OBJECT EVIDENCE G.R. No.

185715 January 19, 2011 PEOPLE v ERLINDA CAPUNO y TISON We review the May 27, 2008 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 30215, affirming with modification the April 3, 2006 decision2 of the Regional Trial Court (RTC), Branch 75, San Mateo, Rizal. The RTC decision found Erlinda Capuno y Tison (appellant) guilty beyond reasonable doubt of illegal sale of shabu, under Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. ANTECEDENT FACTS The prosecution charged the appellant with violation of Section 5, Article II of R.A. No. 9165 before the RTC, under an Information that states: That on or about the 21st day of July 2002, in the Municipality of Rodriguez, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to another, one (1) heat-sealed transparent plastic sachet of white crystalline substance weighing 0.04 gram which was found positive to the test for Methamphetamine Hydrochloride, a dangerous drug, and which substance produces a physiological action similar to amphetamine or other compound thereof providing similar physiological effects. CONTRARY TO LAW.3 The appellant pleaded not guilty to the charge.4 The prosecution presented Police Officer 1 (PO1) Jose Gordon Antonio and PO1 Fortunato Jiro III at the trial. The appellant and Maria Cecilia Salvador took the witness stand for the defense. PO1 Antonio narrated that at around 11:10 a.m. of July 21, 2002, he was at the Rodriguez Police Station when a civilian informant arrived and told him that a woman was openly selling dangerous drugs on Manggahan Street, Barangay Burgos, Montalban, Rizal. Upon receiving this information, he, PO1 Joseph G. Fernandez, and PO1 Jiro planned an entrapment operation: he (PO1 Antonio) was designated as the poseur-buyer, while his two companions would act as back-up. Before leaving the police station, they asked the desk officer to record their operation.5 They went to Manggahan Street, and when they were near this place, the informant pointed to them the appellant. PO1 Antonio alighted from the vehicle, approached the appellant, and told her, "Paiskor ng halagang piso"; he then handed the pre-marked one hundred peso bill to her. The appellant pulled out a plastic sachet from her left pocket and gave it to PO1 Antonio. PO1 Antonio immediately held the appellants arm, introduced himself to her, and stated her constitutional rights. It was at this time that PO1 Fernandez and PO1 Jiro approached them; PO1 Jiro recovered the

marked money from the appellant. They brought the appellant to the police station for investigation.6 According to PO1 Antonio, the police forwarded the seized item to the Eastern Police District Crime Laboratory for examination.7 PO1 Jiro testified that at around 11:00 a.m. of July 21, 2002, he was at the Rodriguez Police Station when a confidential asset called and informed the police that he saw one "alias Erlinda" selling illegal drugs. The police planned a buy-bust operation wherein they prepared a one hundred peso bill (P100.00) marked money, and designated PO1 Antonio as the poseur buyer. Afterwards, PO1 Jiro, PO1 Antonio, PO1 Fernandez, and the confidential asset left the police station and proceeded to Manahan Street. On their arrival there, the confidential asset pointed to them the appellant.8 PO1 Antonio alighted from the vehicle, approached the appellant, and talked to her. Thereafter, PO1 Antonio handed the marked money to the appellant; the appellant took "something" from her pocket and handed it to PO1 Antonio.9 Immediately after, PO1 Antonio arrested the appellant. He (PO1 Jiro) and PO1 Fernandez approached the appellant; he recovered the marked money from the appellants left pocket. They brought the appellant to the police station and asked the duty officer to blotter the incident. Afterwards, they brought the appellant to the police investigator; they also made a request for a laboratory examination.10 On cross-examination, PO1 Jiro stated that he was 10 meters away from PO1 Antonio when the latter was transacting with the appellant. He maintained that the buy-bust operation took place outside the appellants house.11 He recalled that the appellant had two other companions when they arrived. When they arrested the appellant, some residents of the area started a commotion and tried to grab her.12 The testimony of Police Inspector Abraham Tecson, the Forensic Chemist, was dispensed with after both parties stipulated on the result of the examination conducted on the specimen submitted to the crime laboratory. On the hearing of April 14, 2004, the prosecution offered the following as exhibits: Exhibit "A" the Sinumpaang Salaysay of PO1 Antonio, PO1 Jiro and PO1 Fernandez Exhibit "B" the request for laboratory examination Exhibit "C" Chemistry Report No. D-1373-02E Exhibit "D" the buy-bust money Exhibit "E" Chemistry Report No. RD-78-03 Exhibit "F" the specimen confiscated from the appellant Exhibit "G" Police Blotter13

The defense presented a different version of the events. The appellant testified that at around 11:00 a.m. of July 21, 2002, she was inside her house and lying on the bed, together with her 15-year old daughter, when two persons, who introduced themselves as police officers, entered her house. They wore maong pants and sando. They asked her if she was Erlinda Capuno and when she answered in the affirmative, they searched her house.14 They invited the appellant and her daughter to the Municipal Hall of Montalban, Rizal when they did not find anything in the house. Upon arriving there, the police told her to reveal the identity of the person who gave her shabu. When she answered that she had no idea what they were talking about, the police put her in jail.15 The appellant further stated that she saw the seized specimen only in court.16 On cross-examination, the appellant denied that she had been selling illegal drugs. She explained that she consented to the search because she believed that the two persons who entered her house were policemen.17 Maria, the appellants daughter, corroborated her mothers testimony on material points, but stated that the two policemen did not search their house but merely "looked around."18 The RTC, in its decision19 of April 3, 2006, convicted the appellant of the crime charged, and sentenced her to suffer the indeterminate penalty of imprisonment for twelve (12) years and one (1) day to twelve (12) years, ten (10) months and twenty (20) days. The RTC likewise ordered the appellant to pay a P100,000.00 fine. The appellant appealed to the CA, docketed as CA-G.R. CR No. 30215. The CA, in its decision20 dated May 27, 2008, affirmed the RTC decision with the modification that the appellant be sentenced to life imprisonment, and that the amount of fine be increased to P500,000.00. The CA found unmeritorious the appellants claim that the prosecution witnesses were not credible due to their conflicting statements regarding the place of the buybust operation. As the records bore, PO1 Antonio stated that they conducted the entrapment operation on Manggahan Street; PO1 Jiro testified that it was held on Manahan Street. The CA, nevertheless, ruled that PO1 Jiro made a slip of the tongue as there was no Manahan Street in Barangay Burgos, Montalban, Rizal.21 The CA added that despite the minor inconsistencies in the testimonies of PO1 Antonio and PO1 Jiro, the records do not show that they were ever motivated by any ulterior motive other than their desire to help wipe out the drug menace. It added that the appellants denial cannot prevail over the positive identification made by the prosecution witnesses, who, as police officers, performed their duties in a regular manner.22

Finally, the CA held that all the elements of illegal sale of dangerous drugs had been established.23 In her brief,24 the appellant claims that the lower courts erred in convicting her of the crime charged despite the prosecutions failure to prove her guilt beyond reasonable doubt. She harps on the fact that PO1 Antonio and PO1 Jiro gave conflicting statements on how they came to know of her alleged illegal activities. On one hand, PO1 Antonio claimed that an informant went to the police station and told them that the appellant was openly selling illegal drugs; PO1 Jiro, on the other hand, stated that a civilian informant called the police and informed them of the appellants illegal activities. The appellant also alleges that the testimonies of these two witnesses differ as regards the actual place of the entrapment operation. She further argues that the police did not coordinate with the Philippine Drug Enforcement Agency (PDEA) in conducting the buy-bust operation. The appellant likewise contends that the prosecution failed to show an unbroken chain of custody in the handling of the seized specimen. She claims that the apprehending team did not mark the seized items upon confiscation. Moreover, there was no showing that the police inventoried or photographed the seized items in her presence or her counsel, a representative of the media and the Department of Justice (DOJ), and any elected public official.25 For the State, the Office of the Solicitor General (OSG) counters with the argument that the testimonies of the police officers prevail over the appellants bare denial, more so since there was nothing in the records to show that they were motivated by any evil motive other than their desire to curb the vicious drug trade.26 The OSG added that when the buy-bust operation took place on July 21, 2002, there was no institution yet known as the PDEA, as the Implementing Rules of R.A. No. 9165 (IRR) took effect only on November 27, 2002.27 It further claimed that the failure to comply with the Dangerous Drugs Board Regulations was not fatal to the prosecution of drug cases.28 THE COURTS RULING After due consideration, we resolve to acquit the appellant for the prosecutions failure to prove her guilt beyond reasonable doubt. In considering a criminal case, it is critical to start with the laws own starting perspective on the status of the accused in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.29 The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. In so doing, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In

which case, the presumption prevails and the accused should necessarily be acquitted.30 The requirements of paragraph 1, Section 21 of Article II of R.A. No. 9165 In a prosecution for the illegal sale of a prohibited drug under Section 5 of R.A. No. 9165, the prosecution must prove the following elements: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. All these require evidence that the sale transaction transpired, coupled with the presentation in court of the corpus delicti, i.e., the body or substance of the crime that establishes that a crime has actually been committed, as shown by presenting the object of the illegal transaction. To remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the appellant; otherwise, the prosecution for possession or for drug pushing under R.A. No. 9165 fails.31 The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.] This procedure, however, was not shown to have been complied with by the members of the buy-bust team, and nothing on record suggests that they had extended reasonable efforts to comply with the said statutory requirement in handling the evidence. The deficiency is patent from the following exchanges at the trial: FISCAL ROMNIEL MACAPAGAL: Q: Upon arrival at Manggahan Street, what did x x x your group do? PO1 JOSE GORDON ANTONIO: A: We proceeded to the place and before we reach[ed] that place[,] our civilian asset pointed to us the suspect. Q: After your civilian informer pointed to the suspect, what did your group do?

