State Prosecutor, are hereby denied, for lack of merit. [G.R. No. 131909.

February 18, 1999] The above-cited orders prompted petitioner to file a petition before the Court of Appeals with prayer for temporary restraining order and preliminary injunction. The Court of Appeals denied the petition reasoning thus: We have examined in close and painstaking detail the records of this case, and find that the claim of the People that the respondent judge had overstepped the exercise of his jurisdiction in issuing the questioned orders, is unimpressed with merit. We are not inclined to declare that there was grave abuse in respondent courts exercise of its discretion in allowing accused to obtain bail. There is grave abuse of discretion where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. We do not find this to be so in this case. Our ruling is based not only on the respect to be accorded the findings of facts of the trial court, which had the advantage (not available to Us) of having observed first-hand the quality of the autoptic proference and the documentary exhibits of the parties, as well as the demeanor of the witnesses on the stand, but is grounded on the liberal slant given by the law in favor of the accused. Differently stated, in the absence of clear, potent and compelling reasons, We are not prepared to supplant the exercise of the respondent courts discretion with that of Our own. Still convinced by the merit of its case, petitioner filed the instant petition submitting the following sole issue: WHETHER OR NOT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED DECISION AND RESOLUTION DESPITE A SHOWING BY THE PROSECUTION THAT THERE IS STRONG EVIDENCE PROVING RESPONDENTS GUILT FOR THE CRIME CHARGED. The above-submitted issue pertains to the orders of the lower court granting accusedrespondents application for bail which it justified

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ALFREDO CABRAL, Presiding Judge, RTC, Branch 30, Camarines Sur and RODERICK ODIAMAR, respondents.

DECISION ROMERO, J.: Assailed before this Court is the August 1, 1997 [1] decision of the Court of Appeals in CA GR. No. 42318 which affirmed the March 24, 1995 and June [2] 14, 1996 orders of the lower court granting accused-respondents Motion for Bail and denying petitioner Peoples Motions to Recall and Invalidate Order of March 24, 1995 and to Recall and/or Reconsider the Order of May 5, 1995 confirming the hospitalization of accusedrespondent. Accused-respondent Roderick Odiamar was charged with rape upon the complaint of Cecille Buenafe. In a bid to secure temporary liberty, accused-respondent filed a motion praying that he be released on bail which petitioner opposed by presenting real, documentary and testimonial evidence. The lower court, however, granted the motion for bail in an order, the dispositive portion of which reads: WHEREFORE, the evidence not being strong at the (sic) stage of the trial, this court is constrained to grant bail for the provisional liberty of the accused Roderick Odiamar in the amount of P30,000.00. (Italics supplied) Believing that accused-respondent was not entitled to bail as the evidence against him was strong, the prosecution filed the two abovementioned motions which the lower court disposed of, thus: WHEREFORE, the motions dated 10 May 1995 and 15 May 1995 both filed by Atty. Romulo Tolentino,

through its summary of the evidence presented during the hearing. Said order states, thus: Now going over the evidence adduced in conjunction with the petition for bail filed by the accused through counsel, the court believes that the evidence so far presented by the prosecution is not strong. This is so because the crime of rape is not to be presumed; consent and not physical force is the common origin of acts between man and woman. Strong evidence and indication of great weight alone support such presumption. It is the teaching of applicable doctrines that form the defense in rape prosecution. In the final analysis, it is entitled to prevail, not necessarily because the untarnished truth is on its side but merely because it can raise reasonable, not fanciful doubts. It has the right to require the complainant (sic) strong evidence and an indication of great weight (People v. Godoy, G.R. No. L-31177, July 15, 1976), and in the instant case, the reasonable doubt is on the evidence of the prosecution, more so, because the intrinsic nature of the crime, the conviction or the acquittal of the accused depends almost entirely on the credibility of the complainant (People v. Oliquino, G.R. No. 94703, May 31, 1993). Rightly so, because in the commission of the offense of rape the facts and circumstances occuring either prior, during and subsequent thereto may provide conclusion whether they may negate the commission thereof by the accused (People v. Flores, L-6065, October 26, 1986). If they negate, they do presuppose that the evidence for the prosecution is not strong. More so, because in the instant case, the facts and circumstances showing that they do seem to negate the commission thereof were mostly brought out during the cross-examination. As such, they deserve full faith and credence because the purpose thereof is to test accuracy and truthfulness and freedom from interest and bias or the reverse (Rule 132, Sec. 6, Revised Rules of Evidence). The facts and circumstances brought up are as follow, to wit: a) That, when the offended party Cecille Buenafe rode in the jeepney then driven by the accused Roderick Odiamar in that evening of July 20, 1994 at about 8:00 oclock from the Poblacion, Lagonoy, Camarines Sur the former knew that it was for a joy ride. In fact, she did not even offer any protest when the said jeepney proceeded to the Pilapil Beach resort at Telegrafo, San Jose, Camarines Sur

instead of Sabang, same municipality, where she and Stephen Florece intended to go. And when the said jeepney was already inside that resort, Cecille even followed the accused in going down from the jeepney also without protest on her part, a fact which shows voluntariness on the part of the offended party and, therefore, to the mind of the court her claim of rape should not be received with precipitate credulity. On the contrary, an insight into the human nature is necessary (People v. Barbo, 56 SCRA 495). And it is only when the testimony is impeccable and rings true throughout where it shall be believed (People v. Tapao, G.R. No. L-41704, October 23, 1981). Rightly so, because the aphorism that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with the common experience and observation of mankind is nowhere of moral relevance than in cases involving prosecution of rape (People v. Macatangay, 107 Phil. 188); b) That, in that resort, when the accused Roderick Odiamar and companions allegedly forced the offended party Cecille Buenafe to drink gin, the latter, at first, refused and even did not swallow it but later on voluntarily took four (4) shots there shows that there (was) no force. And as regards the claim that the accused Roderick Odiamar and companions allegedly forced the said offended party to inhale smoke, out of a small cigarette, presumably a marijuana, it becomes doubtful because the prosecution, however, failed to present any portion of that so-called small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause dizziness. Rightly so, because administration of narcotics is covered by Art. 335, par. 2 Revised Penal Code (People v. Giduces C.A. 38 O.C. 1434 cited in the Revised Penal Code, Aquino, Vol.III, pp. 392). As such, the burden of proof rests with the prosecution but it failed to do so; c) That, in that cottage where the accused, Roderick Odiamar allegedly brought the offended party, Cecille Buenafe, the former was able to consummate the alleged offense of rape by removing the two (2) hands of the offended party, placed them on her knee, separating them thereby freeing the said hand and consequently pushed the head of the accused but the latter was able to insert his penis when the said offended party was no longer moving and the

latter became tired. Neither evidence has been presented to show that the offended party suffered an injury much less any part of her pants or blouse was torn nor evidence to show that there was an overpowering and overbearing moral influence of the accused towards the offended party (People v. Mabunga, G.R. No. 96441d, March 13, 1992) more so, because force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other (People v. Erogo, 102077 January 4, 1994); d) That, after the alleged commission of rape at about 3:00 oclock in the early morning of July 21, 1994, the offended party, Cecille, Stephen Florece and the latters companions all boarded the same jeepney going back to the Poblacion of Lagonoy, without the said offended party, protesting, crying or in any way showing sign of grief regarding the alleged commission of the offense of rape until the jeepney reached the house of Roderick Odiamar where the latter parked it. As in other cases, the testimony of the offended party shall not be accepted unless her sincerity and candor are free from suspicion, because the nature of the offense of rape is an accusation easy to be made, hard to be proved but harder to be defended by the party accused though innocent (People v. Francisco G.R. No. L-43789, July 15, 1981). It becomes necessary, therefore, for the courts to exercise the most painstaking care in scrutinizing the testimony of the witnesses for the prosecution (People v. Dayag, L30619, March 29, 1974); e) That the offended party, Cecille Buenafe had herself physically examined by Dr. Josephine Decena for medical certificate dated July 27, 1994 and it states, among others, that there was a healed laceration on the hymen, her laceration might have been sustained by the said offended party, a month, six (6) months, and even a year, prior to the said examination and that the said laceration might have been caused by repeated penetration of a male sex organ probably showing that the offended party might have experienced sexual intercourse. This piece of testimony coming from an expert, such finding is binding to court (Rules of Court, Moran, op.cit, vol 5, 1963, ed. pp. 413). f) That the offended party, Cecille Buenafe accompanied by the Station Commander of Lagonoy, Camarines Sur, proceeded to Naga City and upon the

suggestion of Gov. Bulaong, the said offended party submitted for medical treatment before the same physician per medical certificate dated August 1, 1994 but according to the said physician the lesions near the umbilicus were due to skin diseases but the said offended party claim they were made by the accused after the sexual acts. As such, there were contradictions on material points, it becomes of doubtful veracity (People v. Palicte 83 Phil.) and it also destroys the testimony (People v. Garcia, G.R. No. 13086, March 27, 1961). As to the fact that the said lesion was made by the accused subsequent to the commission of the act, it is immaterial. As such, it has no probative value. The lower court concluded that the evidence of guilt was not strong. The Office of the Solicitor General disagreed with the lower court. It opined that aside from failing to include some pieces of evidence in the summary, the trial court also misapplied some wellestablished doctrines of criminal law. The Office of the Solicitor General pointed out the following circumstances duly presented in the hearing for bail: First. There was no ill motive on the part of Cecille to impute the heinous crime of rape against respondent (People v. Paragsa, 83 SCRA 105 [1978]; People v. Delovino, 247 SCRA 637 [1995]). Second. Dr. Belmonte, the psychiatrist who attended to Cecille testified that based on her psychiatric examination of the latter, Cecille manifested psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and symptoms. These abnormal psychological manifestations, according to Dr. Belmonte, are traceable to the rape incident (Pages 5-7, TSN, November 22, 1994.) Third. The unrebutted offer of compromise by respondent is an implied admission of guilt (People v. Flore, 239 SCRA 83 [1994]). Fourth. Cecille was threatened by a deadly weapon and rendered unconscious by intoxication and inhalation of marijuana smoke.

Fifth. The fact that after the conduct of two (2) preliminary investigations, no bail was recommended in the information constitutes clear and strong evidence of the guilt of (all) the accused (Baylon v. Sison, 243 SCRA 284 [1995]. Sixth. Cecille categorically testified on re-cross examination (pages 5-7, Order) that respondent succeeded in forcibly deflowering her because she was already weak and dizzy due to the effect of the smoke and the gin. Her declarations remain unrebutted. Seventh. Cecille categorically testified that she performed acts manifesting her lament, torment and suffering due to the rape. She went to Stephen Florece, cried and complained about the incident. Instead of helping her, Florece threatened to harm her and her family. (Pages 9-13, November 17, 1994). The statements of Cecille are positive statements which, under existing jurisprudence, are stronger than the denials put forth by respondent (Batiquin v. Court of Appeals, 258 SCRA 334 [1996]). Eight. The reliance by trial court on the testimony of Dr. Decena to the effect that the lacerations suffered by Cecille might have been sustained by the latter a month, six (6) months or even a year prior to the examination (Page 12 (e), Order, March 24, 1995) thus implying that respondent could not have committed the crime is highly misplaced. Dr. Decena herself testified that she cannot tell how old is an old hymenal laceration because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she could not point the exact cause (Pages 7-10, TSN, December 9, 1994). Nevertheless, proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime (People v. Echegaray, 257 SCRA 561 [1996]). Further, in crimes against chastity, the medical examination of the victims genitalia is not an indispensable element for the successful prosecution of the crime. The examination is merely corroborative in nature. (People v. Arce, 227 SCRA 406 [1993]). Ninth. With respect to the cigarette wounds, Dr. Decena positively testified that the wounds could have been caused by cigarette butts as alleged by the victim (Page 6, TSN, December 9, 1994) which

confirms Cecilles testimony (quoted in the Order at page 9) that respondent burned her right side of the stomach thrice. The above points are well taken and have impressed upon this Court the merits of the instant petition. The 1987 Constitution in Article III, Section 13 of the Bill of Rights provides: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. (Italics supplied) In view of the above exception to the constitutional guarantee on bail and in accordance [3] with its rule-making powers, the Supreme Court, in promulgating the Rules of Court, adopted the following provision: Sec. 7. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the [4] criminal prosecution. (Italics supplied) In this case, accused-respondent was being charged with rape qualified by the use of a deadly weapon punishable by reclusion perpetua to [5] death. As such, bail is discretionary and not a matter of right. The grant or denial of an application for bail is, therefore, dependent on whether the evidence of guilt is strong which the lower court should determine in a hearing called for the purpose. The determination of whether the evidence of guilt is strong, in this regard, is a matter of judicial discretion. While the lower court would never be deprived of its mandated prerogative to exercise judicial discretion, this Court would unhesitatingly reverse the trial courts findings if found to be laced with grave abuse of discretion. By judicial discretion, the law mandates the determination of whether proof is evident or the [6] presumption of guilt is strong. Proof evident or Evident proof in this connection has been held to mean clear, strong evidence which leads a well-

guarded dispassionate judgment to the conclusion that the offense has been committed as charged, that accused is the guilty agent, and that he will probably be punished capitally if the law is [7] administered. Presumption great exists when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of [8] any other conclusion. Even though there is a reasonable doubt as to the guilt of accused, if on an examination of the entire record the presumption is great that accused is guilty of a capital offense, bail [9] should be refused. (Emphasis and Italics supplied) In other words, the test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the court is ministerially bound to decide which circumstances and factors are present which would show evident [10] guilt or presumption of guilt as defined above. This Court has observed that the lower courts order failed to mention and include some significant factors and circumstances which, to the mind of this Court are strong, clear and convincing. First, it excluded the testimony of Dr. Belmonte about her psychiatric examination of the victim as well as her findings that the latter manifested psychotic signs and symptoms such as unusual fear, sleeplessness, suicidal thoughts, psychomotor retardation, poverty of thought content as well as depressive signs and [11] symptom. This particular testimony should have been considered and included in the summary as it was given by an expert witness. Second, the unrebutted offer of compromise by accusedrespondent is an implied admission of guilt which should have been noted as an offer of a compromise is generally considered as admissible evidence [12] against the party making it. Aside from failing to mention those important pieces of evidence and testimonies, this Court has likewise observed that the lower court misappplied some doctrines in criminal law. First, the lower court, in its order, intoned the following doctrine that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself in conformity with common experience and observation of mankind. According to the lower court, the credibility of the complainant is suspect because she willingly

went with accused-respondent to the resort where she was allegedly raped. In the scene of the crime, complainant allegedly voluntarily drank four shots of gin. The complainant, likewise, never protested nor cried while they were on their way to accusedrespondents house. Because of those findings, the lower court doubted the credibility of complainant and stated that the crime of rape is not to be presumed and that sexual acts between a man and a woman are presumed to be consensual. In overcoming such presumption, much depends on the credibility of the complainant. This Court cannot agree. First, there was no finding of any ill-motive on the part of complainant in filing the rape charge against accusedrespondent. This should have been taken into consideration. The following rebuttal of petitioner to the findings of the lower court is more credible: It must also be stressed that Cecille testified that she was forced by respondent to drink gin with the help of his friends by holding her hair and putting the glass on her mouth (Pages 5-7, TSN, November 17, 1994). More, respondent and his friends blew smoke into her face forcing her to inhale the intoxicating smoke. Whenever she attempted to leave the place, she was forced to sit down by Odiamar and his friends (Pages 6-7, TSN, November 17, 1994). Similarly, Cecille categorically declared that she was threatened by Florece with a gun (Page 17, TSN, November 17, 1994). The requirement of force and intimidation in the crime of rape are relative and must be viewed in light of the victims perspective and the offenders physical condition (People v. Plaza, 242 SCRA 724 [1995]). Further, physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will because of fear for life and personal safety. (People v. Ramos, 245 SCRA 405 [1995]) In this case, Cecille was only fifteen (15) years old at the time of the incident in question. At her age, it is reasonable to assume that a shot of gin rendered her tipsy. Thus, four (4) shots of gin must have rendered her dizzy, intoxicated and deprived of will or reason. The resulting weakness and dizziness which deprived Cecille of reason, will and freedom

