinese citizenship. At any
rate, even assuming that said documents were prepared with actual knowledge and consent by
respondent or by his parents, on the erroneous belief that Esteban was a non-Filipino, such acts would
not cause the loss or forfeiture of Philippine citizenship
17
which Esteban acquired from his Filipino
mother.
Complainant places much emphasis on the convicting testimonies of the expert witnesses on the
entry in the baptismal registry of the Immaculate Concepcion church. The discrepancy in the
testimonies of said witnesses, however, loses significance in the face of the finding, based on other
evidence that Esteban Mallare is the natural child of Ana Mallare, born to her in 1903 at Macalelon,
Quezon.
Upon the foregoing considerations, and on the basis of the original and additional evidence herein
adduced the decision of this Court dated April 29, 1968, is hereby definitely set aside, and the
complaint in this case is DISMISSED, without pronouncement as to costs.
Makalintal, C.J., Zaldivar, Castro, Fernando, Teehankee, Barredo, Antonio, Esguerra, Muoz Palma
and Aquino, JJ., concur.
Makasiar, J., took no part.























Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 158362 April 4, 2011
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
GILBERTO VILLARICO, SR. @ "BERTING", GILBERTO VILLARICO, JR., JERRY RAMENTOS,
and RICKY VILLARICO, Accused-Appellants.
D E C I S I O N
BERSAMIN, J :
The identification of the accused as the person responsible for the imputed crime is the primary duty
of the State in every criminal prosecution. Such identification, to be positive, need not always be by
direct evidence from an eyewitness, for reliable circumstantial evidence can equally confirm it as to
overcome the constitutionally presumed innocence of the accused.
On appeal by the accused is the decision of the Court of Appeals (CA) promulgated on June 6,
2003,
1
finding Gilberto Villarico, Sr., Gilberto Villarico, Jr., Jerry Ramentos,
2
and Ricky Villarico guilty
of murder for the killing of Haide Cagatan, and imposing the penalty of reclusion perpetua on each of
them, thereby modifying the decision of the Regional Trial Court (RTC), Branch 16, in Tangub City
that had pronounced them guilty of homicide aggravated by dwelling.
3

With treachery having attended the killing, we affirm the CA but correct the civil liability to accord
with pertinent law and jurisprudence.
Antecedents
On October 7, 1999, an information for murder was filed in the Regional Trial Court in Misamis
Occidental (RTC) against all the accused,
4
the accusatory portion of which reads:
That on or about August 8, 1999, at about 7:50 oclock in the morning at Barangay Bolinsong,
Municipality of Bonifacio, Province of Misamis Occidental, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring, confederating and mutually helping
one another, with intent to kill, armed with a short firearms (sic), did then and there willfully,
unlawfully, feloniously suddenly and treacherously shoot HAIDE CAGATAN at the back penetrating
through the neck which cause(d) the instant death of said victim and that he had no chance to avoid
or defend himself from the attack.
CONTRARY TO LAW.
All the accused pleaded not guilty at their December 15, 1999 arraignment.
Version of the Prosecution
At around 7:50 p.m. on August 8, 1999, Haide was busy preparing dinner in the kitchen of his
familys residence in Bolinsong, Bonifacio, Misamis Occidental. The kitchen, located at the rear of
the residence, had a wall whose upper portion was made of three-feet high bamboo slats (sa-sa)
and whose lower portion was also made of bamboo slats arranged like a chessboard with four-inch
gaps in between. At that time, Haides sister-in-law Remedios Cagatan was attending to her child
who was answering the call of nature near the toilet. From where she was, Remedios saw all the
accused as they stood at the rear of the kitchen aiming their firearms at the door Ricky Villarico
was at the left side, and Gilberto, Jr. stood behind him, while Gilberto, Sr. was at the right side, with
Ramentos behind him. When Gilberto, Jr. noticed Remedios, he pointed his gun at her, prompting
Remedios to drop to the ground and to shout to Lolita Cagatan, her mother-in-law and Haides
mother: Nay, Nay tawo Nay(Mother, mother, there are people outside, mother). At that instant,
Remedios heard three gunshots.
5

Francisco Cagatan, the father of Haide, also heard the gunshots just as he was coming out of the
toilet, making him instinctively jump into a hole, from where he was able to see and recognize
Gilberto, Sr., Gilberto, Jr. and Ricky who were then standing by the kitchen door. They were aiming
their guns upward, and soon after left together with Ramentos.
6

