Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 96492 November 26, 1992

ROMEO REYES, ANGEL PARAYAO, and EMILIO MANANGHAYA, petitioners,
vs.
THE COURT OF APPEALS, EUFROCINA DE LA CRUZ and VIOLETA DELOS REYES, respondents.

NOCON, J.:
Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question the respondent Court's decision promulgated
on November 22, 1990, 1 which affirmed with modification the agrarian court's decision promulgated January 10,
1990, 2 which ordered them and the other defendants therein to, among others, restore possession of the disputed
landholding to private respondent, Eufrocina Vda. dela Cruz. Said respondent court's decision is now final and executory
as to Olympio Mendoza and Severino Aguinaldo, the other petitioners in the respondent court, since they did not appeal
the same.
Since petitioners do not dispute the findings of fact of the respondent Court, the same shall be quoted verbatim and are as
follows:
It appears from the records that Juan Mendoza, father of herein defendant Olympio Mendoza, is the
owner of Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare,
Candaba, Pampanga, with an area of 23,000 square meters and 19,000 square meters, respectively.
Devoted to the production of palay, the lots were tenanted and cultivated by Julian dela Cruz, husband of
plaintiff Eufrocina dela Cruz. Julian died on September 25, 1979.
In her complaint, Eufrocina alleged that upon the death of Julian, she succeeded him as bona fidetenant
of the subject lots; that between July 7 to July 15, 1984, Olympio Mendoza, in conspiracy with the other
defendants, prevented her daughter Violeta and her workers through force, intimidation, strategy and
stealth, from entering and working on the subject premises; and that until the filing of the instant case,
defendants had refused to vacate and surrender the lots, thus violating her tenancy rights. Plaintiff
therefore prayed for judgment for the recovery of possession and damages with a writ of preliminary
mandatory injunction in the meantime.
Defendants Reyes, Parayao, Aguinaldo and Mananghaya, duly elected and/or appointed barangay
officials of Bahay Pare, Candaba, Pampanga, denied interference in the tenancy relationship existing
between plaintiff and defendant Mendoza, particularly in the cultivation of the latter's farm lots. Claiming
that they have always exercised fairness, equity, reason and impartiality in the discharge of their official
functions, they asked for the dismissal of the case and claimed moral damages and attorney's fees in the
total amount of P165,000.00 (Answer with Counterclaim, Records, pp. 48-51).
For his part, defendant Mendoza raised abandonment, sublease and mortgage of the farm lots without his
consent and approval, and non-payment of rentals, irrigation fees and other taxes due the government, as
his defenses. He also demanded actual and exemplary damages, as well as attorney's fees (Answer, pp.
77-78).
During the pendency of the case in the lower court, Mendoza of the case in the lower court, Mendoza was
in possession of the subject lots and had cultivated the same. Upon motion of plaintiff, the court directed
its Deputy Sheriff to supervise the harvesting of the palay crops, to cause the threshing thereof and to
deposit the net harvest (after deducting from the expenses incurred), in a bonded warehouse of the
locality subject to the disposition of the court. 3

The respondent Court rendered judgment affirming the appealed agrarian court's decision with the modification that Lot
106 is not covered by it.
The dispositive portion of the appealed decision, which was modified, states as follows:
WHEREFORE, judgment is hereby rendered, in favor of plaintiff and against defendants:
On the Mandatory Injunction:
1. Ordering said defendants to restore possession of the landholding subject of the action to the plaintiff
and enjoining said defendants and any person claiming under them to desist from molesting them or
interfering with the possession and cultivation of the landholding descriptive in paragraph 3 of the
complaint, to wit:
Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare,
Candaba, Pampanga, with a total area of 23,969 square meters, more or less, owned by
a certain Juan Mendoza, and devoted principally to the production of palay, as evidenced
by a Certification from the Ministry of Agrarian Reform issued on July 30, 1984.
2. a) Ordering the defendants to vacate the premises of the two landholding in question and to respect the
tenancy rights of plaintiff with respect to the same;
b) Ordering defendants, jointly and severally to pay unto plaintiff 220 cavans of palay or its equivalent in
cash of P33,000.00 from the principal crop year of 1984, and every harvest time until defendants finally
vacate and surrender possession and cultivation of the landholding in question to plaintiff.
c) the prayer for moral damages, not having been sufficiently proved, the same is denied.
d) Ordering defendants jointly and severally, to pay the costs of suit.
The awards herein provided should first be satisfied from the deposits of the harvests ordered by the
Court from which the planting and harvesting expenses have been paid to defendant Olympio Mendoza;
and if said net deposits with the Court or the warehouses as ordered by the Court are insufficient, then
the balance should be paid by defendants, jointly and severally. 4
Defendants who are the petitioners in this case, in a Petition for Review on Certiorari, present for the consideration of the
Court:
[T]he lone issue of whether or not they can be held liable, jointly and severally, with the other defendants,
for the harvests of the litigated property, Lot No. 46, or the money equivalent thereof starting from the
principal crop years of 1984 and every harvest time thereafter until the possession and cultivation of the
aforestated landholding are finally surrendered to the private respondent. 5
It is the position of petitioners that they are not liable jointly and severally with Olympio Mendoza and Severino Aguinaldo
because the present petition involves Lot No. 46, Block 2, Psd-38453 of the bahay Pare Estate, bahay Pare, Candaba,
Pampanga and not Lot No. 106 of the estate, which lot was purchased by petitioner Romeo Reyes from Olympio
Mendoza's father, Juan, and which he later donated to the barangay Bahay Pare of Candaba, Pampanga, for the
construction of the Bahay Pare Barangay High School. 6 As to their supposed participation in the dispossession of private
respondent from the disputed landholding, petitioners present the September 30, 1987 Resolution of Investigating Fiscal
Jesus M. Pamintuan, as approved by Pampanga Provincial Fiscal Villamor I. Dizon, in I.S. No. 8576, 7 wherein private
respondent's complaint against petitioners and the other defendants in the agrarian court for violation of P.D. 583 8 was
dismissed, to show that private respondent's "point is already settled and considered closed." 9 lastly, petitioners claim that
they were included in the present controversy so that their political career would be destroyed. 10
Private respondents deny petitioners' allegations and contend that it was petitioners who conspired with Olympio
Mendoza and Severino Aguinaldo in ejecting them not only from Lot No. 46 but also from Lot No. 106. They maintain that
it was in Farmlot No. 46 from where they were ejected and dispossessed, so much so that even if Farmlot No. 106 was
removed by the Court of Appeals from the judgment, as Farmlot No. 46 was harvesting palay worth at least P33,000.00
per year since 1989, private respondents, who are entitled to the possession and peaceful enjoyment of the farmlot as

provided for in Section 23 of the Agrarian Reform Law, should be compensated for the lost income by the petitioners who
are solidarily liable with Olympio Mendoza and Severino Aguinaldo. 11
We find for the private respondents.
It is clear that petitioners are asking Us to re-examine all the evidence already presented and evaluated by the trial court
and re-evaluated again by the respondent appellate court. Said evidence served as basis in arriving at the trial court and
appellate court's findings of fact. We shall not analyze such evidence all over again but instead put finis to the factual
findings in this case. Settled is the rule that only questions of law may be raised in a petition for review on certiorari under
Rule 45 of the Rules of Court 12 absent the exceptions which do not obtain in the instant case. 13
We agree with the appellate court in its retiocination, which We adopt, on why it has to dismiss the appeal. Said the Court:
In her Complaint, plaintiff-appellee alleged that she "is the tenant of Farm Lots Nos. 46 and 106 Block 2,
Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba, Pampanga, with a total area of 23,969
square meters, more or less . . ." (Complaint, Record, vol. 1, p.1). However, during Violeta's testimony,
she clarified that actually only Lot No. 106, which contains an area of P19,000 square meters, is not
included in this controversy (T.S.N., August 10, 1989, p. 5; May 8, 1989, p. 12). This statement was
corroborated by plaintiff's counsel, Atty. Arturo Rivera, who informed the court that the 19,000 square
meter lot is subject of a pending case before the MTC of Sta. Ana, Pampanga (Ibid.,p. 15). The
inconsistency between the averment of the complaint and the testimony of the witness should not only
because there was no showing that she intended to mislead defendants and even the trial court on the
subject matter of the suit. It would in the complaint since together with Lot 106 had been include in the
complaint since together with Lot 46, it is owned by Olympio's father.
We also concur with the trial court's finding on the participation of the other appellants in the
dispossession of appellee. They not only knew Olympio personally, some of them were even asked by
Olympio to help him cultivate the land, thus lending credence to the allegation that defendant Olympio,
together with his co-defendants, prevented plaintiff and her workers from entering the land through
"strong arm methods". (Decision of RTC, records, vol. II p. 564).
Finally, we rule that the trial court did not err when it favorably considered the affidavits of Eufrocina and
Efren Tecson (Annexes "B" and "C") although the affiants were not presented and subjected to crossexamination. Section 16 of P.D. No. 946 provides that the "Rules of Court shall not be applicable in
agrarian cases even in a suppletory character." The same provision states that "In the hearing,
investigation and determination of any question or controversy, affidavits and counter-affidavits may be
allowed and are admissible in evidence".
Moreover, in agrarian cases, the quantum of evidence required is no more than substantial evidence. This
substantial evidence rule was incorporated in section 18, P.D. No. 946 which took effect on June 17, 1976
(Castro vs. CS, G.R. No. 34613, January 26, 1989). In Bagsican vs. Hon. Court of Appeals, 141 SCRA
226, the Supreme Court defined what substantial evidence is:
Substantial evidence does not necessarily import preponderant evidence, as is required
in an ordinary civil case. It has been defined to be such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion and its absence is
not shown by stressing that there is contrary evidence on record, direct or circumstantial,
for the appellate court cannot substitute its own judgment or criteria for that of the trial
court in determining wherein lies the weight of evidence or what evidence is entitled to
belief. 14
WHEREFORE, finding no reversible error in the decision appealed from, the petition is hereby DENIED for lack of merit.
The decision of the Court of Appeals promulgated on November 22, 1990 is AFFIRMED in toto. Costs against the
petitioners.
SO ORDERED.

[G.R. No. 137757. August 14, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODEGELIO TURCO, JR., aka TOTONG, accusedappellant.
DECISION
MELO, J.:
Accused-appellant Rodegelio Turco, Jr. (aka "Totong") was charged with the crime of rape in Criminal Case No.
2349-272, Branch I of the Regional Trial Court of Basilan of the 9th Judicial Region, stationed in Isabela, Basilan, under
the following Information:
That on or about the 8th day of July, 1995, and within the jurisdiction of this Honorable Court, viz., at Km. 6, Begang
Barangay, Municipality of Isabela, Province of Basilan, Philippines, the above-named accused, by the use of force, threat
and intimidation, did then and there willfully, unlawfully and feloniously grab the undersigned complainant by her neck,
cover her mouth and forcibly make her lie down, after which the said accused mounted on top of her and removed her
short pant and panty. Thereafter, the said accused, by the use of force, threat and intimidation, inserted his penis into the
vagina of the undersigned complainant and finally succeeded to have carnal knowledge of her, against her will.
CONTRARY TO LAW.
(p. 6, Rollo.)
At his arraignment on November 8, 1995, accused-appellant entered a plea of not guilty, after which trial ensued.
The prosecution's version of the generative facts, as gathered from the testimony of its witnesses - Alejandra Tabada,
mother of the victim; PO3 Celso Y. Tan Sanchez, the police officer who investigated the case; Orlando Pioquinto, brotherin-law of the victim; Escelea Tabada, the 13-year-old victim; and Felicitas delos Santos Timorata, the medical record clerk
who used to be the medical officer under Dr. Rimberto Sanggalang, the physician who physically examined the victim after
the incident - is abstracted in the Appellee's Brief in this wise:
Escelea Tabada and appellant Rodegelio Turco were neighbors in lower Begang, Isabela, Basilan, their houses being only
about sixty (60) meters apart (p. 6 and p. 8, t.s.n.; August 19, 1996). Escelea was then staying with her father, Alejandro
and her deaf grandmother, Perseveranda (p. 9, id). She was twelve (12) years and six (6) months old at the time of
incident, having been born on December 3, 1982 (p. 3, id).
The nightmare of Escelea began in the evening of July 1995. At around seven o'clock (7:00 p.m.) in the evening, Escelea,
after (pp. 11-12, id) [sic]. She was accompanied by a certain Cory Macapili, the granddaughter of her neighbor, Leonora
Cabase (p. 13, id).
Cory left upon reaching Escelea's home. Escelea went upstairs to join her grandmother who was already sleeping in the
room. About to enter the said room, Escelea heard a call from outside. She recognized the voice and when she asked
who was it, the party introduced himself as the appellant, viz:
Q. After you heard your named was mentioned, what did you say if any?
A. I answered: "Who is that?"
Q. Did the person calling your name answer you?
A. I heard, sir, "me Totong".
Q. When you say the person who called your name "Lea" was "Totong" you are referring to whom?
A. Rodegelio, sir.
(p. 15, id; Underscoring supplied)

