G.R. No.
97957 March 5, 1993 On appeal to the Department of Justice by the offended party, however, the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO LASE, alias "BERT", accused-appellant.
DAVIDE, JR., J.:
Accused-appellant appeals from the decision of Branch 45 of the Regional Trial
Court (RTC) of Masbate in Criminal Case No. 55571 convicting him of the crime of
murder for the death of Dante Huelva on 18 May 1987 in Barangay Pia-ong,
Dimasalang, Masbate, and sentencing him:
. . . to suffer the penalty of RECLUSION PERPETUA in the
absence of any mitigating circumstance and to indemnify the
parent of the victim in the amount of P30,000.00. 2
The decision was promulgated on 18 February 1991.
The records disclose that two (2) days after the killing of Dante Huelva, a criminal
complaint for murder was filed by the Acting Station Commander of the Integrated
National Police (INP) of Dimasalang, Masbate with the 5th Municipal Circuit Trial
Court (MCTC) of Dimasalang-Palanas-Uson (5th Judicial Region) at Dimasalang,
Masbate.3The Judge presiding over the said court asked both Ramon Sayson, 4 who
was Dante's companion when the incident occurred, and Godofreda Huelva, 5 Dante's
mother, searching questions. The court then issued a warrant for the arrest of the
accused-appellant and fixed the bail bond for his temporary liberty at P30,000.00. 6
Accused-appellant was arrested on 20 May 1987 and was released the following day
after posting the required bond.7
Having failed to submit his counter-affidavit for purposes of the preliminary
investigation, the MCTC considered him as having waived the second stage of the
preliminary investigation and ordered the records of the case forwarded to the Office
of the Provincial Fiscal of Masbate.8
Accused-appellant then sought a reinvestigation of the case; this request was
consequently granted. On 7 September 1987, 2nd Assistant Provincial Fiscal Jesus C.
Castillo issued a resolution, duly approved by Provincial Fiscal Hermenigildo
Betonio, Jr., dismissing the case for insufficiency of evidence and directing the
police authorities to investigate further and gather more evidence to ferret out the
real perpetrator.9 During the said reinvestigation, Ramon Sayson testified for the
prosecution.
abovecited resolution was reversed by the then Secretary of Justice, Honorable
Sedfrey A. Ordoñez, in Resolution No. 856, series of 1988, dated 15 September
1988. 10 Pursuant thereto, the Provincial Fiscal was directed to file an information for
murder against accused-appellant.
On 9 November 1988, the Office of the Provincial Fiscal filed with the Regional
Trial Court (RTC) of Masbate an Information11 charging the accused-appellant with
the crime of murder committed as follows:
That on or about May 18, 1987, in the evening thereof, at Barangay
Pia-ong, Municipality of Dimasalang, Province of Masbate,
Philippines, within the jurisdiction of this Court, the said accused,
with intent to kill, evident premeditation, treachery and taking
advantage of nighttime, did then and there willfully, unlawfully
and feloniously, attack, assault and stab one Dante Huelva, hitting
the latter on the different parts of the body, thereby inflicting
wounds which caused his instantaneous death.
The case was docketed as Criminal Case No. 5557 and was assigned to Branch 45 of
the Court.
Upon being arraigned on 1 September 1989, accused-appellant entered a plea of not
guilty. 12
The prosecution presented Dr. Ernesto Tamayo, the Municipal Health Officer of
Dimasalang, Masbate who identified the post-mortem examination report (Exhibit
"A") and the death certificate of Dante Huelva (Exhibit "B"), Dominico Pangantihon,
Godofreda Huelva and Cpl. Carlos Mitra as witnesses for its evidence in chief;
Godofreda Huelva was recalled as a rebuttal witness. Ramon Sayson could no longer
testify as he had left Dimasalang and his whereabouts remain undetermined. The
defense, on the other hand, presented as witnesses for its evidence in chief Paquito
Banda, George Combati, Salvacion Andueza, Miguel Andueza and the accused-
appellant, who was also recalled as a surrebuttal witness.
The prosecution's evidence is succinctly summarized in the Brief for the Appellee,
thus:
On May 18, 1987, at about 6:30 o'clock in the evening, Domingo
(sic) Pangantihon was on his way home from Piaong, Dimasalang,
Masbate, when appellant Alberto Lase and Ramon Sayson passed
him by. At that moment, Dante Huelva was about six meters ahead
of them and was urinating by the roadside. Appellant proceeded
directly to the back of Dante Huelva and without any warning
stabbed him once with a 7-inch long Batangas knife in the
 stomach. Afterwards, appellant ran away. Dante Huelva shouted
for help. Ramon Sayson came to his rescue and brought him
towards the Poblacion. (tsn, October 17, 1989, pp. 6-17).
Meanwhile, Godofreda Huelva, mother of the victim Dante
Huelva, was on her way home to Piaong, Dimasalang, Masbate, at
about 7:00 o'clock in the evening of May 18, 1987, coming from
her daughter's house in Canomay, Dimasalang, Masbate, when she
met Eliza Cortes who informed her that her son Dante was stabbed.
She proceeded to the Dr. Alino's Hospital and found out that Dante
was already dead. The following morning, Ramon Sayson told her
that it was appellant Alberto Lase who stabbed Dante. (tsn,
October 17, 1989, pp. 17-25).
The stabbing of Dante Huelva was reported to the Integrated
National Police (INP) of Dimasalang, Masbate, on the same night
of the incident. The following morning, Police Cpl. Carlos Mitra of
the Dimasalang INP conducted an investigation of said stabbing
incident. He investigated Ramon Sayson who disclosed that
appellant was the assailant of Dante Huelva and readily identified
and pointed to appellant among the persons presented in a police
line-up. Ramon Sayson executed a sworn statement (Exhibit "F").
The blood-stained pants of Dante Huelva and the hole thereon
(Exhibit "G") were likewise identified (tsn, January 12, 1990, pp.
2-8).
The autopsy conducted on the body of Dante Huelva by Dr.
Ernesto Tamayo, Municipal Health Officer of Dimasalang,
Masbate, on May 21, 1987, disclosed the following injuries
sustained by the victim, to wit: (a) perforating stab wound, hand,
right; (b) stab wound, 2 niches below the umbilicus, point of
entrance measured 1 inch in diameter, 3 and 1/2 inches deep,
penetrating the intestines; and (c) severe internal hemorrhage
(Exhibit "A"), which injuries directly caused his death (Exhibit
"B"). Dr. Tamayo further testified that the wounds sustained by the
victim were caused by a sharp pointed instrument (tsn, October 17,
1987, pp. 2-5).13
In her rebuttal testimony, Godofreda Huelva testified that accused-appellant offered
to settle the case for the sum of P10,000.00. Thus:
FERNANDEZ:
Q Now the accused also testified that you filed this case against him because you
wanted him to be paid about (sic) the death of the victim?
A He wanted to pay me but I did not agree.
Q You mean that he wanted to settle this case but you refused?
A Yes, sir.
Q How much were they offering you for this case to be settled?
A About ten thousand.14
On the other hand, accused-appellant interposed the defense of alibi; he relied on the
testimony of his principal witnesses to support his version that he was somewhere
else and not at the scene of the crime at the time of the killing.
His version is summarized in his Brief as follows:
Accused-appellant Alberto Lase testified that on May 18, 1987, at
around 5:30 in the afternoon, he was with Miguel Andueza at the
house of Kagawad Marcelo Tamayo. They waited for Artemio
Andueza who was then drunk. At around 7:00, in the evening, they
were fetched by Mrs. Andueza who informed them that something
happened in Piaong.
On their way home, they passed by the clinic to visit Dante
Huelva. He saw Juan Huelva and the policeman at the clinic. The
barangay captain talked to the policeman. Dante Huelva was
already dead when they arrived.
The charges levelled against him is (sic) not true. In fact, after
preliminary investigation by the fiscal, the case against him was
dismissed. The reason why he was implicated in this case was
because Ramon Sayson told the policeman that Dante Huelva's
assailant was tall and that victim's (sic) parents wanted to be paid
for the death of the victim. 15
In his surrebuttal testimony, accused-appellant vaguely denied this offer of
compromise. He, however, insinuated that he could offer a higher amount:
MEDINA:
Q Mrs. Huelva testified here that you are offering in this case for P10,000, is that
true, (sic).
WITNESS:
A I did not say that. If that is true even P50,000 I am going to pay
them.16
The defense also sought to discredit the testimony of Dominico Pangantihon because
it was months after the incident, and only after Ramon Sayson failed to testify, that
he decided to come out and testify as an alleged eyewitness to the killing.
The trial court gave full credit to the version of the prosecution and disregarded the
defense of alibi in view of the positive identification of the accused-appellant and the
possibility of his being at the scene of the crime at the time of its commission. Thus,
in a Decision promulgated on 18 February
1991, 17 the trial court held him liable for the killing of Dante Huelva which, in view
of the attendance of treachery, was qualified to murder. As earlier adverted to, the
accused-appellant was sentenced to suffer the penalty of reclusion perpetua and was
ordered to indemnify the parent of the victim in the amount of P30,000.00. On 21
February 1991, he filed his Notice of Appeal. 18
In his main Brief filed on 15 September, 1991, 19 accused-appellant insists on his
innocence and maintains that the trial court committed the following errors:
I . . . IN RELYING HEAVILY ON THE INCONSISTENT AND UNRELIABLE
TESTIMONIES OF THE PROSECUTION WITNESSES AND IN
DISREGARDING THE EVIDENCE FOR THE DEFENSE.
II . . . IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE
THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
III . . . IN HOLDING THAT THE CRIME COMMITTED BY THE ACCUSED IS
MURDER QUALIFIED BY TREACHERY, ALTHOUGH TREACHERY WAS
NOT ALLEGED IN THE INFORMATION, AND IN HOLDING THAT
NOCTURNITY IS DEEMED ABSORBED BY TREACHERY.