Lolita also heard the gunshots while she was in the sala. She recalled that Haide then came towards
her from the kitchen, asking for help and saying: Tabang kay gipusil ko ni Berting (I was shot by
Berting).
7
At that, she and Remedios brought the wounded Haide to Clinica Ozarraga, where he was
treated for gunshot wounds on his left scapular region (back of left shoulder) and right elbow. He
succumbed shortly thereafter due to hypovolemic shock or massive loss of blood.
8

Version of the Defense
The accused denied the accusations and each proffered an alibi.
Gilberto, Sr. claimed that he was sleeping in his home with a fever when he heard a gunshot. He
insisted that he learned that Haide had been shot only in the next morning.
9
His denial and alibi were
corroborated by his wife Carmelita
10
and his daughter Jersel.
11

Gilberto, Jr. testified that on the day of the incident, he went to Liloan, Bonifacio, Misamis Occidental
at around 5:00 p.m. to visit his girlfriend together with Charlie Bacus and Randy Hernan. They
stayed there until 9:00 p.m. Thereafter, they proceeded to Tiaman to attend the wake for one Helen
Oligario Cuizon, and were there for an hour. They then returned to Bolinsong and spent the night in
the house of Randy. It was only in the morning that Randys father informed them that Haide had
been shot.
12

Ricky declared that he stayed throughout the whole evening of August 8, 1999 in the house of his
aunt Flordeliza.
13
Myrna Hernan, a neighbor of Flordeliza, corroborated his testimony.
14

Ramentos alleged that he was drinking tuba with others at the store owned by Cinderella Bacus at
the time of the shooting; and that he went home at around 9:00 p.m. after his group was done
drinking. He did not recall hearing any gunshots while drinking and came to know of the shooting
only from a certain Anecito Duyag on the following morning.1avvphi 1
To discredit the testimony about Haide being able to identify his assailants, the Defense presented
Peter Ponggos, who narrated that he had been on board a motorcycle (habal-habal) when Lolita and
Remedios asked for his help; and that he then aided Lolita and Remedios in bringing Haide to the
hospital. According to Peter, he asked Haide who had shot him, but Haide replied that there had
been only one assailant whom he did not recognize.
15

Ruling of the RTC
After trial, the RTC convicted the four accused of homicide aggravated by dwelling, disposing:
16

WHEREFORE, premises considered, the Court finds all the accused guilty beyond reasonable doubt
of the crime of Homicide, with one aggravating circumstance of dwelling, and applying the
Indeterminate Sentence Law, hereby sentences each one of them to a penalty of imprisonment
ranging from 6 years and 1 day, as its minimum to 17 years, 4 months and 1 day, as its maximum, to
suffer the accessory penalties provided for by law, to pay jointly and solidarily, the heirs of the
victim P50,000.00, as civil liability and to pay the costs.
Let all the accused be credited of the time that they were placed in jail under preventive
imprisonment, applying the provisions of Art. 29 of the Revised Penal Code, as amended.
SO ORDERED.
The RTC accorded faith to the positive identification of the accused by the Prosecutions witnesses,
and disbelieved their denial and alibis due to their failure to show the physical improbability for them
to be at the crime scene, for the distances between the crime scene and the places where the
accused allegedly were at the time of the commission of the crime were shown to range from only
100 to 700 meters.
17
The RTC found, however, that the Prosecution was not able to prove treachery
because:
xxx The medical report of "gunshot wound left scapular region" which the doctor interpreted to be at
the back of the left shoulder is not sufficient to prove treachery, it being susceptible to 2 different
interpretations: one: that victim had his back towards his assailants, and two: that he was actually
facing them but he turned around for cover upon seeing the armed "group of Berting". The Court is
inclined to believe the second interpretation because the victim was able to see and identify his
assailants. Two prosecution witnesses testified that the victim identified to them who shot him.
18

Ruling of the CA
On intermediate review, the CA modified the RTCs decision, holding instead that murder was
established beyond reasonable doubt because the killing was attended by treachery, viz:
19

WHEREFORE, the appealed Decision is hereby MODIFIED. Pursuant to Section 13, paragraph 2 of
Rule 124 of the Rules of Criminal Procedure, We render JUDGMENT without entering it, as follows:
1. We find all accused guilty beyond reasonable doubt of MURDER. Each accused is hereby
SENTENCED TO SUFFER the penalty of reclusion perpetua.
2. The Division Clerk of Court is hereby directed to CERTIFY and ELEVATE the entire
records of this case to the Supreme Court for review.
SO ORDERED.
20

