G.R. No.

125901

March 8, 2001 TIJING, petitioners, and ANGELITA

EDGARDO A. TIJING and BIENVENIDA R vs. COURT OF APPEALS (Seventh Division) DIAMANTE, respondents. QUISUMBING, J.:

Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.1 She avers that Angelita refused to return to her the boy despite her demand to do so. Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical records.2 The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private part against the edge of a banca causing him excruciating pain and eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.3 For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez.4 She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989. On March 10, 1995, the trial court concluded that since Angelita and her commonlaw husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.5 The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed: WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof. Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the

For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners. Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila. According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry. When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelita's house in Tondo, Manila, but did not find them there. Angelita's maid told Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned to Angelita's house after three days, only to discover that Angelita had moved to another place. Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance. Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts. Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan.

recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez. SO ORDERED.6 Angelita seasonably filed her notice of appeal.7 Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.8 On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,9 and disposed of the case, thus: IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein. SO ORDERED.10 Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging: I THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS' ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN. II THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT

DISMISSING THE PETITION FOR "HABEAS CORPUS" AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.11 In our view, the crucial issues for resolution are the following: (1) Whether or not habeas corpus is the proper remedy? (2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners? We shall discuss the two issues together since they are closely related. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.12 Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.13 It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person. In this case, the minor's identity is crucial in determining the propriety of the writ sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minor's biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.14 Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor. True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.15 But since the conclusions of the Court of

Appeals contradict those of the trial court, this Court may scrutinize the evidence on the record to determine which findings should be preferred as more conformable to the evidentiary facts. A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr. First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted. Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring. Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth.16 Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a "common-law wife".17 This false entry puts to doubt the other data in said birth certificate. Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.18 Needless to stress, the trial court's conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned.

Fifth, Lourdes Vasquez testified that she assisted in Bienvenida's giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners. All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ ofhabeas corpus is proper to regain custody of said child. A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test19 for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.20 Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.21 Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.22 Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues. WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent. SO ORDERED.

[G.R. No. 131516. March 5, 2003]

p.m. Gloria then sent accused-appellant out on an errand and informed her husband about their daughters plaint. Buenafe thereupon talked to Cyra May who repeated what she had earlier told her mother Gloria. When accused-appellant returned, Buenafe and Gloria verified from him whether what Cyra May had told them was true. Ronnie readily admitted doing those things but only once, at 4:00 p.m. of November 17, 1995 or three days earlier. Unable to contain her anger, Gloria slapped accused-appellant several times. Since it was already midnight, the spouses waited until the following morning to bring accused-appellant to Camp Karingal where he admitted the imputations against him, on account of which he was detained. Glorias sworn statement[5] was then taken.[6] Recalling what accused-appellant did to her, Cyra May declared at the witness stand: Sinaksak nya ang titi sa pepe ko, sa puwit ko, at sa bunganga , thus causing her pain and drawing her to cry. She added that accused-appellant did these to her twice in his bedroom. Dr. Ma. Cristina V. Preyra, the Medico-Legal Officer and Chief of the Biological Science Branch of the Philippine National Police Crime Laboratory who examined Crya May, came up with her report dated November 21, 1995,[7] containing the following findings and conclusions: FINDINGS: GENERAL AND EXTRA GENITAL: Fairly developed, fairly nourished and coherent female child subject. Breasts are undeveloped. Abdomen is flat and soft. GENITAL: There is absence of pubic hair. Labia majora are full, convex and coaptated with congested and abraded labia minora presenting in between. On separating the same is disclosed an abraded posterior fourchette and an elastic, fleshy type intact hymen. External vaginal orifice does not admit the tip of the examining index finger. xxx CONCLUSION:

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE RULLEPA y GUINTO, accused-appellant.

DECISION CARPIO-MORALES, J.: On complaint of Cyra May Francisco Buenafe, accused-appellant Ronnie Rullepa y Guinto was charged with Rape before the Regional Trial Court (RTC) of Quezon City allegedly committed as follows: That on or about the 17th day of November, 1995, in Quezon City, Philippines, the said accused, by means of force and intimidation, to wit: by then and there willfully, unlawfully and feloniously removing her panty, kissing her lips and vagina and thereafter rubbing his penis and inserting the same to the inner portion of the vagina of the undersigned complainant, 3 years of age, a minor, against her will and without her consent.[1] Arraigned on January 15, 1996, accused-appellant pleaded not guilty.[2] From the testimonies of its witnesses, namely Cyra May,[3] her mother Gloria Francisco Buenafe, Dr. Cristina V. Preyra, and SPO4 Catherine Borda, the prosecution established the following facts: On November 20, 1995, as Gloria was about to set the table for dinner at her house in Quezon City, Cyra May, then only three and a half years old, told her, Mama, si kuya Ronnie lagay niya titi niya at sinaksak sa puwit at sa bibig ko . Kuya Ronnie is accused-appellant Ronnie Rullepa, the Buenafes house boy, who was sometimes left with Cyra May at home. Gloria asked Cyra May how many times accused-appellant did those things to her, to which she answered many times. Pursuing, Gloria asked Cyra May what else he did to her, and Cyra May indicated the room where accused-appellant slept and pointed at his pillow. As on the night of November 20, 1995 accused-appellant was out with Glorias husband Col. Buenafe,[4] she waited until their arrival at past 11:00

Subject is in virgin state physically. There are no external signs of recent application of any form of trauma at the time of examination. (Emphasis supplied.) By Dr. Preyras explanation, the abrasions on the labia minora could have been caused by friction with an object, perhaps an erect penis. She doubted if riding on a bicycle had caused the injuries.[8] The defenses sole witness was accused-appellant, who was 28 and single at the time he took the witness stand on June 9, 1997. He denied having anything to do with the abrasions found in Cyra Mays genitalia, and claimed that prior to the alleged incident, he used to be ordered to buy medicine for Cyra May who had difficulty urinating. He further alleged that after he refused to answer Glorias queries if her husband Buenafe, whom he usually accompanied whenever he went out of the house, was womanizing, Gloria would always find fault in him. He suggested that Gloria was behind the filing of the complaint. Thus: q- According to them you caused the abrasions found in her genital? aThat is not true, sir.

WHEREFORE, judgment is hereby rendered finding accused RONNIE RULLEPA y GUINTO guilty beyond reasonable doubt of rape, and he is accordingly sentenced to death. The accused is ordered to pay CYRA MAE BUENAFE the amount of P40,000.00 as civil indemnity. Costs to be paid by the accused.[10] (Italics in the original.) Hence, this automatic review, accused-appellant assigning the following errors to the trial court: I THE COURT A QUO ERRED IN CONSIDERING AS ADMISSIBLE IN EVIDENCE THE ACCUSED-APPELLANTS ADMISSION. II THE COURT A QUO ERRED ON (sic) RULING THAT THE ACCUSEDAPPELLANTS SILENCE DURING TRIAL AMOUNTED TO AN IMPLIED ADMISSION OF GUILT. III THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT. IV THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON THE ACCUSED-APPELLANT.[11] (Emphasis supplied.) Accused-appellant assails the crediting by the trial court, as the following portion of its decision shows, of his admission to Gloria of having sexually assaulted Cyra May: In addition, the mother asserted that Rullepa had admitted Cyra Ma[y]s complaint during the confrontation in the house. Indeed, according to the mother, the

q- If that is not true, what is the truth? aAs I have mentioned earlier that before I started working with the family I was sent to Crame to buy medicine for the daughter because she had difficulty in urinating.

q- Did you know why the child has difficulty in urinating? aNo, I do not know, sir.

q- And how about the present complaint filed against you, the complaint filed by the mother of the victim? aI did not do it, sir.

q- What is the truth, what can you say about this present complaint filed against you? aAs I said Mrs. Buenafe got mad at me because after I explained to her that I was going with her gusband (sic) to the children of the husband with a former marriage.[9]

Finding for the prosecution, Branch 96 of the Quezon City RTC rendered judgment, the dispositive portion of which reads:

admission was even expressly qualified by Rullepas insistence that he had committed the sexual assault only once, specifying the time thereof as 4:00 pm of November 17, 1995. That qualification proved that the admission was voluntary and true. An uncoerced and truthful admission like this should be absolutely admissible and competent. xxx Remarkably, the admission was not denied by the accused during trial despite his freedom to deny it if untrue. Hence, the admission became conclusive upon him.[12] (Emphasis supplied.) To accused-appellant, the statements attributed to him are inadmissible since they were made out of fear, having been elicited only after Cyra Mays parents bullied and questioned him. He thus submits that it was error for the trial court to take his failure to deny the statements during the trial as an admission of guilt. Accused-appellants submission does not persuade. The trial court considered his admission merely as an additional ground to convince itself of his culpability. Even if such admission, as well as the implication of his failure to deny the same, were disregarded, the evidence suffices to establish his guilt beyond reasonable doubt. The plain, matter-of-fact manner by which Cyra May described her abuse in the hands of her Kuya Ronnie is an eloquent testament to the truth of her accusations. Thus she testified on direct examination: q- Do you recall if Ronnie Rullepa did anything to you? aYes, sir.

a-

When my mother was asleep, he put he removed my panty and inserted his penis inside my vagina, my anus and my mouth, sir.

xxx qaqaqaAfter your Kuya Ronnie did those things to you what did you feel? Sabi nya ganito (Witness putting her finger in her lips) Nasaktan po ako at umiyak po ako. Did you cry because of hurt? Yes. What part of your body hurt? Pepe ko po. When I went to the bathroom to urinate, I felt pain in my organ, sir.[13]

Cyra May reiterated her testimony during cross-examination, providing more revolting details of her ordeal: qaSo, you said that Kuya Ronnie did something to you what did he do to you on November 17, 1995? Sinaksak nga yong titi nya. He inserted his penis to my organ and to my mouth, sir.

xxx qWhen you said that your kuya Ronnie inserted his penis into your organ, into your mouth, and into your anus, would you describe what his penis? It is a round object, sir.

q- What did he do to you? aSinaksak nya ang titi sa pepe ko, sa puwit ko, at sa bunganga

a-

C o u r t: Is this titi of your kuya Ronnie a part of his body? aqaqOpo. Was that in the head of kuya Ronnie? No, sir. Which part of his body that titi located?

q- How many times did he do that to you? aTwice, sir.

xxx q- Do you remember when he did these things to you? aOpo.

q- When was that?

(Witness pointing to her groin area) C o u r t:

Continue xxx q- Why were you in that room? aGusto nya po matulog ako sa kuwarto niya.

qaqaqa-

Is it not a fact that you said a while ago that when your father leaves the house, he [was] usually accompanied by your kuya Ronnie? Opo. Why is it that Kuya Ronnie was in the house when you father left the house at that time, on November 17? He was with Kuya Ronnie, sir. So, it is not correct that kuya Ronnie did something to you because your kuya Ronnie [was] always with your Papa? Yes, sir.[15]

q- When you were in that room, what did Kuya Ronnie do to you? aHinubo po niya ang panty ko.

q- And after he remove your panty, what did Kuya Ronnie do, what did he do to you? aHe inserted his penis to my organ, sir.

q- Why did kuya Ronnie, was kuya Ronnie already naked or he was already wearing any clothing? aStill had his clothing on, sir.

The above-quoted testimony of Cyra May does not indicate the time when her father Col. Buenafe left their house on November 17, 1995 with accused-appellant and, thus, does not preclude accused-appellants commission of rape on the same date. In any event, a young child is vulnerable to suggestion, hence, her affirmative response to the defense counsels above-quoted leadingquestions. As for the variance in the claim regarding when Gloria was informed of the rape, Gloria having testified that she learned of it on November 20, 1995[16] while Cyra May said that immediately after the incident, she awakened her mother who was in the adjacent room and reported it:[17] This is a minor matter that does not detract from Cyra Mays categorical, material testimony that accused -appellant inserted his penis into her vagina. Accused-appellant goes on to contend that Cyra May was coached, citing the following portion of her testimony: qaYong sinabi mong sinira nya ang buhay mo, where did you get that phrase? It was the word of my Mama, sir.[18]

q- So, where did his penis, saan lumabas ang penis ni Kuya Ronnie? aDito po, (Witness referring or pointing to her groin area)

xxx q- So, thats the and at the time, you did not cry and you did not shout for help? aSabi nya po, not to make any noise because my mother might be roused from sleep.

q- How long was kuya Ronnie did that to you? aMatagal po.

q- After kuya Ronnie scrub his penis to your vagina, what other things did he do? aAfter that he inserted his penis to my mouth, and to my anus, sir.

On the contrary, the foregoing testimony indicates that Cyra May was really narrating the truth, that of hearing her mother utter sinira niya ang buhay mo. Accused-appellants suggestion that Cyra May merely imagined the things of which he is accused, perhaps getting the idea from television programs, is preposterous. It is true that the ordinary child is a great weaver of romances, and her imagination may induce (her) to relate something she has heard or read in a story as personal experience.[19] But Cyra Mays account is hardly the stuff of romance or fairy tales. Neither is it normal TV fare, if at all. This Court cannot believe that a victim of Cyra Mays age could concoct a tale of defloration, allow the examination of her private parts, and undergo the expense, trouble, inconvenience, not to mention the trauma of public trial.[20]

q- You did not complain and you did not shout? aI cried, sir.[14]

Accused-appellant draws attention to the statement of Cyra May that he was not in the house on November 17 (1995), as reflected in the following transcript of her testimony:

Besides, her testimony is corroborated by the findings of Dr. Preyra that there were abrasions in her labia minora, which she opined, could have been caused by friction with an erect penis. This Court thus accords great weight to the following assessment of the trial court regarding the competency and credibility of Cyra May as a witness: Her very tender age notwithstanding, Cyra Ma(y) nonetheless appeared to possess the necessary intelligence and perceptiveness sufficient to invest her with the competence to testify about her experience. She might have been an impressionable child as all others of her age are but her narration of Kuya Ronnies placing his titi in her pepe was certainly one which could not be considered as a common childs tale. Her responses during the examination of counsel and of the Court established her consciousness of the distinction between good and bad, which rendered inconceivable for her to describe a bad act of the accused unless it really happened to her. Needless to state, she described the act of the accused as bad. Her demeanor as a witness manifested during trial by her unhesitant, spontaneous, and plain responses to questions further enhanced her claim to credit and trustworthiness.[21] (Italics in the original.) In a futile attempt at exculpation, accused-appellant claims that even before the alleged incident Cyra May was already suffering from pain in urinating. He surmises that she could have scratched herself which caused the abrasions. Dr. Preyra, however, was quick to rule out this possibility. She stated categorically that that part of the female organ is very sensitive and rubbing or scratching it is painful.[22] The abrasions could not, therefore, have been self-inflicted. That the Medical-Legal Officer found no external signs of recent application of any form of trauma at the time of the examination does not preclude accused appellants conviction since the infliction of force is immaterial in statutory rape.[23] More. That Cyra May suffered pain in her vagina but not in her anus despite her testimony that accused-appellant inserted his penis in both orifices does not diminish her credibility. It is possible that accused-appellants penis failed to penetrate her anus as deeply as it did her vagina, the former being more resistant to extreme forces than the latter. Accused-appellants imputation of ill motive on the part of Gloria is puerile. No mother in her right mind would subject her child to the humiliation, disgrace and trauma attendant to a prosecution for rape if she were not motivated solely by the desire to incarcerate the person responsible for the childs defilement.[24] Courts are seldom, if at all, convinced that a mother would stoop so low as to subject her daughter to physical hardship and shame concomitant to a rape prosecution just to assuage her own hurt feelings.[25]

Alternatively, accused-appellant prays that he be held liable for acts of lasciviousness instead of rape, apparently on the basis of the following testimony of Cyra May, quoted verbatim, that he merely scrubbed his penis against her vagina: qaqaIs it not a fact that kuya Ronnie just made some scrubbed his penis into your vagina? Yes, sir. And when he did not actually penetrated your vagina? Yes, sir.[26]

Dr. Preya, however, found abrasions in the labia minora, which is directly beneath the labia majora,[27] proving that there was indeed penetration of the vagina, not just a mere rubbing or scrubbing of the penis against its surface. In fine, the crime committed by accused-appellant is not merely acts of lasciviousness but statutory rape. The two elements of statutory rape are (1) that the accused had carnal knowledge of a woman, and (2) that the woman is below twelve years of age.[28] As shown in the previous discussion, the first element, carnal knowledge, had been established beyond reasonable doubt. The same is true with respect to the second element. The victims age is relevant in rape cases since it may constitute an element of the offense. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,[29] provides: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: x x x. 3. When the woman is under twelve years of age x x x. x x x. The crime of rape shall be punished by reclusion perpetua. x x x. Furthermore, the victims age may constitute a qualifying circumstance, warranting the imposition of the death sentence. The same Article states:

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity with the third civil degree, or the common-law spouse of the parent of the victim. x x x. 4. when the victim is x x x a child below seven (7) years old. x x x. Because of the seemingly conflicting decisions regarding the sufficiency of evidence of the victims age in rape cases, this Court, in the recently decided case of People v. Pruna,[30]established a set of guidelines in appreciating age as an element of the crime or as a qualifying circumstance, to wit: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim. Applying the foregoing guidelines, this Court in the Pruna case held that the therein accused-appellant could only be sentenced to suffer the penalty of reclusion perpetua since: x x x no birth certificate or any similar authentic document, such as a baptismal certificate of LIZETTE, was presented to prove her age. x x x. x x x. However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was presented to establish LIZETTEs age. Her mother, Jacqueline, testified (that the victim was three years old at the time of the commission of the crime). xxx Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5 years old. However, when the defense counsel asked her how old she was on 3 January 1995, or at the time of the rape, she replied that she was 5 years old. Upon further question as to the date she was born, she could not answer. For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must be established with certainty that LIZETTE was below 7 years old at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.