must be viewed in light of her perception and judgment at the time of the commission of the crime, and not by any hard and fast rule because in rape cases, submission does not necessarily imply volition. (Querido , 229 SCRA 745 *1994+) It must likewise be taken into consideration that when Cecille went with the group of accusedrespondent, she was of the impression that it was just for a joy ride. The conclusion made by the trial court that Cecille must have consented to the sexual act because she acquiesced to go with them in the first place is, therefore, bereft of any legal or factual support, if not non sequitur. That she agreed to accompany them for a joy ride does not mean that she also agreed to the bestial acts later committed against her person. Second, the lower court stated that force and violence in the offense of rape are relative terms, depending on the age, size and strength of the parties and their relation to each other. The lower court enunciated this doctrine in finding that the alleged rape was actually a consensual act since the prosecution was unable to show that complainant suffered any injury nor show any evidence that her pants or blouse was torn. Neither was there any evidence that accused-respondent exerted overpowering and overbearing moral influence over the offended party. This Court is of the impression that when the lower court invoked the above doctrine, it readily concluded that complainant agreed to the sexual act disregarding testimonies lending credence to complainants allegation that she was threatened and intimidated as well as rendered weak and dizzy, not only by the smoke of the marijuana cigarette but also by intoxication, thereby facilitating the commission of the crime. It was not imperative for the prosecution, in order to prove the elements of force or intimidation to show that Cecille had broken limbs or that her blouse or pants were torn. Her testimony to that effect would have sufficed. Nevertheless, the prosecution still exerted efforts to corroborate Cecilles claim by presenting the examining physician who testified that Cecille suffered hymenal lacerations and lesions near the umbilicus area. Unfortunately, however, the lower court chose to ignore these telling pieces of evidence. In addition, the lower court doubted complainants allegation that she was forced to

smoke a small cigarette, presumably marijuana, due to the fact that the prosecution failed to present any portion of that so-called small cigarette much less did it present an expert witness to show that inhaling of smoke from the said cigarette would cause the said offended party to suffer weakness and dizziness. Said ratiocination is trifling and unpersuasive. In fact, it is even misleading as complainant categorically asserted that what made her weak and dizzy were the smoke of the cigarette and the intoxicating effect of four shots of gin, not the inhalation of the smoke alone. In any case, complainant could not be expected to produce that portion of that so-called small cigarette. Moreover, one does not need an expert witness to testify on what is common knowledge that four shots of gin have a weakening and dizzying effect on the drinker, especially one as young as the fifteen-year old complainant. More disturbing than the above misapplication of criminal law doctrines is the lower courts misinterpretation of the medical findings and deliberate withholding of some testimonies which would have shown a very strong likelihood that complainant could indeed have been raped. The following pieces of evidence cited in the summary of the assailed order are indications of misleading findings: First, the lower court did not lend any credence to the medical certificate issued after complainants physical examination. On the contrary, it interpreted it to mean that the offended party is already experienced in sexual intercourse, after the examining physician had testified that the hymenal lacerations might have been sustained a month, six months or even a year prior to the examination. Interestingly, the lower court failed to mention that Dr. Decena also testified that she cannot tell how old is an old hymenal laceration because she cannot indicate when an old laceration was inflicted and that from the size of the vagina she could not point the exact cause. This Court views this apparent lapse on the part of the lower court with concern and agrees with petitioner, in accordance with well established jurisprudence, that proof of hymenal laceration is not indispensable in indictments for rape as a broken hymen is not an essential element of the crime. Further, in crimes against chastity, the medical examination of the victims genitalia is not an indispensable element for the successful

prosecution of the crime. The examination is merely [13] corroborative in nature. And contrary to the theory espoused by the lower court, a hymenal laceration is not conclusive proof that one is experienced in sexual intercourse. Second, the lower court highlighted the testimony of Dr. Decena to the effect that the cigarette burns indicated that the lesions near complainants umbilicus were due to skin diseases. Notably, however, the lower court again failed to mention that Dr. Decena likewise positively testified that the wounds could have been caused by cigarette butts as alleged by the victim which corroborates Cecilles testimony that respondent burned her right side of the stomach thrice. It is thus indicative from the above observations that the lower court abused its discretion and showed manifest bias in favor of accused-respondent in determining which circumstances are to be considered in supporting its decision as to the guilt of accused-respondent. In this regard, it must be remembered that the discretion to be exercised in granting or denying bail, [14] according to Basco v. Rapatalo is not absolute nor beyond control. It must be sound, and exercised within reasonable bounds. Judicial discretion, by its very nature, involves the exercise of the judges individual opinion. It is because of its very nature that the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judge rational latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail said: But discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful; but legal and regular. The fact that vital prosecution evidence and testimonies have been irregularly disregarded indicate that they have not been considered at all in arriving at the decision to grant bail. This irregularity is even more pronounced with the misapplication of the two criminal law doctrines cited to support the grant of the bail application. This Court cannot help but observe that the lower court exerted painstaking efforts to show that the evidence of guilt of accusedrespondent is not strong by its non sequitur justifications, misleading or unsupported

conclusions, irregular disregard of vital prosecution evidence and strained interpretation, if not misinterpretation, of criminal law doctrines. It is the view of this Court that: (1) the testimony of Dr. Decena confirming complainants allegation that accused-respondent burned the right side of her stomach with cigarette butts, (2) the testimony of Dr. Belmonte stating that complainant exhibited psychological manifestations which are traceable to the rape incident, and (3) the unrebutted offer of compromise, are indications of the strength of the evidence of guilt of accusedrespondent. Lending credence to petitioners case is the fact that after the conduct of two (2) preliminary investigations, no bail was recommended in the [15] information. According to Baylon v. Sison, such recommendation constitutes clear and strong evidence of guilt of the accused. Aside from the apparent abuse of discretion in determining which circumstances and pieces of evidence are to be considered, the lower court also did not strictly comply with jurisprudential guidelines in the exercise of discretion. As reiterated [16] in Carpio v. Maglalang, discretion is guided by: first, the applicable provisions of the Constitution and the statutes; second, by the rules which this Court may promulgate; and third, by those principles of equity and justice that are deemed to be part of the laws of the land. The present Constitution, as previously adverted to, provides that in crimes punishable by reclusion perpetua when evidence of guilt is strong, bail is not a matter of right. This Court has reiterated this mandate in Section 7, Rule 14 of the Rules of Court. Recently, this Court laid down the [17] following rules in Basco v. Judge Rapatalo which outlined the duties of a judge in case an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion;

(3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; (Italics supplied) (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. Otherwise, petition should be denied. Based on the above-cited procedure and requirements, after the hearing, the courts order granting or refusing bail must contain a summary of [18] the evidence for the prosecution. A summary is defined as a comprehensive and usually brief [19] abstract or digest of a text or statement. There are two corollary reasons for the summary. First, the summary of the evidence in the order is an extension of the hearing proper, thus, a part of procedural due process wherein the evidence presented during the prior hearing is formally recognized as having been presented and most importantly, considered. The failure to include every piece of evidence in the summary presented by the prosecution in their favor during the prior hearing would be tantamount to not giving them the opportunity to be heard in said hearing, for the inference would be that they were not considered at all in weighing the evidence of guilt. Such would be a denial of due process, for due process means not only giving every contending party the opportunity to be heard but also for the Court to consider every piece of evidence presented in their [20] favor. Second, the summary of the evidence in the order is the basis for the judges exercising his judicial discretion. Only after weighing the pieces of evidence as contained in the summary will the judge formulate his own conclusion as to whether the evidence of guilt against the accused is strong based [21] on his discretion. (Emphasis supplied) Based on the above-stated reasons, the summary should necessarily be a complete compilation or restatement of all the pieces of evidence presented during the hearing proper. The lower court cannot exercise judicial discretion as to what pieces of evidence should be included in the summary. While conceding that some prosecution evidence were enumerated, said enumeration was incomplete. An incomplete enumeration or selective inclusion of pieces of evidence for the prosecution in the order cannot be considered a summary, for a summary is necessarily a reasonable recital of any evidence presented by the

prosecution. A summary that is incomplete is not a summary at all. According to Borinaga v. [22] Tamin, the absence of a summary in the order would make said order defective in form and substance. Corollarily, an order containing an incomplete summary would likewise be defective in form and substance which cannot be sustained or be given a semblance of validity. In Carpio v. [23] Maglalang, said order was considered defective and voidable. As such, the order granting or denying [24] the application for bail may be invalidated. WHEREFORE, in view of the foregoing, the decision dated August 1, 1997 and the resolution dated December 22, 1997 in CA G.R. No. 42318 are REVERSED and the order dated March 24, 1995 in Criminal Case No. T-1417 is declared void for having been issued in grave abuse of discretion. The court a quo shall immediately issue a warrant for the rearrest of Roderick Odiamar if his bail bond has been approved and thereafter, proceed with dispatch in the disposition of said case. This resolution is immediately executory. SO ORDERED. Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur. Vitug, J., please see Dissenting Opinion.

DISSENTING OPINION

VITUG, J.: With all due respect, I beg to disagree with the majority although it is not my wish to debate with it in its evaluation of the evidence presented before the court below. Rather, what I find to be difficult is whether this Court would be correct is substituting its own judgment over that of the trial court at this stage of the proceedings. In an indictment for a capital offense the accused is not entitled to bail [1] when the evidence of guilt is strong, and it is the duty of the judge to hear the parties and to make an intelligent assessment of the evidence [2] presented. When the judge views the evidence of guilt in such a capital offense not to be strong, the grant of bail becomes a matter of sound discretion [3] on his part.

The extraorinary remedies under Rule 65 of the Rules of Court are not open when the question is whether the trial judge has erred in the exercise of sound discretion. These special reliefs are available only when the judge has commited " grave abuse of discretion amounting to lack or excess of jurisdiction" in his decision or order such as by arbitrarily ignoring the evidence or completely acting [4] on bias and whim Even assuming that the judge has erred in his judgment, so long as grave abuse of discretion is not evident in his action, the aforesaid exceptional remedies are not warranted. Abuse of discretion must be such capricious and whimsical exercise of judgment and must be so patent and gross as to amount to an evasion of positive duty, or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in a despotic manner by reason, [5] for instance, of passion and hostility. The Court a quo, I believe, did not commit grave abuse of discretion as that term is so understood. WHEREFORE, I vote to DISMISS the petition

G.R. No. 137648. March 30, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IRENEO PADILLA y VILLASEOR alias Iring, defendant-appellant. DECISION PER CURIAM: On automatic review is the decision of the Regional Trial Court, Branch 166 of Pasig City in Criminal Case No. 109270-H finding herein accusedappellant Ireneo Padilla y Villaseor guilty beyond reasonable doubt of raping his own daughter and sentencing him to suffer the supreme penalty of death. On November 8, 1995, Eula Padilla, assisted by her mother, Esmeralda D. Sarmiento, filed a complaint charging her father, Ireneo Padilla with rape, committed as follows: That on or about the 3rd day of November, 1995 in the Municipality of Taguig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force, threats, violence and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant Eula Padilla, a 10 year old girl, who is his own daughter [2] against the latter's will and consent. On arraignment, accused-appellant pleaded guilty to the offense charged but upon being informed that the imposable mandatory penalty is death, he withdrew his former plea and entered a plea of not guilty. The case then proceeded to trial. The prosecution presented as evidence the testimonies as well as the sworn statements of private complainant Eula Padilla and her mother, Esmeralda Sarmiento and the sworn statements of Dr. Owen Libaquin, the examining physician and Police Officer I Romeo Oreta, the arresting officer. Eula Padilla recounted the incident as follows: At around three o'clock in the morning of November 4, 1995, while she was sleeping in their house at No. 44 Pag-asa Street, Signal Village,
[1]

Taguig, Metro Manila, her father Ireneo Padilla, the accused-appellant, tied both her hands and feet, covered her mouth and undressed her. The accusedappellant then forcibly inserted his penis inside her vagina. Eula felt pain in her private part and cried but she could not do anything because her hands and feet were tied. After the sexual act, her father untied her and immediately left the house. At noontime of the same day, her mother noticed bloodstains on her shorts. Unsure of whether the bloodstains were caused by menstrual period, her mother called her grandmother who lived just a few houses away. Upon confrontation by her grandmother, Eula disclosed that she was raped by her father. The following day, November 5, 1995, her mother brought her to the Philippine National Police Crime Laboratory Service (PNPCLS) in Camp [3] Crame, Quezon City for medical examination. Complainant's mother, Esmeralda Sarmiento Padilla, corroborated complainant's account. She testified that accused- appellant Ireneo Padilla is her husband and private complainant Eula Padilla is their daughter. On November 4, 1995, she noticed bloodstains on the shorts of Eula so she asked her to change. Unsure of whether her daughter was already menstruating, she called her mother (complainant's grandmother) who talked to private complainant and asked her what happened. It was then that Eula disclosed that she was raped by the accused-appellant. Esmeralda confronted her husband and asked him if there was any truth to what her daughter narrated. The accused-appellant replied, "Hindi daw niya alam kung bakit nagawa niya iyon." After taking her daughter to the Rizal Medical Center for treatment, she reported the incident to the police. On November 5, 1995, the police headed by Police Officer I Romeo Oreta arrested the accused-appellant in his house and brought him to the police station where he was investigated and detained. Esmeralda voluntarily turned over her daughter to the custody of the Department of Social Welfare and Development [4] (DSWD). After conducting a physical examination of private complainant, Dr. Owen Libaquin, the medicolegal officer, submitted the following findings in his Medico-legal Report : General and Extra-Genital:

Fairly nourished, fairly developed, and coherent female child. Breasts are undeveloped. Abdomen is flat and tight. Genital: There is absence of pubic hair. Labia majora are full, convex and coaptated with an abraded and congested labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type and markedly congested hymen with fresh, compound laceration at 6:00 o'clock extending to the posterior fourchette. External vaginal orifice offers strong resistance to the introduction of the examining index finger. Vaginal canal is tight and reveals fresh and clotted blood. Conclusion: Findings are compatible with recent loss of virginity. There are no external signs of application of any form of violence. Remarks: Vaginal and periurethral smears are negative for [5] gram-negative diplococci and for spermatozoa. In view of the admission by counsel for the accused-appellant of the due execution of the medico-legal report prepared by Dr. Libaquin, his testimony was dispensed with. The prosecution also admitted the due execution of the sworn statement of SPO1 Romeo Creta and he was no longer [6] presented on the witness stand. On the other hand, accused-appellant Ireneo Padilla vehemently denied the accusation against him. He claimed that in the evening of November 3, 1995, he was sleeping with his wife Esmeralda and their three children, Eula, 10 years old, Joel, 7 years, and Angie, 5 in their house at No. 38 Pag-asa Street, Signal Village, Taguig, Metro Manila. At around six o'clock of the following morning, he left their house and proceeded to the talipapa to check on his fruit and vegetable stall as it rained the whole night due to typhoon "Rosing." In the early morning of November 5, 1995, he was surprised when several police officers arrested him in their house and brought him to the Taguig Police Station. He denied having sexually abused his daughter Eula and

maintained that it is a mere fabrication instigated by [7] his parents-in-law who did not like him. On January 12, 1999, the trial court rendered its decision convicting accused-appellant and sentencing him as follows: WHEREFORE, the court finds accused Irineo Padilla y Villaseor Guilty beyond reasonable doubt of the crime of Rape charged in the Information and is hereby sentenced to suffer the supreme penalty of Death, and indemnify the victim Eula Padilla, the sum of Fifty Thousand (P50,000.00) Pesos. The accused-appellant raises the following errors before us: THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE THE VAGUE TESTIMONY OF THE PRIVATE COMPLAINANT. THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY DESPITE THE PROSECUTION (sic) FAILURE TO PROVE THE QUALIFYING CIRCUMSTANCE OF RELATIONSHIP. The Court has repeatedly reiterated the three principles that guide its review of rape cases, to wit: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and (3) the evidence for the prosecution stands or falls on its own merits and cannot be allowed to draw [8] strength from the weakness of the defense. Conviction or acquittal in a rape case more often than not depends almost entirely on the credibility of the complainant's testimony because by the very nature of this crime, it is usually only the [9] victim who can testify as to its occurrence. In rape cases, the accused may be convicted solely on the basis of the testimony of the victim, provided that such testimony is credible, natural, convincing and consistent with human nature and the normal [10] course of things. And, in the evaluation of the credibility of the complainant's testimony, the sound determination and conclusion by the trial court is [11] accorded much weight and respect.

