RULE 130, Sec. 2 the latter, he must have been moved by a strong, improper and ulterior motive.
WITNESSES That motive must have been established; appellant failed to do so. In the absence
G.R. No. 87236. February 8, 1993.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTOR TANEO
y CAÑADA, alias OPAO, a certain BEBOT ESCOREAL and a certain ROY
CODILLA, accused.
Criminal Law; Evidence; Credibility of witnesses; When the issue of credibility
of a witness is concerned, the appellate court will generally not disturb the
findings of the trial court.—At the outset, it is to be observed that at the bottom
of the assigned errors is the issue of the credibility of witnesses Herminia Sia and
Victor Taneo. Deeply embedded in our jurisprudence and amply supported by an
impressive array of cases is the rule that when the issue of credibility of a witness
is concerned, the appellate court will generally not disturb the findings of the trial
court, considering that the latter is in a better position to decide the question,
having heard the witness himself and observed his deportment and manner of
testifying during the trial, unless certain facts of substance and value had been
plainly overlooked which, if considered, might affect the result of the case.
Same; Same; Same; The mere pendency of a criminal case against a person does
not disqualify him from becoming a witness.—Appellant insists that Victor
Taneo's credibility is questionable because the latter had earlier been charged in
two (2) criminal cases for robbery; the former admits, however, that these cases
were dismissed for failure to prosecute. Section 20, Rule 130 of the Rules of
Court provides that except as provided for in the succeeding sections, all persons
who can perceive, and perceiving, can make known their perception to others,
may be witnesses. Religious or political belief, interest in the outcome of the case
or conviction of a crime unless otherwise provided by law, shall not be a ground
for disqualification. Clearly, the mere pendency of a criminal case against a
person does not disqualify him from becoming a witness. As a matter of fact,
conviction of a crime does not disqualify such person from being presented as a
witness unless otherwise provided by law.
Same; Same; Same; In the absence of evidence to show any reason or motive
why witnesses for the prosecution should have testified falsely, the logical
conclusion is that no improper motive existed and that their testimony is worthy
of full faith and credit.—At his arraignment, Victor Taneo voluntarily pleaded
guilty to an information which charges conspiracy. He was not discharged as a
state witness—a sure guarantee of acquittal—and he did not impute criminal
responsibility solely on the appellant. Thus, if he were to testify falsely against
of evidence to show any reason or motive why witnesses for the prosecution
should have testified falsely, the logical conclusion is that no improper motive
existed, and that their testimony is worthy of full faith and credit.
Same; Same; Res Gestae; Court a quo correctly considered the statement given
by the victim Landa Robert to Herminia Sia as part of the res gestae.—The court
a quo correctly considered the statement given by the victim, Landa Robert, to
Herminia Sia as part of the res gestae. Landa's declaration that it was the appellant
who struck her was given while she was still at the ground floor of the Perpetual
Succour Hospital awaiting to be admitted for treatment. She was rushed to the
said hospital immediately after the incident in question and was operated on for
four (4) hours starting at 8:00 o'clock that evening until 12:00 midnight. She died
five (5) days later.
Same; Same; Same; Before evidence of the res gestae may be admitted, three (3)
requisites must concur.—The following three (3) requisites must concur before
evidence of the res gestae may be admitted: (1) the principal act, the res gestae,
be a startling occurrence; (2) the statements were made before the declarant had
time to contrive or devise; and (3) the statements must concern the occurrence in
question and its immediately attending circumstances.
Same; Same; Same; Same; No uniformity as to the interval of time that should
separate the occurrence of the startling event from the making of the
declaration.—The cases are not uniform as to the interval of time that should
separate the occurrence of the startling event from the making of the declaration.
What is important is that the declarations were voluntarily and spontaneously
made "so nearly contemporaneous as to be in the presence of the transaction
which they illustrate and explain, and were made under such circumstances as
necessarily to exclude the idea of design or deliberation.
Same; Same; Alibi; It is a fundamental judicial dictum that the defense of alibi
cannot prevail over the positive identification of the accused.—Since the
appellant had been identified, his defense of alibi must fail. It is a fundamental
judicial dictum that the defense of alibi cannot prevail over the positive
identification of the accused. People vs. Taneo, 218 SCRA 494, G.R. No. 87236
February 8, 1993
The above-named accused were charged with the crime of Robbery with
Homicide by Assistant City Fiscal Salvador O. Solima of Cebu City in an
Information1 filed on 29 December 1986 with the Regional Trial Court (RTC) of
Cebu, the accusatory portion of which reads:
That on or about the 22nd day of December, 1986, at about
5:30 p.m., in the City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conniving and confederating together and
mutually helping with one another, armed with bottle (sic) of beer grande and RC
Cola, with deliberate intent and by means of force upon things, to wit: by entering
the inhabited house of one Herminia Sia y Sy and once inside, with intent of gain
and without the knowledge and consent of said Herminia Sia y Sy, the owner
thereof, did then and there take, steal and carry away the following:
one (1) sharp cassette valued at P 3,500.00
one (1) Denonet Karaoke valued at 7,000.00
one (1) Sony cassette recorder 1,000.00
Fifty (50) pcs. cassette tape 2,000.00
one (1) Casio calculator 100.00
—————
TOTAL P 13,600.00
valued in all (sic) at P13,600.00, belonging to said Herminia Sia y Sy, to the
damage and prejudice of the latter in the amount of P13,300.00, Philippine
Currency; and with intent to kill, did then and there attack, assault and use
personal violence upon Linda (sic) Aglipa Robert, maid of Herminia Sia y Sy,
owner of the said house, who was the only person inside the house at that time,
by hacking said Linda (sic) Aglipa Robert with said bottle of beer grande and RC
Cola at her head and face, thereby inflicting upon her the following physical
injuries:
CARDIO RESPIRATORY ARREST
MASSIVE PNEUMONIA BL
CEREBRAL CONTUSION
OPEN DEPRESSED COMMUNIATED FX FRONTAL
AREA (R) MULTIPLE LACERATIONS ON THE FACE
as a consequence of which said Linda (sic) Aglipa Robert died instantaneously.
CONTRARY TO LAW.
Only accused Victor Taneo y Cañada and Roy Codilla were apprehended.
Accused Bebot Escoreal has remained at large and an alias warrant for his arrest
issued on 9 February 1987 had been returned unserved for the reason that he is
not known at the given address.2
On 9 February 1987, Roy Codilla, assisted by counsel, entered a plea of not guilty
while Victor Taneo voluntarily pleaded guilty.3 In view thereof, the trial court4
issued an Order finding the latter guilty as charged and sentencing him to suffer
the penalty of reclusion perpetua. The dispositive portion of the order reads:
WHEREFORE, finding accused Victor Taneo y Cañada guilty beyond
reasonable doubt of the crime of Robbery with Homicide as charged and
appreciating in his favor the mitigating circumstance of plea of guilty, he is
hereby sentenced to suffer RECLUSION PERPETUA.
It appearing that the articles stolen were recovered, no pronouncement as to
indemnity.5
Trial on the merits against Roy Codilla then ensued. The witnesses who testified
for the prosecution were Dr. Herminia Sia, accused Victor Taneo, Pat. Enrico
Ministerio and Dr. Jaime Perez, and those who testified for the defense were
accused Roy Codilla, Police Cpl. Jovito Roa, Lolit Cabriana and Felicidad
Pareño. The evidence for the parties is summarized by the trial court as follows:
Dr. Herminia Sia, an Optometrist, is a resident of Saint Michael Village at
Banilad, Cebu City. Her clinic is located at Junguera Street, Cebu City. Two years
ago, sometime in 1984 when she lost two big cassette recorders in her residence,
she decided to hire the services of a guard. A Sgt. Codinas and an army man
named Bros, recommended accused Roy Codilla to her.
Employed on a daily basis, accused Codilla spent most of his time in securing the
Banilad residence. There are (sic) times though that he would guard the Junguera
clinic for a few hours. On one occasion at the clinic, Codilla introduced to Dr.
Sia Bebot Escoreal as his friend.
When Codilla started bringing his friends to the house of Dr. Sia, the latter felt
peeved because Codilla's friends were of questionable and suspicious-looking
characters (sic). She was told by Codilla that his companions were jeepney
dispatchers in the downtown area. Not being at ease with such situation, she fired
Codilla.
Almost two years later, at 5:30 o'clock in the afternoon of December 22, 1986,
Dr. Sia's neighbors Nicky Padriga and Ricardo Ferrer went to her clinic and
informed her that some persons who burglarized her house were apprehended by
them and that they brought the injured maid, Landa, to a hospital.
At the Mabolo Police Station, she saw Victor Taneo, a young
boy — Arnel Go and Jose Robert — her houseboy and brother of her maid, Landa
Robert. She inquired from Jose why he was at the police station and the latter
replied that after Taneo and Go were arrested, he was brought along by the police
for questioning. Jose further disclosed that he was invited by Roy Codilla for a
round of beer drinks at a small store behind Dr. Sia's residence and that when he
returned to the house, his sister was already injured. The young boy, Arnel,
explained that Roy invited him to go to Dr. Sia's house. Victor Taneo claimed
that it was Roy Codilla who told him to go along with him (Codilla) to the house
of Dr. Sia to get some valuables, like cassette recorders. She saw blood-stains
inside her house splattered in the kitchen, on a beer bottle and on the telephone
set.
At the groundfloor of Perpetual Succour Hospital, the severely injured and
bloody maid managed to reveal to her (Dr. Sia) in the presence of Corazon
Gonzales and Patrolman Lopez, that Roy Codilla was the who (sic) struck her.
Co-accused Victor Taneo, alias Opao (Kalbo) testified that he is a jeepney
dispatcher (barker). Bebot Escoreal, another accused herein who has remained at
large, is his long-time friend who is also a barker at Juan Luna Street, Cebu City.
On December 22, 1986 at 11:00 o'clock in the morning, he saw Bebot Escoreal
talking to a person. He approached Escoreal and the latter introduced him to the
person who turned out to be Roy Codilla. After knowing each other, the
conversation continued with Codilla saying that he (Codilla) planned to rob the
house of his former employer, Dr. Sia, as his revenge. Codilla then told him
(Taneo) to procure money to be used in entertaining Dr. Sia's houseboy, Jose
Robert. They were briefed by Codilla that in the house of Dr. Sia are a maid and
houseboy. Codilla stated that after the robbery has been pulled (sic), Codilla will
bring them to Manila. With his P20.00, they, Codilla, Arnel Go, Escoreal and
himself, boarded a jeepney towards the place of Dr. Sia.
While houseboy Jose Robert and househelper Landa Robert were cleaning the
yard, Codilla entered the Sia premises for the purpose of inviting Jose Robert
outside. Codilla told his companions to stay behind at the corner street and to
wait for his signal. Later, he saw Codilla placing his arm around the shoulder of
Jose proceeding towards the store where the houseboy was offered some drinks.
After the agreed signal of Codilla, placing his right hand on the right side of his
head, they went inside the house of Dr. Sia. Leaving behind Jose at the store,
Codilla joined them. Escoreal stayed outside as lookout. Once inside, Codilla
boxed the maid hitting her in the midsection of the stomach. The maid fell on the
floor and Codilla ordered them to finish her off as she can identify them. He and
Codilla got coke bottles under the dining table and struck the maid on her
forehead, head and mouth. They took from a room Sony (sic) Cassette Recorder,
Sharp (sic) Cassette Recorder and some tapes, while Arnel Go in another room,
gathered some calculators.
Outside the house with the loot, Codilla directed him and Arnel Go to pass out
one way while Codilla and Escoreal will proceed to the main road. Along the
way, he and Arnel were arrested and were brought back to the house of Dr. Sia.
There they saw the neighbors carrying the body of the maid who was still alive
and moaning. Later, the houseboy arrived.
In jail (BBRC) Codilla offered him P2,000.00 to save him (Codilla) because he
has a wife and children.
At the outset he refused, but the wife of Codilla forced him to receive the money
with her plea that I (sic) save her husband for the sake of their family. Every visit
of the wife of Codilla to jail, he was given money by Mrs. Codilla which totalled
all in all P400.00. In Court, he pointed at the wife of Codilla. His mother paid
Roy Codilla P400.00 because she bulked (sic) at the idea of saving Codilla. And
even if he were given the promised sum of P2,000.00, he still would take the
witness stand considering that he landed in jail because of Codilla.
Arresting officer Rico Ministerio declared that in response to a phone call, he and
some police companions went to the house of Dr. Sia and took custody of Taneo
and Arnel Go who were captured en (sic) flagrante delicto by the civilians of St.
Michael Village. The following day, they arrested Roy Codilla at the Duty Free
Shop at Lahug, Cebu City.
Dr. Jaime Perez testified that on December 22, 1986 he treated Landa Robert for
multiple lacerations in head (sic) and face caused by a blunt object. Five hours
later, the patient died due to compression (sic) of vital brain centers. He issued
the corresponding death certificate (Exh. "A").
For the defense:
Police Cpl. Jovito Roa, a guard at BBRC testified that on November 23, 1987, he
caught two persons digging a tunnel at BBRC and one of them was Victor Taneo.
Upon inquiry, Taneo told him that actually Roy Codilla has nothing to do with
the robbery-homicide in Dr. Sia's residence. He cannot recall, though, who the
other inmate was. Neither can he recall until now the name of the BBRC
investigator at that time. Taneo told him that the reason why he (Taneo)
implicated Codilla was because the complainant (referring to Dr. Sia) promised
him P300.00 but only P200.00 was given to him.
Accused Codilla, testified that in 1982 he was enlisted in the Philippine Army.
He was discharged in 1984 fro (sic) having gone AWOL. In April 1984, he was
hired by Dr. Sia as security guard of her residence at St. Michael Village, Banilad,
Cebu City. On May, 1985, Dr. Sia terminated his services.
He denied the charge that he and Taneo committed robbery-homicide in Sia (sic)
residence at 5:30 p.m. of December 22, 1986 because on that day he was in the
house of Jose Robert, his friend, who just arrived from Manila and went home at
10:30 o'clock in the morning of said day, passing first in his aunt's house at Camp
Lapulapu..
He came to know co-accused Taneo only after he was arrested by the police on
December 25, 1986.
During his employment as guard, he sleeps (sic) in the bedroom of Dr. Sia since
there are two beds — one for her and the other for him. Dr. Sia used to call him
whenever she counts (sic) her money and deposit (sic) them in the safe inside her
room. There were two instances when she let him count a sizeable sum of money.
He has never taken any valuable thing from the Sia residence.
Dr. Sia instigated Taneo to implicate him because at one time that Dr. Sia hired
somebody to lob a grenade in the house of the wife of her boyfriend, he stopped
her. (A picture of the alleged boyfriend Eliezer Magdales was produced by him
in Court Exh. "1"). That is the only reason why Dr. Sia wanted him to be jailed.
On cross examination, he testified that while employed by Dr. Sia, he has (sic)
good relations with her. Dr. Sia even at times gave him T-shirts aside from his
pay. Living in the Sia house are the doctor herself, her four children, houseboy
Jose Robert and maid Landa Robert. He was ordered by Dr. Sia to throw a hand
grenade at the house of her (Sia's) boyfriend which (sic) he relented. As a result,
she scolded him and then he left for Manila. In November, 1986, he returned to
Cebu and went to the house of Dr. Sia but houseboy Jose told him that the doctor
was not there. On December 22, 1986, at 10:00 a.m. he returned to Dr. Sia's house
to say hello because it was Christmas time and besides, the houseboy invited him
to a drinking spree. He found out that the persons in the Sia residence were only
the houseboy Jose, maid Landa and Pableo, the water-gatherer. When he, Jose
and Pableo went to the liquor store, only the maid was left in the house. After
partaking one bottle of beer grande at 11:00 a.m. he proceeded to the house of his
brother at Hipodromo where he stayed until 4:00 p.m. From there he went home
to Camputhaw, Lahug.
He meet (sic) co-accused Taneo only at the prison cell at Mabolo Police Station.
There Taneo told him that he (Taneo) does not know him. He only knew Bebot
Escoreal. He was picked up by some policemen near his home. Before his arrest,
he did not know the arresting officers, thus, he has no quarrel of misunderstanding
with them.
Mrs. Lolit Cabriana, a volunteer worker in the jail ministry testified that she met
Taneo in jail and he told her that he killed the maid of Dr. Sia in St. Michael's
Village at Talisay, Cebu using an empty beer bottle. His companion at that time
was only Bebot Escoreal. She knows Roy Codilla and she asked him why he was
in jail and the latter answered that he was not in the house of Dr. Sia when the
crime was committed. Codilla told her that he was then in his house at Lahug and
in his brother's house at Lahug and in his brother's house in Mandaue City.
Later, on cross-examination, she declared that for the four years of her missionary
work in BBRC jail she did not have an occasion to talk to Codilla because he is
not under her bible class.
Felicidad Pareño of Camputhaw, Lahug, Cebu City testified that she is a neighbor
of accused Codilla. Her house is two houses away. Her closeness to the mother
of Codilla is such that they treat each other like sisters.
In the afternoon of December 22, 1986, she was in the Codilla residence for their
prayer meeting and she saw for the first time accused Codilla at past 4:00 o' clock
that afternoon viewing TV in the second floor of their house. She went home at
about that time also and never saw Codilla anymore.6
Giving full faith and credit to the prosecution's version of the incident,
particularly to the testimonies of Dr. Sia, which it describes to be straightforward,
without hesitation and concise."7 and that of Victor Taneo who "[V]ividly in
detail, . . . disclosed how he met Codilla" and how the latter "laid his plan to 'hit'
the house of his former employer for revenge,"8 and considering the statement
given by Landa to Dr. Sia at the hospital — that she, Landa, was struck by Roy
Codilla — as part of the res gestae,9 the trial court, in its Decision dated and
promulgated on 14 December 1988,10 found the accused Roy Codilla guilty
beyond reasonable doubt of the crime charged. The dispositive portion of the
decision reads:
WHEREFORE, finding accused Roy Codilla guilty beyond reasonable doubt of
the crime of robbery with homicide, he is hereby sentenced to suffer the penalty
of reclusion perpetua, to indemnify jointly and severally with accused Victor
Taneo the heirs of the deceased Landa Robert the sum of P30,000.00 and to pay
the costs.
The Sentence on accused Taneo contained in the Order dated February 9, 1987
insofar as indemnification is concerned is hereby modified.
SO ORDERED.
The trial court rejected Codilla's defense of alibi because his residence in
barangay Camputhaw, the place where he claims to have been at the time of
the robbery, "is only less than an hour by jeepney to the Sia residence in
Banilad . . . It was therefore not physically impossible for Codilla to be at the
scene of the crime when the crime was committed." 12 Moreover, Codilla was
positively identified by Taneo who had no motive to perjure his testimony.
Accused Roy Codilla, hereafter referred to as the Appellant, seasonably filed his
Notice of Appeal,13 manifesting therein that he is appealing the decision to the
Court of Appeals. In view of the penalty imposed, the appeal should have been
elevated to this Court. On the other hand, for obvious reasons, accused Taneo did
not interpose an appeal.
The records of the case were erroneously transmitted to the Court of Appeals
which, however, forwarded them to this Court on 10 March 1989.14 This Court
accepted the appeal on 20 September 1989.15
In his brief, the appellant, through his counsel de officio16 who were appointed
as such by this Court due to the death of his counsel de parte,17 submits the
following assignment of errors:
I. The Trial Court erred in considering the alleged statement of the victim, Landa
Roberts (sic), as part of the res gestae.
II. The Trial Court erred in giving weight to the testimony of appellant's co-
accused, Victor Taneo.
III. The Trial Court erred in declaring that accused-appellant's identity was
established.18
In support of the first assigned error, appellant claims that the alleged statement
of Landa Robert could have been made at least four (4) hours after the occurrence
of the incident — a considerable lapse of time. Hence, per People v. Roca,19 it
cannot be said that the declarant did not have the opportunity to concoct or
contrive her statement. Neither can such statement qualify as a dying declaration
because it does not concern the cause and surrounding circumstances of the
declarant's death and that at the time it was made, the declarant was not under the
consciousness of an impending death. As a matter of fact, it is doubtful if Landa
did indeed make the statement considering that as testified to by the doctor who
had treated her, she had impaired consciousness; besides Mrs. Sia's companions,
one Corazon Gonzales and a policeman named Lopez, were not presented to
corroborate Sia's testimony.
Anent the second assigned error, appellant contends that in view of the first error
and the inadmissibility of the statement of Landa Robert, the prosecution was left
with nothing save for the testimony of Victor Taneo which, however, is weak and
does not constitute sufficient basis for the appellant's conviction. In the first place,
Taneo admitted to Pat. Ministerio that he (Taneo) and Bebot Escoreal were the
ones who manhandled the maid. Second, Taneo's credibility as a witness is
questionable; he had twice been apprehended for robbery under P.D. No. 532,
and had twice been prosecuted therefor in Criminal Case No. CBU-5871 and
Criminal Case No. CBU-5881 before Branches XVI and XIV of the Regional
Trial Court of Cebu. Both cases, however, were dismissed on the ground of
failure to prosecute. Appellant then pontificates: "From a hardened soul like
Victor Taneo's, it is very difficult to elicit the
truth."20 In addition thereto, appellant alleges that Taneo's testimony would
indicate that the same was for sale as the latter claimed that he was asked by Roy
Codilla to testify in his favor for the amount of P2,000.00, but that Codilla's wife
could only raise P400.00.
The third assigned error is premised on the assumption that the appellant's
conviction is based solely on the bare allegation of Mrs. Sia that the victim, Landa
Robert, had identified Codilla as her mauler, and on the testimony of Victor
Taneo which, as claimed in the first and second assigned errors is inadmissible
and weak. Appellant then faults the prosecution for not presenting Jose Robert
who could have attested to the appellant's presence and participation in the crime
or shed light on Taneo's claim that (a) the appellant went to the Sia house ahead
of the rest to distract Jose Robert's attention by inviting him to a drinking spree
and (b) the appellant left Jose at the sari-sari store and went back to Sia's house.
The appeal is devoid of merit.
At the outset, it is to be observed that at the bottom of the assigned errors is the
issue of the credibility of witnesses Herminia Sia and Victor Taneo. Deeply
embedded in our jurisprudence and amply supported by an impressive array of
cases is the rule that when the issue of credibility of a witness is concerned, the
appellate court will generally not disturb the findings of the trial court,
considering that the latter is in a better position to decide the question, having
heard the witness himself and observed his deportment and manner of testifying
during the trial, unless certain facts of substance and value had been plainly
overlooked which, if considered, might affect the results of the case.21
We have painstakingly examined the records of this case and the transcripts of
stenographic notes of the testimonies of the witnesses and find no cogent reason
to disregard the rule and give way to the exception. The full faith and credit given
by the trial court to the testimonies of the Herminia Sia and Victor Taneo are
supported by the evidence. In fact, the tenor of the assigned errors and the
arguments summoned to support them betray the appellant's realization of the
infirmity of his stand. Were it not for the gravity of the offense charged and the
penalty imposed, this conclusion could have written an early finis to the appeal.
But then, We are called to squarely meet the issues raised by the assigned errors.
1. The court a quo correctly considered the statement given by the victim, Landa
Robert, to Herminia Sia as part of the res gestae. Landa's declaration that it was
the appellant who struck her was given while she was still at the ground floor of
the Perpetual Succour Hospital awaiting to be admitted for treatment. She was
rushed to said hospital immediately after the incident in question and was
operated on for four (4) hours starting at 8:00 o'clock that evening until 12:00
midnight. She died five (5) days later.
The following three (3) requisites must concur before evidence of the res gestae
may be admitted: (1) the principal act, the res gestae, be a startling occurrence;
(2) the statements were made before the declarant had time to contrive or devise;
and (3) the statements must concern the occurrence in question and its
immediately attending circumstances.22
In People vs. Ner,23 this Court, speaking through Chief Justice Concepcion, held:
. . . All that is required for the admissibility of a given statement as part of the res
gestae, is that it be made under the influence of a startling event witnessed by the
person who made the declaration24 before he had time to think and make up a
story,25 or to concoct or contrive a falsehood,26 or to fabricate an account,27
and without any undue influence in obtaining
it,28 aside from referring to the event in question or its immediate attending
circumstances.29
The cases are not uniform as to the interval of time that should separate the
occurence of the startling event from the making of the declaration. What is
important is that the declarations were voluntarily and spontaneously made "so
nearly contemporaneous as to be in the presence of the transaction which they
illustrate and explain, and were made under such circumstances as necessarily to
exclude the idea of design or deliberation . . ."30
In the instant case, We find the interval of time between the robbery and the
infliction of the injuries upon Landa Robert, and her making of the statement,
which the appellant claims to before (4) hours or more, to be sufficient and
adequate to bring such statement to be so nearly contemporaneous as to be in the
presence of the transaction or occurrence which it illustrated or explained. Landa
was brought to the hospital where she made the statement immediately after the
commission of the crime. Given her condition at that time — she was hovering
between life and death — she could have hardly been expected to conjure up a
story or concoct and contrive a falsehood by falsely imputing upon the appellant
responsibility for her injuries. There is as well no doubt that the principal act in
question was a startling occurrence upon which Landa's statement about her
assailant relates to. In short, all the requisites for the admission of such statement
as part of the res gestae are present.
Appellants claim that Landa could not have uttered the incriminatory words
because she had "impaired consciousness," as testified to by the doctor, is pure
speculation. She gave her statement while she was still awaiting treatment in the
hospital. There is no evidence on record to show that at the time she did so, she
was in no condition to speak, utter a word or answer questions. Moreover,
appellant's counsel failed, on cross-examination, to extract from the doctor any
admission that "impaired consciousness" would include inability to speak or
answer a question, or that such a condition existed for some time before he had
seen or examined the patient. Neither was expert testimony introduced to prove
that the injuries sustained by Landa rendered her unconscious upon their
infliction or sometime thereafter — specifically, when she had reached the
hospital.
As to the appellant's insinuation that Mrs. Sia may have fabricated her testimony
regarding Landa's statement, suffice it to restate what We had said earlier: The
full faith and credit accorded by the trial court to her testimony is supported by
the evidence and its observation of her demeanor. Declared the lower court:
The Court painstakingly scrutinized the testimonies of the witnesses of both sides
including close examination of the demeanor of those who took the stand.
The testimony of Dr. Sia was straightforward, without hesitation and concise.31
While it may be true that Dr. Sia's companions, Corazon Gonzales and a
policeman (a certain Lopez), could have been presented to corroborate her
testimony, such non-presentation did not affect the probative value of such
testimony for, as even the appellant candidly admits, the testimony of the
companions could only be corroborative. As such, therefore, their testimonies
were properly dispensed with and their non-presentation did not imply
suppression of evidence and did not prove to be fatal to the prosecution's
case. 32 Besides, if the appellant was honestly convinced of the falsity of Sia's
testimony and the fact that none of her companions would corroborate her story,
he should have availed of the compulsory process to have them produced as his
own witnesses, or even as hostile witnesses.33
The prosecution's failure to present Jose Robert — a fact capitalized upon by the
appellant in his third assignment of error — was not fatal. At best, Robert's
testimony would have been merely corroborative.
Prescinding from all the foregoing, We find the appealed decision of the trial
court to be in accordance with the facts and applicable laws and jurisprudence.
Except for the indemnity which is hereby increased from P30,000.00 to
P50,000.00 to conform with the present policy of this Court, the said decision
must be affirmed.
WHEREFORE, the appealed decision of 14 December 1988 of Branch 10 of the
Regional Trial Court of Cebu in Criminal Case No. CBU-10135 is hereby
AFFIRMED, subject to the above modification on the indemnity. As modified,
the indemnity is hereby increased to P50,000.00.
Costs against the appellant.

2. Appellant insists that Victor Taneo's credibility is questionable because the SO ORDERED.
latter had earlier been charged in two criminal cases for robbery; the former
admits, however, that these cases were dismissed for failure to prosecute. Section Note.—The positive identification of the accused by the prosecution witnesses as
20, Rule 130 of the Rules of Court provides that except as provided for in the to his participation in the crime cannot be overcome by his mere denial (People
succeeding sections, all persons who can perceive, and perceiving, can make vs. Bocatcat, Jr., 188 SCRA 175). People vs. Taneo, 218 SCRA 494, G.R. No.
known their perception to others, may be witnesses. Religious or political belief, 87236 February 8, 1993
interest in the outcome of the case or conviction of a crime unless otherwise
provided by law, shall not be a ground for disqualification. Clearly, the mere
pendency of a criminal case against a person does not disqualify him from
becoming a witness. As a matter of fact, conviction of a crime does not disqualify
such person from being presented as a witness unless otherwise provided by
law.35 At his arraignment, Victor Taneo voluntarily pleaded guilty to an
information which charges conspiracy. He was not discharged as a state witness
— a sure guarantee of acquittal36 — and he did not impute criminal
responsibility solely on the appellant. Thus, if he were to testify falsely against
the latter, he must have been moved by a strong, improper and ulterior motive.
That motive must have been established; appellant failed to do so. In the absence
of evidence to show any reason or motive why witnesses for the prosecution
should have testified falsely, the logical conclusion is that no improper motive
existed, and that their testimony is worthy of full faith and credit.37

3. Since the appellant had been identified, his defense of alibi must fail. It is a
fundamental judicial dictum that the defense of alibi cannot prevail over the
positive identification of the accused. 38
G.R. Nos. 85248-49. July 6, 1994.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SGT. JERRY
BALANON, accused-appellant.
Criminal Law; Witness; Testimony; Alibi; Appellant’s alibi cannot stand in the
face of his clear and positive identification by Acasio who, appellant even
admitted, had no ill will to implicate him.—In the present recourse, accused-
appellant basically raises factual issues. He stresses his presence at the
SOUTHCOM headquarters in the morning of 3 November 1980, contrary to the
testimony of prosecution witness Rogene Acasio, also an inmate, that he was
drinking liquor with Balanon and the victims. Appellant’s alibi cannot stand in
the face of his clear and positive identification by Acasio who, appellant even
admitted, had no ill will to implicate him (Balanon) in the crime. Moreover, there
is no compelling reason to depart from the assessment of the credibility of the
witnesses made by the trial judge who, unlike the reviewing court, had the
occasion and opportunity to observe their demeanor and detect any badge of
fabrication. But even granting arguendo appellant’s claim to be true, this does not
contradict the testimonies of other prosecution witnesses that he shot the victims
to death.
Same; Same; Same; Remedial Law; Conviction of a crime unless otherwise
provided by law shall not be a ground for disqualification of witnesses.—
Appellant faults the trial court for giving credence to the testimony of Acasio who
was not only probably drunk, but was a convicted hijacker and falsifier of public
documents as well; hence, apt to fabricate his testimony. But, probability is not
evidence, and even if Acasio took alcohol, it does not follow that he was drunk.
Moreover, a drunk person is competent to testify on what he sees or experiences,
however limited or hazy his perception may be. In the same way, a hijacker or a
falsifier is not necessarily a liar. Under the Rules of Court, conviction of a crime,
unless otherwise provided by law, shall not be a ground for disqualification of
witnesses.
Same; Same; Same; Inconsistency in testimony of the witness is too trivial to
affect the straightforward account of the shooting of the victims by appellant.—
Ms. de la Cruz could be referring to two instances when accused came close to
Ms. Sinsuan, i.e., when the latter was already inside the bus and when she was
still boarding the bus, and the follow-up question of the prosecutor referred to the
instance when the witnesses were still boarding. But even if we consider as
inconsistent this portion of Ms. de la Cruz’ testimony, this is too trivial to affect
their straightforward account of the shooting of the victims by appellant.
Same; Murder; Treachery; There is treachery when the victims were shot
unexpectedly, and were not in a position to defend themselves.—The qualifying
circumstance of treachery is not disputed since the victims were suddenly shot,
unexpectedly, and were not in a position to defend themselves. People vs.
Balanon, 233 SCRA 679, G.R. Nos. 85248-49 July 6, 1994
On 6 July 1994 we affirmed the conviction of accused Sgt. Jerry Balanon of
murder on two (2) counts as well as the penalty of reclusion perpetua in each
count imposed by the Regional Trial Court of Zamboanga City.1
On 4 April 1994, appellant informed this Court that he was withdrawing his
appeal purportedly because he could no longer wait for the decision to be handed
down. He maintained that he has served his sentence of "double life
imprisonment" of fourteen (14) years and four (4) months from the time of his
incarceration on 22 December 1980.2 On 18 April 1994 the Judicial Records
Office (JRO) received the letter of Sgt. Balanon, and on 28 April 1994 transmitted
it to the Clerk of Court of the First Division.3
On 31 May 1994 Sgt. Balanon wrote a second letter inquiring how he could
withdraw his appeal as he had sought the assistance of his counsel de oficio but
did not receive any response from him.4 On 16 June 1994 the JRO received the
letter of the accused, and on 17 June 1994 transmitted it to the Clerk of Court,
First Division.
Upon investigation conducted by the Clerk of Court of the First Division, it was
revealed that the one in charge of receiving pleadings in the First Division was
Ms. Barbara C. Lopez, Records Officer II.5 The records show that Ms. Lopez
received the two (2) letters of Sgt. Balanon on 28 April 1994 and 17 June 1994,
respectively; that she had the letters attached to the rollo and transmitted them to
the Agenda Division for reporting only on 26 October 1994; that, acting on the
letters, the Court noted them in the agenda of 16 November 1994 and required
Atty. Virginia Ancheta-Soriano, Clerk of Court of the First Division, to explain
why the letters of Sgt. Balanon were belatedly brought to the attention of the
Court.
In her Memorandum dated 2 June 1994 to Mr. Justice Teodoro R. Padilla,
Chairman, First Division, Atty. Soriano reported that Ms. Lopez verbally
admitted her failure to forward the letters to the Agenda Division within a
reasonable time and apologized for the delay. According to her sister Ms. Lilian
Pimentel who also works with the Court, Ms. Lopez was unable to submit her
written explanation because she was confined at the Makati Medical Center.
In her letter to Atty. Soriano dated 11 January 1995 Ms. Lopez explained that she
repeatedly requested for the rollo of this case from the Rollo Room on four (4)
separate occasions, i.e., on 29 April 1994, 26 May 1994 and 7 and 21 June 1994,6
but failed to receive it; that when she was given clearance to transmit the
pleadings without the rollo, she made an inventory of all pleadings, segregating
those due for reporting from those which were not; that she then placed in one
(1) folder the pleadings which need not be reported and set it aside; that she
placed in another folder the temporary rollos containing the pleadings that had to
be reported and noted their case numbers in an index card; that unfortunately,
Ms. Lopez inadvertently filed the letters of Sgt. Balanon in the folder containing
pleadings that did not require reporting.
Ms. Lopez further explained that she could not rely on her list of cases where she
requested for the rollos - to remind her of pleadings that remained unacted upon
- because of the number of papers that regularly passed her table. Consequently,
she had to depend on the pleadings actually on file in her folder which she relied
upon to remind her of the rollos of the cases not yet delivered to her. She claimed
that she was unaware all the while that the two (2) letters of appellant Balanon
were placed in the wrong folder until someone requested for them.
On 17 January 1995 Atty. Soriano submitted a Supplemental Memorandum-
Report to Mr. Justice Padilla. According to her, while the evidence showed that
Ms. Lopez indeed requested for the rollo from the Rollo Room four (4) times
without favorable response, this could not exonerate her from administrative
liability since Ms. Lopez could have used a temporary rollo for the purpose.
Assuming that her efforts to obtain the rollo were futile, she should have
transmitted the letters just the same to the Agenda Division even without the
rollo. Obviously, her shortcomings were due not to the unavailability of the rollo
but because the letters had been erroneously filed in another folder.
Atty. Soriano informs the Court that she has replaced Ms. Lopez as the employee
in charge of receiving pleadings for transmission to the Agenda Division in view
of her propensity to commit such mistakes in the performance of her duties, and
that she has reminded the Chief of Division to closely supervise her subordinates
to avoid a repetition of the same act. Atty. Soriano recommends that Ms. Lopez
be accordingly admonished.
It may be recalled that in Tan Chun Suy v. Court of Appeals (G.R. No. 93640, 7
January 1994) a similar imprudence or indiscretion was committed in the First
Division by the same Ms. Barbara C. Lopez. In that case, Ms. Lopez received the
"Manifestation and Motion to Withdraw Petition" of petitioner on 24 November
1993 but failed to transmit the same to the Agenda Division for reporting until a
decision had already been promulgated. Ms. Lopez again attributed the delay in
the transmittal of the aforementioned manifestation and motion to the
unavailability of the rollo despite her repeated requests from the Rollo Room.
According to her, she accidentally found the rollo of the Tan Chun Suy case on
25 January 1994 at the Judgment Division of the Judicial Records Office after it
was directly forwarded to it upon promulgation of the decision on 7 January 1994.
In that incident Atty. Soriano rebuked Ms. Lopez and warned her to be more
circumspect in obtaining rollos of cases, suggesting to her that to be earnest in
her purpose she should have made a formal request signed by the Clerk of Court
authorizing her to follow-up rollos for proper reporting.
The Tan Chun Suy incident undoubtedly placed the Court in a bad light. We are
again faced with the same predicament. Officers and employees of the Court have
the bounden duty to judiciously manage their official affairs and adopt measures
to improve the system of filing, recording and transmitting of pleadings and court
processes to ensure efficiency in their workflow. Court employees are vital tools
in the effective administration of justice. Upon them lies the stability of the
judicial system and, ultimately, the confidence of the people in our courts.
Evidently, Ms. Lopez lacks devotion to duty and perseverance to overcome
difficulty. As a Records Officer she should exert all reasonable efforts to obtain
the rollo of a particular case where a pleading is to be attached for reporting, and
if the rollo is not available due to causes not attributable to her, she should have
the subject pleading reported just the same in a temporary rollo. It may be apropos
to stress that only when the rollo cannot be obtained through or under the usual
office procedure, or after a long period has already elapsed, shall a pleading be
reported in a temporary rollo. The rollo after all is necessary to check on the
accuracy of the report in the agenda.
WHEREFORE, MS. BARBARA C. LOPEZ, Records Officer II, Office of the
Clerk of Court, First Division, is SUSPENDED for two (2) weeks without pay
effective upon receipt hereof for her inordinate delay in transmitting to the
Agenda Division the two (2) letters of appellant Sgt. Jerry Balanon notifying this
Court of his intention to withdraw his appeal. She is STERNLY WARNED that
a repetition of the same or similar act will be dealt with more severely.
Let copy of this Resolution be attached to her personal file.
SO ORDERED.
Notes.—Treachery is present in case of sudden attack even if the victim was able
to parry first hacking with a wood marker (People vs. Sacayan, 113 SCRA 199).
Minor inconsistencies in the narration of a witness do not detract from its
essential credibility as long as it is on the whole coherent and intrinsically
believable (People vs. Ansing, 196 SCRA 374). People vs. Balanon, 233 SCRA
679, G.R. Nos. 85248-49 July 6, 1994
G.R. No. 129667. July 31, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERIC BAID Y
OMINTA, accused-appellant.
Words and Phrases; “Schizophrenia”; Explained.—Complainant is suffering
from schizophrenia, a psychotic disorder of unknown etiology, characterized by
disturbance in thinking involving a distortion of the usual logical relations
between ideas, a separation between the intellect and the emotions so that the
patient’s feelings and his or her manifestations seem inappropriate to his or her
life situation, and a reduced tolerance for the stress of interpersonal relations so
that the patient retreats from social intercourse into his or her own fantasy life
and commonly into delusions and hallucinations, and may, when untreated or
unsuccessfully treated, go on to marked deterioration or regression in his or her
behavior though often unaccompanied by further intellectual loss.
Witnesses; Mental Illness; Schizophrenia; It has long been settled that a person
should not be disqualified on the basis of mental handicap alone; It is established
that schizophrenic persons do not suffer from a clouding of consciousness and
gross deficits of memory.—Notwithstanding her mental illness, complainant
showed that she was qualified to be a witness, i.e., she could perceive and was
capable of making known her perceptions to others. Her testimony indicates that
she could understand questions particularly relating to the incident and could give
responsive answers to them, x x x Though she may have exhibited emotions
inconsistent with that of a rape victim (“inappropriate affect”) during her
testimony, such as by smiling when answering questions, her behavior was such
as could be expected from a person suffering from schizophrenia. Otherwise,
complainant was candid, straightforward, and coherent. Furthermore, aside from
the testimony of Dr. Salangad on complainant’s consciousness and memory, it is
established that schizophrenic persons do not suffer from a clouding of
consciousness and gross deficits of memory. It has long been settled that a person
should not be disqualified on the basis of mental handicap alone.
Same; Same; Witnesses; In the absence of bias, partiality, and grave abuse of
discretion on the part of the presiding judge, his findings as to their credibility
are entitled to utmost respect as he had the opportunity to observe their demeanor
on the witness stand.—The plausibility of an allegation of rape does not depend
on the number of witnesses presented during the trial, so much so that, if the
testimonies so far presented clearly and credibly established the commission of
the crime, corroborative evidence would only be a mere surplusage. In this case,
the trial court gave credence to the testimonies of the prosecution witnesses on
the basis of which it adjudged accused-appellant guilty. In the absence of bias,
partiality, and grave abuse of discretion on the part of the presiding judge, his
findings as to their credibility are entitled to utmost respect as he had the
opportunity to observe their demeanor on the witness stand.
Same; Same; The absence of spermatozoa in the genitalia of complainant does
not destroy the finding of rape since ejaculation is never an element thereof.—
Nor does the absence of spermatozoa in the genitalia of complainant destroy the
finding of rape since ejaculation is never an element thereof. What consummates
the felony is the contact of the penis of the perpetrator, however slight, to the
vagina of his victim without her consent. Neither is it required that lacerations be
found in the victim’s hymen.
Witnesses; Expert Witnesses; The accused cannot question in his appeal the
qualification of one presented as expert witness if he did not raise any objection
to his qualification in the trial court—objections not timely raised are deemed
waived.—Accused-appellant questions in this appeal the qualifications of Dr.
Salangad as an expert witness. However, he cannot do this now as he did not raise
any objection to Dr. Salangad’s qualifications in the trial court. On the contrary,
he even cross-examined her on the matters on which she testified. In accordance
with Rule 132, §36, objections not timely raised are deemed waived.
Same; Same; The fact that an expert witness was hired by the family of the
complainant to give expert testimony does not by that fact alone make her a
biased witness and her testimony unworthy of consideration; The problem of the
credibility of the expert witness and the evaluation of his testimony is left to the
discretion of the trial court whose ruling thereupon is not reviewable in the
absence of an abuse of discretion.—The fact that Dr. Salangad was hired by the
family of complainant to give expert testimony as a psychiatrist did not by that
fact alone make her a biased witness and her testimony unworthy of
consideration. As has been said: . . . Although courts are not ordinarily bound by
expert testimonies, they may place whatever weight they choose upon such
testimonies in accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial court
to decide, considering the ability and character of the witness, his actions upon
the witness stand, the weight and process of the reasoning by which he has
supported his opinion, his possible bias in favor of the side for whom he testifies,
the fact that he is a paid witness, the relative opportunities for study and
observation of the matters about which he testifies, and any other matters which
deserve to illuminate his statements. The opinion of the expert may not be
arbitrarily rejected; it is to be considered by the court in view of all the facts and
circumstances in the case and when common knowledge utterly fails, the expert
opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem
of the credibility of the expert witness and the evaluation of his testimony is left
to the discretion of the trial court whose ruling thereupon is not reviewable in the
absence of an abuse of that discretion.
Same; Same; Where the rape victim is feeble-minded, the force required by the
statute is the sexual act itself.
Same; Same; Sexual intercourse with an insane, deranged, or mentally deficient,
feeble-minded, or idiotic woman is rape, pure and simple.—Even assuming then
that the complainant consented to have sexual intercourse with accused-
appellant, the copulation would fall under the third paragraph of Art. 335 of the
Revised Penal Code in view of the fact that complainant was mentally ill.
Same; Alibi; Requisites.—Accused-appellant invoked alibi in his defense. He
claimed that, at the time of the incident, he was in his quarters at the Holy Spirit
Clinic sleeping. For the defense of alibi to be believed, the following requisites
must be met: (a) his presence at another place at the time of the perpetration of
the offense must be proven; and (b) it was physically impossible for him to be at
the scene of the crime.
Same; Same; The defense of alibi is unavailing where the accused was identified
by the victim herself who harbored no ill motive against him.—Accused-
appellant’s testimony itself demonstrates the untenability of his alibi. First, his
declaration that he was in another room of the clinic is uncorroborated. Second,
the room in which he said he was sleeping at that time of the incident was only a
few meters away from the patients’ room where complainant was confined.
Third, he admitted that, as a nurse-aide, he was allowed to enter the patients’
room anytime for purposes of checking on the patients. Above all, his alibi cannot
be given credence because complainant has pointed to him as the culprit of the
rape. In cases in which the accused-appellant was identified by the victim herself
who harbored no ill motive against him, the defense of alibi was rejected. People
vs. Baid, 336 SCRA 656, G.R. No. 129667 July 31, 2000
This is an appeal from the decision1 of the Regional Trial Court, Branch 95,
Quezon City, finding accused-appellant Eric Baid y Ominta guilty of the crime
of rape against Nieva Garcia y Saban, a mental patient, and sentencing him to
suffer the penalty of reclusion perpetua and to pay the victim the amount of
₱50,000.00 as moral damages.
The information against accused-appellant, based on the complaint filed by the
offended woman and her mother, alleged -
That on or about the 22nd day of December 1996, in Quezon City, Philippines,
the said accused by means of force and intimidation, to wit: by then and there
[willfully], unlawfully and feloniously undressing one NIEVA GARCIA y
SABAN, a mental patient suffering [from] schizophrenia and put himself on top
of her, and thereafter have carnal knowledge with the undersigned complainant
against her will and without her consent.
CONTRARY TO LAW
When arraigned, accused-appellant entered a plea of not guilty, whereupon trial
of the case on the merits proceeded.
The prosecution presented three witnesses, namely, the complainant, Dr.
Herminigilda Salangad, the complainant's attending psychiatrist, and Dr.
Emmanuel Reyes, the medico-legal officer who examined the complainant.
Complainant is a 27-year old single woman, who was diagnosed as having
suffered from schizophrenia since 1988. In December 1996, she was confined at
the Holy Spirit Clinic in Cubao, Quezon City because of a relapse of her mental
condition.3 On the other hand, accused-appellant was a nurse-aide of said clinic.
On December 22, 1996, at around 3 a.m., accused-appellant sneaked into the
patients' room. He woke the complainant up and offered her a cigarette, at the
same time touching her foot. Complainant took the cigarette. As she smoked it,
accused-appellant caressed her. Apparently, she was aroused, because she
afterward removed her pants. It turned out she was not wearing any underwear.
Accused-appellant also removed his pants and the two had sexual intercourse.
Afterwards, they transferred under the bed and continued their sexual intercourse.
Complainant said she felt accused-appellant had an orgasm. A female patient who
had been awakened tried to separate the two, and, as she failed to do so, she went
out to call the two nurses on duty. The nurses responded but, when they arrived,
accused-appellant had left, while complainant had already put on her pants.4
Complainant was brought later during the day before Dr. Emmanuel Reyes for
medico-legal examination. She told him what happened. Dr. Reyes reduced her
narration of the incident into writing5 and then gave her a physical examination.
His report stated:6
FINDINGS:
GENERAL AND EXTRAGENITAL:
Fairly developed, and coherent female subject. Breasts are hemispherical with
pale brown areola and nipples from which secretions could be pressed. Abdomen
is flabby and soft.
GENITAL:
There is moderate growth of pubic hair. Labia majora are full, convex and
coaptated with the pale brown labia minora presenting in between. On separating
the same disclosed an abraided posterior fourchette and an elastic, fleshy-type
hymen with deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice
offers moderate resistance to the introduction of the examining finger and the
virgin-sized speculum. Vaginal canal is wide with flattened rugosities. Cervix is
normal in size, color and consistency.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.
REMARKS:
Vaginal and peri-urethral smears are negative for gram negative diplococci and
for spermatozoa.
Dr. Reyes said the fresh abrasion, located at 6 o'clock posterior of the
complainant's genitalia, could have been recently caused by a hard blunt object,
such as an erect penis during sexual intercourse, or by the insertion of a finger.
Dr. Reyes found that complainant was suffering from mental illness and that she
had lapses in the course of her interview.7
Accused-appellant testified in his behalf. He stated that he had been a nurse-aide
of the Holy Spirit Clinic since September 18, 1995. His job was to watch the
patients, especially when they become violent. He also fetched them from their
homes. He admitted that he knew the complainant but claimed he did not know
the reason for her confinement. He denied the allegations against him. He
testified that, on the date and time referred to by the complainant, he was asleep
in the nurse-aide quarters located about ten meters from the room where
complainant was staying. He admitted, however, that to go to the patients' room,
he did not have to pass by the nurses' station. He said he knew that, at the time in
question, there were two nurses on duty and ten patients in the room. He
described the patients' room as having an area of about eight by five square meters
with wooden beds arranged one foot apart from each other.8
Accused-appellant was questioned by the trial court. He testified that on
December 22, 1996, he was on duty from 4 p.m. to 12 midnight. He was a stay-
in nurse-aide of the clinic. He stated that the clinic consisted of two floors and
five rooms. The room where complainant and the other patients were staying and
his quarters were both on the ground floor of the building. He admitted that the
clinic was for the mentally ill and that, as a nurse-aide, he was supposed to know
the status of every patient and his job was to watch them and pacify them
whenever they become violent. He said he was very well acquainted with the
behavior of the patients considering the length of time he had been working in
the clinic. He claimed, however, that he did not specifically know from what
ailment complainant was suffering, but only that she was undergoing treatment
because of mental deficiency.9
On cross-examination, accused-appellant admitted that he knew it was prohibited
to give cigarettes to patients. He further admitted that, as a nurse-aide, he could
enter the patients' room anytime to check their condition and see to it that the
lights were turned off when they were not needed. He further stated that he was
not investigated by the police when he was invited to their headquarters.10
On June 20, 1997, the trial court rendered its decision,11 the dispositive portion
of which reads:
WHEREFORE, judgment is hereby rendered finding the accused Eric Baid y
Ominta GUILTY beyond reasonable doubt of the crime of rape defined in and
penalized by Art. 335 of the Revised Penal Code, as amended by Rep. Act 7659,
and hereby sentences the said accused to suffer the penalty of reclusion perpetua.
The accused is further ordered to indemnify the victim Nieva Garcia y Saban the
amount of P50,000.00, as moral damages.
IT IS SO ORDERED.
Accused-appellant contends that the trial court erred in convicting him of rape.12
Complainant is suffering from schizophrenia, a psychotic disorder of unknown
etiology, characterized by disturbance in thinking involving a distortion of the
usual logical relations between ideas, a separation between the intellect and the
emotions so that the patient's feelings and his or her manifestations seem
inappropriate to his or her life situation, and a reduced tolerance for the stress of
interpersonal relations so that the patient retreats from social intercourse into his
or her own fantasy life and commonly into delusions and hallucinations, and may,
when untreated or unsuccessfully treated, go on to marked deterioration or
regression in his or her behavior though often unaccompanied by further
intellectual loss.13 The following are the symptoms of schizophrenia:
A. Characteristic symptoms: Two (or more) of the following, each present for a
significant portion of time during a 1-month period (or less if successfully
treated):
(1) delusions
(2) hallucinations
(3) disorganized speech (e.g., frequent derailment or incoherence)
(4) grossly disorganized or catatonic behavior
(5) negative symptoms, i.e., affective flattening, alogia, or avolition
Note: Only one criterion A symptom is required if delusions are bizarre or
hallucinations consist of a voice keeping up a running commentary on the
person's behavior or thoughts, or two or more voices conversing with each other.
B. Social/occupational dysfunction: For a significant portion of the time since the
onset of the disturbance, one or more major areas of functioning such as work,
interpersonal relations, or self-care are markedly below the level achieved prior
to the onset (or when the onset is in childhood or adolescence, failure to achieve
expected level of interpersonal, academic, or occupational achievement).
C. Duration: Continuous signs of the disturbance persist for at least 6 months.
This 6-month period must include at least 1 month of symptoms (or less if
successfully treated) that meet criterion A (i.e., active-phase symptoms) and may
include periods of prodromal or residual symptoms. During these prodromal or
residual periods, the signs of the disturbance may be manifested by only negative
symptoms or two or more symptoms listed in criterion A present in an attentuated
form (e.g., odd beliefs, unusual perceptual experiences).
D. Schizoaffective and mood disorder exclusion: Schizoaffective disorder and
mood disorder with features have been ruled out because either (1) no major
depressive, manic, or mixed episodes have occurred concurrently with the active-
phase symptoms; or (2) if mood symptoms, their total duration has been brief
relative to the duration of the active and residual periods.
E. Substance/general medical condition exclusion: The disturbance is not due to
the direct physiological effects of a substance (e.g., a drug of abuse, a medication)
or a general medical condition.
F. Relationship to a pervasive developmental disorder: If there is a history of
autistic disorder or another pervasive developmental disorder, the additional
diagnosis of schizophrenia is made only if prominent delusions or hallucinations
are also present for at least a month (or less if successfully treated).14
Schizophrenia is classified into five subtypes, namely, paranoid, disorganized
(hebephrenic), catatonic, undifferentiated, and residual.15
Dr. Herminigilda Salangad, the complainant's attending psychiatrist and
consultant at the Medical Center in Muntinlupa, the Perpetual Help Medical
Center, the Philippine National Police, and the Holy Spirit Clinic, was presented
as an expert witness. According to her, complainant was, at the time of the
incident, suffering from an undifferentiated type of schizophrenia, described as
having the characteristic symptoms of schizophrenia but does not fit the profile
for paranoid, disorganized, or catatonic schizophrenia. Dr. Salangad stated that
complainant seemed to shift from one type of schizophrenia to another.
Complainant was catatonic when she first treated her, a situation where the
patient shows waxy flexibility (e.g., when a limb is repositioned, that limb
remains in that position for a prolonged period of time as if the patient is made
of wax), mutism or agitation, and the patient mimics words and actions during
examination. Later, complainant became paranoid, i.e., suspicious, hostile and
aggressive. She also manifested a behavior where she mumbled and smiled to
herself.16
It is contended that as complainant is a schizophrenic, her testimony should not
have been given credence by the trial court. It is argued that: (1) there were
serious inconsistencies between her sworn statement and her testimony in court;
(2) the prosecution failed to present witnesses to corroborate her testimony; (3)
complainant failed to identify accused-appellant; (4) the results of the medico-
legal examination were negative for spermatozoa; (5) the healed lacerations
showed that complainant had sexual intercourse seven days before the alleged
incident; and (6) the probability was that her allegations of rape were merely a
product of her fantasy.17
We disagree.
Notwithstanding her mental illness, complainant showed that she was qualified
to be a witness, i.e., she could perceive and was capable of making known her
perceptions to others.18 Her testimony indicates that she could understand
questions particularly relating to the incident and could give responsive answers
to them. Thus she testified:
Q And what happened after Eric Baid entered the room?
A When Eric Baid entered the room as if he knew me already and he asked me,
"Nieva, gusto mo ng sigarilyo?", at the same time, Eric Baid was touching my
foot.

PROSECUTION: (to the witness) ATTY. VENTURANZA:

Q Miss Nieva Garcia, are you still confined at the Holy Spirit Clinic, Los Angeles I would just want to manifest that the witness while testifying, she was smiling.
St., Cubao, Quezon City?
PROSECUTION: (to the witness)
A Not anymore, sir.
Q And after he asked you whether you like a stick of cigarette and touched your
Q On December 22, 1996, do you know whether you are at the Holy Spirit Clinic, foot, what happened next, Madam Witness?
Los Angeles St., Cubao, Quezon City?
A I said yes.
A Yes, sir.
Q And what happened next after you said yes, I liked cigarette?
Q Why were you there, Miss Witness?
A After that, he caressed me.
A My mother asked me if I want to be confined at the Holy Spirit Clinic and I
chose to be confined at the Holy Spirit because during that time, I was then taking COURT: (to the witness)
my medicine.
Q How did he caress you?
Q At around three o'clock in the morning of December 22, 1996, do you know
where were you? A He went on top of me.

A Yes, I was lying on the bed inside the Holy Spirit Clinic. COURT: (to the prosecutor)

Q And while lying on the bed, inside the Holy Spirit Clinic, do you know what
happened then, Miss Witness?
A At that time, there was a person shorter than the person (witness pointing to
the person dressed in yellow t-shirt whose name when asked, answered the name
Eric Baid) and that person is smaller than the person inside the courtroom was
disturbing "kinakalabit" another person inside the room.
Q And what happened after that first man entered the room at the Holy Spirit
Clinic?
A The girl was trying to avoid the other person because at that time, the accused
Eric Baid was entering the room.
Go ahead.
PROSECUTION: (to the witness)
Q How about the other man who entered earlier, what happened him?
A The smaller person went in and out of our room twice, the first time that he
went, he touched the other woman beside me on the foot but the woman resisted
and shouted. After that, the second time, the other man went inside the room, he
touched the other woman but the woman shouted and that smaller one went
outside of the room.
Q When Eric Baid placed himself on top of you, where was that other man?
 A Yes, your Honor.
A: He was no longer there.
Q What did he do when he was able to insert his private organ into your private
PROSECUTION: (to the witness) organ?

Q When Eric Baid was already on top of you, do you know if the small man A As if his orgasm suddenly appeared.
entered again your room?
Q Do you understand when you say as if his orgasm suddenly appeared?
A No, sir.
A They are like what they call, your Honor, as if "naiputok".
Q And then, what happened when Eric Baid placed himself on top of you?
Q And what did he do when according to you "naiputok"?
A I agreed.
A As if it was okay for him.
Q Agreed to what?
Q You were wearing an underwear?
A I agreed to the sex.
A None, your Honor.
Q You mean to say that you and Eric Baid has sexual intercourse while on top of
your bed? Q You were actually naked?

A Yes, sir. A I was wearing pants but I have no panty.

Q And what happened during the sexual intercourse while both of you were on Q But who removed your pants?
top of the bed?
A I was the one, your Honor.
A Somebody was awakened and told me, "Hoy, asawa mo ba iyan?
Kinukubabawan ka." and I answered no. Q What about Eric Baid, what was he wearing?

Q And was Eric Baid, was he able to consummate that sexual intercourse, Miss A He was also wearing pants.
Witness?
Q Who removed the pants of Eric Baid?
A Yes, sir.
A He was the one.19
Q And more or less, how long did the sexual intercourse last, Miss Witness?
When complainant was questioned on cross and redirect examination, she
A Around three to five minutes. explained how she was able to identify accused-appellant, to wit:

COURT: (to the witness) ATTY. SALATANDRE:

Q Why, was he able to insert his private organ into your private organ? Q You said a while ago that when the sex affair happened it was dark so all
throughout you did not see the face of the accused?
A During that time it was dark but the latter part when he opened the light, I saw Yes, your Honor.
his face, sir.
COURT:
Q When the light was opened, he was about to leave the room?
Go ahead.
A About to leave, sir.
PROSECUTION:
Q He was already facing the door?
Q You said that you were only able to identify the accused when he put on the
A Yes, Sir. lights, when he was about to leave the room, how far were you from the accused?

Q And you were at his back left inside the room? A This distance, sir. (parties stipulated a distance of four meters, more or less)

A No, Sir. Q You said that you saw his face at that time?

Q Where were you then? A Yes, sir.

A I was just inside the room in my bed not at his back, sir.
Q You were already on your bed when he was about to leave the room?
A Yes, Sir.
Q At that time that sex affair transpired between you and the accused, you did
not even know his name?
Q And before this incident of December 22, 1996, were there any other occasion
that he had any sexual intercourse with you?
A None, sir.
Q And you often saw him as attendant in that clinic?
A Yes, sir.

A Yes, Sir. Q And when you said that room was dark, is it totally dark or was it only a little
dark?
Q You were only told later on about this person?
A Little light, sir. It was a little bit dark and a little bit light. (medyo may ilaw)
A Yes, Sir.
Q So the time that you had sexual intercourse with the accused at that time, you
ATTY. SALATANDRE: (to the Court) can identify the face of this person?

That will be all, Your Honor. A Yes, sir.

COURT: COURT: (to the witness)

Any redirect? Q You said that medyo may ilaw, where was the light emanating at about 3:00 in
the morning?
PROSECUTION:
A From the window outside, the room can be illuminated through the window,
Your Honor.
Q So when the light came from outside, was the source from the moon, from the
bulb of the Meralco post or from another light coming from another building or
house?
A It is the light actually coming from the ceiling of the building of the clinic
which was outside the window, Your Honor.20
Though she may have exhibited emotions inconsistent with that of a rape victim
("inappropriate affect") during her testimony, such as by smiling when answering
questions, her behavior was such as could be expected from a person suffering
from schizophrenia. Otherwise, complainant was candid, straightforward, and
coherent.
Furthermore, aside from the testimony of Dr. Salangad on complainant's
consciousness and memory,21 it is established that schizophrenic persons do not
suffer from a clouding of consciousness and gross deficits of memory.22 It has
long been settled that a person should not be disqualified on the basis of mental
handicap alone.23
With regard to the alleged inconsistencies between complainant's sworn
statement24 and her testimony as to the number of times she and accused-
appellant had sexual intercourse and where they did the same, an examination of
the evidence for the prosecution, particularly complainant's sworn statement and
her interview with the examining medico-legal officer, shows that accused-
appellant had sexual intercourse with her in different positions at various places
in the same room. When complainant testified, she stated that, aside from the fact
that accused-appellant had sexual intercourse with her on her bed, he made her
transfer later under the bed. Be that as it may, complainant has consistently
established in all of her statements that he had sexual intercourse with her on her
bed. Whether or not he had sex with her near the window and while facing him
is of no moment and does not negate the finding of rape. Whatever may be the
inconsistencies in her testimony, they are minor and inconsequential. They show
that complainant's testimony was unrehearsed, and rather than diminish the
probative value of her testimony, they reinforce it.25
In the case at bar, the rape of complainant occurred in a room where other patients
were sleeping. This circumstance, it is argued, is antithetical to the possibility of
the commission of rape. As this Court has repeatedly said, lust is no respecter of
time and place and the crime of rape can be consummated even when the
malefactor and the victim are not alone.26
The plausibility of an allegation of rape does not depend on the number of
witnesses presented during the trial, so much so that, if the testimonies so far
presented clearly and credibly established the commission of the crime,
corroborative evidence would only be a mere surplusage.27 In this case, the trial
court gave credence to the testimonies of the prosecution witnesses on the basis
of which it adjudged accused-appellant guilty. In the absence of bias, partiality,
and grave abuse of discretion on the part of the presiding judge, his findings as
to their credibility are entitled to utmost respect as he had the opportunity to
observe their demeanor on the witness stand.28
Nor does the absence of spermatozoa in the genitalia of complainant destroy the
finding of rape since ejaculation is never an element thereof.29 What
consummates the felony is the contact of the penis of the perpetrator, however
slight, to the vagina of his victim without her consent.30 Neither is it required
that lacerations be found in the victim's hymen. We have held that a medical
examination is not a requisite for a rape charge to prosper as long as the victim
categorically and consistently declares that she has been defiled.31 In this case,
aside from complainant's positive testimony, the medical examination of the
complainant showed an abrasion on her labia minora, indicating that she had
recent sexual intercourse.32 That the deep healed lacerations found on the
complainant's genitalia may have been caused seven days prior to December 22,
1996 is immaterial and irrelevant considering that she is a non-virgin.
Accused-appellant also claims that complainant could have been hallucinating in
alleging that she had sexual intercourse with him on December 22, 1996. In
answer, suffice it to say that complainant was steadfast and consistent in stating
that she was raped by accused-appellant. She maintained her allegation of rape
when she was physically examined by the medico-legal officer, when she made
her statement to the police and again when she testified in court.33
Accused-appellant assails the trial court's finding of lack of consent on the part
of the complainant to the sexual act. As the facts show, complainant herself
admitted that she agreed to have sex with him after he gave her a stick of cigarette.
However, it should be stressed that complainant was in no position to give her
consent. As Dr. Salangad said in her testimony:
COURT:
Q If you claim that the private complainant is suffering from this kind of illness,
schizophrenia, and manifests behavior to the effect that she can not be active
during lucid intervals now if she is suffering from this kind or mental state, can
she give an intelligent consent considering that the private complainant is already
above 20 years of age?
A In her case, I would say no, Your Honor.
Q I will rephrase my question. Because when I asked to give an intelligent
consent, you might be referring to acts that are very important to her like, for
example, "do you want to eat?" of course, she will give an intelligent consent.
"Do you want to sleep?" of course, she will give an intelligent consent?
A Yes, Your Honor.
Q But things that would destroy her honor or reputation like for example having
sex with her, can she give an intelligent consent?
A No, Your Honor.
Q In other words, she would not know the consequences of her consenting to
such a proposal to have sex?
A Yes, Your Honor.
....
ATTY. SALATANDRE:
Q She can not give an intelligent consent to sex, your patient?
A Yes, sir.
Q Meaning she will just agree?
A She has said so when I asked her. She was just offered a cigarette.
Q Meaning if she opens her legs, she does not understand what she was doing?
A She probably knew what she was doing but when we say an intelligent consent,
she has weighed the pros and cons on an action and its future significance and
also based on the upbringing, sir.
Q That she was on top of the bed, then the accused allegedly opened the zipper
of his pants and pulled down the pants up to his knees and placed himself on top
of the patient and tried to insert his organ to her organ and the girl said she agreed
to it because she likes it, does it mean all those things that transpired she does not
know or understand what was happening?
A She knew what was happening but there is a difference in her judgment, in her
discernment. A child can be asked to lie down and knows that somebody was on
top of him or her and that is the thing of being aware. But the judgment of the
consent itself, the significance, the effect, we all know that a normal person does
not do these unless he or she contemplates it.
Q I just do not know if I am correct, my interpretation about what you are saying
is that physically they are doing that, meaning the organ of the accused was
inserted into the organ of the patient allegedly but the girl did not resist, the girl
did not comment whatsoever because she did not understand what is happening?
COURT:
No, she did not say that she did not understand what was happening, she can not
discern.
A Let me give you a little information. In the psychological state of mentally ill
patients, the basic instinct of a person is very prominent. They respond, they eat
and they can have sex, that is normal and they are just responding on the level of
their basic instinct. When you are a mature person or a normal person and you
have attained maturity and clearness of mind, you now, of course, try to put things
into their proper perspective, socially and morally, that is where upbringing and
education come in. I would say that the patient's case, she is more responding in
an instinctual level without the use of intellect.34
Accused-appellant questions in this appeal the qualifications of Dr. Salangad as
an expert witness. However, he cannot do this now as he did not raise any
objection to Dr. Salangad's qualifications in the trial court. On the contrary, he
even cross-examined her on the matters on which she testified. In accordance
with Rule 132, §36, objections not timely raised are deemed waived.
The fact that Dr. Salangad was hired by the family of complainant to give expert
testimony as a psychiatrist did not by that fact alone make her a biased witness
and her testimony unworthy of consideration. As has been said:
. . . Although courts are not ordinarily bound by expert testimonies, they may
place whatever weight they choose upon such testimonies in accordance with the
facts of the case. The relative weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to decide, considering the ability
and character of the witness, his actions upon the witness stand, the weight and
process of the reasoning by which he has supported his opinion, his possible bias
in favor of the side for whom he testifies, the fact that he is a paid witness, the
relative opportunities for study and observation of the matters about which he
testifies, and any other matters which deserve to illuminate his statements. The
opinion of the expert may not be arbitrarily rejected; it is to be considered by the
court in view of all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given controlling effect (20
Am. Jur., 1056-1058). The problem of the credibility of the expert witness and
the evaluation of his testimony is left to the discretion of the trial court whose
ruling thereupon is not reviewable in the absence of an abuse of that discretion.35
It has not been shown in this case that the trial court abused its discretion in
appreciating the testimony of Dr. Salangad so as to justify setting aside its
findings.
Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides:
ART. 335. When and how rape is committed. - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances.
(1) By using force or intimidation;
(2) When the woman is deprived of reason or otherwise unconscious; and
(3) When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
To warrant a conviction for rape under paragraph (2) of Art. 335, a woman need
not be proven as completely insane or deprived of reason.1âwphi1 The phrase
"deprived of reason" has been construed to include those suffering from mental
abnormality or deficiency or some form of mental retardation, those who are
feebleminded although coherent.36
That the complainant was suffering from schizophrenia at the time of the rape is
shown by the fact that she was in the clinic precisely because of such illness and
by her behavior at the trial, during which she would smile for no reason at all
while answering the questions. Though she may not have totally lost her memory,
it was shown that she was suffering from an impairment of judgment, which made
her incapable of giving, an intelligent consent to the sexual act. It has been held
that where the rape victim is feeble-minded, the force required by the statute is
the sexual act itself.37
Even assuming then that the complainant consented to have sexual intercourse
with accused-appellant, the copulation would fall under the third paragraph of
Art. 335 of the Revised Penal Code in view of the fact that complainant was
mentally ill. Sexual intercourse with an insane, deranged, or mentally deficient,
feebleminded, or idiotic woman is rape, pure and simple.38
At any rate, complainant said in her sworn statement that she was afraid of
accused-appellant because of the nature of his job as a nurse-aid. Thus she stated:
28. Tanong : Ikaw ba ay natatakot kay Eric?
Sagot : Kaunti lang, dahil sa trabaho niya.39
As Dr. Salangad explained:
ATTY. SALATANDRE:
Q Meaning that when she was asked on page 2 "Tanong 27 Q - Ikaw ba ay tinakot
o sinaktan ni Eric? S - Hindi naman po." This is her own answer, nobody
threatened her at that time?
A Yes, sir, but may I add. There was no direct threat but in her situation she was
brought there for confinement and treatment and for safekeeping. She is in a
situation wherein the attendants and the nurses are all authorities around her, who
dictate what to do. I believe that there was some kind of threat or force in that
level, although there was no direct threat in the action.
COURT:
Q In the mind of Nieva Garcia, who were those that might be threatening to her?
A The accused somehow had made the threat. Because in their daily activity, the
attendants and nurses dictate the things to do, they follow, they are bosses in the
clinic, they are in that kind of situation always, Your Honor.
Q That explains your presence during the investigation?
A To assist her in order that she is not afraid and in response to earlier question
of counsel if the patient was directly threatened or intimidated during the act, I
am giving you a general situation in an institution, in this kind of institution.
Sometimes they are restrained if they go out of line, they are ones who restrain
them, the attendants and the nurses do these, Your Honor.40

As already stated, accused-appellant invoked alibi in his defense. He claimed

that, at the time of the incident, he was in his quarters at the Holy Spirit Clinic
sleeping. For the defense of alibi to be believed, the following requisites must be
met: (a) his presence at another place at the time of the perpetration of the offense
must be proven; and (b) it was physically impossible for him to be at the scene
of the crime.41

Accused-appellant's testimony itself demonstrates the untenability of his alibi.