Citing People v. Valdez,
21
the CA explained that the attendance of treachery did not depend on the
position of the victim at the time of the attack, for the essence of treachery was in the element of
surprise the assailants purposely adopted to ensure that the victim would not be able to defend
himself. Considering that the accused had purposely positioned themselves at night outside the door
to the kitchen from where they could see Haide, who was then busy preparing dinner, through the
holes of the kitchen wall, the CA concluded that Haide was thus left unaware of the impending
assault against him.
Issues
In this recourse, the accused raise the following errors:
I
THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANTS
OF MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE THE IDENTITY OF
THE ASSAILANT AS WELL AS ACCUSED-APPELLANTS GUILT BEYOND REASONABLE
DOUBT.
II
THE COURT OF APPEALS GRAVELY ERRED IN CONSIDERING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY, ON THE ASSUMPTION THAT INDEED ACCUSED-
APPELLANTS ARE GUILTY.
The accused contend that the Prosecution witnesses failed to positively identify them as the persons
who had actually shot Haide; that treachery was not attendant because there was no proof showing
that they had consciously and deliberately adopted the mode of attacking the victim; and that
assuming that they committed the killing, they could only be convicted of homicide.
The decisive queries are, therefore, the following:
(a) Should an identification, to be positive, have to be made by a witness who actually saw
the assailants?
(b) Was treachery attendant in the killing of Haide as to qualify the crime as murder?
Ruling
We affirm the finding of guilt for the crime of murder, but modify the civil liability.
1.
Positive identification refers to
proof of identity of the assailant
The first duty of the prosecution is not to prove the crime but to prove the identity of the criminal, for,
even if the commission of the crime can be established, there can be no conviction without proof of
the identity of the criminal beyond reasonable doubt.
22
In that regard, an identification that does not
preclude a reasonable possibility of mistake cannot be accorded any evidentiary force.
23
The
intervention of any mistake or the appearance of any weakness in the identification simply means
that the accuseds constitutional right of presumption of innocence until the contrary is proved is not
overcome, thereby warranting an acquittal,
24
even if doubt may cloud his innocence.
25
Indeed, the
presumption of innocence constitutionally guaranteed to every individual is forever of primary
importance, and every conviction for crime must rest on the strength of the evidence of the State, not
on the weakness of the defense.
26

The accused contend that the Prosecution witnesses did not actually see who had shot Haide;
hence, their identification as the malefactors was not positively and credibly made.
We cannot uphold the contention of the accused.
The established circumstances unerringly show that the four accused were the perpetrators of the
fatal shooting of Haide. Their identification as his assailants by Remedios and Francisco was
definitely positive and beyond reasonable doubt. Specifically, Remedios saw all the four accused
near the door to the kitchen immediately beforethe shots were fired and recognized who they were.
She even supplied the detail that Gilberto, Jr. had trained his firearm towards her once he had
noticed her presence at the crime scene. On his part, Francisco attested to seeing the accused near
the door to the kitchen holding their firearms right after he heard the gunshots, and also recognized
them.
The collective recollections of both Remedios and Francisco about seeing the four accused standing
near the door to the kitchen immediately before and after the shooting of Haide inside the kitchen
were categorical enough, and warranted no other logical inference than that the four accused were
the persons who had just shot Haide. Indeed, neither Remedios nor Francisco needed to have
actually seen who of the accused had fired at Haide, for it was enough that they testified that the four
armed accused: (a) had strategically positioned themselves by the kitchen door prior to the shooting
of Haide; (b) had still been in the same positions after the gunshots were fired; and (c) had
continuously aimed their firearms at the kitchen door even as they were leaving the crime scene.
The close relationship of Remedios and Francisco with the victim as well as their familiarity with the
accused who were their neighbors assured the certainty of their identification as Haides assailants.
In Marturillas v. People,
27
the Court observed that the familiarity of the witness with the assailant
erased any doubt that the witness could have erred; and noted that a witness related to the victim
had a natural tendency to remember the faces of the person involved in the attack on the victim,
because relatives, more than anybody else, would be concerned with seeking justice for the victim
and bringing the malefactor before the law.
28