Being interrelated, accused-appellant discusses the first and second assigned errors
jointly, unleashing the force of his arguments against the credibility of prosecution
witnesses Dominico Pangantihon, who belatedly came out in the open as a witness to
the incident, and Police Corporal Carlos Mitra. As to the first, accused-appellant
argues that while it may be true that in a long line of cases this Court "had enunciated
the (sic) credibility of the testimony of a witness who had incurred delay (sic) in
reporting the crime he witnesses, it had also nevertheless ruled that:
. . . the silence of an alleged eyewitness for several weeks renders
his credibility doubtful . . . The long delay in reporting the crime or
its author to the authorities not caused by threat, intimidation or
coercion, renders the testimony untruthful. (People vs. Besa, 183
SCRA 533). 20
He then avers that in the instant case, the testimony of Dominico Pangantihon could
not be believed because the delay of the latter in reporting the incident was not
caused by threat, intimidation or coercion, but by his own fear of being implicated.
Such reasoning is alleged to be unacceptable because being a barangay official
(councilman) at that time, it was his duty and responsibility to report the crime. As a
matter of fact, he should have apprehended the assailant who was alone at the time of
the attack.
As to P/Cpl. Mitra, accused-appellant claims that said witness "incurred various
glaring material inconsistencies which render his testimony doubtful and
unreliable." 21 Such inconsistencies relate to the following matters: (a) whether it was
accused-appellant or Ramon Sayson who was summoned to the police station for
questioning, (b) whether Ramon Sayson told him that he (Sayson) could recognize
the accused-appellant's face but does not know his name or did in fact mention the
same of the said accused-appellant, (c) whether the holding of a police line-up was
indeed reduced to writing in Sayson's sworn statement, (d) whether the murder
weapon recovered from the accused-appellant and placed inside his (Mitra's) drawer
wall thereafter lost or was given to Pat. Tamayo who is already deceased and (e)
whether the entry in the police blotter concerning a claim of identification of the
accused-appellant, in relation to the investigation of Sayson, is true.
Additionally, accused-appellant suggests that the testimonies of prosecution
witnesses Dr. Tamayo and Godofreda Huelva are likewise unreliable.
In his third assigned error, accused-appellant insists that the qualifying circumstance
of treachery is not alleged in the information filed by the prosecution. Moreover,
nocturnity, even if considered as absorbed in treachery, was not present in this case
because although the stabbing occurred at 6:30 o'clock in the evening — considered
in law to be nighttime — there is no proof that such circumstance was especially
sought or taken advantage of to facilitate the commission of the crime or ensure the
assailant's escape.
The People, in its Brief 22 submitted by the Office of the Solicitor General, refutes
the arguments of the accused-appellant and maintains that the latter's guilt has been
proven beyond reasonable doubt; however, it agrees with the accused-appellant's
observation that treachery was not alleged in the information and that nighttime was
not purposely and deliberately sought. It is further alleged that indeed, "6:30 o'clock
in the evening of May 18, 1987 could not be totally dark as it was summertime, when
days were longer than nights, and at such time darkness could not yet have
surrounded the area." 23 Thus, the Office of the Solicitor General recommends that
accused-appellant should only be found guilty of the crime of Homicide under
Article 249 of the Revised Penal Code. Since the aggravating circumstance of
treachery, though not alleged in the information, was duly proved, and the same is
not offset by any mitigating circumstance, the imposable penalty should be the
maximum of the prescribed penalty — reclusion temporal — pursuant to Article 64
of the Revised Penal Code. Pursuant to the Indeterminate Sentence Law, it is averred
that accused-appellant may then be sentenced to an indeterminate penalty of Ten (10)
years ofprision mayor, as minimum, to Seventeen (17) years, Four (4) months and
One (1) day of reclusion temporal as maximum. It is finally recommended that the
amount of indemnity be increased from P30,000.00 to P50,000.00 in accordance
with the prevailing jurisprudence.
At the bottom of the first and second assigned errors is the issue of the credibility of
witnesses, a matter appropriately addressed to the trial court 24 because it is in a
better position to decide the matter, having heard the witnesses and observed their
deportment and manner of testifying during the trial. 25 Thus, the said court's findings
on the credibility of witnesses are entitled to the highest degree of respect and will
not be disturbed on appeal absent any clear showing that it overlooked,
misunderstood or misapplied some facts or circumstances of weight or substance
which could have affected the result of the case. 26
We have painstakingly examined the records of the instant case and scrutinized the
transcripts of the stenographic notes of the testimonies of the witnesses and are fully
convinced that the exception to the foregoing settled doctrine has not been shown to
exist in this case.
The failure of prosecution witness Dominico Pangantihon to immediately report the
incident certainly did not detract from his credibility. While it was his duty as a
barangay official to have assumed the responsibility of reporting the incident, come
to the succor of the victim or even run after and arrest the assailant, it is a sad reality
that not all in our society, including many of our public officials, are imbued with the
highest sense of civic duty which is necessarily expected of leaders in the
community. Such indifference or apathy should not, however, cast any shadow of
doubt on or impair the credibility of a person who fails to report a crime or
immediately come forward to testify. The initial reluctance of witnesses in this
country to volunteer information about a criminal case or their unwillingness to be
involved in or dragged into criminal investigations is common. 27 Delay in itself is,
therefore, not enough. It would, of course, be entirely different if it clearly appears to
the trial court that the witness himself is not credible for the rule is settled that
evidence, to be believed, must not only proceed from a credible witness but must
also be credible in itself. 28 Respect should not likewise be accorded to such
testimony if there is proof that the said witness is influenced by improper or ulterior
motives in so volunteering to testify for the victim sometime after the occurrence of
the incident.
The trial court, after observing the demeanor and deportment of said witness,
together with the variations in his expressions while on the witness stand — which
are badges of truthfulness 29 — concluded that both he and his testimony are
credible. Accused-appellant presents no factual bases or strong arguments to
convince Us that the trial court erred in that regard. Nor has he shown any improper
motive which could have impelled Dominico to testify against him or implicate him
in the commission of the crime. The absence of evidence as to an improper motive
strongly tends to sustain the conclusion that none existed, and that the testimony is
worthy of full faith and credit. 30For indeed, if an accused had nothing to do with the
crime, it would be against the natural order of events and of human nature and
against the presumption of good faith for a prosecution witness to falsely testify
against the accused. 31
The alleged contradictions or inconsistencies in the testimony of Cpl. Mitra relate to
minor, if not inconsequential, matters. The rule is settled that minor inconsistencies
do not affect the credibility of witnesses; 32 on the contrary, they may even heighten
their credibility. 33
Then too, accused-appellant offered to compromise the case for the sum of
P10,000.00. The second paragraph of Section 27, Rule 130 of the Revised Rules of
Court expressly provides that:
In criminal cases, except those involving quasi-offenses (criminal
negligence) or those allowed by law to be compromised, an offer
of compromise by the accused may be received in evidence as an
implied admission of guilt. 34
Murder is not among those criminal cases which may be compromised.
As regards the third assigned error, it is clear that both the accused-appellant and the
OSG may not have carefully read the Information filed in this case. Contrary to their
claims, the Information does allege treachery. More specifically, it states: ". . . the
said accused, with intent to kill, evident premeditation, treachery and taking
advantage of nighttime, did then and
there . . . . " 35 The trial court likewise missed the word treachery when it quoted the
Information in its decision.36Interestingly, the criminal complaint filed on 20 May
1987 by the INP Acting Station Commander of Dimasalang with the MCTC
mentions only treachery as a qualifying circumstance. In all likelihood, either both
the accused-appellant and the Office of the Solicitor General merely relied on the
Information as quoted in the decision and in the Appellant's Brief,37 or that the latter
merely relied on its representation in the Appellee's Brief to the effect that the
Information does not allege the qualifying circumstance of treachery. In this regard,
the Office of the Solicitor General failed to exercise due care in the preparation of
the Appellee's Brief, while the counsel for accused-appellant unjustly took advantage
of the inadvertence committed by the trial court.
We agree with the trial court that the crime was committed with treachery because of
the sudden and unexpected attack on the victim, who was then urinating at the side of
the road, with a deadly 7-inch Batangas knife. Accused-appellant consciously
adopted this mode of attack to facilitate or insure the commission of the crime
without risk to himself arising from any defensive or retaliatory act on the part of the
victim. 38
We likewise agree with the conclusion of both the accused-appellant and the Office
of the Solicitor General that evident premeditation was not duly established by the
prosecution.
The penalty prescribed for murder under Article 248 of the Revised Penal Code
is reclusion temporal in its maximum period to death, a penalty which consists of
three (3) periods. 39 There being neither generic aggravating nor mitigating
circumstances present, the imposable penalty is the medium period of the prescribed
penalty — reclusion perpetua. 40 The trial court is therefore correct. However,
conformably with the prevailing jurisprudence, the indemnity should be increased
from P30,000.00 to P50.000.00.
WHEREFORE, except for the above observations with respect to the aggravating
circumstance of nighttime, and the modification of the indemnity which is hereby
increased from P30,000.00 to P50,000.00, the challenged Decision of Branch 45 of
the Regional Trial Court of Masbate in Criminal Case No. 5557 finding the accused-
appellant ALBERTO LASE, alias "BERT" guilty of the crime charged, is hereby
AFFIRMED.
Costs against the accused-appellant.
G.R. No. 109172 August 19, 1994
TRANS-PACIFIC INDUSTRIAL SUPPLIES, INC., petitioner,
vs.
The COURT OF APPEALS and ASSOCIATED BANK, respondents.
BIDIN, J.:
In this petition for review on certiorari, petitioner Trans-Pacific Industrial Supplies,
Inc. seeks the reversal of the decision of respondent court, the decretal portion of
which reads:
WHEREFORE, the decision of June 11, 1991 is SET ASIDE and NULLIFIED; the
complaint is dismissed, and on the counterclaim, Transpacific is ordered to pay
Associated attorney's fees of P15,000.00. Costs against Transpacific.
SO ORDERED. (Rollo, p. 47)
Sometime in 1979, petitioner applied for and was granted several financial
accommodations amounting to P1,300,000.00 by respondent Associated Bank. The
loans were evidenced and secured by four (4) promissory notes, a real estate
mortgage covering three parcels of land and a chattel mortgage over petitioner's
stock and inventories.
Unable to settle its obligation in full, petitioner requested for, and was granted by
respondent bank, a restructuring of the remaining indebtedness which then amounted
to P1,057,500.00, as all the previous payments made were applied to penalties and
interests.
To secure the re-structured loan of P1,213,400.00, three new promissory notes were
executed by Trans-Pacific as follows: (1) Promissory Note No. TL-9077-82 for the
amount of P1,050,000.00 denominated as working capital; (2) Promissory Note No.