First, his declaration that he was in another room of the clinic is uncorroborated.
Second, the room in which he said he was sleeping at that time of the incident
was only a few meters away from the patients' room where complainant was
confined. Third, he admitted that, as a nurse-aide, he was allowed to enter the
patients' room anytime for purposes of checking on the patients. Above all, his
alibi cannot be given credence because complainant has pointed to him as the
culprit of the rape. In cases in which the accused-appellant was identified by the
victim herself who harbored no ill motive against him, the defense of alibi was
rejected.42

The trial court correctly awarded moral damages in the amount of ₱50,000.00, in
accordance with our recent rulings that moral damages may be awarded in rape
cases without any need of proof of moral suffering. However, in addition, civil
indemnity in the amount of ₱50,000.00 should have been awarded the
complainant consistent with the ruling that rape victims are entitled to such an
award without need of proof except the fact of the commission of the offense.43
On the other hand, the plea of the prosecution that the indemnity should be raised
to ₱75,000.00 cannot be granted because such amount is awarded only in cases
of qualified rape. In this case, there were no qualifying circumstances raising the
penalty to death.44

WHEREFORE, the decision of the Regional Trial Court, Branch 95, Quezon City
is AFFIRMED with the modification that, in addition to the award of ₱50,000.00
for moral damages made by the trial court, complainant should be indemnified in
the amount of ₱50,000.00.

SO ORDERED.
G.R. No. 116372 January 18, 2001
REPUBLIC OF THE PHILIPPINES represented by the DIRECTOR OF
LANDS, petitioner, vs. COURT OF APPEALS and ROMEO
DIVINAFLOR, respondents.
Appeals; The jurisdiction of the Supreme Court in cases brought to it from the
Court of Appeals is limited to the review and revision of errors of law allegedly
committed by the appellate court, as its findings of fact are deemed conclusive—
the Court is not bound to analyze and weigh all over again the evidence already
considered in the proceedings below.
Witnesses; Being in a better position to observe the witnesses, the trial court’s
appreciation of the witness’ testimony, truthfulness, honesty, and candor,
deserves the highest respect.—Petitioner questions the credibility of claimant
Divinaflor who testified on the possession of Marcial Listana for the period
required by law. The issue of credibility is unavailing considering that the judge
below is in a better position to pass judgment on the issue having personally heard
the witnesses testify and observed their deportment and manner of testifying.
Being in a better position to observe the witnesses, the trial court’s appreciation
of the witness’ testimony, truthfulness, honesty, and candor, deserves the highest
respect.
Same; It is axiomatic that a witness’ interest in the outcome of a case shall not be
a ground for disqualification, and that such an interest, if shown, while perhaps,
indicating the need for caution in considering the witness’ testimony, does not of
itself operate to reduce his credit—his testimony must be judged on its own
merits, and if it is otherwise clear and convincing and not destroyed by other
evidence on record, may be relied upon.—It is axiomatic that a witness’ “interest
in the outcome of a case shall not be a ground for disqualification, and that such
an interest, if shown, while perhaps, indicating the need for caution in considering
the witness’ testimony, does not of itself operate to reduce his credit; indeed, his
testimony must be judged on its own merits, and if ** (it) is otherwise clear and
convincing and not destroyed by other evidence on record, it may be relied upon.”
In this case, both the trial court and the Court of Appeals found Divinaflor’s
testimony to be convincing, a finding with which, in the premises, this Court will
not and cannot take issue.
Same; Evidence; Pleadings and Practice; It is an elementary rule in evidence that
when a witness is produced, it is a right and privilege accorded to the adverse
party to object to his examination on the ground of incompetency to testify.—In
the same vein, the issue of incompetency of Divinaflor to testify on the possession
of his predecessor-in-interest since 1939 is likewise unavailing and must be
rejected. A timely objection was never made by petitioner on the ground of
incompetency of Divinaflor to testify on this matter at any stage of the
proceedings. It is an elementary rule in evidence that: “when a witness is
produced, it is a right and privilege accorded to the adverse party to object to his
examination on the ground of incompetency to testify. If a party knows before
trial that a witness is incompetent, objection must be made before trial that a
witness is incompetent, objection must be made before he has given any
testimony; if the incompetency appears on the trial, it must be interposed as soon
as it becomes apparent.”
Same; Same; Child Witnesses; It is well-established that any child regardless of
age, can be a competent witness if he can perceive, and perceiving can make
known his perception to others and that he is capable of relating truthfully facts
for which he is examined; The requirements of a child’s competence as a witness
are: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of
communication.—Be that as it may, a person is competent to be a witness if (a)
he is capable of perceiving at the time of the occurrence of the fact and (b) he can
make his perception known. True, in 1939, Divinaflor was not born yet, but in
1945, he was four years old, residing in Maramba, Oas, Albay, where the subject
lot is located. As his testimony goes, he and Marcial Listana were barrio mates,
and that he usually passes by the subject land. The fact that Divinaflor was only
a child at the required inception of possession does not render him incompetent
to testify on the matter. It is well-established that any child regardless of age, can
be a competent witness if he can perceive, and perceiving can make known his
perception to others and that he is capable of relating truthfully facts for which
he is examined. The requirements of a child’s competence as a witness are: (a)
capacity of observation; (b) capacity of recollection; and (c) capacity of
communication. There is no showing that as a child, claimant did not possess the
foregoing qualifications. It is not necessary that a witness’ knowledge of the fact
to which he testifies was obtained in adulthood. He may have first acquired
knowledge of the fact during childhood, that is at the age of four, which
knowledge was reinforced through the years, up until he testified in court in 1990.
There is reason to reject petitioner’s claim that Divinaflor is incompetent to
testify regarding Listana’s possession since it appears undisputed that Divinaflor
grew up in Maramba, Oas, Albay, and had occasion to see Listana possessing the
land. Republic vs. Court of Appeals, 349 SCRA 451, G.R. No. 116372 January
18, 2001
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court
which seeks to reverse and set aside the decision of the Court of Appeals dated
February 8, 1994 in CA-G.R. CV No. 29578 entitled "The Director of Lands,
Petitioner-Appellant v. Romeo Divinaflor. Claimant-Appelle"1 which affirmed
the decision2 of the Regional Trial Court of Ligao, Albay, Branch 12, rendered
in favor of private respondent Romeo Divinaflor.1âwphi1.nêt
This case stems from Cadastral Case No. N-11-lV initiated, pursuant to law, by
the Director of Lands, as petitioner before the Regional Trial Court of Ligao,
Albay (Branch 12). In due time, Romeo Divinaflor filed his answer to the petition
relative to Lot No. 10739 with an area of 10,775 square meters situated in Oas,
Albay, claiming ownership of said lot by virtue of possession for over thirty
years. The facts, as found by the trial court and affirmed by the Court of Appeals,
are as follows.
"Lot 10739 of the cadastral survey of Oas, Albay is one of the parcels of land
subject of these cadastral proceedings. When this case was called for initial
hearing, nobody offered any opposition. Whereupon, an order of general default
against the whole world was issued. Claimant was allowed to present his
evidence.
Lot 10739 is one of the uncontested lots. It is a parcel of Riceland situated at
Maramba, Oas, Albay containing an area of 10,775; on the East by Lot 10738;
on the South by Lot 10716; and on the West by Lot 10716. Originally, the land
was owned by Marcial Listana who began possession and occupying the same in
the concept of owner, openly, continuously, adversely, notoriously and
exclusively since 1939. He planted palay and harvested about 60 cavans of palay
every harvest season. He declared the land in his name under Tax Dec. No. 1987
(Exh. 1). On May 21, 1973, claimant acquired ownership of the land by means
of deed of absolute sale (Exh. 2). He caused the same to be declared in his name
under Tax Dec. No. 1442 (Exh. 3). There was another reassessment under Tax
Dec. No. 35 (Exh. 3-a). He continued planting on the land and all the products
are used for the benefit of his family.
The land was surveyed in the name of the previous owner per certification of the
CENRO (Exh. 4). The cadastral survey costs had been paid in the amount of
P72.08 under Official Receipt No. 50652483 (Exh. 5) and the certification thereof
(Exh. 5-a). All the realty taxes has likewise been paid up to the current year per
Official Receipt No. 6422679 (Exh. 6) together with the certification of the
Municipal Treasure of Oas, Albay (Exh. 6_A).
There are no liens or encumbrances and neither are there persons claiming
adverse ownership and possession of the land. The lot does not infringe the public
road, river or stream. It is not part of a military reservation, Public Park,
watershed or the government's forest zone. The lot has not been utilized as a bond
in civil or criminal cases or as collateral for a loan in any banking institution.
There is no pending petition for its registration under Act 496 known as the Land
Registration Act or an application for the issuance of free patent with the
Community Environment and Natural Resources Office (CENRO). Claimant is
not legally disqualified from owning disposable property of the public domain."3
Finding that the claimant, together with his predecessor-in-interest, has
"satisfactorily possessed and occupied this land in the concept of owner, openly,
continuously, adversely, notoriously and exclusively since 1939 very much
earlier to June 12, 1945," the court ordered the registration and confirmation of
Lot 10739 in the name of the Spouses Romeo Divinaflor and Nenita Radan.
The Director of Lands appealed to the Court of Appeals alleging that the finding
of the trial court that claimant-appellee and his predecessor-in-interest have
possessed Lot 10739 since 1939 is not sufficiently supported by the evidence.
The Director contended that the earliest tax declaration presented by claimant
took effect only in 1980 and the certificate of real estate tax payment is dated
1990. It was further contended that the testimony of Romeo Divinaflor was
largely self-serving, he being the applicant.
The Court of Appeals affirmed the judgement appealed from. It ruled:
"To our mind, it is not necessary, in cases of this nature, to present tax
declarations and tax receipts of the land in question. All that the law mandates is
proof of "open, continuos, peaceful and adverse possession" which appellee has
convincingly established. Repeatedly, appellant hammers the fact of possession
into the record by appellee's testimony on cross-examination. Thus:
ASST. PROV'L. PROS. CRISOSTOMO:
Q You said that you bought this land from Marcial Listana, and you are
referring us to this deed of sale?
WITNESS:
A Yes, sir.
Q This land is located at Maramba?
A Yes, sir.
Q Since when did Marcial Listana begin possessing this land?
A Since 1939. Q How many cavans of palay for you harvest every agricultural season?

Q What was Marcial Listana doiong on the land? A I get 40 cavans of palay every harvest season but sometimes more and
sometimes less, during summer month I plant corn and harvest about 8 cavans of
A He was planting palay and sometimes corn. unhooked corn.

Q In what concept was he possessing the land? Q If and when this land will be titled, in whose name would you like the title
to be?
A In the concept of owner, openly, continuously, adversely, notoriously and
exclusively. A In our names, my wife and myself.

Q Do you know whether there are disputes involving the boundaries of the PROSECUTOR CRISOSTOMO;
land.
That is all."4
A No, sir.
"While it is true that tax declarations and tax receipts, may be considered as
Q Are there also persons claiming adverse ownership and possession of the evidence of a claim of ownership, and when taken in connection with possession,
land? it may be valuable in support of one's title by prescription. Nevertheless, the mere
payment of taxes does not confer nor prove it. (Viernes, et al. Vs. Agpaoa, 41
A No, sir. Phil. 286. See also Director of Lands vs. Court of Appeals, 133

Q Does the land encroach any road, river or stream? The omission to declare the land in question for taxation purposes at the inception
of the tax system in 1901 of this country does not destroy the continuous and
A No, sir. adverse possession under claim of ownership of applicant's predecessors in
interest. Fontanilla vs. Director of Lands, et al., CA-G.R. No. 8371-R Aug. 4,
Q Is this part of a military reservation, public park, watershed or the 1952.
government's forest zone?
Finally, appellant asseverates that the testimony of appellee is insufficient to
A No, sir. prove possession for being self-serving, he being one of the applicants. We
remind appellant on this score that self-serving evidence comes into play only
Q Have you paid all the taxes on the land? when such is made by the party out of court and excludes testimony which a party
gives as a witness at the trial. (See N.D.C. vs. Workmen's Compensation, et al.,
A Yes, sir. 19 SCRA 861; 31 C.J.S. 952)."5

Q What about the cadastral costs? Motion for reconsideration of the above-mentioned decision having been denied,
the Director of Lands has brought the instant petition raising the sole issue of-
A I also paid the same
WHETHER OR NOT THE RESPONDENT HAS AQUIRED REGISTRABLE
Q What do you do with the land now? TITLE OVER THE SUBJECT PROPERTY.

A I planted palay during rainy season.

Petitioner Director of Lands assails the decision of the Court of Appeals on the
ground that the law, as presently phrased, requires that possession of lands of the
public domain must be from June 12, 1945 or earlier, for the same to be acquired
through judicial confirmation of imperfect title. Petitioner argues that Divinaflor
failed to adduce sufficient evidence to prove possession of the land in question
since June 12, 1945 for the following reasons; (1) Divinaflor failed to present
sufficient proof that his predecessor-in-interest Marcial Listana has possessed the
lot since 1939; and (2) Divinaflor in incompetent to testify on his predecessor's
possession since 1939 considering he was born only in 1941, and in 1945, he was
only 4 years old.
We find no reversible error in the assailed judgement. Denial of the instant
petition I proper in light of the well-entrenched doctrine upholding the factual
findings of the trial court when affirmed by the Court of Appeals.6 It is likewise
very basic that only errors of law and not of facts are revisable by this Court in
petitions for review on certiorari under Rule 45, which is the very rule relied upon
by petitioner.7
While the sole issue as so worded appears to raise an error of law, the arguments
that follow in support thereof pertain to factual issues. In effect, petitioner would
have us analyze or weigh all over again the evidence presented in the courts a
quo in complete disregard of the well-settled rule that "the jurisdiction of this
Court in cases brought to it from the Court of Appeals is limited to the review
and revision of errors of law allegedly committed by the appellate court, as its
findings of fact are deemed conclusive. This Court is not bound to analyze and
weigh all over again the evidence already considered in the proceedings below."8
Indeed, It is not the function of the Supreme Court to assess and evaluate all over
again the evidence, testimonial and evidentiary, adduced by the parties
particularly where the findings of both the trila court and the appellate court on
the matter coincide.9
This Court has held in Republic vs. Doldol10 that, originally, "Section 48(b) of
C.A. No. 141 provided for possession and occupation of lands of the public
domain since July 26, 1894. This was superseded by R.A. No. 194211 which
provided for a simple thirty-year prescriptive period of occupation by an
applicant for judicial confirmation of imperfect title. The same, however, has
already been amended by Presidential Decree no. 1073, approved on January 25,
1977." As amended Section 48(b) now reads:
"(b) Those who by themselves or through their predecessors-in-interest have been
in open, continuous, exclusive and notorious possession and occupation of
agricultural lands of the public domain, under a bona fide claim of acquisition or
ownership, since June 12, 1945, or earlier, immediately preceding the filling of
the application for confirmation of title, except when prevented by wars or force
majeure. Those shall be conclusively presumed to have performed all the
conditions to a certificate of title under the provisions of this chapter."
Interpreting the above-quoted provision, the Court stated in Republic vs. Court
of Appeals12 that the Public Land Act requires that the applicant must prove the
following:
"(a) that the land is alienable public land and (b) that his open, continuous,
exclusive and notorious possession and occupation of the same must either be
since time immemorial or for the period prescribed in the Public Land Act. When
the conditions set by law are complied with, the possessor of the land, by
operation of law, acquires a right to a grant, a government grant, without the
necessity of a certificate of title being issued.'
There is no dispute that the subject lot is alienable and disposable tract of public
land. Since claimant Romeo Divinaflor acquired ownership of Lot 10739 from
Marcial Listana by deed of absolute sale dated May 21, 1973,13 the pivotal issue
is whether his predecessor-in-interest Marcial Listana has been in possession of
the land since June 12, 1945 under a bona fide claim of ownership.
The determination of whether claimants were in open, continuous, exclusive and
notorious possession under a bona fide claim of ownership since 1945 as required
by law, is a question of fact14 which was resolved affirmatively by the trial court
and the Court of Appeals. Such factual finding will not be reversed on appeal
except for the most compelling reasons. None has been adduced in the case at
bar.
Petitioner questions the credibility of claimant Divinaflor who testified on the
possession of Marcial Listana for the period required by law. The issue on having
personally heard the witnesses testify and observed their deportment and manner
of testifying.15 Being in a better position to observe the witnesses, the trial court's
appreciation of the witness' testimony, truthfulness, honesty, and candor,
deserves the highest respect.16
Further, it is axiomatic that a witness' "interest in the outcome of a case shall not
be ground for disqualification, and that such an interest, if shown, while perhaps,
indicating the need for caution in considering the witness' testimony, does not of
itself operate to reduce his credit; indeed, his testimony must be judged on its
own merits, and if ** (it) is otherwise clear and convincing and not destroyed by
other evidence on record, it may be relied upon."17 In this case, both the trial
court and the Court of Appeals found Divinaflor's testimony to be convincing, a
finding with which, in the premises, this Court will not and cannot take issue.
In the same vein, the issue of incompetence of Divinaflor to testify on the
possession of his predecessor-in-interest since 1939 in likewise unavailing and
must be rejected. A timely objection was never made by petitioner on the ground
of incompetence of Divinaflor to testify on this matter at any stage of the
proceedings. It is an elementary rule in evidence that:
"When a witness is produced, it is a right and privilege accorded to the adverse
party to object to his examination on the ground of incompetence to testify. If a
party knows before trial that a witness is incompetent, objection must be made
before trial that a witness is incompetent, objection must be made before he has
given any testimony; if the incompetence appears on the trial, it must be
interposed as soon as it becomes apparent."18
Simply put, any objection to the admissibility of evidence should be made at the
time such evidence is offered or as soon thereafter as the objection to its
admissibility becomes apparent, otherwise the objection will be considered
waived and such evidence will form part of the records of the case as competent
and admissible evidence.19 The failure of petitioner to interpose a timely
objection to the presentation of Divinaflor's testimony results in the waiver of any
objection to the admissibility thereof and he is therefore barred from raising said
issue on appeal.
regarding Listana's possession since it appears undisputed that Divinaflor grew
up in Maramba, Oas, Albay, and had occasion to see Listana possessing the land.
Finally, we agree with the Court of Appeals that the belated declaration of the
property for tax purposes does not necessarily lead to the conclusion that law not
in possession of the land as required the predecessors since 1945. Petitioner
capitalizes on the fact that the earliest tax declaration presented took effect only
in 1980 while the certificate of tax payment is dated 1990. While this Court has
held in a long line of cases23 that tax declarations or tax receipts are good indicia
of possession in the concept of owner, it does not necessarily follow that belated
declaration of the same for tax purposes negates the fact of possession, especially
in the instant case where there are no other persons claiming any interest in Lot
10739.
WHEREFORE, the petition is hereby DENIED for lack of merit. The Court
resolves to AFFIRM the challenged decision of the Court of Appeals dated
February 8, 1994 which sustained the JUDGEMENT of the Regional Trial Court
rendered on July 27, 1990 granting the registration of little to herein private
respondent.
SO ORDERED.

Be that as it may, a person is competent to be a witness if (a) he is capable of

perceiving at the time of the occurrence of the fact and (b) he can make his
perception known.20 True, in 1939, Divinaflor was not born yet, but in 1945, he
was four years old, residing in Maramba, Oas, Albay, where the subject lot is
located. As his testimony goes, he and Marcial Listana were barrio mates, and
that he usually passes by the subject land. The fact that Divinaflor was only a
child at the required inception of possession does not render him incompetent to
testify on the matter. It is well-established that any child regardless of age,can be
a competent witness id he is capable of relating truthfully facts for which he is
examined.21 The requirements of a child's competence as a witness are: (a)
capacity of observation; (b) capacity of recollection; and (c) capacity of
communication.22 There is no showing that as a child, claimant did not possess
the foregoing qualifications. It is not necessary that a witness' knowledge of the
fact to which he testifies was obtained in adulthood. He may have first acquired
knowledge of the fact during childhood that is at the age of four, which
knowledge was reinforced through the years up until he testified in court in 1990.
There is reason to reject petitioner's claim that Divinaflor is incompetent to testify
G.R. Nos. 118828 & 119371. February 29, 2000.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HENRY
LAGARTO y PETILLA and ERNESTO CORDERO y MARISTELA @
“Booster,” accused-appellants.
Same; Evidence; Witnesses; Mental Retardates; Psychiatric Evaluation; A
psychiatric evaluation made upon order of the trial court is in the nature of an
official document in aid of judicial determination.—–From the moment Barlam
surfaced as an eyewitness to the crime, accused-appellants LAGARTO and
CORDERO, through counsel, have desperately tried to disqualify her on ground
of incompetence. Obviously aware of the futility of any objection to Barlam’s
testimony on account of the psychiatric finding by the NCMH, after three
examinations, that “she may be deemed competent,” the defense attacked instead
the damaging contents of the NCMH psychiatric evaluation report anchored on
the following grounds: (1) said report is hearsay because the doctors who
prepared and issued the same were not presented in court, and (2) it was not
offered in evidence by the prosecution. This argument fails to consider the very
nature of the NCMH report. Having been made upon order of the trial court, such
report is in the nature of an official document in aid of judicial determination. It
is not evidence for the prosecution or against the defense but a document—–a
scientific report—–prepared and issued by an entity totally removed from the
criminal proceedings, hence, indifferent, objective, and impartial. To be utilized
by the trial court, it need not be offered in evidence by the prosecution because
the court may take judicial notice of its existence and composition. It is also for
this reason that its contents cannot be rejected on account of being hearsay.
Same; Same; Same; Same; Even a mental retardate or a feebleminded person
could qualify as a competent witness.—–Barlam could certainly perceive and
make known her perception to others. Even if she is deaf, she saw what happened
on 2 August 1994. She related what she saw to the police on 4 August 1994; to
the psychiatrists who examined her at NCMH on 26, 29, and 31 August 1994;
and to the trial court on 26 August, 3 and 4 October 1994. Did she “intelligently”
make known her perception to others, especially when she testified in court?
Certainly, she did. Everybody understood her even if some of her statements on
minor points were inconsistent. A perusal of the transcript of stenographic notes
would readily reveal that counsels for the defense attempted in vain to confuse
her on relevant facts, even confronting her with her sworn statement—–a clear
indication that she connected with them “intelligently.” Because of Barlam’s
“deafness and associated mental retardation,” the defense harped that she should
be disqualified from testifying. The disquisition above, notwithstanding, we have
ruled that even a mental retardate or a feeble-minded person could qualify as a
competent witness.
Same; Same; Same; Affidavits; In case of conflict between the contents of a
sworn statement and testimony in open court, the latter generally prevails since
ex parte affidavits are often incomplete and inaccurate because by their nature,
they are ordinarily prepared by a person other than the affiant.—–Barlam’s
testimony, in our opinion, adequately established the liability of Lagunday,
LAGARTO, and CORDERO for raping and killing Angel Alquiza. She not only
proved to be competent but also truthful in her narration of what transpired on 2
August 1994. Her sworn statement might not entirely jibe with her oral testimony,
but we have ruled that in case of conflict between the contents of a sworn
statement and testimony in open court, the latter generally prevails since ex parte
affidavits are often incomplete and inaccurate because by their nature, they are
ordinarily prepared by a person other than the affiant.
Same; Same; Same; Motive; The absence of evidence of any improper motive
actuating a witness as the principal witness of the prosecution strongly tends to
sustain the conclusion that no such improper motive existed at the time she
testified and her testimony is worthy of full faith and credit.—–It must also be
noted that Barlam absolutely has no motive to falsely testify against LAGARTO
and CORDERO. The absence of evidence of any improper motive actuating her
as the principal witness of the prosecution strongly tends to sustain the conclusion
that no such improper motive existed at the time she testified and her testimony
is worthy of full faith and credit.
Same; Alibi; Alibi is a relatively weak defense, and it is further emasculated in
the absence of any showing that it was physically impossible for the accused to
have been at the crime scene or its immediate vicinity at the moment it was being
perpetrated.
On 31 January 1995, the Regional Trial Court of Manila, Branch 47, per Judge
Lorenzo B. Veneracion, handed down a judgment in Criminal Case No. 94-
138071 and Criminal Case No. 94-138138, finding accused-appellants Henry
Lagarto y Petilla (hereaffer LAGARTO) and Ernesto Cordero y Maristela
(hereafter CORDERO) guilty beyond reasonable doubt of raping and slaying
seven-year old Alquiza y Lagman (hereafter Angel) in the early hours of 2 August
1994. They were initially sentenced to suffer the penalty of reclusion perpetua in
each with damages. In our Decision of 12 October 1995 in G.R. Nos. 119987-88
(319 Phil. 364), a special civil action for certiorari filed by the Office of the
Solicitor (OSG) questioning the propriety of the sentence imposed, we ordered
the court to impose the correct penalty prescribed by law in light of its findings
of and conclusions, i.e., the death penalty, subject to automatic review by us at
proper time.
Conformably with the decision in G.R. Nos. 119987-88, Judge Veneracion on 22
May 1996 an Order correcting the sentence in Criminal Case No. 94-138071 and
Criminal Case No. 94-138138 and imposing the penalty of death. The Order was
read in open court at the National Penitentiary.
Thereafter, the records of these cases were forwarded to us far automatic review,
in accordance with Article 47 of the Revised Penal Code, as amended, and
Section 10, Rule 122 of the Rules of Court.
The pertinent facts follow:
At 5:10 p.m. on 2 August 1994, PO3 Edgardo E. Ko of the Western Police District
Command, Directorate for Investigation, Crimes Against Persons Division,
Philippine National Police, Manila, received an information from PO3 Mabilisan
of Station 11 that a dead body in a sack was found at around 4:30 p.m. floating
in the flooded street of Del Pan near the corner of Lavizares St., Binondo, Manila.
Residents discovered the corpse wrapped in a round yellow tablecloth tied with
a nylon cord inside a sack. The responding policemen — PO3 Ko, SPO1 Edgardo
Manuel, and PO3 Rosalie Fernandez — noticed the victim's feet and left hand
protruding from the sack and round yellow tablecloth. They untied the sack and
nylon cord and saw the victim, a young girl, wearing nothing but her duster, with
gaping wounds on the left ear and chin, her genitals lacerated, her eyes missing,
and her head bashed in. They immediately brought the body to the police morgue
at Tres Amigos Memorial Chapel.1
A. certain Romezen Alquiza called the police station, inquiring about the body
recovered from Del Pan, Tondo, Manila, whose description matched his sister
Angel who, had been missing since the night of 1 August 1994. He was advised
to proceed to the Tres Amigos Memorial Chapel. Together with his mother
Zenaida and some family members, Romezen went to said mortuary to look at
the body. Indeed, it was Angel Alquiza.2 He then requested the National Bureau
of Investigation (NBI) Medico-Legal Office to autopsy Angels body.3 Said office
also issued a Certificate of Identification of Dead Body,4 which was signed by
Romezen. The autopsy was conducted by NBI Medico-Legal Officer Ludivino J.
Lagat, who concluded that Angel Alquiza died due to multiple stab wounds and
traumatic injuries. The severity of her injuries were vividly described in Autopsy
No. N-94-1553,5 thus:
POSTMORTEM FINDINGS
Pallor, generalized.
Both eyes, missing.
Hematoma: 5.0 x 9.0 cms., and 5.0 x 17.0 cms., right and left inguinal area.
Abrasion: 4.0 x 5.0 cms., and 4.0 x 4.0 cms., periorbital area, right and left
respectively; 12.0 x 4.0 cms., left thigh; 19.0 x 20.0 cms., posterior chest wall.
Contused — hematoma: 10.0 x 9.0 cms., left side of the neck to the clavicular
area.
Incised wounds: 14.0 cms, left pre-auricular area up to the temple; 21.0 cms,
vagina, to the anus then to the sacral area with evisceration of the intestines, 2:0
cm. Knee.
Fractures: Axial fractures of the skull, open, compound; mandibular bone; right
femur, upper third; 1st to the 10th ribs, anteriorly right and left.
Dislocation, left hip joint.
Liver — multiple lacerations.
Stab wounds: all elliptical, clean-cut edges, with a sharp and a blunt extremities
in different orientations.
1) 2.5 cms., forehead, right side; directed backwards, involving the soft, tissues;
fracturing the temporal bone; then to the right-cerebral hemisphere; with a depth
of 7.0 cm.
2) 2.0 cms., temple, left side; directed medially; involving the soft tissues;
fracturing the temporal bone; then to the left cerebral hemisphere; with a depth
of 5:0 cm
3) 3.0 cms.; mandibular area, left side; fracturing the mandibular bone
Hemothorax, 500 c.c.
Hemoperitoneum, 1,100 c.c.
Brain — Hemorrhagic with minor portion missing.
Visceral organs, pale.
Stomach, empty.
CAUSE OF DEATH:
— MULTIPLE STAB WOUNDS, TRAUMATIC INJURIES.
REMARKS: — Vaginal swab submitted to Chemistry Division for examination.
PO3 Ko's Advance Information,6 which was based on his investigation of
Zenaida Alquiza, Rosalina Puno, Alicia de la Vega, Ligaya Cordero, Mario
Blorecia, and Eliseo Sendiego, disclosed that at around 9:30 on the night of 1
August 1994, Angel, a seven-year old Grade 2 student of the Rosario Almario
Elementary School and a resident of 1200 Sunflower St., Tondo, Manila, went
out to buy champorado from a store at nearby Kagitingan St. When she did not
return after some time, the members of her family searched for her in the
neighborhood, but they did not find her. At around 1:25 p.m. of 2 August 1994,
they reported her missing to the police. Rosalina Puno, the owner of he store at
1144 Kagitingan St., said that Angel did drop by her store at around 9:30 p.m. to
buy, champorado and ate it there before heading home via Bougainvillea7 St.
Said street is adjacent to Sunflower St. and leads to Tagumpay St., a dimly lit
area used by CORDERO and his wife Ligaya as a parking space for their
pedicabs.8
One of said pedicabs, "No. 14," was driven by a certain Abundio Lagunday on 1
August 1994 but was found the following day abandoned and covered with
cartons and plastics at the comet of Kagitingan and Salvacion Sts., near the junk
shop of the late Mang Gorio (Mauro Gregorio). Because of this, Ligaya Cordero
was invited by the police on 3 August 1994 to answer some questions.9 Mario
Blorecia, a scavenger and a friend of Lagunday, said the latter, who appeared
nervous (balisa), came to him at around 6:30 p.m. on 3 August 1994, left the
pedicab to his care (kasi nagkahulihan), and immediately departed after covering
the pedicab with scraps of carton and plastic. They both used to work at the junk
shop of Mang Gorio, which was later converted into a warehouse.10
Follow-up investigation disclosed that around 9:30 p.m. on 1 August 1994, a
certain Jose Soriano of 1155 Kagitingan St. was buying a cigarette at Rosalina
Puno's store when he saw Angel with Lagunday (akay ni Lagunday) at the corner
of Bougainvillea and Kagitingan Sts. He did not think she was in any trouble
because he knew Lagunday sometimes picked up Angel from school.11
Based on these pieces of information, Lagunday was arrested on 4 August 1994
as the primary suspect in the case. During custodial investigation, and after he
was apprised of his constitutional rights, Lagunday admitted his culpability and
pointed to two other men as his cohorts, namely, @ "Boboy" and @ "Boyet." In
the ensuing investigation, Lagunday also positively identified LAGARTO as one
of companions on that fateful night.12
A major breakthrough in the case was provided by a 50-year old widow and
laundry woman by the name of Herminia Barlam, who was accompanied to the
Homicide Section on 4 August 1994 by SPO2 Enrico Miranda, a neighbor and
occasional laundry client. She allegedly saw three men molest and kill a little girl
inside the warehouse of Mang Gorio during a downpour in the early hours of 2
August 1994. When asked if she could recognize these men from a police line-
up, she positively identified Lagunday and LAGARTO as two of the men who
raped and killed the girl.13 Her sworn statement, taken by PO3 Ko with the aid
of SPO2 Miranda, who acted as interpreter between the investigator and the
hearing impaired, is hereunder substantially reproduced:
03. T.: Noong isang araw, petsa 2 ng Agosto 1994 . . . ano and nakita mo?
S.: Nakita kong bata saksak . . . takip ilong at wala panty.
04. T.: Sino ito bata iyo kita?
S.: Hindi kilala pero liit lang. . .
05. T.: Saan mo kita bata saksak at takip bibig at ilong?
S.: Doon marami lata at saka plastic.
06. T.: Kanino ito lugar o sino may ari?
S.: Gorio.
07. T.: Saan ito lugar?
S.: Kagitingan.
08. T.: Ano pa iyo kita o dinig?
S.: Kita ko bata takip ilong, at tali bibig, sigaw siya, saksak sa leeg.
09. T.: Kita mo ba kung sino ang gawa nito sa bata? 19. T.: Sino kita mo kantot bata babae?

S.: Tatlo. S.: Iyon sampal ko kanina (declarant was referring to ABUNDIO LAGUNDAY
who was slapped by the declarant during the line up)
10. T.: Kilala mo sila?
20. T.: Ano oras mo kita ito?
S.: Oo.
S.: Alas 2 umaga, lakas ulan.
11. T.: Asan sila nayon?
21. T.: Ano pa iyo kita?
S.: Declarant was pointing to and positively identifying . . . ABUNDIO
LAGUNDAY . . . and HENRY LAGORTE . . . . . S.: Bata patay at tali nila sako.

12. T.: Ano gawa nitong si Abundio sa batang babae? 22. T.: Ano iyo gawa?

S.: (declarant was demonstrating her fingers in a pumping motion and covering S.: Sigaw ako lakas at palo nila ako kahoy.
her mouth).
23. T.: Sino palo sa iyo kahoy?
13. T.: Ito isang turo mo, ano gawa sa batang babae?
S.: Siya (declarant was pointing to and positively identified HENRY
S.: Saksak leeg batang babae (declarant was demonstrating with her right index LAGARTO)
finger pointing to her neck.)
24. T.: Ano yari ng ikaw sigaw lakas?
14. T.: Kilala mo ba ito dalawang turo mo?
S.: Wala pansin akin, at ako iyak.
S.: hindi kilala, pero isa Lando * takas, wale ipen.
25. T.: Ano pa iyo kita sa loob bodega?
15. T.: Ano gawa Lando sa bata babae?
S.: Iyak iyak bata tapos tigil na, patay na.
S.: Palo ulo bata kahoy kapal.
26. T.: Ikaw ba ay may asawa?
16. T.: Ano gawa mo bago ikaw kita sila?
S.: Patay na.
S.: Ihi ako sa tabi bodega, kita ko sila butas.
27. T.: Ano pangalan asawa mo?
17. T.: Asan na batang babae?
S.: Tony.
S.: Patay na suot puti damit ganda.
28. T.: Ilan anak mo?
18. T.: Ikaw silip sa butas, ano iyo kita?
S.: Dalawa.
S.: Bata babae saksak at kantot tatlo lalaki, at iyak iyak sigaw pa.
29. T.: Anong pangalan anak mo?
S.: Junior at Totoy.
30. T.: Totoo ba sabi mo?
S.: Totoo, hindi ako nanloloko.
31. T.: Susumpaan mo ba ito?
S.: Oo.14
As the inquest continued, more suspects were brought in for questioning, namely,
the following persons implicated by Lagunday: Rolando Manlangit y Mamerta
@ "Lando," Richard Baltazar y Alino @ "Curimao," and Catalino Yaon y Aberin
@ "Joel." Accused-appellant CORDERO @ "Booster" was not initially
implicated by Lagunday; hence, he was not indicted under the first Information
dated 8 August 1994. When they were in detention together, however, Lagunday
CORDERO as the mastermind15 and pointed to Manlangit, Baltazar, and Yaon
as their lookout. CORDERO was further linked to the crime by a certain laundry
woman named Ofelia Lagman, who, having washed laundry for Corderos several
times; allegedly remembered seeing on top of their washing machine a round
yellow tablecloth matching the one in which Angels body was wrapped. She also
confirmed that the Corderos had a round table with a glass top.16 If further
appeared that CORDERO had previously raped his two daughters although no
case was filed against him.17
On the basis of these findings, criminal charges for rape with homicide were filed
against the suspects by the City Prosecutor's Office of Manila. The first
information, dated 8 August 1994, was filed on 10 August 1994 and was docketed
Criminal Case No. 94-138071, entitled People of the Philippines v. Abundio
Lagunday, a.k.a. "Jr. Jeofrey," and Henry Lagarto y Petilla. It stated thus:
That on or about August 2, 1994, in the City of Manila, Philippines, the said
accused, conspiring and confederating together with one alias "LANDO", and
other persons whose true names, identities and present whereabouts are still
unknown and helping one another, with treachery, taking advantage of their
superior strength and nocturnity, and Ignominy, and with the use of force and
violence, that is, by taking ANGEL ALQUIZA Y LAGMAN into a pedicab, and
once helpless, forcibly bringing her to a nearby warehouse, covering her mouth,
slashing her vagina, hitting her head with a thick piece of wood and stabbing her
neck, did then and there wiifully, unlawfully and feloniously have carnal
knowledged the person of said ANGEL ALQUIZA Y LAGMAN, a minor, seven
(7) years of age, against the latter's will and consent and on said occasion the said
ABUNDIO LAGUNDAY, a.k.a. "Jr. Jeofrey", HENRY LAGARTO Y
PETILLA, and one a.k.a. "LANDO" and others, caused her fatal injuries which
were the direct cause of her death immediately thereafter.
CONTRARY TO LAW.
The other information, dated 11 August 1994 and filed on 12 August 1994, and
docketed as Criminal Case No. 94-138138, is entitled of the People of the
Philippines v. Ernesto Cordero y Maristela @ "Booster," Rolando Manlangit y
Mamerta @ "Lando," Richard Baltazar y Alino @ "Curimao," and Catalino Yaon
y Aberin @ "Joel." Its accusatory portion reads:
That on or about the 2nd day of August, 1994, in the City of Manila, Philippines,
the said accused conspiring and confederating with ABUNDIO LAGUNDAY
Alias "JR. JEOFREY" and HENRY LAGARTO y PETILLA who have already
been charged in the Regional Trial Court of Manila of the same offense under
Criminal Case No. 94-138071, and helping one another, with treachery, taking
advantage of their superior strength and nocturnity and ignominy, and with the
use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into
a pedicab, and once helpless, forcibly bringing her to a nearby warehouse,
covering her mouth, slashing her vagina, hitting her head with a thick piece of
wood and stabbing her neck, did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y
LAGMAN, a minor, seven (7) years of age, against the latter's will and consent
and on said occasion the said accused together with their confederates
ABUNDIO LAGUNDAY Alias "JR. JEOFREY" and HENRY LAGARTO y
PETILLA caused her fatal injuries which were the direct cause of her death
immediately thereafter.
CONTRARY TO LAW.
Prior to arraignment, however, the court was informed by the prosecution that
Lagunday had been shot and killed while trying to grab the gun of one of his
police escorts on 12 August 1994.20 Upon motion of the private prosecutor,
Lagunday's name was dropped from the information. His co-accused in Criminal
Case No. 138071, LAGARTO, and other accused in Criminal Case No. 138138,
all pleaded "not guilty" to the charges. Thereafter, upon motion of the
prosecution,21 the two cases were consolidated.22
The prosecution relied mainly on the statements and testimonies of PO3 Ko, Dr.
Lagat, Herminia Barlam, Ofelia Lagman, and Rolando Javar.
The testimony of PO3 Edgardo Ko merely replicated the contents of his Advance
Information dated 3 August 1994 (Exh. "K"), Progress Report 1 dated 5 August
1994 (Exh. "L"), and Progress Report 2 dated 9 August 1994 (Exh. "M") on
which the criminal informations were based. He presented to the court some of
the items recovered with the body of Angel, which were marked as evidence for
the prosecution, namely, a yellow tablecloth (Exh. "F"), a sack (Exh. "I"), nylon
cord, exh. "H"); a piece of embroidered cloth or crocheted curtain (Exh. "J"), and
a girl's (Exh. "G").23
Even as the trial judge deplored the sloppy handling of evidence by the police
and their lack of control over the crime scene,24 it was revealed during PO3 Ko's
cross-examination that CORDERO was investigated and attested on 8 August
1994 on the basis of Lagman's sworn statements before the NBI and the police,
not on Lagunday's verbal confession.25
Dr. Ludivino Lagat, NBI Medico-Legal Officer; autopsied the body of Angel on
2 August 1994, after receiving a request for autopsy (Exh. "A") and examining
certificate of identification (Exh. "B"), both signed by Angel's brother
Romezen.26 His findings disclosed that Angel died due to multiple stab wounds
and traumatic injuries. Both of her eyes were missing. Dr. Lagat found, among
other injuries, two stab wounds on the head and one at the neck; a head fracture
which part of her brain was leaking out27; severe head deformity due to force;
an incised wound 21 centimeters long from the vagina to her anus up to the "sacral
area with evisceration of the intestines" caused by a "sharp bladed weapon."28
On cross-examination, the defense, banking on a "possibility" that some of
injuries of Angel might have been caused by other factors, suggested that Angel
was ran over by a motor vehicle before she was stabbed.29 When confronted
about the absence of spermatozoa, Dr. Lagat said it "could be due to soaking (of
the body in floodwater). It could be washed out." And the body was, indeed,
washed at the Tres Amigos Memorial Chapel. Moreover, no spermatozoa was
found because "the area was expose(d) and there were some other things that
were present in the area like the intestine,"30 which spilled out of vagina.31
Ofelia Lagman, on whose statement CORDERO was initially arrested and
investigated, testified that when she heard the news about a child found dead in
neighborhood, she inquired and learned that it was Angel, her husband's niece.
Angel had been missing since the night of 1 August 1994. She learned that the
body had been taken to the Tres Amigos Memorial Chapel so she immediately
went there. The sight that greeted her shivers down her spine because the round
yellow tablecloth where Angels body was wrapped was familiar to her. She had
seen one just like it in the house of CORDERO, a neighbor whom she had known
for four years so that she was able to positively identify him in court,32 and for
whom she had done three-days' laundry work in the last week of July 1994. She
saw it on top of their washing machine, folded the way round materials are folded.
It was about a meter in diameter, made of a material like linoleum.33 On 3 August
1994, she decided to share this information with NBI. Five days later, on 8 August
1994, she made a similar statement to the police.
Another key witness, Rolando Javar, a mason and resident of 1190 Tagumpay
St., said that between 9:30 and 10:00 in the evening of 1 August 1994, as he was
going home in a pedicab, he saw CORDERO and LAGARTO standing in front
of the warehouse at Kagitingan St., as if waiting for somebody. When he alighted
in front of his house at Tagumpay St., he saw Lagunday driving "Ernie Sidecar
No. 14," with Angels as passenger.34 LAGARTO was one of the pedicab drivers
of CORDERO.35
On cross-examination, Javar said that he first told his story to Angel's mother
Zenaida on 12 September 1994. She is his neighbor, while Ernesto CORDERO
is his neighbor and balae, the latter being the father of his son's wife. He was at
first reluctant to tell Zenaida about what he knew because of his relationship with
the Corderos.36
Prosecution witness Herminia37 Barlam categorically pointed to CORDERO and
LAGARTO as among the three men (the other one being deceased Lagunday)
she saw in the warehouse at Kagitingan St. at around 2:00 a.m. on 2 August 1994.
She witnessed how they stabbed the face and genitals of Angel, hit her with a
piece of wood, raped her as she bled, and eventually killed her. She saw how they
tied her hands and feet, wrapped her lifeless form in a yellow tablecloth, and put
her inside a sack. Because of her hearing impairment, however, the defense
sought to disqualify her on the basis of incompetence and repeatedly requested
that she be taken to the National Center for Mental Health (NCMH) to determine
if she was competent to testify.38 The court initially denied 39 said motion but
eventually granted40 it. Nevertheless, on 26 August 1994, prior to her psychiatric
evaluation, the court heard the testimony of Barlam. In essence, she said she was
Kagitingin St. at around 2:00 a.m. on 2 August 1994. She saw three men and a
child whose name, she later learned, was "Jingjing." One of the men saw her and
asked her to be quiet. This man hit her. Another man, who wore glasses,41
stabbed the child and tied the sack where the child's body was placed. She
positively (and angrily) identified these two men as LAGARTO and CORDERO.
The third man was already dead.42

On 27 September 1994, the NCMH submitted to the court its Report43 on the
phychiatric evaluation of Herminia (Marina) Barlam. . . . signed by Dr. Benjamin
D. Vista and Dr. Isagani S. Gonzales. The following is a verbatim reproduction
of its contents:
GENERAL DATA:
MARINA DELOS SANTOS, 53 years old, female, single, Filipino, Roman
Catholic, unschooled, from 1267 Kagitingan St. Tondo, Manila brought for the
first time to the National Center for Mental Health on August 26, 1994 for
examination.
BACKGROUND HISTORY:
From collateral interviews with relatives and friends, the patient has been deaf
since birth and has not been given any formal education. She has worked as a
balut vendor and laundry woman to help support her family consisting of two
sons. She has been noted to function well in areas of self care and daily living.
No assaultiveness (sic), irritability nor destructiveness were reported. There was
no history of previous psychiatric consultation and treatment, nor history of
alcohorism and prohibited drug use.
MENTAL STATUS EXAMINATIONS:
Initial examination revealed an adult female, sthenic (sic), fairly kempt in a dress.
Behaved and cooperative, but severe deafness was obvious and questions had to
be repeated several times in a loud manner before she answered. She was able to
state her personal data accurately. She was oriented to time; place and person.
She related "kita bata babae" and indicated the height of the child with her hand.
"Sinaksaksak" and made a stabbing action with the forefinger at the throat of her
companion, then she made slashing motions on each of her arms and groin. She
pointed at her right eye, "tangal mata." She indicated that there were three men,
one of them (she indicated eye glasses) stabbed the victim, and that another took
the victim's earrings.
She explained that this happened at 3:00 A.M. ("alas tres, umuulan") and then
demonstrated that she was urinating at a bodega. She further demonstrated that
one of the men hit her with a piece of wood on her left elbow and knee, and
showed her scars. She was able to identify familiar objects, and was able to
identify the 2 peso coins, 10, 20, and 100 peso bills. She was able to do simple
mathematic(al) operations. She related that she is no longer staying at their house
"baka ako patayin." Mood was euthymic (sic), affect adequate.
She was next examined on August 29 and 31, 1994 when she was given a battery
of psychological tests. On interview, she gave the same account of what she saw
consistently, and expressed her irritation "paulit-ulit tanong." Attention span is
short and patient tends to confabulate when she unable to hear the question
properly, hence gives inconsistent answer at times. She is friendly and tends
toward familiarity with the interviewer, at times slapping the desk with her hand
especially when embarrassed. She tends to be anxious when many people are
around.
Patient was recommended to an ear specialist for assessment and fitting of a
hearing aid, after which psychological examinations were repeated and the
patient re-interviewed.
PHYSICAL AND NEUROLOGICAL EXAMINATIONS:
(B)ilateral deafness, all other findings with normal limits.
PSYCHIATRIC EVALUATION RESULTS:
Evaluation shows that patient is classified as having moderate mental retardation
associated with deafness, which is characterized by a subaverage intelligence
quotient (between 35-55), but may achieve self-maintenance in unskilled or semi-
skilled work under sheltered conditions, but needs supervision and guidance
when under social or economic stress.
At present, she may be deemed competent based on the following finding: no
evidence of insanity of psychosis, a consistency in relating her story, she
appreciates the meaning of the oath she takes as a witness before the court, and
is capable of cooperating with counsel.
REMARKS AND RECOMMENDATIONS:
Because of her deafness and associated mental retardation, this patient is prone
to anxiety, panic and inconsistency when threatened by intimidation or a large
crowd of people.
The accuracy of her testimony will depend much on the cooperation of the people
who would examine her in court. Gubjonsson and Gunn (1982), as quoted in the
Principles and Practice of Forensic Psychiatry, state that "even a severely
mentally handicapped person may be capable of giving reliable testimony on
items of basic fact," but "may demonstrate a high degree of suggestibility when
an individual was unsure of the facts." For example, such patients may agree that
the color of a green leaf is pink when unsure of its real color, however, suggesting
false perceptions that a pencil being held is getting increasingly hot may not be
successful.
An accurate testimony, therefore will depend much on an environment free
distraction and intimidations. (Emphasis ours)
On the basis of the NCMH report, Barlam was fitted with a hearing aid and
testified anew on 3 October 1994. Her examination was marked by countless
objections, comments, and arguments of counsels. She began by saying that on
the night of 1 August 1994, after drinking coffee, she went near the warehouse at
Kagitingan St. to relieve herself. While there, she sensed some commotion inside
so she peeped through a hole in the wall. She saw three men and a child. Two of
these men were in the courtroom and she identified them as LAGARTO and
CORDERO. The other one was already dead.44
Barlam was then shown six pictures of seven different girls (Exhibits "BB," "BB-
1" to "BB-6"). She positively identified Angel Alquiza in one picture where angel
was seated beside another girl, both of them clad in "flower girl" attire.45 She
added that one of the men hit her knee and left elbow. They ordered her to leave,
but she did not, so one of them hit her with a piece of wood. Another man gouged
out the child's eyes, cut off her ear, removed her earring, slashed her vagina, then
raped her. She said this man wore eyeglasses, all the while pointing at
CORDERO.46 After the child was raped, a man hit her head while another stayed
by the door. They tied her feet, wrapped her in some yellow material, then put
her in sack. She pointed to CORDERO as the man who wrapped the child in the
yellow material. She even saw tears in the child's eyes when she lit a small
candle.47
On cross-examination Barlam declared that she already knew Angel before the
incident of 2 August 1994 because, at one time when she was washing some
laundry, she had seen Angel eating porridge (lugaw). She noticed how pretty the
girl was. On the other hand, she first saw CORDERO on that fateful day.48
Barlam proceed to narrate that she saw Angel on her knees, with CORDERO
standing beside her while LAGARTO stood by the door. The man who was
already dead, Lagunday, saw her, told her to leave, and when she refused, went
outside and hit her with a piece of wood on the left knee and right elbow.
CORDERO slashed the left side of Angel's face twice, then her vagina, gouged
out her eyes, and took off her earrings. Both LAGARTO and Lagunday hit
Angel's head with a piece of wood.49
On re-direct examination, Barlam maintained that CORDERO was the one who
slashed Angel's vagina then raped her. ("Hiwa dito hiwa dito, anunta, anunta,
hiwa kiki, tanda na hiwa pa kiki.")50 When she was asked to identify the man
who hit Angel with a thick piece of wood, she went straight to LAGARTO whom
she slapped and boxed.51 As the defense tried to derail this witness by
confronting her with her sworn statement where she described the man who hit
Angel with a piece of wood as a certain "Lando walang ipen," the prosecution
clarified that while it is true that one of the accused, Rolando Manlangit @
"Lando," in fact had no front teeth (bungal), the sworn statement was prepared
by PO3 Ko during the investigation conducted when she was not yet wearing a
hearing aid — a statement she never read because she was illiterate. In any case,
the prosecution insisted that on the witness stand, Barlam was more than
consistent in specifying the participation of Lagunday, CORDERO, and
LAGARTO.52 The court also observed that from a distance, LAGARTO looked
as if his front teeth were missing.53
After the prosecution had rested its case, the court, upon motion of PAO lawyer
Atty. Jesse Tiburan, and without opposition from the prosecution, discharged
accused Manlangit, Yaon, and Baltazar in Criminal Case No. 94-138138 for
insufficiency of evidence. LAGARTO and CORDERO, however, objected to the
discharge of Manlangit on the ground that he was allegedly identified by Barlam.
In view of such objection, the court reconsidered its order with regard to
Manlangit, who, by counsel, waived the right to present evidence and prayed that
the case against him be deemed submitted for resolution.54
The defense of CORDERO and LAGARTO consisted mainly of denial and alibi.
LAGARTO even posed insanity as an alternative defense, but this failed to
convince the trial court.55
CORDERO denied that he had anything to do with the rape-slay of Angel
Alquiza. He maintained that around 7:30 p.m. on 1 August 1994, he was at home
talking to a certain Gerardo Eriste, who was asking his help in borrowing money
from an Indian moneylender. After Eriste left around 9:30 p.m., he ate, rested, a
video on television with his children for about an hour before going to bed at
about 11:00 p.m. He woke up at 7:00 a.m. the following day and began counting
the pedicab boundary money which he would remit to the Indian moneylender.
On 3 August 1994, around 11:00 a.m., police arrived at his house, saying he was
being invited by Maj. Gacutan to the station. He denied any of knowledge of the
incident in question, but he was nevertheless instructed to stay in the office. In
the afternoon, he accompanied Maj. Gacutan to his house to see their dining table
which had a glass top instead of a tablecloth. Then, they went back to Station 2,
where he stayed for about 12 hours, leaving around 1:00 or 2:00 in the morning
of 4 August 1994. He was allowed to leave because, apparently, he did not know
anything about the killing of Angel. On 7 August 1994, he was again invited to
the police station. There, Maj. Gacutan said he would be brought to the Homicide
Section at UN Avenue because they were being pestered by some members of
the press. Maj. Gacutan even allegedly asked some money in exchange for his
liberty. While in detention with Lagunday, Manlangit, Yaon, and Curimao, he
learned that Lagunday implicated him upon the instance of two corpulent women
who had visited the latter and banged his banged his head on the wall. He was
detained for about 12 hours and left the station around 1:00 or 2:00 p.m. on 8
August. On cross-examination, CORDERO said he was unaware of the
warehouse at Kagitingan St., which is about ten blocks from his house at
Sunflower St.56 He also said that he did not know Lagunday prior to 8 August
1994, even if the latter was one of their pedicab drivers, because his wife was the
one who dealt with them.57
CORDERO's alibi was corroborated by his daughter Emily58 and Gerardo
Eriste.59
Rebuttal witness Maj. Franklin A. Gacutan, however, claimed that on 4 August
1994, while CORDERO was being questioned in relation to the case of Angel
Alquiza, he told CORDERO he could leave because they have not yet found any
evidence against him. He also denied the allegation that CORDERO was arrested
because of media pressure and that the latter offered him a bribe.60
On cross-examination, Maj. Gacutan said Lagunday did not implicate
CORDERO or LAGARTO,61 and it was Barlam who pointed to CORDERO
when the latter was already in detention.62 And in the early hours of 4 August
1994, he and his men, accompanied by Lagunday, inspected the warehouse where
the alleged crime took place. It was surrounded by houses and some street lights
were on. They entered the dark warehouse but found no evidence. Peeping inside,
nothing could be seen because of the darkness.63
SPO2 Enrico Miranda was summoned to testify on the veracity of the sworn
statement of Barlam. Since they were neighbors and she laundered their clothes,
they supposedly understood each other using crude sign language. In the
investigation conducted by PO3 Ko on 4 August 1994, he acted as interpreter
between the latter and Barlam. The defense sought to capitalize on said sworn
statement, where Barlam did not mention either the name of LAGARTO or
CORDERO.64 Moreover, during the hearing of 17 August 1994, he allegedly
saw Barlam outside the courtroom talking to another woman who was showing
to her a newspaper and pointing to a picture of CORDERO, but he did not hear
what they were talking about.65 Another witness, Gloria Sigua, corroborated this
point and added that she had an argument with the woman who was apparently
coaching Barlam to point to CORDERO. The woman was a companion of
Angel's mother Zenaida.66
To show further that Lagunday did not implicate either CORDERO or
LAGARTO, the defense presented Vivencio Singalawa, who testified that on 5
August 1994, when he visited his friend Jr. Jeofrey (Lagunday's alias) shortly
after lunch at Precinct 2, the latter allegedly confessed that he was the sole author
of crime under investigation. Lagunday also mentioned the names "Lando,"
"Joel" and "Curimao" (the aliases of CORDERO's co-accused in Criminal Case
No. 94-138138), who served as lookout. Lando was a worker of Mang Gorio,
while Joel and Curimao were scavengers (nagtutulak ng kariton). Singalawa, a
barangay tanod, knew the warehouse at Kagitingan St. where the crime was
committed because he grew up in that place; yet, he claimed he did not know
CORDERO, who lived in the same barangay.67
LAGARTO denied any involvement in the crime and claimed he was also at
home at the time of its commission. At the hearing of 4 August 1994, his attorney
moved that he be taken to the NCMH for examination. The Court granted said
motion, but as of the time LAGARTO was called to testify on 5 December 1994,
the result of such assessment had not yet been submitted to the court.68
Under oath, LAGARTO said he was a garbage collector. On the night of 1 August
1994, he collected Rosita Besonia's trash, then asked rice from her as his
customary "fee." He went home with a plate of rice, ate dinner, then slept on the
floor by the door from 7:00 p.m. to 5:00 a.m. the following day. On 4 August
1994, while on his way to his cousin at Don Bosco, policemen in two vehicles —
a car and an owner-type jeep — suddenly forced him into the jeep. A man in the
car (Lagunday) was allegedly being compelled by the other policemen to point
him. In the evening, after spending some time at the Luneta detachment of the
WPDC, he went home with the police because they were looking for a certain
"Buboy Bungal." Although his brother's nickname was Buboy, the latter was not
"bungal." In any event, they also brought Buboy to the Luneta detachment only
to be released when it was confirmed that Buboy's front teeth were indeed intact.
He denied the charges against him, as well as the allegation that he drove a
pedicab for CORDERO.69
LAGARTO's neighbors; Rosita Besonia70 and Janet Badilla,71 and his mother
Noriana Lagarto72 confirmed his alibi. When cross-examined, however,
LAGARTO admitted he was alone at home at 7:00 p.m. on 1 August 1994.73
In its Decision74 of 31 January 1995, the trial court, per Judge Lorenzo B.
Veneracion, gave full credit to the version of the prosecution and convicted
CORDERO and LAGARTO for the crime of rape with homicide, but exonerated
as follows:
WHEREFORE, premises considered, judgment is hereby rendered, dismissing
the Information as against ROLANDO MANLANGlT for lack of evidence, and
finding both accused HENRY LAGARTO Y PETILLA and ERNESTO
CORDERO Y MARISTELA "guilty" beyond reasonable doubt of the crime of
RAPE WITH HOMICIDE charged in the Information of these cases, and
sentencing both accused (with) the penalty of reclusion perpetua with all the
accessories provided for by law.
Said accused are further ordered to indemnify, jointly and severally, the private
complainant the sum of P100,000 for the death of the victim, ANGEL
ALQUIZA; the sum of P500,000 for moral damages; and the amount of P52,000
for actual damages representing expenses incurred for the wake and funeral of
the victim. They are further ordered to pay the cost of these suits.
SO ORDERED.
Disagreeing with the penalty imposed, the City Prosecutor of Manila filed on 8
February 1995 a motion for reconsideration75 of the Decision, and asked that it
be modified by imposing the proper penalty of death instead of reclusion
perpetua. In its Order dated 10 February 1995,76 the trial court did not take
cognizance of the motion on the belief that "the accused Lagarto and Cordero
have complied with the legal requirements for the perfection of an appeal." This
prompted the Office of the Solicitor General to elevate the matter to this Court
by certiorari. The petition, docketed as G.R. Nos. 119987-88, was unanimously
granted by the Court en banc on 12 October 1995, thus:
WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED.
The case is hereby REMANDED to the Regional Trial Court for the imposition
of the penalty of death upon private respondents in consonance with respondent's
judge's finding that the private respondents in the instant case had committed the
crime of Rape with Homicide under Article 335 of the Revised Penal Code, as
amended by Section 11 of Republic Act No. 7659, subject to automatic review
by this Court of the decision imposing the death penalty.
SO ORDERED.77
Accordingly, on 22 May 1996, Judge Veneracion promulgated an Order in open
court at the National Penitentiary, imposing the proper penalty of death upon the
accused.78
In his Appellant's Brief filed on 9 September 1997, LAGARTO pointed out that
the trial court seriously erred:
1. In rendering a judgment of conviction on accused Henry Lagarto apparently
by conclusions or assumptions without considering the fact that there is no
conclusive evidence to show that Angel Alquiza was really raped and killed by
somebody;
2. In failing to consider that there was no credible and acceptable identification
which is free from doubt that anyone of the accused and more particularly Lagarto
committed of participated in the commission of the crime charged. The
prosecution witnesses were coached and (this) was very apparent constraining
even the court to warn to (sic) private prosecutor regarding his coaching of the
witnesses. Witness Barlam had changed her testimony several times and her
general appearance would not merit belief against the constitutional presumption
of innocence of the accused.
3. In failing to consider that by physical evidence, the bodega could not have been
the situs of the crime disproving thereby the claim that the victim was raped and
killed inside is not also because no evidence or traces was found inside it but also
because the bodega which is not big — simply an uninhabited house, is within
the heart of the community and surrounded by houses and an unusual commotion
or noise would certainly invite attention.
4. In failing to consider that Henry Lagarto demonstrated his innocence before
the court and was supported by witnesses.
For his part, after several extensions, CORDERO filed on 29 September 1997,
through counsel, his Appellant's Brief. He claims therein that the trial court
committed grave and reversible error in the following:
1. In rendering the order dated May 22, 1996 and in considering the same as the
promulgation of the penalty of death against accused-appellant Ernesto M.
Cordero.
2. In failing to hold that the prosecution failed to prove the corpus delicti.
3. In failing to hold that the evidence of the prosecution and defense both points
(sic) to the fact that accused-appellant Ernesto M. Cordero is completely innocent
of the offense charged.
4. In not finding as a fact that the testimony of prosecution's (sic) witness Major
Franklin Gacutan is adverse against the prosecution and points to the fact that the
accused-appellant Ernesto M. Cordero is innocent of the offense charged.
5. In failing to hold that prosecution's (sic) witness Herminia Barlam is not
qualified to become a witness.
6. In taking into account of, and according evidentiary value to the finding and
recommendation of (the) psychiatrist from (the) National Center for Mental
Health.
7. In not finding as a fact that it is highly impossible and improbable for witness
Herminia Barlam to have seen what had (sic) supposedly happened in the subject
warehouse on August 2, 1994.
8. In not finding as a fact that the testimony of prosecution's (sic) witness Heminia
Barlam is full of discrepancies and self contradictions.
9. In not finding as a fact that the testimony of prosecution witness Herminia
Barlam is highly improbable and contrary to human experience.
10 In not finding as a fact that prosecution witness Herninia Barlam is a perjured,
biased and rehearsed witness.
11. In failing to hold that the adverse result against the prosecution of the ocular
inspection is a proof that the accused-appellant Ernesto M. Cordero is innocent
of the offense charged.
12. In not finding as a fact that the testimonies of the other witnesses for the
prosecution are unworthy of belief.
13. In failing to hold that conspiracy is (sic) not proven beyond reasonable doubt
by the prosecution and that therefore criminal liability is individual, not
collective, and thus exempts the herein accused-appellant from the offense
charged.
14. In not finding as a fact that the late Abundio Lagunday was the sole author of
the offense charged,
15. In failing to hold that the defense of alibi assumes importance where the
evidence for the prosecution is weak and came (sic) from (a) source that cannot
be characterized as fully unbiased and disinterested.
16. In falling to hold that accused-appellant Ernesto M. Cordero was illegally
arrested and not accorded the right to preliminary investigation.
17. In holding (that) the accused-appellant Ernesto M. Cordero is liable to private
complainant for damages.
As the issues raised by LAGARTO are covered by CORDERO's assignment of
errors, we will concurrently dispose of them.
CORDERO claims that the trial court never amended or modified its Decision of
31 January 1995, as mandated by us in People v. Veneracion (G.R. Nos. 119987-
88). He argues that the trial court merely "ordered that its Order pursuant to the
Decision of this Honorable Court be promulgated by reading to both accused the
same Order in the language known and understood by both of them" and did not
state that the penalty being imposed was death.
CORDERO's apprehension is unwarranted because the trial court issued two
orders in open court at the National Penitentiary on 22 May 1996. The first was
made in compliance with our ruling in People v. Veneracion:
Pursuant to the Decision of the Honorable Supreme Court in G.R. No. 119987-
88 directing the imposition of the penalty of death upon the herein accused in
consonance to (sic) the findings that they had committed the crime of Rape with
Homicide under Article 335 of the Revised Penal Code, as amended by Section
11 of Republic Act No. 7659, the penalty imposed to (sic) the herein accused,
HENRY LAGARTO Y PETILLA and ERNESTO CORDERO Y MARISTELA
shall, as it is hereby imposed, be the penalty of death.
Pursuant further to the aforesaid Decision, after this Order is duly promulgated,
let the entire record of these cases be returned to the Honorable Supreme Court
for automatic review.
SO ORDERED.
while the other dealt with its promulgation:

When these cases were called, both accused appeared assisted by counsel de
oficio, Atty. Jovito Salvador, PAO lawyer of Muntinlupa, Metro Manila, who,
was appointed counsel de oficio.
In view of the failure of counsel on record Atty. Miguel Badando for accused
Henry Lagarto and Atty. Paterno Esmaquel for accused Ernesto Cordero to
appear despite notice. (sic) Private Prosecutor Pete Prinsipe interposed no
objection to the promulgation of the Order in the absence of counsel on record.
Thereafter, the Court ordered that the Order of this Court pursuant to the Decision
of the Honorable Supreme Court be promulgated by reading to both accused the
same Order in the language known and understood by both of them.
Thereafter, the order for the transmittal of the entire records of these cases to the
Honorable Supreme Court for automatic review is hereby reiterated.
SO ORDERED.80
Both LAGARTO and CORDERO claim that the prosecution failed to prove the
act of death of Angel Alquiza because her death certificate was not proffered in
evidence. Instead, the prosecution presented the Autopsy Report (Exh. "C"),
which allegedly cannot be considered as proof of the fact of death of Angel
"because there was no proper and sufficient identification of the victim that was
mentioned in said autopsy Report."81
This issue, however, is answered in CORDERO's Brief itself: "The said Autopsy
Report states that the body of the supposed victim, Angel Alquiza, was identified
by a certain Romezen Alquiza, a brother of the victim."82 The records show that
Romezen submitted to the NBI a request for autopsy and the NBI issued a
Certificate of Identification of Dead Body which he also signed.83 These were
essential for the autopsy which was eventually made by Dr. Lagat. In any case,
there is no rule that specifies who may identify a victim. It is enough that such
persons knows the one being identified. Certainly, a brother of the victim can
recognize his own sister even with her manifest physical injuries. The prosecution
cannot be faulted for not presenting other witnesses to verify Romezen's
identification, the choice of witnesses being a matter of legal strategy and
prerogative. Neither was CORDERO denied any opportunity to cross-examine
him regarding such fact because the Autopsy Report is an official document the
authenticity of which is presumed. Its validly, therefore, cannot be collaterally
attacked by putting Romezen on the witness stand.1âwphi1.nêt
As to the legal failure of the prosecution to prove the cause of Angel's death,
LAGARTO and CORDERO maintain that the fact of stabbing — which,
according to the post-mortem findings of Dr. Lagat, was the cause of death of the
victim — was not adequately established. Dr. Lagat said that there might be other
causes of death, such as Angel being hit by a motor vehicle. But then, this is a
mere probability. If we were to stretch this line of reasoning further, other
possibilities may be apparent: Angel could have still been alive when she was ran
over by the motor vehicle, as suggested by the defense; on the other hand, she
could have already been dead at the time. Preliminary police findings showed the
that sack wherein Angel's body was placed was found along a truck route. In the
flooded street, it could have easily been hit by a truck, thus, producing the cranial
injury which the defense suggests might be the true cause of Angel's death. Or, it
is also likely that she could have been severely hit on the head by a hard object.
This last scenario, being supported by the testimony of prosecution witness
Barlam, seems more plausible. It is worth mentioning that Angel suffered
numerous injuries which could not all have been caused by a motor vehicle.
Neither could the defense explain why or how the body could be wrapped in a
round yellow tablecloth, then put inside a sack, if Angel was still alive at the time.
CORDERO even stresses that his table has a glass top, instead of a mantle. He
fails to consider the implication of this fact: The round yellow tablecloth seen in
his house by Ofelia Lagman in July 1994 was the one used in wrapping Angel's
body because said tablecloth was no longer there after the incident in question.
The prosecution, for its part, offered convincing and logical answers to these
questions, based on the testimonies of its witnesses.
It is further argued that the prosecution failed to prove the fact of rape because
the Autopsy Report did not categorically state that Angel was, in fact, raped. Dr.
Lagat's examination revealed that Angel's genital injury was caused by a sharp-
bladed weapon. Ultimately, CORDERO concludes, "the testimony of witness
Barlam regarding the rape in question cannot prevail over the aforesaid finding
and autopsy report of Dr. Lagat." This is non sequitur. The finding that the incised
wound on Angel's genitals was caused by a sharp-bladed instrument does not
necessarily mean that she was not raped. Barlam, whose competence and
credibility as a witness was upheld by Judge Veneracion based on the NCMH
report and on his own observation of her deportment during the three days she
testified in court, swore that she saw Angel being raped in the early hours of 2
August 1994.
CORDERO also claims he was never properly identified as one of the
perpetrators of the crime charged. Jose Soriano said he saw Angel with Lagunday
on the night of 1 August 1994 and they "appeared normal." Barlam's sworn
statement of 4 August 1994 mentioned Lagunday, LAGARTO, and a certain
Lando, but not CORDERO, a fact confirmed by PO3 Ko and SPO2 Miranda.
Maj. Gacutan said they had no evidence against CORDERO, so they allowed him
to go home after he was initially invited to the police station. Vivencio Singalawa
claimed Lagunday admitted sole authorship of the crime. And because he was
not properly identified by the State's prime witness, CORDERO suggests that
Barlam was merely coached by the family of Angel to implicate him.
We are not convinced. Jose Soriano could not have seen CORDERO with Angel
that night because CORDERO was somewhere else at the time. Prosecution
witness Rolando Javar saw CORDERO and LAGARTO between 9:30 and 10:00
p.m. on 1 August 1994 standing by the warehouse at Kagitingin; as if they were
waiting for someone (palinga-linga). Javar is even related to CORDERO by
affinity; his son being married to CORDERO's daughter, so there appears no
plausible reason for him to lie, especially in this case where his balae is faced
with death sentence. On the other hand, whatever Lagunday revealed to
Singalawa is purely hearsay, since Lagunday died even before arraignment.
As stated earlier, Barlam's sworn statement of 4 August 1994 was taken by PO3
Ko with the assistance of SPO2 Miranda. Since she is illiterate and at the time
had not yet been equipped with a hearing aid, it is highly probable that the essence
of her narration was not captured in the translation and transcription. In any event,
even if she did not name CORDERO in her sworn statement, she undoubtedly
and consistently pointed to him and LAGARTO in open court, even slapping and
boxing them at times to demonstrate her indignation. We agree with the trial court
that by her words and actions, Barlam had sufficiently and convincingly
identified CORDERO and LAGARTO as two of the men who raped and killed
on 2 august 1994.
The manner in which Barlam testified in court betray not a single hint that anyone
had coached or coaxed her to implicate CORDERO. Defense witnesses Gloria
Sigua and SPO2 Miranda supposedly witnessed how a companion of Zenaida
Alquiza showed Barlam a newspaper with CORDERO's picture in it. Sigua
allegedly argued with this woman after hearing her say, "ito ba, isama mo na ito
sa pagturo."84 Yet, SPO2 Miranda, who was standing beside Barlam at the time,
heard nothing.85 What is even more telling is he believed there was nothing
wrong with Barlam, save for her hearing impairment, and that she was telling the
truth.86
For his part, Maj. Gacutan supposedly did not arrest CORDERO because had no
evidence against him. The information supplied by prosecution Lagman and
Javar, linking CORDERO to the crime, was sufficient to give the police a reason
to arrest him. Ultimately, CORDERO's role in the crime charged was duly
established when he was positively identified in court by Barlam as the cohort of
Lagunday and LAGARTO.
From the moment Barlam surfaced as an eyewitness to the crime, accused-
appellants LAGARTO and CORDERO, through counsel, have desperately tried
to disqualify her on ground of incompetence. Obviously aware of the futility of
any to objection to Barlam's testimony on account of the psychiatric finding by
the NCMH, after the three examinations, that "she may be deemed competent,"
the defense attacked instead the damaging contents of the NCMH psychiatric
evaluation report anchored on the following grounds: (1) said report is hearsay
because the doctors who prepared and issued the same were not presented in
court; and (2) it was not offered in evidence by the prosecution.
This argument fails to consider the very nature of the NCMH report. Having
made upon order of the trial court, such report is in the nature of an official
document in aid of judicial determination. It is not evidence for the prosecution
or against the defense but a document — a scientific report — prepared and
issued by an entity totally removed from the criminal proceedings, hence,
indifferent, objective, and impartial. To be utilized by the trial court, it need not
be offered in evidence by the prosecution because the court may take judicial
notice of its existence and composition. It is also for this reason that its contents
cannot be rejected on account of being hearsay.
The fate of accused-appellants LAGARTO and CORDERO depends greatly on
the credibility of Barlam as a witness. The trial court also recognized this, such
that it propounded numerous classificatory questions throughout the hearings of
3 and 4 October 1994, when Barlam was testifying on the witness stand after her
psychiatric examination, just to elucidate her responses amid the sea of queries
unleased by the lawyers. It is in cases like this where we find ourselves adhering
more to the principle that factual findings of the trial court must be accorded
respect and even finality on appeal because the trial judge had every opportunity
to question the witness, hear her testify, and observe her demeanor and
deportment.87 Exceptions to this rule exist, such as when the trial court's
evaluation was arbitrarily made, or when some substantial fact or circumstance
which might affect the result of the case has been overlooked, misunderstood, or
misapplied, but no such peculiarity is apparent in the case at bar.88 The trial court
has "keenly observed (Barlam) during her testimony and . . . is convinced that
she is speaking the truth."89 After poring over the voluminous records of this
case and scrutinizing the assailed Decision of 31 January 1995, we see no reason
to depart from this conclusion.
We agree with the observation of the trial court that Barlam was referred to the
NCMH precisely upon the repeated motion of defense counsels. Because of her
damaging testimony, her disqualification was the best ploy for the defense.
Barlam, however, adequately met the minimum requirements for qualifying as a
witness under Sections 20 and 21, Rule 130 of the Revised Rules on Evidence,
thus:
Sec. 20. Witnesses; their, qualifications. — Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of
a crime, unless otherwise provided by law, shall not be a ground for
disqualification.
Sec. 21. Disqualification by reason of mental incapacity or immaturity. — The
following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making known their
perception to others;
(b) . . .
Barlam could certainly perceive and make known her perception to others. Even
if she is deaf, she saw what happened on 2 August 1994. She related what she
saw to the police on 4 August 1994; to the psychiatrists who examined her at
NCMH on 26, 29, and 31 August 1994; and to the trial court on 26 August, 3 and
4 October 1994. Did she "intelligently" make known her perception to others,
especially when she testified in court? Certainly, she did. Everybody understood
her even if some of her statements on minor points were inconsistent. A perusal
of the transcript of stenographic notes would readily reveal that counsels for the
defense attempted in vain to confuse her on relevant facts, even confronting her
with her sworn statement — a clear indication that she connected with them
"intelligently."
Because of Barlam's "deafness and associated mental retardation," the defense
harped that she should be disqualified from testifying. The disquisition above,
notwithstanding, we have ruled that even a mental retardate or a feeble-minded
person could qualify as a competent witness.90
Instead of finding Barlam, unfit to be a witness, the NCMH even bolstered her
credibility by declaring her to be competent and consistent in her recollection and
narration of the events she witnessed on 2 August 1994. Barlam was ordered by
the court to undergo psychiatric tests because she exhibited some aberrant
behavior. Her speech was fragmented, at times unintelligible or incongruous, but
this was due in most part to her congenital deafness and anxieties. The fact
remains that the thrust of her testimony regarding the circumstances surrounding
the events that transpired on 2 August 1994 never varied. Against the
recommendation of the NCMH that her examination in court should be free from
distraction and intimidation, defense counsels literally tried every trick in the
book to badger and confuse her, derail her testimony by confronting her with her
sworn statement, and otherwise cast doubt on her capacity to testify. Yet, her
testimony held.
When Barlam testified on 26 August 1994, prior to her psychiatric examination,
she declared thus:
ATTY. PRINSIPE (Private Prosecutor):
Q On August 2, 1994 at around 2:00 in the morning, will you tell the Court
where were you?
Will you (the interpreter) please whisper to the right ear (of the witness) because
this is a vital witness and we (the prosecution) will request repeatedly.
WITNESS:
Kalsada.
ATTY. ESMAQUEL (Counsel de parte for Cordero):
At this juncture, may we manifest that the answer of the witness is not responsive.
The only question is - - - (cut short)
COURT:
She answered "kalsada"
ATTY. PRINSIPE:
Q Where is that street you mentioned?
A Kagitingan. ATTY. PRINSIPE:

Q And will you kindly tell the Honorable Court whether there was an Before that your honor, I just want to make an important observation that
unusual incident that happened on that date and time? immediately after the witness pointed, that man Cordero, he removed his eye
glasses, your honor.
A It's Monday - - - (cut short)
INTERPRETER:
ATTY. ESMAQUEL:
Please make it of record that the witness step(ped) down from the witness stand
May we manifest that the answer is not responsive to the question. The question and she is now going to the place - - - (cut short)
is whether there was an unusual incident that happened on that date and time.
COURT:
A Oh, hindi ako nanloloko peksman.
Point to the man.
ATTY. PRINSIPE:
INTERPRETER:
Please related (sic) it to the Court.
- - - and she is now pointing to a man, and when asked to identify himself, he
A Mama na naka salamin - - - claims that he is Ernesto Cordero — and the other one is Henry Lagarto.

ATTY. ESMAQUEL: ATTY. PRINSIPE:

May we request that the answer be stricken out of the record for not being The witness is very angry your honor, in pointing to the accused.91
responsive.
xxx xxx xxx
ATTY. BADANDO (Counsel de parte for Lagarto):
You pinpointed Cordero a while ago, why did you pinpoint him?
Your honor, I would like to make an observation on record that I could not see
any man wearing an eye glasses. A Iyan ang nakita ko. Iyan tali sako tapos tapon Moriones.

COURT: Q You stated that somebody was hogtied or tying a sack, do you know
whatever there was (anyone ) inside, that sack.
Sige.
A Marami sako, maraming tali, damit ng bata sira-sira na.
WITNESS:
xxx xxx xxx
The man wearing eye glasses - - sinaksak ang bata.
ATTY. PRINSIPE:
COURT:
You were stating that you saw Cordero tying the sack, were there any other
Go down from where you, were and go to the person whom you said - - (cut short) person present during that tying of the sack?
A Wala ngang tao. Lima kami, iyan, iyan, isa patay na. Anim iyon, patay Incompetent to answer. The only thing is because the witness - - - he is asking
na ang isa. about Cordero.

ATTY. BADANDO: COURT:

The first thing she said was "siya, ako at siya." Sustain.

ATTY. ESMAQUEL: ATTY. PRINSIPE:

Yes, let it be on record. Q Why were you in that place you mentioned a while ago on that date and
time?
ATTY. BADANDO:
A Iinom ako kape. Iiyak iyak bata. Nagugutom ako. Dinig sabi nang mama,
Which means three including herself. huwag ka ingay. - - tapos pinalo ako, sabi ko bakit iyak bata, tapos sabi ko wala
na patay na, ah ah ah.
ATTY. PRINSIPE:
FISCAL (Should be either Atty.; Esmaquel or Atty. Badando):
You said three?
Do not allow her to be relating a story.
A Iyong isa patay na.
ATTY. PRINSIPE:
ATTY. PRINSIPE:
Who was the child you saw and you heard crying? What is the name?
Will you please look around and see whether the two whom you are referring to
are inside the courtroom? ATTY. BADANDO:

Will you please step down from the witness stand and approach the two, tap them Your honor, I object because she was (not) able to identify any child. What she
on the shoulder. stated (earlier) is a certain Tetchie, a mother of that woman. There is no basis.

INTERPRETER: COURT:

The witness step(ped) down from the witness stand and she is now going to the Answer.
two men, who, when asked to identify themselves claim(ed) that they are (sic)
Ernesto Cordero and Henry Lagarto. ATTY. ESMAQUEL:

ATTY. PRINSIPE: May I join the objection on the ground that earlier, she was asked - - - (cut short)

Q You said that you saw Cordero tying the sack, why do you know, do you know COURT:
the reason why he was tying that sack?
Let the witness answer. Objection overruled.
ATTY. ESMAQUEL:
A Batang sinaksak.
ATTY. PRINSIPE: A Iinom ako kape. Lalaba. Iihi ako. (24)

Q Do you know the name of the child who was stabbed? Iihi ako sa dulo. May tubig sa dulo. Doon ako huhugas. (25)

A Oh oh. FISCAL:

ATTY. ESMAQUEL: Q Were you able to finish washing?

May we manifest that the witness failed to answer. A Oh.

COURT: Q After you were able to finish washing, what did you observe, if any?

In the interest of justice, repeat the question. ATTY. BADANDO:

(Interpreter repeating) Very vague.

A. Oho. COURT:

ATTY. PRINSIPE: Answer.

What is the name? A Kita ko tatlo lalake, isa bata apat tao, tatlo lalake isa bata. Totoo sinasabi
ko.
A Jingjing.
FISCAL:
Q Why do you know that the name of the child is Jingjing?
Q These three male persons who you saw that morning — these three male
A Dinig ko sa kalsada. persons whom you saw together with the female child, would you be able to
recognize these three male persons if you see them again? (27)
Q If I will show you the picture of Jingjing, would you be able to recognize
her? A Oho.

A Oho.92
On 3 October 1994, Barlam went back to court after being cleared by the NCMH
to testify and after being fitted with a hearing aid. Excerpts from that day's hearing
are hereunder quoted minus the objections, comments, and oral arguments of
counsels. The questions were translated into Tagalog and her responses quoted
verbatim by the court interpreter. The pages where they appear in the TSN are in
parentheses. Fiscal Narciso J. Rosero, Jr. began the examination by asking what
Barlam was doing in the morning of 1 August 1994 (or evening of 2 August
1994).
Q Will you please look around inside the courtroom and find out whether
they are all here?
INTERPRETER:
The witness step(ped) down from the witness stand and the witness now is
slapping the face of one male person — two male persons, and when asked to
identify themselves, they claimed that they are (sic) Ernesto Cordero and Henry
Lagarto.
A Isa patay na.
FISCAL:
Q How about the female child whom you saw in the company of these
three male persons, if you see her again; would you be able to recognize her?
Your honor, let it be reflected also on record that the witness said that there was
a person who has an eyeglasses, but when we look(ed) around, there was no such
person wearing an eyeglasses.
INTERPRETER:

A Oho. (28) The witness is pointing to the two accused, (33) which, when asked answered by
the name of Ernesto Cordero.
At this point, Barlam was shown six pictures of seven different girls from she
correctly picked out the picture of Angel Alquiza.93 ATTY. ESMAQUEL:

WITNESS: I would like to request, your honor, that the witness be admonished not to slap
the accused.
Sabi nila, alis na, alis na sabi. Sabi ko ayoko, patayin na ninyo ako, hindi ako
aalis. FISCAL:

FISCAL: The actuation of the witness is merely a sign of her sincerity in conveying the
truth to the Honorable Court. (34)
Q So what happened when you answered them that you will not leave,
maski na patayin ka. xxx xxx xxx

A Malayo ako doon, binato ako ng kahoy. Hindi ako loloko. Totoo yon. FISCAL:

Q After you said one of these male persons hit you with a piece of wood Q Alright, aside from this "anunta, anunta", what did these two persons do
on your left knee and on your left elbow, what did you do next after that? next, if any?

A Aalis mata, aalis tenga, aalis hikaw, hiwa dito, hiwa kiki niya." Pag hindi A Isa palo ulo, isa alis diyan, isa pinto, diyan ka, sabi, diyan ka muna, isa
totoo, ikukulong ako tapos. (32) palo ako tapos hikaw alis.

ATTY. BADANDO: Q (A)fter all those things, what next did these three persons do?

Let it be made of record that. the witness is mentioning or motioning that after A Isa tali paa, pula, tapos isa dilaw, balot sako, kurtina, wala na, tapos na.
slashing the child including the private part, she motion(ed) "anunta, anunta".
The witness is touching her index finger into her palm, and then pointing to her COURT:
private part. That was aside from slashing.
Who was the one of the two accused who tie(d) the sack?
FISCAL:
INTERPRETER:
Q Who, of these three male persons, who among them "anunta, anunta"?
The witness step(ped) down from the witness stand and (s)he is now going to the
ATTY. BADANDO: accused — (cut short) (41)
 And the witness was shouting yanyanyan.
ATTY. ESMAQUEL:
COURT:
May I manifest, your honor, that what has been pointed out by the witness is the
accused Lagarto, your honor. Ayan, ayan.

ATTY. BADANDO: Q You said that the face, was slash(ed), who slash(ed) the face? (43).

Let it be recorded that what has been stated earlier, the one pointed was Cordero. A Kalbo.
It is clear from the transcript of stenographic notes dated August 26, 1994 that
when asked by (sic) the same question, the witness pointed to the accused INTERPRETER:
Cordero as the one who tie(d) the sack.
The witness step(ped) down again to (sic) the witness stand and she is now
FISCAL: pointing to the accused Lagarto.

That is already on record. COURT:

ATTY. ESMAQUEL: Who was the one who slashed the private part of the child?

And now, the one pointed to was the accused Lagarto. (42) A Iyan nga dalawa. Kulit mo kausap. Iihi ako, saan ako iihi ako.

COURT: FISCAL:

Who was the one who wrapped her with the yellow tablecloth? Q You stated a while ago that you heard a child somewhere crying, when
you heard somewhere a child crying, what did you do, if any?
Q Iyan.
A Sabi ko, kawawang bata, tapos hiwa dito, tangal mata. Totoo iyon, hindi
COURT: ako nagsisinungaling. (44)

You go down again and point to the one who wrapped the child with the yellow ATTY. BADANDO:
material?
The witness, a while ago, is motioning that tears (were) flowing down from the
A Iyan tali. Iyan na nga ho. eye of the child.

COURT: FISCAL:

The witness pointed to the accused Cordero. Q How did you come to know that tears were flowing from the eye of the
child?
Q You said that the eye was taken out, who remove(d) the eye?
A Sindi ako kandila, kita ko tulo
ATTY. BADANDO:
INTERPRETER:
 Q At the time the portion of her body was slashed, and the private part of
Witness referring to her two eyes. the body was slashed (46) by the accused, what was her attire, was she still
wearing that attire?
WITNESS:
A Hindi na.
Hina lang.
Q What do you mean?
FISCAL:
A Patay na siya. Wala nang damit. (47)
Q At the time you lighted the candle, how far were you from the child?
The following day, 4 October 1994, Barlam was cross-examined. Her testimony,
A Dito ako ihi, sa dulo, butas dito, dito bata. as that on direct, are similarly quoted and paginated:

ATTY. BADANDO: Q Before the incident that you saw on August 2, 1994, did you already
know Angel Alquiza?
We would like to stipulate as to the distance that that is only one arm(s) length.
(45) A Oo. Kakain ng lugaw.

FISCAL: Q When for the first time did you meet Angel Alquiza before that incident
on August 2, 1994?
About one arm(s)length or one a half arm(s)length.
A Lima taon siya. Ito bahay, ito kalsada, ako lalaba. Ang ganda bata. (11)
Q Where was (sic) these three persons at the time you saw the child crying?
xxx xxx xxx
A Sa gilid. Dito kahoy, tapos tali sako, tapos balot dilaw, tali pula, tali paa.
ATTY. ESMAQUEL:
INTERPRETER:
Q Before the incident which you saw on August 2, 1994, have you already
Witness is motioning to her feet. met or saw (sic) the accused Cordero? (15)

WITNESS: A Hindi pa.

Totoo ho, hindi ako nanloloko. Q So when for the first time did you see the man with an eye glasses?

FISCAL: A Noon nga, noong una doon. Tatlo iyan. Patay na isa.

Q What was the attire of the child, if any, when you saw her crying, if any? Q When you said "noon nag, what are you referring to?

A Dilaw daster may manggas. A Isa bata tatlo lalaki.

FISCAL: Q And where did you see those three male(s) and one child?
A Iihi ako dulo. Sindi ako kandila. Doon tubig huhugas ako, "uulan-ulan.
INTERPRETER:
Witness is motioning the size of the candle.
A Tapos ligo na ako. Ihi ako tapos dito rinig ko bata aray. Nihiwa na.
INTERPRETER:
Witness is motioning to the eye, the ears, (16) the throat, the private organ.
A Ako nga palo kahoy. (17)
Barlam's erratic behavior became manifest as the hearing droned on, but so did
the clarity and consistency of her narration. She pretended picking lice off the
interpreter's head; she said her father's cousin was a tin can; she even allegedly
exposed her private part to the defense counsels. There is no denying, however,
that she saw Angel surrounded by these three men — one a pedicab operator with
a history of abusing even his own daughters; the other two, scavengers and
occasional pedicab drivers. CORDERO stood before her as she knelt on the floor.
LAGARTO stayed by the door. Lagunday saw Barlam, shooed her away, then
went after her and hit her with a piece of wood when she would not leave. The
left side of Angel's face was slashed twice by CORDERO, who also gouged out
her eyes and cut her vagina all the way to and beyond her anus. He took her
earrings. Angel's head was bashed in when she was hit with a piece of wood by
LAGARTO and Lagunday.94
Even on re-direct examination, Barlam was certain that it was CORDERO who
slashed Angel's vagina and raped her. ("Hiwa dito hiwa dito, anunta, anunta, hiwa
kiki, tanda na hiwa pa kiki.")95 The one who hit Angel with a thick piece of wood
was LAGARTO, and Barlam identified him in dramatic fashion by slapping and
boxing him.96 When confronted with her sworn statement where she said that
the man who hit Angel with a piece of wood was "Lando walang ipen," it was
made clear by the prosecution that such sworn statement was made in connection
with an investigation conducted by PO3 Ko when Barlam had not yet been fitted
with a hearing aid. In fact, she did not and could not read such statement so it had
to be "read" to her by SPO2 Miranda without her hearing aid. Barlam never
deviated in relating to the court the complicity of Lagunday, CORDERO, and
LAGARTO in the rape-slay of Angel. In the assailed decision, the trial court even
observed that from afar, LAGARTO looked as if his front teeth were missing.97
Barlam's testimony, in our opinion, adequately established the liability of
Lagunday, LAGARTO, and CORDERO for raping and killing Angel Alquiza.
She not only proved to be competent but also truthful in her narration of what
transpired on 2 August 1994. Her sworn statement might not entirely jibe with
her oral testimony, but we have ruled that in case of conflict between the contents
of a sworn statement and testimony in open court, the latter generally prevails
since ex parte affidavits are often incomplete and inaccurate because by their
nature, they are ordinarily prepared by a person other than the affiant.98 Barlam
may have strangely at times, but such idiosyncrasy has no bearing on the
consistency and veracity of her testimony. She repeatedly pointed to accused-
appellants LAGARTO and CORDERO as she spoke, and slapped, boxed, and
glowered at them when she was asked by the court to identify the malefactors.
Neither can we discount the psychiatric report which gave Barlam a clean bill of
mental health. For three days, she was examined by professional psychiatrists,
but her story remained the same. It was the same story she narrated in court, albeit
with some minor inconsistencies.
It must also be noted that Barlam absolutely has no motive to falsely testify
against LAGARTO and CORDERO. The absence of evidence of any improper
motive actuating her as the principal witness of the prosecution strongly tends to
sustain the conclusion that no such improper motive existed at the time she
testified and her testimony is worthy of full faith and credit.99
LAGARTO and CORDERO deny the allegations against them and said they were
sleeping in their respective homes at the time the crime was supposedly
committed. By itself, alibi is a relatively weak defense; it is further emasculated
in the absence of any showing that it was physically impossible for the accused
to have been at the crime scene or its immediate vicinity at the moment it was
being perpetrated.100 CORDERO's home is merely ten blocks from the
warehouse at Kagitingan St. He denied any knowledge of its existence, which is
highly dubious considering that it is a roadside structure. His daughter Emily and
Eriste supported his alibi, but only up to the time that he supposedly slept at
around 11:00 p.m. on 1 August 1994. LAGARTO, on the other hand, lived with
his family at Parola Area D, Tondo, Manila, which is a jeepney and tricycle ride
from the warehouse at Kagitingan St. His neighbors, Besonia and Badilla, and
mother Noriana corroborated his story that he slept at around 7:00 p.m. on 1
August 1994 until 5:00 a.m. the following day. But on cross-examination, he
admitted he was all alone in their house when he slept.
The fact that LAGARTO and CORDERO were at home in the evening of 1
August and in the morning of 2 August is no indication that they were there the
whole time. They were both placed at the crime by two witnesses. Javar saw them
in front of the warehouse between 9:30 and 10:00 on 1 August 1994, as if waiting
for someone. Barlam saw them inside the warehouse around 2:00 a.m. on 2
August 1994. CORDERO was the one who stabbed Angel in the face, slashed
her organ, raped her, and tied her feet. LAGARTO hit angel on the head. Together
with Lagunday, the three wrapped her in yellow tablecloth identical with the one
Lagman saw CORDERO's house, put her in a sack which they tied with a nylon
cord, then, under a mantle of heavy rain, set her adrift in murky floodwater.
Incidentally, CORDERO raises in issue the delay in which Javar reported to the
authorities what he knew about Angel Alquiza's case. This was properly
addressed by Javar when he said that he did not initially want to report the matter
to anyone because CORDERO was his balae.101 In the end, his conscience
convinced him to shun family ties in order to help bring justice to Angel.
Besides, LAGARTO and CORDERO were positively identified by prosecution
witness Barlam as the authors of the crime charged. Their denial and alibi cannot
prevail over the positive identification and assertions of Barlam.102
LAGARTO and CORDERO make much of the perceived impossibility of
committing the crime in the warehouse of Mang Gorio. Maj. Gacutan visited the
place on 4 August 1994 and found its perimeter adequately lit and surrounded by
residential houses, but its interior was so dark that anyone who peeped from the
outside would not have seen anything inside. He did not even find any evidence
in the dark bodega.
This argument is untenable. It is established that rape is no respecter of time or
place. It can be committed in small, confined places, like a one-room shack and
in the presence of other family members,103 or a small hut on a raft (alang).104
The same can be said of any other crime that accompanies and compounds the
rape. In the case at bar, even if there were houses around the warehouse and there
was a lamppost nearby, there is no dispute that Angel was assaulted therein at
2:00 in the morning during a heavy downpour. Under the condition then
prevailing, the desolation of the warehouse and its immediate vicinity provided a
perfect cover for the atrocities perpetrated against Angel. On the other hand,
when the court conducted an ocular inspection of the warehouse on 22 November
1992, it was noted that the holes through one or more of which Barlam had
witnessed the crime have been patched up. The protestation of CORDERO and
LAGARTO cannot be given serious consideration because the trial court
gathered "from the Barangay Captain and other residents that there have been
alterations in the warehouse; that the opening had been covered, so much so that
the actual conditions of the warehouse at the time of the commission of the
offense are no longer obtaining during the ocular inspection."105 LAGARTO
and CORDERO likewise question the wisdom of this observation because there
is allegedly no evidence, testimonial or otherwise, which would support it. The
ocular inspection was, however, conducted with the assistance of the Barangay
Captain and some residents. The conclusions of the court, therefore, is not
conjectural but based on information supplied by the escorts who were more
familiar with the physical condition of the warehouse.
As regard Maj. Gacutan's investigation, which allegedly yielded no evidence
against LAGARTO and CORDERO, the trial court correctly observed that this
is to be expected because Maj. Gacutan "did not take with him any (forensics)
expert to any instrument to recover any physical evidence."106 Nonetheless, his
failure to obtain any evidence from the crime scene does not ipso facto eliminate
the fact that a crime was committed therein, especially in view of the damning
testimonies of the prosecution witnesses.
The next crucial question to be resolved is whether LAGARTO and CORDERO,
together with deceased Lagunday, conspired to rape and kill Angel.
The following undisputed facts must be taken into consideration and read in
connection with Barlam's testimony:
1. On the night in question, Angel was last seen being led by the hand of
Lagunday. Javar saw Angel riding "Ernie Sidecar No. 14" which was driven by
Lagunday. Ligaya, wife of CORDERO, confirmed that on 1 August 1994,
Lagunday drove "sidecar No. 14" which was part of their fleet of pedicabs.
2. LAGARTO was arrested by the police after Lagunday implicated him along
with accused Manlangit, Baltazar, and Yaon.
3. Eyewitness Barlam positively identified Lagunday and LAGARTO from a
police line-up as two of the tree men she saw raping and killing a girl in the
abandoned warehouse of Mang Gorio at Kagitingan St.
4. Lagunday and his co-accused Manlangit both used to work for Mang Gorio at
the latter's junk shop, which is the abandoned warehouse where the crime took
place.
5 Lagman told the NBI and the police that the yellow tablecloth where Angel's
body was wrapped was the one she saw at the CORDERO residence.
6. Javar saw CORDERO and LAGARTO in front of the warehouse on the night
in question as if they were waiting for somebody.
7. During detention, Lagunday pointed to CORDERO as the alleged mastermind.
8 Barlam saw CORDERO slash Angel's face and genitals before raping her, while
LAGARTO stood by the door. Lagunday and LAGARTO both hit Angel's head
with a piece of wood. When angel was dead, they tied her feet, wrapped her in a
round yellow tablecloth possibility owned by CORDERO, placed her in sack,
then set adrift in the floodwater of Del Pan.
All these demonstrate that the prosecution established beyond reasonable doubt
that LAGARTO, CORDERO, and Lagunday shared a common design to rape
and kill Angel Alquiza. Although there is no direct proof of such unity of purpose,
conspiracy was properly appreciated in these premises by the trial court because
their individual acts, taken as a whole, showed that they were acting in unison
and cooperation to achieve the same unlawful objective.107 Under these
premises. it is not even necessary to pinpoint the precise participation of each of
the accused, the act of one being the act of all.108 Thus, the trial court correctly
observed that "conspiracy is established by the concerted action of the accused in
the commission of the crime as well as in their concerted efforts after the
commission of the crime as well as in their concerted efforts after the commission
of the crime,"109 as when they attempt to dispose of the body of the victim to
hide their misdeed. In the case at bar, the trial court found that CORDERO,
LAGARTO, and Lagunday acted in concert to slay the victim and thereafter
conceal her body by wrapping it in a round yellow tablecloth, putting it in a sack,
and leaving it in flooded street in Del Pan. Jurisprudence constantly points out
that the conduct of the accused before, during, and after the commission of the
crime may be considered to show an extant conspiracy.110 Even if by Barlam's
testimony it would appear that only CORDERO raped Angel, LAGARTO is still
liable for the crime of rape with homicide because where conspiracy is adequately
shown, the precise modality or extent of participation of each individual
conspirator becomes secondary. The applicable rule, instead, is that the act of one
conspirator is the act of all of them.111
CORDERO insists that the trial court erred in failing to hold that he was illegally
arrested and was not accorded the right to a preliminary investigation.
This argument has no merit. CORDERO voluntarily entered a plea of "not guilty"
when he was arraigned on 22 August 1994.112 By so pleading, he submitted to
the jurisdiction of the trial court, thereby curing any defect in his arrest, for the
legality of an arrest affects only the jurisdiction of the court over his persons.113
Besides, his act of entering a plea when arraigned amounted to a waiver of the
right to question any irregularity in his arrest.114 It is too late for CORDERO to
protest his arrest because a valid information had been filed against him, he was
properly arraigned, trial commenced and was terminated, and a judgment of
conviction had been rendered against him.115 Besides, his illegal arrest, if such
was the fact, did not have any bearing on his liability since an allegation of an
invalid warrantless arrest cannot deprive the State of his right to prosecute the
guilty when all the facts on record point to his culpability.116 Any irregularity in
his arrest will not negate the validity of his conviction duly proven beyond
reasonable doubt by the prosecution.117
LAGARTO and CORDERO were charged with and convicted and the special
complex felony118 of rape with homicide, defined and penalized under Article
335 of the Revised Penal Code, as amended by Republic Act No. 7659, viz.:
Art. 335. When and how rape is committed. — Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
----
3. When the woman is under twelve years of age or is demented.
When by reason or on occasion of the rape, a homicide is committed, the penalty
shall be death.
It having been established beyond any shadow of a doubt that LAGARTO and
CORDERO raped and killed her on the occasion of the rape, the mandatory
penalty of death is inescapable. Four Justices have continued to maintain their
stand that R.A. No. 7659 is unconstitutional insofar as it prescribes the death
penalty; nevertheless, they submit to the ruling of the majority to the effect that
the law is constitutional and the death penalty can be lawfully imposed in the case
at bar.
In view of foregoing, it may no longer be necessary to consider if any of the
qualifying and generic aggravating circumstances alleged in the informations had
been proven or if any mitigating circumstance had been established. Article 63
of the Revised Penal Code, as amended, provides that in all cases in which the
law prescribes a single indivisible penalty, it shall be applied by the courts
regardless of any mitigating or aggravating circumstances that may have attended
the commission of the deed. However, for determining the civil liability, an
appreciation of one aggravating circumstance — the cruelty that attended the rape
and killing of Angel — may be in order. Angel was a seven-year old child. Her
captors and tormentors were grown-up men. The Autopsy Report (Exh. "C")
listed her injuries: numerous hematomas, abrasions, contused-hematomas,
incised wounds, fractures, lacerations, and stab wounds. Both of her eyes were
missing. Her vagina was sliced, producing an incised wound 14 centimeters long
that went beyond her anus and causing disembowelment. This was done
presumably so that her underdeveloped organ could accommodate the organs of
the assailants. She was bleeding to death, her intestines spilling out, when
CORDERO raped her in the presence of LAGARTO and Lagunday. Her head
was hit so hard that part of her brain began to leak through the fracture. Angel
Alquiza suffered through all these. She did not die instantaneously. The cruelty
inflicted was too much and could only come from persons turned beast.

The presence of the aggravating circumstance of cruelty119 warrants the award

of exemplary damages,120 which we hereby fix at P100,000.

The award of P500,000 as moral damages, which no longer requires proof per
current case law,121 has to be reduced to P100,000.

Current jurisprudence122 has fixed at 100,000 the indemnity in cases of rape with
homicide.

WHEREFORE, the judgment of the Regional Trial Court of Manila, Branch 47,
as modified in the Order of 22 May 1996, in Criminal Case Nos. 94-138071 and
94-138138 dated 31 January 1995, imposing the death penalty on accused-
appellants HENRY LAGARTO y PETILLA. and ERNESTO CORDERO y
MARISTELA is AFFIRMED, with the MODIFICATION that said accused-
appellants are hereby ordered, jointly and severally, to pay the heirs of the victim,
Angel L. Alquiza, the amounts of P100,000 as indemnity, P100,000 as moral
damages, and P100,000 as exemplary damages, in addition to the P52,000
awarded by the trial court as actual damages.1âwphi1.nêt

In accordance with Article 83 of the Revised Penal Code, as amended by Section

25 of Republic Act No. 7659, upon finality of this decision, let the records of
these cases be forwarded to the Office of the President for possible exercise of
executive clemency.

Costs against accused-appellants.

SO ORDERED.
G.R. No. 96848. January 21, 1994.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEJANDRO
SALOMON Y OLPANGO @ “ALE,” @ “BOYET” and FELICIANO
CONGE @ PEPING, accused-appellants.
Criminal Law; Rape; Witness; A mental retardate is not for this reason alone
disqualified from being a witness.—A mental retardate is not for this reason
alone disqualified from being a witness. As in the case of other witnesses,
acceptance of his testimony depends on its nature and credibility or, otherwise
put, the quality of his perceptions and the manner he can make them known to
the court. Thus, in People v. Gerones, the Court accepted the testimony of a rape
victim notwithstanding that she had the mentality of a nine or ten-year old
“because she was able to communicate her ordeal . . . clearly and consistently.”
In the case of People v. Rondina, this Court declared: “The testimony of the
offended party herself was especially telling and credible despite the fact that she
was somewhat mentally deficient, as the trial court noticed. Although she was
really of limited intelligence, the complainant nevertheless did not forget the
harrowing experience she suffered during that frightful night in the bushes when
the three men seared her memory with the lust they forced upon her. The tale she
narrated in court was not woven out of sheer imagination but born in anguish and
remembered with pain and as plain and unembellished as the simple life she led.
If she spoke in forthright language at the trial, it was because she was speaking
the truth of that horrible ravishment she could not push out of her mind.”
Same; Same; Same; Her mental condition did not vitiate her credibility.—In
the case before us, the trial court noted that although Sylvia’s speech was slurred
and it was necessary at times to ask her leading questions, “her testimony was
positive, clear, plain, coherent and credible.” Her mental condition did not vitiate
her credibility. We also believe, as we have observed often enough in many cases
that a woman will not expose herself to the humiliation of a rape trial, with its
attendant publicity and the morbid curiosity it will arouse, unless she has been
truly wronged and seeks atonement for her abuse.
Same; Same; Same; It is unnatural for a parent to use his offspring as an
engine of malice.—It is unnatural for a parent to use his offspring as an engine
of malice, especially if it will subject a daughter to embarrassment and even
stigma, as in this case. There is no evidence that Sylvia’s father is an unnatural
parent. Besides, the enmity itself is in the view of the Court not deep enough to
provoke the charge, assuming that Restituto Soria was willing to use his daughter
to falsely accuse his enemy’s son. Significantly, the complaint was filed by
Restituto against the son and not the father who was his real adversary.
Same; Same; Same; Evidence; Absence of spermatozoa in the complainant’s
vagina does not negate the commission of rape.—The lack of a finding of
spermatozoa during Sylvia’s medical examination did not conclusively establish
an absence thereof because the examining doctor simply did not have the
necessary equipment to make a more thorough report. In fact, she suggested
another examination at the Calbayog General Hospital. At any rate, we have held
that the absence of spermatozoa in the complainant’s vagina does not negate the
commission of rape; there may be a valid explanation for such absence, as when
the semen may have been washed away or when the rapist failed to ejaculate.
Same; Same; Same; Same; Defense of “manual rape” is inadmissible.—And
now let us consider the interesting defense of what we may call Sylvia’s “manual
rape” for lack of a more descriptive term. Admitting the laceration in Sylvia’s
vagina, Salomon nevertheless maintains that it was caused not by his penis but
by Conge’s fingers. Conge’s purpose was to punish her and to disable her and
thus prevent her from hitting him again. The trouble with this defense is that it is
too comical for words. It looks like a bawdy-house skit featuring a mad avenger
and his naughty fingers. Besides, the two accused and De Guzman have a
confused recollection of how this remarkable incident happened, the first perhaps
in the annals of Philippine jurisprudence.
Same; Same; Same; The crime was committed with force and intimidation and
against a mental retardate who was able to relate the details of her outrage.—We
are satisfied with the findings of the trial court that the appellants, in conspiracy
with each other, committed the crime of rape upon Sylvia Soria, with Salomon
actually violating her as Conge helped restrain her while also frightening her with
his bolo. The crime was committed with force and intimidation, and worse,
against a mental retardate, who fortunately was nevertheless able to narrate the
details of her outrage. The theory of the defense is absurd. The trial court was
correct in rejecting it. The assessment of the evidence, especially the credibility
of the witnesses, is the primary function of the judge presiding at the trial. We
defer to the findings of the trial court in the case at bar, there being no showing
that they were reached without basis. People vs. Salomon, 229 SCRA 403, G.R.
No. 96848 January 21, 1994
The novel defense in this prosecution for rape is that the physical evidence of the
complainant's violation was caused not by the male organ but by the five fingers
of one of the appellants that were thrust into her vagina in anger and not lust. The
defense faults the trial judge for giving credence to the complainant. It avers that
her testimony should not have been accepted at all because she is admittedly a
mental retardate and therefore unreliable per se.
These curious arguments will not be dismissed out of hand by this Court. The
appellants are entitled to be heard in their defense, no less than the prosecution,
although neither party is necessarily to be believed if its evidence falls short of
the strict standards of the law.
The trial court found that on October 11, 1987, while Sylvia Soria, a
20-year old mental retardate, was walking along the Maharlika Highway at
Casabahan, Gandara, Samar, Alejandro Salomon and Feliciano Conge, who were
apparently waiting for her, accosted her and forcibly took her to the ricefield
some ten meters away. There she was raped by Salomon with Conge's assistance.
On her way home, she met her brother Senecio, to whom she related her ordeal.
The two of them reported her rape to their father. That same night, the family
walked the three-kilometer distance to the police station, where Restituto Soria
signed a complaint for the rape of his daughter by Salomon and Conge.1 Sylvia
was medically examined at the Gandara General Hospital by Dr. Susan Tanseco,
who issued the following certificate:2
A physical examination has been done on Miss Sylvia Soria, 20 years of age, a
resident of Brgy. Casab-ahan, Gandara, Samar. P.E. showed a single, linear,
laceration on the labia minora at 6:00 o'clock position. There are isolated
erythematous areas on both thighs. There is also the presence of sandy particles
on the genital area. Speculum exam, however, showed negative findings.
Three days later, Salomon and Feliciano could no longer be found. It was only
after a four-month search that they were arrested in Aguado, Plaser, Masbate,
from where, after being detained there for one month, they were taken back to
Samar.3 Following a protracted investigation, an information for rape was filed
against them on August 9, 1988, with the Regional Trial Court in Calbayog City.4
The principal witness for the prosecution was Sylvia Soria herself, who recounted
in detail the manner of her ravishment by Salomon with the help of his co-accused
Conge. She described how she was dragged to the ricefield by the two accused
and there undressed against her will. As Conge spread and pinned her legs,
Salomon mounted and penetrated her, although with difficulty because she was
still a virgin. She felt pain in her vagina and "something slippery." She could not
cry out or repel the attack because the two were stronger than she and Conge was
holding a bolo.5 After her rape, Salomon sucked and twisted her nipples and
demanded that he suck his penis. Her low mentality was demonstrated in her
angry testimony of her refusal: "The devil with him, it is not an icedrop."6
The prosecution presented several other witnesses, 7 including Dr. Tanseco, who
affirmed her medical certificate of the complainant's examination. On cross-
examination, she declared that the laceration in Sylvia's vagina could have been
caused by penetration of a blunt instrument such as an average-sized penis.8
The two accused flatly denied the charge against them. Conge swore that on the
night in question, Sylvia arrived at the highway and loudly demanded a lamp
from the people in Epifanio de Guzman's house. He approached her and said there
was no lamp to spare, whereupon, as he turned his back to leave, she hit him in
the neck with a piece of wood, causing him to stagger. In swift reaction, he caught
Sylvia by the waist and pushed her to the ground and as she lay there exposed
(she was not wearing any underwear), he angrily shoved his five fingers into her
vagina. Sylvia cried out at the top of her voice. Fearing that her relatives might
come, he withdrew his hands and immediately left the place.9
Salomon corroborated his co-accused. He testified that he saw the whole incident,
being then about three-arms length away from the highway. 10 De Guzman
agreed, saying that he was also in the yard of his house at the time, and playing
his guitar, when the encounter occurred. 11
Both Salomon and Conge also protested that they had not gone to Masbate in
order to escape as the trial court held. They pointed out that they were in fact
investigated by the police the day following the alleged incident but no action
was taken against them. 12 The truth, they said, was that they had gone to
Masbate to buy two horses on instructions from Salomon's father, Epifanio, who
had given them P3,000.00 for this purpose. 13
Judge Ricardo A. Navidad disbelieved the accused and found them guilty as
charged. As conspirators, they were each sentenced to reclusion perpetua and
held solidarily liable to the complainant for P30,000.00 as civil indemnity,
P22,000.00 as moral damages, P5,000.00 as exemplary damages, and P5,000.00
as attorney's fees. They were also ordered to pay the costs. 14
In the appellants' brief (incorrectly denominated as a Petition for Review), the
defense suggests that the testimony of Sylvia Soria is flawed because she is an
insane person who was confined at the National Mental Hospital a few months
before the alleged incident. 15 It is also argued that her testimony was fabricated
at the instance of her father, who had a bone to pick with Salomon's father. The
appellants insist that their own version of the incident is more plausible and
should not have been rejected by the trial court in view of the constitutional
presumption of innocence in their favor.
A mental retardate is not for this reason alone disqualified from being a witness.
As in the case of other witnesses, acceptance of his testimony depends on its
nature and credibility or, otherwise put, the quality of his perceptions and the
manner he can make them known to the court.16 Thus, in People v. Gerones,17
the Court accepted the testimony of a rape victim notwithstanding that she had
the mentality of a nine or ten-year old "because she was able to communicate her
ordeal... clearly and consistently." In the case of People vs. Rondina, this Court
declared:
The testimony of the offended party herself was especially telling and credible
despite the fact that she was somewhat mentally deficient, as the trial court
noticed. Although she was really of limited intelligence, the complainant
nevertheless did not forget the harrowing experience she suffered during that
frightful night in the bushes when the three men seared her memory with the lust
they forced upon her. The tale she narrated in court was not woven out of sheer
imagination but born in anguish and remembered with pain and as plain an
unembellished as the simple life she led. If she spoke in forthright language at
the trial, it was because she was speaking the truth of that horrible ravishment she
could not push out of her mind.
In the case before us, the trial court noted that although Sylvia's speech was
slurred and it was necessary at times to ask her leading questions, "her testimony
was positive, clear, plain, coherent and credible." Her mental condition did not
vitiate her credibility. We also believe, as we have observed often enough in
many cases 18 that a woman will not expose herself to the humiliation of a rape
trail, with its attendant publicity and the morbid curiosity it will arouse, unless
she has been truly wronged and seeks atonement for her abuse.
The defense points to a supposed hostility between Sylvia's and Salomon's
respective fathers due to a conflict over a piece of land and the administrative
charge Epifanio filed against Restituto when they were both teaching at the local
school. It suggests that this was the reason for Sylvia's false charge against
Salomon, who has simply been caught in the crossfire, as it were, between
Restituto and Epifanio.
The connection is far-fetched. It is unnatural for a parent to use his offspring as
an engine of malice, especially if it will subject a daughter to embarassment and
even stigma, as in this case. There is no evidence that Sylvia's father is an
unnatural parent. Besides, the enmity itself is in the view of the Court not deep
enough to provoke the charge, assuming that Restituto Soria was willing to use
his daughter to falsely accuse his enemy's son. Significantly, the complaint was
filed by Restituto against the son and not the father who was his real adversary.
The lack of a finding of spermatozoa during Sylvia's medical examination did not
conclusively establish an absence thereof because the examining doctor simply
did not have the necessary equipment to make a more thorough report. 19 In fact,
she suggested another examination at the Calbayog General Hospital.20 At any
rate, we have held that the absence of spermatozoa in the complainant's vagina
does not negate the commission of rape; there may be a valid explanation for such
absence, as when the semen may have been washed away or when the rapist failed
to ejaculate.21
The appellants decry the trial judge's conclusion that they had gone to Masbate
to escape, but it appears that this was really their intention. In the first place, it is
not true that they were investigated before they left, for the fact is Salomon's
father stopped the investigation on the ground that there was no lawyer to
represent them.22 It is also noted that Salomon used another name in Masbate
and called himself Boyet instead of Ale, his real nickname.23 Salomon and
Conge traveled from place to place in that province but were not able to buy a
single horse during the four months that they were there. Instead, they used the
P3,000.00 Salomon's father had given them not only for their daily needs but also
"in dancing and drinking," as Conge put it.24 Well indeed has it been said that
"wicked flee when no man pursueth but the innocent are as bold as a lion." The
appellants' trip to Masbate was unmistakably a flight from justice.
And now let us consider the interesting defense of what we may call Sylvia's
"manual rape" for lack of a more descriptive term. Admitting the laceration in
Sylvia's vagina, Salomon nevertheless maintains that it was caused not by his
penis but by Conge's fingers. Conge's purpose was to punish her and to disable
her and thus prevent her from hitting him again.
The trouble with this defense is that it is too comical for words. It looks like a
bawdy-house skit featuring a mad avenger and his naughty fingers. Besides, the
two accused and De Guzman have a confused recollection of how this remarkable
incident happened, the first perhaps in the annals of Philippine jurisprudence.
Conge declared in his affidavit that Sylvia hit him only once and then swore on
direct examination that he was hit twice, whereas both Salomon De Guzman
swore he was hit only once.25 Salomon and Conge said that Sylvia was wearing
pants but De Guzman insisted with equal certainty that it was a skirt.26 Salomon
said Sylvia's pants were pulled down to her knees, but Conge declared that she
was completely disrobed, then said the pants came down only to her ankles.27
Conge first said his fingers were spread when they thrust them inside Sylvia's
vagina but, sensing the trial court's disbelief, recanted and said he put his fingers
together in the shape of a cone before plunging them into Sylvia's bared organ.28
We are satisfied with the findings of the trial court that the appellants, in
conspiracy with each other, committed the crime of rape upon Sylvia Soria, with
Salomon actually violating her as Conge helped restrain her while also
frightening her with his bolo. The crime was committed with force and
intimidation, and worse, against a mental retardate, who fortunately was
nevertheless able to narrate the details of her outrage. The theory of the defense
is absurd. The trial court was correct in rejecting it. The assessment of the
evidence, especially the credibility of the witnesses, is the primary function of
the judge presiding at the trial. We defer to the findings of the trial court in the
case at bar, there being no showing that they were reached without basis.

The Court cannot conclude this opinion without remarking on the extraordinary
lengths to which an accused will go to falsify the truth and evade the sanctions of
the law. The defense in this case is illustrative of such desperation. What the
appellants have not considered is that the Court is not without experience in
detecting falsehood and should not have been expected to be deluded by the
ridiculous story they blandly submitted. Counsel should remember that gullibility
is not one of the traits of this Court.

WHEREFORE, the appeal is DISMISSED. The decision of the trial court is

AFFIRMED, except for the award of moral, exemplary, and actual damages and
attorney's fees, which were disallowed. The civil indemnity is retained at
P30,000.00. Costs against the appellants.

SO ORDERED.

Notes.—If sexual intercourse with a victim under twelve years of age is rape then
it should follow that carnal knowledge with a seventeen year old girl whose
mental capacity is that of a seven year old child would constitute rape (People vs.
Atento, 196 SCRA 357).

The private complainant who is a mental retardate but has the ability to make
perceptions known to others, is a competent witness (People vs. Gerones, 193
SCRA 263). People vs. Salomon, 229 SCRA 403, G.R. No. 96848 January 21,
1994
GR No. L-1709. 8 June 1948

ASCENCION ICUTANIM, petitioner, vs. FERNANDO HERNANDEZ,

Judge of First Instance of Capiz, and DEMETRIO VINSON, Provincial
Fiscal, respondents.

CERTIORARI; EVIDENCE; COMPETENCY OF WITNESS, ERROR AS TO;

APPEAL, CORRECTION BY.—Appeal, and not certiorari, is the proper remedy
for the correction of any error as to the competency of a witness committed by an
inferior court in the course of the trial. Icutanim vs. Hernandez, 81 Phil. 161, No.
L-1709 June 8, 1948

Petitioner is charged with parricide for having killed his child of tender age. At
the trial, the prosecution called to the witness stand his wife who is the mother of
the deceased child. Petitioner objected to his wife testifying against him. The trial
court overruled the objection, on the ground that the crime committed is against
her; and for that reason the rule invoked does not apply (section 26 [d], Rule 123).

Complaining that the overruling of the objection is not only against the law but
also constitutes excess of jurisdiction and a grave abuse of discretion, petitioner
seeks in this Court the annulment of said order and a writ directing the respondent
court to refrain from giving it effect until it hear from this Court as to what it
should do in the premises.

Without going into the merits of the question raised by the petitioner, suffice it
to say that a writ of certiorari lies only when an inferior tribunal exercising
judicial functions has acted without or in excess of its jurisdiction or with grave
abuse of discretion and there is no appeal or other adequate, plain and speedy
remedy in the ordinary course of law. Granting, arguendo, that the ruling of the
respondent court is erroneous, the remedy to correct the mistake is by appeal. To
allow parties litigant to come to this Court for the correction of errors committed
in the course of the trial, which may be done on appeal, would unduly burden this
Court with cases to be brought to it on appeal.

Petition denied, with costs against the petitioner.

GR No. L-25384. October 26, 1973.
JOSE CARANDANG, petitioner, vs. HON. JOSE R. CABATUANDO,
Judge of the Court of Agrarian Relations, Seventh Regional District, Branch
II, the PROVINCIAL SHERIFF OF BATANGAS, and CONSUELO D.
PANDY, respondents.
Certiorari; Special civil action of certiorari confined to questions of arbitrary acts
affecting jurisdiction.— For a writ of certiorari to issue, it must not only be shown
that the board, tribunal or officer acted without or in excess of jurisdiction, or in
grave abuse of jurisdiction, but also that there is no appeal or plain, speedy, and
adequate remedy in the course of law.
Due process; Due process construed.—Due process contemplates notice and
opportunity to be heard before judgment is rendered affecting one’s person or
property.
Self-serving evidence; Interested party’s testimony in court not self-serving.—
Section 18, Rule 130 of the Rules of Court provides that a party or any other
person interested in the outcome of a case may testify. The testimony of an
interested witness should not be rejected on the ground of bias alone, and must
be judged on its own merits, and if such testimony is clear and convincing and
not destroyed by other evidence on record, it may be believed. Neither can said
testimony be said to be self-serving. This Court has said that self-serving
evidence is an evidence made by a party out of court at one time; it does not
include a party’s testimony as a witness in court.
Injunction not proper remedy where event already happened.—The established
principle is that when the event sought to be prevented by injunction or
prohibition has already happened, nothing more could be enjoined or prohibited
because nothing more could be done in reference thereto. Carandang vs.
Cabatuando, 53 SCRA 383, No. L-25384 October 26, 1973
Petitioner Jose Carandang was the caretaker of private respondent Consuelo D.
Pandy's 1.5 hectare of coconut land situated at Puting-Buhangin, San Juan,
Batangas. He had a house inside the landholding. He also owned a parcel of land
adjoining it. On February 21, 1963 respondent Pandy filed a verified petition
(CAR Case No. 866) for ejectment and damages in the Court of Agrarian
Relations of San Pablo alleging that petitioner, in gross violation of the terms and
conditions agreed upon between him and the landowner, had stubbornly refused
and failed to clear the land of bushes and grasses, to take proper care of the
coconut land and improvements thereon, and to perform the necessary work in
accordance with the customs and proven practices in the locality; that petitioner
had been feeding his hogs and chickens with coconuts from the landholding; that
he gathered nuts and sold copra without notifying the respondent; and praying
that petitioner be dismissed as caretaker of the landholding and be ordered to pay
as damages the sum of P370.00, plus attorney's fees.
Petitioner, having been served, on March 8, 1963, with the summons and a copy
of the complaint, and having failed to file his answer, the agrarian court, acting
on the motion filed by respondent, declared petitioner in default and set the
reception of respondent's evidence on July 2, 1963 before the commissioner of
the court.
On March 13, 1964, petitioner filed, through the Office of the Agrarian Counsel,
a verified motion to set aside the order of default, alleging that the failure of
petitioner to file an answer was due to mistake or excusable neglect, and that
petitioner had a valid and meritorious defense, and praying that petitioner be
allowed to file his answer. The court, on April 17, 1964, denied the motion for
failure of movant "to allege either in his motion to set aside order of default or in
his supporting affidavit the facts constituting his alleged valid and meritorious
defense."
After respondent had presented ex parte her evidence, the court rendered its
decision dated October 28, 1964, the dispositive portion of which reads as
follows:
In view of all the foregoing, judgment is hereby rendered:
1. Ordering defendant Jose Carandang to vacate forthwith the landholding of 1.5
hectares owned by plaintiff herein before described subject to the provisions of
Section 22 of Republic Act 1199, as amended;
2. Ordering the defendant to pay plaintiff the sum of P148.00 as damages, with
interest at 6% per annum from the filing of the complaint on February 21, 1963,
until fully paid; and
3. Ordering defendant to pay plaintiff the sum of P250.00 as attorney's fees, plus
the costs of this action.
Petitioner filed on December 24, 1964 a motion for reconsideration of the
decision upon the grounds that the court erred in not lifting the order of default,
and in not determining the value of the labor and expenses in the cultivation in
accordance with the provisions of Section 22 of Republic Act 1199, as amended.
The agrarian court issued, upon motion, an order of execution dated February 26,
1965, but the court later set it aside for the reason that it was first necessary to
determine the indemnification that the defendant was entitled to pursuant to
Section 22 of Republic Act No. 1199, and the court set for hearing the motion for
execution for March 25, 1965.
Petitioner submitted to the court a "bill of accounting", dated March 25, 1965, for
the value of his labor and plantings such as coconut, banana, black pepper,
jackfruit, mango, santol and star apple trees, in the total amount of P9,000.00.
Subsequently, the court ordered an ocular inspection of the landholding involved
to determine the number of coconut trees that were one year, two years, and five
years old. The report of said inspection, dated April 5, 1965, was submitted to the
court.
The court, in its order dated August 4, 1965, acting on the report of the ocular
inspection, written and oral manifestations of respondent, and petitioner's
affidavit regarding the compensation claimed by him for the planting of the
coconuts, considered paragraphs 2 and 3 of the decision satisfied, and directed
the Clerk of Court to issue a writ of execution ordering petitioner to vacate the
landholding.
The writ of execution was served on September 4, 1965 upon herein petitioner
by the Provincial Sheriff.
Upon motion of respondent, dated October 5, 1965, the court, on October 28,
1965, issued an order of demolition, ordering petitioner to remove at his own
expense his house from the landholding in question not later than November 15,
1965, and that should he fail to do so, the Provincial Sheriff of Batangas was
authorized to demolish said house. This order was received by petitioner on
November 24, 1965.
Alleging that the execution of the order of demolition "would work unwarranted
hardship and irreparable damage and injustice upon petitioner who have not been
accorded his day in court and has not been paid the indemnification due him, and
not having any adequate, plain and speedy remedy," the instant petition was filed
on December 2, 1965 praying that a writ of certiorari, prohibition and injunction
be issued, ordering respondent court to desist from further proceedings in the
execution of the decision in CAR case No. 866, enjoining the Provincial Sheriff
from enforcing the writ of execution and order of demolition, and, after hearing
the petition, to declare null and void the proceedings in said case.
In its resolution dated September 6, 1965, this Court ordered respondent to file
their answer to the petition, and upon the posting of a bond, this Court, on
December 16, 1965, restrained the Sheriff from enforcing the writ of execution
and order demolition.
Respondent Consuelo D. Pandy, in her answer, alleged that the order of default
was regularly issued on June 10, 1963 by the trial court; that it was only on March
13, 1964 that petitioner filed a motion to have it set aside; that said motion to set
aside was denied on April 17, 1964, and the motion for reconsideration dated
May 4, 1964 was also denied; that the decision dated October 28, 1964 was
rendered in the valid exercise of the court's jurisdiction; that the motion to
reconsider the same, after having been heard, was denied on February 1, 1965;
that after the denial no action or step was taken by petitioner despite the
availability of remedies provided by law; that the filing by petitioner of the "Bill
of Accounting" indicated unerringly his conformity to the decision insofar as the
same ordered him to vacate the landholding, for in said Bill, he only claimed
indemnification under Section 22 of Republic Act No. 1199; that an ocular
inspection of the landholding was ordered to determine the indemnification due
to petitioner; that petitioner presented no opposition to the report dated April 5,
1965; that petitioner, having been served with the writ of execution on September
4, 1965, made no step to question it; that the court set for hearing the motion for
the order of demolition but petitioner did not appear in said hearing in spite of
having received notice thereof; that the writ of execution had been served on
petitioner and complied with on December 3, 1965, i.e., ten days before
respondent received copy of the petition in the instant case; and that petitioner
has not been deprived of his day in court or of the indemnification due him. As
affirmative defense, respondent alleged that petitioner had no cause of action, for
there was no averment of any irregularity in the proceedings or that the
respondent judge had acted without jurisdiction.
The Provincial Sheriff of Batangas, in his answer, alleged that petitioner's house
had already been demolished on December 4, 1965 by virtue of the trial court's
order dated October 28, 1965.
In his memorandum, counsel for petitioner argued that this is a special civil action
under Rule 65 of the Rules of Court for the purpose of annulling the proceeding
in CAR Case No. 866; that there is a cause of action, as is evident from this
Court's resolution requiring respondents to answer; that petitioner was denied his
day in court when the proper motion to lift the order of default was denied by the
trial court; that the decision was based on incompetent self-serving testimony of
respondent Consuelo D. Pandy, so that the decision of ejectment was a grave
abuse of discretion; that the execution of the decision and the demolition of
petitioner's house on December 4, 1965, even after the instant petition had been
filed and shown to the Sheriff and respondent Pandy, was a violation of the
restraining order issued by this Court; that the trial court abused its discretion
when it refused to adjudicate in whole the indemnification petitioner was entitled
to; that there being palpable excess of authority in depriving petitioner of his
rights and property without due process of law, and the decision dated October
18, 1964 and the order of October 28, 1965, being in their nature interlocutory,
certiorari is the proper remedy.
Petitioner claims that the instant action is a special civil action under Rule 65 of
the Rules of Court. In a certiorari proceeding under section 1, Rule 65, of the
Rules of Court, the court is confined to questions of jurisdiction. The reason is
that the function of the writ of certiorari is to keep an inferior court within its
jurisdiction, to relieve persons from arbitrary acts — that is, of acts which they
have no authority or power in law to perform — of courts and judges, and not to
correct errors of procedure or mistakes in the judge's findings or conclusion
(Bustos vs. Moir and Fajardo, 35 Phil. 415, 417-418; Pacis vs. Averia, L-22526,
November 29, 1966, 18 SCRA 907, 914-915; Albert vs. Court of First Instance
of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 965; Estrada vs. Sto.
Domingo, L-30570, July 29, 1969, 28 SCRA 890, 915). For a writ of certiorari
to issue, it must not only be shown that the board, tribunal or officer acted without
or in excess of jurisdiction, or in grave abuse of jurisdiction, but also that there is
no appeal or other plain, speedy, and adequate remedy in the course of law (Jose
vs. Zulueta, L-16598, May 31, 1961, 2 SCRA 574, 578; Atlas Development and
Acceptance Corporation vs. Gozon, L-21588, July 31, 1967, 20 SCRA 886, 891).
Do the above-mentioned requisites for certiorari obtain in the instant case?
It cannot be seriously contended that the trial court had no jurisdiction over the
subject-matter and the parties in CAR Case No. 866. Petitioner never claimed
such want of jurisdiction either in the court below or in the instant petition. It
cannot be gainsaid that the Court of Agrarian Relations had authority to try and
hear, decide and determine, the aforesaid case and to issue and enforce all its
lawful orders relative to the case.
The question, therefore, to be determined is whether the respondent Court of
Agrarian Relations exceeded its jurisdiction or gravely abused its discretion, and
whether there was no appeal or any plain, speedy and adequate remedy in the
ordinary course of law.
Was there an abuse of discretion on the part of the court when it declared
petitioner in default, and did not lift, upon proper motion, said order? Petitioner
claims there was, when he alleged that he "was not heard, even upon proper
motion to lift the order of default, all had been denied by the respondent judge,
in short he (petitioner) had not been afforded his right to due process of law." The
record belies said claim. The record shows that petitioner had not been deprived
of his right to be heard. The summons and copy of the complaint in CAR Case
No. 866 were served upon petitioner on March 8, 1963. No answer or responsive
pleading had been filed within the reglementary period. The answer should have
been filed within 5 days after service of summons, pursuant to Rule 7 of the Rules
of Court of Agrarian Relations promulgated under the provisions of Section 10
of Republic Act No. 1267, as amended by Section 6 of Republic Act No. 1409.
Having failed to answer, the trial judge, upon motion filed by respondent Pandy,
declared, on June 10, 1963, petitioner in default. The action of the CAR judge
was perfectly legal. Under Rule 20 of the rules of the Court of Agrarian Relations,
the provisions of the rules of court relating to courts of first instance which are
not inconsistent with the rules of the Court of Agrarian Relations are applicable
to cases pending before the agrarian court. Even section 155 of the Agricultural
Land Reform Code (Republic Act No. 3844) provides that the Court of Agrarian
Relations shall have all the powers and prerogatives inherent in, or belonging to,
the Court of First Instance, and it shall be governed by the Rules of Court,
provided that in the hearing, investigation, and determination of any question or
controversy pending before them, the courts, without impairing substantial rights,
shall not be bound strictly by the technical rules of evidence and procedure,
except in expropriation cases.
It cannot be seriously urged that the trial court abused its discretion when after
having declared petitioner in default, it proceeded to receive respondent's
evidence and render judgment granting him such relief as the complaint and the
facts proven warranted. The trial court simply acted in accordance with the
provisions of the rules of court.
The trial court cannot be said to have abused its discretion when it denied on
April 17, 1964, the motion dated March 13, 1964 to lift the order of default, for
neither said motion nor the affidavit supporting it stated facts constituting a valid
and meritorious defense. Section 3, Rule 18, of the new Rules of Court, already
in force as of that date, provided that the motion to set aside the order of default
must show that the failure to answer was due to fraud, accident, mistake, or
excusable neglect and that the movant has a meritorious defense. Anent this
matter it has been held that when a motion to lift the order of default does not
show that the defendant has a meritorious defense and that his failure to answer
the complaint on time is legally excusable, or that anything would be gained by
having the order of default set aside, the denial by the court of the motion to lift
the order of default does not constitute abuse of discretion (Manzanillo vs.
Jaramilla, 84 Phil. 809, 811).
The trial judge likewise legitimately exercised his jurisdiction, when he rendered
the decision dated October 28, 1964, based on respondent's evidence, and when
on February 1, 1965 he denied the motion for reconsideration in open court.
From all the foregoing, it is apparent that herein petition was given notice and
opportunity to be heard before judgment was rendered. He was not denied of his
right to due process of law. Due process contemplates notice and opportunity to
be heard before judgment is rendered affecting one's person or property.
(Macabingkil v. Yatco, L-23174, September 8, 1967, 21 SCRA 150, 157;
Batangas Laguna Tayabas Bus Co. v. Cadiao,
L-28725, March 12, 1968, 22 SCRA 987, 994; Bermejo vs. Barrios, 31 SCRA
764, 775).
Did the trial court commit a grave abuse of discretion when it rendered its
decision based on respondent's evidence on the ground that said evidence was
self-serving? The law itself provides that a party or any other person interested in
the outcome of a case may testify (Section 18, Rule 130, Rules of Court). The
testimony of an interested witness, this Court has said, should not be rejected on
the ground of bias alone, and must be judged on its own merits, and if such
testimony is clear and convincing and not destroyed by other evidence on record,
it may be believed (U.S. vs. Mante, 27 Phil. 134, 138). Neither can said testimony
be said to be self-serving. This Court has said that self-serving evidence is an
evidence made by a party out of court at one time; it does not include a party's
testimony as a witness in court (National Development Co. vs. Workmen's
Compensation Commission, L-21724, April 27, 1967, 19 SCRA 861, 865-866).
Even assuming, arguendo, that the trial judge committed an error in basing his
decision on the testimony of herein respondent, the petitioner had a remedy by
appeal and not by a petition for certiorari. Appeal from the decision of the Court
of Agrarian Relations is provided in Section 156 of the Agricultural Land Reform
Code (Republic Act No. 3844) and Rule 43 of the Rules of Court. Petitioner did
not avail of this remedy. Instead, on December 2, 1965, after the period for appeal
had lapsed, he filed the instant special civil action for certiorari. He cannot now
avail of certiorari. Where petitioner had failed to file a timely appeal from the
trial court's order, he can no longer avail of the remedy of the special civil action
for certiorari in lieu of his lost right of appeal, if there is no error of jurisdiction
committed by the trial court (Mabuhay Insurance & Guaranty, Inc. vs. Court of
Appeals, L-28700, March 30, 1970, 32 SCRA, 245, 252).
Petitioner claims that the trial court abused its discretion by refusing to adjudicate
in whole the indemnification petitioner was entitled to as provided in section 22
of Republic Act No. 1199. It is to be recalled that petitioner, having been declared
in default, did not testify. It was to be expected that there was no evidence to
show that petitioner was entitled to indemnification. Even then the trial judge, in
the interest of justice, set aside the order of execution dated February 26, 1965,
and granted to petitioner herein the benefits of section 22 of Republic Act No.
1199 providing for the payment of indemnification, as is shown by the order
dated March 2, 1965, which recited:
Wherefore, plaintiff's motion for execution is hereby set for hearing on March
25, 1965 at 9:00 o'clock in the morning ... to determine the said indemnification.
Due hearing on the amount of indemnification was held and the court issued an
order, dated April 2, 1965, directing the ocular inspection of the subject
landholding. Petitioner was present at the ocular inspection. The Report, dated
April 5, 1965, on the ocular inspection, determining the number of coconut trees
and their ages, was submitted to the court. Petitioner did not file any objection to
said report. The matter was set for hearing on July 12, 1965, as per notice of
hearing dated June 28, 1965. Petitioner did not appear at the hearing. Another
hearing on the report was set for August 4, 1965, but petitioner again did not
appear. The respondent judge therefore, issued the order of August 4, 1965
awarding petitioner the amount of P173 as the "indemnification he is entitled to
under section 22 of Republic Act No. 1199," and the same time directed the Clerk
of Court to issue a writ of execution covering paragraph 1 of the dispositive
portion of the decision dated October 28, 1964 in the sense that petition herein
was ordered to vacate the subject landholding. The order of the court further
states that the plaintiff (respondent herein) waived her right to the damages
awarded to her in the decision of October 28, 1964 in excess of P173.00. Copy
of this order was received by petitioner's counsel on August 4, 1965. No step was
taken to attack or assail this order of execution, or the sufficiency of the
indemnification. No motion for reconsideration or for new trial to call the
attention of the court to the insufficiency of the indemnification or to the illegality
of the order was ever filed, until 3 months later when the instant petition for
certiorari was filed on December 2, 1965. Such inaction could mean only that
petitioner was completely satisfied with the order of August 4, 1965, otherwise
he could have filed within the reglementary period the necessary motion for
reconsideration or motion for new trial. The decision had become final; execution
followed as a matter of course, and the court cannot be accused of having
exceeded its jurisdiction or gravely abused its discretion in ordering the
execution.
Can the trial court be accused of not having granted the whole indemnity to which issued by the respondent judge. The record shows that the house of herein
petitioner was entitled? The indemnity to the tenant was governed by Section 22 petitioner on the subject landholding was demolished on December 4, 1965, as
of Republic Act No. 1199, as amended, which provides as follows: per Sheriff's Return dated December 7, 1965. The order of this Court restraining
the enforcement of the writ of execution and order of demolition was issued only
(4) The tenant shall have the right to be indemnified for his labor and expenses on December 16, 1965. The demolition, therefore, could not have been made, as
in the cultivation, planting, or harvesting and other incidental expenses for the claimed by petitioner, in violation of the restraining order. The established
improvement of the crop raised in case he is dispossessed of his holdings, whether principle is that when the event sought to be prevented by injunction or
such dismissal is for a just cause or not, provided the crop still exists at the time prohibition has already happened, nothing more could be enjoined or prohibited
of the disposition. because nothing more could be done in reference thereto. (Aragones vs. Subido,
L-24303, September 23, 1968, 25 SCRA 95, 101.)
On the basis of said statutory provision, petitioner, in his "Bill of Accounting",
dated March 25, 1965, which he submitted to the trial court, claimed a total PREMISES CONSIDERED, this action for certiorari with prohibition and
indemnity of P4,000 for various trees, besides coconut trees, namely: coffee, injunction must be dismissed, and the restraining order issued by this Court on
banana, native atis, star apple, Persian atis, black pepper tree, jackfruit, mango December 16, 1965 is ordered lifted. No pronouncement as to costs.
and santol, and P5,000 for his labor for 16 years, making a total of P9,000.00. It
is noteworthy that the aforequoted Section 22 enumerated the indemnity to which It is so ordered.
the tenant is entitled — "for his labor and expenses in the cultivation, planting or
harvesting and other incidental expenses for the improvement of the crop raised."
... The landholding under consideration is a coconut land. The crop raised is
coconut. The tenant is entitled to indemnity for the labor and expenses in the
cultivation, planting or harvesting of the crop raised on the land at the time of
dispossession. The diverse fruit trees other than coconut which petitioner claimed
to have planted were not for the improvement of the crop raised. The law does
not provide indemnity therefor. Thus in Paz vs. Court of Agrarian Relations, L-
12570, April 28, 1962, 4 SCRA 1160, 1162, this Court held that it was an error
for the Court of Agrarian Relations to order a tenant to be indemnified for the
value of fruit trees on the land, this Court saying that Section 22 "does not provide
for indemnity for the value of permanent improvements existing on the land, ...
nor for the expenses in clearing the same upon taking possession thereof
originally by the tenant. ... Such being the case, any award that may be made with
regard to the value of said permanent improvements, or the expenses of clearing
the land, whether fruit land or talahib land, is improper and unauthorized, and so
the court a quo erred in including in the award an indemnity for the items
abovementioned."