In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence in order that the qualifying circumstance of below seven (7) years old is appreciated against the appellant. The lack of objection on the part of the defense as to her age did not excuse the prosecution from discharging its burden. That the defense invoked LIZETTEs tender age for purposes of questioning her competency to testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot be imposed on him. However, conformably with no. 3 (b) of the foregoing guidelines, the testimony of LIZETTEs mother that she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the penalty to be imposed on PRUNA should be reclusion perpetua, and not death penalty. (Italics in the original.) Several cases[31] suggest that courts may take judicial notice of the appearance of the victim in determining her age. For example, the Court, in People v. Tipay,[32] qualified the ruling inPeople v. Javier,[33] which required the presentation of the birth certificate to prove the rape victims age, with the following pronouncement: This does not mean, however, that the presentation of the certificate of birth is at all times necessary to prove minority. The minority of a victim of tender age who may be below the age of ten is quite manifest and the court can take judicial notice thereof. The crucial years pertain to the ages of fifteen to seventeen where minority may seem to be dubitable due to ones physical appearance. In this situation, the prosecution has the burden of proving with certainty the fact that the victim was under 18 years of age when the rape was committed in order to justify the imposition of the death penalty under the above-cited provision. (Emphasis supplied.) On the other hand, a handful of cases[34] holds that courts, without the requisite hearing prescribed by Section 3, Rule 129 of the Rules of Court, [35] cannot take judicial notice of the victims age. Judicial notice signifies that there are certain facta probanda, or propositions in a partys case, as to which he will not be required to offer evidence; these will be taken for true by the tribunal without the need of evidence. [36] Judicial notice, however, is a phrase sometimes used in a loose way to cover some other

judicial action. Certain rules of Evidence, usually known under other names, are frequently referred to in terms of judicial notice.[37] The process by which the trier of facts judges a persons age from his or her appearance cannot be categorized as judicial notice. Judicial notice is based upon convenience and expediency for it would certainly be superfluous, inconvenient, and expensive both to parties and the court to require proof, in the ordinary way, of facts which are already known to courts.[38] As Tundag puts it, it is the cognizance of certain facts which judges may properly take and act on without proof because they already know them. Rule 129 of the Rules of Court, where the provisions governing judicial notice are found, is entitled What Need Not Be Proved. When the trier of facts observes the appearance of a person to ascertain his or her age, he is not taking judicial notice of such fact; rather, he is conducting an examination of the evidence, the evidence being the appearance of the person. Such a process militates against the very concept of judicial notice, the object of which is to do away with the presentation of evidence. This is not to say that the process is not sanctioned by the Rules of Court; on the contrary, it does. A persons appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. Section 1, Rule 130 provides: SECTION 1. Object as evidence. Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. To be sure, one author writes, this practice of inspection by the court of objects, things or persons relevant to the fact in dispute, has its roots in ancient judicial procedure.[39] The author proceeds to quote from another authority: Nothing is older or commoner in the administration of law in all countries than the submission to the senses of the tribunal itself, whether judge or jury, of objects which furnish evidence. The view of the land by the jury, in real actions, of a wound by the judge where mayhem was alleged, and of the person of one alleged to be an infant, in order to fix his age, the inspection and comparison of seals, the examination of writings, to determine whether they are ()blemished,() the implements with which a crime was committed or of a person alleged, in a bastardy proceeding, to be the child of another, are few illustrations of what may be found abundantly in our own legal records and textbooks for seven centuries past.[40] (Emphasis supplied.) A persons appearance, as evidence of age (for example, of infancy, or of being under the age of consent to intercourse), is usually regarded as relevant; and, if so, the tribunal may properly observe the person brought before

10

it.[41] Experience teaches that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular, the outward physical appearance of an alleged minor may be considered in judging his age; a contrary rule would for such an inference be pedantically over-cautious.[42] Consequently, the jury or the court trying an issue of fact may be allowed to judge the age of persons in court by observation of such persons.[43] The formal offer of the person as evidence is not necessary. The examination and cross-examination of a party before the jury are equivalent to exhibiting him before the jury and an offer of such person as an exhibit is properly refused. [44] This Court itself has sanctioned the determination of an aliens age from his appearance. In Braca v. Collector of Customs,[45] this Court ruled that: The customs authorities may also determine from the personal appearance of the immigrant what his age is. The person of a Chinese alien seeking admission into the Philippine Islands is evidence in an investigation by the board of special inquiry to determine his right to enter; and such body may take into consideration his appearance to determine or assist in determining his age and a finding that the applicant is not a minor based upon such appearance is not without evidence to support it. This Court has also implicitly recognized the same process in a criminal case. Thus, in United States v. Agadas,[46] this Court held: Rosario Sabacahan testified that he was 17 years of age; that he had never purchased a cedula; and that he was going to purchase a cedula the following january. Thereupon the court asked this defendant these questions: You are a pretty big boy for seventeen. Answer: I cannot tell exactly because I do not remember when I was born, but 17 years is my guess. Court: If you are going to take advantage of that excuse, you had better get some positive evidence to that effect. Answer: I do not remember, as I already stated on what date and in what year I was born. The court, in determining the question of the age of the defendant, Rosario Sabacahan, said: The defendant, Rosario Sabacahan, testified that he tho ught that he was about 17 years of age, but judging by his appearance he is a youth 18 or 19 years old. He has shown that he has no positive information on the subject and no effort was made by the defense to prove the fact that he is entitled to the mitigating circumstance of article 9, paragraph 2, of the Penal code, which fact it is held to be incumbent upon the defense to establish by satisfactory evidence in order to enable the court to give an accused person the benefit of the mitigating circumstance.

In United States vs. Estavillo and Perez (10 Off. Gaz., 1984) Estavillo testified, when the case was tried in the court below, that he then was only 16 years of age. There was no other testimony in the record with reference to his age. But the trial judge said: The accused Estavillo, notwithstanding his testimony giving his age as 16 years, is, as a matter of fact, not less than 20. This court, in passing upon the age of Estavillo, held: We presume that the trial court reached this conclusion with reference to the age of Estavillo from the latters personal appearance. There is no proof in the record, as we have said, which even tends to establish the assertion that this appellant understated his age. * * * It is true that the trial court had an opportunity to note the personal appearance of Estavillo for the purpose of determining his age, and by so doing reached the conclusion that he was at least 20, just two years over 18. This appellant testified that he was only 16, and this testimony stands uncontradicted. Taking into consideration the marked difference in the penalties to be imposed upon that age, we must, therefore, conclude (resolving all doubts in favor of the appellants) that the appellants ages were 16 and 14 respectively. While it is true that in the instant case Rosario testified that he was 17 years of age, yet the trial court reached the conclusion, judging from the personal appearance of Rosario, that he is a youth 18 or 19 years old. Applying the rule enunciated in the case just cited, we must conclude that there exists a reasonable doubt, at least, with reference to the question whether Rosario was, in fact 18 years of age at the time the robbery was committed. This doubt must be resolved in favor of the defendant, and he is, therefore, sentenced to six months of arresto mayor in lieu of six years ten months and one day of presidio mayor. x x x. There can be no question, therefore, as to the admissibility of a persons appearance in determining his or her age. As to the weight to accord such appearance, especially in rape cases,Pruna laid down guideline no. 3, which is again reproduced hereunder: 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

11

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. Under the above guideline, the testimony of a relative with respect to the age of the victim is sufficient to constitute proof beyond reasonable doubt in cases (a), (b) and (c) above. In such cases, the disparity between the allegation and the proof of age is so great that the court can easily determine from the appearance of the victim the veracity of the testimony. The appearance corroborates the relatives testimony. As the alleged age approaches the age sought to be proved, the persons appearance, as object evidence of her age, loses probative value. Doubt as to her true age becomes greater and, following Agadas, supra, such doubt must be resolved in favor of the accused. This is because in the era of modernism and rapid growth, the victims mere physical appearance is not enough to gauge her exact age. For the extreme penalty of death to be upheld, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime must be substantiated. Verily, the minority of the victim should be not only alleged but likewise proved with equal certainty and clearness as the crime itself. Be it remembered that the proof of the victims age in the present case spells the difference between life and death. [47] In the present case, the prosecution did not offer the victims certificate of live birth or similar authentic documents in evidence. The victim and her mother, however, testified that she was only three years old at the time of the rape. Cyra Mays testimony goes: q- Your name is Cyra Mae is that correct? aYes, sir.

In Manila, May 10, 1992.[49]

Because of the vast disparity between the alleged age (three years old) and the age sought to be proved (below twelve years), the trial court would have had no difficulty ascertaining the victims age from her appearance. No reasonable doubt, therefore, exists that the second element of statutory rape, i.e., that the victim was below twelve years of age at the time of the commission of the offense, is present. Whether the victim was below seven years old, however, is another matter. Here, reasonable doubt exists. A mature three and a half-year old can easily be mistaken for an underdeveloped seven-year old. The appearance of the victim, as object evidence, cannot be accorded much weight and, following Pruna, the testimony of the mother is, by itself, insufficient. As it has not been established with moral certainty that Cyra May was below seven years old at the time of the commission of the offense, accused-appellant cannot be sentenced to suffer the death penalty. Only the penalty of reclusion perpetua can be imposed upon him. In line with settled jurisprudence, the civil indemnity awarded by the trial court is increased to P50,000.00. In addition, Cyra May is entitled to an award of moral damages in the amount ofP50,000.00.[50] WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 96, is AFFIRMED with MODIFICATION. Accused-appellant Ronnie Rullepa y Guinto is found GUILTY of Statutory Rape, defined and punished by Article 335 (3) of the Revised Penal Code, as amended, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay private complainant, Cyra May Buenafe y Francisco, the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages. SO ORDERED.

q- And you are 3 years old? aYes, sir.[48]

That of her mother goes: Q A Q How old was your daughter when there things happened? 3 and years old. When was she born?

12

[G.R. No. 121979. March 2, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAMUEL ULZORON, accused-appellant. DECISION BELLOSILLO, J.: Roberto followed the direction of Emilys voice until he saw her emerge from the thick bushes. She was in a state of shock. He asked her what happened and she told him that she was sexually abused by Samuel Ulzoron. Emily pointed Roberto to the place where she was dragged and raped. Together when they went there and found Ulzorons bolo and work shirt and took them home. [5] At this moment, Emily heard her husbands voice calling for her. Roberto was now somewhere within the vicino. He saw Emilys slippers near the well so he frantically hollered, Baby! She answered back. When Robertos voice was heard by Samuel, he dashed off and fled to the thickets. [4]

SAMUEL ULZORON was charged with rape with the use of a deadly weapon. Complaining witness was Emily Gabo. On 8 March 1995 the trial court adjudged him guilty as charged and sentenced him to reclusion perpetua. [1] No indemnity was awarded to Emily for the sexual assault.

On 31 March 1987, at around 10:00 oclock in the morning, Emily was watering her plants near a well in Brgy. Tumarbong, Roxas, Palawan, when Samuel suddenly appeared. He was armed with a 2-foot long bolo hanging in its scabbard around his waist with a long-sleeved work shirt slung over his shoulder. He asked Emily where her husband was. She replied that Roberto was already in the kaingin so she advised him to follow her husband there. But Samuel opted to remain and rest on an anthill some two and a half (2 ) meters from the well. [2]

The following afternoon, Emily went to Dr. Feliciano M. Velasco Jr. for physical examination. The doctor noted the discharge mixed with semen in her private part. He opined that it could have been caused by sexual intercourse within twenty-four (24) hours prior to his examination. He found her cervix to be parous with superficial erosions. Her hymen was obliterated with caruncles.6 The next day Emily lodged a complaint for rape against Samuel Ulzoron as she turned over his belongings to the police authorities as her evidence in support thereof. 7

After Emily finished watering her plants and before she could start washing clothes, Samuel grabbed her wrists and locked them with one hand behind her back with the other drawing his bolo and pointing it at her neck. She struggled to free herself from his hold but was so intimidated with the bolo that she could not shout for help; she lost her strength eventually. After she weakened, he dragged her some forty (40) meters away to the bushes and tall grasses. He forced her to lie down; then he mounted her. He laid his bolo beside him, pinned her arms with one hand, and with the other, loosened the buttons of her dress. Emily could only struggle in vain until he ripped off her dress and panties. He opened the zipper of his pants and then inserted his penis to her vagina. He copulated with her for about fifteen (15) minutes. She did everything to disengage herself from the sexual imbroglio but her efforts proved no match to his strength. [3]

Ulzoron had his own story to tell. He said that on the day of the incident he saw Emily at the well. She told him that work in the kaingin would be in the afternoon yet so she advised him to come back. Since he was returning in the afternoon, he decided to leave his bolo and work shirt near the well. However, at around 10:00 oclock that morning, as he was about to retrieve his bolo and shirt, he saw the Gabo spouses having sexual intercourse in a hut with a wall only on one side. As he was ashamed to be seen by them he proceeded instead to the house of a relative. 8

On the strength of the testimony of Emily Gabo, the trial court convicted the accused. It found her testimony straightforward and credible. It rationalized that she would not have filed her complaint for rape if her accusations were not true, for to

13

do so would only expose herself to public shame or ridicule. No improper motive on her part to file the case had been shown. The findings of the examining physician also lent credence to her claim. On the other hand, the trial court found the defense of the accused too weak, anemic, for if Ulzoron really felt embarrassed to be seen by the Gabo spouses, he could have taken a detour or passed another way to get back his bolo and work shirt. Besides, it was never established that the Gabos had so much yearning for each other that they had to indulge in sexual congress in a hut that was open to public view and at such an unlikely hour. 9

in disputing the appreciation by the trial court of the evidence for the prosecution. Thus, this course taken by the defense may not be totally disregarded.

Appellant concedes, even as he assails his conviction, that his defense is inherently weak. Nevertheless, he faults the trial court for convicting him on the basis of his defense. He argues that the undisputed facts and circumstances made it more likely that Emily was involved in an adulterous relationship with him.10 He claims, for instance, that there was absolutely nothing to support the victims claim of struggle, and that while he allegedly dragged her forty (40) meters away before assaulting her sexually, the examining physician could not conclude that physical force was actually inflicted since she did not sustain any physical injuries.11 Another point raised by the defense in her testimony that while he was on top of her his bolo was beside him. The plain import of such testimony, according to the accused, is that the bolo was not a necessary instrument in the commission of the crime.12 He also invites attention to the circumstance that the judge who wrote the decision did not personally try the case and therefore lacked the opportunity to observe the demeanor of the parties and their witnesses.13

The term dragged should not indeed be taken in the meaning understood by appellant as dragged along on the ground. When asked on cross-examination by the defense counsel to describe how she and appellant tr avelled at (sic) forty (40) meters distance,15 she said, He was holding my hands and at the same time he is (sic) pushing me forward.16 This testimony adequately explains the absence of injuries in her body. At any rate, it is not necessary for the commission of rape that there be marks of physical violence on the victims body.17 While Emily repeatedly mentioned her struggles to be released from his grasp, such efforts need not always result in physical injuries.18 Besides, they did not refer to the circumstances when she was being dragged by the accused, but to the circumstances when he initially grabbed her hands,19 when he was on top of her,20 when he was undressing her,21 and when she was exerting efforts to disengage herself from the sexual anchorage.22

Intimidation may be of the moral kind, e.g., the fear caused by threatening a woman with a knife.23 There was sufficient intimidation when appellant pointed his 2-foot long bolo at Emilys neck while they were near the well until they reached the spot where she was finally abused. This intimidation continued even after he positioned himself on top of her and placed the bolo beside him since he was at liberty to point it anew at her neck or any part of her body. Anyway, the significant consideration is that, as aforementioned, the intimidation was continuous as to sufficiently engender fear in her mind.24

The arguments of appellants are unpersuasive ; they fail to convince us. Contrary to his claim that he was convicted because of his weak defense, his conviction was actually founded on the overwhelming evidence of the prosecution. With regard to his claim that he had an adulterous relationship with the victim, the Office of the Solicitor General observed that such claim was a radical departure from the defense of denial he raised at the trial. The OSG observed further that the sweetheart defense was being raised for the first time in this appeal hence should be disallowed conformably with established jurisprudence.14 Here, the Court does not necessarily agree. Appellant could only be emphasizing the point that the facts and circumstances established could lead to a conclusion of the existence of adulterous relationship between him and Emily and not of rape. In other words, appellant could be utilizing the sweetheart theory not necessarily as a defense but as a focal point

The circumstance that the judge who wrote the decision had not heard the testimonies of the prosecution witnesses does not taint or disturb his decision. After all, he had the records of the case before him including the transcript of stenographic notes. The validity of a decision is not necessarily impaired by the fact that its writer only took over from a colleague who had earlier presided at the trial unless there is a clear showing of grave abuse of discretion in the appreciation of the facts,25 and none exists in the present case. The records amply support the factual findings of the trial court and its assessment of the credibility of the witnesses.

14

The circumstances of force and intimidation attending the instant case were manifested clearly not only in the victims testimony but also in the physical evidence presented during the trial consisting of her torn dress and underwear as well as the medico-legal report. Such pieces of evidence indeed are more eloquent than a hundred witnesses.26 The fact of carnal knowledge is not disputed. It was positively established through the offended partys own testimony and corroborated by that of her examining physician.

Moreover, the conduct of the complaining witness immediately following the assault clearly established the truth of her charge that she was raped by accusedappellant.27 Consequently, we agree with the observation of the OSG that Emilys actuations following her misfortune, namely, her revelation to her husband of her violation by the accused and subjecting her private parts immediately to medical examination, as well as the filing of her complaint for rape immediately thereafter are consistent with her straightforward, logical, truthful and credible testimony thus rebutting any insinuation of voluntariness on her part to the sexual confrontation; rather, they only display a moral certainty of his culpability for the crime charged.

WHEREFORE, the decision appealed from finding accused-appellant SAMUEL ULZORON guilty of rape and sentencing him to reclusion perpetua is AFFIRMED. In addition, he is ordered to indemnify his victim Emily Gabo the amount of P50,000.00, and to pay the costs.

SO ORDERED.

15

[G.R. No. 118806. July 10, 1998]

increased to Twenty Thousand (P20,000.00) Pesos each effective immediately upon promulgation. They shall not be released from detention until they put up an appropriate bail bond for their provisional liberty.

SANTIAGO ARGONCILLO, RICHARDO BALBONA and POLICARPIO UMITEN, petitioners, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. DECISION KAPUNAN, J.:

The property bond of accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are deemed cancelled.

Costs against the convicted accused.

This is a petition to review the decision[1] of the Court of Appeals which affirmed in toto the decision of the Regional Trial Court of Roxas City, Branch 15,[2] finding petitioners herein guilty of illegal fishing with the use of an explosive, the dispositive portion of which reads:

SO ORDERED.[3]

WHEREFORE, the Court finds the accused, Policarpio Umiten, Santiago Argoncillo and Richard Balbona, guilty beyond reasonable doubt for the crime of illegal fishing with the use of an explosive punishable under Section 33 in relation to Section 38 of Presidential Decree No. 704 dated May 16, 1975 as amended by Presidential Decree No. 1058 dated December 1, 1976 and each shall suffer a straight penalty of twenty (20) years imprisonment.

On August 1, 1990, an Information was filed by the Provincial Fiscal of Capiz charging Johnson Sucgang, Policarpio Umiten, Elvis Villar, Santiago Argoncillo, Richardo Balbona and Efren Alvaro with illegal fishing (with the use of dynamite), as follows:

However, accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are acquitted for failure of the prosecution to prove their guilt beyond reasonable doubt.

That at or about 6:30 oclock [sic] in the evening of May 7, 1990, in the sea water of Barangay Basiao, Ivisan, Capiz, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, wilfully, unlawfully and feloniously catch, take, gather and have in their possession and control different species of fish with the use of explosives.[4]

The fish sample is forfeited in favor of the government.

Upon arraignment on September 11, 1990, the accused, with the assistance of counsel, pleaded not guilty to the offense charged. Trial ensued thereafter.

Considering the penalty imposed upon the accused, Policarpio Umiten, Santiago Argoncillo and Richard Balbona, the bail bond for their provisional liberty is

The lower court synthesized the evidence presented by the prosecution as follows:[5]

16

Due to reports of rampant illegal fishing at Barangay Basiao, Ivisan, Capiz, personnel from the Department of Agriculture and Natural Resources specifically from the Bureau of Fisheries as well as the Barangay Captain of said place assisted by the local policemen created a team to conduct surveillance within the Ivisan Bay. Thus, around 5:30 in the afternoon of May 7, 1990, a team riding in two (2) pumpboats from the Barangay Basiao wharf proceeded along the waters of Ivisan Bay. Riding in one pumpboat were Persinefles U. Oabe, the Barangay Captain of said place; Rolando Amoroso, an employee of the Bureau of Fisheries; Pat. Rafael Tupaz, a member of the local Integrated National Police and Remegio Unasin, a barangay councilman who acted as the pilot. In the other pumpboat were Joey de la Cruz, a co-employee of Rolando Amoroso; Pat. Reggie Uadan and Enido Baldesimo. Now and then, the team had to stop and listen for possible occurrences of illegal fishing within their vicinity. Around 6:30 of the same evening while standing by with their engines off, in a place facing Barangay Culasi, they heard an explosion. Sensing it was caused by dynamite, they proceeded to the area around five hundred meters (500 m.) away from them.

Persinefles U. Oabe, barangay captain of Barangay Basiao, who was with the team riding in a pumpboat with Rolando Amoroso identified the three persons retrieving fish from the water as Policarpio Umiten, Santiago Argoncillo and Richard Balbona while the other three persons standing on the rocky portions of the islet as Johnson Sucgang, Elvis Umiten and Efren Alvaro.

The team apprehended the six accused and brought them to the fish cage of the barangay captain located within the same barangay. While on their way, Joey de la Cruz externally examined the fish samples.

Upon their arrival at the fish cage, another external examination was conducted by Joey de la Cruz and Rolando Amoroso. In both external examinations, the two found out that the fishes were caught with the use of explosives because blood was oozing from their operculums and their eyes were protruding.

After ten minutes of navigation, the team arrived at the scene in question which was near an islet. They surrounded the area. At a distance of around ten meters, Joey de la Cruz, an employee of the Bureau of Fisheries and Aquatic Resources, saw three persons diving into the water. Thereafter, they would surface and throw their catch of fish to the unmotorized banca around four meters long nearby. In the seashore of said islet, around three to four meters away from these three persons floating in the water, were three other persons standing in the rocky portions around three meters apart. These six persons tried to escape but Rolando Amoroso, the co-employee of Joey de la Cruz, advised them not to do so and introduced themselves as law enforcers. The team found out that the fishes they caught were deep sea fish of four kinds locally known as vulgan, bulawis, pacol, and bag-angan. Joey de la Cruz gathered seven fish samples from their banca while Rolando Amoroso went down from the pumpboat and proceeded to the islet. However, upon inspection, he failed to find any explosive (dynamite) either on the seashore or on the banca. No paraphernalia used in dynamite fishing were found. Both Joey de la Cruz and Rolando Amoroso recognized the six persons as the herein accused by their faces.

