1. G.R. No.

138471

October 10, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL PRUNA RAMIRE! or ERMAN PRUNA RAMIRE!, accusedappellant. DECISION "A#I"E, $R., C.J.: A rosebud that had been snuffed out of its fragrance long before it could even blossom into a flo er. Such is thecase of !i"ette Arabelle #on"ales $hereafter !I%E&&E', ho had been defiled at a ver( tender age. She as at the time voiding her bod( aste at their neighbor)s bac*(ard, but that did not deter herein appellant from imposing hislecher( on her. Indeed, lust is no respecter of time and place. + On ,- .anuar( +//0, an information, for rape as filed against accused-appellant 1anuel 2runa ( 3amire" or Erman 2runa ( 3amire" $hereafter 234NA', the accusator( portion of hich reads5 &hat on or about .anuar( 6, +//0 at Sitio &abing-ilog, 7rg(. 2anilao, 2ilar, 7ataan, 2hilippines, and ithin the 8urisdiction of this 9onorable Court, the said accused thru force and intimidation, did then and there illfull(, unla full( and feloniousl( lie and succeed to have se:ual intercourse ith the offended part(, !i"ette Arabelle #on"ales, a 6-(ear-old minor girl, against the ill and consent of the latter, to her damage and pre8udice. 4pon motion of 234NA)s counsel, the 2ublic Attorne()s Office $2AO', the Information as amended changing the name of the accused from 1anuel 2runa ( 3amire" to Erman 2runa ( 3amire", hich as the name reflected in his birth certificate.6 9o ever, hen he testified in court, he stated that his name as 1anuel 2runa; and in the minutes of the court proceedings, he signed the name 1anuel 2runa. On ,- November +//0, upon the 1otion to 2ut the Accused 4nder 2s(chiatric or 1ental E:amination < filed b( 234NA)s counsel on the ground that he could not secure from 234NA a coherent ans er to even simple =uestions, the trial court ordered that the accused be brought to the National 1ental 9ospital in 1andalu(ong Cit( for ps(chiatric or mental e:amination. 0 Accordingl(, the trial as suspended, and 234NA as sent to the National Center for 1ental 9ealth $NC19', 1andalu(ong Cit(. On ,> .une +//?, the trial court received a telegram? from the NC19 stating that 234NA as in @fair condition.@ &he NC19 later submitted to the trial court a report- on the ps(chiatric evaluation of 234NA ith a recommendation to put him bac* to 8ail for the resumption of court proceedings. &he report also stated that 234NA narrated that hile he and his friends ere under the bridge sniffing rugb(

and drin*ing alcohol, the( sa a 6-(ear-old girl defecating in the river ban*; that the( called her; and, upon the order of his friends he placed her on his lap and attempted to caress her sensitive parts. Said report as not, ho ever, offered in evidence b( the prosecution or the defense. &he prosecution presented five itnesses, hose testimonies can be summed up as follo s5 .ac=ueline #on"ales, the mother of !I%E&&E, testified that on 6 .anuar( +//0, at /56A a.m., she as fetching ater from the artesian ell located ten meters a a( from her house, hile !I%E&&E as defecating at the bac* of the house of their neighbor #loria &olentino. .ac=ueline then carried her pail of ater and ent bac* to her house. Since !I%E&&E as not home (et, .ac=ueline headed to ard the place here the former as moving her bo el. She loo*ed for !I%E&&E but did not find her. It as hen .ac=ueline as alread( returning to her house that she sa !I%E&&E from behind -- red-faced, cr(ing, and appeared to be ver( frightened. Bhen as*ed here she came from, !I%E&&E ans ered that she as brought b( a certain @7o(@ to the grass( area at the bac* of #loria)s house here she as se:uall( molested $or @*inantot@ in the &agalog dialect'. !I%E&&E then pulled her mother and led her to the house of 234NA, hich as about eight meters a a( from their house. 234NA, the onl( one *no n in their communit( as @7o(,@ as not there. .ac=ueline forth ith re=uested her mother-in-la to report the matter to the police, hile .ac=ueline and !I%E&&E ent to the 7ataan 2rovincial 9ospital.> .ac=ueline further declared that at the time of the alleged rape, !I%E&&E as 6 (ears old, but at the time .ac=ueline testified on +- October +//0, !I%E&&E as < (ears old. !I%E&&E)s last birthda( as on +/ April +//0./ !I%E&&E testified that she *ne 234NA hom he called @7o(.@ She pointed to him inside the courtroom. According to her, 234NA laid her do n in a grass( area and inserted his penis into her vagina. Bhen the presiding 8udge as*ed her hether she *ne that it is a sin to tell a lie, she ans ered in the affirmative. +A Dr. Emelita Cuiro", an obstetrician and g(necologist at the 7ataan 2rovincial 9ospital, testified that on 6 .anuar( +//0, she conducted a complete ph(sical e:amination on !I%E&&E and too* et smear specimen from her vaginal all through scraping. &he specimen as sent to the laborator( for anal(sis b( a medical technologist. Durther, she re=uested a urinal(sis for !I%E&&E. ++ &he 1edico-!egal 3eport+, prepared b( Dr. Cuiro" reveals the follo ing findings5 Essentiall( normal 2E-Dindings Infantile areola E nipples Dlat breasts $-' hematoma

$-' pubic hair !abia minora and ma8ora F ell coaptated 9(menal ring intact $G' h(peremia $-' laceration $Haginal Opening' !A7O3A&O3I 3ES4!&5 BE& S1EA35 JO9 - Negative for &-Haginalis NSS- Negative for fungi S2E31 ANA!ISIS -2OSI&IHE for sperm cells #ram staining-fe , epithelial cells seen, no other microorganism 43INA!ISIS5 37C-6---Khpf epithelial cells Ffe . B7C-A-, Although not stated in the 1edico-!egal 3eport of Dr. Cuiro", the urinal(sis report+6 includes a positive finding for @sperm cells.@ Dr. Cuiro" e:plained that the presence of sperm cells in the vaginal canal signified that se:ual intercourse and e8aculation had occurred on the person of the patient. &here as no laceration; but there as h(peremia, hich means reddening of the tissue around the vaginal opening. Among the causes of h(peremia is the insertion of a hard ob8ect li*e penis and finger.+< &eresita 1agtagnob, the medical technologist ho conducted the laborator( e:aminations and prepared the corresponding reports,+0 testified that sperm cells ere found in the et smear specimen and urine ta*en from !I%E&&E. +? S2O, 3omeo D. 7unso(, a member of the 2hilippine National 2olice assigned at the 2ilar 1unicipal Station, testified that on 6 .anuar( +//0 the parent of the minor rape victim filed a complaint against 234NA. 9e referred the matter to the des* officer to have it blottered. 4pon his advise, the minor as brought to the hospital for e:amination. Bhen the( returned from the hospital, he too* their statements. !ater, he conducted an ocular inspection and investigation at the alleged place of the

incident and caused the place to be photographed, hich sho ed that the grasses ere flattened. 9e in=uired from the people in the neighborhood, and one of them ans ered that he sa the minor being brought b( 234NA to the place here the minor as found. Bhen 234NA as brought to their station b( four baranga( tanods of 2anilao, 2ilar, 7ataan, S2O, 7unso( tried to converse ith him, but the former did not give an( repl(. +On the part of the defense, Carlito 7ondoc and 234NA too* the itness stand. Carlito testified that on 6 .anuar( +//0, he fetched ater at the public artesian ell together ith .ac=ueline. After having dra n ater from the ell, .ac=ueline called her daughter, ho as then defecating on the road near the river; and the( both ent home. After a hile, the parents of !I%E&&E shouted that their daughter as raped, and then the( proceeded to the house of 234NA and accused him of having raped the child. Carlito asserted that 234NA could not have raped !I%E&&E because he $234NA' as in his house from the time that !I%E&&E as moving her bo el up to the time that her mother ent to the house of 234NA. Carlito *ne that 234NA as at home because the former as also in the latter)s house to have coffee. Carlito and the Sulit famil( thereafter brought 234NA to the baranga( hall. Since the baranga( captain as not around, the( brought 234NA to the municipal building to prove that he as innocent.+> 234NA denied having raped !I%E&&E. 9e claimed that in the morning of 6 .anuar( +//0, he as in his house preparing coffee for Carlito. After Carlito left, several men arrived and bo:ed him for reasons not *no n to him. Carlito and the latter)s friend then brought him to the baranga( hall. &here, !I%E&&E)s father bo:ed him. 9e as thereafter brought to the 2ilar 1unicipal .ail. &here, the mother of the child thre at him the lid cover of a *ettle. 9e as also as*ed b( the police to ta*e off his clothes and lie flat; then he as mauled. &hereafter, he as told to put his feet bet een the grills, and he as made to masturbate. Borse, his testes ere burned ith cigarette butts. Ever( night, he as as*ed to *neel on a chair and as hit ith a ,@: ,@ piece of ood. +/ After trial, 234NA as convicted b( the trial court of the crime of rape in its =ualified form and sentenced to suffer the supreme penalt( of death and to indemnif( the victim in the sum of 20A,AAA, plus costs.,A 9ence, this automatic revie . In his Appellant)s 7rief,,+ 234NA attributed to the trial court the follo ing errors5 I L IN 3E!IIN# ON &9E &ES&I1ONI OD .ACC4E!INE S. #ON%A!ES, &9E 1O&9E3 OD &9E C9I!D, &9A& &9E !A&&E3 BAS &93EE $6' IEA3S O!D

B9EN &9E A!!E#ED 3A2E OCC433ED B9EN &9E 7ES& EHIDENCE &9E3EDO3 IS &9E 7I3&9 CE3&IDICA&E OD &9E C9I!D. II L IN 3E!IIN# ON &9E 9EA3SAI &ES&I1ONI OD .ACC4E!INE S. #ON%A!ES AS &O &9E A!!E#ED 3A2E OD 9E3 C9I!D. III

Be shall resolve these issues in seriatim. I. !I%E&&E)s Competenc( and Credibilit( as a Bitness Appellant disputes the competenc( of !I%E&&E to testif( b( reason of her tender age. Bhen !I%E&&E as called to testif(, his counsel interposed a vigorous ob8ection to the admission of her testimon( because of her tender age. &he trial court noted the ob8ection and allo ed her to testif(; thus5 DI3EC& EOA1INA&ION 7I

L IN AD1I&&IN# AND 3E!IIN# ON &9E &ES&I1ONI OD CO12!AINAN&M N C9I!D B9O BAS ON!I &93EE $6' IEA3S O!D B9EN &9E A!!E#ED 3A2E OCC433ED EHEN AS S9E BAS ON!I DIHE $0' IEA3S O!D B9EN S9E &ES&IDIED. IH L IN CONHIC&IN# &9E ACC4SED ON D47IO4S EHIDENCE. &he Office of the Solicitor #eneral $hereafter OS#' see*s the affirmation of the trial court)s decision ith the modification that an additional a ard of 20A,AAA as moral damages be granted in favor of the offended part(. As culled from the arguments of the parties, the issues to be resolved in this case are as follo s5 $+' Bhether !I%E&&E as a competent and credible itness considering that she as allegedl( onl( 6 (ears old hen the alleged rape occurred and 0 (ears old hen she testified; $,' Bhether .ac=ueline)s testimon( as to the declarations of !I%E&&E is hearsa(; $6' Bhether the failure of the prosecution to present #loria &olentino as a itness is fatal; $<' Bhether appellant)s guilt has been proved be(ond reasonable doubt; $0' Bhether the =ualif(ing circumstance of minorit( has been dul( proved as to 8ustif( the imposition of the death penalt(.

23OS. !41A7AS5 Do (ou *no 1anuel 2runaP A Ies, sir. C 9o do (ou call 1anuel 2runaP A 7o(, sir. C Bhere is heP A &here, sir. $Bitness pointing to a person earing blue &-shirt, ho hen as*ed, gave his name as 1anuel 2runa' L 23OS. !41A7AS5 Bhat did 1anuel 2runa or 7o( do to (ouP A @Inihiga ni(a a*o@ and inserted his penis to m( vagina, sir. C And in hat place did he do this to (ouP A In the grass( area, sir. C After he inserted his penis to (our vagina, hat happened ne:tP

A&&I. 7A!4IO&5 &he itness for =uite sometime could not ans er the =uestion. 23OS. !41A7AS5 I thin* that ill be all for the itness.,,

C Iou ere then removingMsicN (our bo el, is it notP A Ies, sir. C &hen hile removing (our bo el (ou sa (our mother passM N b(, is it notP A Ies, sir.

After hich, the defense counsel manifested that he ould not crosse:amine her and that he intended to file a motion for her dis=ualification as a itness.,6 &he court then proceeded to as* her a fe =uestions, thus5 CO43& 5 Do (ou *no A @Sa lupa.@ C Do (ou *no that it is a sin to tell a lieP A Ies, sir. C &he itness is e:cused considering the manifestation of Att(. 7alu(ot that he ill be filing a ritten motion for the stri*ing out of the testimon( of the itness considering her tender age.,< No such motion is e:tant on the records. At the ne:t hearing, the defense counsel cross-e:amined !I%E&&E, as follo s5 A&&I. 7A!4IO&5 hat ill happen to a child if she is not telling the truthP

C She as then carr(ing a pail to fetch some ater, is it notP A Ies, sir. C &he ater from here she ill fetch is MsicNL a fe meterMsN a a( from (ou, is it notP A Near, sir. L A&&I. 7A!4IO&5 Considering that the grass( place here (ou ere then discharging (our bo el is beside a streetP A Ies, sir. C And (ou sa (our mother bringing a pail of ater to ards (our house after her pumping from the ell, is it notP A Ies, sir.

On .anuar( 6, +//0, in the morning here ere (ouP C Bhen she passed b( she li*e ise sa (ou, is it notP A I as in the grass( area, sir. A Ies, sir. C In that grass( area there ere other children ith (ou pla(ingP A None, sir. C &hen ho far ere (ou from (our house hen (ou ere discharging (our bo elP 2lease demonstrate the distanceP

A 4p to that door, sir. C Drom that position (ou ere at the grass (ou could see (our house, is it notP A Ies, sir. C Could (ou tell the 9onorable Court ho long did it ta*e (ou to discharge (our bo elP L A Dor a short period of time, sir. $Sandali lang po.',0 As a general rule, hen a itness ta*es the itness stand, the la , on ground of public polic(, presumes that he is competent. &he court cannot re8ect the itness in the absence of proof of his incompetenc(. &he burden is, therefore, upon the part( ob8ecting to the competenc( of a itness to establish the ground of incompetenc(. ,? Section ,+ of 3ule +6A of the 3ules on Evidence enumerates the persons ho are dis=ualified to be itnesses. Among those dis=ualified are @McNhildren hose mental maturit( is such as to render them incapable of perceiving the facts respecting hich the( are e:amined and relating them truthfull(.@ lawphil.net No precise minimum age can be fi:ed at hich children shall be e:cluded from testif(ing. &he intelligence, not the age, of a (oung child is the test of the competenc( as a itness.,- It is settled that a child, regardless of age, can be a competent itness if he can perceive and, in perceiving, can ma*e *no n his perception to others and that he is capable of relating truthfull( the facts for hich he is e:amined.,> In determining the competenc( of a child itness, the court must consider his capacit( $a' at the time the fact to be testified to occurred such that he could receive correct impressions thereof; $b' to comprehend the obligation of an oath; and $c' to relate those facts trul( to the court at the time he is offered as a itness. ,/ &he e:amination should sho that the child has some understanding of the punishment hich ma( result from false s earing. &he re=uisite appreciation of conse=uences is disclosed here the child states that he *no s that it is rong to tell a lie, and that he ould be punished if he does so, or that he uses language hich is e=uivalent to

sa(ing that he ould be sent to hell for false s earing. 6A A child can be dis=ualified onl( if it can be sho n that his mental maturit( renders him incapable of perceiving facts respecting hich he is being e:amined and of relating them truthfull(. 6+ &he =uestion of competenc( of a child- itness rests primaril( in the sound discretion of the trial court. &his is so because the trial 8udge sees the proposed itness and observes his manner of testif(ing, his apparent possession or lac* of intelligence, as ell as his understanding of the obligation of an oath. 6, Since man( of the itness) manners cannot be photographed into the record, the finding of the trial 8udge ill not be disturbed or reversed unless from hat is preserved it is clear that such finding as erroneous.66 In this case, appellant =uestions the competenc( of !I%E&&E as a itness solel( on the ground of her age. 9e failed to discharge the burden of sho ing her mental immaturit(. Drom the above-=uoted testimon(, it can be gleaned that !I%E&&E had the capacit( of observation, recollection, and communication 6< and that she could discern the conse=uence of telling a lie. Be, therefore, sustain the trial court in admitting her testimon( and according it great eight. Be are not persuaded b( appellant)s assertion that !I%E&&E should not be allo ed to testif( t o (ears after the alleged rape @ hen the interpla( of frail memor( combines ith the imagination of earlier (ears.@ It must be noted that it is a most natural reaction for victims of criminal violence to have a lasting impression of the manner in hich the crime as committed and the identit( of the person responsible therefor.60 In a string of cases, e have said that the testimon( of a rape victim ho is of (oung or tender age is credible and deserves full credit, 6? especiall( here no motive is attributed to the victim that ould ma*e her testif( falsel( against the accused.6- Indeed, a girl of such age as !I%E&&E ould not concoct a stor( of defloration; allo the e:amination of her private parts; and undergo the e:pense, trouble, inconvenience, and the trauma of a public trial unless she as in fact raped.6> II. &he Alleged 9earsa( &estimon( of .ac=ueline #on"ales Contrar( to appellant)s contention, .ac=ueline)s testimon( that !I%E&&E told her that appellant laid her in the grass( area and inserted his penis into her vagina is not covered b( the hearsa( evidence rule, hich finds application hen the declarant does not testif(. &his rule, as enunciated under Section 6?, 3ule +6A of the 3ules on Evidence, provides that a itness can testif( onl( to those facts hich he *no s of his personal *no ledge e:cept as other ise provided in the 3ules of Court.

&he term @hearsa(@ as used in the la on evidence, signifies evidence hich is not founded upon the personal *no ledge of the itness from hom it is elicited and hich conse=uentl( does not depend holl( for its credibilit( and eight upon the confidence hich the court ma( have in him; its value, if an(, is measured b( the credit to be given to some third person not s orn as a itness to that fact, and conse=uentl( not sub8ect to cross-e:amination. 6/ If one therefore testifies to facts hich he learned from a third person not s orn as a itness to those facts, his testimon( is inadmissible as hearsa( evidence. <A &he reason for the e:clusion of hearsa( evidence is that the part( against hom the hearsa( testimon( is presented is deprived of the right or opportunit( to crosse:amine the person to hom the statements are attributed. <+ 1oreover, the court is ithout opportunit( to test the credibilit( of hearsa( statements b( observing the demeanor of the person ho made them.<,lavvphil.net In the instant case, the declarant $!I%E&&E' herself as s orn as a itness to the fact testified to b( .ac=ueline. &he appellant even cross-e:amined her $!I%E&&E'. 1oreover, the trial court had the opportunit( to observe her manner of testif(ing. 9ence, .ac=ueline)s testimon( on the incident related to her b( her daughter cannot be disregarded as hearsa( evidence. Even assuming that the aforementioned testimon( of .ac=ueline is hearsa(, its nonadmission ould not save the da( for the appellant. Such testimon( is not indispensable, as it merel( serves to corroborate !I%E&&E)s testimon( that 234NA laid her do n in the grass and inserted his private organ into hers. As discussed earlier, !I%E&&E)s testimon(, hich as found to be credible b( the trial court, is sufficient basis for conviction. At an( rate, .ac=ueline)s testimon( is proof of the victim)s conduct immediatel( after the rape. It sho s that !I%E&&E immediatel( revealed to her mother the rape incident and the identit( of her defiler. As ill be discussed later, such conduct is one of the earmar*s of the truth of the charge of rape. III Non-2resentation of #loria &olentino as a Bitness Appellant harps on the prosecution)s failure to put on the itness stand #loria &olentino, ho as listed as a itness and e:ecuted an affidavit on < .anuar( +//0 that she sa the appellant carr(ing and bringing !I%E&&E to a grass( area at the bac* of her house. It is undisputed that at the time the case as called for trial, #loria had alread( moved out of her residence in 2anilao, 2ilar, 7ataan, and could not be found

an(more. In an( event, as opined b( the OS#, her intended testimon( could be dispensed ith, as it ould onl( be corroborative of !I%E&&E)s testimon( that 2runa brought her to a grass( area. IH. Sufficienc( of the 2rosecution)s Evidence Against Appellant Bhen !I%E&&E as put in the itness stand, she unhesitatingl( identified 234NA, their neighbor, as the one ho defiled her. A rape victim can easil( identif( her assailant especiall( if he is *no n to her because during the rape, she is ph(sicall( close to her assailant that enables her to have a good loo* at the latter)s ph(sical features.<6 !I%E&&E testified that on 6 .anuar( +//0 234NA, hom she called 7o(, laid her in a grass( area and inserted his penis into her genitalia. Bhen a girl or a oman sa(s that she has been raped she sa(s in effect all that is necessar( to sho that rape as trul( committed.<< She is not e:pected to remember all the ugl( details of the outrage committed against her.<0 And hen her testimon( passes the test of credibilit(, the accused can be convicted on the basis thereof, for in most cases it is the onl( evidence that can be offered to establish his guilt. <? !i*e ise, !I%E&&E)s mother testified that right after the incident !I%E&&E disclosed hat happened to her and readil( identified 234NA as the culprit. She even led her mother to the house of 234NA.<- &hereafter, the t o ent to the police authorities to report the incident, and then to the hospital for !I%E&&E)s medical e:amination. 7( and large, the medical evidence lends credence to !I%E&&E)s testimon( that 234NA inserted his penis into her vagina. &he 1edico-!egal 3eport sho s that there as h(peremia or reddening of the vaginal opening of !I%E&&E. As opined b( Dr. Cuiro", ho as presented as an e:pert itness, h(peremia can be caused b( the insertion of a hard ob8ect li*e penis and finger. <> &he presence of sperm cells in the vaginal canal and urine of !I%E&&E is also a mute testimon( of the se:ual contact that further strengthens !I%E&&E)s claim of rape. &his Court is not oblivious of the finding that no laceration as found in !I%E&&E)s organ despite the fact that she as e:amined immediatel( after she as raped. Be have alread( ruled, ho ever, that the absence of fresh lacerations does not preclude the finding of rape,</ especiall( hen the victim is of tender age. 0A Bell- settled is the rule that rape is consummated b( the slightest penile penetration of the labia or pudendum of the female.0+&he presence of h(peremia in !I%E&&E)s vaginal opening and the e:istence of sperm cells in her vaginal canal and urine are clear indications that 234NA)s organ indeed touched the labia or pudendum of !I%E&&E.

In a nutshell, the follo ing over helmingl( establish the truth of the charge of rape5 $a' the spontaneit( of the identification b( !I%E&&E of 234NA as the rapist; $b' her immediate revelation to her mother of the dastard act committed against her; $c' her act of leading her mother to appellant)s house right after the incident; $d' the prompt filing of the complaint before the authorities; $e' !I%E&&E)s submission to medical e:amination; $f' the h(peremia in her private part; and $g' the presence of sperm cells in her vaginal canal and urine. &he trial court correctl( disregarded the defense of alibi raised b( the accused. Be have consistentl( held that for alibi to prosper, it must be proved that during the commission of the crime, the accused as in another place and that it as ph(sicall( impossible for him to be at the crime scene. .ust li*e denial, alibi is an inherentl( ea* defense; and unless supported b( clear and convincing evidence, the same cannot prevail over the positive declaration of the victim. 0, Be have also held that hen alibi is established onl( b( the accused, his relatives, or close friends, the same should be treated ith strictest scrutin(. 06 Carlito, ho as admittedl( a close friend of appellant)s parents, corroborated 234NA)s testimon( that he $234NA' as in his house during the time that !I%E&&E as raped. It is, ho ever, an established fact that the place here the rape occurred as 8ust a fe meters a a( from the house of 234NA. &hus, there as no ph(sical impossibilit( for 234NA to be in the grass( area to consummate the crime of rape. &he defense, through Carlito, attempted to impute motive to .ac=ueline in filing against 234NA the charge of rape. According to him, !I%E&&E)s grandparents, the Sulits, anted to bu( the place of the 234NA famil(, but the latter refused. 0< Aside from the fact that such testimon( as not corroborated, said motive, if at all, is too flims( to be even considered. No mother in her right mind ould use her offspring as an engine of malice. She ould not sub8ect her child to the humiliation, disgrace, and even the stigma attendant to a prosecution for rape unless she is motivated b( the desire to bring to 8ustice the person responsible for her child)s defilement. 00 H. Sufficienc( of Evidence of !I%E&&E)s 1inorit( and 2ropriet( of the Imposition of the Death 2enalt( &he commission of the crime of rape b( 234NA having been dul( established b( the prosecution, e no come to the =uestion of the penalt( to be meted upon him. Article 660, seventh paragraph, no. <, of the 3evised 2enal Code, as amended b( 3epublic Act No. -?0/, provides that the death penalt( shall be imposed if the crime of rape is committed against a @child belo seven $-' (ears old.@ Be have held that in such a case the minorit( of the victim must be proved ith e=ual certaint( and

clearness as the crime itself. &he failure to sufficientl( establish the victim)s age is fatal and conse=uentl( bars conviction for rape in its =ualified form. 0? A person)s age is best proved b( the birth certificate. 7ut is the presentation of the victim)s birth certificate a sine =ua non re=uirement to prove her age for the appreciation of minorit( either as an element of the crime or as a =ualif(ing circumstanceP 3ecent 8urisprudence has conflicting pronouncements. In the follo ing cases, no birth certificate as presented and this Court ruled that the age of the victim as not dul( proved b( the prosecution5 +. In 2eople v. Hargas,0- the testimonies of the victim and her aunt that the former as +A (ears old at the time of the rape ere not considered proof of her age for being hearsa(. &his Court also observed that the victim could easil( be mista*en for a child belo +, (ears of age, and hence it as not correct to 8udge the victim)s age b( her appearance. Be held5 @&he difference of t o or three (ears in age ma( not al a(s be readil( apparent b( mere ph(sical manifestations or appearance.@ ,. In 2eople v. .avier,0> the victim as alleged to be +? (ears old, and the accused did not contest her age. 3atiocinating that in this age of modernism, there is hardl( an( difference bet een a +?-(ear-old girl and an +>-(ear-old one insofar as ph(sical features and attributes are concerned, this Court held that an independent proof of the actual age of a rape victim is vital and essential so as to remove an iota of doubt that the victim is indeed under +> (ears of age as to fall under the =ualif(ing circumstances enumerated in 3.A. No. -?0/. 6. In 2eople v. 7rigildo,0/ aside from the failure of the prosecution to present the offended part()s birth certificate or other e=uall( acceptable official document concerning her age, the testimonies on record ere not clear as to her e:act age. &he victim declared that she as ++ (ears old hen she testified in court a (ear after the incident, hile her mother claimed that she as around +0 (ears old at the time of the commission of the crime. &he informations even alleged a different age. 9ence, this Court refused to appreciate the =ualif(ing circumstance of minorit( because of the uncertaint( regarding her age. <. In 2eople v. &ipa(, ?A the offended part( as alleged in the information to be under +? (ears of age. No @independent@ evidence as presented to prove it. &his Court recogni"ed that the minorit( of a victim ho ma( be belo the age of +A is =uite manifest and ma( be ta*en 8udicial notice of b( the court. 7ut hen the victim is bet een the crucial (ears of +0 and +-

here minorit( ma( seem to be dubitable due to oneQs ph(sical appearance, the prosecution should prove the fact of minorit( ith certaint(. &he lac* of ob8ection on the part of the accused concerning the victim)s age does not e:cuse the prosecution from discharging its burden. 0. In 2eople v. Cula,?+ the victim as alleged in the complaint to be +? (ears old hen the rape as committed, but no evidence at all as presented to prove her age. Be held that the failure of the accused to den( such allegation cannot ma*e up for the failure of the prosecution to prove ith certaint( the victim)s minorit(. 7ecause of the lacuna in the prosecution)s evidence, coupled ith the trial court)s failure to ma*e a categorical finding of minorit( of the victim, e declined to consider the =ualif(ing circumstance of minorit(. ?. In 2eople v. Heloso,?, the victim as alleged to be / (ears of age hen she as raped. Citing 2eople v. Hargas,?6 this Court refused to consider the testimonies of the victim and her father as sufficient proof of her age. -. In 2eople v. 2eca(o, ?< the victim simpl( stated during the beginning of her direct e:amination that she as +< (ears old and that she as born on +6 .anuar( +/>6. Be held that the victim)s casual testimon( as to her age is not enough, and that the lac* of denial on the part of the accused does not e:cuse the prosecution from proving her age through competent evidence such as a dul( certified certificate of live birth, baptismal certificate, or some other authentic document sho ing her age. >. In 2eople v. &undag,?0 the victim testified that she as +6 (ears of age hen she as raped, but she did not *no e:actl( hen she as born. 4nable to secure a cop( of her birth certificate, the prosecution moved that 8udicial notice be ta*en of the fact that she as belo +> (ears old at the time of the rape. Despite the admission b( the defense of such fact, this Court held that the age of the victim is not a matter of 8udicial notice, hether mandator( or discretionar(. 4nder Section 6, 3ule +,/ of the 3ules on Evidence, a hearing is re=uired before such fact can be ta*en 8udicial notice of b( courts. /. In 2eople v. #eraban,?? the victim)s testimon( as categorical in declaring that she as +0, but her mother)s testimon( regarding her age as not clear. Be thus declared that the prosecution failed to discharge the burden of proving minorit(. +A. In 2eople v. !iban?- and 2eople v. !landelar,?> the onl( evidence adduced to prove the minorit( of the victims as the victims) bare

testimon( that the( ere +A and +? (ears old, respectivel(. &his Court held that hile the declaration of a victim as to her age, being an e:ception to the hearsa( proscription, ould be admissible under the rule on pedigree, the =uestion on the relative eight that ma( be accorded to it is another matter. &he prosecution should present the victim)s birth certificate or, in lieu thereof, an( other documentar( evidence, li*e a baptismal certificate, school records, and documents of similar nature, or credible testimonial evidence that can help establish the age of the victim. Neither the obvious minorit( of the victim nor the absence an( contrar( assertion from the defense can e:onerate the prosecution from its burden. .udicial notice of the issue of age ithout the re=uisite hearing under Section 6 of 3ule +,/ of the 3ules on Evidence ould not be sufficient compliance ith the la . ++. In 2eople v. Alvarado,?/ the victim testified that she as +< (ears old at the time of the rape, and this as confirmed b( the accused, ho as victim)s father. &he victim)s mother, ho ever, testified as to her date of birth hich sho ed that she as +6 (ears of age at the time of the commission of the crime. Dor this doubt as to the victim)s age, the accused as held guilt( of simple rape onl( and meted the penalt( of reclusion perpetua, and not death penalt(. On the other hand, in the follo ing cases, e ruled that the age of the rape victim as sufficientl( established despite the failure of the prosecution to present the birth certificate of the offended part( to prove her age5 +. In 2eople v. 3afales, -A the testimon( of the victim and her mother that the former as onl( +A (ears old hen she as raped, hich as not denied b( the accused, as deemed sufficient to prove her age for the purpose of determining hether the accused could be held guilt( of statutor( rape, hich is carnal *no ledge of a oman belo +, (ears of age. ,. In 2eople v. De la Cru",-+ the testimon( of the mother alone that her t o daughters ere both +< (ears old at the time of the rape incidents as deemed sufficient because there as no reason to doubt the testimon( of the mother, ho had personal *no ledge of the ages of her children. 1oreover, said testimon( as never challenged b( the accused and stood unrebutted b( an( other evidence. 6. In 2eople v. 7ali-balita,-, the victim)s testimon( as to her age, hich as corroborated b( her half-sister, as deemed sufficient. Be noted that the victim testified in court four months after the rape, and hence it as not difficult for the trial court to ta*e 8udicial notice that she as under +> (ears of age.