From the above discussions it is evident that the trial court committed no abuse
of discretion and it did not exceed its jurisdiction. The remedy of petitioner, if he
was not satisfied with the trial court's decision, was appeal. This petition for
certiorari must necessarily be denied.

In his prayer, petitioner prayed that pending the determination of the merits, the
sheriff be enjoined from enforcing the writ of execution and order of demolition
GR No. L-22995. June 29, 1967.
WILLIAM ADDENBROOK Y BARKER, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
Court of Appeals; Supreme Court; Factual findings.—Credibility of witnesses is
a factual question not reviewable by the Supreme Court.
Evidence; Witnesses; Competency of police investigator to testify on his
findings.—A patrolman, who made an ocular inspection of the place where 'the
vehicular accident occurred, is competent to testify on what he found in such
ocular investigation, that is, on facts derived from his own perception.
Criminal negligence; Motor vehicles; Speeding; Contributory negligence of
victim.—The fact that a pedestrian came into the path of the car suddenly and so
close that the driver could not stop and avoid striking him will not excuse the
driver, where the car was being driven at an unreasonable rate of speed under the
circumstances.
Same; Where driver brought about the emergency.—While generally a driver is
not held accountable just because he failed to take the wisest choice in a sudden
emergency, the rule does not apply where the emergency is of the driver's own
creation or devising. Addenbrook vs. People, 20 SCRA 494, No. L-22995 June
29, 1967
Petition for certiorari to review the decision of the Court of Appeals affirming a
conviction by the Court of First Instance of Manila for homicide through reckless
imprudence upon the petitioner William Addenbrook Y Barker.
The appellate court's decision depicts the facts as follows:
. . . about 3:15 in the afternoon of 9 January 1960, the front bumper of the Stanvac
Service Truck with Plate No. 2740, Manila, 960, while travelling southward
along Marquez de Comillas being driven then by accused William Addenbrook,
and in front of House No. 1010, came into contact with the body of a pedestrian
Wenceslao Risaldo with the result that the latter fell and was taken to the
Philippine General Hospital by accused and his helper in the truck named
Amando Valeriano, but was dead on arrival, it having been found that he had
received abrasions on the left forehead, and contusions with lacerations on the
face, left arm, right thigh, knee joints, and right buttocks and waist and fracture
of the skull, Exh. B, so that the Fiscal filed the present criminal case for homicide
thru reckless imprudence against accused resulting in his conviction. . . .
Upon impact of the van against the victim, the latter fell and rolled to a distance
of fifteen (15) paces, as shown by two (2) sets of bloodstains observed by
patrolman Emilio Guzman in his ocular investigation immediately after the
occurrence of the incident. From these facts, the appellate court found it difficult
to believe that the van was travelling at a slow and reasonable speed. Considering
further that as postulated by the accused himself, his view of the street was partly
blocked by a parked car in front of house No. 1010, Marquez de Comillas, from
behind which the deceased tried to cross the street; and with the added fact that
the appellant did not blow his horn despite the visual obstruction by the parked
car, the Court of Appeals concluded that he failed to observe that reasonable care
required of a driver of a motor vehicle.
Appellant insists that such conclusion is error, and assails the credibility and
competency of witness Guzman.
Credibility of witnesses is a question of fact (Rumbaoa vs. Arzaga, 84 Phil. 812;
Lim vs. Calaguas, 83 Phil. 796) and, therefore, not reviewable by the Supreme
Court. (Abeto vs. People, 90 Phil. 581). The objection to patrolman Guzman's
competency because he was not presented as an expert witness, nor did he see
the incident actually happen, is untenable. What Guzman testified to are what he
saw in his ocular investigation, such as the two (2) sets of bloodstains and the 15
paces distance between them, that were facts derived from his own perception.
The Court of Appeals gave no credence to the claim that the deceased suddenly
darted from behind the parked car. Neither did the trial court do so, considering
the lack of corroboration of petitioner's version, and the circumstance that the
victim, being a grown-up man, and not a child, would not have ignored the noise
of the oncoming vehicle, there being no reason shown for his disregarding the
obvious danger.
At any rate, that the accident could not be avoided because the victim was so
close to the truck when he, as alleged by appellant, suddenly darted across the
street, does not exculpate the accused, since the latter was driving at excessive
speed.
The fact that a pedestrian came into the path of the car suddenly and so close that
the driver could not stop and avoid striking him will not excuse the driver, where
the car was being driven at an unreasonable rate of speed under the
circumstances. (5 Am. Jur. p. 612, sec. 195).
While the general rule is that a driver is not held accountable just because he
failed to take the wisest choice in a sudden emergency, the rule does not apply
where the emergency is of the driver's own creation or devising.

The other assigned errors raise questions of fact and credibility which this Court
is not at liberty to revise.

We, therefore, find no error in the appealed decision, and the same is hereby
affirmed. Costs against appellant, William Addenbrook y Barker. So ordered.
 RULE 130, Sec. 22
DISQUALIFICATION BY REASON OF MARRIAGE
GR No. L-39012, January 31, 1975
AVELINO ORDOÑO, petitioner, vs. HON. ANGEL DAQUIGAN,
Presiding Judge of the Court of First Instance of La Union, Branch I and
CONRADO V. POSADAS, First Assistant Provincial Fiscal of La Union and
the PEOPLE OF THE PHILIPPINES, respondents.
Evidence; Witnesses; Disqualification of witnesses; Wife may testify against
the husband who commits rape against their daughter.—Using the criterion
judiciously enunciated in the Cargill case, it can be concluded that in the law of
evidence the rape perpetrated by the father against his daughter is a crime
committed by him against his wife (the victim’s mother). That conclusion is in
harmony with the practices and traditions of the Filipino family where, normally,
the daughter is close to the mother who, having breast-fed and reared her
offspring, is always ready to render her counsel and assistance in time of need.
Indeed, when the daughter is in distress or suffers moral or physical pain, she
usually utters the word Inay (Mother) before she invokes the name of the Lord.
Ordoño vs. Daquigan, 62 SCRA 270, No. L-39012 January 31, 1975
Avelino Ordoño was charged in the municipal court of San Gabriel, La Union
with having raped his daughter, Leonora, on October 11, 1970. The verified
complaint dated November 7, 1973 was signed by the twenty four year old victim
(Criminal Case No. 104).
In support of that complaint, Catalina Balanon Ordoño, the mother of Leonora,
executed a sworn statement wherein she disclosed that on that same date, October
11th, Leonora had apprised her of the outrage but no denunciation was filed
because Avelino Ordoño threatened to kill Leonora and Catalina (his daughter
and wife, respectively) if they reported the crime to the police.
Catalina Ordoño in her sworn statement further revealed that her husband had
also raped their other daughter, Rosa, on March 25 and April 7, 1973. He was
charged in court with that offense.
Catalina Ordoño said that the rape committed by Avelino Ordoño against
Leonora was mentioned during the investigation and trial of Avelino Ordoño for
the rape committed against Rosa Ordoño. Catalina's statement on this point is as
follows:
Q — Why did you not file the complaint against your husband
concerning the incident involving Leonora Ordoño?
A — We Also narrated the incident during the investigation in the
Fiscal's Office and also when I testified in court in the case of my
daughter Rosa Ordoño but then my daughter Leonora Ordoño was still
in Manila, sir.
During the preliminary investigation of the rape committed against Leonora,
Catalina manifested that she was no longer afraid to denounce Avelino Ordoño
because he was already in jail for having raped Rosa Ordoño.
The case against Avelino Ordoño, where Leonora Ordoño was the complainant,
was elevated to the Court of First Instance of La Union, San Fernando, Branch
(Criminal Case No. 356). On May 29, 1974 the Fiscal presented Catalina Ordoño
as the second prosecution witness. After she had stated her personal
circumstances, the defense counsel objected to her competency. He invoked the
marital disqualification rule found in Rule 130 of the Rules of Court which
provides:
Sec. 20. Disqualification by reason of interest or relationship. — The
following persons cannot testify as to matters in which they are interested,
directly or indirectly, as herein enumerated:
(b) A husband cannot be examined for or against his wife without her
consent; nor a wife for or against her husband without his consent,
except in a civil case by one against the other or in a criminal case for a
crime committed by one against the other;
Counsel claimed that Avelino Ordoño had not consented expressly or impliedly
to his wife's testifying against him.
The trial court overruled the objection. After the denial of Avelino Ordoño's
motion for the reconsideration of the adverse ruling, he filed the instant action for
certiorari and prohibition. He was allowed to sue in forma pauperis.
The issue is whether the rape committed by the husband against his daughter is a
crime committed by him against his wife within the meaning of the exception
found in the marital disqualification rule.
Should the phrase "in a criminal case for a crime committed by one against the
other" be restricted to crimes committed by one spouse against the other, such as
physical injuries, bigamy, adultery or concubinage, or should it be given a
latitudinarian interpretation as referring to any offense causing marital discord?
There is a dictum that "where the marital and domestic relations are so strained
that there is no more harmony to be preserved nor peace and tranquility which
may be disturbed, the reason based upon such harmony and tranquility fails. In
such a case identity of interests disappears and the consequent danger of perjury
based on that identity is non-existent. Likewise, in such a situation, the security
and confidences of private life which the law aims at protecting will be nothing
but ideals which, through their absence, merely leave a void in the unhappy
home" (People vs. Francisco, 78 Phil. 694, 704).
In the Francisco case, the wife, as a rebuttal witness, was allowed to testify
against the husband who was charged with having killed his son and who testified
that it was the wife who killed their son.
We think that the correct rule, which may be adopted in this jurisdiction, is that
laid down in Cargill vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein
the court said:
The rule that the injury must amount to a physical wrong upon the person is too
narrow; and the rule that any offense remotely or indirectly affecting domestic
harmony comes within the exception is too broad. The better rule is that, when
an offense directly attack or directly and vitally impairs, the conjugal relation, it
comes within the exception to the statute that one shall not be a witness against
the other except in a criminal prosecution for a crime committed (by) one against
the other.
Using the criterion thus judiciously enunciated in the Cargill case, it can be
concluded that in the law of evidence the rape perpetrated by the father against
his daughter is a crime committed by him against his wife (the victim's mother).
* their daughter, Leonora.
That conclusion is in harmony with the practices and traditions of the Filipino
family where, normally, the daughter is close to the mother who, having breast-
fed and reared her offspring, is always ready to render her counsel and assistance
in time of need. Indeed, when the daughter is in distress or suffers moral or
physical pain, she usually utters the word Inay (Mother) before she invokes the
name of the Lord.
Thus, in this case, when Avelino Ordoño, after having raped his daughter Leonora
in the early morning of October 11, 1970, tried to repeat the beastly act in the
evening of that date, Leonora shouted "Mother" and, on hearing that word,
Avelino desisted.
That the rape of the daughter by the father, an undeniably abominable and
revolting crime with incestuous implications, positively undermines the
connubial relationship, is a proposition too obvious to require much elucidation.
In Wilkinson vs. People, 282 Pac. 257, it was held that the wife was a competent
witness against the husband in a prosecution for rape committed by the husband
against his stepdaughter, who is the wife's natural daughter because the crime
was "an outrage upon nature in its dearest and tenderest relations as well as a
crime against humanity itself". The court adopted the interpretation that "a
criminal action or proceeding for a crime committed by one against the other"
may refer to a crime where the wife is the individual particularly and directly
injured or affected by the crime for which the husband is being prosecuted (See
Dill vs. People, 19 Colo. 469, 475, 36 Pac. 229, 232).
In State vs. Chambers, 87 Iowa 1, 53 N.W. 1090, it was held under the statutory
provision that husband or wife shall in no case be a witness for or against the
other, except in a criminal proceeding for a crime committed by one against the
other, that the wife was competent to testify against the husband in a case where
he was prosecuted for incest committed against his stepdaughter.
In State vs. Shultz, 177 Iowa 321, 158 N.W. 539, it was held that the wife may
testify against the husband in a case where he was prosecuted for incest
committed against their eleven-year old daughter because incest is a "crime
committed against the wife". (See Owens vs. State, 32 Neb. 167, 49 N.W. 226;
Lord vs. State, 23 N.W. 507, 17 Neb. 526; People vs. Segura, 60 Phil. 933).
The trial court did not err in holding that Catalina Ordoño could testify against
her husband, Avelino Ordoño, in the case where he is being tried for having raped
WHEREFORE, the petition for certiorari and prohibition is dismissed. No costs.
SO ORDERED.
Notes.—Disqualification on account of relationship.—Full credence cannot be
given to a prosecution witness where it appears strange that of the many people
present he alone, a close relative of the deceased, should be presented as
eyewitness to the stabbing. (People vs. Calacola, L-18348, May 31, 1965).
The mere fact that the principal prosecution witnesses were related to the victim
does not prove that they were prejudiced or biased, considering that their
testimonies are clear and convincing and corroborated by other witnesses.
(People vs. Miranda, L-18508, February 29, 1964; People vs. Dajay,L-18509,
February 29, 1964; People vs. Asmawil, L-18761, March 31, 1965; People vs.
Libed, L-20431, June 23, 1965). Ordoño vs. Daquigan, 62 SCRA 270, No. L-
39012 January 31, 1975
GR No. L-568. July 16, 1947 *****
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. JUAN
FRANCISCO, defendant and appellant.
1.CRIMINAL LAW; PARRICIDE; MOTIVE, WHEN UNNECESSARY.—It is
not necessary to prove motive in case the commission of the crime is established
as required by law.
2.ID.; ID.; EVIDENCE; HUSBAND AND WIFE; INCOMPETENCY TO
TESTIFY FOR OR AGAINST EACH OTHER; REASONS FOR.—"The
reasons given by law text-writers and courts why neither a husband nor wife shall
in any case be a witness against the other except in a criminal prosecution for a
crime committed by one against the other have been stated thus: First, identity of
interests; second, the consequent danger of perjury; third, the policy of the law
which deems it necessary to guard the security and confidences of private life
even at the risk of an occasional failure of justice, and which rejects such evidence
because its admission would lead to domestic disunion and unhappines; and,
fourth, because, where a want of domestic tranquility exists, there is danger of
punishing one spouse through the hostile testimony of the other." (70 C. J., 119.)
3.ID.; ID.; ID.; ID.; ID.; EXCEPTIONS; REASONS FOR.—The rule that the
husband and wife cannot testify for or against each other, as all other general
rules, has its own exceptions, both in civil actions between the spouses and in
criminal cases for offenses committed by one against the other. Like the rule
itself, the exceptions are backed by sound reasons which, in the excepted cases,
outweigh those in support of the general rule. For instance, where the marital and
domestic relations are so strained that there is no more harmony to be preserved
nor peace and tranquility which may be disturbed, the reason based upon such
harmony and tranquility fails. In such a case identity of interests disappears and
the consequent danger of perjury based on that identity is non-existent. Likewise,
in such a situation, the security and confidences of private life which the law aims
at protecting will be nothing but ideals which, through their absence, merely leave
a void in the unhappy home.
4.ID.; ID.; ID.; ID.; ID.; WAIVER; CASE AT BAR.—The defendant, who was
accused of killing his son, testifying in his own behalf, not only limited himself
to denying that he was the killer, but went further and added what was really a
new matter consisting in the imputation of the crime upon his wife. Held: That in
giving such testimony, the husband must, in all fairness, be held to have intended
all its natural and necessary consequences. By his said act, the husband—himself
exercising the very right which he would deny to his wife upon the ground of
their marital relations—must be taken to have waived all objection to the latter's
testimony upon rebuttal, even considering that such objection would have been
available at the outset.
5.ID.; ID.; ID.; ID.; ID.; WAIVER, CASES OF, ENUMERATED BY COURTS
AND TEXT-WRITERS NOT EXCLUSIVE.—For obvious reasons neither text-
writers nor the courts have attempted to make an enumeration of all possible cases
of waiver. In the very nature of things, it would be impossible to make a priori
such a complete enumeration and to say that it is exclusive. So long as the
Legislature itself does not make its own statutory and exclusive specification of
cases of such waiver, no complete and exclusive enumeration can, nor should, be
attempted by the courts, for in the absence of such legislation the cases of waiver
will be as indefinite in number as indefinite are and always will be the varying
and unpredictable circumstances surrounding each particular case.
6.ID.; ID.; ID.; REBUTTAL EVIDENCE SECURED TO BOTH STATE AND
ACCUSED.—The right to present rebuttal evidence is secured to the State, no
less than to the accused, by Rule 115, section 3, paragraph (c), the provision
further authorizing the court, in furtherance of justice, to permit one or the other
party to offer "new additional evidence bearing upon the main issue in question."
7.ID.; ID.; MITIGATING CIRCUMSTANCES; ILLNESS DIMINISHING
WILLPOWER; CASE AT BAR.—Whether the accused be considered simpleton
or an eccentric, or the case one of those well-nigh inexplicable phenomena in
human conduct where the judge finds himself at a loss to discover an edequate
motivation for the proven acts of the accused,—indulging all reasonable
intendments in favor of appellant, it was held that when he committed the crime
charged against him he must have been suffering from some illness (of the body,
the mind, the nerves, or the moral faculty) as is contemplated in paragraph 9 of
article 13 of the Revised Penal Code as a mitigating circum-stance, namely, "such
illness of the offender as would diminish the exercise of the will-power of the
offender without however depriving him of consciousness of his acts." People vs.
Francisco, 78 Phil. 694, No. L-568 July 16, 1947
Convicted of the crime of parricide by the Court of First Instance of Mindoro,
Juan Francisco appeals to this Court and asks us to reverse the decision of the
trial court and to acquit him of the crime charged.
On March 4, 1945, defendant, who had been previously arrested on charges of
robbery, was being held as detention prisoner in the municipal jail of Mansalay,
Mindoro. On that date he requested permission from the chief of police, and he
was allowed to go with Sergeant Pacifico Pimentel, who was detailed to guard
him. Upon their reaching the house, the sergeant allowed the prisoner to see his
wife who was at the time in a room of said house, while said sergeant remained
at the foot of the stairs. After a few moments, Pimentel heard the scream of a
woman. Running upstairs, he met defendant's wife running out of the room and
holding her right breast which was bleeding. Still moments later, Pimentel saw
defendant lying down with his little son Romeo, aged one year and a half, on his
breast. Pimentel also found defendant to have a wound in his belly while his child
had a wound in the back. Pimentel found the child dead.
The prosecution, in recommending the imposition of the capital penalty upon the
accused, relies mainly on: (1) the affidavit, Exhibit C (translation, Exhibit C-1),
which is a virtual confession of the accused; (2) Exhibit D, which is the record
made by the justice of the peace of Mansalay of the arraignment of the defendant
upon which the latter entered a plea of guilty; and (3) the rebuttal testimony of
Emilia Taladtad, wife of the appellant.
Exhibit C is an affidavit signed and sworn to by the appellant before the justice
of the peace of Mansalay on March 5, 1945,. Exhibit C-1 is its English translation.
In said affidavit appellant declares that: "I asked permission from the chief of
police so that I may be able to raise my bond and to indicate to me the house of
one Guillermo Gervasio, a policeman, and I was consented and the sergeant of
police accompanied me to my house; that upon arriving at the house, Sgt. Pacifico
Pimentel allowed me to go up in order that I may be able to talk to my wife and
the sergeant of police awaited me in the stairs of the house; when I was in the
house, I remembered what my uncle told me to the effect that he would order
someone to kill me because I am a shame and a dishonor to our family and
suddenly I lost my sense and I thought to myself that if someone would kill me it
would be more preferable for me to kill myself; when I looked at the bed I saw a
scissor near my wife and unconsciously I picked up the said scissor and
immediately stabbed my wife whereupon I looked for my child on the bed and
stabbed him; I killed my son Romeo Francisco whose age is more or less two
years and after that I stabbed myself; after stabbing myself, I heard a shot and the
sergeant of police asked me if I would surrender to him or not; I replied him "yes"
then I lost my consciousness."
Sergeant of Police Pimentel, whose veracity we find in the evidence no reason to
doubt, declared (p. 6, t.s.n., Lunar) that the accused confessed to him that because
he was already tired or disgusted with his life "on account of the accusation of
his father-in-law" against him, he wanted to wipe out his family by stabbing his
wife, his son and himself, and killing the three of them. The same witness also
stated (p. 9, ibid.) that the accused confessed to him that he stabbed his wife, his
child and himself because he was ashamed, as his father-in-law told him that he
should rather die than live in shame for having dishonored the family of his wife.
The voluntariness and spontaniety of the confession contained in Exhibit C was
testified to by the justice of the peace of Mansalay and police sergeant Pimentel,
one Sebastian Punzalan, and the chief of police Alfredo Iwahi; that said justice
of the peace had previously read the contents of the same affidavit to the accused
and that the accused signed without any intimidation having been exerted in the
presence of said justice of the peace; that the accused signed voluntarily in the
session hall of the justice of the peace court in Barrio Paclasan (pp. 26-27, ibid.)
Pimentel testified, upon the same point, that no force was exerted upon appellant
to state what is contained in the affidavit; that he had not maltreated or boxed the
accused as pretended by the latter; that the contents of the exhibit were read to
the accused; that he did not threatened the accused to shoot the latter if he would
not swear to Exhibit C before the justice of the peace, as declared by said accused
(pp. 25-26, ibid.) In this connection we note from the testimony of the accused
himself that on the way to the house of the justice of the peace after the incident,
he was being helped by the chief of police Iwahi when, according to him,
Sergeant Pimentel told him that he was going to swear to the contents of Exhibit
C and that if he would not do so Pimentel would shoot him (p. 17, ibid.); that (the
same accused assured the court) Iwahi treated him well (t.s.n., p. 20, ibid.); and
really from the entire testimony of this accused the good treatment accorded him
by Chief of Police Iwahi is clearly discernible. He was under preventive detention
in the house of Iwahi and it was Iwahi who suggested or told him, after he had
killed and dressed the former's pig, that he bring a kilo of the meat to his
(appellant's) wife (p. 13, ibid.) It was also Iwahi who allowed him to go to his
house on the same occasion for the purposes of the procurement of his bail (p.
13, ibid.).
Under these circumstances, besides the complete absence of proof of any reason
or motive why Pimentel should so threaten the accused, we find the accused's
version incredible. On page 16 of the same transcript, answering a question by
the Court of First Instance, the accused testified that he understands English and
the translation Exhibit C-1 of the affidavit Exhibit C is in that language.
Other indications of appellant's lack of trustworthiness are: While on page 14 of
said transcript he testified that he was the only one who went to the house of his
wife because Pimentel, according to him, remained in the house of Roberto
Magramo, on page 13 he declared that he was accompanied by the sergeant of
police of Mansalay, Pacifico Pimentel to the house of his wife and that the chief
of police ordered Pimentel to so accompany him. Contradicting the same
pretension of his having gone alone to his wife's house is his own testimony on
page 17 of the transcript wherein he assured affirmatively the question of his own
counsel whether Pimentel was the policeman who was with him to guard him on
the occasion of his going to his wife's house; and really, while he imputed upon
his wife the wounding of their child, who died as a consequence thereof, he
admitted that he did not tell this to the justice of the peace of Mansalay (p. 18,
ibid.), and the reason he assigned for this passive conduct on his part to the effect
that he was afraid of Pimentel (p. 19, ibid.) is patently unacceptable, for no motive
whatsoever has been established to make us believe that the accused had reasons
to be so afraid of Pimentel. Appellant's testimony to the effect that Pacifico
Pimentel was testifying against him because Pimentel "being my guard that time
he might be held responsible for allowing me to go alone" (p. 17, ibid.) is
absolutely without merit. This testimony clearly reveals a desire to show that
because Pimentel allowed the accused to go up the house while the former stayed
at the foot of the stairs, said Pimentel would be responsible for what had happened
unless the accused was the one who killed the child and wounded his wife rather
than the wife having accidentally wounded the child and killed him and been
stabbed by the accused, who also stabbed himself. As we said a moment ago, we
do not give any merit to this purpose in testifying against the accused to relieve
himself of all responsibility for what had happened, it would have been more
conducive to this result if Pimentel had testified that it was not the accused, whom
he had allowed to go upstairs unguarded, who was guilty, but his wife, of the
wounding of the child, and that the accused wounded his wife only as the result
of the obfuscation produced by the child's death. And the fact that Pimentel gave
the version which might place no small blame on him for allowing the accused
to go up the house alone, gives special weight to his testimony.
This case, as developed by the evidence for the prosecution, which has not been
destroyed nor enervated by that of the defense, presents a truly strange happening.
But the fact of the commission of the crime of parricide appears to us to have
been established beyond reasonable doubt. As to the reasons impelling the
commission of the act, the case is a strange one and admittedly not common. But
while it is not necessary even to prove motive in case the commission of the crime
is established as required by law (U.S. vs. Ricafor, 1 Phil., 173; U.S. vs. McMann,
4 Phil., 561; U.S. vs. Reyes, 18 Phil., 495; U.S. vs. Balmori and Apostol, 18 Phil.,
578), here we have a case of a crime proven beyond reasonable doubt, not
absolutely without a proven motive, but with proof of a motive testified to by the
accused himself in his confession, strange though it be. But at times "truth is
stranger than fiction," and it so happens here. The law must be applied to the
facts.
We have scanned and searched the evidence and the record diligently for facts
and circumstances which might sufficiently establish insanity or any allied
defense, but we have failed to find them.
As we construe the evidence, we believe that Exhibit C contains the truth, as
narrated by the accused himself who, at the time of making it, must have been
moved only by the determination of a repentant father and husband to
acknowledge his guilt for facts which, though perhaps done under circumstances
productive of a diminution of the exercise of will-power, fell short of depriving
the offender of consciousness of his acts. We will have occasion to further
consider this aspect of the case later.
Exhibit C was signed and sworn to by appellant the day following the fatal event.
Presumably, on making this confession appellant had not yet had time to reflect
upon the consequences of such a confession to himself — egoism was not yet
allowed to operate against the promptings of his conscience. But when on
February 23, 1946 — almost one year after — this man testified in his own
defense in the Court of First Instance, he already had had ample opportunity to
reflect upon those consequences. And what happened? As in similar cases, he
repudiated his confession, and alleged torture and violence to have been exerted
upon his person and his mind in order, so he now pretends, to extract it from him.
As we find the confession to have been given voluntarily, we feel justified in
concluding that its subsequent repudiation by the accused almost a year after must
have been due to his fear of its consequences to himself, which he not improbably
thought might cost him his own life. It was the struggle between the noble and
the ignoble in the man, and the latter, aided by instinct of self-preservation, won.
Defense counsel attacks the value of Exhibit C as evidence of guilt for the reason
that the statements contained therein were not, counsel contends, given
spontaneously but through use of violence and intimidation. He also questions
the admissibility of Exhibit D on the ground that it has not been properly
identified; and, with more vigor and stronger emphasis, he impugns the
admissibility of the testimony of appellant's wife, invoking the provision of
section 26 (d) of Rule 123 prohibiting the wife and the husband from testifying
for or against each other.
As to Exhibit C, this document was sworn to and subscribed by said accused
before the justice of the peace of Mansalay. This official testified that he asked
the prisoner before the latter signed said exhibit whether he understood the
contents thereof, and that said latter answered in the affirmative. The witness
further declared that appellant signed the exhibit voluntarily and that said
appellant said that the said affidavit was his (p. 10, ibid.). There is a total absence
of evidence, besides the testimony of appellant himself, to show that his
statements contained in said exhibit were extracted form him by the use of
violence and intimidation. While we are not unaware of the practice resorted to
by some peace officers of extracting admissions or confessions from persons
accused of crime by the employment of third-degree methods, in the present case
we fail to find from the evidence sufficient proof to destroy the categorical
testimony of the justice of the peace that Exhibit C was signed by appellant
voluntarily and with a full understanding thereof. Furthermore, the statements of
appellant in said Exhibit C were corroborated by the testimony of his wife on
rebuttal. This leads us to the consideration of the admissibility of the wife's
testimony.
The rule contained in section 265 (d) of Rule 123 is an old one. Courts and text-
writers on the subject have assigned as reasons therefor the following: First,
identity of interest; second, the consequent danger of perjury; third, the policy of
the law which deems it necessary to guard the security and confidences of private
life even at the risk of an occasional failure of justice, and which rejects such
evidence because its admission would lead to domestic disunion and
unhappiness; and fourth, because where a want of domestic tranquility exists,
there is danger of punishing one spouse through the hostile testimony of the other.
This has been said in the case of Cargill vs. State (220 Pac., 64; 25 Okl. Cr., 314;
35 A.L.R., 133), thus:
The reasons given by law text-writers and courts why neither a husband nor wife
shall in any case be a witness against the other except in a criminal prosecution
for a crime committed by one against the other have been stated thus: First,
identity of interests; second, the consequent danger of perjury; third, the policy
of the law which deems it necessary to guard the security and confidences of
private life even at the risk of an occasional failure of justice, and which rejects
such evidence because its admission would lead to domestic disunion and
unhappiness; and fourth, because, where a want of domestic tranquility exists,
there is danger of punishing one spouse through the hostile testimony of the other.
(70 C.J., 119.)
However, as all other general rules, this one has its own exceptions, both in civil
actions between the spouses and in criminal cases for offenses committed by one
against the other. Like the rule itself, the exceptions are backed by sound reasons
which, in the excepted cases, outweigh those in support of the general rule. For
instance, where the marital and domestic relations are so strained that there is no
more harmony to be preserved nor peace and tranquility of interests disappears
and the consequent danger of perjury based on that identity is non-existent.
Likewise, in such a situation, the security and confidences of private life which
the law aims at protecting will be nothing but ideals which, through their absence,
merely leave a void in the unhappy home.
At any rate, in the instant case the wife did not testify in the direct evidence for
the prosecution but under circumstances presently to be stated. It will be noted
that the wife only testified against her husband after the latter, testifying in his
own defense, imputed upon her the killing of their son. (p. 15, ibid.) By all rules
of justice and reason this gave the prosecution, which had theretofore refrained
from presenting the wife as a witness against her husband, the right to do so, as
it did in rebuttal; and the the wife herself the right to so testify, at least, in self-
defense, not of course, against being subjected to punishment in that case in
which she was not a defendant but against any or all of various possible
consequences which might flow from her silence, namely: (1) a criminal
prosecution against her which might be instituted by the corresponding
authorities upon the basis of her husband's aforesaid testimony; (2) in the moral
and social sense, her being believed by those who heard the testimony orally
given, as well as by those who may read the same, once put in writing, to be the
killer of her infant child. It has been aptly said that the law of evidence is the law
of common sense. Presuming the husband who so testified against his wife to be
endowed with common sense, he must be taken to have expected that the most
natural reaction which the said testimony would give rise to on the part of the
prosecution, as well as of his wife, was to deny upon rebuttal the new matter
which was involved in the same testimony, namely, the imputation that it was his
wife who killed their little son. Upon the part of the prosecution, because he not
only limited himself to denying that he was the killer, but went further and added
what was really a new matter consisting in the imputation of the crime upon his
wife. And upon the part of the wife, because of the reasons already set forth
above. Hence, in giving such testimony, the husband must, in all fairness, be held
to have intended all its aforesaid natural and necessary consequences. By his said
act, the husband — himself exercising the very right which he would deny to his
wife upon the ground of their marital relations — must be taken to have waived
all objection to the latter's testimony upon rebuttal, even considering that such
objection would have been available at the outset.
At this point, it behooves us to emphasize the all-important role of the State in
this case. The State being interested in laying the truth before the courts so that
the guilty may be punished and the innocent exonerated, must have the right to
offer the rebutting testimony in question, even against the objection of the
accused, because it was the latter himself who gave rise to its necessity. It may
be said that the accused husband thought that he would have more chances of
convincing the court of his pretended innocence if he pointed to his wife as
having caused the death of their child, instead of simply denying that he was the
author of the fatal act. To this we would counter by saying that if he was to be
allowed, for his convenience, to make his choice and thereby impute the act upon
his spouse, justice would be partial and one-sided if both the State and the wife
were to be absolutely precluded from introducing the latter's rebutting testimony.
As well-settled as this rule of marital incompetency itself is the other that it may
be waived.
Waiver of incompetency. — Objections to the competency of a husband or wife
to testify in a criminal prosecution against the other may be waived as in the case
of the other witnesses generally. Thus, the accused waives his or her privilege by
calling the other spouse as a witness for him or her, thereby making the spouse
subject to cross-examination in the usual manner. It is well-established that where
an accused introduces his wife as a witness in his behalf, the state is entitled to
question her as to all matters germane and pertinent to her testimony on direct
examination. It is also true that objection to the spouse's competency must be
made when he or she is first offered as witness, and that the incompetency may
be waived by the failure of the accused to make timely objection to the admission
of the spouse's testimony, although knowing of such incompetency, and the
testimony admitted, especially if the accused has assented to the admission, either
expressly or impliedly. Other courts have held that the witness's testimony is not
admissible even with the other spouse's consent. Clearly, if the statute provides
that a spouse shall in no case testify against the other except in a prosecution for
an offense against the other, the failure of the accused to object does not enable
the state to use the spouse as a witness. (3 Wharton's Criminal Evidence, 11th
Ed., section 1205, pp. 2060-2061.)
Wharton, in note 10 at the foot of page 2060 of the cited volume refers us to
section 1149 appearing on page 1988 of the same volume, dealing with waiver
objection to incompetency of witnesses in general. We transcribe this section for
convenient reference:
Waiver of objection to incompetency. — A party may waive his objection to the
competency of a witness and permit him to testify. A party calling an incompetent
witness as his own waives the incompetency. Also, if, after such incompetency
appears, there is failure to make timely objection, by a party having knowledge
of the incompetency, the objection will be deemed waived, whether it is on the
ground of want of mental capacity or for some other reason. If the objection could
have been taken during the trial, a new trial will be refused and the objection will
not be available on writ of error. If, however, the objection of a party is overruled
and the ruling has been excepted to, the party may thereafter examine the witness
upon the matters as to which he was allowed to testify to without waiving his
objections to the witness's competency. (Ibid., section 1149, p. 1988.)
It will be noted, as was to be expected, that in the last above-quoted section, the
author mentions certain specific cases where the courts concerned hold that there
was waiver, but for obvious reasons neither the author nor said courts have
attempted to make an enumeration of all possible cases of waiver. In the very
nature of things, it would be impossible to make a priori such a complete
enumeration and to say that it is exclusive. So long as the Legislature itself does
not make its own statutory and exclusive specification of cases of such waiver —
and we doubt that it ever will — no complete and exclusive enumeration can, nor
should, be attempted by the courts, for in the absence of such legislation the cases
of waiver will be as indefinite in number as indefinite are and always will be the
varying and unpredictable circumstances surrounding each particular case.
To illustrate, Mr. Wharton says above that the accused waives his or her privilege
by calling the other spouse as a witness for him or her, thereby making the spouse
subject to cross-examination in the usual manner, the reason being that the State
is entitled to question the spouse so presented as to all matters germane and
pertinent to the direct testimony. In the same way, and for a similar reason, when
the herein appellant gave his testimony in question in his defense, the State had
the right to rebut the new matter contained in that testimony consisting in the
imputation upon his wife of the death of the little boy. And that rebuttal evidence,
which was rendered necessary by appellant's own testimony, could be furnished
only by his wife who, as he fully knew, was alone with him and their son at the
precise place and time of the event. This right to rebut is secured to the State, no
less than to the accused, by Rule 115, section 3, paragraph (c), the provision
further authorizing the court, in furtherance of justice, to permit one or the other
party to offer "new additional evidence bearing upon the main issue in question."
So that if the waiver that we here declare to flow from the above-mentioned
testimony of appellant does not happen to be among those which were mentioned
in the cases cited by Mr. Wharton, that is no reason against the existence of said
waiver.
When the husband testified that it was his wife who caused the death of their son,
he could not, let us repeat, justly expect the State to keep silent and refrain from
rebutting such new matter in his testimony, through the only witness available,
namely, the wife; nor could he legitimately seal his wife's lips and thus gravely
expose her to the danger of criminal proceedings against her being started by the
authorities upon the strength and basis of said testimony of her husband, or to
bear the moral and social stigma of being thought, believed, or even just
suspected, to be the killer of her own offspring. A decent respect and considerate
regard for the feelings of an average mother will tell us that such a moral and that when the commission of the act is attended by some mitigating circumstance
social stigma would be no less injurious to her than a criminal punishment. And and there is no aggravating circumstance, and the law prescribes a penalty
if the wife should, in such a case and at such a juncture, be allowed to testify upon composed of two indivisible penalties, the lesser penalty shall be applied; in this
rebuttal, the scope of her testimony should at least be the same as that of her case, in view of the above indicated circumstance and there being no aggravating
husband. This is only simple justice and fairness dictated by common sense. circumstance, the lesser penalty is reclusion perpetua, which was the penalty
Since the husband had testified that it was his wife who caused the death of the correctly applied by the trial court, which penalty, of course, carries with it the
little boy, she should be allowed to say that it was really her husband who did it. accessory penalties provided for in article 41 of the said Code. The accused
We hold that it is not necessary, to justify such rebuttal evidence, and to declare should also be sentenced to indemnify the heirs of the deceased Romeo Francisco
the existence of the waiver upon which it was based, that the wife be in jeopardy in the sum of P2,000, and to pay the costs.
of punishment in the same case by reason of such testimony of her accused
husband. The rule of waiver of objection to the competency of witnesses As above modified, the appealed judgment is affirmed, with costs against
generally does not require this prerequisite in the case between husband and wife. appellant. So ordered.
Rather the rule makes the determination of the question hinge around the
consequences which by common sense, in justice and in fairness, should be
deemed to have been expected by the spouse who first testified naturally to flow
from his act of giving that testimony. At any rate, the trial court not only had the
power to allow the State to utilize the wife as rebuttal witness, but also the
discretion to permit "new additional evidence bearing upon the main issue in
question." But even restricting the wife's testimony to merely contradicting her
husband's version that she was the one who killed their child, there is evidence
beyond reasonable doubt that appellant was the killer. With the testimony of both
spouses upon the point, instead of that of the accused alone, let justice take its
course.

As to Exhibit D, this document was a part of the record of the case in the justice
of the peace of court which was expressly presented by the prosecution as
evidence in the Court of First Instance.

But after all has been said and done, in justice to the accused, we believe that,
whether we are dealing with a simpleton or an eccentric, or we have here one of
those well-nigh inexplicable phenomena in human conduct where the judge finds
himself at a loss to discover an adequate motivation for the proven acts of the
accused, — indulging all reasonable intendments in favor of appellant, we are of
opinion that when he committed the crime charged against him he must have been
suffering from some illness (of the body, the mind, the nerves, or the moral
faculty) as is contemplated in paragraph 9 of article 13 of the Revised Penal Code
as a mitigating circumstance, namely, "such illness of the offender as would
diminish the exercise of the will-power of the offender without however
depriving him of consciousness of his acts."

Article 246 of the Revised Penal Code punishes parricide by the penalty of
reclusion perpetua to death. Article 63, paragraph 3, of the same code, provides
G.R. No. 96602. November 19, 1991
EDUARDO ARROYO, JR., petitioner, vs. COURT OF APPEALS and THE
PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 96715. November 19, 1991
RUBY VERA-NERI, petitioner, vs. THE PEOPLE OF THE PHILIPPINES
and THE HONORABLE COURT OF APPEALS respondents.
Criminal Law; Adultery; Constitutional Law; Right against self-incrimination.—
The Court, in the said Resolution of 24 April 1991, had likewise ruled on the
claim that Mrs. Neri’s constitutional right against self-incrimination had been
disregarded when her admission to her husband in the privacy of their conjugal
home that she had indeed lain with petitioner Arroyo was taken into account by
the trial court. x x x As to the constitutional issue, we held in Gamboa v. Cruz,
(162 SCRA 642 [1988]) that: ‘The right to counsel attaches upon the start of an
investigation, i.e. when the investigating officer starts to ask questions to elicit
information and/or confessions or admissions from respondent-accused.’ (Italics
supplied) In the present case, Dr. Neri was not a peace officer nor an investigating
officer conducting a custodial interrogation, hence, petitioner cannot now claim
that Mrs. Neri’s admission should have been rejected.
Same; Same; Doctrine of pari delicto not applicable.—We turn to the contention
that pari delicto “is a valid defense to a prosecution for adultery and concubinage
and that in such a case ‘it would be only a hypocritical pretense for such spouse
to appear in court as the of fended spouse’.” In the first place, the case cited does
not support petitioner Neri’s position. In the Guinucud case, the Court found that
the complaining husband, by entering into an agreement with his wife that each
of them were to live separately and could marry other persons and by filing
complaint only about a year after discovering his wife’s infidelity, had
“consented to, and acquiesced in the adulterous relations existing between the
accused, and he is, therefore, not authorized by law to institute the criminal
proceedings.” In fine, the Guinucud case refers not to the notion of pari delicto
but to consent as a bar to the institution of the criminal proceedings. In the present
case, no such acquiescence can be implied the accused did not enter into any
agreement with Dr. Neri allowing each other to marry or cohabit with other
persons, and Dr. Neri promptly filed his complaint after discovering the illicit
affair. Moreover, the concept of pari delicto is not found in the Revised Penal
Code, but only in Article 1411 of the Civil Code. The Court notes that Article
1411 of the Civil Code relates only to contracts with illegal consideration.
Evidence; Recantation by witnesses.—Dr. Neri’s manifestation amounts in
effect to an attempted recantation of testimony given by him before the trial court.
It is settled that not all recantations by witnesses should result in the granting of
a new trial. In People v. Follantes and Jacinto, it was held that: “x x x
[R]ecantation by wit nesses called on behalf of the prosecution does not
necessarily entitle defendant to a new trial. The question whether a new trial shall
be granted on this ground depends on all the circumstances of the case, including
tne testimony of the witnesses submitted on the motion for the new trial.
Moreover, recanting testimony is exceedingly unreliable and it is the duty of the
court to deny a new trial where it is not satisfied that such testimony is true x x
x.”
Same; Affidavit of desistance; Pardon by offended spouse.—Petitioner Neri also
contends that Dr. Neri’s affidavit of desistance and the compromise agreement
operate as a pardon meriting a new trial. The Court notes that the cases of People
v. Camara (supra) and Gomez v. Intermediate Appellate Court (supra), were the
very same cases which petitioner Arroyo cited in G.R. No. 96602 which the Court
has already held to be inapplicable in the present case. The rule on pardon is
found in Article 344 of the Revised Penal Code which provides: “ART. 344. x x
x.—The crime of adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse. The offended party cannot institute
criminal prosecution without including both parties if they are both alive, nor in
any case, if he shall have consented or pardoned the offenders. x x x x x x x x x”
While there is a conceptual difference between consent and pardon in the sense
that consent is granted prior to the adulterous act while pardon is given after the
illicit affair, nevertheless, for either consent or pardon to benefit the accused, it
must be given prior to the filing of a criminal complaint. Arroyo, Jr. vs. Court of
Appeals, 203 SCRA 750, G.R. No. 96602, G.R. No. 96715 November 19, 1991
In G.R. No. 96602, the Court summarized the facts of the case in this manner:
Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial
Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and
Eduardo Arroyo committed on 2 November 1982 in the City of Baguio.
Both defendants pleaded not guilty and after trial, the RTC convicted petitioner
and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the Revised
Penal Code.
The essential facts of the case, as found by the trial court and the Court of
Appeals, are as follows:
... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs.
Linda Sare and witness Jabunan, took the morning plane to Baguio. Arriving at
around 11:00 a.m., they dropped first at the house of Mrs. Vera, mother of Ruby
Vera at Crystal Cave, Baguio City then proceeded to the Mines View Park
Condominium of the Neri spouses. At around 7:00 o' clock in the evening,
accused Eduardo Arroyo arrived at the Neris' condominium. Witness opened the
door for Arroyo who entered, he went down to and knocked at the master's
bedroom where accused Ruby Vera Neri and her companion Linda Sare were.
On accused Ruby Vera Neri's request, Linda Sare left the master's bedroom and
went upstairs to the sala leaving the two accused. About forty-five minutes later,
Arroyo Jr. came up and told Linda Sare that she could already come down. Three
of them, thereafter, went up to the sala then left the condominium. (Court of
Appeals Decision, p. 4) 1
Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals'
Decision. Petitioner Ruby Vera Neri also moved for reconsideration or a new
trial, contending that a pardon had been extended by her husband, private
complain ant Dr. Jorge B. Neri, and that her husband had later con traded
marriage with another woman with whom he is presently co-habiting. Both
motions were denied by the Court of Appeals.
Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February
1991 which this court denied in a Resolution dated 24 April 1991.
In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No.
96715) dated 19 February 1991.
Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a
motion dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No.
96715.
On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the
Third Division in accordance with long-stand ing practice of the Court.
On 29 July 1991, the Third Division deliberated upon the case which was then
assigned to the ponente for the writing of the Court's Resolution. 2
On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying
that the case against petitioners be dismissed as he had "tacitly consented" to his
wife's infidelity. 4
Petitioners then filed their respective motions praying for the dismissal or for the
granting of new trial of the case claiming a basis for their motions Dr. Neri's
manifestation. The Solicitor General was then asked to comment on the
manifestation; hi comment was filed with this Court on 18 October 1991. 5
In October 1991, the consolidated cases were, again in accordance with long-
standing practice of the Court, assigned to the First Division upon the assignment
of the ponente to that division. On 4 November 1991, the consolidated cases were
re deliberated upon by the members of the First Division who reached the same
conclusion as the members of the Third Division of the Court.
In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the
following contentions:
1. Dr. Neri's affidavit of desistance which states that the case was filed out of
"pure misunderstanding' raises questions as to the truth of the alleged admission
made by Mrs. Neri;
2. The other prosecution witnesses' corroborative testimonies merely proved the
existence of an illicit affair but not that adultery was committed on the date and
place in question;
3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged
subsequent marriage to another woman which, if proven would preclude either
of the spouses from filing charges of adultery or concubinage against each other.
In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of
Appeals:
1. The Honorable Court of Appeals gravely erred in not granting the motion for
reconsideration and/or new trial of the petitioner;
2. The Honorable Court of Appeals gravely erred by violating the constitutional
rights of petitioner against self-incrimination;
3. The Honorable Court of Appeals erred in failing to take into consideration the
material inconsistencies of the testimony of the complaining witness; and
4. The Honorable Court of Appeals gravely erred in discarding medical testimony
as to the physical impossibility of the petitioner to have committed the crime
charged. 6
The issues in the consolidated cases may be summarized as follows:
1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable
doubts on his credibility;
2. Whether or not Mrs. Neri's constitutional right against self-incrimination had
been violated;
3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing
the criminal complaint on the ground of pari delicto; and
4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a
new trial.
Deliberating on the:
1. Motion for Reconsideration in G.R. No. 96602, the Court believes that
petitioner Arroyo has failed to show any ground that would warrant the Court
reversing its Resolution dated 24 April 1991; and on the
2. Petition for Review docketed as G.R. No. 96715, the Court considers that
petitioner Ruby Vera Neri has failed to show reversible error on the part of the
Court of Appeals in issuing its Decision dated 21 May 1990 and its Resolution,
dated 18 December 1990.
Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the
criminal case on the basis of Dr. Neri's pardon. He, together with petitioner Neri,
now cites the same affidavit in the effort to cast doubts on the credibility of Dr.
Neri's testimony given before the trial court. However, in the Court's Resolution,
dated 24 April 1991, dismissing the Petition for certiorari in G.R. No. 96602, the
Court held that:
It has been our constant holding that:
In certiorari proceedings under Rule 45, the findings of fact of the lower court as
well its conclusions on credibility of witnesses are generally not disturbed, the
question before the court being limited to questions of law (Rule 45, Sec. 2).
Specifically, the conclusions of the trial court on the credibility of witnesses are
given considerable weight, since said court is in the best position to observe the
demeanor, conduct and attitude of witnesses at the trial. (Aguirre v. People, 155
SCRA 337 [1987]; emphasis supplied)
Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage.
Besides, the Court does not believe that such an admission by an unfaithful wife
was inherently improbable or impossible. 7 (Emphasis supplied)
The Court, in the said Resolution of 24 April 1991, had likewise ruled on the
claim that Mrs. Neri's constitutional right against self-incrimination had been
disregarded when her admission to her husband in the privacy of their conjugal
home that she had indeed lain with petitioner Arroyo was taken into account by
the trial court, to wit:
Dr. Jorge Neri was also presented as a witness and he testified that sometime in
December of 1982, he surprised his wife while she was looking at some
photographs in their bedroom in their house in Dasmariñas Village, Makati.
Accused Ruby Vera Neri then turned pale and started for the door. Struck by this
unusual behavior, Dr. Neri started looking around the dressing room and he came
upon a Kodak envelope with film negatives inside. He took the negatives for
printing and a few days later, armed with the photographs which showed his wife
in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was
at this point that Ruby Vera Neri admitted to her husband that Eduardo Arroyo
was her lover and that they went to bed in Baguio on 2 and 3 November 1982.
xxx xxx xxx
As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988])
that:
The right to counsel attaches upon the start of an investigation, i.e., when the
investigating officer starts to ask questions to elicit information and/or confession
or admissions from respondent-accused.(emphasis supplied)
In the present case, Dr. Neri was not a peace officer nor an investigating officer
conducting a custodial interrogation, hence, petitioner cannot now claim that
Mrs. Neri's admission should have been rejected.
In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:
The declaration of an accused expressly acknowledging his guilt of the offense
may be given in evidence against him.
The rule is that any person, otherwise competent as witness, who heard the
confession, is competent to testify as to substance of what he heard if he heard
and understood all of it. An oral confession need not be repeated verbatim, but in
such case it must be given in its substance.
Compliance with the constitutional procedures on custodial investigation is not
applicable to a spontaneous statement, not elicited through questioning, but given
in an ordinary manner, whereby the accused orally admitted having slain the
victim.
We also note that the husband is not precluded under the Rules of Court from
testifying against his wife in criminal cases for a crime committed by one against
the other (Section 22, Rule 129, Revised Rules of Court).
In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's
testimony as he was a competent witness. Neither was said testimony rendered
inadmissible by the constitutional provision on the right to remain silent and the
right to counsel of a "person under investigation for the commission of an
offense."
Petitioner next claims that the trial court erred in convicting him on the basis of
the failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83
SCRA 282 [1978]), it was held that:
We have held that an accused has the right to decline to testify at the trial without
having any inference of guilt drawn from his failure to go on the witness stand.
Thus, a verdict of conviction on the basis, solely or mainly, of the failure or
refusal of the accused to take the witness stand to deny the charges against him
is a judicial heresy which cannot be countenanced. Invariably, any such verdict
deserves to be reserved.
Such situation does not obtain, however, in the case at bar. For while the trial
court took note of the failure of defendant to take the witness stand to deny the
charge against him, the same was not the main reason, much less the sole basis,
of the trial court in holding, as credible the testimony of complainant, and in
ultimately concluding that the crime of rape had been committed by the accused-
appellant. (Emphasis supplied)
Examination of the trial court decision here shows that said failure to testify was
not the sole nor the main basis of the conviction. Aside from accused's failure to
deny Dr. Neri's testimony, the trial court also considered the testimonies of Dr.
Neri and other prosecution witnesses and the photographs of the two accused in
intimate poses (and three of which showed them half naked in bed). 8 (Emphasis
supplied)
We turn to the contention that pari-delicto "is a valid defense to a prosecution for
adultery and concubinage and that in such a case "it would be only a hypocritical
pretense for such spouse to appear in court as the offended spouse." 9
In the first place, the case cited does not support petitioner Neri's position. In the
Guinucud case, the Court found that the complaining husband, by entering into
an agreement with his wife that each of them were to live separately and could
marry other persons and by filing complaint only about a year after discovering
his wife's infidelity, had "consented to, and acquiesced in, the adulterous relations
existing between the accused, and he is, therefore, not authorized by law to
institute the criminal proceedings." In fine, the Guinucud case refers not to the
notion of pari delicto but to consent as a bar to the institution of the criminal
proceedings. In the present case, no such acquiescence can be implied: the
accused did not enter into any agreement with Dr. Neri allowing each other to
marry or cohabit with other persons; and Dr. Neri promptly filed his complaint
after discovering the illicit affair.
Moreover, the concept of pari delicto is not found in the Revised Penal Code, but
only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the
Civil Code relates only to contracts with illegal consideration. 10 The case at bar
does not involve any illegal contract which either of the contracting parties is now
seeking to enforce.
Petitioners also contend that Dr. Neri's manifestation which reads:
2. Even before I filed the complaint in court and before the pardon that I had
extended to my wife and her co-accused, I was in reality aware of what was going
on between and therefore, tacitly consented to my wife's infidelity, ...
should result in the dismissal of the case or, at the very least, in the remand of the
case for new trial claiming that in People v. Camara 11 it was held that "the
consent of the spouse is valid defense to a prosecution for adultery and/or
concubinage." 12
Dr. Neri's manifestation amounts in effect to an attempted recantation of
testimony given by him before the trial court. It is settled that not all recantations
by witnesses should result in the granting of a new trial. 13 In People v. Follantes
and Jacinto, 14 it was held that:
... [R]ecantation by witnesses called on behalf of the prosecution does not
necessarily entitle defendant to a new trial. The question whether a new trial shall
be granted on this ground depends on all the circumstances of the case, including
the testimony of the witnesses submitted on the motion for the new trial.
Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the
court to deny a new trial where it is not satisfied that such testimony is true. ... 15
(Emphasis supplied)
Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's
belated recantation. Dr. Neri had two (2) previous occasions to make the claim
contained in his manifestation: first, in the compromise agreement 16 dated 16
February 1989 submitted before the Regional Trial Court of Makati, Branch 149
in relation to Civil Case No. M-001; and second, his affidavit 17 dated 23
November 1988 submitted to the Court of Appeals. Instead, however, these two
(2) documents merely stated that Dr. Neri had pardoned petitioners 18 and the
complaint was filed out of "pure misunderstanding" 19 without hinting that Dr.
Neri knew of the adulterous relations. It appears to the Court that Dr. Neri's
manifestation was so worded as to attempt to cure the deficiency noted by the
Court in the two (2) previous documents in the disposition of the petition in G.R.
No. 96602:
Petitioner will find no solace in the cases he cites, in support of his prayer to
dismiss the case based on Dr. Neri's pardon. People v. Camara (100 Phil. 1098
(1957) is inapplicable as the affidavit there expressly stated that the wife had
consented to the illicit relationship. In Gomez v. Intermediate Appellate Court
(135 SCRA 620 [1985]) a case involving estafa, the criminal case was dismissed
as the affidavit of desistance specifically stated that the accused had nothing to
do whatsoever with the crime charged. In the present case, the pardon did not
state that Dr. Neri had consented to the illicit relationship petitioner and Mrs.
Neri. Neither did it state that the case was filed against the wrong parties. 20
Moreover, while the manifestation is dated 14 May 1991, which incidentally is
also the date of petitioner Arroyo's motion for reconsideration, it was subscribed
to only on 23 August 1991.
Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the
compromise agreement operate as a pardon meriting a new trial. The Court notes
that the cases of People v. Camara (supra) and Gomez v. Intermediate Appellate
Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No.
96602 which the Court has already held to be inapplicable in the present case.
The rule on pardon is found in Article 344 of the Revised Penal Code which
provides:
ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both
parties, if they are both alive, nor in any case, if he shall have consented or
pardoned the offenders.
While there is a conceptual difference between consent and pardon in the sense
that consent is granted prior to the adulterous act while pardon is given after the
illicit affair, 21 nevertheless, for either consent or pardon to benefit the accused,
it must be given prior to the filing of a criminal complaint. 22 In the present case,
the affidavit of desistance was executed only on 23 November 1988 while the
compromise agreement was executed only on 16 February 1989, after the trial
court had already rendered its decision dated 17 December 1987 finding
petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated
and signed after issuance of our Resolution in G.R. No. 96602 on 24 April 1991.
It should also be noted that while Article 344 of the Revise Penal Code provides
that the crime of adultery cannot be prosecuted without the offended spouse's
complaint, once the complaint has been filed, the control of the case passes to the
public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor
even principally, a matter of vindication of the private honor of the offended
spouse; much less is it a matter merely of personal or social hypocrisy. Such
enforcement relates, more importantly, to protection of the basic social
institutions of marriage and the family in the preservation of which the State has
the strongest interest; the public policy here involved is of the most fundamental
kind. In Article II, Section 12 of the Constitution there is set forth the following
basic state policy:
The State recognizes the sanctity of family life and shall protect find strengthen
the family as a basic autonomous social institution ...
The same sentiment has been expressed in the Family Code o the Philippines in
Article 149:
The family, being the foundation of the ration, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are governed
by law and no custom, practice or agreement destructive of the family shall be
recognized or given effect.
In U.S. v. Topiño, 24 the Court held that:
... The husband being the head of the family and the only person who could
institute the prosecution and control its effects, it is quite clear that the principal
object in penalizing the offense by the state was to protect the purity of the family
and the honor of the husband, but now the conduct of the prosecution, after it is
once commenced by the husband, and the enforcement of the penalties imposed
is also a matter of public policy in which the Government is vitally interested to
the extent of preserving the public peace and providing for the general welfare of
the community. ... 25 (Emphasis supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual
intercourse a month after her ceasarian operation, the Court agrees with the
Solicitor General that this is a question of fact which cannot be raised at this stage.
In any case, we find no reason to overturn the Court of Appeals' finding that "a
woman who has the staying power to volley tennis bags for fifteen minutes at the
[John Hay] tennis court would not be incapable of doing the sexual act" which
ball play was followed, as noted by the Court of Appeals "by a picture taking of
both accused in different intimate poses." 26

ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby

DENIED for lack of merit and this denial is FINAL. The Petition for Review in
G.R. No. 96715 is hereby similarly DENIED for lack of merit. Costs against
petitioners.

Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion
subscribed on 23 August 1991 be forwarded to the Department of Justice for
inquiry into the possible liability of Dr. Neri for perjury.
A.C. No. 5921 March 10, 2006
JUDGE UBALDINO A. LACUROM, Presiding Judge, Regional Trial
Court, Cabanatuan City, Branch 29 and Pairing Judge, Branch 30,
Complainant,
vs.
ATTY. ELLIS F. JACOBA and ATTY. OLIVIA VELASCO-JACOBA,
Respondents.
This administrative case arose from a complaint filed on 22 October 2001 by
Judge Ubaldino A. Lacurom ("Judge Lacurom"), Pairing Judge, Regional Trial
Court of Cabanatuan City, Branch 30, against respondent-spouses Atty. Ellis F.
Jacoba and Atty. Olivia Velasco-Jacoba ("respondents"). Complainant charged
respondents with violation of Rules 11.03,1 11.04,2 and 19.013 of the Code of
Professional Responsibility.
The Facts
The Jacoba-Velasco-Jacoba Law Firm is counsel for plaintiff Alejandro R.
Veneracion ("Veneracion") in a civil case for unlawful detainer against defendant
Federico Barrientos ("Barrientos").4 The Municipal Trial Court of Cabanatuan
City rendered judgment in favor of Veneracion but Barrientos appealed to the
Regional Trial Court. The case was raffled to Branch 30 where Judge Lacurom
was sitting as pairing judge.
On 29 June 2001, Judge Lacurom issued a Resolution ("Resolution") reversing
the earlier judgments rendered in favor of Veneracion.5 The dispositive portion
reads:
WHEREFORE, this Court hereby REVERSES its Decision dated December 22,
2000, as well as REVERSES the Decision of the court a quo dated July 22, 1997.
Furthermore, the plaintiff-appellee Alejandro Veneracion is ordered to CEASE
and DESIST from ejecting the defendant-appellant Federico Barrientos from the
1,000 square meter homelot covered by TCT No. T-75274, and the smaller area
of one hundred forty-seven square meters, within the 1,000 sq.m. covered by TCT
No. T-78613, and the house thereon standing covered by Tax Declaration No.
02006-01137, issued by the City Assessor of Cabanatuan City; and Barrientos is
ordered to pay Veneracion P10,000.00 for the house covered by Tax Declaration
No. 02006-01137.
SO ORDERED.
Veneracion’s counsel filed a Motion for Reconsideration (with Request for
Inhibition)7 dated 30 July 2001 ("30 July 2001 motion"), pertinent portions of
which read:
II. PREPATORY STATEMENT
This RESOLUTION of REVERSAL is an ABHORRENT NULLITY as it is
entirely DEVOID of factual and legal basis. It is a Legal MONSTROSITY in the
sense that the Honorable REGIONAL TRIAL COURT acted as if it were the
DARAB (Dept. of Agrarian Reform ADJUDICATION BOARD)! x x x HOW
HORRIBLE and TERRIBLE! The mistakes are very patent and glaring! x x x
xxxx
III. GROUNDS FOR RECONSIDERATION
1. The Honorable Pairing Court Presiding Judge ERRED in Peremptorily and
Suddenly Reversing the Findings of the Lower Court Judge and the Regular RTC
Presiding Judge:1awph!l.net
x x x The defendant filed a Motion for Reconsideration, and after a very
questionable SHORT period of time, came this STUNNING and SUDDEN
REVERSAL. Without any legal or factual basis, the Hon. Pairing Judge simply
and peremptorily REVERSED two (2) decisions in favor of the plaintiff. This is
highly questionable, if not suspicious, hence, this Motion for Reconsideration.
xxxx
[The Resolution] assumes FACTS that have not been established and presumes
FACTS not part of the records of the case, all "loaded" in favor of the alleged
"TENANT." Clearly, the RESOLUTION is an INSULT to the Judiciary and an
ANACHRONISM in the Judicial Process. Need we say more?
xxxx
4. The Honorable Pairing Court Presiding Judge ERRED in Holding That the
Defendant is Entitled to a Homelot, and That the Residential LOT in Question is
That Homelot:
THIS ERROR IS STUPENDOUS and a real BONER. Where did the Honorable
PAIRING JUDGE base this conclusion? x x x This HORRENDOUS MISTAKE
must be corrected here and now!
xxxx
6. The Honorable Pairing Court Presiding Judge ERRED Grievously in Holding
and Declaring that The [court] A QUO Erroneously Took Cognizance of the Case
and That It Had No Jurisdiction over the Subject-Matter:
Another HORRIBLE ERROR! Even an average Law Student knows that
JURISDICTION is determined by the averments of the COMPLAINT and not
by the averments in the answer! This is backed up by a Litany of Cases!
xxxx
7. FINALLY, the Honorable Pairing Court Presiding Judge Ridiculously ERRED
in Ordering the Defendant To Pay P10,000.00 to the Plaintiff As Payment for
Plaintiff’s HOUSE:
THIS IS the Last STRAW, but it is also the Best ILLUSTRATION of the
Manifold GLARING ERRORS committed by the Hon. Pairing Court Judge.
xxxx
This Order of the Court for the plaintiff to sell his RESIDENTIAL HOUSE to
the defendant for the ridiculously LOW price of P10,000.00 best illustrates the
Long Line of Faulty reasonings and ERRONEOUS conclusions of the Hon.
Pairing Court Presiding Judge. Like the proverbial MONSTER, the Monstrous
Resolution should be slain on sight!8
The 30 July 2001 motion prayed that (1) Judge Lacurom inhibit himself "in order
to give plaintiff a fighting chance" and (2) the Resolution be reconsidered and set
aside.9 Atty. Olivia Velasco-Jacoba ("Velasco-Jacoba") signed the motion on
behalf of the Jacoba-Velasco-Jacoba Law Firm.
On 6 August 2001, Judge Lacurom ordered Velasco-Jacoba to appear before his
sala and explain why she should not be held in contempt of court for the "very
disrespectful, insulting and humiliating" contents of the 30 July 2001 motion.10
In her Explanation, Comments and Answer,11 Velasco-Jacoba claimed that "His
Honor knows beforehand who actually prepared the subject Motion; records will
show that the undersigned counsel did not actually or actively participate in this
case."12 Velasco-Jacoba disavowed any "conscious or deliberate intent to
degrade the honor and integrity of the Honorable Court or to detract in any form
from the respect that is rightfully due all courts of justice."13 She rationalized as
follows:
x x x at first blush, [the motion] really appears to contain some sardonic, strident
and hard-striking adjectives. And, if we are to pick such stringent words at
random and bunch them together, side-by-side x x x then collectively and
certainly they present a cacophonic picture of total and utter disrespect. x x x
xxxx
We most respectfully submit that plaintiff & counsel did not just fire a staccato
of incisive and hard-hitting remarks, machine-gun style as to be called
contumacious and contemptuous. They were just articulating their feelings of
shock, bewilderment and disbelief at the sudden reversal of their good fortune,
not driven by any desire to just cast aspersions at the Honorable Pairing judge.
They must believe that big monumental errors deserve equally big adjectives, no
more no less. x x x The matters involved were [neither] peripheral nor
marginalized, and they had to call a spade a spade. x x x14
Nevertheless, Velasco-Jacoba expressed willingness to apologize "for whatever
mistake [they] may have committed in a moment of unguarded discretion when
[they] may have ‘stepped on the line and gone out of bounds’." She also agreed
to have the allegedly contemptuous phrases stricken off the record.15
On 13 September 2001, Judge Lacurom found Velasco-Jacoba guilty of contempt
and penalized her with imprisonment for five days and a fine of P1,000.16
Velasco-Jacoba moved for reconsideration of the 13 September 2001 order. She
recounted that on her way out of the house for an afternoon hearing, Atty. Ellis
Jacoba ("Jacoba") stopped her and said "O, pirmahan mo na ito kasi last day na,
baka mahuli." (Sign this as it is due today, or it might not be filed on time.) She
signed the pleading handed to her without reading it, in "trusting blind faith" on
her husband of 35 years with whom she "entrusted her whole life and future."17
This pleading turned out to be the 30 July 2001 motion which Jacoba drafted but
could not sign because of his then suspension from the practice of law.18
Velasco-Jacoba lamented that Judge Lacurom had found her guilty of contempt
without conducting any hearing. She accused Judge Lacurom of harboring "a
personal vendetta," ordering her imprisonment despite her status as "senior lady
lawyer of the IBP Nueva Ecija Chapter, already a senior citizen, and a
grandmother many times over."19 At any rate, she argued, Judge Lacurom should
have inhibited himself from the case out of delicadeza because "[Veneracion] had
already filed against him criminal cases before the Office of the City Prosecutor
of Cabanatuan City and before the Ombudsman."20
The records show that with the assistance of counsel Jacoba and the Jacoba-
Velasco-Jacoba Law Firm, Veneracion had executed an affidavit on 23 August
2001 accusing Judge Lacurom of knowingly rendering unjust judgment through
inexcusable negligence and ignorance21 and violating
Section 3(e) of Republic Act No. 3019 ("RA 3019").22 The first charge became
the subject of a preliminary investigation23 by the City Prosecutor of Cabanatuan
City. On the second charge, Veneracion set forth his allegations in a Complaint-
Affidavit24 filed on 28 August 2001 with the Office of the Deputy Ombudsman
for Luzon.
Judge Lacurom issued another order on 21 September 2001, this time directing
Jacoba to explain why he should not be held in contempt.25 Jacoba complied by
filing an Answer with Second Motion for Inhibition, wherein he denied that he
typed or prepared the 30 July 2001 motion. Against Velasco-Jacoba’s statements
implicating him, Jacoba invoked the marital privilege rule in evidence.26 Judge
Lacurom later rendered a decision27 finding Jacoba guilty of contempt of court
and sentencing him to pay a fine of P500.
On 22 October 2001, Judge Lacurom filed the present complaint against
respondents before the Integrated Bar of the Philippines (IBP).
Report and Recommendation of the IBP
Respondents did not file an answer and neither did they appear at the hearing set
by IBP Commissioner Atty. Lydia A. Navarro ("IBP Commissioner Navarro")
despite sufficient notice.28
IBP Commissioner Navarro, in her Report and Recommendation of 10 October
2002, recommended the suspension of respondents from the practice of law for
six months.29 IBP Commissioner Navarro found that "respondents were prone
to us[ing] offensive and derogatory remarks and phrases which amounted to
discourtesy and disrespect for authority."30 Although the remarks were not
directed at Judge Lacurom personally, they were aimed at "his position as a judge,
which is a smack on the judiciary system as a whole."31
The IBP Board of Governors ("IBP Board") adopted IBP Commissioner
Navarro’s Report and Recommendation, except for the length of suspension
which the IBP Board reduced to three months.32 On 10 December 2002, the IBP
Board transmitted its recommendation to this Court, together with the documents
pertaining to the case.
Several days later, Velasco-Jacoba sought reconsideration of the IBP Board
decision, thus:33
xxxx
3. For the information of the Honorable Commission, the present complaint of
Judge Lacurom is sub judice; the same issues involved in this case are raised
before the Honorable Court of Appeals presently pending in CA-G.R. SP No.
66973 for Certiorari and Mandatory Inhibition with TRO and Preliminary
Injunction x x x;
4. We filed an Administrative Case against Judge Lacurom before the Supreme
Court involving the same issues we raised in the aforementioned Certiorari case,
which was dismissed by the Supreme Court for being premature, in view of the
pending Certiorari case before the Court of Appeals;
5. In like manner, out of respect and deference to the Court of Appeals, the
present complaint should likewise be dismissed and/or suspended pending
resolution of the certiorari case by the Court of Appeals.34 (Emphasis supplied)
The Court’s Ruling
On a preliminary note, we reject Velasco-Jacoba’s contention that the present
complaint should be considered sub judice in view of the petition for certiorari
and mandatory inhibition with preliminary injunction ("petition for certiorari")35
filed before the Court of Appeals.
The petition for certiorari, instituted by Veneracion and Velasco-Jacoba on 4
October 2001, seeks to nullify the following orders issued by Judge Lacurom in
Civil Case No. 2836: (1) the Orders dated 26 September 2001 and 9 November
2001 denying respondents’ respective motions for inhibition; and (2) the 13
September 2001 Order which found Velasco-Jacoba guilty of contempt. The
petitioners allege that Judge Lacurom acted "with grave abuse of discretion
[amounting] to lack of jurisdiction, in violation of express provisions of the law
and applicable decisions of the Supreme Court."36
Plainly, the issue before us is respondents’ liability under the Code of
Professional Responsibility. The outcome of this case has no bearing on the
resolution of the petition for certiorari, as there is neither identity of issues nor
causes of action.
Neither should the Court’s dismissal of the administrative complaint against
Judge Lacurom for being premature impel us to dismiss this complaint. Judge
Lacurom’s orders in Civil Case No. 2836 could not be the subject of an
administrative complaint against him while a petition for certiorari assailing the
same orders is pending with an appellate court. Administrative remedies are
neither alternative nor cumulative to judicial review where such review is
available to the aggrieved parties and the same has not been resolved with
finality. Until there is a final declaration that the challenged order or judgment is
manifestly erroneous, there will be no basis to conclude whether the judge is
administratively liable.37
The respondents are situated differently within the factual setting of this case.
The corresponding implications of their actions also give rise to different
liabilities. We first examine the charge against Velasco-Jacoba.
There is no dispute that the genuine signature of Velasco-Jacoba appears on the
30 July 2001 motion. Velasco-Jacoba’s responsibility as counsel is governed by
Section 3, Rule 7 of the Rules of Court:
SEC. 3.Signature and address.—Every pleading must be signed by the party or
counsel representing him x x x.
The signature of counsel constitutes a certificate by him that he has read the
pleading, that to the best of his knowledge, information, and belief there is good
ground to support it, and that it is not interposed for delay.
x x x Counsel who x x x signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein x x x shall be subject to appropriate
disciplinary action. (Emphasis supplied)
By signing the 30 July 2001 motion, Velasco-Jacoba in effect certified that she
had read it, she knew it to be meritorious, and it was not for the purpose of
delaying the case. Her signature supplied the motion with legal effect and
elevated its status from a mere scrap of paper to that of a court document.
Velasco-Jacoba insists, however, that she signed the 30 July 2001 motion only
because of her husband’s request but she did not know its contents beforehand.
Apparently, this practice of signing each other’s pleadings is a long-standing
arrangement between the spouses. According to Velasco-Jacoba, "[s]o implicit is
[their] trust for each other that this happens all the time. Through the years, [she]
already lost count of the number of pleadings prepared by one that is signed by
the other."38 By Velasco-Jacoba’s own admission, therefore, she violated
Section 3 of Rule 7. This violation is an act of falsehood before the courts, which
in itself is a ground
for subjecting her to disciplinary action, independent of any other ground arising
from the contents of the 30 July 2001 motion.39
We now consider the evidence as regards Jacoba. His name does not appear in
the 30 July 2001 motion. He asserts the inadmissibility of Velasco-Jacoba’s
statement pointing to him as the author of the motion.
The Court cannot easily let Jacoba off the hook. Firstly, his Answer with Second
Motion for Inhibition did not contain a denial of his wife’s account. Instead,
Jacoba impliedly admitted authorship of the motion by stating that he "trained his
guns and fired at the errors which he perceived and believed to be gigantic and
monumental."40
Secondly, we find Velasco-Jacoba’s version of the facts more plausible, for two
reasons: (1) her reaction to the events was immediate and spontaneous, unlike
Jacoba’s defense which was raised only after a considerable time had elapsed
from the eruption of the controversy; and (2) Jacoba had been counsel of record
for Veneracion in Civil Case No. 2836, supporting Velasco-Jacoba’s assertion
that she had not "actually participate[d]" in the prosecution of the case.
Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying that
Judge Lacurom await the outcome of the petition for certiorari before deciding
the contempt charge against him.41 This petition for certiorari anchors some of
its arguments on the premise that the motion was, in fact, Jacoba’s handiwork.42
The marital privilege rule, being a rule of evidence, may be waived by failure of
the claimant to object timely to its presentation or by any conduct that may be
construed as implied consent.43 This waiver applies to Jacoba who impliedly
admitted authorship of the 30 July 2001 motion.
The Code of Professional Responsibility provides:
Rule 11.03.—A lawyer shall abstain from scandalous, offensive or menacing
language or behavior before the Courts.

Rule 11.04.—A lawyer shall not attribute to a Judge motives not supported by
the record or have no materiality to the case.
No doubt, the language contained in the 30 July 2001 motion greatly exceeded
the vigor required of Jacoba to defend ably his client’s cause. We recall his use
of the following words and phrases: abhorrent nullity, legal monstrosity,
horrendous mistake, horrible error, boner, and an insult to the judiciary and an
anachronism in the judicial process. Even Velasco-Jacoba acknowledged that the
words created "a cacophonic picture of total and utter disrespect."44
Respondents nonetheless try to exculpate themselves by saying that every remark
in the 30 July 2001 motion was warranted. We disagree.
Well-recognized is the right of a lawyer, both as an officer of the court and as a
citizen, to criticize in properly respectful terms and through legitimate channels
the acts of courts and judges.45 However, even the most hardened judge would
be scarred by the scurrilous attack made by the 30 July 2001 motion on Judge
Lacurom’s Resolution. On its face, the Resolution presented the facts correctly
and decided the case according to supporting law and jurisprudence. Though a
lawyer’s language may be forceful and emphatic, it should always be dignified
and respectful, befitting the dignity of the legal profession.46 The use of
unnecessary language is proscribed if we are to promote high esteem in the courts
and trust in judicial administration.47
In maintaining the respect due to the courts, a lawyer is not merely enjoined to
use dignified language but also to pursue the client’s cause through fair and
honest means, thus:
Rule 19.01.—A lawyer shall employ only fair and honest means to attain the
lawful objectives of his client and shall not present, participate in presenting or
threaten to present unfounded criminal charges to obtain an improper advantage
in any case or proceeding.
Shortly after the filing of the 30 July 2001 motion but before its resolution, Jacoba
assisted his client in instituting two administrative cases against Judge Lacurom.
As we have earlier noted, Civil Case No. 2836 was then pending before Judge
Lacurom’s sala. The Court’s attention is drawn to the fact that the timing of the
filing of these administrative cases could very well raise the suspicion that the
cases were intended as leverage against Judge Lacurom.
Respondent spouses have both been the subject of administrative cases before
this Court. In Administrative Case No. 2594, we suspended Jacoba from the
practice of law for a period of six months because of "his failure to file an action
for the recovery of possession of property despite the lapse of two and a half years
from receipt by him of P550 which his client gave him as filing and sheriff’s
fees."48 In Administrative Case No. 5505, Jacoba was once again found remiss
in his duties when he failed to file the appellant’s brief, resulting in the dismissal
of his client’s appeal. We imposed the penalty of one year suspension.49
As for Velasco-Jacoba, only recently this Court fined her P5,000 for appearing
in barangay conciliation proceedings on behalf of a party, knowing fully well the
prohibition contained in Section 415 of the Local Government Code.50
In these cases, the Court sternly warned respondents that a repetition of similar
acts would merit a stiffer penalty. Yet, here again we are faced with the question
of whether respondents have conducted themselves with the courtesy and candor
required of them as members of the bar and officers of the court. We find
respondents to have fallen short of the mark.
WHEREFORE, we SUSPEND Atty. Ellis F. Jacoba from the practice of law for
two (2) years effective upon finality of this Decision. We also SUSPEND Atty.
Olivia Velasco-Jacoba from the practice of law for two (2) months effective upon
finality of this Decision. We STERNLY WARN respondentsthat a repetition of
the same or similar infraction shall merit a more severe sanction.
Let copies of this Decision be furnished the Office of the Bar Confidant, to be
appended to respondents’ personal records as attorneys; the Integrated Bar of the
Philippines; and all courts in the country for their information and guidance.
SO ORDERED.
GR No. 22948. March 17, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, vs.
FAUSTO V. CARLOS, defendant and appellant.
1.CRIMINAL PROCEDURE; EVIDENCE; HUSBAND AND WIFE;
PRIVILEGED COMMUNICATION.—Where a privileged communication from
one spouse to the other comes into the hands of a third party, without collusion
or voluntary disclosure on the part of either of the spouses, the privilege is thereby
extinguished and the communication, if otherwise competent, becomes
admissible in evidence.
2.ID.; ID.; DOCUMENTS OBTAINED BY ILLEGAL SEARCHES.—The rule
laid down by the United States Supreme Court in the cases of Boyd and Boyd vs.
United States (116 U. S., 616) and Silverthorne Lumber Co. and Silverthorne vs.
United States (251 U. S., 385) in regard to evidence obtained by illegal searches,
discussed.
3.ID. ; ID. ; LETTERS BETWEEN HUSBAND AND WIFE.—A letter written
by a wife to her husband is incompetent as evidence in a criminal case against
the latter where there is no indication of assent on his part to the statements
contained in the letter. The letter may, however, be admissible to impeach the
testimony of the wife if she goes upon the witness-stand in the trial of the case.
People vs. Carlos, 47 Phil. 626, No. 22948 March 17, 1925
This is an appeal from a decision of the Court of First Instance of the City of
Manila finding the defendant Fausto V. Carlos guilty of the crime of murder and
sentencing him to suffer life imprisonment, with the accessory penalties
prescribed by law and with the costs.
It appears from the evidence that the victim of the alleged murder, Dr. Pablo G.
Sityar, on March 3, 1924, in Mary Chiles Hospital, performed a surgical
operation upon the defendant's wife for appendicitis and certain other ailments.
She remained in the hospital until the 18th of the same month, but after her release
therefrom she was required to go several times to the clinic of Doctor Sityar at
No. 40 Escolta, for the purpose of dressing the wounds caused by the operation.
On these occasions she was accompanied by her husband, the defendant. The
defendant states that on one of the visits, that of March 20, 1924, Doctor Sityar
sent him out on an errand to buy some medicine, and that while defendant was
absent on this errand Doctor Sityar outraged the wife. The defendant further states
that his wife informed him of the outrage shortly after leaving the clinic.
Notwithstanding this it nevertheless appears that he again went there on March
28th to consult the deceased about some lung trouble from which he, the
defendant, was suffering.. He was given some medical treatment and appears to
have made at least one more visit to the clinic without revealing any special
resentment.
On May 12, 1924, the defendant, suffering from some stomach trouble, entered
the Philippine General Hospital where he remained until May 18, 1924, and
where he was under the care of two other physicians. While in the hospital her
received a letter (Exhibit 5) from Doctor Sityar asking the immediate settlement
of the account for the professional services rendered his wife. Shortly after his
release from the hospital the defendant sought an interview with Doctor Sityar
and went to the latter's office several times without finding him in. On one of
these occasions he was asked by an employee of the office, the nurse Cabañera,
if he had come to settle his account, to which the defendant answered that he did
not believe he owed the doctor anything.
In the afternoon of May 26th the defendant again went to the office of the
deceased and found him there alone. According to the evidence of the
prosecution, the defendant then, without any preliminary quarrel between the
two, attacked the deceased with a fan-knife and stabbed him twice. The deceased
made an effort to escape but the defendant pursued him and overtaking him in
the hall outside the office, inflicted another wound upon him and as a
consequence if the three wounds he died within a few minutes. The defendants
made his escape but surrendered himself to the Constabulary at Malolos,
Bulacan, in the evening of the following day.
The defendant admits that he killed the deceased but maintains that he did so in
self-defense. He explains that he went to Doctor Sityar's office to protest against
the amount of the fee charged by the doctor and, in any event, to ask for an
extension of the time of payment; that during the conversation upon that subject
the deceased insulted him by telling him that inasmuch as he could not pay the
amount demanded he could send his wife to the office as she was the one treated,
and that she could then talk the matter over with the decease; that this statement
was made in such an insolent and contemptuous manner that the defendant
became greatly incensed and remembering the outrage committed upon his wife,
he assumed a threatening attitude and challenged the deceased to go downstairs
with him and there settle the matter; that the deceased thereupon took a pocket-
knife from the center drawer of his desk and attacked the defendant, endeavoring
to force him out of the office; that the defendant, making use of his knowledge
of fencing, succeeded in taking the knife away from the deceased and blinded by
fury stabbed him first in the right side of the breast and then in the epigastric
region, and fearing that the deceased might secure some other weapon or receive
assistance from the people in the adjoining room, he again stabbed him, this time
in the back.
The defendant's testimony as to the struggle described is in conflict with the
evidence presented by the prosecution. But assuming that it is true, it is very
evident that it fails to establish a case of self-defense and that, in reality, the only
question here to be determined is whether the defendant is guilty of murder or of
simple homicide.
The court below found that the crime was committed with premeditation and
therefore constituted murder. This finding can only be sustained by taking into
consideration Exhibit L, a letter written to the defendant by his wife and siezed
by the police in searching his effects on the day of his arrest. It is dated May 25,
1924, two days before the commission of the crime and shows that the writer
feared that the defendant contemplated resorting to physical violence in dealing
with the deceased.
Counsel for the defendant argues vigorously that the letter was a privileged
communication and therefore not admissible in evidence. The numerical weight
of authority is, however, to the effect that where a privileged communication
from one spouse to another comes into the hands of a third party, whether legally
or not, without collusion and voluntary disclosure on the part of either of the
spouses, the privilege is thereby extinguished and the communication, if
otherwise competent, becomes admissible. (28 R.C.L., 530 and authorities there
cited.) Such is the view of the majority of this court.
Professor Wigmore states the rule as follows:
For documents of communication coming into the possession of a third person, a
distinction should obtain, analogous to that already indicated for a client's
communications (ante, par. 2325, 2326); i. e., if they were obtained from the
addressee by voluntary delivery, they should still be privileged (for otherwise the
privilege could by collusion be practically nullified for written communications);
but if they were obtained surreptitiously or otherwise without the addressee's
consent, the privilege should cease. (5 Wigmore on Evidence, 2nd ed., par. 2339.)
The letter in question was obtained through a search for which no warrant appears
to have been issued and counsel for the defendant cites the causes of Boyd and
Boyd vs. United States (116 U.S., 616) and Silverthorne Lumber Co. and
Silverthorne vs. United States (251 U.S., 385) as authority for the proposition that
documents obtained by illegal searches of the defendant's effects are not
admissible in evidence in a criminal case. In discussing this point we can do not
better than to quote Professor Wigmore:
The foregoing doctrine (i. e., that the admissibility of evidence is not affected by
the illegality of the means through which the party has been enabled to obtain the
evidence) was never doubted until the appearance of the ill-starred majority
opinion of Boyd vs. United States, in 1885, which has exercised unhealthy
influence upon subsequent judicial opinion in many States.
The progress of this doctrine of Boyd vs. United States was as follows: (a) The
Boyd Case remained unquestioned in its own Court for twenty years; meantime
receiving frequent disfavor in the State Courts (ante, par. 2183). (b) Then in
Adams vs. New York, in 1904, it was virtually repudiated in the Federal Supreme
Court, and the orthodox precedents recorded in the State courts (ante, par. 2183)
were expressly approved. (c) Next, after another twenty years, in 1914 — moved
this time, not by erroneous history, but by misplaced sentimentality — the
Federal Supreme Court, in Weeks vs. United States, reverted to the original
doctrine of the Boyd Case, but with a condition, viz., that the illegality of the
search and seizure should first have been directly litigated and established by a
motion, made before trial, for the return of the things seized; so that, after such a
motion, and then only, the illegality would be noticed in the main trial and the
evidence thus obtained would be excluded. ... (4 Wigmore on Evidence, 2nd ed.,
par. 2184.)
In the Silverthorne Lumber Co. case the United States Supreme Court adhered to
its decision in the Weeks Case. The doctrine laid down in these cases has been
followed by some of the State courts but has been severely criticized and does
not appear to have been generally accepted. But assuming, without deciding, that
it prevails in this jurisdiction it is, nevertheless, under the decisions in the Weeks
and Silverthorne cases, inapplicable to the present case. Here the illegality of the
search and seizure was not "directly litigated and established by a motion, made
before trial, for the return of the things seized."
The letter Exhibit L must, however, be excluded for reasons not discussed in the
briefs. The letter was written by the wife of the defendant and if she had testified
at the trial the letter might have been admissible to impeach her testimony, but
she was not put on the witness-stand and the letter was therefore not offered for
that purpose. If the defendant either by answer or otherwise had indicated his
assent to the statements contained in the letter it might also have been admissible,
but such is not the case here; the fact that he had the letter in his possession is no
indication of acquiescence or assent on his part. The letter is therefore nothing
but pure hearsay and its admission in evidence violates the constitutional right of
the defendant in a criminal case to be confronted with the witnesses for the The sentence appealed from is therefore modified by reducing the penalty to
prosecution and have the opportunity to cross-examine them. In this respect there fourteen years, eight months and one day of reclusion temporal, with the
can be no difference between an ordinary communication and one originally corresponding accessory penalties and with the costs against the appellant. So
privileged. ordered.

The question is radically different from that of the admissibility of testimony of

a third party as to a conversation between a husband and wife overheard by the
witness. Testimony of that character is admissible on the ground that it relates to
a conversation in which both spouses took part and on the further ground that
where the defendant has the opportunity to answer a statement made to him by
his spouse and fails to do so, his silence implies assent. That cannot apply where
the statement is contained in an unanswered letter.

The Attorney-General in support of the contrary view quotes Wigmore, as

follows:

. . . Express communication is always a proper mode of evidencing knowledge

or belief. Communication to a husband or wife is always receivable to show
probable knowledge by the other (except where they are living apart or are not in
good terms), because, while it is not certain that the one will tell the other, and
while the probability is less upon some subjects than upon others, still there is
always some probability, — which is all that can be fairly asked for admissibility.
... (1 Wigmore, id., par. 261.)

This may possibly be good law, though Wigmore cites no authority in support of
his assertion, but as far as we can see it has little or nothing to do with the present
case.

As we have already intimated, if Exhibit L is excluded, there is in our opinion not

sufficient evidence in the record to show that the crime was premeditated.

The prosecution maintains that the crime was committed with alevosia. This
contention is based principally on the fact that one of the wounds received by the
deceased showed a downward direction indicating that the deceased was sitting
down when the wound was inflicted. We do not think this fact is sufficient proof.
The direction of the wound would depend largely upon the manner in which the
knife was held.

For the reasons stated we find the defendant guilty of simple homicide, without
aggravating or extenuating circumstances.
GR No. 10396. July 29, 1915
THE UNITED STATES, plaintiff and appellee, vs. TERESA
CONCEPCION, defendant and appellant.
1.OPIUM; ILLEGAL POSSESSION OF OPIUM; ANIMUS POSSIDENDI.—
The house of R, the husband of the defendant, was searched for opium. During
the search R told the defendant to take from the bed a can alleged to contain
opium, and throw it away. She went to the bed, found the can, and at that moment
was discovered by the policeman. She denied prior knowledge of the existence
of the can. This f act was supported by the declara-tion of her husband. There
was no proof that she used opium in any form. Held: That the proof was not
sufficient to support the charges of the complaint.
2.WITNESSES; COMPETENCY; HUSBAND OR WIFE.—A husband cannot
be examined for or against his wife, without her consent; nor a wife for or against
her husband, without his consent; nor can either, during the marriage, or
afterwards, be, without the consent of the other, examined as to any
communication made by one to the other during the marriage; but this exception
does not apply to a civil action or proceeding by one against the other, or to a
criminal action or proceeding for a crime committed by one against the other.
(Par. 3, sec. 383, Act No. 190; sec. 58, General Orders No. 58.) At the common
law the rule was that the husband and wife could not testify for or against the
other, in any criminal proceedings, except in the prosecution of one for criminal
injury to the other. The rule is based-upon considerations of public policy,
growing out of the marital relation. To allow one to testify for or against the other
would be to subject him or her to great temptation to commit perjury and to
endanger the harmony and confidence of the marital relation.
3.ID.; ID.; ID.; DECLARATION MADE IN ANOTHER CASE.—R declared in
a criminal action against himself. Later, in a criminal action against C, said
declaration was presented as proof and accepted, over the objection of C. No
proof was offered to show that R was not still alive. Said declarations are not only
not admissible by virtue of the provisions of section 383 of Act No. 190 and
section 58 of General Orders No. 58, but also by virtue of the provisions of
paragraph 2 of section 5 of the Act of Congress of July 1, 1902. C, the defendant,
was not given an opportunity "to meet the witness face to face." The acceptance
of the testimony of her husband, E, given in another case, was in absolute
violation of her rights, and in direct contravention of the law. THE UNITED
STATES vs. CONCEPCION, 31 Phil. 182, No. 10396 July 29, 1915
The defendant was charged with a violation of the Opium Law. The complaint
alleged that she had in her possession and under her control a quantity of opium.
She was arrested, arraigned, pleaded not guilty, tried, found guilty, and sentenced
to pay a fine of P300 and costs.
From that sentence she appealed to this court. In this court she alleges that the
lower court committed several errors, both of law and of fact. Upon the question
of fact, she alleges that the lower court committed an error in deciding that the
evidence adduced during the trial of the cause was sufficient to show that she was
guilty of the crime charged beyond a reasonable doubt.
Upon that question the Attorney-General, in a carefully prepared brief in which
he analyzes the proof, reaches the conclusion that the facts are insufficient to
show that she is guilty of the crime charged.
It appears from the evidence that on the night of the 2nd of December, 1913,
several policemen went to the house of the defendant, where she was living with
her husband, Felix Ricablanca. Upon arriving there, they obtained permission to
enter and immediately proceeded to make a search of the premises for opium.
While there is some dispute concerning the fact, we believe the proof shows that
the defendant, during the time the policemen were searching the house, went to
a bed located in the house, after being so ordered by her husband, and took from
beneath a pillow a small can of opium, said to contain about 7½ grams of opium,
and attempted to throw it away. At that moment the policemen took possession
of the can. There is some conflict in the proof as to just what took place at that
moment. That the policemen inquired to whom the opium belonged is not denied.
The conflict arises in the answer which was given to that question. The defendant
in the present case, according to some of the witnesses, declared that it belonged
to her. Her husband, Felix Ricablanca, according to some witnesses, declared that
he was the owner of the house and was responsible for everything that was found
within it. The policemen, at that moment, evidently believed that the opium
belonged to the husband, Felix Ricablanca, for the reason that they arrested him
and took him to the pueblo, and later filed a complaint against him for a violation
of the Opium Law .He was later brought to trial and was acquitted.
No complaint was presented against the present defendant until after a period of
more than ten months had elapsed. The policemen who were present at the time
the opium was found certainly knew no more about the facts at the time the
complaint was presented against the present defendant than they did on the night
when the opium was found and when they arrested her husband. The fact that the
defendant took the opium from under the pillow on the bed, at the request of her
husband, seems to us to be entirely supported by the proof. Her husband was a
confirmed user of opium. He admitted that he was in the habit of smoking opium.
That the defendant was temporarily in possession of the opium is not denied, even
by her. That her possession was such a possession as is prohibited by the law, she
strongly denies. The mere fact that she had in her possession the opium for but a
moment and took possession of it under her husband's order, is not, in our
opinion, such a possession of opium as is intended to be condemned by the law.
She certainly did not intend, even remotely, to have in her possession opium. She
did exactly what any other faithful wife would have done under similar
circumstances. There is no proof that she was a user of opium in any form. There
is no proof that she knew that the can contained opium and consequently there is
no proof of the animus possidendi. In the absence of such proof there can be no
conviction under the complaint for the illegal possession of opium.
The appellant makes another assignment of error which presents an important
question of law. She alleges that the lower court committed an error in permitting
the testimony of her husband to be presented against her over her objection. She
alleges that the admission of that testimony was in violation of paragraph 3 of
section 383 of the Code of Civil Procedure in Civil Actions. Said paragraph
provides: "A husband can not be examined for or against her husband without his
consent; nor a wife for or against her husband without her consent; nor can either,
during the marriage or afterwards, be, without the consent of the other, examined
as to any communication made by one to the other during the marriage; but this
exception does not apply to a civil action or proceeding by one against the other,
or to a criminal action or proceeding for a crime committed by one against the
other."
It will be noted that said action prohibits a husband from giving testimony against
his wife without her consent, except in a civil action between husband and wife,
and in a criminal action when the crime was committed by one against the other.
The present is not a civil action between husband and wife, neither it is a criminal
action where the crime was committed by one against the other. It would seem to
clear, therefore, that the testimony of the husband is not admissible if the wife
objected. The testimony of the husband should not have been admitted.
witness. His testimony is not only not admissible under the provisions above
quoted of section 383, but it is not admissible under the Philippine Bill, which
provides: "In all criminal prosecutions the accused shall enjoy the right to be
heard by himself and counsel, to demand the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the witnesses face to face,
and to have compulsory process to compel the attendance of witnesses in his
behalf."
The defendant was not given an opportunity "to meet the witness face to face."
The acceptance of the testimony of her husband, given in another case, was in
absolute violation of her rights and in direct contravention of the law .The
presentation and acceptance of the testimony of the husband violated two well-
recognized rules of law — first, paragraph 3 of section 383 of Act No. 190, and
[second], paragraph 2 of section 5 of the Act of Congress of July 1, 1902.
At the common law the rule was that husband and wife could not testify for or
against each other in any criminal proceedings, except in the prosecution of one
for criminal injury to the other. The common-law rule has been adopted in
practically all of the States of the United States. The rule is based upon
considerations of public policy growing out of the marital relation. To allow one
to testify for or against the other would be to subject him or her to great temptation
to commit perjury and to endanger the harmony and confidence of the marital
relation. The cases supporting the rule are innumerable.
For the foregoing reasons, the sentence of conviction must be revoked, and it is
hereby ordered and decreed that the complaint be dismissed and the defendant
discharged from the custody of the law, with costs de oficio. So ordered.

There still another objection to the admissibility of the testimony of the husband.
His testimony was not given in the present case. It was a copy of his declaration
given in another case, in which he was the defendant and in which he was charged
with the illegal possession of the opium in question. It will be remembered that
at the time the opium was found in the house of the defendant, the husband of the
present defendant was arrested; that later a complaint was presented against him.
During the trial he testified in his own behalf. It was the testimony given in that
case which was presented as proof in the present case. He was not called as a
GR No. L-25643. June 27, 1968.
JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners, vs.
HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of Iloilo,
JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT &
COLD STORAGE Co., INC., and THE HON. COURT OF APPEALS,
respondents.
Evidence; Husband and wife; Rule that a husband cannot be examined for or
against his wife; Scope of its application; Reason for the rule; Case at bar.—A
husband cannot be examined for or against his wife without her consent; nor a
wife for or against her husband without his consent, except in a civil case by one
against the other, or in a criminal case for a crime committed by one against the
other (Sec. 20 [b], Rule 130, Rules of Court). This provision and rule deals with
two different matters which rest on different grounds of policy: the
disqualification of husband and wife to testify in each other’s behalf, as well as
their privilege not to testify against each other. The fundamental theory of the
common law is said to be that relationship of the spouses, not their pecuniary
interest, is the basis of the disqualification. Indeed section 20 of Rule 130 is
entitled “Disqualification by reason of x x x relationship.”
On the other hand, while a welter of emotional reasons has been offered (see U.S.
v. Concepcion, 31 Phil. 182; and People v. Francisco, 78 Phil. 694) for the
privilege, the true explanation which is after all the simplest (Wigmore, sec. 2227
at 212) and which constitutes the real and sole strength of the opposition to
abolishing the privilege, “is the natural repugnance in every fair-minded person
to compelling a wife or husband to be the means of the other’s condemnation and
to subjecting the culprit to the humiliation of being condemned by the words of
his intimate life partner (Id., sec. 2228, at 217).
In the case at bar where the wife is a co-defendant in a suit charging fraud
against the spouses, can the wife be compelled to testify as an adverse party
witness concerning her participation in the alleged fraud without violating
section 20(b) of Rule 130? Even in those jurisdictions which allow one spouse
to be subjected to examination by the adverse party as a hostile witness when
both spouses are parties to the action, either the interests of the spouses are
separate or separable, or the spouse offerred as a witness is merely a formal or
nominal party (97 C.J.S. 477). Section 6 of Rule 132 (Rule on Direct Examination
of unwilling or hostile witnesses) is a mere concession, for the sake of discovery,
from the rule which precludes the husband or the wif e f rom becoming the means
of the other’s condemnation. The said rule of discovery should therefore not be
expanded in meaning or scope as to allow examination of one’s spouse in a
situation where this natural repugnance obtains. Lezama vs. Rodriguez, 23 SCRA
1166, No. L-25643 June 27, 1968
The issue tendered for resolution in this case is whether a wife, who is a co-
defendant of her husband in an action, may be examined as a hostile witness by
the adverse party under section 6 of Rule 132 of the Rules of Court, without
infringing on her marital privilege not to testify against her husband under section
20 (b) of Rule 130. The trial court, presided by the respondent Judge Jesus
Rodriguez, ruled in the affirmative and required the wife to appear and testify.
The petitioners sued for certiorari but the Court of Appeals dismissed their
petition1 and denied their motion for reconsideration.2 Hence this appeal.3
On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant &
Cold Storage Co. in Iloilo, together with C.N. Hodges and Ricardo Gurrea, filed
an action in the Court of First Instance of Iloilo for the annulment of a judgment
rendered against the La Paz Ice Plant by the Court of First Instance of Manila in
civil case 39827. Named as defendants were Marciano C. Roque, in whose favor
judgment was rendered, and the spouses Jose Manuel and Paquita Lezama. The
complaint alleged that, because of mismanagement by the Lezamas, the La Paz
Ice Plant was placed under the receivership of Dineros; that during the pendency
of the receivership, Marciano C. Roque brought an action against the La Paz Ice
Plant in the Court of First Instance of Manila for the collection of P150,000,
which sum he had supposedly lent to it; that summons was served not on the
receiver but on the spouses Jose Manuel and Paquita Lezama; and that, through
the collusion of the Lezamas, Roque was able to obtain judgment by default
against the company. It was claimed that, because the summons was served on
Jose Manuel Lezama instead of on the receiver, the Court of First Instance of
Manila acquired no jurisdiction over the La Paz Ice Plant and that, therefore, the
decision of that court was void.1ªvvphi1.nêt
In their answer, the defendant spouses (the herein petitioners), while admitting
that the company was placed under receivership, maintained that Jose Manuel
Lezama nevertheless remained president of the La Paz Ice Plant and that as such
he had authority to receive in behalf of the company the court summons in civil
case 39827. They denied entering into collusion with Roque and averred that they
did not contest Roque's claim because they knew it to be a legitimate obligation
which the La Paz Ice Plant had incurred pursuant to a resolution of its board of
directors.
Issues having been joined, the case was thereupon heard. At the hearing Dineros
asked the court to issue a subpoena to Paquita Lezama to testify as "a witness
summoned by the plaintiffs in accordance with the Rules of Court." The request
was granted over the objection of the petitioners who invoked the following
provision of the Rules of Court:
A husband cannot be examined for or against his wife without her consent; nor a
wife for or against her husband without his consent, 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 in a criminal case for a crime committed by one against the other.4
This provision deals with two different matters which rest on different grounds
of policy: the disqualification of husband and wife to testify in each other's behalf,
as well as their privilege not to testify against each other.5 The fundamental
theory of the common law is said to be that relationship of the spouses, not their
pecuniary interest, is the basis of the disqualification.6 Indeed section 20 of Rule
130 is entitled "Disqualification by reason of ... relationship."
On the other hand, while a shelter of emotional reasons has been offered7 for the
privilege, the "true explanation [which] is after all the simplest"8 and which
constitutes "the real and sole strength of the opposition to abolishing the
privilege," is the natural repugnance in every fair-minded person to compelling a
wife or husband to be the means of the other's condemnation and to subjecting
the culprit to the humiliation of being condemned by the words of his intimate
life partner.9
Here the request for subpoena indicated that Paquita Lezama was to do no more
than testify as an adverse party in the case and, indeed, in the light of the
allegations both in the complaint and in the answer, the request was apparently
one that could reasonably be expected to be made. Thus, the complaint charged
13. — That in obtaining the judgment by default in Civil Case No. 39827 of the
Court of First Instance of Manila against the La Paz Ice Plant & Cold Storage
Co., Inc. defendants, in gross and evident bad faith, and in fraudulent conspiracy,
made it appear that the La Paz Ice Plant & Cold Storage Co., Inc. had obtained a
loan of P150,000.00 from defendant Marciano C. Roque thru defendant Jose
Manuel Lezama allegedly upon an authority vested upon defendant Jose Manuel
Lezama by the alleged Board of Directors of the La Paz Ice Plant & Cold Storage
Co., Inc. allegedly evidenced by the minutes of the meetings of the Board of
Directors of the said corporation signed by defendant Jose Manuel Lezama and
attested to by Benjamin Luis Borja and Paquita B. Lezama and that defendants
spouses Jose Manuel Lezama and Paquita B. Lezama had manipulated the books
of the corporation by making it appear that such fictitious loan was then in
existence.
On the other hand, the answer claimed
13. That the herein defendants specifically deny all the allegations contained in
paragraph 13 of the complaint; the truth is, that the herein defendants have not
conspired and acted in bad faith with the plaintiff [Marciano C. Roque] in Civil
Case No. 39827 of the Court of First Instance of Manila for the rendition of the
said judgment referred to therein; for the truth is, that the herein defendants, in
their capacities as President-Manager and Secretary of the La Paz Ice Plant &
Cold Storage Co., Inc., believing as they believe that the obligation sought to be
enforced by said civil action being legitimate and the allegations of the complaint
in said Civil Case No. 39827 of the Court of First Instance of Manila are true,
they did not deem it wise to contest the same; that the obligation of P150,000.00
of the La Paz Ice Plant & Cold Storage Co., Inc., which the defendant Marciano
C. Roque sought to be enforced in Civil Case No. 39827 of the Court of First
Instance of Manila was legitimately contracted in accordance with law; that said
obligation was duly entered in the books of the corporation and that the said loan
is not fictitious; that the amount realized therefrom was spent for the benefit of
the said corporation.
Thus, while the petitioners denied the charge that the loan was fictitious, they did
not deny the allegation that it was Paquita Lezama who, as secretary of the
company, signed the minutes of the meeting at which Jose Manuel Lezama was
allegedly authorized to negotiate the loan and that it was she who, likewise as
secretary, made the entry in the books of the corporation.
It was obviously to test the truth of the assertion that the loan transaction was
above board that Dineros, the company receiver, wanted Paquita Lezama on the
witness stand, not as a spouse witness "for or against her husband," but rather as
an adverse party in the case.
It is postulated that a party can make, as it were, such forays into his opponent's
position on the strength of section 6 of Rule 132 which provides:
Direct examination of unwilling or hostile witnesses. — A party may interrogate
any unwilling or hostile witness by leading questions. A party may call an adverse
party or an officer, director, or managing agent of a public or private corporation
or of a partnership or association which is an adverse party, and interrogate him
by leading questions and contradict and impeach him in all respects as if he had
been called by the adverse party and the witness thus called may be contradicted
and impeached by or on behalf of the adverse party also, and may be cross-
examined by the adverse party only upon the subject-matter of his examination
in chief.

The basic issue may therefore be restated thus: In this case where the wife is a
co-defendant in a suit charging fraud against the spouses, can the wife be
compelled to testify as an adverse party witness concerning her participation in
the alleged fraud without violating section 20 (b) of Rule 130?
It is argued that the wife may be so compelled but her testimony would be
receivable only against her.10 It is even suggested that "each may testify in his
or her own behalf, although the testimony may inure to the benefit of the other
spouse, or against his or her own interest, although the testimony may also
militate against the other spouse."11 Upon the other hand, it is insisted that
compelling Paquita Lezama to testify will transgress section 20(b) of Rule 130,
especially if her testimony will support the plaintiff's charge.
The complaint charges "fraudulent conspiracy" on the part of the spouses and one
Marciano C. Roque to make it appear that the La Paz Ice Plant & Cold Storage
Co., Inc. was indebted to Roque. The wife, Paquita Lezama, is called upon to
testify as an adverse party witness on the basis of her following participation in
the alleged fraudulent scheme: "that it was Paquita Lezama who as Secretary of
the company signed the minutes of the meeting during which Manuel Lezama
was allegedly authorized to negotiate the loan and that it was she who, likewise
as Secretary, made the entry in the books of the corporation."
Evidently, Paquita Lezama will be asked to testify on what actually transpired
during the meeting and will be asked questions on the matter of the veracity or
falsity of the entry in the books of the corporation. Whether her testimony will
turn out to be adverse or beneficial to her own interest, the inevitable result would
be to pit her against her husband. The interests of husband and wife in this case
are necessarily interrelated. Testimony adverse to the wife's own interests would
tend to show the existence of collusive fraud between the spouses and would then
work havoc upon their common defense that the loan was not fictitious. There is
the possibility, too, that the wife, in order to soften her own guilt, if guilty she is,
may unwittingly testify in a manner entirely disparaging to the interests of the
husband.
Because of the unexpensive wording of the rule which provides merely that the
wife cannot be examined "for or against her husband without his consent," it is
further argued that "when husband and wife are parties to an action, there is no
reason why either may not be examined as a witness for or against himself or
herself alone," and his or her testimony could operate only against himself or
herself.12
Even if such view were generally acceptable as an exception to the rule, or even
as a separate doctrine, it would be inapplicable in this case where the main charge
is collusive fraud between the spouses and a third person, and the evident purpose
of examination of the wife is to prove that charge.
Indeed, in those jurisdictions which allow one spouse to be subjected to
examination by the adverse party as a hostile witness when both spouses are
parties to the action, either the interests of the spouses are separate or separable,
or the spouse offered as a witness is merely a formal or nominal party.13
The final point urged upon us is that to prevent one spouse from testifying would
encourage alliance of husband and wife as an instrument of fraud; for then what
better way would there be to prevent discovery than to make a co-conspirator in
fraud immune to the most convenient mode of discovery available to the opposite
party? This argument overlooks the fact that section 6 of Rule 132 is a mere
concession, for the sake of discovery, from the rule which precludes the husband
or the wife from becoming the means of the other's condemnation. The said rule
of discovery should therefore not be expanded in meaning or scope as to allow
examination of one's spouse in a situation where this natural repugnance obtains.
It may not be amiss to state in passing that the respondent Dineros has not
demonstrated that there is no evidence available to him other than the Lezamas'
testimony to prove the charge recited in the complaint.1äwphï1.ñët
ACCORDINGLY, the resolutions appealed from are versed, and this case is
ordered remanded to the court of origin for further proceedings in accordance
with law. No costs.
Notes.—The marital privilege provided for in Section 20 (b) of Rule 130 once
waived is not claimable. Said section indicates that to the spouse-party alone
belongs the privilege and therefore only he or she can claim or waive it (Cf. Ortiz
v. Arambulo, et al, 8 Phil. 98).
Illustrative of the application of the marital privilege is People v. Reyes, 42 O.G.
2833 and U.S. v. Melchor, 2 Phil. 588.
The rule on marital privilege should be distinguished with the so-called filial
privilege provided for in Article 315 of the new Civil Code which reads: “No
descendant can be compelled in a criminal case, to testify against his parents and
ascendants.” Lezama vs. Rodriguez, 23 SCRA 1166, No. L-25643 June 27, 1968
GR No. L-46306. February 27, 1979
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MARIANO C.
CASTAÑEDA, JR., as Judge of the Court of First Instance of Pampanga,
Branch III, and BENJAMIN F. MANALOTO, respondents.
Criminal Procedure; Wife may testify against husband for crime of falsification
of a deed of sale of conjugal house and lot where wife was made to appear as
having given far consent to the sale.—With more reason must the exception apply
to the instant case where the victim of the crime and the person who stands to be
directly prejudiced by the falsification is not a third person but the wife herself.
And it is undeniable that the criminal act complained of had the effect of directly
and vitally impairing the conjugal relation. This is apparent not only in the act of
the wife in personally lodging her complaint with the office of the Provincial
Fiscal, but also in her insistent efforts in connection with the instant petition,
which seeks to set aside the order disqualifying her from testifying against her
husband. Taken collectively, the actuations of the witness-wife underscore the
fact that the martial and domestic relations between her and the accused-husband
have become so strained that there is no more harmony to be preserved nor peace
and tranquility which may be disturbed. In such a case, as We have occasion to
point out in previous decisions, “identity of interests disappears and the
consequent danger of perjury based on that identity is nonexistent. Likewise, in
such a situation, the security and confidences of private life which the law aims
at protecting will be nothing but ideals which, through their absence, merely leave
a void in the unhappy home.” Thus, there is no reason to apply the marital
disqualification rule. People vs. Castañeda, Jr., 88 SCRA 562, No. L-46306
February 27, 1979
On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein private
respondent Benjamin Manaloto was charged before the Court of First Instance of
Pampanga, presided by respondent Judge, Hon. Mariano C. Castaneda Jr., with
the crime of Falsification of Public Document committed, according to the
Information, as follows:
That on or about the 19th day of May, 1975, in the Municipality of San Fernando,
province of Pampanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named a BENJAMIN F. MANALOTO, with deliberate intent
to commit falsification, did then and there willfully, unlawfully and feloniously
counterfeit, imitate and forge the signature of his spouse Victoria M. Manaloto
in a deed of sale executed by said accused wherein he sold a house and lot
belonging to the conjugal partnership of said spouse in favor of Ponciano
Lacsamana under Doc. No. 1957, Page No. 72, Book No. LVII, Series of 1975,
notarized by Notary Public Abraham Pa. Gorospe, thereby making it appear that
his spouse Victoria M. Manaloto gave her marital consent to said sale when in
fact and in truth she did not. 2
At the trial, the prosecution called the complaint-wife to the witness stand but the
defense moved to disqualify her as a witness, invoking Sec. 20, Rule 130 of the
Revised Rules Of Court which provides:
SEC. 20. Disqualification by reason of interest or relationship — The following
persons cannot testify as to matters in which they are interested, directly or
indirectly as herein enumerated.
xxx xxx xxx
(b) A husband can not be examined for or at his wife without her consent; nor a
wife for or against her husband without his consent, except in a civil case by one
against the other or in a criminal case for a crime committed by one against the
other.
The prosecution opposed said motion to disquality on the ground that the case
falls under the exception to the rule, contending that it is a "criminal case for a
crime committed by one against the other." Notwithstanding such opposition,
respondent Judge granted the motion, disqualifying Victoria Manaloto from
testifying for or against her husband, in an order dated March 31, 1977. A motion
for reconsideration petition was filed but was denied by respondent Judge in an
order dated May 19, 1977.
Hence, this petition for certiorari file by the office of the Provincial Fiscal, on
behalf of the People of the Philippines, seeking set aside the aforesaid order of
the respondent Judge and praying that a preliminary injunction or a ternporary
restraining order be issued by this Court enjoining said judge from further
proceeding with the trial of aforesaid Criminal Case No. 1011.
On June 20, 1977, this Court resolved — (a) to issue a temporary restraining
order, and (b) to require the Solicitor General to appear as counsel for the
petitioner. 3 The Office of the Solicitor General filed its Notice of Appearance
on June 27, 1977, 4 and its Memorandum in support of the Petition on August
30, 1977. 5 The respondents filed their Memorandum on September 5, 1977. 6
Whereupon, the case was considered submitted for decision. 7
From the foregoing factual and procedural antecedents emerges the sole issues
determinative of the instant petition, to wit: Whether or not the criminal case for
Falsification of Public Document filed against herein private respondent
Benjamin F. Manaloto — who allegedly forged the signature of his wife, Victoria
M. Manaloto, in a deed of sale, thereby making it appear that the latter gave her
marital consent to the sale of a house and lot belonging to their conjugal
partnership when in fact and in truth she did not — may be considered as a
criminal case for a crime committed by a husband against his wife and, therefore,
an exception to the rule on marital disqualification.
We sustain petitioner's stand that the case is an exception to the marital
disqualification rule, as a criminal case for a crime committed by the accused-
husband against the witness-wife.
1. The act complained of as constituting the crime of Falsification of Public
Document is the forgery by the accused of his wife's signature in a deed of sale,
thereby making it appear therein that said wife consented to the sale of a house
and lot belonging to their conjugal partnership when in fact and in truth she did
not. It must be noted that had the sale of the said house and lot, and the signing
of the wife's name by her husband in the deed of sale, been made with the consent
of the wife, no crime could have been charged against said husband Clearly,
therefore, it is the husband's breach of his wife's confidence which gave rise to
the offense charged. And it is this same breach of trust which prompted the wife
to make the necessary complaint with the Office of the Provincial Fiscal which,
accordingly, filed the aforesaid criminal case with the Court of First Instance of
Pampanga. To rule, therefore, that such criminal case is not one for a crime
committed by one spouse against the other is to advance a conclusion which
completely disregards the factual antecedents of the instant case.
2. This is not the first time that the issue of whether a specific offense may be
classified as a crime committed by one spouse against the other is presented to
this Court for resolution. Thus, in the case of Ordoño v. Daquigan, 8 this Court,
through Mr. Justice Ramon C. Aquino, set up the criterion to be followed in
resolving the issue, stating that:
We think that the correct rule, which may be adopted in this jurisdiction, is that
laid down in Cargill v. State, 35 ALR, 133, 220, Pac 64,26 OkL 314, wherein the
court said:
The rule that the injury must amount to a physical wrong upon the is too narrow;
and the rule that any offense remotely or indirectly affecting domestic within the
exception is too broad. The better rule is that, WHEN AN OFFENSE DIRECTLY
ATTACKS, OR DIRECTLY AND VITALLY IMPAIRS, THE CONJUGAL
RELATION, IT COMES WITHIN THE EXCEPTION to the statute that one
shall not be a witness against the other except in a criminal prosecution for a
crime committed (by) one against the other.
Applying the foregoing criterion in said case of Ordoño v. Daquigan this Court
held that the rape committed by the husband of the witness-wife against their
daughter was a crime committed by the husband against his wife. Although the
victim of the crime committed by the accused in that can was not his wife but
their daughter, this Court, nevertheless, applied the exception for the reason that
said criminal act "Positively undermine(d) the connubial relationship. 9
With more reason must the exception apply to the instant case where the victim
of the crime and the person who stands to be directly prejudiced by the
falsification is not a third person but the wife herself. And it is undeniable that
the act comp of had the effect of directly and vitally impairing the conjugal
relation. This is apparent not only in the act Of the wife in personally lodging her
complaint with the Office of the Provincial Fiscal, but also in her insistent efforts
10 in connection with the instant petition, which seeks to set aside the order
disqualified her from testifying against her husband. Taken collectively, the
actuations of the witness-wife underacore the fact that the martial and domestic
relations between her and the accused-husband have become so strained that
there is no more harmony to be preserved said nor peace and tranquility which
may be disturbed. In such a case, as We have occasion to point out in previous
decisions, "identity of interests disappears and the consequent danger of perjury
based on that Identity is nonexistent. Likewise, in such a situation, the security
and confidence of private life which the law aims at protecting will be nothing
but Ideals which, through their absence, merely leave a void in the unhappy
home. 11 Thus, there is no reason to apply the martial disqualification rule.
3. Finally, overriding considerations of public policy demand that the wife should
not be disqualified from testifying against her husband in the instant case. For, as
aptly observed by the Solicitor General," (t)o espouse the contrary view would
spawn the dangerous precedent of a husband committing as many falsifications
against his wife as he could conjure, seeking shelter in the anti-marital privilege
as a license to injure and prejudice her in secret — all with unabashed and
complete impunity.
IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March
31, 1977, disqualifying Victoria Manaloto from testifying for or against her
husband, Benjamin Manaloto, in Criminal Case No. 1011, as well as the order
dated May 19, 1977, denying the motion for reconsideration are hereby SET
ASIDE. The temporary restraining order issued by this Court is hereby lifted and
the respondent Judge is hereby ordered to proceed with the trial of the case,
allowing Victoria Manaloto to testify against her husband.

SO ORDERED.

Note.—The husband’s sale of conjugal lot without the wife’s consent is not valid.
(Villocino vs. Doyon, 18 SCRA 1094; Reyes vs. De Leon, 20 SCRA 369).

The wife may ask the court to renounce the administrative of conjugal properties
from the husband for her protection. (Ysasi vs. Fernandez, 23 SCRA 1079).

A debt contracted by the wife is a debt of the conjugal partnership where the
husband was negligent in allowing the wife to incur debts. (Garcia vs. Cruz, 25
SCRA 224).