An on-the-spot investigation was conducted but the accused denied any culpability. They were then released on the strength of their promise to report to the local police the following day.

The fish samples were then placed in a plastic bag filled with ice at the house of Barangay Captain Persinefles U. Oabe that evening. In the morning, Joey de la Cruz and Rolando Amoroso brought the fish samples to their office in Roxas City where they conducted an internal examination. The examination revealed that the fish samples were caught with the use of explosives because their air bladders were raptured and deeply stained with blood; the vertebral columns were broken but with bloodstains; their ribs were broken; and there were blood clots in their abdomens. Joey de la Cruz and Rolando Amoroso rendered a written report of their internal examination to the Provincial Agricultural Officer.

The testimonies of Joey de la Cruz, Rolando Amoroso, and Persinefles U. Oabe above were corroborated by Pat. Rafael Tupaz, one of the police escorts of the team.

17

Sgt. Sergio Ordales, a member of the local police of the municipality of Ivisan testified that while on duty in the morning of May 8, 1990, herein six accused arrived at their station. He asked why they were there and they answered that they were told to report to the police station. He learned from them that they were arrested for illegal fishing with the use of explosives.

On the other hand, the lower court portrayed the evidence presented by the version of the defense, thus:

On the other hand, Elvis Villar testified that he and Efren Alvaro were together in going to the islet in question, riding in an unmotorized banca to gather shells locally called suso and butlogan for viand. Both started gathering shells under the stones in the islet around 5:30 in the afternoon. While they were preparing to go home at around 6:30 in the evening, the team of law enforcers riding in motorized pumpboats arrived. The barangay captain and the personnel from the Bureau of Fisheries and Aquatic Resources asked them whether they heard an explosion. After they denied having heard any, they were told by the barangay captain to board their pumpboats. They obliged, leaving the shells they had gathered. They were then brought to the fish cage of the barangay captain.

All the accused denied the imputation of the prosecution.

Policarpio Umiten, Santiago Argoncillo, Richard O. Balbona were uniform in alleging that around 4:00 in the afternoon of May 7, 1990, they dropped a fishnet about two hundred (200) armslength and one (1) meter in width at the scene where they were apprehended. This method they locally call patuloy requires that the fishnet be retrieved every hour to collect its catch. The trio went back to the place near the islet in question around 6:30 in the evening for the purpose of collecting their catch from the fishnet. They had not been able to collect all their catch from the net when the team of law enforcers, prosecution witnesses herein, arrived. They were asked whether they heard an explosion. After they denied having heard any, Barangay Captain Persinefles U. Oabe, told the accused to go with them. The team got seven pieces of fish samples. The accused left around one and one-half kilos of fish they had gathered at the time the team of law enforcers arrived. They were then brought to the fish cage owned by Persinefles U. Oabe at Barangay Basiao.

Although accused Johnson Sucgang admitted his presence in the islet in question, he offered a different explanation. He testified that he went to said place to look for pulutan requested by his customer, Wilfredo Arcangeles. Being an operator and manager of Virgen Beach Resort located at Sitio Manangkalan, he obliged. Thus, between 5:00 to 5:30 in the afternoon of May 7, 1990, he left his resort riding in a banca. He paddled his way towards the islet where he saw two persons at the bank while the other three were on the water. He went ashore. Later, the barangay captain and his companions riding in two pumpboats arrived. Like his co-accused, he was asked if he heard an explosion. After he denied hearing any, the barangay captain told him to go with them. They were all brought to the fish cage of the barangay captain for questioning.

Wilfredo Arcangeles corroborated the claim of Johnson Sucgang. He confirmed that he requested the latter to look for pulutan since he had visitors from Bacolod City prompting Johnson Sucgang to look for some. He saw the accused leave in a banca and affirmed that he had no dynamite with him.[6]

Above three accused would like the Court to believe that the seven pieces of fish samples taken by the team of fishing law enforcers were the catch of their fishnet they locally called patuloy.

On September 30, 1991, the trial court rendered its decision which, as stated at the beginning, was affirmed by the Court of Appeals.

Hence, this petition.

18

cannot be denied that the fishes found in petitioners banca were caught or killed by the use of explosives. Petitioners point out that the fact that neither explosives nor related paraphernalia were found in their possession is an indication of their innocence. The Report[11] of Bureau of Fisheries employees Joey de la Cruz and Rolando Amoroso states: We do not agree. First, it is quite probable that petitioners dumped these materials into the sea while the raiding party was approaching. Moreover, Section 33, Presidential Decree No. 704, as amended by Presidential Decree No. 1058, provides: Republic of the Philippines

Sec. 33. Illegal fishing; xxx -- It shall be unlawful for any person to catch, take or gather, or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (l),[7] (m)[8] and (d),[9] respectively, of Sec. 3 hereof xxx.

Department of Agriculture

Roxas City

xxx.

1990-05-08

The discovery of dynamite, other explosives and chemical compounds containing combustible elements, or obnoxious or poisonous substance, or equipment or device for electric fishing in any fishing boat or in the possession of a fisherman shall constitute a presumption that the same were used for fishing in violation of this Decree, the discovery in any fishing boat of fish caught or killed by the use of explosives, obnoxious or poisonous substance or by electricity shall constitute a presumption that the owner, operator or fisherman were fishing with the use of explosives, obnoxious or poisonous substance or electricity.

The Provincial Agricultural Officer

Department of Agriculture

Roxas City

In Hizon vs. Court of Appeals,[10] this Court held that the law, as contained in the last paragraph of Section 33, creates a presumption that illegal fishing has been committed when fish caught or killed with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat. In this case, it

Sir:

19

I have the honor to submit to this office the result of the scientific fish examination conducted on the fish samples taken from the possession of Mr. Johnson Umiten Sucgang, 38 years old, married and resident of Barangay Basiao, Ivisan, Capiz and company on May 7, 1990, 6:30 PM by combined elements of the Department of Agriculture, PC/INP Unit of Ivisan, Capiz and Barangay officials of Basiao, Ivisan, Capiz conducting sea borne patrol on illegal fishing.

Bulawis

2 pcs.

300 gms

P 8.00

Bulgan

2 pcs.

200 gms

10.00

Source of fish samples

: Sea water of Brgy., Basiao,

Pakol

1 pc.

100 gms

2.00

Ivisan, Capiz

Bag-angan

1 pc.

150 gms

3.00

Fish samples taken from

: Johnson U. Sucgang, 38 years old,

Bukod

1 pc.

150 gms

3.00

married, of Brgy., Basiao, Ivisan,

Characteristics noted on the fish examined:

Capiz, et. al.

1. External Manifestation

Date fish samples taken

: May 7, 1990 at 6:30 PM

a. Blood, oozing on the operculum.

Date fish samples examined

: May 7, 1990 at 7:00 PM

2. Internal Manifestation

Name of fish samples taken

Number

Weight

Value

a. Air bladder raptured deeply stained with blood;

Local Name

20

b. Vertebral column broken with blood stain.

A Yes, sir. Because you know when we saw, when we conducted the external manifestation of the fish, not only blood oozing from the ears but also from the eyes that were protruding.

Conclusion: Q The fish samples manifested signs that said fish were caught or killed by the use of explosives. A No. Is it not possible that it be caused also through fishing by means of electricity?

Examined by: Q Other kinds of explosives?

(Sgd.) A JOEY I. DE LA CRUZ (Sgd.) Q ROLANDO E. AMOROSO Fish Examiners A What explosives aside from dynamite, no other. [13] Joey de la Cruz affirmed the above findings in his testimony before the trial court.[12] Said testimony was corroborated by Rolando Amoroso, a co-employee of De la Cruz in the Bureau of Fisheries. The latter further stated that the fish were killed specifically by dynamite: For example, what other aside from dynamite? Yes, explosives.

The trial court correctly gave credence to these testimonies, thus:

ATTY. LUMAWAG:

Above three (3) accused would like the Court to believe that the seven (7) pieces of fish samples taken by the team of fishing law enforcers were the catch of their fish net they locally called [sic] patuloy.

Q Can you identify whether it was through dynamite or any other means of explosive the fish was caught? x x x.

21

They also question the credibility of these witnesses, thus: With the external and internal examination by Joey de la Cruz and Rolando Amoroso showing that these fishes were caught with the use of explosive, bare denial of above three (3) accused that they caught them by means of a fishing net they locally call patoloy is insufficient to disprove such finding. It is simply a superiority of weight of object evidence over testimonies of the accused.

xxx. If it is true that prosecution witness Joey dela Cruz, allegedly a technical personnel [sic] of the Bureau of Fisheries and competent to determine if a fish is killed by dynamite blast, found the 7 fishes to have been killed by a dynamite blast, it was unnatural for the team not to arrest the petitioners on the spot. xxx.[17]

Joey de la Cruz is an agricultural technologist of their office and a graduate of Bachelor of Science in Fishery. Joey de la Cruz and Rolando Amoroso had undergone training course in fishery laws and implementing regulations as well as actual demonstrations in sea to practice what they had learned in theory. [As] xxx technical personnel of the Bureau of Fishery and Aquatic Resources, their finding after an internal and external examination of fish samples to prove they were caught with the use of explosives should be presented to show that these prosecution witnesses fabricated their story. There is no ulterior motive which implied them to testify as they did. Furthermore, no evidence was introduced by the defense to impeach their credibility nor evidence to discredit their persons. Credibility of the testimonies having remained unimpeached, it shall be given great weight in the determination of the guilt of the accused. Besides, being public officers to enforce fishing laws, in the absence of ill-motive on their part, to impute to the accused a serious offense of illegal fishing with the use of explosive, the presumption is that there was regular performance of public duty on their part.[14]

Petitioners arguments have no merit.

It is ridiculous to have expected that all the fish found in the accuseds fishing boat would be subjected to an examination. It is sufficient that, as in the case at bar, a random sample of the accuseds catch was examined and found to have been killed with the use of explosives. A patent impracticality would result if the law required otherwise.

The fact that the patrol team did not immediately deliver the accused to the municipal jail does not diminish the credibility of the above witnesses. Persinefles U. Oabe, the barangay captain of Basiao, gave a plausible explanation for the accuseds release:

The presumption that the crime of illegal fishing was committed has, therefore, been clearly established. Such presumption, however, is merely prima facie, and may be rebutted by the accused.[15]

A We released those six persons because if we bring them to the municipality of Ivisan we have no available transportation because they were only riding in a single motor vehicle.[18]

Petitioners attempt to overcome said presumption by disputing the findings of prosecution witnesses Joey de la Cruz and Rolando Amoroso. They claim that since not all their catch were examined, there can be no conclusive proof that the fish were killed with the use of explosives.[16]

The want of available transportation is not surprising. The dearth in law enforcement facilities, especially in the provinces, is not lost on this Court and is a matter of judicial notice.

22

In fine, we find no reason to disturb the assessment of the trial court regarding the credibility of prosecution witnesses Joey de la Cruz and Rolando Amoroso. Its findings are accorded great respect by appellate tribunals since trial courts have the advantage of examining the witnesses testimonies and observing their demeanor first hand.[19]

ATTY. LUMAWAG:

Q Petitioners also argue that they could not have been caught fishing with the use of dynamite in shallow waters because the fishes used as evidence were described by the prosecution witnesses as deep sea fishes. According to petitioners:

What were the species of the fishes that you recovered from that banca?

Bottom feeders.

The seven (7) fishes that the prosecution used as evidence were described by prosecution witnesses as deep sea fishes. But it has been shown in the testimony of petitioner Santiago Argoncillo that he and the other petitioners were fishing in shallow waters about 1 1/2 meters deep (TSN, March 13, 1991, p. 7) and using fishnet 200 armslength long and 1 meter wide (TSN, March 13, 1991, p. 4). This testimony was not rebutted by the prosecution. In fact, the 3 accused who were acquitted by the trial court were found by the prosecution witnesses standing on the seashore near where the petitioners were fishing (TSN, January 23, 1991, pp. 5 to 6). That petitioners would engage in dynamite fishing in shallow waters and near the seashore would be unnatural. The allegation that the petitioners were fishing with the use of explosive is therefore not credible.[20]

COURT:

Isda sa bato, in English?

Bottom feeders.

COURT:

We are not persuaded.

Deep sea fishes.[21]

The fishes caught by petitioners were not actually deep sea fishes in the sense that they came from the deep portions of the sea as distinguished from shallow waters or waters near or along the shores. The fishes caught were locally known as vulgan, bulawis, pacol, and bag-angan. They are generally described as isda sa bato or bottom feeders. The following excerpt from the testimony of fish examiner Joey de la Cruz shows that the term deep sea fishes arose from the trial courts erroneous translation of isda sa bato or bottom feeders which were the terms actually employed by said witness to describe the subject fishes:

Petitioners next contend that if it is true that they were engaged in illegal fishing, it would be unnatural for them to use a boat which would make it difficult for them to escape from the law enforcers riding motorized boats.[22]

Petitioners contention is too ludicrous to warrant serious consideration. The law punishing illegal fishing does not require the use of motorized banca or boat for the

23

crime to be committed. Concededly, a motorized banca can better serve those engaged in illegal fishing for purposes of eluding law enforcers. However, not everyone can financially afford to fit a motor in his banca. Indeed, petitioner Argoncillo admitted that the banca that they were using was leased from a certain Dikoy Odrunia.[23]

an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.[27] The trial court therefore erred when it sentenced petitioners to suffer a straight penalty of twenty (20) years imprisonment.[28] In Spouses Jose and Trinidad Bacar vs. Judge Salvador P. de Guzman, Jr.,[29] we held that it was erroneous to impose a straight penalty of six (6) years imprisonment on the accused for homicide. We explained:

Petitioners likewise aver that they did not flee when the law enforcers arrived, and even voluntarily reported to the Ivisan Police Station the following morning. They submit that their alleged non-flight should strengthen their claim of innocence.[24]

xxx. It is basic law that xxx the application of the Indeterminate Sentence Law is mandatory where imprisonment exceeds one (1) year, except only in the following cases:

We disagree. There is no established doctrine to the effect that, in every instance, non-flight is an indication of innocence.[25] Moreover, even if they wanted to, petitioners could not have possibly eluded the law enforcers who were in two pump boats. Attempts to flee would also have been useless since petitioners were already identified by the barrio captain.

a. Offenses punished by death or life imprisonment.

b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115). Lastly, the fact that the accused were asked by the patrol team whether or not they heard an explosion is not in any way reflective of petitioners inn ocence. We deem such inquiry as nothing more than a part of the investigative process. It is quite common, and in most cases, necessary, for law enforcers to ask questions to help them ascertain whether or not there exists probable cause to arrest persons suspected of committing a crime.

c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art.139), or espionage (Art. 117).

d. Those convicted of piracy (Art. 122). Having failed to discharge themselves of the burden of disproving that they have committed illegal fishing, the Court is left with no alternative but to affirm petitioners conviction.

e. Habitual delinquents(Art. 62, par. 5).

The penalty imposed by law[26] for illegal fishing if explosive is actually used is imprisonment ranging from twenty (20) years to life imprisonment. The Indeterminate Sentence Law provides that if, as in this case, the offense is punished by a law other than the Revised Penal Code, the court shall sentence the accused to

Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even

24

if the crime is committed while he is on parole. (People v. Calreon, CA 78 O.G. 6701, Nov. 19, 1982).

Accordingly, the proper penalty to be imposed upon the accused should be an indeterminate penalty which is hereby set at twenty (20) years as minimum to twenty-five (25) years as maximum.

f. Those who escaped from confinement or those who evaded sentence. WHEREFORE, the petition is hereby DISMISSED, and the decision of the Court of Appeals is AFFIRMED with the modification that petitioners are hereby sentenced to suffer an indeterminate penalty of imprisonment ranging from twenty (20) years as minimum to twenty-five (25) years as maximum.

g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v. Corral, 74 Phil. 359).

h. Those whose maximum period of imprisonment does not exceed one year.

SO ORDERED.

Where the penalty actually imposed does not exceed one year, the accused cannot avail himself of the benefits of the law, the application of which is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the Court. (People v. Hidalgo, [CA] G.R. No. 00452CR, Jan. 22, 1962).

i. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law.

The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory.[30]

25

G.R. No. 128618

November 16, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELICISIMO NARVASA, JIMMY ORANIA and MATEO NARVASA, accused, FELICISIMO NARVASA and JIMMY ORANIA, appellants. PANGANIBAN, J.:

the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody an M-14 Rifle without first securing the necessary license or permit from the lawful authorities and which firearm in conspiracy with Jimmy Orania and Mateo Narvasa was used in the killing of one SPO3 Primo Camba, victim in Crim. Case No. 2629-A.

In Criminal Case No. 2646-A, Jimmy Orania (in conspiracy with the other accused) was charged with aggravated illegal possession of firearm in the Amended Information which reads:

What crime or crimes are committed when a killing is perpetrated with the use of unlicensed firearms? In the absence of the firearms themselves, may illegal possession of firearms be proven by parol evidence?

The Case

Appellants Felicisimo Narvasa and Jimmy Orania seek the reversal of the October 11, 1996 Decision 1 of the Regional Trial Court of Alaminos, Pangasinan, in Criminal Case Nos. 2629-A, 2648-A and 2646-A, finding them guilty beyond reasonable doubt of illegal possession of firearms in its aggravated form and sentencing them to reclusion perpetua.

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody a .30 U.S. Carbine without first securing the necessary license and/or permit from the lawful authorities and which firearm in conspiracy with Mateo Narvasa and Felicisimo Narvasa was used in the killing of SPO3 Primo Camba, victim in Crim. Case No. 2629-A..

In Criminal Case No. 2629-A, Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa were charged with homicide allegedly committed as follows:

Assistant Provincial Prosecutor Emiliano A. Rabina filed three Informations 2 against the appellants and their co-accused, Mateo Narvasa. In Criminal Case No. 2648-A, the Amended Information filed on November 10, 1993 charged Felicisimo Narvasa (in conspiracy with the other accused) with aggravated illegal possession of firearm allegedly committed as follows:

That on or about February 6, 1992, at Sitio Bugtong, [B]arangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, armed with high powered guns, did then and there willfully, unlawfully, and feloniously shoot SPO3 PRIMO CAMBA which caused his instantaneous death as a consequence, to the damage and prejudice of his heirs.

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within

26

Felicisimo Narvasa and Jimmy Orania were arrested, but Mateo Narvasa remained at large. When arraigned, the two appellants, assisted by their counsel, 3 pleaded not guilty. 4 Trial proceeded in due course. Thereafter, the court a quo rendered the assailed Decision, the dispositive portion of which reads:

Appellants' counsel then filed a Notice of Appeal to the Court of Appeals. 5 In an Order 6 dated October 24, 1996, the trial court deemed the appeal filed by Felicisimo Narvasa and Jimmy Orania perfected, and effected the transmittal of the case records to the Court of Appeals. Realizing the mistake, the Court of Appeals subsequently forwarded the records to this Court. 7

WHEREFORE, in consideration of the foregoing premises and the evidence presented, this Court finds both accused Felicisimo Narvasa in Criminal Case No. 2648-A and Jimmy Orania in Criminal Case No. 2646-A [g]uilty beyond reasonable doubt of the crime of [i]llegal [p]ossession of [f]irearms in its aggravated form in these cases and therefore, both accused are sentenced to death penalty but for reasons that the law at that time of the commission of the crime prohibits death sentence penalty, these two accused therefore shall each suffer the sentence of single, indivisible penalty of reclusion perpetua and are ordered to pay jointly and severally the heirs of the victim the amount of P50,000.00 as death indemnity and moral damages of P100,000.00 each, plus cost.

The Facts

Evidence for the Prosecution

In his Brief, the solicitor general 8 presented the following narration of facts:

In Criminal Case No. 2629-A for [h]omicide, this Court has considered this case as [a] necessary component of the crimes of [i]llegal [p]ossession in their aggravated form, as the same is merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in [its] aggravated form, which is the graver offense.

