Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-28482 January 30, 1971 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN BRIOSO and MARIANO TAEZA, defendants-appellants. Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Frine' C. Zaballero and Solicitor Rosalio A. de Leon for plaintiff-appellee. Cirilo F. Asprilla, Jr., as counsel de oficio for defendants-appellants.

REYES, J.B.L., J.: Appeal from a judgment of the Court of First Instance of Abra, in its Criminal Case No. 626, finding the two appellants Juan Brioso and Mariano Taeza guilty of murder, and sentencing each to suffer life imprisonment and to indemnify, jointly and severally, the heirs of Silvino Daria in the sum of P6,000.00 but without subsidiary imprisonment in case of insolvency, and to pay the costs. An information filed by the Provincial Fiscal dated 16 January 1967 charged the two accused, Juan Brioso and Mariano Taeza, with the crime of murder under Article 248 of the Revised Penal Code, committed as follows: That on or about the 23rd day of December, 1966, in the Municipality of Tayum, Province of Abra, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with firearms of different calibers, by confederating and mutually helping one another, with deliberate intent to kill and without justifiable motive, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously, assault, attack and shot one, Silvino Daria, inflicting upon him multiple gunshot wounds on the different parts of his body, which wounds caused his death thereafter. CONTRARY TO LAW, with the aggravating circumstances in the commission of the crime, to wit: (a) treachery and evident premeditation; (b) advantage was taken of superior strength; and (c) with the use of firearm. The records of the case show that on 23 December 1966, between 8 and 9 in the evening, the spouses Silvino Daria and Susana Tumalip were in their house at barrio Tiker, Tayum, Abra. The husband was making rope in the annex of their house, while the wife, four meters away, was applying candle wax to a flat iron. Silvino Daria was using a lamp where he worked. Outside, the night was bright because of the moon overhead. Cecilia Bernal, a niece and neighbor of the spouses, was alarmed by the barking of dogs. She peeped through a crack in the wall of her house and saw appellants herein pass southward in the direction of the house of Silvino Daria that was six meters away. Brioso was carrying a long gun. Her suspicions awakened, she went downstairs and, shielded by the fence, witnessed each appellant point a gun at the bamboo wall of Daria's house. Two detonations followed, and thereafter she heard Daria moaning and his wife call for help, saying her husband had been shot. Bernal went to the house and found the victim prostrate, wounded and unable to speak. The widow, however, testified that right after being shot, she rushed to her husband's side and he told her that he was shot by Juan Brioso and Mariano Taeza. Silvino Daria expired one hour later as a result of gunshot wounds in the abdomen and leg. A

few days later, Cecilia Bernal and the widow, Susana Tumalip, executed affidavits pointing to the two accused as the killers (Exhibits "B" and "C," respectively). The cause of the death of Silvino Daria was "Shock due to severe hemorrhage secondary to gunshot wounds at the abdomen and leg," as found by Dr. Isabelo B. Lucas, Municipal Health Officer of Tayum, Abra, contained in his Medico-Legal Necropsy Report, Exhibit "A". The motive for the killing appears to have been the disapproval by the spouses Silvino and Susana Daria of Mariano Taeza's courtship of their daughter, Angelita. Angelita was even sent to Manila for her to avoid Mariano Taeza. The courtship is admitted by Mariano Taeza. The two accused appealed the conviction and assigned the following errors as committed by the court a quo: 1. The lower court erred in relying on the uncorroborated and contradictory testimony and statement of the prosecution witness Cecilia Bernal on the physical identity of the accused; 2. The lower court erred in disregarding the affidavit (Exhibit 2) of Antonio Daria, son of the deceased, clearing the accused Mariano Taeza, which affidavit had been identified in court by the fiscal before whom the same was executed; and 3. The lower court erred in finding the accused guilty of the crime of murder. The assigned errors are discussed together, being closely inter-related. We find no discrepancy in the testimony of Cecilia Bernal on the material points. She stated that she did not see Mariano Taeza carry a gun when both the accused passed by. But this brief observation does not necessarily mean that he was not actually armed or carrying a gun on his person. The fact that he did was proved when both the said accused were seen pointing their respective gun at the victim and each subsequently fired once at him, Taeza using a short weapon (t.s.n. Millare, page 17) that could have been carried concealed in his person. The house of Cecilia Bernal was only six meters away from that of Silvino Daria's. The night was brightly illuminated by the moon. Cecilia Bernal had known both accused for a long time and it is admitted that they also know her. There could have been no difficulty in identifying the accused under the circumstances. Cecilia Bernal had no motive to impute falsely this heinous charge of murder against the above-said accused, considering that Mariano Taeza is a nephew of the deceased by a first degree cousin. Even Juan Brioso specifically said that he knew of no reason why she should testify against him. Hence, her statement that she came to court only to tell the truth should be believed. The witness also stated that she was hard of hearing and could not understand some of the questions; thus, the alleged inconsistencies in her testimony do not detract from the "positive and straightforward"1 identification of the accused as the ones who were seen at the scene of the crime and who actually shot Silvino Daria. It is noteworthy that the trial judge observed witness Bernal closely, warning her several times not to exaggerate, yet in the decision gave her full credence, being obviously satisfied of her truthfulness. The general rule, based on logic and experience, is that the findings of the judge who tried the case and heard the witnesses are not disturbed on appeal, unless there are substantial facts and circumstances which have been overlooked and which, if properly considered, might affect the result of the case,2 which in this case have not been shown to exist.
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Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the victim, who told his wife that it was Juan Brioso and Mariano Taeza who shot him. This statement does satisfy the requirements of an ante mortem statement. Judged by the nature and extent of his wounds, Silvino Daria must have realized the seriousness of his condition, and it can be safely inferred that he made the same under the consciousness of impending death,3 considering that he died only one hour after being shot. The defense of both the accused is alibi. Mariano Taeza's own account was that in the evening of 23 December 1966 he was at the barrio clinic of Tiker playing the guitar with Antonio Daria (son of the deceased), Narciso Valera and Jose Cabais. While in the said place, they heard two gun explosions. Soon afterwards, Macrino Arzadon and Taurino Flores came running towards them, informing Antonio Daria that his father was already dead.

Exhibit "2," the alleged affidavit of Antonio Daria, was presented in court to corroborate Mariano Taeza's testimony. But while the said affidavit was identified by the Provincial Fiscal as having been subscribed and sworn to before him, he also stated that he did not know Antonio Daria personally and that was the only time he appeared before him. Exhibit "2" does not have the seal of the Fiscal's Office. Moreover, the said exhibit was never identified by the supposed affiant and there was no opportunity for the prosecution to cross-examine him. As stated in People vs. Mariquina4, affidavits are generally not prepared by the affiants themselves but by another who uses his own language in writing the affiants' statements, which may thus be either committed or misunderstood by the one writing them. For this reason, and for the further reason that the adverse party is deprived of the opportunity to crossexamine the affiants, affidavits are generally rejected in a judicial proceeding as hearsay, unless the affiants themselves are placed on the witness stand to testify thereon. In view hereof, We find Exhibit "2" of no probative value, and that the lower court did not err when it rejected the same. In this connection, it is markworthy that the prosecuting attorney stated in open court that Antonio Daria had also executed another affidavit (Exhibit "D") in the Fiscal's office "to the effect that he went to the office of defense counsel, ...... and there affixed his thumbmark on a statement that was never read to him." Be that as it may, not one of the other persons who, Mariano Taeza claimed, were with him in the barrio clinic (Narciso Valera and Jose Cabais) was produced in court to support his alibi. Mariano Taeza's testimony, therefore, remains uncorroborated. It has been repeatedly held that in the face of direct evidence, alibi is necessarily a weak defense and becomes more so if uncorroborated. 5 It is worse if the alibi could have been corroborated by other persons mentioned by the accused but they are not presented. 6 By Mariano Taeza's own admission, he and the other accused, Juan Brioso, are close friends. It was shown that Mariano Taeza's house is only about two hundred meters from that of Silvino Daria's and that the barrio clinic is only about eighty to one hundred meters from the said victim's place. Mariano Taeza himself stated that Silvino Daria died "may be less than thirty minutes, may be five minutes" after his arrival at the victim's house with the latter's son and other persons. As held in another case 7 the defense of alibi is so weak that in order to be believed there should be a demonstration of physical impossibility for the accused to have been at the scene of the crime at the time of its commission. Mariano Taeza was so near the victim's house that it was easy for him to be there when the shooting occurred. The other accused, Juan Brioso, stated that he was in sitio Catungawan, barrio Basbasa, Tayum, on 23 December 1966. He was there upon invitation of his first cousin, Nestorio Flores, to cut and mill sugar cane. He left his house in Addamay at 8 in the morning of the said day, arriving in Catungawan before the noon meal. They cut sugar cane from 4 to 5 in the afternoon. At 6:30, after supper, he, his cousin, and the latter's son, Felix Flores, started milling the sugar cane which they had cut. The milling lasted up to 2 in the early morning of the following day. He never left the place where they were milling. He learned of the death of Silvino Daria only when he returned to Addamay because his parents informed him of the news. He admitted knowing Cecilia Bernal and that she likewise knows him. He denied being a close friend of Mariano Taeza (thereby contradicting Mariano Taeza's testimony) 8; denied that he had gone to the house of Angelita Daria, and his having knowledge of the courtship of Angelita by Mariano Taeza; or that both of them used to drink and go out together. On cross-examination, however, he admitted that he went with Mariano Taeza when they attended dances. One such occasion was during the birthday of his first degree cousin in Addamay way back in 1965. Nestorio Flores was presented to corroborate the alibi of the accused. But while both exhibited wonderful memory as to what happened between sunset and midnight of 23 December 1966, they contradict each other as to what happened in the earlier hours or events. As already stated, Juan Brioso testified that he left his place in Addamay at 8 in the morning and arrived at his cousin's house before the noon meal of 23 December 1966; but Nestorio Flores asserted that it was 8 in the morning when Juan Brioso arrived. Brioso claimed that they cut sugar cane from 4 to 5 in the afternoon of the said day. His cousin testified that they cut sugar cane in the morning after Brioso's arrival until lunchtime. Brioso stated that they milled sugar cane for the third time in that place in 1966, the first occasion being on 29 November, and the second on 8 December. Flores denied this, saying that they did not cut sugar cane in November, 1966, although in other years they did. He further stated that it was already in December of that year that Brioso came. In fact, the same witness showed uncertainty as to the exact date, when he answered even on direct examination that "may be that was the time when he came."9 In cases of positive identification of the culprit by reliable witnesses, it has been held that the defense of alibi must be established by "full, clear and satisfactory evidence." 10 It is obvious that this witness, who is a close relative of the accused, was merely presented in court in an attempt to save Juan Brioso from punishment for the crime committed. We believe the trial court when it found that the witness has an interest in the fate of the accused Juan Brioso, and, therefore, his testimony should not be given credence. Evidence also shows that from Tiker to Catungawan is only about nine kilometers and only a two-hour walk. The place is also accessible by motor transportation, although motor vehicles are allegedly rare in the said place. As in

the case of Mariano Taeza, it was not physically impossible for Juan Brioso to be at the locus criminis at the time the crime was committed. It has been clearly and sufficiently proved that the killing of Silvino Daria was qualified by treachery (alevosia)." 11The victim was quietly making rope in his own house. He was caught off-guard and defenseless when suddenly and unexpectedly the two accused fired at him. He had no chance either to evade or repel the aggression. The trial court correctly held that treachery absorbs nocturnity and abuse of superior strength. 12 But while these aggravating circumstances are always included in the qualifying circumstance of treachery, the commission of the crime in the victim's dwelling is not, 13 hence the crime is murder attended by one aggravating circumstance, which has been held to be present where the victim was shot inside his house although the triggerman was outside. 14There being no mitigating circumstance to offset it, the apposite penalty is death. However, for lack of sufficient votes, the penalty imposable is reduced to life imprisonment. WHEREFORE, the sentence under appeal is affirmed, with the sole modification that the amount of the indemnity is increased to P12,000.00. 15 Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Villamor and Makasiar, JJ., concur. Barredo, J., took no part G.R. No. L-20986 August 14, 1965

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. VICENTE N. CUSI JR., Presiding Judge, Branch I, Court of First Instance of Davao, ARCADIO PUESCA alias Big Boy, WALTER APA, JOSE GUSTILO alias Peping, FILOMENO MACALINAO, JR. aliasWhite, RICARDO DAIRO alias Carding, and MAGNO MONTANO alias Edol, respondents. Davao Provincial Fiscal Alejandro B. Ruiz and Assistant Provincial Fiscal Martin V. Delgra, Jr. for petitioner. No appearance for respondents. DIZON, J.: In Criminal Case No. 6813 of the Court of First Instance of Davao, Arcadio Puesca, Walter Apa, Jose Gustilo, Filomeno Macalinao, Ricardo Dairo, and Magno Montano were charged with robbery in band with homicide, to which they pleaded not guilty. During the trial, and while Sgt. Lucio Bano of the Police Force of Digos, Davao was testifying as a prosecution witness regarding the extrajudicial confession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting his participation in the commission of the offense charged, revealed that other persons conspired with him to to commit the offense, mentioning the name of each and everyone of them. Following up this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's alleged coconspirators. Counsel for the accused Macalinao, Gustilo and Dairo objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients were concerned. The respondent judge resolved the objection directing the witness to answer the question but without mentioning or giving the names of the accused who had interposed the objection. In other words, the witness was allowed to answer the question and name his coconspirators except those who had raised the objection. The prosecuting officer's motion for reconsideration of this ruling was denied. Hence the present petition for certiorari praying that the abovementioned ruling of the respondent judge be declared erroneous and for a further order directing said respondent judge to allow witness Bano to answer the question in full. The question involved herein is purely one of evidence. There is no question that hearsay evidence, if timely objected to, may not be admitted. But while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement (People vs. Lew Yon, 97 Cal. 224; VI Wigmore 177-8). In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions below, is nothing more than to establish the fact that the accused Puesca had mentioned to Sgt. Bano the names of those who conspired with him to commit the offense charged, without claiming that Puesca's statement or the answer to be

given by Sgt. Bano would be competent and admissible evidence to show that the persons so named really conspired with Puesca. For this limited purpose, we believe that the question propounded to the witness was proper and the latter should have been allowed to answer it in full, with the understanding, however, that his answer shall not to be taken as competent evidence to show that the persons named really and actually conspired with Puesca and later took part in the commission of the offense. On the other hand, the fact which the prosecuting officer intended to establish would seem to be relevant to explain why the police force of the place where the offense was committed subsequently questioned and investigated the persons allegedly named by Puesca. PREMISES CONSIDERED, the writ is granted. The writ of preliminary injunction issued heretofore is hereby set aside. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO QUIDATO, JR., accused-appellant. DECISION
ROMERO, J.:

Before us is an appeal from the judgment of the Regional Trial Court of Davao, Branch 4, dated March 2, 1994, finding accused-appellant Bernardo Quidato, Jr. guilty of the crime of parricide. On January 17, 1989, accused-appellant was charged with the crime of parricide before the Regional Trial Court of Davao. The information reads as follows:

The undersigned accuses BERNARDO QUIDATO, JR. of the crime of Parricide under Article 246 of the Revised Penal Code, committed as follows: That on or about September 17, 1988, in the Municipality of Kaputian, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping with Reynaldo Malita and Eddie Malita, who are charged for (sic) Murder in a separate information, did then and there wilfully, unlawfully and criminally, with the use of a bolo and an iron bar, assault, hack and stab his father, Bernardo Quidato, Sr., on the different parts of his body, thereby inflicting upon him wounds which caused his death, and further causing actual, moral and compensatory damage to the heirs of the victim. Contrary to law.
[1]

Accused-appellants case was tried jointly with the murder case filed against his coaccused, Reynaldo Malita and Eddie Malita who, however, withdrew their not guilty

plea during the trial and were accordingly sentenced. Thus, only accused-appellants case was tried on the merits. The prosecution, in offering its version of the facts, presented as its witnesses accused-appellants brother Leo Quidato, appellants wife Gina Quidato, as well as Patrolman Lucrecio Mara. Likewise, the prosecution offered in evidence affidavits containing the extra-judicial confessions of Eddie Malita and Reynaldo Malita. The two brothers were, however, not presented by the prosecution on the witness stand. Instead, it presented Atty. Jonathan Jocom to prove that the two were assisted by counsel when they made their confessions. Similarly, the prosecution presented MTC Judge George Omelio who attested to the due and voluntary execution of the sworn statements by the Malita brothers. Based on the foregoing pieces of evidence, the prosecutions version of the facts is as follows: Bernardo Quidato, Sr. was the father of accused-appellant Bernardo Quidato, Jr. and Leo Quidato. Being a widower, Bernardo lived alone in his house at Sitio Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned sixteen hectares of coconut land in the area. On September 16, 1988, Bernardo, accompanied by his son, herein accusedappellant, and two hired hands, Reynaldo Malita and Eddie Malita, went to Davao City to sell 41 sacks of copra. After selling the copra, Bernardo paid the Malita brothers for their labor, who thereafter left. Bernardo and accused-appellant went back to Sitio Libod that same day.[2] According to Gina Quidato, on the evening of the next day, September 17, 1988, accused-appellant and the Malita brothers were drinking tuba at their house. She overheard the trio planning to go to her father-in-laws house to get money from the latter. She had no idea, however, as to what later transpired because she had fallen asleep before 10:00 p.m.[3] Accused-appellant objected to Gina Quidatos testimony on the ground that the same was prohibited by the marital disqualification rule found in Section 22 of Rule 130 of the Rules of Court. [4] The judge, acknowledging the applicability of the so-called rule, allowed said testimony only against accusedappellants co-accused, Reynaldo and Eddie. As adverted to earlier, the Malita brothers confessed to their participation in the crime, executing affidavits detailing how Bernardo was killed. Their version shows that Eddie had been living with accused-appellant for the past four years. At around 6:00 p.m. of September 17, 1988, accused-appellant asked Reynaldo to come to the formers house to discuss an important matter. Upon Reynaldos arrival at accusedappellants house, he saw that his brother Eddie was already there. They started drinking beer. The Malita brothers alleged that it was at this juncture that accusedappellant proposed that they rob and kill his father. They went to Bernardos house only at 10:00 p.m., after the rain had stopped. Reynaldo brought along a bolo. Upon reaching the house, accused-appellant knocked on the door, asking his father to let them in. When Bernardo opened the door, Eddie rushed in and knocked the old man down. Reynaldo then hacked Bernardo on the nape and neck. Accused-appellant and

Eddie ransacked Bernardos aparador looking for money but they found none; so, the three of them left. The body of Bernardo was discovered the next day by accused-appellants son, who had gone there to call his Lolo for breakfast. The cause of death, as stated in Bernardos death certificate was hypovolemic shock secondary to fatal hacking wound on the posterior neck area.[5] On September 27, 1988, Leo Quidato confronted his brother regarding the incident and learned that Reynaldo and Eddie Malita were the ones responsible for Bernardos death. The two were promptly arrested by the police. Aside from arresting the latter two, however, the police also arrested accused-appellant. On September 29, 1988, the Malita brothers were interrogated by Patrolman Lucrecio Mara at the Kaputian Police Station. When Mara apprised them of their constitutional rights, including their right to counsel, they signified their intent to confess even in the absence of counsel. Aware that the same would be useless if given in the absence of counsel, Mara took down the testimony of the two but refrained from requiring the latter to sign their affidavits. Instead, he escorted the Malita brothers to Davao City and presented them, along with their unsigned affidavits, to a CLAO (now PAO) lawyer, Jonathan Jocom.[6] Informed of the situation, Atty. Jocom conferred with Reynaldo and Eddie, again advising the two of their constitutional rights. The CLAO lawyer explained the contents of the affidavits, inVisayan, to the Malita brothers, who affirmed the veracity and voluntary execution of the same. Only then did Reynaldo and Eddie affix their signatures on the affidavits.[7] In his defense, accused-appellant denied the allegations of the Malita brothers. He claimed that the Malita brothers were not at his house on the evening of September 17, 1988. They, however, passed by his house at around 10:00 p.m. and asked him to come with them to his fathers house, threatening him with harm if he refused. Out of fear, he led the way to Bernardos house and even knocked on the latters door until Bernardo opened the same. In the ensuing commotion, he scampered away, but in his confusion, reached his house only at around 11:00 p.m., although the same was only about one hundred fifty meters away from Bernardos house. He did not call for help. Eddie arrived a while later. Accused-appellant claimed not to have seen the actual killing, having run away earlier. He, however, admitted finding a bolo, encrusted with blood, at his house. He turned the same over to his brother, who, in turn, surrendered the same to the police. Accused-appellant did not feel uneasy having Eddie around even if he knew of the latters participation in the crime. [8] After due trial, the court a quo rendered the following judgment:

WHEREFORE, IN THE LIGHT OF THE FOREGOING, the court finds the accused, Bernardo Quidato, Jr., guilty beyond reasonable doubt as a coprincipal in the offense of Parricide which falls under Article 246 (of the Revised Penal Code), for the death of his father, Bernardo Quidato, Sr., and accordingly, is hereby sentenced by this court to suffer the penalty

of RECLUSION PERPETUA, with all the accessory penalties provided by law and to indemnify the other heirs of Bernardo Quidato, Sr., the amount of P50,000.00, in accordance with current case doctrines of the Supreme Court, and to pay the costs. SO ORDERED.
[9]

From the aforesaid judgment of conviction, appellant interposed the present appeal, assigning the following errors:
1. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE EXTRAJUDICIAL CONFESSIONS OF REYNALDO MALITA (EXH. C) AND EDDIE MALITA (EXH. D) IN CLEAR VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSEDAPPELLANT TO CONFRONT WITNESSES. 2. THE TRIAL COURT ERRED IN FINDING (THE) EXISTENCE OF CONSPIRACY IN THE CASE AT BAR. 3. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE RAISED BY THE ACCUSED AND DISREGARDING (ANY) ILL-MOTIVE OF REYNALDO AND EDDIE MALITA IN KILLING THE VICTIM.

Accused-appellant must be acquitted. In indicting accused-appellant, the prosecution relied heavily on the affidavits executed by Reynaldo and Eddie. The two brothers were, however, not presented on the witness stand to testify on their extra-judicial confessions. The failure to present the two gives these affidavits the character of hearsay. It is hornbook doctrine that unless the affiants themselves take the witness stand to affirm the averments in their affidavits, the affidavits must be excluded from the judicial proceeding, being inadmissible hearsay.[10] The voluntary admissions of an accused made extrajudicially are not admissible in evidence against his co-accused when the latter had not been given an opportunity to hear him testify and cross-examine him.[11] The Solicitor General, in advocating the admissibility of the sworn statements of the Malita brothers, cites Section 30, Rule 130 of the Rules of Court which provides that [t]he act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. The inapplicability of this provision is clearly apparent. The confessions were made after the conspiracy had ended and after the consummation of the crime. Hence, it cannot be said that the execution of the affidavits were acts or declarations made during the conspiracys existence. Likewise, the manner by which the affidavits were obtained by the police render the same inadmissible in evidence even if they were voluntarily given. The settled rule is that an uncounseled extrajudicial confession without a valid waiver of the right to counsel that is, in writing and in the presence of counsel is inadmissible in evidence.[12] It is undisputed that the Malita brothers gave their statements to Patrolman

Mara in the absence of counsel, although they signed the same in the presence of counsel the next day. As ruled in People vs. Compil:[13]

[T]he belated arrival of a CLAO (now PAO) lawyer the following day even if prior to the actual signing of the uncounseled confession does not cure the defect (of lack of counsel) for the investigators were already able to extract incriminatory statements from accused-appellantThus, in People vs. De Jesus (213 SCRA 345 [1992]) we said that admissions obtained during custodial interrogations without the benefit of counsel although later reduced to writing and signed in the presence of counsel are still flawed under the Constitution.
With regard to Gina Quidatos testimony, the same must also be disregarded, accused-appellant having timely objected thereto under the marital disqualification rule. As correctly observed by the court a quo, the disqualification is between husband and wife, the law not precluding the wife from testifying when it involves other parties or accused.[14] Hence, Gina Quidato could testify in the murder case against Reynaldo and Eddie, which was jointly tried with accused-appellants case. This testimony cannot, however, be used against accused-appellant directly or through the guise of taking judicial notice of the proceedings in the murder case without violating the marital disqualification rule. What cannot be done directly cannot be done indirectly is a rule familiar even to law students. Given the inadmissibility in evidence of Gina Quidatos testimony, as well as of Reynaldo and Eddies extrajudicial confessions, nothing remains on record with which to justify a judgment unfavorable to accused-appellant. Admittedly, accused-appellants defense, to put it mildly, is dubious. His alleged acquiescence to the demand of the Malita brothers to accompany them to his fathers house on the strength of the latters verbal threats, his incredulous escape from the clutches of the two, his inexplicable failure to return home immediately, his failure to seek assistance from the authorities, the fact that Eddie stayed with him immediately after the incident, and the nine-day lacuna between the killing and his pointing to the Malita brothers as the culprits, all suggest a complicity more than that of an unwilling participant. Yet, suspicion, no matter how strong, should not sway judgment, it being an accepted axiom that the prosecution cannot rely on the weakness of the defense to gain a conviction, but must establish beyond reasonable doubt every circumstance essential to the guilt of the accused.[15] This the prosecution has failed to demonstrate. WHEREFORE, the appeal is hereby GRANTED and the decision of the Regional Trial Court of Davao City in Criminal Case No. 89-9 dated March 2, 1994, is REVERSED and SET ASIDE. Accused-appellant Bernardo Quidato, Jr. is hereby ACQUITTED on ground of reasonable doubt. Consequently, let the accused be immediately released from his place of confinement unless there is reason to detain him further for any other legal or valid cause. With costs de oficio. SO ORDERED.

Kapunan and Purisima, JJ., concur. Narvasa, C.J., (Chairman), on leave.

G.R. No. 74065 February 27, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NERIO GADDI y CATUBAY, defendant-appellant. The Solicitor General for plaintiff-appellee. Citizen Legal Assistance Office for defendant-appellant.

CORTES, J.: Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y Navarro in an information which reads as follows: xxx xxx xxx That on or about the 11th day of December, 1981, in Quezon City, Metro Manila, Philippines, the above-named accused, with intent to kill, without any justifiable cause, qualified with treachery and with evident pre-meditation (sic), did then and there, wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by then and there stabbing him several times with a knife, hitting him on the different parts of his body, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of the offended party in such amount as maybe awarded under the provision of the Civil Code. CONTRARY TO LAW. [Rollo, p. 15.] After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a verdict of guilt for the crime charged, the decretal portion of which reads: xxx xxx xxx WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond reasonable doubt of the crime of murder, as charged in the information, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of Augusta Esguerra the sum of P50,000.00 without subsidiary imprisonment in case of insolvency, with all the accessory penalties provided for by law, and to pay the costs. SO ORDERED. [Rollo, p. 31.] On appeal to this Court, Gaddi assigns as errors of the trial court the following: I THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.

II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE. III THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PRE-MEDITATION [Rollo, p. 38.] The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto Guzman, Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the defense. The prosecution's version of the facts are as follows: xxx xxx xxx At about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome, Novaliches, Quezon City, Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the morning of the following day, December 12, 1981, appellant told Ernesto Guzman that he killed his drinking partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police. After work, Guzman went to the police and reported what appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983). At around 2:00 o'clock in the afternoon of the same day, December 12, 1981, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to where the body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and took down the confession of appellant (Exhibit F). Later, the cadaver was subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984). A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where the body of the victim was dug out. The T-shirt and shorts were Identified by Ernesto Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber slipper, bottle of wine and glass were likewise recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for the Appellee, pp. 35; Rollo, p. 52.1 On the other hand, the defense's version of the facts are as follows: Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusta Esguerra (Bong Kuleleng) near the house of Ernesto Guzman. At about 5:00 p.m., be was requested by Ernesto Guzman to buy gin. He left Ernesto Guzman and Augusta Esguerra (who were allegedly drinking) in order to buy a bottle of gin in a nearby store, about 200 meters away. At the store, he met an acquaintance and they talked for a while before returning. Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood in the place where they had been drinking and Augusta Esguerra, alias Bong Kuleleng was not there anymore. He inquired from Ernesto Guzman the whereabouts of Augusta Esguerra and was told that the latter "went home already". He then asked Guzman about the blood and was told that it was the blood stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto Guzman informed him about the killing of Augusta Esguerra. Guzman narrated to him that Bong Kuleleng (Augusta Esguerra) held his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased by him. He did not report the killing to the authorities. Guzman likewise requested ban to admit the killing but he refused. While in the house, Guzman filed the case ahead. He was later arrested and investigated while looking for the corpse. When brought to

the police station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20, 1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.] The Court finds the instant appeal unmeritorious. Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the validity of such conviction that: 1) there be more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court, People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is required is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with any other hypothesis except that of guilty [People v. Constante, G.R. No. L-14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132, September 26, 1964, 12 SCRA 9.] In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra. 1. The fact that said victim was last seen on the day he was killed in the company of the accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9,1983, p. 1.] 2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was 'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto Guzman [TSN, August 9,1983, p. 7.] 3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the Northern Police District by the barangay people who apprehended him, be admitted the truth of the charge of the barangay residents that he killed someone and that he dumped the body of the victim in a place being dug out as an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the barangay people started digging for the body of the victim, the appellant was even instructing them as to the exact location where the body was buried [TSN, August 24, 1983, p. 6.] 4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the victim was found there after the digging [TSN, January 3, 1984, p. 5.] 5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were later recovered from the place where the victim was buried [TSN, September 2, 1982, p. 3.] Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses is entitled to great weight and respect [People v. Valentino, G.R. Nos. L-49859- 60, February 20, 1986, 141 SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.] Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal bad previously declared that a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a crime can be presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those facts which he merely learned from other persons but not as to those facts which he "knows of his own knowledge: that is, which are derived from his own perception." Hence, while the testimony of a witness regarding the statement made

by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement [People v. Cusi Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement. That the testimony of Guzman on appellant's oral confession is competent evidence finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 4311 which upheld the trial court's reliance on an extrajudicial confession given, not to a police officer during custodial interrogation, but to an ordinary farmer as the basis for conviction. The Court's pronouncements in the aforesaid case find relevance in the instant case: The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him' (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae. The Rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.) Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused [citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) [at pp. 436-437; Emphasis supplied.] The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the community as a member of a religious movement participating in such activities as "maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a "maanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all that he was actuated by improper motives in testifying against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the former to sleep in the porch of his house as the former had no immediate relatives in Quezon City [TSN, August 9, 1983, p. 14.] As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant, credence should be given to their narration of how the appellant was apprehended and how he led the police and the barangay residents to the place where he dumped the body of his victim since those police officers are presumed to have performed their duties in a regular manner in the absence of evidence to the contrary [People v. Boholst, G.R. No. L73008, July 23, 1987, 152 SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30 1987, 149 SCRA 464.] Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi. It has been ruled time and again that courts look upon the evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because of its easy fabrication [People v. Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil 828 (1917).] This test requires not only proof that the accused was somewhere else other than the scene of the crime but clear and convincing proof of physical impossibility for the accused to have been at the place of the commission of the crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984. 130 SCRA 540; People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA 113.]

