EVIDENCE

Assignment No. 11
3. Ong Chua vs. Carr, 53 Phil. 975 (1929)
11. Barton vs. Leyte Asphalt & Mineral Oil Co., 46 Phil. 938 (1924)
19. Krohn vs. Court of Appeals, 233 SCRA 146 (1994)
27. Keller & Co., Ltd. vs. COB Group Mktg., 141 SCRA 86 (1986)

Assignment No. 12
3. People vs. Yparriguirre, 268 SCRA 35 (1997)
11. United States vs. De la Cruz, 12 Phil. 87 (1908)
19. People vs. Maqueda, 242 SCRA 565 (1995)
27. United States vs. Evangelista, 24 Phil. 453 (1913)

ONG CHUA vs. EDWARD CARR, ET AL., G.R. No. L-29512 , January 17, 1929

This is an appeal by the defendants from a decision of the Court of First Instance of
Zamboanga ordering the reformation of the deed of sale executed by the plaintiff in
favor of Edward Carr for lots Nos. 135, 136 and 137 of cadastral case No. 8695, West
Extension, and for a house of strong materials constructed on another parcel of land, lot
No. 132 of the same. A copy of the deed is attached to the record and is marked Exhibit
A.

Lots Nos. 136 and 137 and the house on lot No. 132 originally belonged to one Henry E.
Teck, and lot No. 135 was the property of Teck's wife, Magdalena Lim. Sometime prior to
June 20, 1923, it seems that the spouses sold the property in question to the plaintiff,
Ong Chua, and on June 17, 1923, the latter executed a public document granting to
Magdalena Lim the right to repurchase lot 135 for the sum of P6,500 within four years
from that date, and on the 20th of the same month, he executed another public
document in which he agreed to sell lots Nos. 136, 137, and the house on lot 132 to
Henry E. Teck for the sum of P13,500 at any time within four years from date. Neither
one of the documents was placed on record with the register of deeds.

In the month of July, 1925, Edward Carr came to Zamboanga, bringing with him letters of
introduction addressed to P. J. Moore, a practising attorney in that town. With said letters
Carr went to the office of Moore and sought the advice and assistance of the latter in
regard to purchasing coconut lands. After various interviews, Moore called Carr's
attention to the lots above-mentioned and told him that he could buy the lots for
P20,000, the amount which Ong Chua paid for them to Henry E. Teck and Magdalena
Lim. Carr entered into negotiations with Ong Chua and Moore, and many conversation
took place in which Moore, among other things, informed Carr that Teck and his wife had
the right to repurchase the property in question from Ong Chua and that such rights
would expire in June, 1927.

On December 14, 1925, Ong Chua and Carr went to the office of Moore, to whom they
delivered copies of the documents under which Teck and Lim acquired their rights to
repurchase the property involved, and requested him to draw the deed of sale of the
property from Ong Chua to Carr. Before the drafting of the deed, Ong Chua stated to
Moore that he consented to sell the properties to Carr on the condition that the sale
should be subject to the rights of Teck and Lim to have the property reconveyed to them
and that said rights were to be respected by the vendee. According to Moore's own
testimony, Carr was fully aware of those rights even before the execution of the deed,
December 14, 1925, and that he consented to embody stipulations to the effect in said
deed.
The purchase price of the property stipulated between vendor and vendee was P20,000.
When the deed of sale was about to be drafted, Carr informed Moore that he had only
P13,500 on hand and that he desired to obtain a loan of P6,500 from the Zamboanga
Mutual Building and Loan Association of which Moore was the secretary. Moore told him
in effect that the loan could not be made upon property the titles to which were not clear
and that the right of Teck and Lim to repurchase were not entered upon the certificates
of title to the property. Moore also told Carr that the deed of sale could be made in such
a form that Carr's title to the property purchased would appear to be absolute but that
Carr was to bear in mind that the rights of Teck and Lim still existed and that the deed
and other documents must be left in his, Moore's, possession until the expiration of the
term for the right of repurchase and that, if the deed were made in that form, the loan of
P6,500 could be obtained.

Moore thereupon instructed his clerk, C. E. Darlucio, to prepare and typewrite the deed
of sale without including therein the condition that sale was subject to Teck's and Lim's
rights to repurchase. The deed was signed by Ong Chua in the presence of Darlucio and
duly acknowledged before Moore as notary public. It may be noted that Ong Chua did
not understand English and was therefore ignorant of the arrangement arrived at
between Moore and Carr in connection with the loan, but he asked Moore if the
document contained the conditions in reference to Teck's right to repurchase the
property and was told that the document was sufficient.

After deed was prepared and signed, Ong Chua told Carr and Moore that lot No. 137 was
mortgaged by him to the Bank of the Philippine Islands for P6,500, the rate of interest
being 10 per cent per annum. Moore stated that the Zamboanga Building and Loan
Association could not lend money at less than 13 per cent per annum. Ong Chua then
stated that he was willing to let the mortgage on the lot given to the bank stand until the
expiration of the term for the repurchase. As this arrangement would save Carr a
considerable sum of money, he agreed to the proposition and paid only P13,500 in cash
and promised, in writing, to pay to the vendor the balance of the purchase price, P6,500,
with interest at 10 per cent per annum. On or before July 1, 1927. The loan from the
Building and Loan Association thus became unnecessary, but instead of redrafting the
deed, it was agreed that Moore would keep the deed and the other documents in his
custody and would not deliver them to any one until the expiration of the period, for
repurchase.

In September, 1926, Moore was taken critically ill, and while he was under medical
treatment in the Zamboanga Hospital, Carr came to him on various occasions and
demanded that the documents be delivered to him. At first Moore refused to make the
delivery on the ground that it was contrary to their agreement and might result to the
prejudice of the rights of Teck and Lim, but Carr continued to molest Moore with his
demand for the delivery of the papers, and finally, in order to escape further annoyances
and insinuations of Carr, he surrendered the deed to the latter, who almost immediately
presented it to the register of deeds for registration.

In July, 1926, Teck offered to repurchase the property in question from Ong Chua who
thereupon demanded of Carr the reconveyance of the property to the spouses, Teck and
Lim, but Carr refused to do so, claiming that he had an absolute title to said property,
and Ong Chua then learned, for the first time, that the deed in question contained no
reference to the rights of Teck and Lim to repurchase the property. On July 23, 1926, this
action was brought, the plaintiff alleging in substance the principal facts hereinbefore
stated and demanding that the deed in question be reformed in accordance therewith.
The defendant demurred, but the demurrer was overruled. The defendant thereupon
filed an answer pleading the general issue and setting up as special defenses that the
deed in question contained no stipulation as to rights of repurchase and that if there was
any agreement or promise on the part of the defendant to convey the property to Henry
E. Teck and Magdalena Lim or to the plaintiff, as alleged in the complaint, such
agreement and promise was for the sale of real property, or an interest therein, and that
neither said agreement or promise, nor any note or memorandum was made in writing or
subscribed by the defendant or by any authorized person for him. Subsequent to the
filling of the answer, Carr died, and the administrator of his estate, Manuel Igual, was
substituted as defendant.

At the trial of the case, no evidence was offered by the defendant, and, consequently,
the facts hereinbefore stated stand uncontradicted. Upon such facts the court below
ordered the reformation of the deed, Exhibit A, in accordance with the plaintiff's demand.

On appeal to this court the defendant-appellant presents six assignments of error, which
may conveniently be reduced to two propositions, namely (1) that the court erred in
permitting the plaintiff, Ong Chua, to testify, over the defendant's objections, to fact
occuring prior to the death of the defendant Carr, and (2) that the facts proven do not
justify the reformation of the deed in question.

The first proposition rests on subsection 7 of section 383 of the Code of Civil Procedure,
which bars parties to an action or proceeding against an executor or administrator or
other representative of a deceased person upon a claim ore demand against the estate
of such deceased person from testifying as to any matter of fact occuring before the
death of such deceased person.

Similar provisions are to be found in the statutes of practically all of the states of the
Union, and the rule thus laid down is now unquestioned. But it has generally been given
a liberal construction to promote justice, and it is held that it never was intended to
serve as a shield for fraud. As stated in Jones on Evidence, 2d ed., sec. 744:

The evidence of an adverse party is absolutely excluded by an independent,

affirmative enactment making him incompetent as to transactions or
communications with a deceased or incompetent person. These statutes, however,
do not render the adverse party incompetent to testify to fraudulent transactions
of the deceased, as the statutes are not designed to shield wrongdoers but the
courts compel the adverse party to clearly establish the alleged fraudulent acts
before admitting such testimony.

And in case of Tongco vs. Vianzon (50 Phil. Rep., 698, 702) this court said:

Counsel is eminently correct in emphasizing that the object and purpose of his
statute is to guard against the temptation to give false testimony in regard to the
transaction in question on the part of the surviving party. He has, however,
neglected the equally important rule that the law was designated to aid in arriving
at the truth and was not designed to suppress the truth.

In this case a number of credible witnesses testified to facts which conclusively showed
that Carr's conduct was tainted with fraud. The plaintiff did not take the witness stand
until after the existence of fraud on the part of Carr and been established beyond a
doubt and not by a mere preponderance of evidence. In these circumstances, we cannot
hold that the trial court erred in not excluding the plaintiff's testimony.

In regard to the second proposition above-mentioned, counsel for the appellant says:
 It is our belief which is supported by the very exhibits themselves that at this
conference the parties decided to enter into two separate agreements. One in
writing Exhibit A being an absolute conveyance of the property from Ong
Chua to Edward Carr; the other a verbal agreement by which all the documents,
titles, etc. were left with P. J. Moore in escrow until the time fixed in Exhibits B and
C had lapsed. There was no mistake on the part of anyone in executing Exhibit A
for while there has been a great deal of talk about the insertion of a clause no one
has yet said what was to be said in that clause or condition. Again, Exhibit A not
only said nothing about any right to redemption but contains a full warranty of
title. . .

It will be noted that counsel admits that the deed was left in escrow with Moore, and if it
were true that there was no mistake on the part of the plaintiff at the time of the
execution of the deed, a suit for reformation would hardly be appropriate. But that would
not improve the appellant's position. It is well settled that the condition upon which a
deed is delivered in escrow may be proved by parol evidence and that ordinarily the
statute of frauds has no application to such an agreement, nor is it affected by the rule
of evidence, which prohibits a written contract from being contradicted or varied by parol
evidence (Devlin on Real Estate, 3d ed., par. 312 A and authorities there cited). It is
also well established that an escrow delivered without authority or obtained fraudulently
passes no title (Smith vs. South Royalton Bank, 32 Vt., 341; 76 Am. Dec., 179). That is
what occurred here; Moore had no authority whatever to deliver the deed in escrow to
Carr before the expiration of the time for redemption. It follows that the certificates of
title issued to Carr were of no legal effect and that the suit for the rescission of the deed
and that cancellation of the corresponding certificates of title would be in order (see the
last two provisos in sec. 55 of Act No. 496). So much for the appellant's theory.

We think, however, that the evidence is conclusive that the plaintiff had no clear
conception of the contents of the deed. That he was anxious to protect the rights of
redemption held by the parties who sold the land to him, is very obvious; indeed, if he
had failed to do so, he would have laid himself open to an action for damages. But the
deed was written in the English language, with which the plaintiff was unfamiliar, and he
had to rely on the statements of Moore as to the contents and effect of the deed and was
told that the document was sufficient. He had confidence in Moore, with whom he had
previous business relations, and it was but natural for him to believe Moore's statement.

Carr, on the other hand, knew the contents of the deed and fully agreed to Moore's plan
to place it in escrow until the expiration of the term for the repurchase or redemption of
the land. He, nevertheless, in violation of his own agreement, harassed Moore, then a
very sick man, into giving him possession of the deed prematurely. He took immediate
advantage of that circumstances and hastened to have the document presented to the
register of deeds for the issuance of certificates of title. It is elementary that such
conduct constitutes fraud and was calculated to obtain an unfair advantage over the
plaintiff.

Reformation will be given "where there is a mistake on one side and fraud or unfair
dealing on the other" (Devlin on Real Estate, 3d ed., par. 1238). That is this case, and it
follows that the suit for reformation may be maintained.

Certain minor points raised by appellant's counsel are so obviously without merit as to
require no discussion; the sale of the property by the plaintiff to the defendant was
subject to Teck's and Lim's right of redemption, and it was perfectly proper for the court
below, in its judgment, to define the extent of these rights. Neither was it error on the
part of the court to hold that the pendency of the action tolled the term for the right of
redemption; that is an old and well established rule.

The appealed judgment is affirmed with the costs against the appellant. So ordered.

JAMES D. BARTON vs. LEYTE ASPHALT & MINERAL OIL CO., LTD., G.R. No. L-
21237, March 22, 1924

This action was instituted in the Court of First Instance of the City of Manila by James D.
Barton, to recover of the Leyte Asphalt & Mineral Oil Co., Ltd., as damages for breach of
contract, the sum of $318,563.30, United States currency, and further to secure a judicial
pronouncement to the effect that the plaintiff is entitled to an extension of the terms of
the sales agencies specified in the contract Exhibit A. The defendant answered with a
general denial, and the cause was heard upon the proof, both documentary and oral,
after which the trial judge entered a judgment absolving the defendant corporation from
four of the six causes of action set forth in the complaint and giving judgment for the
plaintiff to recover of said defendant, upon the first and fourth causes of action, the sum
of $202,500, United States currency, equivalent to $405,000, Philippine currency, with
legal interest from June 2, 1921, and with costs. From this judgment the defendant
company appealed.

The plaintiff is a citizen of the United States, resident in the City of Manila, while the
defendant is a corporation organized under the law of the Philippine Islands with its
principal office in the City of Cebu, Province of Cebu, Philippine Islands. Said company
appears to be the owner by a valuable deposit of bituminous limestone and other asphalt
products, located on the Island of Leyte and known as the Lucio mine. On April 21, 1920,
one William Anderson, as president and general manager of the defendant company,
addressed a letter Exhibit B, to the plaintiff Barton, authorizing the latter to sell the
products of the Lucio mine in the Commonwealth of Australia and New Zealand upon a
scale of prices indicated in said letter.

In the third cause of action stated in the complaint the plaintiff alleges that during the
life of the agency indicated in Exhibit B, he rendered services to the defendant company
in the way of advertising and demonstrating the products of the defendant and
expended large sums of money in visiting various parts of the world for the purpose of
carrying on said advertising and demonstrations, in shipping to various parts of the world
samples of the products of the defendant, and in otherwise carrying on advertising work.
For these services and expenditures the plaintiff sought, in said third cause of action, to
recover the sum of $16,563.80, United States currency. The court, however, absolved the
defendant from all liability on this cause of action and the plaintiff did not appeal, with
the result that we are not now concerned with this phase of the case. Besides, the
authority contained in said Exhibit B was admittedly superseded by the authority
expressed in a later letter, Exhibit A, dated October 1, 1920. This document bears the
approval of the board of directors of the defendant company and was formally accepted
by the plaintiff. As it supplies the principal basis of the action, it will be quoted in its
entirety.

(Exhibit A)
CEBU, CEBU, P. I.
October 1, 1920.

JAMES D. BARTON, Esq.,

Cebu Hotel City.

DEAR SIR: You are hereby given the sole and exclusive sales agency for our
bituminous limestone and other asphalt products of the Leyte Asphalt and Mineral Oil
Company, Ltd., May first, 1922, in the following territory:

Australia Saigon Java

 New Zealand India China
Tasmania Sumatra Hongkong

Siam and the Straits Settlements, also in the United States of America until May 1, 1921.

As regard bituminous limestone mined from the Lucio property. No orders for less than
one thousand (1,000) tons will be accepted except under special agreement with us. All
orders for said products are to be billed to you as follows:

Per ton
In 1,000 ton lots ........................................... P15
In 2,000 ton lots ........................................... 14
In 5,000 ton lots ........................................... 12
In 10,000 ton lots .......................................... 10

with the understanding, however that, should the sales in the above territory equal or
exceed ten thousand (10,000) tons in the year ending October 1, 1921, then in that
event the price of all shipments made during the above period shall be ten pesos (P10)
per ton, and any sum charged to any of your customers or buyers in the aforesaid
territory in excess of ten pesos (P10) per ton, shall be rebated to you. Said rebate to be
due and payable when the gross sales have equalled or exceeded ten thousand (10,000)
tons in the twelve months period as hereinbefore described. Rebates on lesser sales to
apply as per above price list.