With respect to accused Mateo Narvasa, since he has not been arrested and never brought to the jurisdiction of this Court, this case in the meantime, is ordered archived insofar as said accused Mateo Narvasa is concerned.

On February 6, 1992, after lunch time[,] Villamor Laderas and Ernesto Nagal, councilmen of Quinaoayanan, Bani, Pangasinan, acting on a report that there were missing carabaos, pigs and goats, repaired to the far-flung Sitio Bugtong of the town of Bani and to Sitio Patar of the adjoining town of Agno in Pangasinan, which they reached at around 5:30 that afternoon. Then Laderas and Nagal patrolled the area. Along their way, the two chanced upon the gang of appellants[.] [T]hey were five and three of them were armed. Jimmy Orania was holding a caliber .30 U.S. carbine, Mateo Narvasa was armed with [an] M-16 and Felicisimo Narvasa was carrying an M-14.

Let an Alias Warrant of Arrest issue as against accused Mateo Narvasa.

The two are familiar with those kind[s] of guns as they have seen similar ones carried by policemen. They said, a carbine is shorter than [an] M-14 and [an] M-16 is longer than [an] M-14 (Tsn., April 21, 1994, pp. 1-35, December 13, 1995, pp. 112).

The [b]ailbond posted by accused Felicisimo Narvasa is hereby ordered cancelled.

27

Laderas and Nagal simply stared at the five and then they proceeded to their way home. Unluckily for the goons, the two councilmen met the two policemen[,] SPO3 Primo Camba and PO2 Simeon Navora who were on patrol and they reported what they saw (Ibid).

Shortly thereafter, Felicisimo Narvasa, Glicerio Narvasa, Rederio Narvasa and Jimmy Orania were apprehended. Mateo Narvasa was not found. The four were investigated and paraffin tested. Felicisimo Narvasa and Jimmy Orania were found positive of gunpowder burns (Tsn., August 16, 1994, pp. 11-15). 9

The two policemen were also responding to a report about the missing animals and they suggested that all of them should track down the armed goons (Ibid).

Evidence for the Defense

After walking some distance, the four responding men saw the house of appellant Felicisimo Narvasa on a hilly portion around 100 meters away from their path. They decided to investigate at the house but before they could negotiate the distance, they were met by a volley of gunfire. The four[,] who were ten meters apart[,] dove and sought cover (Tsn., April, 1994, p. 11). When the firing took a halt, Laderas had the courage to raise his head and [view] . . . the source of the gunfire. Laderas saw Felicisimo Narvasa in a squatting position aiming at the two policemen and Jimmy Orania was seated near him guiding him at his target. Mateo Narvasa was also aiming his gun. There was an exchange of gunfire as the policemen were able to take proper positions. Unfortunately, SPO3 Camba was hit. Navora summoned Laderas and Nagal to get closer to give aid to Camba. Laderas and Nagal carried Camba as they retreated and, Navora followed moving backwards as he kept firing at their enemies (Ibid, tsn., July 20, 1994, pp. 1-8; tsn., August 15, 1994, pp. 2-30).

Appellants deny the charges against them. Felicisimo Narvasa even claims that his son Arnel was shot by Ernesto Nagal, Villamor Laderas and PO2 Simeon Navora. In their Brief, 10 they state:

In the process of the retreat, Camba [bled] profusely and he died even before he could be brought out from the scene of the crime.

Felicisimo Narvasa testified that he was sleeping at his house on the afternoon of February 6, 1992 when Glicerio Narvasa woke him up and informed him that his son Arnel was shot. He went downstairs and saw his co-accused Jimmy Orania embracing his son. He asked his son who shot him and the latter told his father that it was the group of Councilman Laderas who shot him. He instructed Orania and his wife to bring his son to the hospital but the latter died at the hospital. He further averred that before he slept, Jimmy Orania, Glicerio Narvasa and Rederio Narvasa were in his house drinking two bottles of gin after helping him [fix] the fence in his house. Accused-appellant Narvasa when asked to explain the charge against him denied committing the same. On March 17, 1992 he gave his affidavit naming Ernesto Nagal, Villamor Laderas and Simeon Navora as the assailants of his son. (TSN, August 8 ,1999, pp. 3-17)

The body of Camba was left at the scene of the crime while his companions escaped and called for help. Several policemen arrived. Pieces of evidence like empty shells of M-16, M-14 and caliber .30 U.S. carbine bullets were gathered and some policemen were tasked to track down the goons (Exhs. C, C-1 to C-4; tsn., August 16, 1994, pp. 6-10).

Jimmy Orania testified that on February 6, 1992, he was in the house of his coaccused Felicisimo Narvasa because he was invited to work on the fence of Felicisimo. After finishing their work, Jimmy[,] together with Glicerio and Rederio Narvasa[,] drunk two bottles of gin. At about 5:00 o'clock in the afternoon he instructed Arnel Narvasa to get their carabaos grazing around 100 meters north of the house of Felicisimo, when he heard a gunshot coming from that direction. Arnel shouted for help, so he proceeded to the place where Arnel was shot and carried him

28

to the house of Felicisimo. The latter was awakened by Glicerio and when he asked his son who shot him, Arnel answered that it was the group of Laderas. In assailing the trial court's Decision, appellants interpose the following errors:

Jimmy Orania further averred that he knew nothing and denied participation in the killing of Primo Camba. That on the day after February 6, 1992, they were picked up by the police. (TSN, August 20, 1996, pp. 3-13). 11

Ruling of the Trial Court

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCONSISTENT TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION.

The trial court accorded credibility to the prosecution witnesses and held that mere denial could not overcome the prosecution evidence showing that appellants used high-powered firearms to shoot at the prosecution witnesses, thereby resulting in the death of SPO3 Primo Camba. Further supporting said testimonies were the results of the paraffin test conducted on appellants and the recovery of various cartridges and shells matching the firearms purportedly used in the crime. Though these unlicensed firearms were not presented as evidence, the trial court, citing People v. Ferrera, 12 ruled that appellants may still be convicted of illegal possession of firearms.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE INSUFFICIENCY OF THE PROSECUTION'S EVIDENCE TO WARRANT CONVICTION OF THE ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT OF THE CRIME OF AGGRAVATED ILLEGAL POSSESSION OF FIREARM. 15

Finally, the trial court found that appellants acted in conspiracy in the killing of Primo Camba. However, on the basis of People v. Barros, 13 it held that the homicide was merely an element of the illegal possession of firearms in its aggravated form; thus, homicide in the present case was taken into account not as a separate crime but as an aggravating circumstance which increased the penalty for the illegal possession of firearms.

In the main, the resolution of this case revolves around the credibility of the prosecution witnesses, the sufficiency of the prosecution evidence and the characterization of the crime committed.

The Court's Ruling Hence, this appeal. 14 The appeal is not meritorious. In light of Republic Act 8294, 16 however, appellants should be convicted only of homicide, with the special aggravating circumstance of the use of illegally possessed firearms.

Assignment of Errors

29

First Issue: Credibility of Prosecution Witnesses

Appellants question the credibility of Witnesses Laderas and Nagal because of an alleged inconsistency in their testimonies. Laderas testified that there was an exchange of fire between appellants and PO2 Simeon Navora, while Nagal declared that only the appellants fired. Appellants point out that "conflicting testimonies on a material and relevant point casts doubt [on] the truthfulness or veracity" 17 of such testimonies.

the elements thereof, viz: the existence of the subject firearm and the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same." Appellants contend that the existence of the firearms was not sufficiently proven because the prosecution had not presented the firearms as evidence. It is necessary, they argue, that said "firearms allegedly possessed by the accused-appellants and allegedly used in the killing of Policeman Primo Camba be presented in evidence as those firearms constitute the corpus delicti of the crime with which they are sentenced." 20

Appellants' contention is untenable. The circumstances of the instant case explain the seeming inconsistency in the testimonies of the two witnesses. At the time, they were under fire and in fear of losing their lives. Moreover, they did not take cover in the same place that Navora did.

Appellants' argument is not persuasive. In People v. Lualhati, this Court merely stated that the existence of the firearm must be established; it did not rule that the firearm itself had to be presented as evidence. Thus, in People v. Orehuela, 21 the Court held that the existence of the firearm can be established by testimony, even without the presentation of the said firearm. In the said case, Appellant Orehuela was convicted of qualified illegal possession of a firearm despite the fact that the firearm used was not presented as evidence. The existence of the weapon was deemed amply established by the testimony of an eyewitness that Orehuela was in possession of it and had used it to kill the victim, viz.:

Nonetheless, their uncertainty on whether Navora had fired back is immaterial to the crime charged and too insignificant to impair their credibility. In any event, the Court has ruled that a witness is not expected to remember an occurrence with perfect recollection of minute details. 18

Second Issue:

We consider that the certification was adequate to show that the firearm used by Modesto Orehuela in killing Teoberto Canizares was a firearm which Orehuela was not licensed to possess and to carry outside his residence on the night that Teoberto Canizares was shot to death. That firearm was a .38 caliber pistol was shown by the testimony and report of NBI Ballistician Bonifacio Ayag. When the above circumstances are taken together with the testimony of the eyewitness that Modesto Orehuela was in fact in possession of a firearm and used the same to kill Teoberto Canizares, we believe that accused Orehuela was properly found guilty of aggravated or qualified illegal possession of firearm and ammunition.

Sufficiency of the Evidence In the present case, the testimonies of several witnesses indubitably demonstrate the existence of the firearms. Villamor Laderas stated that when he went to Barangay Quinaoayanan, Bani, Pangasinan to investigate a report regarding missing carabaos, pigs and goats, he saw the appellants carrying long firearms. We quote hereunder the relevant portion of his testimony:

Appellants cite People v. Lualhati, 19 wherein this Court ruled "that in crimes involving illegal possession of firearm, the prosecution has the burden of proving

30

Q And when you saw the two accused together with the three others, what have you noticed in their persons?

Jimmy Orania is carrying a caliber .30.

Q A They were holding long firearms, sir.

How about Mateo Narvasa?

A Q Who of the five persons did you see was holding long firearms?

Mateo Narvasa is carrying [an] M-16.

Q A 16. Jimmy Orania was holding a carbine; Mateo Narvasa was holding an M-

How about Felicisimo Narvasa?

A A long firearm was carried by Felicisimo Narvasa, sir, but I don't know the caliber. 23 Q About Felicisimo Narvasa, what was he holding?

Felicisimo Narvasa was holding [an] M-14. 22

That herein appellants were the ones who had shot at the prosecution witnesses was confirmed by Laderas, who testified as follows:

Ernesto Nagal likewise stated that he saw appellants carrying long firearms, as his testimony indicates:

How did you know that the gunfire came from the west?

A Q What did you notice in the persons of the five persons you met?

Because we were facing west.

They were carrying arms, sir

Q And while the gunfire was going on, did you know who fired those gunshots?

What kind of firearm were the five persons, or some of them, carrying?

We know sir, because we can see them.

31

one recovered on January 5, 1994. The prosecution was not able to establish sufficiently the existence of the subject firearm . . . . Q Whom did you see?

Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa, sir. 24

In other words, the evidence on the existence of the firearm was beset with doubt and conflict. Such uncertainty is not found in the present case, for the testimonies of several witnesses indubitably established that the subject firearms were in the possession of the appellants.

In addition, Primo Camba was hit by a bullet, and empty shells of M-16, M-14 and .30 caliber carbine bullets were later on recovered in the vicinity of the place where the shooting occurred.

The above facts, duly proven and taken together, sufficiently establish the existence of the subject firearms and the fact that appellants possessed and used said firearms in firing at Villamor Laderas, Ernesto Nagal, and Simeon Navora, as well as Primo Camba who succumbed to the gunshot wound he had sustained.

As to proof that appellants had no license or permit to possess the firearms in question, we have held in People v. Villanueva 26 that the second element of illegal possession of firearms can be proven by the testimony or the certification of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the firearm in question. The Court ruled:

The present case can be distinguished from People v. Navarro 25 wherein the Court held that illegal possession of firearm could not be deemed an aggravating circumstance because the existence of the said firearm was not proven. In said case, a witness testified that he saw appellant shoot the victim with a "short" firearm. No firearm, however, was presented as evidence, although a gun was recovered from the accused when he was arrested. Moreover, no proof was adduced to show that the firearm allegedly seen by the witness was the same one recovered by the authorities from the accused. Thus, the Court held:

As we have previously held, the testimony of, or a certification from the PNP Firearms and Explosives Unit that the accused-appellant was not a licensee of the said firearm would have sufficed to prove beyond reasonable doubt the second element of the crime of illegal possession.

The prosecution submitted a certification showing that Appellants Felicisimo Narvasa and Jimmy Orania were not licensed firearm holders, 27 a fact that was attested to by SPO4 Roberto Manuel, a member of the PNP stationed at the provincial headquarters of the Pangasinan Provincial Command as Assistant Firearms and Explosives NCPO, who testified thus:

In the case at bar, the Information alleged that on January 5, 1991, the appellant had in his possession an unlicensed firearm which he used in killing Ferdinand Rabadon. This firearm was allegedly recovered on January 5, 1994, when appellant was arrested. However, said firearm was not presented in court or offered as evidence against the appellant. Although Rabago testified that he saw the appellant with a "short" firearm when the latter shot Rabadon on January 5, 1991 no other proof was presented to show that such gun, allegedly used on January 5, 1991, was the same

Q And did you bring with you the Master List of the firearm licensed holders in Pangasinan?

Yes, sir.

32

Q Q Will you please produce it?

And on your way following them what happened?

A When we were about 100 meters North of the House of Ising Narvasa we were met [by] a heavy volume of gunfire. A (Witness showing a folder, which is the Master List of firearm licensed holders in Pangasinan.) Q Now, if you were met according to you with heavy volume of gunfire, what did you . . . and your companion [do]? Q And with the aid of that voluminous list of firearm holders in Pangasinan, will you please tell his Honor if Felicisimo Narvasa and Jimmy Orania appear therein as licensed firearm holders? A We dive[d] to the ground for safety, sir.

A Their names do not appear, as manifested by our [Master List as licensed] holders of any caliber, sir. 28

xxx

xxx

xxx

Appellants did not present any evidence and neither did they even claim that they were in fact licensed firearm holders.

Upon diving to the ground, what happened to Primo Camba?

A Appellants Responsible

Primo Camba was hit, sir[.]

for Policeman's Death

Q How did you come to know that Primo Camba was hit by the first exchange of gunfire?

Laderas, Nagal and Navora testified that as their group, which included Primo Camba, approached Felicisimo Narvasa's house, they were suddenly fired upon. Camba was hit and it was from that bulet wound that he died. That appellants were responsible for his death is clear from Navora's testimony:

A hit.

Just after we dived to the ground, . . . Primo Camba told me that he was

And when Primo Camba told you that he was hit, what did you do?

33

I signalled the two (2) councilmen to get near me.

Navora and Camba, there was unity in action and purpose, and thus, conspiracy was present. Although it was not ascertained who among them actually shot Camba, all of them are liable for his death. In conspiracy, the act of one is the act of all.

xxx

xxx

xxx

Third Issue:

After giving instruction to the two (2) councilmen, what did you do?

The Crime

They carr[ied] him while we were retreating.

Carried the body of Primo Camba, to what place?

The totality of the evidence shows that appellants possessed unlicensed firearms, which they used in killing Primo Camba. In its Decision, the trial court convicted appellants of "[i]llegal [p]ossession of [f]irearms in its aggravated form" and considered homicide "merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in its aggravated form." Applying People v. Barros 30 to the proven facts, the trial court imposed upon appellants the penalty of reclusion perpetua. However, a new law has in the meanwhile been enacted.

A We retreated [to the] East direction, until we reach the yard of [a] certain Prudencio. Republic Act No. 8294, 31 which imposes a lighter penalty for the crime, provides: xxx xxx xxx Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition; Provided, That no other crime was committed.

Q And when you reach[ed] the premises of Prudencio, what was the condition of Primo Camba?

He [was] no longer breathing, sir. 29

Laderas was able to identify their attackers as Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa. As these three directed and fired their guns at Laderas, Nagal,

34

The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three; Provided, however, That no other crime was committed by the person arrested.

Consistent with prevailing jurisprudence, appellants are liable to pay, jointly and severally, the heirs of Primo Camba the sum of fifty thousand pesos (P50,000) as indemnity ex delicto for his death.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

However, the award of two hundred thousand pesos (P200,000) representing moral damages should be deleted since no evidence of anxiety, moral shock, wounded feelings or similar injury was presented during the trial.

In People v. Molina, 32 this Court en banc explained that RA 8294 considers the use of an unlicensed firearm only an aggravating circumstance in murder or homicide, viz.:

WHEREFORE, the assailed Decision is hereby MODIFIED. For the death of Primo Camba, Appellants Felicisimo Narvasa and Jimmy Orania are found GUILTY of HOMICIDE with the special aggravating circumstance of using unlicensed firearms. Applying the Indeterminate Sentence Law, they are each sentenced to twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum; and ordered to pay the heirs of Primo Camba P50,000 as death indemnity. However, the award of moral damages is hereby DELETED.

Under our ruling in People vs. Quijada, violation of PD 1866 is an offense distinct from murder; appellants should perforce be culpable for two separate offenses, as ruled by the trial court. SO ORDERED.

Fortunately for appellants, however, RA 8294 has now amended the said decree and considers the use of an unlicensed firearm simply as an aggravating circumstance in murder or homicide, and not as a separate offense.

Under RA 8294, appellants can be held liable only for homicide 33 and penalized with reclusion temporal. Pursuant to Article 22 of the Revised Penal Code, 34 RA 8294 should be given retroactive effect.

Civil Liability

35

G.R. No. 125434

December 22, 1999

DELFIN ABALOS, petitioner, vs. COURT OF APPEALS, RTC-Br. 38, LINGAYEN, PANGASINAN, and PEOPLE OF THE PHILIPPINES, respondents.

Liberato. 4 He relentlessly pursued her even when she left San Isidro to reside temporarily in San Juan and Sta. Ana, Manila. 5 She also testified that a few days before he shot Liberato Delfin went to her house ostensibly to watch television. But when she learned that his real intention was to see her she told him not to visit her again. 6

BELLOSILLO, J.:

Liberato Damias visited his girlfriend at her house in San Isidro, Rosales, Pangasinan, on the night of 27 January 1993. He did not realize that would be his last rendezvous with her. He was gunned down soon after and died slowly in her arms. His assailant apparently driven by extreme jealousy hurriedly fled leaving the lovers to the mercy of their fate.