A: I alighted from our private vehicle at the time and I was the one who talked to Erlinda Capuno. Q: You said [that] you talked to Erlinda Capuno, what did you tell her when you approached her? A: I told her "Paiskor ng halagang piso." Q: When you told this to Erlinda that you buy one Hundred Peso of shabu, what did he do? [sic] A: When I gave her on [sic] piece of the marked money[,] he [sic] pulled out something from her pocket. Q: What is the denomination of the marked money? A: One Hundred Peso bill. Q: Upon receiving the plastic sachet, what did you do next? A: After she gave me the suspected shabu, I held her by the arm and my two companions who [were] then seeing me approached me. [sic] Q: What is the purpose of holding the hands of Erlinda when you received this plastic sachet? A: When I took the plastic sachet that was the time I held her and after that I introduced myself and explained to her Constitutional rights. [sic] Q: After arresting Erlinda, where did you proceed? A: We brought her to the Police Station for investigation where she gave her full name and also turned over the suspected items[.] Q: Who recovered the buy-bust money? A: Police Officer Hero [sic], Sir. Q: You stated you were the one who handed the buy bust money to Erlinda. Do you have that buy bust money with you? A: After I gave the marked money to her[,] she picked from her left pocket the suspected shabu and Police Officer Hero recovered the money. [sic] xxxx

Q: The alleged specimen you got from Erlinda, where is it now? A: We brought it to the Eastern Police District Crime Laboratory for examination. Q: Were you able to know the result of this examination? A: Yes, Sir. When we returned we already have the result.32 From the foregoing exchanges, it is clear that the apprehending team, upon confiscation of the drug, immediately brought the appellant and the seized specimen to the police station. No physical inventory and photograph of the seized items were taken in the presence of the appellant or her counsel, a representative from the media and the DOJ, and an elective official. We stress that PO1 Antonios testimony was corroborated by another member of the apprehending team, PO1 Jiro, who narrated that after arresting the appellant, they brought her and the seized item to the police station. At no time during PO1 Jiros testimony did he even intimate that they inventoried or photographed the confiscated item. A review of jurisprudence, even prior to the passage of R.A. No. 9165, shows that this Court did not hesitate to strike down convictions for failure to follow the proper procedure for the custody of confiscated dangerous drugs. Prior to R.A. No. 9165, the Court applied the procedure required by Dangerous Drugs Board Regulation No. 3, Series of 1979, amending Board Regulation No. 7, Series of 1974.33 Section 1 of this Regulation requires the apprehending team, having initial custody and control of the seized drugs, to immediately inventory and photograph the same in the presence of the accused and/or his representatives, who shall be required to sign the copies of the inventory and be given a copy thereof. The Court remained vigilant in ensuring that the prescribed procedures in the handling of the seized drugs were observed after the passage of R.A. No. 9165. In People v. Lorenzo,34 we acquitted the accused for failure of the buy-bust team to photograph and inventory the seized items. People v. Garcia35 likewise resulted in an acquittal because no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required by R.A. No. 9165. In Bondad, Jr. v. People,36 we also acquitted the accused for the failure of the police to conduct an inventory and to photograph the seized item, without justifiable grounds. We had the same rulings in People v. Gutierrez,37 People v. Denoman,38 People v. Partoza,39 People v. Robles,40 and People v. dela Cruz,41 where we emphasized the importance of complying with the required procedures under Section 21 of R.A. No. 9165. To be sure, Section 21(a), Article II of the IRR offers some flexibility in complying with the express requirements under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e.,"non-compliance with these requirements under justifiable grounds, as

long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.]" This saving clause, however, applies only where the prosecution recognized the procedural lapses, and, thereafter, explained the cited justifiable grounds, and when the prosecution established that the integrity and evidentiary value of the evidence seized had been preserved.42 These conditions were not met in the present case, as the prosecution did not even attempt to offer any justification for its failure to follow the prescribed procedures in the handling of the seized items. The "Chain of Custody" Requirement Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti - the body of the crime whose core is the confiscated illicit drug. Thus, every fact necessary to constitute the crime must be established. The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.43 Board Regulation No. 1, Series of 2002, defines chain of custody as "the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction." As a method of authenticating evidence, the chain of custody rule requires that the admission of the exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would, thus, include a testimony about the every link in the chain, from the moment the item was seized to the time it was offered in court as evidence, such that every person who handled the same would admit as to how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The same witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused.44 In the present case, the prosecutions evidence failed to establish the chain that would have shown that the shabu presented in court was the very same specimen seized from the appellant. The first crucial link in the chain of custody starts with the seizure of the plastic sachet from the appellant. From the testimonies and joint affidavit of PO1 Antonio and PO1 Jiro, it is clear that the police did not mark the confiscated sachet upon confiscation. Marking after seizure is the starting point in the custodial link, thus it is

vital that the seized contraband is immediately marked because succeeding handlers of the specimen will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, "planting," or contamination of evidence.45 The second link in the chain of custody is its turnover from PO1 Antonio to the police station. Both PO1 Antonio and PO1 Jiro testified that they brought the appellant and the seized item to the police station. They, however, failed to identify the person to whose custody the seized item was given. Although the records show that the request for laboratory examination of the seized item was prepared by the Chief of Police, Police Senior Inspector Anastacio Benzon, the evidence does not show that he was the official who received the marked plastic sachet from PO1 Antonio. As for the subsequent links in the chain of custody, the records show that the seized item was forwarded to the Philippine National Police Crime Laboratory by a certain PO1 Sanchez. We stress, however, that PO1 Sanchez forwarded the said specimen only on the next day, or on July 22, 2002. To harp back to what we earlier discussed, there was a missing link in the custody of the seized drug after it left the hands of PO1 Antonio. We cannot, therefore, presume that PO1 Sanchez had custody of the specimen in the interim. We also stress that the identity of the person who received the seized item at the crime laboratory was not clearly identified. Due to the procedural lapses pointed out above, serious uncertainty hangs over the identification of the seized shabu that the prosecution introduced into evidence. In effect, the prosecution failed to fully prove the elements of the crime charged, creating a reasonable doubt on the criminal liability of the accused. Credibility of the Prosecution Witnesses We likewise cannot acquiesce to the credibility accorded to the prosecution witnesses by the courts a quo. Contrary to the lower courts ruling, the inconsistencies in the statements of the prosecution witnesses are substantial, not trivial. To recall, PO1 Antonio, PO1 Jiro and PO1 Fernandez stated in their Pinagsamang Sinumpaang Salaysay46 that a civilian asset arrived at the police station on July 21, 2002, and informed them that one "alias Erlinda" was selling illegal drugs on Manahan Street, Barangay Burgos, Rodriguez, Rizal. PO1 Antonio reiterated this fact when he testified in court that a civilian informant arrived at the police station on July 21, 2002 and told them that a woman was openly selling dangerous drugs on Manggahan Street, Barangay Burgos, Montalban, Rizal. PO1 Jiro, however, changed his story in court and testified that the confidential informant called the police and informed then that one "alias Erlinda" was selling illegal drugs.