You are to have full authority to sell said product of the Lucio mine for any sum see fit in
excess of the prices quoted above and such excess in price shall be your extra and
additional profit and commission. Should we make any collection in excess of the prices
quoted, we agree to remit same to your within ten (10) days of the date of such
collections or payments.

All contracts taken with municipal governments will be subject to inspector before
shipping, by any authorized representative of such governments at whatever price may
be contracted for by you and we agree to accept such contracts subject to draft attached
to bill of lading in full payment of such shipment.

It is understood that the purchasers of the products of the Lucio mine are to pay freight
from the mine carriers to destination and are to be responsible for all freight, insurance
and other charges, providing said shipment has been accepted by their inspectors.

All contracts taken with responsible firms are to be under the same conditions as with
municipal governments.

All contracts will be subject to delays caused by the acts of God, over which the parties
hereto have no control.

It is understood and agreed that we agree to load all ships, steamers, boats or other
carriers prompty and without delay and load not less than 1,000 tons each twenty-four
hours after March 1, 1921, unless we so notify you specifically prior to that date we are
prepared to load at that rate, and it is also stipulated that we shall not be required to
ship orders of 5,000 tons except on 30 days notice and 10,000 tons except on 60 days
notice.

If your sales in the United States reach five thousand tons on or before May 1, 1921, you
are to have sole rights for this territory also for one year additional and should your sales
in the second year reach or exceed ten thousand tons you are to have the option to
renew the agreement for this territory on the same terms for an additional two years.

Should your sales equal exceed ten thousand (10,000) tons in the year ending October 1,
1921, or twenty thousand (20,000) tons by May 1, 1922, then this contract is to be
continued automatically for an additional three years ending April 30, 1925, under the
same terms and conditions as above stipulated.

The products of the other mines can be sold by you in the aforesaid territories under the
same terms and conditions as the products of the Lucio mine; scale of prices to be
mutually agreed upon between us.

LEYTE ASPHALT & MINERAL OIL CO., LTD.

By (Sgd.) WM. ANDERSON
President

(Sgd.) W. C. A. PALMER
Secretary

Approved by Board of Directors,

October 1, 1920.
(Sgd.) WM. ANDERSON
President

Accepted.
(Sgd.) JAMES D. BARTON
Witness D. G. MCVEAN

Upon careful perusal of the fourth paragraph from the end of this letter it is apparent
that some negative word has been inadvertently omitted before "prepared," so that the
full expression should be "unless we should notify you specifically prior to that date that
we are unprepared to load at that rate," or "not prepared to load at that rate."

Very soon after the aforesaid contract became effective, the plaintiff requested the
defendant company to give him a similar selling agency for Japan. To this request the
defendant company, through its president, Wm. Anderson, replied, under date of
November 27, 1920, as follows:

In re your request for Japanese agency, will say, that we are willing to give you, the
same commission on all sales made by you in Japan, on the same basis as your
Australian sales, but we do not feel like giving you a regular agency for Japan until
you can make some large sized sales there, because some other people have
given us assurances that they can handle our Japanese sales, therefore we have
decided to leave this agency open for a time.

Meanwhile the plaintiff had embarked for San Francisco and upon arriving at that port he
entered into an agreement with Ludvigsen & McCurdy, of that city, whereby said firm
was constituted a subagent and given the sole selling rights for the bituminous limestone
products of the defendant company for the period of one year from November 11, 1920,
on terms stated in the letter Exhibit K. The territory assigned to Ludvigsen & McCurdy
included San Francisco and all territory in California north of said city. Upon an earlier
voyage during the same year to Australia, the plaintiff had already made an agreement
with Frank B. Smith, of Sydney, whereby the latter was to act as the plaintiff's sales
agent for bituminous limestone mined at the defendant's quarry in Leyte, until February
12, 1921. Later the same agreement was extended for the period of one year from
January 1, 1921. (Exhibit Q.)

On February 5, 1921, Ludvigsen & McCurdy, of San Francisco, addressed a letter to the
plaintiff, then in San Francisco, advising hi that he might enter an order for six thousand
tons of bituminous limestone to be loaded at Leyte not later than May 5, 1921, upon
terms stated in the letter Exhibit G. Upon this letter the plaintiff immediately indorsed his
acceptance.

The plaintiff then returned to Manila; and on March 2, 1921, Anderson wrote to him from
Cebu, to the effect that the company was behind with construction and was not then
able to handle big contracts. (Exhibit FF.) On March 12, Anderson was in Manila and the
two had an interview in the Manila Hotel, in the course of which the plaintiff informed
Anderson of the San Francisco order. Anderson thereupon said that, owing to lack of
capital, adequate facilities had not been provided by the company for filling large orders
and suggested that the plaintiff had better hold up in the matter of taking orders. The
plaintiff expressed surprise at this and told Anderson that he had not only the San
Francisco order (which he says he exhibited to Anderson) but other orders for large
quantities of bituminous limestone to be shipped to Australia and Shanghai. In another
interview on the same Anderson definitely informed the plaintiff that the contracts which
be claimed to have procured would not be filled.

Three days later the plaintiff addressed a letter (Exhibit Y) to the defendant company in
Cebu, in which he notified the company to be prepared to ship five thousand tons of
bituminous limestone to John Chapman Co., San Francisco, loading to commence on May
1, and to proceed at the rate of one thousand tons per day of each twenty-four hours,
weather permitting.

On March 5, 1921, Frank B. Smith, of Sydney, had cabled the plaintiff an order for five
thousand tons of bituminous limestone; and in his letter of March 15 to the defendant,
the plaintiff advised the defendant company to be prepared to ship another five
thousand tons of bituminous limestone, on or about May 6, 1921, in addition to the
intended consignment for San Francisco. The name Henry E. White was indicated as the
name of the person through whom this contract had been made, and it was stated that
the consignee would be named later, no destination for the shipment being given. The
plaintiff explains that the name White, as used in this letter, was based on an inference
which he had erroneously drawn from the cable sent by Frank B. Smith, and his intention
was to have the second shipment consigned to Australia in response to Smith's order.

It will be noted in connection with this letter of the plaintiff, of March 15, 1921, that no
mention was made of the names of the person, or firm, for whom the shipments were
really intended. The obvious explanation that occurs in connection with this is that the
plaintiff did not then care to reveal the fact that the two orders had originated from his
own subagents in San Francisco and Sydney.

To the plaintiff's letter of March 15, the assistant manager of the defendant company
replied on March, 25, 1921, acknowledging the receipt of an order for five thousand tons
of bituminous limestone to be consigned to John Chapman Co., of San Francisco, and the
further amount of five thousand tons of the same material to be consigned to Henry E.
White, and it was stated that "no orders can be entertained unless cash has been
actually deposited with either the International Banking Corporation or the Chartered
Bank of India, Australia and China, Cebu." (Exhibit Z.)

To this letter the plaintiff in turn replied from Manila, under date of March, 1921,
questioning the right of the defendant to insist upon a cash deposit in Cebu prior to the
filling of the orders. In conclusion the plaintiff gave orders for shipment to Australia of
five thousand tons, or more, about May 22, 1921, and ten thousand tons, or more, about
June 1, 1921. In conclusion the plaintiff said "I have arranged for deposits to be made on
these additional shipments if you will signify your ability to fulfill these orders on the
dates mentioned." No name was mentioned as the purchaser, or purchases, of these
intended Australian consignments.

Soon after writing the letter last above-mentioned, the plaintiff embarked for China and
Japan. With his activities in China we are not here concerned, but we note that in Tokio,
Japan, he came in contact with one H. Hiwatari, who appears to have been a suitable
person for handling bituminous limestone for construction work in Japan. In the letter
Exhibit X, Hiwatari speaks of himself as if he had been appointed exclusive sales agent
for the plaintiff in Japan, but no document expressly appointing him such is in evidence.

While the plaintiff was in Tokio he procured the letter Exhibit W, addressed to himself, to
be signed by Hiwatari. This letter, endited by the plaintiff himself, contains an order for
one thousand tons of bituminous limestone from the quarries of the defendant company,
to be delivered as soon after July 1, 1921, as possible. In this letter Hiwatari states, "on
receipt of the cable from you, notifying me of date you will be ready to ship, and also
tonnage rate, I will agree to transfer through the Bank of Taiwan, of Tokio, to the Asia
Banking Corporation, of Manila, P. I., the entire payment of $16,000 gold, to be subject to
our order on delivery of documents covering bill of lading of shipments, the customs
report of weight, and prepaid export tax receipt. I will arrange in advance a confirmed or
irrevocable letter of credit for the above amounts so that payment can be ordered by
cable, in reply to your cable advising shipping date."

In a letter, Exhibit X, of May 16, 1921, Hiwatari informs the plaintiff that he had shown
the contract, signed by himself, to the submanager of the Taiwan Bank who had given it
as his opinion that he would be able to issue, upon request of Hiwatari, a credit note for
the contracted amount, but he added that the submanager was not personally able to
place his approval on the contract as that was a matter beyond his authority. Accordingly
Hiwatari advised that he was intending to make further arrangements when the manager
of the bank should return from Formosa.

In the letter of May 5, 1921, containing Hiwatari's order for one thousand tons of
bituminous limestone, it was stated that if the material should prove satisfactory after
being thoroughly tested by the Paving Department of the City of Tokio, he would contract
with the plaintiff for a minimum quantity of ten thousand additional tons, to be used
within a year from September 1, 1921, and that in this event the contract was to be
automatically extended for an additional four years. The contents of the letter of May 5
seems to have been conveyed, though imperfectly, by the plaintiff to his attorney, Mr.
Frank B. Ingersoll, of Manila; and on May 17, 1921, Ingersoll addressed a note to the
defendant company in Cebu in which he stated that he had been requested by the
plaintiff to notify the defendant that the plaintiff had accepted an order from Hiwatari, of
Tokio, approved by the Bank of Taiwan, for a minimum order of ten thousand tons of the
stone annually for a period of five years, the first shipment of one thousand tons to be
made as early after July 1 as possible. It will be noted that this communication did not
truly reflect the contents of Hiwatari's letter, which called unconditionally for only one
thousand tons, the taking of the remainder being contingent upon future eventualities.

It will be noted that the only written communications between the plaintiff and the
defendant company in which the former gave notice of having any orders for the sale of
bituminous limestone are the four letters Exhibit Y, AA, BB, and II. In the first of these
letters, dated March 15, 1921, the plaintiff advises the defendant company to be
prepared to ship five thousand tons of bituminous limestone, to be consigned to John
Chapman, Co., of San Francisco, to be loaded by March 5, and a further consignment of
five thousand tons, through a contract with Henry E. White, consignees to be named
later. In the letter Exhibit BB dated May 17, 1921, the plaintiff's attorney gives notice of
the acceptance by plaintiff of an order from Hiwatari, of Tokio, approved by the Bank of
Taiwan, for a minimum of ten thousand annually for a period of five years, first shipment
of a thousand tons to be as early after July 1 as possible. In the letter Exhibit H the
plaintiff gives notice of an "additional" (?) order from H. E. White, Sydney, for two lots of
bituminous limestone of five thousand tons each, one for shipment not later than June
30, 1921, and the other by July 20, 1921. In the same letter thousand tons from F. B.
Smith, to be shipped to Brisbane, Australia, by June 30, and a similar amount within
thirty days later.

After the suit was brought, the plaintiff filed an amendment to his complaint in which he
set out, in tabulated form, the orders which he claims to have received and upon which
his letters of notification to the defendant company were based. In this amended answer
the name of Ludvigsen & McCurdy appears for the first time; and the name of Frank B.
Smith, of Sydney, is used for the first time as the source of the intended consignments of
the letters, Exhibits G, L, M, and W, containing the orders from Ludvigen & McCurdy,
Frank B. Smith and H. Hiwatari were at no time submitted for inspection to any officer of
the defendant company, except possibly the Exhibit G, which the plaintiff claims to have
shown to Anderson in Manila on March, 12, 1921.

The different items conspiring the award which the trial judge gave in favor of the
plaintiff are all based upon the orders given by Ludvigsen & McCurdy (Exhibit G), by
Frank B. Smith (Exhibit L and M), and by Hiwatari in Exhibit W; and the appealed does
not involve an order which came from Shanghai, China. We therefore now address
ourselves to the question whether or not the orders contained in Exhibit G, L, M, and W,
in connection with the subsequent notification thereof given by the plaintiff to the
defendant, are sufficient to support the judgment rendered by the trial court.

The transaction indicated in the orders from Ludvigsen, & McCurdy and from Frank B.
Smith must, in our opinion, be at once excluded from consideration as emanating from
persons who had been constituted mere agents of the plaintiff. The San Francisco order
and the Australian orders are the same in legal effect as if they were orders signed by
the plaintiff and drawn upon himself; and it cannot be pretended that those orders
represent sales to bona fide purchasers found by the plaintiff. The original contract by
which the plaintiff was appointed sales agent for a limited period of time in Australia and
the United States contemplated that he should find reliable and solvent buyers who
should be prepared to obligate themselves to take the quantity of bituminous limestone
contracted for upon terms consistent with the contract. These conditions were not met
by the taking of these orders from the plaintiff's own subagents, which was as if the
plaintiff had bought for himself the commodity which he was authorized to sell to others.
Article 267 of the Code of Commerce declares that no agent shall purchase for himself or
for another that which he has been ordered to sell. The law has placed its ban upon a
broker's purchasing from his principal unless the latter with full knowledge of all the facts
and circumstances acquiesces in such course; and even then the broker's action must be
characterized by the utmost good faith. A sale made by a broker to himself without the
consent of the principal is ineffectual whether the broker has been guilty of fraudulent
conduct or not. (4 R. C. L., 276-277.) We think, therefore, that the position of the
defendant company is indubitably sound in so far as it rest upon the contention that the
plaintiff has not in fact found any bona fide purchasers ready and able to take the
commodity contracted for upon terms compatible with the contract which is the basis of
the action.

It will be observed that the contract set out at the beginning of this opinion contains
provisions under which the period of the contract might be extended. That privilege was
probably considered a highly important incident of the contract and it will be seen that
the sale of five thousand tons which the plaintiff reported for shipment to San Francisco
was precisely adjusted to the purpose of the extension of the contract for the United
States for the period of an additional year; and the sales reported for shipment to
Australia were likewise adjusted to the requirements for the extention of the contract in
that territory. Given the circumstances surrounding these contracts as they were
reported to the defendant company and the concealment by the plaintiff of the names of
the authors of the orders, -- who after all were merely the plaintiff's subagents, the
officers of the defendant company might justly have entertained the suspicion that the
real and only person behind those contracts was the plaintiff himself. Such at least turns
out to have been the case.

Much energy has been expended in the briefs upon his appeal over the contention
whether the defendant was justified in laying down the condition mentioned in the letter
of March 26, 1921, to the effect that no order would be entertained unless cash should
be deposited with either the International Banking Corporation of the Chartered Bank of
India, Australia and China, in Cebu. In this connection the plaintiff points to the
stipulation of the contract which provides that contracts with responsible parties are to
be accepted "subject to draft attached to bill of lading in full payment of such shipment."
What passed between the parties upon this point appears to have the character of mere
diplomatic parrying, as the plaintiff had no contract from any responsible purchaser other
than his own subagents and the defendant company could no probably have filled the
contracts even if they had been backed by the Bank of England.

Upon inspection of the plaintiff's letters (Exhibit Y and AA), there will be found ample
assurance that deposits for the amount of each shipment would be made with a bank in
Manila provided the defendant would indicated its ability to fill the orders; but these
assurance rested upon no other basis than the financial responsibility of the plaintiff
himself, and this circumstance doubtless did not escape the discernment of the
defendant's officers.