In the case under scrutiny, we find no compelling reason to overturn the factual findings of the trial court. The testimony of the complainant, Eula Padilla, who was only ten years old at the time she testified, deserves full faith and credit. Her simple, positive and straightforward recounting on the witness stand of her harrowing experience lends credence to her accusation. Moreover, being a mere child of tender years, her age belies any allegation that her charge was a mere concoction or fabrication impelled by some ill-motive or revenge. As has been stressed by this Court in numerous cases, when a woman or a child victim says that she has been raped, she in effect says all that is necessary to show [12] that rape was indeed committed. Accused-appellant faults the prosecution in the way it conducted its direct examination of the complainant. It is argued that a rape case is not prosecuted by merely referring to the sworn statement executed by the complainant and asking her to confirm such statements; on the contrary, all the material allegations sufficient to prove the crime complained of should be established by the clear testimony of the complainant on the witness stand. Reference is made to the following portions of the direct examination: COURT: The question is too general, you better ask her the event and the date. q a q a q Do you remember having executed or signed a sworn statement? Yes sir. If that statement is presented to you can you recognize it? Yes sir. I am presenting to you a one page sworn statement will you please examine it and tell us if this is the statement? Yes this my statement (sic). There is a signature above the name Eula S. Padilla, do you know whose signature is this? Mine sir. Do you now affirm the contents of this statement?

Yes sir.

FISCAL PANDAC: May I request that this be marked as Exh. A and the signature as Exh. A-1. q In this question No. 9 and also the answer which I quote "Sinong isusumbong mo?" and your answer "Ang tatay ko po"' do you affirm this? Yes sir. And also in question no. 10 which I quote "Bakit mo isusumbong ang tatay mo? "Kasi po itinali niya ang kamay pati paa ko at tinakpan niya ang bibig ko pagkatapos po ay hinubaran niya ako at pinilit niyang ipinasok ang bird niya sa ari ko", do you understand this? Yes sir, I confirm that.

a q

FISCAL PANDAC: May I request your Honor that question no. 10 be marked as Exh. A-2. q a Did you ask your father why he do that to you? (sic) No sir. xxx xxx q xxx

In question no. 12 and 13 which I quote "Naipasok ba naman ng tatay mo ang bird niya sa ari mo?" and your answer "Opo, naipasok po", do you affirm this? Yes sir. This q-13 ano naman ang naramdaman mo" answer "masakit po", do you affirm this? Yes sir. This tanong no. 14 "Ano naman ang ginawa mo ng maramdaman mong masakit?" sagot "sinabi ko po sa tatay ko na masakit pero wala po akong magawa dahil nakagapos po ako", do you affirm this? Yes sir.

a q a q

a q

a q

FISCAL PANDAC:

May I request that the question no. 12, 13 and 14 be bracketed and marked as Exh.A3. q In tanong no. 15 which I quote "kailan ba naman ginawa sa iyo ng tatay mo?" sagot "Noon pong bumabagyo ng gabi pets (sic) 3 ng Nobyembre 1995", do you affirm this? Yes sir. Tanong no. 16 "Saang lugar ba naman ginawa sa iyo ito ng tatay mo? sagot "sa loob po ng bahay namin", do you affirm this? Yes sir. In Tanong No. 17 "Anong oras ba naman ginawa sa iyo ito ng tatay mo"? sagot "maguumaga na po, sa tingin ko po'y magaalas-tres ng umaga", do you affirm this? Yes sir.

in the person of the complainant Eula Padilla. xxx xxx xxx

[14]

a q

The Solicitor General correctly made this observation on the examination of witnesses: "[T]he Court gives considerable latitude and indulgence to characteristics of counsel, who is allowed, for the most part, to follow the dictates of common sense and to choose his own methods of effective presentation of his side of the case, but subject [15] always to the control of the trial judge." It also bears stressing that the testimony of Eula on direct examination did not consist alone of her affirmation of the contents of her sworn statement. She also made direct and straightforward declarations that she was raped by her father, thus: xxx xxx q a q a q a q a q a .q xxx

a q

At that time when your father do (sic) that act to you, where was your mother? She was asleep. Which part of the house were your mother is sleeping? (sic) Beside my father. Did your mother do anything to protect you when your father did that to you? Yes, she followed-up at Baybreeze. Why, where was your father at that time after he did that act to you? At Baybreeze. Where is that Baybreeze located? At Tambak. At the time when your father having a sexual inter-course with you, what did your mother do at that time? (sic) She was asleep. Is there any other person aside from you, your mother, and your father in that room? No more. xxx xxx xxx

FISCAL PANDAC: May I request that questions Nos. 15, 16 and 17 and the answers be marked as Exh. [13] A-4. We do not agree with accused-appellant's contention. It is not correct to say that the direct examination of the complainant consisted merely of her oral confirmation of the contents of the sworn statement she executed before the police. Indeed, in the direct examination of the complainant, the prosecutor read to her certain portions of her sworn statement and asked her if she made them and to confirm the truth thereof. The trial court allowed the procedure without any objection from the defense. Moreover, in the hearing of February 12, 1997, where the prosecution made its offer of documentary evidence, the counsel for the accusedappellant admitted the sworn statement as part of the testimony of the complainant Eula Padilla: xxx xxx Atty. Antonano: Your Honor, please, by way of comments and objections to the offer of exhibits, the defense admits the existence of Exhibit "A" -the Sinumpaang Salaysay of Eula Padilla is offered as part of her testimony but this cannot prove sexual abuse by the accused xxx

a q a

You testified that at the time when your father do the act, your mother is also

sleeping inside the room, did your mother came to know the incident right there and here? (sic) a q a q a q No sir. At what time did you report the incident to your mother? Tanghali po. How about to your Lola? Also noontime. Do you know what did your mother or Lola do after you reported the matter to them?

Complainant also positively testified as to the circumstances surrounding the rape when she was cross-examined by counsel for the accused: q a q a q You have mentioned Ms. witness that your hands were tied, is that correct? Yes mam. Could you describe how were they tied? With the hands at the back. And when you said that your feet were tied, are you telling the court that your both feet were tied together? Yes mam. And you said that your mouth was covered also, is that correct? Yes mam. xxx xxx q xxx

ATTY. ANTONANO: Witness is having a hard time answering the question. COURT: Another question. q You testified awhile ago that your mother looked for the whereabout of your father at Baybreeze, do you know why your mother is looking for your father? Yes sir. Can you inform this court about that? After I was raped and after my mother came to know about it, she followed my father at Baybreeze. Did you report the matter to the police authorities? Yes sir. And your father was apprehended by the police after the report was made? Yes sir. Right there at the police station, you pointed the person of your father as the one who did the act to you? Yes sir. Now, did you see a doctor in connection with your case? Yes sir.
[16]

a q a

While the tying of the hands was being done to you, did you not even try to cry Ms. witness? I cried. How loud was your cry? Mahina lang po. xxx xxx xxx

a q a

a q a

q a q a q

You said that while your father was tying your hands, your mother was sleeping, where was she sleeping? On the bamboo bed. xxx xxx xxx

q a q

You said that you also reported the incident to you Lola, is that correct? Yes mam. Do I get you right that you only come to report the incident to your lola because according to you your short stained with blood? (sic) And that your Lola saw these stains of blood? Yes mam. xxx xxx xxx

a q a

q a

q a

Where was the short that your grandmother saw blood stain in it? It was with the clothes to be laudered. (sic) xxx xxx xxx
[17]

S:

Sinabi ko po sa tatay ko na masakit pero wala po akong magawa dahil nakagapos ako.

T: Kailan ba naman ginawa sa iyo ito ng Tatay mo? S: Noon pong bumabagyo ng gabi, petsa-03 ng [20] Nobyembre 1995.

Accused-appellant brands as vague the portion of complainant's testimony how she was raped: [18] "ipinasok niya ang bird niya sa ari ko." It is appellant's contention that such testimony does not positively establish that the rape was committed. The Court does not agree. To say that the word "bird" is vague is plain sophistry. A child victim of rape could not be expected to be sophisticated and [19] knowledgeable in the ways of sex. What she meant by the word "bird" was no other than a male genital organ. Although the term is not as definitive as the word "penis," a young and innocent child cannot be expected to be as graphic and explicit in her language as an adult. In fact, the victim also described her father's sexual organ as bird in her sworn statement before the police on November 8, 1995, the truth of which she later affirmed on the witness stand. She declared in her affidavit: xxx xxx T: Bakit ka nasa pulis? S: Magsusumbong po ako. xxx

Moreover, the testimony of complainant was [21] buttressed by the declaration of her mother to whom the victim related the dastardly acts committed by accused-appellant on her. The medico-legal officer found fresh hymenal lacerations on her organ and concluded that his "findings are compatible with (her) recent [22] loss of virginity. Ineluctably, the bare denial of herein accused-appellant cannot overcome the clear and positive evidence adduced by the prosecution to prove the commission of the crime charged. Thus, this Court affirms the finding of the trial court that the accused-appellant is guilty beyond reasonable doubt of raping complainant Eula Padilla. The amendment introduced by Republic Act 7659, otherwise known as the Death Penalty Law, to the crime of rape under Section 335 of the Revised Penal Code, enumerates the special qualifying circumstances which warrant the mandatory imposition of the death penalty. Since these special qualifying circumstances raise the penalty for the crime of rape by one degree, that is, from reclusion perpetuato the maximum penalty of death, great caution must be taken by the trial court in their evaluation. For these special qualifying circumstances to be appreciated, they must both be specifically pleaded in the information or complaint [23] and duly proven during trial and the degree of proof required is proof beyond reasonable doubt, or [24] equal certainty as the crime itself. The first qualifying circumstance, under which accused-appellant is prosecuted, provides: The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: xxx xxx xxx

T: Sinong isusumbong mo? S: Ang tatay ko po.

T: Bakit mo isusumbong ang tatay mo? S: Kasi po itinali niya ang kamay pati paa ko at tinakpan niya ang bibig ko pagkatapos po ay hinubaran niya ako at pinilit niyang ipinasok ang bird niya sa ari ko.

T: Naipasok ba naman ng Tatay mo ang bird niya sa ari mo? S: Opo, naipasok niy (sic) po.

T: Ano ba naman ang naramdaman mo ng maipasok ng tatay mo ang bird niya? S: Masakit po.

T: Anong ginawa mo nang maramdaman mong masakit?

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity

within the third civil degree, or the common-law spouse of the parent of the victim; xxx xxx xxx

borderline age of 18. As the Court succinctly pointed [35] out in the case of People vs. Javier: xxx Although the victim's age was not contested by the defense, proof of age of the victim is particularly necessary in this case considering that the victim's age which was then 16 years old [was] just two years less than the majority age of 18. In this age of modernism, there is hardly any difference between a 16-year old girl and an 18-year old one insofar as physical features and attributes are concerned. xxx Thus, it is in this context that independent proof of the actual age of the rape victim becomes vital and essential as to remove any iota of doubt that the victim was indeed under 18 years of age as to fall under the qualifying circumstances enumerated in Republic Act 7659. xxx In the case at bar, however, the victim was only ten years old when the rape was committed. In such an instance, the court may take judicial notice of the victim's age and independent proof of minority may not be necessary. In the case of People vs. [36] Tipay, the Court pronounced that the presentation of the certificate of birth is not at all times necessary to prove minority and the minority of a victim of tender age who may be below the age of ten is quite manifest and the court can take judicial notice thereof. In People vs. Bali[37] balita, the victim was only ten years old when she was raped by the live-in partner of her mother. The Court held that the victim's minority was sufficiently proven. As the victim, who was ten years and four months old at the time of the rape, testified in court only about four months after the rape, it would not have been difficult for the trial court to take judicial notice that she was under 18 years of age. The Court's rulings in the two aforecited cases find application in the present case. Complainant Eula was only ten years old at the time of the rape. And at the time she testified in court, only five months had elapsed from the day of the commission of the crime. Thus, the trial court could have easily taken judicial notice of her minority. Relationship between the victim and the accused has likewise been established. Complainant categorically declared that the accused-appellant is her father. This was corroborated by her mother who testified that the accused is her husband. Accused-appellant himself, in his direct

It must be pointed out that the circumstances of minority and relationship under paragraph (1) must [25] concur; otherwise, if there is failure to allege either one in the information, or to prove either during trial, the penalty of death cannot be imposed. In the case at bar, the complaint properly pleaded the special qualifying circumstances of [26] minority and relationship. As a rule, even if the age of the victim is not contested, there must be independent proof of the [27] age of the victim, as well as the filiation between [28] the victim and the accused. Independent proof of age may consist of the certificate of live birth or the [29] baptismal certificate of the victim. Should such documents be unavailable, it must be shown that they were either lost or destroyed, and other documents or oral evidence sufficient for the [30] purpose may be presented. In the present case, we find sufficient evidence of complainant's minority and her relationship with the accused even if independent proof of minority was not presented. Complainant declared on the witness stand that she was ten years old when she [31] was ravished by her father. Moreover, her testimony was corroborated by her mother who also testified that her daughter's age at the time she was [32] raped was ten. In the case of People vs. Nelson dela [33] Cruz, the two victims were 14 and 15 years old when their father allegedly raped them. The evidence as to their minority consisted of the testimonies of the victims themselves and their mother. On the basis thereof, we ruled that the prosecution proved the minority age of the victims beyond reasonable doubt. The Court found no reason to doubt the testimony of the victims' mother who, as a mother, has personal knowledge of the ages of her children. In those cases where the Court required [34] independent proof of age of the victim, the complainants' ages ranged from 13 to 16 years old. Under such circumstances, independent evidence that accurately shows the victim's age is thus necessary because the age range is so near the

testimony admitted that complainant Eula Padilla is [38] one of his three children. Thus, having proven both minority and relationship, the penalty of death was correctly meted out by the trial court. Four members of the Court maintain their position that Republic Act No.7659, insofar as it prescribes the death penalty, is unconstitutional. Nevetheless, they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed. In accordance with recent jurisprudence, we increase the amount of civil indemnity from P50,000.00 to P75,000.00 as the crime of rape is qualified by circumstances warranting the imposition [39] of the death penalty. We additionally impose the award of moral damages in the amount of P50,000.00 to the victim without need for proof of the victim's mental and physical suffering as such injury has been consistently recognized as being inherently concomitant with and necessarily [40] resulting from the odious crime of rape. WHEREFORE, the Decision of the Regional Trial Court of Pasig City , Branch 166 finding the accused IRENEO PADILLA guilty of Rape under Art. 335 of the Revised Penal Code as amended by Section 11 of RA 7659 and imposing upon him the penalty of death is AFFIRMED, with the modification that the amount of P50,000.00 civil indemnity is increased to P75,000.00 and moral damages in the amount of P50,000.00 is additionally imposed. In accordance with Section 25 of Republic Act No. 7659, amending Section 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Santiago, De Leon, Jr., and Gutierrez, JJ., concur. Puno, J., on official leave

COUNTRY BANKERS INSURANCE CORPORATION, Petitioner,

G.R. No. 165487 the market value of the maximum quantity of rice to be received. Present: Accordingly, Country Bankers Insurance Corporation CARPIO,J., (Country Bankers) issued Warehouse [4] BondChairperson, No. 03304 for P1,749,825.00 on 5 November LEONARDO DE CASTRO,* 1989 and Warehouse Bond No. VILLARAMA, JR.,** [5] 02355 PEREZ, for andP749,925.00 on 13 December 1989 SERENO, JJ. through its agent, Antonio Lagman (1989 Bonds) (Lagman). Santos was the bond principal, Lagman was the surety and the Republic of the Philippines, Promulgated:

-versus-

ANTONIO LAGMAN, Respondent. x ---------------------------------------------------------------------------------------x DECISION PEREZ, J.: This Procedure,

[2]

through the NFA was the obligee. In consideration July 13, 2011 of these issuances, corresponding Indemnity Agreements were executed by Santos, as bond principal, together with Ban Lee Lim Santos (Ban Lee Lim), Rhosemelita Reguine (Reguine) and Lagman, as co-signors. The latter bound themselves jointly and severally liable to Country Bankers for any damages, prejudice, losses, costs, payments, advances and expenses of whatever kind and nature, including attorneys fees and legal costs, which it may sustain as a consequence of the said bond; to reimburse Country Bankers of whatever amount it may pay or cause to be paid or become liable to pay thereunder; and to pay interest at the rate of 12% per annum computed and compounded monthly, as well as to pay attorneys fees of 20% of the amount due it.
[7] [6]

is

petition the

for

review
[1]

on certiorari under Rule 45 of the 1997 Rules of Civil assailing Decision and Resolution of the Court of Appeals dated 21 June 2004 and 24 September 2004, respectively. These are the undisputed facts. Nelson Santos (Santos) applied for a license with the National Food Authority (NFA) to engage in the business of storing not more than 30,000 sacks of palayvalued at P5,250,000.00 in his warehouse at Barangay Malacampa, as amended,
[3]

Santos then secured a loan using his warehouse receipts as collateral.