TL-9078-82 for the amount of P121,166.00 denominated as restructured interest; (3)
Promissory Note No. TL-9079-82 for the amount of P42,234.00 denominated
similarly as restructured interest (Rollo. pp. 113-115).
The mortgaged parcels of land were substituted by another mortgage covering two
other parcels of land and a chattel mortgage on petitioner's stock inventory. The
released parcels of land were then sold and the proceeds amounting to
P1,386,614.20, according to petitioner, were turned over to the bank and applied to
Trans-Pacific's restructured loan. Subsequently, respondent bank returned the
duplicate original copies of the three promissory notes to Trans-Pacific with the word
"PAID" stamped thereon.
Despite the return of the notes, or on December 12, 1985, Associated Bank
demanded from Trans-Pacific payment of the amount of P492,100.00 representing
accrued interest on PN No. TL-9077-82. According to the bank, the promissory notes
were erroneously released.
Initially, Trans-Pacific expressed its willingness to pay the amount demanded by
respondent bank. Later, it had a change of heart and instead initiated an action before
the Regional Trial Court of Makati, Br. 146, for specific performance and damages.
There it prayed that the mortgage over the two parcels of land be released and its
stock inventory be lifted and that its obligation to the bank be declared as having
been fully paid.
After trial, the court a quo rendered judgment in favor of Trans-Pacific, to wit:
WHEREFORE, premises considered and upon a clear
preponderance of evidence in support of the stated causes of
action, the Court finds for the plaintiffs and against defendant, and
(a) declares plaintiff's obligations to defendant to have been already fully paid;
(b) orders defendant to execute and deliver to plaintiffs a release on the i September
11, 1981 mortgage over TCT (50858)
S-10086 and TCT (50859) S-109087, and ii December 20, 1983 chattel mortgage,
within fifteen (15) days from the finality hereof;
(c) orders defendant to pay plaintiffs Romeo Javier and Romana Bataclan-Javier the
sum of P50,000.00 as and for moral damages; and
(d) orders defendant to pay plaintiffs the sum of P30,000.00 as attorney's fees, plus
expenses of the suit.
Defendant's counterclaims are dismissed for lack of merit.
With costs against defendant. SO ORDERED. (Rollo, p. 101)
Respondent bank elevated the case to the appellate court which, as aforesaid,
reversed the decision of the trial court. In this appeal, petitioner raises four errors
allegedly committed by the respondent court, namely:
I RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT THE
ACCRUED INTEREST IN THE AMOUNT OF 492,100.00 HAS NOT BEEN PAID
WHEN ARTICLE 1176 OF THE CIVIL CODE PROVIDES THAT SUCH CLAIM
FOR INTEREST UPON RECEIPT OF PAYMENT OF THE PRINCIPAL MUST
BE RESERVED OTHERWISE IT IS DEEMED PAID.
II RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT WITH
THE DELIVERY OF THE DOCUMENTS EVIDENCING THE PRINCIPAL
OBLIGATION, THE ANCILLARY OBLIGATION OF PAYING INTEREST WAS
NOT RENOUNCED CONTRARY TO THE PROVISIONS OF ART. 1273 OF THE
CIVIL CODE AND THE UNDISPUTED EVIDENCE ON RECORD.
III RESPONDENT APPELLATE COURT ERRED IN NOT HOLDING THAT
PETITIONER HAS FULLY PAID ITS OBLIGATION CONFORMABLY WITH
ARTICLE 1234 OF THE CIVIL CODE.
IV RESPONDENT APPELLATE COURT ERRED IN AWARDING
ATTORNEY'S FEES IN FAVOR OF ASSOCIATED BANK (Rollo, p. 15).
The first three assigned errors will be treated jointly since their resolution border on
the common issue, i.e., whether or not petitioner has indeed paid in full its obligation
to respondent bank.
Applying the legal presumption provided by Art. 1271 of the Civil Code, the trial
court ruled that petitioner has fully discharged its obligation by virtue of its
possession of the documents (stamped "PAID") evidencing its indebtedness.
Respondent court disagreed and held, among others, that the documents found in
possession of Trans-Pacific are mere duplicates and cannot be the basis of
petitioner's claim that its obligation has been fully paid. Accordingly, since the
promissory notes submitted by petitioner were duplicates and not the originals, the
delivery thereof by respondent bank to the petitioner does not merit the application
of Article 1271 (1st par.) of the Civil Code which reads:
Art. 1271. The delivery of a private document evidencing a credit,
made voluntarily by the creditor to the debtor, implies the
renunciation of the action which the former had against the latter.
Respondent court is of the view that the above provision must be construed to mean
the original copy of the document evidencing the credit and not its duplicate, thus:
. . . [W]hen the law speaks of the delivery of the private document
evidencing a credit, it must be construed as referring to the
original. In this case, appellees (Trans-Pacific) presented, not the
originals but the duplicates of the three promissory notes." (Rollo,
p. 42)
The above pronouncement of respondent court is manifestly groundless. It is
undisputed that the documents presented were duplicate originals and are therefore
admissible as evidence. Further, it must be noted that respondent bank itself did not
bother to challenge the authenticity of the duplicate copies submitted by petitioner.
In People vs. Tan, (105 Phil. 1242 [1959]), we said:
When carbon sheets are inserted between two or more sheets of
writing paper so that the writing of a contract upon the outside
sheet, including the signature of the party to be charged thereby,
produces a facsimile upon the sheets beneath, such signature being
thus reproduced by the same stroke of pen which made the surface
or exposed impression, all of the sheets so written on are regarded
as duplicate originals and either of them may be introduced in
evidence as such without accounting for the nonproduction of the
others.
A duplicate copy of the original may be admitted in evidence when the original is in
the possession of the party against whom the evidence is offered, and the latter fails
to produce it after reasonable notice (Sec. 2[b], Rule 130), as in the case of
respondent bank.
This notwithstanding, we find no reversible error committed by the respondent court
in disposing of the appealed decision. As gleaned from the decision of the court a
quo, judgment was rendered in favor of petitioner on the basis of presumptions, to
wit:
The surrender and return to plaintiffs of the promissory notes evidencing the
consolidated obligation as restructured, produces a legal presumption that Associated
had thereby renounced its actionable claim against plaintiffs (Art. 1271, NCC). The
presumption is fortified by a showing that said promissory notes all bear the stamp
"PAID", and has not been otherwise overcome. Upon a clear perception that
Associated's record keeping has been less than exemplary . . ., a proffer of bank
copies of the promissory notes without the "PAID" stamps thereon does not impress
the Court as sufficient to overcome presumed remission of the obligation vis-a-
vis the return of said promissory notes. Indeed, applicable law is supportive of a
finding that in interest bearing obligations-as is the case here, payment of principal
(sic) shall not be deemed to have been made until the interests have been covered
(Art. 1253, NCC). Conversely, competent showing that the principal has been paid,
militates against postured entitlement to unpaid interests.
In fine. the Court is satisfied that plaintiffs must be found to have settled their
obligations in full.
As corollary, a finding is accordingly compelled that plaintiffs (sic) accessory
obligations under the real estate mortgage over two (2) substituted lots as well as the
chattel mortgage, have been extinguished by the renunciation of the principal debt
(Art. 1273, NCC), following the time-honored axiom that the accessory follows the
principal. There is, therefore, compelling warrant (sic) to find in favor of plaintiffs
insofar as specific performance for the release of the mortgages on the substituted
lots and chattel is concerned. (Rollo, p. 100)
premised by:
Records show that Associated's Salvador M. Mesina is on record as having testified
that all three (3) December 8, 1990 promissory notes for the consolidated principal
obligation, interest and penalties had been fully paid (TSN, July 18, 1990, p. 18). It
is, moreover, admitted that said promissory notes were accordingly returned to
Romeo Javier. (Ibid.)
The above disquisition finds no factual support, however, per review of the records.
The presumption created by the Art. 1271 of the Civil Code is not conclusive but
merely prima facie. If there be no evidence to the contrary, the presumption stands.
Conversely, the presumption loses its legal efficacy in the face of proof or evidence
to the contrary. In the case before us, we find sufficient justification to overthrow the
presumption of payment generated by the delivery of the documents evidencing
petitioners indebtedness.
It may not be amiss to add that Article 1271 of the Civil Code raises a presumption,
not of payment, but of the renunciation of the credit where more convincing evidence
would be required than what normally would be called for to prove payment. The
rationale for allowing the presumption of renunciation in the delivery of a private
instrument is that, unlike that of a public instrument, there could be just one copy of
the evidence of credit. Where several originals are made out of a private document,
the intendment of the law would thus be to refer to the delivery only of the
original original rather than to the original duplicate of which the debtor would
normally retain a copy. It would thus be absurd if Article 1271 were to be applied
differently.
While it has been consistently held that findings of facts are not reviewable by this
Court, this rule does not find application where both the trial and the appellate courts
differ thereon (Asia Brewery, Inc. v. CA, 224 SCRA 437 [1993]).
Petitioner maintains that the findings of the trial court should be sustained because of
its advantage in observing the demeanor of the witnesses while testifying (citing
Crisostomo v. Court of Appeals, 197 SCRA 833) more so where it is supported by
the records (Roman Catholic Bishop of Malolos v. Court of Appeals, 192 SCRA
169).
This case, however, does not concern itself with the demeanor of witnesses. As for
the records, there is actually none submitted by petitioner to prove that the contested
amount, i.e., the interest, has been paid in full. In civil cases, the party that alleges a
fact has the burden of proving it (Imperial Victory Shipping Agency v. NLRC 200
SCRA 178 [1991]). Petitioner could have easily adduced the receipts corresponding
to the amounts paid inclusive of the interest to prove that it has fully discharged its
obligation but it did not.
There is likewise nothing on the records relied upon by the trial court to support its
claim, by empirical evidence, that the amount corresponding to the interest has
indeed been paid. The trial court totally relied on a disputable presumption that the
obligation of petitioner as regards interest has been fully liquidated by the
respondent's act of delivering the instrument evidencing the principal obligation.
Rebuttable as they are, the court a quo chose to ignore an earlier testimony of Mr.
Mesina anent the outstanding balance pertaining to interest, as follows:
Court:
Q Notwithstanding, let us go now specifically to promissory note No. 9077-82 in the
amount of consolidated principal of P1,050,000.00. Does the Court get it correctly
that this consolidated balance has been fully paid?