With respect to the order from H. Hiwatari, we observe that while he intimates that he
had been promised the exclusive agency under the plaintiff for Japan, nevertheless it
does not affirmatively appear that he had been in fact appointed to be such at the time
he signed to order Exhibit W at the request of the plaintiff. It may be assumed, therefore,
that he was at that time a stranger to the contract of agency. It clearly appears,
however, that he did not expect to purchase the thousand tons of bituminous limestone
referred to in his order without banking assistance; and although the submanager of the
Bank of Taiwan had said something encouraging in respect to the matter, nevertheless
that official had refrained from giving his approval to the order Exhibit W. It is therefore
not shown affirmatively that this order proceeds from a responsible source.

The first assignment of error in the appellant's brief is directed to the action of the trial
judge in refusing to admit Exhibit 2, 7, 8, 9 and 10, offered by the defendant, and in
admitting Exhibit E, offered by the plaintiff. The Exhibit 2 is a letter dated June 25, 1921,
or more than three weeks after the action was instituted, in which the defendant's
assistant general manager undertakes to reply to the plaintiff's letter of March 29
proceeding. It was evidently intended as an argumentative presentation of the plaintiff's
point of view in the litigation then pending, and its probative value is so slight, even if
admissible at all, that there was no error on the part of the trial court in excluding it.

Exhibit 7, 8, 9 and 10 comprise correspondence which passed between the parties by

mail or telegraph during the first part of the year 1921. The subject-matter of this
correspondence relates to efforts that were being made by Anderson to dispose of the
controlling in the defendant corporation, and Exhibit 9 in particular contains an offer from
the plaintiff, representing certain associates, to but out Anderson's interest for a fixed
sum. While these exhibits perhaps shed some light upon the relations of the parties
during the time this controversy was brewing, the bearing of the matter upon the
litigation before us is too remote to exert any definitive influence on the case. The trial
court was not in error in our opinion in excluding these documents.

Exhibit E is a letter from Anderson to the plaintiff, dated April 21, 1920, in which
information is given concerning the property of the defendant company. It is stated in
this letter that the output of the Lucio (quarry) during the coming year would probably be
at the rate of about five tons for twenty-four hours, with the equipment then on hand,
but that with the installation of a model cableway which was under contemplation, the
company would be able to handle two thousand tons in twenty-four hours. We see no
legitimate reason for rejecting this document, although of slight probative value; and her
error imputed to the court in admitting the same was not committed.

Exhibit 14, which was offered in evidence by the defendant, consists of a carbon copy of
a letter dated June 13, 1921, written by the plaintiff to his attorney, Frank B. Ingersoll,
Esq., of Manila, and in which plaintiff states, among other things, that his profit from the
San Francisco contract would have been at the rate of eigthy-five cents (gold) per ton.
The authenticity of this city document is admitted, and when it was offered in evidence
by the attorney for the defendant the counsel for the plaintiff announced that he had no
objection to the introduction of this carbon copy in evidence if counsel for the defendant
would explain where this copy was secured. Upon this the attorney for the defendant
informed the court that he received the letter from the former attorneys of the defendant
without explanation of the manner in which the document had come into their
possession. Upon this the attorney for the plaintiff made this announcement: "We hereby
give notice at this time that unless such an explanation is made, explaining fully how this
carbon copy came into the possession of the defendant company, or any one
representing it, we propose to object to its admission on the ground that it is a
confidential communication between client and lawyer." No further information was then
given by the attorney for the defendant as to the manner in which the letter had come to
his hands and the trial judge thereupon excluded the document, on the ground that it
was a privileged communication between client and attorney.
We are of the opinion that this ruling was erroneous; for even supposing that the letter
was within the privilege which protects communications between attorney and client,
this privilege was lost when the letter came to the hands of the adverse party. And it
makes no difference how the adversary acquired possession. The law protects the client
from the effect of disclosures made by him to his attorney in the confidence of the legal
relation, but when such a document, containing admissions of the client, comes to the
hand of a third party, and reaches the adversary, it is admissible in evidence. In this
connection Mr. Wigmore says:

The law provides subjective freedom for the client by assuring him of exemption
from its processes of disclosure against himself or the attorney or their agents of
communication. This much, but not a whit more, is necessary for the maintenance
of the privilege. Since the means of preserving secrecy of communication are
entirely in the client's hands, and since the privilege is a derogation from the
general testimonial duty and should be strictly construed, it would be improper to
extend its prohibition to third persons who obtain knowledge of the
communications. One who overhears the communication, whether with or without
the client's knowledge, is not within the protection of the privilege. The same rule
ought to apply to one who surreptitiously reads or obtains possession of a
document in original or copy. (5 Wigmore on Evidence, 2d ed., sec. 2326.)

Although the precedents are somewhat confusing, the better doctrine is to the effect
that when papers are offered in evidence a court will take no notice of how they were
obtained, whether legally or illegally, properly or improperly; nor will it form a collateral
issue to try that question. (10 R. C. L., 931; 1 Greenl. Evid., sec. 254a; State vs. Mathers,
15 L. R. A., 268; Gross vs. State, 33 L. R. A., [N. S.], 477, note.)

Our conclusion upon the entire record is that the judgment appealed from must be
reversed; and the defendant will be absolved from the complaint. It is so ordered,
without special pronouncement as to costs of either instance.

MA. PAZ FERNANDEZ KROHN vs. COURT OF APPEALS and EDGAR KROHN, JR.
G.R. No. 108854 June 14, 1994

A confidential psychiatric evaluation report is being presented in evidence before the

trial court in a petition for annulment of marriage grounded on psychological incapacity.
The witness testifying on the report is the husband who initiated the annulment
proceedings, not the physician who prepared the report.

The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on
privileged communication between physician and patient, seeks to enjoin her husband
from disclosing the contents of the report. After failing to convince the trial court and the
appellate court, she is now before us on a petition for review on certiorari.

On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint
Vincent de Paul Church in San Marcelino, Manila. The union produced three children,
Edgar Johannes, Karl Wilhelm and Alexandra. Their blessings notwithstanding, the
relationship between the couple developed into a stormy one. In 1971, Ma. Paz
underwent psychological testing purportedly in an effort to ease the marital strain. The
effort however proved futile. In 1973, they finally separated in fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz
prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November
1978, presenting the report among others, he obtained a decree ("Conclusion") from the
Tribunal Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma.
Paz on the ground of "incapacitas assumendi onera conjugalia due to lack of due
discretion existent at the time of the wedding and thereafter." 1 On 10 July 1979, the
decree was confirmed and pronounced "Final and Definite." 2

Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of
Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal
partnership.

On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma.
Paz before the trial court. 3 In his petition, he cited the Confidential Psychiatric
Evaluation Report which Ma. Paz merely denied in her Answer as "either unfounded or
irrelevant." 4

At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the
contents of the Confidential Psychiatric Evaluation Report. This was objected to on the
ground that it violated the rule on privileged communication between physician and
patient. Subsequently, Ma. Paz filed a Manifestation expressing her "continuing
objection" to any evidence, oral or documentary, "that would thwart the physician-
patient privileged communication rule," 5 and thereafter submitted a Statement for the
Record asserting among others that "there is no factual or legal basis whatsoever for
petitioner (Edgar) to claim 'psychological incapacity' to annul their marriage, such
ground being completely false, fabricated and merely an afterthought." 6 Before leaving
for Spain where she has since resided after their separation, Ma. Paz also authorized and
instructed her counsel to oppose the suit and pursue her counterclaim even during her
absence.

On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of the
confidential psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz'
Statement for the Record. 8

On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric
Evaluation Report in evidence and ruling that

. . . the Court resolves to overrule the objection and to sustain the Opposition to the
respondent's Motion; first, because the very issue in this case is whether or not the
respondent had been suffering from psychological incapacity; and secondly, when the
said psychiatric report was referred to in the complaint, the respondent did not object
thereto on the ground of the supposed privileged communication between patient and
physician. What was raised by the respondent was that the said psychiatric report was
irrelevant. So, the Court feels that in the interest of justice and for the purpose of
determining whether the respondent as alleged in the petition was suffering from
psychological incapacity, the said psychiatric report is very material and may be testified
to by petitioner (Edgar Krohn, Jr.) without prejudice on the part of the respondent to
dispute the said report or to cross-examination first the petitioner and later the
psychiatrist who prepared the same if the latter will be presented. 9

On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June
4, 1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off
the record. A subsequent motion for reconsideration filed by her counsel was likewise
denied.

Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision
promulgated 30 October 1992, the appellate court dismissed the petition for certiorari.
10 On 5 February 1993, the motion to reconsider the dismissal was likewise denied.
Hence, the instant petition for review.

Petitioner now seeks to enjoin the presentation and disclosure of the contents of the
psychiatric report and prays for the admission of her Statement for the Record to form
part of the records of the case. She argues that since

Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying
on matters which he may have acquired in attending to a patient in a professional
capacity, "WITH MORE REASON should be third person (like respondent-husband in this
particular instance) be PROHIBITED from testifying on privileged matters between a
physician and patient or from submitting any medical report, findings or evaluation
prepared by a physician which the latter has acquired as a result of his confidential and
privileged relation with a patient." 12 She says that the reason behind the prohibition is

. . . to facilitate and make safe, full and confidential disclosure by a patient to his
physician of all facts, circumstances and symptoms, untrammeled by apprehension of
their subsequent and enforced disclosure and publication on the witness stand, to the
end that the physician may form a correct opinion, and be enabled safely and
efficaciously to treat his patient. 13

She further argues that to allow her husband to testify on the contents of the psychiatric
evaluation report "will set a very bad and dangerous precedent because it abets
circumvention of the rule's intent in preserving the sanctity, security and confidence to
the relation of physician and his patient." 14 Her thesis is that what cannot be done
directly should not be allowed to be done indirectly.

Petitioner submits that her Statement for the Record simply reiterates under oath what
she asserted in her Answer, which she failed to verify as she had already left for Spain
when her Answer was filed. She maintains that her "Statement for the Record is a plain
and simple pleading and is not as it has never been intended to take the place of her
testimony;" 15 hence, there is no factual and legal basis whatsoever to expunge it from
the records.
Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit:
the prohibition applies only to a physician. Thus . . . the legal prohibition to testify is not
applicable to the case at bar where the person sought to be barred from testifying on the
privileged communication is the husband and not the physician of the petitioner." 16 In
fact, according to him, the Rules sanction his testimony considering that a husband may
testify against his wife in a civil case filed by one against the other.

Besides, private respondent submits that privileged communication may be waived by

the person entitled thereto, and this petitioner expressly did when she gave her
unconditional consent to the use of the psychiatric evaluation report when it was
presented to the Tribunal Metropolitanum Matrimoniale which took it into account among
others in deciding the case and declaring their marriage null and void. Private
respondent further argues that petitioner also gave her implied consent when she failed
to specifically object to the admissibility of the report in her Answer where she merely
described the evaluation report as "either unfounded or irrelevant." At any rate, failure to
interpose a timely objection at the earliest opportunity to the evidence presented on
privileged matters may be construed as an implied waiver.

With regard to the Statement for the Record filed by petitioner, private respondent posits
that this in reality is an amendment of her Answer and thus should comply with pertinent
provisions of the Rules of Court, hence, its exclusion from the records for failure to
comply with the Rules is proper.

The treatise presented by petitioner on the privileged nature of the communication

between physician and patient, as well as the reasons therefor, is not doubted. Indeed,
statutes making communications between physician and patient privileged are intended
to inspire confidence in the patient and encourage him to make a full disclosure to his
physician of his symptoms and condition. 17 Consequently, this prevents the physician
from making public information that will result in humiliation, embarrassment, or
disgrace to the patient. 18 For, the patient should rest assured with the knowledge that
the law recognizes the communication as confidential, and guards against the possibility
of his feelings being shocked or his reputation tarnished by their subsequent disclosure.
19 The physician-patient privilege creates a zone of privacy, intended to preclude the
humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain
types of information communicated in the context of the physician-patient relationship
fall within the constitutionally protected zone of privacy, 20 including a patient's interest
in keeping his mental health records confidential. 21 Thus, it has been observed that the
psychotherapist-patient privilege is founded upon the notion that certain forms of
antisocial behavior may be prevented by encouraging those in need of treatment for
emotional problems to secure the services of a psychotherapist.

Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22

clearly lays down the requisites in order that the privilege may be successfully invoked:
(a) the privilege is claimed in a civil case; (b) the person against whom the privilege is
claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such
person acquired the information while he was attending to the patient in his professional
capacity; (d) the information was necessary to enable him to act in that capacity; and,
(e) the information was confidential and, if disclosed, would blacken the reputation
(formerly character) of the patient.

In the instant case, the person against whom the privilege is claimed is not one duly
authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband
who wishes to testify on a document executed by medical practitioners. Plainly and
clearly, this does not fall within the claimed prohibition. Neither can his testimony be
considered a circumvention of the prohibition because his testimony cannot have the
force and effect of the testimony of the physician who examined the patient and
executed the report.

Counsel for petitioner indulged heavily in objecting to the testimony of private

respondent on the ground that it was privileged. In his Manifestation before the trial
court dated 10 May 1991, he invoked the rule on privileged communications but never
questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the
testimony on the ground that it was hearsay, counsel waived his right to make such
objection and, consequently, the evidence offered may be admitted.

The other issue raised by petitioner is too trivial to merit the full attention of this Court.
The allegations contained in the Statement for the Records are but refutations of private
respondent's declarations which may be denied or disproved during the trial.

The instant appeal has taken its toll on the petition for annulment. Three years have
already lapsed and private respondent herein, as petitioner before the trial court, has yet
to conclude his testimony thereat. We thus enjoin the trial judge and the parties'
respective counsel to act with deliberate speed in resolving the main action, and avoid
any and all stratagems that may further delay this case. If all lawyers are allowed to
appeal every perceived indiscretion of a judge in the course of trial and include in their
appeals depthless issues, there will be no end to litigations, and the docket of appellate
courts will forever be clogged with inconsequential cases. Hence, counsel should
exercise prudence in appealing lower court rulings and raise only legitimate issues so as
not to retard the resolution of cases. Indeed, there is no point in unreasonably delaying
the resolution of the petition and prolonging the agony of the wedded couple who after
coming out from a storm still have the right to a renewed blissful life either alone or in
the company of each other. 23

WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed
Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED.

SO ORDERED.

EDWARD A. KELLER & CO., LTD vs. COB GROUP MARKETING, INC., and
INTERMEDIATE APPELLATE COURT, G.R. No. L-68097 January 16, 1986

This case is about the liability of a marketing distributor under its sales agreements with
the owner of the products. The petitioner presented its evidence before Judges Castro
Bartolome and Benipayo. Respondents presented their evidence before Judge Tamayo
who decided the case.
A review of the record shows that Judge Tamayo acted under a misapprehension of facts
and his findings are contradicted by the evidence. The Appellate Court adopted the
findings of Judge Tamayo. This is a case where this Court is not bound by the factual
findings of the Appellate Court. (See Director of Lands vs. Zartiga, L-46068-69,
September 30, 1982, 117 SCRA 346, 355).

Edward A. Keller & Co., Ltd. appointed COB Group Marketing, Inc. as exclusive distributor
of its household products, Brite and Nuvan in Panay and Negros, as shown in the sales
agreement dated March 14, 1970 (32-33 RA). Under that agreement Keller sold on credit
its products to COB Group Marketing.

As security for COB Group Marketing's credit purchases up to the amount of P35,000,
one Asuncion Manahan mortgaged her land to Keller. Manahan assumed solidarily with
COB Group Marketing the faithful performance of all the terms and conditions of the
sales agreement (Exh. D).

In July, 1970 the parties executed a second sales agreement whereby COB Group
Marketing's territory was extended to Northern and Southern Luzon. As security for the
credit purchases up to P25,000 of COB Group Marketing for that area, Tomas C. Lorenzo,
Jr. and his father Tomas, Sr. (now deceased) executed a mortgage on their land in Nueva
Ecija. Like Manahan, the Lorenzos were solidarily liable with COB Group Marketing for its
obligations under the sales agreement (Exh. E).