We are at a loss how PO1 Antonio and PO1 Jiro could have given different accounts regarding how the confidential asset informed them of the appellants illegal activities when both of them were present at the police station on July 21, 2002. What baffles us even more is why PO1 Jiros gave conflicting statements in his joint affidavit and in his court testimony. To us, the conflicting statements and declarations of PO1 Antonio and PO1 Jiro destroyed their credibility; it made their testimonies unreliable. Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself, such as the common experience and observation of mankind can approve as probable under the circumstances.47 Presumption of Regularity in the Performance of Official Duties In sustaining the appellants conviction, the CA also relied on the evidentiary presumption that official duties have been regularly performed. This presumption, it must be stressed, is not conclusive. It cannot, by itself, overcome the constitutional presumption of innocence. Any taint of irregularity affects the whole performance and should make the presumption unavailable.48 The presumption, in other words, obtains only when nothing in the records suggests that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. But where the official act in question is irregular on its face, as in this case, an adverse presumption arises as a matter of course.49 As we explained in People v. Sanchez: While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because "First, the presumption is precisely just that - a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.50 All told, we find merit in the appellant's claim that the prosecution failed to discharge its burden of proving her guilt beyond reasonable doubt, due to the unreliability of the testimonies of the prosecution witnesses and substantial gaps in the chain of custody, raising reasonable doubt on the authenticity of the corpus delicti.1avvphi1

WHEREFORE, premises considered, we hereby REVERSE and SET ASIDE the May 27, 2008 Decision of the Court of Appeals in CA-G.R. CR No. 30215. Appellant Erlinda Capuno y Tison is hereby ACQUITTED for failure of the prosecution to prove her guilt beyond reasonable doubt. She is ordered immediately RELEASED from detention unless she is confined for another lawful cause. Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women, Mandaluyong City, for immediate implementation. The Superintendent of the Correctional Institution for Women is directed to report the action she has taken to this Court within five (5) days from receipt of this Decision. SO ORDERED. Romeo Sison v People GR no. 10820-83 November 16, 1995 Digest On June 27, 1986, Marcos loyalists scheduled a rally at the Luneta but their application for a permit to hold the rally was denied. They continued with the demonstration anyway. The police arrived and they could not produce a permit so they were asked to disperse in 10 minutes but instead of leaving, they became violent (shouting gulpihin niyo ang lahat ng mga Cory infiltrators). The police pushed them and used tear gas to disperse them. The group fled to Maria Orosa street and the situation stabilized a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. They then saw Annie Ferrer a starlet and supporter of Marcos. Annie Ferrer learned of their dispersal, she continued jogging while shouting Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, bugbugin ang mga nakadilaw (hindi rhyming). The group answered Bugbugin!. Annie was arrested later, which prompted someone to shout kailangang gumanti tayo ngayon! the group then started attacking persons in yellow. Renato Banculo saw this and removed his yellow shirt. Banculo later saw the group pursuing a man in yellow who was later found out to be Stephen Salcedo. The group caught up with Salcedo and boxed, and kicked and mauled him. He tried to free himself but they kept on hitting him. Ranulfo Sumilang came to Salcedo's help but the group kept on hitting Salcedo, somebody handed Sumilang a loyalist tag and he then presented this to the group. The group backed off for a while and Sumilang was able to get Salcedo away from them. But the accused in this case, namely, Raul Billosos, Richard de los Santos, Joel Tan, Nilo Pacadar, Joselito Tamayo, Romeo Sison continued with the hitting. Sumilang also saw Gerry Neri but did not see what he did to Salcedo. Salcedo was able to get away from the group and sat on some cement steps, he tried to flee to Roxas boulevard but Tan and Pacadar pursued him. Salcedo cried for help but no one answered. The mauling continued at the Rizal monument until Salcedo

eventually collapsed. Sumilang hailed a van and brought Salcedo to the Medical Center Manila but was refused admission. He was then brought to PGH where he died upon arrival. The mauling was witnessed by many and the press took pictures and a video of the event which became front-page news the following day. Cory instructed the Western Police district to investigate on it and Brigadier General Alfredo Lim offered a P10,000 reward for persons who could give information which could help arrest the killers. Sumilang and Banculo cooperated with the Police and several persons including the accused were investigated. Informations for murder were filed and these cases were consolidated. The prosecution presented twelve witnesses including Sumilang and Banculo. In support of their testimonies, the prosecution also presented documentary evidence consisting of newspaper accounts of the indicent and various photos. For their defense, the principal accused denied their participation in the mauling. Either they were not there (since they were not in the Photographs) or that they were there and were in the photos because they were just watching or trying to stop the maulers. Sison however said that he was not there and was in fact waiting for his photos to be developed ( he was a commercial photographer) and was afflicted with hernia which impaired his mobility. The RTC found Sison, Pacadar, Tan, de los Santos and Tamayo guilty as principals in the crime of murder qualified with treachery. Starlet Annie Ferrer was convicted as an accomplice. The court acquitted the others. On appeal, CA acquitted Starlet Annie Ferrer and increased the penalty of the rest of the accused except Tamayo. The Ca found them guilty of murder qualified by abuse of superior strength (penalty increased to RP). Hence auto review before the SC (for those sentenced to RP) Issue/s: 1. WON the CA erred in sustaining the testimonies of Sumilang and Banculo. NO 2. WON the CA erred in giving evidentiary weight to the photographs of the mauling incident. NO 1. the defense was arguing that the 2 only testified because of the reward and that Banculo submitted 3 sworn statements. They also pointed out that Banculo pointed at the wrong person when asked to identify Rolando Fernandez. The court disagreed there is no proof that they only testified because of the reward, since Sumilang went to the police station to issue a statement just 2 hours after the incident. Banculo on the other hand executed 3 statements to identify more suspects. This did not make his testimony incredible. Banuclo's mistake in identifying one of the accused does

not make his whole testimony a falsity. Perfect testimonies cannot be expected from persons with imperfect senses. In the court's discretion the testimony of a witness can be believed as to some facts and disbelieved with respect to others 2. aside from the photographs, the appellants also questioned the way the court gave evidentiary weight to the joint affidavit of 2 patrolmen but the court held that the joint affidavit merely reiterated what the other witnesses testified to and was a mere surplusage. As for the photographs, the appellants were questioning such evidence for lack of proper identification by the person or persons who took the same the rule is that when Photos are presented in evidence, they must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. Value lies in it being a correct representation or reproduction of the original. Admissibility determined by its accuracy in portraying the scene at the time of the crime. The correctness of the photo can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses. After which it can be admitted subject to its impeachment as to its accuracy. Therefore the photographer or another competent witness can testify as to the exactness and accuracy of the photograph. Initially the defense objected to the admissibility of the photos bu then they used the same photos in proving that some of the accused could not have participated since they were not in the photos. It was not until the third hearing where the Atty for the appellants interposed a continuing objection to their admissibility. The SC ruled that the use of the photographs by the atty for the appellants is an admission of the exactness and accuracy of such. That the photos were faithful representations of the mauling incident was affirmed when appellants de los santos, Pacadar and Tan identified themselves in the pictures and explained their presence in said pictures. 3 of the accused could be readily seen in various belligerent poses lunging or hovering behind or over the victim. The hernia afflicted Sison appeared only once and he was shown merely running after the victim. Tamayo was not identified in any of the photos but this does not exculpate him. He was still identified by Sumilang and Banculo the appellants also questioned that the lower court erred in finding conspiracy among the principals and finding them guilty of murder qualified by abuse of superior strength instead of death in tumultuous affray. SC disagreed and said Art. 251 of the RPC (Death caused in a tumultuous affray) takes place when a quarrel between several persons and they engage in a confused and tumultuous affray, in the course of which some are killed or wounded and the author cannot be ascertained. But in this case, the quarrel was between a group and an individual. The group took advantage of their superior strength and

excessive force and frustrated any attempt by salcedo to excape. This qualifies the killing to murder. Also the SC held there was no treachery, though the essence of treachery is the sudden and unexpected attack without slightest provocation but in this case, the victim had the chance to sense the temper of the group and run away from them but he was overtaken by them. There was however conspiracy, there was a concerted effort to bring down salcedo. IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows: 1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua; 2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum; 3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts: (a) P74,000.00 as actual damages; (b) P100,000.00 as moral damages; and (c) P50,000.00 as indemnity for the death of the victim. Costs against accused-appellants. SO ORDERED. G.R. No. 109140 March 8, 1995 PEOPLE v TACIPIT This is an appeal from the decision dated November 24, 1992, of the Regional Trial Court of Sanchez Mira, Cagayan, Branch 12, finding accused-appellant Roland Tacipit guilty beyond reasonable doubt of the crime of rape, the dispositive portion of which reads as follows: WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of rape, as defined under paragraph (1) of Article 335 of the Revised Penal Code, as amended, without the use of a deadly weapon, and hereby imposes on him the penalty of reclusion perpetua with all the accessory penalties provided by law, and further sentences him to pay moral damages to one Onelia Pamittan in the amount of FIFTY THOUSAND PESOS (P50,000.00), Philippine currency and to pay the costs. . . . (Rollo, p. 32). The records of the case disclose that the complainant, Onelia Pamittan, was a 17year old high school student at the Abulug School of Fisheries in Abulug, Cagayan at