An illegal detainer judgment against the husband alone over a piece of land
paraphernal in character cannot bind nor affect the wife’s possession thereof.
(Plata vs. Yatco, 12 SCRA 718). People vs. Castañeda, Jr., 88 SCRA 562, No. L-
46306 February 27, 1979
 RULE 130, SECTION 23
DEAD MAN STATUTE
No. L-58164. September 2, 1983
JOSE GUERRERO, MARIA GUERRERO, MAGDALENA GUERRERO
ESPIRITU, assisted by her husband CANDIDO ESPIRITU, GREGORIO
GUERRERO, CLARA GUERRERO, et al., petitioners, vs. ST. CLARE’S
REALTY CO., LTD., GUILLERMO T. GUERRERO, CECILIA
GUERRERO, assisted by ANGELO CARDEÑO, PERLINDA
GUERRERO, etc. et al., respondents.
1. REMEDIAL LAW; EVIDENCE; WITNESSES; INCOMPETENCY UNDER
SEC. 20(a), RULE 130, RULES OF COURT, CONSTRUED. — The plain truth
is that Laura Cervantes and Jose Cervantes are not parties in the present case, and
neither are they assignors of the parties nor "persons in whose behalf a case is
prosecuted." They are mere witnesses by whose testimonies the plaintiffs aimed
to establish that it was not Cristina Guerrero, but Andres Guerrero, who owned
the disputed land at the time of its alleged sale to Manuel Guerrero; that Cristina
Guerrero did not really sell but merely mortgaged the property to Manuel
Guerrero. It may be said that competency to testify established in Sec. 20(a), Rule
130, Rules of Court, affects only the persons therein mentioned, and no others,
that is, only parties plaintiff or their assignors, persons in whose behalf a case is
prosecuted. Mere witnesses who are neither parties plaintiff, nor their assignors,
nor persons in whose behalf a case is prosecuted, are not included in the
prohibition. (Moran, Comments on the Rules of Court, 1970 ed., Vol. 5, p. 166)
By excluding the testimonies of the two witnesses and by barring them from
further testifying, upon reasoning that unduly strained the meaning of the
provisions of the Rules of Court relied upon, the trial court deprived itself of the
opportunity of knowing the truth in this case.
2. ID.; ID.; ID.; DEAD MAN’S RULE; INAPPLICABLE IN THE CASE AT
BAR. — The present case is not a claim or demand against the estate of the
deceased Manuel Guerrero. The defendants Guerreros are not the executors or
administrators or representatives of such deceased. They are being sued as
claimants of ownership in their individual capacities of the disputed lot. The lot
is not a part of the estate of Manuel Guerrero. Hence, the inapplicability of dead
man’s rule. "It has been held that statutes providing that a party in interest is
incompetent to testify where the adverse party is dead or insane, must be applied
strictly in accordance with their express wording, irrespective of their spirit. The
law uses the word ‘against an executor or administrator or other representative of
a deceased person.’ It should be noted that after the mention of an executor or
administrator the words or other representative follows, which means that the
word ‘representative’ includes only those who, like the executor or administrator,
are sued in their representative, not personal, capacity. And that is emphasized
by the law by using the words ‘against the estate of such deceased persons,’ which
convey the idea of an estate actually owned by the deceased at the time the case
was brought and that, therefore, it is only his rights that are to be asserted and
defendant in the litigation by the person representing him, not the personal rights
of such representative." (Moran, ibid., pp. 169-171)
3. ID.; ID.; IMPROVIDENT EXCLUSION AND PRECLUSION FROM
PRESENTING FURTHER PROOF; CASE AT BAR. — Prior to the issuance of
the court’s order of June 14, 1974, by which the plaintiffs were "deemed to have
waived their right to further present or formally offer their evidence," the
following had testified as witnesses of the plaintiffs, namely: Alfredo Zamora,
Roman Mataverde, Moises Javillionar, Dominador Ramirez, Bonifacio
Sumulong, Frisco Cervantes, Laura Cervantes and Jose Cervantes. It was error to
hold that the testimonial evidence should have been formally offered, or that
without such offer, such evidence was waived. The offer of testimonial evidence
is effected by calling the witness to the stand and letting him testify before the
court upon appropriate questions. (Moran, Comments on the Revised Rules of
Court, Vol. 6, 1970 ed., p. 122)
4. ID.; JUDGMENT RENDERED SOLELY ON THE BASIS OF
DEFENDANTS’ EVIDENCE DISREGARDING THAT OF THE
PLAINTIFFS’; REMAND TO TRIAL COURT PROPER RECOURSE. — The
trial court rendered its decision solely on the basis of the defendants’ evidence
and without regard to the proofs that the plaintiffs had presented on July 17, 1974
before the Court of Appeals could finally resolve plaintiffs’ petition to disqualify
the trial judge. As modified by the Court of Appeals, the decision sentences the
plaintiffs to pay damages and attorney’s feet, apart from the costs of suit, in the
staggering amount of Two Million One Hundred Eighty Three Thousand and
Five Hundred (P12,183,500.00) Pesos, without plaintiffs having been gives, the
chance to complete their evidence, to cross-examine the witnesses of the defense,
and to present rebuttal evidence. The way the trial court and the Court of Appeals
proceeded in this case, litigation became more a game of technicalities than a
proceeding to search the truth and mete justice. No other fairer course of action
is demanded but for this Court to remand the case for further proceedings.
In their petition for review by certiorari, petitioners are seeking a reversal of the
decision of the former Court of Appeals (now the Intermediate Appellate Court)
dated April 30, 1981 in CA-G.R No. 57597-R, and its resolution dated September
3, 1981 which denied the petitioners’ motion for reconsideration thereof. Our
resolution of May 25, 1981 gave due course to the petition.
The action initiated by the petitioners in the Court of First Instance of Rizal
prayed for a judgment:
"1. Declaring the in existence of the ‘Deed of Sale of Lands, Annex ‘A’ hereof,
and ‘Deeds of Absolute Sale’, Annexes ‘B’ and ‘C’, as well as the Original
Certificate of Title No. 4591 and Transfer Certificates of Title Nos. 339629 and
340842 of the Registry of Deeds, null and void;
2. Declaring the plaintiffs (now petitioners) the owners in fee simple of the
aforedescribed property, pro-indiviso;
3. Ordering the private defendants (now private respondents) to reconvey to the
plaintiffs the aforedescribed lot;
4. Declaring the ‘Joint Venture Agreement’ executed by the defendant
partnership and the defendant corporation null and void and ineffective insofar
as the plaintiffs are concerned;
5. Ordering the defendant Register of Deeds of Rizal to issue a new transfer
certificate of title in favor of the plaintiffs over the said lot;
6. Condemning the defendants, except the defendant Register of Deeds, to pay
the plaintiffs, actual and exemplary damages, the amounts of which they will
prove during the hearing of the instant case on the merit;
7. Condemning the defendants, except the defendant Register of Deeds, to pay to
the plaintiffs attorney’s fees in the amount of P5,000.00; plus costs of suit."
(Printed Record on Appeal, pp. 116-118.)
Petitioners’ original and amended complaints alleged that during their lifetime
the spouses Isidoro Guerrero and Panay Ramos were the absolute owners of the
disputed property, which is a parcel of land located at San Dionisio, Parañaque,
Rizal, with an area of 42,299 square meters, more or less. The spouses had six
children, named Andres, Juliana, Aurelio, Leona, Jose and Cristina, and all
surnamed Guerrero. Panay Ramos predeceased Isidoro Guerrero. Before his
demise, Isidoro Guerrero verbally willed and ordained that the questioned lot be
assigned and adjudicated to Andres Guerrero as his share in the inheritance, the
other children having been assigned other lots. Accordingly, upon the death of
Isidoro Guerrero, Andres Guerrero physically possessed the lot and cultivated it
through his tenant Dominador Ramirez, who earned a 50% share in the net
produce, the other 50% being retained by Andres Guerrero who defrayed the
cultivation expenses and real estate taxes on the property. Shortly after the
beginning of the Japanese occupation, Andres Guerrero entrusted the land to his
sister, Cristina Guerrero, and allowed her to have the property cultivated and to
retain the owner’s share in the harvests. The arrangement between brother and
sister was that Cristina Guerrero could continue in the cultivation of the land and
enjoyment of the owner’s share in the produce for as long as she needed the
property. Dominador Ramirez continued his tenancy until shortly before the
death of Andres Guerrero. Sometime in July 1943, Andres Guerrero died
survived by his widow, Segunda Laquindanum, and their children, who are the
petitioners in this case. Cristina Guerrero continued as trustee of the deceased
Andres Guerrero.chanrobles virtual lawlibrary
The complaints further alleged that as early as December 10, 1957, the land was
surveyed by the Bureau of Lands for and in the name of Andres Guerrero as Lot
No. 4752, Case No. 4, Cadastre No. 229 of the Parañaque Cadastre. Sometime
during the latter part of 1971 certain people who introduced themselves as agents
or buyers of the land approached some of the plaintiffs in order to secure their
consent to the sale of the property. Said plaintiffs were informed that the land
was titled in the name of their cousin, Manuel Guerrero. Plaintiffs made inquiries
and discovered the following: that Manuel Guerrero was able to have the lot titled
in his name on the basis of a ‘Deed of Sale of Land’ dated April 24, 1948
purportedly executed by Cristina Guerrero; that he caused the lot to be surveyed
in his name as Lot No. 4752 and he was issued advance Plan No. AP-10008 on
February 28, 1962; that in the advance plan issued to him, it was duly noted that
Lot No. 4752 had been previously surveyed for Andres Guerrero; that in 1963,
Manuel Guerrero, assisted by Felicisimo Guerrero, father of the defendants
Guerreros, filed an application for registration of land with the Court of First
Instance of Rizal; that notwithstanding the opposition of the heirs of Cristina
Guerrero, the court ruled that Manuel Guerrero owned the lot; that despite
oppositors’ appeal to a higher court, the Register of Deeds issued Original
Certificate of Title No. 4591 to the applicant; that on September 14, 1971, there
was filed with the Register of Deeds of Rizal a "Deed of Absolute Sale"
purportedly executed by Manuel Guerrero in favor of the defendants Guerreros;
that the Register of Deeds gave due course to the registration of that deed,
cancelled OCT No. 4591 and was issued Transfer Certificate No. 339629 in its
stead; that on the same day that the deed of sale was registered, the defendants
Guerreros caused to be notarized an "Articles of Partnership" of St. Clare’s Realty
Company, Ltd., constituting themselves as partners; that on September 28, 1971,
the defendants Guerreros sold the disputed lot in a "Deed of Absolute Sale" to
the St. Clare’s Realty Company, Ltd.; that by virtue thereof, the Register of Deeds
issued TCT No. 340842 in the name of said realty company.
According to the original and amended complaints, the Deed of Sale in favor of
Manuel Guerrero was fraudulent, simulated and falsified for the reason, among
others, that Cristina Guerrero was not the owner of the land at the time she
purportedly sold it; that Manuel Guerrero obtained OCT No. 4591 in fraud of the
plaintiffs; that the Deeds of Sale to the defendants Guerreros and St. Clare’s
Realty Company, Ltd. and the transfer certificates of title in their favor are
fraudulent and simulated, and ineffective against the plaintiffs for the reason,
among others, that at the time of execution of the Deeds of Sale, the defendants
Guerreros knew that the property belonged to Andres Guerrero; that long after
the complaint in the present case has been filed, the plaintiffs came to know that
the St. Clare’s Realty Company, Ltd. executed a "Joint Venture Agreement" with
the United Housing Corporation under which the latter bound itself to develop
the property into a residential subdivision; and that the said agreement was
entered into in gross and evident bad faith.
Separate answers were filed by the defendants Guerreros, St. Clare’s Realty
Company, Ltd. and United Housing Corporation. The defendants Guerreros
alleged that Cristina Guerrero was the absolute owner of the property; that the
action of the plaintiffs had prescribed and they are guilty of laches. St. Clare’ s
Realty Company, Ltd. averred that its contract with United Housing Corporation
was made in good faith. United Housing Corporation averred that there is no
privity of interest between plaintiffs and this defendant considering that the
plaintiffs are not parties to the Joint Venture Agreement.
Issues having been joined, the case proceeded to trial.
Frisco Cervantes, grandson of Cristina Guerrero, testified as a witness of the
plaintiffs that having had previous information that the disputed lot was borrowed
from Andres Guerrero and that Cristina Guerrero merely mortgaged it to Manuel
Guerrero, he went to the house of Manuel Guerrero in Barrio San Dionisio,
Parañaque, Rizal, in 1968 at the behest of the plaintiffs, to inquire about the
mortgage; that in reply, Manuel Guerrero stated that the land had been sold but it
would be changed with another lot of the same area; that in 1970, Sotero
Cervantes and Laura Cervantes, children of Cristina Guerrero, and he went to see
Manuel Guerrero at the Sta. Rita Church in Parañaque; that Sotero and Laura
asked if they could get the land back, that Manuel Guerrero answered that it were
better to change the disputed lot with another parcel of the same area and value;
that as he was not satisfied with the answer, Frisco Cervantes went to the Office
of the Register of Deeds in Pasig, Rizal, where he obtained a copy of a Deed of
Sale in favor of Manuel Guerrero which he delivered to the children of Andres
Guerrero.chanroblesvirtualawlibrary
Roman Mataverde, Chief Geodetic Engineer of the Bureau of Lands designated
as Officer-In-Charge of the Surveys Division, testified for the plaintiffs that in
the Bureau’s Lot Data Computation Book showing the list of claimants for Lot
4752, Case 4, Cadastre 299, Parañaque, Rizal, (Exhibit A), which was surveyed
on December 10, 1957, Andres Guerrero is listed as claimant. The records of the
Bureau of Lands from 1957 (when Lot 4752 was cadastrally surveyed for Andres
Guerrero) until 1962 show no claimant to the property except Andres Guerrero.
In 1962, the Bureau of lands received a letter with an affidavit attached to it from
Manuel Guerrero requesting that an advance plan be made. Advance Plan No.
10008 was made without Andres Guerrero being notified. But in the advance
plan, the Bureau of Lands listed Andres Guerrero as original claimant so that he
would not be prejudiced when a case comes to trial.
Dominador Ramirez testified that during the rainy season of 1936, Andres
Guerrero asked him to work on his land located at Barrio San Dionisio,
Parañaque, Rizal, with an area of four (4) hectares, more or less. As tenant, his
agreement with Andres Guerrero was that he would till the land in consideration
of 50% of the harvests with Andres Guerrero shouldering the cultivation
expenses. From 1936 to about 1941 or 1942, he worked on the land and gave
50% of the produce to Andres Guerrero who went personally to the field to get
the same. In 1941 or 1942, he stopped working on the land because war had
broken out.
On October 19, 1973, Laura Cervantes testified that her mother, Cristina
Guerrero, had been sick for a long time before she died at the age of 80 years in
1948; and that her mother could walk only inside their house in Parañaque; that
the money spent for the illness of her mother came from Manuel Guerrero; and
that, through her children, Cristina Guerrero could ask money from Manuel
Guerrero because of the land that Andres Guerrero had lent to her.
After Laura Cervantes had thus testified, counsel for the defendants Guerreros
objected to the line of questioning on the ground that the said witness was
testifying "on matters which are prohibited under Sec. 20(a), Rule 130, of the
Rules of Court." The trial court having ruled that the witness "may answer",
defendants’ counsel registered a continuing objection. The court allowed the
witness to continue her testimony subject to such objection. (TSN, pp. 9-20,
October 19, 1973.)
Resuming her testimony, Laura Cervantes stated that the land was lent by Andres
Guerrero to Cristina Guerrero; that Manuel Guerrero loaned money to Cristina
Guerrero for quite some time; that shortly after the death of Cristina Guerrero,
Manuel Guerrero went to their house, accompanied by Felicisimo Guerrero, and
summed up the loans he had extended to Cristina Guerrero in the total amount of
P1,900.00; and that Felicisimo Guerrero asked Laura Cervantes to sign a piece
of paper to attest to the fact that a certain amount of money had been borrowed
from Manuel Guerrero.cralawnad
On October 24, 1973, the defendants Guerreros filed a written motion to
disqualify Laura Cervantes as a witness on the basis of Section 20(a), Rule 130,
of the New Rules of Court. The motion was opposed by the plaintiffs. On
November 16, 1973, the trial court granted the motion and declared that Laura
Cervantes, Jose Cervantes as well as other witnesses similarly situated, are
disqualified to testify in the case.
On February 12, 1974, plaintiffs filed a "Motion For The Honorable Presiding
Judge Of This Honorable Court To Inhibit Himself And/Or To Transfer Case To
Another Branch." Oppositions to the said motion were filed. On April 26, 1974,
the trial court denied the motion.
At the continuation of the trial on June 14, 1974, plaintiffs and their counsel failed
to appear despite due notice and repeated previous warnings to their lawyer.
Instead of appearing in court, plaintiffs, thru counsel, filed an urgent motion to
reset the hearing, which was opposed by the defendants. On even date, the court
issued an order as follows:jgc:chanrobles.com.ph
"In view of the non-appearance of the plaintiffs as well as their counsel for
today’s hearing, they are deemed to have waived their right to further present or
formally offer their evidence in court, and on motion of defendants’ counsels, the
Clerk of Court, Atty. Juan A. Carambas, is hereby authorized and commissioned
to receive the evidence for the defendants. After the defendants have closed their
case, they are given 10 days within which to file their respective memoranda and
the case is deemed submitted for decision after receipt of the complete transcript
of stenographic notes." (Record on Appeal, p. 212.)
On June 22, 1974, plaintiffs filed a "Manifestation" to the effect that they did not
waive their rights to present further evidence, to cross-examine defendants’
witnesses, and to present rebuttal evidence; and that they were reserving the
exercise of those rights upon the finality of the decision of the Court of Appeals
in a petition for certiorari, prohibition and mandamus against the Presiding Judge
of the trial court, which they were then preparing to file.
Indeed, on June 25, 1974, plaintiffs instituted the said special civil action, which
was docketed in the Court of Appeals as its CA-G.R. No. SF-03120. The action
sought the disqualification of the trial judge from continuing with the hearing of
the case. On June 27, 1974, the Court of Appeals denied the petition outright.
Copy of the resolution was received by the plaintiffs on July 2, 1974. They filed
a motion for reconsideration on July 17, 1974.
On the same date, July 17, 1974, the trial court rendered its decision with the
following dispositive part:jgc:chanrobles.com.ph
"WHEREFORE, judgment is hereby rendered in favor of the defendants (and)
against the plaintiffs:chanrob1es virtual 1aw library
1. Dismissing the complaint and Amended Complaint;
2. Ordering the plaintiffs to pay the private defendant Guerreros the amount of
P20,000.00 for actual damages, P500,000.00 for moral damages and P10,000.00
as attorney’s fees;
3. Ordering the plaintiffs to pay the defendant St. Clare’s Realty Co. Ltd., the
amount of P1,923,000.00 as actual damages, P50,000.00 as exemplary damages
and P5,000.00 as attorney’s fees;
4. Ordering the plaintiffs to pay the defendant United Housing Corporation the
amount of P90,500.00 as actual damages; P100,000.00 for loss of goodwill and
business reputation, P80,000.00 as exemplary damages, P15,000.00 as lawyer’s
fees; and
5. To pay the cost of suit.
The Register of Deeds of Rizal is hereby directed to cancel the Lis Pendens in
Transfer Certificate of Title No. 340842 in the name of the St. Clare’s Realty Co.,
Ltd., Book T-1971. Meanwhile, the defendant United Housing Corporation is
ordered to proceed and continue with its commitments under the Memorandum
Agreement dated October 12, 1971." (Record on Appeal, pp. 259-261.)cralawnad
On July 20, 1974, or three (3) days before plaintiffs received the decision, they
filed with the trial court a "Motion Ex-Abundantia Cautela" praying that should
the Court of Appeals render an adverse resolution in CA-G.R. No. SF-03120, the
lower court should set aside its order of June 14, 1974 and allow plaintiffs to
present other evidence, cross-examine witnesses of the defendants, and present
rebuttal evidence.
On August 21, 1974, plaintiffs filed a motion for reconsideration of the decision
which they received on July 23, 1974.
Early in 1975, Judge Arsenio Alcantara who rendered the decision was replaced
by Judge Floreliana Castro-Bartolome. In her order of February 13, 1975, Judge
Castro-Bartolome resolved that:jgc:chanrobles.com.ph
"1) The plaintiffs’ ‘Motion Ex-Abundantia Cautela’ dated July 18, 1974, having
been passed upon by Judge Arsenio B. Alcantara by the rendition of the Decision
dated July 17, 1974, is deemed to have been clearly denied by the Honorable
Judge who penned the said decision;
2) The plaintiffs’ ‘Motion for Reconsideration’ dated August 21, 1974 and
‘Supplemental Motion for Reconsideration’ dated August 22, 1974, have to be as
they are hereby, denied;
x x x previously presented were apparently not considered in the rendition of the
5) The plaintiffs’ ‘Motion for Reconsideration’ and ‘Supplemental Motion for
Reconsideration’ are not pro-forma and have suspended the running of the period
of appeal."cralaw virtua1aw library
On February 21, 1975, plaintiffs perfected their appeal to the Court of Appeals
where the case was docketed as CA-G.R. No. 57597-R. On April 20, 1981, the
Court of Appeals rendered its decision as follows:jgc:chanrobles.com.ph
"WHEREFORE, all the foregoing considered, the decision appealed from is
hereby affirmed, with modification in regard to damages as follows: (a) for the
defendants Guerreros, P50,000.00 moral damages, and P10,000.00 exemplary
damages; (b) for the defendant St. Clare’s Realty Co., Ltd., P10,000.00
exemplary damages; (c) for the defendant United Housing Corporation,
P40,000.00 for loss of goodwill and business reputation and P10,000.00
exemplary damages. The actual damages and attorney’s fees are hereby
maintained."cralaw virtua1aw library
On May 27, 1981, the Court of Appeals denied plaintiffs’ motion for
reconsideration.
Hence, the present petition for review by certiorari.
In their instant petition for review, petitioners have raised substantive and
procedural points on which the lower tribunals have allegedly erred. The
substantive issues refer to the lack of basis for the grant of actual, moral and
exemplary damages in the huge amount of over two million pesos; and the error
of ruling that the action was barred by prescription and laches. Petitioners
underscore the procedural errors they attribute to the lower courts which resulted
in the deprivation of their full opportunity to ventilate their case and prove the
validity of their claim. They assail the ruling that their witnesses Laura Cervantes,
Jose Cervantes "and others similarly situated" are disqualified to testify; and that
they waived the right to present their evidence when they failed to appear at a
hearing set by the trial judge during the pendency of proceedings taken by the
petitioners to disqualify him due to alleged hostility manifested by the latter
towards the petitioners.chanroblesvirtualawlibrary
At this instance, We consider it unnecessary to discuss the substantive merits of
the petitioners’ cause of action. The record reveals that they have not yet
completed the presentation of their evidence. Whatever evidence they had
questioned decisions for not having been "formally offered." It does not strike Us
as fair and just that the petitioners would be made answerable for damages in
such a huge amount for having filed an allegedly baseless and unfounded action
without affording them the full opportunity of establishing the merit of their
claim. On the face of the record, We are convinced that they had been denied that
chance due to some mistaken and capricious application of pertinent procedural
rules.
The first question of importance that engages the attention of this Court is
whether or not the witnesses Laura Cervantes and Jose Cervantes were correctly
disqualified from testifying in the case and their testimonies excluded on the basis
of Section 20(a), Rule 130, of the Rules of Court, which provides as
follows:jgc:chanrobles.com.ph
"Section 20. Disqualification by reason of interest or relationship. — The
following persons cannot testify as to matters in which they are interested,
directly or indirectly as herein enumerated:chanrob1es virtual 1aw library
(a) Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a
deceased person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person of unsound
mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such became of unsound mind."cralaw virtua1aw
library
Upon the facts and under the law, this Court is fully persuaded that the affirmative
rulings of both the trial court and the Court of Appeals were made in error. The
plain truth is that Laura Cervantes and Jose Cervantes are not parties in the
present case, and neither are they assignors of the parties nor "persons in whose
behalf a case is prosecuted." They are mere witnesses by whose testimonies the
plaintiffs aimed to establish that it was not Cristina Guerrero, but Andres
Guerrero, who owned the disputed land at the time of its alleged sale to Manuel
Guerrero; that Cristina Guerrero did not really sell but merely mortgaged the
property to Manuel Guerrero.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
"Following this rule of construction, it may be said that incompetency to testify
established in the provision above quoted, affects only the persons therein
mentioned, and no others, that is, only parties plaintiff or their assignors, persons
in whose behalf a case is prosecuted. Mere witnesses who are neither parties
plaintiff, nor their assignors, nor persons in whose behalf a case is prosecuted,
are not included in the prohibition." (Moran, Comments on the Rules of Court,
1970 ed., Vol. 5, p. 166.)
By excluding the testimonies of the two witnesses and by barring them from
further testifying, upon reasoning that unduly strained the meaning of the
provisions of the Rules of Court relied upon, the trial court deprived itself of the
opportunity of knowing the truth in this case.
Moreover, the present case is not a claim or demand against the estate of the
deceased Manuel Guerrero. The defendants Guerreros are not the executors or
administrators or representatives of such deceased. They are being sued as
claimants of ownership in their individual capacities of the disputed lot. The lot
is not a part of the estate of Manuel Guerrero. Hence, the inapplicability of the
dead man’s rule.
"It has been held that statutes providing that a party in interest is incompetent to
testify where the adverse party is dead or insane, must be applied strictly in
accordance with their express wording, irrespective of their spirit. The law uses
the word ‘against an executor or administrator or other representative of a
deceased person.’ It should be noted that after the mention of an executor or
administrator the words or other representative follows, which means that the
word ‘representative’ includes only those who, like the executor or administrator,
are sued in their representative, not personal, capacity. And that is emphasized
by the law by using the words ‘against the estate of such deceased persons’, which
convey the idea of an estate actually owned by the deceased at the time the case
was brought and that, therefore, it is only his rights that are to be asserted and
defendant in the litigation by the person representing him, not the personal rights
of such representative." (Moran, ibid, pp. 169-171.)
The next question that requires attention is whether or not the exclusion of
plaintiffs’ evidence and their preclusion from presenting further proof was
correctly sustained by the respondent Court of appeals. Prior to the issuance of
the court’s order of June 14, 1974, by which the plaintiffs were "deemed to have
waived their right to further present or formally offer their evidence", the
following had testified as witnesses of the plaintiffs, namely: Alfredo Zamora,
Roman Mataverde, Moises Javillonar, Dominador Ramirez, Bonifacio
Sumulong, Frisco Cervantes, Laura Cervantes and Jose Cervantes. It was error to
hold that the testimonial evidence should have been formally offered, or that
without such offer, such evidence was waived. The offer of testimonial evidence
is effected by calling the witness to the stand and letting him testify before the
court upon appropriate questions. (Moran, Comments on the Revised Rules of
Court, Vol. 6, 1970 ed., p. 122.)chanrobles virtual lawlibrary
Notwithstanding rigid cross-examination conducted by the lawyers of the
defendants, the witnesses discovered the following facts: In the 1930’s Andres
Guerrero physically possessed the disputed lot, paid the real estate taxes for it,
had the same cultivated through a tenant, defrayed the cultivation expenses, and
exclusively enjoyed the owner’s share in the harvests. Andres Guerrero loaned
the lot to his sister, Cristina Guerrero, before he died. Cristina Guerrero became
ill prior to the year 1948. She could walk only inside her house in Parañaque,
Rizal. The money spent for her illness was borrowed from Manuel Guerrero.
After the death of Cristina Guerrero, Manuel Guerrero and Felicisimo Guerrero
came to her house and the money loaned to her was totalled in the amount of
P1,900.00. On December 10, 1957, the questioned lot was cadastrally surveyed
and denominated as Lot 4752 of the Parañaque Cadastre. Andres Guerrero was
the lone claimant. Until 1962, no other person claimed the lot.
The foregoing proofs bear materially on the questions raised by the plaintiffs as
to whether or not: (1) Cristina Guerrero or Andres Guerrero owned the lot when
the former purportedly sold it to Manuel Guerrero in 1948; (2) Cristina Guerrero
really sold or merely mortgaged the land to Manuel Guerrero; (3) Manuel
Guerrero and, after him, the defendants Guerreros were buyers in good faith.
Instead of insulating itself from evidence that could lead it to the truth, the trial
court should have addressed itself to the questions why: (1) if it is true that
Cristina Guerrero was the owner of the disputed lot in 1948, the cadastral
surveyors who actually repaired to the field listed Andres Guerrero as the sole
claimant of the property, (2) until 1962, no other person except Andres Guerrero
claimed the lot as his own; (3) notwithstanding the purported deed of sale by
Cristina Guerrero to Manuel Guerrero was executed on April 24, 1948, it was
presented for registration with the Register of Deeds almost ten (10) years later
only on February 27, 1958 (TSN, p. 15, January 9, 1974); (4) in the deed of sale
to Manuel Guerrero, it is stated that he appeared in Parañaque, Rizal, before Atty.
Jose D. Villena who was a notary public in Makati, Rizal; (5) the area of the land
bought by Manuel Guerrero was 33,090 square meters whereas the area of the
land sold by him to the defendants Guerreros was 42,299 square meters. The court
also ought rather to have noticed the fact that in the deed of sale in favor of
Manuel Guerrero, it is stated that the subject parcel of land "is surrounded by
muddikes besides the stone monuments that visibly marked all its "boundaries",
which clearly indicate a previous survey and which may in turn lead to the
question if the deed of sale to Manuel Guerrero might have been made after the
cadastral survey in 1957 and not in 1948.

The trial court rendered its decision solely on the basis of the defendants’
evidence and without regard to the proofs that the plaintiffs had presented on July
17, 1974 before the Court of Appeals could finally resolve plaintiffs’ petition to
disqualify the trial judge. As modified by the Court of Appeals, the decision
sentences the plaintiffs to pay damages and attorney’s fees, apart from the costs
of suit, in the staggering amount of Two Million One Hundred Eighty Three
Thousand and Five Hundred (P2,183,500.00) Pesos, without plaintiffs having
been given the chance to complete their evidence, to cross-examine the witnesses
of the defense, and to present rebuttal evidence. The way the trial court and the
Court of Appeals proceeded in this case, litigation became more a game of
technicalities than a proceeding to search the truth and mete justice. No other
fairer course of action is demanded but for this Court to remand the case for
further proceedings.chanrobles.com.ph : virtual law library

WHEREFORE, the decision of the respondent Court of Appeals is hereby set

aside. Let the records of the case be remanded to the court of origin with
instruction to the trial court to allow the plaintiffs to complete their evidence, to
cross-examine the defendants’ witnesses, and to present rebuttal evidence if they
so desire, and thereafter to decide the case anew.

SO ORDERED.
GR No. L-27434. September 23, 1986
GENARO GOÑI, RUFINA P. vda. DE VILLANUEVA, VIOLA P.
VILLANUEVA, OSCAR P. VILLANUEVA, MARINA P. VILLANUEVA,
VERNA P. VILLANUEVA, PRAXEDES P. VILLANUEVA, JR., JOSE P.
VILLANUEVA, SAMUEL P. VILLANUEVA, LOURDES P.
VILLANUEVA, MILAGROS P. VILLANUEVA DE ARRIETA,
petitioners-appellants, vs. THE COURT OF APPEALS and GASPAR
VICENTE, respondents-appellees.
Evidence; The privilege to invoke the Dead Man’s Statute is waived by the
defendant where (a) he cross-examines the plaintiff; and (b) he files a
counterclaim against the plaintiff.—Such protection, however, was effectively
waived when counsel for petitioners crossexamined private respondent Vicente.
“A waiver occurs when plaintiff’s deposition is taken by the representative of the
estate or when counsel for the representative cross-examined the plaintiff as to
matters occurring during deceased’s lifetime.” It must further be observed that
petitioners presented a counterclaim against private respondent Vicente. When
Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the
action for recovery of property and as defendant in the counterclaim for
accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the
counterclaim, he was not disqualified from testifying as to matters of fact
occurring before the death of Praxedes Villanueva, said action not having been
brought against, but by the estate or representatives of the estate/deceased person.
Same; The Survivorship Disqualification Rule cannot be invoke where defendant
testifies as to communications made or contracts entered into with the agent of
the decedent while latter was alive.—Likewise, under a great majority of statutes,
the adverse party is competent to testify to transactions or communications with
the deceased or incompetent person which were made with an agent of such
person in cases in which the agent is still alive and competent to testify. But the
testimony of the adverse party must be confined to those transactions or
communications which were had with the agent. The contract/promise to sell
under consideration was signed by petitioner Goñi as attorney-in-fact
(apoderado) of Praxedes Villanueva. He was privy to the circumstances
surrounding the execution of such contract and therefore could either confirm or
deny any allegations made by private respondent Vicente with respect to said
contract. The inequality or injustice sought to be avoided by Section 20(a) of Rule
130, where one of the parties no longer has the opportunity to either confirm or
rebut the testimony of the other because death has permanently sealed the
former’s lips, does not actually exist in the case at bar, for the reason that
petitioner Goñi could and did not negate the binding effect of the
contract/promise to sell. Thus, while admitting the existence of the said
contract/promise to sell, petitioner Goñi testified that the same was subsequently
novated into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda
Dulce Nombre de Maria.
Same; Same; Evidence; Laches; The written contract to sell in this case was
satisfactorily proved to have beennovated to a verbal lease agreement as shown
by the failure of respondent Vicente to demand the execution of a deed of sale or
annotation of an adverse claim on the title to the sugarlands during his lifetime.—
The novation of the written contract/promise to sell into a verbal agreement of
lease was clearly and convincingly proven not only by the testimony of petitioner
Goñi, but likewise by the acts and conduct of the parties subsequent to the
execution of the contract/promise to sell. Thus, after the milling season of crop
year 1949-50, only fields nos. 4 and 13 were delivered to private respondent
Vicente. Fields nos. 3, 4 and 13 were subsequently registered in Villanueva’s
name and mortgaged with the RFC. Villanueva likewise executed a deed of sale
covering Hacienda Sarria in favor of Joaquin Villegas. All these were known to
private respondent Vicente, yet he did not take any steps toward asserting and/or
protecting his claim over fields nos. 3, 4 and 13 either by demanding during the
lifetime of Villanueva that the latter execute a similar document in his favor, or
causing notice of his adverse claim to be annotated on the certificate of title of
said lots. If it were true that he made demands on Villanueva for the surrender of
field no. 3 as well as the execution of the corresponding deed of sale, he should
have, upon refusal of the latter to do so, immediately or within a reasonable time
thereafter, instituted an action for recovery, or as previously observed, caused his
adverse claim to be annotated on the certificate of title. Considering that field no.
3, containing an area of three (3) hectares, 75 ares and 60 centares, is the biggest
among the three lots, an ordinary prudent man would have taken these steps if he
honestly believed he had any right thereto. Yet, private respondent Vicente did
neither. In fact such inaction persisted even during the pendency of the intestate
proceedings wherein he could have readily intervened to seek exclusion of fields
nos. 3, 4 and 13 from the inventory of properties of the late Praxedes Villanueva.
This is an appeal by certiorari from the decision of the then Court of Appeals in
CA-G.R. No. 27800-R entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro
Goni, et. al., Defendants-Appellants" as well as from the resolution denying
petitioners' motion for reconsideration.
The factual backdrop is as follows:
The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de
Maria situated in the Municipality of Bais, Negros Oriental, were originally
owned by the Compania General de Tabacos de Filipinas [TABACALERA].
Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest of
petitioners, negotiated with TABACALERA for the purchase of said haciendas.
However, as he did not have sufficient funds to pay the price, Villanueva with
the consent of TABACALERA, offered to sell Hacienda Sarria to one Santiago
Villegas, who was later substituted by Joaquin Villegas. Allegedly because
TABACALERA did not agree to the transaction between Villanueva and
Villegas, without a guaranty private respondent Gaspar Vicente stood as
guarantor, for Villegas in favor of TABACALERA. The guarantee was embodied
in a document denominated as "Escritura de Traspaso de Cuenta." 1
Either because the amount realized from the transaction between Villanueva and
Villegas still fell short of the purchase price of the three haciendas, or in
consideration of the guaranty undertaken by private respondent Vicente,
Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and 13 of
Hacienda Dulce Nombre de Maria for the sum of P13,807.00. This agreement
was reduced to writing and signed by petitioner Genaro Goni as attorney-in-fact
of Villanueva, thus:
En consideracion a la garantia que Don Gaspar Vicente assume con la Cia. Gral.
de Tabacos de Filipinas por el saldo de Don Santiago Villegas de P43,539.75
asumido por Don Joaquin Villegas el que Subscribe Praxedes T. Villanueva se
compromete ceder es venta a Don Gaspar Vicente los campos nos. 3, 4 y 13 del
plano de porcelario de la Hacienda Dulce Nombre de Maria, en compra
projectada de la Cia. Gral. de Tabacos de Filipinas. Estas campos representan 6-
90-35 hectares por valor de P13,807.00 que Don Gasper Vicente pagara
directamente a Praxedes T. Villanueva
Bais Central, Octubre 24, 1949.
Fdo. Praxedes T. Villanueva
Por: Fdo Genaro Goñi Apoderado 2
Private respondent Vicente thereafter advised TABACALERA to debit from his
account the amount of P13,807.00 as payment for the balance of the purchase
price. However, as only the amount of P12,460.24 was actually needed to
complete the purchase price, only the latter amount was debited from private
respondent's account. The difference was supposedly paid by private respondent
to Villanueva, but as no receipt evidencing such payment was presented in court,
this fact was disputed by petitioners.
It is alleged by petitioners that subsequent to the execution of the
contract/promise to sell, Villanueva was able to raise funds by selling a property
in Ayungon, Negros Oriental. He thus went to private respondent Vicente for the
purpose of rescinding the contract/promise to sell However, as the amount of
P12,460.24 had already been debited from private respondent's account, it was
agreed that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would merely
be leased to private respondent Vicente for a period of five (5) years starting with
crop-year 1950-51 at an annual rental of 15% of the gross income, said rent to be
deducted from the money advanced by private respondent and any balance owing
to Villanueva would be delivered by Vicente together with the lots at the end of
the stipulated period of lease.
On December 10, 1949, TABACALERA executed a formal deed of sale covering
the three haciendas in favor of Villanueva. Fields Nos. 3, 4 and 13 of the
Hacienda Dulce Nombre de Maria were thereafter registered in the name of
Villanueva under TCT No. T-4780 of the Register of Deeds of Negros Oriental.
The fields were likewise mortgaged by Villanueva to the Rehabilitation Finance
Corporation (RFC), later transferred to the Philippine National Bank on
December 16, 1955, for a total indebtedness of
P334,400.00.3
Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente
after the 1949-1950 milling season in January and February, 1950.
On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive" in
favor of Joaquin Villegas, covering Lot No. 314 of the Cadastral Survey of Bais
with an area of 468,627 square meters, more or less. (Hacienda Sarria). A
supplemental instrument was later executed by Villanueva in favor of Villegas to
include in the sale of June 17, 1950 the sugar quota of the land.
On November 12, 1951, Villanueva died. Intestate proceedings were instituted
on November 24, 1951 before the then Court of First Instance of Negros Oriental,
docketed as Special Case No. 777. Among the properties included in the
inventory submitted to the court were fields nos. 3, 4 and 13 of Hacienda Dulce
Nombre de Maria. Field no. 13 with an area of 1 hectare, 44 ares and 95 centares
was listed as Lot no. 723 of the inventory while fields nos. 3 and 4, with areas of
3 hectares, 75 ares and 60 centares, and 1 hectare, 69 ares and 80 centares,
respectively, were included in Lot no. 257 of the inventory.
On October 7, 1954, the day before the intestate proceedings were ordered closed
and the estate of the late Praxedes Villanueva delivered to his heirs, private
respondent Vicente instituted an action for recovery of property and damages
before the then Court of First Instance of Negros Oriental against petitioner Goñi
in his capacity as administrator of the intestate estate of Praxedes Villanueva. In
his complaint docketed as Civil Case No. 2990, private respondent Vicente
sought to recover field no. 3 of the Hacienda Dulce Nombre de Maria, basing his
entitlement thereto on the contract/promise to sell executed by the late Praxedes
Villanueva in his favor on October 24, 1949. He likewise prayed by way of
attorney's fees and other costs the sum of P2,000.00 and for such other further
relief which the court may deem just and equitable in the premises. 4
On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990, filed
an answer with counterclaim for accounting of the produce of fields nos. 4 and
13, as well as the surrerder thereof on June 20, 1955, the end of the fifth crop-
year, plus moral damages in the sum of P30,000.00 and P3,000.00 as attorney's
fees. After an answer to the counter-claim had been filed, private respondent
Vicente amended his complaint on September 1, 1955, to include a prayer for
damages representing the produce of field no. 3 from 1949-50 until delivery
thereof to him. An answer with counterclaim to the amended complaint was duly
filed, and on April 25, 1956, private respondent Vicente amended his complaint
anew to include as parties-defendants the heirs of the late Praxedes Villanueva.
On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among
others, on the costs of production and produce of the three fields in question. The
case thereafter proceeded to trial. Plaintiff presented two (2) witnesses: then
party-plaintiff Gaspar Vicente, himself, who over the objection of therein
defendants testified on facts occurring before the death of Praxedes Villanueva,
and Epifanio Equio a clerk of TABACALERA Agency in the Bais Sugar Central.
Defendants presented Genaro Goni, who testified on the alleged verbal lease
agreement.
On December 18, 1959, the trial court rendered a decision ordering therein
defendants-heirs to deliver to Gaspar Vicente field no 3, to execute a formal deed
of sale covering fields nos. 3, 4 and 13 in favor of Vicente, to pay the latter actual
or compensatory damages in the amount of P 81,204.48, representing 15% of the
total gross income of field no. 3 for crop-years 1950-51 to 1958-59, and such
other amounts as may be due from said field for the crop years subsequent to
crop-year 1958-59, until the field is delivered to Vicente, and to pay the sum of
P2,000.00 as attorney's fees plus costs. Therein defendant Goñi was relieved of
any civil liability for damages, either personally or as administrator of the estate.
5 admissibility in evidence of private respondent Vicente's testimony. Under
Both parties appealed the decision to the then Court of Appeals; the plaintiff from
the portion awarding damages on a claim that he was entitled to more, and
defendants, from the entire decision.
On December 15, 1966, the Court of Appeals promulgated its decision, affirming
that of the lower court, with the modification that the amount of damages to be
paid by defendant-heirs to the plaintiff should be the total net income from field
no. 3 from the crop year 1950-51 until said field is finally delivered to the plaintiff
plus interest thereon at the legal rate per annum.6
Petitioners filed a motion for reconsideration, but were denied the relief sought
in a resolution dated February 9, 1967. Hence, the present appeal by certiorari
whereby petitioners raise the following questions of law:
MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF
FACT OCCURRING BEFORE THE DEATH OF PRAXEDES T.
VILLANUEVA, WHICH CONSTITUTES A CLAIM OR DEMAND UPON
HIS ESTATE. IN VIOLATION OF RULE 123, SEC, 26, PAR. (C), NOW RULE
130, SEC. 20 PAR. (A)?
MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24,1949
BE NOVATED INTO A VERBAL AGREEMENT OF LEASE DURING THE
LIFETIME OF THE PROMISSOR, WHOSE DEATH OCCURRED ON
NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES
SUBSTANTIATED BY COMPETENT ORAL EVIDENCE IN THIS CASE?
SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID
P12,460.24 WHICH WAS TO BE ACCOUNTED AND TO BE CREDITED AS
RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN HIS ORIGINAL
COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES, EXCEPT THE
SUM OF P2,000.00 AS ATTORNEY'S FEES, RECEIVE A JUDGMENT FOR
DAMAGES IN THE AMOUNT OF P74,056.35 WHICH CONSISTS OF
P37,121.26 PLUS LEGAL INTEREST FOR THE CROP YEARS 1950-51 TO
1958-59 AND FOR P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR
SUBSEQUENT TO 1958-59 PLUS
INTEREST? 7
We find that neither the trial nor appellate court erred in ruling for the
ordinary circumstances, private respondent Vicente 8 would be disqualified by
reason of interest from testifying as to any matter of fact occurring before the
death of Praxedes T. Villanueva, such disqualification being anchored on Section
20(a) of Rule 130, commonly known as the Survivorship Disqualification Rule
or Dead Man Statute, which provides as follows:
Section 20. Disqualification by reason of interest or relationship.-The following
persons cannot testify as to matters in which they are interested, directly or
indirectly, as herein enumerated:
(a) Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a
deceased person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person of unsound
mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such person became of unsound mind.
The object and purpose of the rule is to guard against the temptation to give false
testimony in regard to the transaction in question on the part of the surviving
party and further to put the two parties to a suit upon terms of equality in regard
to the opportunity of giving testimony.9 It is designed to close the lips of the party
plaintiff when death has closed the lips of the party defendant, in order to remove
from the surviving party the temptation to falsehood and the possibility of
fictitious claims against the deceased. 10
The case at bar, although instituted against the heirs of Praxedes Villanueva after
the estate of the latter had been distributed to them, remains within the ambit of
the protection. The reason is that the defendants-heirs are properly the
"representatives" of the deceased, not only because they succeeded to the
decedent's right by descent or operation of law, but more importantly because
they are so placed in litigation that they are called on to defend which they have
obtained from the deceased and make the defense which the deceased might have
made if living, or to establish a claim which deceased might have been interested
to establish, if living. 11
Such protection, however, was effectively waived when counsel for petitioners
cross-examined private respondent Vicente. "A waiver occurs when plaintiff's
deposition is taken by the representative of the estate or when counsel for the
representative cross-examined the plaintiff as to matters occurring during
deceased's lifetime. 12 It must further be observed that petitioners presented a
counterclaim against private respondent Vicente. When Vicente thus took the
witness stand, it was in a dual capacity as plaintiff in the action for recovery of
property and as defendant in the counterclaim for accounting and surrender of
fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not
disqualified from testifying as to matters of fact occurring before the death of
Praxedes Villanueva, said action not having been brought against, but by the
estate or representatives of the estate/deceased person.
Likewise, under a great majority of statutes, the adverse party is competent to
testify to transactions or communications with the deceased or incompetent
person which were made with an agent of such person in cases in which the agent
is still alive and competent to testify. But the testimony of the adverse party must
be confined to those transactions or communications which were had with the
agent. 13 The contract/promise to sell under consideration was signed by
petitioner Goñi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was
privy to the circumstances surrounding the execution of such contract and
therefore could either confirm or deny any allegations made by private
respondent Vicente with respect to said contract. The inequality or injustice
sought to be avoided by Section 20(a) of Rule 130, where one of the parties no
longer has the opportunity to either confirm or rebut the testimony of the other
because death has permanently sealed the former's lips, does not actually exist in
the case at bar, for the reason that petitioner Goñi could and did not negate the
binding effect of the contract/promise to sell. Thus, while admitting the existence
of the said contract/promise to sell, petitioner Goñi testified that the same was
subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of
the Hacienda Dulce Nombre de Maria.
Novation takes place when the object or principal condition of an obligation is
changed or altered. 14 In order, however, that an obligation may be extinguished
by another which substitutes the same, it is imperative that it be so declared in
unequivocal terms, or that the old and the new obligations be on every point
incompatible with each other. 15 "Novation is never presumed. It must be
established that the old and the new contracts are incompatible in all points, or
that the will to novate appear by express agreement of the parties or in acts of
equivalent import. 16
The novation of the written contract/promise to sell into a verbal agreement of
lease was clearly and convincingly proven not only by the testimony of petitioner
Goñi, but likewise by the acts and conduct of the parties subsequent to the
execution of the contract/promise to sell. Thus, after the milling season of crop
year 1949-50, only fields nos. 4 and 13 were delivered to private respondent
Vicente. Fields nos. 3, 4 and 13 were subsequently registered in Villanueva's
name and mortgaged with the RFC. Villanueva likewise executed a deed of sale
covering Hacienda Sarria in favor of Joaquin Villegas. All these were known to
private respondent Vicente, yet he did not take any steps toward asserting and/or
protecting his claim over fields nos. 3, 4 and 13 either by demanding during the
lifetime of Villanueva that the latter execute a similar document in his favor, or
causing notice of his adverse claim to be annotated on the certificate of title of
said lots. If it were true that he made demands on Villanueva for the surrender of
field no. 3 as well as the execution of the corresponding deed of sale, he should
have, upon refusal of the latter to do so, immediately or within a reasonable time
thereafter, instituted an action for recovery, or as previously observed, caused his
adverse claim to be annotated on the certificate of title. Considering that field no.
3, containing an area of three (3) hectares, 75 ares and 60 centares, is the biggest
among the three lots, an ordinary prudent man would have taken these steps if he
honestly believed he had any right thereto. Yet, private respondent Vicente did
neither. In fact such inaction persisted even during the pendency of the intestate
proceedings wherein he could have readily intervened to seek exclusion of fields
nos. 3, 4 and 13 from the inventory of properties of the late Praxedes Villanueva.
The reason given by private respondent Vicente that field no. 3 was not delivered
to him together with fields nos. 4 and 13 because there were small sugar cane
growing on said field at that time belonging to TABACALERA, might be taken
as a plausible explanation why he could not take immediate possession of lot no.
3, but it certainly could not explain why it took him four years before instituting
an action in court, and very conveniently, as petitioners noted, after Villanueva
had died and at the time when the verbal contract of lease was about to expire.
Both the trial and appellate courts chose to believe in the contract/promise to sell
rather than the lease agreement, simply because the former had been reduced to
writing, while the latter was merely verbal. It must be observed, though, that the
contract/promise to sell was signed by petitioner Goñi as attorney-in-fact of the
late Praxedes Villanueva, an indication, to our mind, that final arrangements were
made by petitioner Goñi in the absence of Villanueva. It was therefore natural for
private respondent Vicente to have demanded that the agreement be in writing to
erase any doubt of its binding effect upon Villanueva. On the other hand, the
verbal lease agreement was negotiated by and between Villanueva and private
respondent Vicente themselves. Being close friends and relatives 17 it can be
safely assumed that they did not find it necessary to reduce the same into writing.
In rejecting petitioners' contention respecting the verbal lease agreement, the
appellate court put much weight on the failure of petitioners to demand an
accounting of the produce of fields nos. 4 and 13 from 1950 to 1954, when the
action for recovery of property was filed. Such failure was satisfactorily
explained by petitioners in their motion for reconsideration filed before the then
Court of Appeals, in this manner:
... Mr. Genaro Goni is also a farmer by profession and that there was no need for
him to demand a yearly accounting of the total production because the verbal
lease agreement was for a term of 5 years. The defendant Mr. Genaro Goni as a
sugar planter has already full knowledge as to the annual income of said lots nos.
4 and 13, and since there was the amount of P12,460.25 to be liquidated, said
defendant never deemed it wise to demand such a yearly accounting. It was only
after or before the expiration of the 5 year lease that said defendant demanded the
accounting from the herein plaintiff regarding the production of the 2 lots that
were then leased to him.
It is the custom among the sugar planters in this locality that the Lessee usually
demands an advance amount to cover the rental for the period of the lease, and
the demand of an accounting will be only made after the expiration of the lease
period. It was adduced during the trial that the amount of P12,460.75 was
considered as an advance rental of the 2 lots which was leased to the Plaintiff,
lots nos. 4 and 13; so we humbly believe that there was no necessity on the part
of defendant Mr. Genaro Goñi to make a yearly demand for an accounting for the
total production of 2 parcels leased to the plaintiff. 18
Petitioners, having clearly and sufficiently shown that the contract/promise to sell
was subsequently novated into a verbal lease agreement, it follows that they are
entitled to a favorable decision on their counterclaim. Discussion of the third
issue raised therefore becomes unnecessary.
WHEREFORE, the decision appealed from is hereby reversed. The judicial
administrator of the estate of private respondent Gaspar Vicente and/or his
successors-in-interest are hereby ordered to: a) surrender possession of fields nos.
4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners; b) render an
accounting of the produce of said fields for the period beginning crop-year 1950-
51 until complete possession thereof shall have been delivered to petitioners; and
c) to pay the corresponding annual rent for the said fields in an amount equivalent
to 15% of the gross produce of said fields, for the periods beginning crop-year
1950-51 until said fields shall have been surrendered to petitioners, deducting
from the amount due petitioners the sum of P12,460.24 advanced by private
respondent Gaspar Vicente.
SO ORDERED.
G.R. No. 74306. March 16, 1992.*
ENRIQUE RAZON, petitioner, vs. INTERMEDIATE APPELLATE
COURT and VICENTE B. CHUIDIAN, in his capacity as Administrator of
the Estate of the Deceased JUAN T. CHUIDIAN, respondents.
G.R. No. 74315. March 16, 1992.*
VICENTE B. CHUIDIAN, petitioner, vs. INTERMEDIATE APPELLATE
COURT, ENRIQUE RAZON, and E. RAZON, INC., respondents.
Evidence; “Dead man’s statute.”—In the instant case, the testimony excluded by
the appellate court is that of the defendant (petitioner herein) to the effect that the
late Juan Chuidian, (the father of private respondent Vicente Chuidian, the
administrator of the estate of Juan Chuidian) and the defendant agreed in the
lifetime of Juan Chuidian that the 1,500 shares of stock in E. Razon, Inc. are
actually owned by the defendant unless the deceased Juan Chuidian opted to pay
the same which never happened. The case was filed by the administrator of the
estate of the late Juan Chuidian to recover shares of stock in E. Razon, Inc.
allegedly owned by the late Juan T. Chuidian. It is clear, therefore, that the
testimony of the petitioner is not within the prohibition of the rule. The case was
not filed against the administrator of the estate, nor was it filed upon claims
against the estate. Furthermore, the records show that the private respondent
never objected to the testimony of the petitioner as regards the true nature of his
transaction with the late elder Chuidian. The petitioner’s testimony was subject
to cross-examination by the private respon-dent’s counsel. Hence, granting that
the petitioner’s testimony is within the prohibition of Section 20(a), Rule 130 of
the Rules of Court, the private respondent is deemed to have waived the rule.
The main issue in these consolidated petitions centers on the ownership of 1,500
shares of stock in E. Razon, Inc. covered by Stock Certificate No. 003 issued on
April 23, 1966 and registered under the name of Juan T. Chuidian in the books
of the corporation. The then Court of First Instance of Manila, now Regional Trial
Court of Manila, declared that Enrique Razon, the petitioner in G.R. No. 74306
is the owner of the said shares of stock. The then Intermediate Appellate Court,
now Court of Appeals, however, reversed the trial court's decision and ruled that
Juan T. Chuidian, the deceased father of petitioner Vicente B. Chuidian in G.R.
No. 74315 is the owner of the shares of stock. Both parties filed separate motions
for reconsideration. Enrique Razon wanted the appellate court's decision reversed
and the trial court's decision affirmed while Vicente Chuidian asked that all cash
and stock dividends and all the pre-emptive rights accruing to the 1,500 shares of
stock be ordered delivered to him. The appellate court denied both motions.
Hence, these petitions.
The relevant Antecedent facts are as follows:
In his complaint filed on June 29, 1971, and amended on November 16, 1971,
Vicente B. Chuidian prayed that defendants Enrique B. Razon, E. Razon, Inc.,
Geronimo Velasco, Francisco de Borja, Jose Francisco, Alfredo B. de Leon, Jr.,
Gabriel Llamas and Luis M. de Razon be ordered to deliver certificates of stocks
representing the shareholdings of the deceased Juan T. Chuidian in the E. Razon,
Inc. with a prayer for an order to restrain the defendants from disposing of the
said shares of stock, for a writ of preliminary attachment v. properties of
defendants having possession of shares of stock and for receivership of the
properties of defendant corporation . . .
xxx xxx xxx
In their answer filed on June 18, 1973, defendants alleged that all the shares of
stock in the name of stockholders of record of the corporation were fully paid for
by defendant, Razon; that said shares are subject to the agreement between
defendants and incorporators; that the shares of stock were actually owned and
remained in the possession of Razon. Appellees also alleged . . . that neither the
late Juan T. Chuidian nor the appellant had paid any amount whatsoever for the
1,500 shares of stock in question . . .
xxx xxx xxx
The evidence of the plaintiff shown that he is the administrator of the intestate
estate of Juan Telesforo Chuidian in Special Proceedings No. 71054, Court of
First Instance of Manila.
Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the purpose
of bidding for the arrastre services in South Harbor, Manila. The incorporators
consisted of Enrique Razon, Enrique Valles, Luisa M. de Razon, Jose Tuason,
Jr., Victor Lim, Jose F. Castro and Salvador Perez de Tagle.
On April 23, 1966, stock certificate No. 003 for 1,500 shares of stock of
defendant corporation was issued in the name of Juan T. Chuidian.
On the basis of the 1,500 shares of stock, the late Juan T. Chuidian and after him,
the plaintiff-appellant, were elected as directors of E. Razon, Inc. Both of them
actually served and were paid compensation as directors of E. Razon, Inc.
From the time the certificate of stock was issued on April 1966 up to April 1971,
Enrique Razon had not questioned the ownership by Juan T. Chuidian of the
shares of stock in question and had not brought any action to have the certificate
of stock over the said shares cancelled.
The certificate of stock was in the possession of defendant Razon who refused to
deliver said shares to the plaintiff, until the same was surrendered by defendant
Razon and deposited in a safety box in Philippine Bank of Commerce.
Defendants allege that after organizing the E. Razon, Inc., Enrique Razon
distributed shares of stock previously placed in the names of the withdrawing
nominal incorporators to some friends including Juan T. Chuidian
Stock Certificate No. 003 covering 1,500 shares of stock upon instruction of the
late Chuidian on April 23, 1986 was personally delivered by Chuidian on July 1,
1966 to the Corporate Secretary of Attorney Silverio B. de Leon who was himself
an associate of the Chuidian Law Office (Exhs. C & 11). Since then, Enrique
Razon was in possession of said stock certificate even during the lifetime of the
late Chuidian, from the time the late Chuidian delivered the said stock certificate
to defendant Razon until the time (sic) of defendant Razon. By agreement of the
parties (sic) delivered it for deposit with the bank under the joint custody of the
parties as confirmed by the trial court in its order of August 7, 1971.
Thus, the 1,500 shares of stook under Stock Certificate No. 003 were delivered
by the late Chuidian to Enrique because it was the latter who paid for all the
subscription on the shares of stock in the defendant corporation and the
understanding was that he (defendant Razon) was the owner of the said shares of
stock and was to have possession thereof until such time as he was paid therefor
by the other nominal incorporators/stockholders (TSN., pp. 4, 8, 10, 24-25, 25-
26, 28-31, 31-32, 60, 66-68, July 22, 1980, Exhs. "C", "11", "13" "14"). (Ro11o
— 74306, pp. 66-68)
In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's decision
on its alleged misapplication of the dead man's statute rule under Section 20(a)
Rule 130 of the Rules of Court. According to him, the "dead man's statute" rule
is not applicable to the instant case. Moreover, the private respondent, as plaintiff
in the case did not object to his oral testimony regarding the oral agreement
between him and the deceased Juan T. Chuidian that the ownership of the shares
of stock was actually vested in the petitioner unless the deceased opted to pay the
same; and that the petitioner was subjected to a rigid cross examination regarding
such testimony.
Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules on
Evidence) States:
Sec. 20. Disqualification by reason of interest or relationship — The following
persons cannot testify as to matters in which they are interested directly or
indirectly, as herein enumerated.
(a) Parties or assignors of parties to a case, or persons in whose behalf a case is
prosecuted, against an executor or administrator or other representative of a
deceased person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person or against such person of unsound
mind, cannot testify as to any matter of fact accruing before the death of such
deceased person or before such person became of unsound mind." (Emphasis
supplied)
xxx xxx xxx
The purpose of the rule has been explained by this Court in this wise:
The reason for the rule is that if persons having a claim against the estate of the
deceased or his properties were allowed to testify as to the supposed statements
made by him (deceased person), many would be tempted to falsely impute
statements to deceased persons as the latter can no longer deny or refute them,
thus unjustly subjecting their properties or rights to false or unscrupulous claims
or demands. The purpose of the law is to "guard against the temptation to give
false testimony in regard to the transaction in question on the part of the surviving
party." (Tongco v. Vianzon, 50 Phil. 698; Go Chi Gun, et al. v. Co Cho, et al.,
622 [1955])
The rule, however, delimits the prohibition it contemplates in that it is applicable
to a case against the administrator or its representative of an estate upon a claim
against the estate of the deceased person. (See Tongco v. Vianzon, 50 Phil. 698
[1927])
In the instant case, the testimony excluded by the appellate court is that of the
defendant (petitioner herein) to the affect that the late Juan Chuidian, (the father
of private respondent Vicente Chuidian, the administrator of the estate of Juan
Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that the 1,500
shares of stock in E. Razon, Inc. are actually owned by the defendant unless the
deceased Juan Chuidian opted to pay the same which never happened. The case
was filed by the administrator of the estate of the late Juan Chuidian to recover
shares of stock in E. Razon, Inc. allegedly owned by the late Juan T. Chuidian.
It is clear, therefore, that the testimony of the petitioner is not within the
prohibition of the rule. The case was not filed against the administrator of the
estate, nor was it filed upon claims against the estate.
Furthermore, the records show that the private respondent never objected to the
testimony of the petitioner as regards the true nature of his transaction with the
late elder Chuidian. The petitioner's testimony was subject to cross-examination
by the private respondent's counsel. Hence, granting that the petitioner's
testimony is within the prohibition of Section 20(a), Rule 130 of the Rules of
Court, the private respondent is deemed to have waived the rule. We ruled in the
case of Cruz v. Court of Appeals (192 SCRA 209 [1990]):
It is also settled that the court cannot disregard evidence which would ordinarily
be incompetent under the rules but has been rendered admissible by the failure of
a party to object thereto. Thus:
. . . The acceptance of an incompetent witness to testify in a civil suit, as well as
the allowance of improper questions that may be put to him while on the stand is
a matter resting in the discretion of the litigant. He may assert his right by timely
objection or he may waive it, expressly or by silence. In any case the option rests
with him. Once admitted, the testimony is in the case for what it is worth and the
judge has no power to disregard it for the sole reason that it could have been
excluded, if it had been objected to, nor to strike it out on its own motion
(Emphasis supplied). (Marella v. Reyes, 12 Phil. 1.)
The issue as to whether or not the petitioner's testimony is admissible having been
settled, we now proceed to discuss the fundamental issue on the ownership of the
1,500 shares of stock in E. Razon, Inc.
E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the purpose
of participating in the bidding for the arrastre services in South Harbor, Manila.
The incorporators were Enrique Razon, Enrique Valles, Luisa M. de Razon, Jose
Tuazon, Jr., Victor L. Lim, Jose F. Castro and Salvador Perez de Tagle. The
business, however, did not start operations until 1966. According to the
petitioner, some of the incorporators withdrew from the said corporation. The
petitioner then distributed the stocks previously placed in the names of the
withdrawing nominal incorporators to some friends, among them the late Juan T.
Chuidian to whom he gave 1,500 shares of stock. The shares of stock were
registered in the name of Chuidian only as nominal stockholder and with the
agreement that the said shares of stock were owned and held by the petitioner but
Chuidian was given the option to buy the same. In view of this arrangement,
Chuidian in 1966 delivered to the petitioner the stock certificate covering the
1,500 shares of stock of E. Razon, Inc. Since then, the Petitioner had in his
possession the certificate of stock until the time, he delivered it for deposit with
the Philippine Bank of Commerce under the parties' joint custody pursuant to
their agreement as embodied in the trial court's order.
The petitioner maintains that his aforesaid oral testimony as regards the true
nature of his agreement with the late Juan Chuidian on the 1,500 shares of stock
of E. Razon, Inc. is sufficient to prove his ownership over the said 1,500 shares
of stock.
The petitioner's contention is not correct.
In the case of Embassy Farms, Inc. v. Court of Appeals (188 SCRA 492 [1990])
we ruled:
. . . For an effective, transfer of shares of stock the mode and manner of transfer
as prescribed by law must be followed (Navea v. Peers Marketing Corp., 74
SCRA 65). As provided under Section 3 of Batas Pambansa Bilang, 68 otherwise
known as the Corporation Code of the Philippines, shares of stock may be
transferred by delivery to the transferee of the certificate properly indorsed. Title
may be vested in the transferee by the delivery of the duly indorsed certificate of
stock (18 C.J.S. 928, cited in Rivera v. Florendo, 144 SCRA 643). However, no
transfer shall be valid, except as between the parties until the transfer is properly
recorded in the books of the corporation (Sec. 63, Corporation Code of the
Philippines; Section 35 of the Corporation Law)
In the instant case, there is no dispute that the questioned 1,500 shares of stock
of E. Razon, Inc. are in the name of the late Juan Chuidian in the books of the
corporation. Moreover, the records show that during his lifetime Chuidian was
ellected member of the Board of Directors of the corporation which clearly shows
that he was a stockholder of the corporation. (See Section 30, Corporation Code)
From the point of view of the corporation, therefore, Chuidian was the owner of
the 1,500 shares of stock. In such a case, the petitioner who claims ownership
over the questioned shares of stock must show that the same were transferred to
him by proving that all the requirements for the effective transfer of shares of
stock in accordance with the corporation's by laws, if any, were followed (See
Nava v. Peers Marketing Corporation, 74 SCRA 65 [1976]) or in accordance with
the provisions of law.
The petitioner failed in both instances. The petitioner did not present any by-laws
which could show that the 1,500 shares of stock were effectively transferred to
him. In the absence of the corporation's by-laws or rules governing effective
transfer of shares of stock, the provisions of the Corporation Law are made
applicable to the instant case.
The law is clear that in order for a transfer of stock certificate to be effective, the
certificate must be properly indorsed and that title to such certificate of stock is
vested in the transferee by the delivery of the duly indorsed certificate of stock.
(Section 35, Corporation Code) Since the certificate of stock covering the
questioned 1,500 shares of stock registered in the name of the late Juan Chuidian
was never indorsed to the petitioner, the inevitable conclusion is that the
questioned shares of stock belong to Chuidian. The petitioner's asseveration that
he did not require an indorsement of the certificate of stock in view of his intimate
friendship with the late Juan Chuidian can not overcome the failure to follow the
procedure required by law or the proper conduct of business even among friends.
To reiterate, indorsement of the certificate of stock is a mandatory requirement
of law for an effective transfer of a certificate of stock.
proportionate share of the profits of the corporation; and lastly, to participate
proportionately in the distribution of the corporate assets upon the dissolution or
winding up. (Purdy's Beach on Private Corporations, sec. 554) (Pascual v. Del
Saz Orozco, 19 Phil. 82, 87)
WHEREFORE, judgment is rendered as follows:
a) In G.R. No. 74306, the petition is DISMISSED. The questioned decision and
resolution of the then Intermediate Appellate Court, now the Court of Appeals,
are AFFIRMED. Costs against the petitioner.
b) In G.R. No. 74315, the petition is GRANTED. The questioned Resolution
insofar as it denied the petitioner's motion to clarify the dispositive portion of the
decision of the then Intermediate Appellate Court, now Court of Appeals is
REVERSED and SET ASIDE. The decision of the appellate court is MODIFIED
in that all cash and stock dividends as, well as all pre-emptive rights that have
accrued and attached to the 1,500 shares in E. Razon, Inc., since 1966 are declared
to belong to the estate of Juan T. Chuidian.

Moreover, the preponderance of evidence supports the appellate court's factual SO ORDERED.
findings that the shares of stock were given to Juan T. Chuidian for value. Juan
T. Chuidian was the legal counsel who handled the legal affairs of the
corporation. We give credence to the testimony of the private respondent that the
shares of stock were given to Juan T. Chuidian in payment of his legal services
to the corporation. Petitioner Razon failed to overcome this testimony.

In G.R. No. 74315, petitioner Vicente B. Chuidian insists that the appellate
court's decision declaring his deceased father Juan T. Chuidian as owner of the
1,500 shares of stock of E. Razon, Inc. should have included all cash and stock
dividends and all the pre-emptive rights accruing to the said 1,500 shares of stock.

The petition is impressed with merit.

The cash and stock dividends and all the pre-emptive rights are all incidents of
stock ownership.

The rights of stockholders are generally enumerated as follows:

xxx xxx xxx

. . . [F]irst, to have a certificate or other evidence of his status as stockholder