The credit purchases of COB Group Marketing, which started on October 15, 1969,
limited up to January 22, 1971. On May 8, the board of directors of COB Group Marketing
were apprised by Jose E. Bax the firm's president and general manager, that the firm
owed Keller about P179,000. Bax was authorized to negotiate with Keller for the
settlement of his firm's liability (Exh. 1, minutes of the meeting).

On the same day, May 8, Bax and R. Oefeli of Keller signed the conditions for the
settlement of COB Group Marketing's liability, Exhibit J, reproduced as follows:

This formalizes our conditions for the settlement of C.O.B.'s account with Edward Keller
Ltd.

1. Increase of mortgaged collaterals to the full market value (estimated by Edak at

P90,000.00).

2. Turn-over of receivables (estimated outstandings P70,000.00 to P80,000.00).

3. Turn-over of 4 (four) trucks for outright sale to Edak, to be credited against C.0.B.'s
account.

4. Remaining 8 (eight) trucks to be assigned to Edak, C.O.B will continue operation

with these 8 trucks. They win be returned to COB after settlement of full account.

5. C.O.B has to put up securities totalling P200,000.00. P100,000.00 has to be

liquidated within one year. The remaining P100,000.00 has to be settled within the
second year.

6. Edak wig agree to allow C.O.B. to buy goods to the value of the difference between
P200,000.00 and their outstandings, provided C.O.B. is in a position to put up securities
amounting to P200,000.00.

Discussion held on May 8, 1971.

Twelve days later, or on May 20, COB Group Marketing, through Bax executed two
second chattel mortgages over its 12 trucks (already mortgaged to Northern Motors,
Inc.) as security for its obligation to Keller amounting to P179,185.16 as of April 30, 1971
(Exh. PP and QQ). However, the second mortgages did not become effective because the
first mortgagee, Northern Motors, did not give its consent. But the second mortgages
served the purpose of being admissions of the liability COB Group Marketing to Keller.

The stockholders of COB Group Marketing, Moises P. Adao and Tomas C. Lorenzo, Jr., in a
letter dated July 24, 1971 to Keller's counsel, proposed to pay Keller P5,000 on November
30, 1971 and thereafter every thirtieth day of the month for three years until COB Group
Marketing's mortgage obligation had been fully satisfied. They also proposed to
substitute the Manahan mortgage with a mortgage on Adao's lot at 72 7th Avenue,
Cubao, Quezon City (Exh. L).

These pieces of documentary evidence are sufficient to prove the liability of COB Group
Marketing and to justify the foreclosure of the two mortgages executed by Manahan and
Lorenzo (Exh. D and E).

Section 22, Rule 130 of the Rules of Court provides that the act, declaration or omission
of a party as to a relevant fact may be given in evidence against him "as admissions of a
party".

The admissions of Bax are supported by the documentary evidence. It is noteworthy that
all the invoices, with delivery receipts, were presented in evidence by Keller, Exhibits KK-
1 to KK-277-a and N to N-149-a, together with a tabulation thereof, Exhibit KK, covering
the period from October 15, 1969 to January 22, 1971. Victor A. Mayo, Keller's finance
manager, submitted a statement of account showing that COB Group Marketing owed
Keller P184,509.60 as of July 31, 1971 (Exh. JJ). That amount is reflected in the
customer's ledger, Exhibit M.

On the other hand, Bax although not an accountant, presented his own reconciliation
statements wherein he showed that COB Group Marketing overpaid Keller P100,596.72
(Exh. 7 and 8). He claimed overpayment although in his answer he did not allege at all
that there was an overpayment to Keller.

The statement of the Appellate Court that COB Group Marketing alleged in its answer
that it overpaid Keller P100,596.72 is manifestly erroneous first, because COB Group
Marketing did not file any answer, having been declared in default, and second, because
Bax and the other stockholders, who filed an answer, did not allege any overpayment. As
already stated, even before they filed their answer, Bax admitted that COB Group
Marketing owed Keller around P179,000 (Exh. 1).

Keller sued on September 16, 1971 COB Group Marketing, its stockholders and the
mortgagors, Manahan and Lorenzo.

COB Group Marketing, Trinidad C. Ordonez and Johnny de la Fuente were declared in
default (290 Record on Appeal).

After trial, the lower court (1) dismissed the complaint; (2) ordered Keller to pay COB
Group Marketing the sum of P100,596.72 with 6% interest a year from August 1, 1971
until the amount is fully paid: (3) ordered Keller to pay P100,000 as moral damages to be
allocated among the stockholders of COB Group Marketing in proportion to their unpaid
capital subscriptions; (4) ordered the petitioner to pay Manahan P20,000 as moral
damages; (5) ordered the petitioner to pay P20,000 as attomey's fees to be divided
among the lawyers of all the answering defendants and to pay the costs of the suit; (6)
declared void the mortgages executed by Manahan and Lorenzo and the cancellation of
the annotation of said mortgages on the Torrens titles thereof, and (7) dismissed
Manahan's cross-claim for lack of merit.
The petitioner appealed. The Appellate Court affirmed said judgment except the award of
P20,000 as moral damages which it eliminated. The petitioner appealed to this Court.

Bax and the other respondents quoted the six assignments of error made by the
petitioner in the Appellate Court, not the four assignments of error in its brief herein.
Manahan did not file any appellee's brief.

We find that the lower courts erred in nullifying the admissions of liability made in 1971
by Bax as president and general manager of COB Group Marketing and in giving
credence to the alleged overpayment computed by Bax .

The lower courts not only allowed Bax to nullify his admissions as to the liability of COB
Group Marketing but they also erroneously rendered judgment in its favor in the amount
of its supposed overpayment in the sum of P100,596.72 (Exh. 8-A), in spite of the fact
that COB Group Marketing was declared in default and did not file any counterclaim for
the supposed overpayment.

The lower courts harped on Keller's alleged failure to thresh out with representatives of
COB Group Marketing their "diverse statements of credits and payments". This
contention has no factual basis. In Exhibit J, quoted above, it is stated by Bax and Keller's
Oefeli that "discussion (was) held on May 8, 1971."

That means that there was a conference on the COB Group Marketing's liability. Bax in
that discussion did not present his reconciliation statements to show overpayment. His
Exhibits 7 and 8 were an afterthought. He presented them long after the case was filed.
The petitioner regards them as "fabricated" (p. 28, Appellant's Brief).

Bax admitted that Keller sent his company monthly statements of accounts (20-21 tsn,
September 2, 1976) but he could not produce any formal protest against the supposed
inaccuracy of the said statements (22). He lamely explained that he would have to dig
up his company's records for the formal protest (23-24). He did not make any written
demand for reconciliation of accounts (27-28).

As to the liability of the stockholders, it is settled that a stockholder is personally liable

for the financial obligations of a corporation to the extent of his unpaid subscription (Vda.
de Salvatierra vs. Garlitos 103 Phil. 757, 763; 18 CJs 1311-2).

While the evidence shows that the amount due from COB Group Marketing is
P184,509.60 as of July 31, 1971 or P186,354.70 as of August 31, 1971 (Exh. JJ), the
amount prayed for in Keller's complaint is P182,994.60 as of July 31, 1971 (18-19 Record
on Appeal). This latter amount should be the one awarded to Keller because a judgment
entered against a party in default cannot exceed the amount prayed for (Sec. 5, Rule 18,
Rules of Court).

WHEREFORE, the decisions of the trial court and the Appellate Court are reversed and
set aside.

COB Group marketing, Inc. is ordered to pay Edward A. Keller & Co., Ltd. the sum of
P182,994.60 with 12% interest per annum from August 1, 1971 up to the date of
payment plus P20,000 as attorney's fees.

Asuncion Manahan and Tomas C. Lorenzo, Jr. are ordered to pay solidarity with COB
Group Marketing the sums of P35,000 and P25,000, respectively.

The following respondents are solidarity liable with COB Group Marketing up to the
amounts of their unpaid subscription to be applied to the company's liability herein: Jose
E. Bax P36,000; Francisco C. de Castro, P36,000; Johnny de la Fuente, P12,000; Sergio C.
Ordonez, P12,000; Trinidad C. Ordonez, P3,000; Magno C. Ordonez, P3,000; Adoracion C.
Ordonez P3,000; Tomas C. Lorenzo, Jr., P3,000 and Luz M. Aguilar-Adao, P6,000.

If after ninety (90) days from notice of the finality of the judgment in this case the
judgment against COB Group Marketing has not been satisfied fully, then the mortgages
executed by Manahan and Lorenzo should be foreclosed and the proceeds of the sales
applied to the obligation of COB Group Marketing. Said mortgage obligations should bear
six percent legal interest per annum after the expiration of the said 90-day period. Costs
against the private respondents.

SO ORDERED.

PEOPLE of the PHILIPPINES vs. ELMER YPARRAGUIRE y SEPE, [G.R. No. 124391.
July 5, 2000]

After his indictment[1] and trial, accused-appellant appeals from his conviction for the
crime of rape of a mental retardate. [2]Pursuant to Republic Act No. 8353, the Anti-Rape
Law of 1997, rape is a crime against person which may be prosecuted de oficio.
However, considering that the alleged rape was committed in 1994, which was prior to
the effectivity of R.A. 8353, we apply the old law and treat rape as a private crime.

The facts as narrated by the trial court are:

"On March 24, 1994, at about 11:00 oclock in the evening, while complainant Charmelita
D. Ruina, an invalid and mentally retarded, was on her bed at the store of her mother at
the Public Market at Carrascal, Surigao del Sur, where she and her mother lived, accused
Elmer Yparraguirre alias "Lalo" entered her room, the door of which was not locked
because her mother went to the store of her elder sister. Upon getting inside, he
undressed himself and approached the Complainant who was apparently awake. He
caressed her and sucked her breasts. She shouted for help but nobody came to rescue
her, perhaps because it was late already in the evening and her voice was not loud
enough to be heard at the distance as, in fact, it could be heard at only about three to
five meters away x x x. Accused told her to keep quiet and when she put up some limpy
resistance, he boxed her. He then removed her panty went on top of her and inserted his
manhood into her most private part. She felt pain. After raping her, he left her room.
Soon her mother, Sanselas Leongas Ruina, arrived. She reported to her the incident. The
following morning, accused went back to the store and apologized for what he did and
promised not to do it again. But his plea would not mollify Sanselas. She took the
complainant to the Madrid (Surigao del Sur) District Hospital for physical examination. Dr.
Carlo P. Altrecha recorded the following findings in the Medical Certificate that he issued
on March 26, 1994:

POLIO MYELITIS-MENTALLY RETARDED

PPE:

n ABRASION, AT THE LEVEL OF THE MID-CLAVICULAR AREA, BOTH, LEFT AND RIGHT.

n CONTUSION, BOTH BREAST, LEFT AND RIGHT.

n CONTUSION, AT THE LEVEL OF THE 8TH THORACIC RIB, ME-AXILLARY LINE, RIGHT.

GENITALIA:

n LABIA MAJORA: NO CONGESTION, NO HEMATOMA.

n LABIA MINORA: CONGESTED, SLIGHT SWOLLEN.

n VAGINAL ORIPICE: CONGESTED, SLIGHT SWOLLEN HYMEN NOT INTACT.

n VAGINAL SMEAR FOR THE PRESENCE OF SPERMATOZOA: NO SPERMATOZOA SEEN."[3]

Appellant did not testify in court but instead relied on the lone testimony of his father,
who alleged that the complaint for rape was filed as a result of a "misunderstanding"
between appellant and the mother of the victim.

In this appeal, the basic issue raised by appellant is that the trial court never acquired
jurisdiction over the case because the complaint was signed and filed by the chief of
police and not by the complainant.

Appellants contention has no merit. Section 5, Rule 110 of the Rules on Criminal
Procedure provides in part:

"The offense of seduction, abduction, rape or acts of lasciviousness, shall not be

prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned
by the above-named persons, as the case may be. In case the offended party dies or
becomes incapacitated before she could file the complaint and has no known parents,
grandparents or guardian, the State shall initiate the criminal action in her behalf.

The offended party, even if she were a minor, has the right to initiate the prosecution for
the above offenses, independently of her parents, grandparents or guardian, unless she
is incompetent or incapable of doing so upon grounds other than her minority. Where the
offended party who is a minor fails to file the complaint, her parents, grandparents, or
guardian may file the same. The right to file the action granted to the parents,
grandparents or guardian shall be exclusive of all other persons and shall be exercised
successively in the order herein provided, except as stated in the immediately preceding
paragraph."

Pursuant to the afore-quoted provision, the offended party can initiate a prosecution for
rape even if she is a minor, unless she is incompetent or incapable of doing so upon
grounds other than her minority. Although the victim in this case is no longer a minor, it
is undisputed that she is a mental retardate and suffering from physical deformity. No
woman would come out in the open, inform the authorities of the injustice done to her,
make a statement of what had happened unless her purpose is to redress the wrong
done against her honor. Once the violation of the law becomes known through a direct
original participation initiated by the victim, the requirements of Article 344 of the
Revised Penal Code (RPC), to the effect that the offense of rape "shall not be prosecuted
except upon a complaint filed by the offended party or her parents," are satisfied. Said
provision is not determinative of the jurisdiction of courts over the private offenses
because the same is governed by the Judiciary law, not the Revised Penal Code which
deals with the definition of felonies and their punishment. Stated differently, the
complaint required in Article 344 is but a condition precedent to the exercise by the
proper authorities of the power to prosecute the guilty parties. Such condition was
imposed out of consideration for the offended woman and her family who might prefer to
suffer the outrage in silence rather than go through with the scandal of a public trial.[4]
The complaint simply starts the prosecutory proceeding but does not confer jurisdiction
on the court to try the case[5] because the overriding consideration in determining
whether the condition precedent in Article 344 has been complied with is the intent of
the aggrieved party to seek judicial redress for the affront committed.[6]

Article 344 was not enacted for the specific purpose of benefitting the accused. When it
is said that the requirement in Article 344 (that there should be a complaint of the
offended party or her relatives) is jurisdictional, what is meant is that it is the complaint
that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction
in the court to try the case. The courts jurisdiction is vested in it by the Judiciary Law.[7]

Going now to the merits of the case, the gravamen of the crime of rape is the sexual
congress of a woman by force and without consent.[8] These elements have been proven
beyond reasonable doubt to concur in this case. The evidence shows that appellant
boxed the victim in the neck and slapped her on the face while she was alone and lying
in bed on that fateful night. When she shouted for help, appellant told her to keep quiet.
Appellant then began sucking her breasts and her vagina. Then he removed her panty
and forcibly had sexual intercourse with the mentally retarded victim causing pain in her
private part. Her testimony in the oral deposition confirms the statements she made in
the vernacular in her affidavit earlier executed. Thus,

P Unsa may imong guibuhat paghikita nimo niadtong tawo nga miduol kanimo.

T Misinggit ako.

P Unsay guibuhat niadtong tawo sa imong pagsinggit?

T Iyang guitampa ang akong baba, dayon mipatong siya kanako.

P Unsay sunod nga guibuhat niadtong tawo sa dihang mipatong na siya kanimo?

T Iyang guidun-an ang akong tiyan, apan kay mikisikisi man ako iyang guisumbag ang
akong kilid dayon guihubo ang akong baro ug guisunod usab dayon ang akong pante.

P Unsay sunod nga guibuhat niadtong tawo kanimo sa tapos niya paghubo sa imong baro
ug imong pante?

T Iya akong gui-iyot senyor.

P Unsay imong guibuhat sa dihang guiiyot sa tawo?

T Misinggit ako senyor apan guipagngan ang akong baba busa mikisikisi ako apan
guisumbag na usab ug maoy nakapalipong kanako.[9] (Italics supplied).

The victims narrations are corroborated by the medical findings of the physician who
examined her and found that her labia minora was "congested, slight swollen", and her
hymen no longer intact. She also suffered abrasions and contusions on both breasts and
near her right armpit, which may have been caused by the blows.