the time of he commission of the offense. She had a friend, Eden Molina, who studied at the same school and lived about two (2) kilometers from the school. In the afternoon of January 3, 1991, Eden invited some of her friends, including the complainant, over to her house. When the group arrived at Eden's house, at about 4:30 p.m., the accused-appellant Roland Tacipit was already there with Eden's brother, Elmer Molina, the latter being a friend and co-worker of the accused. Previous to this meeting, the complainant already knew the accused since he lived only a few meters from her home. She also knew the accused to be a married man. After partaking of a snack of tinubong (native rice cakes), the group decided to go home. At this point, the version given by the prosecution and the defense differed. According to the complainant, as she was about to leave the Molina house, the accused restrained her, held her left hand and her notebooks and told her friends to go ahead. Despite her cries and pleas for help, the owners of the house did nothing to help her. On the other hand, defense witness Elmer Molina alleged that the complainant and the accused were sweethearts. They left the house together, with their hands over each other's shoulders. At any rate, it is undisputed that the complainant left the Molina household with the accused. On the way, they passed through a coconut plantation of a certain Guillermo Agustin. By then, it was already getting dark. There, the accused took hold of the wrists of the complainant and wrestled her down to the ground. He tore off the Tshirt and skirt she was wearing and pinned her hands across her stomach. The accused then removed her shorts and panty and ravished her. After the carnal act, the accused accompanied the complainant to a point near her home and before leaving her, threatened to kill her or her family if she reports the matter to anyone. The complainant, however, did not heed the warning and immediately upon arriving at her house, reported the incident to her uncle, Ernesto Marantan, with whom she was residing. Marantan looked for the accused that same evening, but after failing in his search, he reported the matter instead to the barangay captain. The following day, the complainant accompanied by her mother, aunt and cousin, reported the incident to the police at the municipal building. She submitted her clothing for examination and after being investigated, submitted herself for medical examination. On January 5, 1991, the complainant executed a sworn statement narrating the circumstances surrounding the commission of the crime and filed the corresponding complaint for rape. After a thorough investigation which resulted in the finding of probable cause, the municipal trial court issued a warrant of arrest against the accused. On February 18, 1991, an information was filed by the Provincial Prosecutor against the accused, as follows:

The undersigned, Provincial Prosecutor, upon complaint filed by the offended party, Nelia T. Pamittan, in the Municipal Trial Court of Abulug, Cagayan, appearing on page 1, the record of the case, and forming an integral part of this Information, accuses Roland Tacipit y Manglapuz of the crime of Rape, defined and penalized under Article 335, of the Revised Penal Code, committed as follows: That on or about January 3, 1991, in the municipality of Abulug, province of Cagayan and within the jurisdiction of this Honorable Court, the said accused Roland Tacipit y Manglapuz, with lewd design, by means of force, violence and intimidation, and with the use of deadly weapon, did then and there wilfully, unlawfully and feloniously have sexual intercourse with the offended party, Onelia T. Pamittan, a minor, seventeen (17) years of age, against her will and consent. CONTRARY TO LAW. (Rollo, p, 7) Upon arraignment, the accused pleaded not guilty. As his defense, the accused claimed that he and the complainant were sweethearts since October 3, 1990 and that the complainant voluntarily yielded herself to him. As proof of their relationship, the accused presented a ring engraved with the name "Onelia" and alleged that it was given to him by the complainant as a token of her love. Defense witness Elmer Molina corroborated the testimony of the accused, stating that he courted the complainant but was spurned by her because she was already the accused's sweetheart. On the other hand, these contentions were firmly denied by the prosecution. The complainant testified that she knew the accused to be a married man and he never visited her house to court her. She also denied that Elmer Molina courted her or that she told him that he was the accused's girlfriend. As for the ring, the complainant denied ownership thereof. True enough, when the ring was tried on her hand, it was loose and did not fit her finger (Rollo, p. 23). The trial court, after consideration of the evidence presented, rendered the forequoted judgment against the accused. Hence, the present appeal wherein the following assigned errors are raised: I THE TRIAL COURT ERRED 1N GIVING WEIGHT AND CREDENCE TO THE OTHERWISE DOUBTFUL THEORY OF THE PROSECUTION AND IN DISREGARDING THAT OF THE DEFENSE. II

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. (Rollo, p. 56). The defense argues that the weight of the evidence presented by the prosecution is grossly inadequate to overthrow the presumption of innocence granted by law to the accused. It is the contention of the accused-appellant that the testimony of complainant relied upon by the trial court in convicting him is incredible and not worthy of belief. There are inconsistencies in said testimony. It is also saddled with flaws which show her tendency to exaggerate things (Rollo, p. 61-64). Secondly, the accused argues that the physical evidence as well as the actuations of the parties concerned are not consistent with the allegation of rape but with carnal knowledge done with the consent of both the accused and the complainant. As proof, the accused pointed out the lack of external injuries on the body of the complainant. This fact negates the employment of force by the accused on the complainant and rules out struggle or any other form of resistance on the part of the complainant. The accused likewise points to the absence of an out cry on the part of the complainant which bolsters the position of the accused that the sexual intercourse was consensual. The rationale given by the complainant that she had a sore throat which prevented her from shouting was characterized by the defense as incredible. Finally, the accused argues that if rape had indeed been committed by him, he would not have accompanied the complainant to a place near her house, thereby exposing himself to the risk of being seen, but would have instead fled for safety, which is more consistent with he commission of an offense. In reviewing the evidence of this case, this Court was guided by the three(3) settled principles in reviewing rape cases, namely, (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense (People vs. Lim, 206 SCRA 176 [1992]). On these bases, the decision of the trial court must be affirmed. There is present in this case clear, convincing and competent physical and testimonial evidence to support a finding of guilt beyond reasonable doubt against the accused. The testimony of complainant Onelia Pamittan, was found by the trial court to be replete with details, negating the probability of fabrication. Although the trial court did not accord credence to that part of her testimony relating to how she

ended up leaving the Molina household with the accused, the same did not militate against the credibility of the complainant as a prosecution witness. As far as alleged inconsistencies in her testimony are concerned, this Court has ruled time and again that a few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the basic aspects of the whys and wherefores of the crime, do not impair their credibility (People vs. Custodio, 197 SCRA 538 [1991] citing People vs. Muoz, 163 SCRA 780]. This is especially true in the crime of rape where the victim cannot be expected to remember with accuracy the details of her humiliating experience. At best, this Court relies upon the fact that the trial court found the complainant to be a credible witness. As often repeated by this Court: . . . the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge, who, unlike appellate magistrates, can weigh such testimony in the light of the declarant's demeanor, conduct and attitude at the trial and is thereby placed in a more competent position to discriminate between the true and the false. Appellate courts will not disturb the credence, or lack of it, accorded by the trial court of the testimony of witnesses unless it be clearly shown that the latter court had overlooked or disregarded arbitrarily the facts and circumstances of significance in the case (People vs. Simbulan, 214 SCRA 537 [1992]). The appeal at hand presents no compelling reason to deviate from this general rule. Moreover, considering that the accused and the complainant are at most acquaintances, there appears to be no motive on the part of the complainant to testify against the accused which could render suspect her testimony in court. It is clear that her only intent was to seek redress for the injustice committed against her by appellant a married man. As held in People v. Guibao, (217 SCRA 64 [1993]): No woman would concoct a story of defloration, allow an examination of herself by being subjected to a public trial, if she was not motivated solely by the desire to have the culprit apprehended and punished. Anent the contention of the accused that the sexual act was committed with the mutual consent of the parties, the evidence presented by the prosecution sufficiently rebutted his point. For one, although there was an absence of external injuries on the body of the complainant, the clothes worn by her at the time of the offense speak well of the use of force and the presence of a struggle. As the trial court noted: Her T-shirt was torn which corroborates her testimony that it was forcibly removed. It also proves that she offered resistance to the criminal advances of the accused. Her shorts, like her panty, had blood stains. Her panty was detached from her

shorts. Her bra was torn, also denoting that it was forcibly removed. These physical evidence . . . are consistent only with the force and compulsion applied on her; they prove she offered resistance and her defloration was against her will. (Rollo, p. 27) The actuations of the complainant subsequent to the commission of the crime are likewise consistent with her allegations of rape. Her immediate revelation of the incident to her uncle upon arrival as well as her swift recourse to the barangay Captain and the police authorities are not acts of a woman savoring an illicit tryst but that of a maiden seeking retribution for the outrage committed against her. Thus, the accused's reliance on the defense that he and the complainant were lovers is unfounded. But even if it were true, such relationship would not give the accused the license to deflower the complainant against her will, and will not exonerate him from the criminal charge for rape. Furthermore, there is nothing in the testimonies of either the complainant or even the accused himself which could indicate any sort of special relationship between the two. The alleged proof of such relationship, the ring with complainant's name engraved on it, does not even fit the fingers of the complainant. Their actuations with respect to each other before, during and even after the commission of the crime were consistent with the contention of the complainant that they are nothing more than acquaintances. The evidence of the prosecution, therefore, completely negates the existence of any relationship between the accused and the complainant. Finally, the accused's act of accompanying the complainant up to a point near her house does not appear to be a gesture of love. If the accused was not obsessed with a sense of guilt, he could have accompanied the complainant to the home since it was already dark at night. Rather than a demonstration of his freedom from guilt, the actuation of the accused in the premises appears to be no less than a calculated move to ensure that the complainant will keep her silence about the sordid incident perpetrated against her will. WHEREFORE, the decision of the Regional Trial Court of Sanchez Mira, Cagayan, Branch 12, dated November 24, 1992 in Criminal Case No. 2190-S finding the accused-appellant Roland Tacipit guilty beyond reasonable doubt of the crime of rape, and sentencing him to suffer the penalty of reclusion perpetua, with all the accessory penalties, to pay the complainant Onelia Pamittan moral damages in the amount of fifty house and pesos (P50,000.00) and to pay the costs, is hereby AFFIRMED IN TOTO. SO ORDERED. People v. Kamad G.R. No. 174198, January 19, 2010 - digest