She recognized appellant Turco immediately as she had known him for four (4) years and appellant is her second cousin
(p. 34, id). Unaware of the danger that was about to befall her, Escelea forthwith opened the door. Appellant Turco, with
the use of towel, covered Escelea's face. Appellant, aside from covering the victim's mouth, even placed his right hand on
the latter's neck.
Appellant bid Eseelea to walk. When they reached a grassy part, near the pig pen which was about twelve (12) meters
away from the victim's house, appellant lost no time in laying the victim on the grass, laid on top of the victim and took off
her shortpants and panty (pp. 17-19, id). Escelea tried to resist by moving her body but to no avail. Appellant succeeded
in pursuing his evil design-by forcibly inserting his penis inside Escelea's private part. The victim felt terrible pain (p. 20,
id). Still dissatisfied, after consummating the act, appellant kissed and held the victim's breast. Thereafter, appellant
threatened her that he will kill her if she reports the incident to anybody, thus:
"He threatened me, that if you will reveal the incident to anybody I will kill you.
(p. 21, id; Underscoring supplied)
Finally, after having satisfied his lust, appellant hurriedly went home. Escelea, on the other hand, upon reaching home,
discovered that her shortpants and panty were filled with blood (p. 23, id). For almost ten (10) days, she just kept to
herself the harrowing experience until July 18, 1995 when she was able to muster enough courage to tell her brother-inlaw, Orlando Pioquinto, about the said incident. Orlando in turn informed Alejandro, the victim's father, about the rape of
his daughter. Alejandro did not waste time and immediately asked Escelea to see a doctor for medical examination (p. 27,
id).
Escelea was accompanied by her sister Clairlyn Pioquinto to the Provincial Hospital. She was examined by Dr. Rimberto
Sanggalang. After the issuance of the medical certificate, they went to Isabela Municipal Station and filed Escelea's
complaint against appellant (pp. 30-33, id).
(pp. 97-100, Rollo.)
The defense presented Leonora Cabase, neighbor of accused-appellant; her granddaughter Corazon Macapili, and
accused-appellant himself. Accused-appellant denied the charge. The defense that the victim and him were sweethearts
was also advanced. Leonora Cabase mentioned this in her direct testimony.
In reaching a moral certainty of guilt, the trial court held:
While the accused denies the charge of rape, his witness, Mrs. Leonora Cabase was trying to project that the complainant
Escelea Tabada and the accused Rodegelio Turco, Jr. are sweethearts. In the case of People vs. Casil, 241 SCRA 285,
the Supreme Court agrees with the trial court that the "sweetheart story" was a mere concoction of appellant in order to
exculpate himself from criminal liability. The claim of voluntary love affair is an affirmative defense, the allegation of a love
affair needed proof. Nowhere in the record of the case that the same was substantiated, though mentioned by Mrs.
Leonora Cabase. The accused and/or his witnesses must present any token of the alleged relationship like love notes,
mementos or pictures and the like. Such bare allegation of the defense, not to mention its utter lack of proof, is
incredulous. It is hard to understand how such a relationship could exculpate a person from the rape of a terrified young
child barely a little over the age of twelve (12) years old. Indeed, a love relationship, even if true, will not necessarily rule
out force (People vs. Sergio Betonio,G.R. No. 119165, September 26, 1997, Case Digests of Supreme Court Decisions,
Vol. 36, No. 3, September 1-29, 1997, pp. 695-697).
There are guiding principles in rape cases as cited in People vs. Victor Abrecinoz, G.R. No. 122474, October 17, 1997,
Case Digests of Supreme Court Decisions, Vol. 37, No. 1, October 2-31, 1997, pp. 157-160, and they are: (1) an
accusation for rape can be made with facility, it is difficult to prove but more difficult for the person accused, though
innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must
stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense.
Thus, the credibility of the complainant is a paramount importance, and if her testimony proves credible, the accused may
be convicted on the basis thereof.
It should be noted that the complainant and the accused are second degree cousin or they are sixth civil degree relatives.
The mother of the accused is a first degree cousin of the father of the complainant. In the culture of the Filipino family on
extended family, the relationship between the complainant and the accused being only second degree cousin, it becomes
the duty of an older relative (the accused) to protect and care for a younger relative (the complainant). It is very hard to

understand or comprehend why a cousin files a case of rape against her cousin, unless it is true. There is no showing that
there was compelling motive why the case be filed against the accused, except that the rape really happened.
xxx
xxx
xxx
It is noted that there was no underlying reason why the complainant and/or her father would bring an action against the
accused, except that the accused had raped Escelea Tabada on July 8, 1995, at about 7:00 o'clock in the evening. If it
were not true that she was raped by the accused, why would she expose herself to an embarrassment and traumatic
experience connected with the litigation of this rape case. We are aware of the Filipino culture especially on virginity. We
likened it as a mirror, once dropped and broken, it can no longer be pieced together ... not ever. This is true among the
Filipino folks that the complainant belonged, poor and helpless and everything is entrusted to God. The complainant is a
young girl, a little over twelve (12) years old and almost illiterate, having attended school up to Grade III only. So poor that
her family cannot even buy the cheapest television set and she has to go to a house of a neighbor for the meager joy of
seeing a television show ... and expose herself to the danger of the dark night. All said, it is very difficult to be poor. Going
to the court is a shout for help ... let us try to hear it.
xxx
xxx
xxx
WHEREFORE, under the above circumstances and evaluation, this court finds the accused "GUILTY" of rape and
sentences him to suffer the penalty of reclusion perpetua and to indemnify the complainant the amount of Fifty Thousand
Pesos (P50,000.00) for moral damages without subsidiary imprisonment in case of insolvency.
xxx
xxx
xxx
(pp. 33-37, Rollo.)
In accused-appellant's brief, he assigns the following alleged errors:
I
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN FINDING THE ACCUSED GUILTY OF RAPE
BASED ON THE TESTIMONIES OF THE COMPLAINANT ESCELEA TABADA AND HER WITNESS.
II
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN RULING THAT THE PROSECUTION, BASED
ON THE AFFIDAVITS AND ORAL TESTIMONIES OF THE COMPLAINANT AND ITS WITNESSES WAS ABLE TO
PROVED [sic] BEYOND REASONABLE DOUBT THAT THE ACCUSED COMMITTED THE CRIME OF RAPE
AGAINST THE COMPLAINANT.
III
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN SENTENCING THE ACCUSED TO SUFFER
THE PENALTY OF RECLUSION PERPETUA AND TO INDEMNIFY THE COMPLAINANT THE AMOUNT OF
P50,000.00 REPRESENTING MORAL DAMAGES BASED ON THE EVIDENCES PRESENTED BY THE
PROSECUTION.
(p. 101, Rollo.)

He particularly argues that his conviction is not supported by proof beyond reasonable doubt considering that other
than the written statement of the complainant before the Police Station of Isabela and before the Clerk of Court of the
Municipal Trial Court, and her testimony during direct examination, no other evidence was presented to conclusively prove
that there was ever rape at all; that she only presumed that it was accused-appellant who attacked her since she admitted
that immediately upon opening the door, the perpetrator hastily covered her face with a towel; that nothing in her
testimony clearly and convincingly shows that she was able to identify accused-appellant as the perpetrator; that
complainant implicated accused-appellant only because her father forced her to do so; and lastly, that no actual proof was
presented that the rape of the complainant actually happened considering that although a medical certificate was
presented, the medico-legal officer who prepared the same was not presented in court to explain the same.
We agree with the trial court.
As aptly recalled by the trial court, there are three guiding principles in the review of rape cases, to wit: (1) an
accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, although
innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved,
the testimony of the complainant is scrutinized with extreme caution; and (3) the evidence for the prosecution stands or
falls on its own merits and cannot be allowed to draw strength from the weakness of the defense (People vs. Gallo, 284
SCRA 590 [1998]; People vs. Balmoria, 287 SCRA 687 [1998]; People vs. Auxtero, 289 SCRA 75 [1998]; People vs. Sta.
Ana, 291 SCRA 188 [1998]).
Accordingly, the primordial consideration in a determination concerning the crime of rape is the credibility of
complainant's testimony.
The trial court described complainant as "a young girl, a little over twelve (12) years old and almost illiterate, having
attended school up to Grade III only. So poor that her family cannot even buy the cheapest television set and she has to
go to a house of a neighbor for the meager joy of seeing a television show ... and exposes herself to the danger of the
dark night." But verily, age, youth, and poverty are not guarantees of credibility. Hence, thorough scrutiny must be made
by the Court.
Complainant narrated the incident in this wise:
Q While you went upstairs and about to enter the room of your grandmother, did you hear anything?
A Yes, sir.
Q What was that?
A I heard a call, sir.
Q How was the call made?
A It is just by saying: "Lea".
Q After you heard your name was mentioned, what did you say if any?
A I answered: "Who is that?"
Q Did the person calling your name answer you?
A I heard, sir, "me Totong".
Q When you say the person who called your name "Lea" was "Totong", you are referring to whom?
A Rodegelio, sir.
Q When you say "Rodegelio", you are referring to Rodegelio Turco, Jr., the accused in this case?
A Yes, sir.
Q After the person calling your name "Lea" identified himself as "Totong", what did you do?
A I opened the door, sir.
Q And when you opened the door, what happened next?
A Totong with the use of towel covered my face, sir.
Q Aside from covering your face with a towel, what else did he do?
A He covered my mouth, sir.
Q Aside from covering your mouth, what else did he do?

A He placed his right hand on my neck, sir.

Q Aside from placing his right hand ... when he placed his right hand on your neck, where was he? Was he infront or
behind?
A He was at my back, sir.
Q After placing his right hand on your neck behind you, what did "Totong" do next with that position?
A He covered my mouth, sir.
Q After covering your mouth and face, what did he do next?
A He told me to walk, sir.
Q Where did he bring you?
A I don't know exactly where he brought me, sir.
Q But you know very well that he brought you to a certain place?
A I don't know exactly the place where he brought me, sir.
Q Is it far from your house where you were forcibly taken?
A Yes, sir.
Q Do you have a copra kiln?
ATTY. G.V. DELA PENA III:
The witness already answered that she does not know where she was brought, leading, Your Honor.
COURT: (Questioning the witness)
Q According to you, from your house you were brought by the accused to a place which you do not know?
A Yes, Your Honor.
Q What place?
A Pig pen, Your Honor.
Q Do you know the owner, of that pig pen?
A Our pig pen, Your Honor.
Q Who owned that pig pen?
A My father, Your Honor.
Q How far is that pig pen to your house?
A (From this witness stand to that road outside of this building).
COURT:
It is about 12 meters. Alright, continue.
PROSECUTOR M.L. GENERALAO: (Continuing)
Q You stated in answer to the question of the Honorable Court that you were brought to the pig pen or the place where
you were sexually abused, were you place inside or outside?
ATTY. G.V. DELA PENA III:
Leading, Your Honor.
PROSECUTOR M.L. GENERALAO:
I will withdraw.
Q Will you please explain to the Court what particular place of the pig pen that you were brought by the accused?
A Inside the grasses, sir.

Q When you were already inside the grasses near this pig pen, what did the accused do to you?
A He put me down, sir.
Q When you were already down on the ground, what did the accused do next?
A He mounted on me, sir.
Q And when the accused was already on top of you, what did he do next?
A He molested me, sir.
Q Before he molested you, did he remove anything from your body?
A Yes, sir.
Q What?
A My shortpants and panty, sir.
Q You stated that the accused while on top of you removed your pants and panty, did he totally remove it from your
body?
A Yes, sir.
Q After removing your shortpants and panty, what else did the accused do?
A He abused me, sir.
Q You said that he abused you, how did he abuse your?
A He put his private part inside my private part, sir.
Q When the accused was on top of you and he forcibly abused you, what did you do?
A I tried to move my body, sir.
Q While you were trying to move your body and while the accused was on top of you, what did the accused do?
A He tried to insert his private part to my private part, sir.
Q And was he able to insert his private part?
A Yes, sir.
Q What did you feel when his private part was already inside your private part?
A I felt pain, sir.
Q Will you please explain why you felt when the private part of the accused was already inside your private part?
A I felt pain when he already finished, sir.
Q By the way, before July 8, 1995, were you had been raped? Will you please tell us whether you have already
experienced or you have already your menstruation at that time?
A No, sir.
Q Now you stated to the Honorable Court ... after the accused had sexually abused you and you said you felt pains
after he consumated the sexual act, after that what did he do next after consumating the act?
A After consumating his desire, he raised my panty and shortpants then he kissed me and hold my nipple, sir.
Q After the accused had raised your shortpants and panty, embraced you, kissed you and hold your breast, did he tell
you anything?
A He threatened me, "that if you will reveal the incident to anybody I will kill you."
Q In what dialect? In Chavacano, sir.
A After the accused embraced you, kissed you and hold your nipple and threatened you in Chavacano dialect, what
happened next after that?
No more, sir.

(tsn, Aug. 19, 1996, pp. 14-22.)

On cross-examination, the victim did display some apparent confusion when the defense counsel asked her about
the events that transpired before the ill-fated July 8, 1995. The query prompted her to narrate the incident prior to said
date when she also watched television at the home of Leonora Cabase, and that when she arrived home, accusedappellant came and called her "Lea" and when she asked who was it, he answered "so Totong". When she asked what he
wanted, he said he wanted to borrow a guitar. She said that she could not lend him the guitar since her father was not yet
around. He insisted but to no avail, and hence he just went home. She went to sleep afterwards. On re-direct examination,
she clarified that when accused-appellant came to borrow the guitar on July 8, 1995, it was about 5:30 o'clock in the
afternoon. Lastly, she said that the incident of the borrowing of the guitar and the incident that transpired at 7 o'clock in the
evening on July 8, 1995 were separate incidents.
Significantly, three things could be perceived: complainant's youth, her apparent confusion concerning the events
that transpired, and her fear of both accused-appellant and her father.
At the outset, it should be remembered that the declarations on the witness stand of rape victims who are young and
immature deserve full credence (People vs. Bernaldez, 294 SCRA 317 [1998]). Succinctly, when the offended parties are
young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what
transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be
exposed by court trial if the matter about which they testified were not true(People vs. Clopino, 290 SCRA 432 [1998]). In
addition, we take cognizance of the trial court's observation on the segment of the Filipino society to which the victim
belongs - almost illiterate, having attended school up to the third grade only, and so poor that she had to go to a
neighbor's house to watch television, yet one who values her virginity which like a "mirror, once dropped and broken ...
can no longer be pieced together ... not ever," this being "true among the Filipino folks [to which] complainant belonged,
poor and helpless everything is entrusted to God" (p. 35, Rollo).
The victim's relatively low level of intelligence explains the lapses in her testimony, having intermingled two incidents.
Nonetheless, it can easily be gathered from the record that the defense counsel may have contributed to this confusion
when he asked the victim what transpired "before" the incident (tsn, August 19, 1996, p. 37). Minor lapses in a witness'
testimony should be expected when a person recounts details of an experience so humiliating and so painful to recall as
rape (People vs. Gementiza, 285 SCRA 478 [1998]).Rape, as a harrowing experience, is usually not remembered in
detail. For, such an offense is not something which enhances one's life experience as to be worth recalling or reliving but,
rather, something which causes deep psychological wounds and casts a stigma upon the victim for the rest of her life,
which her conscious or subconscious mind would prefer to forget (People vs. Garcia, 281 SCRA 463 [1997]). These
lapses do not detract from the overwhelming testimony of a prosecution witness positively identifying the
malefactor (People vs. Baccay, 284 SCRA 296 [1998]). Further, the testimony of a witness must be considered and
calibrated in its entirety and not by truncated portions thereof or isolated passages therein (People vs. Natan, 193 SCRA
355 [1991]).
The Court finds that the victim had no motive to falsely testify against accused-appellant. Her testimony deserves the
credence accorded thereto by the trial court (People vs. Luzorata,286 SCRA 487 [1998]). Pertinently, no woman,
especially one of tender age, would concoct a story of defloration, allow an examination of her private parts, and
thereafter pervert herself by being subjected to a public trial if she was not motivated solely by the desire to have the
culprit apprehended and punished (People vs. Taneo, 284 SCRA 251 [1998]).
Another point to consider is the blood relationship between accused-appellant and the victim. At this juncture, we
reiterate the trial court's observation thereon - the mother of accused-appellant being a first degree cousin of the victim's
father, that makes the victim and accused-appellant second degree cousins or sixth civil degree relatives. Filipino culture,
particularly in the provinces, looks at the extended family as closely-knit and recognizes the obligation of an older relative
to protect and take care of a younger one. On the contrary, in the instant case, the victim initiated the prosecution of her
cousin. If the charge were not true, it is indeed difficult to understand why the victim would charge her own cousin as the
malefactor. Too, she having no compelling motive to file said case against accused-appellant, the conclusion that the rape
really happened is logically reinforced.
As regards the initial delay of the victim in reporting the rape incident, suffice it to state that the delay and initial
reluctance of a rape victim to make public the assault on her virtue is not uncommon (People vs. Gallo, supra). In the case
at bar, the victim's fear of her father who had moral ascendancy over her, was explicit. She testified that she did not
disclose the incident to her father because of fear both of her father as well as of accused-appellant (tsn, August 19, 1996,
pp. 23-24). Such reaction is typical of a twelve-year-old girl and only strengthens her credibility.
The issue of credibility of the victim having been settled, there are a few points presented by the defense that must
be passed upon:
1. Other than their blood relationship, was there an intimate relationship between accused-appellant and the victim?
The theory initially advanced by the defense in the proceedings before the court a quo is the "sweetheart theory". In this