Veronica further narrated that on the night of 27 January 1993 Liberato visited her at around 7 o'clock. As she was entertaining him at the balcony of their house she noticed petitioner walking back and forth in front of their house. He was just about four (4) meters or so away from them. 7 As she was ill at ease with petitioner's conspicuous demeanor below, she asked Liberato to transfer to their sala where they could continue talking. When they moved inside, Liberato sat near the entrance of the house with his left side towards the door with Veronica sitting in front of him. The positions of Liberato and Veronica and their proximity to one another could have heightened Delfin's animosity that he suddenly appeared at the door and in a semi-kneeling position shot Liberato on his left side. 8 Liberato could only embrace Veronica as blood trickled from his mouth and he desperately gasped for breath. Veronica positively identified petitioner Delfin Abalos as he scurried away since the sala of her house was adequately lit by a kerosene lamp and he was only one (1) meter away from them when he pulled the trigger. 9

On 26 February 1993 an Information was filed before the Regional Trial Court of Lingayen, Pangasinan, charging petitioner Delfin Abalos with murder for the killing of Liberato Damias. 1 The Information alleged that the accused, using an unlicensed firearm, with intent to kill, employing treachery and taking advantage of superior strength, shot and killed Liberato Damias. It further alleged that Delfin Abalos should be considered a recidivist having been previously convicted by the Regional Trial Court of Pangasinan. 2

The bereaved Veronica Bulatao testified that she had known petitioner Delfin Abalos for several years as they were neighbors, their houses being only fifty (50) meters from each other. 3 According to her, Delfin was courting her since June 1992 but she jilted him since she was already involved with the now decease Liberato Damias. In fact, she said, Delfin was enraged when she rejected him that he even threatened to kill her if she decided to marry

SPO1 Melchor Bernabe recounted that on the night of 27 January 1993 the barangay captain of San Isidro went to the police station and reported the shooting incident to him. 10 So he proceeded to the crime scene with the Chief of Police and SPO2 Ruben Pitok to investigate the matter. Upon reaching the house of Veronica Bulatao he saw Liberato's body sprawled on the floor. He asked Veronica who the assailant was but she was in incoherent and in a state of shock. It was only later at the police station that she was able to reveal the identity of the gunman. Upon learning that Delfin Abalos was positively identified by Veronica, SPO1 Bernabe went to the house of Delfin and accosted him. Then he brought him to the station for further questioning. 11

Dr. Ingrid Gancinia, Municipal Health Officer of Rosales, Pangasinan, testified that Liberato died from a bullet wound which pierced the lower part of his left armpit,

36

and that there were powder burns on the victim's body indicating that he was shot at a very close range, probably around six (6) inches away. 12

Veronica told him that Delfin shot Liberato. Inocencio then called out to his neighbors for help. 19

But Delfin denied killing Liberato. He claimed that on the night of 27 January 1993 he worked with his father in the tobacco fields from 3:00 p.m. until midnight, 13 and the only time he left was from 6:00 to 6:30 in the evening to get supper from their house. He stopped working at midnight and went straight home to sleep. He only woke up at 4:00 o'clock the following morning when his father told him that there were some policemen downstairs looking for him. After telling him that he was a suspect in the shooting, his room was searched and then he was brought to the police station for investigation. 14

Delfin Abalos' alibi failed to convince the trial court. It found petitioner guilty of murder and imposed upon him an indeterminate prison term of fourteen (14) years, eight (8) months and one (1) day as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum. Petitioner was also ordered to pay the heirs of the victim P38,000.00 for actual damages, P50,000.00 for compensatory damages and P30,000.00 for moral damages. 20 However, the aggravating circumstance of use of an unlicensed firearm was not appreciated as the weapon was never recovered.

Celestino Abalos, Delfin's father, together with Ruben Fragata and Virgilio Ortiz, tried to corroborate Delfin's alibi. The three (3) all claimed that they had supper near the tobacco fields from 6:30 to 8:00 p.m., and that after eating, they returned to the fields to finish their work. They also said that from the time they finished dinner Delfin never left the fields until midnight. 15

Jerry Fernandez, another defense witness, testified that after spraying insecticide on his plants he took a bath at a well near the tobacco plantation from 8:00 to 9:00 p.m. during which he saw Delfin around twenty (20) meters away working at the fields, 16 and that before heading for home he noticed Delfin still busy with his work.

The Court of Appeals sustained on appeal the award for damages but set aside the conviction of petitioner for murder and found him guilty instead of the lesser crime of homicide. The appellate court concluded that the aggravating circumstance of treachery was not indubitably established to qualify the killing of Liberato to murder and reduced petitioner's sentence to an indeterminate prison term of twelve (12) years of prision mayor maximum to seventeen (17) years and four (4) months of reclusion temporal. 21 His motion for reconsideration was denied. Hence, petitioner comes to us on a petition for review.

Petitioner argues that the testimony of the lone witness, Veronica Bulatao, was not credible; that the Court of Appeals erred in considering his three (3) prior convictions as basis for finding him guilty of homicide; and, his guilt was not proved beyond reasonable doubt.

On rebuttal, Inocencio Bulatao, Veronica's father, testified that Delfin, contrary to his alibi, was not in the fields but in their house prior to the shooting. In fact Inocencio said that at around 7:00 p.m., Delfin was in their house watching television with his family as they customarily allowed their neighbors to do so. When Liberato arrived Veronica took him to the balcony where they talked. An hour later, Inocencio turned the television off, so petitioner left their house, 17 and Inocencio proceeded to their kitchen to rest. Then he heard a shot prompting him to rush to the sala to check if anything wrong happened to his daughter. 18 But

In an apparent attempt to destroy Veronica's credibility, petitioner asserts that her actions prior to the shooting were highly questionable. If indeed he had threatened her life, then why did she still allow him to enter their house that night? If she really saw him suspiciously walking back and forth near their house, why did she not warn Liberato of the impending danger? 22

37

Petitioner also cites inconsistencies in her testimony, such as her assessment of the time frame when he courted her and her statements as to when she last saw him prior to the commission of the crime. 23 He even went to the extent of saying that Veronica's act of allowing him to court her despite her existing relationship with Liberato showed her deceitful character, hence, her unreliability as a witness.

Although it is true that the appellate court mentioned his prior convictions in its decision, such was not the basis for finding him guilty of homicide. The appellate court only mentioned the prior convictions to show that Veronica took his death threats seriously. 28 The decisive factor for convicting petitioner was still the positive identification made by Veronica during the trial. 29 Obviously, even without mentioning his earlier convictions, the Court of Appeals would have still concluded that Delfin did kill Liberato.

We disagree. Veronica's actions prior to the incident and the alleged inconsistencies in her testimony do not affect her credibility in positively identifying Liberato's killer. The fact remains that she was only a meter away when she saw Delfin shot Liberato. Also, a kerosene lamp lighted the sala thus enabling her to easily recognize Delfin as the gunman. And such illumination produced by a kerosene lamp has indeed been held sufficient to allow a witness to identify a person. 24 Veronica's competency in identifying petitioner is further strengthened by the fact that they were neighbors for several years and so she was very familiar with him. Veronica even saw him immediately before the shooting as he paced the barangay road only a few meters away.

The last issue raised by petitioner is that the appellate court erred in finding him guilty beyond reasonable doubt of homicide. He argues that he had a solid alibi to prove his innocence and that the paraffin test yielded negative for powder burns on his hand, hence confirming that he never fired the shot that killed Liberato.

More importantly, we have consistently reiterated that the credibility of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude. 25 Thus, unless certain facts of substance and value have been overlooked, which if considered might affect the result of the case, the trial court's appraisal of the credibility of a witness should not be overturned. 26 The trial court ruled that Veronica testified in a clear, straightforward and flawless manner. 27 We see no cogent reason to deviate from that observation.

For alibi to prosper, petitioner must not only prove that he was not at the crime scene but that it was also physically impossible for him to have been present there at the time the offense was committed. 30 He miserably failed to satisfy the second requisite. Delfin himself testified that the distance between the tobacco fields to Veronica's house was only around 400 meters and it only took eight (8) minutes to traverse such path. 31 Evidently, it was not impossible for Delfin to be present at the locus criminis.

Further, it has been long established that alibi cannot prevail over the positive identification of the accused by a credible witness who had no ill motive to falsely testify. 32 The absence of ill motive on Veronica's part was even substantiated by petitioner in his testimony. Thus

Petitioner holds that the Court of Appeals erred in giving weight to his three (3) prior convictions as a basis for finding him guilty. He maintains that his past convictions for murder, homicide and frustrated homicide do not prove that he was capable of killing Liberato.

Q: Since you admitted that your family and the family of the Bulataos have no misunderstanding whatsoever, can you tell the honorable court the reason why Veronica Bulatao pinpointed you as the one who shot Liberato Damias.

A:

I don't know of any reason, sir.

38

Q: As far as you are concerned Veronica Bulatao has no ill-motive to testify against you, is that what you mean.

A:

None, sir. 33

The records, however, prove otherwise. Before the incident, Delfin walked back and forth on the barangay road, a few meters from the balcony where Veronica was entertaining Liberato. 37 He waited for the perfect opportunity to execute his fiendish plot. While Liberato cozily sat in Veronica's sala, devoting his full attention to her, petitioner suddenly appeared at the door from behind and without warning shot him. Surely, there is no other conclusion but that he deliberately and consciously employed such means of execution to ensure his own safety from any form of defense that Liberato might have used.

Thus, contrary to petitioner's assertion, Veronica only testified against him to seek justice for Liberato's death, and not to arbitrarily implicate anyone just to put an end to her boyfriend's case.

Anent the paraffin test, it is true that it produced a negative result but such fact does not ipso facto merit Delfin's acquittal. This Court acknowledges that the absence of powder burns in a suspect's hand is not conclusive proof that he has not fired a gun. 34 In fact, the traces of nitrates can easily be removed by the simple act of washing one's hand. 35

It should be remembered that the essence of treachery is the swift and unexpected attack on an unarmed victim without the slightest provocation on the part of the latter. 38 This was what Delfin did. He attacked Liberato while he was deeply engrossed in conversation with Veronica, oblivious of the lurking peril to his life. The trial court was therefore correct in ruling that the crime committed was murder.

However, although we agree that Delfin was Liberato's assailant, we disagree with the sentence imposed by the appellate court. Murder, and not homicide, was committed.

The Court of Appeals also ruled that although recidivism was alleged in the Information, the evidence introduced was insufficient to prove it as an aggravating circumstance. According to the appellate court, the certification presented during the trial showing that Delfin was already on parole failed to state what crime he was previously convicted of. 39 As such, there was no way to determine if the prior crime committed fell under the same title as murder.

The Court of Appeals, abiding by established jurisprudence, ruled that before treachery could be considered, two (2) conditions must be present. First, that the means, method or manner of execution employed would ensure the safety of the malefactor from the retaliatory or defensive acts of the victim; and second, that the perpetrator deliberately or consciously adopted such means of execution. However, the appellate court ruled that the prosecution failed to satisfy the second requisite there being no proof that petitioner deliberately sought such manner of executing the crime to ensure his own safety from any form of retaliation that the victim might have employed. 36

The records however reveal that petitioner himself openly admitted in court that he was previously convicted of three (3) other offenses. He said:

Q: Is it not a fact Mr. Accused that you were previously convicted of murder, attempted homicide and homicide?

A:

I was convicted of Murder, Homicide and Attempted Homicide, sir.

39

Q: This conviction of the crime of Murder was under Criminal Case No. L1691, CFI, Lingayen Pangasinan and you were sentenced on July 20, 1978, is it not?

This candid admission by petitioner of his prior convictions is sufficient to establish recidivism as a generic aggravating circumstance. 41 And since all of his earlier convictions fall under the same title of The Revised Penal Code, i.e., Crimes Against Persons (Title Eight), he can be properly considered as a recidivist.

A:

That was Homicide, July 29, 1978, sir. Petitioner should therefore be convicted of murder qualified by treachery, with the generic aggravating circumstance of recidivism. When he committed the crime, the imposition of the death penalty was still prescribed by the 1987 Constitution, thus he should only be sentenced to reclusion perpetua and not death. And since the penalty imposed is reclusion perpetua, an indivisible penalty, the provisions of The Indeterminate Sentence Law applied by both the trial court and the Court of Appeals cannot be invoked. 42

Q:

Who was your victim in that homicide case?

A:

Bernardo Valdez, sir.

Q:

About this murder case conviction, who was your victim?

A:

Ricardo Villamin, sir.

WHEREFORE, the Decision of the Court of Appeals finding petitioner DELFIN ABALOS guilty of homicide is MODIFIED. He is instead adjudged GUILTY of MURDER with recidivism as a generic aggravating circumstance. He is therefore sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Liberato Damias P50,000.00 for civil indemnity, P30,000.00 for moral damages and P38,000.00 for actual damages, and to pay the costs.

Q:

And when were you convicted in this murder case? SO ORDERED.

A: I cannot remember already, sir. I was convicted first of Homicide, then attempted homicide and then murder.

Q:

And who was your victim in this Attempted Homicide case?

A:

Rodrigo Batucan, sir. 40

40

G.R. No. 107606

June 20, 1996

MERCEDES N. ABELLA, petitioner, vs. THE HONORABLE COURT OF APPEALS and CONRADO COLARINA, respondents. RESOLUTION FRANCISCO, J.:p

December, 1987, to April, 1988 or for a period of six (6) months, or the sum of TWENTY TWO THOUSAND Pesos (P22,000.00) to Colarina together with the destroyed and removed materials and improvements introduced by him in the premises leased; and (2) the dismissal of the case for lack of merit. 12

On May 26, 1987, petitioner Mercedes N. Abella, as lessor, and private respondent Conrado Colarina, as lessee, signed a contract of lease 1 of a portion of Juanabel Building situated at Elias Angeles Street, Naga City. The duration of the contract is from "July 1, 1987 until July 1, 1991" 2 or for a term of four (4) years 3 with a stipulated monthly rental of Three Thousand Pesos (P3,000.00). 4 Upon the signing of the contract, Colarina paid an amount of Forty Thousand Pesos (P40,000.00) to Abella which the latter acknowledged by issuing the corresponding receipt. 5 Intending to use the premises for his pawnshop business, Colarina introduced thereon certain improvements 6 for which he spent Sixty Eight Thousand Pesos (P68,000.00). Colarina paid the monthly rental on a regular basis but discontinued payment from November 1987 to April 1988. 7 Thereafter, Abella then made repeated demands to pay with notice of extrajudicial rescission pursuant to paragraph thirteen (13) 8 of the lease contract which were all unheeded. Thus, Abella took possession of the premises on May 1, 1988, with the assistance of the Naga City PNP and some Barangay officials 9 who made an inventory 10 of all the items found therein.

On appeal, the respondent Court of Appeals reversed the decision of the trial court and ordered petitioner Abella: (1) to restore to Colarina the possession of the leased premises under the same terms and conditions stated in the contract of lease; (2) to restore in the premises the improvements introduced by Colarina which were demolished or removed by Abella or to pay the value thereof in the sum of P68,000.00, with interest until fully paid; and (3) to pay the costs of the Suit. 13 Aggrieved, Abella filed this petition for review on certiorari faulting the respondent Court of Appeals with five assigned errors which basically dwell on the following issues, to wit: (1) whether or not respondent Colarina violated the contract of lease warranting its extrajudicial rescission; and (2) whether or not possession of the premises may properly be restored to Colarina.

Anent the first issue. It is not disputed that petitioner received the sum of forty thousand pesos (P40,000.00) from Colarina. 14 Petitioner and Colarina, however, are at loggerheads with respect to the purpose of such payment. The trial court agreed with the petitioner that the amount represents only a "goodwill money" given to the latter by Colarina in payment for the privilege to occupy the vacant portion of Juanabel Building. 15 On the other hand, the respondent Court of Appeals sided with Colarina and held that the same is an "advance deposit to answer for any rental which Colarina may fail to pay." 16 We uphold the findings of the respondent Court of Appeals.

On May 5, 1988, Colarina filed an action for "enforcement of contract of lease with preliminary mandatory injunction and damages" 11 against Abella before the Regional Trial Court (RTC) of Naga. After trial, the lower court among others ordered: (1) Abella to return the amount of Forty Thousand Pesos (P40,000.00) less Eighteen Thousand Pesos (P18,000.00) representing unpaid rental from November-

Our careful review of the record reveals that Colarina did not violate the subject contract of lease with respect to his rental obligation in view of his payment of forty thousand pesos. Reproduced hereunder are the contents of the receipt acknowledging the acceptance by the petitioner of the said amount of forty thousand pesos:

41

RECEIVED FROM MR. CONRADO O. COLARINA THE SUM OF FORTY THOUSAND PESOS (P40,000.00) AS ADVANCE DEPOSIT, TO ANSWER FOR ANY RENTAL WHICH MR. CONRADO COLARINA MAY FAIL TO PAY DURING THE TERM OF THE LEASE AS PER CONTRACT, DATED 26TH DAY OF MAY, 1987 NOTARIZED BEFORE NOTARY PUBLIC OSCAR VILLAMORA, DOC. NO. 398; PAGE NO. 80; BOOK NO. 9, SERIES OF 1987, THIS 26TH DAY OF MAY, 1987, AT NAGA CITY. (Emphasis supplied.)

(Sgd.) MERCEDES N. ABELLA 17

We also find unmeritorious petitioner's contention that the receipt failed to reflect her true intention warranting a reformation thereof. Petitioner, being of age and a businesswoman, is presumed to have acted with due care and to have signed the receipt in question with full knowledge of its contents and import. 24 Equally unmeritorious is petitioner's insistence that Colarina procured her signature "thru fraud and any other deceitful means", 25 an issue which was never raised below. It is a settled rule that an issue which was not threshed out below may not be raised for the first time on appeal. Moreover, no iota of evidence was ever adduced at the trial to support her allegation of fraud. The reformation of said receipt simply lacks basis.

It is a cardinal rule in the interpretation of contracts that "if the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control". 18 The above-quoted receipt is clear and unequivocal that the disputed amount is an advance deposit which will answer for any rental that Colarina may fail to pay. No amount of extrinsic aids are required and no further extraneous sources are necessary in order to ascertain the parties' intent, determinable as it is, from the receipt itself. 19

Hence, we rule that respondent Colarina was not yet in arrears with his rental payment when petitioner took possession of the leased premises on May 1, 1988. Accordingly, petitioner's rescission of the subject contract of lease was improper.

The second issue, however, has been rendered moot and academic by the timely expiration of the term of the subject contract of lease on July 1, 1991. 26 Colarina, therefore, has no more right to be restored to the possession of the leased premises, said right being coterminous with the term of the contract.

We are, thus, more convinced that the receipt expresses truly the parties' intent on the purpose of said payment as against the oral testimony of the petitioner that said amount is but only a "goodwill money". Without any doubt, oral testimony as to a certain fact, depending as it does exclusively on human memory, is not as reliable as written or documentary evidence. 20 "I would sooner trust the smallest slip of paper for truth", said Judge Limpkin of Georgia, "than the strongest and most retentive memory ever bestowed on mortal man." 21 This is especially true in this case where such oral testimony is given by the petitioner himself, a party to the case who has an interest in its outcome, and by Jesus Hipolito, a witness who claimed to have received a commission from the petitioner. 22 In addition, the trial court itself has found that this receipt is genuine when it brushed aside the petitioner's claim that her signature appearing thereon was a forgery. 23 The authenticity of the receipt further enhances its probative value as against the oral testimony of the petitioner and of her witness.

WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Mercedes N. Abella is hereby ordered to:

1. return to private respondent Conrado Colarina the amount of Forty Thousand Pesos (P40,000.00) less Eighteen Thousand Pesos (P18,000.00) (unpaid rental from November, 1987 to April, 1988 or for a period of six (6) months), or the sum of TWENTY TWO THOUSAND Pesos (P22,000.00);

2. pay private respondent Colarina the sum of Sixty Eight Thousand Pesos (P68,000.00), representing the value of the improvements demolished, with legal

42

interest reckoned from May 1, 1988, the date when petitioner took possession of the premises, until fully paid.

SO ORDERED.

43

G.R. No. 143286

April 14, 2004 The facts as found by the trial court are as follows:

PROCOPIO VILLANUEVA, NICOLAS RETUYA and PACITA VILLANUEVA, petitioners, vs. COURT OF APPEALS and THE HEIRS OF EUSEBIA NAPISA RETUYA, respondents. Plaintiff Eusebia Napisa Retuya, is the legal wife of defendant Nicolas Retuya, having been married to the latter on October 7, 1926. Out of the lawful wedlock, they begot five (5) children, namely, Natividad, Angela, Napoleon, Salome, and Roberta. Spouses Retuya resided at Tipolo, Mandaue City. During their marriage they acquired real properties and all improvements situated in Mandaue City, and Consolacion, Cebu, more particularly described as follows:

DECISION 1. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24951; CARPIO, J.: 2. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24952;

This petition for review on certiorari1 seeks the reversal of th e Court of Appeals Decision dated 31 January 2000 as well as its Resolution dated 25 April 2000 in CA-G.R. No. CV-46716. The assailed Decision dismissed petitioners appeal of the Decision of the Regional Trial Court, Branch 55, Mandaue City ("trial court").

3. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24953;

On 13 October 1988, Eusebia Napisa Retuya ("Eusebia") filed a complaint before the trial court against her husband Nicolas Retuya ("Nicolas"), Pacita Villanueva ("Pacita"), and Nicolas son with Pacita, Procopio Villanueva ("Procopio"). Eusebia sought the reconveyance from Nicolas and Pacita of several properties listed in paragraph 2 of the complaint ("subject properties"), claiming the subject properties are her conjugal properties with Nicolas. Eusebia also prayed for accounting, damages and the delivery of rent and other income from the subject properties.

4. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24954;

5. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24956;

Antecedent Facts

44

6. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24957;

15. A residential house located at Tipolo, Mandaue City covered by tax dec. No. 01050;

7. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24958;

16. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01048;

17. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01051; 8. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01042;

18. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01047; 9. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01043;

10. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01046;

19. A parcel of land located at Banilad, Mandaue City covered by tax dec. No. 02381;

20. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01049; 11. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01041; 21. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01045; 12. A parcel of land located at Nawanao-Subangdaku, Mandaue City covered by tax dec. No. 01488; 22. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01450 (in the name of Pacita Villanueva). 13. A parcel of land located at Baklid, Mandaue City, covered by tax dec. No. 00492; Also, defendant, Nicolas Retuya, is co-owner of a parcel of land situated in Mandaue City which he inherited from his parents Esteban Retuya and Balbina Solon as well as the purchasers of hereditary shares of approximately eight (8) parcels of land in Mandaue City.

14. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01044;

45

Some of these properties above-mentioned earn income from coconuts and the other lands/houses are leased to the following: In 1945, defendant Nicolas Retuya no longer lived with his legitimate family and cohabited with defendant, Pacita Villanueva, wherein defendant, Procopio Villanueva, is their illegitimate son. Nicolas, then, was the only person who received the income of the above-mentioned properties.

a) Mandaue Food Products Company for Lot 121-F, Lot 121-G and Lot 121-H under TCT No. 11300 at an annual rental of P10,800.00;

b) Barben Wood Industries, Inc. for Lot 148 covered by TCT No. l731 for an annual rental of P21,600.00;

Defendant, Pacita Villanueva, from the time she started living in concubinage with Nicolas, has no occupation, she had no properties of her own from which she could derive income.

c) Metaphil, Inc. parcel of land consisting of 2,790.51 sq. meters at the rate of P2,700.00 annually for the first five (5) years, and P3,240.00 for the second years;

d) Benedicto Development Corp. for a portion of Lot 148 covered by TCT No. 1731 for a period of 20 years at an annual rate of P3,500.00 renewable for another 20 years after April 1, 1995 at an annual rate of P4,000.00;

In 1985, Nicolas suffered a stroke and cannot talk anymore, cannot walk anymore and they have to raise him up in order to walk. Natividad Retuya knew of the physical condition of her father because they visited him at the hospital. From the time defendant Nicolas Retuya suffered a stroke on January 27, 1985 and until the present, it is defendant Procopio Villanueva, one of Nicolas illegitimate children who has been receiving the income of these properties. Witness Natividad Retuya went to Procopio to negotiate because at this time their father Nicolas was already senile and has a childlike mind. She told defendant, Procopio that their father was already incapacitated and they had to talk things over and the latter replied that it was not yet the time to talk about the matter.

e) Benedicto Development Corporation for a portion of Lot No. 148 covered by Certificate of Title No. 1731 over an area of 6,000 sq. meters for an annual rental of P9,500.00 for a period of 2 years from June 1, 1982;

f) Visayan Timber and Machinery Corp. over a parcel of land at Nawanaw, Mandaue City, for a period of 2 years from June 1, 1987 and renewable for another 12 years at an annual income of P4,000.00;

Plaintiff, then, complained to the Barangay Captain for reconciliation/mediation but no settlement was reached, hence, the said official issued a certification to file action. Written demands were made by plaintiff, through her counsel, to the defendants, including the illegitimate family asking for settlement but no settlement was reached by the parties.

g) House lessees listed in Exhibit "13" with total monthly rentals of P1,975.00 a month for the 24 lessees or P24,700.00 annually. (Exhs. "7" to "13")

Further, plaintiffs witness, Natividad Retuya, testified that the parcel of land covered by tax declaration marked Exhibit "T" was the property bought by her father from Adriano Marababol for at the time of purchase of the property, defendant Pacita Villanueva had no means of livelihood (TSN, p. 6).

46

The trial court rendered its Decision on 16 February 1994 in favor of Eusebia. The dispositive portion of the Decision states:

5. Ordering the City Assessors Office of Mandaue City to cancel tax declaration No. 01450 in the name of Pacita Villanueva and direct the issuance of a new title and tax declaration in the names of Eusebia Napisa Retuya and Nicolas Retuya;

WHEREFORE, in view of the foregoing considerations, judgment is rendered in favor of the plaintiff Eusebia Napisa Retuya and against defendants Procopio Villanueva, Nicolas Retuya and Pacita Villanueva:

6. Ordering defendants jointly and severally to reconvey that certain building of strong materials located at Tipolo, Mandaue City under tax dec. No. 01450 into the names of Eusebia Retuya and Nicolas Retuya;

1. Declaring the properties listed in paragraph 2 of the amended complaint as conjugal properties of the spouses plaintiff Eusebia Retuya and the defendant Nicolas Retuya;

7. Ordering defendants jointly and severally to pay plaintiff the sum of P50,000.00 by way of attorneys fees and expenses of litigation in the sum of P5,000.00 plus the costs.

SO ORDERED. 2. Ordering the transfer of the sole administration of conjugal properties of the spouses Eusebia Retuya and Nicolas Retuya in accordance with Art. 124 of the Family Code to the plaintiff Eusebia Napisa Retuya; Petitioners appealed the trial courts decision to the Court of Appeals. Eusebia died on 23 November 1996. Thereafter, Eusebias heirs substituted her pursuant to the resolution of the Court of Appeals dated 7 April 1997. The Court of Appeals eventually upheld the Decision of the trial court but deleted the award of attorneys fees, ruling in this wise:

3. Ordering defendant Procopio Villanueva to account and turnover all proceeds or rentals or income of the conjugal properties from January 27, 1985 when he took over as administrator thereof and until he shall have ceased administering the same in accordance with the judgment of this Court;

WHEREFORE, the decision dated February 16, 1994 is AFFIRMED with the modification that the award of attorneys fees of P50,000.00 is deleted. 4. Ordering defendants jointly and severally to reconvey the parcel of land situated at Tipolo, Mandaue City now in the name of defendant Pacita Villanueva under tax dec. No. 01450 and transfer the same into the names of the conjugal partners Eusebia N. Retuya and Nicolas Retuya;

SO ORDERED.

Petitioners filed a Motion for Reconsideration on 23 February 2000 which the Court of Appeals denied in a Resolution dated 11 May 2000.

47

Hence, this petition.

The Issues

The Trial Courts Ruling

Petitioners Nicolas, Pacita and Procopio contend that both the trial and appellate courts erred in ruling in favor of Eusebia. They seek a reversal and raise the following issues for resolution:

The trial court applied Article 116 of the Family Code, which reads: 1. WHETHER THE COURT OF APPEALS ERRED IN SUSTAINING THE DECLARATION OF THE TRIAL COURT THAT THE PROPERTIES LISTED IN PARAGRAPH 2 OF THE COMPLAINT ARE CONJUGAL PROPERTIES OF NICOLAS RETUYA AND EUSEBIA RETUYA ALTHOUGH THIS WAS NOT ONE OF THE CAUSES OF ACTION IN EUSEBIAS COMPLAINT.

Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed conjugal unless the contrary is proved.

The trial court ruled that the documents and other evidence Eusebia presented constitute "solid evidence" which proved that the subject properties were acquired during her marriage with Nicolas. This made the presumption in Article 116 applicable to the subject properties. Thus, the trial court ruled that Eusebia had proved that the subject properties are conjugal in nature. On the other hand, the trial court found that petitioners failed to meet the standard of proof required to maintain their claim that the subject properties are paraphernal properties of Nicolas. The trial court added that Pacita presented no "factual solidity" to support her claim that she bought Lot No. 1522 exclusively with her own money.

2. WHETHER THE COURT OF APPEALS ERRED IN APPLYING THE PRESUMPTION THAT PROPERTIES ACQUIRED DURING THE EXISTENCE OF THE MARRIAGE OF NICOLAS RETUYA AND EUSEBIA RETUYA ARE CONJUGAL.

3. WHETHER THE COURT OF APPEALS ERRED IN NOT APPLYING INSTEAD THE PRESUMPTION UNDER ARTICLE 148 OF THE FAMILY CODE IN FAVOR OF CO-OWNERSHIP BETWEEN NICOLAS RETUYA AND PACITA VILLANUEVA.

The Court of Appeals Ruling 4. WHETHER THE COURT OF APPEALS ERRED IN NOT DECLARING THAT THE ACTION FOR RECONVEYANCE OVER LOT NO. 152 IS ALREADY BARRED BY PRESCRIPTION OR LACHES.3

The Court of Appeals concurred with the findings of the trial court. The appellate court found that Pacita failed to rebut the presumption under Article 116 of the Family Code that the subject properties are conjugal. The appellate court dismissed Pacitas defense of prescription and laches since she failed to have the issue included in the pre-trial order after raising it in her answer with her co-petitioners.

The Ruling of the Court

48

The petition lacks merit.

We agree with the Court of Appeals observation that while petitioners did raise the issue of prescription and laches in their Answer,5 they failed to have the same included in the pre-trial order for consideration during the trial. Now, petitioners wish to raise the issue on appeal by relying on Section 1, Rule 9 of the Rules of Court, which provides:

First Issue: On the Alleged Failure To Claim that the Properties are Conjugal Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Petitioners contention that Eusebias complaint failed to state that the subject properties are conjugal is absolutely without basis. A cursory reading of the complaint readily shows that the complaint maintains that the subject properties are conjugal.4 The first sentence of the second paragraph of the complaint states:

Petitioners are mistaken. 2. The plaintiff Eusebia Retuya and defendant Nicolas Retuya are husband and wife and conjugal owners of real properties and all improvements thereon situated in Mandaue City and Consolacion, Cebu more particularly described as follows: (Emphasis added)

The same claim is restated and repleaded throughout the complaint. Petitioners should know better than to clutter their appeal with useless arguments such as this.

The determination of issues during the pre-trial conference bars the consideration of other questions, whether during trial or on appeal.6 Section 1 of Rule 9 covers situations where a defense or objection is not raised in a motion to dismiss or an answer. What we have before us is the exact opposite. Here, petitioners in fact raised in their answer the defense of prescription and laches. However, despite raising the defense of prescription and laches in their answer, petitioners failed to include this defense among the issues for consideration during the trial. The non-inclusion of this defense in the pre-trial order barred its consideration during the trial. Clearly, Section 1 of Rule 9 does not apply to the present case.

The other issues petitioners raise contest in essence the finding that the subject properties are conjugal in nature. Apart from this, the only other issue raised is whether prescription or laches bars Eusebias complaint. We shall resolve first the issue of prescription and laches.

Second Issue: Prescription and Laches

Pre-trial is primarily intended to insure that the parties properly raise all issues necessary to dispose of a case.7 The parties must disclose during pre-trial all issues they intend to raise during the trial, except those involving privileged or impeaching matters.8 Although a pre-trial order is not meant to catalogue each issue that the parties may take up during the trial, issues not included in the pre-trial order may be considered only if they are impliedly included in the issues raised or inferable from the issues raised by necessary implication.9 The basis of the rule is simple.

49

Petitioners are bound by the delimitation of the issues during the pre-trial because they themselves agreed to the same.10

presence of extremely meritorious circumstances.15 None exists in this case. We note with disfavor that most of the issues raised in this petition are factual. We caution the petitioners that this practice of deluging the Court with factual issues in defiance of well-settled rule, in the hope of having them reviewed, is unacceptable.

Petitioners argue that in past instances we have reviewed matters raised for the first time during appeal. True, but we have done so only by way of exception involving clearly meritorious situations.11 This case does not fall under any of those exceptions. The fact that the case proceeded to trial, with the petitioners actively participating without raising the necessary objection, all the more requires that they be bound by the stipulations they made at the pre-trial.12 Petitioners were well aware that they raised the defense of prescription and laches since they included it in their answer. However, for reasons of their own, they did not include this defense in the pre-trial.

Able counsels represented both parties. We see no claim that either counsel erred or was negligent. This could only mean that petitioners counsel chose to waive, or did not consider important, the defense of prescription and laches. Petitioners are bound by their counsels choice. Other than arguing that it is allowable to raise the issue for the first time on appeal, we have no explanation from petitioners why they suddenly decided to change their mind. Parties are not allowed to flip-flop. Courts have neither the time nor the resources to accommodate parties who choose to go to trial haphazardly. Moreover, it would be grossly unfair to allow petitioners the luxury of changing their mind to the detriment of private respondents at this late stage. To put it simply, since petitioners did not raise the defense of prescription and laches during the trial, they cannot now raise this defense for the first time on appeal.13

The only issue proper for resolution is the question of whether the subject properties are conjugal. Petitioners claim that the subject properties16 are exclusive properties of Nicolas except for Lot No. 152, which they claim is Pacitas exclusive property. This issue is easily resolved. The Family Code provisions on conjugal partnerships govern the property relations between Nicolas and Eusebia even if they were married before the effectivity of Family Code.17 Article 10518 of the Family Code explicitly mandates that the Family Code shall apply to conjugal partnerships established before the Family Code without prejudice to vested rights already acquired under the Civil Code or other laws. Thus, under the Family Code, if the properties are acquired during the marriage, the presumption is that they are conjugal.19 The burden of proof is on the party claiming that they are not conjugal.20 This is counter-balanced by the requirement that the properties must first be proven to have been acquired during the marriage before they are presumed conjugal.21 Petitioners argue that Eusebia failed to prove this pre-requisite. We disagree.

Third Issue: Whether the Subject Properties Are Conjugal

The question of whether the subject properties were acquired during the marriage of Nicolas and Eusebia is a factual issue. Both the trial and appellate courts agreed that the subject properties were in fact acquired during the marriage of Nicolas and Eusebia.22 The tax declarations23 covering the subject properties, along with the unrebutted testimony of Eusebias witnesses, establish this fact. We give due deference to factual findings of trial courts,24 especially when affirmed by the appellate court. A reversal of this finding can only occur if petitioners show sufficient reason for us to doubt its correctness. Petitioners in the present case have not.

We proceed to the crux of this petition. Moreover, on whether Lot No. 152 is conjugal or not, the answer came from petitioners themselves. Nicolas and Eusebia were married on 7 October 1926. Nicolas and Pacita started cohabiting in 1936. Eusebia died on 23 November 1996.

We reiterate the basic rule that a petition for review should only cover questions of law.14 Questions of fact are not reviewable. The exceptions apply only in the

50

Pacita and Nicolas were married on 16 December 1996. Petitioners themselves admit that Lot No. 152 was purchased on 4 October 1957.25 The date of acquisition of Lot No. 152 is clearly during the marriage of Nicolas and Eusebia.

Since the subject properties, including Lot No. 152, were acquired during the marriage of Nicolas and Eusebia, the presumption under Article 116 of the Family Code is that all these are conjugal properties of Nicolas and Eusebia. The burden is on petitioners to prove that the subject properties are not conjugal. The presumption in Article 116, which subsists "unless the contrary is proved," stands as an obstacle to any claim the petitioners may have. The burden of proving that a property is exclusive property of a spouse rests on the party asserting it and the evidence required must be clear and convincing.26 Petitioners failed to meet this standard.

Petitioners also point out that all the other tax declarations presented before the trial court are in the name of Nicolas alone. Petitioners argue that this serves as proof of Nicolas exclusive ownership of these properties. Petitioners are mistaken. The tax declarations are not sufficient proof to overcome the presumption under Article 116 of the Family Code. All property acquired by the spouses during the marriage, regardless in whose name the property is registered, is presumed conjugal unless proved otherwise.30 The presumption is not rebutted by the mere fact that the certificate of title of the property or the tax declaration is in the name of one of the spouses only.31 Article 116 of the Family Code expressly provides that the presumption remains even if the property is "registered in the name of one or both of the spouses."

Petitioners point out that the deed of sale, the transfer certificate of title and the tax declaration of Lot No. 152 are all in the name of Pacita. Petitioners maintain that this can only mean that Pacita is the real owner of Lot No. 152. We disagree. The totality of the evidence reveals that this was merely just one of the several schemes Nicolas employed to deprive Eusebia of their conjugal property. Ironically, petitioners themselves submitted in evidence a decision rendered by the Regional Trial Court of Cebu, Branch IV, in Civil Case No. R-960227 involving the acquisition of Lot No. 152.

In some of the documents that petitioners presented, Nicolas misrepresented his civil status by claiming that he was single. Petitioners point to this as proof of Nicolas desire to exclude Eusebia from the properties covered by the documents.32 Petitioners further claim that this supports their stand that the subject properties are not conjugal. This argument is baseless. Whether a property is conjugal or not is determined by law and not by the will of one of the spouses. No unilateral declaration by one spouse can change the character of conjugal property. The clear intent of Nicolas in placing his status as single is to exclude Eusebia from her lawful share in the conjugal property. The law does not allow this.

The decision in Civil Case No. R-9602 stated that Tranquiliana Marababol Remulta testified that the one who offered to buy the lot from her was none other than Nicolas Retuya.28 Tranquiliana narrated that at first she refused to sign the deed of sale because the buyer placed in the deed was Pacita and not Nicolas, her understanding being that the buyer was Nicolas. We find that the trial court in the present case correctly took into consideration the decision in Civil Case No. R9602.29 Considering that the decision in Civil Case No. R-9602 has become final and executory, its findings of fact involving the sale of Lot No. 152 to Nicolas and Pacita are conclusive and binding on petitioners who introduced in evidence the decision.

Petitioners point out that Pacita had the means to buy Lot No. 152. Even if Pacita had the financial capacity, this does not prove that Pacita bought Lot No. 152 with her own money. To rebut the presumption that Lot No. 152 is conjugal, petitioners must prove that Pacita used her own money to pay for Lot No. 152. Petitioners failed to prove this.

Petitioners further argue that since Nicolas and Pacita were already cohabiting when Lot No. 152 was acquired, the lot cannot be deemed conjugal property of Nicolas and Eusebia. Petitioners keep belaboring this point in their petition and memorandum.

51

Petitioners argument is flawed.

The cohabitation of a spouse with another person, even for a long period, does not sever the tie of a subsisting previous marriage.33 Otherwise, the law would be giving a stamp of approval to an act that is both illegal and immoral. What petitioners fail to grasp is that Nicolas and Pacitas cohabitation cannot work to the detriment of Eusebia, the legal spouse. The marriage of Nicolas and Eusebia continued to exist regardless of the fact that Nicolas was already living with Pacita. Hence, all property acquired from 7 October 1926, the date of Nicolas and Eusebias marriage, until 23 November 1996, the date of Eusebias death, are still presumed conjugal. Petitioners have neither claimed nor proved that any of the subject properties was acquired outside or beyond this period.

Finally, petitioners reliance on Article 148 of the Family Code34 is misplaced. A reading of Article 148 readily shows that there must be proof of "actual joint contribution" by both the live-in partners before the property becomes co-owned by them in proportion to their contribution. The presumption of equality of contribution arises only in the absence of proof of

their proportionate contributions, subject to the condition that actual joint contribution is proven first. Simply put, proof of actual contribution by both parties is required, otherwise there is no co-ownership and no presumption of equal sharing. Petitioners failed to show proof of actual contribution by Pacita in the acquisition of Lot No. 152. In short, petitioners failed to prove that Pacita bought Lot No. 152 with her own money, or that she actually contributed her own money to acquire it.

WHEREFORE, we DENY the petition. The Decision of the Court of Appeals dated 31 January 2000 in CA-G.R. CV No. 46716 is AFFIRMED.

SO ORDERED.

52

G.R. Nos. 148063-64

June 17, 2004 ACTS CONTRARY TO LAW.

PEOPLE OF THE PHILIPPINES, appellee, vs. MAXIMO IBARRIENTOS y PERICO, appellant. That on or about 7:00 oclock in the morning of February 11, 1998, in Barangay Sagurong, Municipality of Pili, Camarines Sur, Philippines and within the jurisdiction of this court, the above-named accused, being the father of and having parental authority, influence and moral ascendancy over victim JOAN IBARRIENTOS, his 7 year old daughter, while the latter was sick and sleeping in their bedroom, did then and there, with lewd design, willfully, unlawfully and feloniously lie on top of her and succeeded in having carnal knowledge of her which she reported immediately to her mother, Imelda, to her damage and prejudice. The information4 in Criminal Case No. P-2696 reads:

DECISION

QUISUMBING, J.:

For automatic review is the joint judgment1 dated January 15, 2001 of the Regional Trial Court of Pili, Camarines Sur, Branch 31, in Criminal Case Nos. P-2695 and P2696. The RTC convicted appellant Maximo Ibarrientos,2 of two counts of incestuous rape. In each case, he was sentenced to death and was ordered to pay P75,000 as indemnity, P50,000 moral damages, P50,000 exemplary damages, and the costs.

