*
G.R. No. 117401. October 1, 1998.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO
QUIDATO, JR., accused-appellant.
Criminal Law; Evidence; Extrajudicial Confessions; Witnesses; Hearsay
Rule; Affidavits; It is hornbook doctrine that unless the affiants themselves take the
witness stand to affirm the averments in their affidavits, the affidavits must be
excluded from the judicial proceeding, being inadmissible hearsay.—In indicting
accused-appellant, the prosecution relied heavily on the affidavits executed by
Reynaldo and Eddie. The two brothers were, however, not presented on the witness
stand to testify on their extra-judicial confessions. The failure to present the two
gives these affidavits the character of hearsay. It is hornbook doctrine that unless
the affiants themselves take the witness stand to affirm the averments in their
affidavits, the affidavits must be excluded from the judicial proceeding, being
inadmissible hearsay. The voluntary admissions of an
________________
* THIRD DIVISION.

2 SUPREME COURT REPORTS ANNOTATED

2 SUPREME COURT REPORTS ANNOTATED
People vs. Quidato, Jr.
accused made extrajudicially are not admissible in evidence against his co-accused
when the latter had not been given an opportunity to hear him testify and cross-
examine him.
Same; Same; Same; Constitutional Law; Custodial Investigations; Right to
Counsel; The settled rule is that an uncounseled extrajudicial confession without a
valid waiver of the right to counsel—that is, in writing and in the presence of
counsel—is inadmissible in evidence.—Likewise, the manner by which the
affidavits were obtained by the police render the same inadmissible in evidence
even if they were voluntarily given. The settled rule is that an uncounseled
extrajudicial confession without a valid waiver of the right to counsel—that is, in
writing and in the presence of counsel—is inadmissible in evidence. It is
undisputed that the Malita brothers gave their statements to Patrolman Mara in the
absence of counsel, although they signed the same in the presence of counsel the
next day. As ruled in People vs. Compil: [T]he belated arrival of a CLAO (now
PAO) lawyer the following day even if prior to the actual signing of the
uncounseled confession does not cure the defect (of lack of counsel) for the
investigators were already able to extract incriminatory statements from accused-
appellant . . . Thus, in People vs. De Jesus (213 SCRA 345 [1992]) we said that
admissions obtained during custodial interrogations without the benefit of counsel
although later reduced to writing and signed in the presence of counsel are still
flawed under the Constitution.
Same; Same; Witnesses; Marital Disqualification Rule; Murder; Under the
marital disqualification rule, the disqualification is between husband and wife, the
law not precluding the wife from testifying when it involves other parties or
accused.—With regard to Gina Quidato’s testimony, the same must also be
disregarded, accused-appellant having timely objected thereto under the marital
disqualification rule. As correctly observed by the court a quo, the disqualification
is between husband and wife, the law not precluding the wife from testifying when
it involves other parties or accused. Hence, Gina Quidato could testify in the
murder case against Reynaldo and Eddie, which was jointly tried with accused-
appellant’s case. This testimony cannot, however, be used against accused-
appellant directly or through the guise of taking judicial notice of the proceedings
in the murder case without violating the marital disqualification rule. “What cannot
be done directly cannot be done indirectly” is a rule familiar even to law students.
 VOL. 297, OCTOBER 1, 1998 3
People vs. Quidato, Jr.
Same; Same; Same; Suspicion, no matter how strong, should not sway
judgment, it being an accepted axiom that the prosecution cannot rely on the
weakness of the defense to gain a conviction, but must establish beyond reasonable
doubt every circumstance essential to the guilt of the accused.—Given the
inadmissibility in evidence of Gina Quidato’s testimony, as well as of Reynaldo and
Eddie’s extrajudicial confessions, nothing remains on record with which to justify a
judgment unfavorable to accused-appellant. Admittedly, accused-appellant’s
defense, to put it mildly, is dubious. His alleged acquiescence to the demand of the
Malita brothers to accompany them to his father’s house on the strength of the
latter’s verbal threats, his incredulous escape from the clutches of the two, his
inexplicable failure to return home immediately, his failure to seek assistance from
the authorities, the fact that Eddie stayed with him immediately after the incident,
and the nine-day lacuna between the killing and his pointing to the Malita brothers
as the culprits, all suggest a complicity more than that of an unwilling participant.