The testimony of the accused himself believes any claim of physical impossibility for him to be at the scene of the crime since according to him, the store where he allegedly bought another bottle of gin was only 200 meters away. He was able to return to Guzman's house only after half an hour since he still had a chat with an acquaintance at the store. Even granting the truth of appellant's story that he was ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after thirty minutes, it was not impossible for him to have committed the crime since Guzman and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus, his statements on the witness stand, far from demonstrating physical impossibility of being at the scene of the crime, cast serious doubt on the veracity of his alibi. As the culpability of the accused has been established beyond reasonable doubt by the evidence of the prosecution, there is no need to dwell on the admissibility of appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be sustained independently of said confession. However, in the absence of proof as to how the victim was killed, the aggravating circumstances of treachery and evident premeditation cannot be properly appreciated. The killing must be considered as homicide only and not murder since the circumstance qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case that As heretofore stated, not a single eyewitness to the stabbing incident had been presented by the prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by appellant in attacking the victim. It is needless to add that treachery cannot be deduced from mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is required before any conclusion may be reached respecting the attendance of alevosia[People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied. ] Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of 1. the time when the of tender determined to commit the crime; 2. an act manifestly indicating that the culprit clung to his dead termination; and 3. a sufficient laspe of time between the determination and the execution to allow him to reflect upon the consequences of his act [People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.] As the evidence on record does not disclose the existence of treachery and evident premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and not murder, Since there are neither mitigating nor aggravating circumstances, the penalty for homicide which is reclusion temporal should be imposed in its medium period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum. Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the indemnity of P 30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly. WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P 30,000.00. SO ORDERED. G.R. No. L-25966 December 28, 1979 FERMIN A. BAGADIONG, petitioner, vs.

HON. FELICIANO S. GONZALES, Judge of the Court of First Instance of Catanduanes, CLEMENTE ABUNDO, RAFAEL VILLANLUNA and FRANCISCO A. PERFECTO, respondents.

DE CASTRO, J.: This is a special civil action for certiorari instituted on April 27, 1966 by the petitioner to annul the order 1 dated April 18, 1966 of respondent Judge of the Court of First Instance of Catanduanes in Civil Case No. 546, entitled "Clemente Abundo and Rafael Villaluna, plaintiffs, versus Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong and Armando Ala, defendants, Francisco A. Perfecto, intervenor." Alleged as ground for the petition is that the order was issued with grave abuse of discretion, amounting to lack of jurisdiction. The facts are as follows: On January 12, 1966, the herein plaintiffs-respondents filed a aforementioned Civil Case No. 546 for prohibition with preliminary prohibitory and mandatory injunction with the Court of First Instance of Catanduanes against defendants Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong (the herein petitioner) and Armando Ala who are the Governor, Vice Governor, Provincial Treasurer and Provincial Auditor of the Province of Catanduanes, respectively. In the said petition, it is alleged that defendants, including the herein petitioner, are authorizing, approving and effecting the disbursements of public funds of the province for purposes stated in the alleged annual Provincial Budget of the Province for the Fiscal Year 1965-1966 purporting on its face to have been approved by the Provincial Board on August 23, 1965 under Resolution No. 62-A; that the aforesaid budget is falsified document because the Provincial Board never approved the same, the alleged Provincial Board Resolution No. 62-A which is claimed to have approved the said Budget does not exist; that upon discovery of the anomaly, plaintiffs Clemente Abundo and Rafael Villaluna made representations with the Secretary of Finance on November 17, 1965, to have the alleged Board Resolution No. 62-A approving the budget, considered null and void because the said plaintiffs never took part in the deliberation approving the said Resolution; that for the defendants to continue making disbursements of public funds under the falsified budget, the people and the government of the Province of Catanduanes will suffer irreparable damage and injury from which there is no other plain, speedy and adequate remedy in the ordinary course of law except the instant petition. Plaintiffs pray that pending resolution of the petition on the merits, a preliminary injunction be issued restraining the defendants from authorizing, approving and effecting the disbursements of public funds on the basis of the said budget. 2 On January 14, 1966, a writ of preliminary injunction was issued by the respondent Judge against the defendants commanding them to desist from authorizing and making any further disbursements of funds from the budget in question. On January 17, 1966, the defendants filed a motion for reconsideration and to dissolve the writ of preliminary injunction. 3 A complaint in intervention 4 was filed on January 21, 1966 by herein respondent Francisco A. Perfecto praying, among others, that the annual budget of the Province of Catanduanes for the fiscal year 1965-1966 be declared null and void ab initio, the same being falsification that all original parties to the case be ordered to refund the province all moneys purportedly appropriated under the falsified budget and disbursed and collected by them, respectively; and that all the said original parties be condemned, jointly and severally, to pay the Province of Catanduanes an amount equal to all disbursements under the falsified budget, by way of exemplary damages. On January 31, 1966, the respondent judge denied the motion to vacate and lift the writ of preliminary injunction in an order 5 dated January 31, 1966. When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for plaintiffs called one of the defendants, the herein petitioner, Fermin A. Bagadiong, to the witness stand as one of the witnesses for the plaintiffs. Counsel for the defendants raised the objection that the said party cannot be called as a witness for the plaintiffs because it would violate his constitutional right against self-incrimination. On the other hand, counsel for the plaintiffs contended that this being purely a civil action, the right against self-incrimination is not involved, and if any testimony elicited from the herein petitioner would tend to incriminate himself, there would be ample time for the herein petitioner to raise the proper objection. The respondent Judge in his order 6 held that the position taken by the counsel for the plaintiffs is legally correct, thereby, ruling that the petitioner may testify as a witness for the plaintiffs.

After a verbal motion to reconsider the aforesaid order was denied by the respondent Judge, the herein petitioner filed with this Court the instant petition, claiming as earlier stated, that the respondent Judge acted in excess of his jurisdiction and/or with grave abuse of discretion in allowing the herein petitioner to testify for the respondents in Civil Case No. 546, and that there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law. After the respondents have filed their answer to the instant petition, as required by this Court, both parties submitted their respective memoranda in lieu of oral argument, after which the case was considered submitted for decision. The principal issue raised in the instant case is whether or not respondent Judge acted in excess of his jurisdiction and with grave abuse of discretion in allowing the herein petitioner to testify as a witness for the herein respondents, despite his claim of violating his right against self-incrimination. The petitioner contends that the provision of the Rules of Court which authorizes a party to call the adverse party to the witness stand applies only to purely civil actions where the defendant does not run the risk of being prosecuted for any offense. Likewise, the petitioner assets that the right against self-incrimination can only be claimed when the incriminatory question is being propounded and not before, by a mere witness, but not by a party defendant, as in the case at bar. We find no merit to these contentions. There is no legal impediment for a party to call any of the adverse parties to be his witness, as clearly provided in Section 6, Rule 132 of the Rules of Court which expressly provides: A party may interrogate any unwilling or hostile witness by leading questions. A party may call on 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. It is in a criminal case, when the accused may not be compelled to testify, or to so much as utter a word, even for his own defense. 7 But while the constitutional guaranty against self-incrimination protects a person in all types of cases, be they criminal, civil or administrative, 8 said privilege, in proceedings other than a criminal case against him who invokes it, is considered an option to refuse to answer incriminating question, and not a prohibition of inquiry. As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al: 9 Except in criminal cases, there in no rule prohibiting a party litigant form utilizing his adversary as a witness. As a matter of fact, Section 83 of Rule 123, Rules of Court, expressly authorizes a party to call an adverse party to the witness stand and interrogate him. This rule is, of course, subject to the constitutional injunction not to compel any person to testify against himself. But it is established that the privilege against self-incrimination must be invoked at the proper time, and the proper time to invoke it is when a question calling for a criminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information to be elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to testify "cannot decline to appear, nor can he decline to be sworn as a witness" and "no claim of privilege can be made until a question calling for a criminating answer is asked; at that time, and generally speaking, at that time only, the claim of privilege may properly be imposed." (Emphasis supplied). In the instant case, petitioner invoked the privilege even prior to any question being propounded, and simply declined to take the witness stand. In the above-cited Gonzales case, it will be noted that the privilege against selfincrimination must be invoked when a question calling for an incriminating answer is propounded, because before a question is asked, there would be no way of telling whether the information to be elicited from the witness is selfincriminating or not. Moreover, the herein petitioner was being directed to take the stand, not in a criminal case where he is an accused but in civil action. This is expressly permitted by Section 6, Rule 132 of the Rules of Court which authorizes a party to call any adverse party as his witness. In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated:

Here, petitioner invoked the privilege even prior to any question, and simply declined to take the witness stand. Note that in the Gonzales case, above-cited, the adverse party was directed to take the witness stand in proceedings to investigate an alleged failure to pay overtime compensation, which, under corresponding special laws, carries a penal sanction. Here, petitioner was being directed to take the stand, not in a criminal case where he is an accused, but in an independent civil action which, although arising from the same facts involved in a criminal case pending before the same court, is still be regarded by law as an "entirely separate and distinct" action, governed by a corresponding different set of rules (Civil Code of the Phil., Art. 2177). The almost exact similarity of the instant case and the case just cited leaves no room for doubt, and there is complete justification therefore that the same ruling must be applied here. WHEREFORE, the instant petition to prohibit the respondent judge from directing petitioner to take the witness stand and testify is denied, without prejudice to petitioner's properly invoking the guaranty against self-incrimination when questions are propounded to him on the stand. Costs against the petitioner. SO ORDERED. Teehankee, (Chairman), Fernandez, Guerrero and Melencio-Herrera, JJ., concur. Makasiar, J., concur in the result.

Prec. Rec. No. 714-A

July 26, 1937

MARIA BERMUDEZ, complainant, vs. LEODEGARIO D. CASTILLO, respondent. G. Viola Fernando for complainant. Office of the Solicitor-General hilado for the Government. The respondent in his own behalf. DIAZ, J.: In the course of the investigation which was being conducted by the office of the Solicitor-General against the respondent, in connection with this administrative case, said respondent filed, in addition to other evidence in support of this defense, the six letters which, for purposes of identification, were marked as Exhibits 32, 34, 35, 36 and 37. He then contended, as he now continues to contend, that said six letters are the complainant's, but the latter denied it while she was testifying as a witness in rebuttal. she admitted, however, that the letters marked as Exhibits 38, 39 and 40 were in her own handwriting. As the respondent believed that the three letters admitted by the complainant to be hers were insufficient for purposes of comparison with those questioned in this case and as he was determined to show that said Exhibits 38, 39 and 40 were the complainant's, he required her to copy them in her own handwriting in the presence of the investigator. The complainant, upon advice of her attorney, refused to submit to the trial to which it was desired to subject her, invoking her right not to incriminate herself and alleging that Exhibits 38, 39 and 40 and the other letters already in the respondent's possession, were more than sufficient for what he proposed to do. The investigator, upholding the complainant, did not compel her to submit to the trial required, thereby denying the respondent's petition. As respondent did not agree to this decision of the investigator, he instituted these proceedings praying that the investigator and the Solicitor-General in whose representation he acted, be ordered to require and compel the complainant to furnish new specimens of her handwriting by copying said Exhibits 32 to 37 for that purpose. The question raised before this court is not new. In the case of Beltran vs. Samson and Jose ([1929], 53 Phil., 570), a similar question was raised before this court. The respondents therein desired to compel the petitioner to write by hand what was then dictated to him. The petitioner, invoking the constitutional provision contained in section 3, paragraph 3, of the Jones Law which reads: ". . . nor shall be compelled in any criminal case to witness against

himself", refused to write and instituted prohibition proceedings against the therein respondents. This court granted the petition and ordered the respondents to desist and abstain absolutely from compelling the petitioner to take down dictation by hand for the purpose of comparing his handwriting. The reasons then adduced therein can and must be adduced in this case to decide the same question; and all the more so because Article III, section 1, No. 18, of the Constitution of the Philippines is worded in such a way that the protection referred to therein extends to all cases, be they criminal, civil or administrative. The constitution provides: "No person shall be compelled to be a witness against himself." It should be noted that before it was attempted to require the complainant to copy the six documents abovestated, she had sworn to tell the truth before the investigator authorized to receive statements under oath, and under said oath she asserted that the documents in question had not been written by her. Were she compelled to write and were it proven by means of what she might write later that said documents had really been written by her, it would be impossible for her to evade prosecution for perjury, inasmuch as it would be warranted by article 183 of the Revised Penal Code, which reads: The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. Any person who, in case of a solemn affirmation made a lieu of an oath shall commit any of the falsehoods mentioned in this and the preceding articles of this section, shall suffer the respective penalties provided therein. The respondent invokes in his support the doctrine laid sown in Ex Parte Crow (14 Pac. [2d series], 918), to the effect that ". . . a witness may not arbitrarily refuse to answer a question on the ground that his answer might incriminate him when the court can determine as a matter of law that 'no direct answer which the witness may make can tend to criminate him.'" It must be taken into account that the question asked the petitioner in said case, as stated by the prosecuting attorney, was only a preliminary question, as it was simply attempted to learn from her who was with her on a certain occasion, and on what date, to the best of her recollection, had she visited Dr. Groose. She refused to answer said questions alleging that her answer might incriminate her. The court upheld her saying: We are therefore of the opinion that the trial court erred when it determined as a matter of law that petitioners answer to the questions propounded could have no tendency to incriminate her. They clearly might have such tendency, and it was petitioners right and privilege to decline to answer any of the abovementioned questions upon the ground stated. We fully realize the difficulty encountered in the prosecution of cases under section 274 of the Penal Code when those present and capable of establishing the facts are unwilling to testify because of fear of subjecting themselves to prosecution. But the constitutional and statutory guaranties accorded to petitioner cannot be swept aside merely because they may result in making difficult, or even impossible, the conviction of the accused. The respondent likewise invokes in his support doctrine laid down in re Mackenzie (100 Vt. Rep., 325). This court is of the opinion that what had been said in the above-cited case is not applicable to the case under consideration. The petitioner Mackenzie, upon being required after he had pleaded guilty of intoxication to disclose the person or persons who had furnished him the liquor, said that they were stranger to him, whom he met late in the evening in Barre. The court, considering his alleged disclosure unsatisfactory, ordered him committed to jail until he should tell the truth or until further orders. He instituted habeas corpus proceedings in his favor alleging in his pleading that as he had already made a truthful disclosure, the result of his commitment would be to compel him to deny his former statements and make others which would make him guilty of perjury. The court, deciding the question, said: The privilege against self-crimination is a personal one. . . . But the privilege is an option of refusal, not a prohibition of inquiry. Hence, when an ordinary witness is on the stand, and self-criminating act relevant to the issue is desired to be shown by him, the question may be asked, and then it is for the witness to say whether he will answer it or claim its privilege, for it cannot be known beforehand what he will do. It further state that "the proper place in which to claim the privilege is in the trial court, when the question is propounded, not here." This is exactly the case of the herein complainant. She opportunely invoked the privilege when it was desired to subject her to trial by copying the six letters in question, which Mackenzie failed to do. It is true that in said case of Mackenzie, it was likewise stated that "No reason appears why the examination on disclosure should not be subject to the ordinary rule of cross-examination. The person making the disclosure is in the

petition of a witness called by the State, and is subject to the rule permitting the impeachment of such a witness. It is no invasion of the constitutional guaranty against self-crimination to compel the witness to answer questions relating to the truthfulness of his previous testimony." This court, however, is of the opinion that the foregoing is not applicable to the case of the herein complainant, firstly, because she has made no disclosure; she confined herself to denying the letters in question were hers when the respondent, appressing in court with them, said rather than insinuated, that they were hers, presenting in support of his statement, other letters which, by reason of the handwriting, were to all appearances similar thereto; and secondly, because her testimony, denying that she was the author of the letters in question, may be attacked by means of other evidence in the possession of the respondent, which is not precisely that coming from the complaint herself. The reason for the privilege appears evident. The purpose thereof is positively to avoid and prohibit thereby the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. If such is its purpose, then the evidence must be sought elsewhere; and if it is desired to discover evidence in the person himself, then he must be promised and assured at least absolute immunity by one authorized to do so legally, or he should be asked, one for all, to furnish such evidence voluntarily without any condition. This court is the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it. In view of the foregoing consideration and holding, as it is hereby held, that the complainant is perfectly entitled to the privilege invoked by her, the respondent's petition is denied. So ordered. Avancea, C.J., Villa-Real, Imperial and Concepcion, JJ., concur.

Separate Opinions LAUREL, J., concurring: I concur in the majority opinion in this case. The principle expressed in the legal maxim Nemo tenetur seipsum accusare has a historical background too long to narrate. Suffice it to say that the principle which later found expression in constitutional charter was aimed at the unjust inquisitorial practices which prevailed in Continental Europe, and even in England and in the American colonies in the early days. (See U. S. vs. Navarro, 3 Phil., 143, 152; Villaflor vs. Summers, 41 Phil., 62; Brown vs.Walker, 161 U. S., 591; 16 S. Ct., 644; 40 Law. ed., 821.) The privilege against self-incrimination is guaranteed in the Fifth Amendment to the federal constitutional and in the great majority of the state constitutions of the United State. In the Philippine, the same principle obtains as a direct result of American influence. At first, the provision in our organic laws was similar to that found in the Fifth Amendment to the Constitution of the United States and was as follows: "That no person shall . . . be compelled in any criminal case to be a witness against himself." (President's Instructions to the Philippine Commission; Philippine Bill of July 1, 1902, sec. 5, par. 3; Jones Law, Act of Congress of August 29, 1916, sec. 3, par. 3.) Although the provision makes reference only to criminal cases, the privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not (70 C. J., sec. 875, p. 722). Prof. Wigmore states these principles clearly in his valuable work on Evidence (vol. IV, sec. 2252, pp. 834, 835), in the following language: This variety of phrasing, then, neither enlarges nor narrows the scope of the privilege as already accepted, understood, and judicially developed in the common law. The detailed rules are to be determined by the logical requirements of the principle, regardless of the particular word, of a particular constitution. This doctrine which has universal judicial acceptance, leads to several important consequences: (a) A clause exempting a person from being "a witness against himself" protects as well a witness as a party accused in the cause; that is, it is immaterial whether the prosecution is then and there "against himself" or not. So also a clause exempting "the accused" protects equally a mere witness.

(b) A clause exempting from self-criminating testimony "in criminal cases" protects equally in civil cases, when the fact asked for is a criminal one. (c) The protection, under all clauses, extends to all manner of proceedings in which testimony is to be taken, whether litigious or not, and whether "ex parte" or otherwise. It therefore applies in all kinds of courts . . . in all methods of interrogation before a court, . . . and in investigations by a legislature or a body having legislative functions. When the Constitution of the Philippines was drafted, the phraseology in the previous organic acts was altered by omitting the phrase "in any criminal case" to make the letter conform with the evident spirit of the provision. The Constitution provides that "No person shall be compelled to be a witness against himself." (Article III, sec. 1. subsec. 18.) Similar provisions are to be found in our statutes (G. R. No. 58, sec. 15, subsec. 4; Act No. 194 as amended, sec. 2; Act No. 2711, secs. 1687 and 2465; Act No. 3108, sec. 26). This court has had occasion to rule that the constitutional provision relates solely to testimonial compulsion (U. S.vs. Tan Teng, 23 Phil, 145, U. S. vs. Salas. 25 Phil., 337 U. S. vs. Ong Siu Hong, 36 Phil., 735; Villaflor vs.Summers, 41 Phil., 62). In the case of Beltran vs. Samson and Jose (53 Phil., 570, cited in 70 C. J., sec. 887, p. 727), however, this court enlarged the application of the provisions by holding of his person may not be compelled to produce specimens of his handwriting for purposes of confrontation with certain documents supposed to have been falsified by him. It was there said that "writing is something more than moving the body, or hand, or the fingers; writing is not a purely mechanical act, because it requires the application of intelligence and attention; and in the case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the falsifier, as the petition of the respondent fiscal clearly states. (Pages 576, 577.) It must be admitted that the case before us is one indifferences of opinion may, reasonably be expected; and in other jurisdictions conflict of opinion is clearly noticeable. In some jurisdictions it is ruled that a person who denies during his examination in chief the authenticity of handwriting purporting to be his may be asked to write specimens of his handwriting for the purposes of comparison, while in other jurisdictions and under practically the same circumstances, a directly opposite view is reached. The reason for this is not far to seek. One vainly looks at the naked text of the constitutional provision for unalterable rules applicable in particular cases. Courts have to deal with cases as they arise and while agreeing on the principle they do not and can not unite on the application. But I vote to sustain the objection of the witness for the following reasons: (1) As between two possible and equally rational constructions, that should prevail which is more in consonance with the purpose intended to be carried out by the Constitution. The provision, as doubtless it was designed, should be construed with the utmost liberality in or of the right of the individual intended to be secured. (Boyd vs. United States, 116 U. S., 616; 6 S. Ct., 524; 29 Law. ed., 746; Counselman vs. Hitchcock, 142 U. S., 562; 12 S. Ct., 195;35 Law. ed., 1110; Brown vs. Walker, 161 U. S., 596; 16 S. Ct., 644; 40 Law. ed., 819 Interstate Commerce Commission vs. Baird, 194 U. S., 45; 5 S. Gt., 563; 48 Law. ed., 860; Gouledvs. United States, 255 U. S., 298; 41 S. Ct., 261;65 Law. ed., 647; In re Machman, 114 Fed., 995; U. S. vs.Wetmore, 218 Fed., 227; People vs. Hackley, 24 N. Y., 74; 24 How. Pr., 369, 372 [Off. 12 Abb. Pr., 150; 21 How. Pr., 54]; People vs. Cassidy, 213 N. Y., 388, 107 N. E., 713; Ann. Cas. [1916C], 1009; People vs.Forbes 38 N. E., 303; 143 N. Y., 219; People vs. Spain, 138 N. E., 614; 307 Ill., 283; People vs. Newmark, 144 N. E., 388; 312 Ill, 625; Gillespie vs. State, 5 Okla. Crim., 546; 115 Pac., 620; Ann. Cas. [1912D], 259; 35 L. R. A. [N. S.], 1171; Ward vs. State, 228 Pac., 498; 27 Okla. Crim., 362; Thornton vs. State, 117 Wis., 338; 93 N. W., 1107; 98 A. S. R., 924; People vs. Danziger, 213 N. W., 448; 238 Mich., 39; 52 A. L. R., 136; Underwood vs. State, 78 S. E., 1103; 13 Ga. App., 206.) Justice Bradley of the Supreme Court of the United States once said that "illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis." (Boyd vs. United States, supra.) An equally liberal interpretation should be given to similar provisions found in our statutes. (People vs. Forbes supra.) (2) I am averse to the enlargement of the rule allegedly calculated to gauge more fully the credibility of a witness if the witness would thereby be forced to punish the means for his own destruction. Unless the evidence is voluntarily given, the policy of the constitutional is one of protection on humanitarian considerations and grounds of public policy (see U. S. vs. Navarro, 3 Phil., 143). This is not saying that the

constitutional privilege was intended to shield the witness from the personal disgrace or opprobrium resulting from the exposure of crime. It was only intended to prevent the disclosure of evidence that may tend to render the witness liable to prosecution in a criminal case.(70 C. J., sec. 880, p. 729.) (3) The privilege should not be disregarded merely because it often affords a shelter to the guilty and may prevent the disclosure of wrongdoing. Courts can not under the guise of protecting the public interest and furthering the excrescence in the Constitution. (4) It is true that the privilege afforded by the constitution is purely personal to the witness and may be waived by him (U. S. vs. Cofradia, 4 Phil., 154; U. S. vs. Rota, 9 Phil., 426; U. S. vs. Grant and Kennedy, 18 Phil., 122;U. S. vs. Binayoh, 35 Phil., 23) either by a failure to claim the privilege on time or by testifying without objection; and a witness who has waived the privilege is not permitted to stop but must go on and make a full disclosure of all matters material to the case (Fitzpatrick vs. United States, 178 U. S., 304; 20 S. Ct., 944; 44 Law. ed., 1078: Reagan vs. United States, 157 U. S., 301; 15 S. Ct., 610; 39 Law. ed., 709; Sawyer vs. United States, 202 U.S., 150;26 S. Ct., 575: 50 Law. ed., 972, Powers vs. United States, 223 U.S., 303; 32 S. Ct., 281; 56 Law. ed., 448). But in the case before us there has not been a waiver. The privilege was invoked on time. The objection to the question of respondent's counsel was raised upon the asking of the question which would subject the witness to the danger of committing perjury. This the witness had a right to do. (State vs. Blake, 25 Me., 350; Friess vs. New York Cent., etc. R. Co., 22 N. Y. S., 104; 67 Hun., 205, aff. 55 N, E., 892; 140 N. Y., 639.) (5) It was not the complainant but the respondent who offered the letters (Exhibits 32 to 37) in evidence. The complainant was presented in rebuttal and she simply denied having written the letters. She should not be made to furnish the other party evidence by which to destroy her own testimony under circumstances which tend to incriminate her. She was not even presented by the respondent as his own witness. (6) There are already in evidence letters written by the complainant and admitted by her to be genuine. The purpose then of respondent's counsel can be attained without extracting from the witness herself evidence which would subject her to punishment for a felony. ABAD SANTOS, J., dissenting: I am unable to concur in the opinion of the court in this case, because the doctrine it lays down is, in my judgment, not only unsound but in conflict with the great weight of competent authority on the subject. We are called upon to determine for the first time the scope and application of an important provision of the Constitution and it goes without saying that the matter requires careful consideration, since our decision is bound to have a far-reaching effect. The Constitution provides that "no person shall be compelled to be a witness against himself." (Article 111, section 1, cl. 18.) This provision has been derived from that clause of the Fifth Amendment to the Constitution of the United States which declares that no person "shall be compelled in any criminal case to be a witness against himself." While the omission of the words "in any criminal case" from the Philippine version may seem important, the truth is that such a change in phraseology carries no legal significance whatever, inasmuch as the Supreme Court of the United States had construed the provision in the Federal Constitution to mean that the privilege against self-incrimination is not confined to the accused; and that it is also available to witnesses both in criminal and civil cases; and that it may invoked in court, before legislative committees, grand juries, and other tribunals. (McCarthy vs. Arndstein, 266 U. S., 34; Law. ed., 158.) The origin of this constitutional inhibition is related by the Supreme Court of the United States as follows: "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general

and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American, jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with he impregnability of a constitutional enactment." (Brown vs. Walker, 161 U. S., 591, 597; 40 Law. ed., 821.) While the courts have guarded the privilege with great care and liberally extended the mantle of its protection in appropriate cases, they have at the same time insisted that the constitutional provision embodying it "should be construed, as it was doubtless designed, to effect a practical and beneficent purpose not necessarily to protect witnesses against every possible detriment which might happen to them from their testimony, nor to unduly impede, hinder, or obstruct the administration of criminal justice." (Brown vs. Walker, supra.) It has been held that the privilege against self-incrimination, like any other privilege is one which may be waived. It may be waived by voluntarily answering questions, or by voluntarily taking the stand, or by failure to claim the privilege. (People vs.Nachowicz, 340 Ill., 480; 172 N. E., 812; Salibo vs. United States, 46 Fed. [2], 790; United States vs. Murdock, 284 U. S., 141; 76 Law. ed., 210.) A party who voluntarily takes the stand in his own behalf, thereby waiving his privilege, may be subjected to a cross-examination covering his statement. In Fitzpatrick vs. United States (178 U. S., 304; 44 Law. ed., 1078, 1083), the Supreme Court of the United States said: "where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts. The witness having sworn to an alibi, it was perfectly competent for the government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason why an accused person who takes the stand as a witness should not be subject to cross-examination as other witnesses are. Had another witness been placed upon the stand by the defense, and sworn that he was with the prisoner at Clancy's and Kennedy's that night, it would clearly have been competent to ask what the prisoner wore, and whether the witness saw Corbett the same night or the night before, and whether they were fellow occupants of the same room." It is well-settled that the right to cross-examine witnesses of the adverse party, being absolute, should not be unduly restricted, especially when the witness is the opposite party and is testifying to make out his own case. (70 C. J., 615.) And while there is some conflict of authorities, the better view appears to be that when a witness has denied what purports to be his handwriting, he may on cross-examination be called upon to write in order that such writing may be compared with the disputed writing for the purpose of contradicting him. (22 C. J., 785.) The petitioner in this case having waived her privilege against self-incrimination by voluntarily taking the stand and testifying, it was legitimate cross-examination to call on her to write in order that such writing may be compared with the disputed writing for the purpose of contradicting her, and the investigating officer erred in sustaining her objection on the ground that she might incriminate herself. G.R. No. L-41166 August 25, 1976 PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO, petitioners, vs. HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO OJOYrespondents. Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and Solicitor Mariano M. Martinez for petitioner People of the Philippines. Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del Rosario and Dionisio Cerbo. Sixto P. Demaisip for private respondent.