[8]

Camiling,

Tarlac. Under

When the loan

Act No. 3893 or the General Bonded Warehouse Act, the approval for said license was conditioned upon posting of a cash bond, a bond secured by real estate, or a bond signed by a duly authorized bonding company, the amount of which shall be fixed by the NFA Administrator at not less than thirty-three and one third percent (33 1/3%) of

matured, Santos defaulted in his payment. The sacks of palay covered by the warehouse receipts were no
[9]

longer

found

in

the

bonded
[10]

warehouse.

By virtue of the surety bonds, Country

Bankers was compelled to pay P1,166,750.37.

Consequently, Country Bankers filed a complaint for a sum of money docketed as Civil Case No. 95-73048 before the Regional Trial Court (RTC)

of Manila. In his Answer, Lagman alleged that the 1989 Bonds were valid only for 1 year from the date of their issuance, as evidenced by receipts; that the bonds were never renewed and revived by payment of premiums; that on 5 November 1990, Country Bankers issued Warehouse Bond No. 03515 (1990 Bond) which was also valid for one year and that no Indemnity Agreement was executed for the purpose; and that the 1990 Bond supersedes, cancels, and renders no force and effect the 1989 Bonds.
[11]

DISMISSED. Defendant Antonio Lagmans counterclaim is likewise [17] DISMISSED, for lack of merit. In holding Lagman and Reguine solidarily liable to Country Bankers, the trial court relied on the express terms of the Indemnity Agreement that they jointly and severally bound themselves to indemnify and make good to Country Bankers any liability which the latter may incur on account of or arising from the execution of the bonds.
[18]

The bond principals, Santos and Ban Lee Lim, were not served with summons because they could no longer be found.
[12]

The trial court rationalized that the bonds remain in force unless cancelled by the Administrator of the NFA and cannot be unilaterally cancelled by Lagman. The trial court emphasized that for the failure of Lagman to comply with his obligation under the Indemnity Agreements, he is likewise liable for damages as a consequence of the breach. Lagman filed an appeal to the Court of Appeals, docketed as CA G.R. CV No. 61797. He insisted that the lifetime of the 1989 Bonds, as well as the corresponding Indemnity Agreements was only 12 months. According to Lagman, the 1990 Bond was not pleaded in the complaint because it was not covered by an Indemnity Agreement and it superseded the two prior bonds.
[19]

The case was eventually

[13]

dismissed against them without prejudice. failure to file her answer.

[14]

The

other co-signor, Reguine, was declared in default for

On 21 September 1998, the trial court rendered judgment declaring Reguine and Lagman jointly and severally liable to pay Country Bankers the amount ofP2,400,499.87. portion of the RTC Decision
[16] [15]

The dispositive

reads:

WHEREFORE, premises considered, judgment is hereby rendered, ordering defendants Rhomesita [sic] Reguine and Antonio Lagman, jointly and severally liable to pay plaintiff, Country Bankers Assurance Corporation, the amount of P2,400,499.87, with 12% interest from the date the complaint was filed until fully satisfied plus 20% of the amount due plaintiff as and for attorneys fees and to pay the costs. As the Court did not acquire jurisdiction over the persons of defendants Nelson Santos and Ban Lee Lim Santos, let the case against them be

On 21 June 2004, the Court of Appeals rendered the assailed Decision reversing and setting aside the Decision of the RTC and ordering the dismissal of the complaint filed against Lagman.
[20]

The appellate court held that the 1990 Bond superseded the 1989 Bonds. The appellate court observed that the 1990 Bond covers 33.3% of the market value of the palay, thereby manifesting the intention of the parties to make the latter bond

more comprehensive. Lagman was also exonerated by the appellate court from liability because he was not a signatory to the alleged Indemnity Agreement of 5 November 1990 covering the 1990 Bond. The appellate court rejected the argument of Country Bankers that the 1989 bonds were continuing, finding, as reason therefor, that the receipts issued for the bonds indicate that they were effective for only one-year. Country Bankers sought reconsideration which was denied in a Resolution dated 24 September 2004.
[21]

that the bond may only be cancelled by the obligee, by the Insurance Commissioner or by a competent court. Country Bankers questions the existence of a third bond, the 1990 Bond, which allegedly cancelled the 1989 Bonds on the following grounds: First, Lagman failed to produce the original of the 1990 Bond and no basis has been laid for the presentation of secondary evidence; Second, the issuance of the 1990 Bond was not approved and processed by Country Bankers; Third, the NFA as bond obligee was not in possession of the 1990 Bond. Country Bankers stresses that the cancellation of the 1989 Bonds requires the participation of the bond obligee. Ergo, the bonds remain subsisting until cancelled by the bond obligee. Country Bankers further assert that Lagman also failed to prove that the NFA accepted the 1990 Bond in replacement of the 1989 Bonds. Country Bankers notes that the receipts issued for the 1989 Bonds are mere evidence of premium payments and should not be relied on to determine the period of effectivity of the bonds. Country Bankers explains that the receipts only represent the transactions between the bond principal and the surety, and does not involve the NFA as bond obligee. Country Bankers calls this Courts attention to the incontestability clause contained in the Indemnity Agreements which prohibits Lagman from questioning his liability therein.

Expectedly, Country Bankers filed the instant petition attributing two (2) errors to the Court of Appeals, to wit: A. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING THE EXPRESS PROVISIONS OF SECTION 177 OF THE INSURANCE CODE WHEN IT HELD THAT THE SUBJECT SURETY BONDS WERE SUPERSEDED BY A SUBSEQUENT BOND NOTWITHSTANDING THE NONCANCELLATION THEREOF BY THE BOND OBLIGEE. B. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT RECEIPTS FOR THE PAYMENT OF PREMIUMS PREVAIL OVER THE EXPRESS PROVISION OF THE SURETY BOND THAT FIXES THE [22] TERM THEREOF.

Country Bankers maintains that by the express terms of the 1989 Bonds, they shall remain in full force until cancelled by the Administrator of the NFA. As continuing bonds, Country Bankers avers that Section 177 of the Insurance Code applies, in In his Comment, Lagman raises the issue of novation by asserting that the 1989 Bonds were superseded by the 1990 Bond, which did not include Lagman as party. Therefore, Lagman argues,

Country Bankers has no cause of action against him. Lagman also reiterates that because of novation, the 1989 bonds are neither perpetual nor continuing. Lagman anchors his defense on two (2) arguments: 1) the 1989 Bonds have expired and 2) the 1990 Bond novates the 1989 Bonds. The Court of Appeals held that the 1989 bonds were effective only for one (1) year, as evidenced by the receipts on the payment of premiums. We do not agree. The official receipts in question serve as proof of payment of the premium for one year on each surety bond. It does not, however, automatically mean that the surety bond is effective for only one (1) year. In fact, the effectivity of the bond is not wholly dependent on the payment of premium. Section 177 of the Insurance Code expresses: Sec. 177. The surety is entitled to payment of the premium as soon as the contract of suretyship or bond is perfected and delivered to the obligor. No contract of suretyship or bonding shall be valid and binding unless and until the premium therefor has been paid, except where the obligee has accepted the bond, in which case the bond becomes valid and enforceable irrespective of whether or not the premium has been paid by the obligor to the surety: Provided, That if the contract of suretyship or bond is not accepted by, or filed with the obligee, the surety shall collect only reasonable amount, not

exceeding fifty per centum of the premium due thereon as service fee plus the cost of stamps or other taxes imposed for the issuance of the contract or bond: Provided, however, That if the non-acceptance of the bond be due to the fault or negligence of the surety, no such service fee, stamps or taxes shall be collected. (Emphasis supplied)

The 1989 Bonds have identical provisions and they state in very clear terms the effectivity of these bonds, viz: NOW, THEREFORE, if the above-bounded Principal shall well and truly deliver to the depositors PALAY received by him for STORAGE at any time that demand therefore is made, or shall pay the market value therefore in case he is unable to return the same, then this obligation shall be null and void; otherwise it shall remain in full force and effect and may be enforced in the manner provided by said Act No. 3893 as amended by Republic Act No. 247 and P.D. No. 4. This bond shall remain in force until cancelled by the Administrator of National Food [23] Authority.

This provision in the bonds is but in compliance with the second paragraph of Section 177 of the Insurance Code, which specifies that a continuing bond, as in this case where there is no fixed expiration date, may be cancelled only by the obligee, which is the NFA, by the Insurance Commissioner, and by the court. Thus: In case of a continuing bond, the obligor shall pay the subsequent annual premium as it falls due until the contract of

suretyship is cancelled by the obligee or by the Commissioner or by a court of competent jurisdiction, as the case may be. By law and by the specific contract involved in this case, the effectivity of the bond required for the obtention of a license to engage in the business of receiving rice for storage is determined not alone by the payment of premiums but principally by the Administrator of the NFA. From beginning to end, the Administrators brief is the enabling or disabling document. The clear import of these provisions is that the surety bonds in question cannot be unilaterally cancelled by Lagman. The same conclusion was reached by the trial court and we quote: As there appears no record of cancellation of the Warehouse Bonds No. 03304 and No. 02355 either by the administrator of the NFA or by the Insurance Commissioner or by the Court, the Warehouse Bonds are valid and binding and cannot be unilaterally cancelled by defendant Lagman as [24] general agent of the plaintiff.

Lagmans insistence on novation depends on the validity, nay, existence of the allegedly novating 1990 Bond. Country both. We Bankers see the understandably impugns

point. Lagman presented a mere photocopy of the 1990 Bond. We rule as inadmissible such copy. Under the best evidence rule, the original document must be produced whenever its contents are the subject of inquiry. follow: Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a documents, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a [26] public office.
[25]

The rule is encapsulated

in Section 3, Rule 130 of the Rules of Court, as

While the trial court did not directly rule on the existence and validity of the 1990 Bond, it upheld the 1989 Bonds as valid and binding, which could not be unilaterally cancelled by Lagman. The Court of Appeals, on the other hand, acknowledged the 1990 Bond as having cancelled the two previous bonds by novation. Both courts however failed to discuss their basis for rejecting or admitting the 1990 Bond, which, as we indicated, is bone to pick in this case.

A photocopy, being a mere secondary evidence, is not admissible unless it is shown that the original is unavailable. the Rules of Court states: SEC.5 When original document is unavailable. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated.
[27]

be given of any one. A photocopy may not be used without accounting for the other originals.
[31]

Section 5, Rule 130 of Despite knowledge of the existence and whereabouts of these duplicate originals, Lagman merely presented a photocopy. He admitted that he kept a copy of the 1990 Bond but he could no longer produce it because he had already severed his ties with Country Bankers. However, he did not explain why severance of ties is by itself reason enough for the non-availability of his copy of the bond considering that, as it appears from the 1989 Bonds, Lagman himself is a bondsman. Neither did Lagman explain why he failed to secure the original from any of the three other custodians he mentioned in his testimony. While he apparently was able to find the original with the NFA Loan Officer, he was merely contented with producing its photocopy. Clearly, Lagman failed to exert diligent efforts to produce the original. Fueling further suspicion regarding the existence of the 1990 Bond is the absence of an Indemnity Agreement. While Lagman argued that a 1990 Bond novates the 1989 Bonds, he raises the defense of non-existence of an indemnity agreement which would conveniently exempt him

Before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents.
[28]

In the case at bar, Lagman mentioned during the direct examination that there are actually four (4) duplicate originals of the 1990 Bond: the first is kept by the NFA, the second is with the Loan Officer of the NFA in Tarlac, the third is with Country Bankers and the fourth was in his possession. other satisfactory explanation for the
[30] [29]

from liability. The trial court deemed this defense as indicia of bad faith, thus: To the observation of the Court, defendant Lagman contended that being a general agent (which requires a much higher qualification than an ordinary agent), he is expected to have attended seminars and workshops on general insurance wherein he is supposed to have acquired sufficient knowledge of the general principles of insurance which he had fully practised or

party must first present to the court proof of loss or nonWhen production of the original instrument.

more than one original copy exists, it must appear that all of them have been lost, destroyed, or cannot be produced in court before secondary evidence can

implemented from experience. It somehow appears to the Courts assessment of his reneging liability of the bonds in question, that he is still short of having really understood the principle of suretyship with reference to the transaction of indemnity in which he is a signatory. If, as he alleged, that he is well-versed in insurance, the Court finds no excuse for him to stand firm in denying his liability over the claim against the bonds with indemnity provision. If he insists in not recognizing that liability, the more that this Court is convinced that his knowledge that insurance operates under the principle of good faith is inadequate. He missed the exception provided by Section 177 of the Insurance Code, as amended, wherein non-payment of premium would not have the same essence in his mind that the agreements entered into would not have full force or effect. It could be glimpsed, therefore, that the mere fact of cancelling bonds with indemnity agreements and replacing them (absence of the same) to escape liability clearly manifests bad faith on his [32] part. (Emphasis supplied.)

must be extinguished; and 4) There must be a valid new contract.

[33]

In this case, only the first element of novation exists. Indeed, there is a previous valid obligation, i.e., the 1989 Bonds. There is however neither a valid new contract nor a clear agreement between the parties to a new contract since the very existence of the 1990 Bond has been rendered dubious. Without the new contract, the old contract is not extinguished. Implied obligation with novation which necessitates the old is a in
[34]

new total Quite

incompatibility such that the old obligation is completely superseded by the new one. this case, there is no new obligation. The liability of Lagman is expressed in Indemnity Agreements executed in consideration of the 1989 Bonds which we have considered as continuing contracts. Under both Indemnity Agreements, Lagman, as co-signor, together with Santos, Ban Lee Lim and Reguine, bound themselves jointly and severally to Country Bankers to indemnify it for any damage or loss sustained on the account of the execution of the bond, among others. The pertinent identical stipulations of the Indemnity Agreements state: INDEMNITY: To indemnify and make good to the COMPANY jointly and severally, any damages, prejudice, loss, costs, payments advances and expenses of whatever kind and nature, including attorneys fees and legal costs, which the COMPANY may, at any time, sustain or incur, as well as to reimburse to said COMPANY all sums and amounts of money obviously, neither can there be implied novation. In

Having discounted the existence and/or validity of the 1990 Bond, there can be no novation to speak of. Novation is the extinguishment of an obligation by the substitution or change of the obligation by a subsequent one which extinguishes or modifies the first, either by changing the object or principal conditions, or by substituting another in place of the debtor, or by subrogating a third person in the rights of the creditor. For novation to take place, the following requisites must concur: 1) There must be a previous valid obligation; 2) The parties concerned must agree to a new contract; 3) The old contract

which the COMPANY or its representatives shall or may pay or cause to be paid or become liable to pay, on account of or arising from the execution of the abovementioned BOND or any extension, renewal, alteration or substitution thereof made at the instance of the undersigned or anyone of [35] them.

show said payment, settlement or compromise, shall be prima facie evidence of said payment, settlement or compromise, as well as the liability of the undersigned in any and all suits and claims against the undersigned arising out of said bond or this bond [36] application. Lagman is bound by these Indemnity

Moreover, the Indemnity Agreements also contained identical Incontestability Clauses which provide: INCONTESTABILITY OF PAYMENTS MADE BY THE COMPANY: Any payment or disbursement made by the COMPANY on account of the above-mentioned Bond, its renewals, extensions, alterations or substitutions either in the belief that the COMPANY was obligated to make such payment or in the belief that said payment was necessary or expedient in order to avoid greater losses or obligations for which the COMPANY might be liable by virtue of the terms of the above-mentioned Bond, its renewals, extensions, alterations, or substitutions, shall be final and shall not be disputed by the undersigned, who hereby jointly and severally bind themselves to indemnify [Country Bankers] of any and all such payments, as stated in the preceding clauses. In case the COMPANY shall have paid[,] settled or compromised any liability, loss, costs, damages, attorneys fees, expenses, claims[,] demands, suits, or judgments as above-stated, arising out of or in connection with said bond, an itemized statement thereof, signed by an officer of the COMPANY and other evidence to

Agreements. Payments made by Country Bankers by virtue of the 1989 Bonds gave rise to Lagmans obligation to reimburse it under the Indemnity Agreements. Lagman, being a solidary debtor, is liable for the entire obligation. WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 61797 are SET ASIDE and the Decision dated 21 September 1998 of the RTC is hereby REINSTATED. SO ORDERED.