FACTS: On October 16, 2002 the Philippine National Police Drug Enforcement Unit of the Southern Police District, Fort Bonifacio, Taguig received information from an asset that a certain Zaida was selling shabu at Purok IV, Silverio Compound, Paranaque City. At 10 PM of October 16, 2002, SPO2 Sanchez, poseur-buyer, gave marked PHP 300 bills to accused-appellant for the purchase of shabu. Upon receipt of the item, Zaida Kamad and her boyfriend, Leo, were arrested. The RTC Branch 259 of Paranaque City found accused guilty beyond reasonable doubt for violation of Section 5, Article II, of RA 9165 for the illegal sale of 0.20 gram of methamphetamine HCL. On appeal, the CA affirmed in toto the decision of the RTC.

ISSUE: Is accused-appellant guilty beyond reasonable doubt of violating Section 5, Article II of RA 9165 for the illegal sale of 0.20 gram of shabu? RULING: No, the Court ruled that in the prosecution of illegal sale of dangerous drugs, thethe following elements must must be established: (1) proof that the transaction took place, (2) corpus delicti presented as evidence. Records showed that the prosecution through SPO2 Sanchez, established the sale of the prohibited drug shabu by accused-appellant but the RTC and the CA failed to notice the defects in the prosecutions case such as (1) lapse in implementing Section 21, Article II of RA 9165 in the handling of the seized shabu and (2) failure of police to comply with the chain of custody rule. For violations of Section 21, Article II of RA 9165, no inventory and photographing of seized drugs was done at the place of arrest as well as the presence of the accused as it was being done nor a representative of the media, the DOJ, and any elected pubic official who will confirm that evidence seized were as they were found. Neither was it established by the prosecution why such thing were not followed by presenting (1) justifiable cause and (2) preserving the integrity and evidentiary value of seized evidence as required by the IRR of RA 9165 Section 21-A. For non-compliance of the chain of custody rule, which requires the documentation and description of evidence as it is being processed along the system was neither complied. Court reverses and sets aside the decision of the CA affirming the final judgment of RTC Branch 259 of Paranaque City for the illegal sale of shabu of accused-appellant. Zaida Kamad is hereby acquitted and ordered released from detention. G.R. NO. 186527 June 29, 2010 PEOPLE v ROY PAMPILLONA Y REBADULLA

Time and again the Court has condemned the illegal drug trade for being a scourge to our society. As an ardent sentinel of the peoples rights and welfare, this Court shall not hesitate to dispense justice on people who engage in such an activity.1 Drug pushers are merchants of death2 whose commodities cause so much physical, mental and moral pain not only to the immediate victims of their greed, but also to the families of the victims.3 Before this Court is the case of one of those merchants, accused Roy Pampillona y Rebadulla. After being apprehended for the sale of Methylamphetamine Hydrochloride also known as "shabu," a dangerous drug, the accused was charged with having committed a violation of Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The Information4 dated November 22, 2004 reads: "That on or about the 20th day of November, 2004, in Quezon City, Philippines, the said accused not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there willfully and unlawfully sell, dispense, deliver, transport, distribute, or act as a broker in the said transaction, point zero four (0.04) gram of white crystalline substance containing Methylamphetamine Hydrochloride, a dangerous drug. CONTRARY TO LAW." As culled from the evidence of the prosecution, it appears that on November 20, 2004, around 3:30 oclock in the morning, a female informant, a drug-user, appeared at the office of the Anti-Illegal Drugs Special Operations Team (SAID-SOAP), Galas Police Station, Quezon City, and informed team leader, Police Inspector (P/Insp.) Erwin Guevarra, about the illegal drug trade activities of one "Taroy" in Barangay Damayang Lagi, Quezon City. P/Insp. Guevarra then formed a team composed of PO2 Anthony Palimar, SPO2 Mario Abong, PO2 Erwin Bautista, and two (2) confidential agents. P/Insp. Guevarra then briefed the team members on the buy-bust operation they would be conducting based on the information relayed by the informant. PO2 Bautista was designated as the poseur-buyer, while SPO2 Abong would serve as back-up. The rest of the team would act as look-outs. P/Insp. Guevarra handed to PO2 Bautista a one hundred (P100.00) peso bill with Serial Number XE004371 to be utilized as the marked money. SPO2 Bautista then placed his initials "EB" inside the two zeros of the bill. A pre-operation report was also prepared for purposes of coordination with the Philippine Drug Enforcement Agency (PDEA).

Later, at around 4:00 o'clock in the morning, the buy-bust team, together with the informant, proceeded to a house located in Barangay Damayang Lagi, Quezon City. The informant told PO2 Bautista that the person standing in front of the house was the drug pusher. In a little while, the informant introduced PO2 Bautista to the seller, who was identified as accused Roy Pampillona. The accused then asked PO2 Bautista, "Magkano ba bibilhin mo?" (How much are you going to buy?), to which the latter replied, "Isang Piso Lang." (One Peso only.) The accused then asked for the money and the officer handed to him the marked one hundred peso bill. In exchange, the accused gave a plastic sachet to PO2 Bautista, who, after examining its content, was satisfied that it was shabu. Following a pre-arranged signal, PO2 Bautista removed his baseball cap. Immediately, the waiting team members rushed towards the scene and accosted the accused. SPO2 Abong introduced himself as a police officer and asked the accused to empty his pockets. SPO2 Abong then took the marked money from him and apprised him of his constitutional rights. Thereafter, the accused was taken to the Galas Police Station. Upon orders of the station investigator, PO2 Bautista marked the plastic sachet with the letters "EB-RP" so that it could be properly identified when delivered to the PNP Crime Laboratory for examination. During the trial, the prosecution and the defense agreed to dispense with the testimony of Senior Police Inspector Maridel C. Rodis, the forensic chemist of the Philippine National Police (PNP), and stipulated on the existence of a Letter-Request for examination of the specimen; the confirmatory report, Chemistry Report No. D1111-04; and the finding that the specimen was found positive for Methylamphetamine Hydrochloride. The defense, on the other hand, presented the lone testimony of the accused who claimed that around 3:00 oclock in the morning of November 20, 2004, he was in his house with his wife and grandchild when he heard knocks on the door; that he did not mind them but his wife got out of bed and opened the door; that suddenly, several persons rushed to their bedroom and, after introducing themselves as policemen, handcuffed him; that they did not tell him why they did so and why they were bringing him to the police station; and that at the Galas Police Station, a certain police asset named "Manny" came over and talked to him. The accused also recalled that a day earlier, he was with his barkada together with a certain Manny playing kara y kruz. In that game, Manny lost P8,000.00. That Manny was the same "Manny" who approached him at the police station. He asked for the P8,000.00 he lost from the game explaining that the money belonged to some policemen who wanted it back. He told Manny, however, that he had only won P2,000.00 in their game and that he had given the money to his neighbor as payment for his electric bill covering two (2) months. According to him, his electric line was only connected to the line of his neighbor ("nakakabit"). For his failure to give P8,000.00 to Manny, he was framed up.