regard, .we agree with the trial court that the "sweetheart story" was a mere concoction of accused-appellant in order to
exculpate himself from criminal liability. In People vs. Venerable (290 SCRA 15 [1998]), we held that the sweetheart theory
of the accused was unavailing and self-serving where he failed to introduce love letters, gifts, and the like to attest to his
alleged amorous affair with the victim. Hence, the defense cannot just present testimonial evidence in support of the
theory that he and the victim were sweethearts. Independent proof is necessary, such as tokens, mementos, and
photographs. It is likewise remarkable, a confession possibly of the bankruptcy of this theory that accused-appellant has
not insisted on this defense in his brief, seemingly abandoning this line.
We, therefore, conclude that whatever familiarity and supposed closeness there was between accused-appellant and
the victim, is explained not by an intimate relationship but by their blood relationship. Hence, it is noticeable that on the
day of the incident, when accused-appellant called upon the victim and the latter asked who he was, the victim knew right
away that her caller was accused-appellant when the latter replied "Si Totong".
Accused-appellant, in his direct testimony, tried to deny any blood relation with the victim Escelea Tabada and
touched on the apparent friendship between them, as follows:
Q You mentioned earlier that you know the complainant, why do you know the complainant Escelea Tabada?
A I only know her when I was already in jail, sir.
Q You mean to say that you never knew the complainant before you were arrested?
A I do not know her, sir.
COURT: (Questioning the witness)
Q Why, are you not related to the Tabadas?
A No, Your Honor.
ATTY. G.V. DELA PENA III: (Continuing)
Q Have you ever seen the complainant in Begang?
A The complainant is at Begang, sir.
Q And you mentioned that you were not related with the complainant, Mr. Witness?
A Yes, sir, we are only close.
Q So, in other words, Mr. Witness, you and the complainant Escelea Tabada were already friends?
A Yes, sir.
(tsn, June 16, 1998, pp. 42-43.)
However, on cross-examination, he notably crumbled:
Q Now, you stated in your direct examination that you are not related to the Tabadas in San Antonio Begang, Isabela,
Basilan, is that right?
A Yes, sir, we are only close.
Q Is it not a fact Mr. Witness that your mother is the first cousin of the father of Escelea Tabada?
A They are cousins, sir.
Q So, indeed you are related to the Tabadas?
A Yes, sir.
Q So, when you said that you are not related to the Tabadas, you were not telling the truth?
A Yes, sir.
(ibid, p. 51.)
2. Accused-appellant argues that no actual proof was presented that the rape actually happened since the medicolegal officer who prepared the medical certificate was not presented in court to explain the same.
In People vs. Bernaldez (supra), the court a quo erred in giving weight to the medical certificate issued by the
examining physician despite the failure of the latter to testify. While the certificate could be admitted as an exception to the

hearsay rule since entries in official records (under Section 44, Rule 130, Rules of Court) constitute exceptions to the
hearsay evidence rule, since it involved an opinion of one who must first be established as an expert witness, it could not
be given weight or credit unless the doctor who issued it is presented in court to show his qualifications. We place
emphasis on the distinction between admissibility of evidence and the probative value thereof. Evidence is admissible
when it is relevant to the issue and is not excluded by the law or the rules (Section 3, Rule 128, Rules of Court) or is
competent. Since admissibility of evidence is determined by its relevance and competence, admissibility is, therefore, an
affair of logic and law. On the other hand, the weight to be given to such evidence, once admitted, depends on judicial
evaluation within the guidelines provided in Rule 133 and the jurisprudence laid down by the Court. Thus, while evidence
may be admissible, it may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight
may be inadmissible because a special rule forbids its reception (Regalado, Remedial Law Compendium, Vol. II, 1998
ed., p. 550).
Withal, although the medical certificate is an exception to the hearsay rule, hence admissible as evidence, it has very
little probative value due to the absence of the examining physician. Nevertheless, it cannot be said that the prosecution
relied solely on the medical certificate (stating that there was "[h]ymen rupture, secondary to penile insertion" as well as
"foul-smelling discharges." The diagnosis was "[r]uptured hymen secondary to rape" [p. 68, Record]). In fact, reliance was
made on the testimony of the victim herself which, standing alone even without medical examination, is sufficient to
convict (People vs. Topaguen, 369 SCRA 601 [1997]). It is well-settled that a medical examination is not indispensable in
the prosecution of rape (People vs. Lacaba, G.R. No. 130591, November 17, 1999; People vs. Salazar, 258 SCRA 55
[1996]; People vs. Venerable, supra). The absence of medical findings by a medico-legal officer does not disprove the
occurrence of rape (People vs. Taneo, supra). It is enough that the evidence on hand convinces the court that conviction
is proper (People vs. Auxtero, supra). In the instant case, the victim's testimony alone is credible and sufficient to convict.
As a final observation, it must be said that the amount awarded by the trial court in favor of Escelea Tabada as
indemnification (P50,000.00 for moral damages) for the rape is incomplete based on established jurisprudence and must
be modified. In People vs. Betonio (279 SCRA 532 [1977]), we held that the award of P50,000.00 to the victim as
indemnity for rape not committed or qualified by any of the circumstances under the Death Penalty Law, needs no proof
other than the conviction of the accused for the raped proved. This is different from the P50,000.00 awarded as moral
damages which also needs no pleading or proof as basis thereof (People vs. Prades, 293 SCRA 411 [1998]).
WHEREFORE, the appealed decision is hereby AFFIRMED, with the MODIFICATION that accused-appellant
Rodegelio Turco, Jr. aka "Totong" is ordered to indemnify the offended party, Escelea Tabada, in the amount of Fifty
Thousand (P50,000.00) Pesos in addition to the sum of P50,000.00 already awarded by the trial court as moral damages.
SO ORDERED.
Vitug, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 162571

June 15, 2005

ARNEL L. AGUSTIN, petitioner,

vs.
HON. COURT OF APPEALS AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS
MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents.
DECISION
CORONA, J.:
At issue in this petition for certiorari 1 is whether or not the Court of Appeals (CA) gravely erred in exercising its discretion,
amounting to lack or excess of jurisdiction, in issuing a decision 2 and resolution3 upholding the resolution and order of the
trial court,4 which denied petitioners motion to dismiss private respondents complaint for support and directed the parties
to submit themselves to deoxyribonucleic acid (DNA) paternity testing.
Respondents Fe Angela and her son Martin Prollamante sued Martins alleged biological father, petitioner Arnel L. Agustin,
for support and support pendente lite before the Regional Trial Court (RTC) of Quezon City, Branch 106. 5
In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an intimate
relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels insistence on
abortion, Fe decided otherwise and gave birth to their child out of wedlock, Martin, on August 11, 2000 at the Capitol
Medical Hospital in Quezon City. The babys birth certificate was purportedly signed by Arnel as the father. Arnel
shouldered the pre-natal and hospital expenses but later refused Fes repeated requests for Martins support despite his
adequate financial capacity and even suggested to have the child committed for adoption. Arnel also denied having
fathered the child.
On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country Club parking lot,
Arnel sped off in his van, with the open car door hitting Fes leg. This incident was reported to the police. In July 2001, Fe
was diagnosed with leukemia and has, since then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin
sued Arnel for support.6
In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe had allegedly ended in
1998, long before Martins conception. He claimed that Fe had at least one other secret lover. Arnel admitted that their
relationship started in 1993 but "he never really fell in love with (Fe) not only because (she) had at least one secret lover,
a certain Jun, but also because she proved to be scheming and overly demanding and possessive. As a result, theirs was
a stormy on-and-off affair. What started as a romantic liaison between two consenting adults eventually turned out to be a
case of fatal attraction where (Fe) became so obsessed with (Arnel), to the point of even entertaining the idea of marrying
him, that she resorted to various devious ways and means to alienate (him) from his wife and family. Unable to bear the
prospect of losing his wife and children, Arnel terminated the affair although he still treated her as a friend such as by
referring potential customers to the car aircon repair shop" 7 where she worked. Later on, Arnel found out that Fe had
another erstwhile secret lover. In May 2000, Arnel and his entire family went to the United States for a vacation. Upon their
return in June 2000, Arnel learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge
the child as his because their "last intimacy was sometime in 1998." 8 Exasperated, Fe started calling Arnels wife and
family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot to demand that he
acknowledge Martin as his child. According to Arnel, he could not get through Fe and the discussion became so heated
that he had no "alternative but to move on but without bumping or hitting any part of her body." 9 Finally, Arnel claimed that
the signature and the community tax certificate (CTC) attributed to him in the acknowledgment of Martins birth certificate
were falsified. The CTC erroneously reflected his marital status as single when he was actually married and that his birth
year was 1965 when it should have been 1964.10
In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but expressed willingness to
consider any proposal to settle the case.11

On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to submit themselves to DNA
paternity testing pursuant to Rule 28 of the Rules of Court. 12
Arnel opposed said motion by invoking his constitutional right against self-incrimination. 13 He also moved to dismiss the
complaint for lack of cause of action, considering that his signature on the birth certificate was a forgery and that, under
the law, an illegitimate child is not entitled to support if not recognized by the putative father.14 In his motion, Arnel
manifested that he had filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192)
and a petition for cancellation of his name appearing in Martins birth certificate (docketed as Civil Case No. Q-02-46669).
He attached the certification of the Philippine National Police Crime Laboratory that his signature in the birth certificate
was forged.
The trial court denied the motion to dismiss the complaint and ordered the parties to submit themselves to DNA paternity
testing at the expense of the applicants. The Court of Appeals affirmed the trial court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a petition for
recognition and (2) whether DNA paternity testing can be ordered in a proceeding for support without violating petitioners
constitutional right to privacy and right against self-incrimination. 15
The petition is without merit.
First of all, the trial court properly denied the petitioners motion to dismiss because the private respondents complaint on
its face showed that they had a cause of action against the petitioner. The elements of a cause of action are: (1) the
plaintiffs primary right and the defendants corresponding primary duty, and (2) the delict or wrongful act or omission of
the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the
prayer of the complaint but by the facts alleged. 16
In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as a result of which she
gave birth to Martin out of wedlock. In his answer, petitioner admitted that he had sexual relations with Fe but denied that
he fathered Martin, claiming that he had ended the relationship long before the childs conception and birth. It is
undisputed and even admitted by the parties that there existed a sexual relationship between Arnel and Fe. The only
remaining question is whether such sexual relationship produced the child, Martin. If it did, as respondents have alleged,
then Martin should be supported by his father Arnel. If not, petitioner and Martin are strangers to each other and Martin
has no right to demand and petitioner has no obligation to give support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the childs birth
certificate which he purportedly signed as the father. He also claims that the order and resolution of the trial court, as
affirmed by the Court of Appeals, effectively converted the complaint for support to a petition for recognition, which is
supposedly proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask for support
and must first establish his filiation in a separate suit under Article 283 17 in relation to Article 26518 of the Civil Code and
Section 1, Rule 10519 of the Rules of Court.
The petitioners contentions are without merit.
The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the
respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary
evidence of acknowledgement. But even if the assailed resolution and order effectively integrated an action to compel
recognition with an action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of
Appeals,20 we allowed the integration of an action to compel recognition with an action to claim ones inheritance:
In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or
presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the
putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and
is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel
recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not
the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the
prescription of the action.

Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private
respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two
causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is
not new in our jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said:
The question whether a person in the position of the present plaintiff can in any event maintain a complex action to
compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in
the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of
the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity
requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful
conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly,
there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent
supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well
settled, that a natural child having a right to compel acknowledgment, but who has not been in fact legally
acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs x x x;
and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or
mother x x x. In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling
acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might
take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. (Underscoring
supplied)
Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating
them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination
of filiation. A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both
cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings.
On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of proving
paternity. He also contends that compulsory testing violates his right to privacy and right against self-incrimination as
guaranteed under the 1987 Constitution. These contentions have no merit.
Given that this is the very first time that the admissibility of DNA testing as a means for determining paternity has actually
been the focal issue in a controversy, a brief historical sketch of our past decisions featuring or mentioning DNA testing is
called for.
In the 1995 case of People v. Teehankee21 where the appellant was convicted of murder on the testimony of three
eyewitnesses, we stated as an obiter dictum that "while eyewitness identification is significant, it is not as accurate and
authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result (emphasis
supplied)."
Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of
Appeals,22 promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science,
(had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such
conventional evidence as the relevant incriminating acts, verbal and written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court
of Appeals:23
A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing.
The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the
DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the
use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not

hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when
competently obtained in aid of situations presented, since to reject said result is to deny progress.
The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with
our en banc decision in People v. Vallejo24 where the rape and murder victims DNA samples from the bloodstained
clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain
whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were)
subjected to various chemical processes to establish their profile."
A year later, in People v. Janson,25 we acquitted the accused charged with rape for lack of evidence because "doubts
persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who
(were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!"
In 2004, in Tecson, et al. v. COMELEC26 where the Court en banc was faced with the issue of filiation of then presidential
candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing,
which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead
parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court
has acknowledged the strong weight of DNA testing
Moreover, in our en banc decision in People v. Yatar,27 we affirmed the conviction of the accused for rape with homicide,
the principal evidence for which included DNA test results. We did a lengthy discussion of DNA, the process of DNA
testing and the reasons for its admissibility in the context of our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A persons DNA
is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as
the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and
rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same
DNA, with the notable exception of identical twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the
samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in
analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on
DNA print or identification techniques. Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA
profile of appellant are identical to that of the extracts subject of examination. The blood sample taken from the appellant
showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are
identical with semen taken from the victims vaginal canal. Verily, a DNA match exists between the semen found in the
victim and the blood sample given by the appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice
system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the
wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S.
has proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on
scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed
greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific
techniques. DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or
non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing
STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on
scientifically valid principles of human genetics and molecular biology.

Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results thereof as
evidence. In that case, DNA samples from semen recovered from a rape victims vagina were used to positively identify
the accused Joel "Kawit" Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood sample for DNA
testing, as well as the testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of
Article III of the Constitution. We addressed this as follows:
The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The
right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission
of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of object evidence taken from the person of the accused from
the realm of self-incrimination. These include photographs, 28 hair,29 and other bodily substances.30 We have also declared
as constitutional several procedures performed on the accused such as pregnancy tests for women accused of
adultery,31 expulsion of morphine from ones mouth32 and the tracing of ones foot to determine its identity with bloody
footprints.33 In Jimenez v. Caizares,34 we even authorized the examination of a womans genitalia, in an action for
annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some
of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA
testing and its results, per our ruling in Yatar,35are now similarly acceptable.
Nor does petitioners invocation of his right to privacy persuade us. In Ople v. Torres,36 where we struck down the
proposed national computerized identification system embodied in Administrative Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The
right is not intended to stifle scientific and technological advancements that enhance public service and the common
good... Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common
good.
Historically, it has mostly been in the areas of legality of searches and seizures, 37 and the infringement of privacy of
communication38 where the constitutional right to privacy has been critically at issue. Petitioners case involves neither
and, as already stated, his argument that his right against self-incrimination is in jeopardy holds no water. His hollow
invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being
violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see
no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the
same.
DNA paternity testing first came to prominence in the United States, where it yielded its first official results sometime in
1985. In the decade that followed, DNA rapidly found widespread general acceptance. 39 Several cases decided by various
State Supreme Courts reflect the total assimilation of DNA testing into their rules of procedure and evidence.
The case of Wilson v. Lumb40 shows that DNA testing is so commonly accepted that, in some instances, ordering the
procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New York allowed a party who had
already acknowledged paternity to subsequently challenge his prior acknowledgment. The Court pointed out that, under
the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty, upon receipt
of the challenge, to order DNA tests:41
516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section one
hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health
law shall establish the paternity of and liability for the support of a child pursuant to this act. Such
acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b
of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate
has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged
acknowledgment of paternity.
(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law
or section four thousand one hundred thirty-five-b of the public health law may be rescinded by either signators
filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing
the acknowledgment or the date of an administrative or a judicial proceeding (including a proceeding to establish
a support order) relating to the child in which either signator is a party. For purposes of this section, the "date of an
administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the
petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge

the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the
burden of proof on the party challenging the voluntary acknowledgment. Upon receiving a partys challenge to
an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the
childs paternity and shall make a finding of paternity, if appropriate, in accordance with this article.
Neither signators legal obligations, including the obligation for child support arising from the acknowledgment,
may be suspended during the challenge to the acknowledgment except for good cause as the court may find. If a
party petitions to rescind an acknowledgment and if the court determines that the alleged father is not the father of
the child, or if the court finds that an acknowledgment is invalid because it was executed on the basis of fraud,
duress, or material mistake of fact, the court shall vacate the acknowledgment of paternity and shall immediately
provide a copy of the order to the registrar of the district in which the childs birth certificate is filed and also to the
putative father registry operated by the department of social services pursuant to section three hundred seventytwo-c of the social services law. In addition, if the mother of the child who is the subject of the acknowledgment is
in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall
immediately provide a copy of the order to the child support enforcement unit of the social services district that
provides the mother with such services.
(c) A determination of paternity made by any other state, whether established through the parents
acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith and
credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of the social
security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court Act: 42
532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests.
a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the
courts own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to
one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body
designated by the secretary of the federal department of health and human services and performed by a
laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified
physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test
shall be ordered, however, upon a written finding by the court that it is not in the best interests of the
child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a
married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to
this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence
by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where
no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be
deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic
marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of
such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted,
the paternity of and liability for the support of a child pursuant to this article and article four of this act.
(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in
subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil
practice law and rules if offered by any party.
(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the
moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public
health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the
appropriate local social services district. In its order of disposition, however, the court may direct that the cost of
any such test be apportioned between the parties according to their respective abilities to pay or be assessed
against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay.
(emphasis supplied)
In R.E. v. C.E.W.,43 a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W., previously
thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W.
had, at the time of conception, maintained an adulterous relationship.

In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G.,44 the 4th Department of the New York
Supreme Courts Appellate Division allowed G.G., who had been adjudicated as T.M.H.s father by default, to have the
said judgment vacated, even after six years, once he had shown through a genetic marker test that he was not the childs
father. In this case, G.G. only requested the tests after the Department of Social Services, six years after G.G. had been
adjudicated as T.M.H.s father, sought an increase in his support obligation to her.
In Greco v. Coleman,45 the Michigan Supreme Court while ruling on the constitutionality of a provision of law allowing nonmodifiable support agreements pointed out that it was because of the difficulty of determining paternity before the advent
of DNA testing that such support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in
this lawsuit entered into their support agreement(current testing methods can determine the probability of paternity to
99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity
was a very significant obstacle to an illegitimate child's access to child support. The first reported results of
modern DNA paternity testing did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching has
progressed to 'general acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude
some males from being the possible father of a child, those methods could not affirmatively pinpoint a particular male as
being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing
paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than
credibility contests. Consequently, in every contested paternity action, obtaining child support depended not merely on
whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a
court of law that she was only sexually involved with one man--the putative father. Allowing parties the option of entering
into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her burden of
proof.
It is worth noting that amendments to Michigans Paternity law have included the use of DNA testing: 46
722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order;
refusal to submit to typing or identification profiling; qualifications of person conducting typing or identification profiling;
compensation of expert; result of typing or identification profiling; filing summary report; objection; admissibility;
presumption; burden of proof; summary disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either
party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue
typing determinations, which may include, but are not limited to, determinations of red cell antigens, red
cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine
whether the alleged father is likely to be, or is not, the father of the child. If the court orders a blood or
tissue typing or DNA identification profiling to be conducted and a party refuses to submit to the typing or
DNA identification profiling, in addition to any other remedies available, the court may do either of the
following:
(a) Enter a default judgment at the request of the appropriate party.
(b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for
not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity
determinations by a nationally recognized scientific organization, including, but not limited to, the American
association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the qualified person described in subsection (2)
conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA
identification profile and summary report are admissible as provided in subsection (4), paternity is
presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a
probability of paternity greater than 99%, the contracting laboratory shall conduct additional genetic

paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more
putative fathers who have identical DNA.
(6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move
for summary disposition under the court rules. this section does not abrogate the right of either party to child
support from the date of birth of the child if applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,47 the Supreme Court of Mississippi ruled that DNA test results showing paternity were sufficient to
overthrow the presumption of legitimacy of a child born during the course of a marriage:
The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as Justin's father,
even considering the evidence in the light most favorable to Perkins, we find that no reasonable jury could find that Easter
is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,48 the North Dakota Supreme Court upheld an order for genetic testing given by the Court of
Appeals, even after trial on the merits had concluded without such order being given. Significantly, when J.C.F., the
mother, first filed the case for paternity and support with the District Court, neither party requested genetic testing. It was
only upon appeal from dismissal of the case that the appellate court remanded the case and ordered the testing, which
the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,49 decided by the Supreme Court of South Dakota, demonstrated that even default
judgments of paternity could be vacated after the adjudicated father had, through DNA testing, established non-paternity.
In this case, Kohl, having excluded himself as the father of Amundsons child through DNA testing, was able to have the
default judgment against him vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts
withheld from his wages for child support. The Court said "(w)hile Amundson may have a remedy against the father of the
child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to Amundson's position, the fact that
a default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for
the amount withheld from his wages."
In M.A.S. v. Mississippi Dept. of Human Services,50 another case decided by the Supreme Court of Mississippi, it was held
that even if paternity was established through an earlier agreed order of filiation, child support and visitation orders could
still be vacated once DNA testing established someone other than the named individual to be the biological father. The
Mississippi High Court reiterated this doctrine in Williams v. Williams.51
The foregoing considered, we find no grave abuse of discretion on the part of the public respondent for upholding the
orders of the trial court which both denied the petitioners motion to dismiss and ordered him to submit himself for DNA
testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available "when any tribunal,
board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of
law."52 In Land Bank of the Philippines v. the Court of Appeals53 where we dismissed a special civil action for certiorari
under Rule 65, we discussed at length the nature of such a petition and just what was meant by "grave abuse of
discretion":
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice,
or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in contemplation of law.
The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of
judgment. The raison detre for the rule is when a court exercises its jurisdiction, an error committed while so engaged
does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a
court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the
administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal
soundness of the decisionnot the jurisdiction of the court to render said decisionthe same is beyond the province of a
special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of
the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act
complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or

excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the
said Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that
would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within
its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment.
As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence,
was correct.
Epilogue
For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing
sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned
progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This
case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence
gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of
determining paternity.
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals decision dated January 28,
2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.

365 P.2d 448 (1961)

69 N.M. 206
Jesse G. LOPEZ, Plaintiff-Appellant, v. Robert HEESEN and Sears, Roebuck and Company, a corporation,
Defendants-Appellees.
Supreme Court of New Mexico.
August 22, 1961.
Rehearing Denied October 31, 1961.
CHAVEZ, Justice.
Appellant, Jesse G. Lopez, originally filed suit against appellee, Robert Heesen, alleging that on October 15, 1958,
Heesen unlawfully, violently, maliciously and feloniously assaulted and shot appellant with a shotgun, thereby inflicting
dangerous and painful wounds and injuries to appellant, causing him great bodily and mental pain and anguish, all to his
damage in the total sum of $80,000, which included $25,000 punitive damages.
Appellee, Heesen, answered denying the allegations of the complaint and thereafter appellant filed a demand for jury trial.
By stipulation of appellant and appellee, Heesen, appellee, Sears, Roebuck and Company was joined as a partydefendant. Appellee, Sears, Roebuck and Company, will hereinafter be referred to as appellee "Sears." Thereafter two
amended complaints followed before the third amended complaint was filed, alleging that appellee, Sears, was engaged
in the design and manufacture of hunting firearms, including the Higgins Model 51, Cal. 30.06 rifle, and was also engaged
in the selling of firearms in Albuquerque.
It was also alleged that on October 14, 1958, appellee, Sears, sold to appellee, Heesen, one of said Higgins Model 51
hunting rifles; that said rifle was negligently designed or manufactured by appellee, Sears, in that the safety mechanism
moved readily and in a dangerous manner from a "safe" to a "fire" position. In addition, it was alleged that the rifle in this
dangerous condition known to appellee, Sears, was sold to appellee, Heesen, with the knowledge that it would be used
for hunting purposes and that appellee, Sears, negligently failed to warn appellee, Heesen, of the dangerous and
defective condition of the rifle.
The complaint further alleged that on the afternoon of October 15, 1958, in Colfax County, New Mexico, appellee, Heesen,
negligently permitted the rifle to discharge while hunting and that as a proximate result of the joint and concurrent
negligence of both appellees, appellant sustained a severe and disabling wound and injury to his chest, requiring hospital
and surgical care. Appellant demanded damages in the amount of $55,000 against both appellees, jointly and severally.
Appellee, Heesen, answered denying the allegations of the third amended complaint. Appellee, Sears, also answered
denying the allegations and raising additional affirmative defenses, to-wit: That appellant's injuries were caused by an
unavoidable accident; that the negligence of appellee, Heesen, was the sole cause thereof; that the rifle involved was of a
recognized quality and of proper design and functioned properly by all commercial sporting arms standards when used
with reasonable care; that rifles of this type had been manufactured by the millions and used by hunters generally and by

the government of the United States and foreign countries; that the safety mechanism and its qualities were patent and
obvious, and had been seen and inspected by Heesen prior to the accident; that Heesen knew of the tendency of the
safety mechanism to come off safety to "fire" position while hunting in heavy brush and climbing up and down mountain
[365 P.2d 450]
terrain when pressure was applied to the safety mechanism; that appellee, Sears, had no duty to warn appellee, Heesen,
of the method of operation and use of the safety mechanism; and that it could not have been foreseen that appellee,
Heesen, would continue to hunt in heavy brush and mountainous terrain knowing that the safety mechanism would come
off safety without taking proper precautions to handle the rifle in a reasonable manner.
The jury returned its verdict finding the issues for both appellees and against appellant. Judgment was entered for
appellees and this appeal followed. Appellant abandoned any contention that the verdict in favor of Heesen was
erroneous and this appeal concerns only appellee, Sears.
The facts are substantially as follows. In the early afternoon of October 14, 1958, appellee, Heesen, an Air Force officer,
purchased a J.C. Higgins Model 51, 30.06 rifle from the store of appellee, Sears. Said rifle has a bolt action known more
particularly as a "Mauser type action" with which Heesen was familar. Heesen, although experienced in hunting, was not
familiar with the Higgins Model 51 and had never used such a rifle. The safety mechanism on the rifle is what is known as
a "Class 1" safety, meaning that it interrupts the firing pin directly. The safety lever is mounted on the left side of the gun to
the rear of the bolt assembly. It is a two-position safety with the action locked when the safety lever is in a raised position.
To release the safety, you push the safety lever to the left and down to a horizontal position and the gun is then ready to
fire.
Heesen first telephoned appellee's store about obtaining a Higgins rifle which they advertised. Later he went to appellee's
store and purchased the rifle. At the time of the purchase Heesen was given an instruction pamphlet which he read. Said
pamphlet explained the composition of the rifle and gave operating instructions, including the method to be pursued to
make the gun "safe," i.e., how the gun is put in a safety position and how it may be released and have the gun ready to
fire. It appears that Heesen first talked to a salesman, John C. Villella, over the telephone and requested that the rifle be
put aside for him. However, another salesman, Roger Perkins made the actual transfer of the rifle to Heesen. Perkins'
whereabouts is unknown and nothing is known as to Perkins' conversation with Heesen. Villella did not give Heesen any
instructions as to the use of the safety mechanism. There was a telescopic sight advertised for sale for use with this rifle
but Heesen did not care for the sight and did not purchase it.
Immediately after the purchase of the rifle, Heesen left for a deer hunting trip in an area known as Ute Park near the town
of Eagle Nest in Colfax County. He arrived at Ute Park that night and began hunting the next morning on October 15,
1958. Heesen hunted without success and had seen no game up until the time his gun discharged and appellant was
wounded shortly after 3:00 P.M.
When Heesen commenced hunting that morning he placed a live cartridge in the chamber and placed the gun on safety
position. He traveled a good deal during the hours before the shooting and on one or two occasions he discovered the
gun off safety position. This was when he had come down a long hill covered with rocks and boulders and he assumed
that he had hit it against a rock or something. Thereafter Heesen checked the safety position on frequent occasions.

Heesen carried the gun on his right shoulder with the sling at port arms or ready position, with his left hand on the forearm
of the gun and his right hand on the stock, and by the forearm of the gun with his right hand at the "balance" of the rifle. In
each of these positions the safety lever was toward Heesen's body or right leg. Heesen changed the position in which he
carried the rifle during the course of his walking up and down mountain slopes. He also carried it in a different position in
going through brush and in climbing or stepping upon rocks. Although the gun moved from "safe" to "fire" position at least
twice during the hours before
[365 P.2d 451]
the shooting, Heesen was not aware of this occurrence. Shortly before the shooting, Heesen had been sitting on a knoll
for about twenty minutes checking the wind and watching for deer. While sitting on the knoll he checked or observed the
safety lever on the rifle several times and it was on safety position. At a time not more than ten minutes before the
shooting he left the knoll and started down a draw which ran in a southerly or southwesterly direction. Heesen was not
sure whether he checked the safety lever after he left the knoll and he was carrying the gun on his shoulder by the sling
as he proceeded down the draw toward the point where the gun discharged.
At about this time, appellant, Jesse G. Lopez, was sitting next to a tree about fifty yards away from the point where
Heesen's gun subsequently discharged. Appellant in the company of two hunting companions, Bennie Aragon and Ramon
Barela, had gone from Albuquerque to Ute Park on the afternoon of October 14, 1958, and after spending the night in the
area, commenced hunting on the morning of October 15th, the first day of deer season. After hunting all morning and
again in the early afternoon, the party stopped to rest at the location where appellant was shot. It was then about 3:00
P.M. and appellant, dressed in bright hunting clothes, was sitting about twenty feet away from his two companions and
scanning the area for game. After sitting there about four or five minutes, appellant observed an object to his right which
was moving but which he could not identify. This was shortly before the shooting.
As appellee, Heesen, proceeded down the draw after leaving the knoll, he heard a "rustle" and saw a deer go between
some trees to the left of his line of travel about 50 to 100 yards away. The deer, when observed, was in a direction about
80 or 90 degrees to the left of where appellant was sitting and Heesen did not observe appellant or his companions before
the shooting. At about this time Heesen removed the rifle from the sling on his shoulder and held it by his right hand at or
near the balance position of the weapon. He then came to a dead log in his path which was about eight or ten inches in
diameter and was lying horizontally a foot or less off the ground with several dead limbs sticking upward from it. One of
these limbs was a dead sapling sticking up about eighteen inches above the log and had a "fork" shaped like a thumb and
forefinger extended. Heesen wanted to cross the log to see the deer better, and as he stepped across the log his left foot
caught on a little limb sticking out and caused him to stumble. His left foot went down hard on the ground on one side of
the log and his right foot slipped on the grass. This brought the gun down and the gun discharged, the bullet striking
appellant. Heesen testified that he had his hand at least six inches away from the trigger when the gun discharged.
Immediately after the gun discharged he observed that the gun was on "fire" position.
Appellant was sitting on ground higher than Heesen at the time the gun discharged and subsequent investigation showed
that the bullet had gone uphill, hit a dead tree and ricocheted several degrees to the left, and had thereafter struck some
seedlings before hitting appellant in the chest. The bullet traveled approximately fifty yards altogether. Heesen went
quickly to the spot where appellant was sitting, observed the seriousness of his condition, and Heesen and Lopez'
companions made immediate arrangements to care for appellant. Heesen obtained medical aid.