ANTONIO, J.:p Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of respondent Judge, dated July 30, 1975, sustaining the procedure proposed by defense counsel that, in lieu of the testimony of the witnesses for the accused on direct examination in open court, he was filing their affidavits, subject to cross-examination by the prosecution. Per Resolution dated August 22, 1975, this Court issued a temporary restraining order enjoining the respondent Judge from enforcing the questioned Order. In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio Ojoy, accused", of the Court of First Instance of Iloilo, Branch III, after the accused himself had testified in his defense, his counsel manifested that for his subsequent witnesses he was filing only their affidavits subject to cross-examination by the prosecution on matters stated in the affidavits and on all other matters pertinent and material to the case. Private prosecutor Atty. Amelia K. del Rosario, one of the petitioners here, objected to the proposed procedure but this notwithstanding, respondent Judge gave his conformity thereto and subsequently issued the questioned Order. Contending that respondent Judge gravely abused his discretion because the aforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court, which requires that the testimony of the witness should be given orally in open court, and there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law, petitioners instituted the present petition. We grant the petition. Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require that the testimony of a witness shall be given orally in open court. The afore-cited Sections 1 and 2 provide: SECTION 1. Testimony to be given in open court. The testimony of witnesses shall be given orally in open court and under oath or affirmation. SEC. 2. Testimony in superior courts to be reduced to writing.- In superior courts the testimony of each witness shall be taken in shorthand or stenotype, the name, residence, and occupation of the witness being stated, and all questions put to the witness and his answers thereto being included. If a question put is objected to and the objection is ruled on, the nature of the objection and the ground on which it was sustained or overruled must be stated, or if a witness declines to answer a question put, the fact and the proceedings taken thereon shall be entered in the record. A transcript of the record made by the official stenographer or stenotypist and certified as correct by him shall be prima facie a correct statement of such testimony and proceedings. Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of Sections 77 and 78 of Rule 123, of the Old Rules of Court. Section 77 in turn was taken from Section 381 of Act No. 190, 1 while Section 78 from Section 32 of General Order No. 58. 2 The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. "The opponent", according to an eminent authority, 3demands confrontation, not for the Idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers." There is also the advantage to be obtained by the personal appearance of the witness before the judge, and it is this it enables the judge as the trier of facts "to obtain the elusive and incommunicable evidence of a witness deportment while testifying, and a certain subjective moral effect is produced upon the witness. 4 It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. 5 Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court. Indeed, the great weight given the findings of fact of the trial judge in the appellate court is based upon his having had just that opportunity and the assumption that he took advantage of it to ascertain the credibility of the witnesses. This has been explained by Chief Justice Appleton, thus:

The witness present, the promptless and unpremeditatedness of his answers or the reverse, their distinctness and particularity or the want of these essentials, their incorrectness in generals or particulars, their directness or evasiveness are soon

detected. ... The appearance and manner, the voice, the gestures, the readiness and promptness of the answers, the evasions, the reluctance the silence, the contumacious silence, the contradictions, the explanations, the intelligence or the want of intelligence of the witness, the passions which more or less control-fear, love, have, envy, or revenge are all open to observation, noted and weighed by jury. 6
Thus, Section 1 of Rule 133 of the Rule 7 requires that in determining the superior weight of evidence on the issues involved, the court, aside from the other factors therein enumerated, may consider the "witness manner of testifying" which can only be done if the witness gives his testimony orally in open court". If a trial judge prepares his opinion immediately after the conclusion of the trial, with the evidence and his impressions of the witnesses fresh in his mind, it is obvious that he is much more likely to reach a correct result than if he simply reviews the evidence from a typewritten transcript, without having had the opportunity to see, hear and observe the actions and utterances of the witnesses. There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given orally ill court. Rules governing the examination of witnesses are intended to protect the rights of litigants and to secure orderly dispatch of the business of the courts. Under the rules, only questions directed to the eliciting of testimony which, under the general rules of evidence, is relevant to, and competent to prove, the issue of the case, may be propounded to the witness. A witness in testify only on those facts which he knows of his own knowledge. Thus, on direct examination, leading questions are not allowed, except or, preliminary matters, or when there is difficult in getting direct and intelligible answer from the witness who is ignorant, a child of tender years, or feebleminded, or a deaf mute. 8 It is obvious that such purpose may be subverted, and the orderly dispatch of the business of the courts thwarted if trial judges are allowed, as in the case at bar, to adopt any procedure in the presentation of evidence other than what is specifically authorized by the Rules of Court. WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and the order of respondent Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside, and the temporary restraining order issued on August 22, 1975 is hereby made permanent, without any pronouncement as to costs. Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.

Separate Opinions

BARREDO, J., concurring: I concur, with the qualification herein set forth. At the outset, I wish to make it clear that I find the innovative procedure sanctioned by respondent judge to be in line with the progressive tendency characterizing the new rules that have modified the system of preliminary investigation of criminal complaints by fiscal's, where basically the determination of the existence or non-existence of probable cause is now supposed to be made on the basis of mere affidavits and counter-affidavits, as well as those now obtaining in practically all labor cases in the offices in the Department of Labor which have been vested with exclusive jurisdiction over the same pursuant to the policy of the government to dejudicialize them, And so, if the subject case herein were only a civil case instead of being a criminal one and it appearing that the counsel for the supposedly aggrieved partner the trial fiscal in this instance, who, under the law, has supervision and control of the prosecution, not the private prosecutor who alone filed the petition herein, and, at that, in her own name instead of her client, the alleged offended party, 1 I would have voted to deny the petition. Indeed, I do not see anything fundamentally wrong with the basic procedure approved by His Honor of allowing the direct examination of a witness to be presented in the form of a previously prepared affidavit, provided that the same s reaffirmed over the oath of the

affiant in open court when he testifies. But I am now voting to giant the petition because the procedure questioned here is a little short of what I feel ought to have been done, even on the phypothesis that We were dealing with a civil case. While I Would consider it a substantial compliance with the requirement of Sections 1 and 2 of Rule 132 about the testimony of a witness being given in open court and that the questions and answers be dully recorded by the stenographic notes that the direct examination be in the form of an affirmation by the witness under oath of a ready made affidavit, particularly when the adverse parts does not object, it is but in keeping with better practice and more protective of the rights of the adverse party, to require that the said affidavit be first pasturized or sanitized so as to limit the same only to evidence that is material and competent. This preliminary step may be done either at the Pretrial Where the court may require all affidavits to be used for the purpose to be submitted, or at a preliminary state of the trial proper before the witness takes the Witness stand. Thus, the resulting direct testimony will not be polluted with inadmissible evidence and the cross-examination will be confined to what is material and competent. The only remaining possible objection then would be that the question asking for affirmation would be leading and that the answer would be in narrative form, but these are minor considerations. To start with, the affidavit may be made in question and answer form. Secondly, I have always considered the objection to a leading question as essentially relating to a mere matter of form, not of substance, hence relatively unimportant. And as to answers in narrative form, the basic objection thereto is that it may include irrelevant and incompetent testimony, (Francisco on Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211) but if the affidavit to be affirmed by a witness has already been purged of the objectionable portions as above indicated the form of the answer should already be of no consequence. Undoubtedly this innovative procedure will advance greatly the march towards simplification and speed in the conduct of trials. As against possible shortcomings thereof in actual operation as above outlined, I am certain that the advantages to be derived by adopting it far outweigh the bases of the objections thereto. Of course, it is without saying that for this procedure to be successfully employed and to attain the objective of speeding up the trial of cases, it is imperative that there should be intelligent cooperation between the court and contending counsels, who should try to avoid unnecessary inconsequential objections, for every lawyer must know that the profession's first mission is to help the court in every way possible so that his case could be disposed of not only justly but with utmost dispatch, as long as with expedient means employed no substantial prejudice is caused to the interests of his client. In brief, my concurrence here is premised on the failure of respondent judge to first have the affidavits of the accused and his witnesses subjected to the possible legitimate objections of the prosecution to any portion thereof. It is not decision although significant, that it does not appear in the record that the fiscal who did not object to the Procedure suggested by counsel for the accused took pains to require that the affidavits be first submitted for his examination, to give him the opportunity to make proper objections to portions thereof that might be incompetent or inadmissible. I take it that such omission could be due to the fiscal's unawareness of the exact import of the unorthodox procedure in question, hence he was unprepared to act accordingly. His Honor should nevertheless have seen to it, before giving his assent to the proposal of the defense, that the proper measures were taken to insure that all the matters contained in the affidavits offered by the defense are competent and admissible under the law. I reiterate I see no fundamental objection to a direct testimony in the form I have discussed above. After all, according to the scholarly main opinion itself, "the main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. No doubt, it is Cross-examination in open court that is indispensable. The direct examination is secondary because, ordinarily, as is generally known, it can be fully rehearsed anyway, unlike cross-examination. In closing, I wish to personally commend His Honor's obvious attitude of trying to improve upon existing procedures with an eve to making trials less burdened with time-consuming and complicated technical features that can anyway be done away with without sacrificing the essence of the judicial inquiry into the facts in dispute. Indeed, I have always tried to encourage all judges to look for ways and means of improving upon the beaten paths of existing practices and techniques, to the end that the trial and disposition of all kinds of cases before them may be simplified and abbreviated, if they have to be activists or revolutionaries in the process. Just a word of caution those for there are corners that cannot and must not be cut, and it is always best to occasionally seek counsel from among the knowledgeable members of the bar, preferably in the open, before plunging into untrodden areas.

Separate Opinions BARREDO, J., concurring: I concur, with the qualification herein set forth. At the outset, I wish to make it clear that I find the innovative procedure sanctioned by respondent judge to be in line with the progressive tendency characterizing the new rules that have modified the system of preliminary investigation of criminal complaints by fiscal's, where basically the determination of the existence or non-existence of probable cause is now supposed to be made on the basis of mere affidavits and counter-affidavits, as well as those now obtaining in practically all labor cases in the offices in the Department of Labor which have been vested with exclusive jurisdiction over the same pursuant to the policy of the government to dejudicialize them, And so, if the subject case herein were only a civil case instead of being a criminal one and it appearing that the counsel for the supposedly aggrieved partner the trial fiscal in this instance, who, under the law, has supervision and control of the prosecution, not the private prosecutor who alone filed the petition herein, and, at that, in her own name instead of her client, the alleged offended party, 1 I would have voted to deny the petition. Indeed, I do not see anything fundamentally wrong with the basic procedure approved by His Honor of allowing the direct examination of a witness to be presented in the form of a previously prepared affidavit, provided that the same s reaffirmed over the oath of the affiant in open court when he testifies. But I am now voting to giant the petition because the procedure questioned here is a little short of what I feel ought to have been done, even on the phypothesis that We were dealing with a civil case. While I Would consider it a substantial compliance with the requirement of Sections I and 2 of Rule 132 about the testimony of a witness being given in open court and that the questions and answers be dully recorded by the stenographic notes that the direct examination be in the form of an affirmation by the witness under oath of a ready made affidavit, particularly when the adverse parts does not object, it is but in keeping with better practice and more protective of the rights of the adverse party, to require that the said affidavit be first pasturized or sanitized so as to limit the same only to evidence that is material and competent. This preliminary step may be done either at the Pretrial Where the court may require all affidavits to be used for the purpose to be submitted, or at a preliminary state of the trial proper before the witness takes the Witness stand. Thus, the resulting direct testimony will not be polluted with inadmissible evidence and the cross-examination will be confined to what is material and competent. The only remaining possible objection then would be that the question asking for affirmation would be leading and that the answer would be in narrative form, but these are minor considerations. To start with, the affidavit may be made in question and answer form. Secondly, I have always considered the objection to a leading question as essentially relating to a mere matter of form, not of substance, hence relatively unimportant. And as to answers in narrative form, the basic objection thereto is that it may include irrelevant and incompetent testimony, (Francisco on Evidence, The Revised Rules of Court, Vol. VII, Part 11, 1973 ed., p. 211) but if the affidavit to be affirmed by a witness has already been purged of the objectionable portions as above indicated the form of the answer should already be of no consequence. Undoubtedly this innovative procedure will advance greatly the march towards simplification and speed in the conduct of trials. As against possible shortcomings thereof in actual operation as above outlined, I am certain that the advantages to be derived by adopting it far outweigh the bases of the objections thereto. Of course, it is without saying that for this procedure to be successfully employed and to attain the objective of speeding up the trial of cases, it is imperative that there should be intelligent cooperation between the court and contending counsels, who should try to avoid unnecessary inconsequential objections, for every lawyer must know that the profession's first mission is to help the court in every way possible so that his case could be disposed of not only justly but with utmost dispatch, as long as with expedient means employed no substantial prejudice is caused to the interests of his client, In brief, my concurrence here is premised on the failure of respondent judge to first have the affidavits of the accused and his witnesses subjected to the possible legitimate objections of the prosecution to any portion thereof. It is not decision although significant, that it does not appear in the record that the fiscal who did not object to the Procedure suggested by counsel for the accused took pains to require that the affidavits be first submitted for his examination, to give him the opportunity to make proper objections to portions thereof that might be incompetent or inadmissible. I take it that such omission could be due to the fiscal's unawareness of the exact import of the unorthodox procedure in question, hence he was unprepared to act accordingly. His Honor should nevertheless have seen to it, before giving his assent to the proposal of the defense, that the proper measures were taken to insure that all the matters contained in the affidavits offered by the defense are competent and admissible under the law.

I reiterate I see no fundamental objection to a direct testimony in the form I have discussed above. After all, according to the scholarly main opinion itself, "the main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination. No doubt, it is Cross-examination in open court that is indispensable. The direct examination is secondary because, ordinarily, as is generally known, it can be fully rehearsed anyway, unlike cross-examination. In closing, I wish to personally commend His Honor's obvious attitude of trying to improve upon existing procedures with an eve to making trials less burdened with time-consuming and complicated technical features that can anyway be done away with without sacrificing the essence of the judicial inquiry into the facts in dispute. Indeed, I have always tried to encourage all judges to look for ways and means of improving upon the beaten paths of existing practices and techniques, to the end that the trial and disposition of all kinds of cases before them may be simplified and abbreviated, if they have to be activists or revolutionaries in the process. Just a word of caution those for there are corners that cannot and must not be cut, and it is always best to occasionally seek counsel from among the knowledgeable members of the bar, preferably in the open, before plunging into untrodden areas. Footnotes 1 Section 381 of Act No. 190 provides; SECTION 381. Witnesses. The testimony of all witnesses, except such as has been taken in writing in the form of depositions as otherwise provided by law, shall be given on oath in open court orally, and each witness may be orally cross-examined by the adverse party or his counsel with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. The courts shall be liberal in allowing cross- examinations, but shall have the power to restrict them so as to confine them to the purposes last above specified and to prevent irrelevant or insulting interrogatories. 2 Section 32 of general order No. 58 provides: SEC. 32. In courts of first instance or of similar jurisdiction each witness must be duly sworn and his testimony reduced to writing as a deposition by the court or under its direction. The deposition must state the name, residence and occupants of the witness. It must contain all questions put to the witness and his answers thereto. If a question put is objected to and the objection be either overruled or sustained, the fact of objection and its nature, together with the ground on which it shall have been sustained or overruled must be stated, or if a witness declines to answer a question put, the fact and the proceedings taken thereon shall be entered in the record. The deposition must be read to the witness and made to conform to what he declares to be the truth. lie must sign the name, or, if he refuses his reason for such refusal must be stated. It must also Be signed by the magistrate and certified by the clerk. In cases where an official stenographer is engaged, the testimony and proceedings may be taken by him in shorthand, and it will not then be necessary to read the testimony to the witness nor for the latter to sign the same; but a transcript of the record made by the official stenographer and certified as correct by him shall Be a correct statement of such testimony and proceedings. Rule 43(a) of the Federal Rule of Procedure provides generally for oral testimony in open court. This is based the practice in equity under Equity Rule 46. 3 5 Wigmore on Evidence, Section 1395, p. 123. 4 Ibid., pp. 125-126. 5 As observed in Blache z,. Blache 233 P. 2d 547, 549-550. The seriousness of the trial court's error is apparent when we consider the reasons for the requirement that the witness, if available, take the stand. Not only can the credibility of the witness on the stand be tested by cross-examination; another purpose is served by the requirements of the witness' presence, the trier of fact cap 'obtain the elusive and incommunicable evidence of a witnessdeportment while testifying.' 5 Wigmore, op. cit., pp. 125-126.) Wigmore states that 'No one

has ever doubted that the former testimony of a witness cannot be used if the witness is still available for the purpose of testifying at the present trial. (Wigmore op. cit., p. 191.) As was aptly stated by the district court of Appeal after the first trial of this case, 'On appeal we cannot evaluate the truth of the testimony from the manner and demeanor of the witnesses. There appear enough contradictory and inconsistent statements in the transcript of the testimony of each of the three principal parties to justify this court in sustaining a finding contrary to the testimony of any one of the parties.' Blache v. Blache [1945], supra, 69 Cal. App. 2d 616, 624-625, 160 P. 2d 136.) The judge who tried the case the second time was no better qualified than was the appellate court to evaluate the truth of vague, evasive and self- contradictory testimony of a witness whom he had not observed. 6 Wigmore on Evidence, p. 126 7 Section 1 Rule 133, Revised Rules of Court, provides: SEC. 1.-Proponderance of evidence, how determined.-In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. in determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greatest number. This was reproduced from Section 94 of Rule 123, of the former Rules, which in turn was taken from Section 273 of Act No. 190. 8 Section 5, Rule 132, of the Revised Rules of Court, Barredo, J.: 1 The People of the Philippines was joined here only upon orders of the Court.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMON CAPARAS JR. y TEMPORAS a.k.a. JUN PUSA and JOSE SANTOS y JORDAN a.k.a. JUN BALBON a.k.a. JUN NARCOM, accused-appellants. DECISION
MELO, J.:

Under review is the decision of the Regional Trial Court of the Third Judicial Region (Branch 25, Cabanatuan City) convicting accused-appellants Ramon Caparas, Jr. y Temporas and Jose Santos y Jordan of the crime of rape with homicide and imposing on them the extreme penalty of death. Inexplicably, the State Prosecutor who handled the case below filed two almost identical informations with the only variance that Caparas was named first in one, while Santos was mentioned earlier in the other, for one single complex crime committed on the same day. We quote the first information, to wit:

That on or about January 1, 1994, in Cabanatuan City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, RAMON CAPARAS, JR. Y TEMPORAS alias JUN PUSA conspiring and confederating with JOSE SANTOS Y JORDAN a.k.a. JUN BALBON, a.k.a. JUN NARCOM by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one MARICRIS FERNANDEZ Y VICTORIA, a 13-year-old girl against her will and consent; and on the occasion thereof, said accused with intent to kill, and in conspiracy with accused JOSE SANTOS Y JORDAN a.k.a. JUN BALBON, a.k.a. JUN NARCOM wilfully and unlawfully bashed her face with a piece of hollow block, thereby causing multiple and fatal intracranial injuries in the frontal area which were the direct and immediate cause of her death thereafter. CONTRARY TO LAW. (p. 13, Rollo.)
Upon arraignment, both accused-appellants entered not guilty pleas and a consolidated trial of the two cases was thereupon undertaken, following which, a decision dated August 14, 1995 was rendered, the dispositive portion of which reads :

PREMISES CONSIDERED, finding both accused Ramon Caparas, Jr. y Temporas and Jose Santos y Jordan guilty beyond reasonable doubt of the crime of rape with Homicide in Criminal Case No. 5878-AF both of them are hereby sentenced to suffer the penalty of DEATH with all the accessories provided by law, and ordering them to compensate the heirs of Maricris Fernandez P50,000.00 by way of indemnity, P50,000.00 for burial and other expenses, plus costs. Relative to Criminal Case No. 5879-AF, finding that only one crime of Rape with Homicide has been committed, both accused are hereby ACQUITTED of the second information, with costs de officio. SO ORDERED. (p. 52, Rollo.)
Accused-appellants conviction is based on circumstantial evidence, essentially on the testimony of two prosecution witnesses, namely, Arnulfo Esmino and Morimar Sandaan, whose declarations were condensed by the trial court as follows :

MORIMAR SANDAAN, 23 years of age, single, tricycle driver and a resident of Sanbermicristi, Cabanatuan City, testified that he is a tricycle driver; that the tricycle he drives is owned by his father; that on January 1, 1994 at about 7 oclock and 8

oclock in the evening, he was washing the buses at the Arayat terminal; that while he was washing, he saw Maricris Fernandez waiting for a tricycle; that Maricris Fernandez is a daughter of Aling Zeny; that Maricris Fernandez was wearing a white T-shirt and short pants; that Maricris Fernandez has waited for two (2) minutes; that he saw Maricris Fernandez rode in a tricycle; that the tricycle came from the direction of Manila and that it curved back to the direction going to Manila at the corner of Capitan Pepe Subdivision; that Maricris Fernandez was more or less fifteen (15) meters away from him when the former boarded the tricycle; that the area where he was cleaning Arayat buses and where Maricris Fernandez boarded the tricycle was lighted; that he knew that the person standing in place about fifteen (15) meters away from him was Maricris Fernandez because she is known to him; that Maricris Fernandez used to ride with him when he was driving a tricycle and Maricris Fernandez was known to him for a long time; that he said that the face of the driver of the tricycle which Maricris Fernandez boarded is familiar to him (namukhaan lang); that the hair of the driver if flat top and that was the only time he saw the driver (that at that juncture the witness stepped down from the witness stand and as directed by the Court he tapped the shoulder of a certain person who was seated at the bench of the Courtroom who when asked of his name answered Ramon Caparas, Jr.). In this regard, it is enlightening to quote:
Q A Q A Q A Q A What was the condition of the area where you were cleaning the bus and where you saw her (Maricris) actually boarded the tricycle, what was the condition of those area? It was lighted, maam. How about the place where Maricris was? Also lighted, Your Honor. And how do you know that the person standing in place about fifteen (15) meters away from you was Maricris Fernandez? Because I know her previously (dati kong kakilala), Your Honor. How did you come to know her or why did you claim to have known her? Because she used to ride with me or Maricris Fernandez used to ride with me, Your Honor, when I was driving the tricycle.

FISCAL CLAVE: Q A For how long have you known Maricris before? For a long time, maam.

COURT Q A You want to impress the Court that although she is far from you are sure that she is Maricris Fernandez? Yes, Your Honor.

xxx
FISCAL CLAVE: Q A Q A Q A

xxx

xxx

If you see that person again whom you said namukhaan will you be able to identify him? Yes, maam. Please look around if that person whom you namukhaan is in this Court? Yes, maam, he is here inside. Please approach or point if he is around? At this juncture, the said witness stepped down from the witness stand and as directed by the Court tapped the shoulder of a certain person who was seated at the bench of the Courtroom who when asked gave his name as Ramon Caparas, Jr. (tsn, pp. 18, 20 & 21, August 2, 1994, L.C. Mendoza, underlining ours.)

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

ARNULFO ESMINO, 31 years of age, married, cemetery caretaker and a resident of ACCFA, Cabanatuan City, testified that he has been a caretaker of the public cemetery since 1980; that aside from him, the other caretakers are Renato Esmino and Ricardo Nicolas; that their duties are to clean the pathways and to guard the cemetery; that his tour of duty is from 8 oclock in the morning up to 5 oclock in the afternoon; that he reports for work every Monday; that at about 8 oclock in the evening of January 1, 1994, he was at the corner of the SV Orolfo Marble Store located in front of the cemetery at San Juan Accfa, Cabanatuan City, which is thirty (30) meters away from the cemetery; that he was there at that particular time looking for his cousin up to the place near NIA; that he could not find his cousin, so he went to the SV Orolfo Marble Store more or less at 9 oclock that evening; that while he was in the place, he noticed a tricycle coming out from the cemetery; that the tricycle crossed the road which nearly bumped his wife if he was not only able to pull her away; that the tricycle crossed the road going towards Imelda; that the area at the time was alighted; that when he pulled his wife away from the tricycle, he saw a printed short pants at the floor of the sidecar of the tricycle and that he noticed the sky blue color of the tricycle and that when he raised his head, he saw the driver and that their eyes met; that the body of the tricycle driver is well built and he was wearing a white T-shirt; that he used to see the driver; that the last time he saw the said tricycle driver was one week before the incident; that because he often see him, he can recognize him (driver) and the witness pointed to accused Jose Santos who was wearing colored polo shirt; that he executed an affidavit in connection with this case; that he came to know the accused by the name of Jose Santos; (that the witness

was shown the picture of the tricycle and confirmed that the said tricycle was the one which entered the cemetery that night of January 1, 1994). (pp. 36-38, Rollo.)
On January 2, 1994, the day after the incident charged, Ricardo Nicolas, one of the caretakers of the public cemetery at ACCFA, Cabanatuan City went to the Cabanatuan City PNP to report a corpse found in the cemetery. When SPO2 Francisco Mateo II got to the cemetery, he saw the body of a woman lying face-up on the ground. He summoned a photographer who took several pictures (tsn, September 27, 1994, pp. 911). Exhibits D, D-1, D-2 D-3 and D-4 show a female naked from the waist down; she is wearing a white T-shirt with the print Ligaya Store in front; her legs are parted with her panties underneath one of them; her genitals are full of dried blood; and her face is obscured by blood which had also congealed on a piece of concrete on which her head was resting (pp. 17-20, Record). SPO2 Mateo got the panties, put them in a wrapper, labeled it with his initials which he then turned over to SPO4 Miguelito San Pedro (tsn, September 27, 1994, p. 32). From the scene, SPO4 San Pedro found three pieces of concrete, a portion of a hollow block, a rag, and a sack both with blood stains. He later turned them over to the NBI (tsn, September 27, 1994, pp. 53-54, 65-66). The body was brought to Funeraria Santos, also in Cabanatuan City where it was identified to be that of Maricris Fernandez by her mother, Zenaida Fernandez (tsn, October 27, 1994, p. 18). Dr. Jun Concepcion, Medical Officer V of the Cabanatuan City Health Office conducted an autopsy of the victims body. He later testified that when he got to the funeral home where Maricris was taken, her corpse was already cleansed, the dried blood on her body gone. She was already in rigor mortis. He drew up the following report dated January 3 1994: xxx xxx xxx

FINDINGS (pertinent only) Height: 140 cm. in length (+) Moderately smashed half face including the lips (R) (+) Hematoma, (finger prints in shape) R inner thigh (+) Hematoma, (finger prints in shape) (L) wrist (+) Several abrasions, both buttocks (+) Several abrasions, (L) flank (+) Several abrasions, (L) leg Genitalia (+) Lacerations, labia minora (L) side

Note: Extracted hair strands on the body and right hand submitted together with these report for safe keeping. CAUSE OF DEATH Intracranial injuries, frontal area, multiple (p. 14, Record.)
Explaining further his autopsy report, Dr. Concepcion said that the lacerations on the external part of the reproductive tract could have been caused by a long, round, and possibly hard object, including an erect penis. The hematoma and abrasions were definitely not self-inflicted and suggest that she put up determined resistance. Regarding her head injuries, these could have been caused by a blow from a hard, heavy object, something without a sharp edge, and delivered with great force, judging from the fracture above the right eyebrow and the extensive break in the skull. Dr. Concepcion also took a sample of fluids inside the victims vagina and incised her wrists to get some blood to determine her blood type. Hair samples were also taken from the victims head. Lastly, he pointed out that the genital injuries, although affecting the labia minora, did not extend to the hymen even as there were healed lacerations indicating prior sexual experience (tsn, September 26, 1994, pp. 100-112). Following information that the tricycle seen going out of the cemetery on the night of the incident had the markings Imelda 34, SPO4 San Pedro and a companion proceeded to Barangay Imelda. There, they spotted the tricycle and talked to its owner, Reynaldo Malubay, who was asked to bring it to the barangay hall for identification. Malubay also told police that the last person who drove the tricycle was accused-appellant Caparas. Hair samples were found on the floor of the tricycle (tsn, September 27, 1994, pp. 48-49; p. 42, Record). All physical evidence recovered from the cemetery and from the tricycle were turned over to the NBI for examination. In addition, hair samples were also taken from several other persons, accused-appellants among them, chiefly for the purpose of determining whether the hair strands found on Maricris right hand or those found on the tricycles floor match those of accused-appellants. Also, samples of the victims fingernails were taken from both hands to look for blood, tissue, or any other matter for comparison with the samples provided (pp. 41-42, Record). The results were inconclusive and most indefinite. The hair strands found on the body and right hand of Maricris, those taken from her head, from accused-appellant Caparas, from the tricycle, and from two other persons differ from each other. They were all likewise incompatible with hair samples taken from accused-appellant Santos. The victims blood type could no longer be determined. The nail cuttings, the pair of panties, and the concrete slabs were positive for human blood, Group B, the same as that of Santos. The T-shirt was positive for human blood, Group O, same as that of Caparas. The victims panties were negative for seminal stains. The fluid inside her vagina proved also not to be semen (pp. 52-58, Record). Marietta Bien, NBI

Forensic Chemist, explaining her findings in court, said that the hair strands taken from the victims hand do not belong to either Caparas or Santos, owing to the differences between them. Also, there are four human blood groups, Group O being the most common, then Groups A and B with almost the same percentage, and then AB as the least common. The victims blood type could not determined because of the unavailability of any sample fit for testing. Tissue samples were negative for traces of blood. No medical records were produced which may indicate the victims blood type. Therefore, it is possible that the blood samples found on the concrete slabs, the panties, the T-shirt, and the fingernails samples belonged to the victim (tsn, October 28, 1994, pp. 22, 2 30-34, 45). Accused-appellants, for their part, could only offer alibi as their defense. Caparas swore that on that fateful evening, he was at home asleep at 6 oclock and did not wake up until around 6:30 or 7 oclock the following morning. He said he was one of the sponsors at a christening earlier that day and the usual merriment after that had left him quite inebriated. This is corroborated by his wife, Melvin, accused-appellant Santos, and his common-law spouse, Leonora Malubay, who all share a house owned by the parents-in-law of accused-appellant Santos. All of them testified that they saw Caparas sleeping on the balcony at around 6 oclock to 6:30 in the evening. Mrs. Melvin Caparas further stated that she woke up several times that night to check on their sixmonth old baby and that Caparas did not wake up, and did not leave until the following morning. Although Caparas admitted having driven the Imelda No. 34 tricycle on December 31, 1993, he said that he did not drive it the following day because it had a broken front rim which was not replaced until several days later, as decided upon by Reynaldo Malubay, the tricycles main driver, who confirmed this part of Caparas alibi (pp. 45-46, 48-550, Rollo; tsn, April 24, 1995, pp. 4-5). Santos likewise maintains that he was at home on the night of the incident. After eating supper early with Leonora and their children, they retired early because they slept very little the previous night, which was New Years Eve. Leonora confirmed this and further added that she woke up about two or three times that night to change her babys diapers and breast feed him and saw her husband fast asleep all throughout the night (pp. 45-46, Rollo; tsn, march 17, 1995, p. 6). Although observing that the prosecution only came up with circumstantial evidence, the trial court considered this sufficient to establish the culpability of accusedappellants. Specifically, the trial court noted that: (1) the witnesses for the prosecution were sincere and candid; (2) medical reports show that Maricris had been raped before she was killed; (3) the last time Maricris was seen alive was when she was riding in a tricycle driven by Caparas; (4) Santos was seen driving the same tricycle out of the cemetery that same night with a pair of printed short pants on the tricycles floor; (5) both accused-appellants admitted that they know how to drive a tricycle; and (6) Reynaldo Malubay testified that the last person to drive the tricycle was Caparas, a fact admitted by the latter. Moreover, accused-appellants alibis did not impress the trial court as it was not established that it was physically impossible for both men to have been at or near the scene of the crime during its commission (pp. 50-51, Rollo).