Moreover, the following portions of Lolitas testimony show that Haide himself recognized and
identified his assailants, to wit:
Atty. Fernandez:
Q. And where were you at that time when he was shot?
A. In the sala.
Q. Could you possibly tell the Honorable Court what actually took place when your son was shot?
A. He came from the kitchen at that time when I heard gunreports, he said "Nay" help me because I
was shot by Berting.
29

xxx
Atty. Anonat:
Q. And that affidavit was executed by you at the Bonifacio Police Station?
A. Yes.
xxx
Q. And you affirm to the truth of what you have stated in this affidavit?
A. Yes.
Q. On question No. 7 you were asked in this manner "Giunsa man nimo pagkasayod nga sila
maoy responsible sa kamatayon sa imong anak? How do you know that they were responsible (for)
the death of your son? And your answer is this "Tungod kay ang biktima nakasulti pa man sa wala
pa siya namatay ug ang iyang pulong mao nga TABANG NAY KAY GIPUSIL KO NILA NI BERTING
ug nasayod ako nga sila gumikan sa akong mga testigos." which translated into English Because
the victim was able to talk before he died and the words which he told me help me Nay I am shot by
the group of Berting and I know this because of my witnesses.
30

xxx
The statement of Haide to his mother that he had just been shot by the group of Berting uttered in
the immediate aftermath of the shooting where he was the victim was a true part of the res gestae.
The statement was admissible against the accused as an exception to the hearsay rule under
Section 42, Rule 130 of the Rules of Court, which provides:
Section 42. Part of the res gestae. - Statements made by a person while a startling occurrence is
taking place or immediately prior or subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may be received as part of the
res gestae. (36 a)
The term res gestae refers to "those circumstances which are the undesigned incidents of a
particular litigated act and which are admissible when illustrative of such act."
31
In a general way, res
gestae includes the circumstances, facts, and declarations that grow out of the main fact and serve
to illustrate its character and which are so spontaneous and contemporaneous with the main fact as
to exclude the idea of deliberation and fabrication.
32
The rule on res gestae encompasses the
exclamations and statements made by either the participants, victims, or spectators to a crime
immediately before, during, or immediately after the commission of the crime when the
circumstances are such that the statements were made as a spontaneous reaction or utterance
inspired by the excitement of the occasion and there was no opportunity for the declarant to
deliberate and to fabricate a false statement.
33

The test of admissibility of evidence as a part of the res gestae is whether the act, declaration, or
exclamation is so intimately interwoven or connected with the principal fact or event that it
characterizes as to be regarded a part of the principal fact or event itself, and also whether it clearly
negatives any premeditation or purpose to manufacture testimony.
34
A declaration or an utterance is
thus deemed as part of the res gestae that is admissible in evidence as an exception to the hearsay
rule when the following requisites concur: (a) the principal act, the res gestae, is a startling
occurrence; (b) the statements were made before the declarant had time to contrive or devise; and
(c) the statements must concern the occurrence in question and its immediately attending
circumstances.
35

We find that the requisites concurred herein. Firstly, the principal act the shooting of Haide was a
startling occurrence. Secondly, his statement to his mother about being shot by the group of Berting
was made before Haide had time to contrive or to devise considering that it was uttered immediately
after the shooting. And, thirdly, the statement directly concerned the startling occurrence itself and its
attending circumstance (that is, the identities of the assailants). Verily, the statement was reliable as
part of the res gestae for being uttered in spontaneity and only in reaction to the startling occurrence.
In the face of the positive identification of all the four accused, it did not matter whether only one or
two of them had actually fired the fatal shots. Their actions indicated that a conspiracy existed
among them. Indeed, a conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
36
Direct proof of a previous
agreement among the accused to commit the crime is not necessary,
37
for conspiracy may be
inferred from the conduct of the accused at the time of their commission of the crime that evinces a
common understanding among them on perpetrating the crime.
38
Thus, the concerted acts of the
four manifested their agreement to kill Haide, resulting in each of them being guilty of the crime
regardless of whether he actually fired at the victim or not. It is axiomatic that once conspiracy is
established, the act of one is the act of all;
39
and that all the conspirators are then liable as co-
principals.
40