ACTS CONTRARY TO LAW.

When arraigned, appellant pleaded not guilty to both charges.5 Trial promptly ensued thereafter.

The information3 in Criminal Case No. P-2695 reads: The prosecution presented six witnesses. That on or about August, 1996 in Barangay Sagurong, Pili, Camarines Sur, Philippines within the jurisdiction of the Honorable Court, the said accused who is the Uncle of the victim, LORILIE a.k.a. LORELIE I. BRILLO, then an eight (8) years (sic) old minor while in their house, did then and there, with lewd design willfully, unlawfully and feloniously lie and succeeded in having carnal knowledge of said Lorelie I. Brillo, who afterwards reported the incident to her Aunt, Imelda Ibarrientos, the wife of the accused, to her damage and prejudice.

The first witness, LORELIE6 I. BRILLO, testified that the appellant Maximo Ibarrientos is her maternal uncle.7 She tearfully recounted that on August 19, 1996 at around 8 a.m., she was playing with the appellants children outside his home8 in Sagurong, Pili, Camarines Sur. Appellant beckoned her, "Be, madya." ("Be, come here.").9 He handed a twenty-peso bill to his children, and ordered all of them to go buy cigarettes10 in a store located far from the house.11

53

Jonnie immediately rushed into the bedroom. However, according to Joan, he could do nothing except look, because appellant was armed with a balisong (knife).28 Thereafter, he told Lorelie to go inside the bedroom,12 to lie down, and remove her shorts and underwear.13 Appellant undressed himself, lay on top of her, and inserted his penis into her vagina.14 Lorelie testified that the penetration caused her pain.15 When he withdrew, she saw blood come out of her private part which she wiped.16 His lust satisfied, he told her to get out of the room. She said she was eight years old at the time of the incident.

When he was finished with her, Joan said, appellant threatened her and Jonnie to keep quiet otherwise he would kill their mother.29 Appellant immediately left. Meanwhile, Joan saw a white sticky substance and some blood in her vagina. With a yamit (piece of cloth), she wiped the substances off her private part.30

According to Lorelie, her Aunt Imelda, who is the appellants wife, soon arrived from the fields. Imelda saw Lorelie crying, and asked what was wrong. Lorelie did not answer.17 But after several days had passed,18 Lorelie related her ordeal to Imelda. Lorelie testified that this incident was not the first time that appellant raped her. She said she kept quiet because appellant warned her that if she told anyone what happened to her, he would bury her alive.19

Despite appellants warning, however, Joan told her mother of her defilement. She showed the yamit to her mother. As soon as he arrived home, her mother confronted appellant and they quarreled. Joan and her mother left for Cadlan, where Joan stayed with her maternal grandmother.31 She has transferred to a new school and had not returned to live in Sagurong since the incident.32

The other private complainant, JOAN IBARRIENTOS, testified that appellant Maximo Ibarrientos is her father. According to her testimony, he raped her on February 11, 1998, at around 7 a.m. That day she was absent from school due to a fever. Her mother left her with her paternal grandmother20 who lived thirty meters away from them.21 While she was at her grandmothers place, appellant called her to come home. When she reached home, appellant whipped her for unknown reasons.22 She then went to the bedroom and slept on the floormat next to her younger brother, Joseph,23 who was asleep.24

IMELDA F. IBARRIENTOS testified that she is legally married to appellant,33 and that Joan is her daughter, while Lorelie is her niece. Imelda explained that when she first learned about what happened to Lorelie, she told appellants mother, Eugenia T. Ibarrientos. However, Eugenia even chastised her for believing the tales of the children. She was told not to meddle.34 Thus, she kept silent until she learned of her own daughters rape two years later.35

But Joan said she was roused from her sleep by appellant. He was sitting on the floor with his legs outstretched, naked from the waist down.25 He undressed her and made her sit on his lap, facing him. And, according to her testimony, he inserted his penis into her vagina. It caused her much pain26 and made her scream.

Imelda recalled that Joan told her about the incident the very afternoon when it occurred. Enraged, she confronted her husband as soon as he arrived. She cried, "You animal, why did you do this to your daughter?" She remembered he did not mind her, and even increased the volume of the television set he was watching.

Joan said that during this time, Joseph was sleeping.27 But her scream was loud enough for her older brother, Jonnie, who was playing outside the house, to hear.

Imelda testified that the day after the incident, she brought both Joan and Lorelie to the Department of Social Welfare and Development36 where they related the incident to Rosa Bona, the social worker on duty.37 In her interview, Imelda admitted that it was only on March 11, 1998, a month after Joan was defiled and over one and a half years after Lorelie was raped, that she sought the assistance of

54

the National Bureau of Investigation (NBI), and it was only then that she had the girls examined by a doctor.38

Prosecution witness ROSA C. BONA testified that she is a social worker of the DSWD assigned in Pili, Camarines Sur.39 She recalled that on March 12, 1998, Imelda Ibarrientos came to their office to complain about the appellants rape of Joan and Lorelie. She interviewed Joan, Lorelie and Imelda, and afterwards accompanied them to the NBI for investigation, documentation, and medical examination.40 Afterwards, she made social case study reports41 on her findings which the prosecution formally offered as part of the evidence.42

Witness ANIANO F. REMITER corroborated the story of appellant that appellant had been working in his farm since 1975 to August 1996. However, on crossexamination, he admitted that the farm was located only some 500 meters away from the scene of the alleged rape and that the appellant worked in his farm for only one week in August of 1996.47

Another witness for the defense, EUGENIA P. IBARRIENTOS, testified that she is appellants mother,48 and that Joan and Lorelie are her granddaughters. She claimed that the charges against appellant are false. She added that the only reason her daughter-in-law charged the appellant was to continue her illicit relations with another man.49

For the defense, five witnesses were presented. Eugenia said that Joan stayed in her house on the day of the alleged rape incident from 6 a.m. to 5 p.m. to nurse her fever. She said that she left Joan in the house at 2 p.m. but when she returned at 5 p.m., Joan had already left.50 She corroborated appellants story and said that he dropped by at 6 a.m. but left immediately to go with his father, Maximo Sr., to get the electric posts.51 She claimed her son did not return to the house that day. Eugenia concluded that Lorelies complaint, like Joans, was also untrue.52

Appellant MAXIMO IBARRIENTOS, denied the charges against him, claiming an alibi. According to appellant, on the day that he alleged raped Lorelie, he was actually at the Camarines Sur State Agricultural College at San Jose, Pili, which is 500 meters away. He said he was engaged in tilling the land of a certain Aniano Remiter.43 Appellant added that his work required him to be at the site almost everyday before 7 a.m. to around 5 p.m.44 Aside from that he also worked on his parents farm.45 He claimed he could not have raped Lorelie, considering his wor k schedule. According to him, his niece accused him because of the instigation of his wife, Imelda, who was at odds with his parents who believed she was having an affair with another man.46

Witness VIRGINIA S. SAO testified that on February 11, 1998, the appellant dropped by her house, which is approximately one kilometer away from his home,53 to get some skates for transporting electric posts. On direct examination she said that the appellant dropped by her house at around 6 a.m.,54 but on cross and re-direct examination she clarified he picked up the skates at around 8 a.m.55

Appellant also denied raping his daughter, Joan. He said he was not at his parents house on February 11, 1998. He recalled that he left home early to get skates and an engine to transport the electric posts needed in their area. The work lasted the whole day from around 6 a.m. until around 5 p.m. He remembered he saw his daughter for the first time that day, when he reached home. He repeated that it was his wife who plotted to charge him with rape of his daughter.

The fifth witness for the defense, DOLORES B. BOLO, an aunt of the appellant,56 corroborated Eugenias testimony that Joans complaint was false. She stated that on the day Joan claimed to have been raped, she was with Joan in Eugenias house and she stayed from early in the morning until around 4:30 p.m.57 She never took her sight off Joan as she observed her play. She noticed she was a bit weak due to fever.58

55

Dr. Wilson C. Moll Lee, the medico-legal officer of the NBI, medically examined both private complainants. His report on Lorelie disclosed the following:

Pubic hair, no growth. Labia majora and minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, short, thin, intact. Hymenal orifice, measure 1.0 cm in diameter. Vaginal walls and Rugosities, cannot be reached by the examining finger.

GENITAL EXAMINATION:

CONCLUSIONS:

Pubic hair, no growth. Labia majora and minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, short, thin, intact. Hymenal orifice, measures 1.5 cm in diameter. Vaginal walls and Rugosities, cannot be reached by the examining finger.

1. No evident sign of extragenital physical injury noted on the body of the subject at the time of examination.

CONCLUSIONS:

2. Hymen, intact and its orifice small (1.0 cm in diameter) as to preclude complete penetration by an average-sized, adult, Filipino male organ in full erection without producing any genital injury.60

1. No evident sign of extragenital physical injury noted on the body of the subject at the time of examination.

2. Hymen, intact, and its orifice small (1.5 cm in diameter) as to preclude complete penetration by an average-sized, adult, Filipino male organ in full erection without producing any genital injury.59

Dr. Lee testified, however, that it was possible there had been no complete penetration in these cases. While the orifice of both victims were 1.0 and 1.5 cm. in diameter, the normal size of an adult Filipino males organ was 2.5 cm. in diameter. Thus, there might have been penetration of the labia and pudendum, but not the hymen, as the reports stated that the victims hymens were intact. He concluded that whatever external injuries and bruises the victims may have sustained would have healed after a month from the time of the incident.61

His report on Joan revealed the following:

The trial court found that the appellant was guilty beyond reasonable doubt on both counts of rape, and sentenced him to death. Its decision in its decretal portion reads:

GENITAL EXAMINATION:

WHEREFORE, in the light of the foregoing, joint judgment in these two (2) cases is hereby rendered as follows:

56

1. In Criminal Case No. P-2695, finding the herein accused MAXIMO IBARRIENTOS a.k.a. MAXIMO IBARRIENTOS, JR. guilty beyond reasonable doubt of the offense of RAPE defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 and hereby sentencing him to suffer the supreme penalty of DEATH. As civil liability he is ordered to pay the offended party Lorilie/Lorelie I. Brillo, the amount of Fifty Thousand (P50,000.00) Pesos as moral damages, another Fifty Thousand (P50,000.00) Pesos as exemplary damages and the amount of Seventy-Five Thousand (P75,000.00) Pesos, as rape indemnity or a total of ONE HUNDRED SEVENTY FIVE THOUSAND (P175,000.00) PESOS, Philippine Currency;

THE COURT A-QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II 2. In Criminal Case No. P-2696, again finding the same accused MAXIMO IBARRIENTOS a.k.a. MAXIMO IBARRIENTOS, JR., guilty beyond reasonable doubt of the offense of RAPE defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 in relation to Republic Act No. 8353 and hereby sentencing him to suffer another penalty of DEATH. As civil liability, he is also ordered to pay the offended party Joan Ibarrientos c/o her mother Imelda F. Ibarrientos, the amounts of Fifty Thousand (P50,000.00) Pesos, as moral damages, another Fifty Thousand (P50,000.00) Pesos as exemplary damages and Seventy-Five Thousand (P75,000.00) Pesos as rape indemnity or a total of ONE HUNDRED SEVENTY FIVE THOUSAND (P175,000.00) PESOS, Philippine Currency and to pay the costs in both instances.

THE COURT A-QUO GRAVELY ERRED IN IMPOSING UPON THE ACCUSED-APPELLANT THE SUPREME PENALTY OF DEATH WHEN THE AGE OF THE PRIVATE COMPLAINANTS AND THEIR RELATIONSHIP WITH THE ACCUSED-APPELLANT, ALTHOUGH STATED IN THE INFORMATIONS, WERE NOT ALLEGED WITH SPECIFICITY AS QUALIFYING CIRCUMSTANCES.63

Simply put, there are two issues for our resolution: (1) Whether appellant is guilty of rape in these two cases beyond reasonable doubt. (2) Whether in each case the penalty of death has been properly imposed. After promulgation, let the entire records of these two (2) cases be elevated immediately to the Honorable Supreme Court for automatic review pursuant to Section 22, of Republic Act No. 7659, amending Article 47 of the Revised Penal Code.

SO ORDERED.62

Hence, this automatic review. Before us, appellant assigns the following errors allegedly committed by the trial court:

On the first issue, appellant contends that no hard evidence was presented by the prosecution in order to substantiate the offenses charged. Although appellants defense of denial and alibi may seem weak, he asserts that the trial court should not precipitately disregard it for it could really be the truth. According to him, his defense was corroborated by two disinterested witnesses, namely Aniano Remiter and Virginia Sao. Hence, he insists the paramount duty of the prosecution is to prove appellants guilt on the strength of its own evidence, and not just rely on the weakness of the evidence presented by the defense.64

57

For appellee, the Office of the Solicitor General (OSG) counters that appellants defense of alibi lacks one vital element, that it was physically impossible for him to be at the locus criminis at the time of the alleged crime. Moreover, said the OSG, a bare denial cannot overcome the positive identification of appellant by the victims that he was indeed their ravisher. The OSG concludes that ultimately the issue boils down to the credibility of the witnesses, which is best left to the judgment of the trial court for it had the opportunity to observe the deportment of the witnesses on the stand.65

In the case of Joan, she even graphically demonstrated how her father ravished her when she re-enacted the deed showing how naked, she was made to sit on his likewise naked lap until he was able to ejaculate.67

Private complainants testimonies deserve full faith and credence.68 In a similar case we held that "at such tender years, they were still unfamiliar with and nave in the ways of the world that it is quite unbelievable that they could fabricate such a sordid story of personal defloration. Their testimonies therefore cannot be disregarded."69

In these two cases of rape, the alleged victims were presented by the prosecution and subjected to prolonged cross-examination by the defense. Both victims Lorelie and Joan, stood pat in their accusation against appellant that he abused them sexually. Despite their tender age, the private complainants withstood the grueling direct and cross-examinations with their credibility intact. Rape victims, especially those who are of tender age, would not normally concoct a story of defloration, allow an examination of their private parts and undergo a public trial, if they were not motivated solely by the desire to have their ravishers apprehended and punished. As long as their testimony meets the test of credibility, the accused-appellant may be convicted on that sole basis.66

Both victims cried when they testified. As found by the trial court:

We note that the physical examination of the victims took place more than one month after the incidents subject of the complaints. Although the victims bore no evident sign of extragenital injury, and that the hymen of each victim was intact, Dr. Lee of the NBI did not rule out the commission of rape. As the law now stands, penetration of the victims organ is not required for the commission of rape. A torn hymen is not an essential element of rape, not even when the victim is an innocent child. Medical research also shows negative findings after physical examination of the victims are of no significance, since the hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have been reported in women with unruptured hymens.70 In a previous case we also ruled that rape occurred despite repeated intercourse over a period of four years, the complainant still retained an intact hymen without signs of injury.71

And as they were relating their traumatic experiences in open Court, both of these minor-victims were observed by the Court to be quite stressful, tense and hardly able to fully answer and explain all the other consequential details, and every now and then breaking into tears as they re-lived what to them must have been quite excruciating pain and anguish specially since their violator was a close kin to Lorelie and the very own father of Joan who should have rightly been their protector and shield from these reprehensible and horrendous offenses, not himself the perpetrator.

We cannot accept appellants defense of alibi. In People v. Francisco,72 a case involving the sexual abuses on a child victim by a relative, we did not give credence to the defense of denial and alibi interposed by accused-appellant. We said that these defenses are inherently weak. It is elementary that for alibi to prosper, the accused must not only prove his presence in another place at the time of the commission of the offense, but he must also demonstrate that it would be physically impossible for him to be at the locus criminis at the time of the commission of the crime.73

58

In Crim. Case No. P-2695, appellant himself admitted that the place where he was at the time of the alleged rape of Lorelie was a short walking distance from the place where the offense was committed. He testified that the distance between the two places would take around thirty minutes walk but definitely would not take more than one hour.74 Moreover, appellant himself admitted during his testimony that one witness for the defense, Virginia Sao, is his cousin,75 and therefore biased in his favor.

that assuming he is found to be the perpetrator of the felonies, he should be found guilty of two counts of simple rape, not qualified rape.81

The imputation of ill motive on the part of appellants wife, Imelda Ibarrientos, would not necessarily detract from the weight of the victims testimonies. That Imelda had a lover, and she would like to get rid of appellant by filing the charges against him, deserves scant consideration. From one viewpoint, the minor victims would not fabricate a tale so heinous if only to please Imelda or to punish her husband. Despite their tender ages, the private complainants would not expose themselves to public ridicule and the ordeal of a trial just to please a mother or an aunt, as the case may be, if the victims were not bent on pursuing a just and compelling cause.

The OSG insists that the circumstances should be appreciated as qualifying circumstances. It cites People v. Aquino,82 which explained how aggravating and qualifying circumstances should be alleged as required under Sec. 8, Rule 110 of the Revised Rules of Criminal Procedure. Following Aquino, the allegation of circumstances in the information need not be preceded by the word "qualified", since it is sufficient that the circumstances be specified in the information to apprise the appellant of the charges against him.83

We agree with the OSG. The Aquino case settled already the issue on the proper allegation of circumstances. What properly informs the accused of the nature of the crime charged is the specific allegation of the circumstances mentioned in the law that raise the crime to a higher category.

From another perspective, we have previously held that no mother in her right mind would expose her daughter to the trauma resulting from a court case unless she is truly motivated by a desire to penalize the person responsible for her daughters defilement.76 It is unnatural for a mother to use her daughter as an engine of malice, especially if it will subject her child to embarrassment and lifelong stigma. A mother would not sacrifice the honor of her daughter to give vent to a grudge that would tarnish the latters reputation forever.77 These principles are applicable in the present case, which involves not only the daughter of Imelda Ibarrientos but her niece as well.

The new Rules on Criminal Procedure require the qualifying circumstances to be specifically alleged in the information, in order to comply with the constitutional right of the accused to be properly informed of the nature and cause of the accusation against him. The purpose is to allow the accused to prepare fully for his defense to prevent surprises during the trial.84 This requirement is satisfied as long as the circumstances are alleged in the information, even if these are not specified as aggravating or qualifying circumstances.

In the present two cases of rape, however, the death penalty imposed on appellant is improper and erroneous. As to the second issue, the appellant asserts that the ages and relationships of the victims were stated in the informations but were not alleged with specificity as qualifying circumstances. He invokes Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure78 and People v. Alba79 and People v. Manlansing,80 to support his stance that the two circumstances cannot be treated as qualifying circumstances but merely generic aggravating circumstances. The appellant submits

Article 266-B of the Revised Penal Code states that the death penalty shall be imposed when "the victim is under eighteen years of age and the offender is a parent, ascendant, descendant, step-parent, guardian, relative by consanguinity or

59

affinity within the third civil degree, or the common-law spouse of the parent of the victim." ...

This is a special qualifying circumstance which must be specifically alleged with certainty in the information, otherwise the death penalty cannot be imposed. The allegation in the information of Criminal Case No. P-2695, that the appellant is an uncle of the victim, is not specific enough to satisfy the special qualifying circumstance of relationship. We have previously ruled, and now we reiterate, that it is necessary to spell out in an Information for rape that the accused is a "relative within the third degree of consanguinity or affinity" as stated in Article 266-B.85 Without such averment, the Information in Criminal Case No. P-2695 falls short of the statutory requirement for the imposition of capital punishment on the offender. Factual allegations in the information do not need to be referred to as "qualifying circumstances", in order to appreciate them as such and raise the penalty. However, these factual allegations must be specified completely, in order to fully inform the accused of the circumstances which warrant the imposition of a higher penalty. Otherwise, such circumstances cannot be appreciated to qualify the offense. Since the Information in Criminal Case No. P-2695 only states that the appellant "is the Uncle of the victim", without stating that he is a "relative within the third degree of consanguinity or affinity," the qualifying circumstance of relationship cannot be appreciated without offending settled law and doctrine of this Court. As such the appellant can be held liable only for statutory rape.