<. In 2eople v. Helasco,-6 the minorit( of the victim as deemed established b( $a' the complainant herself, ho as held to be competent to testif( on her age, as it constituted famil( tradition; $b' the open admission of the accused that the victim as a +,-(ear-old minor; and $c' the categorical finding of the trial court that she as @a minor of a little over t elve (ears.@ 0. In 2eople v. 3emudo,-< the trial court appreciated the =ualif(ing circumstance of minorit( on the strength of $a' the offended part()s testimon( as to the date of her birth, hich sho ed that she as +6 (ears old at the time of the rape, and $b' the admission of said date of birth b( the accused ho as the victim)s brother. ?. In 2eople v. !!anita-0 the onl( evidence presented b( the prosecution to establish that the victim as belo - (ears old at the time of the alleged rape as the victim)s o n testimon(. Although hearsa( because she could not have personal *no ledge of the date of her birth but could onl( ac=uire *no ledge thereof from her parents or relatives, said testimon( as held admissible for being an assertion of famil( tradition regarding pedigree. 9er testimon( and the accused)s admission that she as 0 (ears old during the commission of the crime ere held sufficient to establish her age. -. In 2eople v. Agustin,-? the victim)s testimon( that she as +< (ears old at the time of the rape incidents, coupled ith the e:press admission of her age b( the accused ho as her father, sufficientl( proved her minorit(. >. In 2eople v. Esuela, the testimon( of the victim)s mother that the victim as +6 (ears of age at the time of the rape as held sufficient to establish minorit( for the reason that as a mother she as in the best position to *no hen she delivered her child. Also considered ere the victim)s o n testimon( regarding her age, as ell as the observation of the trial court that she could not have been more than +> (ears old hen she testified. In order to remove an( confusion that ma( be engendered b( the foregoing cases, e hereb( set the follo ing guidelines in appreciating age, either as an element of the crime or as a =ualif(ing circumstance. +. &he best evidence to prove the age of the offended part( is an original or certified true cop( of the certificate of live birth of such part(. ,. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records hich sho the date of birth of the victim ould suffice to prove age.
--

6. If the certificate of live birth or authentic document is sho n to have been lost or destro(ed or other ise unavailable, the testimon(, if clear and credible, of the victim)s mother or a member of the famil( either b( affinit( or consanguinit( ho is =ualified to testif( on matters respecting pedigree such as the e:act age or date of birth of the offended part( pursuant to Section <A, 3ule +6A of the 3ules on Evidence shall be sufficient under the follo ing circumstances5 a. If the victim is alleged to be belo 6 (ears of age and hat is sought to be proved is that she is less than - (ears old; b. If the victim is alleged to be belo - (ears of age and hat is sought to be proved is that she is less than +, (ears old; c. If the victim is alleged to be belo +, (ears of age and hat is sought to be proved is that she is less than +> (ears old. <. In the absence of a certificate of live birth, authentic document, or the testimon( of the victim)s mother or relatives concerning the victim)s age, the complainant)s testimon( ill suffice provided that it is e:pressl( and clearl( admitted b( the accused.-> 0. It is the prosecution that has the burden of proving the age of the offended part(. &he failure of the accused to ob8ect to the testimonial evidence regarding age shall not be ta*en against him. &he trial court should al a(s ma*e a categorical finding as to the age of the victim. In the present case, no birth certificate or an( similar authentic document, such as a baptismal certificate of !I%E&&E, as presented to prove her age. In imposing the death penalt(, the trial court ratiocinated in this ise5 In the instant case, the victim, !i"ette Arabelle #on"ales, as a 6-(ear-old minor girl as alleged in the information and the defense did not contest her age and as a matter of fact as =uestioning her =ualification to testif( because of her tender age hen she testified t o $,' (ears later in Court. &he victim)s 1edico-!egal Certificate dateMdN .anuar( 6, +//0 L established the fact that at the time of the commission of the rape on .anuar( 6, +//0, the child as onl( 6 (ears old. -/ It thus appears that the trial court)s finding that !I%E&&E as 6 (ears old hen she as raped as based on the 1edico-!egal 3eport prepared b( Dr. Cuiro", as ell as

on the fact that the defense did not contest her age and even =uestioned her =ualification to testif( because of her tender age. 9o ever, the 1edico-!egal 3eport relied upon b( the trial court does not in an( a( prove the age of !I%E&&E, for there is nothing therein hich even mentions her age. Onl( testimonial evidence as presented to establish !I%E&&E)s age. 9er mother, .ac=ueline, testified on +- October +//0 as follo s5 C. No , on .anuar( 6, +//0 at about /56A in the morning, do (ou still recall here (ou ereP A. Ies, sir. C. Bhere ere (ou at that particular date and timeP A. I as fetching ater from an artesian ell beside the house of m( neighbor, sir. L C. Bhere as this daughter of (ours then hen (ou ere fetching aterP A. 1( daughter as discharging her bo el ho as then at the bac* of the house of our neighbor, sir. 9o old is (our daughter !i"ette Arabelle #on"alesP A. &hree (ears old, sir. C. At the time that she as discharging her bo el, ho old M asN sheP A. &hree (ears old, sir. She is four (ears old no . C. Bhen as her last birthda(P A. April +/, +//0, sir.>A !i*e ise, !I%E&&E testified on ,A November +//?, or almost t o (ears after the incident, that she as 0 (ears old.>+ 9o ever, hen the defense counsel as*ed her

ho old she as on 6 .anuar( +//0, or at the time of the rape, she replied that she as 0 (ears old. 4pon further =uestion as to the date she as born, she could not ans er.>, Dor 234NA to be convicted of rape in its =ualified form and meted the supreme penalt( of death, it must be established ith certaint( that !I%E&&E as belo (ears old at the time of the commission of the crime. It must be stressed that the severit( of the death penalt(, especiall( its irreversible and final nature once carried out, ma*es the decision-ma*ing process in capital offenses aptl( sub8ect to the most e:acting rules of procedure and evidence.>6 In vie of the uncertaint( of !I%E&&E)s e:act age, corroborative evidence such as her birth certificate, baptismal certificate or an( other authentic document should be introduced in evidence>< in order that the =ualif(ing circumstance of @belo seven $-' (ears old@ is appreciated against the appellant. &he lac* of ob8ection on the part of the defense as to her age did not e:cuse the prosecution from discharging its burden. &hat the defense invo*ed !I%E&&E)s tender age for purposes of =uestioning her competenc( to testif( is not necessaril( an admission that she as belo - (ears of age hen 234NA raped her on 6 .anuar( +//0. Such being the case, 234NA cannot be convicted of =ualified rape, and hence the death penalt( cannot be imposed on him. 9o ever, conformabl( ith no. 6$b' of the foregoing guidelines, the testimon( of !I%E&&E)s mother that she as 6 (ears old at the time of the commission of the crime is sufficient for purposes of holding 234NA liable for statutor( rape, or rape of a girl belo +, (ears of age. 4nder the second paragraph of Article 660, as amended b( 3.A. No. -?0/, in relation to no. 6 of the first paragraph thereof, having carnal *no ledge of a oman under +, (ears of age is punishable b( reclusion perpetua. &hus, the penalt( to be imposed on 234NA should be reclusion perpetua, and not death penalt(. As regards the civil liabilit( of 234NA, the indemnit( in the amount of 20A,AAA a arded b( the trial court is not sufficient. In accordance ith recent 8urisprudence, !I%E&&E should also be a arded moral damages in the amount of 20A,AAA ithout need of pleading or proof because the mental, ph(sical and ps(chological trauma suffered b( her is too obvious.>0 B9E3EDO3E, the decision of the 3egional &rial Court, 7ranch +, 7alanga, 7ataan, in Criminal Case No. ?A<< is hereb( ADDI31ED ith the modification that accused 1anuel 2runa ( 3amire" or Erman 2runa ( 3amire" is held guilt( be(ond reasonable doubt of statutor( rape, and not =ualified rape, and is sentenced to suffer reclusion perpetua and to pa( the victim !i"ette Arabelle #on"ales the sum of 20A,AAA as moral damages in addition to the indemnit( of 20A,AAA.

Costs de oficio. SO O3DE3ED.

2. G.R. No. 107%34 A&'&(t 21, 1))% PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAUL *A+INTO, INTONG -./ *ELSO FERNAN"O ANO, accusedappellants. FELI*IANO, J.: Appellants 3aul Cabinto( and Celso Dernando, together ith one Dernando #arcia ho is still at large, ere charged ith the crime of robber( ith homicide committed on the evening of ,< 1a( +//+ against the person of Bilfredo Dia", ho as then driving a 0-. &a:i along #en. !una Street, #uitnangba(an I, San 1ateo, 3i"al. 7oth appellants pleaded not guilt( to the charge during the arraignment, and the case proceeded to trial. &he evidence for the prosecution discloses that on ,< 1a( +//+ at around ++50A in the evening, 2K2fc. 3ichard 2. Salvador, Chief of the Investigation Section of the San 1ateo 2olice, received information that robber( ith homicide had been committed in #eneral !una Street in front of the Catholic Cemeter( in 7aranga( #uitnangba(an, San 1ateo, 3i"al. 9e as also informed that the victim as one Bilfredo Dia", ata:i driver, ho as brought to the nearest hospital but pronounced dead upon arrival. 2fc. Salvador and 2fc. ARo conducted an ocular inspection at the scene of the crime and sa the 0-. ta:i l(ing on its right side. 7loodstains ere scattered inside the 0-.

ta:i and the rear indshield of the ta:i as smashed. &he( recovered a *nife, presumabl( used during the commission of the crime, and a pair of slippers inside the ta:i. &he *nife recovered is a *ind of *nife commonl( used b( butchers. &he( also found a trail of blood from the scene of the crime up to 3esurrection St. going to ards Daang-7a*al; hence, the( surmised that one of the suspects had been in8ured during the incident. 1 Accordingl(, 2at. CariRo together ith 2at. #uillermo ere directed to go to different hospitals on the premise that one of the suspects might have been ounded. &his investigative effort carried out on the morning of ,0 1a( +//+ (ielded no results.2 1ean hile, on the same morning of ,? 1a( +//+, 2K2fc. 3ichard Salvador ent to the San 1ateo, 3i"alslaughter house located near the public mar*et in 7rg(. #uitnangba(an to in=uire about the *nife found inside the ta:i. 2fc. Salvador =uestioned the butchers therein and sho ed them the *nife. &hree $6' butchers identified the *nife as one used fre=uentl( b( a person named @Amang@ or Celso Dernando, ho also or*ed as a butcher in the same slaughter house. 2fc. Salvador proceeded then to the residence of Celso Dernando or alias @Amang@ in &ubo NABASA, 7rg(. #uitnangba(an, and as*ed about @AmangQs@ hereabouts. &he neighbors and relatives informed him that @Amang@ as at or* in the slaughter house. 2fc. Salvador returned to the station and discussed the evidence the police had gathered. In the morning of ,? 1a( +//+, 2fc. Salvador as informed b( police informer that the suspects ere in a construction site in Dapitan, Sampaloc, 1anila. 9e immediatel( formed a police team to trac* do n and if possible, to arrest the accused. &he team proceeded to the 1anila police station hich had 8urisdiction over the area and coordinated ith them. &he police ere able to arrest accusedappellants Cabinto( and Dernando in Dapitan St., Sampaloc, 1anila and brought them to the San 1ateo 2olice Station. 3 2K2fc. 3ichard Salvador testified in court that accused-appellants ere informed of their constitutional rightsin the presence of counsel, Att(. 7en8amin 2o"on of the 2ublic Attorne(Qs Office $2AO', on ,? 1a( +//+. On the same da(, each appellant e:ecuted a aiver of the right to counsel signed in the presence of Att(. 2o"on. &hereafter, appellant 3aul Cabinto( e:ecuted a s orn statement admitting his participation in the crime and implicating Celso Dernando and one Dernando #arcia, Bhen this ritten confession as e:ecuted, Att(. 2o"on as present. Bhen Celso Dernando made his confession he as not represented b( a la (er, but Att(. 2o"on as still there because he as curious about the case. 4 7oth 2K2fc. Salvador and 2at. CariRo testified at the trial that at the time of the arrest, Cabinto( had a ound on the left thigh. Bhen as*ed about his thigh ound, Cabinto( verball( admitted that he sustained this ound during the incident. % Even before the t o $,' appellants ere formall( investigated, the( verball( admitted their participation in the crime. Celso Dernando ac*no ledged o nership of the *nife recovered at the scene of the crime. &hese admissions ere, ho ever, made before appellants ere informed of their rights. 0

On the other hand, appellants den( that the( had committed the crime and allege that the e:tra8udicial confessions ere not voluntaril( nor validl( e:ecuted. Celso Dernando testified that on ,< 1a( +//+, he reported at the slaughter house at around +A56A in the evening. 9e left the place at ?5AA a. m. the ne:t da( and proceeded to the public mar*et. &here as no unto ard incident on that da( of ,< 1a( +//+. &he follo ing da(, or on ,0 1a(, he as also at the slaughter house from +A5AA in the evening until morning of the ne:t da(. &hereafter, at around nine oQcloc* in the same morning $,? 1a(', he ent to Dapitan Street in Sampaloc to visit 3aul Cabinto( and there the( ere both arrested b( 2at. CariRo and compan(. &he( ere then brought to the San 1ateo 2olice Station. !ater that same da(, and ithout the assistance of a la (er, Celso Dernando signed a ritten confession presented to him b( the police. 9e had been able to read onl( the beginning of the confession hen the police insisted that he sign it. On cross-e:amination, Celso Dernando testified that he did not *no an(thing about the *nife recovered b( the police. 9e had reached #rade H onl( at elementar( school and could read a little. &he police as*ed him if he anted to be assisted b( a la (er onl( on ,- 1a( +//+, the same da( the( ere brought before Att(. 2o"on of the 2AO. 7 3aul Cabinto(, for his part, testified that on ,< 1a( +//+, he as in the construction site of Dapitan, Sampaloc, 1anila, here he as or*ing. &here ere no unto ard incidents that happened on the ,<th or on the ,0th of 1a(, +//+. On ,?th of 1a(, Celso Dernando visited him in the construction site and in the afternoon hile the( ere sleeping, the policemen came and arrested them. 4pon arrival at the San 1ateo 2olice Station, the( ere put in 8ail and his co-inmates forced him to admit committing the offense ith hich he as charged. Bhen he as brought outside the cell, he as also forced b( the police to admit he had committed the crime. Cabinto( claimed that the policemen mauled him, although he e:hibited no signs of in8uries upon his bod(. 9e as not assisted b( counsel hen he signed the e:tra8udicial confession. &he( ere as*ed to sign the aiver of the right to counsel in the afternoon of ,? 1a( +//+ and then after signing it, the( ere brought to the office of Att(. 2o"on, here the latter signed the document. Att(. 2o"on e:plained the document to them and as*ed them if the( still needed a counsel although the( $accused-appellants' @cannot do an(thing an(more@ because the( had alread( signed the document. Cabinto( denied that he had a ound on his left leg at the time of the arrest. 9e as reading and signing the confession at the same time, and because he as ver( confused at the time, he could not full( understand the contents of the document. 8 &he court a quo rendered a decision ) finding both accused 3aul Cabinto( and Celso Dernando guilt( of the crime of robber( ith homicide. Accused-appellants 3aul Cabinto( and Celso Dernando are no before this Court, asserting that the trial court had erred in giving credence to their e:tra8udicial confessions and, accordingl(, in finding them guilt( be(ond reasonable doubt of the special comple: crime of robber( ith homicide.

&he record of this case reveals that there ere no e(e itnesses to the crime imputed to Cabinto( and Dernando. &he Court also notes that the trial court, in its =uestioned 8udgment of conviction, too* into account the e:tra8udicial confessions of accusedappellants5 As no e(e itness as presented b( the prosecution but there as a M sicN ritten confessionMsN b( both accused 3aul Cabinto( and Celso Dernando, the admissibilit( of such confessionMsN determines MsicN the faith MsicN of both accused. . . . &his Court never doubted the voluntariness, truthfulness and e:actness of the ritten confessions of both accused 3aul Cabinto( and Celso Dernando. &he claimMsN of both accused hen the( testified, that the( ere threatened or forced to sign the confessionMsN are the usual e:cuses of an MsicN accused ho recanted their confessions after reali"ing the gravit( of their offense and the penalt( that might be imposed on the crime the( have committed. &he main issue in this appeal, therefore, is the admissibilit( of the t o confessions e:ecuted b( appellants during their custodial investigation b( the San 1ateo 2olice. &he prosecution claims that prior to the ta*ing of the e:tra8udicial confessions, both appellants signed ritten aivers of their constitutional rights to remain silent and to be assisted b( counsel, in the presence of Att(. 2o"on of the 2AO. After carefull( e:amining the record of this case, the Court finds that these aivers ere signed b( Att(. 2o"on on the ,-th of 1a(, +//+ as indicated b( the date ritten b( Att(. 2o"on himself beside his signature. 10 &here is no dispute, on the other hand, that the confessions of appellants ere e:ecuted in the evening of the ,?th of 1a(, +//+. 11 &hese facts tend to confirm the testimonies of accusedappellants that the( ere brought before Att(. 2o"on after the( had alread( signed the e:tra8udicial confessions, and belie the assertion of the prosecution that the aivers ere signed ahead of the confessions on the same evening of the ,?th of 1a(, +//+. &he purported aivers, it should be noted, are set out in the same documents setting out the respective confessions of the t o $,' appellants. Drom the foregoing, one is led to the inevitable conclusion that at the time the =uestioned confessions ere e:ecuted, there ere no prior valid aivers of their constitutional rights b( Cabinto( and Dernando. &his defect alone is sufficient to render the confessions inadmissible in evidence against accused-appellants. 1oreover, the confessions do not indicate that both accused ere represented b( counsel during the investigation. &he settled rule is that an uncounselled e:tra8udicial confession ithout a valid aiver of the right to counsel S i.e., in riting and in the presence of counsel S is inadmissible in evidence. 12

Be are a are that the trial court noted that the confessions are interloc*ing and replete ith minor details indicating that the( ere voluntaril( given. &his Court, ho ever, has ruled before in a number of cases that even if the confession of the accused ere @gospel truth,@ if it as made ithout the assistance of counsel and ithout a valid aiver of such assistance, the confession is inadmissible in evidence regardless of the absence of coercion or even if it had been voluntaril( given. 13 &he =uestion ma( be raised hether the aivers, though in fact e:ecuted on ,? 1a( +//+ b( Cabinto( and Dernando, could be deemed to have been subse=uentl( validated b( the signature of Att(. 2o"on of the 2AO the ne:t da( ,- 1a( +//+. Be must ans er this =uestion in the negative. &here is nothing in the record to indicate that Cabinto( and Dernando intended to validate retroactivel( their uncounselled aiver and confession hen the( ere brought into the office of Att(. 2o"on of the 2AO at the time Att(. 2o"on signed the confession document. &o the contrar(, the t o $,' appellants here e:plicitl( re8ected their e:tra8udicial confessions hen the( testified before the trial court; such re8ection ma*es it ver( difficult to assume an( intent to o n and adopt retroactivel( their e:tra8udicial confessions. An(, suggestion that an uncounselled confession and aiver ere subse=uentl( validated b( the later signature of counsel for the accused, must be ta*en ith e:treme care lest the constitutional right involved be eroded into an empt( formalit(. Be conclude, not ithout reluctance, that the e:tra8udicial confessions of Cabinto( and Dernando must be regarded as inadmissible in evidence. It follo s that the conviction of appellants b( the trial court must stand or fall on the basis of other evidence of record. &he Solicitor #eneral avers that there e:ists other evidence of record to arrant the affirmance of appellantsQ convictions5 Dirstl(, the credible testimonies of the arresting policeman in open court clearl( reflect that5 a' the o nership of the *nife found at the scene of the crime inside the 0-. ta:i of thevictim as traced to Celso Dernando M&SN, >K,-K/+, pp. >-+,N. &hree butchers ho ere co- or*ers of Dernando at the San 1ateo slaughterhouse identified the *nife as that o ned and used b( him at said slaughterhouse. b' 2fc. Edilberto CariRo testified that at the time of the arrest of appellants, he personall( noted the e:istence of a ound on the leg of Cabinto(, confirming the policemenQs earlier suspicion in the course of their

official investigation that one of the robbers sustained a ound at the hands of the victim. 2fc. CariRo testified that Cabinto( verball( admitted that he sustained the said ound hen the victim hit him ith a scre driver in the course of the robber(Khold-up M&SN, >K?K/+, pp. >-+AN. c' 2fc. CariRo testified that both Dernando and Cabinto(, at the time of their arrest, verball( admitted to the arresting policemen their participation in the crime, and that it as Cabinto( ho stabbed the victim MIbid.N. ::: ::: ::: In this case, the credible testimonies of the public officers aforecited confirm the e:istence of the t o incriminating circumstances, i.e., the ound on the leg of appellant Cabinto( and the o nership b( appellant Dernande" of the *nife recovered from the crime scene. &hese, ta*en together, point unerringl( to appellantQs guilt M2eople vs. Agan, +>+ SC3A >0?N. 14 &he Court is not persuaded. Contrar( to the claim of the Solicitor #eneral, the *nife found at the scene of the crime as not ade=uatel( proved to be o ned b( Celso Dernando. &he testimon( of 2fc. Salvador that in the course of his investigation, three $6' butchers had identified the sub8ect *nife as fre=uentl( used b( appellant Dernando, is not sufficient to prove such o nership, such evidence being merel( hearsa( in nature. 1% Clearl(, 2fc. Salvador had no personal *no ledge of the o nership or use b( appellant Dernando of the sub8ect *nife. Not one of Celso DernandoQs three $6' fello butchers ho had allegedl( identified the said *nife as belonging to Dernando, testified in court. 9ence, Dernando as deprive of his right to confront his fello butchers and to cross-e:amine them for their truthfulness. &he hearsa( character of evidence commonl( affects the intrinsic eight and credibilit( of such evidence. 10 &he verbal admissions allegedl( made b( both appellants of their participation in the crime, at the time of their arrest and even before their formal investigation, are inadmissible, both as violative of their constitutional rights and as hearsa( evidence. &hese oral admissions, assuming the( ere in fact made, constitute uncounselled e:tra8udicial confessions ithin the meaning of Article III, Section +, of the Constitution.

&he onl( circumstance left, therefore, against the appellants is the ound that 3aul Cabinto( allegedl( had on his left leg at the time of his arrest, as testified to b( 2K2fc. Salvador and 2at. CariRo and as reflected in the 8oint affidavit of the arresting policemen. &his circumstance, ho ever, does not measure up to proof be(ond reasonable doubt. In a long line of cases, this Court ruled that circumstantial evidence is sufficient for conviction if5 $+' there is more than one circumstance; $,' the facts from hich the inferences are derived are proven; and $6' the combination of all circumstances is such as to produce a conviction be(ond reasonable doubt. 17 In the case at bar, these re=uisites are not met. Dinall(, the trial court in its appealed decision 18 noted that after the commission of the crime both accused fled and left their usual residences. Appellants, ho ever, e:plained in open court that, at the time of their arrest, 3aul Cabinto( as a sta(-in or*er in the construction site in Dapitan Street and that Celso Dernando as there because the latter as visiting the former at the time of their arrest. &hus, appellants cannot be regarded as conclusivel( sho n to have fled from their residences and thereb( to have indicated their guilt. It is, of course, possible that appellants ma( in fact have committed the robber( ith hich the( ere charged. It is also unfortunate that the or* done b( police officers and the prosecution service leading to the arrest, trial and conviction of accusedappellants is rendered inutile for failure to observe the constitutional rights of persons under custodial investigation. &he Court, ho ever, has no choice on this matter; it is, 8ust as police officers and public prosecutors are, bound b( the provisions of the constitution. 1ore careful observance of such provisions b( policemen and prosecutors is essential if astage of e:ecutive and 8udicial resources is to be avoided. B9E3EDO3E, in vie of the foregoing, the decision of the 3egional &rial Court, 7ranch --, San 1ateo, 3i"al, in Criminal Case No. +<-0 is hereb( 3EHE3SED and SE& ASIDE and appellants are hereb( ACC4I&&ED of the crime charged, the evidence la full( before the trial court not being sufficient to establish their guilt be(ond reasonable doubt. No costs. SO O3DE3ED.

3. 1G.R. No. 13)%31. $-.&-r 31, 20022

PEOPLE

OF THE PHILIPPINES, plaintiff-appellee, vs. RE,NAL"O +AGANOT -34-( Pugot -.5.-. RE,NAL"O FRIOLO, -./ PA+LITO *A6ETE, accused-appellants. "E*ISION

+ELLOSILLO, J.7 &his is an appeal from the Decision M+N of the 3egional &rial Court of Cebu Cit(, Crim. Case No. C74-6/A<0, finding 3e(naldo 7agano alias Pugot and 2ablito CaRete guilt( of murder. 3e(naldo 7agano alias Pugot a.*.a. 3e(naldo Driolo and 2ablito CaRete ere charged ith murder =ualified b( conspirac( and aggravated b( treacher( and evident premeditation in an Information dated 6 .ul( +//0.M,N 4pon arraignment, 3e(naldo 7agano and 2ablito CaRete pleaded @not guilt(.@ On +0 October +//- the trial court convicted both accused of murder for the *illing of .eremias 1ontecino and sentenced 3e(naldo 7agano alias Pugot, a recidivist, to reclusion perpetua, and 2ablito CaRete to seventeen $+-' (ears, four $<' months and one $+' da( of reclusion temporal to reclusion perpetua. &he( ere further ordered solidaril( to pa( the heirs of .erimias 1ontecino 20A,AAA.AA as death compensation and 2<,??A.AA for burial e:penses. &he court a quo re8ected the defense of alibi and denial raised b( accused 7agano and CaRete on the basis of the follo ing findings5 On ,6 1a( +//0, about 65AA oQcloc* in the morning, .eremias 1ontecino and his ife 1erlinda 1ontecino ere sleeping in their home in Sitio Bang(u, Alas*a, 7aranga( 1ambaling, Cebu Cit(, hen the( ere a a*ened b( someone repeatedl( calling .eremiasQ name. &he call came from outside. .eremias ent to the indo to see ho it as and thereafter left their room to go outside. 1erlindaremained in their room, but peering through the indo she sa 2ablito Canete suddenl( embrace .eremias as the latter as opening the gate. &hereupon, 3e(naldo 7agano ith ice pic* in hand stabbed .eremias on the chest. .eremias struggled to free himself from 2ablito CaReteQs clasp and ran, but 3e(naldo 7agano gave chase. 4pon hearing 1erlindaQsscreams for helpM6N 3e(naldo ithdre and fled ith 2ablito Canete follo ing him. 1erlinda rushed .eremias to the Cebu Cit( 1edical Center but he succumbed to severe hemorrhage secondar( to the stab ound on the left side of his chest. 9e died upon arrival at the hospital. Accused-appellants 7agano and CaRete no argue that their conviction as erroneous as the prosecution failed to prove their guilt be(ond reasonable doubt,

grounded as it as on the testimon( of 1erlinda 1ontecino hich the( claim as unreliable and incredible. &he( =uestion her claim to have vividl( seen the stabbing incident hen she admitted that the attac* occurred at 65AA o)cloc* in the morning hen it as still dar*. Assuming that the( ere indeed guilt( of the *illing of the victim, accused-appellants argue that the( should onl( be convicted of homicide as the *illing as not attended b( treacher( that ould =ualif( the offense to murder. &he arguments of the defense are bereft of merit. Bithout falter or vacillation, 1erlinda 1ontecino narrated in open court ho accused-appellants attac*ed her husband; thus e have no reason to disbelieve her. Indeed, she admitted that at 65AA oQcloc* in the morning dar*ness enshrouded the vicinit(; nonetheless their front (ard as ell-lit b( a mercur( bulb on a lamp post across their house hich ade=uatel( illumined the place that enabled her to clearl( identif( the assailants,M<N particularl( so that the( ere not strangers to 1erlinda as the( ere friends of her husband ho fre=uented their home. M0N &he( ere therefore easil( recogni"able to her even in shado s. As the ido of the victim and lone itness to the crime, 1erlinda 1ontecino ould not impute the *illing of her husband on accusedappellants if she as not certain that the( ere his tormentors. She had no reason to. A itnessQ relationship to a victim of a crime ould even ma*e his or her testimon( more credible as it ould be unnatural for a relative ho is interested in establishing the crime to accuse somebod( other than the real culprit. M?N Contrar( to the claim of accused-appellants, treacher( attended the *illing of the victim. 9o ever, it is not because the attac* as made at an unhol( hour, or the victim as roused from his sleep, or that accused-appellants ere *no n to the victim,M-N that e affirm the lo er courtQs finding of treacher(, but rather for the suddenness of the attac* and the fact that the victim as unarmed ith no opportunit( to defend himself from the aggression. Section +?, Art. +<, of The Revised Penal Code provides that there is treacher( hen the offender commits an( of the crimes against person, emplo(ing means, methods, or forms in the e:ecution thereof hich tend directl( and speciall( to insure its e:ecution, ithout ris* to himself arising from the defense hich the offended part( might ma*e. &he elements of treacher( are5 $a' the emplo(ment of means of e:ecution that gives the person attac*ed no opportunit( to defend himself or retaliate; and, $b' the deliberate and conscious adoption of the means of e:ecution. &he la therefore stresses the manner of performance or accomplishment of the crime than an( other factor. Circumstances of time and relationship ill not be of relative importance unless the( aided or made eas( the e:ecution of the crime and thus denied the victim the chance to defend himself. &he fact that the attac* as made at da n and the victim ho as the friend of the malefactors had 8ust a a*ened ma( have facilitated the commission of the crime although the crime nonetheless ma( have been committed even ithout those circumstances. &reacher( here as e:tant from the act of accused-

appellant 2ablito CaRete in loc*ing the victim in a sudden embrace and giving his co-accused-appellant 3e(naldo 7agano full opportunit( to stab their victim on his left chest. &he suddenness and the method emplo(ed b( CaRete completel( deprived.eremias of an( chance to defend himself. As observed b( Dr. .esus Cerna, 2olice 1edico-!egal Officer ho conducted the autops(M>N on the victim, the latter did not sustain an( defensive ound, hich meant that it as possible that he as not able to defend himself because somebod( as holding his handsM/N or that the attac* as so sudden. Dor this reason, e sustain the finding of treacher( b( the trial court. Drom the records it is clear that treacher( attended the commission of the crime, but this alone should be appreciated against accused-appellants. &he aggravating circumstance of recidivism cannot be held against 7alano as it as not alleged in the Information. M+AN 7e that as it ma(, treacher( can onl( be considered as a =ualif(ing circumstance that ould affect the nature of the crime and not as a generic aggravating circumstance that ould raise the penalt( to death. Conspirac( is attendant in the commission of the crime. Dor conspirac( to e:ist, it is sufficient that at the time of the commission of the offense the accused had the same purpose and ere united in its e:ecution. M++N 2roof of an actual planning of the perpetuation of the crime is not a condition precedent. Drom the mode and manner in hich the offense as perpetrated, and as can be inferred from their acts, it is evident that 7agano and CaRete ere one in their intention to *ill .eremias 1ontecino. 9ence, in accordance ith the principle that in conspirac( the act of one is the act of all, the fact that it as 7agano ho delivered the fatal blo on 1ontecino and CaReteQs participation as limited to a mere embrace is immaterial. Conspirac( besto s upon them e=ual liabilit(; hence, the( shall suffer the same fate for their acts. Article ,<> of The Revised Penal Code prescribes the penalt( of reclusion perpetua to death for the crime of murder. Absent an( mitigating or aggravating circumstance in the commission of the crime, the lo er penalt( of reclusion perpetua shall be imposed. 8HEREFORE, the Decision of the court a quo of +0 October +//- in Crim. Case No. C74-6/A<0, finding accused-appellants 3e(naldo 7agano alias Pugot a.*.a. 3e(naldoDriolo and 2ablito CaRete guilt( of murder is ADDI31ED ith the 1ODICA&ION that both accused-appellants shall suffer the penalt( of reclusion perpetua. &he( are also ordered, in addition to 20A,AAA.AA as indemnit( for death and 2<,??A.AA for burial e:penses a arded b( the trial court, to pa( 8ointl( and severall( the heirs of .eremias 1ontecino 20A,AAA.AA more for moral damages. Costs against both accused-appellants. SO OR"ERE".