In the instant review, accused-appellants, among other grounds, argue that reasonable doubt exists in regard to their guilt, which means nothing less than their acquittal; that the strands of hair recovered from the victims right hand differ from the samples provided by accused-appellants, which physical evidence is considered of the highest order, carrying more weight than the testimony of the witnesses combined; that the prosecution witnesses do not deserve credence, foremost among them is Arnulfo Esmino who is biased against accused-appellant Santos, having had an altercation or misunderstanding with the latter in the past; and that it is highly possible and probable that witnesses Morimar Sandaan and Arnulfo Esmino could have only been guessing as to the identities of accused-appellants because it was nighttime when they supposedly saw Caparas and Santos (pp. 118-119, Rollo). The People argues otherwise, maintaining that the evidence, even though circumstantial, sufficiently establishes the guilt of Caparas and Santos. The following points are stressed:

1. Victim Maricris Fernandez who was wearing a T-shirt and short pants on January 1, 1994 boarded a faded blue tricycle with red linings on its side and printed 34 Imelda at around 8 in the evening. The driver Ramon Caparas was wearing a white T-shirt; 2. The faded blue tricycle went toward ACCFA; 3. While in ACCFA at past 8 p.m., the same blue tricycle with passengers inside, including a young girl hurriedly entered the Cabanatuan Cemetery. The driver was likewise wearing a white T-shirt. It was later established that this driver was Ramon Caparas; 4. At about 9 p.m., the faded blue tricycle came out of the cemetery, with no passengers, but on its floor there was a pair of short pants. The tricycle this time was driven by Jose Santos; 5. The tricycle left hastily; 6. The following day, Maricris Fernandez was found dead inside the cemetery. Her sexual organ was lacerated; 7. Blood Types O and B, were extracted from the fingernails of Maricris Fernandez and were found to be that of the same blood types as accused-appellants; 8. Both appellants Jose Santos and Ramon Caparas were living in the same house and are brothers-in-law. They know how to drive a tricycle.

The prosecution seems eager to brush aside as inconsequential the forensic examinations conducted by the National Bureau of Investigation, contending that this only indicates the possibility that a third malefactor may have been involved (pp. 176178, 186-187, Rollo). It is even too ready to conclude that rape was indeed perpetrated and that accused-appellants were the ones driving the tricycle. Circumstantial evidence is evidence which indirectly proves a fact in issue, where the fact finder must draw an inference or reason from the evidence established (People vs. Ramos, 240 SCRA 191 [1995]), much like a tapestry forming a pattern from its interwoven strands (People vs. Cabrera, 241 SCRA 28 [1995]). To suffice for conviction, (1) there must be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (Section 4, Rule 133, Revised Rules on Evidence). Or simply put, the circumstances proven must form an unbroken chain which leads to a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the perpetrator of the crime (People vs. Malimit, 264 SCRA 167 [1996]). In the case at bar, the circumstantial evidence provided by the testimony of two witnesses is contradicted, or at least not supported, by the physical evidence on hand. Also, some circumstances considered by the trial court are really irrelevant as to the guilt, or innocence, for that matter, of accused-appellants. Firstly, it was established by expert testimony that the hair strands found in the hand of Maricris belong neither to Caparas nor Santos. They were not even hers. Thus, it is most probable that she was resisting somebody else other than accusedappellants. Strangely, this fact was not discussed by the trial court. Secondly, human blood extracted from the victims fingernails which match the blood type of Santos, Group B, again as opined by an expert, does not indicate with reasonable certainty that Santos killed the victim because such type is the second most common of blood types. We also cannot be certain how blood got into the victims fingernails in the first place. Looking at the pictures of the victim when she was first found at the cemetery and the fact that the victims blood type was never determined, it is not improbable that the blood might have been her own. Thirdly, several circumstances considered by the trial court are irrelevant. Guilt is not established by the mere fact that accused-appellants know how to drive a tricycle. Many people possess such skill because this mode of transportation is widespread in our country, be it in urban or rural areas. And so what if accusedappellants are brothers-in-law living in the same house? Does this fact make them prone to commit rape and homicide? Lastly, although Malubay testified that Caparas was the last person to drive the tricycle, which fact Caparas admits, this was on December 31, 1993 and not on January 1, 1994 when the tricycle by then was not in running condition because of a broken front rim. True, alibi is a weak defense. But then, so also is the prosecutions evidence in this case. With what is on record, especially the findings of the NBIs forensic chemist, we believe that reasonable doubt exists warranting the dismissal of the charges against

Caparas and Santos. Indeed, it is when evidence is purely circumstantial that the prosecution is much more obligated to rely on the strength of its own case and not on the weakness of the defense, and that conviction must rest on nothing less than moral certainty (People vs. Payawal, 247 SCRA 424 [1995]). WHEREFORE, the judgment in Criminal Case No. 5878-AF is REVERSED and SET ASIDE. Ramon Caparas, Jr. and Jose Santos are hereby ACQUITTED and their immediate release is hereby ordered unless there be other legal grounds to hold them. SO ORDERED
G.R. No. L-26136 October 30, 1978 THE BACHRACH MOTOR CO., INC. and/or "BACHRACH TRANSPORTATION CO., INC", as operator of the RURAL TRANSIT, petitioner, vs. THE COURT OF INDUSTRIAL RELATIONS and RURAL TRANSIT EMPLOYEES ASSOCIATION, respondents. Flores, Macapagal Ocampo & Balbastro for petitioners. Carlos Santiago for private respondent.

MUOZ PALMA, J.: In 1958 the Bachrach Motor Co., Inc. and/or the "Bachrach Transportation Co., Inc.", now petitioner in this case, was in the transportation business and operated what was then known as the "Rural Transit". In that year the Rural Transit Employees Association went on strike and the dispute between the management and the union reached the Court of Industrial Relations for compulsory arbitration. The case was docketed as Case No. 22- IPA entitled: Rural Transit Employees Association vs. Bachrach Motor Co., and Bachrach Transportation Co. The Court of Industrial Relations (CIR for short) immediately issued an order on August 7, 1958 by which the strikers were ordered to return to work and the management to take them back under the terms and conditions existing before the dispute arose. 1 While this labor dispute was pending with the CIR Bachrach filed a "Petition for Authority to discharge driver Maximo Jacob from the service", dated July 24, 1961. The reasons given for the petition were alleged violations of the Motor Vehicle Law by Maximo Jacob resulting in damage to property and injuries to third parties, the latest of which occurred on June 9, 1961 resulting in the "total destruction of bus 170" of the company. An "Answer and Counter-Petition" was filed in behalf of Maximo Jacob by the Rural Transit Employees Association whereby it denied the charges and alleged that the June 9, 1961 accident was due to a mechanical defect of the bus which was beyond the control of the driver Jacob, hence, the latter's suspension from the service was not justified. The petition of Bachrach docketed as Case No. 22-IPA (11) was heard on January 23, 1963, during which petitioner presented its one and only witness, Mr. Joseph Kaplin, general manager of Rural Transit, and various documents marked as Exhibits "1" to "8-F" inclusive. After Mr. Kaplin, concluded his direct testimony, with agreement of the parties, the hearing was scheduled for another date for purposes of cross-examination of the witness. The case was reset on various dates but Mr. Kaplin failed to appear because he had left for abroad. Sometime on March 8 1965, the employee's association filed a motion praying that: (a) the testimony of Mr. Joseph Kaplin be stricken from the records

(b) the petition of the Company for authority to dismiss Maximo Jacob from the service be denied: and

(c) the Company be ordered to reinstate Maximo Jacob immediately with backwages from June 9, 1961 up to the date of his actual reinstatement. 2
In an order dated March 1, 1966, the CIR through then Presiding Judge Arsenio I. Martinez dismissed the company's petition, lifted the suspension of driver Jacob, and ordered his reinstatement with backwages from the date of his suspension up to his actual reinstatement. 3 Bachrach's motion for reconsideration 4 having been denied 5, it filed the instant Petition for certiorari on June 15, 1966 which in the Court's Resolution of July 18,1966 was given due course. 6 The following errors are now assigned by petitioner, viz: 7 I The respondent court erred in dismissing the petition of the herein petitioner, after ordering the testimony of Joseph Kaplin to be stricken off the record, notwithstanding the fact that the service records of Maximo Jacob, upon the basis of which his dismissal could be justified were admitted by it. II The respondent court erred in not admitting the petitioner's exhibits unqualifiedly and in admitting them "for whatever worth they may have" only to disregard them entirely thereafter on the alleged ground that "the contents of the same were not proven. III The respondent court erred in not ordering the dismissal of Maximo Jacob. IV The respondent court erred in granting the respondent union's counter-petition without reception of evidence, especially after it earlier dismissed the petitioner's petition on the technical ground that Joseph Kaplin was not cross-examined by the respondent union. V The respondent court erred in granting backwages to Maximo Jacob from the date of his suspension up to actual reinstatement without evidence to prove that he has exercised reasonable diligence to secure other employment during the time of his alleged suspension. VI The respondent court erred in not holding that the union has the burden to prove that Maximo Jacob is entitled to backwages. VII The respondent court erred in not holding that, if at all, Maximo Jacob is only entitled to three months backwages according to the Sta. Cecilia Sawmill case.

1. Respondent court did not err in ordering the dismissal of Bachrach's petition to discharge Maximo Jacob. Petitioner presented only one witness, Joseph Kaplin to prove its case against driver Jacob. The witness failed however to appear at the scheduled hearings for his cross-examination for the simple reason that he left for abroad. Having been deprived, without fault on its part, of its right to cross-examine Kaplin, respondent association was entitled to have the direct testimony of the witness stricken off the record. The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is fundamental right which is part of due process. (Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., 1975, 62 SCRA 258) In Ortigas Jr. v. Luftansa German Airlines, 1975, defendant's witness failed to appear at the continuation of hearing during which the witness was to be cross-examined by plaintiff's counsel. The trial court denied defendant's motion for postponement and ordered the unfinished testimony of the witness Lazzari stricken off the record. In sustaining said order, this Court held inter alia: Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. The right of a party to cross-examine the witness of his adversary is invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The express recognition of such right of the accused in the Constitution does not render the right thereto of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. ... Until such cross-examination has been finished, the testimony of the witness cannot be considered as complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the case. (64 SCRA 610, 636- 637; emphasis supplied) Parenthetically, the situation in Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., supra, was different. There, the witness, Atty. Morabe, had finished his direct testimony and he was ready and available for crossexamination. Motions for postponement of the cross-examination were made however by the adverse counsel from time to time until one day Atty. Morabe succumbed to a fatal heart attack without the cross-examination having been accomplished. On motion of the respondents the Court of Industrial Relations ordered the testimony of Atty. Morabe deleted from the record. On a petition for certiorari by Savory Luncheonette, this Court set aside the order and held that by their own actuations, respondents were considered to have impliedly waived and thereupon lost their right to cross-examine the witness, for such a right may be forfeited by a party litigant through his own conduct. Petitioner contends however that it was ready to present another witness, Mrs. Ursula Silva, to Identify the documents, Exhibits "1" to "8-F", but it did not proceed to call the witness for the reason that during the hearing of January 16, 1965, respondent's counsel, Atty. Santiago, manifested that he was admitting the signatures of Joseph Kaplin on the aforesaid documents. 8 However true that may be, what Atty. Santiago admitted merely was the signature of Mr. Kaplin and not the truth of the contents of the documents. 9The opposing party was still entitled to cross-examine the witness on the matters written on Exhibits "1" to "8-F" especially if they adversely affected the substantial rights of the party against whom they were being presented, namely, driver Maximo Jacob. When Atty. Santiago admitted that the signature appearing in Exhibits "1" to "8-F" was that of witness Kaplin, the counsel of petitioner then, Atty. Joven Enrile, should have inquired if the party was admitting likewise the veracity of the contents of the documents; not having done so, petitioner must now suffer the consequences. Exhibits "1" to "8-F" were admitted by respondent court only for "whatever they may be worth." Evaluating them, however, it did not consider said documents, and rightly so, as competent proof of the truthfulness of their contents without the supporting testimony of witness Kaplin. As stated in the order under review "(N)o other witness was presented by respondent company (now petitioner) to testify on the intrinsic value of those exhibits"; consequently, they are hearsay. Inasmuch as the testimony of Joseph Kaplin is stricken off the record and the contents of Exhibits "1" to "8-F" are hearsay, and there is no other evidence which substantiates the charges against Maximo Jacob, the dismissal of the company's petition to discharge Jacob from its service is in order. 2. No error was committed when the CIR, without receiving evidence, granted relief to private respondent herein on its counter-petition.

At the time Bachrach filed its petition to discharge Maximo Jacob, there was a pending labor dispute in the CIR between the company and the employee's union. The CIR ordered the strikers to return to work. The company in the meantime suspended its driver Maximo Jacob after the alleged June 9, 1961 accident. 10 Considering the dismissal of Bachrach's petition to discharge Maximo Jacob, the lifting of the latter's suspension and his reinstatement in the service were but a necessary consequence thereof. For obvious reasons, the relief could be granted without need of evidence. The onus probandi was on the company, now petitioner, to justify the suspension of Jacob and his eventual separation from the service. Having failed to discharge that burden, there were no valid grounds for it to keep its employee away from his work. 3. On the matter of backwages, We agree with petitioner's counsel that the judicial trend is to fix a reasonable period for the payment of backwages, the philosophy being to avoid protracted delay in post-judgment hearings to prove or disprove earnings of the worker elsewhere during the period he had not been reinstated to his employment." 11 Following this principle, We hold that payment of backwages for a period of three (3) years is fair and reasonable under the circumstances of the case. WHEREFORE, We hereby render judgment affirming the order of respondent Court of Industrial Relations dated March 1, 1966, now under review, with the sole modification that petitioner shall pay its driver Maximo Jacob three (3) years backwages at the rate of the last salary received before he was suspended, without qualification and deduction. With costs against petitioner. Order modified. SO ORDERED. G.R. No. L-61570 February 12, 1990. RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed FULGADO, petitioners, vs. HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL PORCIUNCULA and DOMINGA MACARULAY, respondents. Dollete, Blanco, Ejercito & Associates for petitioners. Ramon Tuangco for private respondents.

FERNAN, C.J.: On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook the arduous task of filing an action in the Court of First Instance of Rizal, Pasig branch against Rufino Custodia, Simplicia Custodia, Arsenio Piguing, Ismael Porciuncula and Dominga Macarulay for the annulment of certain contracts of sale and partition with accounting. 1 The defendants (herein private respondents) filed their answer to the complaint with special and affirmative defenses and a counterclaim. After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30 in the morning. Private respondents and their counsel failed to appear on time at the pre-trial and were subsequently declared as in default. Plaintiff Fulgado was then allowed to present his evidence ex parte before the Deputy Clerk of Court. Meanwhile, upon learning of their predicament, private respondents immediately filed a motion to lift the order of default on the same day that the order was issued. The trial court denied said motion in its order of February 16, 1972. Their motion for reconsideration was also denied. Persistently, respondents filed a petition for relief from the default order. Once more, this was denied. On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On appeal, however, the Court of Appeals found that private respondents had been deprived of their day in court by the unjust denial of their motion to lift the order of default. 2 The Appellate Court, in no less than explicit terms, said:

WHEREFORE, the decision of the court a quo is hereby set aside and the case is remanded to the court of origin for trial on the merits, granting to the defendants the opportunity to present their evidence, provided, however, that the evidence already presented before the commissioner shall stand, but with the right of the defendants to cross-examine the witness who had already testified and with the right of the plaintiff to present additional evidence that then he may decide. Without costs. 3
The Court of Appeals' decision became final and executory on June 27,1974 and the records of the case were remanded to the trial court. On July 3, 1975, or more than a year after the finality of the Appellate Court's decision, counsel for private respondents moved that the trial court "include th(e) case in any date of the August and September calendar of the Court, at the usual hour in the morning." 4 The case was set for hearing on September 16,1975. Unfortunately, the presiding judge went on official leave and the hearing was postponed anew to January 15 and February 15, 1976. In the meantime, plaintiff Ruperto Fulgado died on November 25,1975 and was substituted by his children as party plaintiffs. Fulgado's witness, Jose Fulgado, referred to in the dispositive part of the Appellate Court's judgment, had earlier migrated to the United States on September 16, 1974. When the case was heard on May 4, 1976, the following proceedings transpired: Atty Dollete: For the plaintiff, Your Honor. If your Honor please, may I inform this Honorable Court that this is a remanded case from the Court of Appeals for crossexamination or presentation by the plaintiff of any additional evidence. But we have no further evidence in this case ... except those evidence already adduced in the lower court before it was appealed in the Court of Appeals. It is up for the defense now to cross-examine the witnesses. Court (To Atty. Tuangco): You are through with the cross-examination? Atty. Tuangco: Not yet, Your Honor, we were granted by the Court of Appeals the right to crossexamine the witnesses ... . The last time this case was called for hearing by this Honorable Court, the Presiding Judge tried to make the parties come to a settlement, but it seems that. they could not come to such settlement. I advised my clients to try to meet them. So now, this is the stage where they could not agree and so we will be proceeding with the cross-examination of the witnesses. Atty. Dollete: There were only two witnesses. Two witnesses were presented, one is Ruperto Fulgado and he died already. Your Honor, the other witness was Jose Fulgado who is now abroad for almost a year, Your Honor. Atty. Tuangco: I understand that the other witness was here on a visit, Your Honor. He came back. Court:

So, what shall we do now? Atty. Tuangco: So, I move to strike out the testimonies of the witnesses who testified on the ground that we were deprived of our right to cross-examine them. Atty. Dollete: We will submit, Your Honor, for resolution the motion of the defendants. Court (To Atty. Tuangco): So, what do you want? Atty. Tuangco: That the whole testimonies of the two witnesses who were presented ex parte be stricken off the record because we have not been granted the right of crossexamining them and they are not available at this stage, Your Honor. Atty. Dollete: We will submit Your Honor. We maintain, Your Honor. Our opposition is that it hinges on the fact that defendants committed laches in their failure to crossexamine the witness. That is our opposition. Court: Why? Atty. Dollete: There were several opportunities for them to cross-examine especially the witness Ruperto Fulgado, Your Honor. They are with full knowledge of the age of this witness. They could have taken steps to assert their right granted by the Court of Appeals. Notwithstanding their knowledge about the age, the advanced age and health condition of this witness Ruperto Fulgado, then we maintain, Your Honor, that defendants, in a way, have committed laches in the assertion of their right to cross-examine. Atty. Tuangco: The records will show Your Honor, that it was the defendants who moved to set this case for hearing upon the remanding of the records from the Court of Appeals. Court: You make a written motion and I will grant you a period of ten (10) days within which to file an opposition and then another additional period of ten (10) days within which to reply. Then this matter shall be deemed submitted for resolution. But the fact is clear now that plaintiff has no more additional evidence. Atty. Dollete:

Yes, Your Honor. Court: So that in case the court favorably grants the motion of defendants and orders the striking out of the testimonies of Ruperto Fulgado and the other witness, together with the documentary evidence, the plaintiff had no more evidence to offer. Atty. Dollete:

Yes, Your Honor. We stand on the evidence on Record.

On June 30, 1976, the trial court issued an order dismissing the case. It decreed:

For reason stated in the defendants' motion filed on May 18, 1976, which the Court finds meritorious, the testimonies of plaintiffs witnesses Ruperto Fulgado and Jose Fulgado, who were not presented by the plaintiff so that the defendants could cross-examine them on May 4, 1976, are stricken off the record and, as a consequence, in view of the manifestation of plaintiffs counsel that he had no more witnesses to present, the aboveentitled case is dismissed without pronouncement as to costs. 6
On appeal to the Appellate Court in C.A. G.R No. 62353-R, said order was affirmed on June 30, 1982. 7Petitioners now question said affirmance before this Court in the instant petition for review. The principal issue in the case at bar is the propriety of the exclusion of the testimonies given by the now deceased Ruperto Fulgado and his witness, Jose Fulgado, who has departed for the United States, which resulted in the dismissal of the complaint. Private respondents maintain that such testimonies are wholly inadmissible for being hearsay, because respondents were not able to cross-examine the witnesses. Petitioners, on the other hand, contend that while the right to cross-examination is an essential part of due process, the same may however be waived as the private respondent have done when they allowed an unreasonable length of time to lapse from the inception of the opportunity to cross-examine before availing themselves of such right and likewise when they failed to exhaust other remedies to secure the exercise of such right. The appeal is well-taken. In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 8 and the cases cited thereunder, the Court, speaking through Justice Muoz Palma, has provided us with a concise overview of the right to cross-examination as a vital element of due process. Thus: The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process. However, the right is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confr ont and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-

examine if desired. 9 Thus the resolution of the present case would hinge on whether or not this was an opportunity for cross-examination. There is no disputing that where there was no such opportunity (to cross examine) and the want of it was caused by the party offering (plaintiff), the testimony should be stricken out. However, where the failure to obtain crossexamination was imputable to the cross examiner's fault, the lack of cross-examination is no longer a ground for exclusion according to the general principle that an opportunity, though waived, will suffice. 10 From the records presented, it is manifest that private respondents had enough opportunity to cross-examine plaintiff Ruperto Fulgado before his death, and Jose Fulgado before his migration to the United States. Conceding that private respondents lost their standing in court during the time they were in default, they were no longer in that situation on June 6, 1974 when the Court of Appeals set aside the default judgment in CA-G.R. No. 42590-R and remanded the case to the court of origin for trial on the merits, "granting to the defendants the opportunity to present their evidence ... ." 11 This was a positive signal for them to proceed with the cross-examination of the two Fulgados, a right previously withheld from them when they were considered in default. But despite knowledge of Ruperto's failing health (he was then 89 years of age) and Jose's imminent travel to the United States, private respondents did not move swiftly and decisively. They tarried for more than one year from the finality of the Appellate Court's decision on June 27, 1974 to ask the trial court on July 3, 1975 to set the already much delayed case for hearing "in any date of August and September ... ." 12 Such inaction on the part of private respondents cannot be easily dismissed by the argument that it is the duty of the plaintiff to always take the initiative in keeping the proceedings "alive." At best, the argument is fatuous. The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiffs shoulders can be construed to extremes as what happened in the instant proceedings. Having had the liberty to cross-examine and having opted not to exercise it, the case is then the same in effect as if private respondent had actually cross-examined. We therefore hold that it was gross error for both the trial court and the Appellate Court to dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there was an alleged failure of cross-examination. The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it prejudiced the party whose only fault during the entire proceedings was to die before he could be cross-examined. The prudent alternative should have been to admit the direct examination so far as the loss of crossexamination could have been shown to be not in that instance a material loss. 13 And more compellingly so in the instant case where it has become evident that the adverse party was afforded a reasonable chance for crossexamination but through his own fault failed to cross-examine the witness. Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or his witness, it seems a harsh measure to strike out all that has been obtained in the direct examination. 14 As to the witness Jose Fulgado who is reportedly abroad, private respondents could have resorted to the various modes of discovery under the Rules of Court to cross-examine Jose. D, During the hearing of May 4, 1976, counsel for private respondents unwittingly or wittingly disclosed that they knew that Jose was in the country "for a visit" but they did not exert any effort to have him subpoenaed. Altogether, the acts of private respondents constitute a waiver, and consequently, a forfeiture of their right to crossexamination. And having failed to make use of this right, the consequences should rightfully fall on them and not on their adversary. WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R dated June 30, 1982 is SET ASIDE. The trial court is ordered to REINSTATE Civil Case No. 10256 and to allow the direct testimonies of plaintiff Ruperto Fulgado and his witness Jose Fulgado to remain in the record. The court is further ordered to give

priority to the hearing of said case in view of the length of time that it has remained unresolved on account of procedural differences. This judgment is immediately executory. No costs. Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur. G.R. No. L-38790 November 9, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FEDERICO RELUCIO @ "PEDRING", EDRI PINEDA, ROSENDO VELASCO @ "MANGYO", DANTE ARIOLA, MIGUEL ESPEJO PADRONES @ "EGI", PETER DOE, and RICHARD DOE, accused, ROSENDO VELASCO @ "MANGYO", accused-appellant. J. G. Lapuz & E. F. David for appellant. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial Attorney Windalino Y. Custodia for appellee.

BARREDO, J.: Appeal from the judgment of conviction against appellant Rosendo Velasco of the crime of murder by the Circuit Criminal Court of the Fourth Judicial District dated January 4, 1974, the dispositive part of which reads: WHEREFORE, this Court, finding the accused Federico Relucio and Rosendo Velasco guilty beyond reasonable doubt of the crime of Murder as charged in the information, and in the absence of any modifying circumstance, hereby sentences them to reclusion perpetua; to indemnify jointly and severally the heirs of the herein deceased victim Gonzalo Talastas in the amount of P12,000.00 without, however, subsidiary imprisonment in case of insolvency by reason of the nature of the sentence, and to pay the proportionate costs. It appears that the other accused Federico Relucio withdrew his appeal upon the filing of a motion for new trial but pending the resolution of said motion, said accused broke out of the Nueva Ecija Provincial Jail together with two other inmates named Mario David and Amante Villasenor for which reason the trial court declared the decision final as to him. (Order of the trial court of June 4, 1974.) Appellant was charged with murder in the court below, together with Federico Relucio, alias "Pedring", Edri Pineda, Dante Ariola, Miguel Espejo Padrones. alias "Egi" Peter Doe and Richard Doe, in an information dated May 29, 1972 reading as follows: The City Fiscal accuses Federico Relucio alias "Pedring", Edri Pineda, Rosendo Velasco alias "Mangyo", Dante Ariola, Miguel Espejo Padrones alias "Egi", Peter Doe and Richard Doe, the true Identities of the last two-named accused being presently unknown, of the crime of Murder, committed as follows: That on or about the 23 rd day of June, 1971, in the City of Cabanatuan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding and abetting one another, with treachery, did then and there, willfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one Gonzalo Talastas by shooting the latter on different parts of his body with guns thereby inflicting upon him serious physical injuries which directly caused his death. CONTRARY TO LAW, with the generic aggravating circumstances of evident premeditation and cruelty. Cabanatuan City, May 29, 1972.

FOR THE CITY FISCAL: SGD.) MARIO M. DEL ROSARIO Special Counsel The trial began on November 16, 1972 and ended on November 5, 1973, the court holding no less than twenty-four sessions. Four witnesses, Patrolman Jose E. Garcia, Crispin Angeles, Dra. Melicia C. de Guzman and Miguel Padrones, testified for the prosecution during the presentation of the direct evidence and four witnesses, Jose Serafica, Inday Tinio, Benito Custodio and again Miguel Padrones were presented as rebuttal witnesses. The defense had, aside from the accused Relucio and Velasco, the following witnesses: Eduardo Mangahas, Jose Aguilar, Ligaya Velasco, Elias Estrella, judge Alfin Vicencio, Segundino Gabriel, Pablo Padilla, Eusebio Mendiola and Dr. Emiliano Perez. Later, Velasco testified again in rebuttal. The transcript of the stenographic notes of the testimonies of all the witnesses consist of over 930 pages. Of the four witnesses in chief presented by the prosecution only two, Crispen Angeles and Miguel Padrones, can be said to have given incriminatory evidence against appellant. -1According to Angeles, (pp. 18-115, t.s.n.), on the day in question, June 23, 1971, he met the deceased Gonzalo Talastas (Along) near the entrance to the Capital Theater in Cabanatuan City at about 2 o'clock in the afternoon. He invited Talastas to see the movie. The latter said he was waiting for a woman. When the woman named Amanda arrived, she had a female companion, and the four of them went in. After a while Amanda left and did not go back anymore. So, Angeles invited Talastas to leave but the latter said he would wait for Amanda to return. A little later, however, he acceded just the same, but Angeles "left ahead of him." As Angeles was going out, he met the accused Federico Relucio and another person unknown to him going inside the theater. After the two went in, Angeles heard shots, after which he saw Talastas going out of the theater with blood on his shoulder. (He could not say whether left or right. 'At that moment, he (Angeles) was "in the place opposite the Capital Theater near the Avenue Theater" (across Burgos Street ). He saw "someone following and shooting him" (Talastas),' somebody who was chasing him. ... He was firing shots," but he did not say clearly who fired the shots. His vague testimony on this point is as follows: Q Where were you when you saw Gonzalo Talastas going out of the theater? A I was there in front of the Avenue theater, sir. Q What happened if you know when you saw Gonzalo Talastas going out the theater? A There was somebody who was chasing him, sir. Prosecutor Q What was that one chasing him doing while chasing him? A He was firing shots, sir. Q To whom was he firing shots? A Gonzalo Talastas, the one who died. Q Do you know that one chasing Gonzalo Talastas? A Yes, sir. The one chasing him I know him by face and the other one I know him by name only, sir.

Q How many were chasing Gonzalo Talastas? A There were many but I recognized only four, sir. Q You said that you know the name of one of them, will you please tell the Honorable Court the name of one of them whom you know by name? A Yes, sir. Q What is his name? A Ige, sir. Q If Ige is in this courtroom, can you point to him? A Yes, sir. Atty. Abesamis We object to the question for it lacks basis because the witness categorically stated that he only knew the name. He did not state that he knows the person who carries the name of Ige, your Honor. Court But he saw the man. If he did not see, I would not insist. I would sustain you easily but he saw the face. Atty. Abesamis I submit, your Honor. Court Witness may answer. Witness A Yes, sir. Prosecutor Q Please point to him? A (witness pointing to a person wearing a white shirt when asked of his name answered that he is Miguel Padrones). Q You said you saw four persons, besides Miguel Padrones, can you tell if any of the three is in this courtrooms. A Yes, sir. Q Please point to them?

A (witness going down from the witness stand and pointing to somebody sitting handsome and with curly hair who, when asked of his name, answered that he is Rosendo Velasco). Q Who else if there are still in this courtroom? A I have already pointed three. The other one is not here, sir. Q You said that you recognized four men among those chasing the deceased Gonzalo Talastas and you pointed to Ige who is Miguel Padrones and now you pointed to Mangyo who is Rosendo Velasco, who is the other one? Atty. Abesamis Already answered, he already pointed three according to him, your honor. Court Q You only pointed two as far as the Court remembers. You said four were there other still present in the courtroom? A Yes, sir. This is the third one (witness pointing to somebody who is used to be Identified to be Federico Relucio), and the fourth one is not here. Prosecutor Q You said that they were chasing Gonzalo Talastas, what happened with that chasing? A He was hit and he fell down, sir. Q Where did he fall ? A In front of the Tiwag College, sir. Q How far is that point from the theater where Gonzalo Talastas came? A It was quite far, sir, I cannot estimate but he came from the Capital theater, and he fell down in front of the Liwag College. Court Q Can the parties determine as to the distance from the Capital theater up to the Liwag College? (Make of record that the distance approximated by the parties is more or less 150 meters). (t.sn., pp. 37-42, hearing of November 16, 1972.) Explaining further, he testified that Talastas was running towards the east and that "those chasing him, some were in the jeep and others running. " Among those in the jeep was appellant Rosendo Velasco, the only one he recognized, and among those on foot he recognized only Miguel Padrones. After Talastas fell, the witness went to the municipal building "looking for a policeman whom I know because I will tell him that Gonzalo Talastas was shot", but he could not find anyone he knew, so he went home.