A Yes, the principal, yes, sir.
Q Fully settled?
A Fully settled, but the interest of that promissory note has not been paid, Your
Honor.
Q In other words, you are saying, fully settled but not truly fully settled?
A The interest was not paid.
Q Not fully settled?
A The interest was not paid, but the principal obligation was removed from our
books, Your Honor.
Q And you returned the promissory note?
A We returned the promissory note. (TSN, July 18, 1990, p. 22)
That petitioner has not fully liquidated its financial obligation to the Associated Bank
finds more than ample confirmation and self-defeating posture in its letter dated
December 16, 1985, addressed to respondent bank, viz.:
. . . that because of the prevailing unhealthy economic conditions,
the business is unable to generate sufficient resources for debt
servicing.
Fundamentally on account of this, we propose that you permit us to
fully liquidate the remaining obligations to you of P492,100
through a payment in kind (dacion en pago) arrangement by way
of the equipments (sic) and spare parts under chattel mortgage to
you to the extent of their latest appraised values." (Rollo, pp. 153-
154; Emphasis supplied)
Followed by its August 20, 1986 letter which reads:
We have had a series of communications with your bank regarding
our proposal for the eventual settlement of our remaining
obligations . . .
As you may be able to glean from these letters and from your
credit files, we have always been conscious of our obligation to
you which had not been faithfully serviced on account of
unfortunate business reverses. Notwithstanding these however,
total payments thus far remitted to you already exceede (sic) the
original principal amount of our obligation. But because of interest
and other charges, we find ourselves still obligated to you by
P492,100.00. . . .
. . . We continue to find ourselves in a very fluid (sic) situation in
as much as the overall outlook of the industry has not substantially
improved. Principally for this reason, we had proposed to settle
our remaining obligations to you by way of dacion en pago of the
equipments (sic) and spare parts mortgaged to you to (the) extent
of their applicable loan values. (Rollo, p. 155; Emphasis supplied)
Petitioner claims that the above offer of settlement or compromise is not an
admission that anything is due and is inadmissible against the party making the offer
(Sec. 24, Rule 130, Rules of Court). Unfortunately, this is not an iron-clad rule.
To determine the admissibility or non-admissibility of an offer to compromise, the
circumstances of the case and the intent of the party making the offer should be
considered. Thus, if a party denies the existence of a debt but offers to pay the same
for the purpose of buying peace and avoiding litigation, the offer of settlement is
inadmissible. If in the course thereof, the party making the offer admits the existence
of an indebtedness combined with a proposal to settle the claim amicably, then, the
admission is admissible to prove such indebtedness (Moran, Comments on the Rules
of Court, Vol. 5, p. 233 [1980 ed.); Francisco, Rules of Court, Vol. VII, p. 325 [1973
ed.] citing McNiel v. Holbrook, 12 Pac. (US) 84, 9 L.ed. 1009). Indeed, an offer of
settlement is an effective admission of a borrower's loan balance (L.M. Handicraft
Manufacturing Corp. v. Court of Appeals, 186 SCRA 640 [1990]). Exactly, this is
what petitioner did in the case before us for review.
Finally, respondent court is faulted in awarding attorney's fees in favor of Associated
Bank. True, attorney's fees may be awarded in a case of clearly unfounded civil
action (Art. 2208 [4], CC). However, petitioner claims that it was compelled to file
the suit for damages in the honest belief that it has fully discharged its obligations in
favor of respondent bank and therefore not unfounded.
We believe otherwise. As petitioner would rather vehemently deny, undisputed is the
fact of its admission regarding the unpaid balance of P492,100.00 representing
interests. It cannot also be denied that petitioner opted to sue for specific
performance and damages after consultation with a lawyer (Rollo, p. 99) who
advised that not even the claim for interests could be recovered; hence, petitioner's
attempt to seek refuge under Art. 1271 (CC). As previously discussed, the
presumption generated by Art. 1271 is not conclusive and was successfully rebutted
by private respondent. Under the circumstances, i.e., outright and honest letters of
admission vis-a-vis counsel-induced recalcitrance, there could hardly be honest
belief. In this regard, we quote with approval respondent court's observation:
 The countervailing evidence against the claim of full payment
emanated from Transpacific itself. It cannot profess ignorance of
the existence of the two letters, Exhs. 3 & 4, or of the import of
what they contain. Notwithstanding the letters, Transpacific opted
to file suit and insist(ed) that its liabilities had already been paid.
There was thus an
ill-advised attempt on the part of Transpacific to capitalize on the
delivery of the duplicates of the promissory notes, in complete
disregard of what its own records show. In the circumstances, Art.
2208 (4) and (11) justify the award of attorney's fees. The sum of
P15,000.00 is fair and equitable. (Rollo, pp. 46-47)
WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.
G.R. Nos. 114011-22 December 16, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VEVINA BUEMIO, accused-appellant.
KAPUNAN, J.:p
Vevina Buemio, a field officer of a travel agency, appeals from the decision of the
Regional Trial Court in Pasay City, Branch 117, rendered on January 26, 1994, the
dispositive portion of which reads:
WHEREFORE, the Court finds the accused Vevina Buemio GUILTY beyond
reasonable doubt for illegal recruitment on a large scale under Article 39, of
Presidential Decree (P.D.) 2018, and sentences her to a penalty of life imprisonment
and a fine of P100,000.00 to indemnify Eliseo Principe, Eduardo Gutierrez and
Ramon Villanueva the amount of P150,000.00, without subsidiary imprisonment in
case of insolvency and to pay the costs.
1 Vevina's residence, inquiring about their trip to Japan. As Vevina's promises
SO ORDERED.
The facts as found by the trial court are as follows:
Sometime in September, 1991, Cecilia Baas, a clerical employee at the Villamor Air
Base in Pasay City, learned from Catalina Asis that Vevina Buemio could send job
applicants abroad for employment. Catalina, an officemate of Vevina's husband at
the same air base, arranged a meeting between Cecilia and Vevina at the office of the
latter's husband. When the two met for the second time at the residence of Vevina in
9 Second St., Villamor Air Base, Vevina promised to provide Cecilia with a job as a
factory worker in japan with a minimum salary of 10,000 yen a day. Vevina also
promised to provide Cecilia with all the necessary travel documents. For her part,
Cecilia would give Vevina P60,000.00 as placement fee and for the expenses in the
processing of travel documents. Cecilia believed Vevina because the latter was the
wife of an official at the Villamor Air Base.
On September 11, 1991, Cecilia, together with her husband and one Rafael Andres,
went to the office of Vevina's husband and paid P30,000.00 representing half of the
fees agreed upon. Cecilia paid the second half of the fees on September 28, 1991 at
Vevina's residence. In both instances, Vevina issued receipts acknowledging
Cecilia's payments.
At the airport on the day when Cecilia, Marilou Gonzales, Rafael Andres and
Armando Garcia were supposed to leave for Japan, Vevina handed them their
passports and tickets. To their surprise, they found out that they were bound for
Korea, not Japan. Vevina explained to them that she would be following them in
Korea where they would be getting their plane tickets for Japan. When Cecilia
noticed that the name appearing on the passport given her was that of "Pacita
Garcia," Vevina told her that she could use other names in her passport like other
people do. Convinced by Vevina's explanations, the group took off for Korea.
In Korea, they checked in at the Naiagara Hotel but they just stayed inside their hotel
rooms. They only left their rooms twice after Vevina's arrival when she took them on
a tour. Vevina also got their pocket money purportedly to buy their food.
Vevina informed them later that the plane tickets to Japan were expensive in Korea.
She proposed that she herself would proceed to Japan where she would buy their
tickets. She left for Japan with Lito Camora and Sergio Andres who had "complete
tickets." However, Vevina, came back to Korea without the group's tickets. Instead,
she advised them to go back to the Philippines using their round-trip tickets.
Believing Vevina's promise that she could still send them to Japan without any
expense on their part, the group left for the Philippines on October 16, 1991 with
Vevina staying behind in Korea.
Since Vevina's arrival in the Philippines on October 22, 1991, the group frequented
remained unfulfilled, the group, showing their displeasure, demanded that their
money be given back to them. Vevina promised to return their money but when she
failed to do so, they fled their respective complaints before the National Bureau of
Investigation (NBI). 2
It was sometime in October, 1991 that, through one Elsa Sta. Ana, Vevina met Eliseo
Principe, Ramon Villanueva and Eduardo Gutierrez at Villanueva's residence in
Bunlo, Bocaue, Bulacan. Elsa knew that the three were looking for jobs and that
Vevina was also looking for people interested in working abroad. Vevina explained
that she could send them to Japan where they could be factory workers with a
minimum salary of "isang lapad" or 10,000.00 yen a day. Having manifested their
interest in getting the job, the three were advised by Vevina to raise right away the Date Rec'd. 10/24/91 3
placement fee of P60,000.00 each in order that they could leave for Japan in a week's
time. Vevina told them to bring to her residence the placement fee and a prepared After a week had gone by without a word from Vevina, Principe, Villanueva and
receipt. Gutierrez went to her residence to inquire. Vevina told them that the money they had
given her was insufficient and that she needed P50,000.00 more. Since they did not
Because Vevina was leaving for Korea, she instructed each of the three to give have that amount with them, the three agreed to deliver it to Vevina at Villanueva's
P1,500.00 to one Jenny who would secure their passports. The three obliged but only residence that evening. As agreed, they met at Villanueva's residence that same
Principe and Gutierrez were given their passports. When Vevina arrived from Korea, evening and, after receiving the amount, Vevina signed the receipt handwritten by
she advised Villanueva to secure his passport himself as there were "some Gutierrez's wife which states:
problems." Villanueva did as instructed and personally secured his passport. The
three were then made to sign application forms for Korean visas upon Vevina's 10-31-91
guarantee that the "onward visa" from Korea was necessary for them to reach Japan.