Yet, suspicion, no matter how strong, should not sway judgment, it being an
accepted axiom that the prosecution cannot rely on the weakness of the defense to
gain a conviction, but must establish beyond reasonable doubt every circumstance
essential to the guilt of the accused. This the prosecution has failed to demonstrate.
APPEAL from a decision of the Regional Trial Court of Panabo, Davao,
Br. 4.
The facts are stated in the opinion of the Court.
     The Solicitor General for plaintiff-appellee.
     Public Attorney’s Office for accused-appellant.
ROMERO, J.:
Before us is an appeal from the judgment of the Regional Trial Court of
Davao, Branch 4, dated March 2, 1994, finding accused-appellant Bernardo
Quidato, Jr. guilty of the crime of parricide.
On January 17, 1989, accused-appellant was charged with the crime of
parricide before the Regional Trial Court of Davao. The information reads
as follows:
4 SUPREME COURT REPORTS ANNOTATED
People vs. Quidato, Jr.
The undersigned accuses BERNARDO QUIDATO, JR. of the crime of Parricide
under Article 246 of the Revised Penal Code, committed as follows:
That on or about September 17, 1988, in the Municipality of Kaputian, Province
of Davao, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping with
Reynaldo Malita and Eddie Malita, who are charged for (sic) Murder in a separate
information, did then and there wilfully, unlawfully and criminally, with the use of
a bolo and an iron bar, assault, hack and stab his father, Bernardo Quidato, Sr., on
the different parts of his body, thereby inflicting upon him wounds which caused
his death, and further causing actual, moral and compensatory damage to the heirs
of the victim.
1
Contrary to law.
Accused-appellant’s case was tried jointly with the murder case filed
against his co-accused, Reynaldo Malita and Eddie Malita who, however,
withdrew their “not guilty” plea during the trial and were accordingly
sentenced. Thus, only accused-appellant’s case was tried on the merits.
The prosecution, in offering its version of the facts, presented as its
witnesses accused-appellant’s brother Leo Quidato, appellant’s wife Gina
Quidato, as well as Patrolman Lucrecio Mara. Likewise, the prosecution
offered in evidence affidavits containing the extra-judicial confessions of
Eddie Malita and Reynaldo Malita. The two brothers were, however, not
presented by the prosecution on the witness stand. Instead, it presented
Atty. Jonathan Jocom to prove that the two were assisted by counsel when
they made their confessions. Similarly, the prosecution presented MTC
Judge George Omelio who attested to the due and voluntary execution of
the sworn statements by the Malita brothers.
Based on the foregoing pieces of evidence, the prosecution’s version of
the facts is as follows:
________________
1 Original Record, p. 2.
 VOL. 297, OCTOBER 1, 1998 5
People vs. Quidato, Jr.
Bernardo Quidato, Sr. was the father of accused-appellant Bernardo
Quidato, Jr. and Leo Quidato. Being a widower, Bernardo lived alone in his
house at Sitio Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned sixteen
hectares of coconut land in the area.
On September 16, 1988, Bernardo, accompanied by his son, herein
accused-appellant, and two hired hands, Reynaldo Malita and Eddie
Malita, went to Davao City to sell 41 sacks of copra. After selling the
copra, Bernardo paid the Malita brothers for their labor, who thereafter left.
2
Bernardo and accused-appellant went back to Sitio Libod that same day.