But did not the fact that the name Berting without any surname being too generic open the
identification of the accused as the assailants to disquieting doubt about their complicity?
We hold that there was no need for a surname to be attached to the nickname Berting in order to
insulate the identification by Haide from challenge. The victims res gestae statement was only one
of the competent and reliable pieces of identification evidence. As already shown, the accused were
competently incriminated also by Remedios and Francisco in a manner that warranted the logical
inference that they, and no others, were the assailants. Also, that Berting was the natural nickname
for a person whose given name was Gilberto, like herein accused Gilberto, Sr. and Gilberto, Jr., was
a matter of common knowledge in the Philippines. In fine, the pieces of identification evidence,
including Haides res gestae statement, collaborated to render their identification unassailable.
Relevantly, the Court has distinguished two types of positive identification in People v.
Gallarde,
41
namely: (a) that by direct evidence, through an eyewitness to the very commission of the
act; and (b) that by circumstantial evidence, such as where the accused is last seen with the victim
immediately before or after the crime. The Court said:
xxx Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types of positive
identification. A witness may identify a suspect or accused in a criminal case as the perpetrator of
the crime as an eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have actually
seen the very act of commission of a crime, he may still be able to positively identify a
suspect or accused as the perpetrator of a crime as for instance when the latter is the person
or one of the persons last seen with the victim immediately before and right after the
commission of the crime. This is the second type of positive identification, which forms part of
circumstantial evidence, which, when taken together with other pieces of evidence constituting an
unbroken chain, leads to only fair and reasonable conclusion, which is that the accused is the author
of the crime to the exclusion of all others. If the actual eyewitnesses are the only ones allowed to
possibly positively identify a suspect or accused to the exclusion of others, then nobody can ever be
convicted unless there is an eyewitness, because it is basic and elementary that there can be no
conviction until and unless an accused is positively identified. Such a proposition is absolutely
absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix
wherefrom a trial court may draw its conclusion and finding of guilt. If resort to circumstantial
evidence would not be allowed to prove identity of the accused on the absence of direct evidence,
then felons would go free and the community would be denied proper protection.
42

To conclude, the identification of a malefactor, to be positive and sufficient for conviction, does not
always require direct evidence from an eyewitness; otherwise, no conviction will be possible in
crimes where there are no eyewitnesses. Indeed, trustworthy circumstantial evidence can equally
confirm the identification and overcome the constitutionally presumed innocence of the accused.
Faced with their positive identification, the four accused had to establish convincing defenses. They
opted to rely on denial and their respective alibis, however, but both the RTC and the CA rightly
rejected such defenses.
The rejection was warranted. Long judicial experience instructs that their denial and alibis, being too
easy to invent, could not overcome their positive identification by credible Prosecution witnesses
whose motives for the identification were not shown to be ill or vile. Truly, a positive identification
that is categorical, consistent, and devoid of any showing of ill or vile motive on the part of the
Prosecution witnesses always prevails over alibi and denial that are in the nature of negative and
self-serving evidence.
43
To be accepted, the denial and alibi must be substantiated by clear and
convincing evidence establishing not only that the accused did not take part in the commission of the
imputed criminal act but also that it was physically impossible for the accused to be at or near the
place of the commission of the act at or about the time of its commission. In addition, their proffered
alibis were really unworthy of credit because only the accused themselves and their relatives and
other intimates substantiated them.
44

2.
The essence of treachery is in the mode of attack,
not in the relative position of the victim and the assailant
The RTC ruled out the attendance of treachery due to its persuasion that the victim must have been
facing his assailants at the time of the assault and was thus not taken by surprise. The CA differed
from the RTC, however, and stressed that regardless of the position of the victim, the essence of
treachery was the element of surprise that the assailants purposely adopted to ensure that the victim
was not able to defend himself.
45

We uphold the ruling of the CA.
There is treachery when: (a) at the time of the attack, the victim was not in a position to defend
himself; and (b) the accused consciously and deliberately adopted the particular means, methods, or
forms of attack employed by him.
46
The essence of treachery lies in the suddenness of the attack
that leaves the victim unable to defend himself, thereby ensuring the commission of the offense.
47
It
is the suddenness of the attack coupled with the inability of the victim to defend himself or to retaliate
that brings about treachery; consequently, treachery may still be appreciated even if the victim was
facing the assailant.
48