Unfortunately, the Korean Embassy denied their visa applications. This is to acknowledge receipt the amount of PESOS: Fifty
Thousand and 00/100 (P50,000.-) only, representing 2nd partial
Nevertheless, to raise the placement fee, Principe borrowed the title to the property payment for placement fee and other expenses of the following:
of her sister-in-law and mortgaged the property for P200,000.00 with P70,000.00
interest. On October 24, 1991, Principe, together with Gutierrez and Villanueva, their
1. Eliseo Principe
respective wives and Elsa Sta. Ana, went to Vevina's house and handed her
P90,000.00 representing half of the placement fee agreed upon. The balance would
be given to Vevina before their departure for Japan. Vevina then signed the 2. Ramon Villanueva
following typewritten receipt which was prepared by Gutierrez's wife:
3. Eduardo Gutierrez
10/24/91
Received by:
ACKNOWLEDGMENT RECEIPT
(Signature over printed name)
This is to acknowledge receipt of PESOS: Ninety Thousand & VEVlNA N. BUEMIO
00/100 (90,000.00) from the following persons, representing 50%
partial payment for their placement fees: Date Rec'd. 10/31/91 4

1. Eliseo Principe P30,000.00 Vevina then assured them that they would be leaving for Japan within a few
days.
2. Ramon Villanueva 30,000.00
The three repaired once more to Vevina's residence after several days. Vevina
3. Eduardo Gutierrez 30,000.00 informed them that they would be leaving for abroad if not for the problem with the
----------- travel tax amounting to P10,000.00. Exhilarated by the prospect of soon leaving for
P90,000.00 work abroad, the three gave Vevina the amount on November 12, 1991 at Principe's
vvvvvvvvvv residence in Marilao, Bulacan. Vevina issued them a handwritten receipt which
reads:
Received by:
Received the amount of Ten Thousand Pesos only (P10,000.00) part of their partial
payment for plane tickets & hotel accommodation.
(Signature over
printed name)
VEVINA N. BUEMIO The three thereafter went to Vevina's office to inquire why they still could not leave
for Japan. Again, Vevina told them that she still had some documents to take care of
but she assured them that they were scheduled to depart on November 18 and some
other dates. However, Vevina's promises remained unfulfilled even after those dates
had passed. Thus, the three demanded their money back and Vevina promised to
return it to them.
Having failed to get their money back, the three reported the matter to the NBI where
they were instructed to verify from the Philippine Overseas Employment
Administration (POEA) whether Vevina was authorized to recruit job applicants for
abroad. The POEA accordingly issued a certification dated June 11, 1992 stating that
"VEVINA BUEMIO, in her personal capacity" was "neither licensed nor authorized .
. . to recruit workers for overseas employment from Jan., 1991 to the present." 6
Vevina was apprehended by NBI agents on January 27, 1992. Two days later, an
information for illegal recruitment, docketed as Crim. Case No. 92-0129, was filed
against her in the Regional Trial Court in Pasay City for falsely representing and
alleging that "she could secure employments as factory workers abroad for Cecilia
Bass, Rose Flores, Marilou Gonzales, Eduardo Prudenciado, Ramon Villanueva,
Leonilo Arganda, Eliseo Principe, Eduardo Gutierra, Sergio Andres, Magdalena
Arizala and Lito Camora" and for having wilfully, unlawfully and feloniously
recruited them and collected from them "the amounts ranging from P20,700.00 to
P82,000.00 each," but which amount she appropriated to herself after failing to
deploy the complainants abroad. 7
On the same day, eleven (11) informations for estafa, docketed as Criminal Cases
Nos. 92-0130 to 92-0140 were likewise filed in the same court against Vevina for
having allegedly defrauded the following of the corresponding amounts: Cecilia
Bass, P60,000.00; Rose Flores, P20,700.00; Marilou Gonzales, P60,000.00; Eduardo
Prudenciado, P55,000.00; Ramon Villanueva, P50,000.00; Leonilo Arganda,
P30,000.00; Eliseo Principe, P50,000.00; Eduardo Gutierrez, P50,000.00; Sergio
Andres, P60,000.00; Magdalena Arizala, P82,000.00, and Lito Camora, P28,600.00
or $1,100.00. A typical information for estafa filed against Vevina reads as follows:
That on or about the 11th and 28th of September 1991, in Pasay, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above named
accused Vevina Buemio, defrauded Cecilia Baas, in the following manner, to wit:
that said accused, by means of false representations and fraudulent allegations to the
effect that she could secure employment as factory worker abroad for said
complainant, and that she could facilitate her working and travel papers, did then and
there wilfully, unlawfully and feloniously ask and demand the amount of P60,000.00
from the complainant allegedly to be used for the facilitation of the latter's working
and travel papers; that complainant carried away by said misrepresentations, in fact,
she gave and delivered to said accused, the amount of P60,000.00 which amount,
accused misapplied, misappropriated and converted to her own personal use and
benefit, and failed to deploy complainant for employment abroad, and despite
repeated demands, accused faded and refused to do so, or account for the said
amount, to the damage and prejudice of said complainant, in the said amount of
P60,000.00.
Contrary to law. 8
On February 11, 1992, the following amended information for illegal recruitment
was filed in Crim. Case No. 92-0129:
That on or about and during the period comprising from April 1991
to October 1991, in Pasay City, Metro Manila, Philippines, the
above-named accused, by means of false representations and
fraudulent allegations to the effect that she could secure
employments as Factory Workers abroad for Cecilia Baas, Rose
Flores, Mardou Gonzales, Eduardo Prudenicado, Ramon
Villanueva, Leonila Arganda, Elicio Principe, Eduardo Gutierrez,
Sergio Andres, Magdalena Arizala and Lito Camora, did then and
there wilfully, unlawfully and feloniously recruit for a
fee aforesaid persons without the corresponding license from the
Department of Labor and Employment.
Contrary to law. 9
The defense forthwith filed a motion for reinvestigation in view of the amendment of
the information and, allegedly, the denial of her right to a preliminary investigation.
It prayed further for the court to fix the bailbond for the liberty of the accused. 10 The
court accordingly held the arraignment of the accused in abeyance pending the result
of the reinvestigation. 11 At her arraignment on April 22, 1992, Vevina pleaded not
guilty to the charges against her in Crim. Cases Nos. 92-0129 to 92-0140. 12 The
number of complainants, however, diminished when some of them executed
affidavits of desistance upon the common allegation that Vevina did not promise
them employment abroad but merely assisted in the processing of their travel
papers. 13
Testifying in her own defense at the trial, Vevina swore that during the first week of
October, 1991 when she was in Korea, Principe, Villanueva and Gutierrez went to
her residence in Villamor Air Base requesting for assistance in going to Japan.
Jermilyn, her friend who ran errands for her, accompanied the three who had learned
from a certain Baltazar, Vevina's former client, that Vevina could help them because
of her job as the field officer of the Continental Tour and Travel Agency. From the
telephone conversation with her husband and Jennilyn, she learned that the three had
relatives in Japan who could provide them employment in that country.
The day after Vevina arrived from Korea on October 23, 1991, Principe told her by
phone that he and his companions would be arriving at her residence at 6:00 p.m.
Since she told them that she had an appointment at 10:30 p.m., that day being her
husband's birthday, Principe told her that they would be coming to her place instead
at 12:00 midnight.
The three arrived at the appointed time. It was the first time for her to meet them.
Principe, who would be shouldering the expenses of Villanueva and Gutierrez, was
the spokesman of the group. As the three handed her P90,000.00, she emphasized to
them that part of the amount would defray the expenses for her own ticket and hotel
accommodations as she would be travelling with them.14 She signed a receipt
prepared by the group but she did not read its contents anymore nor did she count the
money which she placed inside a drawer, as she was busy attending to her husband's
guests.
The three having given her their business registration papers, income tax returns and
calling cards, Vevina immediately processed their travel documents and passports.
She first proposed that the three go to Thailand but the Thai airline did not issue
tickets for them because they had not secured an "onward visa." 15 Thus, she next
proposed that since entry to Hongkong would not entail securing a visa thereto, the
three should take a Hongkong-Japan-Korea route. The three, together with other
clients of Vevina, applied for a Korean visa but only Principe was granted said visa.
Vevina then gave Principe tickets for the Manila-Hongkong, Hongkong-Japan,
Japan-Korea and Korea-Manila trip. Upon her advice, Principe also applied for a visa
at the Japanese embassy. Because Villanueva and Gutierrez wanted to be sure first
that Principe would be granted a Japanese visa, no tickets were issued to them.
However, all three later decided to give up their travel plans and demanded that she
gave them back their money. She agreed to return the money "as soon as some of the
groups gave back the money that they used." 16She had received P50,000.00 for
Principe's ticket at Villanueva's residence, and P10,000.00 for their hotel
accommodations. 17
On January 26, 1994, the trial court rendered the aforementioned decision convicting
appellant of illegal recruitment. Vevina filed a motion for its reconsideration but this
was denied by the court on February 3, 1994. 18 Hence, this appeal questioning the
trial court's giving weight and credence to the testimony of the prosecution
witnesses, and alleging denial of due process to the appellant.
On the issue of denial of due process, appellant contends that she was not given the
opportunity to present additional witnesses. The records belie such claim. There were
three resettings 19 of the hearings of the case where the defense was given an
opportunity to present additional witnesses before the trial court finally ordered the
case submitted for decision. 20 The defense filed a motion for the reconsideration of
said order 21 which the trial court granted 22 but still, the defense failed to present its
promised additional witnesses. Hence, on November 30, 1993, the trial court issued
an order decreeing that the defense had waived presentation of further evidence and
directing it to make a formal offer of the evidence already presented within ten
days. 23 On January 19, 1994, the defense submitted a motion to defer the
promulgation of judgment and to reopen the case 24 but the following day, it
nevertheless formally offered its exhibits. 25
From the foregoing, it is very clear that appellant was given more than enough
opportunity to fully ventilate her defense and therefore she was accorded due process
of law. There is due process if the following conditions are present: (1) a court or
tribunal clothed with judicial power to hear and determine the matter before it; (2)
jurisdiction lawfully acquired by the court over the person of the defendant or over
the property subject of the proceedings; (3) the defendant must be given an
opportunity to be heard, and (4) judgment must be rendered upon lawful
hearing. 26All these conditions have been satisfied in the case at bar. What is
repugnant to due process is an absolute lack of opportunity to be
heard. 27 Appellant's failure to present additional witnesses was within her power
and that of her counsel to avert. Verily, her failure to act with prudence and diligence
cannot elicit approval or sympathy from the Court. 28
On the merits of the appeal, appellant contends in the main that the testimonies of
Principe, Villanueva and Gutierrez are contrary to ordinary human experience. Thus,
they could not have been enticed to work in factories in Japan as there was no
mention of any contacts of appellant in that country who could provide them
employment, nor were their specific work and workplaces as well as the peso
equivalent of their supposed salary ever pointed out by the appellant. Neither was it
proven that appellant enticed them with convincing benefits in working in Japan
which would be enough for them to part with their money just so they could be
"TNTs" 29 in Japan.