In rape, it is not essential that the force employed in accomplishing the crime be so great
or of such character or could not be resisted.[10] Force in rape is relative, depending on
the age, size and strength of the parties. In the same manner, intimidation must be
viewed in the light of the victims perception and judgment at the time of the commission
of the crime and not by any hard and fast rule.[11] The victim was a mental retardate
and suffering from physical disability when appellant employed force by boxing and
slapping her. And when she shouted for help he intimidated her to keep her quiet. The
fact that the victim did not offer a tenacious resistance is immaterial considering her
physical nature she is an invalid and unable to rise from the bed unassisted. Physical
resistance need not be established in rape when intimidation is exercised upon the
victim and the latter submits herself, against her will, to the rapists advances because of
fear for her life and personal safety.[12] Although the victim shouted for help, her voice
could be heard only as far as three to five meters away.[13] This negates the contention
of the father of appellant that the rape could not have been committed because the
locus criminis of the crime was only about fifteen meters away from the passengers
terminal where there were people passing. In any case, it has been consistently ruled
that rape can be committed even in places where people congregate, in parks along the
roadsides, in a house where there are other occupants,[14] in the same room where
other members of the family are sleeping,[15] and even in places which to many would
appear unlikely and high risk venues for its commission.[16] For rape to be committed, it
is not necessary for the place to be ideal, or the weather to be fine for rapists bear no
respect for locale and time when they carry out their evil deed.[17]

On the alleged misunderstanding that appellant had with the victims mother which
allegedly prompted the mother to file the rape case against him, suffice it to say that no
mother would expose her own daughter to embarrassment and humiliation as well as to
the trouble, inconvenience, ridicule and scandal concomitant with a public trial if such
was not the truth and had not her intention been to bring the culprit to the folds of
justice. No mother, virtuous or not, will voluntarily and without compelling reasons put
her own daughter to shame and humiliation[18] if she were not motivated by an honest
desire to have her daughters transgressor punished accordingly.[19] Besides, it is
unnatural for a parent to use her offspring as an engine of malice, especially if it will
subject a daughter to embarrassment.[20]

In an apparent attempt to free himself from liability, appellant on the very same night
after the assault, asked forgiveness from the victims mother and promised that the same
will never be repeated. Yet, no mother can just let pass an indignity committed against
one of her own blood. It is easy to forgive, but justice for her would be no less than
punishment. Moreover, a plea for forgiveness may be considered analogous to an
attempt to compromise, which offer of compromise by the appellant may be received in
evidence as an implied admission of guilt pursuant to Section 27, Rule 130 of the Rules
on Evidence.[21]

With respect to the monetary awards, the P50,000.00 "damages" granted by the trial
court should be properly denominated as moral damages, which is allowed even if there
was no proof during the trial as basis therefor.[22] The mental and physical suffering of
the victims injury is inherently concomitant with and necessarily resulting from the
odious crime which per se warrants the award of moral damages.[23] In addition thereto,
the complainant is also entitled to a civil indemnity of P50,000.00[24] which is outrightly
awarded to rape victims being in the category of actual or compensatory damages[25]
and because the rape herein is not effectively qualified by any circumstance under which
the death penalty is authorized by present amended law.[26]

WHEREFORE, the decision of the trial court finding accused-appellant guilty beyond
reasonable doubt of the crime of Rape is AFFIRMED. Further, appellant is ORDERED TO
PAY the complainant fifty thousand pesos (P50,000.00) as civil indemnity in ADDITION to
the fifty thousand pesos (P50,000.00) moral damages.

SO ORDERED

THE UNITED STATES v. JUAN DE LA CRUZ, ET .AL., [G.R. No. 4740. November 18,
1908. ]

2. ID.; CONFESSION BY ONE OF THE BAND; ADMISSIBILITY. For the purpose of proving
that the defendants were members of a band of robbers, the ante-mortem statements of
one of the band, confessing his guilt and alleging the participation of the defendants in
the crime committed are not admissible.

3. ID.; SILENCE IS NOT ADMISSION OF GUILT. The silence of the defendants, when they
heard a self-confessed member of a band of robbers charge them with being members of
the band, should not be construed as an extra-judicial admission of the truth of such
charge, it appearing that these statements were made in the course of an official
investigation, and that the defendants were at that time under arrest charged with the
commission of the crime of robbery.

At about 10 o clock on the night of the 30th of October, 1907, a band, composed of not
less than five persons, two of whom, the appellants in this case, were armed with
revolvers, one with a bolo, and the others with clubs, entered the town of Jaen, where
they met one Fortunato Jimenez who, with his wife and sister, was on his way to visit a
neighbors house. With threats of violence the band obliged Jimenez and his party to
return to his house, and upon arriving there, Timoteo Dizon, one of the band, went up
into the house with Jimenez, and threatening him with a revolver, demanded P500.
Jimenez had no money, but was compelled to give up his watch, and at that moment, the
appellant Pio Yesma entered the room, and demanded that, if Jimenez would not give the
P500, he give at least whatever money he had. Jimenez insisted that he had no money
and the robbers left the house.

Just before the band encountered Jimenez and his party, they had captured another
resident of the town, named Delfin Esquivel, who was compelled at the point of a
revolver to accompany them together with Jimenez and his party, and was left
downstairs under guard together with the women of Jimenezs party, when Jimenez
himself was taken upstairs, and when the band left the house, was thrust inside together
with the women, and ordered to stay there and to make no noise.

A short time thereafter, the Constabulary forces surprised and attacked the band, killing
Dizon and wounding another member of the band. The watch was found upon Dizons
body, and his corpse was identified by Jimenez as that of the person who had first gone
up into the house and demanded P500.

The appellants were convicted of the crime of robo en cuadrilla (robbery in an armed
band), and the facts above set out, which were conclusively established by the testimony
of the witnesses at the trial, fully established their guilt, beyond a reasonable doubt, and
we find no error in the proceedings prejudicial to the rights of the accused.

Counsel contends that the judgment of the trial court should be reversed because, as he
alleges, first, it does not appear from the evidence that more than three members of the
band were armed, and consequently, if the crime of robbery was committed at the time
and place set out in the information, it was simple robbery and not robo en cuadrilla
(robbery in an armed band); second, granting that the crime of simple robbery was
proven, the evidence does not sustain a finding that the appellant Juan de la Cruz was in
any wise connected therewith, or that the appellant Pio Yesma took part therein as a
principal; third, the evidence of record fails to establish that the thing taken had a
specific value, that being one of the essential requisites of the crime of robbery; and,
fourth, the trial court erred in admitting ante-mortem statements made by Timoteo Dizon
in the presence of appellants, and at the time uncontradicted by them, for the purpose of
identifying the appellants and establishing their participation in the commission of the
crime.

The first assignment of error can not be maintained, because the evidence of record, and
especially the testimony of the witnesses Fortunato Jimenez and Delfin Esquivel, clearly
establishes the fact that the band which committed the crime was composed of more
than three persons, two of whom carried revolvers, a third a bolo, the others being
armed with clubs. Counsel seems to think that the members of the band carrying clubs
can not be said to have been armed in the sense in which that word is used in the
definition of the crime of robo en cuadrilla (robbery in an armed band); but we hold that
where a robbery is committed by a band, some of whom are armed with revolvers, some
with bolos, and others with clubs (garrotes), the clubs are arms which, in the hands of
the members of such a band, may be as dangerous to the life of one who would resist
the depredations of the band as are revolvers or bolos, and therefore, those carrying
them are armed members of the band in the sense in which that term is used in the code
in defining a cuadrilla or armed band.

We are of opinion also that the record clearly establishes the guilt of both Juan de la Cruz
and Pio Yesma, as principals, in the commission of the crime with which they are
charged. The testimony of Jimenez positively identified Yesma as the second person who
followed him into his house, threatened him with a revolver and demanded the surrender
of any money he might have; Esquivel positively identified both Yesma and De la Cruz as
members of the band, who captured him and brought him together with Jimenez and his
family, to the house of Jimenez; and the testimony of both these witnesses, together with
the testimony of other witnesses who saw the band when;it entered the house, clearly
establishes the fact that all the band operated together, and that, while some of the
members entered the house, the others stayed below on guard, thus aiding and
abetting, as principals, those who entered and actually took possession of the stolen
property. (U. S. v. Ancheta, 1 Phil. Rep., 165; U. S. v. Abelinde, 1 Phil. Rep., 568; U. S. v.
Santos, v. Phil. Rep., 453.)

The third assignment of error is also completely refuted by an examination of the record.
The owner of the stolen watch testified that he did not know exactly what its value was,
but that he had paid P8 for it. This testimony was clearly sufficient to establish the fact
that it had some value; and indeed, since the crime of robbery is complete when all the
other requisites set out in the definition in the code concur, if the property taken has
even the smallest value, we think we would be justified in holding that the watch taken
had sufficient value to sustain a conviction of robbery, unless it affirmatively appeared
that it was absolutely worthless, for without testimony to the contrary a watch, which the
owner valued enough to carry, may fairly be presumed to have some value, however
insignificant the value may be.

In regard to the fourth assignment of error, we agree with counsel for the appellant that
the trial court erred in admitting the ante-mortem statements of Timoteo Dizon, for the
purpose of identifying the appellants as members of the band. The ante-mortem
statements admitted by the trial court were an alleged extra-judicial declaration made
by the bandit Timoteo Dizon, a few hours before his death, wherein he confessed his
guilt of the robbery on the night in question, and stated that the appellants were
members of the band. The evidence further discloses that this confession was made to
the provincial fiscal and an officer of the Constabulary, and that, although the appellants
were there present, under arrest, charged with the commission of the crime, and heard
the dying man charge them with being members of the band, they kept silent and did
not attempt to deny the charge.

Section 15 of General Orders, No. 58, provides that in all criminal prosecutions the
defendant shall be entitled to be confronted by, and to cross-examine the witnesses
against him; and while there are some apparent exceptions to this rule in regard to
hearsay testimony, the dying declaration under consideration can not be said to fall
under any of these so-called exceptions.
Dying declarations or affirmations, made not under the sanction of an oath but of a
solemn sense of impending death, are sometimes accepted as evidence, though made
extra-judicially and without cross-examination, the declarant not being regarded as a
witness whom the defendant is entitled to meet face to face; but the admission of such
declarations has always been strictly limited to criminal prosecutions for homicide or
murder, and must proceed from the very person alleged to have been killed. (Thompson
v. Sted., 24 Ga., 297; Gibson v. C., 2 Va. Cas., 111; Hill v. C., 2 Grat., 594; Reg. v.
Whitworth, 1 Fost & F., 382.) Manifestly, therefore, the ante-mortem statement in this
case is not admissible as a "dying declaration."cralaw virtua1aw library

So the acts or declarations of a conspirator are sometimes admissible as evidence

against his co-conspirators, the acts or declarations of each of the conspirators being
regarded as the acts or declarations of all. But the ground for the admission of such
evidence clearly requires that such acts or declarations must have been made during the
progress of the conspiracy and in pursuance of the ends for which it had been formed,
and not after the transaction had ended; and further, before such evidence can be
admitted it must appear by competent evidence that the conspiracy actually existed and
that the accused were members of the conspiracy. (Bishops Criminal Procedure, Vol. I,
sec. 1248, and many cases there cited.) The declaration under consideration was made
after the transaction to which it referred was at an end, was not made in pursuance of
the conspiracy, and was clearly inadmissible for the purpose of proving that the
defendants were co-conspirators with the declarant.

It is suggested, however, that while the statements in question were inadmissible as

proof of the truth of their contents, they might have been received for the purpose of
showing that, when they were made in the presence of the defendants, they made no
attempt to deny them, and by their silence implicitly admitted their truth. We do not
doubt that silence may sometimes be equivalent to the admission of the truth of
statements made by one person in the presence and hearing of another, when these
statements have been made under such circumstances that the natural impulse of an
innocent person hearing such statements would impel him to deny their truth if they
were false. But it must appear that there was a proper opportunity for reply and that the
surroundings were such as to render a denial expedient and proper; and the right of a
defendant in all criminal prosecutions "to be exempt from testifying against himself"
clearly prohibits any inference of guilt from the silence of an accused person who has
been arrested and charged with crime.

The statements in question were made after defendants had been arrested, and in the
course of an official investigation which was being conducted by the provincial fiscal, and
under these circumstances, proof of the fact that the statements were made in the
presence and hearing of the defendants, and that they kept silence and failed there and
then to deny their truth, could in no event support the inference that by thus keeping
silence they implicity admitted the truth of the facts alleged by the declarant.

We think, however, that while the admission of this testimony was error, it was error
without prejudice to the rights of the accused, because, as we have said before, the
properly admitted testimony of record fully and conclusively establishes the commission
of the crime with which the appellants were charged, and their identity as members of
the band who committed it.

The judgment of the trial court should be and is hereby affirmed, with the costs of this
instance against the appellants. So ordered.
PEOPLE OF THE PHILIPPINES vs. HECTOR MAQUEDA G.R. No. 112983, March
22, 1995

As against a bustling city life, Britisher Horace William Barker, a consultant of the World
Bank, and his Filipino wife, Teresita Mendoza, chose the peace and quiet of a country
home not any near the metropolis of Manila or its environs, but in the rugged and
mountainous terrain of Tuba, Benguet. Perhaps they thought they were in a veritable
paradise, beyond the reach of worldly distractions and trouble when in the early morning
of 27 August 91, in the, sanctity of their own home, Horace was brutally slain and
Teresita badly battered with lead pipes on the occasion of a robbery. Sufficient prima
facie evidence pointed to Rene Salvamante, the victimsformer houseboy, as one of the
perpetrators of the That illusion was shattered ghastly crime.

As to Rene's co-conspirator, the, prosecution initially included one Richard Malig y

Severino in the information for robbery with homicide and serious physical injuries 1 filed
on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC) of Benguet at La
Trinidad, Benguet.

Only Richard Malig was arrested On 22 January 1992, prior to the arraignment of Richard
Malig, the prosecution filed a motion to amend the information 2 to implead as co-
accused Hector Maqueda alias Putol because the evaluation Of the evidence
subsequently submitted established his complicity in the crime, and at the hearing of the
motion the following day, the Prosecutor further asked that accused Richard Malig be
dropped from the information because further evaluation of the evidence disclosed no
sufficient evidence against him. 3

The motion to drop Malig was granted and warrants for the arrest of accused Salvamante
and Maqueda were issued. Maqueda was subsequently arrested on 4 March 1992, and on
9 April 1992, he filed an application for bail. 4 He categorically stated therein that "he is
willing and volunteering to be a State witness in the above-entitled case, it appearing
that he is the least guilty among the accused in this case."

On 22 April 1992, the prosecution filed an Amended Informations 5 with only Salvamante
and Maqueda as the accused. Its accusatory portion reads as follows:

That on or about the 27th Of August, 1991, at Tagadi; Upper Tadiangan Municipality of
Tuba, Province Of Benguet, Philippines, and within the jurisdiction of this Honorable
Court, the, above-named accused, Conspiring, confederating and mutually aiding one
another, armed with lead pipes, and with intent of gain and against the will and consent
of the owners thereof, did then and there willfully, unlawfully and feloniously enter the
house of Spouses TERESITA and WILLIAM HORACE BARKER and with violence against and
intimidation of the persons therein ransack the place and take and carry away the
following articles, to ,it:

[An enumeration and description of the articles follow]

all having a total value of TWO HUNDRED FOUR THOUSAND TWO HUNDRED FIFTY PESOS
(P204.250.00), Philippine Currency, belonging to, the said Teresita and William Horace
Barker; that on the occasion and by reason of the said robbery; both accused willfully,
unlawfully and feloniously repeatedly strike Teresita Barker and William Horace Barker
with lead pipes on the different Parts of their body, leading to the death of William
Horace Barker and inflicting various physical injuries on the former which required
medical attendance for a period of more than thirty (30) days and have likewise
incapacitated her from the performance of her, customary labor for the same period of
time.
Contrary to Law.