4. G.R. No. 140702

Se9te:ber 10, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. PO3 ROGER RO;AS , *A+ASAG, appellant. #ITUG, J.7 &he 3egional &rial Court of Cue"on Cit(, 7ranch +A6, in Criminal Case No. C-/??0,<,, found appellant 3oger 3o:as ( Cabasag guilt( be(ond reasonable doubt of the crime of murder and imposed on him the penalt( of death for the *illing of !orna 1aceda 2uno. &he information under hich he as arraigned, tried and convicted, read5 @&hat on or about the >th da( of 1arch, +//?, in Cue"on Cit(, 2hilippines, the above-named accused did then and there illfull(, unla full( and feloniousl( ith intent to *ill, =ualified b( treacher( and b( ta*ing advantage of superior strength, attac*, assault and emplo( personal violence upon the person of !O3NA 24NO nee 1ACEDA, b( then and there shooting her ith the use of a hand gun, hitting her on her left forehead, thereb( inflicting upon her serious and grave ounds hich ere the direct and immediate cause of her untimel( death, to the damage and pre8udice of the heirs of said !orna 2uno nee 1aceda.@ + Dollo ing appellant)s plea of @not guilt(@ to the crime charged, the prosecution and the defense presented their respective versions of the case. .oel(n 7. 1aceda, a securit( guard at the Dirst 4nit( &e:tile 1ills in Novaliches, Cue"on Cit(, sta(ed ith her sister, !orna 1aceda 2uno, in San 3o=ue, 7agong 2ag-asa, Cue"on Cit(, in a one-store( structure ith the front door leading to the *itchen and ith t o steps leading to the sala. .oel(n shared the house ith !orna and her husband, the couple)s five-(ear-old son, .onas, and a niece. !orna, li*e .oel(n, as a securit( guard at the Citiban* in 1a*ati Cit(. Bhen on dut(, the sisters ere issued caliber .6> service firearms that the( ere not, ho ever, allo ed to bring home and, instead, had to entrust each time to a reliever. Although the sisters ere trained to handle firearms, the(, upon the other hand, onl( had minimal instruction on self-defense. 7et een nine o)cloc* and nine-thirt( on the evening of > 1arch +//?, .oel(n as ashing clothes in front of the door of their house, lighted b( a fluorescent lamp, hen she sa !orna coming home from or* in her t(pe 7 uniform and carr(ing a bro n bag. Drom a distance of barel( four to five meters, .oel(n could see !orna running a a( from appellant. Appellant, apparentl( drun*, had no clothes from aist up, as earing shorts and carr(ing a gun. Bhen .oel(n as*ed the pale and trembling !orna h( she as running, the latter replied, @!(n, !(n, enter,close the door, a man $is' follo ing meU@ $!(n, !(n, paso*, sarado ang pinto, ma( sumusunod sa a*in lala*i'. .oel(n promptl( closed the door but appellant as able to *ic* it open. .oel(n, her forehead hit b( the door, as pushed aside. Appellant

grabbed !orna)s bag, opened it and, apparentl( not finding hat he could have been loo*ing for, hurled the bag to the floor $binalibag po ni(a ang bag sa sahig'. Appellant as*ed !orna, @Bh( did (ou runP Bh( did (ou not mind meP@ $7a*it *a tuma*boP 7a*it Vdi mo V*o pinansinP'. !orna ans ered, @I did not hear (ou.@ .oel(n tried to hold the hand of appellant but he pushed her hand a a(. Appellant then shot !orna ith a caliber .<0 gun ith its mu""le 8ust t o feet a a( from !orna)s face. !orna fell on the floor ith half of her bod( outside the door and the other half inside the house. .oel(n held her sister. !orna as still alive. A neighbor responded to .oel(n)s cries for help. !orna as brought to the hospital. At si: o)cloc* the follo ing morning of / 1arch +//?, .oel(n ent to Camp Jaringal to report the incident. !ater, .oel(n, accompanied b( 3and( ho too* do n her statement at the camp, ent to the East Avenue 9ospital here !orna had been ta*en. 1elinda &aliRo as fetching ater from a nearb( artesian ell $poso' on the evening of > 1arch +//?. She proceeded to the house of !orna from here a gunshot rang out. She sa the bloodied !orna on the floor 8ust as appellant, holding a gun, as about to run out of the house $pata*bo'. 1elinda shouted for help. Nobod( dared to immediatel( respond because appellant as still at the corner of an alle(, a short distance a a(, pointing and s a(ing a gun. Appellant)s ife and a certain .un ere seen tr(ing to pacif( him. .un tapped appellant)s hand that caused the gun to fall. Appellant)s ife pic*ed up the gun and hid it behind her. Appellant)s ife and .un then pulled appellant a a(. !orna)s husband, .oseph 2uno, a securit( guard at the 7road a( Centrum in Cue"on Cit(, learned of the incident at five o)cloc* on the morning of / 1arch +//? hen he returned home from or*. &here ere bloodstains around the house. Appellant, ho lived near the bas*etball court around a hundred meters a a(, as .oseph)s *umpare. .oseph had *no n appellant, ho, along ith the latter)s ife, usuall( managed the @7SDO@ seminar that .oseph attended. .oseph 2uno surrendered a caliber .<0 empt( shell hich he had found at his house to 2O+ Dlorencio Escobido. &he Chief of the 2N2 Criminal Investigation Division in Camp Jaringal for arded the empt( shell to the Director of the 2N2 Crime !aborator( Service in Camp Crame. In Direarms Identification 3eport No. DAID-+<6-/?, 2KInspector 3e(naldo Dimalanta de #u"man stated that the empt( caliber .<0 shell mar*ed @.A2@ @ as fired from a caliber .<0 pistol having si: $?' lands and si: $?' grooves t isted to the left.@, De #u"man could onl( conclude that the empt( shell as fired from a .<0 caliber pistol. &he pistol as not recovered. !orna, onl( ,- (ears old, died three da(s after she as shot. Dr. 1a. Cristina 7. Dre(ra, 2olice Senior Inspector and 1edico-!egal Officer at the 2N2 Central Crime !aborator( of the Northern 2olice District Command in Jamuning, Cue"on Cit(, confirmed that !orna had suffered from a gunshot ound at the left temporal region ith tattooing evident and a contusion on the left peri-orbital region and multiple abrasions on the left arm. She opined that the tattooing around the ound ould

attest to the fact that the distance bet een the mu""le of the gun and the @point of contact@ could have barel( been about t o feet. Appellant, a member of the Special Beapons and &actics $SBA&' team of the 2hilippine National 2olice, did not den( his presence in the vicinit( of the crime scene but he presented a different version of the incident. On the late afternoon of > 1arch +//?, about si: o)cloc*, he as pla(ing bas*etball in Barangay 7agong 2agasa, San 3o=ue II, up until an hour later. Shortl( thereafter, he had dinner. 9e and his ife then visited their comadre, Iolanda Daraman, hose husband, a seaman, as e:pected to return home. At Iolanda)s house, that evening, the couple as told that Iolanda)s husband had not (et arrived. On their a( home, appellant noticed a suspicious-loo*ing person ho as high on drugs. &he bulge on the man)s aist appeared to him to be a tuc*ed gun. Appellant approached the man, ho as not from the place, to verif( and to conduct a bod( search but 8ust as he dre near, the man ran a a(. Appellant chased the man and as he did so, he passed b( t o baranga( tanods, Inocencio Datu and 3ud( !imbaga, ho ere as*ed b( his ife to e:tend help b( meeting the man at the other side of the area $salubungin nin(o sa *abila'. Appellant sa the man enter a house b( *ic*ing open its door. Appellant fired his service .6> caliber gun. 9e pushed the door, alread( half-open, but !orna 2uno spra(ed tear gas on him, hitting both his e(es and momentaril( losing his sight. Appellant soon heard a gunshot from inside the house. Appellant dove face do n to see* cover. In the process, he lost control of his firearm. 9e shouted for help and heard the voices of his ife and the t o baranga( tanods. &he baranga( tanods brought him bac* to his house here he as informed that !orna 2uno had been shot. 9is ife administered first aid to his e(es but, because his e(es ere not healed, he as brought the follo ing morning b( his ife to the Cue"on Cit( #eneral 9ospital. Drom the hospital, appellant proceeded to Camp Jaringal to clear his name after having heard that he as being implicated in the shooting incident. Appellant as disarmed b( his commanding officer and instructed to sub8ect himself to an investigation. &he ne:t da(, as so directed, he came bac* and restricted himself to camp. 9is commanding officer later brought him to the Investigation Division to surrender him for investigation. As*ed to give a statement, appellant told the investigator that he ould ait for his la (er. Drom the +Ath to the +<th of 1arch, nocase as filed against appellant. On the +0th of the same month, he as presented to the in=uest fiscal. &he trial court, convinced of the @lac* of probit( and credibilit( of the defense path ta*en b( the accused,@6 found appellant guilt( of the crime of murder. It ruled that the commission of the crime as =ualified b( @abuse of superiorit(@ because @!orna as unarmed hen shot on the head b( the accused hich single shot caused her instantaneous death.@< It appreciated against appellant the aggravating circumstance of d elling since both theprosecution and the defense evidence sho ed that !orna as fatall( shot inside her house. &he trial court disposed of Criminal Case No. C/?-?0,<, thusl(5 @ACCO3DIN#!I, 8udgment is hereb( rendered finding the accused 2O6 3O#E3 3OOAS ( Cabasag #4I!&I be(ond reasonable doubt as

2rincipal of the crime of 143DE3, as charged herein, as defined and penali"ed in the 3evised 2enal Code, =ualified b( ta*ing advantage of superior strength and, ith the aggravating circumstance of d elling, he is hereb( sentenced to suffer the penalt( of DEA&9. @On the civil aspect, accused 3oger 3o:as ( Cabasag is ordered to pa( the heirs of !orna 2uno ( 1aceda the sum of 20A,AAA.AA as indemnit( damages and 2+AA,AAA.AA as e:emplar( damages. @&he A31SCO3 caliber .6> revolver ith serial number 2O-+?+ $E:hibit 1' shall be for arded to the 2N2 Direarms and E:plosives Division, Camp Crame, Cue"on Cit( for safe*eeping in accordance ith la . @2ursuant to la and the 3ules of Court, let the entire records of this case be for arded forth ith to the 9onorable Supreme Court for automatic revie .@0 Appellant assails the credibilit( of prosecution itnesses .oel(n 7. 1aceda and 1elinda &aliRo. 7ut, as it has so often been stated b( this Court, the issue of credibilit( of itnesses is a =uestion for the trial court basicall( to resolve. &he rule is logical and ell founded. It is the trial 8udge hich has all the opportunit( to observe itnesses hen the( testif( before him and for him to then dra the line bet een fact and falsehood. An appellate court thus ould find itself rel(ing mostl( on the assessment of the trial court in this respect. &he records of this case do not disclose an( reason for this Court to no deviate from this long-settled doctrine. Appellant contends that the prosecution has suppressed evidence in failing to present the affidavit of 1elinda calling attention to the presumption that @evidence illfull( suppressed ould be adversed $sic' if produced.@ &he contention is a futile attempt to invo*e e:oneration. E:-parte affidavits, hich are often incomplete and inaccurate, are scarcel( depended on and ill certainl( not prevail over credible statements of a itness on the stand,?particularl( hen the defense has had the full opportunit( to cross-e:amine such a itness. Appellant)s argument that the trial court disregarded @the la on ballistics@ hen it ignored the fact that the slug found as that of a caliber .<0 gun, not that of a .6> caliber handgun, li*e the service revolver of appellant, hardl( could be material. It ould onl( sho that it as not appellant)s service revolver hich as used in the commission of the crime. Bith the positive identification b( e(e itness .oel(n of appellant as being the perpetrator of the crime, the non-presentation b( the prosecution of the eapon used in committing the crime ould not at all be fatal.- .oel(n itnessed at close range the *illing of her sister. 9er testimon(, an e(e itness account, as found credible b( the trial court.

&he relationship of .oel(n to the victim ould not be a reason to either discredit her or disbelieve her testimon(; in fact, it should be unnatural for an aggrieved relative to falsel( accuse someone else other than the actual culprit himself. > Nothing as sho n to indicate in an( a( that .oel(n as impelled b( improper motive in testif(ing against appellant that should thus add to her credibilit(. / In asseverating that the =ualif(ing circumstance of abuse of superior strength as not proven at the trial, appellant ould premise his argument on the contention that the victim used teargas to immobili"e him. &here as, ho ever, no convincing proof that the victim had indeed used teargas on appellant. &he hospital record presented in court b( 2astora 7arte, the records officer of the Cue"on Cit( #eneral 9ospital, that appellant as treated for e(e irritation and for abrasions on his right hand,+A as not attested to b( an( supposed attending ph(sician. All that 2astora could testif( on as that a certain Dr. Dernande" and one Dr. Osial, ho allegedl( attended to appellant, ere no longer connected ith the hospital. 2astora admitted that she had no personal *no ledge about the contents of the record; neither could she attest to the truth and veracit( of its contents. A medical certificate ould be hearsa( and inadmissible in evidence ithout the affirmation or confirmation on the itness stand of the ph(sician ho prepared it++ and corroborated b( the testimon( of the ph(sician ho had e:amined the patient. +, &he trial court described appellant as being a @big hul* of a man,@ 0)-@ in height, and @muscularl( bul*(.@ At the itness stand, hen .oel(n stood to identif( appellant, the prosecutor noted for the record that appellant as @ver( much taller than the itness@ ho stood at 0)6@ in height. According to .oel(n, !orna as onl( about 0)0@ in height, a fact that the defense did not dispute. &he case could bring to mind 2eople v. Cuesada.+6 In that case, the Court, noting that the appellant as a @robust, middle-aged man@ hile the deceased as a oman of about ,, (ears of age, appreciated the aggravating circumstance of ta*ing advantage of superior strength hen the malefactor stabbed the deceased @ hile she as tr(ing to escape from his grasp, and unable to repel the attac*.@ In this instance, !orna as ,- (ears old tr(ing to escape from appellant, an armed @hul* of a man,@ 0)-@ in height, and around 66 (ears of age,+< hen she as senselessl( shot at close range. Still in another case, this Court said5 @In several cases, e have held that an attac* made b( a man ith a deadl( eapon upon an unarmed and defenseless oman constitutes the circumstance of abuse of that superiorit( hich his se: and the eapon used in the act afforded him, and from hich the oman as unable to defend herself. &his is the e:act scenario in this case.@+0 In imposing the death penalt(, the trial court appreciated the aggravating circumstance of d elling that as not alleged in the information.

&he Solicitor #eneral, supporting the stand ta*en b( the trial court, ould invite a revisit of the 1auricio+? rule; heurges5 @Be respectfull( pra( that this 9onorable Court ta*e a second loo* at its ruling in 1auricio and other cases retroactivel( appl(ing 3ule ++A, Section /. &he rule prevailing before the effectivit( of the ne 3ules of Criminal 2rocedure as that generic aggravating circumstances, even if not alleged in the information, ma( be appreciated if proven at the trial. 2rosecutors and trial 8udges relied on this former rule. Bith all due respect, the retroactive application of the ne rule is manifestl( unfair to the prosecutors and trial 8udges ho relied in utmost good faith on the old rule. @On 1arch ,-, ,AAA, a mere nine $/' months before the ne 3ules of Criminal 2rocedure too* effect on December +, ,AAA, this 9onorable Court in 2eople v. 1itra, 6,> SC3A --<, -/,--/6 re8ected the contention that generic aggravating circumstances should be alleged in the information.@+- $Emphasis supplied' Bith all due respect to the Solicitor #eneral, the Court finds it difficult to reconsider its pronouncement in Mauricio, hich has since been reiterated in several cases. Section /, 3ule ++A, of the ne 3ules on Criminal 2rocedure, provides5 @SEC. /. Cause of the accusation. F &he acts or omissions complained of as constituting the offense and the =ualif(ing and aggravating circumstances must be stated in ordinar( and concise language and not necessaril( in the language used in the statute but in terms sufficient to enable a person of common understanding to *no hat offense is being charged as ell as its =ualif(ing and aggravating circumstances and for the court to pronounce 8udgment.@ In 1auricio,+> the Court has e:plained the reason for the retroactive application of the rule. @&he use of the ord Wmust) indicates that the re=uirement is mandator(, therefore failure to compl( ith Sec. /, 3ule ++A, means that generic aggravating circumstances, although proven at the trial, cannot be appreciated against the accused if such circumstances are not stated in the information. It is a cardinal rule that rules of criminal procedure are given retroactive application insofar as the( benefit the accused.@ $Italics supplied.'

Even be(ond that, as so e:pressed above, is the overriding principle that an accused has the unfettered right @to be informed of the nature and cause of the accusation against him.@+/ &he Court has no reason to doubt the fact that the prosecutor and trial 8udge must have relied in @utmost good faith@ on the old rule $that a generic aggravating circumstance ma( be appreciated against the accused even if it is not alleged in the information', but it is not enough for this Court to no ta*e that belief into account against appellant and to abandon a standing tenet that the la , as ell as rules of procedure favorable to the accused, must be given retroactive effect. &he Court reali"es that neither the Solicitor #eneral and the prosecutor nor the trial 8udge, are out of line; indeed, in 2eople v. 1itra,A the Court has virtuall( agreed to consider aggravating circumstances not alleged in the information but proved during the trial and appreciated in imposing the sentence, ithout necessaril( impinging the constitutional right of the accused to be informed of the nature and cause of the accusation against him. Nevertheless, in subse=uent cases, starting ith 2eople v. Salalima,,+ the Court, ta*ing a hard loo* on the issue has concluded that the ne rules must be given retroactive effect @in the light of the ell settled rule that statutes regulating the procedure of the court ill be construed as applicable to actions pending and undetermined at the time of their passage.@ ,, Article ,<>$+' of the 3evised 2enal Code, as amended, penali"es a person ho commits the crime of murder, attended b( the =ualif(ing circumstance of, among other circumstances, ta*ing advantage of superior strength, ith reclusion perpetua to death. No generic aggravating penalt( being attendant, the lesser penalt( of reclusion perpetua should be imposed.,6 &he trial court a arded @indemnit( damages@ of 20A,AAA.AA and e:emplar( damages of 2+AA,AAA.AA. Civil indemnit( is automaticall( imposed upon the accused ithout need of proof other than the fact of the commission of murder or homicide.,< &he a ard should thus be affirmed. &he a ard of e:emplar( damages is 8ustified considering the attendance of the aggravating circumstance of abuse of superior strength that =ualified the *illing to murder but, considering prevailing 8urisprudence, that amount should be reduced to 2,0,AAA.AA.,0 Consistentl( li*e ise ith recent decisions of the Court, an a ard of onl( temperate damages of 2,0,AAA.AA, no ade=uate proof of actual damages having been sho n, is arranted. ,? 8HEREFORE, the decision of the court a quo finding appellant 2O6 3oger 3o:as ( Cabasag guilt( be(ond reasonable doubt of the crime of murder for the *illing of !orna 1aceda 2uno is ADDI31ED sub8ect to the 1ODIDICA&IONS that appellant shall suffer, instead of death, the penalt( of reclusion perpetua and that he shall pa( the heirs of the victim civil indemnit( of 20A,AAA.AA, e:emplar( damages of 2,0,AAA.AA, and temperate damages of 2,0,AAA.AA. Costs against appellant. SO O3DE3ED.

until full( paid, as ell as Dift( &housand 2esos $20A,AAA.AA' as actual damages, Dift( &housand 2esos $20A,AAA.AA' as e:emplar( damages, Dive &housand 2esos $20,AAA.AA' as litigation e:penses, &en &housand 2esos $2+A,AAA.AA' as attorne()s fees, and the costs of suit. &he facts are undisputed5 &he petitioner is a domestic corporation principall( engaged in the insurance business herein it underta*es, for a consideration, to indemnif( another against loss, damage or liabilit( from an un*no n or contingent event including fire hile the respondent is a dul( registered cooperative 8udiciall( declared insolvent and represented b( the elected assignee, Cornelio .amero. It appears that sometime in +/>/, the petitioner and the respondent entered into a contract of fire insurance. 4nder Dire Insurance 2olic( No. D-+6/-, the petitioner insured the respondent)s stoc*s-in-trade against fire loss, damage or liabilit( during the period starting from .une ,A, +/>/ at <5AA p.m. to .une ,A, +//A at <5AA p.m., for the sum of & o 9undred &housand 2esos $2,AA,AAA.AA'. On .ul( +, +/>/, at or about +,5<A a.m., the respondent)s building located at 7aranga( Diatagon, !ianga, Surigao del Sur as gutted b( fire and reduced to ashes, resulting in the total loss of the respondent)s stoc*s-in-trade, pieces of furnitures and fi:tures, e=uipments and records. Due to the loss, the respondent filed an insurance claim ith the petitioner under its Dire Insurance 2olic( No. D-+6/-, submitting5 $a' the Spot 3eport of 2fc. Arturo H. .uarbal, IN2 Investigator, dated .ul( +, +/>/; $b' the S orn Statement of .ose !omocso; and $c' the S orn Statement of Ernesto 4rbi"tondo. &he petitioner, ho ever, denied the insurance claim on the ground that, based on the submitted documents, the building as set on fire b( t o $,' N2A rebels ho anted to obtain canned goods, rice and medicines as provisions for their comrades in the forest, and that such loss as an e:cepted ris* under paragraph No. ? of the polic( conditions of Dire Insurance 2olic( No. D-+6/-, hich provides5 &his insurance does not cover an( loss or damage occasioned b( or through or in conse=uence, directl( or indirectl(, of an( of the follo ing occurrences, namel(5 ::: ::: :::

%. G.R. No. 130)14

$-.&-r 2%, 2002

*OUNTR, +AN<ERS INSURAN*E *ORPORATION, petitioner, vs. LIANGA +A, AN" *OMMUNIT, MULTI=PURPOSE *OOPERATI#E, IN*., respondent. "E LEON, $R., J.5 7efore us is a petition for revie on certiorari of the Decision+ of the Court of Appeals, dated December ,/, +//> in CA-#.3. CH Case No. 6?/A, affirming in toto the Decision6 dated December ,?, +//+ of the 3egional &rial Court of !ianga, Surigao del Sur, 7ranch ,>, in Civil Case No. !-0+> hich ordered petitioner Countr( 7an*ers Insurance Corporation to full( pa( the insurance claim of respondent !ianga 7a( and Communit( 1ulti-2urpose Cooperative, Inc., under Dire Insurance 2olic( No. D-+6/-, for loss sustained as a result of the fire that occurred on .ul( +, +/>/ in the amount of & o 9undred &housand 2esos $2,AA,AAA.AA', ith interest at t elve percent$+,X' per annum from the date of filing of the complaint

$d' 1utin(, riot, militar( or popular uprising, insurrection, rebellion, revolution, militar( or usurped po er. An( loss or damage happening during the e:istence of abnormal conditions $ hether ph(sical or other ise' hich are occasioned b( or through or in conse=uence, directl( or indirectl(, of an( of said occurrences shall be deemed to be loss or damage hich is not covered b(

this insurance, e:cept to the e:tent that the Insured shall prove that such loss or damage happened independentl( of the e:istence of such abnormal conditions. Dinding the denial of its claim unacceptable, the respondent then instituted in the trial court the complaint for recover( of @loss, damage or liabilit(@ against petitioner. &he petitioner ans ered the complaint and reiterated the ground it earlier cited to den( the insurance claim, that is, that the loss as due to N2A rebels, an e:cepted ris* under the fire insurance polic(. In due time, the trial court rendered its Decision dated December ,?, +//+ in favor of the respondent, declaring that5 7ased on its findings, it is therefore the considered opinion of this Court, as it so holds, that the defenses raised b( defendant-Countr( 7an*ers has utterl( crumbled on account of its inherent ea*ness, incredibilit( and unreliabilit(, and after appl(ing those helpful tools li*e common sense, logic and the Court)s honest appraisal of the real and actual situation obtaining in this area, such defenses remains $sic' unimpressive and unconvincing, and therefore, the defendant-Countr( 7an*ers has to be irreversibl( ad8udged liable, as it should be, to plaintiffInsolvent Cooperative, represented in this action b( its Assignee, Cornelio .amero, and thus, ordering said defendant-Countr( 7an*ers to pa( the plaintiff-Insolvent Cooperative, as follo s5 +. &o full( pa( the insurance claim for the loss the insuredplaintiff sustained as a result of the fire under its Dire Insurance 2olic( No. D-+6/- in its full face value of 2,AA,AAA.AA ith interest of +,X per annum from date of filing of the complaint until the same is full( paid; ,. &o pa( as and in the concept of actual or compensator( damages in the total sum of 20A,AAA.AA; 6. &o pa( as and in the concept of e:emplar( damages in the total sum of 20A,AAA.AA; <. &o pa( in the concept of litigation e:penses the sum of 20,AAA.AA; 0. &o pa( b( a( of reimbursement the attorne()s fees in the sum of 2+A,AAA.AA; and

?. &o pa( the costs of the suit. Dor being unsubstantiated ith credible and positive evidence, the @counterclaim@ is dismissed. I& IS SO O3DE3ED. 2etitioner interposed an appeal to the Court of Appeals. On December ,/, +//>, the appellate court affirmed the challenged decision of the trial court in its entiret(. 2etitioner no comes before us via the instant petition anchored on three $6' assigned errors,< to it5 1. THE HONORA+LE *OURT OF APPEALS FAILE" TO APPRE*IATE AN" GI#E *RE"EN*E TO THE SPOT REPORT OF PF*. ARTURO $UAR+AL >E;H. 3? AN" THE S8ORN STATEMENT OF $OSE LOMO*SO >E;H. 4? THAT THE RESPON"ENT@S STO*<=IN=TRA"E 8AS +URNE" +, THE NPA RE+ELS, HEN*E AN E;*EPTE" RIS< UN"ER THE FIRE INSURAN*E POLI*,. 2. THE HONORA+LE *OURT OF APPEALS ERRE" IN HOL"ING PETITIONER LIA+LE FOR 12A INTEREST PER ANNUM ON THE FA*E #ALUE OF THE POLI*, FROM THE FILING OF THE *OMPLAINT UNTIL FULL, PAI". 3. THE HONORA+LE *OURT OF APPEALS ERRE" IN HOL"ING THE PETITIONER LIA+LE FOR A*TUAL AN" E;EMPLAR, "AMAGES, LITIGATION E;PENSES, ATTORNE,S FEES AN" *OST OF SUIT. A part( is bound b( his o n affirmative allegations. &his is a ell-*no n postulate echoed in Section + of 3ule +6+ of the 3evised 3ules of Court. Each part( must prove his o n affirmative allegations b( the amount of evidence re=uired b( la hich in civil cases, as in this case, is preponderance of evidence, to obtain a favorable 8udgment.0 In the instant case, the petitioner does not dispute that the respondent)s stoc*s-intrade ere insured against fire loss, damage or liabilit( under Dire Insurance 2olic( No. D- +6/- and that the respondent lost its stoc*s-in-trade in a fire that occurred on .ul( +, +/>/, ithin the duration of said fire insurance. &he petitioner, ho ever, posits the vie that the cause of the loss as an e:cepted ris* under the terms of the fire insurance polic(.

Bhere a ris* is e:cepted b( the terms of a polic( hich insures against other perils or ha"ards, loss from such a ris* constitutes a defense hich the insurer ma( urge, since it has not assumed that ris*, and from this it follo s that an insurer see*ing to defeat a claim because of an e:ception or limitation in the polic( has the burden of proving that the loss comes ithin the purvie of the e:ception or limitation set up. If a proof is made of a loss apparentl( ithin a contract of insurance, the burden is upon the insurer to prove that the loss arose from a cause of loss hich is e:cepted or for hich it is not liable, or from a cause hich limits its liabilit(. ? Stated else ise, since the petitioner in this case is defending on the ground of non-coverage and rel(ing upon an e:emption or e:ception clause in the fire insurance polic(, it has the burden of proving the facts upon hich such e:cepted ris* is based, b( a preponderance of evidence.- 7ut petitioner failed to do so. &he petitioner relies on the S orn Statements of .ose !omocso and Ernesto 4rbi"tondo as ell as on the Spot 3eport of 2fc. Arturo H. .uarbal dated .ul( +, +/>/, more particularl( the follo ing statement therein5 ::: investigation revealed b( .ose !omocso that those armed men anted to get can goods and rice for their consumption in the forest 2D investigation further disclosed that the perpetrator are member $sic' of the N2A 2D endL : : : A itness can testif( onl( to those facts hich he *no s of his personal *no ledge, hich means those facts hich are derived from his perception. > Conse=uentl(, a itness ma( not testif( as to hat he merel( learned from others either because he as told or read or heard the same. Such testimon( is considered hearsa( and ma( not be received as proof of the truth of hat he has learned. Such is the hearsa( rule hich applies not onl( to oral testimon( or statements but also to ritten evidence as ell./ &he hearsa( rule is based upon serious concerns about the trust orthiness and reliabilit( of hearsa( evidence inasmuch as such evidence are not given under oath or solemn affirmation and, more importantl(, have not been sub8ected to crosse:amination b( opposing counsel to test the perception, memor(, veracit( and articulateness of the out-of-court declarant or actor upon hose reliabilit( on hich the orth of the out-of-court statement depends.+A &hus, the S orn Statements of .ose !omocso and Ernesto 4rbi"tondo are inadmissible in evidence, for being hearsa(, inasmuch as the( did not ta*e the itness stand and could not therefore be cross-e:amined.

&here are e:ceptions to the hearsa( rule, among hich are entries in official records.++ &o be admissible in evidence, ho ever, three $6' re=uisites must concur, to it5 $a' that the entr( as made b( a public officer, or b( another person speciall( en8oined b( la to do so; $b' that it as made b( the public officer in the performance of his duties, or b( such other person in the performance of a dut( speciall( en8oined b( la ; and $c' that the public officer or other person had sufficient *no ledge of the facts b( him stated, hich must have been ac=uired b( him personall( or through official information. +, &he third re=uisite as not met in this case since no investigation, independent of the statements gathered from .ose !omocso, as conducted b( 2fc. Arturo H. .uarbal. In fact, as the petitioner itself pointed out, citing the testimon( of 2fc. Arturo .uarbal,+6 the latter)s Spot 3eport @was based on the personal knowledge o the caretaker !ose "omocso who witnessed every single incident surrounding the acts and circumstances o the case.@ &his argument undeniabl( ea*ens the petitioner)s defense, for the Spot 3eport of 2fc. Arturo .uarbal relative to the statement of .ose !omocso to the effect that N2A rebels allegedl( set fire to the respondent)s building is inadmissible in evidence, for the purpose of proving the truth of the statements contained in the said report, for being hearsa(. &he said Spot 3eport is admissible onl( insofar as it constitutes part of the testimon( of 2fc. Arturo H. .uarbal since he himself too* the itness stand and as available for cross-e:amination. &he portions of his Spot 3eport hich ere of his personal *no ledge or hich consisted of his perceptions and conclusions are not hearsa(. &he rest of the said report relative to the statement of .ose !omocso ma( be considered as independentl( relevant statements gathered in the course of .uarbal)s investigation and ma( be admitted as such but not necessaril( to prove the truth thereof.+< &he petitioner)s evidence to prove its defense is sadl( anting and thus, gives rise to its liabilit( to the respondent under Dire Insurance 2olic( No. D-+6/-. Nonetheless, e do not sustain the trial court)s imposition of t elve percent $+,X' interest on the insurance claim as ell as the monetar( a ard for actual and e:emplar( damages, litigation e:penses and attorne()s fees for lac* of legal and valid basis.

Concerning the application of the proper interest rates, the follo ing guidelines ere set in #astern $hipping "ines% Inc. v. Court o &ppeals and Mercantile Insurance Co.% Inc.'+0 I. Bhen an obligation, regardless of its source, i.e., la , contracts, =uasicontracts, delicts or =uasi-delicts, is breached, the contravenor can be held liable for damages. &he provisions under &itle OHIII on @Damages@ of the Civil Code govern in determining the measure of recoverable damages. II. Bith regard particularl( to an a ard of interest in the concept of actual and compensator( damages, the rate of interest, as ell as the accrual thereof, is imposed, as follo s5 +. Bhen the obligation is breached, and it consists in the pa(ment of a sum of mone(, i.e., a loan or forbearance of mone(, the interest due should be that hich ma( have been stipulated in riting. Durthermore, the interest due shall itself earn legal interest from the time it is 8udiciall( demanded. In the absence of stipulation, the rate of interest shall be +,X per annum to be computed from default, i.e., from 8udicial or e:tra8udicial demand under and sub8ect to the provisions of Article ++?/ of the Civil Code. ,. Bhen an obligation, not constituting a loan or forbearance of mone(, is breached, an interest on the amount of damages a arded ma( be imposed at the discretion of the court at the rate of ?X per annum. No interest, ho ever, shall be ad8udged on unli=uidated claims or damages e:cept hen or until the demand can be established ith reasonable certaint(. Accordingl(, here the demand is established ith reasonable certaint(, the interest shall begin to run from the time the claim is made 8udiciall( or e:tra8udiciall( $Art. ++?/, Civil Code' but hen such certaint( cannot be so reasonabl( established at the time the demand is made, the interest shall begin to run onl( from the date the 8udgment of the court is made $at hich time the =uantification of damages ma( be deemed to have been reasonabl( ascertained'. &he actual base for the computation of legal interest shall, in an( case, be on the amount finall( ad8udged. 6. Bhen the 8udgment of the court a arding a sum of mone( becomes final and e:ecutor(, the rate of legal interest, hether the case falls under paragraph + or paragraph ,, above, shall be

+,X per annum from such finalit( until its satisfaction, this interim period being deemed to be b( then an e=uivalent to a forbearance of credit. In the said case of #astern $hipping, the Court further observed that a @forbearance@ in the conte:t of the usur( la is a @contractual obligation of lender or creditor to refrain, during a given period of time, from re=uiring the borro er or debtor to repa( a loan or debt then due and pa(able.@ Considering the foregoing, the insurance claim in this case is evidentl( not a forbearance of mone(, goods or credit, and thus the interest rate should be as it is hereb( fi:ed at si: percent $?X' computed from the date of filing of the complaint. Be find no 8ustification for the a ard of actual damages of Dift( &housand 2esos $20A,AAA.AA'. Bell-entrenched is the doctrine that actual, compensator( and conse=uential damages must be proved, and cannot be presumed. +?&hat part of the dispositive portion of the Decision of the trial court ordering the petitioner to pa( actual damages of Dift( &housand 2esos $20A,AAA.AA' has no basis at all. &he 8ustification, if an(, for such an a ard of actual damages does not appear in the bod( of the decision of the trial court. Neither is there an( testimonial and documentar( evidence on the alleged actual damages of Dift( &housand 2esos $20A,AAA.AA' to arrant such an a ard. &hus, the same must be deleted. Concerning the a ard of e:emplar( damages for Dift( &housand 2esos $20A,AAA.AA', e li*e ise find no legal and valid basis for granting the same. Article ,,,/ of the Ne Civil Code provides that e:emplar( damages ma( be imposed b( a( of e:ample or correction for the public good. E:emplar( damages are imposed not to enrich one part( or impoverish another but to serve as a deterrent against or as a negative incentive to curb sociall( deleterious actions. &he( are designed to permit the courts to mould behavior that has sociall( deleterious conse=uences, and its imposition is re=uired b( public polic( to suppress the anton acts of an offender. 9o ever, it cannot be recovered as a matter of right. It is based entirel( on the discretion of the court. Be find no cogent and valid reason to a ard the same in the case at bar. Bith respect to the a ard of litigation e:penses and attorne()s fees, Article ,,A> of the Ne Civil Code+-enumerates the instances here such ma( be a arded and, in all cases, it must be reasonable, 8ust and e=uitable if the same ere to be granted. Attorne()s fees as part of damages are not meant to enrich the inning part( at the e:pense of the losing litigant. &he( are not a arded ever( time a part( prevails in a suit because of the polic( that no premium should be placed on the right to litigate.+> &he a ard of attorne()s fees is the e:ception rather than the general rule. As such, it is necessar( for the court to ma*e findings of facts and la that ould

bring the case ithin the e:ception and 8ustif( the grant of such a ard. Be find none in this case to arrant the a ard b( the trial court of litigation e:penses and attorne()s fees in the amounts of Dive &housand 2esos $20,AAA.AA' and &en &housand 2esos $2+A,AAA.AA', respectivel(, and therefore, the same must also be deleted. 8HEREFORE, the appealed Decision is MO"IFIE". &he rate of interest on the ad8udged principal amount of & o 9undred &housand 2esos $2,AA,AAA.AA' shall be si: percent $?X' per annum computed from the date of filing of the Complaint in the trial court. &he a ards in the amounts of Dift( &housand 2esos $20A,AAA.AA' as actual damages, Dift( &housand 2esos $20A,AAA.AA' as e:emplar( damages, Dive &housand 2esos $20,AAA.AA' as litigation e:penses, and &en &housand 2esos $2+A,AAA.AA' as attorne()s fees are hereb( "ELETE". Costs against the petitioner. SO O3DE3ED. 0. G.R. No. L=87%84 $&.e 10, 1))2 GOTES*O IN#ESTMENT *ORPORATION, petitioner, vs. GLORIA E. *HATTO -./ LINA "EL!A *HATTO, respondents. "A#I"E. $R., J.: Assailed in this petition for revie under 3ule <0 of the 3ules of Court are both the Decision 1 promulgated on ,- .ul( +/>> and the 3esolution dated +< 1arch +/>/ 2 of the respondent Court of Appeals in CA-#.3. CH No. A/?// hich, respectivel( affirmed in toto the decision of 7ranch OOI of the 3egional &rial Court of Cebu in Civil Case No. 3-,,0?- entitled @#loria Chatto, et al. versus #otesco Investment Corporation@, and denied petitionerQs motion to reconsider the same. &he trial court ordered the defendant, herein petitioners to pa( the plaintiff !ina Del"a E. Chatto the sum of 2+A,AAA.AA as moral damages and the plaintiff #loria E. Chatto the sum of 2</,A0A.AA as actual andconse=uential damages, 2-0,AAA.AA as moral damages and 2,A,AAA.AA as attorne(Qs fees, plus the cost of the suit. &hese a ards, e:cept for the attorne(Qs fees, ere to earn interest at the rate of t elve per cent $+,X' per annum beginning from the date the complaint as filed, +? November +/>,, until the amounts ere full( paid. &he antecedent facts, as found b( the trial court and affirmed b( the respondent Court, are summari"ed b( the latter in the challenged decision as follo s5

&he evidence sho s that in the afternoon of .une <, +/>, plaintiff #loria E. Chatto, and her +0-(earold daughter, plaintiff !ina Del"a E. Chatto ent to see the movie @1other Dear@ at Superama I theater, o ned b( defendant #otesco Investment Corporation. &he( bought balcon( tic*ets but even then ere unable to find seats considering the number of people patroni"ing the movie. 9ardl( ten $+A' minutes after entering the theater, the ceiling of its balcon( collapsed. &he theater as plunged into dar*ness and pandemonium ensued. Shoc*ed and hurt, plaintiffs managed to cra l under the fallen ceiling. As soon as the( ere able to get out to the street the( al*ed the nearb( DE4 9ospital here the( ere confined and treated for one $+' da(. &he ne:t da(, the( transferred to the 4S& hospital. 2laintiff #loria Chatto as treated in said hospital from .une 0 to .une +/ and plaintiff !ina Del"a Chatto from .une 0 to ++. 2er 1edico !egal Certificate$E:h, @C@' issued b( Dr. Ernesto #. 7rion, plaintiff !ina Del"a Chatto suffered the follo ing in8uries5 2h(sical in8uries5 Contusions5 forehead and drental region, scalp left ith hematoma; chest anterior upper bilateral; bac* right, scapular region; bac*, midportion, thoraco-lumbar regions, bilateral Abrasions5 bac* lumbar region, hori"ontal, across midline, from left to right; hand right, palm, near rist; hand left, inde: finger, dorsum, pro:imal phalan:. Conclusion, cerebral.