Appellant's contentions boil down to the issue of credibility. As a rule, appellate
courts will not disturb the findings of the trial court on said issue unless certain facts
or circumstances of weight have been overlooked, misunderstood or misapplied
which, if considered, might affect the result of the case. This is because the trial court
heard the testimony of the witnesses and observed their deportment and manner of
testifying during the trial. 30 No negative circumstances attend this case as to warrant
departure from the general rule.
In fact, a review of the transcript of stenographic notes in this case shows that the
testimonies of the prosecution witnesses are credible. Taken as a whole and even
under the crucible test of examination by the defense, said testimonies are not only
consistent on all material respects but also replete with minutiae of the questioned
transactions with the appellant.31 Inasmuch as the trial court found the positive
declarations of the complainants more credible than the sole testimony of the
appellant denying said transactions, there must be a well-founded reason in order to
deny great weight to the trial court's evaluation of the prosecution witnesses'
testimonies. 32 The defense has failed to provide that reason as it has failed to prove
any ill-motive on the part of the complainant-witnesses in so imputing to appellant
such a serious crime as illegal recruitment.
We find the instant appeal to be without merit. Article 13 (b) of the Labor Code
defines recruitment as "any act of canvassing, enlisting, contracting, transporting,
utilizing, hiring or procuring workers, and includes referrals, contract services,
promising or advertising for employment, locally or abroad, whether for profit or
not." The pertinent provision of the Labor Code on illegal recruitment are as follows:
Art. 38. Illegal Recruitment. — (a) Any recruitment activities, including the
prohibited practices enumerated under Article 34 of this Code, to undertaken by non-
licensees or non-holders of authority shall be deemed illegal and punishable under
Article 39 of this Code. The Ministry (now Department) of Labor and Employment
or any law enforcement officer may initiate complaints under this Article.
(b) Illegal recruitment when committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage and shall be penalized in
accordance with Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of
three (3) or more persons conspiring and/or confederating with one another in
carrying out any unlawful or illegal transaction, enterprise or scheme defined under
the first paragraph hereof. Illegal recruitment is deemed committed in large scale if
committed against three (3) or more persons individually or as a group.
xxx xxx xxx
Art.39. Penalties. — (a) The penalty of life imprisonment and a fine of One Hundred
Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes
economic sabotage as defined herein.
xxx xxx xxx
(Emphasis supplied.)
Recruitment for overseas employment is not in itself necessarily immoral or
unlawful. It is the lack of the necessary license or permit that renders such
recruitment activities unlawful or criminal. When three or more persons are
victimized, the offense becomes illegal recruitment in large scale, 33 an offense
constitutive of economic sabotage. In other words, the crime of illegal recruitment in
large scale is committed when a person (a) undertakes any recruitment activity
defined under Art. 13(b) or any prohibited practice enumerated under Art. 34 of the
Labor Code; (b) does not have a license or authority to lawfully engage in the
recruitment and placement of workers; and (c) commits the same against three or
more persons, individually or as a group. 34
The last two requisites are present in this case. By appellant's own admission, she
was a field of officer of a travel agency who merely assisted prospective travellers
procure the necessary travel papers. Her admission is proof that she was not a
licensed recruiter per the records of the POEA. Although some of the complainants
desisted from pursuing their cases against appellant, it is undeniable that more than
three persons raised claims that they had been victimized by appellant's recruitment
activities. What remains to be determined thereof is whether or not the acts
committed by appellant constituted illegal recruitment as defined by the Labor Code.
The prosecution's theory that appellant promised employment abroad to the
complainants has been proven beyond reasonable doubt not only by the testimonies
of prosecution witnesses but also by the aforequoted receipts signed by appellant
indicating that she received "placement fees." The term "placement" is defined in the
same way as "recruitment" under Art. 13(b) of the Labor Code. Obviously, to deflect
the import of the use of the phrase "placement fees" in the receipts she signed,
appellant claimed that she did not read the receipts when she signed them feigning
tiredness and pointing to the late hour of the night when she signed one of them. But
her claim crumbles in the face of her own admissions that as a field officer of a travel
agency, she was well aware of the importance of documents and that it was not her
practice to sign papers without reading them. Indeed, there is every reason to believe
that she had read them before affixing her signature, but she did not object to the use
of "placement fees" in the receipts.
That appellant was prevaricating as regards the nature of the amounts she received
from the complainants is manifested by the fact that while she testified that she
demanded and accepted the amount of P10,000 to solve the "travel tax problems" of
some of the complainants, the aforequoted handwritten receipt she signed shows that
the same amount was for "plane tickets & hotel accommodation." Moreover, if
indeed it is true that the amounts she demanded and collected from the complainants
were mere processing fees needed to secure travel papers, then she would have
received them upon official receipts of the travel agency, in its office and at the
appropriate office hours. The evidence proven however, shows that two of the
receipts were prepared by a complainant's wife while another appears to be in
appellant's own handwriting on a yellow ruled pad paper, and that she received
various amounts in places other than her office including her own residence, and
after office hours. In one instance, a transaction even occurred at midnight in her
own home.
Appellant also claims that the visa applications of the complainants she had
presented in evidence prove that they were not as seekers for jobs overseas. This
stretches judicial credulity to the limits. The four complainants who testified for the
prosecution could not have afforded travel abroad, much more as tourists. Cecilia
Bass and the three, Principe, Villanueva and Gutierrez, were all unemployed. Neither
was there proof that complainants had sources of income which they could rely on
even if unemployed or low-salaried. Furthermore, as regards Cecilia Bass, the use of
the name "Pacita Garcia" in the passport given her was not even Satisfactorily
explained by the appellant. It is of judicial notice, however, that fake passports are
the usual tools of illegal recruiters.
That appellant even accompanied some complainants abroad on the pretext that she
would secure their plane tickets there does not help her case any. Instead of
bolstering her claim that she was merely helping the complainants secure travel
papers, that story instead undermines the alleged legality of her activities. She did
not actually have to go abroad to secure tickets and travel documents since these may
be obtained just as easily within this country. The rule, therefore, that for evidence to
be believed, it must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of
mankind can prove as probable under the circumstances, 35 finds meaning in this
case.
Upon the evidence presented and on record, there is therefore no reason to disturb
the trial court's conclusion that appellant violated the law against illegal recruitment
in large scale.
We note, however, that the trial court omitted Cecilia Baas in its decision. Since
Cecilia Bass is named one of the complainants in the amended information for illegal
recruitment and who testified in court to prove her charges, her case should have
been duly considered.
The trial court stated that the "complainants executed affidavits of desistance except
Principe, Villanueva and Gutierrez." 36 This, perhaps, explains why the trial court did
not even mention the testimony of Cecilia Baas in its decision. However, the records
show that only the following executed affidavits of desistance: Lito B. Camora (Exh.
8), Roel B. Perez (Exh. 9), Magdalena P. Arizala and Fe P. Domagtoy (Exh. 10), and
Eduardo P. Prudenciado, Leonilo D. Arganda and Rose V. Flores (Exh. 11). 3 7 Of
these seven persons, Camora, Arizala, Prudenciado, Arganda and Flores filed
complaints for estafa against appellant while Perez and Domagtoy did not. Affidavits
of desistance, however, may not exonerate an accused from criminal liability,
especially when the evidence already adduced suffices to convict. In People
v. Romero, 38 the Court holds:
The fact that complainants Bernardo Salazar and Richard Quillope executed a Joint
Affidavit of Desistance does not serve to exculpate accused-appellant from criminal
liability insofar as the case for illegal recruitment is concerned since the Court looks
with disfavor the dropping of criminal complaints upon mere affidavit of desistance
of the complainant, particularly where the commission of the offense, as is in this
case, is duly supported by documentary evidence.
Generally, the Court attaches no persuasive value to affidavits of desistance,
especially when it is executed as an afterthought. It would be a dangerous rule for
courts to reject testimonies solemnly taken before the courts of justice simply
because the witnesses who had given them, later on, changed their mind for one
reason or another, for such rule would make solemn trial a mockery and place the
investigation of truth at the mercy of unscrupulous witness(es).
Complainants Bernardo Salazar and Richard Quillope may have a change of heart
insofar as the offense wrought on their person is concerned when they executed their
joint affidavit of desistance but this will not affect the public prosecution of the
offense itself. It is relevant to note that "the right of prosecution and punishment for a
crime is one of the attributes that by a natural law belongs to the sovereign power
instinctly charged by the common will of the members of society to look after, guard
and defend the interests of the community, the individual and social rights and the
liberties of every citizen and the guaranty of the exercise of his rights." The cardinal
principle which states that to the State belongs the power to prosecute and punish
crimes should not be overlooked since a criminal offense is an outrage to the
sovereign State. As provided by the Civil Code of the Philippines:
Art. 2034. There may be a compromise upon the civil liability arising from an
offense; but such compromise shall not extinguish the public action for the
imposition of the legal penalty.
While the trial court included the eleven estafa cases in the docket numbers
appearing on the face of the decision to identify the cases under consideration, it
omitted any mention about them. A thorough search on the records for a reason for
such omission yielded a negative result. Notably, the Solicitor General failed to
notice the same omission in his brief. The settled rule is that where other crimes or
felonies are found to have been committed by an accused charged with violation of
another law, conviction under the latter law does not preclude punishment under the
other statutes. 39
WHEREFORE, the Decision of the trial court finding appellant Vevina Buemio
guilty beyond reasonable doubt of the crime of illegal recruitment in large scale
under Arts. 38 and 39 of the Labor Code and imposing on her the penalty of life
imprisonment and the payment of a fine of P100,000.00 is hereby AFFIRMED,
subject to the modification that she shall refund the amounts she had unlawfully
collected while committing the acts constituting illegal recruitment to Cecilia Baas,
Eliseo Principe, Ramon Villanueva and Eduardo Gutierrez. Costs against the
appellant.
G.R. No. 110129 August 12, 1997
PEOPLE OF THE PHILIPPINES plaintiff-appellee,
vs.