Here, the elements of treachery were present. His assailants gunned Haide down while he was
preoccupied in the kitchen of his own abode with getting dinner ready for the household. He was
absolutely unaware of the imminent deadly assault from outside the kitchen, and was for that reason
in no position to defend himself or to repel his assailants.
The argument of the accused that the Prosecution did not show that they had consciously and
deliberately adopted the manner of killing Haide had no substance, for the testimonies of Remedios
and Francisco disclose the contrary.
Remedios testimony about seeing the four accused taking positions near the door to the kitchen
immediately preceding the shooting of Haide was as follows:
Atty. Fernandez:
xxx
Q. Were you present when the late Haide Cagatan was shot?
A. Yes, I was present.
Q. Could you possibly tell the Court in what particular place you were when the alleged incident took
place?
A. I was in the ground floor.
Q. What were you doing there?
A. I attended my child (to) answer(ing) the call of his (sic) nature.
Q. Now, could you possibly describe before this Honorable Court, Mrs. Cagatan, the exact event that
took place when the alleged shooting incident took place in your presence?
A. At that time, I attended my child (to) answer(ing) the call of (his) nature and after doing that when I
was about to stand up to go up I saw the Villaricos was (sic) at the back of the kitchen.
Q. At the time you saw them was (sic) any one of them saw you likewise?
A. There was.
Q. Who was he?
A. Gilberto Villarico, Jr.
Q. At that precise time when you saw them and one of them saw you, what did Villarico, Jr. do?
A. He aimed his gun to me.
Q. Could you possibly demonstrate that to the Court?
A. (Witness demonstrated by squatting position)
Q. Now at that precise moment when you saw Villarico, Jr. on a squatting position pointing his gun at
you, what was the exact action that you did?
A. When he aimed his gun to me I immediately dropped to the ground.
xxx
Q. Since you were personally present could you still remember Mrs. Cagatan how many gun burst
you head at that precise moment when you dropped to the ground because Villarico Jr. was aiming
his gun at you. How many gun burst did you hear?
A. Three gunbursts.
Q. Let us go back to the time when Villarico, Jr. pointed his gun to you. Do you still remember what
were the other accused doing or where were they at that time?
A. I can remember.
Q. Please tell the Honorable Court.
A. Gilberto Villarico, Sr. was on the right side; Ricky Villarico was on the left side and behind Gilberto
Villarico, Sr. was Jerry Ramientos and behind Ricky Villarico is (sic) Gilberto Villarico Jr.
Q. What were Ricky and Gilberto Villarico, Jr. doing at the time?
A. They were also dropping themselves on the ground and aimed their guns.
Q. To what particular object that they were aiming their guns?
A. To the door of our kitchen.
Q. How about Ramientos, where was he at that time when you saw the accused pointing their guns
towards the door of your kitchen?
A. Ramientos was standing behind Gilberto Villarico Sr.
49

Likewise, Francisco saw the four accused in the same positions that Remedios had seen them
moments prior to the shooting. He claimed that they were aiming their firearms at the kitchen and
continued aiming their firearms even as they were leaving the crime scene, viz:
Atty. Fernandez:
xxx
Q. Now you said that you saw all of the accused at the time when your late son Haide Cagatan was
murdered in the evening of August 8. Could you possibly explain to this Honorable Court at the very
first time what did you see?
A. After I came from the toilet I was proceeding to the kitchen because Haide was preparing food
and he was calling for dinner. When Haide Cagatan was calling for dinner and at the time I was
proceeding to the door of the kitchen, when I was near the door I heard the gun shots.
Q. At the time when you heard gunshots, what did you do?
A. I laid down flat on the ground while my head is (sic) looking up and there I saw the 3 Villaricos
bringing a revolver. They came from aiming their guns towards upstairs and they are about to
withdraw from that place together with Jerry Ramientos.
xxx
Q. Now, since you said that you saw the accused Villaricos, could you possibly tell the Court, what
were their responsible position(s) in relation to the door of the kitchen?
A. They were in shooting position as they aimed upward and they were bringing revolver aiming
upstairs.
Q. In relation to the door of the kitchen, could you possibly tell the Court what were their responsible
position at that time when you saw them?
A. The four of them were situated in front of the kitchen door. Villarico Jr. and Villarico Sr. were
facing each other while Ricky Villarico and Jerry Ramientos were also facing each other.
50

The testimonies of Remedios and Francisco on how and where the four accused had deliberately
and strategically positioned themselves could not but reveal their deliberate design to thereby
ensure the accomplishment of their design to kill Haide without any possibility of his escape or of any
retaliation from him. Aptly did the CA observe:
A perusal of the information shows that treachery was properly alleged to qualify the killing of Heide
[sic] Cagatan to murder. The prosecution was likewise able to prove treachery through the element
of surprise rendering the victim unable to defend himself. In this case, the evidence shows that the
victim, who was in the kitchen preparing dinner, could be seen from the outside through the holes of
the wall. The witnesses consistently described the kitchens wall as three feet high bamboo splits
(sa-sa), accented with bamboo splits woven to look like a chessboard with 4-inch holes in between.
The accused-appellants, likewise, positioned themselves outside the kitchen door at night where the
victim could not see them. When the accused-appellants shot him, he was caught unaware.
51