Since Rene Salvamante continues to elude arrest and has remained at large, trial
proceeded entered a plea of not guilty on 22 April 1992. 6

In its decision 7 Promulgated on 31 August 1993, the trial Maqueda guilty beyond
reasonable doubt of the crime of robbery with homicide and serious physical Injuries and
sentenced him to Suffer the penalty of reclusion perpetua and to indemnify the victim,
Teresita M, Barker in the amount of P50,000.00 for the death of William Horace Barker,
court found accused Hector P41,681,00 representing actual expenses, P100,000.00 as
moral damages and to pay the costs."

The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps
Norie Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco
Cabotaje, prosecutor Daniel Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo
Tabadero, and Policarpio Cambod in its evidence in chief and Fredesminda Castrence and
SP03 Armando Molleno on rebuttal. Accused Hector Maqueda took the witness stand and
presented SPO1 Aurelio Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig
as his sour-rebuttal witness.

The version of the prosecution, as culled from the trial court's detailed and meticulous
summary thereof, is as follows:

Between 10:30 and 11:00 pm. of 26 August 1991, the spouses Horace William Barker
and Teresita Mendoza Barker repaired to their bedroom after Teresita had checked, as
washer wont, the main doors of their house to see if they had been locked and bolted.

At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of
the Barkers who shared a room with her cousin and fellow househelp, Julieta Villanueva,
got up, opened the door to the garage, went to the lavatory to wash her face, and
proceeded to the toilet. When she opened the door of the toilet and switched. on the
light, she saw Rene Salvamante. She knew Salvamante very well because he and his
sister Melanie were the former househelps of the Barkers whom she and Julieta
Villanueva had replaced and because Salvamante had acquainted her on her chores.

Salvamante suddenly strangled her. While she Was fighting back, Norie happened to turn
her face and she saw a fair-complexioned, tall man with a high-bridged nose at
Salvamante's side, whom she identified at the trial as Maqueda. After she broke free
from Salvamante, Norie fled towards the garage and shouted for help. Salvamante
chased her and pulled her back inside the house.

Julieta Villanueva, who was awakened by the shouts of Norie, got out of her bed and
upon opening the door of her room, saw a man clad in maong jacket and short pants
with 'his right hand brandishing a lead pipe standing two meters in front of her. At the
trial, She pointed to, accused Maqueda as the man she saw then. (She got scared and
immediately closed the door. Since the door knob turned as if someone was forcing his
way into the room, she held on to it and shouted for help.

The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of
the room, leaving behind her husband who was still asleep; She went down the Stairs
and proceeded t, the dining room. She saw Salvamante and a companion who was a
complete stranger to her. Suddenly the two rushed towards her and beat her up with
lead pipes. Despite her pleas to get what they want and not to hurt her, they continued
to beat her up until she lost consciousness. At the trial, she pointed to accused Maqueda
as Salvamante's companion.
Salvamante also hit Norie with the lead pipe on her back and at theback of her right
hand. She fell to the concrete floor, and after she had recovered, she ran to-the garage
and hid under the car. After a few seconds, ,he went near the door of the garage and
because she could not open it, she called Julieta. Julieta opened the door and they
rushed to their room and closed the door. When they saw that the door knob was being
turned, they braced themselves against the door to prevent anyone from entering. While
locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr. Barker:
"That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta
heard the sound of water flowing from the toilet and the barking of dogs.

At 7:00 a.m. of that same day, 27 August 1991, Mike Tabayan and Mark Pacio were
resting in a waiting shed beside the Asin road at Aguyad, Tuba, Benguet, which is only a
kilometer away from the house of the Barkers. They saw two men approaching them
from a curve. When the two men reached the shed, he and Mark noticed that the taller of
the two had an amputated left hand and a right hand with a missing thumb and index
finger. This man was carrying a black bag on his right shoulder

Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were
following would lead to Naguilian, La Union. Mike replied that it did not. Five minutes
later, a passenger jeepney bound for Baguio City and owned and driven by Ben Lusnong
arrived at the waiting shed. The two men bearded it, Mike again noticed that the taller
man had the defects above mentioned because the latter used his right hand with only
three fingers to hold on to the bar of the jeepney as he bearded it. In the Investigation
conducted by the Tuba Police, he identified through a picture the shorter man as
Salvamante, and at the hearing, he pointed to Maqueda as the taller man.

At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered bough courage to leave the
room where they had earlier barricaded themselves and proceed to the kitchen to get
the key to the gate of the garage. In the dining room, they saw the Barkers bathed in
their own blood. Norie and Julieta rushed out of the house and ran to the place of Janet
Albon to seek help. After requesting Janet to call the police, they returned to the Barker's
house but did not enter it for fear of what they had seen earlier. They just stayed near
the road.

Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from
the Baguio City Police Station, headed by Police Officer Policarpio Cambod, and which
included Dr. Perfecto Micu of the City Health Department, also arrived. The team
conducted an initial investigation only because it found out that the scene of the crime
was within the jurisdiction of the Tuba Police Station, which, however, was difficult to get
in touch with at that time. Dr. Perfecto Micu found the body of Mr. Barker inside the
Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its location.' They
went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt
(Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead
pipe (Exhibit "BB") at the back of the door of the house. He then interviewed the two
househelps who provided him with descriptions of the assailants. The team then left,
leaving behind BCF Security Officer Glen Enriquez and a security guard. Cambod
prepared a report of his initial investigation (Exhibit "KK").

Enriquez conducted his own investigation. At the master's bedroom, he saw several
pieces of jewelry scattered on the floor and an empty inner cabinet. He noticed footprints
at the back of the house, particularly at the riprap wall, and observed that the grass
below it was parted as if someone had passed through and created a trail amidst the
grass down toward the Asin road of Tuba, Benguet. Upon his request, a security guard of
the BCF, Edgar Dalit, was sent to the Barker house to secure the premises. Enriquez then
left after Dalit's arrival.
At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at theBarker
house to conduct their investigation. Enriquez, who in the meantime was called by Dalit,
returned to the Barker house.

The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house
by the Baguio City Police were first brought to the PNP Crime Laboratory Service at Camp
Dangwa, La Trinidad, Benguet, and then to the court.

The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian
Road, Baguio City, where it was examined by Dr. Francisco P. Cabotaje, MunicipalHealth
Officer of Tuba, Benguet. H, found in it twenty-seven injuries, which could have been
caused by a blunt instrument, determined the cause of death as hemorrhagic shock, and
then issued a death certificate (Exhibits "P," "O," and "R").

The wounded Teresita Barker was brought to the Baguio General Hospital and Medical
Center where she was treated and confined for eight days. The attending physician, Dr.
Francisco L. Hernandez, Jr., first saw her at around 11:00 a.m. of 27 August 1991. She
was in a comatose state. Dr. Hernandez found that she sustained multiple lacerations
primarily an the left side of the occipital area, bleeding in the left ear, and bruises on the
arm. One of the muscles adjoining her eyes was paralyzed. She regained consciousness
only after two days. Dr. Hernandez opined that Mrs. Barker's injuries were caused by a
blunt instrument, like a lead pipe, and concluded that if her injuries had been left
unattended, she would have died by noontime of 27 August 1991 due to bleeding or
hemorrhagic shock.

On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the
hospital bed of Mrs. Barker, showed her pictures of several persons, and asked her to
identify the persons who had assaulted her. She pointed to a person who turned out to
be Richard Malig. When informed of the investigation, Dr. Hernandez told the members
of the team that it was improper for them to conduct it without first consulting him since
Mrs. Barker had not yet fully recovered consciousness. Moreover, her eyesight had not
yet improved, her visual acuity was impaired, and she had double vision.

On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then
discharged from the hospital and upon getting home, tried to determine the items lost
during the robbery. She requested Glen Enriquez to get back the pieces of jewelry taken
by the Tuba PNP (Exhibit "U"). The Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs.
Barker discovered that her Canon camera, radio cassette recorder (Exhibit "W-3"), and
some pieces of jewelry (Exhibit "W-2") were missing. The aggregate value of the missing
items was P204,250.00. She then executed an affidavit on these missing items (Exhibit
"X.).

Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was
revealed that she sustained a damaged artery on her left eye which could cause
blindness. she then sought treatment at the St. Luke's Roosevelt Hospital in New York
(Exhibit "L") where she underwent an unsuccessful operation. She likewise received
treatment at the New York Medical Center (Exhibit "M").

On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered
Glen Enriquez to go to Guinyangan, Quezon, to coordinate with the police in determining
the, whereabouts of accused Rene Salvamante. In Guinyangan, Enriquez was able to
obtain information from the barangay captain, Basilio Requeron, that he saw Salvamante
together with a certain "Putol" in September 1991; however, they already left the place.

On 21 December 1991, Enriquez, Melanie Mendoza, and three others went back to
Guinyangan to find out whether Salvamante and "Putol" had returned. Upon being
informed by Barangay Captain Requeron that the two had not, Enriquez requested
Requeron to notify him immediately once Salvamante or "Putol" returned to Guinyangan,

On 4 March 1992, Requeron's daughter called up Enriquez to inform him that Putol," who
is none other than accused Hector Maqueda, had been arrested in Guinyangan. Enriquez
and Maj. Rodolfo Anagaran, Chief of the Tuba Police Station, together with another
policeman, Proceeded to Guinyangan. The Guinyangan Police Station turned over
Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet Provincial Jail.

Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the.
headquarters of the 235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its
commanding officer, Maj. Virgilio F. Rendon, directed SP03 Armando Molleno to get
Maqueda's statement. He did so and according to him, he informed Maqueda of his rights
under the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL")
wherein he narrated his participation in the crime at the Barker house on 27 August
1991.

On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail
(Exhibit "GG-6"). He stated therein that "he is willing and volunteeringto be a State
witness in the above entitled case, it appearing that he is the least guilty among the
accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such
statement and asked him if he was in the company of Salvamante on 27 August 1991 in
entering the house of the Barkers. After he received an affirmative answer, Prosecutor
Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was
the only accused on trial (Exhibit "II").

In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and
obtained permission from the latter to talk to Maqueda. Salvosa then led Maqueda
toward the balcony. Maqueda narrated to Salvosa that Salvamante brought him to
Baguio City in order to find a job as a peanut vendor; Salvamante then brought him to
the Barker house and it was only when they were at the vicinity thereof that Salvamante
revealed to him that his zeal purpose in going to Baguio City was to rob the Barkers; he
initially objected to the plan, but later on agreed to it; when they were in the kitchen of
the Barker house, one of the househelps was already there; Salvamante hit her with a
lead pipe and she screamed; then Mrs. Barker came down, forcing him, Maqueda, to
attack her with the lead pipe providedhim by Salvamante, After he felled Mrs. Barker, he
helped Salvamante in beating up Mr. Barker who had followed his wife downstairs. the
Barkers were already unconscious on the' floor, Salvamante went upstairs and a few
minutes later came down bringing with him a radio cassette and some pieces of jewelry.

Maqueda further divulged to Salvosa that they then changed clothes, went out of the
house, walked toward the road where they Saw two persons from whom they asked
directions, and when a passenger jeepney stopped and they were informed by the two
Persons that it was bound for Baguio City, he and Salvamante bearded it. They alighted
somewhere along Albano Street in Baguio City and walked until they reached the
Philippine Rabbit Bus station where they boarded a bus for Manila. 8

Accused Hector Maqueda put up the defense of denial and alibi. Hi, testimony is
summarized by the trial court in this wise:

Accused Hector Maqueda denied having anything to do with the crime. He stated that O"
August 27, 1991 he was at the polvoron factory owned by Minda Castrense located at Lot
1, Block 21 Posadas Bayview Subdivision, Sukat, Muntinlupa, Metro Manila. He was
employed as a caretaker Since July 5, 1991 and he worked continuously there up to
August 27, 1991, It was his sister, Myrna Katindig, who found him the job as caretaker. A,
caretaker, it was his duty to supervise the employees in the factory and whenever his
employer was not around, he was in charge of the sales. He and his 8 co-employees all
Sleep inside the factory.

On August 26, 1991, he reported for work although he could not recall what he did that
day. He slept inside the factory that night and on August 27, 1991, he was teaching the
new employees how to make the seasoning for the polvoron.

On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as it was
his vacation time from his job at the polvoron factory. He was to be back at work after
New Year's Day in 1992. Upon alighting from the bus at Guinyangan, Quezon, he saw
accused Rene Salvamante. He knows accused Salvamante as they were childhood
playmates, having gone to the same elementary school. He had no chance to talk to him
that day when he saw him and so they just waved to each other. He again saw accused
Salvamante after Christmas day on the road beside their (Salvamante) house.
Salvamante invited him to go to Calauag, Quezon Province and roam around. He agreed
to go as he also wanted to visit his brother, Jose Maqueda who resided at Sabangdos,
Calauag, Quezon. When the two accused were at Calauag, Salvamante asked Maqueda
to accompany him /Salvamante) in selling a cassette recorder which he said came from
Baguio City. Accused Maqueda knew that Salvamante worked in Baguio as the latter's
mother told him about it. They were able to sell the cassette recorder to Salvamante's
aunt. They had their meal and then went to visit accused Maqueda's brother. After that
occasion, he never saw accused Salvamante again. After his Christmas vacation, he went
back to work a the polvoron factory until February 29, 1992. One of his co-workers
Roselyn Merca, who was a townmate of his asked him to accompany her home as she
was hard up in her work at the factory. Hence, he accompanied Rosely home to
Guinyangan, Quezon. He was supposed to report back for work on March 2, 1992 but he
was not able to as he was arrested by members of the CAGFU at the house of Roselyn
Merca when he brought her home. He was then brought to the Guinyangan municipal
jail, then to the Tuba Police Station, Tuba, Benguet. There he was told to cooperate with
the police in arresting Salvamante so he would not stay long in the Province of Benguet.
He was also told that if he would point to accused Salvamante, he would be freed and he
could also become a state witness: He told them that he could attest to the fact that he
accompanied accused Salvamante in selling the cassette recorder.

On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad, Benguet
where he has remained under detention up to the present. 9

The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda

Castience and SP03 Armando Molleno. Castrence, the owner of the polvoron factory
where Maqueda worked, testified that she started her business only on 30 August 1991
and thus it was impossible for her to have hired Maqueda on 5 July 1991. SP03 Molleno
declared that he informed Maqueda of his constitutional rights before Maqueda was
investigated and that Maqueda voluntarily and freely gave his Sinumpaang Salaysay
(Exhibit "LL"). 10

Although the trial court had doubts on the identification of Maqueda by prosecution
witnesses Teresita Mendoza Barker, Norie Dacara, and Julieta Villanueva and thus
disregarded their testimonies on this matter, it decreed a conviction "based on the
confession and the proof of corpus delicti" as well as on circumstantial evidence. It
stated thus:

Since we have discarded the positive identification theory of the prosecution pinpointing
accused Maqueda as the culprit, can we still secure a conviction based on the confession
and the proof of corpus delicti as well as on circumstantial evidence?
In order to establish the guilt of the accused through circumstantia1 evidence, the
following requisites must be present: 1) there must be more than One circumstance; 2)
the facts from which the inferences are derived are proved; and 3) the combination of all
the circumstances is such as to produce a conviction beyond reasonable doubt (People
vs. Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must be an
unbroken chain of circamstances which leads to one fair and reasonable conclusion
pointing to the defendant to the exclusion of all Others, as the author of the crime
(People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569).

The circumstances shown by the prosecution which tend to show the guilt of the accused
are:

1. A physical demonstration to which the accused and his counsel did not offer any
objection shows that despite his being handicapped, accused Maqueda could well and
easily grip a lead pipe and strike a cement post with such force that it produced a
resounding vibration. It is not farfetched then to conclude that accused Maqueda could
have easily beat Mr. Barker to death.

2. His presence within the vicinity of the crime scene right after the incident in the
company of accused Salvamante was testified to by Mike Tabayan, the only prosecution
witness who noticed the defective hands of the accused. As they had to ask for
directions from the witness in the Tagalog dialect shows that they were strangers to the
place

3. Accused Maqueda knows or is familiar with accused Rene Salvamante as they from
the same town. By his own testimony, accused Maqueda has established that he
Salvamante are close friends to the point that they went out together during the
Christmas vacation in 1991 and he even accompanied Salvamante in selling the black
radio cassette recorder.