EDELCIANO AMACA @ "EDDIE" and "JOHN DOE" @
"OGANG," accused,
EDELCIANO AMACA @ "EDDIE," accused-appellant.
PANGANIBAN, J.:
The ante mortem statement of the victim is sufficient to identify the assailant in the
case at hand. However, the accused cannot be convicted of murder attended by
treachery, because the Information charged him with murder qualified only by
evident premeditation. This legal lapse of the prosecution — for that matter, any
prosecution lapse — should benefit the appellant, because in a criminal case, the
accused may be held accountable only for the crime charged (or for the crime
necessarily included therein), and every doubt must be resolved in his favor. Thus,
we hold him guilty only of homicide. Furthermore, since the heirs of the victim
waived their claim through an affidavit of desistance, no award for civil indemnity
should be included in this Decision finding the accused guilty of the homicide.
Statement of the Case
These postulate are explained in the Court's adjudication of this appeal from the
Decision 1 dated November 19, 1992 of the Regional Trial Court of Bais City,
Branch 45, 2 in Criminal Case No. 550-C convicting Accused Edelciano Amaca of
murder and sentencing him to reclusion perpetua.
On December 17, 1990, an Information 3 was filed by Bais City Prosecutor Epifanio
E. Liberal, Jr. against Appellant Amaca and one known only by his alias "Ogang,"
charging them as follows:
That on October 1, 1990 at around 7:00 o'clock in the evening, more or less, in Purok
Liberty Hills, Barangay Mabigo, Canlaon City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused mutually helping one
another and with evident premeditation and at nighttime did then and there wilfully,
unlawfully and feloniously attack, assault and shot with the use of a firearm one
Wilson Vergara who, as a result thereof, suffered fatal gunshot wound as reflected in
the medical certificate issued on October 2, 1990 by the Guihulngan District Hospital
which was the immediate cause of his immediate death.
Contrary to Art. 248 of the Revised Penal Code.
A warrant for the arrest of accused-appellant was issued on January 16,
1991. 4 However, this was returned unserved on two different occasions for the
reason that the subject had already changed address and "his whereabouts [were]
unknown." 5 A motion for reinvestigation filed by appellant's Counsel de
Oficio Marcelo Ondoy was denied in an Order dated April 15, 1991 on the ground
that the trial court had not yet acquired jurisdiction over the accused who was then
still at large. 6 Jurisdiction over the person of appellant was acquired by the said
court only on July 1, 1991 when he was arrested by police authorities. 7 Thereafter,
reinvestigation was conducted but the prosecutor, reiterating his prima facie findings,
resolved to continue the prosecution of the accused.
Arraigned on September 25, 1991, the accused-appellant, assisted by Atty. Ondoy,
pleaded not guilty to the charge. 8 Trial ensued in due course. Thereafter, the trial
court rendered its Decision, the decretal portion of which reads:
WHEREFORE, premises considered, this Court finds accused EDELCIANO
AMACA alias "EDDIE" guilty beyond reasonable doubt of the crime of murder as
penalized under Article 248 of the Revised Penal Code, and hereby sentences the
said accused to a penalty of RECLUSION PERPETUA, without pronouncement as to
civil liability, and damages, and to pay costs.
SO ORDERED. 9
The Facts
The trial court synthesized the facts based on the testimonies of witnesses for the
prosecution and the defense, as follows:
To prove the injuries sustained by the victim, Wilson Vergara, and his cause of
death, the prosecution presented Dr. Edgar P. Pialago, a resident physician of the
Guihulngan District Hospital, Guihulngan, Negros Oriental, who testified that on
October 2, 1990, he was on duty at the aforesaid hospital, and was able to attend to
victim Wilson Vergara who had just undergone a surgical operation conducted by
another doctor, Dr. Gonzaga. The major organs of the victim, namely, the heart,
lungs and kidney, were no longer functioning normally, and thus, he was suffering
from multiple organ system failure. Furthermore, there was injury in the pancreas,
causing a leak of the pancreatic juice. Victim suffered two gunshot wounds at the
back, and x-ray revealed two (2) bullets inside the body, and there was no exit
wound. The patient was admitted at 10:45 in the evening of October 1, 1990, and
died at 7:00 in the evening of the following day. He identified the death certificate
(Exh. "A"), and the data sheet of the victim and the final diagnosis. (Exh. "B") Even
with immediate medical attention, the victim could not have survived with the
wounds he sustained.
Bernardo Mangubat, member of the Philippine National Police of Canlaon City,
testified that as a police investigator one of his companions in the force fetched him
from his residence at about 7:00 in the evening of October 1, 1990, and informed
him of a shooting incident, where the victim was at the clinic of Dr. Cardenas, which
was near his residence. Upon reaching the clinic of Dr. Cardenas, he saw the victim
already on board a Ford Fiera pick up ready for transport to the hospital. He inquired
from the victim about the incident, and the former answered he was shot by CVO
Amaca and Ogang. Upon query why he was shot, the victim said he did not know the
reason why he was shot. Upon being asked as to his condition, the victim said that he
was about to die. (TSN, p. 22, March 4, 1992) Upon being asked, the victim
identified himself as Nelson (sic) Vergara. He was able to reduce into writing the
declaration of victim Vergara, and have the latter affixed (sic) his thumbmark with
the use of his own blood in the presence of Wagner Cardenas, the brother of the City
Mayor. (Exh. "C")
Interposing the defense of alibi, the accused corroborated (by) his witnesses, namely,
Felix Ponting, and Alfredo Gabucero, portrayed the following scenario: Felix
Ponting and Alfredo Gabucero were members of the CAFGU (Civilian Armed
Forces Geographical Unit) and accused as member of the Civilian Volunteer
Organization (CVO) with station at Barangay Lumapao, Canlaon City. On October
1, 1990, the accused together with his companion Felix Ponting were on duty at the
said station from 6:00 o'clock in the evening to 8:00 o'clock that same evening. After
their duty at 8:00 o'clock, they went to sleep at the detachment, and were relieved by
Alfredo Gabutero, whose duty covered from 8:00 to 9:00 that same evening. 10
Prosecution Witnesses Segundina Vergara, mother of the victim, and her son-in-law
Jose Lapera both desisted from further prosecution of the case; the former because of
the "financial help" extended by the accused to her family, and the latter because
Segundina had already "consented to the amicable settlement of the case." This
notwithstanding, the Department of Justice found the existence of a prima facie case
based on the victim's ante mortem statement. 11
The Trial Court's Ruling
The trial court deemed the victim's statement to Police Officer Mangubat, positively
identifying Appellant Amaca, a dying declaration sufficient to overcome the latter's
defense of alibi. However, due to the voluntary desistance of the victim's mother
from further prosecuting the case, the court a quo declined to make a finding on the
civil liability of the appellant.
The Issue
In his brief, the appellant filed a lone assignment of error, to wit:
The trial court erred in finding accused Edelciano Amaca guilty
beyond reasonable doubt of the crime of murder on the sole basis
of the alleged dying declaration of the victim to Police Officer
Bernardo Mangubat. 12
The Court's Ruling
The appeal is partially granted. The appellant is guilty only of homicide, not murder,
and civil indemnity shall not be awarded to the heirs of the deceased.
Dying Declaration
Sufficient to Identify Assailant
A dying declaration is worthy of belief because it is highly unthinkable for one who
is aware of his impending death to accuse, falsely or even carelessly, anyone of being
responsible for his foreseeable demise. Indeed, "when a person is at the point of
death, every motive for falsehood is silenced and the mind is induced by the most
powerful consideration to speak the
truth." 13 This is the rationale for this exception to the hearsay rule under Section 37,
Rule 130 of the Rules of Court. The elements of such exception are: (1) the deceased
made the declaration conscious of his impending death; (2) the declarant would have
been a competent witness had he survived; (3) the declaration concerns the cause and
surrounding circumstances of the declarant's death; (4) the declaration is offered in a
criminal case where the declarant's death is the subject of inquiry; and (5) the
declaration is complete in itself. 14 All these concur in the present case.
Declarant a Competent Witness
The appellant contends that had he survived, the declarant would not have been a
competent witness to identify his assailant. He emphasizes that
the victim was shot twice at the back at nighttime and that ". . . the witness/victim
based on the foregoing circumstance was not able to see the alleged assailants . .
. 15 We are not persuaded. True, the victim, Wilson Vergara, was hit at the back by
two bullets. But as the prosecution clearly showed by other evidence, Wilson did not
lose consciousness upon being shot. In fact, his ante mortem statement clearly
indicates that he was able to see and recognize who shot him. In this light, appellant
is assailing the credibility, not the competency, of the victim. Competency of a
witness to testify requires a minimum ability to observe, record, recollect and recount
as well as an understanding of the duty to tell the truth. 16 Appellant does not dispute
that the victim was capable of observing and recounting the occurrences around him;
appellant merely questions whether the victim, under the circumstances of this case,
could have seen his assailant. In effect, appellant challenges merely the credibility of
the victim's ante mortem statement. We hold that the serious nature of the victim's
injuries did not affect his credibility as a witness since said injuries, as previously
mentioned, did not cause the immediate loss of his ability to perceive and to identify
his shooter. The Court had occasion in the past to rule on a similar issue as follows:
. . . (') The question as to whether a certain act could have been
done after receiving a given wound,(') according to Wharton and
Stilles (Vol. III, Medical Jurisprudence, p. 212), "is always one
that must be decided upon the merits of a particular case." They
cited a case from Vibert's Precis de Med. Leg., 4th ed., p. 286,
where a man after being shot in the chest threw a lamp at his
adversary. The lamp started a fire; and to extinguish the fire, the
wounded man fetched a pail of water from the courtyard. When the
fire was extinguished, the man lay down in bed and died. Vibert
performed the autopsy, and found that the left ventricle of the heart
had been perforated by the revolver's bullet. It is evident from the
foregoing that Dr. Acosta's assertion that the victim of a gunshot
 wound would immediately lose consciousness, after infliction of
the wound, may not be true in all cases. . . . 17
Appellant also argues that the declarant could not have seen who shot him because
"the actual shooting occurred at 7:00 o'clock in the evening." 18 This statement is
bereft of factual basis. The record shows that Police Officer Mangubat was fetched
from his house at 7:00 p.m. to investigate the shooting. He was informed that the
victim had already been brought to the clinic of Dr. Cardenas. 19 It may thus be
inferred that the shooting occurred sometime before the victim was found, brought to
the clinic, and before Mangubat was fetched from his house. Thus, a considerable
period of time must have elapsed from the time of the actual shooting until the
policeman was fetched from his house around 7:00 p.m. That he was shot way before
7:00 p.m. does not lead to the inference that it was pitch-black at the time of the
shooting. Indeed, from the foregoing, it is reasonable to assume that the crime was
committed before nightfall and that there was sufficient daylight to enable the victim
to identify his assailant. At any rate, there are no indicia in the record that lighting
conditions made it impossible for declarant to identify his assailant. Ineluctably, the
positive assertion of the declarant that he did recognize his shooter has greater
persuasive value than the baseless negative speculation of the defense that he did not.