There was testimony at the trial that when Heesen was going to the place of the accident with Dr. E.L. Lindsley, he told Dr.
Lindsley that the gun discharged as he was moving it from "fire" position to the "safe" position.
Under point I, appellant contends that the trial court committed error in permitting testimony as to the general reputation of
other firearms companies who use the same modified leaf safety device as the Higgins Model 51. A witness for appellee,
Sears, Paul A. La Violette, Jr., qualified as an expert in gun designing and testified
[365 P.2d 452]
that the following companies had an excellent reputation in the small arms field: Fabrique Nationale of Belgium, Marlin
Firearms Company, Weatherby Corporation, Colt Firearms Company, and Jefferson Corporation. Objection was made to
this testimony on the ground that it was wholly immaterial and irrelevant to any issue in the case.
Appellant, in the third amended complaint, alleged that the Higgins Model 51 rifle was in a dangerous and defective
condition due to its negligent manufacture, design, assembly or maintenance, in that the safety mechanism thereof moved
readily and in a dangerous manner from "safe" to "fire" position. This is an allegation of an ultimate issue of fact which the
jury had to decide. Here is an issue, the proper understanding of which by a jury composed of six men and six ladies,
requires specialized knowledge or experience and cannot be determined independently merely from deductions made
and inferences drawn on the basis of ordinary knowledge. The jury was instructed that expert testimony is intended only to
assist them in coming to a correct conclusion upon facts which are of a technical nature, but that the opinion of experts
was not binding upon them and the jury must determine the weight to be given to such testimony.
Appellant introduced evidence tending to prove that the safety device on the Higgins Model 51 rifle is easy to knock off
safety, making the rifle dangerous. Appellant's witness, Frank Doyle, over appellee's, Sears', objection, expressed the
opinion that the safety device, without the telescopic sight, is not a safe piece, in that the projection is too long and it is too
prone to be knocked from "safe" to "fire" position. There is also testimony of certain tests made with the Higgins Model 51
and the witness, Ira Kessler, expressed the opinion that the Higgins Model 51 was unsafe without the telescopic sight.
Another witness, Robert Allen, testified as to the manner in which the safety lever of the Higgins Model 51 moved from
"safe" to "fire" position without his knowledge.
Appellee, Sears, introduced testimony of witnesses who were either experts in the small arms field or experts in gun
designing. The witness, Paul A. La Violette, Jr., testified that he is a gun designer employed by High Standard
Manufacturing Company who manufacture the Higgins Model 51 for Sears. He qualified as an expert gun designer with
many years' experience with other rifle manufacturers and in factories designing and building weapons of the small arms
design. La Violette has two gun patents pending. La Violette testified that the safety device on the Higgins Model 51 is
supplied to High Standard Manufacturing Company by Fabrique Nationale of Belgium. He also testified extensively as to
the advantages of the safety device of the Higgins Model 51 and stated that six different makes of guns have the same
modified leaf safety device as does the Higgins Model 51. The manufacturers of these guns are F.N. Mauser, Colt, Marlin,
Nato and Weatherby. The evidence also shows that since 1951, 75,572 Higgins Model 51 rifles with the modified leaf
safety device have been sold by High Standard Manufacturing Company to appellee, Sears. High Standard Manufacturing
Company has never been sued by reason of the design of the Higgins Model 51 rifle. There is also opinion evidence that
the Higgins Model 51 rifle is safe by all commercial sporting goods standards.

Appellant appears to concede that the number of rifles manufactured with the modified leaf safety device, and the fact that
other companies manufacture guns with the same design, is relevant as tending to show that the design is proper.
Appellant also seems to concede that the reputation of Fabrique Nationale of Belgium may be relevant to the issue.
Subsequent to the testimony as to the reputation of the various firearms companies who use a similar safety device as the
Higgins Model 51, the witness, Paul A. La Violette, Jr., testified without objection that the Higgins Model 51 rifle is safe by
all commercial sporting goods standards, and that the design of the safety device of the Higgins
[365 P.2d 453]
Model 51 was not negligent or defective. He also testified, without objection, that the safety device on the Higgins Model
51 rifle is excellent for hunting and fulfills the requirements of a good designer. The witness, Thomas Raymond Robinson,
Jr., testified that in his opinion the Higgins Model 51 is good and practical in the field for a prudent hunter, and is suitable
for hunting. Ira L. Kessler, an expert witness called by defendant, Heesen, testified that the Marlin Firearms Company has
a fair reputation, and that the Colt Firearms Company has an excellent reputation.
On an issue such as we have here we believe the applicable rule to be as stated in Wigmore on Evidence, 3d Ed., Vol. II,
461, p. 489, as follows:
(1) The conduct of others evidences the tendency of the thing in question; and such conduct e.g. in using chains on a
hill, felt shoes in a powder-factory, railings around a machine, or in not using them is receivable with other evidence
showing the tendency of the thing as dangerous, defective, or the reverse. But this is only evidence. The jury may find
from other evidence that the thing was in fact dangerous, defective, or the reverse, and the maintenance was or was not
negligence, in spite of the above evidence. * * *
The conduct of others is proper evidence for a jury to consider in determining whether the tendency of the thing is
dangerous, defective, or the reverse. Chicago Great Western Ry. Co. v. McDonough, 8 Cir., 161 F. 657; Wigmore on
Evidence, 3d Ed., Vol. II, 461, p. 495.
Under our Rule, 21-1-1(43) (a), which is the same as the Federal Rule, the rule which favors the reception of the
evidence governs, the basis being that any evidence which throws light on the question in issue should be admitted,
leaving it to the trial court to hold the hearing within reasonable bounds. Mourikas v. Vardianos, 4 Cir., 169 F.2d 53;
Lawrence v. Nutter, 4 Cir., 203 F.2d 540.
Circuit Judge Bratton, in a specially concurring opinion in United States v. Bowman, 10 Cir., 73 F.2d 716, 720, in stating
the rule, quoted from United States Smelting Co. v. Parry, 8 Cir., 166 F. 407, as follows:
It is true that in trials by jury it is their province to determine the ultimate facts, and that the general rule is that witnesses
are permitted to testify to the primary facts within their knowledge, but not to their opinions. And it is also true that this has
at times led to the statement that witnesses may not give their opinions upon the ultimate facts which the jury are to
decide, because that would supplant their judgment and usurp their province. But such a statement is not to be taken
literally. It but reflects the general rule, which is subject to important qualifications, and never was intended to close any
reasonable avenue to the truth in the investigation of questions of fact. Besides, the tendency of modern decisions is not
only to give as wide a scope as is reasonably possible to the investigation of such questions, but also to accord to the trial
judge a certain discretion in determining what testimony has a tendency to establish the ultimate facts, and to disturb his
decision admitting testimony of that character only when it plainly appears that the testimony had no legitimate bearing
upon the questions at issue and was calculated to prejudice the minds of the jurors. * * *

Applying the above principles we hold that the testimony as to the reputation of Fabrique Nationale, who manufacture the
safety device on the Higgins Model 51, and the reputation of Marlin Firearms Company, Weatherby Corporation, Colt
Firearms Company and Jefferson Corporation, who manufacture rifles which have the same modified leaf safety device as
the Higgins Model 51, was relevant to the issue of whether the safety device on the Higgins Model 51 was unsafe or safe,
and
[365 P.2d 454]
that the trial court did not abuse its discretion in admitting this testimony.
Under point II appellant also contends that the trial court committed error in permitting evidence to be introduced as to the
poundage pressure required to move the safety levers of various rifles from "safe" to "fire" position. There is no merit in
this contention. Appellant's witness, Frank Doyle, testified fully as to his experience with guns and particularly with the
Higgins Model 51 safety device, which he termed the dangerous feature of the safety mechanism in that it was "so easy to
knock off." Doyle's testimony was introduced under appellant's contention that the Higgins Model 51 rifle was unsafe and
thus the issue arose as to the pressure required to move the safety lever from "safe" to "fire" position. Under the
circumstances it was proper for appellee, Sears, to show that the poundage pressure required to move the safety lever on
a Higgins Model 51 from "safe" to "fire" measured two-and-one-half pounds, and also to show the poundage pressure
required in rifles with identical safety devices. The evidence discloses that the pound pressure required to move the safety
lever on other similar devices was sometimes a little less and sometimes more than the Higgins Model 51.
Under point III appellant claims that the trial court erred in permitting the witnesses, La Violette, Thomas Robinson and
Edwards Brown, to give opinion evidence that the safety mechanism on the Higgins Model 51 rifle was negligently or
defectively designed. Objection was made to this testimony on the ground that this was an opinion upon a subject which is
within the province of the jury to determine and that the question asked calls for an opinion as to a question of law and
fact.
This contention, we think, must be rejected. The testimony of these witnesses, all experts in their field, was upon the
ultimate issue of fact of whether the safety device on the Higgins Model 51 was dangerous and defective or unsafe, and
was properly the subject of expert testimony. Opinion evidence on an ultimate issue of fact does not attempt or have the
power to usurp the functions of the jury, and this evidence could not usurp the jury's function because the jury may still
reject these opinions and accept some other view. Opinion evidence offered by both parties in this case was not binding
upon the jury and they were so instructed. See Wigmore on Evidence, 3d Ed., Vol. VII, 1920, p. 17; Hooper v. General
Motors Corp., 123 Utah. 515,260 P.2d 549.
In Millers' National Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d 93, 100, the court said:
The insurance companies assert that McDonald was improperly permitted to invade and usurp the province of the jury in
that the sole issue was whether there was an explosion and McDonald was allowed to testify that there was an explosion.
The controlling rule as stated by the United States Supreme Court is that where the matter under inquiry is properly the
subject of expert testimony, it is no objection that the opinion sought to be elicited is upon the issue to be decided. That
rule has been followed in this circuit and applied in two recent decisions.

See also Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122; United States Smelting Co. v. Parry, 8
Cir., 166 F. 407; Nelson v. Brames, 10 Cir., 1957, 241 F.2d 256; and Cropper v. Titanium Pigment Co., 8 Cir., 47 F.2d
1038.
In 20 Am.Jur., Evidence, 775, p. 647, the rule is stated as follows:
* * * In such cases, witnesses possessing requisite training, skill, or knowledge, denominated `experts,' may testify, not
only to the facts, but to their opinions respecting the facts, so far as necessary to enlighten the jury and to enable it to
come to a right verdict. * * * Issues of this kind are said to create a necessity for the admission in evidence of the opinions
or conclusions of witnesses who are shown to be specially skilled or experienced in the particular field in question.
Appellant's final objection to the opinion testimony is that the question asked of the witnesses calls for an opinion as to a
question of law and fact.
Many of the cases cited by appellant on this point are automobile accident cases which hold that an expert or a nonexpert witness cannot express an opinion that the defendant was negligent. The reasoning behind these cases is that this
is within the field of knowledge and understanding of the jury and is not a matter requiring technical assistance of persons
having unusual knowledge of the subject by reason of skill, experience, or knowledge.
The parties agree that the ultimate issue of liability is for the jury to determine and that a witness cannot express an
opinion on a matter of law, as distinguished from an ultimate fact. The ultimate issue in this case was whether the safety
mechanism on the Higgins Model 51 rifle was in a dangerous and defective condition due to its negligent design, in that it
moved readily and in a dangerous manner from "safe" to "fire" position.
Appellant's witnesses testified at great length in what respect they considered the safety mechanism "dangerous,"
"unsafe," and "defective," and expressed the opinion that the safety mechanism was not a safe piece and was unsafe
without the telescopic sight. Appellees' expert witnesses likewise testified in great detail as to the safety mechanism and
they were of the opinion that the safety mechanism on the Higgins Model 51 rifle was safe by all commercial sporting
goods standards, was suitable for hunting, and was not negligently or defectively designed. Thus the jury was free to
adopt either view and then fix the liability.
The word "negligence" is sometimes used in a broad sense and sometimes in a narrow sense. In the broad sense it
includes the elements of liability. In the narrow sense the element of liability is excluded. Pittsburgh, C., C. & St. L. Ry. Co.
v. Nichols, 78 Ind.App. 361, 130 N.E. 546, 553.
* * * An allegation of negligence as applied to the conduct of a party is not a mere conclusion of law, unless made so by
the law, but the statement of an ultimate pleadable and provable fact. * * *
Peavy v. Hardin, Tex.Civ.App. 1926, 288 S.W. 588, 589. See also Gower v. Lamb, Mo. App. 1955, 282 S.W.2d 867; Ege v.
Born, 212 Iowa 1138, 236 N.W. 75; Cohen v. Swiller, 1959, 17 Misc.2d 921, 186 N.Y.S.2d 844; Louis v. Smith-McCormick
Const. Co., 1917, 80 W.Va. 159, 92 S.E. 249; and Hooper v. General Motors Corp., 123 Utah. 515, 260 P.2d 549.

Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337, follows the rule that an expert witness can express an
opinion on an ultimate issue of fact, but cannot testify as to the ultimate issue of liability.
There is much confusion among the decisions due to the language used by the courts in explaining why opinion testimony
should be excluded. Some courts say that the opinion would "usurp the functions of the jury." Other courts say that the
opinion should not be received because "that is the question which the jury must decide." If we are to add to this, the
additional confusion which exists in the decisions as to whether negligence is a question of law or fact, or is a mixed
question of law and fact, we would tend to create more confusion and add to the fine distinctions and limitations.
Opinion evidence is admissible on the basis that it will aid the jury to understand the problem and lead them to the truth on
the ultimate facts, and opinions may be disregarded by the jury in whole or in part. It is left to the jury to decide the issue.
See Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327 P.2d 797; and Hooper v. General Motors Corp., supra.
From a careful consideration of the record, we have come to the conclusion that when we consider all of the testimony
[365 P.2d 456]
bearing upon the question of whether the rifle was dangerous and defective due to its negligent design, that when
appellee used the term "negligent or defective," he was using the word "negligent" in a narrow sense and as to an ultimate
and provable fact. This excluded the element of liability. It was for the jury to fix the ultimate liability of either party. All of
the facts went to the jury and it is our view that under all of the facts and circumstances of this case, the expert opinions
expressed were not improperly admitted.
The trial court did not abuse its discretion in permitting the experts to express their opinion. Bunton v. Hull, 51 N.M. 5, 177
P.2d 168; State v. Padilla, 1959, 66 N.M. 289, 347 P.2d 312; and Wells Truckways v. Cebrian, 1954, 122 Cal.App.2d
666, 265 P.2d 557.
Finding no error in the record, the judgment of the district court is affirmed. It is so ordered.
COMPTON, C.J., and CARMODY, J., concur.
MOISE and NOBLE, JJ., not participating.