4. His Motion to Grant Bail (Exhibit "HH") contains this statement that he is willing
and volunteering to be State witness in the above-entitled case, it the accused in
appearing that he is the least guilty along This in effect, supports his extrajudicial
confession trade to the police at Although he claims that he did not his signature would
lean his as he was just told that release from detention, this is a flimsy excuse which
cannot Had he not understood what the motion meant, he could have easily asked his
sister and brother-in-law what it meant seeing that their signatures up already affixed on
the motion.

5. This time, his admission to Prosecutor Zarate that he was at the Barker house that
fateful morning and his even more damaging admission to Ray Dean Salvosa as to what
he actually did can be considered as another circumstance to already bloster the
increasing circumstances against the accused.

6. The accused's defense is alibi. As stated in a long Line of cases, alibi is at best a
weak defense and easy of fabrication (People vs. Martinado, G.R. No. 92020, October 19,
1992, 214 SCRA 712). For alibi to be given credence, it must not only appear that the
accused interposing the same was at some other place but also that it was physically
impossible for him to be at the scene of the crime at the time of its commission (People
vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247). This defense easily
crumbles down as Tayaban placed accused Maqueda at vicinity of the crime scene.

The combination of all these circumstances plus extrajudicial confession produce the
needed proof beyond reasonable doubt that indeed accused Maqueda is guilty of the
crime. 11
The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit: "LL") of
Maqueda taken by SP02 Molleno immediately after Maqueda was arrested.

Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that
we acquit him because the trial court committed this lone error:

. . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE

CRIME CHARGED. 12

Only three pages of the brief, typed double space, are devoted to his arguments which
are anchored on his alibi that at the time the crime Was committed he was not in
Benguet but in Sukat, Muntinlupa, Metro Manila, ad the failure of the star witnesses for
the Prosecution to identify him. He alleges that Mrs. Barker, when investigated at the
hospital, Pointed to Richard Malig as the companion of Rene Salvamante, and that when
initially investigated, the two housemaids gave a description of Salvamante's companion
that fitted Richard Malig.

We find no merit in this appeal. As hereinafter shown, the defense of alibi is

unconvincing.

The accused's arguments which stress the incredibility of the testimonies of Mrs. Barker
and the househelps identifying Maqueda are misdirected and misplaced because the trial
court had ruled that Mrs. Teresita Mendoza Barker and the two housemaids, Norie Dacara
and Julieta Villanueva, were not able to positively identify Magueda, The trial court based
his conviction on his extrajudicial confession and the proof of corpus delicti, as well as on
circumstantial evidence. He should have focused his attention and arguments on these.

From its ratiocinations, the trial court made a distinction between an extrajudicial
confession the Sinumpaang Salaysay and an extrajudicial admission the, verbal
admissions to Prosecutor Zarate and Ray Dean Salvosa. A perusal of the Sinumpaang
Salaysay fails to convince us that it is an extrajudicial confession. It is only an
extrajudicial admission. There is a distinction between. the former and the latter as
clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court which read as
follows:

Sec. 26. Admission of a party. The act, declaration or omission of party as to a

relevant fact may be given in evidence against him.

xxx xxx xxx

Sec. 33. Confession. The declaration of an accused acknowledging his guilt of the
offense charged, or of any offense necessarily included therein, may be given in
evidence against him.

In a confession, there is an acknowledgment of guilt. The term admission is usually

applied in criminal cases to statements of fact by the accused which do not directly
involve an acknowledgment of his guilt or of the criminal intent to commit the offense
with which he is charged. 13 Wharton distinguishes a confession from an admission as
follows:

A confession is an acknowledgment in express terms, by a party in a criminal case, of his

guilt of the crime charged, while an admission is a statement by the accused, direct or
implied, of facts pertinent to the issue and tending, in connection with proof of other
facts, to prove his guilt. In other words, an admission is something less than a
confession, and is but an acknowledgment of some fact or circumstance which in itself is
insufficient to authorize a conviction and which tends only to establish the ultimate fact
of guilt. 14

And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not
sufficient for conviction unless corroborated by evidence of corpus delicti.

The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was
taken without the assistance of counsel because it was of the opinion that since an
information had already benefited in court against him and he was arrested pursuant to
a warrant of arrest issued by the court, the Sinumpaang Salaysay was not, therefore,
taken during custodial investigation. Hence, Section 12(1), Article III of the Constitution
providing as follows:

Sec. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel.

is not applicable, 15 i.e., the police investigation was " no longer within the ambit of a
custodial investigation." It heavily relied on People vs. Ayson 16 where this Court
elucidated on the rights of a person under custodial investigation and the rights of an
accused after a case is filed in court. The trial court went on to state:

At the time of the confession, the accused was already facing charges in court. He no
longer had the right to remain silent and to counsel but he had the right to refuse to be a
witness and not to have any prejudice whatsoever result to him by such refusal. And yet,
despite his knowing fully well that a case had already been filed in court, he still
confessed when he did not have to do so. 17

The trial court then held that the admissibility of the Sinumpaang Salaysay should not be
tested under the aforequoted Section 12(1), Article III of the Constitution, but on the
voluntariness of its execution. Since voluntariness is presumed, Maqueda had the burden
of proving otherwise, which he failed to do and, hence, the Sinumpaang Salaysay was
admissible against him.

As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the
trial court admitted their testimony thereon only to prove the tenor of their conversation
but not to prove the truth of the admission because such testimony was objected to as
hearsay. It said:

In any case, it is settled that when testimony is presented to establish not the truth but
the tenor of the statement or the fact that such statement was made, it is not hearsay
(People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18

While we commend the efforts of the trial court to distinguish between the rights of a
person under Section 12(1), Article III of the Constitution and his rights after a criminal
complaint or information had been filed against him, we cannot agree with its sweeping
view that after such filing an accused "no longer Has] the right to remain silent End to
counsel but he [has] the right to refuge to be a witness and not to have any prejudice
whatsoever result to him by such refusal." If this were so, then there would be a hiatus in
the criminal justice process where an accused is deprived of his constitutional rights to
remain silent and to counsel and to be informed of such rights. Such a view would not
only give a very restrictive application to Section 12(1); it would also diminish the said
accused's rights under Section 14(2) Article III of the Constitution,
The exercise of the rights to remain silent and to counsel and to be informed thereof
under Section 12(1), Article III of the Constitution are not confined to that period prior to
the filing of a criminal complaint or information but are available at that stage when a
person is "under investigation for the commission of an offense." The direct and primary
source of this Section 12(1) is the second paragraph of Section 20, Article II of the 1973
Constitution which reads:

Any person under investigation for the commission of an offense shall have the right to
remain silent and to counsel, and to be informed of such right . . .

The first sentence to which it immediately follows refers to the right against self-
incrimination reading:

No person shall be compelled to be a witness against himself.

which is now Section 17, Article III of the 1987 Constitution. The incorporation of the
second paragraph of Section 20 in the Bill of Rights of the 1973 constitution was an
acceptance of the landmark doctrine laid down by the united States Supreme Court in
Miranda vs. Arizona. 19 In that case, the Court explicitly stated that the holding therein
"is not an innovation in our jurisprudence, but is an application of principles long
recognized and applied in other settings." It went on to state its ruling:

Our holding will be spelled out with some specificity in the pages which follow but briefly
stated, it is this: the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way. As for the procedural safeguards to be
employed, unless other fully effective means are devised to inform accused persons of
their right of silence and to assure a continuous opportunity to exercise it, the following
measures are required. Prior to any questioning the person must be warned that he has a
right to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an attorney before
speaking there can be no questioning. Likewise, if the individual is alone and indicates in
any manner that he does not wish to be interrogated, the police may not question him.
The mere fact that he may have answered some question or volunteered some
statements on his own does not deprive him of the right to refrain from answering any
further inquiries until he has consulted with an attorney and thereafter consents to a
questioned. 20

It may be pointed out though that as formulated in the second paragraph of the
aforementioned Section 20, the word custudial, which was used in Miranda with
reference to the investigation, was excluded. In view thereof, in Galman vs. Pamaran, 21
this Court aptly observed:

The fact that the framers of our Constitution did not choose to use the term "custodial"
by having it inserted between the words "under" and "investigation," as in fact the
sentence opens with the phrase "any person" goes to prove that they did not adopt in
toto the entire fabric of the Miranda doctrine.
Clearly then, the second paragraph of Section 20 has even broadened the application of
Miranda by making it applicable to the investigation for the commission of an offense of
a person and in custody. 22 Accordingly, as so formulated, the second paragraph of
Section 20 changed the rule adopted in People vs. Jose 23 that the rights of the accused
only begin upon arraignment, Applying the second paragraph of Section 20, this Court
laid down this rule in Morales vs, Enrile: 24

7. At the time a person is arrested, it shall be the duty of the arresting officer to
inform him of the reason for the arrest and he must be shown the warrant of arrest, if
any. He shall be informed of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. The person arrested shall
have the right to communicate with his lawyer, a relative, or anyone he chooses by the
most expedient means by telephone if possible or by letter or messenger. It shall be
the responsibility of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his behalf, or appointed by the court
upon petition either of the detainee himself or by anyone on his behalf. The right to
counsel may be waived but the waiver shall not be valid unless made with the assistance
of counsel. Any statement obtained in violation of the procedure herein laid down,
whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

Note that the first sentence requires the arresting officer to inform the person to be
arrested of the reason for the arrest and show him "the warrant of arrest, if any." The
underscored phrase simply means that a case had been filed against him in a court of
either preliminary or original jurisdiction and that the court had issued the corresponding
warrant of arrest. From the foregoing, it is clear that the right to remain silent and to
counsel and to be informed thereof under the second paragraph of Section 20 are
available to a person at any time before arraignment whenever he is investigated for the
commission of an offense. This paragraph was incorporated into Section 12(1), Article III
of the present Constitution with the following additional safeguards: (a) the counsel must
be competent and independent, preferably of his own choice, (b) if the party cannot
afford the services of such counsel, he must be provided with one, and (c) the rights
therein cannot be waived except in writing and in the presence of counsel.

Then, too, the right to be heard would be a farce if it did not include the right to counsel.
25 Thus, Section 12(2), Article III of the present Constitution provides that in all criminal
prosecutions the accused shall enjoy the right to be heard by himself and counsel." In
People vs. Holgado, 26 this Court emphatically declared:

One of the great principles of justice guaranteed by our Constitution is that "no person
shall be-held to answer for a criminal offense without due process of law", and that all
accused "shall enjoy the right to be heard by himself and counsel." In criminal cases
there can be no fair hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right to be
heard by counsel. Even the most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel, he may
be convicted not because he is guilty but because he does not know how to establish his
innocence. And this can happen more easily to persons who are ignorant or uneducated.
It is for this reason that the right to be assisted by counsel is deemed so important that it
has become a constitutional right and it is so implemented that under our rules of
procedure it is not enough for the Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is
essential that the court should assign one de officio for him if he so desires and he is
poor or grant him a reasonable time to procure an attorney of his own.

It was, therefore, wrong for the trial court to hold that Section 12(1), Article III of the
Constitution is strictly limited to custodial investigation and that it does not apply to a
person against whom a criminal complaint or information has already been filed because
after its filing he loses his right to remain silent and to counsel. If we follow the theory of
the trial court, then police authorities and other law enforcement agencies would have a
heyday in extracting confessions or admissions from accused persons after they had
been arrested but before they are arraigned because at such stage the accused persons
are supposedly not entitled to the enjoyment of the rights to remain silent and to
counsel.

Once a criminal complaint or information is filed in court and the accused is thereafter
arrested by virtue of a warrant of arrest, he must be delivered to the nearest police
station or jail and the arresting officer must make a return of the warrant to the issuing
judge, 27 and since the court has already acquired jurisdiction over his person, it would
be improper for any public officer Or law enforcement agency to investigate him in
connection with the commission of the offense for which he is charged. If, nevertheless,
he is subjected to such' investigation, then Section 12(1), Article III of the Constitution
and the jurisprudence thereon must be faithfully complied with.

The Sinumpaang Salaysay of Maqueda taken by SP02 Molleno after the former's arrest
was taken in palpable violation of his rights under Section 12(1), Article III of the
Constitution. As disclosed by a reading thereof, Maqueda was not even told of any of his
constitutional rights under the said section. The statement was also taken in the absence
of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to
paragraph 3, Section 12, Article III of the Constitution which reads:

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.

However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean
Salvosa stand on a different footing. These are not governed by the exclusionary rules
under the Bill of Rights.. Maqueda voluntarily and freely made them to Prosecutor Zarate
not in the course of an investigation, but in connection with Maqueda's plea to be utilized
as a state witness; and as to the other admission, it was given to a private person. The
provisions of the Bill of Rights are primarily limitations on government, declaring the
rights that exist without governmental grant, that may not be taken away by
government and that government has the duty to protect; 28 or restriction on the power
of government found "not in the particular specific types of action prohibited, but in the
general principle that keeps alive in the public mind the doctrine that governmental
power is not unlimited. 29 They are the fundamental safeguards against aggressions of
arbitrary power, 30 or state tyranny and abuse of authority. In laying down the principles
of the government and fundamental liberties of the people, the Constitution did not
govern the relationships between individuals. 31

Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible
in evidence against the former Under Section 26, Rule 130 of the Rules of Court. In
Aballe vs; People, 32 this Court held that the declaration of an accused expressly
acknowledging his guilt of the offense may be given in evidence against him and any
person, otherwise competent to testify as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and understood it.
The said witness need not repeat verbatim the oral confession; it suffices if he gives its
substance. By analogy, that rule applies to oral extrajudicial admissions.
To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he
explicitly .stated that "he is willing and volunteering to be a state witness in the above
entitled case, it appearing that he is the least guilty among the accused in this case."

In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his
willingness to be a state witness, Maqueda's participation in the commission of the crime
charged was established beyond moral certainty. His defense of alibi was futile because
by his own admission he was not only at the scene of the crime at the time of its
commission, he also admitted his participation therein. Even if we disregard his
extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly
ruled by the trial court, established beyond doubt by circumstantial evidence. The
following circumstances were duly proved in this case:

(1) He and a companion were seen a kilometer away from the Barker house an hour
after the crime in question was committed there;

(2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker,
Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime;

(3) He and co-accused Rene Salvamante are friends;

(4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the
place sometime in September 1991;

(5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and

(6) He freely and voluntarily offered to be a state witness stating that "he is the least
guilty."

Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is
sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are

proven; and

(c) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial

evidence can be upheld only if the circumstances proved constitute an unbroken chain
which leads to one fair and reasonable conclusion which points to the accused, to the
exclusion of all others, as the guilty person, i.e. the circumstances proved must be
consistent with each other, consistent with the hypothesis that the accused is guilty, and
at the same time inconsistent with any other hypothesis except that of guilty. 33 We do
not hesitate to rule that all the requisites of Section 2, Rule 133 of the Rules of Court are
present in this case.

This conclusion having been reached, the defense of alibi put up by the appellant must
fail. The trial court correctly rejected such defense. The rule is settled that for the
defense of alibi to prosper, the requirements of time and place must be strictly met. It is
not enough to prove that the accused was somewhere else when the crime was
committed, he must demonstrate that it was physically impossible for him to have been
at the scene of the crime at the time of its commission. 34 Through the unrebutted
testimony of Mike Tayaban, which Maqueda does not controvert in his brief, it was
positively established that Maqueda and a companion were seen at 7:00 a.m. of 27
August 1991 at the waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer
away from the house of the Barkers. It was not then impossible for Maqueda and his
companion to have been at the Barker house at the time the crime was committed.
Moreover, Fredisminda Castrence categorically declared that Maqueda started working in
her polvoron factory in Sukat only on 7 October 1991, thereby belying his, testimony that
he started working on 5 July 1991 and continuously until 27 August 1991.

WHEREFORE, in of the foregoing, the instant appeal is DISMISSED and the appealed
decision Of Branch 10 of the Regional Trial Court Of Benguet in Criminal Case, No.91-CR-
1206 is AFFIRMED in toto.

Costs against accused-appellant HECTOR MAQUEDA @ PUTOL.

SO ORDERED.