3.
Penalty and Damages
There is no question that the CA justly pronounced all the four accused guilty beyond reasonable
doubt of murder, and punished them with reclusion perpetua pursuant to Article 248
52
of the Revised
Penal Code, in relation to Article 63, paragraph 2, of the Revised Penal Code, considering the
absence of any generic aggravating circumstance.
However, the CA did not explain why it did not review and revise the grant by the RTC of civil liability
in the amount of only P50,000.00. Thereby, the CA committed a plainly reversible error for ignoring
existing laws, like Article 2206 of the Civil Code,
53
which prescribes a death indemnity separately
from moral damages, and Article 2230 of the Civil Code,
54
which requires exemplary damages in
case of death due to crime when there is at least one aggravating circumstance; and applicable
jurisprudence, specifically, People v. Gutierrez,
55
where we held that moral damages should be
awarded to the heirs without need of proof or pleading in view of the violent death of the victim, and
People v.Catubig,
56
where we ruled that exemplary damages were warranted whenever the crime
was attended by an aggravating circumstance, whether qualifying or ordinary. Here, the aggravating
circumstance of treachery, albeit attendant or qualifying in its effect, justified the grant of exemplary
damages.
Plain oversight might have caused both the RTC and the CA to lapse into the serious
omissions.1avvphil Nonetheless, a rectification should now be made, for, indeed, gross omissions, intended
or not, should be eschewed. It is timely, therefore, to remind and to exhort all the trial and appellate
courts to be always mindful of and to apply the pertinent laws and jurisprudence on the kinds and
amounts of indemnities and damages appropriate in criminal cases lest oversight and omission will
unduly add to the sufferings of the victims or their heirs. Nor should the absence of specific
assignment of error thereon inhibit the sua sponte rectification of the omissions, for the grant of all
the proper kinds and amounts of civil liability to the victim or his heirs is a matter of law and judicial
policy not dependent upon or controlled by an assignment of error. An appellate tribunal has a broad
discretionary power to waive the lack of proper assignment of errors and to consider errors not
assigned,
57
for technicality should not be allowed to stand in the way of equitably and completely
resolving the rights and obligations of the parties. Indeed, the trend in modern day procedure is to
accord broad discretionary power such that the appellate court may consider matters bearing on the
issues submitted for resolution that the parties failed to raise or that the lower court ignored.
58

Consistent with prevailing jurisprudence, we grant to the heirs of Haide P75,000.00 as death
indemnity;
59
P75,000.00 as moral damages;
60
and P30,000.00 as exemplary damages.
61
As clarified
in People v. Arbalate,
62
damages in such amounts are to be granted whenever the accused are
adjudged guilty of a crime covered by Republic Act No. 7659, like the murder charged and proved
herein. Indeed, the Court, observing in People v. Sarcia,
63
citing People v. Salome
64
and People v.
Quiachon,
65
that the "principal consideration for the award of damages xxx is the penalty provided by
law or imposable for the offense because of its heinousness, not the public penalty actually imposed
on the offender," announced that:
The litmus test[,] therefore, in the determination of the civil indemnity is the heinous character of the
crime committed, which would have warranted the imposition of the death penalty, regardless of
whether the penalty actually imposed is reduced to reclusion perpetua.
WHEREFORE, we affirm the decision promulgated on June 6, 2003 in CA-G.R. CR No. 24711,
finding GILBERTO VILLARICO, SR., GILBERTO VILLARICO, JR., JERRY RAMENTOS, and RICKY
VILLARICO guilty of murder and sentencing each of them to suffer reclusion perpetua, subject to the
modification that they are held jointly and solidarily liable to pay to the heirs of the late Haide
Cagatan death indemnity of P75,000.00, moral damages ofP75,000.00, and exemplary damages
of P30,000.00.
The accused shall pay the costs of suit.
SO ORDERED.






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23729 December 5, 1925
Estate of the deceased MARIANO CORRALES TAN. FLAVIANA SAMSON, administratrix-
appellee,
vs.
VICENTE CORRALES TAN, ET AL., claimants. VICENTE CORRALES TAN, appellant.
Gregorio Perfecto for appellant.
Epimaco Molina for appellee.