O3a( S S*ul l; &hor acolum bar regi on S All nega tive. CONC!4SIONS +. 2h(s ical in8ur ies riote d on the sub8 ect. ,. &hat unde r nor mal cond ition in the abse nce of com plica

tion, said ph(s ical in8ur ies ill re=u ire med ical atten danc e an dKor inca pacit ate the sub8 ect for a peri od of from t o to four ee *s. On the other hand, the findings on plaintiff #loria Chatto per 1edico !egal Certificate $E:h. @D@' of Dr. 7rion are as follo s5 ::: ::: ::: 2h(sical in8uries5 !acerated ounds5 scalp verte:, running across suggittal line,

from left to right, 6.A cm sutured; Contusion, forearm right, anterior aspect, upper third. Abrasions5 Shoulder and upper third, arm right, posterior aspect, linear; bac*right, scapular region, t o in number, linear; elbo right, posterior aspect; forearm right, anterior aspect, middle third. Concusion $sic', cerebral. O-3a( S S*ull S Negative. Cervical spines Straightening of cervical spine, probabl( to muscular spasm. CONC!4SIONS5 +. 2h(sical in8uries noted on sub8ect. ,. &hat under normal condition, in the absence of complication, said ph(sical in8uries ill re=uire medical attendance andKor incapacitate the sub8ect for a period of from t o to four ee*s. Due to continuing pain in the nec*, headache and di""iness, plaintiff ent to Illinois, 4SA in .ul( +/>, for further treatment $E:h @E@'. She as treated at the Coo* Count( 9ospital in Chicago, Illinois. She sta(ed in the 4.S. for about three $6' months during hich time she had to return to the Coo* Count( 9ospital five $0' or, si: $?' times.

Defendant tried to avoid liabilit( b( alleging that the collapse of the ceiling of its theater as done due to orce ma(eure. It maintained that its theater did not suffer from an( structural or construction defect. $E:h. +, ,, 6, <, E 0' 3 In 8ustif(ing its a ard of actual or compensator( and moral damages and attorne(Qs fees, the trial court said5 It has been established thru the uncontradicted testimon( of 1rs. Chatto that during the chaos and confusion at the theater she lost a pair of earrings orth 2,,0AA and the sum of 2+,AAA.AA in cash contained in her allet hich as lost; and that she incurred the follo ing e:penses5 20AA.AA as transportation fare from Cebu Cit( to 1anila on the first leg of her trip to the 4nited States; 260A.AA for her passport; and 2<?,/->.AA for her e:pense relative to her treatment in the 4nited States, including the cost of a round-trip tic*et $2++,-/>.AA' hospital and medical bills and other attendant e:penses. &he total is 20+,6,>.AA, hich is more than the sum of 2</,A0A.AA claimed in the complaint, hence should be reduced accordingl(. &he same testimon( has also established that 1rs. Chatto contracted to pa( her counsel the sum of 2,A,AAA.AA, hich this court considers reasonable considering, among other things, the professional standing of or* $sic' involved in the prosecution of this case. Such a ard of attorne(Qs fees is proper because the defendantQs omission to provide the plaintiffs proper and ade=uate safeguard to life and limb hich the( deserved as patrons to $sic' its theater had compelled the plaintiffs to hire the services of a counsel, file this case and prosecute it, thus incurring e:penses to protect their interest. &he plaintiffs are entitled to moral damages, hich are the direct and pro:imate result of the defendants gross negligence and omission. Such moral damages include the plaintiffsQ ph(sical suffering, mental anguish, fright and serious an:iet(. On the part of 1rs. Chatto, ho obviousl( suffered much more pain, anguish, fright and an:iet( than her daughter !ina Del"a, such damages are compounded b( the presence of permanent deformities on her bod( consisting of a ?-inch scar on the head and a ,-inch scar on one arm. &he court believes that the sum of 2-0,AAA.AA for plaintiff #loria E. Chatto and the sum of 2+A,AAA.AA for plaintiff !ina Del"a E. Chatto ould be reasonable. 4

2etitioner submitted before the respondent Court the follo ing assignment of errors5 I. &9E !OBE3 CO43& E33ED IN AD1I&&IN# 2A&EN&!I S INAD1ISSI7!E EHIDENCE 23ESEN&ED 7I 2!AIN&IDD-A22E!!EES AND IN #IHIN# !ESS 23O7A&IHE HA!4E &O 247!IC DOC41EN&S AND CE3&IDICA&IONS OD &9E CONDI&ION OD &9E 74I!DIN#, 2A3&IC4!A3!I &9E CE3&IDICA&E OD OCC42ANCI ISS4ED 7I &9E CI&I EN#INEE3QS ODDICE OD 1ANI!A. II. &9E !OBE3 CO43& E33ED IN DINDIN# &9A& @&9E CEI!IN# OD &9E 7A!CONI CO!!A2SED D4E &O SO1E S&34C&43A! CONS&34C&ION O3 A3C9I&EC&43A! DEDEC&,@ AND NO& D4E &O AN AC& OD #OD O3 )*RC# M&!#+R#. III. &9E !OBE3 CO43& E33ED IN DINDIN# &9A& &9E A22E!!AN& BAS #3OSS!I NE#!I#EN& IN DAI!IN# @&O CA4SE 23O2E3 AND ADEC4A&E INS2EC&ION 1AIN&ENANCE AND 42JEE2 OD &9E 74I!DIN#.@ % In its decision, respondent Court found the appeal to be ithout merit. As to the first assigned error, it ruled that the trial court did not err in admitting the e:hibits in =uestion in the light of the ruling in &brenica vs. ,onda 0 on aiver of ob8ections arising out of failure to ob8ect at the proper time &hus5 E:h. @A@, the letter dated .une /, +/>, of &ina 1o8ica of defendant-appellant to the Administrator of 4S& 9ospital e:pressing their illingness to guarant( the pa(ment of the hospital bills of the plaintiffs-appellees as not ob8ected to in trial court for lac* of authentication. It is too late to raise that ob8ection on appeal. E:hibits @7@, @C@, @D@, @D@ to @D-+6@ are the hospital records at DE4, 4S& and Coo* Count( 9ospital. It ma( be true that the doctors ho prepared them ere not presented as itnesses. Nonetheless, the records ill sho that counsel for defendantappellant cross e:amined plaintiff-appellee #loria Chatto on the matter especiall( the content of E:hibits @D@ to D-+6@, Conse=uentl(, defendant-appellant is estopped from claiming lac* of opportunit( to verif( their te:tual truth. 1oreover, the record is full of the testimon( of plaintiffs-appellees on the

in8uries the( sustained from the collapse of the ceiling of defendant-appellantQs theater. &heir e:istence is cr(stal clear. E:h. @E@ is the flight coupon and passenger tic*et $North est Orient' of plaintiff-appellee #loria Chatto from the 2hilippines to the 4.S. $1anila-Chicago-1anila'. Certainl(, this is relevant evidence on hether or not she actuall( travelled $sic' to the 4.S. for further medical treatment. Defendant-appellantQs contention that the best evidence on the issue is her passport is off the mar*. &he best evidence rule applies onl( if the contents of the riting are directl( in issue. In an( event, her passport is not the onl( evidence on the matter. E:h. @#@ is the summar( of plaintiff-appellee #loria ChattoQs e:penses in the 4.S in her o n hand riting. DefendantappellantQs ob8ection that it is self serving goes to the eight of the evidence. &he truth of E:h. @#@ could be and should have been tested b( cross e:amination. It cannot bedenied ho ever that such e:penses are ithin the personal *no ledge of the itness. E:h. @9@ is the surgical nec* ear orn b( the plaintiff-appellee #loria Chatto as part of her treatment in the 4.S. Defendantappellant ob8ects to its admission because it is self-serving. &he ob8ection is ithout merit in vie of the evidence on record that plaintiff-appellee #loria Chatto sustained head in8uries from the collapse of the ceiling of defendant-appellantQs theater. In fact, counsel for defendant-appellant cross e:amined the said itness on the medical finding of Coo* Count( 9ospital that she as suffering from nec* muscle spasm. $&SN, April +-, +/><, p. ++' &he earing of a surgical nec* ear has proper basis. E:h. @I@ is the photograph of plaintiff-appellee #loria Chatto in the 4.S. sho ing the use of her surgical nec* ear. Defendantappellant ob8ects to this e:hibit its hearsa( because the photographer as not presented as a itness. &he ob8ection is incorrect. In order that photographs or pictures ma( be given in evidence, the( must be sho n to be a true and faithful representation of the place or ob8ects to hich the( refer. &he photographs ma( be verified either b( the photographer ho too* it or b( an( person ho is ac=uainted ith the ob8ect represented and testif( $sic' that the photograph faithfull( represents the ob8ect. $1oran, Comments in the 3ules of Court,

Hol. H, +/>A ed., p. >A citing Ne Ior* Co vs. 1oore, +A0 Ded. -,0' In the case at bar, E:h. @I@ as identified b( plaintiff appellee #loria Chatto. 7 As to the, other assigned errors, the respondent Court ruled5 &he lo er court did not also err in its finding that the collapse of the ceiling of the theaterQs balcon( as due to construction defects and not to force ma8eure. It as the burden defendantappellant to prove that its theater did not suffer from an( structural defect hen it as built and that it has been ell maintained hen the incident occurred. &his is its Special and Affirmative Defense and it is incumbent on defendant-appellant to prove it. Considering the collapse of the ceiling of its theaterQs balcon( barel( four $<' (ears after its construction, it behooved defendant-appellant to conduct an e:haustive stud( of the reason for the tragic incident. On this score, the effort of defendantappellant borders criminal nonchalance. Its itness .esus !im Ong testified5 Att(. 7arcelona5 C 7( the a(, (ou made mention a hile ago that (our staff of engineer and architect used to ma*e round inspection of the building under (our construction the of these buildings is #otesco Cinema + and ,, sub8ect matter of this case, and (ou also made a regular round up or inspection of the theater. Is that rightP A Ies, sir. C And do (ou personall( inspect these buildings under (our constructionP A Ies, henever I can. C In the case of #otesco Cinema + and ,, had (ou an( chance to inspect this buildingP A Ies, sir.

C 2articularl( in the months of 1a( and .une of +/>,P A Ies, in that $sic' months. C No , (ou said also that sometime in .une +/>, (ou remember that one of these theaters. Att(. 7arcelona5 continuing particularl( Superama + the ceiling had collapsedP A Ies, sir. C Did (ou conduct an investigationP A Ies, sir. C Bhat as (our findingP A &here as reall( nothing, I cannot e:plain. I could not give an( reason h( the ceiling collapsed. C Could it not be due to an( defect of the plantP Att(. Dlorido5 Alread( ans ered, Iour 9onor, he could not give an( reason. CO43&5 Ob8ection sustained. Att(. 7arcelona5

C Bhen that incident happened, did the o ner #otesco Investment Corporation ent $sic' to (ou to call (our attentionP A Ies, sir. Att(. Dlorido5 Iour 9onor, e noticed $sic' series of leading =uestions, but this time e ob8ect. CO43&5 Sustained. Att(. 7arcelona; C Bhat did the o ner of #otesco do hen the ceiling collapsed, upon *no ing that one of the cinemas (ou maintained collopsedP A 9e as*ed for a thorough investigation. C And as a matter of fact as as*ed (ou to investigateP A Ies, sir. C Did (ou come out ith an( investigation report. A &here as nothing to report. Clearl(, there as no authoritative investigation conducted b( impartial civil and structural engineers on the cause of the collapse of the theaterQs ceiling, .esus !im Ong is not an engineer, 9e is a graduate of architecture from the St. !ouie $sic' 4niversit( in 7aguio Cit(. It does not appear he has passed the government e:amination for architects. $&SN, .une +<, +/>0 p. <' In fine, the ignorance of 1r. Ong about the cause of the

collapse of the ceiling of their theater cannot be e=uated, as an act, of #od. &o sustain that proposition is to introduce sacrilege in our 8urisprudence. 8 Its motion for reconsideration of the decision having been denied b( the respondent Court, petitioner filed this petition assailing therein the challenged decision on the follo ing grounds5 +. &he basis of the a ard for damages stems from medical reports issued b( private ph(sicians of local hospitals ithout benefit of cross-e:amination and more seriousl(, :ero: copies of medical findings issued b( American doctors in the 4nited States ithout the production of originals, ithout the re=uired consular authentication for foreign documents, and ithout the opportunit( for cross-e:amination. ,. &he damage a ard in favor of respondents is principall(, made depend on such unreliable, hearsa( and incompetent evidence for hich an a ard of more than 2+0A,AAA.AA in alleged actual, moral and I @conse=uential@ damages are a arded to the pre8udice of the right of petitioner to due process. ... 6. 4nfortunatel(, petitioners evidence of due diligence in the care and maintenance of the building as not seriousl( considered b( the Court of Appeals, considering that fre=uent inspections and maintenance precautions had to be observed b( hired engineers of petitioner, hich en8o(s an unsullied reputation in the business of e:hibiting movies in a chain of movie houses in 1etro 1anila. ) After the private respondents filed their Comment as re=uired in the 3esolution of +- 1a( +/>/, this Court resolved to give due course to the petition and re=uired the parties to file their respective 1emoranda. Subse=uentl(, private respondents, in a motion, pra(ed for leave to adopt their Comment as their 1emorandum, hich this Court granted on ? December +/>/. 2etitioner filed its 1emorandum on +A .anuar( +//A. &he petition presents both factual and legal issues. &he first relates to the cause of the collapse of the ceiling hile the latter involves the correctness of the admission of the e:hibits in =uestion.

Be find no merit in the petition. &he rule is ell-settled that the 8urisdiction of this Court in cases brought to it from the Court of Appeals is limited to revie ing and revising the errors of la imputed to it, its findings of fact being conclusive, 10 e:cept onl( here a case is sho n as coming under the accepted e:ception. 11 None of the e:ceptions hich this Court has painsta*ingl( summari"ed in several cases 12 has been sho n to e:ist in this petition. 2etitionerQs claim that the collapse of the ceiling of the theaterQs balcon( as due to orce ma(eure is not even founded on facts because its o n itness, 1r. .esus !im Ong, admitted that @he could not give an( reason h( the ceiling collapsed.@ 9aving interposed it as a defense, it had the burden to prove that the collapse as indeed caused b( orce ma(eure. It could not have collapsed ithout a cause. &hat 1r. Ong could not offer an( e:planation does not impl( orce ma(eure. As earl( as eight(-five $>0' (ears ago, this Court had the occasion to define orce ma(eure. In Pons y Compa-ia vs. "a Compa-ia Maritima 13 this Court held5 An e:amination of the Spanish and American authorities concerning the meaning of orce ma(euresho s that the 8urisprudence of these t o countries practicall( agree upon the meaning of this phrase. 7lac*stone, in his Commentaries on English !a , defines it as S Inevitable accident or casualt(; an accident produced b( an( ph(sical cause hich is irresistible; such as lightning. tempest, perils of the sea, inundation, or earth=ua*e; the sudden illness or death of a person. $, 7lac*stoneQs Commentaries, +,,; Stor( in 7ailments, sec. ,0.' Escriche, in his .iccionario de "egislacion y !urisprudencia% defines uer/a mayor as follo s. &he event hich e could neither foresee nor resist; as for e:ample, the lightning stro*e, hail, inundation, hurricane, public enem(, attac* b( robbers; 0is ma(or est% sa(s Ca(o, ea quae consilio humano neque provideri neque vitari potest. Accident and mitigating circumstances.

7ouvier defines the same as S An( accident due to natural cause, directl( e:clusivel( ithout human intervention, such as could not have been prevented b( an( *ind of oversight, pains and care reasonabl( to have been e:pected. $!a 3eports, + Common 2leas Division, <,6; !a 3eports, +A E:che=uer, ,00.' Cor*burn, chief 8ustice, in a ell considered English case $+ Common 2leas Division, 6<, <6,', said that ere a captain S 4ses all the *no n means to hich prudent and e:perienced captains ordinaril( have recourse, he does all that can be reasonabl( re=uired of him; and if, under such circumtances, he is overpo ered b( storm or other natural agenc(, he is ithin the rule hich gives immunit( from the effects of such vis ma(or. &he term generall( applies, broadl( spea*ing, to natural accidents, such as those caused b( lightning, earth=ua*e, tempests, public enem( ,etc. 2etitioner could have easil( discovered the cause of the collapse if indeed it ere due to orce ma(eure. &o Our mind, the real reason h( 1r. Ong could not e:plain the cause or reason is that either he did not actuall( conduct the investigation or that he is, as the respondent Court impliedl( held, incompetent. 9e is not an engineer, but an architect ho had not even passed the governmentQs e:amination. Heril(, post-incident investigation cannot be considered as material to the present proceedings. Bhat is significant is the finding of the trial court, affirmed b( the respondent Court, that the collapse as due to construction defects. &here as no evidence offered to overturn this finding. &he building as constructed barel( four $<' (ears prior to the accident in =uestion. It as not sho n that an( of the causes denominates as orce ma(eure obtained immediatel( before or at the time of the collapse of the ceiling. Such defects could have been easil( discovered if onl( petitioner e:ercised due diligence and care in *eeping and maintaining the premises. 7ut as disclosed b( the testimon( of 1r. Ong, there as no ade=uate inspection of the premises before the date of the accident. 9is ans ers to the leading =uestions on inspection disclosed neither the e:act dates of said. inspection nor the nature and e:tent of the same. &hat the structural designs and plans of the building ere dul(

approved b( the Cit( Engineer and the building permits and certificate of occupanc( ere issued do not at all prove that there ere no defects in the construction, especiall( as regards the ceiling, considering that no testimon( as offered to prove that it as ever inspected at all. It is settled that5 &he o ner or proprietor of a place of public amusement impliedl( arrants that the premises, appliances and amusement devices are safe for the purpose for hich the( are designed, the doctrine being sub8ect to no other e:ception or =ualification than that he does not contract against un*no n defects not discoverable b( ordinar( or reasonable means. 14 &his implied arrant( has given rise to the rule that5 Bhere a patron of a theater or other place of public amusement is in8ured, and the thing that caused the in8ur( is holl( and e:clusivel( under the control and management of the defendant, and the accident is such as in the ordinar( course of events ould not have happened if proper care had been e:ercised, its occurrence raises a presumption or permits of an inference of negligence on the part of the defendant. 1% &hat presumption or inference as not overcome b( the petitioner. 7esides, even assuming for the sa*e of argument that, as petitioner vigorousl( insists, the cause of the collapse as due to orce ma(eure, petitioner ould still be liable because it as guilt( of negligence, hich the trial court denominated as gross. As gleaned from 7ouvierQs definition of and Coc*burnQs elucidation on orce ma(eure for one to be e:empt from an( liabilit( because of it, he must have e:ercised care, i.e., he should not have been guilt( of negligence. &urning no to the legal issue posed in this petition, the error lies not in the dis=uisitions of the respondent Court, but in the s eeping conclusion of petitioner. Be agree ith the respondent Court that petitioner offered no reasonable ob8ection to the e:hibits. 1ore than this, ho ever, Be note that the e:hibits ere admitted not as independent evidence, but, primaril(, as part of the testimon( of 1rs. #loria Chatto. Neither ere the e:hibits made the main basis for the a ard of damages. As to the latter, including the a ard for attorne(Qs fees, the testimonial evidence presented is sufficient to support the same; moreover, petitioner as not deprived of its right to test the, truth or falsit( of private respondentsQ testimon( through cross-

e:amination or refute their claim b( its o n evidence. It could not then be successfull( argued b( petitioner that the admission of the e:hibits violated the hearsa( rule. As this Court sees it, the trial court admitted such merel( as independentl( relevant statements, hich as not ob8ectionable, for5 Bhere, regardless of the truth or the falsit( of a statement, the fact that it has been made is relevant, the hearsa( rule does not appl(, but the statement ma( be sho n. Evidence as to the ma*ing of such statement is not secondar( but primar(, for the statement itself ma( constitute a fact; in issue, or be circumstantiall( relevant as to the e:istence of such a fact. 10 Durthermore, and ith particular reference to the documents issued in the 4nited States of America $E:hibits @D@, @D-+@ to @D-+6@, inclusive', the main ob8ection thereto as not that the( are hearsa(. In its ritten comment andKor opposition to documentar( e:hibits, petitioner ob8ected to their admission on the follo ing grounds onl(5 . . . for being incompetent evidence considering that the same ere not dul( authenticated b( the responsible consular andKor embass( officials authori"ed to authenticate the said documents. 17 All told, the instant petition is ithout merit. B9E3EDO3E, 8udgment is hereb( rendered DENIIN# the instant petition ith costs against petitioner. SO O3DE3ED.

7. G.R. No. 122)%4

Febr&-r 1%, 2000

NOR+ERTO FERIA , PA*BUING, petitioner, vs. THE *OURT OF APPEALS, "IRE*TOR OF THE +UREAU OF *ORRE*TIONS, MUNTINLUPA, METRO MANILA >IN PLA*E OF THE $AIL 8AR"EN OF THE MANILA *IT, $AIL?, THE PRESI"ING $U"GE OF +RAN*H II, REGIONAL TRIAL *OURT OF MANILA, -./ THE *IT, PROSE*UTOR, *IT, OF MANILA, respondents. BUISUM+ING, J.: &he mere loss or destruction of the records of a criminal case subse=uent to conviction of the accused ill not render the 8udgment of conviction void, nor ill it arrant the release of the convict b( virtue of a rit of habeas corpus. &he proper remed( is the reconstitution of 8udicial records hich is as much a dut( of the prosecution as of the defense. Sub8ect of this petition for revie on certiorari are $+' the Decision dated April ,>, +//0, of the Eighth Division of the Court of Appeals, hich affirmed the dismissal of the petition for habeas corpus filed b( petitioner, and $,' the 3esolution of the Court of Appeals dated December +, +//0, hich denied the 1otion for 3econsideration. As hereafter elucidated, e sustain the 8udgment of respondent appellate court. 7ased on the available records and the admissions of the parties, the antecedents of the present petition are as follo s5 2etitioner Norberto Deria ( 2ac=uing has been under detention since 1a( ,+, +/>+, up to present+ b( reason ofhis conviction of the crime of 3obber( ith 9omicide, in Criminal Case No. ?A?--, b( the 3egional &rial Court of 1anila, 7ranch ,, for the 8eepne( hold-up and *illing of 4nited States 2eace Corps Holunteer 1argaret Hiviene Carmona. Some t elve $+,' (ears later, or on .une /, +//6, petitioner sought to be transferred from the 1anila Cit( .ail to the 7ureau of Corrections in 1untinlupa Cit(, , but the .ail Barden of the 1anila Cit( .ail informed the 2residing .udge of the 3&C1anila, 7ranch ,, that the transfer cannot be effected ithout the submission of the re=uirements, namel(, the Commitment Order or 1ittimus, Decision, and Information.6 It as then discovered that the entire records of the case, including the cop( of the 8udgment, ere missing. In response to the in=uiries made b( counsel of petitioner, both the Office of the Cit( 2rosecutor of 1anila and the Cler* of Court of 3egional &rial Court of 1anila, 7ranch , attested to the fact that the records of

Criminal Case No. ?A?-- could not be found in their respective offices. 4pon further in=uiries, the entire records appear to have been lost or destro(ed in the fire hich occurred at the second and third floor of the 1anila Cit( 9all on November 6, +/>?.< On October 6, +//<, petitioner filed a 2etition for the Issuance of a Brit of 1abeas Corpus0 ith the Supreme Court against the .ail Barden of the 1anila Cit( .ail, the 2residing .udge of 7ranch ,, 3egional &rial Court of 1anila, and the Cit( 2rosecutor of 1anila, pra(ing for his discharge from confinement on the ground that his continued detention ithout an( valid 8udgment is illegal and violative of his constitutional right to due process. In its 3esolution dated October +A, +//<,? the Second Division of this Court resolved S . . . $a' to ISS4E the Brit of 1abeas Corpus; $b' to O3DE3 the E:ecutive .udge of the 3egional &rial Court of 1anila to conduct an immediate 3ADD!E of this case among the incumbent 8udges thereof; and $c' to 3EC4I3E M+N the .udge to hom this case is raffled to SE& the case for 9EA3IN# on &hursda(, October +6, +//< at >56A A.1., tr( and decide the same on the merits and thereafter D43NIS9 this Court ith a cop( of his decision thereon; M,N the respondents to ma*e a 3E&43N of the Brit on or before the close of office hours on Bednesda(, October +,, +//< and A22EA3 2E3SONA!!I and 23OD4CE the person of Norberto Deria ( 2aMcN=uing on the aforesaid date and time of hearing to the .udge to hom this case is raffled, and M6N the Director #eneral, 2hilippine National 2olice, through his dul( authori"ed representative$s' to SE3HE the Brit and 2etition, and ma*e a 3E&43N thereof as provided b( la and, specificall(, his dul( authori"ed representative$s' to A22EA3 2E3SONA!!I and ESCO3& the person of Norberto Deria ( 2aMcN=uing at the aforesaid date and time of hearing. &he case as then raffled to 7ranch / of the 3egional &rial Court of 1anila, hich on November +0, +//<, after hearing, issued an Order- dismissing the case on the ground that the mere loss of the records of the case does not invalidate the 8udgment or commitment nor authori"e the release of the petitioner, and that the proper remed( ould be reconstitution of the records of the case hich should be filed ith the court hich rendered the decision. 2etitioner dul( appealed said Order to the Court of Appeals, hich on April ,>, +//0, rendered the assailed Decisions> affirming the decision of the trial court ith the modification that @in the interest of orderl( administration of 8ustice@ and @under the peculiar facts of the case@ petitioner ma( be transferred to the 7ureau of Corrections in 1untinlupa Cit( ithout submission of the re=uirements $1ittimus,

Decision and Information' but ithout pre8udice to the reconstitution of the original records. &he 1otion for 3econsideration of the aforesaid Order having been denied for lac* of merit,/ petitioner is no before us on certiorari, assigning the follo ing errors of la 5+A I. B9E&9E3 O3 NO&, 4NDE3 &9E 2EC4!IA3 CI3C41S&ANCES OD &9IS CASE, B9E3E &9E 3ECO3DS OD CONHIC&ION BE3E !OS&, &9E 2E&I&IONE3QS CON&IN4ED INCA3CE3A&ION IS .4S&IDIED 4NDE3 &9E !AB. CO3O!!A3I &O &9IS, B9E&9E3 O3 NO& &9E CO43& OD A22EA!SQ 3ESO!4&ION, ADDI31IN# &9E DENIA! OD 9E3EIN A22E!!AN&QS 2E&I&ION DO3 1&B#&$ C*RP+$ IS, IN CON&E12!A&ION OD !AB, A .4D#1EN& O3 A S47S&I&4&E .4D#1EN&, B9IC9 CAN 7E 4&I!I%ED AS A S4DDICIEN& 7ASIS DO3 9IS INCA3CE3A&ION. II. B9E&9E3 O3 NO& &9E 3ECONS&I&4&ION OD ODDICIA! 3ECO3DS !OS&KDES&3OIED S9O4!D 7E INI&IA&ED 7I &9E #OHE3N1EN& AND I&S O3#ANS, B9O A3E IN C4S&ODI OD S4C9, O3 7I &9E 23ISONE3, B9OSE !I7E3&I IS 3ES&3AINED. 2etitioner argues that his detention is illegal because there e:ists no cop( of a valid 8udgment as re=uired b( Sections + and , of 3ule +,A of the 3ules of Court, ++ and that the evidence considered b( the trial court and Court of Appeals in the habeas corpus proceedings did not establish the contents of such 8udgment. 2etitioner further contends that our ruling in ,unabe v. .irector o Prisons, -- 2hil. //6, //0 $+/<-', that @reconstitution is as much the dut( of the prosecution as of the defense@ has been modified or abandoned in the subse=uent case of *rdone/ v. .irector o Prisons, ,60 SC3A +0,, +00 $+//<', herein e held that @MiNt is not the fault of the prisoners that the records cannot no be found. If an(one is to be blamed, it surel( cannot be the prisoners, ho ere not the custodians of those records.@ In its Comment,+, the Office of the Solicitor #eneral contends that the sole in=uir( in this habeas corpusproceeding is hether or not there is legal basis to detain petitioner. &he OS# maintains that public respondents have more than sufficientl( sho n the e:istence of a legal ground for petitionerQs continued incarceration, vi/., his conviction b( final 8udgment, and under Section < of 3ule +A, of the 3ules of Court, the discharge of a person suffering imprisonment under la ful 8udgment is not authori"ed. 2etitionerQs remed(, therefore, is not a petition for habeas corpus but a proceeding for the reconstitution of 8udicial records. 23wphi2.n4t

&he high prerogative rit of habeas corpus, hose origin is traced to anti=uit(, as devised and e:ists as a speed( and effectual remed( to relieve persons from unla ful restraint, and as the best and onl( sufficient defense of personal freedom.+6 It secures to a prisoner the right to have the cause of his detention e:amined and determined b( a court of 8ustice, and to have the issue ascertained as to hether he is held under la ful authorit(. +< Conse=uentl(, the rit ma( also be availed of here, as a conse=uence of a 8udicial proceeding, $a' there has been a deprivation of a constitutional right resulting in the restraint of a person, $b' the court had no 8urisdiction to impose the sentence, or $c' an e:cessive penalt( has been imposed, as such sentence is void as to such e:cess. +0 2etitionerQs claim is anchored on the first ground considering, as he claims, that his continued detention, not ithstanding the lac* of a cop( of a valid 8udgment of conviction, is violative of his constitutional right to due process. 7ased on the records and the hearing conducted b( the trial court, there is sufficient evidence on record to establish the fact of conviction of petitioner hich serves as the legal basis for his detention. 2etitioner made 8udicial admissions, both verbal and ritten, that he as charged ith and convicted of the crime of 3obber( ith 9omicide, and sentenced to suffer imprisonment @habang buha(@. In its Order dated October +-, +//<, the 3&C-1anila, 7ranch /, made the finding that S+? During the trial and on manifestation and arguments made b( the accused, his learned counsel and Solicitor Ale:ander #. #esmundo ho appeared for the respondents, it appears clear and indubitable that5 $A' 2etitioner had been charged ith 3obber( ith 9omicide in Criminal Case No. ?A?--, Illegal 2ossession of Direarm in Criminal Case No. ?A?-> and 3obber( in 7and in Criminal Case No. ?A>?-. . . . In Criminal Case No. ?A?-- $3obber( ith 9omicide' the accused admitted in open Court that a decision was read to him in open Court by a personnel o the respondent Court 5RTC Branch II6 sentencing him to "i e Imprisonment 51abang buhay6. . . $emphasis supplied'. Durther, in the 4rgent 1otion for the Issuance of Commitment Order of the Above Entitled Criminal Case dated .une >, +//6,+- petitioner himself stated that S CO1ES NOB, the undersigned accused in the above entitled criminal case and unto this 9onorable Court most respectfull( move5 +. That in 2782 the accused was charge o 5sic6 Robbery with 1omicide ;

,. That a ter our years o trial% the court ound the accused guilty and given a "i e $entence in a promulgation handed down in 2789; $emphasis supplied'. 6. &hat after the sentence as promulgated, the 2residing .udge told the councel $sic' that accused has the right to appeal the decision; <. &hat hether the de o icio counsel appealed the decision is be(ond the accused comprehension $sic' because the last time he sa the counsel as hen the decision as promulgated. 0. &hat ever(time there is change of Barden at the 1anila Cit( .ail attempts ere made to get the Commitment Order so that transfer of the accused to the 7ureau of Corrections can be affected, but all in vain; 2etitionerQs declarations as to a relevant fact ma( be given in evidence against him under Section ,6 of 3ule +6A of the 3ules of Court. &his rule is based upon the presumption that no man ould declare an(thing against himself, unless such declaration ere true,+> particularl( ith respect to such grave matter as his conviction for the crime of 3obber( ith 9omicide. Durther, under Section < of 3ule +,/, @MaNn admission, verbal or ritten, made b( a part( in the course of the proceedings in the same case, does not re=uire proof. &he admission ma( be contradicted onl( b( a sho ing that it as made through palpable mista*e or that no such admission as made.@ 2etitioner does not claim an( mista*e nor does he den( ma*ing such admissions. &he records also contain a certified true cop( of the 1onthl( 3eport dated .anuar( +/>0+/ of then .udge 3osalio A. De !eon, attesting to the fact that petitioner as convicted of the crime of 3obber( ith 9omicide on .anuar( ++, +/>0. Such 1onthl( 3eport constitutes an entr( in official records under Section << of 3ule +6A of the 3evised 3ules on Evidence, hich is prima acie evidence of facts therein stated. 2ublic respondents li*e ise presented a certified hue cop( of 2eopleQs .ournal dated .anuar( +>, +/>0, page ,,,Aissued b( the National !ibrar(, containing a short ne s article that petitioner as convicted of the crime of 3obber( ith 9omicide and as sentenced to @life imprisonment.@ 9o ever, ne spaper articles amount to @hearsa( evidence, t ice removed@,+ and are therefore not onl( inadmissible but ithout an( probative value at all hether ob8ected to or not, ,, unless offered for a purpose other than proving the truth of the matter asserted. In this case, the ne s article is admissible onl( as evidence that such publication does e:ist ith the tenor of the ne s therein stated.