State v. Ball
Annotate this Case
339 S.W.2d 783 (1960)
STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.
No. 47575.
Supreme Court of Missouri, En Banc.
November 14, 1960.
Dewey S. Godfrey, St. Louis, for appellant.
*784 John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.
BARRETT, Commissioner.
A jury has found William Arthur Ball guilty of robbery in the first degree; the jury also found prior felony convictions and,
therefore, a mandatory sentence of life imprisonment was imposed. V.A.M.S. 560.120, 560.135, 556.280.
The facts, briefly, as the jury could find them were that about 2:30 in the afternoon of October 15, 1958, two colored men,
one of them tall and the other short, entered the Krekeler Jewelry Store at 1651 South 39th Street. The taller man spent
ten or fifteen minutes selecting and buying a cigarette lighter, he also talked about buying and looked at watches and
rings. As the taller man looked at jewelry and made his purchase the shorter man looked in the cases and moved about in
the store. Later in the day, about 5:50, as John Krekeler was placing rings and watches in the safe preparatory to closing
the store two men entered, one of them tall and the other short, and Krekeler immediately recognized them as the two
men who had been in the store at 2:30, especially the taller man. He recognized the taller man's narrow-brimmed, tall hat,
brown jacket, gray stirt and particularly a scar on his face. The shorter man started to walk behind the counter and as
Krekeler intercepted him he "drew a long barreled blue .38 and stuck it in my face." Both men followed Krekeler, the
shorter man with the gun in "his back," directing him to the watch repair department and finally into the rest room in the
rear of the store. He was told not to turn around and stood facing the wall. He could hear jewelry being dumped into a bag
and the "jingle" of the cash register. The two men left Krekeler in the rest room and after hearing the door slam he called
the police. The two men had taken watches and rings of the stipulated value of $4,455.21 and $140 in cash from the
register. Krekeler identified the appellant from pictures, and three weeks later, after his capture, in a hospital and upon the
trial positively identified him as the taller of the two holdup men.
In his motion for a new trial one of the claims is that there was no direct evidence of an injury or any evidence to show that
Krekeler was put "in fear of some immediate injury to his person," one of the essential elements of robbery in the first
degree. V.A.M.S. 560.120. Krekeler did not affirmatively testify that he was in fear but he could well apprehend injury if
he did not comply with their requests and in the circumstances the jury could reasonably find "the fear" contemplated in
the statute. 77 C.J.S. Robbery 16, p. 459; State v. Thompson, Mo., 299 S.W.2d 468, 474. The element of fear being a
reasonable inference from the evidence, the facts and circumstances support and warrant the finding of robbery in the first
degree. State v. Eckenfels, Mo., 316 S.W.2d 532.
Another of the appellant's sufficiently preserved claims in his motion for a new trial (V.A.M.S. 547.030; Supreme Court
Rule 27.20, V.A.M.R.) has to do with his arrest and the testimony of the two arresting officers. On November 4, 1958,
about three weeks after the robbery, police officers in a squad car saw Ball walking on Easton Avenue. The officers

stopped him, told him that they were officers and that he was under arrest. As officer Powell faced and searched Ball
officer Ballard "holstered" his gun and attempted "to cuff" him. Ball shoved Powell over and ran down Easton Avenue, the
officers ran after him, Powell being closest. Powell yelled, "Halt Ball, you're under arrest," and fired one shot high in the air
but Ball continued running and Powell fired four more shots, two at his legs, one at his buttocks, and he finally fell from a
bullet in his back. It is claimed that this evidence was not material or relevant, that it was too remote from the date of the
robbery to indicate a consciousness of guilt and since it was of course prejuducial *785 that he is entitled to a new trial.
But unexplained flight and resisting arrest even thirty days after the supposed commission of a crime is a relevant
circumstance (State v. Duncan, 336 Mo. 600, 611, 80 S.W.2d 147, 153), the remoteness of the flight goes to the weight of
the evidence rather than to its admissibility. 20 Am.Jur., Sec. 293, p. 274.
When Ball was finally subdued and arrested the officers took from his person and impounded a brown felt hat, "a
brownish" windbreaker type jacket, trousers, gray shirt and shoesthese were exhibits one and two, Ball admitted that they
belonged to him although his evidence tended to show that he had purchased the jacket after October 15. In identifying
Ball, in addition to the scar on his face, Krekeler was impressed with and remembered the brown ensemble, particularly
the "tall brown hat." These items were of course relevant and admissible in evidence and there is no objection to them.
State v. Johnson, Mo., 286 S.W.2d 787, 792. The appellant objects, however, in his motion for a new trial that a police
officer was permitted to testify that $258.02 in currency and two pennies were taken from his person. It is said that the
introduction of these exhibits was "immaterial and irrelevant, neither tended to prove nor disprove any of the issues
involved in this case; that said money as seized at the time of the arrest was neither identified by Mr. Krekeler nor by any
other person as the money which was allegedly stolen from the A. L. Krekeler & Sons Jewelry Company on the 15th day
of October, 1958; that said evidence was considered by this jury to the prejudice of this defendant convincingly."
The circumstances in which this evidence was introduced were these: After the clothes were identified and introduced as
exhibits one and two the prosecuting attorney inquired of officer Powell, "Did you also seize his personal effects?"
Defense counsel immediately objected to any testimony relating to personal effects found on the defendant "at the time."
The court overruled the objection and state's counsel inquired, "Well Officer, what personal effects were seized?" Defense
counsel, evidently knowing and anticipating, objected "to any testimony relevant (sic) to any personal effects seized upon
this Defendant at the time he was arrested by reason of the fact it is immaterial and irrelevant and tends to neither prove
nor disprove any facts involved and ask that the jury be discharged and a mistrial be declared." The court overruled the
objection and the officer said, "Ball's personal effects consisted of two hundred and fifty eight dollars and two cents in
cash, with the denominations of the bill(s), two one hundred dollar bills, a twentytwo twenties, a ten, a five, three ones and
two pennies. He had a ladies ring and a man's wristwatch. He had a crusifixion along with a small pen knife and a black
leather wallet. Maybe one or two other personal articles." All of these items were then marked as exhibits, from three to
nine, offered in evidence and described by the officer, exhibit three being the bills and pennies comprising the $258.02.
According to the officer Mr. Krekeler was unable to identify any of these articles or the money as having come from the
jewelry store robbery and there is no objection in the motion to any of the items other than the money and some of them
were obviously not prejudicial, for example the keys, a small penknife and wallet.
Unlike the roll of dimes in State v. Hampton, Mo., 275 S.W.2d 356, the testimony as to the $258.02 was not offered in
proof of the substantive fact of the crime. In that case the five-dollar roll of dimes wrapped in a roll of green paper was
found on the defendant the same day of the burglary and while the fact was a circumstance admissible in evidence it was
held to not constitute substantive evidence inconsistent with the hypothesis of the defendant's innocence of burglary. In
State v. Gerberding, Mo., 272 S.W.2d 230, there was no timely or proper objection to the proof but $4,000 was taken in a
robbery and *786 the appellant had $920 in currency in his topcoat pocket when captured the day of the robbery. The
proof of the money here was evidently on the theory that Ball did not have or was not likely to have such a sum of money
on his person prior to the commission of the offense. 1 Wharton, Criminal Evidence, Sec. 204, p. 410. As to this the facts

were that he had been out of the penitentiary about eight months and the inference the state would draw is that he had no
visible means of support and no employment and could not possibly have $258.02 except from robberies. Of course,
there was no such proof and Ball claimed that he had worked intermittently for a custodian or janitor of an apartment
house and that he had won the $258.02 in a series of crap games at a named place. Not only was Krekeler unable to
identify the money or any of the items on Ball's person as having come from the jewelry store so that in fact they were not
admissible in evidence (annotation 3 A.L.R. 1213), the charge here was that Ball and his accomplice took jewelry of the
value of $4,455.21 and $140 in cash from the cash register. There was no proof as to the denomination of the money in
the cash register, it was simply a total of $140. Here nineteen days had elapsed, there was no proof that Ball had
suddenly come into possession of the $258.02 (annotation 123 A.L.R. 119) and in all these circumstances "The mere
possession of a quantity of money is in itself no indication that the possessor was the taker of money charged as taken,
because in general all money of the same denomination and material is alike, and the hypothesis that the money found is
the same as the money taken is too forced and extraordinary to be receivable." 1 Wigmore, Evidence, Sec. 154, p. 601. In
the absence of proof or of a fair inference from the record that the money in Ball's possession at the time of his arrest
came from or had some connection with the robbery and in the absence of a plain showing of his impecuniousness before
the robbery and his sudden affluence (State v. Garrett, 285 Mo. 279, 226 S.W. 4), the evidence was not in fact relevant
and in the circumstances was obviously prejudicial for if it did not tend to prove the offense for which the appellant was on
trial the jury may have inferred that he was guilty of another robbery. State v. Bray, Mo. App., 278 S.W.2d 49; People v.
Orloff, 65 Cal. App. 2d 614, 620-621, 151 P.2d 288; annotation 123 A.L.R. loc. cit. 132-134 and compare the facts and
circumstances in State v. Garrett, supra. The admission of the evidence in the circumstances of this record infringed the
right to a fair trial and for that reason the judgment is reversed and the cause remanded.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en banc.
WESTHUES, EAGER, STORCKMAN and HOLLINGSWORTH, JJ., concur.
HYDE, C. J., and LEEDY and DALTON, JJ., dissent.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81561

January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX)
convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e)
(i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went
to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila,
carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes)
attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich,
Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport
number, the date of shipment and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr
II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however,
refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in
Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four
(4) packages were then placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was
placed at the bottom and on top of the packages before the box was sealed with masking tape, thus making the
box ready for shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor)
and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection.
When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of
the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of one of the gloves. He made an opening on one of the
cellophane wrappers and took several grams of the contents thereof(tsn, pp. 29-30, October 6, 1987; Emphasis
supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination
of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of
Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed
by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office.
Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila
(tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI
agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38,
October 6, 1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the
package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera
cigars was also opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn,
p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a
"Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the
Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops
as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs
Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS
RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON
HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional
rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935
Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches
and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the

judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court
may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct.
1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any
evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier
adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the
illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to
the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence
obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.),
Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986];
Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the
State acting through the medium of its law enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily
discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of
State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in
violation of appellant's constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot
be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person,
whether citizen or alien, from interference by government, included in which is his residence, his papers, and
other possessions. . . .
. . . There the state, however powerful, does not as such have the access except under the circumstances above
noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to
respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States,
116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against
unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous
cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a
restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than
governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the
citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the
automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are
restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621,
49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen the owner of a motel in
which appellant stayed overnight and in which he left behind a travel case containing the evidence***complained
of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the
local police, informed them of the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a
search by a private citizen. Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the Government without the latter transgressing
appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be
admitted against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence
later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to
fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal
search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the
proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a
standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122;
167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and
later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment
and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much
less an illegal one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless
search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a
search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search
(Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927];
Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the
police at the specific request of the manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds
support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the
land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech
in the Bill of Rights answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy.
Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the
individual and the state. Its concern is not the relation between individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to
any power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol.
1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only
against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against
the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its
own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is
involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present
phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the
constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the government and
fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized
that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search
warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced
deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against.
The restraint stayed with the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an
individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private
individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal
complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies,
in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and
communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the
undisputed fact that his rights under the constitution while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate,
as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the
assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is
presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full
faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that
appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the
accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not
to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As
borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while
being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is there any
reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of
conviction. Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the
packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub
along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and
gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to
human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not
have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to
readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the
cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply
accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere sayso" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and
cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters
(People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously
convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that
the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is
just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original
Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such
as the common experience and observation of mankind can approve as probable under the circumstances (People v. Alto,
26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989];
People v. Sunga, 123 SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did
not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B",
Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more
weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him
(Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is
hereby AFFIRMED. No costs.
SO ORDERED.

EN BANC
BRICCIO Ricky A. POLLO,
Petitioner,

G.R. No. 181881

Present:

- versus -

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

CHAIRPERSON KARINA CONSTANTINODAVID,

DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA,
DIRECTOR IV LYDIA A.
CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND THE
Promulgated:
CIVIL SERVICE COMMISSION,
Respondents.
October 18, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged administratively
and eventually dismissed from the service. The employees personal files stored in the computer were used by the
government employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
Decision[1] dated October 11, 2007 and Resolution[2] dated February 29, 2008 of the Court of Appeals (CA). The CA
dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio Ricky A. Pollo to nullify the
proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct,
conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with
dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-inCharge of the Public Assistance and Liaison Division (PALD) under the Mamamayan Muna Hindi Mamaya Na program of
the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina
Constantino-David which was marked Confidential and sent through a courier service (LBC) from a certain Alan San
Pascual of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the
CSC Central Office. Following office practice in which documents marked Confidential are left unopened and instead sent
to the addressee, the aforesaid letter was given directly to Chairperson David.
The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer of an accused govt employee having a pending
case in the csc. I honestly think this is a violation of law and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the
chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending
cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate
this anomaly because our perception of your clean and good office is being tainted.
Concerned Govt employee[3]

Chairperson David immediately formed a team of four personnel with background in information technology (IT), and
issued a memo directing them to conduct an investigation and specifically to back up all the files in the computers found in
the Mamamayan Muna (PALD) and Legal divisions. [4] After some briefing, the team proceeded at once to the CSC-ROIV
office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the
CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of
Chairperson Davids directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by
several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m.,
Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing
them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received
by petitioner read:
Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of
the Chairman. If you can make it here now it would be better.
All PCs Of PALD and LSD are being backed up per memo of the chair.
CO IT people arrived just now for this purpose. We were not also informed about this.
We cant do anything about it its a directive from chair.
Memo of the chair was referring to an anonymous complaint; ill send a copy of the memo via mms [5]

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a
lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC
main office: Sir may mga taga C.O. daw sa kuarto natin. [6] At around 10:00 p.m. of the same day, the investigating team
finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all
the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD
computers were turned over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for
Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters [7] in
connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David
issued the Show-Cause Order [8] dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to
submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following
observations:
Most of the foregoing files are drafts of legal pleadings or documents that are related to or
connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV,
the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft
pleadings are for and on behalves of parties, who are facing charges as respondents in administrative
cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and
willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central
personnel agency of the government tasked to discipline misfeasance and malfeasance in the
government service. The number of pleadings so prepared further demonstrates that such person is not
merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height
of naivete or credulity, and certainly against common human experience, to believe that the person
concerned had engaged in this customary practice without any consideration, and in fact, one of the
retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were
obtained from the computer assigned to Pollo invariably raises the presumption that he was the one
responsible or had a hand in their drafting or preparation since the computer of origin was within his direct
control and disposition.[9]

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no
attachments to it, because he is not a lawyer and neither is he lawyering for people with cases in the CSC. He accused
CSC officials of conducting a fishing expedition when they unlawfully copied and printed personal files in his computer,
and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that
he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007
in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives,
friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would
violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of the computer issued under a
Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In
view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as
evidence, being fruits of a poisonous tree.[10]

On February 26, 2007, the CSC issued Resolution No. 070382 [11] finding prima facie case against the petitioner and
charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of
R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to
submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the
charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension
effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1,
2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as
without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power
pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and
alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one
time or another, to make use of his computer out of close association or friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioners CPU and Atty. Eric N. Estrellado,
the latter being Atty. Solosas client who attested that petitioner had nothing to do with the pleadings or bill for legal fees
because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be
deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against
Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the
preventive suspension imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the CSC denied the
omnibus motion. The CSC resolved to treat the said motion as petitioners answer.