Decision of the Trial Court On September 22, 2006, the trial court handed down its Decision5 convicting the accused of having violated Section 5, Article II of Republic Act No. 9165. The decretal portion of said decision reads: "ACCORDINGLY, judgment is hereby rendered finding the accused, ROY PAMPILLONA y REBADULLA, GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Article II of R.A. No. 9165 (for drug pushing) as charged and he is hereby sentenced to a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00. The plastic sachet of shabu involved in this case is ordered transmitted to the PDEA thru the DDB for proper disposition per R.A. 9165. PDEA is requested to be extra careful in safekeeping this shabu. SO ORDERED." The accused was convicted on the strength of the testimonies of PO2 Bautista and SPO2 Abong. The trial court did not give weight to his defense of alibi. It wrote that PO2 Bautista and SPO2 Abong appeared to be candid and honest as they admitted that the pre-operation coordination report had been prepared in advance or prior to the arrival of their female informant. Their explanation that the said report had a lifetime or duration of twenty-four (24) hours and that the rest of the items in that report were entered after the informant had been interviewed, satisfied the court. The trial court was of the view that the buy-bust team performed their official duties in a regular manner. Although the plastic bag containing the shabu was only marked at the police station, its physical integrity was not affected because SPO2 Bautista was in possession of it at all times, until he marked the sachet with "EB-RP" at the station. They were the same specimen and sachet confirmed by the PNP Forensic Chemist in his Chemistry Report. The trial court did not give credence to the version of the accused basically because it was not corroborated by any of his co-players in the kara y cruz or barkadas. It could not also believe that the accused, a jobless person, would bet several thousand of pesos in a game of kara y kruz. Even his wife did not take the witness stand to confirm his story. Decision of the Court of Appeals In its Decision,6 the Court of Appeals affirmed the conviction stating that there was no reason to doubt the evaluation and assessment of the trial court regarding the credibility of the prosecution's witnesses. The appellate court noted that PO2 Bautista categorically narrated the buy-bust operation transaction and his

testimony was corroborated on material points by SPO2 Abong who was waiting in the car, just a few meters away. The fact that SPO2 Bautista could not recall the name of the person who brought the specimen to the crime laboratory only proves that he was worthy of belief, as he was not coached. Neither could it be said that he rehearsed his lines. At any rate, the lapse in his memory was filled in by SPO2 Abong who claimed that he, together with the investigator, brought the confiscated shabu to the PNP Crime Laboratory for examination. On the claim of the accused that he was just being harassed by the policemen because he won in a game of kara y cruz, the appellate court opined that he could have filed the proper administrative charges against them if it were true. Since no administrative or criminal charges were filed, it concluded that his story was merely fabricated to enfeeble the case of the prosecution. Besides, it was lacking in corroboration. Thus, the accused failed to show that the police officers were impelled by improper and malicious motives in arresting him. The accused also contends that the Pre-Operation Report was defective since it was prepared in advance and that there was no evidence presented that the same was received and acted upon by the PDEA. To this, the appellate court ruled that such contention had no basis and that assuming there were defects, it would not impair the fact that the accused was arrested in the illegal sale of shabu during a buy-bust operation. THE COURTS RULING The Court finds no merit in this appeal. The elements necessary for the prosecution of illegal sale of drugs are (1) the identities of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor.7 What is material to the prosecution of illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.8 All these elements were present in this case. There is no doubt that the accused was caught red-handed in a buy-bust operation. The illegal sale of shabu was convincingly established by the credible and corroborated testimony of SPO2 Bautista who acted as the poseur-buyer. He had personal knowledge of the sale and positively identified the accused as the seller of the contraband. The object of the sale was examined and found to be positive for methylamphetamine hydrochloride (shabu), per Chemistry Report No. D-1111-04. The testimony of PO2 Bautista appears in the record as follows: Q: When you noticed that the subject was there, what did you do? A: Our female informant introduced me as the supposed shabu buyer, sir.

Q: Were you able to talk to the subject at that time? A: Yes sir. Our subject immediately asked me. Q: Asked you what? A: Magkano ba ang bibilhin mo? Q: What was your answer? A: I said, "Isang piso lang" sir. Q: What was the answer of your subject? A: He asked me for money, sir. Q: Were you able to give the money? A: Yes, sir. Q: When he received the money, what happened next? A: He pulled out a piece of plastic sachet containing white crystalline substance suspected shabu, sir.9 The testimony of PO2 Bautista was indeed corroborated on material points by SPO2 Mario Abong who observed the transaction while waiting inside a car just a few meters away.10 Clearly, the accused was caught red-handed in the act of selling shabu to PO2 Bautista in a buy-bust operation. Contrary to the argument of the accused, the chain of custody of the seized prohibited drugs was not broken. PO2 Bautista was in possession of the sachet containing the shabu all that time after its confiscation. At the police station, he marked the specimen with the initial "EB-RP" upon orders of the investigator. After he had marked it, SPO2 Abong and the investigator brought the shabu to the crime laboratory for examination. Besides, the issue of chain of custody was never raised by the accused at the trial court level. It was only brought up belatedly by the accused which clearly demonstrated that such defense was merely an after-thought. At any rate, non-compliance with Section 21 of RA 916511 will not render the arrest of an accused illegal or the items seized or confiscated from him inadmissible.12 What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the

guilt or innocence of the accused. In this case, it has been shown that the integrity and evidentiary value of the seized items has been preserved. The Court likewise notes that the regularity in the preparation of the Pre-Operation Report was established by the testimony of PO2 Bautista and SPO2 Abong, when they explained that per office procedure, the entry "Duration" was filled in advance to reflect its effectivity or lifetime because the Pre-Operation Report had a lifetime or duration of twenty-four (24) hours. When a specific operation came up, the details of the pre-operation report would then be entered, and the report sent to the PDEA. In this case, the entry "Duration" in the Pre-Operation Report indicates "19220H to 2022200H Nov. 2004." The Court, therefore, sustains the regularity in the preparation of the Pre-Operation Report since it was valid or had a lifetime from 10:00 in the evening of November 19, 2004, to 10:00 in the evening of November 20, 2004. Again, taking into consideration the presumption of regularity in the performance of official functions and absent any evidence that would negate such presumption, the Court considers the Pre-Operation Report to have been properly received, noted and acted upon by the PDEA. As uniformly observed by the trial court and the appellate court, the account of the arresting/entrapping police officers, as to what took place in the evening of November 20, 2004, was credible. They rendered consistent and straightforward narration of what actually transpired that night. Besides, there is the presumption of regularity in the performance of official duty by the police operatives in this case and such presumption was never substantially rebutted by the defense. For the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity.13 Frame-up, like alibi, is generally viewed with caution by this Court because it is easy to contrive and difficult to disprove. Moreover, it is a common and standard line of defense in prosecution of violations of the Dangerous Drugs Act.14 In this jurisdiction, the conduct of a buy-bust operation is a common and accepted mode of apprehending those involved in illegal sale of prohibited or regulated drugs. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity.15 Unless there is clear and convincing evidence that the members of the buy-bust team were impelled by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.161avvphi1 In the case at bench, with a practically uncorroborated testimony, the accused miserably failed to show that the members of the buy-bust team were driven by any improper motive or that they did not properly perform their duty. Against the positive testimonies of the prosecution witnesses, the plain denial by the accused simply fails.17

Under Section 5, Article II of Republic Act No. 9165, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000.00 to P10,000,000.00.18 With the effectivity, however, of Republic Act No. 9346,19 the imposition of the supreme penalty of death has been proscribed. Thus, the penalty to be imposed on the accused shall only be life imprisonment and fine. Finding that the penalty imposed on him for selling shabu to be in accordance with law, the Court upholds it. WHEREFORE, the August 18, 2008 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 02547 is hereby AFFIRMED. SO ORDERED. G.R. No. 200134 August 15, 2012 ROBERTO OTERO v ROGER TAN Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the Decision1 dated April 29, 2011 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 02244, which affirmed the Judgment2 dated December 28, 2007 issued by the Regional Trial Court (RTC), Cagayan de Oro City, Branch 23 in Civil Case No. 2007-90. The Antecedent Facts A Complaint3 for collection of sum of money and damages was filed by Roger Tan (Tan) with the Municipal Trial Court in Cities (MTCC), Cagayan de Oro City on July 28, 2005 against Roberto Otero (Otero). Tan alleged that on several occasions from February 2000 to May 2001, Otero purchased on credit petroleum products from his Petron outlet in Valencia City, Bukidnon in the aggregate amount of P 270,818.01. Tan further claimed that despite several verbal demands, Otero failed to settle his obligation. Despite receipt of the summons and a copy of the said complaint, which per the records of the case below were served through his wife Grace R. Otero on August 31, 2005, Otero failed to file his answer with the MTCC. On November 18, 2005, Tan filed a motion with the MTCC to declare Otero in default for his failure to file his answer. Otero opposed Tans motion, claiming that he did not receive a copy of the summons and a copy of Tans complaint. Hearing on the said motion was set on January 25, 2006, but was later reset to March 8, 2006, Otero manifesting that he only received the notice therefor on January 23, 2006. The hearing on March 8, 2006 was further reset to April 26, 2006 since the presiding judge was attending a convention. Otero failed to appear at the next scheduled hearing, and the MTCC issued an order declaring him in default. A copy of the said