THE UNITED STATES , vs. RAMONA R. EVANGELISTA, G.R. No. L-8132 March 25,
1913

The appellant, Ramona R. Evangelista, was convicted in the Court of First Instance of
Manila of the crime of arson and was sentenced, under article 557, paragraph 4, of the
Penal Code, to three years and seven months of presidio correccional, and to pay the
costs of the action.

Romana R. Evangelista was the tenant of a portion of a building situated on Carriedo

Street, Manila, and used the ground floor for a store where were sold hats and various
other articles, while the upper floor was used as living quarters for herself and a number
of student boarders. On June 2, 1912, at 7:01 p.m., the fire department answered an
alarm of fire which proved to be in that part of the building occupied by the appellant. At
the time the firemen arrived, dense black smoke was issuing from under the eaves of the
building, and the fumes of burning coal oil were plainly discernible. The fire originated in
the second floor of the building in the appellant's living quarters. Before the fire was
finally extinguished, the building was damaged, according to the testimony of record, in
the amount of P10,562.

The acting chief of the fire department testified that the fire could not been burning more
than three or four minutes when he arrived. He declared positively that the fire could not
have gained the headway it had or caused the damage it did if coal oil had not been
used, and that the whole place appeared to have been saturated with coal oil.

Three insurance policies taken out by the appellant were introduced by the prosecution.
One for P1,000 was simply a renewal of a former policy, the renewal dating from
December 20, 1911. Another, written by the same company, in the amount of P5,000,
was dated May 22, 1912. The third, in another company, was dated May 21, 1912, and
was also for P5,000. Although the policy issued May 22 contained a condition that
policies with other companies must be declared and inserted on its face, no mention
appears of the one issued the preceding day.

An agent of the company which issued the insurance policy for P5,000 dated the 21st of
May testified that he went to the store and made an inspection of the contents, and at
that time there was not over P2,000 or P3,000 worth of goods, including the wardrobes;
but as the appellant stated that there were more goods coming to the store very soon,
he agreed to make the policy for P5,000.

At the date of the fire the appellant was moving her store and personal effects to No. 329
Ronquillo. The administrator of the Tuason estate, of which the burned building was a
part, testified that the appellant owed the estate P1,392 for rent; that he had given her
notice a month or two before the fire occurred to move about June; that no date was
fixed by him but the appellant informed him that she would leave the house about June.

Jose Bello testified that he had been employed by the appellant as a clerk in the store up
to the time of the fire. He testified that he was working in the store on the morning of
June 2; that the appellant instructed him to put a number of valuable hats in a box, as
she was going to send them to a friend to sell; that he did as he was instructed, and that
the box was removed by a servant to the house at 329 Ronquillo. Witness stated that
these were the only valuable hats left in the store; that the trunks of the students who
were boarding with the appellant had been removed to the new place previous to June 2,
as well as furniture and cooking utensils; and that on Sunday some more trunks and
other things were taken to the new place. He testified that no new stock of goods had
been brought to the store after the insurance policies dated May 21 and 22 had been
issued.

Detective Perceival stated that on the morning after the fire he found in the living
quarters upstairs an iron bed, a wardrobe, a box, and an old bed, all practically burned
up; an old leather box containing some papers of no importance; and one or two pieces
of clothing. The inside of the wardrobe was not burned and there was nothing in it.

The defendant testified that the goods she had removed from the house were those
which she sold to Americans at the end of every month; that she kept her insurance
policies at her aunt's house.

Juan Evangelista, son of the appellant, testified that he was a resident of 325 (329)
Ronquillo; that formerly he resided at 325 Carriedo; that he moved from the latter place
just previous to the fire on June 2; that all the boarders and the servants had also moved,
leaving only his father and mother at the place on Carriedo.

The acting chief of the fire department testified that on May 31, at 6:31 a.m. an alarm
was turned in for a fire which proved to be in the rear of a piano store adjacent to that
part of that building occupied by the appellant. The fire burned a hole through a door
which opened into a court or passageway to which access could also be had through a
similar door on the premises of the appellant. The fire chief directed his assistant to look
for evidences of incendiarism, and shortly after his assistant came back saying: "Chief,
here are four bottles with some coal oil in them yet." The four bottles were placed upon a
piano and the case turned over to the Secret Service Bureau. Exception was taken to the
remark made to the fire chief by his assistant as being hearsay. This exception was
overruled and counsel for the appellant assigns this as error. As the chief's assistant also
testified in this case, and stated that he found four pint bottles with a few drops of
kerosene in them just back of the door which was burned by the fire, the remark in
question was unnecessary to establish the fact that the assistant chief, acting upon the
instructions received from his superior, found four pint bottles with kerosene in them,
and that he bought these bottles to the fire chief, who placed them on a piano and
turned the case over to the police department. The error in admitting the remark, if error
at all, was harmless and did not prejudice the rights of the defendant.

Teodorico Fungo, who was the servant of the appellant at the time of this first fire,
testified that early on that morning, while boiling some milk, the appellant ordered him
to go downstairs and light some papers in a box standing in the court just between the
appellant's door and the door to the piano store. Witness refused to do so, and then saw
the appellant to go downstairs with a bottle of petroleum and saturate the papers in the
box with the petroleum, after which she came back upstairs and sent him out to
purchase four centavos worth of petroleum. Upon his return she took the petroleum from
him and went downstairs. Pretty soon be heard people downstairs crying, "Fire, fire," and
then he heard the appellant saying the same thing to her son. Witness then wrapped up
his things and left the house. The testimony of this witness was objected to on the
ground that at the time of the trial he was living at the house of a member of the city
secret-service force who assisted in the investigation of the origin of the fire occuring on
June 2, without paying for his accommodations. This witness, however, testified that he
was washing dishes at this house, and evidently he was acting as a servant. In any
event, this fact would not effect his competency as a witness. It was established by
indisputable evidence that a fire occurred as stated above on May 31, and that
unmistakable evidences of incendiarism were found by the fire department.

The defense objected to the introduction of all evidence relative to the fire of May 31 as
incompetent and not the fire charged in the information. While it was not the fire
charged in the information, and does not by any means amount to direct evidence
against the accused, it was competent to prove the intent of the accused in setting the
fire which was charged in the information.

In People vs. Shainwold (51 Ca., 468), the court said:

On a trial for arson, the prosecution may prove that the prisoner had attempted to set
fire to the house on a day previous to the burning alleged in the indictment, for the
purpose of showing the intent of the prisoner in subsequently setting fire to the house.

In Knights vs. State (58 Neb., 225; 78 N.W., 508), the court said: "Where a person is
charged with the commission of a specific crime, testimony may be received of other
similar acts, committed about the same time, for the purpose only of establishing the
criminal intent of the accused."

And in People vs. Lattimore (86 Cal., 403; 24 Pac., 1091), a similar ruling was made,
when the court said that "evidence tending to show that defendant started the former
fire was admissible to prove intent." This principle has been applied by the courts of
many jurisdictions. (3 Cyc., 1007; 1 Wigmore on Evidence, 303, 354.) There was no
error in receiving the evidence as to the fire occurring on May 31 to show intent.

The accused appeared at the scene of the fire on the morning of June 3, and Detective
Perceival, who had been detailed to make an investigation of the fire, after a few minutes
conversation with her, sent her to the police station in company with the witness Jose
Bello. She remained at the police station all day until about 8 o'clock that evening, when
she confessed to having started the fire, assigning as her reason that she was heavily in
debt and the only way she could see to get out of debt was to raise her insurance and
then set fire to the place. Perceival testified that the appellant gave her confession in
detail. It is not denied that this confession was made. But counsel assigns as error on this
appeal that it should not have been admitted because it was involuntary by reason of
force, intimidation, etc., used in extorting it.

It is admitted that the accused was detained at the police station from about 10 o'clock
in the morning until 8 o'clock at night; that from the time she arrived until after office
hours at 5:30 in the evening she was held in the waiting room, which was furnished with
"hard-seated chairs;" that she was then taken into the office of the chief of the secret
service and remained there until 8 o'clock, when she made her confession; that during
the day she was not allowed to talk to any member of her family; and that the detective
told her she "had better tell the truth." The defendant herself further testified that
Perceival and Dizon (another detective) were the only persons who talked to her during
the afternoon; that they both told her to admit that she had started the fire, and said if
she would do so she would only have to pay a fine and would then be set free; that if she
did not admit having started the fire, she would have to go to jail for twenty years; that
she did not have anything to eat; and that about 8 o'clock that evening she could hardly
remember anything as she was shaking and trembling and did not know that she was
doing. On cross-examination she admitted that she was offered food at noon and the
evening also, but said that she did not eat any of it. She further stated that Perceival was
sitting by her side a considerable portion of the afternoon and nudging her and saying:
"Tell the truth; tell the truth." Perceival and Dizon testified in rebuttal that the defendant
did eat while she was detained at the police station; that Perceival did not nudge her or
mistreat her in any way, and that no promises of leniency or threats of imprisonment
were made to her. The trial court, who could observe the witnesses and their demeanor
and bearing on the stand, was in a much better position to estimate the value of this
contradictory testimony then are we. But another circumstance is before us which
greatly weakens the testimony of the defendant on this point. Perceival testified that
immediately upon her confession of guilt he sent for the chief of the secret service; that
while the chief was there the then attorney of the defendant also came in; that he asked
her in the presence of these two gentlemen if anything had been done to her and, if so,
to tell them about it; and finally that her attorney himself asked her this question and
she replied, "no; that he (the detective) had treated her as though he was her son."
Under these circumstances, the lower court did not credit her statements in these
respects, and we cannot say that there was error in so doing.

Counsel on this appeal, however, strongly insists that the facts that she was sitting on a
"hard-seated chair" all day and talked to her about the evidence he had against her and
told her "she had better tell the truth" should be considered as sufficient to render the
confession involuntary. So far as her being detained in the waiting room which was
furnished with "hard-seated chairs" is concerned, we fail to perceive any degree of
torture or mistreatment. It is true that she was deprived of her liberty and was held as a
suspicious person, which was not at all a pleasant experience. But her treatment in this
respect was certainly not more rigorous that to which all prisoners must submit. The
positive statement is accredited to the defendant that she was well-treated by the
detective. It is not denied that she made this statement, nor that it was made in the
presence of her then attorney. The latter could certainly have testified to the truth or
falsity of this statement, and as to her physical condition at the time it was made. But he
was not called as a witness. Detective Perceival testified on this point that she knew
what she was saying in making her confession, but that she appeared to be ashamed
and broken up, and that she cried and begged for mercy from her lawyer after he
arrived.

Nor was the admonition of Perceival that she had better tell the truth in the nature of a
threat. In Huffman vs. State (130 Ala., 89; 30 So., 394), it was held that the facts that the
accused was urged to tell the truth and the statement was made to him that it would be
better for him to do so, did not render the confession involuntary. In State vs. Leuth (5
Ohio C.C., 94), it was held that the bare exhortation by the police captain to the accused
that he had better tell the truth did not render a confession involuntary, since this was
not an influence exerted toward an untruth. The confession of a prisoner, charged with
receiving stolen goods, to a private person was held voluntary although made after the
statement to the latter that it would be better for the accused to tell the truth. (Lucasey
vs. U.S., Fed. Cas., 8588a.) In Roszczyniala vs. State (125 Wis., 414; 1104 N.W., 113), it
was held that statements made by an officer to the accused, "Why don't you tell the
truth?" and "You better tell the truth about this matter. They have all identified you,"
were not enough to render inculpatory statements involuntary. The great weight of
authority is to the same effect. (Kelly vs. State, 72 Ala., 244; Hardy vs. U.S., 3 App. D.C.,
35; State vs. Konstett, 62 Kan., 221; 61 Pac., 805; State vs. Staley, 14 Minn., 75; State
vs. Anderson, 96 Mo., 241; 9 S.W., 636.) We think that under all the circumstances, the
confession was properly admitted.

There was some attempt made to establish an alibi for the defendant. The defendant
gave a detailed statement of her whereabouts from the time she left her house at 4
o'clock on the afternoon of the fire until the fire occurred. According to her statement she
went to see a friend in Calle G. Tuason, where she stayed about an hour; from there she
went to but some cloth at a store on Calle San Pedro, where she stayed a little more than
half an hour, and was on her way home when she saw the fire engines at work at the
scene of the fire. To corroborate these statements, Dimas Lampano was called as a
witness and testified that he lived on Calle G. Tuason; that he had known the defendant
for about fourteen years; that he did not remember the Sunday her house was burned;
that the defendant called on him the second day of the month about half past 4 or 5
o'clock; that he did not know what day of the week it was, but later he stated that it was
Sunday; that he remembered this visit because on Monday he received a letter from
Vitas for some work to be done there. Felisa del Rosario testified that she lived on Calle
San Pedro; that she had known the defendant about four years; that she did not
remember the day the defendant's house was burned; that she remembered that the
defendant had visited her on a Sunday afternoon, that she could not remember how long
ago that was, but that she came to the house about 5 to 5:30 in the afternoon to buy
some cloth; that it was on the 2nd of June that defendant came to see her; that she
never came there again; that she could not say when the defendant came to her house
before that; and that she remembered the defendant came that day because her
children fell down the staircase. Juan Evangelista testified that his mother came to his
house between 6 and 7 o'clock in the evening; and that about three or four minutes after
his mother left he heard the fire engines passing by.

It will be noted that though both Lampano and Felisa del Rosario first stated that they did
not remember the day on which the defendant visited them, they concluded by not only
fixing the day but the hour when she called on them; that the hour fixed by them when
the defendant paid her respective visits almost exactly dovetailed into the testimony of
the defendant herself in these respects; and that both of these witnesses were enabled
to fix the day and the hour of the defendant's visits to them, not by any significance
attached to the visit itself but by incidents entirely unconnected with the defendant, and
apparently very insignificant in themselves. Such testimony would be subject to great
suspicion under any circumstances. In considering the testimony of Juan Evangelista it
must be remembered that he was the son of the defendant and was very much
interested in establishing the innocence of his mother. It is the only evidence in the
record counteracting the case made by the prosecution. As opposed to it we have the
fomidable array of circumstantial evidence tending strongly to show intent and motive of
the defendant for setting fire to the house; the fact that the fire originated in the living
quarters of the accused; that it was, by the testimony of the acting chief of the fire
department and his assistant, of incendiary origin; and finally, the extrajudicial
confession of the accused herself that she started the fire. This circumstantial evidence,
supported by the confession of the accused, is, we think, conclusive of her guilt.

Upon the evidence presented it does not appear that the house was inhabited at the
time the fire occurred, or that there were persons on the premises as charged in the
information; for it appears that all he persons living here had left he place for another
residence although the defendant says she was going back to the place to sleep that
night. Under these circumstances the lower court found the appellant guilty under article
557 of he Penal Code, which reads:

ART. 557. Any person who shall set fire to anything not falling within the terms of the
preceding articles shall suffer:

xxx xxx xxx

4. The penalty of presidio correccional in its medium an maximum degrees, if the

damages shall exceed 6,250 pesetas.

In commenting upon this article of the code, Viada (vol. 3, p. 607) says that this article
must be considered as supplementary to and the complement of the preceding articles,
the provisions of which are applicable to those cases of arson which are not specially
included or provided for in them. This is the only function it can have, as it specifically
states that it is applicable to cases "not falling within the terms of the preceding
articles." Its provisions are general and are not designed to take the place of specific
penalties provided in the chapter of which it forms a part.
The building in this case, although not inhabited, was standing in a populated place, and
the damage to it exceeded 6,250 pesetas. These two circumstances are exactly the
requirements of article 551, paragraph 2, and the penalty provided is presidio mayor.
The aggravating circumstance of nocturnity being present in the commission of this
crime, the penalty should be imposed in its maximum degree. The appellant in this case
being a woman, however, the punishment should be changed to prision mayor in
accordance with article 95 of the Code. The penalty imposed by the trial court is
therefore set aside, and the appellant is hereby sentenced to ten years and one day of
prision mayor, together with the accessory penalties provided by law; to indemnify the
owner of the building in the sum of P10,562; and to the payment of the costs of the
cause.