On cross-examination, however, he identified Padrones as the only one chasing Gonzalo thus: Atty. Pablo Q Now, you saw Ige chasing him on foot when he was going out of the theater or when he was already running along the street? A When he was already running in the street sir. Q He was alone chasing him when he was proceeding along the Liwag College? A I only saw one. He was alone Ige only, sir. (t.s.n., p. 60, hearing of November 16, 1972.) Moreover, whatever frail indication may appear in the testimony of this, witness linking appellant to the offense charged was virtually shattered by Exhibit 17, the sworn statement of the same witness given to Detective Justiniano E. Fernandez of the Cabanatuan City Police on January 11, 1972, which the defense presented for impeachment purposes, strangely without objection on the part of the prosecution notwithstanding that the defense failed to lay the predicate therefor. (t.s.n., p. 388.) In said statement, Angeles gave practically a different story from beginning to end from the reference to the time place and reason how he and Talastas and Amanda came to be together that fateful afternoon up to the Identification of Ige or Egi (Miguel Padrones) as the one who shot Talastas) from that related by him on the witness stand. Exhibit 17 reads as follows: CCPD-Bilang 1356-71 SALAYSAY NI CRISPIN ANGELES Y SANTIAGO NA KUHA SA PAGTATANONG NI TIKTIK JUSTINIANO P. FERNANDEZ NG PANGKAT NG TAGATUGAYGAY NG HIMPILAN NG PULISYA NG LUNGSOD NG KABANATUAN NGAYONG IKA-11 NG BUAN NG ENERO 1972, SA GANAP NA IKA-4:00 NG HAPON. x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x 01. TANONG:-Ito'y isang pagsisiyasat, ikaw ba'y handang magbigay ng isang malaya at kusang loob na salaysay na ang iyong sasabihin dito ay pawang katotohanan lamang.? SAGOT:-Opo. 02. T-Sabihin mo ang iyong pangalan at bagay na maaring pa sa iyong pagkatao at sabihin mo din kung saan ka kasalukuyang naninirahan? S-CRISPIN ANGELES Y SANTIAGO po, 22 taong may asawa, magsasaka at sa kasalukuyang naninirahan sa Bo. Pamaldan, Lungsod ng Kabanatuan. 03. T-Ano ang dahilan at ikaw ay naririto ngayon sa Tanggapan ng Pulisya at ikaw ay nagbibigay ng isang malaya at kusang loob na salaysay dito? S-Dahilan po sa akoy nagpapatunay sa isang pangyayari na naganap. 04. T-Ano ba ang pangyayaring ito na ayon sa iyo ay naganap na nais mong patunayan dito? S-Ganito po iyon. Nuong ika-2:00 ng hapon ng ika-23 ng buan ng Hunyo 1971, samantalang kami nitong si GONZALO TALASTAS ay nanduon sa isang bahay na aming tinutuluyan sa Bo. Aduas, dito sa Lungsod ng Kabanatuan, ay dumating itong si MANDA at ang isang babae na sinabi niyang kanyang pinsan

at kami ay kanilang inamuki na samahan sila na manood ng Cine. Amin naman pong sinamahan ang dalawang babae na ito at ang kanilang piniling pasukin na Cine ay iyong Capital sa may daang Burgos. Ng kami'y nanduon na sa loob ng sine, hindi pa gaanong nagtatagal kami sa aming pagkakaupo na magkakatabi duon sa hulihang upuan sa ibaba sa gawing kaliwa ay nagpaalam ang dalawang kasama naming ito na sila'y di umano'y pupunta sa kasilyas ng mga babae at sila'y iihi. Ng mayruon ng humigit kumulang na kahalating oras ang nakakaraan ang dalawang babae na ito ay hindi pa nagbabalik sa kanilang upuan sa tabi naming dalawa ay nainip kami at amin silang hinanap subalit hindi na namin sila nakita. Sa pangyayaring ito ay nagusap kami nitong si GONZALO TALASTAS at napagkasunduan naming dalawa na kami'y lumabas na din, ang ginawa ko ay nagpatiuna na ako sa paglabas na sumusunod itong is GONZALO TALASTAS at siya ay naghinto sa may tapat ng takilya. Ng ako'y malapit ng makarating duon sa mga bungad ng pasilyo ay napansin ko na mayruong tatlong tao na mayruong mga dalang baril ang naduon sa magkabilang gilid at sa aking palagay ay mayruong silang inaabangan. Ng ako'y makalagpas na sa mga taong ito, iyong isa sa kanilang tatlo ay humiwalay at pumasok duon sa loob. Sa napansin kong ito ang ginawa ko ay nagbalik ako at sa aking pagpasok ay bigla na lamang mayruong pumutok na baril at ng aking tingnan ang pinangalingan ng putok ay nakita ko itong si FEDERICO RELUCIO na mayruong palayaw na "PEDRING "na binabaril itong si GONZALO TALASTAS na tinamaan sa kanyang kaliwang balikat. Nakita ko din na gumanti itong si GONZALO TALASTAS at tinamaan din itong si PEDRING na hindi ko alam kung saang parte. Nakita ko din po na itong si GONZALO TALATAS ay tumakbong papalabas ng sine na naiwanan itong si PEDRING duon sa loob. Sa ginawang paglabas nitong si GONZALO TALASTAS ay sumunod na din ako at nakita ko na iyong ibang mga kasamahan nitong si PEDRING na nagaabang sa labas at nakasakay duon sa jeep na di pasaheros na kasama na duon iyong dalawang kasamahan nitong si PEDRING na nakita kong nakatayo sa magkabilang gilid ng pasilyo ng Cine Capital. Nakita ko na bumaba itong si PEDRING na hinabol itong si GONZALO TALASTAS na kasalukuyan nuong nagtatakbo napatungo duon sa may gawi ng Cine Broadway na binabaril naman nitong si IGE ng isang baril na Carbine, subalit hindi tinamaan itong si GONZALO TALASTAS. Nakita ko din po na itong si EDRI ay nagbalik at kanyang kinuha ang isang jeep na army type at kanyang iminaneho ito na kasama itong dalawa na sina Mangyo Velasco at si Dante Arriola at kanilang pinulot itong si IGE Natapos na maisakay itong si IGE ay kanila ng sinundan itong is GONZALO TALASTAS at kanilang inabutan duon sa may panulukan ng daang Bonifacio at Burgos na sumasakay sa tricycle. Inihinto po nitong si EDRI ang jeep na army type at bumaba itong si IGE at kanyang binaril itong is GONZALO TALASTAS ng dala niyang Carbine. Tinamaan itong is GONZALO TALASTAS at nakita kong nabuwal at habang ito'y nabubuwal ay binabaril ito ng mga kasamahan ni EDRI na naiwanan duon sa jeep na tumatama naman sa katawan nito. Matapos ang maramihang pagpapaputok na ginawa ng mga naiwanan sa jeep, itong si IGE ay lumapit dito sa kinabuwalan nitong si GONZALO TALASTAS at kanyang itinaas ang ulo nito at pinaputukan ng kanyang baril na mahigsi sa may gawing likuran at pagkatapos ay kinuha niya ang baril na dala nitong si GONZALO TALASTAS. Pagkatapos nuon ay sumakay na itong si IGE duon sa jeep na nakahinto at sila'y tumakas na. 05. T-Ayon sa iyo ay sinundan mo itongmga taong ito at iyong sinubaybayan ang mga nagaganap na pangyayari, saan lugar ka naman lumagay nuon? S-Duon po ako nanduon at nakakubli sa bangketa bago dumating sa Mobil Gas Station sa gawing kanan ng daang Burgos. 06. T-Ilan bang magkakasama itong mga taong ito na pumatay dito kay GONZALO TALASTAS? S-Sa akin pong pagkakakita sila'y mayruong pito ang bilang.

07. T-Binangit mo dito sila, FEDERICO RELUCIO @ PEDRING, EDRI PINEDA, @ IGE, @ MANGYO VELASCO at DANTE ARRIOLA, lumilitaw o lumalabas na mayruon na itong lima ang bilang, iyong dalawa na hindi mo nabangit dito dahil sa ayon sa iyo ay pito ang magkakasamahan na ito. Sino pa iyong dalawa kung nakikilala mo? S-Hindi ko po sila kilala dahilan sa nuon ko lamang sila nakita. 08. T-Ayon sa iyo dito na nuong lumabas itong si GONZALO TALASTAS sa loob ng Cine Capital na mayruon ng tama ng baril upang tumakas ay nakita mo na iyong mga kasamahan nitong si PEDRING RELUCIO na siyang pumasok dito sa loob ng sine at binaril si GONZALO TALASTAS ay nanduon sa isang jeep na di pasahero na parada sa tapat ng bowling alley, at ng tugisin nila itong si GONZALO TALASTAS ay sakay na sila ng isang jeep na army type ang ibig mo bang sabihin dito ay dalawa ang sasakyan na ginamit ng mga taong ito? S-Opo. 09. T-Alam mo ba kung ano ang mga Plaka ng dalawang sasakyang ito na ginamit ng mga taong ito na pumatay dito kay GONZALO TALASTAS? S-Hindi dahil sa hindi ko na napagruonan ng pansin ito at ang hinahabol ko ay iyong nagaganap na pangyayari tungkol sa pagkapatay dito kay GONZALO TALASTAS. 10. T-Ito bang mga taong binangit mo dito liban dito sa dalawa na hindi mo kilala, ay dati mo ng kilala? S-Opo iyong tatlo na sina, FEDERICO RELUCIO PEDRING, @ EDRI PINEDA at @ IGE na pawang mga taga Bo. Talipapa, dito sa Lungsod ng Kabanatuan, at itong dalawang sina MANGYO VELASCO at DANTE ARRIOLA ay hindi pa gaanong nagtatagal. 11. T-Ano ba naman ang relasyon ninyong dalawa dito sa dalawang babae na sumundo sa inyo duon sa inyong tinuluyang bahay sa Bo. Aduas, na humimok sa inyo na sumama sa kanila na manood ng Cine? S-Wala po kaming relasyon, subalit hindi katagalang magkakilala. 12. T-Sino sa dalawang ito ang kakilala ninyo? S-Iyon pong MANDA. 13. T-Saan ba naman nagtitira itong si MANDA at ang kanyang kasama na isang babae din? S-Sa Bo. Dalampang po. 14. T-Hindi mo ba alam kung ano ang kanilang mga apilyedo? S-Hindi ko na po maalala ang kanilang mga apilyedo subalit sila ay maituturo ko kung sila'y aking makitang muli. 15. T-Simula ng pangyayaring iyon, nagkita ba kayong mull ng dalawang babae na ito?

S-Hindi na po napakita sila sa akin. 16. T-Sa iyong pagaaral o pagkakaalam ano ang motibo ng ginawang pagpatay dito kay GONZALO TALASTAS ng mga taong binangit mo dito? S-Ang pagkakaalam ko po ay dahilan sa ginawang pagbaril nitong si GONZALO TALASTAS dito kay VITO RELUCIO na kapatid nitong si PEDRING RELUCIO na pamangkin naman nitong si EDRI PINEDA. 17. T-Alam mo din ba kung bakit binaril nitong si GONZALO TALASTAS itong si VITO RELUCIO? S-Opo. 18. T-Ano naman ang pagkakaalam mo? S-Dahil sa nasabi po sa akin ng personal nitong si GONZALO TALASTAS na iyon daw pong kanyang asawa ay siniraang purl nitong si VITO RELUCIO at ito'y nagsumbong dito. 19. T-Ayon saiyo dito na ng mangyari ang pagpatay dito kay GONZALO TALASTAS ay nuong ika-23 ng buan ng Hunyo 1971 ng bandang hapon, bakit ngayon ka lamang nagbigay ng isang malaya at kusang-loob na salaysay dito bilang pagpapatunay na pangyayari naiyon na paganap? S-Dahil po sa ako'y natatakot sapagkat panahon nila ng panunugis. 20. T-Ito ba lang ang dahilan kung kaya ngayon ka lamang nagkaruon ng lakas ng loob upang magpatunay sa naganap na patayan naito na ang naging biktima dito ay si GONZALO TALASTAS? S-Mayroon pa po, wala namang nagpunta sa akin na investigador upang ako'y tanungin tungkol sa naganap na pangyayaring ito. 21. T-Dito ba sa pagbibigay mo ng isang malaya at kusangloob na salaysay dito sa Himpilang ito ay walang tumakot saiyoo kaya nangakong ikaw ay bibigyan ng pabuya upang sabihin mo dito ang lahat ng mga binangit mo na salaysay mong ito? S-Wala po ang lahat ng mga sinabi ko dito sa harap ninyo ay kusang-loob ko at walang pumilit sa akin o tumakot dili kaya ay nangako na ako'y bibigyan ng ano mang pabuya, bagkus ito ay aking karapatan bilang isang mamamayang Pilipino at tungkulin ko din pong makipagtulungan sa mga ahensya ng batas lalo na sa ganitong uri ng krimen ginanap na nagdamay pa ng iba. 22. T-Nasabi mong nagdamay pa ng iba, bukod dito kay GONZALO TALASTAS, mayroon pa bang ibang mga taong naging biktima ng pangyayaring ito? S-Mayroon po. 23. T-Sino naman ang mga taong ito kung mayroon kang nalalaman? S-Sa akin pong pagkakaalam ay iyong mayari ng dating tindahan na isang babae na asawa ng manager ng isang bangko dito sa Lungsod ng Kabanatuan na napagalaman ko ang pangalan na GINANG LUISA MONDELO.

24. T-Ano naman ang naging pinsala nito kung nalalaman mo? S-Ayon po sa aking pagkakaalam ay tinamaan ito ng ligaw na bala sa kanyang baraso hindi ko po malaman kung kaliwa o kanan. 25. T-Tutuo bang lahat ang mga sinabi mong ito at handa mong panumpaan sa harap ng Hukuman kung sakaling ikaw ay kailanganin na magpatutuo sa pagpapatunay sa pangyayaring iyon nasaksihan ng ayon sa iyo? S-Opo. (Lumagda) CRISPIN S. ANGELES (Pp. 369-372, Record of Lower Court.) As may be seen, the material discrepancies between the contents of the above-quoted statement, on the one hand, and the testimony of Angeles in open court, on the other, are so irreconcilable that even if the proper predicate had been laid upon proper objection of the fiscal it is doubtful, if any believable reconciliation could have been given by him. In open court, he testified that in the afternoon of June 23, 1971, it was at the entrance of the Capital Theater that he met Talastas and invited him to see the movie but the latter said that he was waiting for Amanda. It turned out, according to Exhibit 17, that he and Talastas were still in Barrio Aduas, where they were staying, when Manda arrived with a woman companion and invited them to go to the "cine". In his testimony, he said that it was Amanda who left and did not go back anymore, while in the above statement, he declared that both of their two female companions told them they would only go to the comfort room but eventually disappeared. In court, he said that when Manda did not return, he invited Talastas to leave but the latter answered he would wait for Manda's return. In Exhibit 17, it appears that he and Talastas agreed to follow and look for their lady companions and that he went ahead and Talastas stopped by the ticket booth. Whereas in court, he testified that he was already in the middle or across Burgos Street near the Avenue Theater when he heard shots inside the Capital Theater where Talastas had returned, as they met Federico Relucio with a companion, unknown to him, who were going inside, hence, he did not see who fired the shots, in the above sworn statement, he categorically stated that upon seeing Relucio, who had separated from his two armed companions and gone inside, he (Angeles) went back inside the theater and actually saw Relucio firing at Gonzalo and the latter retaliating with his own gun. In court, he said that when Talastas came out of the theater already wounded and running towards the east, the two companions of Relucio, referring to Velasco and Padrones, chased Talastas, with Relucio riding in a jeep and Padrones going on foot. In Exhibit 17-A, he said: 04. S-Nakita ko din po na itong si GONZALO TALASTAS ay tumakbong papalabas ng sine na naiwanan itong si PEDRING duon sa loob. Sa ginawang paglabas nitong si GONZALO TALASTAS ay sumunod na din ako at nakita ko na iyong ibang mga kasamahan nitong si PEDRING na nagaabang sa labas at nakasakay duon sa jeep na di pasaheros na kasama na duon iyong dalawang kasamahan nitong si PEDRING na nakita kong nakatayo sa magkabilang gilid ng pasilyo ng Cine Capital. Nakita ko na bumaba itong si EDRI na ang kanyang apilyedo ay PINEDA at itong si IGE at kanilang hinabol itong si GONZALO TALASTAS na , kasalukuyan nuong nagtatakbo na patungo duon sa may gawi ng Cine Broadway na binabaril naman nitong si IGE ng isang baril na Carbine, subalit hindi tinamaan itong si GONZALO TALASTAS. Nakita ko din po na itong si EDRI ay nagbalik at kanyang kinuha ang isang jeep na army type at kanyang iminaneho ito na kasama itong dalawa na sina Mangyo Velasco at si Dante Arriola at kanilang pinulot itong si IGE Natapos na maisakay itong si IGE ay kanila ng sinundan itong si GONZALO TALASTAS at kanilang inabutan duon sa may panulukan ng daang Bonifacio at Burgos na sumasakay sa tricycle. In court, Angeles intimated that Padrones or Egi did not fire at Talastas, leaving the inference that it was appellant Velasco who was shooting the deceased. In the above statement, he positively said: Inihinto po nitong si EDRI ang jeep na army type at bumaba itong si IGE at kanyang binaril itong si GONZALO TALASTAS ng dala niyang Carbine. Tinamaan itong si GONZALO TALASTAS at nakita kong nabuwal at habang ito'y nabubuwal ay binabaril ito ng mga kasamahan ni EDRI na naiwanan duon sa jeep na tumatama naman sa katawan nito. Matapos ang maramihang pagpapaputok na ginawa ng mga naiwanan sa jeep, itong si IGE ay lumapit dito se kinabuwalan nitong si GONZALO TALASTAS at kanyang itinaas ang ulo nito at pinaputukan ng kanyang baril na maiksi sa may

gawing likuran at pagkatapos ay kinuha niya ang baril na dala nitong si GONZALO TALASTAS. Pagkatapos nuon ay sumakay na itong si IGE duon sa jeep na nakahinto at sila'y tumakas na. In brief, in court, Angeles' account of the participation of appellant in the shooting of Talastas was vague and inconclusive; in his statement, Exhibit 17, nothing points definitely and specifically to appellant as having fired any shot at all; importantly the one clearly and categorically referred to as having shot Talastas is Egi or Padrones It results, therefore, that at least insofar as herein appellant Velasco is concerned, the testimony of Angeles has been completely impeached or discredited. It is a basic postulate in the law on evidence that every witness is presumed to be truthful and perjury is not to be readily inferred just because apparent inconsistencies are evinced in parts of his testimony. Every effort to reconcile the conflicting points should first be exerted before any adverse conclusion can be made therefrom. These considerations he at the base of the familiar rule requiring the laying of a predicate, which is essence means simply that it is the duty of a party trying to impugn the testimony of a witness by means of prior or, for that matter, subsequent inconsistent statements, whether oral or in writing, to give the witness a chance to reconcile his conflicting declarations, such that it is only when no reasonable explanation is given by him that he should be deemed impeached. Thus, Section 16 of Rule 132 provides: Section 16. How witness impeached by evidence of inconsistent statements. Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements if so, to explain them. If the statements be in writing they must be to the witness before any question is put to him concerning them. In United States vs. Baluyot, 40 Phil 385, at pp. 406-407, the Court made a clear exposition of the universal rule of laying a predicate as follows: In order that we may not be misunderstood, as wen as for the purpose of clarifying the practice in such matters, a few words may here be properly said in respect to the proper mode of proceeding in a case where a party wishes to get before the court contradictory statements made by a witness who is testifying for the adversary party. For instance, if the attorney for -the accused had information that a certain witness, say Pedro Gonzales, had made and signed a sworn statement before the fiscal materially different from that given in his testimony before the court, it was incumbent upon the attorney when cross-examining said witness to direct his attention to the discrepancy and to ask him if he did not make such and such statement before the fiscal or if he did not there make a statement different from that delivered in court. If the witness admits the making of such contradictory statement, the accused has the benefit of the admission, while the witness has the opportunity to explain the discrepancy, if he can. On the other hand, if the witness denies making any such contradictory statement, the accused has the right to prove that the witness did make such statement; and if the fiscal should refuse upon due notice to produce the document, secondary evidence of the contents thereof would be admissible. This process of cross-examining a witness upon the point of prior contradictory statements is called in the practice of the American courts 'laying a predicate' for the introduction of contradictory statements. It is almost universally accepted that unless a ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of the court. We wish to add that in a case of this kind, if the accused had, by affidavit or otherwise, made it appear to the satisfaction of the court that the witnesses named had made statements in their declarations before the fiscal materially at variance with their statements in court and that the production of said declarations was necessary or even desirable, in the interests of justice, the court would have had ample power to order their production. This doctrine has been reiterated consistently in subsequent cases. (Moran, Comment on the Rules of Court, Vol. 6, 1970 ed., P. 92, citing People vs. Resabal, 50 Phil. 780; People vs. Quingsy, 54 Phil. 88; People vs. Lara, 75 Phil. 786; and People vs. Escusura, 82 Phil. 41.)

But it, as in the instant case of the witness Angeles, the prosecution did not object to the presentation of Exhibit 17 which was offered expressly for impeachment purposes, notwithstanding that the defense did not give the witness the opportunity to give his own explanation of the apparent contradictions in his testimony, the trial judge and the appellate courts have no alternative but to determine, if they can, possible reconciliation on the basis alone of logic and common experience. The omission to object on the ground of failure to lay the predicate is waived by the omission to interpose the same when the impeaching contradictory statement is offered. (Evidence, [Rules of Court] Vol. VII, 1973 ed. by Vicente Francisco, p. 398.) On this score, We find the inconsistencies in the two versions of Angeles utterly beyond possible rational explanation. The various discrepancies We have pointed out above - and there are still others We have not mentioned are so disparate that there can be no other conclusion than that the witness must have lied in either of them. Accordingly, We have to reject both of them. -2The testimony of the other witness Miguel Padrones, one of appellant's co-accused, cannot be viewed in better light. After Patrolman Garcia and Crispen Angeles had testified, at the hearing on January 4, 1973, the prosecutor, District State Prosecutor Mariano D. Copuyoc, asked for resolution of his motion to discharge the accused Miguel Padrones in order to be utilized as a state witness, evidently by virtue of Section 9 of Rule 119, on the ground that "this representation has found absolute necessity of the testimony of said defendant because the prosecution has no other direct evidence available for the prosecution of the offense committed except the testimony of said Miguel Padrones; that the said testimony of the defendant Miguel Padrones could be substantially corroborated in its material points by the testimony of the other prosecution witness Crispin Angeles; that the said accused Miguel Padrones appears to be the least guilty and that he has never been convicted of any crime involving moral turpitude." No notice was given to the defense of the motion; it turned out it was filed as early as December 14, 1972, after Angeles had already finished testifying on December 6, 1972. Counsel for Relucio and Velasco protested they had no notice of the motion and objected to it contending that from the testimony of Angeles, Padrones did not appear to be the least guilty and that the prosecution had not shown that Padrones had been previously convicted of a crime involving moral turpitude, but the trial court overruled them. Briefly, the testimony of Padrones on direct examination (pp. 427-453, t.s.n.) was as follows: Between 4:00 and 5:00 p.m., June 23, 1971, while he was in the residence of Atty. Perez (in Cabanatuan City), "an information was received" ... from a person named Og that Gonzalo Talastas was inside Capital Theater also in Cabanatuan City. The "information" was addressed to the accused Federico Relucio who was then present together with Atty. Perez and two other persons not known to the witness. Then appellant Mangyo Velasco and two others unknown to the witness arrived. After these three arrived, "they (referring to "Relucio, Mangyo and the other two whom I do not know and I went to the Capital Theater". They went there "because Gonzalo Talastas was really to be killed." This, he was told by Relucio, for "according to Federico Relucio, Gonzalo Talastas was the one who killed his brother." He did not mention anything about any conversation among those present from which a conspiracy could be deduced. Upon arriving at the Capital Theater, Pedring (Relucio) went inside, while the witness and Mangyo and the two others were in front of the bowling hall. Padrones said they were all armed, Relucio with a.45, Mangyo with a.38 caliber and a carbine, the other two with armalite and he (Padrones) with a.45, but there was no suggestion that they did so with the intent to kill anyone. Not long after Federico (Relucio) entered the theater, there were shots (he does not know how many). "Not long after, the late Gonzalo Talastas went outside of the theater with a wobbling motion (susuraysuray), and wounded . . in his chest portion (where there was) blood." Gonzalo ran going towards "hulo" (east). Not long thereafter, Federico Relucio followed also wounded. Then, Mangyo (Velasco), the other two unknowns and Padrones "boarded a jeep and ... followed them (Talastas and Relucio) with us inside the jeep. " They followed them up to the Old Republic Telephone Company Building. Gonzalo "was running" and Relucio "boarded a tricycle, sir, following Gonzalo Talastas. " And when the witness and his companions were already in front of the Republic building, "Doon nga po pinagbabaril (si) Gonzalo Talastas. ... Mangyo and the other two whom I do not know and also Pedring, (Relucio) because Pedring arrived," were the ones who shot him, and Gonzalo died. After the cross-examination of Padrones, the prosecution rested its case, asking for and securing at the same time, the dismissal of the case against the accused Dante Arriola as to whom the prosecutor did not unexplainedly present any evidence. At this point, it may be stated relatedly that Our review of the records of this case has revealed a

number of other loose ends in the proceedings which warrant special attention. Indeed, what must have been a preconceived plan of the prosecution to save Padrones and to pin down appellant instead is quite evident. And worse, it was not without significant, if perhaps unwitting, assistance from the court. Thus, having in view the testimony of Angeles We have discussed earlier, which had only a hazy reference to the supposed participation of appellant in the offense charged, and taking into account Exhibit 17, which the prosecution could not have been ignorant of, pointing to Padrones instead of said appellant as the one who chased and shot the deceased as the latter came out of Capital Theater, it is to be wondered how Padrones was selected as state witness. Moreover, from Padrones' own account, readily available beforehand to the prosecutor, he was with Relucio, who was the one who had the motive to do away with Gonzalo, earlier than appellant Velasco in the house of Atty. Perez, and there is no indication at all that before the group went to Capital Theater, appellant knew, unlike Padrones, that Gonzalo was to be killed. To reiterate, there is no evidence that the killing of Talastas was ever talked about in the house of Atty. Perez. In other words, the prosecution could easily have chosen other witnesses, even from among the other alleged participants in the affray, who appeared to have had minor parts therein, if not from the tricycle drivers who, from Padrones own account, must have seen what happened, and yet Padrones had to be the one allowed to go scot-free. Withal, the repeated references to unknown participants is unnatural. How could there be a conspiracy of the character charged in the information where four of the participants were not supposedly known to any of the witnesses who themselves are alleged to have been in the conspiracy? Why was Dante Ariola included in the information when there was absolutely no evidence against him? Why was Edri Pineda who was mentioned by Angeles in Exhibit 17 or Dante Ariola, who was also charged, not chosen instead? For that matter, why was Atty. Perez in whose house and in whose presence the plot to kill Talastas is alleged to have originated not among the accused? All these questions and many more are intriguing, but the most mystifying circumstance extant in the record was the attitude of both the prosecution and the trial judge in regard to what appears clearly to be a statement given by Padrones to the Cabanatuan City police in the person of a certain Patrolman Corporal J. S. Viloria on October 5, 1972 immediately after he was arrested. This is the same statement, Annex A, on which the defense motion for reconsideration and/or new trial, the denial of which is the plaint in the fourth assignment of error of appellant's brief. Counsel for accused Relucio started his cross-examination of Padrones by inquiring about the circumstances surrounding his arrest and detention which incontestably took place on October 5, 1972. The witness readily revealed that: ATTY. ABESAMIS q Immediately after your arrest you were placed in jail? D.S. PROSECUTOR Answered already, Your Honor. COURT Answer the question. WITNESS a No, sir. ATTY. ABESAMIS q Where were you first brought by the apprehending officers immediately after you were arrested in the afternoon of October 5, 1972? a An investigation was made, sir, on any person.

q Who investigated you? a Viloria, sir. q Where? a At the city hall, sir. q In what part of the city hall did Viloria investigate you, please tell the Court? a Downstairs at his table, sir. COURT (To witness) Speak louder. ATTY. ABESAMIS q This Viloria is also a member of the Cabanatuan City police force? a Yes, sir. q Who were present when you were investigated by Viloria? a The two of us, sir. q He was asking you questions? a Yes, sir, q And you were giving answers to the questions propounded by Viloria to you? a Yes, sir. q And Viloria was typing the questions propounded and the answers given by you? a Yes, sir. q And Viloria investigated you in connection with your anti-government activities? a No, sir. q In what connection were you investigated by Viloria? a Regarding the case of Gonzalo Talastas, sir. q Did you sign that written investigation? a Yes. sir, I signed it. q Also on October 5, 1972?

a I was brought before the presence of Judge Vicencio, sir. q But you have not answered my question, Mr. Witness. My question to you was, did you sign that typewritten investigation conducted by Viloria also on October 5, 1972? a Yes, sir, I signed it before the judge. q On October 5, 1972? a Yes, sir. q You were escorted by armed policemen of Cabanatuan City when you were brought in connection with that written investigation before Judge Vicencio on October 5, 1972? D.S. PROSECUTOR It is very immaterial and irrelevant, Your Honor. COURT Answer the question. WITNESS a Yes, sir. ATTY. ABESAMIS q Who were those policemen who brought you to Judge Vicencio on October 5, 1972? a They were two, sir. q I am not asking you about the number; I am asking you who they were? a One of them is Viloria and I do not know the other policemen who is old. q Now, could you tell the Honorable Court the time when Viloria started investigating you on October 5? a I cannot remember, sir. q But it was night time? a No, sir. q But the investigation was conducted several hours after you were already apprehended by the three policemen headed by Pat. Adriano? D.S. PROSECUTOR It is vague, Your Honor.