order was sent to Otero on May 9, 2006. Tan was then allowed to present his evidence ex parte. Tan adduced in evidence the testimonies of Rosemarie Doblado and Zita Sara, his employees in his Petron outlet who attended Otero when the latter made purchases of petroleum products now the subject of the action below. He likewise presented various statements of account4 showing the petroleum products which Otero purchased from his establishment. The said statements of account were prepared and checked by a certain Lito Betache (Betache), apparently likewise an employee of Tan. The MTCC Decision On February 14, 2007, the MTCC rendered a Decision5 directing Otero to pay Tan his outstanding obligation in the amount of P 270,818.01, as well as attorneys fees and litigation expenses and costs in the amounts of P 15,000.00 and P 3,350.00, respectively. The MTCC opined that Oteros failure to file an answer despite notice is a tacit admission of Tans claim. Undeterred, Otero appealed the MTCC Decision dated February 14, 2007 to the RTC, asserting that the MTCCs disposition is factually baseless and that he was deprived of due process. The RTC Decision On December 28, 2007, the RTC rendered a Judgment6 affirming the MTCC Decision dated February 14, 2007. The RTC held that the statements of account that were presented by Tan before the MTCC were overwhelming enough to prove that Otero is indeed indebted to Tan in the amount of P 270,818.01. Further, brushing aside Oteros claim of denial of due process, the RTC pointed out that: As to the second assignment of error, suffice to say that as borne out by the record of the case, defendant-appellant was given his day in Court contrary to his claim. His wife, Grace R. Otero received a copy of the summons together with a copy of the Complaint and its corresponding annexes on August 31, 2005, per Return of Service made by Angelita N. Bandoy, Process Server of OCC-MTCC of Davao City. He was furnished with a copy of the Motion to Declare Defendant in Default on November 18, 2005, per Registry Receipt No. 2248 which was received by the defendant. Instead of filing his answer or any pleading to set aside the Order of default, he filed his Comment to the Motion to Declare Defendant in Default of which plaintiff filed his Rejoinder to Defendants Comment. The case was set for hearing on January 23, 2006, but defendant through counsel sent a telegram that he only received the notice on the day of the hearing thereby he was unable to appear due to his previous scheduled hearings. Still, for reasons only known to him, defendant failed to lift the Order of Default.

The hearing on January 23, 2006 was reset on March 8, 2006 and again reset on April 26, 2006 by agreement of counsels x x x. It is not therefore correct when defendant said that he was deprived of due process.7 Otero sought reconsideration of the Judgment dated December 28, 2007 but it was denied by the RTC in its Order8 dated February 20, 2008. Otero then filed a petition for review9 with the CA asserting that both the RTC and the MTCC erred in giving credence to the pieces of evidence presented by Tan in support of his complaint. Otero explained that the statements of account, which Tan adduced during the ex parte presentation of his evidence, were prepared by a certain Betache who was not presented as a witness by Tan. Otero avers that the genuineness and due execution of the said statements of account, being private documents, must first be established lest the said documents be rendered inadmissible in evidence. Thus, Otero asserts, the MTCC and the RTC should not have admitted in evidence the said statements of account as Tan failed to establish the genuineness and due execution of the same. The CA Decision On April 29, 2011, the CA rendered the assailed Decision10 which denied the petition for review filed by Otero. In rejecting Oteros allegation with regard to the genuineness and due execution of the statements of account presented by Tan, the CA held that any defense which Otero may have against Tans claim is already deemed waived due to Oteros failure to file his answer. Thus: Otero never denied that his wife received the summons and a copy of the complaint. He did not question the validity of the substituted service. Consequently, he is charged with the knowledge of Tans monetary claim. Section 1, Rule 9 of the Rules of Court explicitly provides that defenses and objections not pleaded are deemed waived. Moreover, when the defendant is declared in default, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant. Due to Oteros failure to file his Answer despite being duly served with summons coupled with his voluntary appearance in court, he is deemed to have waived whatever defenses he has against Tans claim. Apparently, Otero is employing dilatory moves to defer the payment of his obligation which he never denied.11 (Citation omitted) Oteros Motion for Reconsideration12 was denied by the CA in its Resolution13 dated December 13, 2011. Hence, the instant petition.

Issues Essentially, the fundamental issues to be resolved by this Court are the following: first, whether Otero, having been declared in default by the MTCC, may, in the appellate proceedings, still raise the failure of Tan to authenticate the statements of account which he adduced in evidence; and second, whether Tan was able to prove the material allegations of his complaint. The Courts Ruling The petition is denied. First Issue: Authentication of the Statements of Account The CA, in denying the petition for review filed by Otero, held that since he was declared in default by the MTCC, he is already deemed to have waived whatever defenses he has against Tans claim. He is, thus, already barred from raising the alleged infirmity in the presentation of the statements of account. We do not agree. A defendant who fails to file an answer loses his standing in court. The effect of a defendants failure to file an answer within the time allowed therefor is primarily governed by Section 3, Rule 9 of the Rules of Court, viz: Sec. 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. x x x (Emphasis ours) A defendant who fails to file an answer may, upon motion, be declared by the court in default. Loss of standing in court, the forfeiture of ones right as a party litigant, contestant or legal adversary, is the consequence of an order of default. A party in default loses his right to present his defense, control the proceedings, and examine or cross-examine witnesses. He has no right to expect that his pleadings would be acted upon by the court nor may be object to or refute evidence or motions filed against him.14 A defendant who was declared in default may nevertheless appeal

from the judgment by default, albeit on limited grounds. Nonetheless, the fact that a defendant has lost his standing in court for having been declared in default does not mean that he is left sans any recourse whatsoever. In Lina v. CA, et al.,15 this Court enumerated the remedies available to party who has been declared in default, to wit: a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion, under oath, to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or excusable neglect, and that he has meritorious defenses; (Sec 3, Rule 18) b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37; c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Section 2 of Rule 38; and d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him. (Sec. 2, Rule 41)16 (Emphasis ours) Indeed, a defending party declared in default retains the right to appeal from the judgment by default. However, the grounds that may be raised in such an appeal are restricted to any of the following: first, the failure of the plaintiff to prove the material allegations of the complaint; second, the decision is contrary to law; and third, the amount of judgment is excessive or different in kind from that prayed for.17 In these cases, the appellate tribunal should only consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence. A defendant who has been declared in default is precluded from raising any other ground in his appeal from the judgment by default since, otherwise, he would then be allowed to adduce evidence in his defense, which right he had lost after he was declared in default.18 Indeed, he is proscribed in the appellate tribunal from adducing any evidence to bolster his defense against the plaintiffs claim. Thus, in Rural Bank of Sta. Catalina, Inc. v. Land Bank of the Philippines,19 this Court explained that: It bears stressing that a defending party declared in default loses his standing in court and his right to adduce evidence and to present his defense. He, however, has the right to appeal from the judgment by default and assail said judgment on the ground, inter alia, that the amount of the judgment is excessive or is different in kind from that prayed for, or that the plaintiff failed to prove the material allegations of

his complaint, or that the decision is contrary to law. Such party declared in default is proscribed from seeking a modification or reversal of the assailed decision on the basis of the evidence submitted by him in the Court of Appeals, for if it were otherwise, he would thereby be allowed to regain his right to adduce evidence, a right which he lost in the trial court when he was declared in default, and which he failed to have vacated. In this case, the petitioner sought the modification of the decision of the trial court based on the evidence submitted by it only in the Court of Appeals.20 (Citations omitted and emphasis ours) Here, Otero, in his appeal from the judgment by default, asserted that Tan failed to prove the material allegations of his complaint. He contends that the lower courts should not have given credence to the statements of account that were presented by Tan as the same were not authenticated. He points out that Betache, the person who appears to have prepared the said statements of account, was not presented by Tan as a witness during the ex parte presentation of his evidence with the MTCC to identify and authenticate the same. Accordingly, the said statements of account are mere hearsay and should not have been admitted by the lower tribunals as evidence. Thus, essentially, Otero asserts that Tan failed to prove the material allegations of his complaint since the statements of account which he presented are inadmissible in evidence. While the RTC and the CA, in resolving Oteros appeal from the default judgment of the MTCC, were only required to examine the pieces of evidence that were presented by Tan, the CA erred in brushing aside Oteros arguments with respect to the admissibility of the said statements of account on the ground that the latter had already waived any defense or objection which he may have against Tans claim. Contrary to the CAs disquisition, it is not accurate to state that having been declared in default by the MTCC, Otero is already deemed to have waived any and all defenses which he may have against Tans claim. While it may be said that by defaulting, the defendant leaves himself at the mercy of the court, the rules nevertheless see to it that any judgment against him must be in accordance with the evidence required by law. The evidence of the plaintiff, presented in the defendants absence, cannot be admitted if it is basically incompetent. Although the defendant would not be in a position to object, elementary justice requires that only legal evidence should be considered against him. If the same should prove insufficient to justify a judgment for the plaintiff, the complaint must be dismissed. And if a favorable judgment is justifiable, it cannot exceed in amount or be different in kind from what is prayed for in the complaint.21 Thus, in SSS v. Hon. Chaves,22 this Court emphasized that: We must stress, however, that a judgment of default against the petitioner who failed to appear during pre-trial or, for that matter, any defendant who failed to file