According to Gina Quidato, on the evening of the next day, September
17, 1988, accused-appellant and the Malita brothers were drinking tuba at
their house. She overheard the trio planning to go to her father-in-law’s
house to get money from the latter. She had no idea, however, 3as to what
later transpired because she had fallen asleep before 10:00 p.m. Accused-
appellant objected to Gina Quidato’s testimony on the ground that the same
was prohibited by the marital disqualification
4
rule found in Section 22 of
Rule 130 of the Rules of Court. The judge, acknowledging the
applicability of the socalled rule, allowed said testimony only against
accused-appellant’s co-accused, Reynaldo and Eddie.
As adverted to earlier, the Malita brothers confessed to their
participation in the crime, executing affidavits detailing how Bernardo was
killed. Their version shows that Eddie had been living with accused-
appellant for the past four years. At around 6:00 p.m. of September 17,
1988, accused-appellant asked Reynaldo to come to the former’s house to
discuss an
________________
2 TSN, September 30, 1993, pp. 6-7.
3 TSN, November 28, 1991, pp. 10-11.
4 Section 22. Disqualification by reason of marriage.—During their marriage, neither
the husband nor the wife may testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter’s direct descendants or
ascendants.
6 SUPREME COURT REPORTS ANNOTATED
People vs. Quidato, Jr.
important matter. Upon Reynaldo’s arrival at accused-appellant’s house, he
saw that his brother Eddie was already there. They started drinking beer.
The Malita brothers alleged that it was at this juncture that accused-
appellant proposed that they rob and kill his father. They went to
Bernardo’s house only at 10:00 p.m., after the rain had stopped. Reynaldo
brought along a bolo. Upon reaching the house, accused-appellant knocked
on the door, asking his father to let them in. When Bernardo opened the
door, Eddie rushed in and knocked the old man down. Reynaldo then
hacked Bernardo on the nape and neck. Accused-appellant and Eddie
ransacked Bernardo’s aparador looking for money but they found none;
so, the three of them left.
The body of Bernardo was discovered the next day by accused-
appellant’s son, who had gone there to call his Lolo for breakfast. The
cause of death, as stated in Bernardo’s death certificate was “hypovolemic
5
shock secondary to fatal hacking wound on the posterior neck area.”
On September 27, 1988, Leo Quidato confronted his brother regarding
the incident and learned that Reynaldo and Eddie Malita were the ones
responsible for Bernardo’s death. The two were promptly arrested by the
police. Aside from arresting the latter two, however, the police also
arrested accused-appellant.
On September 29, 1988, the Malita brothers were interrogated by
Patrolman Lucrecio Mara at the Kaputian Police Station. When Mara
apprised them of their constitutional rights, including their right to counsel,
they signified their intent to confess even in the absence of counsel. Aware
that the same would be useless if given in the absence of counsel, Mara
took down the testimony of the two but refrained from requiring the latter
to sign their affidavits. Instead, he escorted the Malita brothers to Davao
City and presented them,
________________
5 Original Record, p. 68.
 VOL. 297, OCTOBER 1, 1998 7
People vs. Quidato, Jr.
along with their6 unsigned affidavits, to a CLAO (now PAO) lawyer,
Jonathan Jocom.
Informed of the situation, Atty. Jocom conferred with Reynaldo and
Eddie, again advising the two of their constitutional rights. The CLAO
lawyer explained the contents of the affidavits, in Visayan, to the Malita
brothers, who affirmed the veracity and voluntary execution of the same. 7
Only then did Reynaldo and Eddie affix their signatures on the affidavits.
In his defense, accused-appellant denied the allegations of the Malita
brothers. He claimed that the Malita brothers were not at his house on the
evening of September 17, 1988. They, however, passed by his house at
around 10:00 p.m. and asked him to come with them to his father’s house,
threatening him with harm if he refused. Out of fear, he led the way to
Bernardo’s house and even knocked on the latter’s door until Bernardo
opened the same. In the ensuing commotion, he scampered away, but in his
confusion, reached his house only at around 11:00 p.m., although the same
was only about one hundred fifty meters away from Bernardo’s house. He
did not call for help. Eddie arrived a while later. Accused-appellant
claimed not to have seen the actual killing, having run away earlier. He,
however, admitted finding a bolo, encrusted with blood, at his house. He
turned the same over to his brother, who, in turn, surrendered the same to
the police. Accused-appellant did not feel uneasy having 8
Eddie around
even if he knew of the latter’s participation in the crime.