OSTRAND, J .:
This is an appeal from an order of the Court of First Instance of Manila declaring that Flaviana
Samson was legally married to the deceased Mariano Corrales Tan, that she and her children
Arsenia, Gregoria, Santiago, Dativa, Aurelio, and Amancio Corrales Tan y Samson, are his legal
heirs, and the appellant Vicente Corrales Tan, while a natural child of said Mariano Corrales Tan,
has not been legally acknowledged as such and is therefor not entitled to a share in the inheritance
beyond the amount bequeathed to him in the will of the deceased.
The evidence in the case has not been brought before this court and we are, therefore, not in
position to review the findings of fact of the court below. Upon these findings there can be no doubt
that Flaviana Samson was legally married to the deceased and that the children of the marriage are
legitimate heirs.
The only other question to be determined is whether upon the facts found Vicente Corrales Tan can
be considered an acknowledged natural child of the deceased. The court below found that before his
marriage to Flaviana Samson, Mariano Corrales Tan was living with a woman by the name of
Prudencia Santos and with her had a child, the herein appellant, who was born on the 5th of April,
1894; that the child was baptized on the 22d of the same month and that in his certificate of baptism
Exhibit A, it is stated that he was the natural child of Mariano Corrales Tan and Prudencia de los
Santos; that in Exhibit B, another document of the same date on file in the archives of the parish
church where the child was baptized, Mariano Corrales Tan, in the presence of two witnesses,
recognized Vicente Corrales Tan Quintin as his natural child had with Florentina de los Santos.
The following articles of the Civil Code prescribe the manner in which the acknowledgment of natural
children may be effected:
Art. 131. The acknowledgment of a natural child must be made in the record of birth, in a will,
or in some other public document.
Art. 133. A person of full age may not be acknowledged as a natural child without his
consent.
The approval of the court, to be granted after hearing the prosecuting officer, shall be
necessary to the acknowledgment of a minor, unless such acknowledgment be made in a
certificate of birth or in a will.lawphi 1. net
The minor may in any case contest the acknowledgment within the four years next following
the attainment of his or her majority.
Art. 137. Actions for the acknowledgment of natural children may be commenced only during
the lifetime of the putative parents except in the following cases:
1. If the father or mother died during the minority of the child, in which case the latter must
commence the action within the four years next following the attainment of its majority.
2. If, after the death of the father or mother, some document, before unknown, should be
discovered in which the child is expressly acknowledged.
In the case the action must be commenced within the six months next following the discovery
of such document.
Vicente Corrales became of age long before the death of his father. Hence, paragraph 1 of article
137 above quoted is not applicable to his case and, in order to establish his status as an
acknowledged natural child, he must show that he was so acknowledged during the life of the
deceased. According to article 131, such acknowledgment "must be made in the record of birth, in a
will, or in some other public document." The appellant argues that the entries in the records of the
parish church together with document Exhibit B, must be considered as a sufficient record of birth
under that article.
This contention cannot be sustained. The record of birth mentioned in article 131 is that provided for
in article 326 of the same Code and as the application of that article to the Philippine Islands was
suspended by decree of the Governor-General dated December 29, 1889, and was never put into
effect, it follows that form of acknowledgment did not exist in this country in the year 1894. Whether
entries in the civil register provided for in section 2214 of the Administrative Code will meet the
requirements of article 131, we need not here decide.
But it is argued that article 327 of the Civil Code is applicable to the present case. That article reads:
The records of the registry shall be evidence of civil status and no other evidence thereof
shall be admitted, unless such records have never existed or the books of the registry have
disappeared, or the question arises in the course of litigation.
In our opinion that article only lays down a rule of evidence and has no bearing on the formalities for
a valid acknowledgment of a natural child; as we have seen, article 131 requires that unless the
acknowledgment is made in a will or other public document, it must be made in the record of birth, or
in other words, in the civil register.
The appellant suggests that the fact that he in the will of the deceased is named as one of the
legatees is an implied acknowledgment. There is, of course no merit in this suggestion; legatees are
as often as not unrelated to the testator.lawphi1.net
It is also suggested that Exhibit B is a public document and, therefore, in itself a sufficient
acknowledgment. Assuming without conceding that it is a public document, it would nevertheless not
constitute an acknowledgment unless duly approved by a court (art. 133, Civil Code; Legare vs.
Cuerques, 34 Phil., 221).
In his fourth and last assignment of error the appellant contends that the court below erred in
denying his motion for a new trial based on newly discovered evidence. The new evidence is not
before us, but as far as can be gathered from the record, it consists of the record of a proceeding
before a customhouse immigration board, in which proceeding the deceased appears to have
acknowledged that appellant was his son, and it is argued that the proceedings were of a quasi-
judicial nature and that the action of the board in the matter constituted a judicial approval of the
acknowledgment. We do not think so; the collector of customs and his subordinate boards are not
courts within the meaning of article 133, supra.
The order appealed from is affirmed with the costs against the appellant. So ordered.
Avancea, C.J., Street, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.