[G.R. No. 117740. October 30, 1998]

real properties in favor of Mrs. Josefina Viola, the wife of their counsel, Escolastico Viola. On July 7, 1972, private respondents Honoria Empaynado, Cecilia Abad Empaynado, and Marian Abad Empaynado filed a motion to set aside proceedings and for leave to file opposition in Special Proceedings No. 86792. In their motion, they alleged that Honoria Empaynado had been the common-law wife of Ricardo Abad for twenty-seven years before his death, or from 1943 to 1971, and that during these period, their union had produced two children, Cecilia Abad Empaynado and Marian Abad Empaynado. Private respondents also disclosed the existence of Rosemarie Abad, a child allegedly fathered by Ricardo Abad with another woman, Dolores Saracho. As the law awards the entire estate to the surviving children to the exclusion of collateral relatives, private respondents charged petitioners with deliberately concealing the existence of said three children in order to deprive the latter of their rights to the estate of Ricardo Abad. On July 24, 1972, private respondents filed a motion to withdraw their first motion and, in lieu thereof, filed a motion for reconsideration praying that Cecilia Abad be appointed administrator instead of Cesar Tioseco. The trial court denied private respondents motion to remove Cesar Tioseco as administrator, but allowed them to appear in the proceedings to establish their right as alleged heirs of Ricardo Abad. Private respondents later discovered that petitioners had managed to cancel TCT Nos. 13530, 53671, and 64021 through the stratagem of extrajudicially partitioning their mothers estate. Accordingly, on October 4, 1973, private respondents filed a motion to annul the extrajudicial partition executed by petitioners, as well as TCT Nos. 108482, 108483, and 108484, the Torrens titles issued in substitution of TCT Nos. 13530, 53671, and 64021 and the real estate mortgages constituted by the latter on said properties. After due trial, the lower court, on November 2, 1973, rendered the following judgment: WHEREFORE, judgment is hereby rendered as follows: (1) Declaring Marian Cecilia E. Abad, E. Abad and

CAROLINA ABAD GONZALES, petitioner, vs. COURT OF APPEALS, HONORIA EMPAYNADO, CECILIA H. ABAD, MARIAN H. ABAD and ROSEMARIE S. ABAD, respondents. DECISION ROMERO, J.: Before us is a petition for certiorari to annul the decision of the Court of Appeals dated October 19, 1994, finding private respondents as the heirs of Ricardo de Mesa Abad as well as annulling petitioners extra-judicial partition of the decedents estate. The facts are as follows: On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores de Mesa Abad and Cesar de Mesa Tioseco sought the settlement of the intestate estate of their brother, Ricardo de Mesa Abad, before the then Court of First Instance of Manila. In their petition, docketed as Special Proceedings No. 86792, petitioners claimed that they were the only heirs of Ricardo de Mesa Abad, as the latter allegedly died a bachelor, leaving no descendants or ascendants, whether legitimate or illegitimate. On May 9, 1972, petitioners amended their petition by alleging that the real properties covered by TCT Nos. 13530, 53671, and 64021, listed therein as belonging to the decedent, were actually only administered by the latter, the true owner being their late mother, Lucila de Mesa. On June 16, 1972, the trial court appointed Cesar de Mesa Tioseco as administrator of the intestate estate of Ricardo de Mesa Abad. Meanwhile, on May 2, 1972, petitioners executed an extrajudicial settlement of the estate of their late mother Lucila de Mesa, copying therein the technical descriptions of the lots covered by TCT Nos. 13530, 53671, and 64021. By virtue thereof, the Register of Deeds cancelled the abovementioned TCTs in the name of Ricardo Abad and issued, in lieu thereof, TCT No. 108482 in the name of Dolores de Mesa Abad, TCT No. 108483 in the name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina Abad Gonzales. The three promptly executed real estate mortgages over the

Rosemarie S. Abad acknowledged natural children of the deceased Ricardo M. Abad; (2) Declaring said acknowledged natural children, namely: Cecilia E. Abad, Marian E. Abad, and Rosemarie S. Abad the only surviving legal heirs of the deceased Ricardo M. Abad and as such entitled to succeed to the entire estate of said deceased, subject to the rights of Honoria Empaynado, if any, as coowner of any of the property of said estate that may have been acquired thru her joint efforts with the deceased during the period they lived together as husband and wife; Denying the petition of decedents collateral relatives, namely: Dolores M. Abad, Cesar M. Tioseco and Carolina M. Abad to be declared as heirs and excluding them from participating in the administration and settlement of the estate of Ricardo Abad; Appointing Honoria Empaynado as the administratrix in this intestacy with a bond of THIRTY THOUSAND (P30,000.00) PESOS; and Ordering Cesar Tioseco to surrender to the new administratrix all property or properties, monies and such papers that came into his possession by virtue of his appointment as administrator, which appointment is hereby [1] revoked.

The trial court, likewise, found in favor of private respondents with respect to the latters motion for annulment of certain documents. On November 19, 1974, it rendered the following judgment: WHEREFORE, this Court finds oppositors Motion for Annulment, dated October 4, 1973 to be meritorious and accordingly 1. Declares that the six (6) parcels of land described in TCT Nos. 13530, 53671 and 64021, all registered in the name of Ricardo Abad, as replaced by TCT No. 108482 in the name of Dolores de Mesa Abad, TCT No. 108483 in the name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina de Mesa Abad-Gonzales, and the residential house situated at 2432 Opalo Street, San Andres Subdivision, Manila, to be the properties of the late Ricardo Abad; 2. Declares the deed of Extra Judicial Settlement of the Estate of the Deceased Lucila de Mesa, executed on May 2, 1972 (Doc. No. 445, Page No. 86, Book No. VII, Series of 1972 of the notarial book of Faustino S. Cruz) by petitioners and Carolina de Mesa Abad-Gonzales, to be inexistent and void from the beginning; 3. Declares as null and void the cancellation of TCT Nos. 13530, 53671 and 64021 and issuance in lieu thereof, of TCT Nos. 108482, 108483 and 108484; 4. Orders the Register of Deeds of Manila to cancel TCT No. 108482 of Dolores de Mesa Abad; TCT No. 108483 of Cesar de Mesa Tioseco; and TCT No. 108484 of Carolina de Mesa AbadGonzales and in lieu thereof, restore and/or issue the corresponding certificate of title in the name of Ricardo Abad; 5. Declares as inexistent and void from the beginning the three (3) real estate mortgages executed on July 7, 1972 executed by (a) petitioner Dolores de

(3)

(4)

(5)

Mesa Abad, identified as Doc. No. 145, Page No. 30, Book No. XX, Series of 1972; (b) petitioner Cesar de Mesa Tioseco, identified as Doc. No. 146, Page 31, Book No. XX, Series of 1972; and (c) Carolina de Mesa AbadGonzales, identified as Doc. No. 144, Page No. 30, Book No. XX, Series of 1972, all of the notarial book of Ricardo P. Yap of Manila, in favor of Mrs. Josefina C. Viola, and orders the Register of Deeds of Manila to cancel the registration or annotation thereof from the back of the torrens title of Ricardo Abad; and 6. Orders Atty. Escolastico R. Viola and his law associate and wife, Josefina C. Viola, to surrender to the new administratrix, Honoria Empaynado, TCT Nos. 108482, 108483, and 108484 within five (5) days from receipt hereof. SO ORDERED.
[2]

the order of November 2, 1973 declaring private respondents heirs of the deceased Ricardo Abad, and the order dated November 19, 1974, annulling certain documents pertaining to the intestate estate of deceased. The two appeals were accordingly elevated by the trial court to the appellate court. On October 19, 1994, the Court of Appeals rendered judgment as follows: WHEREFORE, all the foregoing considered, the instant appeal is DENIED for lack of merit. The orders of the court a quo in SP No. 86792, to wit: 1. Order dated November 2, 1973, declaring in substance that Cecilia, Marian and Rosemarie, all surnamed Abad as the acknowledged natural children and the only surviving heirs of the deceased Ricardo Abad; 2. Order dated November 19, 1974, declaring in substance that the six (6) parcels of land described in TCT Nos. 13530, 53671 and 64021 are the properties of Ricardo Abad; that the extra-judicial partition of the estate of the deceased Lucila de Mesa executed on May 2, 1972 is inexistent and void from the beginning; the cancellation of the aforementioned TCTs is null and void; the Register of Deeds be ordered to restore and/or issue the corresponding Certificates of Title in the name of Ricardo Abad; and 3. Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco from the latter Order, for being filed out of time, are all AFFIRMED in toto. With costs against petitioner-appellants. SO ORDERED.
[3]

Petitioners motion for reconsideration of the November 2, 1973 decision was denied by the trial court. Their notice of appeal was likewise denied on the ground that the same had been filed out of time. Because of this ruling, petitioners instituted certiorari and mandamus proceedings with the Court of Appeals, docketed there as C.A.G.R. No. SP-03268-R. On November 2, 1974, the appellate court granted petitioners petition and ordered the lower court to give due course to the latters appeal. The trial court, however, again dismissed petitioners appeal on the ground that their record on appeal was filed out of time. Likewise, on January 4, 1975, petitioners filed their notice of appeal of the November 19, 1974 ruling of the trial court. On March 21, 1975, this appeal was similarly denied on the ground that it had been filed out of time. Due to the dismissal of their two appeals, petitioners again instituted certiorari and mandamus proceedings with the Court of Appeals, docketed therein as C.A.-G.R. No. SP-04352. The appellate court affirmed the dismissal of the two appeals, prompting petitioners to appeal to the Supreme Court. On July 9, 1985, this Court directed the trial court to give due course to petitioners appeal from

Petitioners now seek to annul the foregoing judgment on the following grounds: I. THE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT RESPONDENTS CECILIA E. ABAD, MARIAN E. ABAD AND ROSEMARIE S. ABAD ARE THE

ACKNOWLEDGED NATURAL CHILDREN OF THE DECEASED RICARDO DE MESA ABAD. II. PETITIONERS ARE ENTITLED TO THE SUBJECT ESTATE WHETHER THE SAME IS OWNED BY THE DECEASED RICARDO DE MESA ABAD OR BY LUCILA DE MESA, THE MOTHER OF PETITIONERS AND RICARDO DE MESA ABAD. We are not persuaded. Petitioners, in contesting Cecilia, Marian and Rosemarie Abads filiation, submits the startling theory that the husband of Honoria Empaynado, Jose Libunao, was still alive when Cecilia and Marian Abad were born in 1948 and 1954, respectively. It is undisputed that prior to her relationship with Ricardo Abad, Honoria Empaynado was married to Jose Libunao, their union having produced three children, Angelita, Cesar, and Maria Nina, prior to the birth of Cecilia and Marian. But while private respondents claim that Jose Libunao died in 1943, petitioners claim that the latter died sometime in 1971. The date of Jose Libunaos death is important, for if he was still alive in 1971, and given that he was legally married to Honoria Empaynado, the presumption would be that Cecilia and Marian are not Ricardo Abads children with the latter, but of Jose Libunao and Honoria Empaynado. Article 256, the applicable provision of the Civil Code, provides: Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an [4] adulteress. To bolster their theory, petitioners presented in evidence the application for enrolment at Mapua Institute of Technology of Angelita Libunao, accomplished in 1956, which states: Fathers Name: Occupation: Mothers Name: Jose Libunao engineer (mining) Honoria Empaynado
[5]

as well as Cesar Libunaos 1958 application for enrolment at the Mapua Institute of Technology, which states: Fathers Name: Occupation: Mothers Name: Jose Libunao none Honoria Empaynado
[6]

Petitioners claim that had Jose Libunao been dead during the time when said applications were accomplished, the enrolment forms of his children would have stated so. These not being the case, they conclude that Jose Libunao must have still been alive in 1956 and 1958. Additionally, petitioners presented the joint affidavit of Juan Quiambao and Alejandro [7] Ramos stating that to their knowledge Jose Libunao had died in 1971, leaving as his widow, Honoria Empaynado, and that the former had been interred at the Loyola Memorial Park. Lastly, petitioners presented the affidavit of Dr. [8] Pedro Arenas, Ricardo Abads physician, declaring that in 1935, he had examined Ricardo Abad and found him to be infected with gonorrhea, and that the latter had become sterile as a consequence thereof. With these pieces of evidence, petitioners claim that Cecilia and Marian Abad are not the illegitimate children of Ricardo Abad, but rather the legitimate children of the spouses Jose Libunao and Honoria Empaynado. At the outset, it must be noted that petitioners are disputing the veracity of the trial courts finding of facts. It is a fundamental and settled rule that factual findings of the trial court, adopted and confirmed by the Court of Appeals, are final and conclusive and may not be reviewed on [9] appeal. Petitioners, however, argue that factual findings of the Court of Appeals are not binding on this Court when there appears in the record of the case some fact or circumstance of weight and influence which has been overlooked, or the significance of which has been misinterpreted, that if [10] considered, would affect the result of the case. This Court finds no justifiable reason to apply this exception to the case at bar.