After due trial, the court a quo rendered the following judgment:
WHEREFORE, IN THE LIGHT OF THE FOREGOING, the court finds the
accused, Bernardo Quidato, Jr., guilty beyond reasonable doubt as a co-principal in
the offense of Parricide which falls under Article 246 (of the Revised Penal Code),
for the death of his
________________
6 TSN, April 26, 1990, pp. 35-44.
7 TSN, August 28, 1991, pp. 12-17.
8 TSN, September 30, 1993, pp. 6-26.
8 SUPREME COURT REPORTS ANNOTATED
People vs. Quidato, Jr.
father, Bernardo Quidato, Sr., and accordingly, is hereby sentenced by this court to
suffer the penalty of RECLUSION PERPETUA, with all the accessory penalties
provided by law and to indemnify the other heirs of Bernardo Quidato, Sr., the
amount of P50,000.00, in accordance with current case doctrines of the Supreme
Court, and to pay the costs.
9
SO ORDERED.
From the aforesaid judgment of conviction, appellant interposed the
present appeal, assigning the following errors:
1. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE
EXTRAJUDICIAL CONFESSIONS OF REYNALDO MALITA (EXH. C)
AND EDDIE MALITA (EXH. D) IN CLEAR VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED-APPELLANT TO
CONFRONT WITNESSES.
2. THE TRIAL COURT ERRED IN FINDING (THE) EXISTENCE OF
CONSPIRACY IN THE CASE AT BAR.
3. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE
RAISED BY THE ACCUSED AND DISREGARDING (ANY) ILL-
MOTIVE OF REYNALDO AND EDDIE MALITA IN KILLING THE
VICTIM.
Accused-appellant must be acquitted.
In indicting accused-appellant, the prosecution relied heavily on the
affidavits executed by Reynaldo and Eddie. The two brothers were,
however, not presented on the witness stand to testify on their extra-
judicial confessions. The failure to present the two gives these affidavits
the character of hearsay. It is hornbook doctrine that unless the affiants
themselves take the witness stand to affirm the averments in their
affidavits, the affidavits must
10
be excluded from the judicial proceeding,
being inadmissible hearsay. The voluntary admissions of an accused made
extrajudicially are not admissible in evidence against his co-accused when
the latter had not
________________
9 Original Record, pp. 159-160.
10 People vs. Manhuyod, G.R. No. 124676, May 20, 1998.
 VOL. 297, OCTOBER 1, 1998 9
People vs. Quidato, Jr.
11
been given an opportunity to hear him testify and cross-examine him.
The Solicitor General, in advocating the admissibility of the sworn
statements of the Malita brothers, cites Section 30, Rule 130 of the Rules
of Court which provides that “[t]he act or declaration of a conspirator
relating to the conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.” The inapplicability of this
provision is clearly apparent. The confessions were made after the
conspiracy had ended and after the consummation of the crime. Hence, it
cannot be said that the execution of the affidavits were acts or declarations
made during the conspiracy’s existence.
Likewise, the manner by which the affidavits were obtained by the
police render the same inadmissible in evidence even if they were
voluntarily given. The settled rule is that an un-counseled extrajudicial
confession without a valid waiver of the right to counsel—that 12is, in
writing and in the presence of counsel—is inadmissible in evidence. It is
undisputed that the Malita brothers gave their statements to Patrolman
Mara in the absence of counsel, although they signed the same 13
in the
presence of counsel the next day. As ruled in People vs. Compil:
[T]he belated arrival of a CLAO (now PAO) lawyer the following day even if prior
to the actual signing of the uncounseled confession does not cure the defect (of lack
of counsel) for the investigators were already able to extract incriminatory
statements from accused-appellant . . . Thus, in People vs. De Jesus (213 SCRA
345 [1992]) we said that admissions obtained during custodial interrogations
without the benefit of counsel although later reduced to writing and
________________
11 People vs. Surigawan, 228 SCRA 458 (1993); People vs. Ferry, 66 Phil. 310 (1938); People vs.
Badilla, 48 Phil. 718 (1926).