issued to him; second, to vote at meetings of the corporation; third, to receive his
 RULE 130, SECTION 24
DISQUALIFICATION BY REASON OF PRIVILEGED
COMMUNICATION
GR No. 13109. March 6, 1918
THE UNITED STATES, plaintiff and appellee, vs. DALMACIO
ANTIPOLO, defendant and appellant.
HOMICIDE; DYING DECLARATIONS; WITNESSES; HUSBAND AND
WIFE.—The widow of the deceased is a competent witness, in a prosecution for
homicide, to testify on behalf of the defense or the prosecution regarding dying
declarations to her by the deceased concerning the cause of his death. United
States vs. Antipolo., 37 Phil. 726, No. 13109 March 6, 1918
The appellant was prosecuted in the Court of First Instance of the Province of
Batangas, charged with the murder of one Fortunato Dinal. The trial court
convicted him of homicide and from that decision he was appealed. One of the
errors assigned is based upon the refusal of the trial judge to permit Susana
Ezpeleta, the widow of the man whom the appellant is accused of having
murdered, to testify as a witness on behalf of the defense concerning certain
alleged dying declarations. The witness was called to the stand and having stated
that she is the widow of Fortunato Dinal was asked: "On what occasion did your
husband die?" To this question the fiscal objected upon the following ground:
I object to the testimony of this witness. She has just testified that she is the
widow of the deceased, Fortunato Dinal, and that being so I believe that she is
not competent to testify under the rules and procedure in either civil or criminal
cases, unless it be with the consent of her husband, and as he is dead and cannot
grant that permission, it follows that this witness is disqualified from testifying
in this case in which her husband is the injured party.
Counsel for defendant insisted that the witness was competent, arguing that the
disqualification which the fiscal evidently had in mind relates only to cases in
which a husband or wife of one of the parties to a proceeding is called to testify;
that the parties to the prosecution of a criminal case are the Government and the
accused; that, furthermore the marriage of Dinal to the witness having been
dissolved by the death of her husband, she is no longer his wife, and therefore not
subject to any disqualification arising from the status of marriage.
These propositions were rejected by the trial judge, and the objection of the fiscal
as to the testimony of the woman Ezpeleta was sustained. To this objection
counsel took exception and made an offer to prove by the excluded witness the
facts which he expected to establish by her testimony. Concerning these facts it
is sufficient at this time to say that some of them would be both material and
relevant, to such a degree that if proven to the satisfaction of the court, they might
have lead to the acquittal of the accused, as they purported to relate to the dying
declarations of the deceased, concerning the cause of his death, the general
purport being that his injuries were due to fall and not to the acts imputed to the
accused.
Section 58 of General Orders No. 58 (1900) reads as follows:
Except with the consent of both, or except in cases of crime committed by one
against the other, neither husband nor wife shall be a competent witness for or
against the other in a criminal action or proceeding to which one or both shall be
parties.
The reasons for this rule are thus stated in Underhill's work on Criminal Evidence
(second edition) on page 346:
At common law, neither a husband nor a wife was a competent witness for or
against the other in any judicial proceedings, civil or criminal, to which the other
was a party. . . . If either were recognized as a competent witness against the other
who was accused of crime, . . . a very serious injury would be done to the harmony
and happiness of husband and wife and the confidence which should exist
between them.
In Greenleaf's classical work on evidence, in section 337 [vol. I], the author says,
in stating the reasons for the rule at common law:
The great object of the rule is to secure domestic happiness by placing the
protecting seal of the law upon all confidential communications between husband
and wife; and whatever has come to the knowledge of either by means of the
hallowed confidence which that relation inspires, cannot be afterwards divulged
in testimony even though the other party be no longer living.
This case does not fall with the text of the statute or the reason upon which it is
based. The purpose of section 58 is to protect accused persons against statements
made in the confidence engendered by the marital relation, and to relieve the
husband or wife to whom such confidential communications might have been
made from the obligation of revealing them to the prejudice of the other spouse.
Obviously, when a person at the point of death as a result of injuries he has
suffered makes a statement regarding the manner in which he received those
injuries, the communication so made is in no sense confidential. On the contrary,
such a communication is made for the express purpose that it may be
communicated after the death of the declarant to the authorities concerned in
inquiring into the cause of his death.
The same theory as that upon which section 58 of General Orders No. 58 is based,
underlies section 383, paragraph 3 of Act No. 190, which reads as follows:
A husband cannot be examined for or against his wife without her consent; nor a
wife for or against her husband without his consent; nor can either, during the
marriage or afterwards, be, without the consent of the other, examined as to any
communication made by one to the other during the marriage; but this exception
does not apply to a civil action or proceeding by one against the other, or to a
criminal action or proceeding for a crime committed by one against the other.
The only doubt which can arise from a reading of this provision relates to the
meaning of the words "during the marriage or afterwards," and this doubt can
arise only by a consideration of this phrase separately from the rest of the
paragraph. Construed as a whole it is evident that it relates only to cases in which
the testimony of a spouse is offered for or against the other in a proceeding to
which the other is a party. The use of the word "afterwards" in the phrase "during
the marriage or afterwards" was intended to cover cases in which a marriage has
been dissolved otherwise than by death of one of the spouses — as, for instance,
by decree of annulment or divorce.
The declarations of a deceased person while in anticipation of certain impending
death, concerning the circumstances leading up to the death, are admissible in a
prosecution of the person charged with killing the declarant. (U. S. vs. Gil, 13
Phil., Rep., 530.) Such dying declarations are admissible in favor of the defendant
as well as against him. (Mattox vs. U. S., 146 U. S., 140.) It has been expressly
held in several jurisdictions in the United States that the widow of the deceased
may testify regarding his dying declarations. In the case of the State vs. Ryan (30
La. Ann., 1176), cited by appellant in his brief, the court said:
The next bill is as to the competency of the widow of the deceased to prove his
dying declarations. We see no possible reason for excluding her . . . after the
husband's death she is no longer his wife, and the rules of evidence, as between
husbands and wives, are no longer applicable.
In the case of Arnett vs. Commonwealth (114 Ky., 593, 596), the testimony of
the widow of the deceased as to his dying declarations made to her was objected
to upon the express ground that under the terms of the Kentucky Code, "the wife
was incompetent to testify even after the cessation of the marriage relation, to
any communication made by her by her husband during the marriage."
This contention was rejected, the court saying:
On grounds of public policy the wife can not testify against her husband as to
what came to her from him confidentially or by reason of the marriage relation,
but this rule does not apply to a dying communication made by the husband to
the wife on the trial of the one who killed him. The declaration of the deceased
made in extremes in such cases is a thing to be proven, and this proof may be
made by any competent witness who heard the statement. The wife may testify
for the state in cases of this character as to any other fact known to her. . . . It can
not be contended that the dying declaration testified to by the witness was a
confidential communication made to her; on the contrary, it was evidently made
in the furtherance of justice for the express purpose that it should be testified to
in the prosecution of the defendant.
We are therefore of the opinion that the court below erred in excluding the
testimony of the witness Susana Ezpeleta, and that by reason of such exclusion,
the accused was deprived of one of his essential rights. That being the case, a new
trial must be granted.
For the reason stated, the judgment of the court below is hereby set aside and a
new trial is granted at which the testimony of the witness Susana Ezpeleta will
be admitted, together with any additional evidence which may be offered on the
part of the prosecution or the defense. At the new trial granted the accused, the
testimony taken at the former hearing shall be considered. The costs of this appeal
shall be de officio. So ordered.
G.R. No. 120769. February 12, 1997
STANLEY J. FORTICH, petitioner, vs. COURT OF APPEALS and FELIX
T. GALLERON, respondents.
Criminal Law; Libel; The key elements of publicity found in the definition of
libel in Article 353 of the Revised Penal Code are not present in this case.—
Nothing in the evidence on record would suggest that the key elements of
publicity found in the definition of libel in Article 353 of the Revised Penal Code
are present in the case before us.
Same; Same; While the imputation of a vice or defect on the petitioner’s character
might have been apparent from the second to the last paragraph of the
memorandum, the imputation was never really made publicly.—Firstly, the
assailed letter was obviously part and parcel of the initial investigation
surrounding the non-remittance of collections by petitioner. The right hand
caption of the memorandum clearly shows the phrase “Inter-office
Memorandum,” implying confidentiality. Secondly, petitioner was unable to
prove that the letter was circulated or publicized, much less read by officers of
the corporation other than those involved in the investigation or those directly
supervising the petitioner’s work. While imputation of a vice or defect on the
petitioner’s character might have been apparent from the second to the last
paragraph of the memorandum, the imputation was never really made publicly.
Same; Same; Petitioner was not able to establish satisfactorily that the issuance
of the letter and its offending paragraph was motivated by malice.—More
importantly, petitioner in the court below was not able to establish satisfactorily
that the issuance of the letter and its offending paragraph was motivated by
malice. As respondent Court of Appeals correctly held: Neither does this Court
find positive proof that the appellant was motivated by malice in the issuance of
the memorandum claimed to be libelous, addressed to the proper officials of San
Miguel Corporation. In other words, the onus of proving actual malice is placed
on the plaintiff-appellee who must convince the Court that the offender was
prompted by malice or ill will. Once this is accomplished, the defense of privilege
is unavailing. (Nanerico D. Santos vs. The Court of Appeals, et al., 203 SCRA
110, 114). Our ruling is buttressed by the fact that no proof has been adduced to
show that the subject Memorandum was released to persons other than the
officials concerned.
Same; Same; The private respondent’s inter-office memorandum falls within the
ambit of privileged communication rule.—Malice exists when there is an
intentional doing of a wrongful act without just cause. An imputation is legally
malicious if done without any reason that would justify a normally conscientious
man in so making the imputation. While the law presumes every defamatory
imputation to be malicious, there are exceptions to this rule. The record indicates
that this case falls under the settled exceptions to the rule: the private respondent’s
inter-office memorandum falls within the ambit of privileged communication
rule.
Same; Same; A privileged communication is one made bona fide upon any
subject matter in which party communicating has an interest or in reference to
which he has a duty.—A privileged communication is one made bona fide upon
any subject matter in which the party communicating has an interest, or in
reference to which he has a duty. Discussing the scope of this rule, former Chief
Justice Fernando, in Mercado v. CFI of Rizal, explained that: x x x. Even when
the statements are found to be false, if there is probable cause for belief in their
truthfulness and the charge is made in good faith, the mantle of privilege may
still cover the mistake of the individual. But the statements must be made under
an honest sense of duty. Fortich vs. Court of Appeals, 268 SCRA 152, G.R. No.
120769 February 12, 1997
For over five years since August 1973, petitioner Stanley J. Fortich was employed
as an area salesman of the soft drinks division of the San Miguel Corporation in
Dipolog City, a job which required him to collect various sums of money from
the retailers and buyers of the company along his designated route.
On June 5, 1979, petitioner received a Memorandum ordering him to stop plying
his route and collecting the sums owed by customers to the company for the stated
reason of his alleged "NONISSUANCE (SIC) OF EITHER CHANGE REFUND
NOR OFFICIAL RECEIPT FOR EMPTIES RETRIEVED FROM OUTLETS
WITH TEMPORARY CREDIT SALES." 1 The order grounding petitioner,
signed by herein respondent Felipe T. Carreon in his capacity as District Sales
Supervisor, likewise directed petitioner to instead report directly "to the sales
office every working day at the prescribed company time." 2
Following up on his first memorandum and alleging that petitioner
misappropriated the amount of P1,605.00 from his collections (through non-
issuance of invoices to several customers) private respondent, on June 11, 1975,
submitted a second inter-office memorandum addressed to the Regional Sales
Manager summarizing the findings of an initial investigation he conducted on the
matter, which he concluded with the following paragraph:
In addition, I would like to further inform management that S/M Stanley Fortich
is an avid mahjong player and a cockfighting enthusiast. Inspite of several
advices, there seems to be no change in his lifestyle. Also, respondent had a
similar case last September 11, 1978. 3
After further investigation by the company which found petitioner guilty of
misappropriating company funds, petitioner was preventively suspended from his
job. The order suspending petitioner also decreed his dismissal "upon receipt of
clearance from the Ministry of Labor." 4
Claiming that the above-quoted second memorandum issued by the private
respondent was "wilfull, malicious and done in gross bad faith," 5 petitioner, on
September 28, 1979 filed a complaint for "Damages Arising from Libel" with the
Court of First Instance (now Regional Trial Court) of Zamboanga Del Norte. In
his complaint, he alleged that:
xxx xxx xxx
[T]he defendant has pictured the plaintiff in his report (Annex "B") as a thief,
corrupt or dishonest man and even going to the extent of exposing in public the
alleged vices of the plaintiff such as mahjong and cockfighting.
[T]he defendant is guilty of gross bad faith and malice in the highest degree for
making and publishing a false, and libelous report for the purpose of putting down
the good name and reputation of the plaintiff and his family.
xxx xxx xxx 6
Petitioner then prayed that the trial court grant the total amount of P171,000.00
to him as moral and exemplary damages, attorney's fees and expenses of
litigation.
On November 5, 1990, the Regional Trial Court rendered its decision 7 in favor
of herein petitioner, the dispositive portion of which states the following:
PREMISES CONSIDERED, the Court hereby renders judgment —
1. Ordering the defendant to pay to the plaintiff the following sums: (a)
P150,000.00 for moral damages; (b) P50,000.00 for exemplary damages; (c)
P20.000.00 for attorney's fees and (d) P1,000.00 for litigation expenses;
2. Dismissing the defendant's counterclaim for lack of merit; and
3. Ordering the defendant to pay the costs. 8
Principally contending in his assignment of errors that no actual malice existed
or had been shown in respect to the questioned (second) memorandum and that
in any case, the assailed letter was protected by the privileged communication
rule, the private respondent appealed the trial court's decision to the Court of
Appeals.
On February 21, 1995, respondent court reversed the trial court's decision on the
ground that the memorandum was not libelous being "within the ambit of
privileged communications." Motion for Reconsideration was denied by the
Court of Appeals on May 31, 1995, hence, the instant petition for review on
certiorari.
The appeal is not impressed with merit.
The provisions of law applicable to the case at bar are embodied in Articles 353
and 354 of the Revised Penal Code which state the following:
Art. 353. Definition of Libel. — A libel is a public and malicious imputation of
a crime, or of a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and justifiable
motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance
of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks,
of any judicial, legislative or other official proceedings which are not of
confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of
their functions.
Nothing in the evidence on record would suggest that the key elements of
publicity found in the definition of libel in Article 353 of the Revised Penal Code
are present in the case before us.
Firstly, the assailed letter was obviously part and parcel of the initial investigation
surrounding the non-remittance of collections by petitioner. The right hand
caption of the memorandum clearly shows the phrase "Inter-office
Memorandum," 9 implying confidentiality. Secondly, petitioner was unable to
prove that the letter was circulated or publicized, much less read by officers of
the corporation other than those involved in the investigation or those directly
supervising the petitioner's work. While imputation of a vice or defect on the
petitioner's character might have been apparent from the second to the last
paragraph of the memorandum, the imputation was never really made publicly.
More importantly, petitioner in the court below was not able to establish
satisfactorily that the issuance of the letter and its offending paragraph was
motivated by malice. As respondent Court of Appeals correctly held:
Neither does this Court find positive proof that the appellant was motivated by
malice in the issuance of the memorandum claimed to be libelous, addressed to
the proper officials of San Miguel Corporation. In other words, the onus of
proving actual malice is placed on the plaintiff-appellee who must convince the
Court that the offender was prompted by malice or ill will. Once this is
accomplished, the defense of privilege is unavailing. (Nanerico D. Santos vs. The
Court of Appeals, et. al., 203 SCRA 110, 114.) Our ruling is buttressed by the
fact that no proof has been adduced to show that the subject Memorandum was
released to persons other than the officials concerned. . . . 10
Malice exists when there is an intentional doing of a wrongful act without just
cause. An imputation is legally malicious if done without any reason that would
justify a normally conscientious man in so making the imputation. 11 While the
law presumes every defamatory imputation to be malicious, there are exceptions
to this rule. The record indicates that this case falls under the settled exceptions
to the rule: the private respondent's inter-office memorandum falls within the
ambit of privileged communication rule.
A privileged communication is one made bona fide upon any subject matter in
which the party communicating has an interest, or in reference to which he has a
duty. 12 Discussing the scope of this rule, former Chief Justice Fernando, in
Mercado v. CFI of Rizal, 13 explained that:
. . . . Even when the statements are found to be false, if there is probable cause
for belief in their truthfulness and the charge is made in good faith, the mantle of
privilege may still cover the mistake of the individual. But the statements must
be made under an honest sense of duty;
....
In the instant case, it is well-worth stressing that the private respondent was, as
the District Sales Supervisor of the corporation's Dipolog office, the immediate
supervisor of petitioner. In this capacity, respondent was charged with the duty
to carry out and enforce company rules and policies, including the duty to
undertake initial investigation of possible irregularities in customer accounts in
order to suggest further action which could be taken by the company. In fact, the
communications initially submitted by the private respondent to his superiors
prompted the investigation which eventually led to petitioner's preventive
suspension and to the decision by the company's proper officers to terminate the
latter's employment. In making his earlier recommendation, the private
respondent relied on the affidavits submitted by at least three of the company's
clients (all attesting to irregularities) 14 and his initial though yet-unsubstantiated
findings that respondent was an "avid mahjong player and a cockfight
enthusiast." That the affidavits were subsequently found to have been gathered
by the private respondent himself did not diminish their quality. Investigation
necessarily includes the gathering and solicitation of information.
Even granting that the questioned memorandum — particularly the above quoted
paragraph — contains statements which could be slanderous and therefore
actionable were they not protected by the rule on privileged communications, still
as no malice was shown, we agree with the respondent court's conclusion that the
assailed memorandum report was an official act done in good faith, an honest
innocent statement arising from a moral and legal obligation which the private
respondent certainly owed to the company in the performance of his duties. The
opinion which the private respondent expressed in the discharge of his duty might
have skirted the boundary which usually separates innocent opinion from
actionable defamation. Paradoxically, however, if he did not hazard the warning,
though it might have subsequently turned out to be a reckless one, he would have
been remiss in his responsibilities to the company. The rule on privileged
communications allows the latitude of expression embodied in the private
respondent's second memorandum.
WHEREFORE, there being no reversible error in the decision sought to be
reviewed, the petition is hereby DENIED.
SO ORDERED.
Note.—There is a right to publish the truth, but no right to publish falsehood to
the injury of others with impunity. (People vs. Godoy, 243 SCRA 64 [1995])
Fortich vs. Court of Appeals, 268 SCRA 152, G.R. No. 120769 February 12,
1997
G.R. No. 143439. October 14, 2005
MAXIMO ALVAREZ, petitioner, vs. SUSAN RAMIREZ, respondent.
Remedial Law; Evidence; Witnesses; Words and Phrases; Marital
Disqualification; 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.—Section
22, Rule 130 of the Revised Rules of Court provides: “Sec. 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.” The reasons given for the rule are: 1. There is identity of interests
between husband and wife; 2. If one were to testify for or against the other, there
is consequent danger of perjury; 3. The policy of the law is to guard the security
and confidences of private life, even at the risk of an occasional failure of justice,
and to prevent domestic disunion and unhappiness; and 4. Where there is want of
domestic tranquility there is danger of punishing one spouse through the hostile
testimony of the other. Alvarez vs. Ramirez, 473 SCRA 72, G.R. No. 143439
October 14, 2005
Before us is a petition for review on certiorari1 assailing the Decision2 of the
Court of Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled "Susan
Ramirez, petitioner, versus, Hon. Benjamin M. Aquino, Jr., as Judge RTC,
Malabon, MM, Br. 72, and Maximo Alvarez, respondents."
Susan Ramirez, herein respondent, is the complaining witness in Criminal Case
No. 19933-MN for arson3 pending before the Regional Trial Court, Branch 72,
Malabon City. The accused is Maximo Alvarez, herein petitioner. He is the
husband of Esperanza G. Alvarez, sister of respondent.
On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness
stand as the first witness against petitioner, her husband. Petitioner and his
counsel raised no objection.
Esperanza testified as follows:
"ATTY. ALCANTARA:
We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor.
COURT:
Swear in the witness.
xxx
ATTY. MESIAH: (sic)
Your Honor, we are offering the testimony of this witness for the purpose of
proving that the accused Maximo Alvarez committed all the elements of the
crime being charged particularly that accused Maximo Alvarez pour on May 29,
1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan,
Navotas, Metro Manila, the house owned by his sister-in-law Susan Ramirez; that
accused Maximo Alvarez after pouring the gasoline on the door of the house of
Susan Ramirez ignited and set it on fire; that the accused at the time he
successfully set the house on fire (sic) of Susan Ramirez knew that it was
occupied by Susan Ramirez, the members of the family as well as Esperanza
Alvarez, the estranged wife of the accused; that as a consequence of the accused
in successfully setting the fire to the house of Susan Ramirez, the door of said
house was burned and together with several articles of the house, including shoes,
chairs and others.
COURT:
You may proceed.
xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx
Q: When you were able to find the source, incidentally what was the source of
that scent?
A: When I stand by the window, sir, I saw a man pouring the gasoline in the
house of my sister (and witness pointing to the person of the accused inside the
court room).
Q: For the record, Mrs. Witness, can you state the name of that person, if you
know?
A: He is my husband, sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to see, can you identify him?
A: Yes, sir.
Q: If you can see him inside the Court room, can you please point him?
A: Witness pointing to a person and when asked to stand and asked his name, he
gave his name as Maximo Alvarez."4
In the course of Esperanza’s direct testimony against petitioner, the latter showed
"uncontrolled emotions," prompting the trial judge to suspend the proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion5 to disqualify
Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules
of Court on marital disqualification.
Respondent filed an opposition6 to the motion. Pending resolution of the motion,
the trial court directed the prosecution to proceed with the presentation of the
other witnesses.
On September 2, 1999, the trial court issued the questioned Order disqualifying
Esperanza Alvarez from further testifying and deleting her testimony from the
records.7 The prosecution filed a motion for reconsideration but was denied in
the other assailed Order dated October 19, 1999.8
This prompted respondent Susan Ramirez, the complaining witness in Criminal
Case No. 19933-MN, to file with the Court of Appeals a petition for certiorari9
with application for preliminary injunction and temporary restraining order.10
On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting
aside the assailed Orders issued by the trial court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether Esperanza Alvarez can testify against her
husband in Criminal Case No. 19933-MN.
Section 22, Rule 130 of the Revised Rules of Court provides:
"Sec. 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."
The reasons given for the rule are:
1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is consequent danger of
perjury;
3. The policy of the law is to guard the security and confidences of private life,
even at the risk of an occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. Where there is want of domestic tranquility there is danger of punishing one
spouse through the hostile testimony of the other.11
But like all other general rules, the marital disqualification rule has its own
exceptions, both in civil actions between the spouses and in criminal cases for
offenses committed by one against the other. Like the rule itself, the exceptions
are backed by sound reasons which, in the excepted cases, outweigh those in
support of the general rule. For instance, where the marital and domestic relations
are so strained that there is no more harmony to be preserved nor peace and
tranquility which may be disturbed, the reason based upon such harmony and
tranquility fails. In such a case, identity of interests disappears and the consequent
danger of perjury based on that identity is non-existent. Likewise, in such a
situation, the security and confidences of private life, which the law aims at
protecting, will be nothing but ideals, which through their absence, merely leave
a void in the unhappy home.12
In Ordoño vs. Daquigan,13 this Court held:
"We think that the correct rule, which may be adopted in this jurisdiction, is that
laid down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the
court said:
‘The rule that the injury must amount to a physical wrong upon the person is too
narrow; and the rule that any offense remotely or indirectly affecting domestic
harmony comes within the exception is too broad. The better rule is that, when
an offense directly attacks, or directly and vitally impairs, the conjugal relation,
it comes within the exception to the statute that one shall not be a witness against
the other except in a criminal prosecution for a crime committee (by) one against
the other.’"
WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial
court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez to
testify against petitioner, her husband, in Criminal Case No. 19933-MN. Costs
against petitioner.
SO ORDERED.

Obviously, the offense of arson attributed to petitioner, directly impairs the
conjugal relation between him and his wife Esperanza. His act, as embodied in
the Information for arson filed against him, eradicates all the major aspects of
marital life such as trust, confidence, respect and love by which virtues the
conjugal relationship survives and flourishes.
Note.—For marital disqualification to apply, it is necessary that the marriage is
valid and subsisting at the time the testimony is offered. (Arroyo vs. Azur, 76
Phil. 493 [1946]). Alvarez vs. Ramirez, 473 SCRA 72, G.R. No. 143439 October
14, 20059

As correctly observed by the Court of Appeals:

"The act of private respondent in setting fire to the house of his sister-in-law
Susan Ramirez, knowing fully well that his wife was there, and in fact with the
alleged intent of injuring the latter, is an act totally alien to the harmony and
confidences of marital relation which the disqualification primarily seeks to
protect. The criminal act complained of had the effect of directly and vitally
impairing the conjugal relation. It underscored the fact that the marital and
domestic relations between her and the accused-husband have become so strained
that there is no more harmony, peace or tranquility to be preserved. The Supreme
Court has held that in such a case, identity is non-existent. In such a situation, the
security and confidences of private life which the law aims to protect are nothing
but ideals which through their absence, merely leave a void in the unhappy home.
(People v. Castañeda, 271 SCRA 504). Thus, there is no longer any reason to
apply the Marital Disqualification Rule."

It should be stressed that as shown by the records, prior to the commission of the
offense, the relationship between petitioner and his wife was already strained. In
fact, they were separated de facto almost six months before the incident. Indeed,
the evidence and facts presented reveal that the preservation of the marriage
between petitioner and Esperanza is no longer an interest the State aims to
protect.

At this point, it bears emphasis that the State, being interested in laying the truth
before the courts so that the guilty may be punished and the innocent exonerated,
must have the right to offer the direct testimony of Esperanza, even against the
objection of the accused, because (as stated by this Court in Francisco14), "it was
the latter himself who gave rise to its necessity."
Adm. Case No. 4078. July 14, 2003.*
WILLIAM ONG GENATO, complainant, vs. ATTY. ESSEX L. SILAPAN,
respondent.
Administrative Law; Attorneys; Lawyer-client Relationship; An attorney is not
permitted to disclose communications made to him in his professional character
by a client, unless the latter consents.—Canon 17 of the Code of Professional
Responsibility provides that a lawyer owes fidelity to the cause of his client and
shall be mindful of the trust and confidence reposed on him. The long-established
rule is that an attorney is not permitted to disclose communications made to him
in his professional character by a client, unless the latter consents. This obligation
to preserve the confidences and secrets of a client arises at the inception of their
relationship. The protection given to the client is perpetual and does not cease
with the termination of the litigation, nor is it affected by the party’s ceasing to
employ the attorney and retaining another, or by any other change of relation
between them. It even survives the death of the client.
Same; Same; Same; The privilege against disclosure of confidential
communications or information is limited only to communications which are
legitimately and properly within the scope of a lawful employment of a lawyer;
It does not extend to those made in contemplation of a crime or perpetration of a
fraud.—It must be stressed, however, that the privilege against disclosure of
confidential communications or information is limited only to communications
which are legitimately and properly within the scope of a lawful employment of
a lawyer. It does not extend to those made in contemplation of a crime or
perpetration of a fraud. If the unlawful purpose is avowed, as in this case, the
complainant’s alleged intention to bribe government officials in relation to his
case, the communication is not covered by the privilege as the client does not
consult the lawyer professionally. It is not within the profession of a lawyer to
advise a client as to how he may commit a crime as a lawyer is not a gun for hire.
Thus, the attorney-client privilege does not attach, there being no professional
employment in the strict sense.
Same; Same; Same; A lawyer must conduct himself, especially in his dealings
with his clients, with integrity in a manner that is beyond reproach.—Be that as
it may, respondent’s explanation that it was necessary for him to make the
disclosures in his pleadings fails to satisfy us. The disclosures were not
indispensable to protect his rights as they were not pertinent to the foreclosure
case. It was improper for the respondent to use it against the complainant in the
foreclosure case as it was not the subject matter of litigation therein and
respondent’s professional competence and legal advice were not being attacked
in said case. A lawyer must conduct himself, especially in his dealings with his
clients, with integrity in a manner that is beyond reproach. His relationship with
his clients should be characterized by the highest degree of good faith and
fairness. Genato vs. Silapan, 406 SCRA 75, Adm. Case No. 4078 July 14, 2003
In this complaint for disbarment filed by William Ong Genato against respondent
Atty. Essex L. Silapan, complainant alleged that in July 1992, respondent asked
if he could rent a small office space in complainant's building in Quezon City for
his law practice. Complainant acceded and introduced respondent to Atty.
Benjamin Dacanay, complainant's retained lawyer, who accommodated
respondent in the building and made him handle some of complainant's cases.
Hence, the start of the legal relationship between complainant and respondent.
The conflict between the parties started when respondent borrowed two hundred
thousand pesos (P200,000.00) from complainant which he intended to use as
downpayment for the purchase of a new car. In return, respondent issued to
complainant a postdated check in the amount of P176,528.00 to answer for the
six (6) months interest on the loan. He likewise mortgaged to complainant his
house and lot in Quezon City but did not surrender its title claiming that it was
the subject of reconstitution proceedings before the Quezon City Register of
Deeds.
With the money borrowed from complainant, respondent purchased a new car.
However, the document of sale of the car was issued in complainant's name and
financed through City Trust Company.
In January 1993, respondent introduced to complainant a certain Emmanuel
Romero. Romero likewise wanted to borrow money from complainant.
Complainant lent Romero the money and, from this transaction, respondent
earned commission in the amount of P52,289.90. Complainant used the
commission to pay respondent's arrears with the car financing firm.
Subsequently, respondent failed to pay the amortization on the car and the
financing firm sent demand letters to complainant. Complainant tried to encash
respondent's postdated check with the drawee bank but it was dishonored as
respondent's account therein was already closed.
Respondent failed to heed complainant's repeated demands for payment.
Complainant then filed a criminal case against respondent for violation of Batas
Pambansa Blg. 22 and a civil case for judicial foreclosure of real estate mortgage.
In the foreclosure case, respondent made the following allegation in his Answer:

xxx xxx xxx
4. That complainant is a businessman who is engaged in the real estate business,
trading and buy and sell of deficiency taxed imported cars, shark loans and other
shady deals and has many cases pending in court;
xxx xxx xxx
Complainant denied respondent's charges and claimed that respondent's
allegation is libelous and not privilege as it was irrelevant to the foreclosure case.
Complainant further pointed to paragraph 12 of respondent's Answer, thus:
12. That on January 29, 1993, before paying for the next installment on his car
on January 30, 1993, defendant Essex L. Silapan asked the complainant to
execute a Deed of Sale transferring ownership of the car to him but the latter said
that he will only do so after the termination of his criminal case at Branch 138 of
the Regional Trial Court of Makati, Metro Manila, x x x where he (complainant)
wanted Essex L. Silapan, his former counsel in that case, to offer bribe money to
the members of the review committee of the Department of Justice where a
petition for review of the resolution of the Investigating Prosecutor was pending
at the time, x x x or, in the event that the said petition for review is denied, he
wanted Essex L. Silapan to offer bribe money to the prosecutor assigned at the
above-mentioned Court, and even to the presiding Judge, for his eventual
acquittal, which defendant Essex L. Silapan all refused to do not only because
such acts are immoral and illegal, but also because the complainant confided to
him that he was really involved in the commission of the crime that was charged
of in the above-mentioned case. (emphasis supplied)
Complainant gripes that the foregoing allegations are false, immaterial to the
foreclosure case and maliciously designed to defame him. He charged that in
making such allegations, respondent is guilty of breaking their confidential
lawyer-client relationship and should be held administratively liable therefor.
Consequently, he filed this complaint for disbarment, praying also that an
administrative sanction be meted against respondent for his issuance of a
bouncing check.
When required by the Court to comment, respondent explained1 that it was
complainant who offered him an office space in his building and retained him as
counsel as the latter was impressed with the way he handled a B.P. 22 case2 filed
against complainant. Respondent insisted that there was nothing libelous in his
imputations of dishonest business practices to complainant and his revelation of
complainant's desire to bribe government officials in relation to his pending
criminal case. He claimed to have made these statements in the course of judicial
proceedings to defend his case and discredit complainant's credibility by
establishing his criminal propensity to commit fraud, tell lies and violate laws.
He argued that he is not guilty of breaking his confidential lawyer-client
relationship with complainant as he made the disclosure in defense of his honor
and reputation.
Secondly, respondent asserted that he executed the real estate mortgage in favor
of complainant without consideration and only as a "formal requirement" so he
could obtain the P200,000.00 loan and for this reason, he did not surrender his
title over the mortgaged property to complainant.
Thirdly, respondent claimed that he issued the postdated check, not for account
or for value, but only: (a) to serve as "some kind of acknowledgment" that he
already received in advance a portion of his attorney's fees from the complainant
for the legal services he rendered, and (b) as a form of assurance that he will not
abandon the cases he was handling for complainant.
Lastly, respondent denied that he received a P52,289.90 commission from
Romero's loan which he allegedly helped facilitate. He alleged that the amount
was paid to him by Romero as attorney's fees, the latter being his client. He used
this amount to pay his arrears with the car financing firm. On January 29, 1993,
before paying the next amortization on the car, he asked complainant to execute
a deed of sale transferring ownership of the car to him. Complainant refused and
insisted that he would transfer ownership of the car only after the termination of
his criminal case which respondent was handling as his defense lawyer.
Consequently, respondent stopped paying the amortization on the car.
Respondent also alleged that he filed a perjury case against complainant who, in
turn, filed a complaint for libel against him.
In a Resolution, dated October 27, 1993, the Court referred the administrative
case to the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
On August 3, 2002, the Board of Governors of the IBP approved the report of the
investigating commissioner finding the respondent guilty as charged and
recommending his suspension from the practice of law for one (1) year.
We affirm the findings and recommendation of the IBP.
Prefatorily, we stress that we shall not delve into the merits of the various criminal
and civil cases pending between the parties. It is for the trial courts handling these
cases to ascertain the truth or falsity of the allegations made therein. For this
reason, it is not for us to sanction respondent for his issuance of a bouncing check.
His liability has yet to be determined by the trial court where his case is pending.
The only issue in this administrative case is whether respondent committed a
breach of trust and confidence by imputing to complainant illegal practices and
disclosing complainant's alleged intention to bribe government officials in
connection with a pending case.
his clients should be characterized by the highest degree of good faith and
fairness.
Thus, the Court agrees with the evaluation of the IBP and finds that respondent's
allegations and disclosures in the foreclosure case amount to a breach of fidelity
sufficient to warrant the imposition of disciplinary sanction against him.
However, the recommended penalty of one (1) year suspension of respondent
from the practice of law seems to be disproportionate to his breach of duty
considering that a review of the records of this Court reveals that this is the first
administrative complaint against him.

Canon 17 of the Code of Professional Responsibility provides that a lawyer owes
fidelity to the cause of his client and shall be mindful of the trust and confidence
reposed on him. The long-established rule is that an attorney is not permitted to
disclose communications made to him in his professional character by a client,
unless the latter consents. This obligation to preserve the confidences and secrets
of a client arises at the inception of their relationship.3 The protection given to
the client is perpetual and does not cease with the termination of the litigation,
nor is it affected by the party's ceasing to employ the attorney and retaining
another, or by any other change of relation between them. It even survives the
death of the client.4
IN VIEW WHEREOF, respondent Atty. Essex L. Silapan is ordered suspended
from the practice of law for a period of six (6) months effective upon receipt of
this Decision. Let a copy of this Decision be furnished the Office of the Bar
Confidant and the Integrated Bar of the Philippines. The Court Administrator is
directed to circulate this order of suspension to all courts in the country.
SO ORDERED.

It must be stressed, however, that the privilege against disclosure of confidential

communications or information is limited only to communications which are
legitimately and properly within the scope of a lawful employment of a lawyer.
It does not extend to those made in contemplation of a crime or perpetration of a
fraud.5 If the unlawful purpose is avowed, as in this case, the complainant's
alleged intention to bribe government officials in relation to his case, the
communication is not covered by the privilege as the client does not consult the
lawyer professionally. It is not within the profession of a lawyer to advise a client
as to how he may commit a crime as a lawyer is not a gun for hire. Thus, the
attorney-client privilege does not attach, there being no professional employment
in the strict sense.

Be that as it may, respondent's explanation that it was necessary for him to make
the disclosures in his pleadings fails to satisfy us. The disclosures were not
indispensable to protect his rights as they were not pertinent to the foreclosure
case. It was improper for the respondent to use it against the complainant in the
foreclosure case as it was not the subject matter of litigation therein and
respondent's professional competence and legal advice were not being attacked
in said case. A lawyer must conduct himself, especially in his dealings with his
clients, with integrity in a manner that is beyond reproach. His relationship with
G.R. No. 91114. September 25, 1992
NELLY LIM, petitioner, vs. THE COURT OF APPEALS, HON. MANUEL
D. VICTORIO, as Presiding Judge of RTC-Rosales, Pangasinan, Branch 53,
and JUAN SIM, respondents.
1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED
COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; RATIONAL
BEHIND THE RULE. — This rule on the physician-patient privilege is intended
to facilitate and make safe full and confidential disclosure by the patient to the
physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the
witness stand, to the end that the physician may form a correct opinion, and be
enabled safely and efficaciously to treat his patient. It rests in public policy and
is for the general interest of the community.
2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. — Since the object of the
privilege is to protect the patient, it may be waived if no timely objection is made
to the physician’s testimony.
3. ID.; ID.; ID.; ID.; ID.; REQUISITES. — In order that the privilege may be
successfully claimed, the following requisites must concur: "1. the privilege is
claimed in a civil case; 2. the person against whom the privilege is claimed is one
duly authorized to practice medicine, surgery or obstetrics; 3. such person
acquired the information while he was attending to the patient in his professional
capacity; 4. the information was necessary to enable him to act in that capacity;
and 5. the information was confidential, and, if disclosed, would blacken the
reputation (formerly character) of the patient."
4. ID.; ID.; ID.; ID.; CONDITIONS. — These requisites conform with the four
(4) fundamental conditions necessary for the establishment of a privilege against
the disclosure of certain communications, to wit: "1. The communications must
originate in a confidence that they will not be disclosed. 2. This element of
confidentiality must be essential to the full and satisfactory maintenance of the
relation between the parties. 3. The relation must be one which in the opinion of
the community ought to be sedulously fostered 4. The injury that would inure to
the relation by the disclosure of the communications must be greater than the
benefit thereby gained for the correct disposal of litigation."
5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. — The
physician may be considered to be acting in his professional capacity when he
attends to the patient for curative, preventive, or palliative treatment. Thus, only
disclosures which would have been made to the physician to enable him "safely
and efficaciously to treat his patient" are covered by the privilege. It is to be
emphasized that "it is the tenor only of the communication that is privileged. The
mere fact of making a communication, as well as the date of a consultation and
the number of consultations, are therefore not privileged from disclosure, so long
as the subject communicated is not stated."
6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO
CLAIMS PRIVILEGED COMMUNICATIONS MUST PROVE REQUISITES
THEREOF. — One who claims this privilege must prove the presence of these
aforementioned requisites.
7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT
PRIVILEGE; INFORMATION GATHERED IN PRESENCE OF THIRD
PARTIES, NOT PRIVILEGED. — There is authority to the effect that
information elicited during consultation with a physician in the presence of third
parties removes such information from the mantle of the privilege: "Some courts
have held that the casual presence of a third person destroys the confidential
nature of the communication between doctor and patient and thus destroys the
privilege, and that under such circumstances the doctor may testify. Other courts
have reached a contrary result."
8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. — while
it may be true that counsel for the petitioner opposed the oral request for the
issuance of a subpoena ad testificandum to Dr. Acampado and filed a formal
motion for the quashal of the said subpoena a day before the witness was to
testify, the petitioner makes no claim in any of her pleadings that her counsel had
objected to any question asked of the witness on the ground that it elicited an
answer that would violate the privilege, despite the trial court’s advise that said
counsel may interpose his objection to the testimony "once it becomes apparent
that the testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic notes of the
testimony of Dr. Acampado quoted in the petitioner’s Petition and Memorandum,
and in the private respondent’s Memorandum, do not at all show that any
objections were interposed. Even granting ex gratia that the testimony of Dr.
Acampado could be covered by the privilege, the failure to seasonably object
thereto amounted to a waiver thereof.
This petition brings into focus the rule on the confidentiality of the physician-
patient relationship. Petitioner urges this Court to strike down as being violative
thereof the resolution of public respondent Court of Appeals in C.A.-G.R. SP No.
16991 denying due course to a petition to annul the order of the trial court
allowing a Psychiatrist of the National Mental Hospital to testify as an expert
witness and not as an attending physician of petitioner.
The parties are in agreement as to the following facts:
Petitioner and private respondent are lawfully married to each other.
On 25 November 1987, private respondent filed with Branch 53 of the Regional
Trial Court (RTC) of Pangasinan a petition for annulment of such marriage on
the ground that petitioner has been allegedly suffering from a mental illness
called schizophrenia "before, during and after the marriage and until the present."
After the issues were joined and the pre-trial was terminated, trial on the merits
ensued. Private respondent presented three (3) witnesses before taking the
witness stand himself to testify on his own behalf. On 11 January 1989, private
respondent’s counsel announced that he would present as his next witness the
Chief of the Female Services of the National Mental Hospital, Dr. Lydia
Acampado, a Doctor of Medicine who specializes in Psychiatry. Said counsel
forthwith orally applied for the issuance of a subpoena ad testificandum requiring
Dr. Acampado to testify on 25 January 1989. Petitioner’s counsel opposed the
motion on the ground that the testimony sought to be elicited from the witness is
privileged since the latter had examined the petitioner in a professional capacity
and had diagnosed her to be suffering from schizophrenia. Over such opposition,
the subpoena was issued on 12 January 1989.
On 24 January 1989, petitioner’s counsel filed an urgent omnibus motion to
quash the subpoena and suspend the proceedings pending resolution of the
motion.
Before Dr. Acampado took the witness stand on 25 January 1989, the court heard
this urgent motion. Movant argued that having seen and examined the petitioner
in a professional capacity, Dr. Acampado is barred from testifying under the rule
on the confidentiality of a physician-patient relationship. Counsel for private
respondent contended, however, that Dr. Acampado would be presented as an
expert witness and would not testify on any information acquired while attending
to the petitioner in a professional capacity. The trial court, per respondent Judge,
denied the motion and allowed the witness to testify. Dr. Acampado thus took the
witness stand, was qualified by counsel for private respondent as an expert
witness and was asked hypothetical questions related to her field of expertise.
She neither revealed the illness she examined and treated the petitioner for nor
disclosed the results of her examination and the medicines she had prescribed.
Since petitioner’s counsel insisted that the ruling of the court on the motion be
reduced to writing, respondent Judge issued the following Order on the same
date:
"In his omnibus motion filed with the Court only yesterday, January 24, 1989,
petitioner seeks to prevent Dr. Lydia Acampado from testifying because she saw
and examined respondent Nelly Lim in her professional capacity perforce her
testimony is covered by the privileged (sic) communication rule.
Petitioner contends that Dr. Acampado is being presented as an expert witness
and that she will not testify on any information she acquired in (sic) attending to
Nelly Lim in her professional capacity.
Based on the foregoing manifestation of counsel for petitioner, the Court denied
the respondent’s motion and forthwith allowed Dr. Acampado to testify.
However, the Court advised counsel for respondent to interpose his objection
once it becomes apparent that the testimony sought to be elicited is covered by
the privileged communication rule.
On the witness box, Dr. Acampado answered routinary (sic) questions to qualify
her as an expert in psychiatry; she was asked to render an opinion as to what kind
of illness (sic) are stelazine tablets applied to; she was asked to render an opinion
on a (sic) hypothetical facts respecting certain behaviours of a person; and finally
she admitted she saw and treated Nelly Lim but she never revealed what illness
she examined and treated her (sic); nor (sic) the result of her examination of Nelly
Lim, nor (sic) the medicines she prescribed.
WHEREFORE, the omnibus motion dated January 19, 1989 is hereby DENIED."
1
On 3 March 1989, petitioner filed with the public respondent Court of Appeals a
petition 2 for certiorari and prohibition, docketed therein as C.A.-G.R. SP No.
16991, to annul the aforesaid order of respondent Judge on the ground that the
same was issued with grave abuse of discretion amounting to lack of jurisdiction,
and to prohibit him from proceeding with the reception of Dr. Acampado’s
testimony.chanrobles.com : virtual law library
On 18 September 1989, the Court of Appeals promulgated a resolution 3 denying
due course to the petition on the ground that "the petitioner failed in establishing
the confidential nature of the testimony given by or obtained from Dr. Acampado
when she testified on January 25, 1989." Hence, the respondent Judge committed
no grave abuse of discretion. In support thereof, the respondent Court discussed
the conditions which would render as inadmissible testimonial evidence between
a physician and his patient under paragraph (c), Section 24, Rule 130 of the
Revised Rules of Court and made the following findings:
"The present suit is a civil case for annulment of marriage and the person whose
testimony is sought to be stopped as a privileged communication is a physician,
who was summoned by the patient in her professional capacity for curative
remedy or treatment. The divergence in views is whether the information given
by the physician in her testimony in open court on January 25, 1989 was a
privileged communication. We are of the opinion that they do not fall within the
realm of a privileged communication because the information were (sic) not
obtained from the patient while attending her in her professional capacity and
neither were (sic) the information necessary to enable the physician to prescribe
or give treatment to the patient Nelly Lim. And neither does the information
obtained from the physician tend to blacken the character of the patient or bring
disgrace to her or invite reproach. Dr. Acampado is a Medical Specialist II and
in-charge (sic) of the Female Service of the National Center for Mental Health a
fellow of the Philippine Psychiatrist Association and a Diplomate of the
Philippine Board of Psychiatrists. She was summoned to testify as an expert
witness and not as an attending physician of petitioner.
After a careful scrutiny of the transcript of Dr. Acampado’s testimony, We find
no declaration that touched (sic) or disclosed any information which she has
acquired from her patient, Nelly Lim, during the period she attended her patient
in a professional capacity. Although she testified that she examined and
interviewed the patient, she did not disclose anything she obtained in the course
of her examination, interview and treatment of her patient. Given a set of facts
and asked a hypothetical question, Dr. Acampado rendered an opinion regarding
the history and behaviour of the fictitious character in the hypothetical problem.
The facts and conditions alleged in the hypothetical problem did not refer and
(sic) had no bearing to (sic) whatever information or findings the doctor obtained
from attending the (sic) patient. A physician is not disqualified to testify as an
expert concerning a patient’s ailment, when he can disregard knowledge acquired
in attending such patient and make answer solely on facts related in (sic) the
hypothetical question. (Butler v. Role, 242 Pac. 436; Supreme Court of Arizona
Jan. 7, 1926). Expert testimony of a physician based on hypothetical question
(sic) as to cause of illness of a person whom he has attended is not privileged,
provided the physician does not give testimony tending to disclose confidential
information related to him in his professional capacity while attending to the
patient. (Crago v. City of Cedar Rapids, 98 NW 354, see Jones on Evidence, Vol.
3, p. 843, 3rd Ed.).
The rule on privilege (sic) communication in the relation of physician and patient
proceeds from the fundamental assumption that the communication to deserve
protection must be confidential in their origin. Confidentiality is not to be blindly
implied from the mere relation of physician and patient. It might be implied
according to circumstances of each case, taking into consideration the nature of
the ailment and the occasion of the consultation. The claimant of the privilege
has the burden of establishing in each instance all the facts necessary to create
the privilege, including the confidential nature of the information given." 4
Her motion to reconsider the resolution having been denied, petitioner took this
recourse under Rule 45 of the Rules of Court. In her view, the respondent Court
of Appeals "seriously erred" :
"I.
. . . in not finding that all the essential elements of the rule on physician-patient
privileged communication under Section 21, Rule 130 of the Rules of Court
(Section 24, Rule 130 of the Revised Rules of Evidence) exist in the case at bar.
II.
. . . in believing that Dr. Acampado ‘was summoned as an expert witness and not
as an attending physician of petitioner.’
III.
. . . in concluding that Dr. Acampado made ‘no declaration that touched (sic) or
disclosed any information which she has acquired from her patient, Nelly Lim,
during the period she attended her patient in a professional capacity.’
IV.
. . . in declaring that ‘the petitioner failed in establishing the confidential nature
of the testimony given by or obtained from Dr. Acampado.’" 5
We gave due course to the petition and required the parties to submit their
respective Memoranda 6 after the private respondent filed his Comment 7 and
the petitioner submitted her reply 8 thereto. The parties subsequently filed their
separate Memoranda.
The petition is devoid of any merit. Respondent Court of Appeals committed no
reversible error in its challenged resolution.
The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence
which reads:
"SECTION 24. Disqualification by reason of privileged communication. — The
following persons cannot testify as to matters learned in confidence in the
following cases:
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a
civil case, without the consent of the patient, be examined as to any advice or
treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient."
This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised
Rules of Court with two (2) modifications, namely: (a) the inclusion of the phrase
"advice or treatment given by him," and (b) substitution of the word reputation
for the word character. Said Section 21 in turn is a reproduction of paragraph (f),
Section 26, Rule 123 of the 1940 Rules of Court with a modification consisting
in the change of the phrase "which would tend to blacken" in the latter to "would
blacken." 9 Verily, these changes affected the meaning of the provision. Under
the 1940 Rules of Court, it was sufficient if the information would tend to blacken
the character of the patient. In the 1964 Rules of Court, a stricter requirement was
imposed; it was imperative that the information would blacken such character.
With the advent of the Revised Rules on Evidence on 1 July 1989, the rule was
relaxed once more by the substitution of the word character with the word
reputation. There is a distinction between these two concepts." ‘Character’ is
what a man is, and ‘reputation’ is what he is supposed to be in what people say
he is.’Character’ depends on attributes possessed, and ‘reputation’ on attributes
which others believe one to possess. The former signifies reality and the latter
merely what is accepted to be reality at present." 10
This rule on the physician-patient privilege is intended to facilitate and make safe
full and confidential disclosure by the patient to the physician of all facts,
circumstances and symptoms, untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled safely and efficaciously to
treat his patient. 11 It rests in public policy and is for the general interest of the
community. 12
Since the object of the privilege is to protect the patient, it may be waived if no
timely objection is made to the physician’s testimony. 13
In order that the privilege may be successfully claimed, the following requisites
must concur:
"1. the privilege is claimed in a civil case;
2. the person against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics;
3. such person acquired the information while he was attending to the patient in
his professional capacity;
4. the information was necessary to enable him to act in that capacity; and
5. the information was confidential, and, if disclosed, would blacken the
reputation (formerly character) of the patient." 14
These requisites conform with the four (4) fundamental conditions necessary for
the establishment of a privilege against the disclosure of certain communications,
to wit:
"1. The communications must originate in a confidence that they will not be
disclosed.
2. This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to be
sedulously fostered
4. The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct
disposal of litigation." 15
The physician may be considered to be acting in his professional capacity when
he attends to the patient for curative, preventive, or palliative treatment. Thus,
only disclosures which would have been made to the physician to enable him
"safely and efficaciously to treat his patient" are covered by the privilege. 16 It is
to be emphasized that "it is the tenor only of the communication that is privileged.
The mere fact of making a communication, as well as the date of a consultation
and the number of consultations, are therefore not privileged from disclosure, so
long as the subject communicated is not stated." 17
One who claims this privilege must prove the presence of these aforementioned
requisites. 18
Our careful evaluation of the submitted pleadings leads Us to no other course of
action but to agree with the respondent Court’s observation that the petitioner
failed to discharge that burden. In the first place, Dr. Acampado was presented
and qualified as an expert witness. As correctly held by the Court of Appeals, she
did not disclose anything obtained in the course of her examination, interview
and treatment of the petitioner; moreover, the facts and conditions alleged in the
hypothetical problem did not refer to and had no bearing on whatever information
or findings the doctor obtained while attending to the patient. There is, as well,
no showing that Dr. Acampado’s answers to the questions propounded to her
relating to the hypothetical problem were influenced by the information obtained
from the petitioner. Otherwise stated, her expert opinion excluded whatever
information or knowledge she had about the petitioner which was acquired by
reason of the physician-patient relationship existing between them. As an expert
witness, her testimony before the trial court cannot then be excluded. The rule on
this point is summarized as follows:
"The predominating view, with some scant authority otherwise, is that the
statutory physician-patient privilege, though duly claimed, is not violated by
permitting a physician to give expert opinion testimony in response to a strictly
hypothetical question in a lawsuit involving the physical mental condition of a
patient whom he has attended professionally, where his opinion is based strictly
upon the hypothetical facts stated, excluding and disregarding any personal
professional knowledge he may have concerning such patient. But in order to
avoid the bar of the physician-patient privilege where it is asserted in such a case,
the physician must base his opinion solely upon the facts hypothesized in the
question, excluding from consideration his personal knowledge of the patient
acquired through the physician and patient relationship. If he cannot or does not
exclude from consideration his personal professional knowledge of the patient’s
condition he should not be permitted to testify as to his expert opinion." 19
Secondly, it is quite clear from Dr. Acampado’s testimony that the petitioner was
never interviewed alone. Said interviews were always conducted in the presence
of a third party, thus:
"Q I am asking you, doctor, whom did you interview?
A I interviewed the husband first, then the father and after having the history, I
interviewed the patient, Nelly.
Q How many times did Juan Sim and Nelly Lim go to your office?
A Now, the two (2) of them came three (3) times. As I have stated before, once
in the month of April of 1987 and two (2) times for the month of June 1987, and
after that, since July of 1987, it was the father of Nelly, Dr. Lim, who was
bringing Nelly to me until November of 1987.
Q Now, Dr. Lim is a fellow physician?
A Yes, I understand.
Q Was there anything that he told you when he visited with you in a clinic?
A I would say that there was none. Even if I asked information about Nelly, I
could not get anything from Dr. Lim.
Q Now, when Dr. Lim and his daughter went to your clinic, was there any doctor
who was also present during that interview?
A No, sir, I don’t remember any." 20
There is authority to the effect that information elicited during consultation with
a physician in the presence of third parties removes such information from the
mantle of the privilege:
"Some courts have held that the casual presence of a third person destroys the
confidential nature of the communication between doctor and patient and thus
destroys the privilege, and that under such circumstances the doctor may testify.
Other courts have reached a contrary result." 21
Thirdly, except for the petitioner’s sweeping claim — that" (T)he information
given by Dr. Acampado brings disgrace and invite (sic) reproach to petitioner by
falsely making it appear in the eyes of the trial court and the public that the latter
was suffering from a mental disturbance called schizophrenia — which caused,
and continues to cause, irreparable injury to the name and reputation of petitioner
and her family," 22 — which is based on a wrong premise, nothing specific or
concrete was offered to show that indeed, the information obtained from Dr.
Acampado would blacken the former’s "character" (or "reputation"). Dr.
Acampado never disclosed any information obtained from the petitioner
regarding the latter’s ailment and the treatment recommended therefor.
Finally, while it may be true that counsel for the petitioner opposed the oral
request for the issuance of a subpoena ad testificandum to Dr. Acampado and
filed a formal motion for the quashal of the said subpoena a day before the witness
was to testify, the petitioner makes no claim in any of her pleadings that her
counsel had objected to any question asked of the witness on the ground that it
elicited an answer that would violate the privilege, despite the trial court’s advise
that said counsel may interpose his objection to the testimony "once it becomes
apparent that the testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic notes of the
testimony of Dr. Acampado quoted in the petitioner’s Petition 23 and
Memorandum, 24 and in the private respondent’s Memorandum, 25 do not at all
show that any objections were interposed. Even granting ex gratia that the
testimony of Dr. Acampado could be covered by the privilege, the failure to
seasonably object thereto amounted to a waiver thereof.

WHEREFORE, the instant petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.
G.R. No. 108854. June 14, 1994
MA. PAZ FERNANDEZ KROHN, petitioner, vs. COURT OF APPEALS
and EDGAR KROHN, JR., respondents.
Evidence; Privileged Communication; Physician-Patient Relationship;
Requisites in order that the privilege may be successfully invoked.—Requisites
in order that the privilege may be successfully invoked: (a) the privilege is
claimed in a civil case; (b) the person against whom the privilege is claimed is
one duly authorized to practice medicine, surgery or obstetrics; (c) such person
acquired the information while he was attending to the patient in his professional
capacity; (d) the information was necessary to enable him to act in that capacity;
and, (e) the information was confidential and, if disclosed, would blacken the
reputation (formerly character) of the patient.”
Same; Same; Same; The person against whom the privilege is claimed is not one
duly authorized to practice medicine, surgery or obstetrics. He is the patient’s
husband who wishes to testify on a document executed by medical practitioners.
His testimony cannot have the force and effect of the testimony of the physician
who examined the patient and executed the report.—In the instant case, the
person against whom the privilege is claimed is not one duly authorized to
practice medicine, surgery or obstetrics. He is simply the patient’s husband who
wishes to testify on a document executed by medical practitioners. Plainly and
clearly, this does not fall within the claimed prohibition.
Neither can his testimony be considered a circumvention of the prohibition
because his testimony cannot have the force and effect of the testimony of the
physician who examined the patient and executed the report.
Same; Same; Same; In failing to object to the testimony on the ground that it was
hearsay, counsel waived his right to make such objection and, consequently, the
evidence offered may be admitted.—Counsel for petitioner indulged heavily in
objecting to the testimony of private respondent on the ground that it was
privileged. In his Manifestation before the trial court dated 10 May 1991, he
invoked the rule on privileged communications but never questioned the
testimony as hearsay. It was a fatal mistake. For, in failing to object to the
testimony on the ground that it was hearsay, counsel waived his right to make
such objection and, consequently, the evidence offered may be admitted.
A confidential psychiatric evaluation report is being presented in evidence before
the trial court in a petition for annulment of marriage grounded on psychological
incapacity. The witness testifying on the report is the husband who initiated the
annulment proceedings, not the physician who prepared the report.
The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule
on privileged communication between physician and patient, seeks to enjoin her
husband from disclosing the contents of the report. After failing to convince the
trial court and the appellate court, she is now before us on a petition for review
on certiorari.
On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the
Saint Vincent de Paul Church in San Marcelino, Manila. The union produced
three children, Edgar Johannes, Karl Wilhelm and Alexandra. Their blessings
notwithstanding, the relationship between the couple developed into a stormy
one. In 1971, Ma. Paz underwent psychological testing purportedly in an effort
to ease the marital strain. The effort however proved futile. In 1973, they finally
separated in fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric report on
Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes.
On 2 November 1978, presenting the report among others, he obtained a decree
("Conclusion") from the Tribunal Metropolitanum Matrimoniale in Manila
nullifying his church marriage with Ma. Paz on the ground of "incapacitas
assumendi onera conjugalia due to lack of due discretion existent at the time of
the wedding and thereafter." 1 On 10 July 1979, the decree was confirmed and
pronounced "Final and Definite." 2
Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial
Court) of Pasig, Br. II, issued an order granting the voluntary dissolution of the
conjugal partnership.
On 23 October 1990, Edgar filed a petition for the annulment of his marriage with
Ma. Paz before the trial court. 3 In his petition, he cited the Confidential
Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as
"either unfounded or irrelevant." 4
At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify
on the contents of the Confidential Psychiatric Evaluation Report. This was
objected to on the ground that it violated the rule on privileged communication
between physician and patient. Subsequently, Ma. Paz filed a Manifestation
expressing her "continuing objection" to any evidence, oral or documentary, "that
would thwart the physician-patient privileged communication rule," 5 and
thereafter submitted a Statement for the Record asserting among others that
"there is no factual or legal basis whatsoever for petitioner (Edgar) to claim
'psychological incapacity' to annul their marriage, such ground being completely
false, fabricated and merely an afterthought." 6 Before leaving for Spain where
she has since resided after their separation, Ma. Paz also authorized and instructed
her counsel to oppose the suit and pursue her counterclaim even during her
absence.
On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of
the confidential psychiatric report as evidence, 7 and afterwards moved to strike
out Ma. Paz' Statement for the Record. 8
On 4 June 1991, the trial court issued an Order admitting the Confidential
Psychiatric Evaluation Report in evidence and ruling that —
. . . the Court resolves to overrule the objection and to sustain the Opposition to
the respondent's Motion; first, because the very issue in this case is whether or
not the respondent had been suffering from psychological incapacity; and
secondly, when the said psychiatric report was referred to in the complaint, the
respondent did not object thereto on the ground of the supposed privileged
communication between patient and physician. What was raised by the
respondent was that the said psychiatric report was irrelevant. So, the Court feels
that in the interest of justice and for the purpose of determining whether the
respondent as alleged in the petition was suffering from psychological incapacity,
the said psychiatric report is very material and may be testified to by petitioner
(Edgar Krohn, Jr.) without prejudice on the part of the respondent to dispute the
said report or to cross-examination first the petitioner and later the psychiatrist
who prepared the same if the latter will be presented. 9
On 27 November 1991, the trial court denied the Motion to Reconsider Order
dated June 4, 1991, and directed that the Statement for the Record filed by Ma.
Paz be stricken off the record. A subsequent motion for reconsideration filed by
her counsel was likewise denied.
Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a
Decision promulgated 30 October 1992, the appellate court dismissed the petition
for certiorari. 10 On 5 February 1993, the motion to reconsider the dismissal was
likewise denied. Hence, the instant petition for review.
Petitioner now seeks to enjoin the presentation and disclosure of the contents of
the psychiatric report and prays for the admission of her Statement for the Record
to form part of the records of the case. She argues that since
Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from
testifying on matters which he may have acquired in attending to a patient in a
professional capacity, "WITH MORE REASON should be third person (like
respondent-husband in this particular instance) be PROHIBITED from testifying
on privileged matters between a physician and patient or from submitting any
medical report, findings or evaluation prepared by a physician which the latter
has acquired as a result of his confidential and privileged relation with a patient."
12 She says that the reason behind the prohibition is —
. . . to facilitate and make safe, full and confidential disclosure by a patient to his
physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the
witness stand, to the end that the physician may form a correct opinion, and be
enabled safely and efficaciously to treat his patient. 13
She further argues that to allow her husband to testify on the contents of the
psychiatric evaluation report "will set a very bad and dangerous precedent
because it abets circumvention of the rule's intent in preserving the sanctity,
security and confidence to the relation of physician and his patient." 14 Her thesis
is that what cannot be done directly should not be allowed to be done indirectly.
Petitioner submits that her Statement for the Record simply reiterates under oath
what she asserted in her Answer, which she failed to verify as she had already
left for Spain when her Answer was filed. She maintains that her "Statement for
the Record is a plain and simple pleading and is not as it has never been intended
to take the place of her testimony;" 15 hence, there is no factual and legal basis
whatsoever to expunge it from the records.
Private respondent Edgar Krohn, Jr., however contends that "the rules are very
explicit: the prohibition applies only to a physician. Thus . . . the legal prohibition
to testify is not applicable to the case at bar where the person sought to be barred
from testifying on the privileged communication is the husband and not the
physician of the petitioner." 16 In fact, according to him, the Rules sanction his
testimony considering that a husband may testify against his wife in a civil case
filed by one against the other.
Besides, private respondent submits that privileged communication may be
waived by the person entitled thereto, and this petitioner expressly did when she
gave her unconditional consent to the use of the psychiatric evaluation report
when it was presented to the Tribunal Metropolitanum Matrimoniale which took
it into account among others in deciding the case and declaring their marriage
null and void. Private respondent further argues that petitioner also gave her
implied consent when she failed to specifically object to the admissibility of the
report in her Answer where she merely described the evaluation report as "either
unfounded or irrelevant." At any rate, failure to interpose a timely objection at
the earliest opportunity to the evidence presented on privileged matters may be
construed as an implied waiver.
With regard to the Statement for the Record filed by petitioner, private respondent
posits that this in reality is an amendment of her Answer and thus should comply
with pertinent provisions of the Rules of Court, hence, its exclusion from the
records for failure to comply with the Rules is proper.
The treatise presented by petitioner on the privileged nature of the
communication between physician and patient, as well as the reasons therefor, is
not doubted. Indeed, statutes making communications between physician and
patient privileged are intended to inspire confidence in the patient and encourage
him to make a full disclosure to his physician of his symptoms and condition. 17
Consequently, this prevents the physician from making public information that
will result in humiliation, embarrassment, or disgrace to the patient. 18 For, the
patient should rest assured with the knowledge that the law recognizes the
communication as confidential, and guards against the possibility of his feelings
being shocked or his reputation tarnished by their subsequent disclosure. 19 The
physician-patient privilege creates a zone of privacy, intended to preclude the
humiliation of the patient that may follow the disclosure of his ailments. Indeed,
certain types of information communicated in the context of the physician-patient
relationship fall within the constitutionally protected zone of privacy, 20
including a patient's interest in keeping his mental health records confidential. 21
Thus, it has been observed that the psychotherapist-patient privilege is founded
upon the notion that certain forms of antisocial behavior may be prevented by
encouraging those in need of treatment for emotional problems to secure the
services of a psychotherapist.
Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of
Appeals 22 clearly lays down the requisites in order that the privilege may be
successfully invoked: (a) the privilege is claimed in a civil case; (b) the person
against whom the privilege is claimed is one duly authorized to practice medicine,
surgery or obstetrics; (c) such person acquired the information while he was
attending to the patient in his professional capacity; (d) the information was
necessary to enable him to act in that capacity; and, (e) the information was
confidential and, if disclosed, would blacken the reputation (formerly character)
of the patient.
In the instant case, the person against whom the privilege is claimed is not one
duly authorized to practice medicine, surgery or obstetrics. He is simply the
patient's husband who wishes to testify on a document executed by medical
practitioners. Plainly and clearly, this does not fall within the claimed prohibition.
Neither can his testimony be considered a circumvention of the prohibition
because his testimony cannot have the force and effect of the testimony of the
physician who examined the patient and executed the report.
Counsel for petitioner indulged heavily in objecting to the testimony of private
respondent on the ground that it was privileged. In his Manifestation before the
trial court dated 10 May 1991, he invoked the rule on privileged communications
but never questioned the testimony as hearsay. It was a fatal mistake. For, in
failing to object to the testimony on the ground that it was hearsay, counsel
waived his right to make such objection and, consequently, the evidence offered
may be admitted.
The other issue raised by petitioner is too trivial to merit the full attention of this
Court. The allegations contained in the Statement for the Records are but
refutations of private respondent's declarations which may be denied or disproved
during the trial.
The instant appeal has taken its toll on the petition for annulment. Three years
have already lapsed and private respondent herein, as petitioner before the trial
court, has yet to conclude his testimony thereat. We thus enjoin the trial judge
and the parties' respective counsel to act with deliberate speed in resolving the
main action, and avoid any and all stratagems that may further delay this case. If
all lawyers are allowed to appeal every perceived indiscretion of a judge in the
course of trial and include in their appeals depthless issues, there will be no end
to litigations, and the docket of appellate courts will forever be clogged with
inconsequential cases. Hence, counsel should exercise prudence in appealing
lower court rulings and raise only legitimate issues so as not to retard the
resolution of cases. Indeed, there is no point in unreasonably delaying the
resolution of the petition and prolonging the agony of the wedded couple who
after coming out from a storm still have the right to a renewed blissful life either
alone or in the company of each other. 23
WHEREFORE, the instant petition for review is DENIED for lack of merit. The
assailed Decision of respondent Court of Appeals promulgated on 30 October
1992 is AFFIRMED.
SO ORDERED.
Note.—Failure to object to hearsay evidence constitutes a waiver of the right to
cross-examine the actual witness to the occurrence thereby rendering the
evidence admissible (People vs. Competente, 207 SCRA 591).
 RULE 130, Sec. 36
HEARSAY RULE
No. L-45283-84. March 19, 1982.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCILA
VALERO y VARILLA, defendant-appellant.
Criminal Law; Double murder and frustrated murder; Evidence; Hearsay
evidence or incompetent evidence; Res inter alios acta; Rights of a party cannot
be prejudiced by an act, declaration or omission of another.—Pipe who was the
alleged source of the vital information for the prosecution was never presented
as a witness either for the prosecution or for the defense. Jaime and Velasco were
presented as prosecution witnesses to convey to the Court what they learned from
Pipe by sign language. The evidence is purely hearsay. The presentation of such
evidence likewise violates the principle of res inter alios acta. The rights of a
party cannot be prejudiced by an act, declaration, or omission of another.
Same; Same; Same; Same; Failure to object to presentation of hearsay or
incompetent evidence does not give probative value to the evidence;
Admissibility of evidence not equated with weight of evidence.—The failure of
the defense counsel to object to the presentation of incompetent evidence, like
hearsay evidence or evidence that violates the rules of res inter alios acto, or his
failure to ask for the striking out of the same does not give such evidence any
probative value. The lack of objection may make any incompetent evidence
admissible. But admissibility of evidence should not be equated with weight of
evidence. Hearsay evidence whether objected to or not has no probative value.
Same; Same; Same; Same; Same; Constitutional Law; Right of the defendant to
meet witnesses face to face; Imposition of death penalty based on hearsay
evidence or as part of res gestae violates constitutional right of the defendant to
meet the witnesses face to face and subject the witness to rigid test of cross-
examination; Substantive rights of defendant under the Constitution prevail over
mere technical rules of evidence.—To give weight to the testimonies of Federico
Jaime and Ceferino Velasco, whether considered as hearsay evidence or as part
of res gestae and make the same the basis for the imposition of the death penalty
gravely violates the constitutional right of the defendant to meet the witnesses
face to face and to subject Pipe to the rigid test of cross-examination, the only
effective means to test the truthfulness, memory, intelligence, and in this
particular case, the ability of the deaf-mute, Alfonso Valero alias Pipe, to
communicate with the outside world. In a conflict between a provision of the
constitution giving the defendant a substantive right and mere technical rules of
evidence, we have no choice but to give effect to the constitution.
Same; Same; Acquittal; Witnesses; Credibility; Testimony of an eleventh-hour
witness not credible; Self-contradictions on material points of prosecution
witness; Sign language of deaf mute as a witness not clear and was not cross-
examined to determine ability to communicate.—The tragic poisoning of the
three children is unfortunate. The tragedy was compounded when the trial Court
imposed the death penalty on the accused although the evidence against her does
not justify a conviction. Inspite of the self-contradictions of Rodolfo Quilang on
very material points noticed by the trial Judge, himself, Quilang’s obvious
tendency to prevaricate, and the fact that he is what the appellant’s counsel calls
an “eleventh-hour witness”, which is true, and inspite of the incompetence of the
testimonies of Federico Jaime and Ceferino Velasco whose testimonies are
hearsay evidence, and the practical impossibility of interpreting correctly the sign
language of Pipe, the trial Judge readily accepted their testimonies as basis for
imposing the death penalty in gross violation of the hearsay rule and the
constitutional right of the accused to meet the witness face to face (in the instant
case, the deaf-mute, Pipe), and to cross-examine Pipe in order to determine his
ability to communicate with the outside world.
Lucila Valero alias Rosing and Alfonsito Valero alias "Pipe" were accused in the
Municipal Court of San Rafael, Bulacan in two separate complaints, one of
double murder and the other of frustrated murder.
After the preliminary investigations, the complaints against Alfonsito Valero
were dismissed "on the ground that he is a deaf-mute and, therefore, all the
proceedings against him were beyond his comprehension". Lucila Valero
remained as the sole defendant. After the trial in the Court of First Instance of
Bulacan where the records were later forwarded for appropriate proceedings, the
trial Court convicted Lucila Valero of the complex crime of double murder and
frustrated murder and imposed upon her the extreme penalty of death.
Hence, this automatic review.
The following facts are not disputed. In the morning of February 22, 1969
between 7:00 and 9:00 o'clock of Saturday, Michael, aged 9 months, and
Annabel, aged 1 year and 9 months, both of whom are the children of Ceferino
Velasco, died of poisoning after eating bread containing endrin, a commercial
insecticide. Likewise, Imelda, another minor child of Ceferino, tasted the
poisoned bread and would have died as a consequence were it not for the timely
medical assistance given her. All these three minor children were in the balcony
of their house at San Rafael, Bulacan, when they partook of the poisoned bread.
On the same morning at about the same time that the three minor children partook
of the poisoned bread, three (3) puppies of Ceferino Velasco under the balcony
also died of poisoning.
Earlier that same morning at about 6:00 o'clock, Ceferino Velasco, father of the
victims, was seen throwing poisoned rats into a river near his house.
Investigations were conducted by Cpl. Bucot and Pat. Arturo Ventuso both of the
Police Department of San Rafael, Bulacan. Upon their arrival, they saw the dead
bodies of Michael and Annabel in the house of Ceferino Velasco and the dead
puppies under the balcony. They also saw several pieces of sliced pan scattered
in the sala of the house, near the balcony, and under the balcony. They picked up
some pieces of sliced bread under the balcony, wrapped them in a piece of paper
and submitted them to a chemist for examination. It was found that the bread
contained endrin, a poisonous insecticide. The two minor children, Michael and
Annabel, were also autopsied and the necropsy reports showed that both children
died of poisoning by endrin. Samples of the blood and internal organs of both
Michael and Annabel were also examined by a chemist and it was found that they
contained endrin.
The evidence of the prosecution and the defense conflict as to the source of the
poisoned bread. The evidence of the prosecution shows that the poisoned bread
was given to the children by Alfonso Valero alias Pipe, a deaf-mute brother of
the defendant Lucila Valero, and that it was Lucila Valero who gave the bread to
Pipe for delivery to the minor children. On the other hand, the defendant Lucila
Valero denies that she ever gave bread to her deaf-mute brother, Pipe, for delivery
to the minor children. The evidence for the defense tends to show that the Velasco
children might have eaten one of the sliced poisoned bread used by their father
in poisoning rats in his garden.
It is not denied that Ceferino Velasco has a vegetable garden in his yard. He uses
an insecticide called Polidol to spray the vegetable and uses the same insecticide
to kill rats. According to the testimony of the defendant, which was never rebutted
by Ceferino Velasco, Ceferino also planted vegetables in the yard of the
defendant whose house is just across the street from the house of Ceferino
Velasco. She further testified that Ceferino dipped sliced bread into an insecticide
called endrin, dried them up and later used the poisoned bread as a bait to kill rats
in the yard located by the side of his house. 1
More of the controversial facts will be presented in the following discussion.
We first discuss and assess the evidence for the prosecution. Out of the nine
witnesses for the prosecution three witnesses, namely Rodolfo Quilang, Federico
Jaime, and Ceferino Velasco were presented to prove that the defendant Lucila
Valero gave the poisoned bread to her deaf-mute brother Pipe with the alleged
instruction to deliver the bread to the Velasco children.
We now analyze the testimonies of these three witnesses:
1. Rodolfo Quilang
Only Rodolfo Quilang, among the nine prosecution witnesses testified that he
saw the defendant Lucila Valero deliver "something wrapped in a piece of paper"
2 to her deaf-mute brother Pipe with the alleged instruction by sign language to
deliver the same to the Velasco children. Quilang never saw what was inside the
piece of paper. At the time Quilang saw the delivery to Pipe of the wrapped
object, the defendant and her brother were in the balcony of their house, which
was just near the gate of Ceferino Velasco's house where he (Quilang) was
standing. Upon receipt of the wrapped object, Pipe allegedly proceeded towards
Velasco's house.
According to Quilang, he was "in the act of leaving Velasco's gate when Pipe
"was entering the gate of Ceferino Velasco". 3
Whether or not Quilang saw the delivery to the Velasco children of the
"something wrapped in a piece of paper" is a question that involved this star
prosecution witness into a series of self-contradictions, aptly called by the
appellant's counsel as a "series of basic somersaults" which earned for Quilang a
reprimand from the trial Judge, who, surprisingly later, based the conviction
mainly on the testimony of this flip-flopping witness.
In his affidavit, dated March 8, 1972 (Exhibit "4", p. 437, Record of murder case)
or three (3) years after the poisoning of the Velasco children, Quilang stated that
he actually saw Pipe deliver the wrapped object to the children. The statement
reads as follows:
3. Na nakita kong si Pipe ay nagpunta sa bahay nina Ceferino Velasco at dala-
dala ang inabot ni Lucilang nakabalot sa papel, at noong dumating sa may
hagdanan ni Ceferino, ay nakita kong iniabot ang nakabalot sa mga bata na anak
ni Ceferino Velasco.
Three years later during the trial on September 15, 1975, he declared on cross-
examination, as follows:
Q. When you left the residence of Demetria and Severino (sic) Velasco, Pipe was
just entering the gate of that house, is it not?
A. Yes.
Q. In other words, you did not see Pipe give that something wrapped in a piece
of paper to anybody in the premises because you have already left?
A. Really not.
Q. Are you sure of that?
A. I did not really see. 4
When confronted with the contradiction, Quilang reiterated that he did not see
Pipe deliver the bread, in the following testimony:
Q. You did not answer the question, you stated in open court that you did not see
Pipe give the bread to the children of Ceferino and Demetria Velasco is that
correct?
A. I really said that. 5
On being pressed further to explain the contradiction, Quilang made the absurd
explanation that the self-contradictory statements were both correct. Thus:
Q. And you, of course, realized that you said that under oath?
A. Yes.
Q. Now, in your statement, dated March 8, 1969 (should be March 8, 1972) which
was also under oath, you stated that you saw Pipe give that thing wrapped in a
piece of paper to the children of Severino (sic) and Demetria Velasco, are you
telling that is also true?
A. Yes. 6
The judge must have been so flabbergasted with the inconsistencies that he,
himself, propounded the following question:
Court:
Q. The Court will ask you, did you see Pipe hand over to the deceased children
that something which was wrapped in a piece of paper?
A. Yes, sir. 7
The confusing inconsistencies prompted the Court to proceed further as follows:
Q. A while ago, you were asked by Atty. Rodrigo. You clearly state that you did
not see Pipe hand over this wrapped thing in the paper, do you remember that?
A. Yes, sir.
Q. The Court is now confused, which of these statements it will believe, do you
realize that these two statements are contradictory to each other? 8
After some evasive answers in this attempt to extricate himself from this web of
self-contradictions, the Court insisted as follows:
Q. You are not answering the question, in fact, I remember having asked you
whether or not you saw Pipe hand over this something wrapped to the children
and you said that you did not see, and now you say you saw, can you explain
these inconsistent statements?
A. The truth of the matter was that he handed over. 9
Convinced that Quilang was a lying witness, the trial Judge could not help but
explode an expletive in Tagalog during the cross-examination, as follows:
Atty. Rodrigo:
Q. Did you see that wrapped thing being given or you were just guessing?
A. I saw that he handed over.
Q. But I thought, Mr. Quilang, that when Pipe was just entering the gate of
Ceferino Velasco, and Demetria Velasco, you were already departing from the
place and that you have already left, and this is the reason why you did not see
Pipe handed over that something wrapped on a piece of paper?
A. I was not able to say that.
Court:
Ano ka ba? Narinig kong sinabi mo iyon ah! 10
The tendency of Quilang to prevaricate is shown not only in his self-contradictory
statements on the witness stand but also in the other portions of the record. The
first statement of Quilang (Exhibit "4", p. 437, Record of the Murder case) is
dated March 8, 1972. This date appears twice in the affidavit, first at the end of
the affidavit and second, in the jurat. In both places of the affidavit, the words
"March" and "1972" are typewritten by the same typewriter used in typing the
entire affidavit. The date, however, was left blank so that originally what
appeared at the end of the affidavit and in the jurat was practically "March —
1972 ". Apparently, the affidavit must have been prepared in March of 1972. The
date "8", presumably the date of the swearing before the Fiscal, was typewritten
with a different typewriter on the blank space.
On the witness stand, Quilang stated that he made an affidavit on February 23,
1969. 11 He must have made this statement to make it appear that he was not an
"eleventh-hour witness" as alleged by the defense. When confronted with the
discrepancies in the date appearing in his affidavit, to wit, March 8, 1972, and his
testimony on the witness stand, he insisted that the correct date was February 23,
1969 and that either the Fiscal or the one acting in his behalf committed the error
in indicating the date in his affidavit. 12 It is incredible that a Fiscal administering
the oathtaking on February 23, 1969 and signs the jurat postdates the oath-taking
to March 8, 1972, three years later.
There are other equally strong considerations indicating the lack of credibility of
Quilang. He is what the appellant's counsel calls an "eleventh-hour witness".
When the complaint for frustrated murder and the complaint for murder, both
dated March 11, 1969, were filed with the Municipal Court of San Rafael,
Bulacan, Rodolfo Quilang was not listed as one of the several witnesses. Quilang
never made any statement to the police who initially investigated the case nor to
the Philippine Constabulary which made its own investigation. When the
Municipal Court asked searching questions from several witnesses during the
first stage of the preliminary investigation on March 12, 1969, only Ceferino
Velasco, Concepcion Velasco, Delfin Senorosa, Federico Jaime and Demetria
Manalastas were investigated. Rodolfo Quilang was not one of them. 13
Again, when the information for frustrated murder (pp. 87 to 88, Record of
Frustrated Murder case) and the information for murder (p. 76, Records of
Murder case) were filed in February 1971, the star witness, Rodolfo Quilang, was
not listed among the nine (9) prosecution witnesses. Then on September 15, 1975
or six (6) years after the tragedy, Quilang was suddenly sprung as the star witness,
the only witness who allegedly saw the delivery by the defendant to Pipe of
"something wrapped in a piece of paper" with the alleged instruction by sign
language to deliver the same to the Velasco children. Without the testimony of
Quilang, there would be no evidence to show that the poisoned bread which was
allegedly delivered by Pipe to the Velasco children came from the defendant.
Realizing that there was a missing link, the prosecution thought of presenting
Quilang to provide the missing link six years after the occurrence of the tragedy.
This witness, Aniceto Decalos, a neighbor and old friend of Ciriaco Jimenez, like
the alleged eyewitness Candido Autor did not figure in the list of witnesses for
the prosecution, either in the criminal complaint filed by PC Capt. Golez or in the
Fiscal's indictment. His name was not amongst those who gave affidavits to back
up the criminal charge. This gives the impression that Aniceto Decalos, the
neighbor of the deceased, was but an eleventh-hour witness. To take his
testimony on its face value, we fear, is to rate truth so lightly. 14
2. Federico Jaime and Ceferino Velasco
On the other hand, both Ceferino Velasco and Federico Jaime did not see the
delivery by the defendant to her deaf-mute brother "something wrapped in a piece
of paper". They never saw or heard her giving any instruction to Pipe to deliver
the wrapped object to the children. Both claimed that they learned or obtained the
information from Pipe after interviewing him by means of sign language. Which
the trial Court accepted as competent, trustworthy and credible
The following testimony of Federico Jaime speaks for itself:
Q. Will you please stand up and demonstrate to this Honorable Court how you
talked to him (Pipe) through signs?
A. When I went down, I made this sign to him. (Witness was waiving his two
hands with his palms down and both hands horrizontal along the waist.)
Q. When you made that sign, what was the meaning or Idea that you wanted to
convey ?
A. I was asking him as to what happened to the children and the sign made by
him was like this. (Witness demonstrated by one of his hands demonstrating some
kind of height and at the same time the left hand pointing upwards where the
children were.)
xxx xxx xxx
Q. What do you mean by the sign when your right hand indicating some height
and your left hand pointing towards upward?
A. What I wanted to imply is, I was asking Pipe as to who gave food to them,
your Honor.
Q. Why did it occur to you to go down and try to communicate with Pipe?
A. I saw him down below and he was making signs and I asked the children as to
what happened and he told me that the children were given bread.
Q. What came into your mind when you saw Pipe demonstrating in the manner
that you described ?
A. I just wanted to know as to who gave food to the children, your Honor.
Q. Did you catch any significance in those signs that you saw to Pipe?
A. Yes, your Honor.
Q. What significance that you had in mind?
A. Because the children said that it was Pipe who gave bread, your Honor.
Court:
Proceed.
Fiscal Calderon, Jr.
Q. When you made that sign pointing one hand upward, what was the answer of
Panchito?
A. I inquired from him through signs as to who gave bread to the children by
demonstrating like this (witness demonstrated by seemingly eating something
inside the house with his right hand and his left hand index finger towards the
front and then pointed towards his left index finger).
Q. Towards what direction was Panchito pointing his index finger ?
A. To the sister, sir.
Q. And who is that sister?
A. Precila (sic), sir. Precila (sic) Valero. 15
There is nothing in the foregoing testimony pointing to the defendant Lucila
Valero as the source of the poisoned bread. What is evident is nothing but
confusion. What Jaime asked from Pipe was "Who gave the bread to the
children?" The evidence of the prosecution already shows that Pipe gave the
bread to the children. In reply, it seems that Pipe pointed to the defendant who
was standing nearby.
Here, the confusion is clear. Pipe could not have said that his sister handed over
the poisoned bread to the children because the evidence of the prosecution shows
that Pipe himself, gave the bread to the children. It is clear that Pipe did not
understand the sign language of Jaime and vice-versa.
The testimony of Ceferino Velasco, father of the victims, did not help the
prosecution much either. The following is Ceferino's testimony:
Witness:
Upon seeing Ponsito I asked him what was that and he answered me that it was a
piece of bread and he told me that she was the one who caused the giving of the
bread, sir. (witness pointing to the accused Lucila Valero)
Atty. Rodrigo, Jr.
I would like to make of record that during the narration as to how he asked
Alfonsito, the witness was only demonstrating by using his index finger moving
up and down, your Honor.
Fiscal Calderon, Jr.
Q. When you first asked that question who gave the bread to you, how did
Alfonsito answer?
A. After having given the bread, I asked him who gave the bread, and he said that
the bread came from her (witness demonstrated by swaying his right arm and
pointing his forefinger sidewise.)
Q. Where was Lucila Valero at the time that Alfonsito was demonstrating to you
his answer?
A. She was there on the side of the street, sir. 16
There is nothing in the aforequoted testimony indicating that the deaf-mute, Pipe,
pointed to her sister Lucila Valero as the source of the poisoned bread. We have
examined the entire transcript of the stenographic notes, and, except the
aforequoted portions of the testimony of Federico Jaime and Ceferino Velasco,
there is nothing in the record showing that Pipe communicated to the prosecution
witnesses by comprehensible sign language that his sister was the source of the
poisoned bread.
Aside from the foregoing observation, there are several compelling reasons that
should have made the trial Court reject the testimony of both Jaime and Velasco.
Pipe who was the alleged source of the vital information for the prosecution was
never presented as a witness either for the prosecution or for the defense. Jaime
and Velasco were presented as prosecution witnesses to convey to the Court what
they learned from Pipe by sign language.
The evidence is purely hearsay. 17 The presentation of such evidence likewise
violates the principle of res inter alios acta. The rights of a party cannot be
prejudiced by an act, declaration, or omission of another. 18
With particular reference to the testimony of Ceferino Velasco, its admission
cannot be justified by claiming that it is a part of the res gestae. When Pipe
allegedly revealed to Ceferino Velasco that the source of the poisoned bread was
the defendant, the children had not eaten or tasted it. Nobody was yet poisoned.
Stated otherwise, there was no startling Occurrence yet. 19
With reference to the testimony of Jaime, there is no showing that Pipe made the
extrajudicial revelation spontaneously when he was still under the influence of a
startling occurrence. Pipe made his extrajudicial revelation not spontaneously but
after an interview through the complicated process of sign language.
The failure of the defense counsel to object to the presentation of incompetent
evidence, like hearsay evidence or evidence that violates the rule of res inter alios
acta, or his failure to ask for the striking out of the same does not give such
evidence any probative value. The lack of objection may make any incompetent
evidence admissible. 20 But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to or not has no probative
value. 21
To give weight to the testimonies of Federico Jaime and Ceferino Velasco,
whether considered as hearsay evidence or as part of res gestae and make the
same the basis for the imposition of the death penalty gravely violates the
constitutional right of the defendant to meet the witnesses face to face and to
subject Pipe to the rigid test of cross-examination, the only effective means to
test the truthfulness, memory, intelligence, and in this particular case, the ability
of the deaf-mute, Alfonso Valero alias Pipe, to communicate with the outside
world. In conflict between a provision of the constitution giving the defendant a
substantive right and mere technical rules of evidence, we have no choice but to
give effect to the constitution.
The cross-examination of Pipe, the source of the vital information for the
prosecution, would have shown clearly his incompetence as a witness. During
the preliminary investigation in the Municipal Court, experts on deaf-mutes like
Belen Herreros who is the official interpreter of the only school for the deaf and
the blind in the Philippines, assisted by Mrs. Felicidad Vinluan who is the
principal of the school of the deaf and the blind, Mesdames Gilda Tatum and
Salud Natividad, examined Alfonsito Valero alias Pipe and reported to the
Municipal Court that "questions addressed to him (Alfonso Valero) and answers
given by him cannot be accurately interpreted". 22
As a result of the testimonies and the report made by the aforementioned experts,
the Municipal Court dismissed the murder and frustrated murder cases against
Alfonsito Valero, alias Pipe, who was then the co-accused of Lucila Valero, "on
the ground that he (Pipe) is a deaf-mute and, therefore, all the proceedings against
him were beyond his comprehension". 23
Even prosecution witnesses Ceferino Velasco and Federico Jaime admitted on
cross-examination that their interpretations of the sign language of Pipe were
only guess work.
Thus, Ceferino admitted on cross-examination:
Q. As a matter of fact, most of your interpretation would be only guess work on
your part, is it not?
A. Yes, sir. 24
Jaime practically made a similar admission, as follows:

Q. When you were requested to demonstrate how you conveyed the Idea to Pipe
about the giving of the bread to the children, you pointed to a height, is it not?
A. Yes, sir.
Q. How do you demonstrate to Pipe if you wanted to convey that what is to be
taken is star-apple?
Fiscal Calderon:
I object, your Honor.
Court:
May answer.
A. Like that also, sir. (witness demonstrated to be putting something in his
mouth.)
Q. In other words, anything which will be taken by mouth, you just use the same
sign language?
A. Yes, the same sign, sir.
Q. So that it would be safe to conclude that Pipe might have misunderstood your
signs. He could have misunderstood it for rice, bibingka, star-apple or for
anything else?
A. witness gave no answer. 25
Obviously the trial Court committed the grave error of accepting, and worse still,
of giving weight to the testimonies of Federico Jaime and Ceferino Velasco
interpreting the alleged extrajudicial information to them by sign language of
Pipe, when the source of the information himself, Alfonsito Valero alias Pipe,
would have been an incompetent witness had he taken the witness stand.
When Jaime allegedly learned from Pipe that the latter's sister was the source of
the poisoned bread, the defendant was only at the gate of the Velascos near Jaime
but he did not confront her.
Q. When Pipe pointed to Lucila and when you gave the meaning to that sign that
it was Lucila who offered Pipe to give the bread to the children, did you (Federico
Jaime confront Lucila immediately?
A. No, sir.
Q. Did it not occur to you (Federico Jaime to confront, Lucila considering that
you already suspected that it was her (sic) who caused the poisoning of the
children ?
A. No, sir. I did not. 26
The natural reaction of Jaime who is the uncle of the mother of the victims 27,
upon learning the killer of his relatives would have been a violent action or at
least an angry confrontation. Neither did Ceferino Valero confront Lucila Valero
upon allegedly learning that the latter poisoned his children.
Q. After allegedly knowing from Alfonsito that the bread was allegedly given to
him by Lucila, did you (Ceferino Velasco) confront her?
A. No, sir.
Q. As a matter of fact, you never confronted her until you filed this case about
the poisoning of your children?
A. No, sir. I have been very patient with her since the beginning. 28
Moreover, when Ceferino Velasco made a sworn statement on February 25, 1969
or three (3) days after the poisoning of his children, he declared that he did not
know who gave the poisoned bread to his children, thus:
T — Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng tinapay na
ibinigay sa inyong anak?
S — Ang nalalaman ko lamang po ay sa kanila siya galing hindi ko po alam kung
sino ang nagbigay sa kanya. 29
But when he took the witness stand on July 23, 1975 or six years later, he declared
that on that very morning of February 22, 1969, he learned from Pipe, when the
latter was in the act of delivering the bread to the children, that the source of the
bread was the defendant Lucila Valero. 30
When confronted during the cross-examination with the previous affidavit Obviously, Ceferino Velasco is a lying witness. If Ceferino Velasco really
(Exhibit "1-d"), Ceferino Velasco admitted that he made the answers in the learned from Pipe that Lucila Valero poisoned his three children, he might have
affidavit. become violent. Surprisingly, he kept quiet. He did not confront Lucila Valero.
36
Q. You also stated that Alfonsito, by means of sign, told you that the bread came
from his sister, Lucila, the accused in this case? The reason is that the first suspicion of Ceferino Velasco when his three children
were still suffering from the effects of the poison was that his children were
A. Yes, sir. "nausog" (victim of witchcraft). Thus, testified Onofre Adriano, a 73-year old
relative of Ceferino Velasco:
Q. You are sure of that?
Q. On February 22, 1969 at around 9:00 o'clock in the morning, do you remember
A. Yes, sir. having seen Mr. Ceferino Velasco?

Q. Let me now read to you portion of Exh. "1" A. I was fetched at home, sir.

T — Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng tinapay na Q. Who fetched you in your house?
ibinigay sa inyong anak?
A. Ceferino Velasco, sir.
S — Ang nalalaman ko lamang po ay sa kanila siya galing. Hindi ko po alam
kung sino ang nagbigay sa kanya". Do you remember having given that answer? Q. Why did he fetch you in your house?

A. Yes, sir. A. Because according to him one of his children is sick and might have been
"nausog".
Q. You affirm that answer under your present oath?
Q. Why did he fetch you for that purpose?
A. Yes, sir. 31
A. I have a knowledge in the curing of "nausog", sir. 37
This answer prompted the Court to remark: "There seems to be inconsistency".
32 We may add that the inconsistency is on the very fact in issue, namely, the Demetria Manalastas, mother of the victims, also testified:
guilty participation of Lucila Valero.
Q. While you were at the market place of Baliuag, what happened?
When further repeatedly asked by the defense counsel why Ceferino did not state
in his affidavit (Exh. 1-d) that he learned that Lucila was the source of the A. A son of mine came to call me, sir.
poisoned bread, he gave irresponsive and evasive answers. 33
Q. What is the name of your son?
When a witness makes two sworn statements and these two statements incur in
the gravest contradictions, the Court cannot accept either statements as proof. 34 A. Francisco Velasco, sir.

A witness who changes his name and statements, like a Chameleon changes Q. Why did Francisco fetch you?
color, does not inspire confidence. 35
A. He said that the children were "nausog", sir. 38
Aside from the weakness of the evidence for the prosecution, there are other
considerations which negate the guilt of the defendant.
There was no motive for Pipe and Lucila Valero to poison the three children.
Both Pipe and Lucila Valero loved the children. Ceferino Velasco admitted that
even when Pipe was only a small boy, the latter frequented his house to visit his
children. 39 When the children were dying because of the poison, Pipe alternately
fanned Michael and Annabel.
The prosecution, however, claims that the motive of the poisoning was the quarrel
in the morning of February 21, 1969 between Demetria Manalastas, mother of
the victims, and the defendant Lucila Valero. The cause of the quarrel was the
interference of the defendant to protect the children from the scolding and
maltreatment to their own mother. The interference was resented by Manalastas
prompting her to say to the defendant "Don't interfere in the matter because I am
scolding these children of mine." 40 The defendant is not a relative of the Velasco
children. Her intervention in their behalf only shows her affectionate concern for
them. The defendant quarrelled with Demetria Manalastas, not with the Velasco
children. There is no motive whatsoever for the defendant to poison the children.
Even Ceferino Velasco, father of the victims, stated that the cause of the quarrel
was "Wala pong kabagay-bagay" meaning, "very trivial". 41 The quarrel was not
a sufficient cause to commit a heinous crime.
This leaves Us speculating as to the source of the poisoned bread. Rodolfo
Quilang stated that he saw the defendant give Pipe "something wrapped in a piece
of paper." According to Ceferino Velasco in his Affidavit of February 25, 1969,
Pipe gave to his children "isa pong pandesal". 42 He practically reiterated this
statement during his testimony on July 23, 1975 when he described what Pipe
allegedly brought as "just one piece of wrapped bread". 43
But when the police investigated the premises of the house of Ceferino Velasco
in the morning of February 22, 1969, they found not only one pandesal but
"several sliced pan" scatterred in the sala, near the balcony, and under the
balcony. 44 According to the defendant, in her testimony not rebutted by the
prosecution, Ceferino Velasco, who was her tenant, dipped sliced pieces of bread
in endrin dried them up and used them as bait in his barn. As a matter of fact, at
6:00 o'clock in the morning of February 22, 1969, Ceferino Velasco threw into a
nearby river a long string of poisoned rats. Three puppies died of poisoning under
the balcony. The rats, the dogs, or maybe even his minor children must have
found the poisoned slices of bread somewhere in the barn or in the house,
scattered them, and the children, not knowing the danger of the poison, ate them.
The thought that he might have poisoned his own children must have caused
Ceferino Velasco some kind of trauma. So galling to a father is the thought that
he, himself, might have caused the death of his two children and the near death
of a third child, albeit unintentionally, that his natural reaction is to escape from
it by throwing the blame to someone else not only to appease his own conscience
but also to avoid embarassment before his relatives, friends and neighbors.
The tragic poisoning of the three children is unfortunate. The tragedy was
compounded when the trial Court imposed the death penalty on the accused
although the evidence against her does not justify a conviction. Inspite of the self-
contradictions of Rodolfo Quilang on very material points noticed by the trial
Judge, himself, Quilang's obvious tendency to prevaricate and the fact that he is
what the appellant's counsel calls an "eleventh-hour witness", which is true, and
inspite of the incompetence of the testimonies of Federico Jaime and Ceferino
Velasco whose testimonies are hearsay evidence, and the practical impossibility
of interpreting correctly the sign language of Pipe, the trial Judge readily accepted
their testimonies as basis for imposing the death penalty in gross violation of the
hearsay rule and the constitutional right of the accused to meet the witness face
to face (in the instant case, the deaf-mute, Pipe), and to cross-examine Pipe in
order to determine his ability to communicate with the outside world.
Realizing that there is completely no motive for the defendant to commit the
heinous crime, the trial Judge conjured up something as the probable cause that
might have impelled the defendant to commit the crime. The conjecture of the
Judge is stated, thus:
There is something disquieting about those seemingly unfading smiles on the face
of the accused; with her sharp, penetrating look, her unsolicited smiles are clues
to her real personality; they forebode some out-of-the ordinary dispositions in the
inner recesses of her mind; perhaps, only a trained psychiatrist or an experienced
psychologist could fathom or decipher the meaning of this characteristic of the
accused; it is unfortunate that the prosecution and the defense have chosen not to
delve into the personality of the accused; however, because of these queer
manifestations on the facial expressions of the accused, could she have intended
to produce the gravity of her felonious act; had she a fore-knowledge that the
poisons used to kill rats or insects would also cause death to the children. Was
her intention merely to cause some malady or discomfort to the children to shout
and vent her hatred on the mother of the children. These are some questions that
find no definite answer from the records of these cases; these questions
notwithstanding, the court strongly feels that it is not entirely improbable for the
accused to possess a violent or cruel disposition ... 45
In effect, motive was not necessary to compel the defendant to commit the crime
because according to the observation of the Judge, she was suffering from some
kind of psychiatric abnormality or mental disorder that can make her violent.

It is most unfair for the trial Judge to unexpectedly spring the aforementioned
observation in his decision without having mentioned it in the course of the trial.
Such a procedure is unfair to the accused, for she is thereby deprived of her
chance to either deny or affirm the truth of such a very material finding which
has important bearing in the judgment. This procedure of the trial Judge
practically denies the accused the right to due process.

The surprising finding of the trial Judge goes far beyond mere observation on the
manner a witness testified, which admittedly may be considered subjectively by
the Judge in evaluating the credibility of the witness. The surprising finding of
the Judge relates not only to the credibility of a witness but to the sanity of the
defendant. Its aim is not only to weigh the testimony of the witness but to
establish a motive for the crime charged.

WHEREFORE, finding that the prosecution has not established the guilt of the
defendant, We hereby reverse the decision of the trial Court and instead render
judgment of acquittal without cost.

SO ORDERED.

Notes.—An accused can understandably try to exculpate a co-accused who

provided him with a defense counsel for free. (People vs. Aposaga, 108 SCRA
574.)

Statement made almost immediately after the startling occurrence may be

considered res gestae. (People vs. Tumalip, 60 SCRA 303.)

Motive is relevant where the identity of the persons accused of having committed
the crime is in dispute, where there are no eyewitnesses, and where suspicion is
likely to fall upon a member of persons. In the case at bar, the identity of the
accused was positively proved by the eyewitnesses, so motive is irrelevant.
(People vs. Bueno, 90 SCRA 23.)
G.R. No. 93516. August 12, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASILIO
DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accused-
appellant.
Remedial Law; Evidence; Hearsay Evidence; Whether objected to or not cannot
be given credence.—It is true that the lack of objection to a hearsay testimony
results in its being admitted as evidence. But, one should not be misled into
thinking that since these testimonies are admitted as evidence, they now have
probative value. Hearsay evidence, whether objected to or not, cannot be given
credence.
Same; Same; Same; To give probative value to hearsay statements and convict
the appellant on this basis alone would be to render his constitutional rights
useless and without meaning.—It is unfortunate that the prosecution failed to
present as witnesses the persons who knew the appellant as the lessee and owner
of the M-14 rifle. In this way, the appellant could have exercised his
constitutional right to confront the witnesses and to cross-examine them for their
truthfulness. Likewise, the records do not show any other evidence which could
have identified the appellant as the lessee of the house and the owner of the
subversive items. To give probative value to these hearsay statements and convict
the appellant on this basis alone would be to render his constitutional rights
useless and without meaning.
The accused-appellant, Basilio Damaso, was originally charged in an information
filed before the Regional Trial Court of Dagupan City with violation of
Presidential Decree No. 1866 in furtherance of, or incident to, or in connection
with the crime of subversion, together with Luzviminda Morados y Galang @ Ka
Mel, Teresita Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka
Ric, Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka
Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information
was later amended to exclude all the above-enumerated persons except the
accused-appellant from the criminal charge. The amended information reads:
That an or about the 19th day of June, 1988, in the City of Dagupan, Philippines,
and within the territorial jurisdiction of this Honorable Court, the above-named
accused, Basilio DAMASO @ Bernardo/Bernie Mendoza @ KA DADO, did
then and there, willfully, unlawfully and criminally, have in his possession,
custody and control one (1) M14 Rifle bearing Serial No. 1249935 with magazine
and Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in
connection with the crime of subversion, filed against said accused in the above-
entitled case for Violation of Republic Act 1700, as amended by Executive Order
No. 276.
Contrary to Third Paragraph of Sec. 1, P.D. 1866. (Records, p. 20)
Upon arraignment, the accused-appellant pleaded not guilty to the crime charged
(Records, p. 37). Trial on the merits ensued. The prosecution rested its case and
offered its exhibits for admission. The counsel for accused-appellant interposed
his objections to the admissibility of the prosecution's evidence on grounds of its
being hearsay, immaterial or irrelevant and illegal for lack of a search warrant.
On these bases, he, thereafter, manifested that he was not presenting any evidence
for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial
court rendered decision, the dispositive portion of which states:
WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie
Mendoza alias Ka Dado guilty beyond reasonable doubt of Violation of
Presidential Decree Number 1866, and considering that the Violation is in
furtherance of, or incident to, or in connection with the crime of subversion,
pursuant to Section 1, Paragraph 3 of Presidential Decree Number 1866 hereby
sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the
costs of the proceedings.
The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the
articles and/or items seized on June 19, 1988 in connection with this case and
marked and submitted in court as evidence are ordered confiscated and forfeited
in favor of the government, the same to be turned over to the Philippine
Constabulary Command at Lingayen, Pangasinan.
SO ORDERED. (Rollo, p. 31)
Thus, this present recourse with the following assignment of errors:
A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL
POSSESSION OF FIREARMS AND AMMUNITIONS IN FURTHERANCE
OF, OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE
PRESENTED BY THE PROSECUTION.
B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE
QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN
BY THE PROSECUTION.

C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE
FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER
THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY
ANOTHER BRANCH OF THE SAME COURT AND THE SAID EVIDENCE
ARE THE FRUITS OF AN ILLEGAL SEARCH.
D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH
FILED BY ACCUSED-APPELLANT BECAUSE THE SEPARATE CHARGE
FOR SUBVERSION AGAINST HIM ABSORBED THE CHARGE FOR
ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OF OR
INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION. (pp. 55-66, Rollo)
The antecedent facts are set forth by the Solicitor General in his Brief, as follows:
On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer
connected with the 152nd PC Company at Lingayen, Pangasinan, and some
companions were sent to verify the presence of CPP/NPA members in Barangay
Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehended
Gregorio Flameniano, Berlina Aritumba, Revelina Gamboa and Deogracias
Mayaoa. When interrogated, the persons apprehended revealed that there was an
underground safehouse at Gracia Village in Urdaneta, Pangasinan. After
coordinating with the Station Commander of Urdaneta, the group proceeded to
the house in Gracia Village. They found subversive documents, a radio, a 1 x 7
caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989).
After the raid, the group proceeded to Bonuan, Dagupan City, and put under
surveillance the rented apartment of Rosemarie Aritumba, sister of Berlina
Aritumba whom they earlier arrested. They interviewed Luzviminda Morados, a
visitor of Rosemarie Aritumba. She stated that she worked with Bernie Mendoza,
herein appellant. She guided the group to the house rented by appellant. When
they reached the house, the group found that it had already been vacated by the
occupants. Since Morados was hesitant to give the new address of Bernie
Mendoza, the group looked for the Barangay Captain of the place and requested
him to point out the new house rented by appellant. The group again required
Morados to go with them. When they reached the house, the group saw Luz
Tanciangco outside. They told her that they already knew that she was a member
of the NPA in the area. At first, she denied it, but when she saw Morados she
requested the group to go inside the house. Upon entering the house, the group,
as well as the Barangay Captain, saw radio sets, pamphlets entitled "Ang Bayan,"
xerox copiers and a computer machine. They also found persons who were
companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa,
Maries Calosa, Eric Tanciangco and Luzviminda Morados). The group requested
the persons in the house to allow them to look around. When Luz Tanciangco
opened one of the rooms, they saw books used for subversive orientation, one M-
14 rifle, bullets and ammunitions, Kenwood radio, artificial beard, maps of the
Philippines, Zambales, Mindoro an(d) Laguna and other items. They confiscated
the articles and brought them to their headquarters for final inventory. They
likewise brought the persons found in the house to the headquarters for
investigation. Said persons revealed that appellant was the lessee of the house
and owned the items confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10,
31, tsn, October 31, 1989). (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo)
While We encourage and support law enforcement agencies in their drive against
lawless elements in our society, We must, however, stress that the latter's efforts
to this end must be done within the parameters of the law. In the case at bar, not
only did We find that there are serious flaws in the method used by the law
officers in obtaining evidence against the accused-appellant but also that the
evidence as presented against him is weak to justify conviction.
We reverse.
The records of this case show that the accused-appellant was singled out as the
sole violator of P.D. No. 1866, in furtherance of, or incident to, or in connection
with the crime of subversion. Yet, there is no substantial and credible evidence
to establish the fact that the appellant is allegedly the same person as the lessee
of the house where the M-14 rifle and other subversive items were found or the
owner of the said items. The prosecution presented two witnesses who attested to
this fact, thus:
Lieutenant Candito Quijardo
Fiscal
Q How about this Bernie Mendoza, who was the one renting the house?
A He was not around at that time, but according to Luz (Tanciangco) who
mentioned the name Bernie Mendoza (as) the one who was renting the house and
at the same time claiming that it was Bernie Mendoza who owns the said items.
(TSN of October 31, 1989, p. 40)
xxx xxx xxx
Q I am showing you another picture which we request to be marked as Exhibit
"K-2," tell us if it has any connection to the house?
A The same house, sir.
Q Now, this person who according to you allegedly occupied the house at Bonuan
Gueset, by the name of Bernie Mendoza, in your capacity as a Military officer,
did you find out the identity?
A I am not the proper (person) to tell the real identity of Bernie de Guzman.
Q Can you tell the Honorable Court the proper person who could tell the true
identity of Bernie Mendoza?
A The Intelligence of the Pangasinan PC Command.
Q Can you name these officers?
A Captain Roberto Rosales and his assistant, First Lt. Federico Castro. (ibid, pp.
54-55)
M/Sqt. Artemio Gomez
Q That underground house, do you know who was the principal occupant of that
house?
xxx xxx xxx
A During our conversation with the occupants, they revealed that a certain Ka
Bernie is the one occupying the house, Bernie Mendoza alias Basilio Damaso.
. . . (TSN, December 27, 1989, pp. 126-128)
Clearly, the aforequoted testimonies are hearsay because the witnesses testified
on matters not on their own personal knowledge. The Solicitor General, however,
argues that while the testimonies may be hearsay, the same are admissible
because of the failure of counsel for appellant to object thereto.
It is true that the lack of objection to a hearsay testimony results in its being
admitted as evidence. But, one should not be misled into thinking that since these
testimonies are admitted as evidence, they now have probative value. Hearsay
evidence, whether objected to or not, cannot be given credence. In People vs.
Valero, We emphatically declared that:
The failure of the defense counsel to object to the presentation of incompetent
evidence, like hearsay evidence or evidence that violates the rule of res inter alios
acta, or his failure to ask for the striking out of the same does not give such
evidence any probative value. The lack of objection may make any incompetent
evidence admissible. But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to or not has no probative
value.
(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis supplied)
It is unfortunate that the prosecution failed to present as witnesses the persons
who knew the appellant as the lessee and owner of the M-14 rifle. In this way,
the appellant could have exercised his constitutional right to confront the
witnesses and to cross-examine them for their truthfulness. Likewise, the records
do not show any other evidence which could have identified the appellant as the
lessee of the house and the owner of the subversive items. To give probative value
to these hearsay statements and convict the appellant on this basis alone would
be to render his constitutional rights useless and without meaning.
Even assuming for the sake of argument that the appellant is the lessee of the
house, the case against him still will not prosper, the reason being that the law
enforcers failed to comply with the requirements of a valid search and seizure
proceedings.
The right against unreasonable searches and seizures is enshrined in the
Constitution (Article III, Section 2). The purpose of the law is to prevent
violations of private security in person and property, and unlawful invasions of
the sanctity of the home by officers of the law acting under legislative or judicial
sanction and to give remedy against such usurpations when attempted (see Alvero
v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. There are
instances when a warrantless search and seizure becomes valid, namely: (1)
search incidental to an arrest; (2) search of a moving vehicle; and (3) seizure of
evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986,
143 SCRA 267, 276). None of these exceptions is present in this case.
The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo
entered the appellant's house upon invitation of Luz Tanciangco and Luzviminda
Morados, helper of the appellant; that when Luz Tanciangco opened one of the
rooms, they saw a copier machine, computer, M-14 rifle, bullets and
ammunitions, radio set and more subversive items; that technically speaking,
there was no search as the group was voluntarily shown the articles used in
subversion; that besides, a search may be validly conducted without search
warrant with the consent of the person searched in this case, appellant's helper
and Luz Tanciangco allowed them to enter and to look around the appellant's
house; and that since the evidence seized was in plain view of the authorities, the
same may be seized without a warrant.
We are not persuaded. The constitutional immunity from unreasonable searches
and seizures, being personal one, cannot be waived by anyone except the person
whose rights are invaded or one who is expressly authorized to do so in his or her
behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In the case at bar, the records
show that appellant was not in his house at that time Luz Tanciangco and Luz
Morados, his alleged helper, allowed the authorities to enter it (TSN, October 31,
1989, p. 10). We Find no evidence that would establish the fact that Luz Morados
was indeed the appellant's helper or if it was true that she was his helper, that the
appellant had given her authority to open his house in his absence. The
prosecution likewise failed to show if Luz Tanciangco has such an authority.
Without this evidence, the authorities' intrusion into the appellant's dwelling
cannot be given any color of legality. While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights of the citizens, for the enforcement
of no statute is of sufficient importance to justify indifference to the basic
principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a
consequence, the search conducted by the authorities was illegal. It would have
been different if the situation here demanded urgency which could have prompted
the authorities to dispense with a search warrant. But the record is silent on this
point. The fact that they came to the house of the appellant at nighttime (Exh. J,
p. 7, Records), does not grant them the license to go inside his house. In Alih v.
Castro, We ruled that:
The respondents cannot even plead the urgency of the raid because it was in fact
not urgent. They knew where the petitioners were. They had every opportunity
to get a search warrant before making the raid. If they were worried that the
weapons inside the compound would be spirited away, they could have
surrounded the premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly processes
required by the Constitution and instead insist on arbitrarily forcing their way
into the petitioner's premises with all the menace of a military invasion. (G.R.
No. 69401, June 23, 1987, 151 SCRA 279, 286)
Another factor which illustrates the weakness of the case against the accused-
appellant is in the identification of the gun which he was charged to have illegally
possessed. In the amended information (supra, pp. 1-2), the gun was described as
an M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a
different serial number thus:
FISCAL
Q Will you kindly restate again the items that you found inside the house?
Lt. Quijardo:
A When she opened the doors of the rooms that we requested for, we immediately
saw different kinds of books of which we believed to be used for subversive
orientation and the M-14 rifle.
Q In what portion of the house did you find this M-14 rifle which you mentioned?
A In the same room of which the subversive documents were placed.
Q If this firearm would be shown to you would you be able to identify the same?
A Yes, sir.
Q I am showing to you a rifle bearing a serial number 1249985 which for
purposes of identification, may we request your Honor, that this rifle be marked
as Exhibit "D."
COURT:
Mark it.
FISCAL:
Q Kindly examine the said firearm and tell the Honorable Court the relation of
that firearm to the firearm which according to you you found inside the room
allegedly occupied by one Bernie Mendoza?
A This is the same rifle which was discovered during our raid in the same house.
(TSN, October 31, 1989, pp. 36-38, emphasis supplied).
The Solicitor General contends that the discrepancy is merely a typographical
error.
We do not think so. This glaring error goes into the substance of the charge. Its
correction or lack of it could spell the difference between freedom and
incarceration of the accused-appellant.
In crimes of illegal possession of firearm as in this case, the prosecution has the
burden to prove the existence of the firearm and that the accused who possessed
or owned the firearm does not have the corresponding license for it. Since the
gun as identified at the trial differs from the gun described in the amended
information, the corpus delicti (the substance of the crime, the fact that a crime
has actually been committed) has not been fully established. This circumstance
coupled with dubious claims of appellant's connection to the house (where the
gun was found) have totally emasculated the prosecution's case.
But even as We find for the accused-appellant, We, take exception to the
argument raised by the defense that the crime of subversion absorbs the crime of
illegal possession of firearm in furtherance of or incident to or in connection with
the crime of subversion. It appears that the accused-appellant is facing a separate
charge of subversion. The defense submits that the trial court should have
peremptorily dismissed this case in view of the subversion charge. In People of
the Philippines v. Asuncion, et al., We set forth in no uncertain terms the futility
of such argument. We quote:
If We are to espouse the theory of the respondents that force and violence are the
very essence of subversion, then it loses its distinction from rebellion. In People
v. Liwanag (G.R. No. 27683, 1976, 73 SCRA 473, 480 [1976]), the Court
categorically distinguished subversion from rebellion, and held:
Violation of Republic Act No. 1700, or subversion, as it is more commonly
called, is a crime distinct from that of actual rebellion. The crime of rebellion is
committed by rising publicly and taking up arms against the Government for any
of the purposes specified in Article 134 of the Revised Penal Code; while the
Anti-Subversion Act (Republic Act No. 1700) punishes affiliation or membership
in a subversive organization as defined therein. In rebellion, there must be a
public uprising and taking of arms against the Government; whereas, in
subversion, mere membership in a subversive association is sufficient and the
taking up of arms by a member of a subversive organization against the
Government is but a circumstance which raises the penalty to be imposed upon
the offender. (Emphasis supplied)
Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109
289 (1981]), this Court said that subversion, like treason, is a crime against
national security, while rebellion is a crime against public order. Rising publicly
and taking arms against the Government is the very element of the crime on
rebellion. On the other hand, R.A. 1700 was enacted to outlaw the Communist
Party of the Philippines (CPP) , other similar associations and its successors
because their existence and activities constitute a clear, present and grave danger
to national security.
The first Whereas clause of R.A. 1700 states that the CPP is an organized
conspiracy to overthrow the Government, not only by force and violence but also
by deceit, subversion, and other illegal means. This is a recognition that
subversive acts do not only constitute force and violence (contrary to the
arguments of private respondents), but may partake of other forms as well. One
may in fact be guilty of subversion by authoring subversive materials, where
force and violence is neither necessary or indispensable.
Private respondents contended that the Court in Misolas v. Panga impliedly ruled
that if an accused is simultaneously charged with violation of P.D. 1866 and
subversion, the doctrine of absorption of common crimes as applied in rebellion
would have found application therein. The respondents relied on the opinion of
this Court when it said:
. . . in the present case, petitioner is being charged specifically for the qualified
offense of illegal possession of firearms and ammunition under PD 1866. HE IS
NOT BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION
WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING
SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL
POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez,
Geronimo and Rodriguez find no application in this case.
This is however a mere obiter. In the above case, the Court upheld the validity of
the charge under the third paragraph of Section 1 of P.D. 1866. The Court opined
that the dictum in the Hernandez case is not applicable in that case, considering
that the legislature deemed it fit to provide for two distinct offenses: (1) illegal
possession of firearms qualified by subversion (P.D. 1866) and (2) subversion
qualified by the taking up of arms against the Government (R.A. 1700). The
practical result of this may be harsh or it may pose grave difficulty on an accused
in instances similar to those that obtain in the present case, but the wisdom of the
legislature in the lawful exercise of its power to enact laws is something that the
Court cannot inquire into . . . (G.R. Nos. 83837-42, April 22, 1992).
Nonetheless, the evidence in hand is too weak to convict the accused-appellant
of the charge of illegal possession of firearm in furtherance of, or incident to or
in connection with the crime of subversion, We are therefore, left with no option,
but to acquit the accused on reasonable doubt.

ACCORDINGLY, the decision appealed from is hereby REVERSED and the

appellant is ACQUITTED with costs de oficio.

SO ORDERED.
A.M. No. MTJ-94-979. October 25, 1995.*
JUDGE EMERITO M. AGCAOILI, RTC-BRANCH 10, APARRI,
CAGAYAN, complainant, vs. JUDGE ADOLFO B. MOLINA, MCTC,
GONZAGA-STA. TERESITA, CAGAYAN, respondent.
Judges; Warrants of Arrest; Preliminary Investigation; A warrant of arrest shall
be issued only when the “municipal trial judge conducting the preliminary
investigation is satisfied, after an examination in writing in the form of searching
questions and answers, that a probable cause exists and that there is a necessity
of placing the respondent under immediate custody in order not to frustrate the
ends of justice.”—Section 6(b), Rule 112 of the New Rules of Criminal
Procedure requires that a warrant of arrest shall be issued only when the
“municipal trial judge conducting the preliminary investigation is satisfied after
an examination in writing in the form of searching questions and answers, that a
probable cause exists and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice.” This is in
conformity with the constitutional mandate that no “warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce.
Same; Same; Same; Same; Probable Cause; Words and Phrases; “Probable
Cause,” Defined.—In turn, probable cause for the issuance of a warrant of arrest
has been defined as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed by the
person sought to be arrested.
Same; Same; Same; Same; Same; Evidence; Hearsay evidence cannot be the
basis of probable cause.—Although the foregoing provisions seemingly grant
judges wide latitude and unbridled discretion in determining probable cause, an
elementary legal principle must not be compromised—hearsay evidence cannot
be the basis of probable cause. The rules on evidence are explicit. A witness can
testify only to those facts which he knows of his personal knowledge; that is,
which are derived from his own perception. Hearsay evidence, therefore, has no
probative value whatsoever. Yet, in the case at bench, respondent judge found
probable cause and even issued an arrest warrant on the basis of the testimonies
of Mencelacion Padamada and Rosita Castillo which were obviously hearsay.
Same; Same; Same; Same; Same; The determination of probable cause is a
function of the judge and is not for the provincial fiscal or prosecutor to
ascertain.—Respondent cannot pass the blame and burden to the provincial
prosecutor. The determination of probable cause is a function of the judge and is
not for the provincial fiscal or prosecutor to ascertain. Only the judge and the
judge alone makes this determination.
The members of the bench are, undoubtedly, expected to be knowledgeable in
the law, its basic tenets and principles.
Unfortunately, respondent judge fell short of the norm.
The instant case was brought to this Court in connection with the order1 of
complainant Judge Emerito M. Agcaoili dated 9 August 1993 charging Judge
Adolfo B. Molina with grave ignorance of the law in relation to Criminal Case
No. 10-435, entitled "People of the Philippines v. Rolando Anama," for homicide.
A directive was contained in said order to furnish this Court with a copy thereof
"for its information and appropriate action."
In the aforecited order, complainant judge alleged that respondent, in conducting
the preliminary investigation of the above-mentioned criminal case, failed to
exercise utmost care in the issuance of a warrant of arrest against the accused,
Rolando Anama, based as it was, merely on the statements of two (2) witnesses
who had no personal knowledge of the commission of the offense charged.
Such action, complainant judge averred, was a clear violation of section 2, Article
III of the 1987 Constitution which requires that before a warrant of arrest is
issued, "the judge must personally determine the existence of probable cause
from an examination under oath of the complainant and his witnesses."2
Mere hearsay evidence cannot be the basis that probable cause exists, stated
complainant judge. There must be something more concrete.
Consequently, in the same order, complainant judge recalled the warrant of arrest
and the order directing its issuance and directed the National Bureau of
Investigation, through Regional Office No. 2, Ilagan, Isabela, to conduct an
investigation in order to avoid a possible miscarriage of justice.
In his Comment, respondent admitted that he was the inquest judge in the
preliminary investigation of the above entitled case and finding the existence of
probable cause, he ordered the issuance of the warrant of arrest against the
accused and as the case was cognizable by the Regional Trial Court, it was
forwarded to the Provincial Prosecutor's Office in Aparri, Cagayan.3
Respondent explained that since the case was cognizable by the Regional Trial
Court, the Provincial Prosecutor's Office, which has the final say and disposition
on the existence of probable cause on cases cognizable by the Regional Trial
Court, should carry the brunt of the responsibility for "erroneous" finding of
probable cause.4
Respondent judge argued that the findings of complainant judge in his 9 August
1993 order is his opinion-argument and contended that "the proper remedy for a
seemingly weak probable cause finding is a reinvestigation."5
On 17 November 1993, Judge Antonino A. Aquilizan, Acting Presiding Judge of
the Regional Trial Court of Cagayan, Branch 10 denied with finality the motion
filed by Assistant Provincial Prosecutor Melencio Unciano for reconsideration of
the 9 August 1993 order of then Presiding Judge Emerito M. Agcaoili and
dismissed the aforestated criminal case provisionally on grounds of absence of
probable cause against the accused.6
In its report and evaluation dated 26 April 1995, the Office of the Court
Administrator recommended that respondent be admonished to be more careful
in the determination of the existence of probable cause before issuing a warrant
of arrest. Thus, opined the Office of the Court Administrator:
Close perusal of the records disclosed that the complaining witnesses do not have
personal knowledge of the facts which became the basis of the filing of the crime
charged and of the issuance of the warrant of arrest. From the affidavits of the
affiants alone (Rollo, pp. 6-7), it is very clear that they learned the killing of
victim Virgilio Capa from a certain Wilma Anama. Respondent Judge, however,
on the basis of the said affidavits, issued an Order dated October 8, 1992 directing
the issuance of a warrant of arrest for the temporary confinement of the accused.
Thereafter, the warrant of arrest was issued on the same day.
Respondent Judge in issuing the warrant of arrest failed to observe the elementary
requirement that the complainant and his witnesses should have personal
knowledge of the commission of the offense charged. Just like in the issuance of
search warrants, mere hearsay evidence, cannot, standing alone, justify the
issuance of a warrant of arrest (See Quintero vs. National Bureau of Investigation,
G.R. 35149, June 23, 1988, Padilla J). Respondent Judge should be reminded that
under Section 36, Rule 130, Revised Rules on Evidence, "A witness can testify
only to those facts which he knows of his personal knowledge; that is, which are
derived from his own perception, . . . (309)".
We concur with the findings of the Office of the Court Administrator.
Section 6(b), Rule 112 of the New Rules of Criminal Procedure requires that a
warrant of arrest shall be issued only when the "municipal trial judge conducting
the preliminary investigation is satisfied after an examination in writing in the
form of searching questions and answers, that a probable cause exists and that
there is a necessity of placing the respondent under immediate custody in order
not to frustrate the ends of justice." This is in conformity with the constitutional
mandate that no "warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce.7
In turn, probable cause for the issuance of a warrant of arrest has been defined as
such facts and circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person sought to be
arrested.8
Although the foregoing provisions seemingly grant judges wide latitude and
unbridled discretion in determining probable cause, an elementary legal principle
must not be compromised — hearsay evidence cannot be the basis of probable
cause. The rules on evidence are explicit. A witness can testify only to those facts
which he knows of his personal knowledge; that is, which are derived from his
own perception.9 Hearsay evidence, therefore, has no probative value
whatsoever. 10 Yet, in the case at bench, respondent judge found probable cause
and even issued an arrest warrant on the basis of the testimonies of Mencelacion
Padamada and Rosita Castillo which were obviously hearsay. Consider the
preliminary investigation conducted by respondent judge:
xxx xxx xxx
Q: You said that you are Mencelacion Padamada, is this Mencelacion Padamada
the same as Mencelacion Castillo Capa?
A: Yes, sir.
Q: Do you know Virgilio Capa?
A: Yes, sir.
Q: Why do you know him?
A: He is my son.
Q: You said you are Mrs. Padamada, how come that the family name of your son
is Capa?
A: He is my child in my first nuptial.
Q: Was your first husband still alive?
A: He died already.
Q: Are you legally married with your husband.
A: No, sir, he is only common law husband.
Q: You said that Virgilio Capa is your son, do you know where is your son now?
A: He was already dead and buried at the cemetery of Sta. Ana, Cagayan.
Q: Do you know the cause of his death?
A: Yes, sir, they killed him.
Q: You said that they killed him do you know the person who killed him?
A: I do not know his name but his sister came to me and reported the incident.
Q: Will you please tell the name of the person who killed your son Virgilio Capa?
A: Rolando Anama.
Q: How did Rolando Anama, killed your son, if you know?
A: They stabbed him to death.
Q: What kind of weapon did he use in killing your son?
A: I do not know sir, all I know he was killed by Rolando Anama.
Q: So is the court made to understand that you were not present during the killing
of your son, isn't it?
A: Yes, sir, I was not present because I was at home.
Q: So it is understood that you were only informed about the death of your son?
A: Yes, sir, because his sister Wilma Anama, came to me and reported the
incident regarding the death of my son Virgilio Capa.
Q: What is the name of his sister?
A: Wilma Anama.
Q: What did you do when Wilma Anama came to your house and reported the
killing incident of your son Virgilio Capa?
A: We went to see.
Q: What did you do at that time when you were informed about the killing of
your son?
A: I went to see and verify it.
Q: Where?
A: At San Vicente, Sta. Ana, Cagayan, to the house of Rolando Anama.
Q: What did you find out when you reach the house of Rolando Anama?
A: I found out that my son, is already buried.
Q: How did you come to know that your son was buried?
A: Wilma Anama reported to me sir.
COURT: That is all. (Emphasis ours)
xxx xxx xxx
Q: Please state your name and other personal circumstances?
A: Rosita Castillo, 52 years old, married, housekeeper and resident of Parada-
Batu, Sta. Ana, Cagayan.
COURT:
Q: On June 15, 1992 in the morning, can you still recall where were you? Q: Is the court made to understand that you were not present during the killing
incident happened?
A: I was in your house sir.
A: No, sir.
Q: While you were inside your house can you recall some (newbits) that reached
you? Q: And you do not know the day when Rogelio Anama killed Virgilio Capa isn't
it?
A: Yes, sir.
A: Yes, sir.
Q: What was that news items that reached you?
Q: You were only informed by Wilma Anama the sister of the herein accused
A: Wilma Anama told me that Virgilio Capa was killed by Rogelio Anama. about the killing of Virgilio Capa isn't it?

Q: Who is this Wilma Anama how is she related to the accused? A: Yes, sir.

A: They are brother and sister. Q: Aside from that report made by Wilma Anama what else did Wilma Anama
tell you if there be any?
Q: When Wilma Anama related to you that Virgilio Capa was killed by Rolando
Anama, what did you do? A: No more sir, those were only the things told to me by Wilma Anama, but she
even revealed that Virgilio Capa, was buried by her brother Rogelio Anama after
A: I informed the mother of Virgilio Capa. killing him.

Q: Who is the mother of Virgilio Capa? Q: Did he tell the place where he was buried?

A: Mencelacion Capa. A: Yes, sir.

Q: When you informed the mother of Virgilio Capa was killed by Rolando Q: To whom did Wilma Anama reveal that Virgilio Capa was buried after he was
Anama, what did you do? killed by Rolando Anama?

A: I informed the mother of Virgilio Capa. A: I, sir.

Q: Who is the mother of Virgilio Capa? Q: How about the mother of Virgilio Capa was she present at that time when
Wilma Anama reported the incident to you?
A: Mencelacion Capa.
A: The mother was not present.
A: When you informed the mother of Virgilio Capa about the killing incident of
her son what did you do if there be any? Q: So it was you to whom Wilma Anama related the killing of Virgilio Capa by
Rolando Anama?
A: I informed Mencelacion Padamada, about the killing of her son and further
instructed her to go and see her son. A: Yes, sir. 11 (Emphasis ours)

xxx xxx xxx

We are as perplexed as complainant judge Agcaoili why Wilma Anama, who
apparently witnessed the alleged crime or has personal knowledge thereof, was
not summoned by respondent for investigation. She could have been the key to
determining whether or not Rolando Anama was the probable perpetrator of the
grisly killing.

Respondent cannot pass the blame and burden to the provincial prosecutor. The
determination of probable cause is a function of the judge and is not for the
provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone
makes this determination. 12

Liberty, in any part of the civilized world is a basic human right, the curtailment
of which must be in strict conformity with the procedure laid down by law. It is,
therefore, this constant reminder which compels us to remain ever vigilant.

WHEREFORE, respondent judge is hereby REPRIMANDED for his failure to

comply with the pertinent rules on the issuance of a warrant of arrest, with a
warning that repetition of the same or similar acts will be dealt with more
severely. Let a copy of this resolution be entered in his record.

SO ORDERED.
G.R. No. 122954. February 15, 2000.
NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF
APPEALS, THE DIRECTOR OF THE BUREAU OF CORRECTIONS,
MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN
OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH
II, REGIONAL TRIAL COURT OF MANILA, and THE CITY
PROSECUTOR, CITY OF MANILA, respondents
Evidence; Admissions; The rule that a party’s declarations as to a relevant fact
may be given in evidence against him is based upon the presumption that no man
would declare anything against himself unless such declaration were true.—
Petitioner’s declarations as to a relevant fact may be given in evidence against
him under Section 23 of Rule 130 of the Rules of Court. This rule is based upon
the presumption that no man would declare anything against himself, unless such
declaration were true, particularly with respect to such grave matter as his
conviction for the crime of Robbery with Homicide. Further, under Section 4 of
Rule 129, “[a]n admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be
contradicted only by a showing that it was made through palpable mistake or that
no such admission was made.” Petitioner does not claim any mistake nor does he
deny making such admissions.
Same; Entry in Official Records; A court’s Monthly Report constitutes an entry
in official records, which is prima facie evidence of facts therein stated.—The
records also contain a certified true copy of the Monthly Report dated January
1985 of then Judge Rosalio A. De Leon, attesting to the fact that petitioner was
convicted of the crime of Robbery with Homicide on January 11, 1985. Such
Monthly Report constitutes an entry in official records under Section 44 of Rule
130 of the Revised Rules on Evidence, which is prima facie evidence of facts
therein stated.
Same; Double Hearsay Rule; Newspaper Articles; Newspaper articles amount
to “hearsay evidence, twice removed” and are therefore not only inadmissible but
without any probative value at all whether objected to or not, unless offered for
a purpose other than proving the truth of the matter asserted.—Public respondents
likewise presented a certified true copy of People’s Journal dated January 18,
1985, page 2, issued by the National Library, containing a short news article that
petitioner was convicted of the crime of Robbery with Homicide and was
sentenced to “life imprisonment.” However, newspaper articles amount to
“hearsay evidence, twice removed” and are therefore not only inadmissible but
without any probative value at all whether objected to or not, unless offered for
a purpose other than proving the truth of the matter asserted. In this case, the news
article is admissible only as evidence that such publication does exist with the
tenor of the news therein stated.
Actions; Habeas Corpus; Evidence; If the detention of the prisoner is by reason
of lawful public authority, the return is considered prima facie evidence of the
validity of the restraint and the petitioner has the burden of proof to show that the
restraint is illegal.—As a general rule, the burden of proving illegal restraint by
the respondent rests on the petitioner who attacks such restraint. In other words,
where the return is not subject to exception, that is, where it sets forth process
which on its face shows good ground for the detention of the prisoner, it is
incumbent on petitioner to allege and prove new matter that tends to invalidate
the apparent effect of such process. If the detention of the prisoner is by reason
of lawful public authority, the return is considered prima facie evidence of the
validity of the restraint and the petitioner has the burden of proof to show that the
restraint is illegal.
he mere loss or destruction of the records of a criminal case subsequent to
conviction of the accused will not render the judgment of conviction void, nor
will it warrant the release of the convict by virtue of a writ of habeas corpus. The
proper remedy is the reconstitution of judicial records which is as much a duty of
the prosecution as of the defense.chanrobles.com :
Subject of this petition for review on certiorari are (1) the Decision dated April
28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the
dismissal of the petition for habeas corpus filed by petitioner, and (2) the
Resolution of the Court of Appeals dated December 1, 1995, which denied the
Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of
respondent appellate court.
Based on the available records and the admissions of the parties, the antecedents
of the present petition are as follows:chanrob1es virtual 1aw library
Petitioner Norberto Feria y Pacquing has been under detention since May 21,
1981, up to present 1 by reason of his conviction of the crime of Robbery with
Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila,
Branch 2, for the jeepney hold-up and killing of United States Peace Corps
Volunteer Margaret Viviene Carmona.
Some twelve (12) years later, or on June 9, 1993, petitioner sought to be
transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa
City, 2 but the Jail Warden of the Manila City Jail informed the Presiding Judge
of the RTC-Manila, Branch 2, that the transfer cannot be effected without the
submission of the requirements, namely, the Commitment Order or Mittimus,
Decision, and Information. 3 It was then discovered that the entire records of the
case, including the copy of the judgment, were missing. In response to the
inquiries made by counsel of petitioner, both the Office of the City Prosecutor of
Manila and the Clerk of Court of Regional Trial Court of Manila, Branch 2
attested to the fact that the records of Criminal Case No. 60677 could not be found
in their respective offices. Upon further inquiries, the entire records appear to
have been lost or destroyed in the fire which occurred at the second and third
floor of the Manila City Hall on November 3, 1986. 4
On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of
Habeas Corpus 5 with the Supreme Court against the Jail Warden of the Manila
City Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and
the City Prosecutor of Manila, praying for his discharge from confinement on the
ground that his continued detention without any valid judgment is illegal and
violative of his constitutional right to due process.
In its Resolution dated October 10, 1994, 6 the Second Division of this Court
resolved —
". . . (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge
of the Regional Trial Court of Manila to conduct an immediate RAFFLE of this
case among the incumbent judges thereof; and (c) to REQUIRE [1] the Judge to
whom this case is raffled to SET the case for HEARING on Thursday, October
13, 1994 at 8:30 A.M., try and decide the same on the merits and thereafter
FURNISH this Court with a copy of his decision thereon; [2] the respondents to
make a RETURN of the Writ on or before the close of office hours on
Wednesday, October 12, 1994 and APPEAR PERSONALLY and PRODUCE
the person of Norberto Feria y Pa[c]quing on the aforesaid date and time of
hearing to the Judge to whom this case is raffled, and [3] the Director General,
Philippine National Police, through his duly authorized representative(s) to
SERVE the Writ and Petition, and make a RETURN thereof as provided by law
and, specifically, his duly authorized representative(s) to APPEAR
PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the
aforesaid date and time of hearing."
The case was then raffled to Branch 9 of the Regional Trial Court of Manila,
which on November 15, 1994, after hearing, issued an Order 7 dismissing the
case on the ground that the mere loss of the records of the case does not invalidate
the judgment or commitment nor authorize the release of the petitioner, and that
the proper remedy would be reconstitution of the records of the case which should
be filed with the court which rendered the decision.
Petitioner duly appealed said Order to the Court of Appeals, which on April 28,
1995, rendered the assailed Decision 8 affirming the decision of the trial court
with the modification that "in the interest of orderly administration of justice" and
"under the peculiar facts of the case" petitioner may be transferred to the Bureau
of Corrections in Muntinlupa City without submission of the requirements
(Mittimus, Decision and Information) but without prejudice to the reconstitution
of the original records.
The Motion for Reconsideration of the aforesaid Order having been denied for
lack of merit, 9 petitioner is now before us on certiorari, assigning the following
errors of law: 10
I WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF
THIS CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE
PETITIONER’S CONTINUED INCARCERATION IS JUSTIFIED UNDER
THE LAW.
COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS’
RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANT’S
PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A
JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED
AS A SUFFICIENT BASIS FOR HIS INCARCERATION.
II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS
LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT
AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE
PRISONER, WHOSE LIBERTY IS RESTRAINED.
Petitioner argues that his detention is illegal because there exists no copy of a
valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of Court,
11 and that the evidence considered by the trial court and Court of Appeals in the
habeas corpus proceedings did not establish the contents of such judgment.
Petitioner further contends that our ruling in Gunabe v. Director of Prisons, 77
Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution
as of the defense" has been modified or abandoned in the subsequent case of
Ordoñez v. Director of Prisons, 235 SCRA 152, 155 (1994), wherein we held
that" [i]t is not the fault of the prisoners that the records cannot now be found. If
anyone is to be blamed, it surely cannot be the prisoners, who were not the
custodians of those records."

In its Comment, 12 the Office of the Solicitor General contends that the sole
inquiry in this habeas corpus proceeding is whether or not there is legal basis to
detain petitioner. The OSG maintains that public respondents have more than
sufficiently shown the existence of a legal ground for petitioner’s continued
incarceration, viz., his conviction by final judgment, and under Section 4 of Rule
102 of the Rules of Court, the discharge of a person suffering imprisonment under
lawful judgment is not authorized. Petitioner’s remedy, therefore, is not a petition
for habeas corpus but a proceeding for the reconstitution of judicial records.
The high prerogative writ of habeas corpus, whose origin is traced to antiquity,
was devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of personal
freedom. 13 It secures to a prisoner the right to have the cause of his detention
examined and determined by a court of justice, and to have the issue ascertained
as to whether he is held under lawful authority. 14 Consequently, the writ may
also be availed of where, as a consequence of a judicial proceeding, (a) there has
been a deprivation of a constitutional right resulting in the restraint of a person,
(b) the court had no jurisdiction to impose the sentence, or (c) an excessive
penalty has been imposed, as such sentence is void as to such excess. 15
Petitioner’s claim is anchored on the first ground considering, as he claims, that
his continued detention, notwithstanding the lack of a copy of a valid judgment
of conviction, is violative of his constitutional right to due process.
Based on the records and the hearing conducted by the trial court, there is
sufficient evidence on record to establish the fact of conviction of petitioner
which serves as the legal basis for his detention. Petitioner made judicial
admissions, both verbal and written, that he was charged with and convicted of
the crime of Robbery with Homicide, and sentenced to suffer imprisonment
"habang buhay" .
In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding
that —16
"During the trial and on manifestation and arguments made by the accused, his
learned counsel and Solicitor Alexander G. Gesmundo who appeared for the
respondents, it appears clear and indubitable that:chanrob1es virtual 1aw library
(A) Petitioner had been charged with Robbery with Homicide in Criminal Case
No. 60677, Illegal Possession of Firearm in Criminal Case No. 60678 and
Robbery in Band in Criminal Case No. 60867. . . . In Criminal Case No. 60677
(Robbery with Homicide) the accused admitted in open Court that a decision was
read to him in open Court by a personnel of the respondent Court (RTC Branch
II) sentencing him to Life Imprisonment (Habang buhay) . . ." (Emphasis
supplied)
Further, in the Urgent Motion for the Issuance of Commitment Order of the
Above Entitled Criminal Case dated June 8, 1993, 17 petitioner himself stated
that —
"COMES NOW, the undersigned accused in the above entitled criminal case and
unto this Honorable Court most respectfully move:
1. That in 1981 the accused was charge of (sic) Robbery with Homicide;
2. That after four years of trial, the court found the accused guilty and given a
Life Sentence in a promulgation handed down in 1985; (Emphasis supplied)
3. That after the sentence was promulgated, the Presiding Judge told the councel
(sic) that accused has the right to appeal the decision;
4. That whether the de officio counsel appealed the decision is beyond the
accused comprehension (sic) because the last time he saw the counsel was when
the decision was promulgated.
5. That everytime there is change of Warden at the Manila City Jail attempts were
made to get the Commitment Order so that transfer of the accused to the Bureau
of Corrections can be affected, but all in vain;"
Petitioner’s declarations as to a relevant fact may be given in evidence against
him under Section 23 of Rule 130 of the Rules of Court. This rule is based upon
the presumption that no man would declare anything against himself, unless such
declaration were true, 18 particularly with respect to such grave matter as his
conviction for the crime of Robbery with Homicide. Further, under Section 4 of
Rule 129," [a]n admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be
contradicted only by a showing that it was made through palpable mistake or that
no such admission was made." Petitioner does not claim any mistake nor does he
deny making such admissions.
The records also contain a certified true copy of the Monthly Report dated
January 1985 19 of then Judge Rosalio A. De Leon, attesting to the fact that
petitioner was convicted of the crime of Robbery with Homicide on January 11,
1985. Such Monthly Report constitutes an entry in official records under Section
44 of Rule 130 of the Revised Rules on Evidence, which is prima facie evidence
of facts therein stated.
Public respondents likewise presented a certified true copy of People’s Journal
dated January 18, 1985, page 2, 20 issued by the National Library, containing a
short news article that petitioner was convicted of the crime of Robbery with
Homicide and was sentenced to "life imprisonment." However, newspaper
articles amount to "hearsay evidence, twice removed" 21 and are therefore not
only inadmissible but without any probative value at all whether objected to or
not, 22 unless offered for a purpose other than proving the truth of the matter
asserted. In this case, the news article is admissible only as evidence that such
publication does exist with the tenor of the news therein stated.
As a general rule, the burden of proving illegal restraint by the respondent rests
on the petitioner who attacks such restraint. In other words, where the return is
not subject to exception, that is, where it sets forth process which on its face
shows good ground for the detention of the prisoner, it is incumbent on petitioner
to allege and prove new matter that tends to invalidate the apparent effect of such
process. 23 If the detention of the prisoner is by reason of lawful public authority,
the return is considered prima facie evidence of the validity of the restraint and
the petitioner has the burden of proof to show that the restraint is illegal. Thus,
Section 13 of Rule 102 of the Rules of Court provides:
"SECTION 13. When the return evidence, and when only a plea. — If it appears
that the prisoner is in custody under a warrant of commitment in pursuance of
law, the return shall be considered prima facie evidence of the cause of restraint,
but if he is restrained of his liberty by any alleged private authority, the return
shall be considered only as a plea of the facts therein set forth, and the party
claiming the custody must prove such facts."
Public respondents having sufficiently shown good ground for the detention,
petitioner’ s release from confinement is not warranted under Section 4 of Rule
102 of the Rules of Court which provides that —
"SECTION 4. When writ not allowed or discharge authorized. — If it appears
that the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of a
court of record, and that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged
by reason of any informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of a person charged
with or convicted of an offense in the Philippines, or of a person suffering
imprisonment under lawful judgment."
In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), Accused was
convicted by the trial court of the crime of rape, and was committed to the New
Bilibid Prison. Pending appeal with the Court of Appeals, the records of the case
were, for reasons undisclosed, completely destroyed or lost. Accused then filed a
petition for the issuance of the writ of habeas corpus with the Supreme Court.
The Court denied the petition, ruling thus:
"The petition does not make out a case. The Director of Prisons is holding the
prisoner under process issued by a competent court in pursuance of a lawful,
subsisting judgment. The prisoner himself admits the legality of his detention.
The mere loss or destruction of the record of the case does not invalidate the
judgment or the commitment, or authorize the prisoner’s release."
Note further that, in the present case, there is also no showing that petitioner duly
appealed his conviction of the crime of Robbery with Homicide, hence for all
intents and purposes, such judgment has already become final and executory.
When a court has jurisdiction of the offense charged and of the party who is so
charged, its judgment, order, or decree is not subject to collateral attack by habeas
corpus. 24 Put another way, in order that a judgment may be subject to collateral
attack by habeas corpus, it must be void for lack of jurisdiction. 25 Thus,
petitioner’s invocation of our ruling in Reyes v. Director of Prisons, supra, is
misplaced. In the Reyes case, we granted the writ and ordered the release of the
prisoner on the ground that" [i]t does not appear that the prisoner has been
sentenced by any tribunal duly established by a competent authority during the
enemy occupation" and not because there were no copies of the decision and
information. Here, a copy of the mittimus is available. And, indeed, petitioner
does not raise any jurisdictional issue.
The proper remedy in this case is for either petitioner or public respondents to
initiate the reconstitution of the judgment of the case under either Act No. 3110,
26 the general law governing reconstitution of judicial records, or under the
inherent power of courts to reconstitute at any time the records of their finished
cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court. 27
Judicial records are subject to reconstitution without exception, whether they
refer to pending cases or finished cases. 28 There is no sense in limiting
reconstitution to pending cases; finished cases are just as important as pending
ones, as evidence of rights and obligations finally adjudicated. 29
Petitioner belabors the fact that no initiative was taken by the Government to
reconstitute the missing records of the trial court. We reiterate, however, that
"reconstitution is as much the duty of the prosecution as of the defense." 30
Petitioner’s invocation of Ordoñez v. Director of Prisons, 235 SCRA 152 (1994),
is misplaced since the grant of the petition for habeas corpus therein was premised
on the loss of records prior to the filing of Informations against the prisoners, and
therefore" [t]he government has failed to show that their continued detention is
supported by a valid conviction or by the pendency of charges against them or by
any legitimate cause whatsoever." In this case, the records were lost after
petitioner, by his own admission, was already convicted by the trial court of the
offense charged. Further, the same incident which gave rise to the filing of the
Information for Robbery with Homicide also gave rise to another case for Illegal
Possession of Firearm, 31 the records of which could be of assistance in the
reconstitution of the present case.

WHEREFORE, the petition is DENIED for lack of merit, and the decision of the
Court of Appeals is AFFIRMED.

SO ORDERED.