First, the evidence presented by petitioners to prove that Jose Libunao died in 1971 are, to say the least, far from conclusive. Failure to indicate on an enrolment form that ones parent is deceased is not necessarily proof that said parent was still living during the time said form was being accomplished. Furthermore, the joint affidavit of Juan Quiambao and Alejandro Ramos as to the supposed death of Jose Libunao in 1971 is not competent evidence to prove the latters death at that time, being merely secondary evidence thereof. Jose Libunaos death certificate would have been the best evidence as to when the latter died. Petitioners have, however, inexplicably failed to present the same, although there is no showing that said death certificate has been lost or destroyed as to be unavailable as proof of Jose Libunaos death. More telling, while the records of Loyola Memorial Park show that a certain Jose Bautista Libunao was indeed buried there in 1971, this person appears to be different from Honoria Empaynados first husband, the latters name being Jose Santos Libunao. Even the name of the wife is different. Jose Bautista Libunaos wife is listed as Josefa Reyes while the wife of Jose Santos Libunao was Honoria Empaynado. As to Dr. Arenas affidavit, the same was objected to by private respondents as being privileged communication under Section 24 (c), Rule [11] 130 of the Rules of Court. The rule on confidential communications between physician and patient requires that: a) the action in which the advice or treatment given or any information is to be used is a civil case; b) the relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; c) the advice or treatment given by him or any information was acquired by the physician while professionally attending the patient; d) the information was necessary for the performance of his professional duty; and e) the disclosure of the information would [12] tend to blacken the reputation of the patient. Petitioners do not dispute that the affidavit meets the first four requisites. They assert, however, that the finding as to Ricardo Abads sterility does not blacken the character of the deceased. Petitioners conveniently forget that Ricardo Abads sterility arose when the latter contracted gonorrhea, a fact which most assuredly blackens his reputation. In fact, given that society holds virility at a premium, sterility alone, without the attendant embarrassment of contracting a

sexually-transmitted disease, would be sufficient to blacken the reputation of any patient. We thus hold the affidavit inadmissible in evidence. And the same remains inadmissible in evidence, notwithstanding the death of Ricardo Abad. As stated by the trial court: In the case of Westover vs. Aetna Life Insurance Company, 99 N.Y. 59, it was pointed out that: The privilege of secrecy is not abolished or terminated because of death as stated in established precedents. It is an established rule that the purpose of the law would be thwarted and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy, from the communications and disclosures which a patient should make to his physician. After one has gone to his grave, the living are not permitted to impair his name and disgrace his memory by dragging to light communications and disclosures made under the seal of the statute. Given the above disquisition, it is clearly apparent that petitioners have failed to establish their claim by the quantum of evidence required by law. On the other hand, the evidence presented by private respondents overwhelmingly prove that they are the acknowledged natural children of Ricardo Abad. We quote with approval the trial courts decision, thus: In his individual statements of income and assets for the calendar years 1958 and 1970, and in all his individual income tax returns for the years 1964, 1965, 1967, 1968, 1969 and 1970, he has declared therein as his legitimate wife, Honoria Empaynado; and as his legitimate dependent children, Cecilia, Marian (except in Exh. 12) and Rosemarie Abad (Exhs. 12 to 19; TSN, February 26, 1973, pp. 33-44). xxx x xx xxx

In December 1959, Ricardo Abad insured his daughters Cecilia, then eleven (11) years old, and Marian, then (5) years old, on [a] twenty (20) yearendowment plan with the Insular Life Assurance Co., Ltd. and paid for their premiums (Exh. 34 and 34-A; 34-B to C; 35, 35-A to D; TSN, February 27, 1973, pp. 7-20).

In 1966, he and his daughter Cecilia Abad opened a trust fund acount of P100,000.00 with the Peoples Bank and Trust Company which was renewed until (sic) 1971, payable to either of them in the event of death (Exhs. 36-A; 36-E). On January 5, 1971, Ricardo Abad opened a trust fund of P100,000.00 with the same bank, payable to his daughter Marian (Exh. 37-A). On January 4, 1971, Ricardo Abad and his sister Dolores Abad had (sic) agreed to stipulate in their PBTC Trust Agreement that the 9% income of their P100,000.00 trust fund shall (sic) be paid monthly to the account reserved for Cecilia, under PBTC Savings Account No. 49053 in the name of Ricardo Abad and/or Cecilia Abad (Exh. 38) where the income of the trust fund intended for Cecilia was also deposited monthly (TSN, February 27, 1973, pp. 21-36). Ricardo Abad had also deposited (money) with the Monte de Piedad and Savings Bank in the name of his daughter Marian, represented by him, as father, under Savings Account 17348 which has (sic) a balance of P34,812.28 as of June 30, 1972. (Exh. 60-B) With the finding that private respondents are the illegitimate children of Ricardo Abad, petitioners are precluded from inheriting the estate of their brother. The applicable provisions are: Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. Art. 1003. If there are noillegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (Italics supplied) As to petitioners claim that the properties in the name of Ricardo Abad actually belong to their mother Lucila de Mesa, both the trial court and the appellate court ruled that the evidence presented by private respondents proved that said properties in truth belong to Ricardo Abad. As stated earlier, the findings of fact by the trial court are entitled to great weight and should not be disturbed on appeal, it being in a better position to examine the real evidence, as well as to observe the demeanor of the [13] witnesses while testifying in the case. In fact, petitioners seem to accept this conclusion, their contention being that they are entitled to the

subject estate whether the same is owned by Ricardo Abad or by Lucila de Mesa. Digressing from the main issue, in its decision dated October 19, 1994, the Court of Appeals affirmed the trial courts order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco on the ground that the same was filed out of time. This affirmance is erroneous, for on July 9, 1985, this Court had already ruled that the same was not filed out of time. Wellsettled is the dictum that the rulings of the Supreme Court are binding upon and may not be reversed by a lower court. WHEREFORE, premises considered, the instant petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 30184 dated October 19, 1994 is AFFIRMED with theMODIFICATION that the affirmance of the Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco for being filed out of time is SET ASIDE. Costs against petitioners. SO ORDERED. Narvasa, C.J., (Chairman), Purisima, and Pardo, JJ., concur. Kapunan,

DANILO L. PAREL, Petitioner,

G.R. NO. 146556 Regional Trial Court (RTC), Branch 60, Baguio, in Civil Case No. 2493-R, a case for recovery of possession

Present: and damages.

[2]

Also

assailed

is

CA

Resolution dated November 28, 2000. PANGANIBAN, C.J. (Chairperson) - versus YNARES-SANTIAGO, AUSTRIAMARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ. On February 27, 1992,

Simeon Prudencio (respondent) filed a complaint for recovery of possession and damages against petitioner with the RTC Baguioalleging that: he is the

SIMEON B. PRUDENCIO, Respondent.

Promulgated: April 19, 2006

owner of a two-storey residential house located at No. 61 Forbes Park National Reservation near Department of Public Service property (DPS) was

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -----------x

compound,Baguio City; such

constructed solely from his own funds and declared in his name under Tax Declaration No. 47048; he DECISION commenced the construction of said house in 1972 until its completion three years later; when the second floor of said house became habitable in AUSTRIA-MARTINEZ, J.: 1973, he allowed petitioners

parents, Florentino(now deceased) and Susan Parel, to move therein and occupy the second floor while Before us is a petition for review on certiorari filed by Danilo Parel (petitioner) which seeks to set aside the Decision dated March 31, 2000 of the Court of Appeals (CA) which reversed the Decision of the
[1]

the construction of the ground floor was on-going to supervise the construction and to safeguard the materials; when the construction of the second floor was finished in 1975, respondent allowed

petitioners parents and children to transfer and

temporarily reside thereat; it was done out of sheer magnanimity as petitioners parents have no house of their own and since respondents wife is the older sister ofFlorentino, petitioners father; in November 1985, respondent wrote Florentino a notice for them to vacate the said house as the former was due for retirement and he needed the place to which petitioners parents heeded when they migrated to U.S. in 1986; however, without respondents knowledge, petitioner and his family unlawfully entered and took possession of the ground floor of respondents house; petitioners refusal to vacate the house despite repeated demands prompted respondent to file the instant action for recovery of possession. Respondent also asked petitioner for a monthly rental of P3,000.00 from April 1988 and every month thereafter until the latter vacates the said premises and surrender possession thereof; and for moral and exemplary damages, attorneys fees and cost of suit.

ground

floor

upon

the

instruction

of

his

father, Florentino, with respondents full knowledge; his parents spent their own resources in improving and constructing the said two-storey house as coowners thereof; the late Florentino was

an awardee of the land on which the house stands and as a co-owner of the house, he occupied the ground floor thereof; the demand to vacate was respondents attempt to deprive petitioners parents of their rights as co-owner of the said house; that respondent had filed ejectment case as well as criminal cases against them involving the subject house which were all dismissed. Petitioner asked for the dismissal of the complaint and prayed for damages and attorneys fees.

After trial on the merits, the RTC rendered a Decision dated December 1993, the dispositive portion of which reads:
[3]

15,

Petitioner

filed

his

Answer

with

Counterclaim alleging that: his parents are the coowners of the said residential house, i.e., the upper story belongs to respondent while the ground floor pertains to petitioners parents; he is occupying the

WHEREFORE, premises considered, the Court hereby declares that the house erected at No. 61 DPS Compound, Baguio City is owned in common by the late Florentino Parel and herein plaintiff Simeon Prudencio and as such the plaintiff cannot evict the

defendant as heirs of the deceased Florentino Parel from said property, nor to recover said premises from herein defendant.

of the house; and, that the late Florentino was the one who gathered the laborers for the construction of the house and paid their salaries. Thus, the RTC

Likewise, the plaintiff is ordered to:

ruled

that

co-ownership

existed

between

respondent and petitioners father, Florentino.

(a) pay the defendant in the total sum of P20,000.00 for moral and actual damages; (b) pay the defendant P20,000.00 in Attorneys fees and P3,300.00 in appearance fees; ( c) pay the costs of this suit.
[4]

The RTC concluded that respondent and petitioners father agreed to contribute their money to complete the house; that since the land on which said house was erected has been allocated to petitioners father, the parties had the

understanding that once the house is completed, petitioners father could keep the ground floor while respondent the second floor; the trial court The RTC found the following matters as conclusive: that petitioners father was questioned the fact that it was only after 15 years that respondent asserted his claim of sole ownership of the subject house; respondent failed to disprove that petitioners father contributed his own funds to finance the construction of the house; that respondent did not question (1) the fact that it was the deceased Florentino who administered the

an allocatee of the land on which the subject house was erected, as one of the lowly-paid government employees at that time when then Mayor

Luis Lardizabal gave them the chance to construct their own house on said reservation; that

respondent failed to show proof of any contract, written or oral, express or implied, that the late Florentino and his family stayed on the house not as co-owners but as mere lessees, nor any other proof that would clearly establish his sole ownership

construction of the house as well as the one who supplied the materials; and (2) the fact that the land was in Florentinos possession created the

impression that the house indeed is jointly owned by respondent and Florentino.

monthly rental of P2,000.00 for use or occupancy thereof from April 1988 until the former actually The RTC did not give credence to the tax vacates the same and the sum of P50,000.00 as declaration as well as the several documents attorneys fees and cost of suit. showing the City Assessors assessment of the property all in respondents name since tax declarations are not conclusive proof of ownership. The CA found as meritorious respondents It rejected the affidavit executed contention that since petitioner failed to formally by Florentino declaring the house as owned by offer respondent saying that the affidavit should be read evidence, there is nothing to refute the evidence in its entirety to determine the purpose of its offered by respondent. It ruled that the trial courts execution; that it was executed because of an statement that defendants occupancy of the house advisement addressed to the late Florentino by the is due to a special power of attorney executed by his City Treasurer concerning the propertys tax parents assessment and Florentino, thought then that it deceased Florentino Parel who is in fact a co-owner should be the respondent who should pay the taxes; of said building is wanting of any concrete evidence and that the affidavit cannot be accepted for being on record; that said power of attorney was never hearsay. offered, hence, could not be referred to as petitioners evidence to support his claim; that Aggrieved by such decision, respondent appealed to the CA. In a Decision dated March 31, 2000, the CA reversed the trial court and declared respondent as the sole owner of the subject house and ordered petitioner to surrender possession of the ground floor thereof to respondent immediately. It also ordered petitioner to pay respondent a establish factual bases for the trial courts supporting document which would sufficiently was allocated to petitioners father, there was no former barangay captain, who testified that the lot constructed the house and Corazon Garcia, the the carpenter-foreman, that it was Florentino who except for the bare testimonies ofCandelario Regua, most specially the in evidence any documentary

1. conclusion; and that the rule on offer of evidence is mandatory.

The CA found the affidavit dated September 24, 1973 of Florentino, petitioners father, stating that he is not the owner of the subject house but respondent, as conclusive proof of respondents sole ownership of the subject house as it is a declaration made by Florentino against his interest. It also found the tax declarations and official receipts 2.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING RESPONDENT AS THE OWNER OF THE BUILDING AT 61 FORBES PARK NATIONAL RESERVATION, NEAR DPS COMPOUND, BAGUIO CITY, NOTWITHSTANDING THE FINDING OF THE REGIONAL TRIAL COURT OF CO-OWNERSHIP BETWEEN THE LATE FLORENTINO PAREL AND RESPONDENT; THE HONORABLE COURT APPEALS GRAVELY ERRED ORDERING PETITIONER SURRENDER POSSESSION OF GROUND FLOOR THE SUBJECTBUILDING TO RESPONDENT; OF IN TO THE OF

representing payments of real estate taxes of the questioned property covering the period 1974 to 1992 sufficient to establish respondents case which constitute at least proof that the holder has a claim of title over the property. 3.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY RESPONDENT P2,000.00/MONTH FOR USE OR OCCUPANCY OF THE SUBJECT PREMISES FROM APRIL 1988 UNTIL PETITIONER ACTUALLY VACATES THE SAME; THE HONORABLE COURT APPEALS GRAVELY ERRED ORDERING PETITIONER TO PAY RESPONDENT P50,000.00 ATTORNEYS FEES AND COSTS SUIT; OF IN TO OF

4. Petitioners motion for reconsideration was denied in a Resolution dated November 28, 2000.

Hence, the instant petition for review on certiorari with the following Assignment of Errors:

5.

THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONERS MOTION FOR [5] RECONSIDERATION.

Petitioner concedes that while his former counsel failed to make a formal offer of his documentary evidence before the trial court and

conclusive proof that respondent is the true and only owner of the house since the affidavit should be read in its entirety to determine the purpose for which it was executed.

that the court shall consider no evidence which has not been formally offered, he maintains that the said rule is not absolute, citing the case of Bravo, Jr. v. Borja; that his documentary evidence which subject house, respondent has no legal right to eject were not formally offered in evidence were marked during the presentation of the testimony of petitioners witnesses and were part of their testimonies; that these evidence were part of the memorandum filed by him before the trial court on constrained to litigate. July 12, 1993. him from the property; that he could not be compelled to pay rentals for residing in the ground floor of the subject house; that respondent should bear his own expenses and be adjudged liable for damages which petitioner sustained for being
[6]

Petitioner further contends that since he had established his fathers co-ownership of the

Petitioner insists that even in the absence of the documentary evidence, his testimony as well as that of his witnesses substantiated his claim of coownership of the subject house between his late father and respondent as found by the trial court.

The principal issue for resolution is whether petitioner was able to prove by

preponderance of evidence that his father was a coowner of the subject two-storey residential house.

The issue raised by petitioner is mainly Petitioner argues that the CA erred in finding the affidavit of petitioners father declaring respondent as owner of the subject house as factual in nature. In general, only questions of law are appealable to this Court under Rule

45. However, considering that the findings of the

RTC and CA are contradictory, the review of the case is in order.

[7]

residing at 55 Hyacinth, Roxas District, Quezon Ci ty.

We agree with the CA that respondent had shown sufficient evidence to support his complaint for recovery of possession of the ground floor of the subject house as the exclusive owner thereof. Respondent dated September presented 24, the affidavit say not.

[8]

Further, affiant (Underscoring supplied)

Section 38 of Rule 130 of the Rules of Court provides:

1973 executed

by Florentino and sworn to before the Assistant City Assessor of Baguio City, G.F. Lagasca, which reads: I, FLORENTINO PAREL, 42 years of age, employee, and residing at Forbes Park, Reservation No. 1, after having been sworn to according to law depose and say: SEC. 38. Declaration against interest. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.

That he is the occupant of a residential building located at Forbes Park, Reservation No. 1, Baguio City which is the subject of an advicement addressed to him emanating from the Office of the City Assessor, Baguio City, for assessment and declaration for taxation purposes;

The theory That I am not the owner of the building in question; against interest

under which received

declarations in evidence

are

notwithstanding they are hearsay is that the necessity of the occasion renders the reception of That the building in question is owned by Mr. Simeon B. Prudencio who is presently such evidence advisable and, further that the

reliability of such declaration asserts facts which are against his own pecuniary or moral interest.
[9]

respondent for ejectment;

was
[12]

to

file

an

action

and even when a complaint for

unlawful detainer was filed against petitioner and his wife also in 1988 which was subsequently dismissed The affiant, Florentino, who died in 1989 was petitioners father and had adequate knowledge with respect to the subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant of the residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to himself as well as to his childrens interests as his heirs.
[10]

on the ground that respondents action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial Court.
[13]

Moreover,

the

building

plan

of

the

residential house dated January 16, 1973 was in the name of respondent and his wife. It was established during petitioners cross-examination that the existing structure of the two-storey house was in accordance with said building plan.
[14]

A declaration

against interest is the best evidence which affords the greatest

[11]

certainty

of

the

facts

in Notably, respondent has been religiously paying the real estate property taxes on the house declared under his name since 1974.
[15]

dispute.