ATTY. ABESAMIS To obviate the objection, I will modify the question. q How many hours after you were arrested were you investigated on October 5? a The moment we arrived at the city hall I was investigated, sir. (t.s.n., pp. 66-70, hearing of January 4, 1973) On the basis of such clear and categorical testimony about a statement signed by him before Judge Vicencio of the City Court on that date October 5, 1972, the defense counsel asked "the Honorable District State Prosecutor to produce the written investigation of this witness on October 5, 1972, if he has it in his possession." (p. 70, Id.) And to add to the basis for such request, there was the following manifestation of Atty. Pablo, counsel for Velasco: ATTY. PABLO May it please the Honorable Court. Atty. Taguiam would be a witness to this statement of mine that in the first hearing of this case, Your Honor, Atty. Taguiam requested the District State Prosecutor to lend him the two affidavits executed by this witness and I reiterate that the first affidavit was dated October 5, and the second, October 20, 1972. After Atty. Taguiam has read this affidavit I was able to take hold of this affidavit and to read it. It was the District State Prosecutor who lent these two affidavits to Atty. Taguiam during the first hearing of this case. (pp. 71-72, Id.) Surprisingly, the reaction of the state prosecutor was negative, and the following exchange of words took place: ATTY. ABESAMIS Your Honor please, I would like to make it appear on record that when the recess was called by the Honorable Court in order to afford the District State Prosecutor to look over his records, he Was sorting out his records in connection with this case in order to look for the affidavit demanded of him to be produced by the defense. May we know from the Honorable District State Prosecutor what is the answer. D.S. PROSECUTOR I do not have any affidavit dated October 5, but with respect to the affidavit they want me to produce I want that that affidavit be described what is that. ATTY. ABESAMIS But Your Honor, it is already sufficiently described, the affidavit executed by this witness on October 5. COURT How about on October 20? ATTY. PABLO And December 14, Your Honor.

D.S. PROSECUTOR I would not answer that, Your Honor, unless it is described. ATTY. ABESAMIS We would like to make it appear on record, Your Honor, by the actuation of the Honorable District State Prosecutor construes a suppression of the evidence, a suppression of a very vital evidence which the defense has been demanding pursuant to the rule on discovery as sanctioned under our rules of court. We will proceed, Your Honor. D.S. PROSECUTOR May I state also a manifestation that it could not be suppression if it came from the mouth of this witness. The witness is present. You can ask him, so it could not (be) suppression of evidence. (pp. 73-75, Id.) Then came the inexplicable ruling of the court: COURT Well those are manifestations only of counsel. You give the basis for the Court to compel the Fiscal to produce such document. Up to now there is no basis. I think, the Fiscal would want to describe that affidavit. He does not like to fish. All right, continue. (pp. 76,Id.) Not only that, in its decision, the trial court reasoned out thus: But it is not all rosy with the testimony of Miguel Padrones. Like all other witnesses of the same capabilities he suffers from a poor memory as regards remembering dates of events and faces of persons whom he occasionally saw and met. The records is replete of incidents showing the poor memory of the witness as regards the exact dates of events and the faces of persons he met. The following instances will show that while in the witness stand he was asked the following: 'Do you remember where were you on June 23, 1971 between the hours of four o'clock in the afternoon?' His answer was: 'I was in the residence of Atty. Perez.' It may be noted that June 23, 1971 was the date of the commission of the crime and the same date was included in the question. But when he was asked again on cross examination the date of the commission of the crime, he answered that he could not remember but if he would be allowed to refer to his affidavit he could answer the same. It was only when he was snowed to refer to his affidavit that he came to know that the crime was committed on June 23, 1971. Again, he was asked when on October 5 he was arrested, and he answered that he did not know other than that it was after lunch. There was much confusion with regard to the execution of the affidavit of Padrones on October 5. The Court believes that there was no such affidavit executed on October 5, 1971. The confusion came up only when Padrones was asked when he was arrested and he answered on October 5. In answer to the subsequent questions he answered that he was brought before Judge Alfin Vicencio, the city judge, now the Honorable Judge of the Court of First Instance of Masbate. Then the defense assumed in the following questions that the investigation took place on October 5 and that this affidavit was taken on the same date, to which the accused answered in the affirmative. Whether the accused realized the truth of his answer or not, the Court has its doubts, upon which it based its conclusion that this witness has a poor memory as to dates of events. Capitalizing on this weakness of the witness, the defense confined its cross examination on the several affidavits supposedly executed by Miguel Padrones on October 5 and 20. But Padrones denied vehemently that after that investigation of October 5 he made any affidavit except that given by him to Corporal Viloria on October 20, 1971, which the latter offered to show to the defense (referring to the affidavit of December 14, 1972). The District State Prosecutor also denied possession of the affidavit of October 5 of Miguel Padrones. The defense, to strengthen its position, manifested that the affidavit of October 5 was

lost and that this could be confirmed by Atty. Fidel Taguiam, counsel of one of the defendants; but Atty. Taguiam was never presented in court to confirm or deny the same. The Court honestly believes that there was no such affidavit ever executed on October 5, 1971 and that the witness might be referring to the affidavits executed by him on October 20, 1971 (Exhibit "2" Relucio) and on December 14, 1972 before the District State Prosecutor. To further Justify their actuations, the defense called on to the witness stand the former Cabanatuan City Judge Alfin Vicencio, now the presiding judge of one of the branches of the Court of First Instance of Masbate. His Honor testified that he remembers one Miguel Padrones to have executed an affidavit before him on October 5, 1971, but that he had only a general Idea of its contents. The defense got what it wanted to get from the lips of His Honor, Judge Alfin Vicencio and i.e., that it was only accused Miguel Padrones who shot and killed the deceased victim Gonzalo Talastas when the latter caught up with him near the Retelco building. As a whole, His Honor wanted this Court to believe that only Miguel Padrones shot and killed Gonzalo Talastas and that his co-accused Federico Relucio and Rosendo Velasco were not with Padrones when he killed said deceased victim. To this testimony of His Honor, it is regrettable to state that he failed to state at least, all the substantial contents of the said affidavit, assuming that there was really an affidavit of October 5 executed by Miguel Padrones. Human as we all are, it is unavoidable for our minds to slip, particularly as regards the dates, considering the length of time and the work that confronted His Honor, the Honorable Alfin Vicencio. (Pp. 107-110, Appendix A, Appellant's Brief.) Such ratiocination is strange, to say the least. The record shows that His Honor himself asked: COURT q Do you know the date when the statement was made? a It was on the 5th, sir. q Of October? a Yes, sir. COURT Proceed. (t. t.s.n., p. 77, hearing of January 1973) As can be seen, seemingly there was a deliberate and concerted intent to prevent the impeachment of Padrones, except that the prosecutor failed to realize that with his omission to object to the testimony of Judge Vicencio, all his transparent moves to suppress the presentation of the statement of said witness of October 5, 1972 would come to naught. The record reveals only too plainly that several recesses were allowed by His Honor at critical stages of the cross-examination for the obvious purpose of affording the witness opportunity to adjust his testimony with the help of the prosecutor that with his being already released after his discharge on January 4, 1972 so much so that after the spirited skirmishes between defense counsel and the prosecutor when the session of January 4, 1972 was to end, the significance of which could not have been lost to him, at the resumption of the trial on February 12, 1972, the witness tried to sing a different tune. As to be expected, he came out with the theory that the statement given by him before Patrolman Corporal Viloria on October 5, 1972 was actually signed by him on October 19 or 20, 1972 before Fiscal del Rosario thus: COURT: Q Are you sure that your statement was taken on the 5th of October? A Yes, sir. Q So Sgt. Viloria has taken two affidavits from you? A It was only on the 5th, sir.

Q How many times did that Sgt. Viloria taken your statement? A It was only the time when I was apprehended, sir. Q And when was that time when you were apprehended? A On the 5th, sir. Q Why is there now an affidavit subscribed and sworn to before Fiscal Del Rosario dated October 19? A It was there at the City Court where I was made to sign my statement, sir. Q When was that? Refer to your affidavit to refresh your memory, A (Witness reads Exhibit" 2-A.") Maylaska question. Q Read it all. ATTY. PABLO: May we make of record that the State Prosecutor is instructing the witness to read the contents of the statement before the witness could be guided by this Honorable Court that he read the said affidavit. COURT: Now what is your question, Mr. Padrones? A Because, this morning I was being asked by them whether I was made to sign before Viloria, but they are not asking me whether I have signed before the Fiscal, sir. Q What do you mean? Explain further. A Only about that question whether I was made to sign before Viloria that is why I answered yes. But it was not asked of me whether I was made to sign before Fiscal Del Rosario, sir. ATTY. ABESAMIS: Q So you mean to tell the Honorable Court is that your affidavit dated October 5,1972 was signed before Police Cpl. Viloria? A It was only before the city hall that I affixed may signature, sir. Q Precisely that affidavit of yours dated October 5, 1972 was signed by you before Judge Vicencio, is that correct? A Before Del Rosario, sir. Q So the affidavit dated October 5, 1972, for purposes of clarification only, Your Honor, was signed by you before Fiscal Del Rosario?

A Yes, sir. Q What is that affidavit which you signed before Judge Vicencio and that is included in your cross examination before on January 4, 1973? A It came from the City Court, sir. Q That was not on October 5, 1972? A I do not know, sir, whether it was the one. COURT: Q The question is what is that affidavit that you subscribed and swore to before Judge Vicencio, if you have any? A I do not remember that affidavit, sir. What I remember I only signed before Fiscal Del Rosario, sir. Q So you do not recall having signed any statement before Judge Vicencio? A In the City Court I do not remember having signed any affidavit before Judge Vicencio, sir. Q In any other place do you remember having signed any affidavit before Judge Vicencio? A None, sir. Q You are sure? A I remember nothing, sir. Q You do not remember or you do not even recall that you were presented before Judge Vicencio by Police Cpl. Viloria? PROSECUTOR: We request that the witness be shown any statement to that effect, if there is any. COURT: He is testing the credibility of the witness. ATTY. ABESAMIS: Q When you testified here on January 4, 1973 you said following which I am reading from the transcript of the stenographic notes taken during January 4, 1973 hearing ... PROSECUTOR: It seems the witness is confused about his affidavit.

ATTY. ABESAMIS: The witness, Your Honor, is not confused; the witness is lying. COURT: Proceed. ATTY. ABESAMIS: I will read from your testimony during the trial of January 4, 1973, specifically the questions and answers found on page 68, which I quote: In what connection were you investigated by Viloria? A. Regarding the case of Gonzalo Talastas, sir. Q. Did you sign that written investigation? A. Yes, sir. Q. Also on October 5, 1972? A. I was brought before the person of Judge Vicencio, sir. Q. But you have not answered my question. My question to you was, did you sign that typewritten of Viloria also on October 5, 1972? A. Yes, sir, he signed it before the judge. Q. On October 5, 1972? A. Yes, sir. And Your Honor, on page 76, 1 read the following questions and answers: Q. Who was carrying the typewritten investigation when you were brought before the judge on October 5,1972? A. Viloria, sir. Q. After coming from the place of Judge Vicencio who was carrying that statements? A. Viloria also, sir. Q My question now, Mr. Witness, is will you insist that you were never brought before Judge Vicencio in order to swear, to sign and to subscribe your statement in connection with this case since the beginning? A I do not remember, sir. What I remember is I signed it before Fiscal Del Rosario, sir. COURT:

Q Then why did you assure counsel for the defense before the court that you were presented before Judge Vicencio, during our hearing of January 4, 1973? A I do not remember having been asked that question, sir. Q It was asked of you and the court also remembers that question asked of you. Will you now insist that you were never brought before Judge Vicencio in connection with this case? A I cannot comprehend the question, sir. Q What do you not comprehend? A Regarding that point that I was brought before the judge, sir. Q But when you were asked by counsel about that fact on January 4, 1973 your mind was clear then, is it not? A I do not remember whether I was brought before Judge Vicencio, sir. Q You know very well Judge Vicencio before that date? A I know him to be in the City Court, sir. He was being pointed to me by the police, sir. Q My question is do you know Judge Vicencio personally before that date'! A Yes, sir. Q What about Fiscal Del Rosario, you know him also personally A Yes, sir. COURT: Continue. ATTY. ABESAMIS: We request also, Your Honor, that pages 68 and 69 of the transcript of the stenographic notes of the trial dated January 4, 1973 be marked as Exhibit '3 Impeachment-Relucio' and the bracketed portion be marked as Exhibit '3-AImpeachment-Relucio.' COURT: Mark it. (t.s.n., pp. 23-31, hearing of February 12, 1973) His Honor continued asking questions as the witness was already faltering, until finally, to save him, the session was adjourned: Q What day were you arrested? A On a Friday, sir.

Q That was on October 5, 1972? A Yes, sir. Q So, that coming Monday you were brought before Fiscal Del Rosario? A Yes, sir. Q Are you sure of that? A Yes, sir. Q Do you remember if you signed this affidavit before Fiscal Del Rosario? A It was only the statement which I swore to that I remember, sir. Q Did you see Fiscal Del Rosario sign his name? A Yes, sir. Q You do not remember if you signed the affidavit before Fiscal Del Rosario? A I signed, sir. Q What pen did you use? The pen of Fiscal Del Rosario or some other kind of pen? A I do not remember whether I used the same pen used by the Fiscal, sir. I remember only that I borrowed a ball pen placed on the table of the Fiscal, sir. Q But you said you signed that statement of yours before Policeman Viloria, do you recall that now? A I do not remember whether I was able to sign that or not, sir. Q Are you tired already? A My head is aching, sir. COURT: All right, we will adjourn this hearing and continue tomorrow, as previously scheduled. At any rate it is already twelve o'clock noon. (pp. 35-36, Id.) At this point, it must be noted that Exhibit 2-A, the statement which Padrones claimed above to have been admittedly taken by Viloria on October 5, 1972 but, supposedly signed by him later and not on the same day before Judge Vicencio as he had previously stated, bears the following heading: SINUMPAANG SALAYSAY NI MIGUEL PADRONES y ESPEJO SA PAGTATANONG NI P/CPL J. S. VILORIA DITO SA HIMPILAN NG PULISYA NG KABANATUAN NGAYONG IKA-19 NG OKTUBRE 1972 SA GANAP NA IKA 5:15 NG HAPON... and ends with the following jurat:

NILAGDAAN AT PINANUMPAAN sa aking harap ngayong ika 20 ng Oktubre 1972, dito sa Lunsod ng Kabanatuan. With the dates October 19 and 20 thus appearing in this statements, how could there be any proximity to the truth in the assertion of Padrones that his statement was first taken by Viloria on October 5, 1972 and that it was signed by him before Fiscal del Rosario on October 19, 1972 and that it was the very statement he had been referring to earlier as having been signed by him before Judge Vicencio? And then, at the session of February 13, 1972, he tried to foist upon the court another theory: COURT: I was the one asking questions yesterday to the witness. Let me finish my questioning of this witness. Q So that the court understands from you that you have only executed two affidavits in connection with this case, one was taken from you by Cpl. Viloria of the Cabanatuan City police department; and the second was taken before District State Prosecutor Copuyoc, is that right? A No, sir, it is on the 19 th; the third is on the 4th. Q So you have three affidavits taken in connection with this case, is that it? A The one taken by Viloria which was subscribed before Fiscal Del Rosario, sir. Q Yes, and the other one taken is that one taken by Fiscal Copuyoc? A Yes, sir. Q I did not mention any dates, remember. A Yes, sir. Q I repeat again. Your mind is not yet confused this morning? A Yes, sir. Q The first affidavit was taken before Cpl. Viloria of the city police and subscribed and sworn to before Fiscal Del Rosario? A Yes, sir. Q And the second was the one executed before District State Prosecutor? A Yes, sir. Q You have not executed any other affidavit in connection with this case before any administering officer? A None, sir. COURT:

Continue. ATTY. ABESAMIS: Q In answer to a question propounded by the Honorable Court you said that your third affidavit was on the 4th, do you remember having said that? A It was here that I swore, sir. Q To an affidavit? A Being a witness, sir. Q So when you executed a third affidavit on the 4th you merely refer to your declaration made in open court on January 4, 1973? A I cannot comprehend very well what is affidavit, sir. Q Did you make a written statement in connection with this case on the 4th? COURT: Fourth of what? ATTY. ABESAMIS: Q On the 4th of your testimony? COURT: Fourth of what month? Be specific, let us be fair with the witness, especially with his kind of mentality. (t.s.n., pp. 38-41, hearing of Feb. 12, 1973.) Only to fall back at the trial on February 19, 1973 on his original version that Viloria accompanied him before Judge Vicencio: ATTY. ABESAMIS: q You having stated before this Honorable Court on January 4, 1973 under oath that you were accompanied by Viloria in order to swear to one of your statements and another policeman whom you do not know, will you still insist that you were never accompanied by Viloria? a When I signed before Fiscal del Rosario, Viloria was not with me, sir. q When was Viloria with you? a It was on the 5th, sir. q Before whom? a Before Judge Vicencio, sir. q Where?

a In the city jail, sir. (pp. 13, 14, Id.) We have taken pains to quote above several portions of the transcript of the stenographic notes of the proceedings in the court below even at the risk of unduly extending this opinion and there are actually many more of similar tenor that can be mentioned in order to bring out in bold relief how Padrones, the state witness who was freed from prosecution by the fiscal and the trial court played fast and loose with the truth in the course of his lengthy testimony. How unfounded indeed is His Honor's laudation of Padrones in the decision under review to the following effect: This Court has been extra careful in the analysis and appreciation of the evidence in question, particularly that of the two principal witnesses for the prosecution, namely: Crispin Angeles and Miguel Padrones. The latter having been discharged as prosecution witness he cannot escape, of course, like all accused similarly situated the imputation that he was allowed to be discharged from the information only for one basic reason, i.e., to escape criminal responsibility. The discharge of one or two accused is allowed by law in consideration of justice and truth with the injunction to the discharged accused to testify to the truth and run the risk only of being recalled and included in the information again should he refuse to live up to his commitment to the prosecution. That injunction is the consideration that compels the discharged accused to toe the line. Nevertheless, the Court has been scrupulously and judiciously wary over the conduct, behavior and testimonies of this particular witness, Miguel Padrones. Even his means of walking from the place where he was seated to the witness stand and his return to his seat did not escape the vigilance of this court. As Padrones was called to the witness stand for several times the Court observed that he walked in a natural manner, as if he was to face nobody. He answered the questions immediately if he understood them and if he did not he asked the interpreter to repeat the same; he answered the questions without hesitation or nervousness. In fine, he took everything in his stride, and one noticeable behavior which he has shown the Court was when he answered questions the said witness looked straight to the Court and lowered his eyes only after he has answered the same. This Court went further into his educational attainment and he admitted he was only a second grader. He made no bones about his educational background. The Court believes he has acquired a very low standard of education, otherwise, he would not be a willing tool of the accused Federico Relucio who, together with him in that afternoon of June 23, 1971 purposely went to the Capital theater to kill Gonzalo Talastas. He showed his blind loyalty to Relucio as a friend, if the Court were to believe the theory of the defense. But, of course, the testimonies of Relucio and his wife on this point were of doubtful efficacy. According to the defense and this is admittedly true, Miguel Padrones was a member of the BSDU and at one time a security guard. As person belonging to a unit of the BSDU was fighting the dissidents, while being a security guard helps the police authorities to maintain peace and order in a given place, so that by the nature of the work of Miguel Padrones, he is working for, with and by the side of the law. Notwithstanding his low educational attainment there was not even a record of conviction offered by either the prosecution or defense. Under these circumstances attributed to the same witness, what more can a court of justice expect from an ignorant and sincere witness like Miguel Padrones? (Appellant's Brief, pp. 104-106.) Such unusually elaborate but obviously unmerited encomium given a discharged state witness could have no other purpose than to induce the appellate court to reply implicitly on the findings in the decision. There is more than meets the eye here in the actuations of the district state prosecutor who handled the case for the People, and regrettably, the trial court was apparently carried away by his antics to the point that His Honor came to seemingly join in the effort to concoct the obvious falsehood that Padrones did not swear to a statement about the incident in question before Judge Vicencio on October 5, 1972. Judge Vicencio was city judge then of Cabanatuan City and at the time of the trial was already presiding in the Court of First Instance of Masbate. He declared under oath: Atty. Abesamis Q Sir, you said that you are the encumbent CFI judge of Masbate, when did you assume that office? A I assumed office on May 21, 1973 and I took my oath on May 16, sir. Q Before that date Sir what was your occupation?

A I was the city judge of Cabanatuan City presiding over Branch 1, sir. Q On October 5, 1972 were you still the City judge of Cabanatuan City presiding over Branch I of the said court? A Yes, sir. Q And as City judge of Cabanatuan City on October 5, 1972 it was your duty to administer all oaths of affiants on their respective statements is that correct? A Yes, sir. Q Now, sir, I would like to inform you that a certain Miguel Padrones alias Ige testified before this Honorable Court as a witness for the prosecution on January 4, 1973 and among others, he said the following: that he was arrested by the Cabanatuan City Police Department on October 5, 1972 in the afternoon thereof; that he was formally investigated by the police department of Cabanatuan City and that his statement was taken by a certain Cpl. Julio S. Viloria on the same date October 5, 1972 page 68 of the transcript of the stenographic notes of the testimony of Miguel Padrones on January 4, 1973. After Padrones made that declaration before the Honorable Court, the defense asked for the production of that affidavit which he allegedly executed on October 5, 1972 but the Honorable District State Prosecutor said that he did not have it in his possession and the manifestation of the District State Prosecutor is page 71 of the transcript of the stenographic notes of the same hearing. He likewise stated that he signed his affidavit of October 5, 1972 on the same date before you. However, during the hearing of February 12, 1973 before this Honorable Court the same Padrones declared under oath that Ms affidavit dated October 5, 1972 was signed by him before Fiscal del Rosario of the Office of the City Fiscal of Cabanatuan City pages 25-26 of the transcript of the stenographic notes, February 12, 1973, and he said categorically that he does not remember having signed any statement before Judge Vicencio in the city court nor in any other place for that matter page 26 t.s.n. February 12, 1973 which we have exerted efforts to locate that alleged statement of Miguel Padrones executed on October 5, 1972 but we failed to do so. Now, on the basis of this will you please tell us sir whether or not on October 5, 1972 a certain Miguel Padrones alias Ige had appeared before you in order to swear to a statement given by him before Cpl. Viloria on the mm date October 5, 1972? A I remember this Miguel Padrones accompanied by policeman Viloria and del Rosario. They went to my residence at Gen. Tinio street and they sat in the terrace of my residence. It was there when I asked to administer the oath to Mr. Padrones, sir. Q That was sir in the afternoon of October 5, 1972? A It was late in the afternoon of that date, sir. Q Now since that affidavit could not be retrieved and could not be found despite efforts exerted by the defense to look for the same, can you tell us sir the contents in brief of that statement of Miguel Padrones alias 'Ige'? A I can give you a general Idea of the statement, sir. Q Yes, sir, please state. A Padrones stated among others that he is Ige mentioned in a warrant of arrest with respect to the death of a certain Gonzalo Talastas. I believe it was then that

he stated that Gonzalo Talastas shot a certain Federico Relucio inside the Capital theater and that, he, Padrones chased this Talastas along Burgos Avenue and caught up with him in front of the former Retelco office at Burgos Avenue and then he shot this Talastas, sir. Q What else did he state in that statement? A Well that is the general idea that I recall that he chased Talastas and he shot him until he died, sir. Q Did Padrones state in that affidavit where he left Federico Relucio after Relucio was shot by Talastas inside the Capital theater and after Padrones had chased Gonzalo Talastas? A I do not remember Padrones having made any statement except that according to him, Talastas shot Federico Relucio inside the Capital theater and that on his part, he chased Talastas along Burgos Avenue caught up with him in front of the former Retelco office that is the residence of the late Judge Cecilio then he shot Talastas, sir. Q Did Padrones as far as you could recall mention in that affidavit his companions in chasing and shooting Gonzalo Talastas? A I do not remember any other name except him, Talastas and Relucio. Those are the names that I remember. Q Do you remember if Padrones had ever mentioned in that statement of his the name of Rosendo Velasco alias "Mangyo"? A No, sir, I do not remember that he ever mentioned. Atty. Abesamis: That is all, your honor. Court: Cross Fiscal: No cross examination, your honor. (t.s.n., pp, 28-35, hearing. of July 25, 1973.) For the trial court to hold in its decision under review, in the face of this solemn testimony of a fellow member of the judiciary of equal rank, as against the wavering and fast changing declarations of a discharged accused, that "it is regrettable to state that he (Judge Vicencio) failed to state at least the substantial contents of said affidavit, (the statement of Padrones before him of October 5, 1972) assuming that there was really an affidavit of October 5 executed by Miguel Padrones. Human as we all are, it is unavoidable for our minds to slip particularly as regards the dates, considering the length of time and the work that confronted His Honor, the Honorable Alfin Vicencio" is purely a slanted rationalization and an unexcusable display of uncommon naivety truly unbecoming of a judicial trier of facts. This observation is also justified by His Honor's own admission that: But it is not all rosy with the testimony of Miguel Padrones. Like all other witnesses of the same capabilities he suffers from a poor memory as regards remembering dates of events and faces of

persons whom he occasionally saw and met. The records is replete of incidents showing the poor memory of this witness as regards the exact dates of events and the faces of persons he met. The following instances will show that while in the witness stand he was asked the following: 'Do you remember where were you on June 23, 1971 between the hours of four o'clock and five o'clock in the afternoon?' His answer was: 'I was in the residence of Atty. Perez.' It may be noted that June 23, 1971 was the date of the commission of the crime and the same date was included in the question. But when he was asked again on cross-examination the date of the commission of the crane, he answered that he could not remember but if he would be allowed to refer to this affidavit he could answer the same. It was only when he was allowed to refer to this affidavit that he came to know that the crime was committed on June 23, 1971. Again, he was asked when on October 5 he was arrested, and he answered that he did not know other than that it was after lunch. (Appellant's Brief, p. 107). In other words, His Honor could excuse the supposed lapse of memory of a discharged accused, while he would condemn a supposedly similar fault in the testimony of a judge. We hold that, contrary to the unwarranted and incomprehensible finding of His Honor, the evidence on record conclusively establishes that Padrones did give to Patrolman Corporal Viloria of the Cabanatuan City Police on October 5, 1972 immediately after his arrest, his own account of what happened in the afternoon of June 23, 1971 at the Capital Theater and subsequently near the Old Republic Telephone Company in Cabanatuan City that led to the death of Gonzalo Talastas and that he signed and swore to said statement before Judge Alfin Vicencio, then of the City Court of Cabanatuan City, that same day to whom he was brought by the same Patrolman Corporal Viloria. We consider the attitude shown in the premises by District State Prosecutor Mariano D. Copuyoc of feigning ignorance of Annex A and attempting to foist upon the court the theory that Exhibit 2-A was the one given by Padrones on October 5, 1972, to be lacking in candor to the court and prejudicial to the interests of justice. Likewise, the circumstances under which Exhibit 2-A, the supposed statement of Padrones bearing two dates, October 19 or 20, 1972, and supposedly signed before Fiscal del Rosario, came into being need to be inquired into, there being indications from the circumstances We have found home by the record that it is not of regular origin. We further hold that the trial court committed a reversible error in not giving due course to the motion for reconsideration and/or new trial of the defense dated April 16, 1974, if only for the purpose of delving deeper into the execution of Annex A thereof, which appears to be the statement given by Padrones on October 5, 1972 to Patrolman Corporal Viloria and which he signed and swore to before Judge Vicencio, wherein Padrones categorically confessed that he, and not appellant Velasco, was the one who chased and shot to death Gonzalo Talastas during the incident here in question, thus: SINUMPAANG SALAYSAY NI MIGUEL PADRONES Y ESPEJO SA PAGTATANONG NI P/CPL J S VILORIA DITO SA HIMPILAN NG PULISYA NG KABANATUAN NGAYON IKA 5 NG OKTUBRE 1972 SA GANAP NA IKA 5:15 NG HAPON... . 01. TANONG: Ito ay isang pagsisisyasat ipinaaalata ko saiyo ang iyong karapatan na itinatadhana ng Saligang Batas ng Bansang Pilipino na ang sino man ay hindi maaaring piliting magbigay ng ano mang pahayag at kung magbibigay man ay maaari namang gamitin ng laban saiyo sa alin mang Hukuman, ikaw ba ay handang sumagot sa mga itatanong saiyo? SAGOT: Opo. 02. T: Ano ang iyong pangalan at iba pang pagkakailanlan saiyo? S: MIGUEL PADRONES Y ESPEJO, 43 taon, may-asawa, manggagawa sa NIA, Talipapa, Kabanatuan. 03. T: Ano ang iyong palayaw? S: IGI po. 04. T: Ano ba ang dahilan al narito ka sa Himpilan ng Pulis? S: Ako po ay kasalukuyang napipiit sa isang usapin.

05. T: Aling asunto ang iyong kinasasangkutan? S: Iyon pong pagkapatay kay ALONG. 06. T: Kailan napatay si ALONG? Buan po ng Hunyo 1971. 07. T: Saang lugar napatay si ALONG? S: Duon po sa Burgos, Kabanatuan malapit sa dating "Republic Telephone". 08. T: Papaano napatay si ALONG? S: Sa barilan po. 09. T: Sino ang tao o mga taong kabarilan ni ALONG? S: Ako po. 10. T: Maliban sa iyo, wala na bang iba pang tao o mga taong kasama sa pakikipagbarilan kay ALONG? S:. Wala na po. 11 T: Isalaysay mo nga ang buong pangyayari . S: Si RELUCIO at saka ako ay nagpunta sa bahay ni Atty. PEREZ sa Gen. Tinio, Kabanatuan at pagdating namin duon ay nabalitaan ni RELUCIO na si ALONG ay nasa loob ng cine 'Capital'. 12 T: Sa nabalitaan ni RELUCIO na tungkol kay ALONG ano pa ang nangyari, kung mayroon man? S: Inaya po ako ni RELUCIO at sumakay kami sa tricycle at nagpunta kami sa malapit sa cine 'Capital'. 13. T: Nuong dumating kayo sa may cine 'Capital ano ang inyong ginawa? S: Pumasok si RELUCIO sa cine samantalang ako ay naghintay sa labas ng cine. 14. T: Nuong makapasok si RELUCIO sa loob ng cine Capital ano ang nangyari? S: Hindi po nagtagal ay nagkaroon ng mga putok sa loob ng cine. 15 T: Matapos kang makarinig ng mga putok ano ang iyong nakita? S: Lumabas po si ALONG. 16. T: Saan nagtuloy si ALONG? S: Nagtatakbo po siyang patungong hulo.