On March 14, 2007, petitioner filed an Urgent Petition [13] under Rule 65 of the Rules of Court, docketed as CAG.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February
26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior
to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the
Ombudsman, and a separate complaint for disbarment against Director Buensalida. [14]
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April
30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.
[15]
Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17,
2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle
the prosecution to proceed with the formal investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing
conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition
by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar
warning on the consequences of petitioner and/or his counsels non-appearance. [17] This prompted petitioner to file another
motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt. [18]
On June 12, 2007, the CSC issued Resolution No. 071134 [19] denying petitioners motion to set aside the denial of his
motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer
was directed to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to
have waived his right to the formal investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420, [20] the dispositive part of which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A.
Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM
THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service
examinations.[21]

On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the dearth of
jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an
employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible
misconduct committed by said employee and without the latters consent or participation. The CSC thus turned to relevant
rulings of the United States Supreme Court, and cited the leading case of OConnor v. Ortega[22] as authority for the view
that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and
seizure in the governmental workplace without meeting the probable cause or warrant requirement for search and
seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons[23] which declared that
the federal agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondents
legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the
employees office was upheld as valid because a government employer is entitled to conduct a warrantless search
pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of
privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even
assuming that there was no such administrative policy, the CSC was of the view that the search of petitioners computer
successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited
authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was

undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant
requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then
ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified
petitioners dismissal from the service with all its accessory penalties.
In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above resolution dismissing him from
the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise
prayed for the inclusion of Resolution No. 071800 [25] which denied his motion for reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of
discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the
anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof
yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioners computer
and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC
computer policy declaring the computers as government property and that employee-users thereof have no reasonable
expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing
contemptuous in CSCs act of proceeding with the formal investigation as there was no restraining order or injunction
issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS
IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN
TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2 nd PARAGRAPH OF
SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL
RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW
AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT
INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELFINCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL
MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF
DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING
AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED
IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE
PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002.
AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M.
10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE
III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS,
ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND
TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 071420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID
NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR
TRO.[26]
Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his
personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the
guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution, [27] which
provides:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of unreasonable searches and
seizures.[28] But to fully understand this concept and application for the purpose of resolving the issue at hand, it is
essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared
in People v. Marti[29]:
Our present constitutional provision on the guarantee against unreasonable search and seizure
had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants shall
issue but upon probable cause, to be determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized. (Sec. 1[3],
Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As
such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction. [30]

In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of FBI agents in electronically
recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and
constituted a search and seizure. Because the petitioner had a reasonable expectation of privacy in using the enclosed
booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring
opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a twofold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as reasonable (objective). [32]
In Mancusi v. DeForte[33] which addressed the reasonable expectations of private employees in the workplace, the US
Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters
that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus
recognized that employees may have a reasonable expectation of privacy against intrusions by police.
That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of OConnor v.
Ortega[34] where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program,

sexual harassment of female hospital employees and other irregularities involving his private patients under the state
medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the
Court categorically declared that [i]ndividuals do not lose Fourth Amendment rights merely because they work for the
government instead of a private employer.[35] A plurality of four Justices concurred that the correct analysis has two steps:
first, because some government offices may be so open to fellow employees or the public that no expectation of privacy is
reasonable, a court must consider [t]he operational realities of the workplace in order to determine whether an employees
Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an
employers intrusion on that expectation for noninvestigatory, work-related purposes, as well as for investigations of workrelated misconduct, should be judged by the standard of reasonableness under all the circumstances. [36]
On the matter of government employees reasonable expectations of privacy in their workplace, OConnor teaches:
x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like
similar expectations of employees in the private sector, may be reduced by virtue of actual office practices
and procedures, or by legitimate regulation. x x x The employees expectation of privacy must be
assessed in the context of the employment relation. An office is seldom a private enclave free from entry
by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other visitors during the workday for conferences,
consultations, and other work-related visits. Simply put, it is the nature of government offices that others
such as fellow employees, supervisors, consensual visitors, and the general public may have frequent
access to an individuals office. We agree with JUSTICE SCALIA that [c]onstitutional protection against
unreasonable searches by the government does not disappear merely because the government has the
right to make reasonable intrusions in its capacity as employer, x x x but some government offices may
be so open to fellow employees or the public that no expectation of privacy is reasonable . x x
x Given the great variety of work environments in the public sector, the question of whether an
employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.
[37]
(Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas Fourth
Amendment rights are implicated only if the conduct of the hospital officials infringed an expectation of privacy that society
is prepared to consider as reasonable. Given the undisputed evidence that respondent Dr. Ortega did not share his desk
or file cabinets with any other employees, kept personal correspondence and other private items in his own office while
those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence
that the hospital had established any reasonable regulation or policy discouraging employees from storing personal
papers and effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of
privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy
at least in his desk and file cabinets.[38]
Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the OConnor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court
of Appeals simply concluded without discussion that the searchwas not a reasonable search under the
fourth amendment. x x x [t]o hold that the Fourth Amendment applies to searches conducted by [public
employers] is only to begin the inquiry into the standards governing such searches[W]hat is reasonable
depends on the context within which a search takes place. x x x Thus, we must determine the appropriate
standard of reasonableness applicable to the search.A determination of the standard of reasonableness
applicable to a particular class of searches requires balanc[ing] the nature and quality of the intrusion on
the individuals Fourth Amendment interests against the importance of the governmental interests alleged
to justify the intrusion. x x x In the case of searches conducted by a public employer, we must
balance the invasion of the employees legitimate expectations of privacy against the governments
need for supervision, control, and the efficient operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employees office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine

conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such
cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is
simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors
in offices such as at the Hospital are hardly in the business of investigating the violation of criminal
laws. Rather, work-related searches are merely incident to the primary business of the agency. Under
these circumstances, the imposition of a warrant requirement would conflict with the common-sense
realization that government offices could not function if every employment decision became a
constitutional matter. x x x
xxxx
The governmental interest justifying work-related intrusions by public employers is the efficient
and proper operation of the workplace. Government agencies provide myriad services to the public, and
the work of these agencies would suffer if employers were required to have probable cause before they
entered an employees desk for the purpose of finding a file or piece of office correspondence. Indeed, it is
difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much
meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept
of probable cause has little meaning for a routine inventory conducted by public employers for the
purpose of securing state property. x x x To ensure the efficient and proper operation of the agency,
therefore, public employers must be given wide latitude to enter employee offices for work-related,
noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an investigation of workrelated employee misconduct. Even when employers conduct an investigation, they have an interest
substantially different from the normal need for law enforcement. x x x Public employers have an interest
in ensuring that their agencies operate in an effective and efficient manner, and the work of these
agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related
misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous
responsibility, and the consequences of their misconduct or incompetence to both the agency and the
public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not
enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring
that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a
probable cause requirement for searches of the type at issue here would impose intolerable
burdens on public employers. The delay in correcting the employee misconduct caused by the
need for probable cause rather than reasonable suspicion will be translated into tangible and
often irreparable damage to the agencys work, and ultimately to the public interest. x x x
xxxx
In sum, we conclude that the special needs, beyond the normal need for law enforcement
make theprobable-cause requirement impracticable, x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of
reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and
proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public
employees. We hold, therefore, that public employer intrusions on the constitutionally protected
privacy interests of government employees for noninvestigatory, work-related purposes, as well
as for investigations of work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this reasonableness standard, both the
inception and the scope of the intrusion must be reasonable:
Determining the reasonableness of any search involves a twofold inquiry: first, one must
consider whether theaction was justified at its inception, x x x ; second, one must
determine whether the search as actually conducted was reasonably related in scope to
the circumstances which justified the interference in the first place, x x x
Ordinarily, a search of an employees office by a supervisor will be justified at its inception
when there are reasonable grounds for suspecting that the search will turn up evidence that the
employee is guilty of work-related misconduct, or that the search is necessary for a
noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when the measures adopted are reasonably related to the objectives of
the search and not excessively intrusive in light of the nature of the [misconduct]. x x x[39] (Citations
omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the
search and neither was there any finding made as to the scope of the search that was undertaken, the case was
remanded to said court for the determination of the justification for the search and seizure, and evaluation of the
reasonableness of both the inception of the search and its scope.
In OConnor the Court recognized that special needs authorize warrantless searches involving public employees
for work-related reasons. The Court thus laid down a balancing test under which government interests are weighed
against the employees reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor
the warrant requirement, which are related to law enforcement. [40]
OConnor was applied in subsequent cases raising issues on employees privacy rights in the workplace. One of
these cases involved a government employers search of an office computer, United States v. Mark L. Simons[41] where the
defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and
possessing materials containing child pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access.The agency had instituted a policy on computer use stating that employees
were to use the Internet for official government business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or
monitor the users Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the
agencys computer network, upon initial discovery of prohibited internet activity originating from Simons computer, to
conduct a remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded
pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from a remote
work station. Days later, the contractors representative finally entered Simons office, removed the original hard drive on
Simons computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency
secured warrants and searched Simons office in the evening when Simons was not around. The search team copied the
contents of Simons computer; computer diskettes found in Simons desk drawer; computer files stored on the zip drive or
on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved
to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment
rights. After a hearing, the district court denied the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and office
did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid
under the OConnor exception to the warrant requirement because evidence of the crime was discovered in the course of
an otherwise proper administrative inspection. Simons violation of the agencys Internet policy happened also to be a
violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The
warrantless entry into Simons office was reasonable under the Fourth Amendment standard announced
inOConnor because at the inception of the search, the employer had reasonable grounds for suspecting that the hard
drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet
access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the
objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable expectation
of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer.
x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove
that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in
order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of
privacy is one that society is prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we conclude that Simons Fourth
Amendment rights were not violated by FBIS retrieval of Simons hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the record or fruits
of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would
audit, inspect, and/or monitor employees use of the Internet, including all file transfers, all

websites visited, and all e-mail messages, as deemed appropriate. x x x This policy placed
employees on notice that they could not reasonably expect that their Internet activity would be
private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from
the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would
be overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching and seizing the
computer files Simons downloaded from the Internet did not violate the Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate expectation of privacy in his
office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the
operational realities of Simons workplace may have diminished his legitimate privacy
expectations. However, there is no evidence in the record of any workplace practices, procedures, or
regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a
legitimate expectation of privacy in his office.
xxxx
In the final analysis, this case involves an employees supervisor entering the employees
government office and retrieving a piece of government equipment in which the employee had absolutely
no expectation of privacy equipment that the employer knew contained evidence of crimes committed by
the employee in the employees office. This situation may be contrasted with one in which the criminal
acts of a government employee were unrelated to his employment. Here, there was a conjunction of the
conduct that violated the employers policy and the conduct that violated the criminal law. We consider that
FBIS intrusion into Simons office to retrieve the hard drive is one in which a reasonable employer might
engage. x x x[42] (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board [43] which involved the constitutionality of a provision
in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and persons charged before the prosecutors office with
certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the
privacy expectation of the employees and the reasonableness of drug testing requirement. The
employees privacy interest in an office is to a large extent circumscribed by the companys work
policies, the collective bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the
workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree
of impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the following
questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the
search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer reasonable in
its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include (1) the employees relationship to the item
seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the
employee took actions to maintain his privacy in the item. These factors are relevant to both the subjective and objective
prongs of the reasonableness inquiry, and we consider the two questions together. [44] Thus, where the employee used a
password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment. [45]
We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of
privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that

he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open
to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other
employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the
CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even
allowed to use his computer which to him seemed a trivial request. He described his office as full of people, his friends,
unknown people and that in the past 22 years he had been discharging his functions at the PALD, he is personally
assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had
anytime for himself alone, that in fact he stays in the office as a paying customer. [46] Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances,
that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the
presence of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:
POLICY
1.

The Computer Resources are the property of the Civil Service Commission and may be used only
for legitimate business purposes.

2.

Users shall be permitted access to Computer Resources to assist them in the performance of their
respective jobs.

3.

Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation
of privacy in anything they create, store, send, or receive on the computer system.
The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to
handle the confidential examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send,
or receive on the computer through the Internet or any other computer network.Users understand
that the CSC may use human or automated means to monitor the use of its Computer
Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the
exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared
or operated by other users. However, he is accountable therefor and must insure its care and
maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access
to the computer system. Individual passwords shall not be printed, stored online, or given to
others. Users shall be responsible for all transactions made using their passwords. No User may
access the computer system with another Users password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to
encode particular files or messages does not imply that Users have an expectation of privacy in the
material they create or receive on the computer system. The Civil Service Commission has global
passwords that permit access to all materials stored on its networked computer system regardless
of whether those materials have been encoded with a particular Users password. Only members of
the Commission shall authorize the application of the said global passwords.
x x x x[47] (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy
in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that on-the-spot inspections may be done to
ensure that the computer resources were used only for such legitimate business purposes.
One of the factors stated in OConnor which are relevant in determining whether an employees expectation of privacy in
the workplace is reasonable is the existence of a workplace privacy policy. [48] In one case, the US Court of Appeals Eighth
Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his
computer files where the universitys computer policy, the computer user is informed not to expect privacy if the university
has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be
searched when the university is responding to a discovery request in the course of litigation.Petitioner employee thus
cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials.[49]
As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we answer in
the affirmative.
The search of petitioners computer files was conducted in connection with investigation of work-related misconduct
prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV
where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly lawyering for individuals with pending
cases in the CSC. Chairperson David stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown
sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV)
such as, staff working in another government agency, selling cases and aiding parties with pending
cases, all done during office hours and involved the use of government properties;
9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions
involved in the alleged irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its
effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up
the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;
x x x x[50]

A search by a government employer of an employees office is justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is guilty of work-related misconduct. [51] Thus, in the 2004 case
decided by the US Court of Appeals Eighth Circuit, it was held that where a government agencys computer use policy
prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have
any personal privacy rights regarding their use of the agency information systems and technology, the government
employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore
evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that

case, the defendant employees computer hard drive was first remotely examined by a computer information technician
after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-mail
messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken
and examined. A formal administrative investigation ensued and later search warrants were secured by the police
department. The initial remote search of the hard drive of petitioners computer, as well as the subsequent warrantless
searches was held as valid under the OConnor ruling that a public employer can investigate work-related misconduct so
long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the
first place.[52]
Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and scope. We
quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines
established by OConnor:
Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollos computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its capacity as a
government employer and that it was undertaken in connection with an investigation involving a
work-related misconduct, one of the circumstances exempted from the warrant requirement. At the
inception of the search, a complaint was received recounting that a certain division chief in the CSCRO
No. IV was lawyering for parties having pending cases with the said regional office or in the
Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a
CSC employee was found to be furtively engaged in the practice of lawyering for parties with pending
cases before the Commission would be a highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the
Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate
as an impartial and objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the
general public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the Commission had to act fast, if only
to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint
was received, a search was forthwith conducted involving the computer resources in the concerned
regional office. That it was the computers that were subjected to the search was justified since
these furnished the easiest means for an employee to encode and store documents. Indeed, the
computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly,
the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a
button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the
probable cause requirement would invariably defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless search in an
open and transparent manner. Officials and some employees of the regional office, who happened to be
in the vicinity, were on hand to observe the process until its completion. In addition, the respondent
himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from
his computer.
All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and
efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence
derived from the questioned search are deemed admissible. [53]

Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking
the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable
considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government
workplace under the aforecited authorities. We likewise find no merit in his contention that OConnor and Simons are not
relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the

search of petitioners computer was justified there being reasonable ground for suspecting that the files stored therein
would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such
misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in OConnor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of
Court, Metropolitan Trial Court of Manila[54] involving a branch clerk (Atty. Morales) who was investigated on the basis of
an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office
supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to
access Atty. Morales personal computer and print two documents stored in its hard drive, which turned out to be two
pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales
computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the
MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was
no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would
give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel
also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross
misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of
every court employee, the Court cannot use the evidence obtained from his personal computer against him for it violated
his constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of
OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately
filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the
investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no
other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to
hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of
evidence.
The above case is to be distinguished from the case at bar because, unlike the former which involved
a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is
a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and
monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and
circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on
Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer
assigned to him.
Having determined that the personal files copied from the office computer of petitioner are admissible in the
administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner
guilty of the charges and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only
respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of
relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally
reasonable minds might conceivably opine otherwise. [55]
The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and
documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented
during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same
content-wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the
Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished
the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his
computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his
computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We
hold that the CSCs factual finding regarding the authorship of the subject pleadings and misuse of the office computer is
well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings
responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as
a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author
thereof knowingly and willingly participated in the promotion or advancement of the interests of parties
contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the
phrase, Eric N. Estr[e]llado, Epal kulang ang bayad mo,lends plausibility to an inference that the
preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever
was responsible for these documents was simply doing the same for the money a legal mercenary selling
or purveying his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo raises
the presumption that he was the author thereof. This is because he had a control of the said
computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a
written copy of one of the pleadings found in the case records lying on the table of the respondent. This
was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the
Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe that the
documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty.
Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent
was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the
PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more
particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa,
whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never
presented during the formal investigation to confirm his sworn statement such that the same constitutes
self-serving evidence unworthy of weight and credence. The same is true with the other supporting
affidavits, which Pollo submitted.
At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity
with the interests of the Commission. He was, in effect, acting as a principal by indispensable
cooperationOr at the very least, he should be responsible for serious misconduct for repeatedly allowing
CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they
were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, Eric N. Estrellado, Epal kulang ang bayad mo, was a private joke
between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative
of anything more sinister. The same is too preposterous to be believed.Why would such a statement
appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to
do with it?[56]

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since
Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:
Rule II Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course
unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by
the proper disciplining authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation
therein or supported by documentary or direct evidence, in which case the person complained of may be
required to comment.
xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the
CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in
the two divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own fact-finding investigation
and information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As
this Court held in Civil Service Commission v. Court of Appeals[57] -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule
II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a
civil service officer or employee by the appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the
complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The
alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission
as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by
Chairperson David in her Reply to the Addendum to Commissioner Buenaflors previous memo expressing his dissent to
the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was
in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and
former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a
Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been
to issue a memorandum order.[58] Moreover, being an administrative rule that is merely internal in nature, or which
regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity. [59]
In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that petitioner is guilty
of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The
gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory
penalties, pursuant to existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October
Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-69809 October 16, 1986

11,

2007 and

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the AntiWiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the
Act, such that its use to overhear a private conversation would constitute unlawful interception of communications
between the two parties using a telephone line.
The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in
the living room of complainant's residence discussing the terms for the withdrawal of the complaint for
direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After
they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn,
August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him
on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a
business trip. According to the request, appellant went to the office of Laconico where he was briefed
about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen to the telephone
conversation through a telephone extension so as to hear personally the proposed conditions for the
settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A
breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer
for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case
for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High
School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct
Assault Case against Atty. Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions.
Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the
money. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the office of the then
Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal
Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the
money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant,
complainant was arrested by agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00
for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the
complainant for robbery/extortion which he filed against complainant. Since appellant listened to the
telephone conversation without complainant's consent, complainant charged appellant and Laconico with
violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty
of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs.
Not satisfied with the decision, the petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the
communication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act
No. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; and
that the extension telephone which was used by the petitioner to overhear the telephone conversation between
complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a)
whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b)
whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c)
whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep.
Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however
otherwise described:
It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word secured either before or after the
effective date of this Act in the manner prohibited by this law; or to replay the same for any other person
or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such
record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned
in Section 3 hereof, shall not be covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the
admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the
person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison
sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion.
There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was
"private" in the sense that the words uttered were made between one person and another as distinguished from words
between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen
to and overhear the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a
member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to
have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew
that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in

effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene,
criminal, or annoying the call may be. It would be the word of the caller against the listener's.
Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which
telephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An
unwary citizzen who happens to pick up his telephone and who overhears the details of a crime might hesitate to inform
police authorities if he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly
overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous
results.
The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or
arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to
imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a
public officer or deportation for an alien? Private secretaries with extension lines to their bosses' telephones are
sometimes asked to use answering or recording devices to record business conversations between a boss and another
businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that matter,
would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly
known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices
contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in
the Senate, telephones and extension telephones were already widely used instruments, probably the most popularly
known communication device.
Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet,
when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly
known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described."
The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.
The respondent People argue that an extension telephone is embraced and covered by the term "device" within the
context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a
separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not forming
part of a main telephone set which can be detached or removed and can be transferred away from one place to another
and to be plugged or attached to a main telephone line to get the desired communication corning from the other party or
end.
The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing,
intercepting, or recording the communication. There must be either a physical interruption through a wiretap or
the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices
enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a
telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for
ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the
particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole
and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v.
Esso Estandard Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be,
they shall not be understood to comprehend things that are distinct and cases that are different from
those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that
'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that
sense which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d)
should be then restricted only to those listed in the Inventory and should not be construed as to

comprehend all other obligations of the decedent. The rule that 'particularization followed by a general
expression will ordinarily be restricted to the former' is based on the fact in human experience that usually
the minds of parties are addressed specially to the particularization, and that the generalities, though
broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon
which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603,
607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated
therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of
which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence
cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage
and their purpose is precisely for tapping, intercepting or recording a telephone conversation.
An extension telephone is an instrument which is very common especially now when the extended unit does not have to
be connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more.
A person should safely presume that the party he is calling at the other end of the line probably has an extension
telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its
line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):
Common experience tells us that a call to a particular telephone number may cause the bell to ring in
more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the
other party may have an extension telephone and may allow another to overhear the conversation. When
such takes place there has been no violation of any privacy of which the parties may complain.
Consequently, one element of 605, interception, has not occurred.
In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the
message he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of
action and permitting an outsider to use an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of
doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement",
the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA
542, 562, we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of
individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the
discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v.
Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109
VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro,
20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary
rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will
show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or
arrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act of
merely listening to a telephone conversation.
xxx xxx xxx
Senator Taada. Another possible objection to that is entrapment which is certainly
objectionable. It is made possible by special amendment which Your Honor may
introduce.
Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the
amendment than without it, because with the amendment the evidence of entrapment
would only consist of government testimony as against the testimony of the defendant.
With this amendment, they would have the right, and the government officials and the
person in fact would have the right to tape record their conversation.

Senator Taada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and,
therefore, the court would be limited to saying: "Okay, who is more credible, the police
officers or the defendant?" In these cases, as experienced lawyers, we know that the
Court go with the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these conditions, with an agent
outside listening in, he could falsify the testimony and there is no way of checking it. But if
you allow him to record or make a recording in any form of what is happening, then the
chances of falsifying the evidence is not very much.
Senator Taada. Your Honor, this bill is not intended to prevent the presentation of false
testimony. If we could devise a way by which we could prevent the presentation of false
testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape
record and other electronic devices to intercept private conversations which later on will
be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government
authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to
intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of
listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of
similar nature. We are of the view that an extension telephone is not among such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is
ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200,
otherwise known as the Anti-Wiretapping Act.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 110662 August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,
vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon City
and RAFAEL S. ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.
Efren A. Santos for private respondent.

PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of respondent Court
of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora, Presiding Judge,
Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for
annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license
and/or psychological incapacity of the petitioner. The complaint was docketed as Civil Case No. Q-90-5360 and raffled to
Branch 94, RTC of Quezon City presided over by respondent Judge Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M".
Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations
between petitioner and unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June 1992; on the same
day, the trial court admitted all of private respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in evidence of the
aforementioned cassette tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition, which in part
reads:
It is much too obvious that the petition will have to fail, for two basic reasons:
(1) Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in
evidence for certain purposes, depending on how they are presented and offered and on how the trial
judge utilizes them in the interest of truth and fairness and the even handed administration of justice.
(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence
adduced during trial. The ruling on admissibility is interlocutory; neither does it impinge on jurisdiction. If it
is erroneous, the ruling should be questioned in the appeal from the judgment on the merits and not
through the special civil action of certiorari. The error, assuming gratuitously that it exists, cannot be
anymore than an error of law, properly correctible by appeal and not by certiorari.Otherwise, we will have
the sorry spectacle of a case being subject of a counterproductive "ping-pong" to and from the appellate
court as often as a trial court is perceived to have made an error in any of its rulings with respect to
evidentiary matters in the course of trial. This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED.

From this adverse judgment, petitioner filed the present petition for review, stating:
Grounds for Allowance of the Petition
10. The decision of respondent [Court of Appeals] has no basis in law nor previous decision of the
Supreme Court.
10.1 In affirming the questioned order of respondent judge, the Court of Appeals has
decided a question of substance not theretofore determined by the Supreme Court as the
question of admissibility in evidence of tape recordings has not, thus far, been addressed
and decided squarely by the Supreme Court.
11. In affirming the questioned order of respondent judge, the Court of Appeals has likewise rendered a
decision in a way not in accord with law and with applicable decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in nature, the same can still be [the]
subject of a petition for certiorari. 2
The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court was properly
availed of by the petitioner in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper
remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for
assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford
adequate and expeditious relief, the Court may allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent,
including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were
made and obtained when private respondent allowed his friends from the military to wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of
Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. The relevant
provisions of Rep. Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie
or tape-recorder, or however otherwise described. . . .
Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or
meaning of the same or any part thereof, or any information therein contained, obtained or
secured by any person in violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting
in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations
allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of
imprisonment of not less than six (6) months and up to six (6) years for violation of said Act. 5
We need not address the other arguments raised by the parties, involving the applicability of American jurisprudence,
having arrived at the conclusion that the subject cassette tapes are inadmissible in evidence under Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The subject
cassette tapes are declared inadmissible in evidence.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,

vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that
the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated
her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals,
good customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees
and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at
the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the
confrontation made by petitioner. 2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na kung
paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko
sa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Tapos iniwan no. (Sic)
CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon
ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang
10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply
ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo,
kalimutan mo na kasi hindi ka sa akin makakahingi.
CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.
ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.
Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok
dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na
kita (Sinusumbatan na kita).
CHUCHI Itutuloy ko na M'am sana ang duty ko.
ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit
alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka
papasa.
CHUCHI Kumuha kami ng exam noon.
ESG Oo, pero hindi ka papasa.
CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG Kukunin ka kasi ako.

CHUCHI Eh, di sana

ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba
makukuha ka dito kung hindi ako.
CHUCHI Mag-eexplain ako.
ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka
puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga
magulang ko.
ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng
hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI Kasi M'am, binbalikan ako ng mga taga Union.
ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok
kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI Ina-ano ko m'am na utang na loob.
ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo
ako.
CHUCHI Paano kita nilapastanganan?
ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na.
Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was
illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act
4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and
other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines,
and within the jurisdiction of this honorable court, the above-named accused, Socorro D.
Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with
said accused, did then and there willfully, unlawfully and feloniously, with the use of a
tape recorder secretly record the said conversation and thereafter communicate in writing
the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged
do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the
Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that
2) the violation punished by R.A. 4200 refers to a the taping of a communication by a personother than a participant to the
communication. 4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith
referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of
May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari. 5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals
denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does
not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision
merely refers to the unauthorized taping of a private conversation by a party other than those involved in the
communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in
the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that
R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of
secretly taping her conversation with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear
and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a
literal interpretation would be either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private
Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however
otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any
private communication to secretly record such communication by means of a tape recorder. The law makes no distinction
as to whether the party sought to be penalized by the statute ought to be a party other than or different from those
involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is
underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another without the knowledge of the latter
(will) qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting
R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or
communications taken either by the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Taada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be
material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and
involved not criminal cases that would be mentioned under section 3 but would cover, for example civil
cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps
by some in an effort to show the intent of the parties because the actuation of the parties prior,
simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose

there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of
this bill or outside?
Senator Taada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be
used in Civil Cases or special proceedings?
Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without the
authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose;
Your honor, is to record the intention of the parties. I believe that all the parties should know that the
observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where a
tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people
whose remarks and observations are being made should know that the observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Taada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now, in
spite of that warning, he makes damaging statements against his own interest, well, he cannot complain
any more. But if you are going to take a recording of the observations and remarks of a person without
him knowing that it is being taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech is
public, but the recording is done secretly.
Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the
Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to
penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be
specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or
recording private communications by means of the devices enumerated therein. The mere allegation that an individual
made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense

under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as
well as its communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private
conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate
comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication
connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in
a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or
non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionallycharged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office.
Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the
fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his Explanatory
Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard. But
this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all,
civilized people have some aspects of their lives they do not wish to expose. Freeconversations are often
characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social
desires of views not intended to be taken seriously. The right to the privacy of communication, among
others, has expressly been assured by our Constitution. Needless to state here, the framers of our
Constitution must have recognized the nature of conversations between individuals and the significance
of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the
pleasures and satisfactions of life are to be found in the unaudited, and free exchange
of communication between individuals free from every unjustifiable intrusion by whatever means. 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that
the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not
violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)"
enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The
instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200
suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications
with the use of tape-recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.
SO ORDERED.