Notably,

duringFlorentinos lifetime,

from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that petitioner entered the house against the latters will and held that the remedy of

In fact,

petitioner during his cross-examination admitted that there was no occasion that they paid the real estate taxes nor declared any portion of the house in their name.
[16]

We agree with the CA that while tax receipts and declarations are not incontrovertible evidence of ownership, they constitute at least proof that the holder has a claim of title over the property.
[17]

The house which petitioner claims to be

co-owned by his late father had been consistently declared for taxation purposes in the name of respondent, and this fact, taken with the other circumstances above-mentioned, inexorably lead to the conclusion that respondent is the sole owner of the house subject matter of the litigation.

burden of evidence shifts to defendant to controvert plaintiff's prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendants. The concept of preponderance of evidence refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at [19] bottom, it means probability of truth.

In this case, the records show that although petitioners counsel asked that he be allowed to offer his documentary evidence in writing, he, however, did not file the same.
[20]

Thus, the CA did

Respondent having established his claim of not consider the documentary evidence presented exclusive ownership of the subject property, it was by petitioner. Section 34 of Rule 132 of the Rules of incumbent upon petitioner to contravene Court provides: respondents claim. The burden of evidence shifted to petitioner to prove that his father was a co-owner of the subject house. Section 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

We held in Jison v. Court of Appeals, to wit:

[18]

A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his

xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the

judgment only and strictly upon the evidence offered by the parties to the suit.
[21]

It is a settled

rule that the mere fact that a particular document is

identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party.
[22]

be heard wholly or partly on oral testimony or depositions.

and not Section 34 of Rule 132 of the Rules of Court which is the one applicable to the present case. Petitioner insists that although his

documentary evidence were not formally offered, the same were marked during the presentation of the testimonial evidence, thus it can properly be taken cognizance of relying in Bravo, Jr. v. Borja.
[23]

Even

assuming arguendo that

the

documentary evidence of petitioner should be considered in his favor, the evidence showing that respondent had filed civil and criminal cases against petitioner which were dismissed as well as the

Such reliance is misplaced. In Bravo Jr., we allowed evidence on minority by admitting the certified true copy of the birth certificate attached to a motion for bail even if it was not formally offered in evidence. This was due to the fact that the birth certificate was properly filed in support of a motion for bail to prove petitioners minority which was never challenged by the prosecution and it already formed part of the records of the case. The rule referred to in the Bravo case was Section 7 of Rule 133 of the Rules of Court which provides: Section 7. Evidence on motion.- When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter

alleged Special Power of Attorney of petitioners parents whereby they authorized petitioner to stay in the ground floor of the house, did not establish co-ownership respondent of the subject house. of Florentino and

The testimonies of petitioner and his witnesses failed to show that the subject house is co-owned by petitioners father and respondent.

Candelario Regua merely testified that he was hired by petitioners father, Florentino, to construct the residential building in 1972;
[24]

that he

listed the materials to be used for the construction which was purchased by Florentino;
[25]

order of his father

[32]

and never saw respondent in

that he and

the construction site. The fact that not one of the witnesses saw respondent during the construction of the said house does not establish that petitioners father and respondent co-owned the house.

his men received their salaries every Saturday and Wednesday respectively;
[26]

from Florentino or

his

wife,

that he had not met nor seen

respondent during the whole time the construction was on-going.

[27]

On cross-examination, however, he We also find that the CA did not err in ordering petitioner to pay respondent being the sole owner of the subject house a monthly rental of P2,000.00 from April 1988, the date of the extrajudicial demand, until petitioner actually vacates the

admitted that he cannot tell where the money to buy the materials used in the construction came from.
[28]

Corazon

Garcia

merely

testified

subject

house.

Although

the

CA

made

no

that Florentino started building the house when he was allocated a lot at DPS compound, that she knew Florentino constructed house
[29]

ratiocination as to how it arrived at the amount of P2,000.00 for the monthly rental, we find the same to be a reasonable compensation for the use of the ground floor of the subject house which consists of a living room, a dining room, a kitchen and three bedrooms. The rental value refers to the value as ascertained by proof of what the property would rent or by evidence of other facts from which the fair rental value may be determined.
[33]

the
[30]

subject The bare

and never knew respondent.

allegation that Florentino was allocated a lot is not sufficient to overcome Florentinos own affidavit naming respondent as the owner of the subject house.

Petitioner himself testified that it was his father who saw the progress of the construction and purchased the materials to be used;
[31]

We likewise affirm the CAs award of attorneys fees in favor of respondent. Article 2208 of the Civil Code allows the recovery of attorneys

and as a

young boy he would follow-up some deliveries upon

fees in cases when the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest
[34]

CONSUELO YNARES-SANTIAGO ROMEO J. CALLEJO, SR. Associate Justice Associate Justice

and in any other case where the court MINITA V. CHICO-NAZARIO Associate Justice

deems it just and equitable that attorneys fees and expenses of litigation should be recovered are both shown in the instant case.
[35]

which

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

WHEREFORE, the decision of the Court of Appeals dated March 31, 2000 and its Resolution dated November 28, 2000 are AFFIRMED.

ARTEMIO V. PANGANIBAN Chief Justice

Costs against petitioner.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice Chairperson

[G.R. No. 136304. January 25, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER RAMA, accused-appellant. DECISION PUNO, J.: The birth of the New Year in 1998 saw the loss of Roger and Eufemia Cabiguin's infant child, Joyce Ann Cabiguin. For her loss, an information was filed against the accused Roger Rama, viz: "That on or about the 1st day of January, 1998, in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, ROGER RAMA, did then and there, wilfully, unlawfully and feloniously kidnap JOYCE ANN CABIGUIN, a minor, one (1) year and six (6) months old. Contrary to Article 267, par. 4 of the Revised Penal [1] Code." The prosecution's story was gathered mainly from the testimony of five-year old Roxanne Cabiguin, a cousin of Joyce Ann. On January 1, 1998, Roxanne, her sister Rose Ann, Mama Weng, Uncle Dony, grandmother Diana, Joyce Ann and the latter's younger brother Pogi were at the Dagupan public plaza. Roxanne played with her Uncle Dony, Rose Ann, and Joyce Ann at the plaza's stage while her Mama Weng sat at the side of the stage, feeding Pogi. Mama Diana went to a store to buy some food. At that time, the accused Rama and another man were also at the plaza. Rama called Roxanne and told her that if she would bring the beautiful girl (referring to Joyce Ann) to him, he would give Roxanne a biscuit. Rama gave her one biscuit. She ate it. She then carried Joyce Ann to the accused Rama who ran away with little Joyce Ann. Roxanne told her Mama Weng and Mama Diana that Joyce Ann was taken by a man. They looked for Joyce Ann and the man but they were nowhere to be found. During her testimony, Roxanne pointed to the accused Rama as the man who took away Joyce [2] Ann.

Roxanne's testimony was corroborated by Pierre Torio. On January 1, 1998, he was with his cousin and niece at the Dagupan City plaza from about 1:15 p.m. to 4:30 p.m. Facing the stage, they sat on a bench to its right. They were about nine to ten meters away from the stage. There were about seven children playing on the stage. At about 1:30 p.m. to 2:00 p.m., the accused Rama entered the plaza and sat about five to six meters away from them. He was with two other men and a pregnant woman. He entered the plaza playground where many kids were playing. He stared at the children and looked confused, then came out seemingly not knowing what to do, and approached the stage. But before he could reach the stage, he returned to the playground. Subsequently, at about 2:45 p.m., a tall man asked Torio if he saw the missing Joyce Ann. He replied that he saw the accused Rama acting suspiciously in the plaza. He did not see though whether Rama took Joyce Ann. By this time, Rama [3] was nowhere in sight. On January 7, 1998, Torio's cousin called him up to go to the Dagupan City police station because the person who took Joyce Ann was there. He was asked to identify the man he saw acting suspiciously at the playground. The police pointed successively to the men sitting at the police station and each time asked Torio if that was the suspicious-acting man. He replied in the negative. When the police pointed the accused Rama, Torio confirmed that he was the man acting suspiciously. He gave a sworn statement narrating what he saw on January 1, 1998 at the Dagupan plaza playground. On the witness stand, Torio pointed to the accused Rama as the man who acted suspiciously at the playground. He affirmed that he could not be mistaken because the accused Rama sat only about five to six meters away [4] from him. Diana Laviste Cabiguin, paternal grandmother of Joyce Ann, also testified. Along with Joyce Ann and other relatives, she went to the Dagupan plaza on January 1, 1998. At the time Joyce Ann disappeared, Diana went to McDonald's to buy some snacks. When she went back to her relatives, Joyce Ann was already gone. One of the children playing in the plaza playground, Bryan Ocampo, informed Diana's group that Joyce Anne was taken by a man. They searched in vain for the missing Joyce Ann. Two days later, or on January 3, 1998, after receiving tips from the townspeople, Diana went to Binmaley, Pangasinan, the vicinity where the

accused lived. She was with a certain Elvira Sebastian, some policemen, and three children at the plaza playing with Joyce Ann on January 1, 1998, namely: thirteen-year old Bryan Ocampo, elevenyear old Benjamin Sarmiento, and Jesus Ulanday. When the group reached the house of the accused Rama, they found the latter and his wife and their children sleeping. They were permitted by the accused Rama to examine the premises of his house and to look for the missing Joyce Anne. Their search was fruitless but all three kids pointed to the accused Rama as the kidnapper. Jesus even urinated upon seeing the accused Rama because the latter spanked him when he (Jesus) ran after Rama as the latter took away Joyce Ann. Rama threatened Jesus not to follow him or else he (Rama) would throw a stone at him. On January 5 or 6, 1998, Diana, Bryan, Benjamin, and Jesus went again to Binmaley. All three children pointed again to the accused Rama as the man who took Joyce Anne. The three children did not, however, take the witness stand. Bryan's parents were at first willing to let Bryan testify, but after Rama's wife talked to them, they changed their mind. Benjamin's father was at first also willing to let his child testify but later on had a change of heart [5] for fear of their safety. Elvira Sebastian corroborated Diana Laviste's testimony. She testified that on the night of January 1, 1998, Diana, along with some policemen and three children who witnessed the taking of Joyce Ann, one of whom was a certain Bryan, went to her house because the first suspect was her uncle, Eduardo Sebastian. The children were asked if Eduardo was the kidnapper, but they answered in the negative. Diana asked Elvira's assistance to find the kidnapper. The following day, or on January 2, 1998, at about 9:00 a.m., Diana went back to Elvira's house. Elvira, Diana, Bryan, Benjamin, and Jesus asked around about the missing Joyce Anne. Elvira learned from the former manager of the fish business where the accused Rama worked that there were other instances of kidnapping in the market place. She (the manager) informed Elvira that on January 1, 1998, she saw the accused Rama with a child. The manager told Elvira that the latter might be familiar with Rama's face because he was pushing carts of fish for a living and these cart pushers would usually buy doughnuts from the store of Elvira's father. Elvira stayed behind to wait for the accused

Rama at the manager's store. The rest of Diana's group went to the National Bureau of Investigation. After an hour's wait in vain, Elvira left. She returned the following day, but again, the accused Rama did not show up. On January 3, 1998, Elvira went with Diana, Bryan, Benjamin, Jesus, Roger (father of Joyce Ann), and some policemen to Rama's house. The children pointed to the accused Rama as the culprit. One of the children whom the accused Rama spanked at the park during the taking of Joyce Ann even urinated out of fright when he saw the accused. Despite the identification made by the children, the policemen did not arrest Rama. This prompted Diana to go to the Philippine National Police - Criminal Investigation and Detection Group (PNP-CIDG) in Dagupan City for the arrest of the accused Rama. The following day, she and the children went to the Magsaysay market beside Mele's restaurant and saw again the accused Rama. The children again pointed to the accused as the man behind Joyce Ann's taking. Rama threatened them not to implicate him or he would kill them. The group left the place. She executed an [6] affidavit narrating the foregoing incidents. SPO3 Teofilo Ubando, investigator at the PNPCIDG in Dagupan City, also took the witness stand. He testified that on January 6, 1998, Roger and his wife, Eufemia, went to the CIDG office. They reported to Ubando that the accused Rama kidnapped their daughter, Joyce Ann. Bryan and Benjamin who witnessed the accused Rama take Joyce Ann, also went to the CIDG office. The two children informed Ubando where the accused Rama lived. Eufemia, Ubando, Bryan, Benjamin, and other policemen went to Rama's house in Binmaley, Pangasinan, while Roger was left in the office. They brought with them a letter signed by Police Senior Inspector Rodolfo S. Azurin, Jr., Deputy Provincial Field Officer, inviting the accused Rama to immediately appear before the CIDG in relation to [7] the kidnapping of Joyce Ann. Upon reaching Rama's house, the group did not find him there. His wife told them that he was in Mele's restaurant. Together with Rama's wife, the group proceeded to Mele's restaurant. At about 4:30 p.m., Rama arrived. The police presented to him the letter signed by Azurin and invited him to go to their office. The accused Rama obliged. His wife went with him. When the group arrived in the CIDG office, Rama signed the letter inviting him to the police station.

The following day, or on January 7, 1998, the police presented the accused Rama and four other persons from their office in a police lineup. Benjamin and Bryan, and three other witnesses, Rose Anne Cabiguin, Jesus Cabiguin, and Andrew Cabiguin, all pointed to the accused Rama as the man who took Joyce Ann. Pictures were taken of Benjamin and Bryan, and Jesus Ulanday pointing to the accused Rama as the man who took away Joyce [8] Ann. Sgt. Moyano and Sgt. Niro took the affidavits of Benjamin and Bryan. Roger Cabiguin's statement [9] was also taken. The accused Rama testified. From 1975 up to 1998, he was a cart pusher at the Magsaysay market in Dagupan City. He would go to work at about 6:30 p.m. and go home at about 9:00 the following morning. Fish vendors would usually hire him to carry their goods in his cart. On January 1, 1998, he was at home in Binmaley, Pangasinan, the whole day. He fetched water, helped his wife wash clothes, and took care of his youngest daughter. At 1:00 p.m. to 5:00 p.m., he went to sleep. He did not go to work in the evening as his customers usually did not sell fish on New Year's Day. The next day, he again stayed in the house. At 6:30 in the evening, he went to work and went home the following morning at 9:00. On January 3, 1998, he went to work as usual. Upon arriving home the next morning, his wife told him that at about 11:00 p.m. the previous night, some policemen went to their house looking for something. On January 4, 1998, at about 11:00 in the evening, two policemen went to his house looking for a baby. They were with an old woman whom Rama later on identified in the courtroom as Diana Laviste, a man, Bryan and Benjamin. He let the group in. They did not find the baby they were looking for. The two children stated that he (Rama) was not the man who took the missing Joyce Ann. On January 5, 1998, Rama again went to work until 9:00 a.m. He arrived home at about 10:30 a.m. and stayed there until 12:00 noon. He went to the city and watched a movie from 1:00 p.m. to 4:00 p.m. He then proceeded to the Magsaysay market to get his cart. Thereupon, a CIDG member approached him and asked him to go with his group because they were going to ask him some questions. He was asked where he brought the missing Joyce Ann, but he denied taking the child. When he arrived at the CIDG office in Tapuac, the CIDG members asked him to join a police lineup. Bryan and Benjamin were then brought out and

they pointed to the accused and said "It's him." At the latter part of his testimony, however, the accused Rama testified that the children said, "It's not him." When shown Exhibit B-1, a picture of two children pointing to him, the accused confirmed that the two children were Bryan and Benjamin. Another unidentified child pointed to the accused Rama. Roxanne who later on testified in court also pointed to him at the line-up. These children were not assisted when they identified him at the police line-up. After investigation, Rama was asked to stay in the CIDG detachment from January 6 to 9, 1998, then he was transferred to Bonuan, then he was again brought back to the CIDG office. Rama testified that he did not know of any reason why Diana Laviste and Roger Cabiguin filed a case against him, why Bryan and Benjamin identified him as the culprit during the police line-up, and why Roxanne identified him in court as the man who took Joyce Ann. He also did not have any grudge against Pierre [10] Torio. Violeta Cayabyab also testified in defense of the accused Rama. She was Rama's neighbor in Binmaley, Pangasinan. She testified that on January 1, 1998, the accused Rama was in his house the whole day. On cross-examination, however, she testified that as a vegetable vendor, she would leave Binmaley at dawn and purchase her vegetables in Dagupan at about 3:00 a.m everyday. She would then sell her vegetables in the morning and go home at about 11:00 a.m. She also testified that the accused Rama's family and her family are good neighbors. They consider each other as part of the family. Between the accused Rama and the private complainant, she admitted that she would side with [11] Rama. Edilberto Aguada took the witness stand. He is a canteen owner and the person from whom the accused Rama had been getting his cart for two years. On January 1, 1998, the accused Rama reported for work in the evening. He also worked in the evening of January 2, 1998. On crossexamination, however, he admitted that he did not see the accused Rama until evening on January 1, 1998. The same was true of January 2, 1998. He admitted that he did not know what the accused [12] Rama did on those days. SPO4 Reynaldo de Vera of the Dagupan City Police Station also testified. On January 1, 1998, Diana Laviste reported the kidnapping of Joyce Ann Cabiguin. On January 4, 1998, Diana, along with