As a general rule, the burden of proving illegal restraint b( the respondent rests on the petitioner ho attac*s such restraint. In other ords, here the return is not sub8ect to e:ception, that is, here it sets forth process hich on its face sho s good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove ne matter that tends to invalidate the apparent effect of such process. ,6 If the detention of the prisoner is b( reason of la ful public authorit(, the return is considered prima acie evidence of the validit( of the restraint and the petitioner has the burden of proof to sho that the restraint is illegal. &hus, Section +6 of 3ule +A, of the 3ules of Court provides5 Sec. +6. :hen the return evidence, and when only a plea. S If it appears that the prisoner is in custod( under a arrant of commitment in pursuance of la , the return shall be considered prima acie evidence of the cause of restraint, but if he is restrained of his libert( b( an( alleged private authorit(, the return shall be considered onl( as a plea of the facts therein set forth, and the part( claiming the custod( must prove such facts. 2ublic respondents having sufficientl( sho n good ground for the detention, petitionerQs release from confinement is not arranted under Section < of 3ule +A, of the 3ules of Court hich provides that S Sec. <. :hen writ not allowed or discharge authori/ed. S If it appears that the person alleged to be restrained of his libert( is in the custod( of an officer under process issued b( a court or 8udge or b( virtue of a 8udgment or order of a court of record, and that the court or 8udge had 8urisdiction to issue the process, render the 8udgment, or ma*e the order, the rit shall not be allo ed; or if the 8urisdiction appears after the rit is allo ed, the person shall not be discharged b( reason of an( informalit( or defect in the process, 8udgment, or order. Nor shall an(thing in this rule be held to authori"e the discharge of a person charged ith or convicted of an offense in the 2hilippines, or of a person suffering imprisonment under la ful 8udgment. In the case of ,ome/ v. .irector o Prisons, -- 2hil. <0> $+/<?', accused as convicted b( the trial court of the crime of rape, and as committed to the Ne 7ilibid 2rison. 2ending appeal ith the Court of Appeals, the records of the case ere, for reasons undisclosed, completel( destro(ed or lost. Accused then filed a petition for the issuance of the rit of habeas corpus ith the Supreme Court. &he Court denied the petition, ruling thus5 &he petition does not ma*e out a case. &he Director of 2risons is holding the prisoner under process issued b( a competent court in pursuance of a la ful, subsisting 8udgment. &he prisoner himself admits the legalit( of

his detention. &he mere loss or destruction of the record of the case does not invalidate the 8udgment or the commitment, or authori"e the prisonerQs release. Note further that, in the present case, there is also no sho ing that petitioner dul( appealed his conviction of the crime of 3obber( ith 9omicide, hence for all intents and purposes, such 8udgment has alread( become final and e:ecutor(. Bhen a court has 8urisdiction of the offense charged and of the part( ho is so charged, its 8udgment, order, or decree is not sub8ect to collateral attac* b( habeas corpus.,< 2ut another a(, in order that a 8udgment ma( be sub8ect to collateral attac* b( habeas corpus, it must be void for lac* of 8urisdiction.,0 &hus, petitionerQs invocation of our ruling in Reyes v. .irector o Prisons, supra, is misplaced. In the Reyes case, e granted the rit and ordered the release of the prisoner on the ground that @MiNt does not appear that the prisoner has been sentenced b( an( tribunal dul( established b( a competent authorit( during the enem( occupation@ and not because there ere no copies of the decision and information. 9ere, a cop( of the mittimus is available. And, indeed, petitioner does not raise an( 8urisdictional issue. &he proper remed( in this case is for either petitioner or public respondents to initiate the reconstitution of the 8udgment of the case under either Act No. 6++A,,? the general la governing reconstitution of 8udicial records, or under the inherent po er of courts to reconstitute at an( time the records of their finished cases in accordance ith Section 0 $h' of 3ule +60 of the 3ules of Court. ,- .udicial records are sub8ect to reconstitution ithout e:ception, hether the( refer to pending cases or finished cases.,> &here is no sense in limiting reconstitution to pending cases; finished cases are 8ust as important as pending ones, as evidence of rights and obligations finall( ad8udicated.,/ 2etitioner belabors the fact that no initiative as ta*en b( the #overnment to reconstitute the missing records of the trial court. Be reiterate, ho ever, that @reconstitution is as much the dut( of the prosecution as of the defense.@6A 2etitionerQs invocation of *rdo-e/ v. .irector o Prisons, ,60 SC3A +0, $+//<', is misplaced since the grant of the petition for habeas corpus therein as premised on the loss of records prior to the filing of Informations against the prisoners, and therefore @MtNhe government has failed to sho that their continued detention is supported b( a valid conviction or b( the pendenc( of charges against them or b( an( legitimate cause hatsoever.@ In this case, the records ere lost a ter petitioner, b( his o n admission, as alread( convicted b( the trial court of the offense charged. Durther, the same incident hich gave rise to the filing of the Information for 3obber( ith 9omicide also gave rise to another case for Illegal 2ossession of Direarm,6+ the records of hich could be of assistance in the reconstitution of the present case.

B9E3EDO3E, the petition is DENIED for lac* of merit, and the decision of the Court of Appeals is ADDI31ED. SO O3DE3ED.

). G.R. No. )00)7 M-rcC 20, 1))2 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. $AIME *OMPETENTE -./ $ESUS *OMPETENTE, accused-appellants. MELEN*IO=HERRERA, J.: &he @fiesta@ of 7aranga( 7ano, &i i, Alba(, on +0 1a( +/>?, as marred b( the death of Nestor Dacir, a 7aranga( &anod. Charged ith 1urder for having strangled

and stabbed him to death ere acccused-appellants .esus Competente and .aime Competente, father and son, respectivel(. &he( ere alleged to have conspired and helped each other in treacherousl( attac*ing said victim. On their plea of @not guilt(,@ the( ere tried and convicted to suffer reclusion perpetua and to indemnif( the deceasedQs heirs in the sum of 26A.AAA.AA as compensator( damages. &he( are no before this Court appealing that verdict of 3egional &rial Court of &obacco, Alba(. 1 2rosecution e(e itnesses, 3osita #alan, Sonn( Dacir, the HictimQs >-(ears old son, and Antonio Calmada, narrated the occurrence more or less in the follo ing tenor5 &he houses of the Hictim, the Competentes, and one Eddie #utierre", in 7aranga( 7ano, are near one another. On +0 1a( +/>?, 3osita ent to Eddie #utierre"Q house at 7aranga( 7ano to attend the fiesta. &he latter is her brother-in-la . She *no s accused-appellants, the( being neighbors of her brother-in la . She li*e ise *ne the Hictim, being her brother-in-la Qs friend. At about +5AA oQcloc* 2.1. of +0 1a( +/>?, at 7aranga( 7ano, hile she as attending to Eddie #utierre"Q children in the front (ard, she heard the HictimQs house stoned thrice b( four men, hom she failed to identif(. &he victim ent out to verif( and sa the perpetrators run to ards the house of the Competentes. &he victim follo ed them. As the latter as approaching, 3osita and Antonio Calmada heard appellant-father $.esus', ho as then at their (ard, sa( @9ere he is, here he is.@ As fate ould have it, the victim tripped and fell flat on his face. Immediatel(, the appellant-father sat astride the HictimQs bac* and strangled him on the nec*. Suddenl(, the appellant-son $.aime' arrived at the scene and positioning himself behind his father, stabbed the Hictim ith a *itchen *nife on the right side of his bod(, slightl( above the hip bone. &he son hurriedl( retreated to their house but the father continued strangling the victim until his ife, Aurora, told him5 @.esus, .esus tama na, na*adama( na ang a=ui mo@ $.esus, .esus, that is enough, (our son is alread( involved'. Onl( then did appellant-father release his hold on the HictimQs nec*. Aurora also confronted her son as to h( he had to 8oin his father. 2rosecution itness Antonio Calmada sa the strangling of the Hictim b( appellant-father but did not see the stabbing. Seeing the incident, 3osita #alan shouted and screamed for help. Eddie #utierre" and Antonio Calmada responded and seeing the Hictim flat on his face and bloodied, put him on a tric(cle and too* him to the hospital here he died upon arrival. Appellants-father-and-son denied the charges against them claiming that one Deliciano 7acho as the culprit; that the latter had admitted the commission of the crime, and as accordingl( charged ith 9omicide in CriminalCase No. ,</0. Appellant-father contended that at about +5AA oQcloc* 2.1. on the da( of the fiesta, hile he as in the @sala,@ Emerita Colina, one of his visitors, stood and said @there is a =uarrel outside the house.@ Emerita ent out and said @A(, Nestor as stabbed b( 7acho.@ 9e ent out of his house sa the Hictim chasing 7acho. Bhen he sensed that the Hictim as approaching his house, he ent inside and closed the door. &he Hictim tapped on the door and as*ed that he be allo ed inside thin*ing that 7acho as also therein. 9e opened the door and pushed him out but the victim, in turn, pushed him in. 9e then advised the Hictim to go to the hospital. Defense itness !oreto 3odrigue"a corroborated the foregoing version.

2KSgt. Bilfredo 7ermas also declared that in the course of the investigation he had conducted, 7acho confided to him that he had stabbed the Hictim. Appellant-son, for his part, claimed that after the baptism of his child, he had a drin*ing spree ith the latterQs sponsor. 9e got drun* and fell asleep at about ++56A in the morning and after he o*e up at around 656A in the afternoon he heard that the Hictim as stabbed b( 7acho. Assessing the different versions, the Court a quo accorded more credence to that of the prosecution and, as initiall( stated, rendered a verdict of guilt. &he errors that accused-appellants fault the &rial Court ith center on the issue of credibilit(, as ell as on the finding that the circumstances of evident premeditation, treacher( and superior strength attended the commission of the offense. Be find no room for reversal. &he defense insists that it as Deliciano 7acho ho committed the crime. It stresses that the HictimQs ife, &eresita Dacir, even cooperated ith the IN2 &i i 2olice in filing Criminal Case No. ,</? for 9omicide against 7acho et als., onl( to change her mind after the preliminar( investigation had been conducted and thereafter pinpointing father and son instead. &he records disclose, ho ever, that in her Affidavit, ta*en on +? 1a( +/>? $E:h. 0', or the da( after the fatal incident, she had alread( disclosed5 ?. C5 Bho ere those person or persons responsible to $sic' the death of (our husband, if (ou *no P A5 I am suspecting .ES4S CO12E&EN&E and his son, .AI1E CO12E&EN&E as IQve itnessed NES&O3 DACI3 strangled on his nec* b( .ES4S CO12E&EN&E, and his companions ho $sic' I do not *no their names. >. C5 Bh( did (ou happen to suspect .ES4S CO12E&EN&E and his son .AI1E to be the suspect in this particular case to include their companionsP A5 7ecause I have seen .ES4S CO12E&EN&E strangle m( husband.

Bhile .AI1E CO12E&EN&E as also there and several others. +A. C5 Sho ing to (ou, persons in the name $sic' of DE!ICIANO 7AC9O, .ES4S 7AC9O, .4S&INIANO 7AC9O and DANNI CO12E&EN&E, hat can (ou sa( about themP A5 &he( ere the same persons ho stoned our house. Evidentl(, therefore, even the da( after the fateful occurrence, the HictimQs ife had alread( identified accused-appellants as the assailants of the husband and Deliciano 7acho as one ho had stoned the HictimQs house. 1oreover, in the 3e-investigation of Crim. Case No. 1&-,</0 against Deliciano 7acho, and I.S. No. >?-+/,< against father and son, the 2rovincial Discal concluded, in a 3esolution dated ,> November +/>?, that he as @firml( convinced that Deliciano 7acho as not the one ho stabbed Nestor Dacir, despite his demonstration and e:tra-8udicial confession.@ 9e then ordered the case against 7acho dismissed and @that an information for murder be filed against .esus Competente and .aime Competente ith the 3egional &rial Court of &abaco, Alba( $Original records, pp. 0>-?+'. &hat should settle the matter of 7achoQs culpabilit( irrespective of the asseverations of the defense to the contrar( and the alleged @change of mind@ of the HictimQs ido . E(e itness 3osita #alanQs failure to report the incident until +> 1a( +/>? because she did not ant to be involved is not a sufficient basis for re8ecting her testimon(. &he initial reluctance of itnesses and their un illingness to be involved in criminal investigations, are common and have been 8udiciall( declared not to affect credibilit( $2eople v. 2acia, No. ?/0<6, +< .une +//A, +>? SC3A 0,/'. &he defense further assails 3osita #alanQs testimon( that at about +5AA 2.1. she as attending to the #utierre" children at the front (ard of the latterQs residence as being inconsistent ith ph(sical facts in that it as ver( hot at the time. &hat is not necessaril( so, ho ever, as there ere trees in the area $E:h. D, p. <>, original record'.

Accused-appellants also attac* as hearsa( 3ositaQs testimon( that hen the victim as approaching, she heard appellant-father sa( @here he is, here he is@ and heard Aurora Competente confront her son .aime @ h( do (ou have to 8oin (our fatherP@ Dor one, ho ever, the failure of accused-appellants to ob8ect to hearsa( evidence, constitutes a aiver of the right to cross-e:amine the actual itness to the occurrence, thereb( rendering the evidence admissible $2eople v. #arcia, !-<<6?<, ,- April +/-/, >/ SC3A <<A'. Dor another, the testimonies aforesaid ere offered to prove the fact of utterances regardless of their truth and, therefore, ere not hearsa(. In an( case, the utterances can be considered as part of the res gestae% having been made during the incident $3ule +6A, sec. 6?, 3ules of Court'. 2ursuing their attac* on the credibilit( of prosecution itnesses, accused-appellants further aver that the testimon( of the HictimQs eight $>'-(ear-old-son, Sonn( Dacir, is unreliable because of his failure to immediatel( reveal to his mother the identit( of his fatherQs assailants, hich is allegedl( contrar( to human conduct. &he fact remains, ho ever, that the *ne that his mother had itnessed the incident herself. And if he did not tell the police or the baranga( authorities, it as because the( did not as* him an( =uestions. Additionall(, the defense further claims that the prosecution failed to establish the motive behind the incident. &he accepted dictum is, ho ever, that motive is not essential to conviction hen the accused as in this case, are positivel( identified and there is no doubt as to their identit( $Anda(a v. 2eople, #.3. No. -0/6A, > .une +//A, +>? SC3A <+A'. Be turn no to the testimonies of accused-appellants and their itnesses hich, according to the defense, ere incorrectl( re8ected b( the &rial Court. &he records do not bear this out. &he mere denial b( appellant-father of the act of strangling the Hictim can not prevail over the positive identification of him b( prosecution itnesses. 1oreover, the autops( findings confirm that fact of strangulation. &o =uote5 I S E:ternal S +. Nec* at the level of the AdamQs Apple 3ight S Bounds, superficial, near each other, ? in number, 6 of hich are abraded and 6 are scratches. !eft S Abrasion 6 in number, near each other.

&hat autops( report also supports the 2rovincial DiscalQs conclusion that 7acho could not have been the culprit as the latter never mentioned the strangling in his demonstration contrar( to the ph(sical finding of the e:amining ph(sician. Of note as ell is the circumstance that appellant-fatherQs version of the incident is contrar( to human e:perience. After having been stabbed, the Hictim could not be e:pected to still run after 7acho, ho as then allegedl( armed ith a *itchen *nife, and to *noc* on the door of the Competente house. Said Hictim as so badl( ounded that he died soon after arrival at the hospital. 9e as in no position, therefore, to run after his alleged assailant. Appellants-sonQs defense of alibi contains no semblance of truth. Aside from the fact that it can not prevail over positive identification, it has been held that alibi is ea* if established merel( b( the accused themselves and their relatives and not b( credible persons $2eople v. Solis, #.3. No. /6?,/, +> 1arch +//+, +/0 SC3A <A0'. It also ta:es credulit( that appellant-son ould have slept from ++56A A.1. to 65AA 2.1. hile their guests ere celebrating the baptism of his son and at the height of the baranga( @fiesta.@ Correctl( re8ected b( the &rial Court, too, ere the testimonies of the other defense itnesses. &hus, the testimon( of 3oberto Cope that he sa e(e itness 3osita #alan in the house of her father-in-la Dioscoro #alan at nearb( 7aranga( Sugod from ++5AA A.1. to +,5AA 2.1. can hardl( be given eight. &he fiesta as in 7aranga( 7ano not in 7aranga( Sugod. 7esides, it is strange for 3oberto to have *ept atch on the e:act hereabouts of 3osita from ++5AA A.1. to ,5AA 2.1. &he testimonies of !oreto 3odrigue"a, Emerita Colina and Domingo Dacoco, .r. echo appellant-fatherQs version that it as 7acho ho had stabbed the Hictim and can neither be appreciated in the light of the findings of the 2rovincial Discal. &here is the added consideration that most of them are close relations of accusedappellants ho can normall( be e:pected to be biased in their favor, absent credible indications to the contrar(. Nor can the testimon( of 2KSgt. Bilfredo 7ermas be treated differentl(. 9e stated that it as 7acho, not the Competentes, ho as the culprit; that hen he investigated 7acho, the latter confided to him that he had *illed the victim; and that a criminal complaint as filed against 7acho, hich complaint did not include appellant-father-and-son; subse=uentl(, though, the( ere included because of the insistence of the HictimQs ife. 9o ever, considering the result of the reinvestigation b( the 2rovincial Discal, it is clear that 2KSgt. 7ermasQ investigation as hast( and the complaint he filed the ne:t da( after the incident unreliable. &he re-investigation report li*e ise rebuts the presumption that 2KSgt. 7ermas performed his duties in a regular manner.

&he circumstance that the .udge ho rendered the 8udgment as not the one ho heard the itnesses, does not detract from the validit( of the verdict of conviction. Even a cursor( perusal of the Decision ould sho that it as based on the evidence presented during trial and that it as carefull( studied, ith testimonies on direct and cross e:amination as ell as =uestions from the Court carefull( passed upon. Be agree ith the defense, ho ever, that evident premeditation as incorrectl( considered b( the &rial Court as a generic aggravating circumstance. &here is insufficient sho ing that the father and son had previousl( conceived of the commission of the crime and had manifestl( indicated that the( had clung to their determination. In fact, the evidence is ha"( as to hether or not the( had ta*en part in the stoning. 7ut treacher( as, indeed, present. Appellant-sonQs act of stabbing the Hictim hile his father as strangling the latter ho as l(ing face do n flat on the ground indicates that both father and son had emplo(ed means tending to as it did insure the e:ecution of the act of *illing ithout ris* to themselves hich could have arisen from the defense hich the Hictim could have made. 9aving tripped and fallen flat on his face on the ground, the Hictim as in no position to defend himself. Apropos it is to recall that the Hictim as hit on the bac* above his right hip bone. &he crime has been correctl( categori"ed, therefore, as 1urder. &he Court notes ith disma(, ho ever, that the Court a quo @allo ed provisional libert( on the same bail bond@ to accused-appellants $Original record, Order, p. -6A'. &hat is a clear reversible error considering that the( ere sentenced to reclusion perpetua and that ith their conviction evidence of their guilt can not but be strong. Dor this act, the &rial .udge deserves the severest censure, hich e are constrained to impose on her in this case. B9E3EDO3E, e:cept for the modification of the indemnit( to the heirs of the victim, Nestor Dacir, hich is hereb( increased to 20A,AAA.AA in line ith current 8urisprudence, the 8udgment appealed from is hereb( ADDI31ED. !et a Barrant of Arrest issue immediatel( against accused-appellants .aime Competente and .esus Competente. &he( shall each bear one-half of the costs. SO O3DE3ED.

10. G.R. No. 138084

A9r43 10, 2002

MALA,AN INSURAN*E *O., IN*., petitioner, vs. PHILIPPINE NAILS AN" 8IRES *ORPORATION, respondent. BUISUM+ING, J.5 &his petition for revie see*s the reversal of the decision dated September 6A, +//>, of the Court of Appeals in CA-#.3. CH No. <00<-, affirming the decision dated December +A, +//6, of the 3egional &rial Court of 2asig, 1etro 1anila, 7ranch +?6, and the resolution dated 1arch ,0, +///, of the Court of Appeals den(ing the petitionerQs motion for reconsideration.+ 3espondent 2hilippine Nails and Bires Corporation insured against all ris*s its shipment of +A,A06.<AA metric tons of steel billets valued at 2?-,+0?,6AA ith petitioner 1ala(an Insurance Compan( Inc. &he shipment delivered as short b( 6--.+?> metric tons. Dor this shortage, respondent claimed insurance for 2,,?/>,?6-.A<, representing the value of undelivered steel billets, plus customs duties, ta:es and other charges paid b( respondent. 2etitioner refused to pa(.

On .ul( ,>, +//6, respondent filed a complaint against petitioner for sum of mone( ith the 3&C of 2asig representing said lost andKor undelivered cargo. 2etitioner moved to dismiss the complaint on the grounds that it failed to state a cause of action, and that it as filed in the rong venue. &he motion as denied. It thus filed a petition for prohibition ith the Court of Appeals. &his as also denied. 4pon motion for reconsideration, the petition as reinstated. 9o ever, it as eventuall( dismissed b( the Court of Appeals, and its dismissal became final and e:ecutor(. On September >, +//6, respondent filed a motion to admit an amended complaint hich the trial court granted. It sent petitioner summons and a cop( of the complaint on October +6, +//6 and also gave petitioner until October 6+, +//6 to file its ans er. On November <, +//6, respondent moved to declare petitioner in default. &he trial court granted and allo ed thepresentation of evidence e; parte before the branch cler* of court. 3espondent presented its lone itness, .eanne Jing. On November ++, +//6, petitioner filed its ans er ith compulsor( counterclaim. 4pon motion b( the respondent, the trial court e:punged from the records the ans er for late filing. On December +A, +//6, the trial court rendered a 8udgment b( default hich reads5 B9E3EDO3E, premises considered, .udgment is hereb( rendered in favor of plaintiff and against defendant, ordering the latter to pa( the follo ing5 +. 2,,06,,/,?.06 representing the insured value of the lost andKor not delivered 6--.+?> metric tons of steel billets plus legal rate of interest from date of filing of this complaint until full( paid; ,. Difteen $+0' percent of the amount a arded to plaintiff as attorne(Qs fees; and 6. Cost of suit. SO O3DE3ED., 3espondent moved to e:ecute 8udgment pending appeal. &he trial court granted the motion. 1ean hile, petitioner filed its notice of appeal hich as given due course. 2ursuant to the grant of the motion for e:ecution, the trial court issued the corresponding rit. 2etitioner filed apetition for certiorari ith pra(er for a temporar( restraining order to en8oin the implementation of the rit. &he Court of Appeals granted the pra(er for the temporar( restraining order. &he rit of e:ecution as li*e ise sta(ed b( the trial court hich favorabl( considered petitionerQs urgent motion to sta( e:ecution pending appeal and to approve the supersedeas bond.

2ursuant to the notice of appeal, the entire records of the case ere elevated to the Court of Appeals, here petitioner argued that the trial court erred in rendering 8udgment b( default not ithstanding that issues ere 8oined b( petitionerQs filing of an ans er; in a arding damages to respondent based on unauthenticated documentar( evidence and hearsa(; and in admitting documentar( evidence hich is irregular in nature and not in accordance ith the 3ules of Court. &he Court of Appeals concurred ith the trial court and disposed the case thus5 B9E3EDO3E, premises considered, there being no reversible error committed b( the lo er court, the 8udgment appealed from is hereb( ADDI31ED in toto.6 &he Court of Appeals held that the trial court did not abuse its discretion nor err hen it e:punged the ans er from the records because petitioner ans ered a( be(ond the prescribed period. It further held that respondentQs itness, .eanne Jing, as a competent itness because she personall( prepared the documentar( evidence and had personal *no ledge of the allegations in the complaint. In addition, the appellate court said that conclusions and findings of fact of the trial courts ere entitled to great eight on appeal and should not be disturbed unless for strong and cogent reasons, hich ere not present in this case. !astl(, the absence of a ritten report b( the branch cler* of court on the e: parte proceedings did not necessaril( den( petitioner due process. Nothing in the 3ules of Court stated that the absence of the commissionerQs ritten report nullified a 8udgment b( default. &he appellate court observed that if there as a defect, such as onl( procedural that can be aived. 7esides, petitioner as declared in default because of its o n failure to ans er ithin the prescribed period. It cannot claim denial of due process because it as given the opportunit( to be heard. 2etitionerQs motion for reconsideration as denied, hence, this petition alleging that the Court of Appeals erred and acted contrar( to e:isting la and 8urisprudence in5 I. L#IHIN# 23O7A&IHE HA!4E &O &9E 243E!I 9EA3SAI &ES&I1ONI OD 3ES2ONDEN&QS SO!E BI&NESS. II. LADDI31IN# &9E DECISION OD &9E &3IA! CO43& B9IC9 BAS 7ASED ON DOC41EN&A3I EHIDENCE AD1I&&ED BI&9O4& 7EIN# 23O2E3!I A4&9EN&ICA&ED. < Dor resolution no are the follo ing issues5 Bas .eanne JingQs testimon( hearsa(, thus ithout an( probative valueP Should respondent authenticate the documentar( evidence it submitted at the trialP

On the first issue, petitioner 1ala(an Insurance Co., Inc., contends that .eanne JingQs testimon( as hearsa( because she had no personal *no ledge of the e:ecution of the documents supporting respondentQs cause of action, such as the sales contract, invoice, pac*ing list, bill of lading, S#S 3eport, and the 1arine Cargo 2olic(. 2etitioner avers that even though Jing as personall( assigned to handle and monitor the importation of 2hilippine Nails and Bires Corporation, herein respondent, this cannot be e=uated ith personal *no ledge of the facts hich gave rise to respondentQs cause of action. Durther, petitioner asserts, even though she personall( prepared the summar( of eight of steel billets received b( respondent, she did not have personal *no ledge of the eight of steel billets actuall( shipped and delivered. At the outset, e must stress that respondentQs cause of action is founded on breach of insurance contract covering cargo consisting of imported steel billets. &o hold petitioner liable, respondent has to prove, first, its importation of +A,A06.<AA metric tons of steel billets valued at 2?-,+0?,6AA.AA, and second, the actual steel billets delivered to and received b( the importer, namel( the respondent. Bitness .eanne Jing, ho as assigned to handle respondentQs importations, including their insurance coverage, has personal *no ledge of the volume of steel billets being imported, and therefore competent to testif( thereon. 9er testimon( is not hearsa(, as this doctrine is defined in Section 6?, 3ule +6A of the 3ules of Court. 0 9o ever, she is not =ualified to testif( on the shortage in the deliver( of the imported steel billets. She did not have personal *no ledge of the actual steel billets received. Even though she prepared the summar( of the received steel billets, she based the summar( onl( on the receipts prepared b( other persons. 9er testimon( on steel billets received as hearsa(. It has no probative value even if not ob8ected to at the trial.? On the second issue, petitioner avers that Jing failed to properl( authenticate respondentQs documentar( evidence. 4nder Section ,A, 3ule +6,, 3ules of Court,- before a private document is admitted in evidence, it must be authenticated either b( the person ho e:ecuted it, the person before hom its e:ecution as ac*no ledged, an( person ho as present and sa it e:ecuted, or ho after its e:ecution, sa it and recogni"ed the signatures, or the person to hom the parties to the instruments had previousl( confessed e:ecution thereof. In this case, respondent admits that Jing as none of the aforementioned persons. She merel( made the summar( of the eight of steel billets based on the unauthenticated bill of lading and the S#S report. &hus, the summar( of steel billets actuall( received had no proven real basis, and JingQs testimon( on this point could not be ta*en at face value.

2etitioner contends that the Court of Appeals erred in giving imprimatur to the trial courtQs ruling ith regard to the admission of documentar( evidence submitted b( respondent. On this score, e find petitionerQs contention meritorious. 4nder the rules on evidence, documents are either public or private. 2rivate documents are those that do not fall under an( of the enumerations in Section +/, 3ule +6, of the 3ules of Court.> Section ,A/ of the same la , in turn, provides that before an( private document is received in evidence, its due e:ecution and authenticit( must be proved either b( an(one ho sa the document e:ecuted or ritten, or b( evidence of the genuineness of the signature or hand riting of the ma*er. 9ere, respondentQs documentar( e:hibits are private documents. &he( are not among those enumerated in Section +/, thus, their due e:ecution and authenticit( need to be proved before the( can be admitted in evidence. Bith the e:ception concerning the summar( of the eight of the steel billets imported, respondent presented no supporting evidence concerning their authenticit(. +A Conse=uentl(, the( cannot be utili"ed to prove less of the insured cargo andKor the short deliver( of the imported steel billets. In sum, e find no sufficient competent evidence to prove petitionerQs liabilit(. B9E3EDO3E, the petition is #3AN&ED. &he decision of the Court of Appeals dated September 6A, +//> and its resolution on 1arch ,0, +/// in CA-#.3. CH No. <00<- are 3EHE3SED and SE& ASIDE. In lieu thereof, Civil Case No. ?6<<0 is hereb( ordered DIS1ISSED.No pronouncement as to costs. SO O3DE3ED.

11. 1G.R. No. 128%38. Febr&-r 28, 20012

S** *HEMI*ALS *ORPORATION, petitioner, vs. THE HONORA+LE *OURT OF APPEALS, STATE IN#ESTMENT HOUSE, IN*., "ANILO ARRIETA -./ LEOPOL"O HALILI, respondents. RESOLUTION BUISUM+ING, J.7 7efore us is a petition for revie , pursuant to 3ule <0 of the 3ules of Court, of the Decision of the Court of Appeals dated in November +,, +//? in CA-#.3. CH No. <0-<, entitled <$tate Investment 1ouse% Inc.% v. .anilo &rrieta% et al.% and $CC Chemical Corporation.= &he =uestioned decision affirmed in toto the decision of the 3egional &rial Court of 1anila, 7ranch 66, dated 1arch ,,, +//6, in Civil Case No. ><-,0>>+, the dispositive portion of hich reads5 B9E3EDO3E, premises considered, 8udgment is hereb( rendered in favor of the plaintiff and against the defendants ordering the latter to pa( 8ointl( and severall( the plaintiff the follo ing5 a' &o pa( plaintiff State Investment 9ouse, Inc., the sum of 2+0A,<>6.+? ith interest thereon at 6AX per annum rec*ond $sic' from April, +/>< until the hole amount is full( paid; b' &o pa( plaintiff an amount e=uivalent to ,0X of the total amount due and demandable as attorne()s fees and to pa( the cost$s' of suit. SO O3DE3ED.M+N E=uall( challenged in this petition is the 3esolution of the appellate court dated Debruar( ,-, +//-, den(ing SCC Chemicals Corporation)s motion for reconsideration.