17. T: Ano pa ang nangyari nuong tumakbo si ALONG? S: Sinundan ko po si ALONG sa pamamagitan ng paghabol sa kanya. 18. T: Inabutan mo ba si ALONG? S: Inabutan ko po sa malapit sa dating Tanggapan ng 'Republic Telephone'. 19 T: Ano ang nangyari ng abutan mo si ALONG? S: Nagbarilan po kami. 20. T: Ano ang baril ni ALONG ? S: 45 calibre po. 21. T: Matapos ang putukan saan ka nagtuloy? S: Umuwi na po ako sa amin. 22. T: Si ALONG ano ang ayos ng iyong iwan? S: Patay na po. 23. T: Ano ba ang nagudyok sa iyo upang ipahayag sa akin ang iyong salaysay na ito? S: Gusto ko pong maliwanagan ninyo ang pangyayari sa pagkamatay ni ALONG. 24. T: Ano ang ipinamaril mo kay ALONG? S: Carbine at calibre 45 po. 24. T: Wala na akong itatanong mayroon ka pang nais sabihin? S: Wala na po. 25. T: Lalagdaan mo at panunumpaan ang inyong salaysay na ito patotoo at pagpapatibay sa iyong sinabi? S: Opo. (Nilagdaan) MIGUEL PADRONES NILAGDAAN AT PINANUMPAAN sa aking harap ngayong ika 5th ng Oktubre, 1972, sa Lunsod ng Kabanatuan. (Nilagdaan) ALFIN VICENIO City Judge (Pp. 509-610, Record.) Indeed, in the light of all the foregoing, We can safely say that with the testimony of Judge Vicencio, the evidence against appellant Velasco coming from the lips of Padrones is not entitled to any credit at all. And there is even no need for the new trial prayed for by the defense. In the premises, such a proceeding would obviously be superfluous. - 3-

With the disgusting character of the prosecution's evidence against herein appellant Velasco We have disclosed above, and Our ineludible conclusions against the evidentiary value of the testimonies of Crispin Angeles and the discharged defendant Miguel Padrones, it goes without saying that the charge of murder against said appellant has no leg to stand on. Accordingly, We find no need to elucidate on the other evidence on record, which, to be sure, based on Our careful study thereof could absolve him just the same, We have no alternative but to reverse the judgment of conviction of the trial court, for lack of any evidence to support the same. WHEREFORE, the decision of the trial court under review is hereby reversed and the appellant Rosendo Velasco is acquitted and ordered immediately released from custody unless there is any reason for his further detention other than this case, with the corresponding portion of the costs de officio. Let copies of this decision be furnished the Minister of Justice and the Provincial Fiscal of Nueva Ecija, for their information and guidance relative to the actuations of Special District Prosecutor Copuyoc and Fiscal del Rosario discussed in the above opinion. Fernando (Chairman), Antonio, Concepcion, Jr. and Santos, JJ., concur. Aquino, J., took no part.
G.R. No. L-26247 JUAN YSMAEL & CO., INC., plaintiff-appellant, vs. NAGEEB T. HASHIM and AFIFE ABDO CHEYBAN GORAYEB, defendants. AFIFE ABDO CHEYBAN GORAYEB, appellant. M.H. de Joya, Felipe Ysmael and Claudio R. Sandoval for plaintiff-appellant. Gibbs & McDonough and J.E. Blanco for defendant-appellant. Ostrand, J.: The complaint in the present case sets forth two causes of action.For its first cause of action the plaintiff alleges, in substance, that the defendant Nageeb T. Hashim on September 21, 1916, executed a chattel mortgage in favor of said plaintiff for the sum of P13,160.87, with interest at 8 per cent per annum, the mortgage falling due on September 21, 1917; that the said defendant having failed to make payment in accordance with the terms agreed upon, the chattel mortgage was foreclosed and the mortgage property sold by the sheriff on January 15, 1921; that the proceeds of the sale amounted to the sum of P2,100 only, thus leaving a balance of P11,060.87, which, with thecorresponding interest at the rate of 8 per cent per annum from September 21, 1916, until January 9, 1925, now amounts to the sum of P19,134.32, for which amount judgment is prayed. For the second cause of action, the plaintiff alleges that the defendant Nageeb T. Hashim has been indebted in the sum of P14,646.47 to the Hashim Commercial & Trading Company, Ltd., a limitedcopartnership, organized under the laws of the Philippine Islands and that, for good and valuable consideration, the said Hashim Commercial & Trading Company, Ltd., assigned the amount due it on saidindebtedness to the plaintiff on October 3, 1921, together with its other bills receivable, fixtures, cash on hand in banks, and its entire stock of goods; that the plaintiff has in vain demanded payment from the defendants and now asks judgment against them for said sum of P14,060.47. The plaintiff also prayed for a writ of attachment of the property of the defendants, which prayer was granted. The defendant Hashim in his answer admits all of the allegations of the complaint and consents to the rendition of the judgment in conformity therewith. The defendant Afife Abdo Cheyban Gorayeb in her answer admits that the plaintiff is a corporation duly organized and existing under the laws of the Philippine Islands and that thedefendants are huband and wife, but deny all other allegationscontained in the complaint and set up as a special defense that the action is the result of

a conspiracy between Hashim and his relations, the stockholders is Juan Ysmael & Co., Inc., to defraud her of the alimony granted her in civil case No. 19115 of the Court of First Instance of Manila. She also alleges that she has suffered damages in the sum of P20,000 by reason of the preliminary attachment upon said real property belonging to her exclusively. Upon trial the Court of First Instance rendered judgment in favor of the plaintiff for the full amount demanded under the first cause of action, but dusmissed the second cause of action on the ground that the plaintiff had failed to show that the credit upon which said cause of action is based had been legally assigned to it. Both the plaintiff and the defendant Gorayeb appealed from this judgment. The plaintiff-appellant assigns as error the finding of the trialcourt that the indebtedness of the defendant Nageeb T. Hashim to the Hashim Commercial & Trading Co., Ltd., in the amount of P14,646.47, was assigned by the latter to the Asia Banking Corporation and not to the plaintiff Juan Ysmael & Co., Inc., and that the court likewise erred in dismissing the second cause of action alleged in the complaint. This contention is principally based on a resolution of the stockholders of the Hashim Commercial & Trading Co., Ltd., adopted on October 3, 1921, the last three paragraphs of which reads as follows: Whereas, Messrs. Juan Ysmael & Co., Inc., owners of 1678 shares of the stock of this company, have arranged for the suspension of the foreclosure proceedings began as mentioned above, and agree to assume the obligation of this company with the Asia Banking Corporation as stated in the deed dated March 8th, 1921, on condition that this company transfer to Juan Ysmael & Co., Inc. its entire stock of goods, cash on hand and in banks, bills receivable, fixtures, and to have access to the books whenever required by them; Now, therefore, be it resolved that Mr. A. T. Hashim, President and General Manager of this company, be and hereby is, authorized in an irrevocable manner to transfer in favor of Messrs. Juan Ysmael & Co., Inc., its entire stock of goods, cash on hand and in banks, bills receivable, fixtures and to have access to the books whenever required by them; and be it further. Resolved that the said Mr. A. T. Hashim be and hereby is authorized in an irrevocable manner to execute, acknowledge, and deliver all such documents and intruments in writing as may be necessary to effectuate the foregoing purpose. It does not appear that the assignment authorized by this resolution was ever made and on November 2, 1921, the same stockholders, together with Juan Ysmael & Co., Inc., also a stockholders, adopted another resolution which practically revoked the resolution of October 3, 1921 and which reads as follows: Whereas, on October 3rd, 1921, A. T. Hashim was authorized by the stockholders of Hashim Commercial & Trading Co., Ltd., to transfer the entire stock of the Company, cash on hand, bills receivable, and fixtures, to Juan Ysmael & Co., Inc., and Whereas, subsequently, it appeared advisable to A. T. Hashim that the transfer of said stocks of goods, etc., should be made to the Asia Banking Corporation, who would then make Juan Ysmael & Co., Inc., its agent, for the purpose of disposing the same, and

Whereas, a transfer was made to the Asia Banking Corporation, in the form of an agreement entered into between the Asia Banking Corporation, Juan Ysmael & Co., Inc., and Hashim Commercial & Trading Co., Ltd., thru their proper representatives, on the 31st day of October, 1921. Now, therefore, be it resolved that the transfer made by A. T. Hashim, as aforesaid, to the Asia Banking Corporation, of all goods, wares and merchandise, as per said agreement, be and the same approved, and transfer ratified. As will be seen the only assignment actually effected was that to the Asia Banking Corporation. The court below was, therefore, justified in dismissing the second cause of action and if so, the plaintiffs second assignment of error to the effect that the bond in the sum P20,000 fixed by the court below for the discharge of the writ of attachment was inadequate, is also without merit. We may say in passing that the authorities cited in support of the first assignment of error have reference to equitable assignments and are not in point. Upon the facts shown by the record, Juan Ysmael & Co., Inc. might, perhaps, have compelled the Hashim Commercial & Trading Co. to execute an assignments of the credit in controversy, byt it does not follow that the same facts would constitute a valid assignment as against third parties and that the prospective assignee may maintain an action against the debtor for the collection of the credit without a formal assignment of such dredit. The debtor has the right to demand that the person who sues him for the debt shall be the real party in interest and shall show a valid title to the chose in action; a mere equitable right to the assignment thereof is not sufficient. Both under article 51 of the Code of Commerce and under paragraph 6 of article 1280 of the Civil Code, a formal assignment of a credit of over three hundred pesos must be in writing. The formalities for sales of choses in action are governed by paragraph 4 of section 335 of the Code of Civil Procedure. The defendant-appellant makes the following assignments of error: I. The trial court erred in rendering judgment upon the first cause of action in favor of the plaintiff and against the defendant and appellant, jointly and severally, with her husband A. T. Hashim for the sum of P19,134.32, with interest on P11,060.87 thereof at 8 per cent per annum from the 10th day of January,1925. II. The trial court erred in prohibiting appellant from inquiringinto the details of the account set forth in Exhibit 3. III. The trial court erred in refusing to receive the testimony of the defendant N. T. Hashim, that of A. T. Hashim, and that of K. N.Hemady in the former action No. 19569 (G. R. No. 21345). IV. The trial court erred in preventing defendant and appellant from representing proofs in support of the allegations of her answer and special defenses. There is some merit in all of these assignments, except the third. The court below undoubtedly erred in denying the defendant-appellant the opportunity to inquire into the sources of the entries found in the plaintiffs books of account in relation to the indebtedness of the defendants; the fact that such sources might have been examined in civil case No. 19569 of the Court of First Instance of Manila cannot be regarded as a bar to a reasonable inquiry into the character of the debt in the present case. The issues in the two cases are entirely different; the former case dealt with the validity of a chattel mortgage, while in the present case, wer are dealing with the amount of the defendants indebtedness to the plaintiff. For much the same reasons, the defendant-appellant should have been permitted to present evidence in support of her special defense of conspiracy.

The third assignment of error cannot be sustained. In offering in evidence the testimony given by Mr. Hemady and the Hashims in the earlier case, the defendant-appellant did not claim that said testimony contained admissions against interest by the parties to the action or their agents; if such had been the case, the testimony would have been admissible without the laying of a foundation and without the witnesses having testified in the case at bar. But the purpose of the offer of the testimony was evidently to impeach the testimony of the same witnesses in the present case and if so, a foundation should have been laid by calling the attention of the witnesses to the former statements so as to give them opportunity to explain before the statements were offered in evidence. In discussing their first assignment of error, counsel for the defendant-appellant insist that, taking into consideration the facts of the case and the circumstances preceeding the same, it is obvious that the case is fraudulent and that even if the indebtedness claimed were over a true indebtedness, either the same had been paid or payment thereof waived. This contention is not entirely without foundation and though we cannot fully agree with counsel, we do think that, in view of the very apparent unreliability of some of the oral evidence presented, the plaintiffs recovery on its first cause of action should be limited to the amount shown by its books of account. On December 31, 1924, the plaintiffs ledger showed a balance of P12,238.02 against the defendant Hashim, and it does not appear that he has incurred any further indebtedness to the plaintiff since that date. The plaintiff explains that the amount claimed in excess of the sum shown by the ledger represents interest at the rate of 8 per centper annum, but under the circumstances of the case, we cannot give much weight to this explanation. It clearly appears that the chattel mortgage debt, upon which the plaintiffs first cause of action is based, is included in the ledger account and it may properly beconsidered as merged therein. It also appears that the account was balanced at the end of the years 1920, 1922 and 1924, and considering the fact that the plaintiff corporation is a well conducted business organization, it seems rather improbable that, in striking its book balances, it would have overlooked the important item of interest if any interest on the book account in question had been agreed upon. The judgment appealed from is, therefore, modified by reducing the plaintiffs recovery to the sum of P12,238.02, with interest at the rate of 6 per cent per annum from January 13, 1925, the date of the filing of the complaint. In all other respects said judgment is affirmed without costs in this instance. So ordered. Johnson, Street, Malcolm, Villamor, Romualdez and Villa-Real, JJ., concur.

G.R. Nos. 32394 and 32395

September 5, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. SANDAL, ARIMAO, LONSING, MAMA, and PAMPANG, defendants-appellants. Paulino Gullas for appellants. Attorney-General Jaranilla for appellee. AVANCEA, C.J.: The Moros Sandal, Arimao, Lonsing, Mama, and Pampang appeal from the judgment of the Court of First Instance of Lanao convicting them of murder committed on the 18th of February, 1929, upon the person of Eleno Lamorena, and sentencing each of them to twenty years of cadena temporal, with the accessories of law, to indemnify the heirs of the deceased jointly and severally in the amount of P1,000, and to pay their proportional part of the costs.

On the date mentioned, in Abaga, District of Monungan, Province of Lanao, Inambar, a Moro woman, heard the appellant Sandal call the deceased, and later saw them engaged in conversation. While the two were talking, appellant Pampang went up to them and with a hammer struck the deceased on the back of the neck, felling him to the ground. Sandal and the rest of the appellants, Lonsing, Arimao, and Mama, then closed in on the fallen man beating him to death. Moro Dimaponong testified that early in the morning of that day, he saw Eleno, the deceased, in Tomas Permites' warehouse, while the appellants were nearby constructing a house. When witness returned to the warehouse, he saw neither the deceased nor the defendants where he had seen them before. On that night as he was going home, witness saw appellants near a sawmill, carrying the corpse of Eleno, which they threw into the river. During the inquiry made by the Constabulary lieutenant into Eleno's disappearance, Dimaponong testified to this effect, and the corpse was found in that part of the river indicated by him. Doctor Pablo Hamoy in the post-mortem examination found the following lesions: The right side of the neck and the right shoulder were bruised; the neck was fractured and the right shoulder dislocated; the right eye was bruised; marked cyanosis and acute hemorrhage of both eyes which were somewhat sunken; marked cyanosis of the lips with the incisors jutting forward and loose cyanosis and hemorrhage of the gums, and hemorrhage of the nose; cyanosis of the whole face, a wound in the left arm and forearm, and a contusion on the breast and abdomen. The following facts of record explain the motive of the assault: When Tomas Permites went to Manila to look after certain matters he left Eleno in charge of his interests in Monungan. While Permites was in Manila, the appellants caused some injuries to his carabaos, as a result of which Eleno had a dispute with them. Eleno sent word of what had happened to Permites in Manila, and when the latter returned to Monungan, he verified the facts and filed a complaint against the appellants. Eleno was to be the principal witness, and the defendants knew it. The appellants denied the facts set forth and attempted to prove an alibi. Upon consideration of the evidence for both sides, we agree with the conclusion of the trial court that the appellants killed Eleno in the manner described above. The court below did not err in weighing the evidence. Another assignment of error alleged by the appellants in this instance deals with the trial court's refusal to admit a certain witness presented by the defense. The court took this stand for the reason that this witness had been present during the hearing notwithstanding the court's order that all witnesses leave the court room. Under such circumstances it lies within the court's discretion to admit or reject the testimony of the witness. And although we are of opinion that the court below should have admitted the testimony of this witness, especially when he stated that he did not hear what the other witnesses testified, yet there is nothing to show that this error has affected the appellants' defense. There is nothing to show what this witness would have testified if admitted, and so it cannot be held that his failure to testify has materially affected the appellants' defense. The appellants also assign as an error the fact that the trial court failed to require the fiscal to exhibit the testimony given by the witnesses during the preliminary investigation conducted by the justice of the peace. But the only effect of this failure was to entitle the defense to adduce secondary evidence touching the testimony of said witnesses, for the purpose of attacking their veracity, should they have been presented as witnesses during the trial. Neither did the trial court commit an error in refusing the defense an extension of time to present Doctor Feliciano, for this is a matter wholly within the court's discretion, the abuse whereof has not been shown, especially in view of the fact that it was not informed of the nature of this witness's testimony. Wherefore, the judgment appealed from is affirmed, with costs against the appellants. So ordered. Street, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur. Johns, J., I dissents. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-31342 April 7, 1976 JUAN T. BORROMEO, petitioner, vs. COURT OF APPEALS, EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, respondent. G.R. No. L-31740 April 7, 1976 EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, as Special Administrator of the Estate of Matias H. Aznar, petitioners, vs. COURT OF APPEALS and JUAN T. BORROMEO, As Special Administrator of the Estate of Simeon Rallos,respondents. Vicente J. Francisco for Juan T. Borromeo. Ciriaco Lopez, Jr. & Associates for Emmanuel B. Aznar, et al.

BARREDO, J.: Cross-petitions for the review of the per curiam resolution of the Court of Appeals in CA-G.R. No. 30092-R, Juan T. Borromeo etc. vs. Emmanuel B. Aznar, et al, dated November 19, 1969 which review entirely its previous decision of January 30, 1968 thereby ultimately holding that the transactions in question are equitable mortgages instead of absolute sales of real properties and granting the heirs of the deceased Simeon Rallos a period of one year from the finality of the resolution within which to effect a redemption of said properties, without prejudice to the right of the opposing party to foreclose the declared mortgages if no such redemption takes place and the amounts stated in the documents are not fully paid, arid ordering furthermore the Aznars to pay said heirs P10,000 for and as attorney's fees and the costs. In G.R. No. L-31342, petitioner Juan T. Borromeo, as administrator of the estate of the deceased Simeon Rallos, prays for the modification of the per curiam resolution in order to include an award of moral and exemplary damages of P200,000 and P50,000, respectively, and to increase the award of attorney's fees to not less than P75,000, whereas in G.R. No. L-31740, the Aznars are asking that said resolution be set aside and that the decision of January 30, 1968 be reinstated and affirmed. There are three preliminary questions We have to resolve. First, Borromeo contends that this Court has no jurisdiction to entertain the petition of the Aznars in G.R. No. L-31740 because the latter failed to file said petition within fifteen days from December 20, 1969, the date they were notified of the resolution now under review. Borromeo's theory is that upon the filing of his own petition in G.R. No. L-31342 on December 20, 1969, by way of appeal from the aforesaid resolution in so far as it failed to grant him the awards referred to in said petition, the Court of Appeals was divested of jurisdiction to entertain the motion for reconsideration which the Aznars filed on the same date, December 22, 1969, in the Court of Appeals praying for the reversal of the same resolution, copy of which had been received by them only on December 20, 1969. According to Borromeo, what the Aznars should have done upon being notified of the filing of the petition in G.R. No. L-31342 should have been to file already their petition for review with this Court instead of filing or continuing with their motion for reconsideration in the Appellate Court, and that since the latter court had lost its jurisdiction over the case by reason of his (Borromeo's appeal), citing in this respect the resolution of this Court of September 3, 1965 in G.R. No. L-24762 (Manila Electric Co. vs. Public Service Commission et al.), the Aznars' motion for reconsideration did not suspend their period for appeal to this Court which they made only on February 27, 1970 (erroneously alleged as March 11, 1970 by Borromeo). Obviously, Borromeo's. contention has absolutely no merit. To start with, when We issued Our resolution of January 13, 1970, granting the Aznars an extension of fifteen (15) days from the time they were to be notified of the resolution of the Court of Appeals of its action on their motion for reconsideration then still pending therein. We already knew that the petition of Borromeo against the same resolution of the Court of Appeals had already been filed with Us. In other words, in that resolution, the Court already recognized the right of the Aznars to file their own separate appeal from the resolution of the Court of Appeals after the reconsideration thereof was to be denied by the Court of Appeals notwithstanding Borromeo's appeal was already with Us. Besides, to sustain Borromeo's theory would lead to the absurd proposition that one party may be deprived of the right to appeal from the portion of a decision against him

just because the other party who had been notified of the decision ahead had already perfected his appeal in so far as the said decision adversely affects him. Indeed, We have already virtually ruled against such pose of Borromeo in Timoteo Simsim vs. The Hon. Judge Feliciano Belmonte etc. et al., 34 SCRA 536 and People vs. Ursua, 60 Phil. 252. The Meralco resolution invoked by Borromeo is not in point. Borromeo secondly tries to make capital of the fact that while it is true that the brief of the Aznars was filed on time, on August 31, 1970, the last day therefor, it did not contain a digest of the arguments nor the text of the resolution sought to be reviewed, which are required by the rules (Sections 1 and 6 of Rule 56 read together with Section 16 of Rule 46) and that these requirements were complied with only on September 19, 1970, for which reason, he prays that their appeal should be dismissed pursuant to Section 1 (b) of Rule 50. We are not impressed. The digest of arguments and the copy of the appealed resolution are not in strict sense parts of the brief so as to justify the charge that the Aznars filed their brief in two parts. No conceivsble prejudice could have been caused to anyone concerned by their late filing nineteen days after the reglementary period had expired, the brief itself, with the assignments of error and the arguments supporting them, having been filed already within said period. Of course, it would be Ideal if all the requirements of the rules were complied with on time, but there is nothing in principle or in the precedents relied upon by Borromeo that makes it imperative for Us to dismiss an appeal upon no more ground than such obviously unintentional and harmless technicality as the omission of the requirements herein complained of. The third preliminary issue raised by Borromeo is that the appeal of the Aznars in G.R. No. L-31342 involves purely questions of fact. It is argued that the reversal by the Court of Appeals of its original conclusion, upholding the trial court, that the transactions in question were absolute sales, by holding in its per curiam resolution that they were actually equitable mortgages, does not constitute an error of law but a mere reappraisal or reweighing of the evidence which it has the power to do. Borromeo insists that a ruling as to whether a transaction is a sale or a mortgage involves no more than evaluation of the evidence and is consequently a factual matter beyond the Supreme Court's authority to review except under peculiar circumstances that do not obtain here. To be sure, this is not the first instance that a reversal by the Court of Appeals of its own original decision has been brought to Our attention. And indeed, where the reversal was the result exclusively of a reevaluation or reweighing of the evidence, this Court has refrained from interfering. No doubt, it would be inimical to the interests of justice and would not be conducive to the fair and just resolution of judicial controversies to deprive a court of the power to reconsider possible errors committed by it in any of its actuations. It is in fact one of the inherent powers of courts "to amend and control its process and orders so as to make them conformable to law and justice." (Section 5 (g), Rule 135) And the Court of Appeals is certainly included in the contemplation of such rule. The only limitation to this power is that it cannot be exercised anymore after the action or judgment concerned has already become final and executory by the expiration of the corresponding reglementary period for the purpose, this as a matter of public policy requiring that litigations should from the very nature of things have a definite conclusion at a given time even at the risk of occasional errors or unintended injustice. We perceive however that the instant case does not fall under the foregoing principles. While the main impugned resolution does relate ultimately to factual conclusions of the Court of Appeals, We see that in reversing its previous findings of fact, which it arrived at after excluding on grounds of legal incompetency the corresponding evidence presented by Borromeo, the Appellate Court first reversed those rulings on the admissibility of said evidence and declared them competent, and then predicated its new factual conclusions on these subsequently admitted evidence it had rejected in its original decision. And so, it is safe to presume that had not the Appellate Court reversed its legal rulings on the admissibility or competency of the evidence referred to, it would not have reversed its actual conclusion as to the nature of the transactions in controversy. Accordingly, and on the theory that if this Court should hold that the later rulings of the Court of Appeals on the admissibility of evidence are erroneous in law, the inevitable result would be that the factual conclusions of said court in its original decision, which were favorable to the Aznars, would be revived, it is now the position of the Aznars that their attack against said later rulings constitute legal issues over which this Court has jurisdiction. After carefully studying all the points respectively raised by the parties, We are convinced that this contention is well taken and We shall now proceed to resolve the legal issues on admissibility of evidence which are extensively, exhaustively and very well discussed by both counsel in their briefs and other papers filed with the Court and for which they are both worthily deserving of commendation for unusual diligence and expertise in the work of advocacy, thereby lightening considerably the work of the Court. We refer equally to the late Senator Vicente J. Francisco, counsel for Borromeo, and Atty. Ciriaco Lopez Jr., who is appearing for the Aznars. As already stated, the main controversy here centers on the true nature of the three documents, Exhibits A, B and C, which on their faces are unquestionably deeds of absolute sale of the real properties therein described executed by the deceased Simeon Rallos on various dates in favor of Emmanuel Aznar, in Exhibits A and C, and his sister, Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as administrator of the estate of Simeon

Rallos, alleged that these documents were in fact equitable mortgages to secure loans granted to Rallos by Matias Aznar, deceased father of Emmanuel and Alma, and prayed for their reformation. The trial court dismissed the said complaint and on appeal, said dismissal was affirmed by the Court of Appeals in its original decision of January 30, 1968 penned by Justice Ramon NOLASCO and concurred in by Presiding Justice Francisco B. Capistrano and Justice Antonio Caizares The pertinent portions of said decision read thus: We have examined Exhibits A, B and C carefully, and we find them clear, unambiguous and unequivocal. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. (Article 1370, Civil Code.) The intention of the parties is to be deduced from the language employed by them, and the terms of the contract, where unambiguous, are conclusive, in the absence of averment and proof of mistake, the question being, not what intention existed in the minds of the parties, but what intention is expressed by the language used. When a written contract is clear and unequivocal, its meaning must be determined by its contents alone; and a meaning' cannot be given it other than that expressed. (City of Manila vs. Rizal Park C., 53 Phil. 515; 17 C.J.S. 700.). According to the testimony of Crispina Rallos Alcantara, who claimed to have been present when the transactions took place, her deceased father merely borrowed money from the late Matias Aznar in the sums of P6,000.00 and P35,000.00 and to secure the repayment thereof mortgaged to the latter the properties described in Exhibits A, B and C. She testified that the transactions were disguised as absolute sales and Rallos was assured by Matias Aznar that he could exercise the right to repurchase the lots and would deliver to him the corresponding options in writing. We find the testimony of Crispina Rallos Alcantara in this respect unreliable and insufficient to justify the reformation of the instruments in question. While it is true that relationship does not disqualify a witness, it calls for a close scrutiny of his testimony. For obvious reasons, the testimony of close relatives by affinity or consanguinity to corroborate a claim is not given much credence. (People vs. Guzman, 70 Phil. 23.) As correctly observed by the trial court, her testimony cannot be considered as absolutely unbiased or impartial, as she was naturally interested in an outcome of the case favorable to the plaintiff. More than this, however, the record shows that Rallos was even cautioned by his daughter Crispina and her husband before signing Exhibit A. The fact remains that Exhibits A, B and C were signed by Rallos himself as a party thereto. His successors-in-interest cannot now be heard to complain that the parties to said exhibits intended the same to be loans with mortgages contrary to what are clearly expressed therein. The natural presumption is that one does not sign a document without first informing himself or its contents, and that presumption acquires greater force where, as in the case at bar, not only one but several documents, executed at different times, were signed by Rallos. (Javier vs. Javier, 7 Phil. 261.) It is the duty of every contracting party to learn and know the contents of a contract before he signs and delivers it. He owes this duty to the other party to the contract, because the latter may, and probably will pay his money and shape his action in reliance upon the agreement. To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made, or to allow him to admit that he signed it but did not read it, or know its stipulations, would absolutely destroy the value of all contracts. (Tan Tun Sia vs. Yu Bino Sentua, 56 Phil. 711; Moran, Idem pp. 123-124.). The appellant urges that Exhibits A-2, A-3, B-3 and C-5, which, according to Crispina Rallos Alcantara, were her notations allegedly representing the deductions made by Matias Aznar for advance interest, attorney's fees and miscellanous expenses are corroborative of her testimony that the transactions in controversy were really loans with mortgages. We, likewise, find the said exhibits weak and unsatisfactor as evidence of the facts asserted. They are clearly self-serving, as they were admittedly prepared by the declarant herself (2 Wharton's Criminal Evidence, Sec. 690; 2 Jones on Evidence, 2d., Ed., Sec. 895), who was a daughter of the deceased Rallos and who cannot, therefore, be said to be disinterested witness. With respect to Exhibit J, the option to repurchae Lots Nos. 462 and 7032, also relied upon by the appellant as allegedly corroborative of the testimony of Crispina Rallos Alcantara that all the transactions in question were loans secured by mortgages, it is to be noted that said exhibit his to do with the two lots mentioned therein and none other. Certainly, it is no proof that Rallos was similarly given a written option to redeem any of the lots covered by Exhibits B and C, which, according to Crispina Rallos Alcantara, was taken back by Matias Aznar but never renewed. The evidence shows that the period fixed in Exhibit J expired without the lots involved being redeemed.