Roger, went back to the police station and informed them that the children who were witnesses to the kidnapping of Joyce Ann lived in Pantal. De Vera, SPO2 Cesar Calimag, Diana, and Roger went to Pantal to pick up the children. The group then went to the house of the accused Rama in Gayaman, Binmaley. When they saw the accused Rama in his house and the two children were asked if he was the man who took away Joyce Ann, they answered that he was not the one. The police asked the children to further examine the face of the accused Rama, but the children confirmed that it was not him. The group then left the house and proceeded back to the police station. De Vera did not make any written record of the identification process. The police likewise no longer followed up the case of the [13] missing Joyce Ann. The trial court gave credence prosecution's story. It convicted the Rama, viz: to the accused

"WHEREFORE, the accused is hereby found guilty beyond reasonable doubt of the offense charged as defined and penalized by Article 267 of the Revised Penal Code, as amended by R.A. No. 7659, and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the parents of the victim the amount of P100,000.00 as moral damages and another amount of P20,000.00 as temperate or moderate damages. Considering that reclusion perpetua shall be from twenty years and one day to forty years (Art. 27, RA 7659), the period within which he has been placed under detention shall be [14] deducted from his sentence." Hence this appeal by the accused Rama on the following grounds: I. THE TRIAL COURT GRAVELY ERRED IN NOT DISMISSING THE CASE DESPITE SEVERAL INSTANCES WHEREIN THE PROSECUTION WAS NOT ABLE TO PRESENT OR CONTINUE THE PRESENTATION OF ITS EVIDENCE. II. THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING.

We first deal with the issue of the prosecution's repeated failure to present evidence. On April 20, 1998, due to the absence of the public prosecutor, the lower court issued an order resetting the hearing to April 30 and May 4, 1998 with a warning to the prosecution that if it fails to present its witness without any reason, the case would be [15] dismissed. The hearing scheduled on April 30, 1998, was, however, cancelled because the judge was on leave. On May 4, 1998, the prosecution witness did not appear. The court gave the prosecution another chance to present its witnesses on May 12, 1998 with a second warning that should the prosecution again fail to do so, the case would be dismissed. On May 12, 1998, the public prosecutor handling the instant case was absent due to sickness. Another public prosecutor appeared before the court and informed the judge that she was not certain whether the private complainant and other witnesses were notified of the hearing. The substitute prosecutor prayed for a three-day postponement in order to contact the private complainant and promised that should the prosecution fail to present witnesses at such time, the prosecution would not object to a provisional dismissal of the case. Against the vehement objection of the defense, the court granted the prosecution a last chance to present its witnesses on May 15, 1998 and gave a final warning that should the prosecution fail to do so, the case would be dismissed. On May 15, 1998, the prosecution presented its witness. The defense contends that the delays caused by the prosecution violated his right to speedy trial. The court therefore committed grave abuse of discretion in not dismissing the instant case. The accused's contention is bereft of merit. While the Court recognizes the accused's right to speedy trial and adheres to a policy of speedy administration of justice, we cannot deprive the State of a reasonable opportunity to fairly prosecute criminals. Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to [16] speedy trial. The prosecution failed to justify the absence of the prosecutor from the hearing on April 20, 1998. Nor was it able to offer an explanation for the failure of the witness to appear on May 4, 1998. On May 12, 1998, the public prosecutor was again absent due to sickness and it was not ascertained whether the prosecution witness was notified of the scheduled hearing. Three days

thenceforth, however, the prosecution presented its witness. In determining whether the accused's right to speedy trial was violated, the delay demonstrated above should be considered in view of the entirety of the proceedings. The following provisions of the Revised Rules of Criminal Procedure (the "Revised Rules") which became effective last December 1, 2000, are apropos: "Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be entitled to the following rights: (h) To have speedy, impartial and public trial." "Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable length of time for good cause. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court." The Information for the instant case was filed on February 3, 1998. The prosecution presented its witnesses from March 4, 1998 to May 26, 1998. The defense, on the other hand, presented its witnesses from August 4, 1998 to September 15, 1998. The trial court rendered its decision on September 28, 1998. We can compute from the above dates that the trial was completed in 195 days or from March 4, 1998 to September 15, 1998. However, while the Revised Rules provide that the entire trial period shall not exceed one hundred eighty (180) days, delays caused by the accused himself or his counsel should logically be excluded from this period. The records show that on March 4, 1998, Atty. Abalos replaced Atty. Taminaya as counsel for the accused. Atty. Abalos asked for a resetting of the case to March 27, 1998 to allow him to go over the transcript of stenographic notes of the testimony of the prosecution witness and conduct cross[17] examination. On March 27, 1998, Atty. Abalos was

absent and so the hearing was reset to March 30, [18] 1998. On April 2, 1998, Atty. Abalos was appointed as public prosecutor, thus leaving the accused Rama without counsel. Atty. Surot was appointed as the accused's new counsel. To give Atty. Surot a chance to go over the records of the [19] case, the hearing was reset to April 14, 1998. All in all, therefore, the delay caused by the accused or his counsel was a period of thirty-eight (38) days. This period should be deducted from the 195-day period within which the trial was completed. Thus, to be exact, the entire trial was completed in one hundred fifty-seven (157) days, well within the 180-day period provided by the Revised Rules. This is not an unreasonable length of time that violates the right of the accused to speedy trial. The trial court therefore did not err in not dismissing the case on the ground of violation of the accused's right to speedy trial. We come now to the second issue raised by the defense. The accused Rama faults the trial court for finding him guilty beyond reasonable doubt despite the insufficiency of evidence. First, he makes much of the fact that the prosecution did not present Bryan and Benjamin, the two children who allegedly saw the accused Rama take Joyce Ann. This fact, however, does not militate against the story of the prosecution. It is well-settled that the nonpresentation of certain witnesses by the prosecution is not a plausible defense and the matter of choosing witnesses to present lies in the sound discretion of [20] the prosecutor handling the case. Besides, the prosecution adequately explained that the parents of the two children, Bryan and Benjamin, reneged on their willingness to have their children testify after the wife of the accused talked to them for fear of their safety. Likewise, as correctly pointed out in the appellee's brief, nothing could have prevented the defense from presenting Bryan and Benjamin as its own witnesses in order to discredit the testimony of Roxanne, the lone eyewitness presented by the prosecution. The presumption of suppressed evidence does not apply when the same is equally [21] accessible or available to the defense. Secondly, the accused points out that since Bryan and Benjamin were not presented as prosecution witnesses, Diana Laviste's claim that these children pointed to the accused as the man who took away Joyce Ann does not bear any weight in evidence. This therefore leaves only the testimony of Roxanne as the basis for the prosecution's identification of the accused Rama as

the culprit. The defense contends, however, that Roxanne's testimony, coming from the mouth of a five-year old, does not deserve credit because she could not answer many questions and appeared to have been coached by her grandmother, Diana. We cannot subscribe to the accused's contention. The Rules of Evidence provide in Rule 130, Secs. 20 and 21: "Sec. 20. Witnesses; their qualifications. - Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Sec. 21. Disqualification by reason of mental incapacity or immaturity. - The following persons cannot be witnesses: xxx (b) Children whose mental maturity is such as to render them incapable pf perceiving the facts respecting which they are examined and relating them truthfully." In Dulla v. Court of Appeals and Andrea [22] Ortega, the Court, citing the above provisions, gave credence to the testimony of a three-year old witness. It held: "It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States v. Buncad, this Court stated: Professor Wigmore, after referring to the commonlaw precedents upon this point says: 'But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated.' (Wigmore on Evidence, vol. I, p. 638) The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing, it is setted that the trial court is called

upon to make such determination." (emphasis supplied) In People v. Mendiola, the Court gave credence to the testimony of the six-year old witness even if she failed to answer some questions because of her tender age. In the case at bar, while the five-year old witness, Roxanne, was not able to answer some questions such as which was her left and her right, she was straightforward in identifying the accused Rama as the culprit, viz: "Q: You said you will tell the truth, will you tell the truth now? A: Yes, sir.
[23]

Q: Who is your mother? A: Nanay Weng, sir.

Q: Will you please point to her? A: My mother is not here, sir. xxx Q: Do you know Joyce Ann Cabiguin? A: Yes, sir.

Q: Do you know where Joyce Ann is now? A: No, sir.

Q: Why, where is she now? A: She is not here, sir.

Q: Why? A: Because a man took her, sir.

Q: You said that a man took her, who is that man, if you know? A: Yes, sir.

Q: Will you point to her (sic)? A: (Witness pointed to a person, when asked, responded by the name of Roger Rama)

Q: Do you know what place or where that man took Joyce Ann? A: At the plaza, sir.

Q: Why were you at the plaza?

A:

Because my mother brought us for a stroll, sir. xxx

Q: Did you give Joyce Ann a piece of the biscuit? A: No, sir.

Q: What did you see at the plaza? A: Stage, sir.

Q: What did you do with the biscuit? A: I ate it, sir.

Q: Did you talk to that man at the stage? A: Yes, sir.

Q: Do you know how to distinguish colors? A: (no answer)

Q: What did he say to you, if any? A: He told me that I will get the beautiful girl and he will give biscuit, sir.

Q: Do you remember what was the man wearing at that time when he approached you? A: Yes, sir.

Q: Who is that beautiful girl? A: My ading (my sister), sir.

Q: What? A: (witness pointed again to accused Roger Rama)

Q: Do you know the name of your ading? A: Joyce Ann, sir.

Q: Can you tell the Court how you carried her? A: (witness demonstrated how she carried her sister by extending her two hands)

Q: When this Roger Rama approached you, and upon telling you that you bring Joyce Ann to him, did you bring Joyce Ann immediately to him? A: Yes, sir.

Q: Is Joyce Ann already able to walk or not? A: Yes, sir.

Q: When you brought Joyce Ann to him, what did you do? A: He ran away with my sister Joyce Ann, [25] sir."

Q: Where did you bring Joyce Ann? A: To the man, sir.

Q: That same man? A: Yes, sir.

Q: What did the man do to Joyce Ann? A: He ran away with her, sir."
[24]

On cross-examination, Roxanne remained straightforward, consistent, and candid in her testimony, viz: "Q: When you told (sic) that the man told you that he will give you biscuit and telling (sic) you that you get Joyce Ann and bring her to him, did he give you that biscuit already before you went to Joyce Ann? A: Yes, sir.

We thus find no reason to disturb the trial court's assessment of the credibility of the child witness, Roxanne. The determination of the competence and credibility of a child as a witness rests primarily with the trial judge as he had the opportunity to see the demeanor of the witness, his apparent intelligence or lack of it, and his understanding of the nature of the oath. As many of these qualities cannot be conveyed by the record of the case, the trial judge's evaluation will not be disturbed on review, unless it is clear from the [26] record that his judgment is erroneous. This conclusion is in accord with the spirit and letter of the Rule on Examination of a Child Witness (the "Rule") which became effective last December 15, 2000. The following provisions are apropos: "Section 1. Applicability of the Rule. -- Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It

Q: How many biscuits did he give you? A: One, sir.

shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses." (emphasis supplied) "Section 3. Construction of the Rule. -- This Rule shall be liberally construed to uphold the best interests of the child and to promote the maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused." (emphasis supplied) "Section 6. Competence. -- Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. xxx (a) Proof of necessity. -- A party seeking a competency examination must present proof of necessity of competence examination. The age of the child by itself is not a sufficient basis for a competency examination." (emphasis supplied) Thirdly, the defense faults the trial court for relying on a single eyewitness account in convicting the accused Rama. The Court has long held that the testimony of a sole eyewitness is sufficient to support a conviction so long as it is clear, straightforward and worthy of credence by the trial [27] court. The Rule also provides in Section 22, viz: "Section 22. Corroboration.-- Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases." (emphasis supplied) The records of the instant case bear out the clear and straightforward manner by which Roxanne testified. The trial court thus correctly relied upon the sole testimony of Roxanne. Fourthly, as opposed to the accused's contention, motive is not essential to the conviction [28] of the accused when he is positively identified. As

the lone eyewitness, Roxanne, positively identified the accused Rama, the accused's contention deserves scant consideration. In fact, what is worthy of consideration is the fact that the accused Rama himself admitted that he did not know of any motive which would urge the prosecution witnesses to falsely testify against him. The running case law is that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full faith [29] and credit. Finally, the accused Rama contends that the testimony of SPO4 Reynaldo de Vera of the Dagupan City Police Headquarters that Bryan and Benjamin did not point to the accused Rama as the culprit when they went to Rama's house should be given weight. Absent any motive for de Vera to testify for the defense, he should be presumed to be telling the truth and performing his duties regularly. We do not agree. Suffice it to say that the observations stated and conclusions drawn by the trial court in its decision adequately meet this contention of the accused Rama. The trial court noted the lackadaisical manner by which de Vera handled the case of the missing Joyce Ann. He could not even remember if he recorded in the police blotter the disappearance of Joyce Ann as reported by her parents and the investigation he made when he, along with Bryan and Benjamin, went to the house of the accused. He did not even take down notes when he conducted his investigation of the accused. Nor did he follow-up the case after the investigation he conducted in the house of accused Rama. It was in fact his demeanor which prompted Joyce Ann's parents to seek the help of the CIDG in Dagupan City. In view of the positive identification made by Roxanne, the accused's defense of denial and alibi must fall. Well-settled is the rule that positive identification of the accused will prevail over the [30] defense of denial and alibi. Furthermore, for alibi to prosper, it must be shown that there was physical impossibility for the accused to have been at the scene of the crime. The defense has failed to satisfy this requirement. The trial court took judicial notice of the fact that Gayaman where the accused supposedly was at the time Joyce Ann disappeared is only about five to six kilometers away from the plaza where Joyce Ann was playing.

We now deal with the penalty to be imposed. Article 267 of the Revised Penal Code provides in relevant part, viz: "Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days." As of the time the instant case was decided by the trial court, Joyce Ann was still missing. Her kidnapping had far exceeded three days. The penalty of reclusion perpetua is thus meted out to the accused Rama in accordance with the above provision. Anent the award of damages, the trial court struck off the record Roger Cabiguin's testimony regarding the anguish Joyce Ann's loss caused him because he did not appear for crossexamination. There being no evidence in support of the award of moral and temperate damages, we [31] cannot award the same. IN VIEW WHEREOF, the impugned decision is AFFIRMED with the MODIFICATION that the award of moral and temperate damages is deleted. Costs against accused-appellant. SO ORDERED. Davide, Jr., C.J., (Chairman), Pardo, and Ynares-Santiago, JJ., concur. Kapunan,