&he bac*ground of this case, as culled from the decision of the Court of Appeals, is as follo s5 On December +6, +/>6, SCC Chemicals Corporation $SCC for brevit(' through its chairman, private respondent Danilo Arrieta and vice president, 2ablo $2ablito' 7ermundo, obtained a loan from State Investment 9ouse Inc., $hereinafter SI9I' in the amount of 2+,/,>,<.<>. &he loan carried an annual interest rate of 6AX plus penalt( charges of ,X per month on the remaining balance of the principal upon non-pa(ment on the due date-.anuar( +,, +/><. &o secure the pa(ment of the loan, Danilo Arrieta and private respondent !eopoldo 9alili e:ecuted a Comprehensive Suret( Agreement binding themselves 8ointl( and severall( to pa( the obligation on the maturit( date. SCC failed to pa( the loan hen it matured. SI9I then sent demand letters to SCC, Arrieta and 9alili, but not ithstanding receipt thereof, no pa(ment as made. On August ,, +/><, SI9I filed Civil Case No. ><-,0>>+ for a sum of mone( ith a pra(er for preliminar( attachment against SCC, Arrieta, and 9alili ith the 3egional &rial Court of 1anila. In its ans er, SCC asserted SI9I)s lac* of cause of action. 2etitioner contended that the promissor( note upon hich SI9I anchored its cause of action as null, void, and of no binding effect for lac* or failure of consideration. &he case as then set for pre-trial. &he parties ere allo ed to meet out-ofcourt in an effort to settle the dispute amicabl(. No settlement as reached, but the follo ing stipulation of facts as agreed upon5 +. 2arties agree that this Court has 8urisdiction over the plaintiff and the defendant and that it has 8urisdiction to tr( and decide this case on its merits and that plaintiff and the defendant have each the capacit( to sue and to be sued in this present action; ,. 2arties agree that plaintiff sent a demand letter to the defendant SCC Chemical Corporation dated April <, +/>< together ith a statement of account of even date hich ere both received b( the herein defendant; and 6. 2arties finall( agree that the plaintiff and the defendant SCC Chemical Corporation the latter acting through defendants Danilo E. Arrieta and 2ablito 7ermundo e:ecuted a promissor( note last December +6, +/>6 for the amount of 2+,/,>,<.<> ith maturit( date on .anuar( +,, +/><.M,N &he case then proceeded to trial on the sole issue of hether or not the defendants ere liable to the plaintiff and to hat e:tent as the liabilit(. SI9I presented one itness to prove its claim. &he cross-e:amination of said itness as postponed several times due to one reason or another at the instance of

either part(. &he case as calendared several times for hearing but each time, SCC or its counsel failed to appear despite notice. SCC as finall( declared b( the trial court to have aived its right to cross-e:amine the itness of SI9I and the case as deemed submitted for decision. On 1arch ,,, +//6, the lo er court promulgated its decision in favor of SI9I. Aggrieved b( the verdict, SCC elevated the case to the Court of Appeals here it as doc*eted as CA-#.3. CH No. <0-<,. On appeal, SCC contended that SI9I had failed to sho , b( a preponderance of evidence, that the latter had a case against it. SCC argued that the lone itness presented b( SI9I to prove its claim as insufficient as the competenc( of the itness as not established and there as no sho ing that he had personal *no ledge of the transaction. SCC further maintained that no proof as sho n of the genuineness of the signatures in the documentar( e:hibits presented as evidence and that these signatures ere neither mar*ed nor offered in evidence b( SI9I. Dinall(, SCC pointed out that the original copies of the documents ere not presented in court. On November +,, +//?, the appellate court affirmed in toto the 8udgment appealed from. On December ++, +//? SCC filed its motion for reconsideration, Court of Appeals denied in its resolution dated Debruar( ,-, +//-. hich the

9ence, petitioner)s recourse to this Court rel(ing on the follo ing assignments of error5 I &9E 3ES2ONDEN& CO43& OD A22EA!S #3AHE!I E33ED IN DINDIN# &9A& 23IHA&E 3ES2ONDEN& 23OHED I&S CA4SE OD AC&ION AND OHE3CA1E I&)S 743DEN OD 23OOD. II &9E 3ES2ONDEN& CO43& OD A22EA!S #3AHE!I E33ED IN ABA3DIN# A&&O3NEI)S DEES &O &9E 23IHA&E 3ES2ONDEN&. Be find the pertinent issues submitted for resolution to be5 $+' Bhether or not the Court of Appeals made an error of la in holding that private respondent SI9I had proved its cause of action b( preponderant evidence; and

$,' Bhether or not the Court of Appeals erred in upholding the a ard of attorne()s fees to SI9I. Anent the irst issue, petitioner contends that SI9I introduced documentar( evidence through the testimon( of a itness hose competence as not established and hose personal *no ledge of the truthfulness of the facts testified to as not demonstrated. It argues that the same as in violation of Sections 6? M6N and <>, M<N 3ule +6A of the 3ules of Court and it as manifest error for the Court of Appeals to have ruled other ise. In addition, SCC points out that the sole itness of SI9I did not profess to have seen the document presented in evidence e:ecuted or ritten b( SCC. &hus, no proof of its genuineness as adduced. SI9I thus ran afoul of Section ,,M0N 3ule +6, of the 3ules of Court, hich re=uires proof of due e:ecution and authenticit( of private documents before the same can be received as evidence. 2etitioner li*e ise submits that none of the signatures affi:ed in the documentar( evidence presented b( SI9I ere offered in evidence. It vehementl( argues that such as in violation of the re=uirement of Section 6<, M?N 3ule +6, of the 3ules of Court. It as thus an error of la on the part of the appellate court to consider the same. Dinall(, petitioner posits that the non-production of the originals of the documents presented in evidence allo s the presumption of suppression of evidence provided for in Section 6 $e',M-N 3ule +6+ of the 3ules of Court, to come into pla(. 2etitioner)s arguments lac* merit; the( fail to persuade us. Be note that the Court of Appeals found that SCC failed to appear several times on scheduled hearing dates despite due notice to it and counsel. On all those scheduled hearing dates, petitioner as supposed to cross-e:amine the lone itness offered b( SI9I to prove its case. 2etitioner no charges the appellate court ith committing an error of la hen it failed to disallo the admission in evidence of said testimon( pursuant to the Yhearsa( ruleZ contained in Section 6?, 3ule +6A of the 3ules of Court. 3ule +6A, Section 6? reads5 SEC. 6?. Testimony generally con ined to personal knowledge> hearsay e;cluded . F A itness can testif( onl( to those facts hich he *no s of his personal *no ledge; that is, hich are derived from his o n perception, e:cept as other ise provided in these rules. 2etitioner)s reliance on Section 6?, 3ule +6A of the 3ules of Court is misplaced. As a rule, hearsa( evidence is e:cluded and carries no probative value. M>N 9o ever, the rule does admit of an e:ception. Bhere a part( failed to ob8ect to hearsa( evidence, then the same is admissible. M/N &he rationale for this e:ception is to be found in the right of a litigant to cross-e:amine. It is settled that it is the opportunit( to cross-e:amine hich negates the claim that the matters testified to b( a itness are hearsa(. M+AN 9o ever, the right to cross-e:amine ma( be aived. &he

repeated failure of a part( to cross-e:amine the itness is an implied aiver of such right. 2etitioner as afforded several opportunities b( the trial court to crosse:amine the other part()s itness. 2etitioner repeatedl( failed to ta*e advantage of these opportunities. No error as thus committed b( the respondent court hen it sustained the trial court)s finding that petitioner had aived its right to crosse:amine the opposing part()s itness. It is no too late for petitioner to be raising this matter of hearsa( evidence. Nor as the assailed testimon( hearsa(. &he Court of Appeals correctl( found that the itness of SI9I as a competent itness as he testified to facts, hich he *ne of his personal *no ledge. &hus, the re=uirements of Section 6?, 3ule +6A of the 3ules of Court as to the admissibilit( of his testimon( ere satisfied. 3especting petitioner)s other submissions, the same are moot and academic. As correctl( found b( the Court of Appeals, petitioner)s admission as to the e:ecution of the promissor( note b( it through private respondent Arrieta and 7ermundo at pre-trial sufficed to settle the =uestion of the genuineness of signatures. &he admission having been made in a stipulation of facts at pre-trial b( the parties, it must be treated as a 8udicial admission. 4nder Section <, M++N 3ule +,/ of the 3ules of Court, a 8udicial admission re=uires no proof. Nor ill petitioner)s reliance on the Ybest evidence ruleZ M+,N advance its cause. 3espondent SI9I had no need to present the original of the documents as there as alread( a 8udicial admission b( petitioner at pre-trial of the e:ecution of the promissor( note and receipt of the demand letter. It is no too late for petitioner to be =uestioning their authenticit(. Its admission of the e:istence of these documents as sufficient to establish its obligation. 2etitioner failed to submit an( evidence to the contrar( or proof of pa(ment or other forms of e:tinguishment of said obligation. No reversible error as thus committed b( the appellate court hen it held petitioner liable on its obligation, pursuant to Article ++0/ of the Civil Code hich reads5 A3&. ++0/. Obligations arising from contracts have the force of la bet een the contracting parties and should be complied ith in good faith. On the second issue, petitioner charges the Court of Appeals ith reversible error for having sustained the trial court)s a ard of attorne()s fees. 2etitioner relies on Radio Communications o the Philippines v. Rodrigue/% +>, SC3A >//,/A/ $+//A', here e held that hen attorne()s fees are a arded, the reason for the a ard of attorne()s fees must be stated in the te:t of the court)s decision. 2etitioner submits that since the trial court did not state an( reason for a arding the same, the a ard of attorne()s fees should have been disallo ed b( the appellate court. Be find for petitioner in this regard.

It is settled that the a ard of attorne()s fees is the e:ception rather than the rule, hence it is necessar( for the trial court to ma*e findings of fact and la , hich ould bring the case ithin the e:ception and 8ustif( the grant of the a ard. M+6N Other ise stated, given the failure b( the trial court to e:plicitl( state the rationale for the a ard of attorne()s fees, the same shall be disallo ed. In the present case, a perusal of the records sho s that the trial court failed to e:plain the a ard of attorne()s fees. Be hold that the same should thereb( be deleted. 8HEREFORE, the instant petition is 2A3&!I #3AN&ED. &he decision dated November +,, +//? of the Court of Appeals is ADDI31ED BI&9 1ODIDICA&ION that the a ard of attorne()s fees to private respondent SI9I is hereb( deleted. No pronouncement as to costs. SO OR"ERE". 12. G.R. No. 140030 "ece:ber 3, 2002

REPU+LI* OF THE PHILIPPINES, re9re(e.te/ b tCe "e9-rt:e.t oD E.E4ro.:e.t -./ N-t&r-3 Re(o&rce(, petitioner, vs. HEIRS OF FELIPE ALE$AGA SR., re9re(e.te/ b ROBUETA ALE$AGA, FELIPE ALE$AGA $R., MARIA "ULLA ALE$AGA, FELIPE ALE$AGA III, ROBUETA ALE$AGA, $ENNIFER ALE$AGA, E#ERETTE *APUN"AN, AN" L,NETTE ALE$AGAF THE PHILIPPINE NATIONAL +AN< -./ THE REGISTER OF "EE"S OF RO;AS *IT,, respondents. DECISION PANGANI+AN, J.: Be reiterate the familiar doctrine that a free patent obtained through fraud or misrepresentation is void. Durthermore, the one-(ear prescriptive period provided in the 2ublic !and Act does not bar the State from as*ing for the reversion of propert( ac=uired through such means. Statement of the Case 7efore us is a 2etition for 3evie on Certiorari under 3ule <0 of the 3ules of Court, assailing the November +0, ,AAA Decision+ of the Court of Appeals $CA' in CA-#3 CH No. <<0?>. &he decretal portion of the challenged Decision reads as follo s5 @B9E3EDO3E, the appealed decision is hereb( 3EHE3SED, SE& ASIDE and 3ECA!!ED.@, &he Dacts &he factual antecedents of the case are summari"ed b( the CA thus5 @On December ,>, +/->, M3espondentN Delipe Ale8aga, Sr. : : : filed ith the District !and Office, 3o:as Cit(, Dree 2atent Application No. $HI-,' ><<, covering a parcel of land identified as !ot +, 1li-A?-AAAA,A-D, ith

an area of .6>// hectares, more or less located at Dumolog, 3o:as Cit( $E:h. @A@; E:h @/@'. It appears that on December ,-, +/->, hen the application as e:ecuted under oath, Efren !. 3ecio, !and Inspector, submitted a report of his investigation and verification of the land to the District !and Office, 7ureau of !ands, Cit( of 3o:as. On 1arch +<, +/-/, the District !and Officer of 3o:as Cit( approved the application and the issuance of MaN Dree 2atent to the applicant. On 1arch +?, +/-/, the patent as also ordered to be issued and the patent as for arded to defendant 3egister of Deeds, Cit( of 3o:as, for registration and issuance of the corresponding Certificate of &itle. &hereafter, Original Certificate of &itle No. 2-+0 Dree 2atent No. $HI-,' 660> as issued to MrespondentN b( defendant 3egister of Deeds. @On April <, +/-/, the heirs of Ignacio Arrobang, through counsel in a letter-complaint re=uested the Director of !ands, 1anila, for an investigation of the District !and Officer, 3o:as Cit(, and the 3egional Office, 3egion HI, Iloilo Cit(, for irregularities in the issuance of the title of a foreshore land in favor of MrespondentN. Isagani Cartagena, Supervising Special Investigator, !egal Division, !and 1anagement 7ureau $formerl( 7ureau of !ands' submitted his 3eport dated April +-, +/>/. &he Chief, !egal Division, !and 1anagement 7ureau, 1anila, recommended to the Director of !ands appropriate civil proceeding for the cancellation of Dree 2atent &itle No. $HI-,' 660> and the corresponding Original Certificate of &itle No. 2-+0 in the name of MrespondentN. @In the meantime, MrespondentN obtained a NACIDA loan under the Cottage Industr( #uarantee and !oan Dund b( the defendant 2hilippine National 7an* $hereinafter referred to as 2N7' e:ecuted in Cebu Cit( in the amount of 2+AA,AAA.AA on August +>, +/>+. &he loan as secured b( a real estate mortgage in favor of defendant 2N7. &he promissor( note of appellant as annotated at the bac* of the title. @On April +>, +//A, the government through the Solicitor #eneral instituted an action for AnnulmentKCancellation of 2atent and &itle and 3eversion against MrespondentN, the 2N7 of 3o:as Cit( and defendant 3egister of Deeds of 3o:as Cit( covering Dree 2atent Application $HI-,' ><<, of the parcel of land ith an area of .6>// hectares more or less located at Dumolog, 3o:as Cit(. @On November +-, +//A, hile the case is pending hearing, MrespondentN died. 9e as substituted b( his ife 3o=ueta Ale8aga and his children, namel(5 Everette Ale8aga, !(nnette Ale8aga, Delipe Ale8aga, .r., 1aria Dulla Ale8aga. 3o=ueta Ale8aga, .ennifer Ale8aga and Delipe Ale8aga III. ::: ::: :::

VB9E3EDO3E, 8udgment is rendered declaring that the approval of Dree 2atent Application No. 660> and issuance of Original Certificate of &itle No. 2-+0 in the name of Delipe Ale8aga is b( means of fraud hence, null and void ab initio and the court orders5 Va' the cancellation of the approval of the application No. $HI-,' ><<, covering !ot No. +, 1li-A?-AAAA,A-D ith an area of . 6>// hectares, more or less, located at Dumulog, 3o:as Cit(; Vb' the cancellation of Original Certificate of &itle No. 2-+0, Dree 2atent No. $HI-,' 660> in the name of Delipe Ale8aga; Vc' the land covered thereb( as above described is reverted to the mass of the public domain; Vd' the defendants, 9eirs of Delipe Ale8aga Sr. or defendant, 2hilippine National 7an*, 3o:as Cit( 7ranch, to surrender the o ner)s duplicate cop( of above described Original Certificate of &itle No. 2-+0 to the 3egister of Deeds $no 3egistries of !and &itles and Deeds', 3o:as Cit(; Ve' the defendant, 3egister of Deeds, 3o:as Cit(, to cancel Original Certificate of &itle No. 2-+0 and the o ner)s duplicate cop( of said title surrendered b( above stated defendants; Vf' defendant)s, 2hilippine National 7an*, cross-claim is dismissed. @Costs against the defendants 9eirs of Delipe, Ale8aga, Sr.)@ 6 3uling of the Court of Appeals In reversing the 3&C, the CA ruled that petitioner failed to prove its allegation that respondents had obtained the free patent and the Certificate of &itle through fraud and misrepresentation.< &he appellate court li*e ise held that, assuming there as misrepresentation or fraud as claimed b( petitioner, the action for reversion should have been brought ithin one $+' (ear from the registration of the patent ith the 3egistr( of Deeds.0 Durther, the CA brushed aside as hearsa( Isagani Cartagena)s testimon( that !and Inspector Efren !. 3ecio had not conducted an investigation on the free patent application of Delipe Ale8aga Sr.? &he CA added that petitioner had failed to support

@After hearing, the MtrialN court in its dispositive portion decreed as follo s5

its claim that the lot covered b( respondent)s free patent and title as foreshore land.9ence, this 2etition.> Issues 2etitioner raises the follo ing issues for this Court)s consideration5 @I &he 9onorable Court of Appeals erred in not finding that the case is alread( final and e:ecutor( as against respondent 2N7. @II &he Court of Appeals erred in not considering that petitioner has proven the allegations to the Complaint. @III &he 9onorable Court of Appeals erred in declaring that the action for reversion is unavailing.@/ Simpl( stated, the issues can be summed up into t o5 $+' the efficac( of the grant of the free patent and $,' the indefeasibilit( of the Certificate of &itle issued in conse=uence thereof. &his Court)s 3uling &he 2etition is meritorious. Dirst Issue5 Efficac( of the #rant 2etitioner argues that it has proven fraud in the issuance of 3espondent Ale8agas) free patent and Certificate of &itle. +A It also avers that 3espondent 2N7 has failed to file a timel( Notice of Appeal.

On the other hand, the Ale8agas contend that the( have ac=uired a vested right over the parcel of land covered b( OC& No. 2-+0 b( virtue of their proven open, actual, e:clusive and undisputed possession of the land for more than 6A (ears. ++ At the outset, e must immediatel( clarif( that the records sho receipt b( 3espondent 2N7 of a cop( of the Decision on October ,-, not on October 6, +//6 as alleged b( petitioner.+, Durther, the ban* filed its Notice of Appeal on November /, +//6, ithin the +0-da( reglementar( period. In addition, e must point out that the essential issue raised in this 2etition -- the presence of fraud -- is factual. As a general rule, this Court does not revie factual matters.+6 9o ever, the instant case falls under one of the e:ceptions, because the findings of the CA conflict ith those of the 3&C and ith the evidence on record. +< Be begin our resolution of this issue ith the ell-settled rule that the part( alleging fraud or mista*e in a transaction bears the burden of proof. +0 &he circumstances evidencing fraud are as varied as the people ho perpetrate it in each case. +? It ma( assume different shapes and forms; it ma( be committed in as man( different a(s.+- &hus, the la re=uires that it be established b( clear and convincing evidence.+> In the case before us, e find that petitioner has adduced a preponderance of evidence before the trial court, sho ing manifest fraud in procuring the patent.+/ &his Court agrees ith the 3&C that in obtaining a free patent over the lot under scrutin(, petitioner had resorted to misrepresentation or fraud, signs of hich ere,A ignored b( the Court of Appeals.,+ Dirst, the issuance of the free patent as not made in accordance ith the procedure laid do n b( Common ealth Act No. +<+, other ise *no n as the 2ublic !and Act.,, 4nder Section /+ thereof, an investigation should be conducted for the purpose of ascertaining hether the material facts set out in the application are true.,6 Durther, after the filing of the application, the la re=uires sufficient notice to the municipalit( and the barrio here the land is located, in order to give adverse claimants the opportunit( to present their claims. ,< Note that this notice and the verification and investigation of the parcel of land are to be conducted after an application for free patent has been filed ith the 7ureau of !ands. In this case, ho ever, Delipe Ale8aga Sr.)s Application for Dree 2atent ,0 as dated and filed on December ,>, +/->. On the other hand, the Investigation E Herification 3eport,? prepared b( !and Inspector Elfren !. 3ecio of the District !and Office of

the 7ureau of !ands of 3o:as Cit( as dated December ,-, +/->. In that 3eport, he stated that he had conducted the @necessar( investigation and verification in the presence of the applicant.@ Even if e accept this statement as gospel truth, the violation of the rule cannot be condoned because, obviousl(, the re=uired notice to adverse claimants as not served. Evidentl(, the filing of the application and the verification and investigation allegedl( conducted b( 3ecio ere precipitate and be(ond the pale of the 2ublic !and Act.,- As correctl( pointed out b( the trial court, investigation and verification should have been done onl( after the filing of the application. 9ence, it ould have been highl( anomalous for 3ecio to conduct his o n investigation and verification on December ,-, +//>, a da( before Delipe Ale8aga Sr. filed the Application for Dree 2atent.,> It must also be noted that hile the Ale8agas insist that an investigation as conducted, the( do not dispute the fact that it preceded the filing of the application.,/ Second, the claim of the Ale8agas that an actual investigation as conducted is not sustained b( the Herification E Investigation 3eport itself, hich bears no signature.6A &heir reliance on the presumption of regularit( in the performance of official dut(6+ is thus misplaced. Since 3ecio)s signature does not appear on the December ,-, +/-> 3eport, there can be no presumption that an investigation and verification of the parcel of land as actuall( conducted. Strangel(, respondents do not proffer an( e:planation h( the Herification E Investigation 3eport as not signed b( 3ecio. Even more important and as ill later on be e:plained, this alleged presumption of regularit( -- assuming it ever e:isted -- is overcome b( the evidence presented b( petitioner. &hird, the report of Special Investigator Isagani 2. Cartagena has not been successfull( rebutted. In that report, 3ecio supposedl( admitted that he had not actuall( conducted an investigation and ocular inspection of the parcel of land. Cartagena)s statement on 3ecio)s alleged admission ma( be considered as @independentl( relevant.@ A itness ma( testif( as to the state of mind of another person -- the latter)s *no ledge, belief, or good or bad faith -- and the former)s statements ma( then be regarded as independentl( relevant ithout violating the hearsa( rule.6, &hus, because Cartagena too* the itness stand and opened himself to crosse:amination, the Investigation 3eport66 he had submitted to the director of the 7ureau of !ands constitutes part of his testimon(. &hose portions of the report that consisted of his personal *no ledge, perceptions and conclusions are not hearsa(. 6< On the other hand, the part referring to the statement made b( 3ecio ma( be considered as independentl( relevant.60

&he doctrine on independentl( relevant statements holds that conversations communicated to a itness b( a third person ma( be admitted as proof that, regardless of their truth or falsit(, the( ere actuall( made. Evidence as to the ma*ing of such statements is not secondar( but primar(, for in itself it $a' constitutes a fact in issue6? or $b' is circumstantiall( relevant to the e:istence of such fact. 6Since Cartagena)s testimon( as based on the report of the investigation he had conducted, his testimon( as not hearsa( and as, hence, properl( admitted b( the trial court.6> 7ased on the foregoing badges of fraud, e sustain petitioner)s contention that the free patent granted to Delipe Ale8aga Sr. is void. 6/ Such fraud is a ground for impugning the validit( of the Certificate of &itle. <A &he invalidit( of the patent is sufficient basis for nullif(ing the Certificate of &itle issued in conse=uence thereof, since the latter is merel( evidence of the former. <+ Heril(, e must uphold petitioner)s claim that the issuance of the Ale8agas) patent and title as tainted ith fraud.<, Second Issue5 Indefeasibilit( of &itle 2etitioner contends that the State has an imprescriptible right to cause the reversion of a piece of propert( belonging to the public domain. <6 On the other hand, the Ale8agas claim that, pursuant to Section 6, of 2D +0,/<< -- other ise *no n as the 2ropert( 3egistration Decree -- the one-(ear period for reversion has alread( lapsed.<0 &hus, the State)s Complaint for reversion should be dismissed. Be agree ith petitioner. &rue, once a patent is registered and the corresponding certificate of title issued, the land covered b( them ceases to be part of the public domain and becomes private propert(. Durther, the &orrens &itle issued pursuant to the patent becomes indefeasible a (ear after the issuance of the latter. <? 9o ever, this indefeasibilit( of a title does not attach to titles secured b( fraud and misrepresentation.<- Bell-settled is the doctrine that the registration of a patent under the &orrens S(stem does not b( itself vest title; it merel( confirms the registrant)s alread( e:isting one. Heril(, registration under the &orrens S(stem is not a mode of ac=uiring o nership. <> &herefore, under Section +A+ of Common ealth Act No. +<+, </ the State -- even after the lapse of one (ear -- ma( still bring an action for the reversion to the public domain of land that has been fraudulentl( granted to private individuals. 0A Durther,

this indefeasibilit( cannot be a bar to an investigation b( the State as to ho the title has been ac=uired, if the purpose of the investigation is to determine hether fraud has in fact been committed in securing the title. 0+ In the case before us, the indefeasibilit( of a certificate of title cannot be invo*ed b( the Ale8agas, hose forebear obtained the title b( means of fraud. 0, 2ublic polic( demands that those ho have done so should not be allo ed to benefit from their misdeed.06 &hus, prescription and laches ill not bar actions filed b( the State to recover its o n propert( ac=uired through fraud b( private individuals. 0< &his is settled la .00 2rohibition Against Alienation or Encumbrance Assuming arguendo that the Ale8agas) title as validl( issued, there is another basis for the cancellation of the grant and the reversion of the land to the public domain. Section ++> of Common ealth Act No. +<+0? proscribes the encumbrance of a parcel of land ac=uired under a free patent or homestead ithin five (ears from its grant.0-&he prohibition against an( alienation or encumbrance of the land grant is a proviso attached to the approval of ever( application. 0> Durther, corporations are e:pressl( forbidden b( la to have an( right or title to, or interest in, lands that are granted under free or homestead patents; or an( improvements thereon. &he( are forbidden from en8o(ing such right, title or interest, if the( have not secured the consent of the grantee and the approval of the secretar( of the Department of Agriculture and Natural 3esources; and if such lands are to be devoted to purposes other than education, charit(, or easement of a(. 0/ In the case at bar, Dree 2atent No. $HI-,' 660>?A as approved and issued on 1arch +<, +/-/. Corresponding Original Certificate of &itle No. 2-+0?+ as issued on the same date. On August +>, +/>+, or t o $,' (ears after the grant of the free patent, Delipe Ale8aga Sr. obtained from 3espondent 2N7 a loan?, in the amount of 2+AA,AAA. Despite the statement on the title certificate itself that the land granted under the free patent shall be inalienable for five $0' (ears from the grant, a real estate mortgage as nonetheless constituted on the parcel of land covered b( OC& No. 2-+0.?6 In his testimon(, #abriel D. Aranas .r., then Cashier III of respondent ban*, even admitted that the 2N7 as a are of such restriction. @CO43& Iou testified 1r. Aranas that (ou inspected the title also hen (ou credit investigated the loan applicant Delipe Ale8aga and (ou have personall( e:amined thisP A Ies, (our 9onor.

CO43& Do (ou conclude that this Original Certificate of &itle is a MfreeN patentP A Ies, (our 9onor. CO43& And this MfreeN patent as granted on 1arch +/, +/-/. A Ies, (our honor. CO43& And as such MfreeN patent it cannot be alienated e:cept MtoN the government or ithin five (ears from its issuanceP A Ies, (our honor. CO43& Bh( did (ou recommend the loanP A 7ecause it is 8ust a mortgage.@?< &hus, the mortgage e:ecuted b( 3espondent Delipe Ale8aga Sr. falls s=uarel( ithin the term encumbrance proscribed b( Section ++> of the 2ublic !and Act. ?0 A mortgage constitutes a legal limitation on the estate, and the foreclosure of the mortgage ould necessaril( result in the auction of the propert(. ?? As earl( as 2ascua v. &alens,?- e have e:plained the rationale for the prohibition against the encumbrance of a homestead -- its lease and mortgage included -- an encumbrance hich, b( analog(, applies to a free patent. Be ruled as follo s5 @It is ell-*no n that the homestead la s ere designed to distribute disposable agricultural lots of the State to land-destitute citi"ens for their home and cultivation. 2ursuant to such benevolent intention the State prohibits the sale or encumbrance of the homestead $Section ++?' ithin five (ears after the grant of the patent.@ Durther, an encumbrance on a parcel of land ac=uired through free patent constitutes sufficient ground for the nullification of such grant, as provided under Common ealth Act No. +<+, hich e =uote5 @SEC. +,<. An( ac=uisition, conve(ance, alienation, transfer, or other contract made or e:ecuted in violation of an( of the provisions of sections one hundred and eighteen, one hundred and t ent(, one hundred and t ent(-one, one hundred and t ent(-t o, and one hundred and t ent(-three of this Act shall be unla ful and null

and void from its e:ecution and shall produce the effect of annulling and canceling the grant, title, patent, or permit originall( issued, recogni"ed or confirmed, actuall( or presumptivel(, and cause the reversion of the propert( and its improvements to the State.@ 1ortgage over a parcel of land ac=uired through a free patent grant nullifies the a ard and constitutes a cause for the reversion of the propert( to the state, as e held in 3epublic v. Court of Appeals5?> @&he foregoing legal provisions clearl( proscribe the encumbrance of a parcel of land ac=uired under a free patent or homestead ithin five (ears from the grant of such patent. Durthermore, such encumbrance results in the cancellation of the grant and the reversion of the land to the public domain.@?/ &o compl( ith the condition for the grant of the free patent, ithin five (ears from its issuance, Delipe Ale8aga Sr. should not have encumbered the parcel land granted to him. &he mortgage he made over the land violated that condition. -A 9ence, the propert( must necessaril( revert to the public domain, pursuant to Section +,< of the 2ublic !and Act. B9E3EDO3E, the 2etition is #3AN&ED and the assailed Decision SE& ASIDE. &he Decision of the 3&C of 3o:as Cit( $7ranch +0' dated October ,-, +//6 is 3EINS&A&ED. No costs. SO O3DE3ED.

"E*ISION *ALLE$O, SR., $.7 &his case as certified to this Court b( the Court of Appeals under Section +<, 3ule +,< of the 3ules of Court, as amended. &he Court of Appeals affirmed the Decision+ of the trial court dated September +/, +//0 convicting the appellant of murder, as principal b( direct participation, and set aside the Order of the trial court dated November +-, +//0 modif(ing its decision and convicting the appellant of murder, but onl( as accomplice. TCe Procee/4.'( 4. tCe Tr4-3 *o&rt On August ++, +//6, an Information as filed in the 3egional &rial Court of &angub Cit( charging the appellant of murder. &he accusator( portion of the Information reads5 &hat on or about the ,Ath da( of .ul(, +//6, at +,5AA midnight, more or less, in 7aranga( 2angabuan, &angub Cit(, 2hilippines, and ithin the 8urisdiction of this 9onorable Court, the above named accused, ith treacher( and evident premeditation, and ith intent to *ill, did then and there, illfull(, unla full( and feloniousl( shot one 2erlito Ollanes resulting in the instantaneous death of the victim. CON&3A3I &O !AB ith the =ualif(ing circumstances of treacher( and evident premeditation., &he appellant as arraigned, assisted b( counsel, and entered a plea of not guilt(. &he prosecution then adduced testimonial and documentar( evidence and rested its case. &he appellant also rested his case after adducing his evidence. &he prosecution then adduced rebuttal evidence and presented Daniel Suma(lo as surrebuttal itness. Suma(lo declared that the appellant did not *ill the victim, but also stated that he did not *no the *iller. &he appellant, thereafter, closed the presentation of his evidence.

13. G.R. No. 1482%7

M-rcC 17, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. *ESARIO MONTA6E! -./ "ANIEL SUMA,LO, accused. *ESARIO MONTA6E!, appellant.

7efore the court could render 8udgment, Daniel Suma(lo gave a statement on 1a( +<, +//< to S2O6 .ulius 3osales admitting to having shot the victim. 9is mother, !ucia Suma(lo, e:ecuted a separate affidavit corroborating that of her son. &he appellant then filed a motion to re-open the trial to enable him to present Daniel Suma(lo. Suma(lo testified that he e:ecuted his statement ith full *no ledge of its contents and that he as not coerced and intimidated into ma*ing it. &he court granted the appellant)s motion and allo ed him to present Suma(lo as his itness.

An Amended Information as filed on .ul( ,-, +//< considering Daniel Suma(lo as an additional accused. &he accusator( portion of the Amended Information reads as follo s5 &hat on or about the ,Ath da( of .ul( +//6, at +,5AA midnight, more or less, in 7aranga( 2angabuan, &angub Cit(, 2hilippines and ithin the 8urisdiction of this 9onorable Court, the above-named accused, conspiring and helping one another, ith treacher( and evident premeditation, and ith intent to *ill, did then and there, illfull(, unla full( and feloniousl( shot one 2erlito Ollanes resulting in the instantaneous death of the victim. CON&3A3I &O !AB ith the =ualif(ing circumstance of treacher( and evident premeditation.6 On April -, +//0, Suma(lo as arraigned, assisted b( counsel, and ith conformit( of the victim)s father and the public prosecutor, entered a plea of guilt( to the lesser crime of homicide. EE4/e.ce Dor tCe Pro(ec&t4o. Edmundo Ollanes testified that in the evening of .ul( ,A, +//6, he as fishing along the seashore at 2angabuan, &oledo Cit( ith .oven 9intoga(a and his (ounger brother, 2erlito Ollanes. &he( stopped fishing b( ++5AA a.m., sold their catch, and ent home. Edmundo too* a shortcut, hile .oven and 2erlito al*ed home together. 9e and 2erlito had a flashlight ith them, hile .oven carried a *erosene lamp. 2erlito)s house as onl( about fort( meters from his, and .oven lived onl( about eighteen meters a a(. As Edmundo as climbing the stairs to his house, he heard gunshot coming from the direction of the house of 2erlito. 9e rushed to the scene and passed b( .oven)s house. 9e then sa his brother l(ing prostrate nearb(. As he as facing to ards the ground, the left side of his face tilted to ards his left shoulder, he sa the appellant, ho as armed ith a long firearm. Edmundo carried his brother in his arms and noticed the gunshot ounds on the latter)s chest. 9e as still alive, but barel( breathing. 2erlito told him that he as on the verge of death. Bhen Edmundo as*ed 2erlito ho shot him, the latter declared that it as the appellant. 2erlito mentioned the appellant)s name three times. Edmundo carried 2erlito to the hospital, but the latter died on the a(. .oven 9intoga(a corroborated Edmundo)s testimon(. 9e testified that 2erlito as his brother-in-la . 9e as carr(ing a *erosene lamp as he and 2erlito ere on their

a( home that fateful night. 2erlito as about seven meters a a( from him. Suddenl(, he heard a gunshot and sa that 2erlito as hit. 9e fell to the ground. .oven ent near 2erlito, still carr(ing the *erosene lamp, and sa the appellant holding a long handgun in his right hand. In the meantime, the appellant ent near 2erlito and dropped a piece of paper ith ritings in the Cebuano dialect, < then left. 1omentaril(, Edmundo arrived, carried 2erlito and tal*ed to him. Dadan Ollanes and Cresing also arrived and helped Edmundo bring 2erlito to the hospital. 2erlito died on the a(. Dr. 2aulita Almendras performed an autops( on the cadaver of 2erlito and prepared her report containing her postmortem findings, thus5 Fro.t E4eG 1ultiple gunshot ounds chest, abdominal region, pubic region appro:imatel( numbering ,0 ith different si"es of ounds of entrance some [ cm. in diameter and some \ cm. in diameter. +-c5 E4eG #unshot ounds of e:it bac*, left side level of umbilicus F > cms. from the spinal column E another one 0 cms. from the spinal column.0 &he doctor also signed the Certificate of Death of 2erlito Ollanes. ? TCe *-(e Dor tCe A99e33-.t Emilia Antipolo testified that at around >5AA p.m. on .ul( ,A, +//6, she as in her house in 7a(ba(, 2angabuan, aiting for the fishermen to arrive. &he appellant, Eli"abeth 3obillos and the latter)s husband ere her regular customers and ere ith her that night. Bhen the fishermen arrived at ++5AA p.m., Emilia eighed the fish and sorted them ith the help of Eli"abeth and the appellant. &he( finished the or* at ,5AA a.m. Emilia and her companions heard gunfire coming from the upper portion of 2angabuan. Not long after, three CAD#4s arrived and as*ed Emilia if the( heard the fire of the gun. She ans ered in the affirmative. &he follo ing da(, the( learned that somebod( had been *illed at the upper portion of 2angabuan here the victim lived.