12 Constitution, Article III, Sec. 12(1) and (3); People vs. Cabintoy, 247 SCRA 442 (1995).
13 244 SCRA 135 (1995).
10 SUPREME COURT REPORTS ANNOTATED
People vs. Quidato, Jr.
signed in the presence of counsel are still flawed under the Constitution.
With regard to Gina Quidato’s testimony, the same must also be
disregarded, accused-appellant having timely objected thereto under the
marital disqualification rule. As correctly observed by the court a quo, the
disqualification is between husband and wife, the law not precluding 14
the
wife from testifying when it involves other parties or accused. Hence,
Gina Quidato could testify in the murder case against Reynaldo and Eddie,
which was jointly tried with accused-appellant’s case. This testimony
cannot, however, be used against accused-appellant directly or through the
guise of taking judicial notice of the proceedings in the murder case
without violating the marital disqualification rule. “What cannot be done
directly cannot be done indirectly” is a rule familiar even to law students.
Given the inadmissibility in evidence of Gina Quidato’s testimony, as
well as of Reynaldo and Eddie’s extrajudicial confessions, nothing remains
on record with which to justify a judgment unfavorable to accused-
appellant. Admittedly, accused-appellant’s defense, to put it mildly, is
dubious. His alleged acquiescence to the demand of the Malita brothers to
accompany them to his father’s house on the strength of the latter’s verbal
threats, his incredulous escape from the clutches of the two, his
inexplicable failure to return home immediately, his failure to seek
assistance from the authorities, the fact that Eddie stayed with him
immediately after the incident, and the nine-day lacuna between the killing
and his pointing to the Malita brothers as the culprits, all suggest a
complicity more than that of an unwilling participant. Yet, suspicion, no
matter how strong, should not sway judgment, it being an accepted axiom
that the prosecution cannot rely on the weakness of the defense to gain a
conviction, but must establish beyond reasonable doubt every circumstance
essen-
________________
14 TSN, November 28, 1991, p. 5.
 VOL. 297, OCTOBER 1, 1998 11
People vs. Quidato, Jr.
15
tial to the guilt of the accused. This the prosecution has failed to
demonstrate.
WHEREFORE, the appeal is hereby GRANTED and the decision of the
Regional Trial Court of Davao City in Criminal Case No. 89-9 dated
March 2, 1994, is REVERSED and SET ASIDE. Accused-appellant
Bernardo Quidato, Jr. is hereby ACQUITTED on ground of reasonable
doubt. Consequently, let the accused be immediately released from his
place of confinement unless there is reason to detain him further for any
other legal or valid cause. With costs de oficio.
SO ORDERED.
     Kapunan and Purisima, JJ., concur.
     Narvasa (C.J., Chairman), On leave.
Appeal granted, judgment reversed and set aside. Accused-appellant
acquitted.
Notes.—Hearsay evidence alone may be insufficient to establish a fact
in an injunction suit but, when no objection is made thereto, it is, like any
other evidence, to be considered and given the importance it deserves.
(Top-Weld Manufacturing, Inc. vs. ECED, S.A., 138 SCRA 118 [1985])
To give weight to a letter written by a person who was not presented as
a witness is to deny due process to the party adversely affected. (Ciudad
Realty & Development Corporation vs. Court of Appeals, 229 SCRA 71
[1994])
Inconsistent extrajudicial statement of a person not presented as a
witness cannot be appreciated as evidence. (Narciso vs. Sandiganbayan,
229 SCRA 229 [1994])
——o0o——
________________
15 Duran vs. CA, 71 SCRA 68 (1976).