an answer, does not imply a waiver of all of their rights, except their right to be heard and to present evidence to support their allegations. Otherwise, it would be meaningless to request presentation of evidence every time the other party is declared in default. If it were so, a decision would then automatically be rendered in favor of the non-defaulting party and exactly to the tenor of his prayer. The law also gives the defaulting parties some measure of protection because plaintiffs, despite the default of defendants, are still required to substantiate their allegations in the complaint.23 (Citations omitted and emphasis ours) The statements of account presented by Tan were merely hearsay as the genuineness and due execution of the same were not established. Anent the admissibility of the statements of account presented by Tan, this Court rules that the same should not have been admitted in evidence by the lower tribunals. Section 20, Rule 132 of the Rules of Court provides that the authenticity and due execution of a private document, before it is received in evidence by the court, must be established. Thus: Sec. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: a) By anyone who saw the document executed or written; or b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. A private document is any other writing, deed, or instrument executed by a private person without the intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private document requires authentication in the manner allowed by law or the Rules of Court before its acceptance as evidence in court. The requirement of authentication of a private document is excused only in four instances, specifically: (a) when the document is an ancient one within the context of Section 21, Rule 132 of the Rules of Court; (b) when the genuineness and authenticity of an actionable document have not been specifically denied under oath by the adverse party; (c) when the genuineness and authenticity of the document have been admitted; or (d) when the document is not being offered as genuine.24

The statements of account which Tan adduced in evidence before the MTCC indubitably are private documents. Considering that these documents do not fall among the aforementioned exceptions, the MTCC could not admit the same as evidence against Otero without the required authentication thereof pursuant to Section 20, Rule 132 of the Rules of Court. During authentication in court, a witness positively testifies that a document presented as evidence is genuine and has been duly executed, or that the document is neither spurious nor counterfeit nor executed by mistake or under duress.25 Here, Tan, during the ex parte presentation of his evidence, did not present anyone who testified that the said statements of account were genuine and were duly executed or that the same were neither spurious or counterfeit or executed by mistake or under duress. Betache, the one who prepared the said statements of account, was not presented by Tan as a witness during the ex parte presentation of his evidence with the MTCC. Considering that Tan failed to authenticate the aforesaid statements of account, the said documents should not have been admitted in evidence against Otero. It was thus error for the lower tribunals to have considered the same in assessing the merits of Tans Complaint. Second Issue: The Material Allegations of the Complaint In view of the inadmissibility of the statements of account presented by Tan, the remaining question that should be settled is whether the pieces of evidence adduced by Tan during the ex parte presentation of his evidence, excluding the said statements of account, sufficiently prove the material allegations of his complaint against Otero. We rule in the affirmative. In civil cases, it is a basic rule that the party making allegations has the burden of proving them by a preponderance of evidence. The parties must rely on the strength of their own evidence and not upon the weakness of the defense offered by their opponent.26 This rule holds true especially when the latter has had no opportunity to present evidence because of a default order. Needless to say, the extent of the relief that may be granted can only be so much as has been alleged and proved with preponderant evidence required under Section 1 of Rule 133.27 Notwithstanding the inadmissibility of the said statements of account, this Court finds that Tan was still able to prove by a preponderance of evidence the material allegations of his complaint against Otero. First, the statements of account adduced by Tan during the ex parte presentation of his evidence are just summaries of Otero's unpaid obligations, the absence of which do not necessarily disprove the latter's liability.

Second, aside from the statements of account, Tan likewise adduced in evidence the testimonies of his employees in his Petron outlet who testified that Otero, on various occasions, indeed purchased on credit petroleum products from the former and that he failed to pay for the same. It bears stressing that the MTCC, the R TC and the CA all gave credence to the said testimonial evidence presented by Tan and, accordingly, unanimously found that Otero still has unpaid outstanding obligation in favor of Tan in the amount of P 270,818.01. Well-established is the principle that factual findings of the trial court, when adopted and confirmed by the CA, are binding and conclusive on this Court and will generally not be reviewed on appeal.28 The Court sees no compelling reason to depart from the foregoing finding of fact of the lower courts. WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The Decision dated April 29, 2011 rendered by the Court of Appeals in CAG.R. SP No. 02244 is AFFIRMED. SO ORDERED.

Lim Tanhu vs. Ramolete 66 SCRA 425 - Digest FACTS: Private respondent Tan Put alleged that she is the widow of Tee Hoon Lim Po Chuan, who was a partner and practically the owner who has controlling interest of Glory Commercial Company and a Chinese Citizen until his death. Defendant Antonio Lim Tanhu and Alfonso Leonardo Ng Sua were partners in name but they were mere employees of Po Chuan and were naturalized Filipino Citizens. Tan Put filed complaint against spouses-petitoner Lim Tanhu and Dy Ochay including their son Tech Chuan and the other spouses-petitoner Ng Sua and Co Oyo including also their son Eng Chong Leonardo, that through fraud and machination took actual and active management of the partnership and that she alleged entitlement to share not only in the capital and profits of the partnership but also in the other assets, both real and personal, acquired by the partnership with funds of the latter during its lifetime." According to the petitioners, Ang Siok Tin is the legitimate wife, still living, and with whom Tee Hoon had four legitimate children, a twin

born in 1942, and two others born in 1949 and 1965, all presently residing in Hong Kong. Tee Hoon died in 1966 and as a result of which the partnership was dissolved and what corresponded to him were all given to his legitimate wife and children. Tan Put prior of her alleged marriage with Tee Hoon on 1949, was engaged in the drugstore business; that not long after her marriage, upon the suggestion of the latter sold her drugstore for P125,000.00 which amount she gave to her husband as investment in Glory Commercial Co. sometime in 1950; that after the investment of the above-stated amount in the partnership its business flourished and it embarked in the import business and also engaged in the wholesale and retail trade of cement and GI sheets and under huge profits. Defendants interpose that Tan Put knew and was are that she was merely the common-law wife of Tee Hoon. Tan Put and Tee Hoon were childless but the former had a foster child, Antonio Nunez. ISSUE: Whether Tan Put, as she alleged being married with Tee Hoon, can claim from the company of the latters share. HELD: Under Article 55 of the Civil Code, the declaration of the contracting parties that they take each other as husband and wife "shall be set forth in an instrument" signed by the parties as well as by their witnesses and the person solemnizing the marriage. Accordingly, the primary evidence of a marriage must be an authentic copy of the marriage contract. While a marriage may also be proved by other competent evidence, the absence of the contract must first be satisfactorily explained. Surely, the certification of the person who allegedly solemnized a marriage is not admissible evidence of such marriage unless proof of loss of the contract or of any other satisfactory reason for its non-production is first presented to the court. In the case at bar, the purported certification issued by a Mons. Jose M. Recoleto, Bishop, Philippine Independent Church, Cebu City, is not, therefore, competent evidence, there being absolutely no showing as to unavailability of the

marriage contract and, indeed, as to the authenticity of the signature of said certifier, the jurat allegedly signed by a second assistant provincial fiscal not being authorized by law, since it is not part of the functions of his office. Besides, inasmuch as the bishop did not testify, the same is hearsay. An agreement with Tee Hoon was shown and signed by Tan Put that she received P40,000 for her subsistence when they terminated their relationship of common-law marriage and promised not to interfere with each others affairs since they are incompatible and not in the position to keep living together permanently. Hence, this document not only proves that her relation was that of a common-law wife but had also settled property interests in the payment of P40,000. IN VIEW OF ALL THE FOREGOING, the petition is granted. All proceedings held in respondent court in its Civil Case No. 12328 subsequent to the order of dismissal of October 21, 1974 are hereby annulled and set aside, particularly the ex-parte proceedings against petitioners and the decision on December 20, 1974. Respondent court is hereby ordered to enter an order extending the effects of its order of dismissal of the action dated October 21, 1974 to herein petitioners Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo. And respondent court is hereby permanently enjoined from taking any further action in said civil case gave and except as herein indicated. Costs against private respondent.