Danilo Ollanes testified that at midnight of .ul( ,A, +//6, he as at home. 9e heard gunfire and rushed to the place ith his brother Edmundo. 9e brought a small petroleum lamp ith him. &he( sa somebod( l(ing on the ground, face do n. Edmundo lifted the fallen 2erlito, and Danilo heard him sa( that the person ho shot him as Alfredo Ollanes. 9e did not see Cesario 1ontaRe" during the incident. On cross e:amination, Danilo testified that he arrived at the place and he heard gunfire a minute later. 9e did not see the appellant nor Alfredo Ollanes. According to his brother, the appellant as implicated in the *illing of 2erlito because the former as involved in the plan. Eli"abeth, hom Emilia Antipolo alleged to be ith the appellant at her house in the evening of .ul( ,A, +//6, testified that she as also there ith the appellant, CAD#4s Camilo Alipaopao, 7o( Aranilla and Eusta=uio Abadia. She also heard the gunfire along ith the others. She left the house of Antipolo ith the appellant at ,5AA a.m. Eli"abeth also testified that she *ne the victim, a resident of 2angabuan ho sometimes bought fish on the road. 7aranga( Captain 3ud( 1atalines of 2angabuan, &angub Cit(, testified that the father of the victim ent to him for help hen his son as *illed. 3ud( 1atalines ent to the place of the incident and as*ed Edmundo hether he *ne the culprit, and the latter ans ered in the negative. Danilo ent to his house to have his affidavit ta*en, here he stated that the person responsible for the *illing as Alfredo Ollanes. &he affidavit as not s orn to and the baranga( captain gave a cop( to the appellant. Euti=uio Amodia corroborated the testimonies of itnesses Emilia Antipolo and Eli"abeth 3obillos that the appellant as at the house of Emilio Antipolo at the time hen the( heard the gunfire in the evening of .ul( ,A, +//6. Bhen he left at about +5AA a.m., the appellant and Eli"abeth ere still there. &he appellant denied the allegations of .oven and Edmundo, reasoning that at the time of the incident, he as in the house of Emilia Antipolo in 7a(ba( 2angabuan, &angub Cit(, about one-and-a-half *ilometers a a( from the victim)s house. 9e testified that he arrived at the house of Emilia at >5AA p.m. to meet the fishermen and bu( their catch. At +,5AA midnight, hile he as still in the house, he heard gunfire coming from the upper portion of 2angabuan. 9e denied having *no n that the victim had impregnated 1aricia Ollanes. Daniel Suma(lo testified that Alfredo Ollanes ordered the *illing of the victim and gave 2+AA.AA for the assignment. 9e conspired ith Alfredo Ollanes, Dederico Ollanes, 3o=ue Ollanes, !arr( Ollanes and 3ogelio Aman, .r. to *ill the victim, because the latter impregnated his cousin, 1aricia Ollanes. It as 3o=ue Ollanes ho dropped the note near the victim. Suma(lo stated that he used an unlicensed

firearm o ned b( 3ogelio Aman, .r. in the shooting. After the *illing, he returned the gun to Aman, .r. &he appellant as implicated because he had the same bod( built as 3o=ue Ollanes. Suma(lo gave his s orn statement to S2O6 3amon Daomilas, .r. in the presence of Erdie Cuinto, a minister of the Iglesia ni Jristo. After trial, the court rendered 8udgment on September +/, +//0, convicting the appellant of murder as principaland convicting Suma(lo of homicide. &he decretal portion of the said decision reads5 B9E3EDO3E, premises considered, this Court finds accused Cesario 1ontaRe" guilt( be(ond reasonable doubt for the crime of 1urder, defined and penali"ed under Art. ,<> of the 3evised 2enal Code and there being no aggravating nor mitigating circumstance, said accused Cesario 1ontaRe" is hereb( sentenced to a penalt( of 3eclusion 2erpetua hile accused Daniel Suma(lo is hereb( found guilt( be(ond reasonable doubt for the crime of 9omicide defined and penali"ed under Art. ,</ of the 3evised 2enal Code, and there being no aggravating nor mitigating circumstance, said accused Daniel Suma(lo is hereb( sentenced to an indeterminate penalt( ranging from > (ears and + da( of prision mayor as its minimum period to +< (ears, > months and + da( of reclusion temporal as its ma:imum period. 7oth accused Cesario 1ontaRe" and Daniel Suma(lo are to suffer the accessor( penalties provided b( la , to solidaril( and 8ointl( indemnif( the heirs of the victim the sum of 20A,AAA.AA, and to pa( the costs. &he( must be credited of the time according to la of the time the( ere under preventive imprisonment.&he appellant filed a motion for the reconsideration of the decision. On November +-, +//0, the court issued an order partiall( granting the motion and convicting the appellant of murder, but onl( as an accomplice. &he decretal portion of the decision reads5 B9E3EDO3E, premises dul( considered, the decision dated September +/, +//0 is hereb( reconsidered and modified in the sense that accused Cesario 1ontaRe" is found guilt( be(ond reasonable doubt as an accomplice of the crime of 1urder defined and penali"ed under Art. ,<> in relation to Art. 0, of the 3evised 2enal Code and he is sentenced to suffer an indeterminate penalt( ranging from > (ears and + da( of prision mayor as its minimum to +< (ears, > months and + da( of reclusion temporal as its ma:imum period. All the other aspects of the penalt( are hereb( sustained.

SO O3DE3ED.> &he appellant appealed the decision, asserting that there as no proof of conspirac( bet een him and Suma(lo; as such, he should be e:onerated of the crime charged. Durthermore, he could not be held criminall( liable as an accomplice because there as no direct connection bet een his presence at the scene of the crime and the *illing of the victim. On .une 6A, +///, the Court of Appeals rendered 8udgment reversing the November +-, +//0 Order of the trial court and reinstating the trial court)s September +/, +//0 Decision. Neither the appellant nor the Office of the Solicitor #eneral filed their respective supplemental briefs. &he appellant manifested that he as adopting his brief in the Court of Appeals in the instant appeal, here he asserted that5 &9E !OBE3 CO43& E33ED IN DINDIN# ACC4SED-A22E!!AN& CESA3IO 1ON&A]E% #4I!&I 7EIOND 3EASONA7!E DO47& AS AN ACCO12!ICE OD &9E C3I1E OD 143DE3./ &he appellant contends that both the trial court and the appellate court erred in giving credence and full probative eight to the testimonies of Edmundo and .oven. 9e insists that he as in the house of Emilia Antipolo, one-and-a-half *ilometers a a( from the house of the victim, hen the latter as shot. 7esides, Suma(lo alread( confessed to being the sole assailant, and thereb( absolved him of an( criminal liabilit( for the victim)s death. &he appellant argues that it as illogical for the trial court to convict him of murder as an accomplice, although Suma(lo, ho as the principal b( direct participation for the *illing of the victim, as convicted of homicide. &here is no evidence on record that he conspired ith Suma(lo in *illing the victim. 9is mere presence at the scene of the *illing did not render him criminall( liable as an accomplice. &he appellant)s submission has no merit. Be agree ith the ratiocinations of the Court of Appeals in affirming the September +/, +//0 Decision of the trial court convicting the appellant of murder as principal b( direct participation, thus5 CESA3IO contends that @MSNince neither conspirac( nor unit( of purpose and intention in the commission of the crime charged on the accusedappellant as proven : : : M&Nhe accused-appellant, therefore, deserves a verdict of ac=uittal.@

&he contention is ithout basis. &he fact that CESA3IO as at the scene of the crime is established b( .OHEN)s positive identification of him. Corollaril(, the issue to be resolved is the degree of his participation in the *illing of .OHEN. A reading of the prosecution)s evidence sho s that CESA3IO is a principal b( direct participation in the *illing of 2E3!I&O. ... &he incriminating circumstantial evidence that point to CESA3IO as the perpetrator of the crime are the follo ing5 $+' After a shot as heard, .OHEN sa 2E3!I&O fall to the ground and thereafter, .OHEN sa CESA3IO approached 2E3!I&O, drop a piece of paper beside him and leave immediatel(; $,' At that time, CESA3IO as seen carr(ing a firearm in his right arm; and $6' A fe moments later, ED14NDO arrived and found out that 2E3!I&O sustained a gunshot ound in his chest. 4pon in=uir(, 2E3!I&O ans ered, three $6' times, that it as CESA3IO ho shot him. .OHEN sa them conversing but he could not hear hat the( ere tal*ing about. Since the prosecution itnesses had no motive hatsoever to falsif( the truth and impute to CESA3IO the commission of so grave an offense, the foregoing circumstances cannot be seriousl( disputed. &he combination of the foregoing circumstances is sufficient to establish the guilt of CESA3IO be(ond reasonable doubt. In relation hereto, DANIE!)s testimon( is given scant attention b( this Court F @&he Court has held in a number of cases that a recantation of a testimon( is e:ceedingl( unreliable, for there is al a(s the probabilit( that such recantation ma( later on be itself repudiated. Courts loo* ith disfavor upon retractions, because the( can easil( be obtained from itnesses through intimidation or for monetar( consideration. *r4:e co::4tte/

CESA3IO assails the logic of the trial court)s ruling on the ground that @M&Nhe principal b( direct participation as convicted of the lesser offense of homicide hile his accomplice in the commission of the crime, herein accused-appellant, as convicted of the more serious crime of murder.@ 1urder has been defined as @the unla ful *illing of an( person hich is not parricide or infanticide, provided that an( of the follo ing circumstances is present5 $a' :ith treachery : : :@ &he circumstance of treacher( is attendant in the case at bar. @&he *illing of the deceased is murder for the victim as not onl( unarmed but also deprived of ever( means to defend himself from the treacherous attac*. As testified b( .oven 9intoga(a, the victim 2erlito Ollanes as on the process of placing his push net above the door and hen he turned his side, he as shot. Considering that treacher( is present in the *illing of 2E3!I&O, the nature of the crime committed is categori"ed as murder. &he crime, as charged, remains not ithstanding DANIE!)S plea of guilt( to a lesser offense. &hat is, @ here the accused is allo ed to plead guilt( to a lesser offense, regardless of hether the same is or is not necessaril( included in the crime charged, no amendment of the complaint or information is necessar(.@ &his is so because @MAN conviction under this plea shall be e=uivalent to a conviction of the offense charged for purposes of double 8eopard(.@ As stated b( the Solicitor #eneral, @MINt appears that in the e(es of the la , the convicted felone $sic' is still convicted of the crime charged although he as benefited b( his entering a plea of guilt( to the lesser offense.@+A &he conviction of the accused ma( be proved b( the prosecution either b( direct evidence or b( circumstantial evidence. As e held in People vs. .elim5++ L Circumstantial evidence consists of proof of collateral facts and circumstances from hich the e:istence of the main fact ma( be inferred according to reason and common e:perience. Bhat as once a rule of account respectabilit( is no entombed in Section <, 3ule +66 of the 3evised 3ules of Evidence hich states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a 8udgment of conviction if the follo ing re=uisites concur5 @ : : : if $a' there is more than one circumstance; $b' the facts from hich the inferences are derived have been established;

and $c' the combination of all the circumstances is such as to arrant a finding of guilt be(ond reasonable doubt. &he prosecution is burdened to prove the essential events hich constitute a compact mass of circumstantial evidence, and the proof of each being confirmed b( the proof of the other, and all ithout e:ception leading b( mutual support to but one conclusion5 the guilt of accused for the offense charged. Dor circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent ith each other, consistent ith the h(pothesis that the accused is guilt( and at the same time inconsistent ith the h(pothesis that he is innocent, and ith ever( other rational h(pothesis e:cept that of guilt. If the prosecution adduced the re=uisite circumstantial evidence to prove the guilt of the accused be(ond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution.+, In this case, the prosecution failed to adduce direct evidence to prove that the appellant *illed the victim. 9o ever, the prosecution adduced sufficient circumstantial evidence to prove that the culprit as the appellant, and no other. Dirst. Immediatel( after .oven and Edmundo heard the gunshot coming from the direction of 2erlito)s house, the( rushed to the place and sa 2erlito spra led on the ground, mortall( ounded. Second. &he onl( person near 2erlito as the appellant, ho as holding a long firearm in his right hand. No other person as near the victim or ithin the peripher( of the crime scene hen Edmundo and .oven arrived. &hird. &he appellant ent near 2erlito and dropped an unsigned note ritten in the Cebuano dialect purporting to be from the 797. &he appellant then immediatel( left the scene. C Bhen (ou reached, 2erlito as alread( l(ing face do n.

Bere (ou bringing $sic' (our flashlightP A I as bringing $sic' a flashlight because I as not able to go upstairs. C Bhat did (ou see beside the bod( of 2erlitoP

A C

A letter. Bhat as ritten in that letterP

&he contents of the note is self-e:planator(. Its sender had the victim *illed b( the appellant because of the belief that the victim as not a good member of societ(; hence, not fit to live. Dourth. Bhen Edmundo Ollanes as*ed his brother 2erlito ho shot him, 2erlito replied three times that it as the appellant. 2erlito himself told his brother Edmundo that he as about to die. In fact, the victim died on the a( to the hospital. C &hen hat did (ou do after hearing the gun e:plosion coming from the direction of the house of 2erlito OllanesP A I ran to ards their house.

A &here as a treat $sic' that the( ill *ill t o more others come $sic' from 97 $sic'. C A Bhere is that letter no P It is in the possession of the cit( fiscal.

CO43&5 Sho it to the itness, Discal. C Bill (ou e:amine carefull( this letter brought out b( Discal Inting and tell the 9onorable Court that is this $sic' letter. Is this the oneP A &his is the one.

C And hat did (ou observe hen (ou arrived or hen (ou ere near the house of 2erlito OllanesP A C A C A C A C A I sa 2erlito Ollanes l(ing ith face do n ard. Bhat did (ou find on his bod(, if an(P 9e as hit ith the gun fire $sic'. 9o did (ou *no that he as hit b( the gunfire $sic'P I placed him in m( arms. 9o did (ou *no that he as in8uredP I carried him in m( arms because he as still alive. Bhere did (ou find the in8uriesP On his breast. $Bitness pointing from his breast to his stomach'.

DISCA! IN&IN#5 De =uestions, Iour 9onor. CO43&5 2roceed. DISCA! IN&IN#5 C A 9o far from the bod( of 2erlito Ollanes did (ou find this letterP Her( near beside him.+6

&ranslated in English, the note reads5 &his man is not orth raising $sic', he is a garbage of societ(. &his *ind of man is not orth to live; do not follo him $sic' because e oppose these or*s $sic'. In this place there are t o hom e ill eliminate. +<

C Iou said that hen (ou placed 2erlito Ollanes in (our arms he as still alive, hat did (ou sa(, if an(, to himP DISCA! IN&IN#5

C A C A

$refer last'. I as*ed him hether he recogni"ed the one ho shot him. And hat did he ans er, if an(P 9e ans ered 6 times that it as Cesar 1ontaRe".

C After ans ering (ou the name of Cesar 1ontaRe", hat happened to (our brother, 2erlitoP A Be carried him and brought him do n ard in order to bring him to the hospital. C A C A 9e as still aliveP Ies. 4ntil hat point did (ou bring him do n ardP 9e died on the a(. +0

CO43&5 C Did (our brother *no that he as going to die because of that gunshot oundP A 1a(be he *ne that he as about to die because he told me that he ould die. C &hat as the time hen (ou as*ed him ho as responsible in shooting himP A C A Ies. And he ans ered (ou 6 times the name of Cesar 1ontaRe"P Ies.

2erlito)s statement that it as the appellant ho shot him as a d(ing declaration. &he statement is highl( reliable, having been made in e:tremit( hen the declarant is at the point of death and hen an( hope of survival is gone, hen ever( motive to falsehood is silenced, and hen the mind is induced b( the most po erful considerations to spea* the truth.+? Even if the declarant did not ma*e a statement that he as at the brin* of death, the degree and seriousness of the ords and the fact that death superseded shortl( after ards ma( be considered as substantial evidence that the declaration as made b( the victim ith full reali"ation that he as in a d(ing condition.+&he barefaced fact that Daniel Suma(lo pleaded guilt( to the felon( of homicide is not a bar to the appellant being found guilt( of murder as a principal. It bears stressing that Suma(lo plea-bargained on his re-arraignment. Even if the public prosecutor and the father of the victim agreed to Suma(lo)s plea, the State is not barred from prosecuting the appellant for murder on the basis of its evidence, independentl( of Suma(lo)s plea of guilt. Neither is the appellant entitled to ac=uittal merel( because Suma(lo confessed, after the appellant had rested his case, to being the sole assailant. &he trial court disbelieved Suma(lo)s testimon( that he alone *illed the victim and that the appellant as not at all involved in the *illing. &he Court of Appeals affirmed the 8udgment of the trial court. It bears stressing that hen Suma(lo testified for the appellant on surrebuttal, he declared that he did not *no ho *illed the victim. 9e even declared that the appellant did not *ill the victim. 9o ever, he made a complete volte? ace hen he e:ecuted an affidavit and testified that he alone *illed the victim and that the appellant as not at all involved in the *illing. Be are convinced that Suma(lo)s somersault as an afterthought, a last-ditch attempt to

CO43&5 2roceed. DISCA! IN&IN#5 C 9o serious as the ph(sical condition of 2erlito Ollanes hen (ou as*ed him and he ans ered (ouP A 9e as uneas(.

CO43&5

e:tricate the appellant from an inevitable conviction. Be agree ith the ratiocinations of the trial court, thus5 &here is great doubt to the mind of the Court on the testimonies of accused Daniel Suma(lo. 9e as presented as surrebuttal itness to den( the allegation of the prosecution regarding the presence of the accused Cesario 1ontaRe" in the house of Dederico Ollanes on .ul( ,A, +//6. If it as true that he, Daniel Suma(lo, as there, enabling him to tell hether accused Cesario 1ontaRe" as present or not, h( as he not able to give the date and time of said marriage arrangementP 9e did not *no the future groom and the future parents-in-la of the daughter of Dederico Ollanes. 9e could have, at least remembered an( of the important matters about such marriage arrangement if indeed he as there. Accused Daniel Suma(lo)s affidavit as e:ecuted on 1a( +<, +//<, a da( after he as presented as surrebuttal itness herein he testified that he does not *no ho *illed the victim. 9e retracted such testimon( given in Court for the reason that he as disturbed b( his conscience. 9o ever, the Court has loo*ed ith disfavor upon retraction of testimonies previousl( given in Court. 3ecanted testimon( is e:ceedingl( unreliable $2eople vs. Clamor, #.3. No. >,-A>, .ul( +, +//+, +/> SC3A ?<,'. L+> &he strategem of the appellant as evident. Suma(lo as to confess to having *illed the victim, and at the same time, absolve the appellant from an( involvement in the crime. Suma(lo ould then plead guilt( to the lesser felon( of homicide and ould be sentenced to an indeterminate penalt(. 9e e:pected to be free, after serving the minimum of his sentence. If the trial court believed Suma(lo)s recantation, the appellant ould be ac=uitted of the crime charged and, as a conse=uence, ould be set free. 4nfortunatel( for the appellant, although the trial court allo ed Suma(lo to plead guilt( to homicide and sentenced him to an indeterminate penalt(, it disbelieved the latter)s testimon( e:culpating the appellant. &he appellant)s strateg( bac*fired. Instead of being content ith his conviction of murder as an accomplice, he appealed to the Court of Appeals, hich found him guilt( of murder as a principal b( direct participation. On the civil liabilities of the appellant, the trial court did not a ard e:emplar( damages, contrar( to current 8urisprudence.+/ &he decision of the trial court shall, thus, be modified. IN LIGHT OF ALL THE FOREGOING, the appeal is DIS1ISSED. &he Decision of the Court of Appeals, hich affirmed the decision of the 3egional &rial Court of &angub Cit(, 7ranch +?, dated September +/,+//0 convicting the appellant

as principal, is ADDI31ED ith 1ODIDICA&ION. &he appellant Cesario 1ontaRe" is hereb( directed to pa( to the heirs of the victim 2erlito Ollanes the amount of 2,0,AAA.AA as e:emplar( damages. SO OR"ERE".

Accused-appellant Arturo EnadM+N assails the decision rendered b( the 3egional &rial Court of &agbilaran Cit(, 7ranch +, in t o consolidated cases, Criminal Case No. ->>- for murder and Criminal Case No. ->>> for frustrated murder. It convicted and sentenced him to reclusion perpetua in the first case and to a prison terms of si: $?' (ears and one $+' da( of prision mayor, as minimum to t elve $+,' (ears and one $+' da( of reclusion temporal, as ma:imum, in the second case. In Criminal Case No. ->>-, the Office of the 2rovincial 2rosecutor of 7ohol charged Angel 2reciados, Arturo Enad, Emigdio Hillamor, !eoncio Algabre, and Dloriano Algabre alias Y!olo(Z ith murder allegedl( committed as follo s5 &hat on or about the +,th to the +6th da( of 1a( +//,, in the municipalit( of Sagba(an, province of 7ohol, 2hilippines and ithin the 8urisdiction of this 9onorable Court, the above-named accused, conspiring, confederating and mutuall( helping ith $sic' one another, ith intent to *ill and ithout 8ustifiable cause, did then and there, illfull(, unla full(, and feloniousl( pour poison into the mouth of one 2rimo 9ilbero hereb( causing the victim)s untimel( death; to the damage and pre8udice of the heirs of the deceased in the amount to be proved during the trial. Acts committed contrar( to the provisions of Article ,<> of the 3evised 2enal Code, as amended, ith the aggravating circumstances of $+' treacher(, the victim being una are and unsuspecting and $,' abuse of superior strength, t o of the accused being armed ith deadl( eapons hich the( used in intimidating, threatening and forcing the victim to drin* the poison.M,N In Criminal Case No. ->>>, the same persons murder. &he charge sheet reads5 ere charged ith frustrated

14. 1G.R. No. 122)34. $-.&-r %, 20012

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL PRE*IA"OS >At L-r'e?, ARTURO ENA", EMIG"IO #ILLAMOR, LEON*IO ALGA+RE -./ FLORIANO ALGA+RE H ILOLO,J, accused. ARTURO ENA", accused-appellant. "E*ISION BUISUM+ING, J.7

&hat on or about the +,th to the +6th da( of 1a(, +//,, in the municipalit( of Sagba(an, province of 7ohol, 2hilippines, and ithin the 8urisdiction of this 9onorable Court, the above-named accused, conspiring, confederating and mutuall( helping ith $sic' one another, ith intent to *ill and ithout 8ustifiable cause, did then and there illfull(, unla full( and feloniousl( pour poison into the mouth of one Antonio 9ilbero thereb( inflicting serious in8uries on the victim)s bod(; thus, the accused having performed in said manner all the acts of e:ecution hich ould have produced the crime of 1urder as a conse=uence, but hich nevertheless did not produce it b( reason of a cause independent of their ill, that is, b( the timel( medical attendance and treatment rendered the damage and pre8udice of the said offended part( in the amount to be proved during the trial $sic'. Acts committed contrar( to the provisions of Article ,<> in relation to Articles ? and 0A of the 3evised 2enal Code, as amended, ith the aggravating circumstances of $+' treacher(, the victim being una are and unsuspecting and $,' abuse of superior

of strength t o of the accused being armed ith deadl( eapon hich the( to used in intimidating, threatening and forcing the victim to drin* the poison. M6N &he informations ere both dated .ul( ,A, +//, but the cases ere tried before different salas. 7ranch < of the 3egional &rial Court of &agbilaran Cit(, tried Criminal Case No. ->>-, hile 7ranch 6 tried Criminal Case No. ->>>. On August ,?, +//,, the accused in Criminal Case No. ->>> ere ordered arrested. 7ut the police failed to apprehend an( of the accused. 2reciados and the Algebres ere reported to have gone into hiding in 1indanao, hile Enad and Hillamor ent to Cebu Cit(. It as onl( on .ul( ,A, +//6, hen appellant Arturo Enad as arrested. Arraigned in Criminal Case No. ->>-, he pleaded not guilt(. 9e aived pre-trial and the case as set for trial. On September +6, +//6, .udge Achilles !. 1elicor of 7ranch <, 3&C of &agbilaran Cit(, inhibited himself from Criminal Case No. ->>-, since the accused ere the political leaders of 1a(or Arthur 1elicor-ARana, his cousin, hile the victims ere supporters of the ma(or)s political rival, Nar"al 7. Ermac. On Debruar( +<, +//<, Criminal Case No. ->>> as revived and 8ointl( tried ith Criminal Case No. ->>- in 7ranch +, 3&C of &agbilaran Cit(. Arraigned in Criminal Case No. ->>> on Debruar( +0, +//<, appellant entered a plea of not guilt(. &hereafter, Criminal Cases Nos. ->>- and ->>> ere 8ointl( tried, ithout pre8udice to the separate arraignment and trial of the other accused ho continued to evade arrest. &he facts of the case, culled from the prosecution)s presentation, are as follo s5 Appellant and Antonio 9ilbero, M<N the victim in Criminal Case No. ->>>, are second cousins. 7oth are residents of 4bu8an, Sagba(an, 7ohol. Appellant is also a cousin of 2rimo 9ilbero)s mother-in-la . 2rimo 9ilbero is the victim in Criminal Case No. ->>-. During the 1a( ++, +//, elections, appellant and Antonio supported rival ma(oralt( candidates of Sagba(an. Appellant as a supporter and poll atcher of Arthur ARana, hile Antonio, a baranga( councilman of 4bu8an, as a partisan of Nar"al Ermac. Appellant)s co-accused ere also identified ith ARana ho on. At around ++5AA p.m. of 1a( +,, +//,, Antonio ith his common la ife and their t o children, his brother, 2rimo and his ife, 9elen ith their three children, Antonio)s mother, Dominga, and another brother, Severino ere at the second floor of the old rice mill at 4bu8an. E:cept for 9elen, the clan had retired for the night. She as about to go to sleep hen she noticed Antonio go do nstairs. 1inutes later, her husband 2rimo, follo ed him. &hen she heard someone utter, YDon)t move.Z Alarmed, she rose from her mat and peeped through a

t o-inch hole in the floor. M0N &he ground floor as illuminated b( moonlight. She sa appellant holding a hand grenade hile his other arm as loc*ed in a stranglehold around the nec* of Antonio ho *nelt on the floor. M?N Nearb( stood Angel 2reciados ith a gun pointed at Antonio. M-N She then heard Emigdio Hillamor sa( YDon)t move so that (our famil( ill not die.Z She sa the latter forcing 2rimo to s allo an ob8ect.M>N &he other accused held her husband to prevent him from struggling. Shoc*ed, 9elen then soundlessl( cried and embraced her children. Shortl( after ards, 9elen)s mother-in-la , Dominga, as a a*ened b( the bar*ing of the famil( dog. Dominga ent do nstairs here she sa 2rimo lifeless on the floor, ree*ing of poison. M/N Antonio as no here to be found. Dominga rushed upstairs and o*e up Severino, all the hile shouting for help. 1inutes later, the baranga( captain and some neighbors responded to her shouts for assistance. &he( found 2rimo dead on the floor. Informed that Antonio as missing, the( searched the immediate surroundings for him but to no avail. M+AN Earl( in the morning of 1a( +6, +//,, the search for Antonio as resumed. 9e as finall( found b( his uncle, Simeon Degamo, holding on to roc* in a natural ell, some 6AA meters a a( from the rice mill. A rope as thro n to him and he as pulled out from the ell. Noticing that he smelled of some poisonous chemical, his rescuers made him drin* coconut mil*. M++N 9e as ea* and appeared on the verge of death and brought to the hospital at Clarin, 7ohol for emergenc( treatment. &he ne:t da(, prosecution itness %osimo Hiva, M+,N a defeated municipal councilor candidate in the same slate of Ermac, Antonio)s common la ife, and t o police investigators transferred Antonio to the #ov. Celestino #allares 1emorial 9ospital in &agbilaran Cit(. M+6N According to prosecution itness Dr. 1a(daM+<N 3e(es ho admitted Antonio to the hospital, Antonio told her that the latter as forced to drin* a certain li=uid, hich smelled li*e insecticide. M+0N Another ph(sician, Dr. 1aria !uisa &age, ho attended to Antonio diagnosed, Y2oisoning, Etiolog( not determined, 7rief reactive ps(chosis.Z M+?N Since Antonio appeared to be d(ing, prosecution itness 2O6 !eonardo Inoc, a police investigator, too* his Y ante?mortemZ statementM+-N in hich he named the aforementioned accused as the persons responsible for poisoning him and dropping him in the ell.M+>N 1ean hile, Ermac as*ed the National 7ureau of Investigation $N7I' to conduct an investigation. M+/N &he to:icological e:amination of 2rimo)s bod( revealed the presence of methamidophos, the active ingredient of the insecticide Y&amaronZ in 2rimo)s organs.M,AN &he N7I also recovered t o empt( bottles, at the scene of the incident. Chemistr( tests on them revealed that the Y9oechstZ bottle as positive for deltamethrine, an insecticide, hile the other bottle revealed traces of methamidophos.M,+N

Appellant denied an( involvement in the poisoning incident. 9e claimed an alibi. 9e said he spent the hole night of 1a( ++, +//,, in the municipal hall of Sagba(an, as a atcher for the part( of 1a(or ARana. 9e ent home earl( morning of 1a( +,, +//, and spent the hole da( repairing his pigpens even if he had not slept the previous night. At around seven o)cloc* 2.1. his ife and he ent to the house of his co-accused Angel 2reciados to attend the birthda( part( of the latter)s son.M,,N After ards, the( returned home and ent to sleep. M,6N 9e o*e up at around /5AA A.1. and learned about the incident. 9e ent to the old rice mill to find out more about the poisoning incident and sa the 9ilberos. Bhen he as*ed 9elen hat happened, she said she *ne nothing about the death of her husband. M,<N!ater that da(, he returned to Cebu Cit( here he or*ed as a crane operator. 9e could not thin* of an( reason h( he ould be suspected for committing a crime, as he as on good terms ith the victims. M,0N &he defense offered a different version of the poisoning incident. According to the defense, Antonio and 2rimo agreed to commit suicide b( ta*ing poison. M,?N It presented Antonio)s affidavit dated Debruar( ,>, +//<, M,-N here he recanted his stor( in his affidavit of 1a( ,,, +//,. M,>N Antonio testified that he and 2rimo decided to commit suicide b( drin*ing poison to prevent defeated candidates Ermac and Hiva from harming their families. Antonio refused to follo the orders of Hiva to *ill the political leaders of 1a(or ARana, including the appellant. &hus, Antonio said, he and 2rimo feared for the lives of their relatives. After 2rimo and he dran* poison, 2rimo immediatel( died. Bhen he did not succumb right a a(, Antonio rote a suicide note and tried to dro n himself in the ell. M,/N After his rescue, Ermac and Hiva too* him into custod( and bought him to 1indanao, allegedl( for his safet(. M6AN &he t o, ho ever, threatened to *ill him and made him falsel( charge the appellant ith murder and frustrated murder. M6+N Antonio totall( repudiated his Yante?mortemZ statement and his earlier affidavit charging the accused ith murder and frustrated murder. &estif(ing for the defense, 2KCol. 7en8amin Absalon, of the 7ohol 2rovincial Command of the 2hilippine National 2olice, testified that the police investigation revealed that 2rimo)s death b( poison as not due to foul pla(. 9e declared that the( did not finish their investigation because Antonio disappeared from the hospital before the( could intervie him. M6,N &o rebut Antonio)s testimon(, Dr. 1a(da 3e(es as called ane to confirm hat Antonio had told her, that he as forced to drin* poison b( several men. M66N S2O+ !eonardo Inoc testified again that he too* Antonio)s Y ante?mortemZ statement.M6<N Apolinario !ibran"a, baranga( captain of 4bu8an, Sagba(an as presented to refute Antonio)s claims regarding %osimo Hiva. M60N Antonio)s mother, Dominga, testified that her son as not afraid of either Hiva or Ermac M6?Nand affirmed the truthfulness of 9elen)s testimon(. M6-N In sur-rebuttal, Antonio maintained the veracit( of his suicide account.