To show, too, that Matias Aznar had agreed to the repurchase of the lots in question by Rallos, the plaintiff presented at the trial of the case Exhibit L, which appears to be a copy of a draft of deed of absolute sale. This exhibit deserves but the scantest consideration, it being undated, unsigned and unsubscribed by any purported party thereto. Besides, even granting arguendo that the same was prepared by a lawyer of the Aznars, as alleged by Crispina Rallos Alcantara, we fail to see its materiality to the resolution of the main issue involved in this case of whether or not reformation is proper or justified, as the draft appears to have been drawn in favor of Crispina RalloE Alcantara who was not a party to the instruments sought to be reformed, and there is nothing in said exhibit to indicate that the contested transactions were really loans secure by mortgages. As to Exhibits Q, Q-1, Q-2 Q-3, R and R-1, which, according to the appellant, were erroneously ignored by the court below, the same invariably refer to an alleged indebtedness of Rallos to Matias Aznar and not to the defendants, Emmanuel and Alma Aznar, to whom the properties in question appear to have been sold (Exhibits A, B and C). The said exhibits fail to show clearly and satisfactorily that the transactions mentioned therein relate to the same transactions and the same parcels of land involved in the case at bar. The appellant further contends that the considerations paid for the lots in dispute were very inadequate or unusually low which would justify reformation under the provisions of Articles 1602, paragraph 1, and 1604, of the Civil Code. This contention is untenable. The evidence shows that Lot No. 7032 was sold to the defendant Emmanuel for P6,000.00 (Exhibit A), which was higher than its assessed value of P4,447.25 in 1954 when the transaction took place (Exhibit A-1). The price paid for Lots Nos. 519-B, 519-C, 467 and 490 is P40,000.00 also in lump sum (Exhibit C). The total consideration for said six lots is P45,000.00, which was more than onehalf, or approximately 60%, of their total assessed value of P74,647.00 at the time of transaction in 1954 (Exhibits B-1, B-2, C-1, C-2, C-3 and C4). It is to be noted that at the time of the sale, there was a mortgage encumbrance of P5,000.00 on Lots Nos. 2713 and 7728 in favor of the Go Chan & Sons Realty Corporation, while Lots Nos. 519-B, 519-C, 467 and 490 had a mortgage encumbrance of P20,000.00 in favor of the Philippine National Bank, which obligations were assumed by the defendants-vendees (Exhibits 27, 28, 29, 30, 32, 33 and 34). In fact, when Exhibit C was executed, the indebtedness to the bank was already due and demands for the payment thereof had been made upon Rallos (Exhibits H and H-1). On this question of the vsluation of the subject lots, the plaintiff presented HIPOLITO S. Ricardo, at one time Deputy City Assessor in Cebu City, who testified that the assessment of a real estate property was only about 40% of its fair market value, but the same was not the basis for determining the fair market value of a real estate property; that the factors considered by their office in appraising the fair market value of a real estate property were the transactions of the parties and the prices appearing in the deeds of sale of the adjacent or neighboring lots, but in the absence thereof, the capitalization system was used, based upon the investment in the property, its income, plus 6% interest annually after deductions for taxes paid, insurance premiums, repairs, losses and other miscellaneous expenses; and that in the assessment of real properties their office had a schedule of values to be followed, and a partial revision of the assessments was made yearly. According to him, however, their scheal of was not applied in the assessment of Lots Nos. 2713 and 7728, covered by tax declarations, Exhibits B-1 and B-2, and subject matter of Exhibit B, and of Lots Nos. 519-C, 619-B, 46'7 and 490, covered by tax declarations, Exhibits C-1, C-2, C-3 and C4 and subject matter of Exhibit C. As to the assessment of Lot No. 7032, covered by tax declaration, Exhibit A-1, and subject matter of Exhibit A, the said schedule was used. At any rate, taking the assessment of the seven lots involved in this case as a reasonable basis for determining their actual valuation at the time of the transactions, and considering the encumbrances existing on six of the lots and their purchase by the defendants, Emmanuel and Alma Aznar, at one time and in lump sums, this Court is not prepared to conclude that under the attendant circumstances, the considerations paid for the lots in question were unusually inadequate or shockingly low to warrant the application of the provisions of paragraph No. I of Article 1602 of the Civil Code on equitable mortgage. (Manalo vs. Gueco, 42 Phil. 925; Cabigao vs. Lim, 50 Phil. 844.) The appellant points out that, according to the bank records, Exhibits T, T-1, U U-1, V, V-1, W and W-1, the appraised values of the lots mortgaged with the bank were considerably higher than the prices paid for them. The fact remains, however, that the mortgage obligation of Rallos secured by

the same six lots was only P20,000.00, which was assumed by the defendants-vendees. Besides, no bank appraiser or representative was presented by the plaintiff at the trial to testify as to how the appraised values appearing in said exhibits were arrive at. On the other hand, the testimony of Vicente Kyamko also relied upon by the appellant to prove the alleged fair market values of the subject lots, deserves but scant consideration. The said witness admitted that he was not a licensed appraiser, and that he did not know what the assessed values of the lots in question were in 1954, although, according to him, the assessed value of a real property was the basis for computing or estimating its fair market value. However, even granting arguendo that there were differences in value or some inadequacy of consideration here, nevertheless; the same cannot be said to be controlling when viewed in the light of the entire evidence Page 341 adduced in this case. A difference in value is not always a decisive factor for determining whether the contract is one of sale with right to repurchase or a mere loan with guaranty. (Ocuma vs. Olandesca [CL] 47 O.G. 1902.) Mere inadequacy is not a sufficient ground for the rescission or resolution of a contract when both parties, as in the instant case, were in a position to form an independent judgment concerning the transaction. (Askay vs. Coselan 46 Phil. 179.) In its tenth assignment of error, the appellant assails the trial court's finding that the defendant vendees were in possession of the lots in question after the execution of the deeds of absolute sale, Exhibits A, B, and C. It contends that the defendants never possessed the contested lots. We see no merit in this contention. The records show that after the execution of the documents in question, the defendants, Emmanuel and Alma Aznar, transferred in their names the tax declarations covering the properties sold to them, paid the taxes thereon and caused the issuance of new certificates of title accordingly (Exhibits 7, 8, 9, 10, 11, 12, 21, 22, 24, 25, 26, 35, 36, 37, 38, 39 and 40). They demanded for the payment to them of the rentals due from the tenants of the lots, and began to collect the rentals from them after the maturity of the promissory note of Rallos for P1,800.00, Exhibit I, which, according to the defendant, Emmanuel, represented the rentals for one year collected in advance by Rallos from the lessees. Thereafter, defendants Emmanuel and Alma Aznar filed detainer suits against those occupants who failed to pay their rents to them (Exhibits D to D-21, inclusive, 41, 41A, 41-B, 41-C and 41-D). Certainly, those facts belie the appellant's claim that the defendant vendees were never in possession of the lots in dispute. From the evidence adduced, we are satisfied that after the execution of the deeds of absolute sale, Exhibits A, B and C, the defendants vendees took possession of the subject lots, and they were in possession thereof and collected the rentals due until the plaintiff's administrator was authorized by the court a quo to collect the rents and deposit them in a bank, subject to the court's disposition. The appellant capitalizes, too, on the statement, Exhibit K, which allegedly shows that Matias Aznar charged Rallos with the payment of the taxes due on the contested lots. According to Crispina Rallos Alcantara, the said exhibit was prepared by an employee of Matias Aznar upon the latter's orders, when she went to see him concerning the repurchase of the lots. This, however, was denied by the defendant, Emmanuel Aznar, who claimed that after the sale, neither Rallos nor his daughter Crispina went to see any of the Aznars in their office for the redemption of the lots. The exhibit in question, allegedly a statement of account of Rallos to Matias Aznar involving the disputed transactions is neither dated nor signed. much less by the party sought to be charged. The alleged writer thereof was not presented at the trial of the case, and we have only the biased testimony of Crispina as to its authenticity or preparation. Even if it were true, however, that the writing was made, as alleged by Crispina, we cannot consider the name as proof of what was said or transacted then. The mere making of written -memorandum immediately after the interview does not make the memorandum affirmative intrinsic proof of the things said or transacted. (32 CJS 948.) Knowledge on the part of the person who made the memorandum, at the time it was made, that the statements or entries therein were correct must be shown (32 OJS 947), and this the plaintiff failed to do. On the other hand, the record indubitably shows that after the execution of the questioned instruments, the taxes on the lots subject matter thereof were paid by the defendants vendees. Consequently, we hold that Exhibit K has no evidentiary value, and the lower court was correct in disregarding it ( Pp 82- 95, Record of L-31740.)

However, in its per curiam resolution of November 19, 1969, wherein Presiding Justice Capistrano who had by then been elevated to this Court was substituted by his successor Presiding Justice Julio Villamor, this rather strong position taken by the appellate court was completely reversed by itself as follows: While it is true that in our decision rendered in this case, we held that the notations or memoranda of Crispina Rallos Alcantara marked as Exhibits A-2, A-3, B3 and C5 were self-serving and unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as now correctly contended by the plaintiff-appellant in his motion for reconsideration, may be considered as constituting part of the res gestae, and as such, are admissible in evidence to show the nature of the contracts in question and the relation of the parties involved. Statements, acts or conduct accompanying or so nearly connected with the main ion as to form a part of it, and which illustrate, elucidate qualify, or the act, are admissible as part of the res gestae. Accordingly, the attendant circumstances and the statements then made by the pudes are admissible as part of the res gestae to show the execution of a contract, and, where relevant, matters said and done which are parts of the res gestae of the negotiation and execution of a contract are admissible to show the existence and nature of the contract and the relation of the parties. Matters attendant upon a sale or conveyance may also be admissible m part of the res gestae. (32 CJS 30-32.) Coversations occurring during the negotiation of a loan or other transaction, as well as the instrument given or received, being part of the res gestae, are competent evidence to show the Page 343 nature of the transaction and the parties for whose benefit it was made, where that fact is material. (National Bank vs Kennedy, 17 Wall. [U.S.] 19, 21 L. Ed. 554, cited in 20 Am. Jur. 57.) ... The character of the transaction is precisely what the intention of the parties at the time made it. It will therefore be discovered that the testimony of those who were present at the time the instrument was made, and especially of those who participated in the transaction, becomes most important. (Cuyugan vs. Santos, 34 Phil. 100, 114-115.) Thus, while the testimony of Crispina Rallos Alcantara may nor, be free from bias, she being the daughter of the deceased, Simeon Rallos, the same should not, however, be totally rejected on the ground of bias alone (U.S. vs. Mante, 27 Phil. 124; People vs. Pagaduan 37 Phil. 90), considering that it appears to be clearly and sufficiently supported by memoranda which, as already stated, are admissible in evidence as part of the res gestae (Exhibits A-2, A-3, B-3 and C-5) and by the ledgers of the Philippine National 7 Bank .(Exhibits X and Y). Besides, mere relationship of a witness to a party does not discredit his testimony in court, (U.S. vs. Mante, supra.) In this connection, the appellant has pointed out in his motion under consideration that on of this Court's decision, there was an erroneous citation of C.J.S., i.e., Vol. 32 pp. 947-948 thereof. The said citation, however, appears and may be found in the 1964 edition of the Corpus Juris Secundum, Vol. 32, pages 947-948. In the case at bar, there is another factor why the transactions in question should be considered as equitable mortgages. This factor consists of the unusual inadequacy of the prices of the sale of the properties involved. For purposes of comparison, the prices paid for the properties mentioned in Exhibits A, B and C and the asses values thereof are hereunder tabulated:
Lot No.

Purchase Price P6,000.00 (Exh. A)

Assessment as per Tax declaration P4.447.25 (Exh. A-1)

7032

2713) 7728) 519C) 519B) 467 ) 490 ) 40,000.00 (Exh. C) P51,000.00 5,000.00 (Exh, B,

4,679.00 (Exh. B-1) 9,308.00 (Exh. B- 2) 150.00 (Exh. C-1) 31.300.00 (Exh. C-2) 17,760.00 (Exh. C-3) 11,440.00 (Exh. C-4) P79,084.25

From the foregoing tabulation, it can be seen that the total amount paid to Simeon Rallos for all the properties involved is only P51,000.00 as against the total assessed values thereof which amounted to P79,084.25, or a difference of P28,084.25. In short, the total sum paid as purchase price for the subject lots represents only 64% of their total assessed valuation. To our mind, this constitutes a strong indication that the transactions in question were really loans with mortgages and not absolute sale. Moreover, it appears that Lots Nos. 519-C, 519-B, 467 and 490 covered by the deed of absolute sale (Exhibit C) were previously mortgaged with the Philippine National Bank, which obligation was assumed by the supposed vendee in the transaction under consideration. As appraised by the Philippine National Bank and as shown in its inspection and appraisal report, marked as Exhibits T, U and V in this case, the market values, respectively, of said properties are as follows: TCT No. 1096 - Lot No. 490 Market value - Land 572 sq. m. at P25/sq. m. ...................P14,300.00 TCT No. 10915 - Lot No. 467 Market value - land 888 sq. m. at P25/sq. m. ...................P22,200.00 TCT No. 10832 - Lots Nos. 519-B and 519-C Market value - land 14,242 sq. m. at P10/sq. m. ................142,420.00 Total. . . . . . . . . . P178,920.00.

There is, therefore, a difference of P138,920.00 between the purchase price of the same properties stated at P40,000.00 in the deed of absolute sale (Exhibit C) and the total market value as appraised by the Philippine National Bank amounting to P178,920.00. Under Republic Act 357, otherwise known as the General Banking Act, a bank may grant loans against a real estate security and improvements thereon on the basis of the appraised value of the real estate made by the bank itself. Section 78 of said Act provides that "loans against real estate security shall not exceed 70% of the appraised value of the improvement." Inasmuch as the appraisal of the mortgage values of the lots in question were made by competent officers of the Philippine National Bank in the performance of their assigned duties and who are presumed to have regularly performed such duties, the same are not only admissible in evidence but are prima facie evidence of the facts therein stated. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, areprima facie evidence of the facts therein stated. (Section 38, Rule 130, Rules of Court.) If a prima facie, case exists, it sustains the quantum of evidence on the point which it covers, shifting the burden of proof to the other party. It relieves a party of the burden of proving the fact presumed. The same result is effected by any substitute for evidence, such as statutory regulations prescribingprima facie evidence of specified facts. (1 Jones on, Evidence 2 Ed., Sec. 369.) It results, therefore, as previously stated, that the appraisal of the lots in question made by the officials of the Philippine National Bank in the performance of a duty especially enjoined by law is not only admissible in evidence, but is a prima facie evidence of the specified facts stated therein. The defendants, however, presented no evidence to rebut the same. We have here, therefore, a case where four of the seven lots involved appear to have been sold for the total sum of P40,000.00 (Exhibit C), which is equivalent to only 22% of their market values as appraised by the Philippine National Bank. Certainly, this fact clearly bolsters the plaintiff's claim that the transactions in controversy were really loans secured by mortgages and not absolute sales, as there is gross unusual inadequacy of the prices paid for the same. The fact that the properties were mortgaged and a notice of lis pendens was annotated on the corresponding certificate of title at the time of the sale does not lessen nor affect the values of the lands. It has been held that in determining the amount of compensation, or the market value of the property taken, no account should be given ... to the fact that the property is mortgaged. (City of Detroit vs. Fidelity Realty Co., 182 N. W. 140, 213 Mich., cited in 29 C.J.S. 972-973.) As regards the lis pendens annotation on the certificates of title of the subject lots, the facts show that the same arose from the action for support filed by Lourdes Rallos against her husband, Simeon Rallos. Such annotation appears to be improper as an action for support is one in personam and a notice of lis pendens is available only in real actions, that is, actions affecting the title to or the right of possession of real property and not in any other action. (Saavedra vs. Martinez, 58 Phil. 767; Garchitorena vs. Register of Deeds, G.R. No. L-9731, May 11, 1957; Somes vs. Government of the Phil., 62 Phil. 432; and Geronimo vs. Navs, G.R. No. L-12111, January 31, 1969.) On the question of possession of the properties in litigation, however, which was likewise raised by the appellant in his motion under consideration, we are not disposed to disturb our findings on this point. At least, the records show that after the execution of the documents in question (Exhibits A, B and C), the defendants exercise over the litigated properties acts constitutive of dominion and possession for sometime prior to the appointment of the plaintiff-appellant as the administrator thereof in 1957. The transferred in then names the tax declarations of the properties described therein, cause the issuance of new certificates of title thereto accordingly in July, August and November, 1954, and paid the corresponding taxes therein (Exhibits 7 to 12, 21 to 26 and 36 to 40). Prior to the institution of the present action, the defendants, too, appeared to have demanded for the payment to them of the rentals due from the lands in dispute, and in 1956, they filed detainer

suits against the occupants thereof who failed or refused to pay the rents to them (Exhibits D to D21, inclusive, and 41, 41-A to 41-D, inclusive). It appears, to that after the death of Simeon Rallos in 1956, the plaintiff who was appointed special administrator of the decedents estate was authorized by the court a quo to collect the rentals due from subject premises in an order issued on August 8, 1957 and had since then been in possession of the lots in question up to the present (printed Record on Appeal, pp. 34-38). Thus, paragraph 2 of Article 1602 of the Civil Code is not applicable in the present case.( Pp. 117-124. Id.) Thus, as may be seen, in overturning its own previous conclusion that the deeds in question are really absolute sales by subsequently finding that they are equitable mortgages, the Court of Appeals did not do it by just committing a turnabout in its appreciation or evaluation of the evidence. Rather, it reversed first its rulings on the admissibility of the relevant evidence by admitting those it had rejected in its original decision and then premised the reversal of its conclusions therein on these newly admitted evidence. Indeed, it appears to Us from the above ratiocination of the Court of Appeals in its per curiam resolution, considered together with the arguments adduced by it relative to the same matters in its original decision, that had that court found no reason to admit and take into account said evidence, it would not have reversed its previous finding that the subject deeds are absolute sales. In the final analysis, therefore, the specific question of law raised by the Aznars in this appeal is whether or not the Court of Appeals committed a legal error in admitting the evidence it had originally held to be incompetent. To reiterate, it is evidently their position that in the affirmative, no alternative is left to Us except to grant the prayer of their petition. The thrust of the per curiam resolution is that the plaintiff Borromeo was able to prove that the defendants Aznars "retained part of the purchase price" stipulated in deeds in question and that there was unusual inadequacy of said purchase price thereby justifying the use in this case of the presumption created by Article 1602 of the Civil Code whenever said circumstances are shown (Paragraphs 1 and 4 of said article). According to the Court of Appeals, these circumstances were proven through, among other evidence, the testimony of plaintiff Crispina Rallos, Alcantara, the daughter of the deceased Simeon Rallos, who declared that she was present on all occasions when the three transactions in dispute took place between her father and Matias Aznar and that while thus listening to their conversations she took down notes of the various amounts mentioned by them and the respective purposes thereof such as interest, attorney's fees, other obligations to be paid out of the money being borrowed by her father, etc., which notes were Identified at the trial as Exhibits A-2, A-3, B-3 and C-5. More specifically, the Court of Appeals held that because the testimony of the witness Alcantara was corroborated by these notes, it should be believed, from which it can be gathered that it was only because said notes were considered by it as inadmissible that in its original decision, said testimony and notes were deemed to be without evidentiary value for being self-serving. "While it is true," says the appealed resolution, "that in our decision rendered in this case, we held that the notations or memoranda of Cristina Rallos Alcantara marked as Exhibits A-2, A-3, B-3 and C-5. More specifically, the Court of Appeals held that because the testimony and notes were deemed to be without evidentiary value for being selfserving. "While it is true," says the appealed resolution, "that in our decision rendered in this case, we held hat the notations or memoranda of Cristina Rallos Alcantara marked as Exhibit A-2, A-3, B-3 and C-5 were self-serving and unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as nor correctly contended by plaintiff-appellant in his motion for reconsideration, may be considered as constituting part of the res gestae, and as such are admissible in evidence to show the nature of the contracts in question and the relation of the parties involved." (p. 18, Annex C of the petition.) It is the ruling upholding the admissibility of said notes and memoranda as parts of the res gestae that the Aznars contend to be a legal error committed by the Court of Appeals. We cannot see how the disputed notes and memoranda can be considered in any sense as part of the res gestaeas this matter is known in the law of evidence. It must be borne in mind, in this connection, that Crispina was not a party to the transaction in question. Only Simeon Rallos, on the one hand, and Matias Aznar, if she is to be believed, or Emmanuel and Alma Aznar, as the documents show, on the other, were the parties thereto. The record does not reveal why Crispina was with her father and the time, hence, there can be no basis for holding that she actually took part in the transaction. That she allegedly took notes thereof while there present made her at best only a witness not a party. It cannot be said, therefore, that her taking down of her alleged notes, absent any showing that she was requested or directed by the parties to do so or that the parties, more particularly the Aznars, who are being sought to be bound by then, knew what she was doing, constitute part of the transaction, the res gestae itself. If such alleged taking of notes by Crispina has to be given any legal significance at all, the most that it can be is that it is one circumstance at all, the most that it can be is that it is one circumstance relevant to the main fact in dispute. In other words it could at the most be only circumstantial evidence. The trouble however is that the admission of said notes and memoranda suffers from a fatal defect. No witness other than Crispina has testified as to the veracity of her testimony relative to her alleged notes and memoranda. Not even

her husband who, according to her, was present on one of the occasions in issue, was called to testify. It cannot be denied that Crispina is interested in the outcome of this case. In the words of the Court of Appeals itself in its original decision, "her testimony cannot be considered as absolutely unbiased or impartial", hence, "unreliable and insufficient to justify the reformation of the instruments in question." Such being the case, how can the notes and memoranda in dispute add any weight to her testimony, when she herself created them? Surely, they cannot have anymore credibility than her own declarations given under oath in open court. The extensive and repeated arguments of the parties relative to the issue of whether or not self-serving statements may be admitted in evidence as parts of the res gestae are very interesting and illuminating, but We fee they are rather very interesting and illuminating, but We feel they are rather off tangent. The notes supposedly prepared by witness Alcantara during the transaction between her father and the Aznars do not partake at all of the nature of hearsay evidence. If anything, they constitute memoranda contemplated in Section 10 or Rule 132 which provides: SEC. 10. When witness may refer to memorandum. A witness may be allowed to refresh his memory respecting a fact, by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case the writing must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made; but such evidence must be received with caution. As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the memory of the witness, which is not the case here. Nowhere in the record is there any indication that Alcantara needed during her testimony the aid of any memorandum in respect to the matters contained in the notes in dispute. Besides, under the above witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he support his open-court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence, which is exactly the case of Crispina Alcantara. The other pieces of evidence rejected by the trial court as well as the Court of Appeals in its original decision but which it subsequently admitted upon motion for reconsideration of Borromeo, thereby causing the appellate court to reverse its own affirmatory conclusion as to the nature of the transactions in dispute as absolute sales, are the following: 1. Exhibit J, the document giving Simeon Rallos the option to "repurchase" the lots sold under Exhibit A, which however expired without Rallos excercising the same. 2. Exhibits X and Y, alleged ledgers of the Philippine National Bank apparently showing the items in the current account of Southwestern Colleges, Inc. purportedly corresponding to the checks allegedly issued by Matias Aznar to Simeon Rallos in the course of the controversial transactions herein invoked and which, it is contended, proves that the amounts actually received by Rallos were less than the stipulated prices, because corresponding interests for the alleged loan had already been deducted. 3. Exhibit K, supposedly a statement of the account of Rallos with Matias Aznar allegedly by Crispina Alcantara to have been prepared by an employee of Aznar who, however, was not called to testify. 4. Exhibits T, U and V, purported inspection and appraisal reports allegedly submitted by investigators of the Philippine National Bank to whom the property described in Exhibit C covering four lots, Nos. 467, 490, 519-B and 519-C had been mortgaged indicating therein the market value

thereof as appraised by said investigators and on the basis of which Borromeo now maintains that there was inadequacy of the purchase price in said deed of sale Exhibit C for the purposes of the presumption in Article 1602 of the Civil Code that the disputed transactions are equitable mortgages. As regards Exhibit J, the contention of the Aznars is that in its per curiam resolution, the Court of Appeals reversed itself as to the evidentiary value of this exhibit without giving any reason at all. What is worse, whereas in its original decision, the Appellate Court pointedly held that since Exhibit J was an option to repurchase that had expired without being exercised, it could not alter the true nature of Exhibit A, the deed of absolute sale of the properties to which said options refers, in its resolution, this exhibit was used as basis for the further inference that there were also similar options relative to the other two sales in question, Exhibits B and C, merely because Crispina Alcantara testified that Aznar, hence the same could not be produced. Again, We find the position of the Aznars to be well taken. True it is that the Court of Appeals is the final arbiter of question of fact and as such has the inherent power to reverse its findings. For it, however, to alter its factual findings without any adequate basis borders on being whimsical and capricious. At the very least, to do is such a departure from the accepted and usual course of judicial proceedings as to call for the exercise of the Supreme Court's power of supervision. (Section 4 (b), Rule 45.) In this case of Exhibit J here, nowhere in the appealed resolution is there any explanation for the Court's turnabout. The casual reference in the said resolution of Exhibit J as being corroborative of the testimony of Crispina Alcantara together with her notes, Exhibits A-2, A-3, B-3 and C-5, is certainly an unwarranted conclusion, considering specially that We have already ruled above that there was no legal basis for the Appellate Court's reversal of its original position as to said notes themselves. In this connection, the same notes constitute the main support of Crispina's testimony, hence the corroborative force of Exhibit J must necessarily dissipate without them. Indeed, under the circumstances, with the notes of Crispina being inadmissible, and absent any other pertinent document to back up her work, the inference drawn by the Court of Appeals regarding options to repurchase the properties covered by Exhibits B and C appear hollow and baseless. The appealed resolution also reversed the Appellate Court's original pose anent the admissibility of Exhibits X and Y by attributing to it corroborative evidentiary value of the testimony of Crispina, although it did not even mention said exhibits in its earlier decision. As in the case of the exhibits previously discussed, We are of the considered opinion that it was legal error for the Court of Appeals to have thus ruled in favor of the admission of these exhibits, X and Y merely by implication. It is true that their contents were discussed in the resolution, but no reason is given therein why they have suddenly become admissible. These exhibits purport to be ledgers of the Philippine National Bank corresponding to the current account of the Southwestern Colleges owned by the Aznars. Now, it is undisputed that these exhibits were offered only in rebuttal and that no witness testified on them, not even for purposes of Identification. How the Appellate Court came to take them into account is surprising, considering that the appealed resolution does not contain the slightest discussion relative to these exhibits. Obviously, such a procedure cannot deserve Our sanction. We reject it as unjudicial. The same observation may be made with respect to Exhibits T, U and V. No one testified as to their controversial contents. Nobody even Identified them. They were just marked and shoved in as part of the documentary evidence of Borromeo in rebuttal. In an effort to give them a semblance of admissibility, counsel now contends that they are public documents appearing to have been prepared by employees of the Philippine National Bank. But although this bank is a government bank, it is not wholly owned by the government, there being private persons owning shares thereof. This is a matter of judicial notice. Officials and employees of the Philippine National Bank are not, therefore, public officers within the contemplation of Section 38 of Rule 130. Moreover, assuming otherwise or that these exhibits could have any standing as public or official records, under Section 35 of Rule 132, they do not prove themselves, as certain requisites must be complied with before they can be admitted, none of which appears to have been established in connection with the exhibits in question. Worse, it is clear in the record that these exhibits relate to only one of the three transactions herein involved. Accordingly, We do not see any justification at all for their admission as evidence to prove the true nature of the said transactions. Very little needs be said of Exhibit K. In its original decision, the Appellate Court rejected this exhibit holding: "The exhibit in question, allegedly a statement of account of Rallos to Matias Aznar involving the disputed transaction is neither dated nor signed, much less by the party sought to be charged. The alleged writer thereof was not presented at the trial of the case, and we have only the biased testimony of Crispina as to its authenticity or preparation. Even if it were true, however, that the writing was made, as alleged by Crispina, we cannot consider the same as proof of what was said or transacted then. The mere making of written memorandum immediately after the interview does not make the memorandum affirmative intrinsic proof of the things said or transacted. (32 C.J.S. 948.) Knowledge on the

part of the person who made the memorandum, at the time it was made, that the statements or entries therein were correct must be shown (32 C.J.S. 947), and this the plaintiff failed to do. On the other hand, the record indubitably shows that after the execution of the questioned instruments, the taxes on the lots subject matter thereof were paid by the defendants vendees. Consequently, we hold that Exhibit K has no evidentiary value, and the lower court was correct in disregarding it." (Pages 94-95, Record of L-31740.) On the other hand, in the impugned resolution, the only mention made of Exhibit K is but casual thus: "Crispina Rallos Alcantara went to Matias Aznar to know the total indebtedness of her father, which, according to Aznar had accumulated to P55,428.00 (Exhibit K)." We are not prepared to give Our assent to such a mode of treating a factual issue. If anything, the subsequent treatment thus given to the document in question reflects lack of serious consideration of the material points in dispute. That is not the way to decide judicial controversies. While courts do not have to so rationalize their decisions as to meet all the arguments of counsel to the satisfaction of the latter, it is imperative for the credibility of the judiciary and the maintenance of the people's faith therein that pivotal contentions be not treated in cavalier fashion that leaves the motive or grounds for the court's ruling to pure speculation and imagination. The attempt of counsel to classify this exhibit as some kind of admission by Matias Aznar is without merit, if only because it was not to Crispina, the witness, to whom the alleged admission was made and it is not explained why the supposed employee of Aznar, a certain Baltazar, who imputedly prepared it was not called to testify and be cross-examined. In the final analysis, therefore, it is evident that the Court of Appeals has sought to support its reversing per curiam resolution with props that are legally untenable. True it is that the reversal involves factual findings, but as already explained earlier, a careful review of the appealed resolution reveals unmistakably that the reversal was induced by the reconsideration by the Court of its previous rulings on the admissibility of the relevant evidence, such that its original conclusions of fact would not have been altered had the Court not been convinced by the motion for reconsideration of Borromeo that the exhibits it had rejected or refused to consider are admissible under the law. In these premises, and it being Our considered view that the rulings in the appealed resolution as to the admissibility of the exhibits concerned are legally erroneous, the irresistible conclusion is hat the original decision of the Court of Appeals affirming that of the trial court must stand. Indeed, We have gone over both decisions and We are satisfied that they were studied and are in accord with law and justice. We are not overlooking the point by counsel that some of the exhibits in question (Exhibits X and Y and T, U and V) were not specifically objected to on the grounds We have discussed above. The truth is that counsel's proposition is not entirely accurate. These exhibits are supposed to be records of the Philippine National Bank, but nobody testified to even Identify them as genuine. And they were introduced only in rebuttal. True it is that the technical objections mentioned by Aznars' counsel when they were offered were general for being immaterial, irrelevant and impertinent, but the explanation accompanying these general grounds included the point that defendants were being deprived of the right to cross-examine the ones who prepared the exhibits. In fact, the objecting counsel is quoted to have expressly argued that "It appears that these exhibits are hearsay." (referring to Exhibits T U and V (Page 241, Brief for Respondents.) Furthermore, inasmuch as the Court of Appeals failed to give any reason for overturning its previous conclusions, without explaining why it considered these evidence admissible, after ruling against them in the original decision, We deem it superfluous to rule squarely on counsel's contention. That somehow the Court of Appeals has been overly swayed by the masterly presentation of Borromeo's case by his notably brilliant counsel is, of course, understandable in the course of the administration of human justice but it is the ever existing responsibility of judges to guard themselves against being awed by the professional proficiency and fame of the lawyers appearing before them and to be doubly careful in studying and resolving the issues they raise. And in this respect, there is no substitute for well grounded preparation, up-to-dateness in the development of the law and legal principles and an adequate sense of logic and proportion inspired solely by probity of the highest order. The assertion made in some quarters about alleged inherent inequality before the courts resulting from the disparity of the abilities of respective counsels of the parties cannot have real ground for being, if only the judges remain conscious of the inevitable fact that they are supposed to possess the levelling factor their own knowledge pitted against those of the most learned advocates, to augment the possible inadequacy of the opposing attorney, who in most cases are of the poor who cannot afford the fees of better barristers. IN VIEW OF ALL THE FOREGOING, the per curiam resolution of the Court of Appeals appealed in G.R. No. L-31740 is hereby reversed and the original decision of that court dated January 30, 1968 in CA-G.R. No. 30092-R is affirmed. In consequence, obviously, the prayer of the petition in G.R. No. L-31342 being to augment the reliefs granted by the appealed resolution to Borromeo cannot be granted, hence said petition is hereby ordered dismissed. Costs against Borromeo, as administrator of the estate of Simeon Rallos. Antonio, Concepcion, Jr. and Martin, JJ., concur.

Aquino, J., concurs the result. Fernando, J., is on leave. Martin, J., was designated to sit in the Second Division.