Genuineness of the Dying Declaration
The defense attempts to cast doubt on the genuineness of the dying declaration by
suggesting that since "the relationship between CAFGU and the PNP is marred by
jealousy, suspicion and general dislike for one another," 20Police Officer Mangubat
had enough motive to falsely implicate appellant who was a CAFGU member. The
defense also asks: "Why was the alleged dying declaration of the victim merely
thumbmark (sic) when in fact he was still coherent, conscious and very capable of
writing his name at that time?" 21 Additionally, the defense questions why Wagner
Cardenas who signed the ante mortem statement as witness was not presented as
such by the prosecution. 22
The foregoing ulterior-motive theory is thoroughly unconvincing. Clearly, it does not
destroy the genuineness of the ante mortem statement. Police Officer Mangubat is
presumed under the law to have regularly performed his duty. There is nothing in the
circumstances surrounding his investigation of the crime which shows any
semblance of irregularity or bias, much less an attempt to frame Appellant Amaca.
As aptly noted by the trial court, even appellant testified that he had no previous
misunderstanding with Police Officer Mangubat and knew no reason why the latter
would falsely testify against him. 23 This dismal failure of the defense to show any ill
motive on the part of said police officer adds credence to Mangubat's testimony. 24
Moreover, that the declarant attested to his ante mortem statement through his
thumbmark in his own blood is sufficient to sustain the genuineness and veracity
thereof. This manner of authentication is understandable in view of the necessity and
urgency required by the attendant extreme circumstances. It cannot be indicative of
any ulterior motive on the part of Police Officer Mangubat. We have clearly ruled
that an ante mortem statement may be authenticated through the declarant's
thumbmark imprinted which his own blood, and serve as evidence in the form of a
dying declaration in a criminal case involving his death. 25 Verily, such declaration
need not even be in writing and may be proven by testimony of witnesses who heard
it.
Finally, the non-presentation of Wagner Cardenas as witness during the trial is not
fatal, as his testimony would have been merely corroborative of Mangubat's. In
addition, the presumption that evidence omitted by a party would be adverse if
presented does not obtain in this case, since Wagner Cardenas is also available and
could have been called to the witness stand by accused-appellant. Besides, it is the
prosecutor's prerogative to choose his own witnesses to prove the People's cause. 26
Ante Mortem Statement as Res Gestae
The ante mortem statement may also be admitted in evidence when considered as
part of the res gestae, another recognized exception to the hearsay rule provided
specifically under Rule 130, Section 36 of the Rules of Court. The requisites for the
admissibility of statements as part of the res gestae are: (a) the statement is
spontaneous; (b) it is made immediately before, during or after a startling
occurrence; and (c) it relates to the circumstances of such occurrence. 27 These
requirements are obviously fulfilled in the present case where the statement, subject
of this discussion, was made immediately after the shooting incident and, more
important, the victim had no time to fabricate.
An ante mortem statement may be admitted in evidence as a dying declaration and as
part of the res gestae. This dual admissibility is not redundant and has the advantage
of ensuring the statement's appreciation by courts, particularly where the absence of
one or more elements in one of the said exceptions may be raised in issue. In this
manner, the identification of the culprit is assured. 28
Alibi Debunked
The defense also contests the trial court's finding that the
"alibi interposed by the accused miserably fall short of exculpation. (Decision, p.
7)" 29 Appellant insists that, since the dying declaration was unreliable and since
there was no positive identification aside from this declaration, the defense of alibi
gained strength. 30 There is no basis for this contention for, as previously discussed,
the ante mortem statement met all requirements for its admissibility either as a dying
declaration or as part of the res gestaeor both. 31 It must be remembered that alibi is
inherently weak and the facts in the case at hand show that it was not at all
impossible, considering the circumstances of time and place, for the accused-
appellant to have been present at the crime scene at the time of its
commission. 32 The military detachment at Barangay Lumapao, where appellant
allegedly slept, is a mere seven kilometers away from Barangay Mabigo, Purok
Liberty Hills where the crime was committed. In other words, the able-bodied
appellant was only an hour's walk and a short fifteen-minute tricycle ride from
the locus criminis. 33 As correctly argued by the trial court, "(i)t would not have been
impossible for the accused to be at Purok Liberty Hills, and shoot the victim, and
come back to his detachment in a matter of thirty (30) minutes, the time testified by
the defense witness Gabutero as to going to and coming back from these two places.
(TSN, p. 17, July 15, 1992)" 34 The alibi of appellant cannot overcome, therefore, the
very persuasive declaration of the victim. 35
Based on the foregoing discussion, the Court's conscience rests easy with the moral
certainty that indeed accused-appellant committed the crime charged. His pretense at
innocence is futile in view of the overwhelming evidence presented against him.
Even his flight — eluding the police for almost six months after the issue of the
warrant for his arrest — clearly bespeaks his
guilt. 36
Murder or Homicide?
Finally, the defense posits that the appellant may be held liable only for homicide
since treachery was not alleged in the Information, while evident premeditation and
nighttime, although duly alleged, were not satisfactorily proven. 37We agree. The
Information readily reveals that the killing was qualified only by evident
premeditation. The trial court however found that the killing was qualified by
treachery. Even assuming that this conclusion is supported by the evidence on
record, we cannot appreciate treachery to qualify the crime to murder for the simple
reason that this was not alleged in the Information. Treachery is an element of the
crime. The Constitution requires that the accused must be informed of the "nature
and cause of the accusation against him." 38 Obviously, this failure to allege
treachery in the Information is a major lapse of the prosecution. Since every doubt
must be resolved in favor of the accused, we cannot convict him of murder through
treachery under an Information that charged him with murder qualified by evident
premeditation.
Moreover, in this case, treachery and nighttime may not be considered even as
generic aggravating circumstances, because there is nothing in the testimony of the
prosecution witnesses to convincingly show that the accused-appellant consciously
and purposely adopted (1) such means of attack to render the victim defenseless and
(2) the darkness of night to facilitate the commission of the crime, to prevent its
discovery or even evade capture. This conclusion is further bolstered by the simple
fact that not one of the prosecution witnesses saw the commencement of the assault
or even the actual assault itself. Hence, they are not competent to testify on whether
the aggravating circumstances of treachery and nighttime attended the commission
thereof. These circumstances cannot be appreciated on the basis of mere
presumptions or suppositions; they must be proven as clearly as the crime itself. 39
Appellant may therefore be held liable only for the crime of homicide defined under
Article 249 of the Revised Penal Code. Since there are no mitigating or aggravating
circumstances, the penalty of reclusion temporal provided under said article shall be
imposed in its medium period . Applying the Indeterminate Sentence Law, appellant
should suffer imprisonment of prision mayor in its medium period to reclusion
temporal, also in its medium period.
Non-Award of Indemnity
The trial court did not make a finding on the civil liability of accused-appellant,
reasoning that it was prevented from doing so by the "unwillingness" of the victim's
mother, Segundina Vergara, to further prosecute the case against the accused. 40 The
trial court cited the resolution of the Department of Justice (DOJ) denying the motion
for reinvestigation. The DOJ held that the ante mortem statement of the victim
testified to by Pfc. Mangubat accordedprima facie validity to the case against the
accused, but it noted and confirmed the desistance of the victim's mother and her
son-in-law from further prosecuting the case. The salient portions of Segundina
Vergara's affidavit of desistance quoted in said resolution reads:
That I am the complainant in a case which I filed in the Office of
the City Prosecutor, Canlaon City and docketed as Criminal Case
No. 550-C of Regional Trial Court, Bais City for Murder against
Eddie Amaca as the alleged accused;
That in the evaluation of our case against him, I have found out
that the death of my son Wilson Vergara was purely accidental that
could be attributed to his fault;
That due to my compassion to the poor accused who is a family
man, I have decided to drop the case against Eddie Amaca for the
reason that his family financially help (sic) us in our family
problems due to the death of my late son;
That with our desire to have a mutual understanding and goodwill
among ourselves, since we are neighbors and our respective
families are good friends, I have decided to drop the case against
Eddie Amaca;
That when the said case was scheduled for hearing, I will not
testify anymore as the complaining witness; 41
The Solicitor General finds nothing wrong with the trial court's reasoning and
recommends that its decision be affirmed. 42 We agree. The facts of this case show
that the victim's mother desisted from prosecuting the case in consideration of the
"financial help" extended to her family by the accused-appellant. Such "financial
help" when viewed as an offer of compromise may also be deemed as additional
proof to demonstrate appellant's criminal
liability. 43 Parenthetically, her claim that the cause of her son's death was an
accident attributable to the latter, has no basis. It is inconceivable that the victim's
two gunshot wounds at the back were self-inflicted. Well-settled it is that the
desistance of the victim's complaining mother does not bar the People from
prosecuting the criminal action, but it does operate as a waiver of the right to pursue
civil indemnity. Hence, in effectively waiving her right to institute an action to
enforce the civil liability of accused-appellant, she also waived her right to be
awarded any civil indemnity arising from the criminal prosecution. 44 This waiver is
bolstered by the fact that neither she nor any private prosecutor in her behalf
appealed the trial court's refusal to include a finding of civil
liability. 45

The records, however, do not show whether the deceased had other compulsory
heirs. Such heirs, if there are any, may file an independent civil action to recover
damages for the death of Wilson Vergara.

WHEREFORE, premises considered, the questioned Decision is hereby MODIFIED.

Accused-appellant Edelciano Amaca is found GUILTY of homicide and
SENTENCED to an indeterminate penalty of ten years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum. No civil indemnity is awarded. No costs.

SO ORDERED.