Dinding the prosecution)s version more credible, the trial court on .anuar( ,, +//0, convicted appellant of the crimes charged in Criminal Cases Nos. ->>- and ->>>. It concluded5 23E1ISES CONSIDE3ED, in Criminal Case No. ->>- the Court finds the accused Arturo Enad #4I!&I of the crime of 1urder punished under Article ,<> of the 3evised 2enal Code and hereb( sentences him to suffer an imprisonment of R#C"+$I*@ P#RP#T+& ith the accessories of the la and to pa( the costs. &he accused Arturo Enad is further ordered to indemnif( the surviving spouse of the deceased 2rimo 9ilbiro $sic' in the amount of 20A,AAA.AA representing indemnit( and 20A,AAA.AA representing moral and e:emplar( damages. In both instances ithout subsidiar( imprisonment in case of insolvenc(. In Criminal Case No. ->>>, the Court finds the accused Arturo Enad #4I!&I of the crime of Drustrated 1urder under Article ,<> in relation ith $sic' Articles ? and 0A of the 3evised 2enal Code, as amended and hereb( sentences him to suffer an Indeterminate Sentence from SIO $?' IEA3S and ONE $+' DAI, the 1inimum of the 1inimum 2eriod of Prision Mayor, as 1inimum, to &BE!HE $+,' IEA3S and ONE $+' DAI, the 1inimum of the 1inimum 2eriod of Reclusion Temporal, as 1a:imum, ith the accessories of the la and to pa( the cost. &he Court ma*es no pronouncement as to indemnit( and damages for the Court vie ed the retraction of the complainant Antonio 9ilbiro $sic' of his previous testimon(, as a aiver of indemnit(. It appearing that the accused Arturo Enad has undergone preventive imprisonment in Criminal Cases Nos. ->>- and ->>> he is entitled to the full time of his preventive imprisonment to be deducted from his term of sentences $sic' if he has e:ecuted a aiver other ise he ill onl( be entitled to <K0 of the time of his preventive imprisonment to be deducted from his term of sentence $sic' if he has not e:ecuted a aiver. SO O3DE3ED.M6>N On .ul( ,0, +//0, appellant filed his notice of appeal to this Court. On November ,A, +//?, the Office of !egal Aid of the 4.2. College of !a entered its appearance as counsel. 7efore us, appellant poses the follo ing =uestions for resolution5

+. B9E&9E3 O3 NO& &9E &3IA! CO43& E33ED IN #IHIN# BEI#9& AND C3EDENCE &O &9E CON&3ADIC&O3I AND I123O7A7!E &ES&I1ONIES OD &9E BI&NESSES OD &9E 23OSEC4&ION. ,. B9E&9E3 O3 NO& &9E &3IA! CO43& E33ED IN AD1I&&IN# AND #IHIN# BEI#9& &O &9E DOC41EN&A3I EHIDENCE 23ESEN&ED 7I &9E 23OSEC4&ION. 6. B9E&9E3 O3 NO& &9E &3IA! CO43& E33ED IN NO& 9O!DIN# &9A& &9E 23OSEC4&ION DAI!ED &O 23OHE &9E #4I!& OD &9E ACC4SED 7EIOND 3EASONA7!E DO47& AND IN DIS1ISSIN# &9E DEDENSE OD &9E ACC4SED. In sum, appellant raises the follo ing issues5 )irst, Did the trial court err in giving credence to the testimon( of alleged e(e itness 9elen 9ilberoP $econd, Did the lo er court err in rel(ing on Yd(ing statementZ of Antonio 9ilberoP Third, Did the prosecution evidence successfull( overcome the presumption of innocence in favor of the accusedP &he irst issue deals ith the credibilit( of prosecution itness 9elen 9ilbero. Appellant argues that the testimon( of the sole prosecution e(e itness, 9elen 9ilbero, is doubtful. 9e points out that it as odd that despite itnessing her husband murdered and her brother-in-la poisoned, 9elen did not ma*e a statement to the police on hat she itnessed; that hile the police too* the s orn statement of Dominga, the mother of 2rimo and Antonio, the( did not ta*e the statement of the ido , ho allegedl( sa ever(thing; and that even after meeting appellant face to face on the morning of 1a( +6, +//,, no confrontation occurred bet een appellant and her. Durthermore, the prosecution did not rebut appellant)s testimon( that 9elen admitted to appellant that she did not *no hat happened to her husband and brother-in-la . &he prosecution suggests that 9elen)s testimon( as a mere concoction of the political opponents of 1a(or ARana and that 9elen as coached on her testimon( hen it became apparent to Ermac and Hiva that Antonio ould not testif( the a( the( anted. &he Office of the Solicitor #eneral, for its part, contends that there is nothing unnatural in 9elen)s failure to immediatel( disclose hat she *ne . &he failure to reveal the identities of the perpetrators should not impair her credibilit( since there is no set standards of human behavior hen one is confronted ith a strange, stri*ing, or frightful e:perience. 1oreover, she had her reasons to *eep hat she *ne to herself. &he accused ere her neighbors and the( could easil( cause her and her famil( harm. &hus, the trial court, the OS# said, committed no error in rel(ing on her testimon( to convict appellant. Bhere the credibilit( of a itness is an issue, the established rule is that great respect is accorded to the evaluation of the credibilit( of itnesses b( the trial

court. It is in the best position to determine the issue of credibilit( of a itness, having heard his testimon( and observed his deportment and manner of testif(ing. M6/N 7ut, here there is a sho ing that the trial court overloo*ed material and relevant facts, hich could affect the outcome of a case, M<AN the Court ill not hesitate to set aside the lo er court)s findings and assessments regarding the credibilit( of itnesses. In giving full faith and credence to the testimonies of the prosecution itnesses, the trial court e:plained5 &he findings of the court relative to the credibilit( of the itnesses militate in favor of the prosecution itnesses $citations omitted'. &he court too* into considerationLVthe most important factor$s' $of' each itness, his manner and behavior on the itness stand and the general characteristics, tone, tenor and inherent probabilit( of his statement $citations omitted') for in most instancesLVthe demeanor of a itness on the itness stand is often a better evidence of his veracit( than the ans er he gives $citations omitted') andLVit is perfectl( reasonable to believe the testimon( of a itness ith respect to other parts. Ever(time hen itnesses are found to have deliberatel( falsified some material particulars it is not re=uired that the hole of their uncorroborated testimon( be re8ected but some portions thereof deemed orth( of belief ma( be credited. $emphasis ours'. M<+N On record the lo er court heavil( relied on the testimon( of 9elen. 9o ever, it did not ma*e an( categorical finding as to her credibilit( or the veracit( of her account. Be find 9elen)s testimon( riddled ith inconsistencies and improbabilities hich could affect the outcome of this case. 9elen testified that upon hearing a different voice do nstairs, she peeped through a t o-inch hole in the floor and sa , ith the moonlight cascading through the indo s of the old mill, the accused forcibl( ma*e her husband, 2rimo, s allo poison. M<,N On direct e:amination, she stated, she heard the ords YDon)t move.Z M<6N 4nder cross-e:amination, she said hat she heard as YDon)t move so that the grenade ill not be e:ploded.Z As the cross-e:amination progressed, ho ever, she declared that hat she actuall( heard as YDon)t move other ise (our famil( ill be included.Z She initiall( admitted that the first ords ere uttered b( a voice un*no n to her. On further grilling b( the defense, she claimed she recogni"ed the voice as appellant)s. 3elentless crosse:amination, ho ever, (ielded an admission that it as the voice of accused Hillamor she heard first.M<<N &he identification of an accused through his voice is acceptable, particularl( if the itness *no s the accused personall(. M<0N 7ut the identification must be categorical and certain. Be observed that the itness changed her version a number of times. A startling or frightful e:perience creates an indelible impression in the mind such that the e:perience can be recalled vividl(. M<?N Bhere the itness, ho ever, fails to remain consistent on important details, such as the identit( of the person hose voice she heard, a suspicion is created that

Ymaterial particularsZ in her testimon( had indeed been altered. If an e(e itness contradicts himself on a vital =uestion, the element of reasonable doubt is in8ected and cannot be lightl( disregarded.M<-N 9elen)s testimon( contained contradictor( statements. In one instance she said she itnessed the fatal poisoning of her husband b( the accused because the mill as lit b( moonlight. In another instance she said the mill as dar* and unlit. M<>N On further cross-e:amination she claimed that she itnessed the events because of the bright moonlight.M</N Dirst, she said the moonlight as ver( bright M0AN then later she said the moon as not ver( full. M0+N &he defense sho ed that during that night, five nights before its fullness, the moon as in its first =uarter M0,N and it as not as bright as a full moon. Note also that 9elen)s vie of the event as limited because she as onl( peeping through a small hole. 4nder these conditions, 9elen)s flipflopping testimon( created serious doubts regarding its veracit( and credibilit(. &hus her testimon( concerning the destruction of the bamboo slats in one indo of the mill invites serious doubt. &he mill had t o indo s covered ith bamboo slats. &o enter the mill through the indo s, the bamboo slats must be destro(ed. Iet, 9elen did not hear the sound of the bamboo slats being destro(ed, hich as the onl( a( the intruders could have entered. 9er testimon( regarding the murder of her husband, 2rimo, is less than credible. She said that hile 2rimo struggled not to imbibe the poison, he did not utter a sound. According to her, 2rimo could not utter a sound as his nec* as YclippedZ, or Yheadloc*edZ as the trial court puts it. M06N &here as no sho ing, ho ever, that the victim)s mouth as muffled to prevent him from shouting for help. Drom her testimon(, she could have easil( as*ed for help. It ill be recalled that baranga( captain and their neighbors =uic*l( responded to her mother-in-la )s shout for help after seeing 2rimo)s corpse. M0<N 9elen)s account, that her husband violently struggled against his murderers (et soundlessly gulped do n the poison the( made him drin*, is unnatural. It evo*es disbelief. Evidence to be believed must not onl( proceed from the mouth of a credible itness but it must also be credible b( itself, and must conform to the common e:perience and observation of man*ind.M00N As a rule, an e(e itness testimon( cannot be disregarded on account of the dela( in reporting the event, so long as the dela( is 8ustified. M0?N In this case, 9elen *ept silent for almost t o (ears. She had no affidavit during the preliminar( investigation.M0-N It as onl( at the trial that she came out to sa( she itnessed her husband)s murder. She did not e:plain h(. 9er long silence is out of character and appears inconsistent ith her behavior in immediatel( reporting to the police and the baranga( captain an incident hen an unidentified man accosted her on the hereabouts of Antonio.M0>N Additionall(, on direct testimon(, she declared that she *ne that Antonio as found in a hole filled ith ater on the morning of 1a( +6, +//,. M0/N Iet, on crosse:amination, she declared that she did not *no here his rescuers found Antonio

that morning.M?AN Such contradictor( statements tend to erode 9elen)s credibilit( as a prosecution itness and raise serious doubt concerning the prosecution)s evidence. On the second issue, appellant submits that the trial court erred hen it admitted and gave much eight to the probative value of the Y ante mortemZ statement of Antonio.M?+N Appellant contends that the statement can neither be considered as d(ing declaration under 3ule +6A, Sec. 6- M?,N nor part of the res gestae under 3ule +6A, Section <,M?6N of the 3ules of Court. It is inadmissible for being hearsa(. Durthermore, he avers it as error for the trial court to give eight to the first affidavit of Antonio, M?<N since Antonio repudiated the same, stating that its contents ere false. According to appellant, Antonio claimed said affidavit as given under duress. &he Solicitor #eneral, for its part, argues that Antonio)s actions during and immediatel( after the incident ere completel( inconsistent ith those of a person ho allegedl( anted to commit suicide. 9ence, his retraction should be loo*ed at ith 8aundiced e(e, follo ing our ruling in People v. !unio, ,6- SC3A >,? $+//<', here e held that retractions are generall( unreliable and loo*ed upon ith considerable disfavor. A d(ing declaration is the statement hich refers to the cause and surrounding circumstances of the declarant)s death, made under the consciousness of an impending death.ZM?0N It is admissible in evidence as an e:ception to the hearsa( ruleM??N because of necessit( and trust orthiness. Necessit(, because the declarant)s death ma*es it impossible for him to ta*e the itness stand M?-N and trust orthiness, for hen a person is at the point of death, ever( motive for falsehood is silenced and the mind is induced b( the most po erful consideration to spea* the truth. M?>N &he re=uisites for the admissibilit( of a d(ing declaration are5 $+' the death is imminent and the declarant is conscious of that fact; $,' the declaration refers to the cause and surrounding circumstances of such death; $6' the declaration relates to facts hich the victim is competent to testif(; $<' the declarant thereafter dies; and $0' the declaration is offered in a criminal case herein the declarant)s death is the sub8ect of in=uir(.M?/N In the present case, the foregoing re=uisites ere not met. A d(ing declaration is essentiall( hearsa(, because one person is testif(ing on hat another person stated. &his is because the declarant can no longer be presented in court to identif( the document or confirm the statement, but more important, to be confronted ith said statement b( the accused and be cross-e:amined on its contents. M-AN It as patentl( incorrect for the trial court to have allo ed prosecution itness 2O6 !eonardo Inoc to testif( on Antonio)s so-called Yd(ing declarationZ because Antonio as alive and later even testified in court. 7ut as the purported ante?mortem statement part of the res gestaeP Bhere a victim)s statement ma( not be admissible as an ante mortem declaration, it ma( nonetheless be considered as part of theres gestae, if made immediatel( after a

startling occurrence in relation to the circumstances thereof and hen the victim did not have time to contrive a falsehood. M-+N Dor res gestae to be allo ed as an e:ception to the hearsa( rule, the follo ing re=uisites must be satisfied5 $+' that the principal act or res gestae be a startling occurrence; $,' the statement is spontaneous or as made before the declarant had time to contrive or devise, and the statement is made during the occurrence or immediatel( prior or subse=uent thereto; and $6' the statement made must concern the occurrence in =uestion and its immediatel( attending circumstances. M-,N In this case, the element of spontaneit( is lac*ing in the alleged ante? mortem statement. Antonio)s statement as ta*en b( 2O6 Inoc at around 65AA o)cloc* 2.1., 1a( +<, +//, or some thirt(-nine $6/' hours after the incident. &hirt(-nine hours is too long a time to be considered subse=uent immediatel( $stress supplied' to the startling occurrence. Even as contemplated b( the rules, statements given a da( after the incident in ans er to =uestions propounded b( an investigator cannot be considered part of the res gestae.M-6N Durthermore, the testimon( of the declarant, that the statement as made under threats and ith coaching from losing candidates Ermac and Hiva in order to get even ith the inning candidate, 1a(or ARana, is uncontroverted.M-<N D(ing declarations and statements hich form part of the res gestae are e:ceptions to the hearsa( rule, thus the( must be strictl( but reasonabl( construed and must e:tend onl( insofar as their language fairl( arrants. M-0N &hus, doubts should be resolved in favor of appl(ing the hearsa( rule, rather than the e:ceptions. 4nder said rule, Antonio)s so-called ante?mortem statement should not have been admitted in evidence, for it is neither a d(ing declaration nor a part of res gestae. Ne:t e consider hether the trial court could properl( rel( on Antonio)s affidavit dated 1a( ,,, +//< naming the persons responsible for the poisoning incident, not ithstanding his subse=uent repudiation of said affidavit. As a rule, retractions are generall( unreliable and are loo*ed upon ith considerable disfavor b( the courtsM-?Nbecause of the probabilit( that recantation ma( later on be itself repudiated.M--N Durthermore, retractions can easil( be obtained from itnesses through intimidation or for monetar( consideration, M->N and a mere retraction does not necessaril( negate an earlier declaration. M-/N Bhen faced ith a situation here a itness recants an earlier statement, courts do not automaticall( e:clude the original testimon(. &he original declaration is compared ith the ne statement, to determine hich should be believed.M>AN In this case, the trial court re8ected Antonio)s retraction of his affidavit dated 1a( ,,, +//,, for being contrar( to human e:perience and inherentl( un orth( of belief. &he trial court cited, b( a( of illustration, the portion of the affidavit here Antonio claimed that after he and 2rimo agreed to commit suicide and drin*ing a bottle of insecticide, Antonio rote a fare ell letter to his baranga(-mates. Be

note, ho ever, that Antonio)s second affidavit should have been re8ected together ith the first affidavit. 4nless an affiant himself ta*es the itness stand to affirm the averments in his affidavit, the affidavit must be e:cluded from the 8udicial proceeding for being inadmissible hearsa(. M>+N In this case the affiant e:pressl( refused to confirm the contents of his first affidavit. Instead, he testified that said affidavit, E:hibit YEZ as prepared under grave threats and severe pressure from Ermac and Hiva.M>,N 9is earlier affidavit)s contents ere hearsa(, hence inadmissible in evidence. Noted further that E:hibit YEZ and its sub-mar*ings ere offered, to prove that Antonio testified in detail before N7I Agent Att(. Amador 3obeniol about hat happened to him and his brother 2rimo in the hands of the five accused.Z M>6N Even if said E:hibit as admissible, all that it proves is that Antonio testified and e:ecuted an affidavit before the N7I. It does not prove the truthfulness of the allegations made and contained therein. Coming no to the third issue5 has the prosecution succeeded in proving appellant)s guilt be(ond reasonable doubtP &he records sho that the onl( direct evidence lin*ing appellant to the crimes charged and for hich he as convicted are the direct testimon( of e(e itness 9elen 9ilbero and the contents of E:hibit YE.Z 7ut as discussed earlier, neither can be given much probative value. As to the testimonies of the other prosecution itnesses, e find them insufficient to convict appellant as none of them had an( personal *no ledge of facts that ould directl( lin* appellant to the offenses charged. Even if these itnesses testified in a straightfor ard and categorical manner, their testimonies contained insufficient evidence to establish appellant)s guilt be(ond reasonable doubt. Appellant)s defense of denial in the present case is inherentl( ea*. M><N Denial, if unsubstantiated b( clear and convincing evidence, is a negative and self-serving evidence undeserving of an( eight in la . M>0N 7ut such ea*ness does not e:cuse the prosecution from presenting the ade=uate =uantum of proof of the crime charged. &he guilt of the accused must be proved be(ond reasonable doubt. And the prosecution)s evidence must stand or fall on its o n eight. It cannot rel( on the ea*ness of the defense. In the instant case, the prosecution failed to prove the guilt of appellant ith moral certaint(. &he testimon( of its single purported e(e itness, hile positive, as less than credible. It did not meet the test such testimon( of a lone itness to sustain a 8udgment of conviction, must be both positive and credible.M>?N In our vie , the burden of proof re=uired for conviction of appellant has not been ade=uatel( discharged b( the prosecution. 8HEREFORE, the decision of the 3egional &rial Court of &agbilaran Cit(, 7ranch +, in Criminal Cases Nos. ->>- and ->>>, finding appellant Arturo Enad guilt( of murder and frustrated murder is hereb( 3EHE3SED and SE& ASIDE for insufficienc( of the evidence to convict him be(ond reasonable doubt. Appellant is

ACC4I&&ED and ordered 3E!EASED from confinement immediatel( unless he is held for another la ful cause. SO OR"ERE".

Arsenio Or=uin, sentencing each accused-appellant to suffer the penalt( of reclusion perpetua in each count% and ordering them to indemnif(, 8ointl( and severall(, the surviving heirs of the victims in the amount of 20A,AAA.AA and to pa( the costs in each case.+ On December ,,, +//0, accused-appellants ere charged ith 1urder under three informations, similarl( orded save for the name of the victim, committed as follo s5 &hat on or about the ,-th da( of October, +//0, at about >5AA o)cloc* in the morning, at the coconut plantation of 7aranga( 9ina(agan, 1unicipalit( of #andara, 2rovince of Samar, 2hilippines, and ithin the 8urisdiction of this 9onorable Court, the above-named accused, conspiring, confederating together and mutuall( helping one another, ith deliberate intent to *ill, ith treacher( and evident premeditation, did then and there illfull(, unla full( and feloniousl( attac*, assault, and shot one !olito de la Cru" ith the use of firearms $1-+< rifle, 1-+ rifle and shotgun', hich the accused convenientl( provided themselves for the purpose, thereb( inflicting upon the latter fatal gunshot ound on his bod(, hich caused the untimel( death of said !olito de la Cru".23wphi2.n4t CON&3A3I &O !AB. Bhen arraigned, the three accused-appellants, assisted b( counsel, pleaded not guilt( to the crime charged in each case. , &hereafter, the three cases ere consolidated and tried 8ointl(. 6 It appears that at >5AA in the morning of October ,-, +//0, brothers .acinto and .esus Or=uin, their father Arsenio Or=uin, and their uncle !olito de la Cru", ere or*ing at their copra *iln in 7aranga( 9ina(agan, #andara, Samar. < &he( heard dogs bar*ing, so .acinto ent outside to see hat as rong. 9e sa accused-appellants Obat 7oller, Nono( 7oller and 7a(ani 7oller, about three meters a a(. Obat as holding an 1-+< #arand, 7a(ani 7oller as holding a shotgun, and Nono( 7oller as armed ith a #arand. All of them ere pointing their firearms at the copra *iln. .acinto ran a a(. Accused-appellants opened fire at the copra *iln, hitting Arsenio Or=uin, .esus Or=uin and !olito de la Cru".0 As .acinto as running across the river, he heard .esus shout, A#ntoy% donBt leave me% I will dieCA .acinto loo*ed bac* and sa his brother in the ater. .acinto ent bac* and brought .esus to the river ban*. 9e la( .esus do n and covered him ith cogon grass.? .acinto proceeded to ards 7aranga( 9ina(an. As he as running, he met 3oberto &olin. .acinto told 3oberto that accused-appellants shot his brother, father and uncle, and as*ed him to go to the copra *iln and to save them. 1oments later, Ni:on de la Cru" reported to 7aranga( Captain #utardo 7erbis that his father, !olito, as ounded and as in the house of Claro Arterio. 4pon instruction of 7erbis, Jaga ad 2edro Sumagdon proceeded to the house of Arterio,

1%. G.R. No. 144222=24

A9r43 3, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONITO +OLLER -34-( Ob-t, "IANITO +OLLER -34-( No.o -./ FRAN*IS*O +OLLER -34-( +- -.4,accused-appellants. ,NARES=SANTIAGO, J.: &his is an appeal from the decision of the 3egional &rial Court, Calba(og Cit(, 7ranch 6+, in Criminal Cases Nos. 6A,,, 6A,6 and 6A,<, finding accused-appellants 3onito 7oller, Dianito 7oller and Drancisco 7oller guilt( be(ond reasonable doubt of three counts of 1urder for the *illing of !olito dela Cru", .esus Or=uin and

bringing ith him a pen and paper on hich to rite do n an( statement that !olito ould ma*e.>Sumagdon found !olito l(ing on his right side. 9e as*ed !olito, A:hy are you woundedDA !olito ans ered, AI wasshot by *bat Boller% @onoy Boller and Bayani Boller.A/ Sumagdon rote do n the statement, hich is translated in English as follo s5 Statement of !olito de la Cru" ho as shot and these ere the persons hom he sa , Nono( 7oller, Obat 7oller and 7a(ani 7oller, and the( ere clothed ith militar( uniforms and some of them are members of C9DD of 7u-a and the place here the shooting incident too* place is near the coconut plantation of Arsenio Or=uin. !olito)s declaration as itnessed and heard b( 3oberto &olin and 2onciano Or=uin. &he ritten statement, entitled @Ante-1ortem,@ as signed b( Sumagdon, &olin and Or=uin. According to them, !olito as unable to move his right hand at that time.+A !olito as carried on a hammoc* and brought to 7u-a for treatment, but he died before reaching the hospital.++ 3oberto &olin and others ent to the scene of the crime and found the lifeless bod( of Arsenio Or=uin l(ing face up. Across the river, the( found the corpse of .esus Or=uin. 3oberto and his companions gathered several empt( shells on the ground about five arms) length from the copra *iln.+, &he bodies of .esus and Arsenio Or=uin ere brought to #andara for autops(. +6 Dr. Cresilda &eston-Aguilar of the 3ural 9ealth 4nit of #andara, Samar, ho conducted the autops(, reported the follo ing findings5 +. On the victim !olito de la Cru"5 a. E:hibit @D@ F &he Autops( 3eport ith the follo ing ph(sical findings5 @A. Avulsed gunshot ound < : 6 inches at the umbilical area, transecting the superior and inferior apigastric arteries and veins ith evisceration of the large intestines. Diagnosis5 Irreversible shoc* secondar( to hemorrhage secondar( to gunshot ounds.@ b. E:hibit @E@ - &he Anatomical 3eport.

c. E:hibit @D@ - &he Certificate of Death. ,. On the victim .esus Or=uin5 a. E:hibit @#@ F &he Autops( 3eport ith the follo ing findings5 @+. Avulsed gunshot ound - [ inches : < [ inches lo er end of the anterior aspect of the left thigh transecting the femoral arter( and veins ith fracture of the distal end of the femur, left. Diagnosis5 Irreversible shoc* secondar( to hemorrhage secondar( to gunshot ound.@ b. E:hibit @9@ - Anatomical Chart Series. c. E:hibit @I@ - Certificate of Death. 6. On the victim Arsenio Or=uin5 a. E:hibit @.@ F Autops( 3eport ith the follo ing post-mortem findings5 @+. Avulsed gunshot ound 6 [ inches in diameter , inches deep at the anterior aspect of the right upper thigh transecting the lateral femoral circumfle: arter( and vein. ,. Avulsed gunshot ound - [ : 6 inches at the upper chart, posterior aspect of the right leg transecting the posterior tribal arter( and the small saphenous vein. Diagnosis5 Irreversible shoc* secondar( to hemorrhage secondar( to gunshot ounds.@ b. E:hibit @J@ - Anatomical Chart Series. c. E:hibit @!@ - Certificate of Death. +< Accused-appellants proffered the follo ing defense5

&he first itness, 3onito 7oller, alias Obat, is one of the accused. 9e testified that on October ,-, +//0 at around -5AA a.m., he as fetched b( !u" Hillocero at their house to or* in the latter)s farm hich as about ten $+A' minute hi*e a a( from their house. &he( sta(ed at the farm until 05AA p.m., after hich, he proceeded home. 9e said that it as .acinto Or=uin, the private complainant in this case, ho *illed his cousin &anto( 7oller. 9e as ith &anto( hen the latter as *illed. &he elder brother of &anto(, Eduardo, filed a case against .acinto but the latter li*e ise *illed Eduardo. 9e denied that he is a member of the CAD#4. +0 &he second itness, !u" Hillocero, as presented to corroborate the testimon( of 3onito 7oller. She testified that on October ,-, +//0 at around -5AA a.m., she fetched 3onito 7oller from their house to have him help them in harvesting the corn. &he( sta(ed at the farm till 05AA p.m. She disclosed that, all the time, 3onito as ith them. +? &he third itness, Dianito 7oller, is one of the accused. 9e testified that on October ,-, +//0 at around ?5AA a.m., he as at their house ta*ing his brea*fast, after hich he proceeded to the Camp because he as on dut( up to ?5AA p.m. 9e too* his lunch at their house at +,5AA p.m. and he returned to the Camp. 9e as ith Sgt. Espiritu, Sgt. 2alala( and 2DC 3aginal Narcing Selages ho as his partner, and the( sta(ed at the Camp until ?5AA p.m.+&he fourth itness, %osimo Suarello, hired the services of Drancisco 7oller on October ,-, +//0. 9e testified that on October ,-, +//0 at around -5AA a.m., Drancisco 7oller as at their house because he hired the services of the latter to fi: the nipa roof of their house. Drancisco ate lunch at his house and he sta(ed until <5AA p.m. 9e paid Drancisco 20A.AA. +> &he fifth itness, Narciso Sela8es, is a CAD#4 member and the dut( partner of Dianito 7oller on October ,-, +//0. 9e testified that on October ,-, +//0 at around ?5AA a.m., he sa Dianito 7oller enter the camp because the( ere on dut( from ?5AA a.m. to ?5AA p.m. &he( ere issued firearms but after their dut( the( left their firearms behind inside the camp.+/ &he last itness, Drancisco 7oller, is one of the accused. 9e testified that on October ,<, +//0, he arrived at 7aranga( 7uan because his father called for him to or* in the farm. 9e arrived at 7aranga( 7uan from 7aranga( 9ina(agan here he is residing. 9e li*e ise helped his father on October ,?, +//0 at around 05AA p.m. 7ut he did not return to 7aranga( 9ina(agan because he promised %osimo Suarino that he ill repair his

roof. 9e sta(ed at the house of %osimo up to <5AA p.m. At around +A5AA a.m., %osimo left because he as called b( their commandant at the camp on account of the fact that something happened. 4pon the return of %osimo, he as informed that Arsenio and .esus Or=uin ere *illed but the *illers ere not (et *no n. On October ,>, +//0, the( ere arrested b( the police in connection ith the *illing of Arsenio and .esus Or=uin. ,A On 1a( +?, ,AAA, the trial court rendered 8udgment, the dispositive portion of hich reads5 B9E3EDO3E, this Court declares all the accused, namel(5 3onito 7oller alias Obat, Dianito 7oller alias Nono( and Drancisco 7oller alias 7a(ani, #4I!&I be(ond reasonable doubt for three $6' counts of 1urder in the above-entitled cases and hereb( sentences each of them to suffer the penalties consisting of5 $+' In Crim. Case No. 6A,,5 a. 3eclusion 2erpetua; b. &o 8ointl( and severall( indemnif( the surviving heirs of the late !olito de la Cru" in the amount of 20A,AAA.AA; c. &o pa( the costs. $,' In Crim. Case No. 6A,65 a. 3eclusion 2erpetua; b. &o 8ointl( and severall( indemnif( the surviving heirs of .esus Or=uin in the amount of 20A,AAA.AA; c. &o pa( the costs. $6' In Crim. Case No. 6A,<5 a. 3eclusion 2erpetua; b. &o 8ointl( and severall( indemnif( the surviving legal heirs of the late Arsenio Or=uin, and

c. &o pa( the costs. In the service of the sentence, each of the accused shall be credited ith the full period of their preventive imprisonment, provided each of them has voluntaril( agreed in riting to abide b( the same disciplinar( rules imposed upon convicted prisoners, other ise, the( shall onl( be entitled to four-fifths thereof pursuant to the provisions of Art. ,/ of the 3evised 2enal code, as amended. SO O3DE3ED.,+ Accused-appellants appealed directl( to this Court raising the follo ing assignments of error5 I &9E !OBE3 CO43& E33ED IN CONSIDE3IN# &9E S&A&E1EN& 1ADE 7I !O!I&O DE !A C34% AS A DIIN# DEC!A3A&ION B9EN I& DAI!ED &O CO12!I BI&9 &9E DO31A! 3EC4I3E1EN&S OD !AB. II &9E !OBE3 CO43& E33ED IN A223ECIA&IN# &9E C4A!IDIIN# CI3C41S&ANCE OD &3EAC9E3I A#AINS& ACC4SED-A22E!!AN&S B9IC9 BAS NO& 23OHEN 7I &9E 23OSEC4&ION III &9E !OBE3 CO43& E33ED IN CONHIC&IN# &9E ACC4SEDA22E!!AN&S OD &9E C3I1E OD 143DE3, B9EN &9EI3 #4I!& BAS NO& 23OHEN 7EIOND 3EASONA7!E DO47&. In order that a d(ing declaration ma( be admissible in evidence, four re=uisites must concur5 +. &hat the declaration must concern the cause and surrounding circumstances of the declarant)s death;

,. &hat at the time the declaration as made, the declarant as under a consciousness of an impending death; 6. &hat the declarant is competent as a itness; and <. &hat the declaration is offered in a criminal case for homicide, murder, or parricide, in hich the declarant is a victim. ,, All the above re=uisites are present in the case at bar. &he statement of !olito de la Cru" certainl( pertains to the cause and surrounding circumstance that eventuall( led to his death. &he victim as able to identif( ho the perpetrators ere, their appearances and the place here the incident happened. &he victim sustained fatal ounds and survival as a remote possibilit(. 9e pleaded that he be brought to a hospital.,6 9e had to be carried in a hammoc* b( several people, ,< but he died before reaching the hospital.,0 &he autops( conducted b( Dr. Cresilda &eston-Aguilar confirmed the cause of his death as gunshot ounds. &he above circumstances indicate that the victim as conscious of his impending death. &he records are bereft of an( fact that ould other ise consider the victim an incompetent itness. Dinall(, the statement as offered in a criminal case in hich the declarant as the victim. Accused-appellants argue that the d(ing declaration is inadmissible in evidence, sa(ing that @the baranga( tanod reduced the d(ing declaration of the victim into riting using his o n ords and not that of the declarant himself orse, he didn)t read the same to !olito de la Cru" after preparing it, nor did he as* the latter to sign or authenticate the statement.@,? Nevertheless, the 3ules do not re=uire that the itness repeat the e:act ords of the victim, it being sufficient that he testif( on the substance of hat as said b( the declarant. 2edro Sumagdon, on crosse:amination, e:plained5 C No , it appears that hat (ou have ritten here appears to be merel( abstract, that these are not actuall( the e:act ords that ere given to (ou but (our o n ords as a result of hat (ou deduced from the statements given to (ouP A Bhat I rote do n there ere statements coming from him but m( mista*e as, I as not able to let him sign on it.,&he rule is that a d(ing declaration ma( be oral or ritten. If oral, the itness ho heard it ma( testif( thereto ithout the necessit( of reproducing the ord of the

decedent, if he is able to give the substance thereof. An unsigned d(ing declaration ma( be used as a memorandum b( the itness ho too* it do n. ,> Accused-appellants raised the defense of alibi. It is ell settled that courts have al a(s loo*ed upon this defense ith caution if not suspicion, not onl( because it is inherentl( unreliable but li*e ise it is rather eas( to fabricate. ,/Dor alibi to prosper, it is not enough that the accused prove that he has been else here hen the crime is committed. 9e must further demonstrate that it ould have been ph(sicall( impossible for him to be at the scene of the crime at the time of its commission. Accused-appellants failed to discharge this burden in the case at bar. 1ore importantl(, accused-appellants ere positivel( identified b( !olito de la Cru" and .acinto Or=uin. &he testimon( of .acinto Or=uin as found b( the trial court as @straightfor ard and e=uivocal.@6A 9ence, the defense of alibi cannot prevail over the d(ing declaration and the positive identification of accused-appellants. 9o ever, the trial court erred in appreciating treacher( as a =ualif(ing circumstance. Be find nothing in the records hich sho the e:act manner of the *illing.23wphi2.n4t &reacher( cannot be presumed, it must be proved as clearl( and convincingl( as the *illing itself. An( doubt as to the e:istence of treacher( must be resolved in favor of the accused. Be cannot, therefore, surmise from the circumstances that the accused perpetrated the *illing ith treacher(. 9o ever, e find that accused-appellants) acts sho ed a common purpose, interest and design, thereb( establishing a conspirac( among them. 9ence, the act of one is the act of all, and each accused-appellant is e=uall( guilt( of the crime as the others. Accused-appellants, therefore, are guilt( of three counts of 9omicide, each punishable b( reclusion temporalunder Article ,</ of the 3evised 2enal Code. In the absence of either aggravating or mitigating circumstance, the prescribed penalt( shall be imposed in its medium period. Appl(ing the Indeterminate Sentence !a , accused-appellants are therefore sentenced to suffer the penalt( of eight $>' (ears and one $+' da( of prision mayor, as minimum, to fourteen $+<' (ears, eight $>' months and one $+' da( of reclusion temporal% as ma:imum. In addition to the civil indemnit(, accused-appellants should also be held liable for moral damages in the amount of 20A,AAA.AA, hich needs no proof other than the fact of death of the victim. 6+ 8HEREFORE, in vie of the foregoing, the decision of the 3egional &rial Court of Calba(og Cit(, 7ranch 6+, in Criminal Cases Nos. 6A,,, 6A,6 and 6A,<,

is AFFIRME" G4tC MO"IFI*ATIONS. Accused-appellants are found guilt( be(ond reasonable doubt of three counts of 9omicide and each of them is sentenced in each count to suffer the indeterminate penalt( of eight $>' (ears and one $+' da( of prision mayor, as minimum, to fourteen $+<' (ears, eight $>' months and one $+' da( of reclusion temporal% as ma:imum. Durther, accused-appellant are ordered to pa(, 8ointl( and severall(, in each count the respective heirs of !olito dela Cru", .esus Or=uin and Arsenio Or=uin, the sums of 20A,AAA.AA as moral damages and 20A,AAA.AA as civil indemnit(. Cost de o icio. SO OR"ERE".