The death penalty shall be imposed if the crime is committed with any of the following aggravating/qualifying circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim.

...

Circumstances that qualify a crime and increase its penalty to death cannot be the subject of speculation. The appellant cannot be condemned to suffer the extreme penalty of death on the basis of stipulations or admissions. This strict rule is warranted by the gravity and irreversibility of capital punishment. Proof of the age of the victim cannot consist merely of testimony. Neither can a stipulation of the parties with respect to the victims age be considered sufficient proof of minority.86

As for Criminal Case No. P-2696, we find the information is sufficient to inform the appellant of the qualifying circumstances present in the offense. The information properly alleged that the victim is his daughter. Moreover, it is a well-settled rule that a victims minority may become a qualifying circumstance which could raise the penalty to death. But the victims age must be proved with equal ce rtainty and clearness as the crime itself. It must be established with certainty that the victim was a minor at the time of the commission of the crime of incestuous rape as defined and penalized under Republic Act No. 8353, amending Art. 266 of the Revised Penal Code as follows:

The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.87 We stress that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision making process in capital offenses aptly subject to nothing less than the most exacting rules of procedure and evidence.88

ART. 266-B.

In the instant case, no authentic document was presented as evidence of the victims age other than a poor photocopy of what is claimed to be Lorelies birth certificate. The prosecution failed to present an original or certified true copy of the certificate

60

of live birth. Neither was it shown that these were lost, destroyed or unavailable at the time of trial. Thus, secondary evidence is inadmissible to prove the age of the victim in Crim. Case No. P-2696. The testimonies tending to prove the victims age cannot be accepted as adequate proof thereof.89

reclusion perpetua. He is also ORDERED to pay the victim in each case the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. Costs de oficio.

SO ORDERED. Much as we abhor child abuse, nevertheless, we are constrained to hold that capital punishment cannot be imposed on appellant in these two cases. Even if we agree that the victims are indeed minors below 12 years old, at most, appellant is liable only for statutory rape in Crim. Case No. P-2696 as well as in Crim. Case No. P2695. As well understood, statutory rape is defined by law in Art. 266-A Revised Penal Code, as follows:

"Rape is committed(1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

...

(d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present."

Otherwise, there being no adequate proof regarding the age of the victims in each case, the offense committed is only simple rape. Noteworthy, under Art. 266-B of the Revised Penal Code, rape whether simple or statutory is punishable only by reclusion perpetua, and not death.

WHEREFORE, the assailed decision of the Regional Trial Court of Pili, Camarines Sur, Branch 31, in Criminal Cases Nos. P-2695 and P-2696, is AFFIRMED with MODIFICATION. Appellant MAXIMO IBARRIENTOS is found GUILTY of two counts of rape, and for each count he is hereby sentenced to suffer the penalty of

61

[G.R. No. 143125. June 10, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. DIOSDADO CORIAL y REQUIEZ, appellant. DECISION VITUG, J.:

sexual abuse she had suffered from her grandfather. Maricar went first to the barangay hall where she lodged a complaint against appellant and then to the Philippine General Hospital where Maricar was physically examined. Still later, they repaired to the Pasay City Police station where Maricar executed a sworn statement (salaysay).

For automatic review is the decision of the Regional Trial Court of Pasay City, Branch 109,[1] imposing the death penalty on convicted appellant Diosdado Corial y Requiez for the crime of qualified rape,[2] said to have been committed, according to the indictment, against his own minor granddaughter Maricar Corial.

According to barangay captain Policarpio Tawat, Marietta and Maricar went to see him on the morning of 29 December 1998 at the barangay hall to seek assistance about the sexual assault. Along with a barangay kagawad, Tawat went to invite appellant to the barangay hall and then had a medical examination conducted on Maricar. When the medical examination proved positive for rape, Tawat turned appellant over to the Pasay City Police station.

The Provisional Medical Certificate,[4] dated 29 December 1998, showed the following findings of Dr. Mariella Sugue-Castillo; viz: At his arraignment, appellant pleaded not guilty to the charge;[3] trial ensued shortly thereafter. GENITAL EXAMINATION: The Case for the Prosecution. External genitalia: normal Hymen: crescentic hymen, no discharge seen, (+) mound at 7 oclock position, (+) attenuation of posterior hymen Maricar Corial was born to Marietta Corial, appellants daughter, but she did not come to know her father (now said to be deceased). Maricar had two maternal sisters who lived with their mother and her stepfather in Balagtas, Bulacan. Maricar lived with her grandparents, herein appellant and his wife Carmelita, in Pasay City. Anus: normal findings

IMPRESSION Disclosure of sexual abuse.

One afternoon in July 1998, Maricar and appellant were left alone in the house. She was wearing a duster when her grandfather forced himself on her. He first inserted his penis into her private part, and then into her mouth and, finally, into her anus. When her mother, Marietta, arrived for Christmas in 1998, Maricar revealed the

Genital finding of posterior hymen attenuation is suspicious for prior penetration injury[5]

62

On the afternoon of 29 December 1998, SPO3 Milagros Carrasco was at the Women and Children Desk of the Pasay City Police station when Barangay Captain Tawat, Marietta, young Maricar, and Mariettas father arrived. After hearing the story, SPO3 Carrasco contacted social worker Erlinda Aguila to assist her in conducting the interview with Maricar. The child claimed that her maternal grandfather had sexually abused her. When confronted by SPO3 Carrasco, appellant remarked in Tagalog that he was just having a taste of the child (tinitikman niya lang).

mother but she was mentally ill and hardheaded (suwail). Marietta instigated the case against him because he had refused to allow her to live in their house in Pasay City. From Monday to Saturday, he would leave the house at six oclock in the morning and return from work at seven oclock in the evening. On Sundays, Nelly would always be at home.

The Assailed Decision. The Case for the Defense. The trial court debunked the defense of denial interposed by appellant and the assertion that the rape case was only trumped-up by his daughter Marietta. It instead gave credence to what it so described as the spontaneous and straightforward testimony of Maricar Corial. The trial court adjudged:

Testifying for her father, Nelly Corial stated that the 59-year-old appellant had six children, all of them female, by his wife Carmelita. He was a mason and construction worker employed by D. M. Consunji while her mother was a dressmaker. Her father was a responsible person with no vices. Her parents first took custody of Maricar because the latters father, Francisco Amado and live-in partner of Marietta, would often inflict physical harm upon the child. After Franciscos death, Marietta resided in Balagtas, Bulacan, with yet another live-in partner, Rene Malinao, who both for a while took Maricar into their custody. Maricar was soon brought back to her grandparents residence in Pasay City because of the maltreatment she had been getting from Malinao. According to Nelly, her parents loved Maricar, provided for her needs, and had her take up schooling at the Pio del Pilar Elementary School. After the case against appellant was filed, Marietta confided to Nelly her regrets (nagsisisi) for having filed the case. Marietta became mentally deranged and would harm herself for no reason at all. She concluded that Mariettas complaint was fabricated (gawa-gawa lamang niya iyun). Menchu, another daughter of appellant, also testified for him. Her residence in Pasay City was separated from appellants house only by a wall. She confirmed that Maricar was brought to San Pedro, Laguna, at the instance of appellant who had wanted the child to have a vacation there.

In view of all the foregoing, the Court opines that the prosecution has proven the guilt of the accused, Diosdado Corial y Requiez for rape as defined and penalized under Art. 266-A and 266-B of RA 8353 as amended, and the Court hereby sentences the accused, Diosdado Corial y Requiez to death and to indemnify the complainant in the amount of P75,000.00 and moral and exemplary damages in the amount of P50,000.00.[6]

Appellant, in this Courts review of his case, would consider erroneous his conviction for there was no opportunity for him and his granddaughter to be alone in their residence, particularly on Sundays when all the members of the household stayed home, and for Maricars failure to make an outcry during the alleged sexual assault that could have easily attracted the attention of close kins whose house was only adjacent to theirs.

Appellant denied having raped Maricar. He took the child away from her parents because they were unable to properly care for her. After Franciscos death, he took custody of Marietta and her child but only for four months when Marietta started to live with another partner in Bulacan. Marietta was a good daughter and a good

Quite often, this Court has held that rapists are not deterred from committing the odious act of sexual abuse by the mere presence nearby of people or even family members. Rape is committed not exclusively in seclusion;[7] lust, it is said, respects neither time nor place. The trial court has valued Maricars testimony as being

63

spontaneous and straightforward. Indeed, when a victims testimony is straightforward and unflawed by any major inconsistency or contradiction, the same must be given full faith and credit.[8] Appellant capitalizes on the so-called disparity between the declaration of Maricar in her testimony in court and her sworn statement. He quotes a portion of her salaysay; viz:

A: Yes, sir.[10]

06. T: Natatandaan mo ba kung kailan at kung saan nangyari ang mga ginawa na sinasabi ng lolo mo sa iyo?

Not only is her assailed statement - that before the July 1998 incident she has also been subjected to sexual assault by appellant inconsequential in a material point but it also does not necessarily take away her credibility at the witness stand. It is acknowledged that affidavits, usually taken ex parte, are often held unreliable for being incomplete and inaccurate.[11]

S: Opo, simula po ng Grade II ako. Tapos naulit po nuong July 1998 at nauulit po pag araw ng Linggo pag wala ang lola ko at ang tita ko sa bahay namin. Kasi nagtratrabaho si Lolo ng Lunes hanggang Sabado. Pero pag wala siyang pasok ay ginagalaw din niya ako. Sa bahay namin sa Dolores, Pasay.[9]

Maricars failure to shout during the sexual assault is not all that strange. Not every witness to or victim of a crime can be supposed to always act in conformity with the usual expectations of everyone;[12] in fact, there is no known and accepted standard therefor. Moreover, to attribute to her the sophistication of an adult woman would be to brush aside the fact that Maricar is just a young girl. Even then, it would be unreasonable to judge her actions on the traumatic experience by any norm of behavior that, if at all, may be expected from mature persons.[13]

He then labels it as being inconsistent with her testimony on cross-examination; viz: The Court is not persuaded by the claim of appellant that Marietta, the victims mother, has fabricated the charge simply because appellant did not allow her to stay with him. It just is not a convincing tale. It is difficult to believe that Marietta would send his own father to jail, even to the gallows, sacrifice the honor and dignity of their family and subject her own child to untold humiliation and disgrace if she were motivated by any desire other than to bring to justice the person responsible for defiling her child.[14]

Atty. Casas:

Now, it was in July 1998 which is finally the alleged (sic) contained in the information that you claimed you have been sexually molested, is that correct?

A: Yes, sir.

Q: And you told the Court in your direct examination that it was the first time that the same was committed?

Appellants claim that Marietta is deranged lacks unbiased evidentiary support. In any event, it hardly has any bearing on the credibility of her own daughter. Nor would the failure of the prosecution to present Marietta at the witness stand adversely affect the outcome of the case. The prosecution is not bound to present any witness other than the victim herself, for as long as the testimony of the victim is credible, natural, convincing and otherwise consistent with human nature and the course of things,[15] it may be the basis for a conviction. It is the prerogative of the

64

prosecution, not much unlike that of the defense, to determine which evidence to submit in support of its own case.[16]

A: Yes, sir.

Maricar, on direct examination, testified thusly:

Q: You earlier stated that the alleged rape happened in the afternoon, sometime in July 1998 inside your house at No. 164 Dolores Street, Pasay City. My question is, who were actually present inside your house when the incident happened?

Q: In the information filed to (sic) this Honorable Court, stated that you are complaining for rape perpetrated by your Lolo Diosdado Corial that happened in July 1998. Do you still recall the date in July when this incident, the alleged incident happened?

A: My grandmother was there, but she left.

Q: And who was left behind in the afternoon of July 1998 when the incident happened? A: It was in July but I do not know or remember the date, sir. A: I and my grandfather was (sic) left inside the house. Q: But could you still recall if that was in the morning or lunch time or evening of July 1998? Q: And what actually were you doing in that afternoon of July 1998 when you were inside your house? A: It was in the afternoon of July 1998. A: None, sir. Q: And in what place where this incident happened regarding the complaint (sic) that you were sexually molested by your grandfather Diosdado Corial? Q: What were you wearing then? A: The incident happened at 164 Dolores Street, Pasay City. A: I was wearing a duster, sir. Q: Was it inside your house? Q: And so was there any unusual incident that happened in the month of July 1998? When you were left by your Lola inside your house and left with your Lolo?

65

A: Yes, there was.

Q: And did he actually put his penis inside your mouth?

Q: Would you kindly tell to this Honorable Court, what happened to you on that month of July 1998?

A: Yes, sir.

Q: And what happen(ed) after he inserted his penis inside your mouth? A: I was raped by my grandfather, sir. A: He requested me to suck it, sir. Q: Will you further explain to this Honorable Court, how were you r aped by your grandfather? Q: And what else happened aside (from) inserting his penis at your private part, and putting his penis inside your mouth sometime in the month of July 1998? A: He inserted his penis into my private part, sir. A: He inserted his penis inside my anus. Q: And what did you feel when your grandfather inserted his penis inside your private part? Q: What did you feel when he inserted his penis inside your anus in the month of July 1998? A: I felt pain, sir. A: It was painful, sir. Fiscal Barrera: Q: What else happened besides inserting his penis inside your anus or Puwet? Besides inserting his penis at your private part, what else did your Lolo do to you? A: No more, sir. A: He was requesting me to suck his penis.

66

Q: And so after that, what did you do?

A: Nobody told me, sir.

A: When my mother arrived last Christmas, I told her what my grandfather did to me.

Court: Pero alam mo ba ang meaning nang rape? Alam mo ba ang ibig sabihin nang rape?

Q: You mean that was last Christmas 1998? A: Rape means `Pang gagahasa. A: Yes, sir. x x x Q: And so what actually did you tell your mother Marietta Corial? Q: And because the penis of your Lolo was inserted inside your vagina, you felt pain? xxx xxx

A: I told her that my grandfather put his penis inside my vagina.[17]

On cross examination, she recounted:

A: Yes, sir.

Q: You specifically mentioned the word rape when you were asked any unusual incident that happened on June 1998, is that correct?

Q: But you did not shout, is that correct?

A: I was boxing him. A: Yes, sir. x x x Q: Who told you or how did you learn the word rape? xxx xxx

67

Atty. Casas: A: Because, he did something wrong to me.[18] You also mentioned that your Lolo raped you by placing his penis inside your mouth, is that correct? The trial court has found appellant guilty of having violated Sections 266-A and 266-B of the Revised Penal Code, as amended by Republic Act No. 8353 (AntiRape Law of 1997),[19] that read:

A: Yes, sir.

Q: Definitely, you did not like that idea or actuation by your Lolo?

Article 266-A. Rape; When And How Committed. Rape is committed

A: Yes, sir.

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

x x x

xxx

xxx

a) Through force, threat, or intimidation;

Q: By the way, Maricar, do you love your Lolo and Lola?

b) When the offended party is deprived of reason or otherwise unconscious;

A: I love my grandmother.

c) By means of fraudulent machination or grave abuse of authority; and

Q: How about your grandfather, do you love him?

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

A: I dont love him. 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

Q: Why do you not love your grandfather?

68

Article 266-B. Penalties. Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

x x x

xxx

xxx

qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient but only under the following circumstances: a) If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b) If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c) If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

In the instant case, the prosecution did not offer the victims certificate of live birth or any similar authentic document in evidence. The trial court, in convicting the appellant of the crime of rape and imposing upon him the death penalty even in the absence of the necessary documents, relied on the sworn statement of Marietta Corial, the mother of the victim, attesting to the fact that her daughter Maricar Corial was born on 26 May 1990.[24] Marietta Corial, however, did not testify in court. Such sworn statement was thus inadmissible in evidence under the hearsay rule,[25] and unless the affiant had been placed on the witness stand, the admission of the mere affidavit and the conviction of appellant on the basis thereof would violate the right of the accused to meet witness face to face.[26]

The death penalty for the crime herein charged may be imposed only when the twin qualifying circumstances of relationship between the appellant and the victim and the latters age are indubitably proven; otherwise, the appellant can only be held liable for the crime of simple rape penalized by reclusion perpetua.[20] The relationship between appellant and the victim has been adequately established. The prosecution evidence has shown that appellant is the grandfather of the victim,[21] a fact that appellant himself has likewise maintained.[22] The same cannot, however, be said with respect to the age of the victim.

In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age under the circumstances heretofore mentioned, the complainants sole testimony can suffice provided that it is expressly and clearly admitted by the accused; to repeat, provided that it is expressly and clearly admitted by the accused.[27] There is no such declaration and admission on the part of appellant.

In People vs. Pruna,[23] the Court, after noting the divergent rulings on proof of age of the victim in rape cases, has set out certain guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. The primary evidence of age of the victim is her birth certificate. Age may also be proven by such authentic documents as a baptismal certificate and school records only in the absence of a birth certificate. If the aforesaid documents are shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is

This Court cannot be overly strict as regards the proof of age of the victim particularly when, such as under Article 266-B of the Revised Penal Code, as amended by Rep. Act No. 8353, age is an element of the crime that, if shown, would make it punishable by death. As so frequently expressed by the Court, the severity of the death penalty, which by its nature is irreversible when carried out, should behoove courts to apply the most exacting rules of procedure and evidence. The

69

prosecution is not excused from discharging its burden even when the defense lets itself loose about it.

The trial court ordered appellant to indemnify the complainant in the amount of P75,000.00 and moral and exemplary damages in the amount of P50,000.00. The award must be corrected. In consonance with prevailing jurisprudence, appellant must be made to pay P50,000.00 civil indemnity, an award that is outrightly due the victim of rape by the mere fact of its commission, P50,000.00 moral damages which is deemed concomitant with and which necessarily results from this odious criminal offense, and P25,000.00 exemplary damages which are awarded under Article 2230 of the Civil Code when the crime is committed with one or more aggravating circumstances[28] such as relationship between the offender and the victim.[29]

WHEREFORE, the judgment of the court a quo finding appellant Diosdado Corial y Requiez guilty of rape is AFFIRMED with MODIFICATION in that he is hereby only adjudged guilty of simple, not qualified, rape and sentenced to suffer, instead of the death penalty, the penalty of reclusion perpetua. The award of damages by the trial court is likewise modified by hereby ordering appellant to indemnify the victim the amounts of P50,000.00 civil indemnity, P50,000.00 moral damages and P25,000.00 exemplary damages. Costs de oficio.

SO ORDERED.

70

[G.R. No. 126223. November 15, 2000]

PHILIPPINE AMERICAN LIFE INSURANCE COMPANY, petitioner, vs. COURT OF APPEALS and ELIZA PULIDO, respondents. DECISION GONZAGA-REYES, J.:

29, 1992,[4] private respondent had already filed her claim earlier that month.[5] In another letter dated July 27, 1992, however, petitioner confirmed to private respondent receipt of the claim papers and assured her that her case was being given preferential attention and prompt action.[6]

This petition for review on certiorari seeks to reverse the Decision of the Special Second Division of the Court of Appeals dated August 27, 1996,[1] which affirmed in toto the Decision of the Regional Trial Court of Baguio City,[2] allowing herein private respondent, the beneficiary under a life insurance policy issued by petitioner, to recover the face amount of the said policy.

Following the filing by private respondent of her claim, petitioner caused another investigation respecting the subject policy. Pursuant to the findings of this second investigation, petitioner stood by its initial decision to treat the policy as void and not to honor the claim. On November 9, 1992, private respondent enlisted the services of counsel in reiterating her claim for death benefits.[7] Petitioner still refused to make payment and thus, this action.

The complaint before the lower court sought payment of the face amount of the policy, equivalent to P100,000.00, with interest at 24% per annum for undue delay in payment pursuant to Section 244 of the Insurance Code, and for P5,000.00 as consequential damages.

Briefly, the antecedent facts are: For its part, petitioner interposed that it was legally justified in denying plaintiffs claim, the results of its investigations having indicated that the insured was already dead at the time the policy was applied for. It also counterclaimed for attorneys fees.

On January 9, 1989, petitioner received from one Florence Pulido an application for life insurance, dated December 16, 1988, in the amount of P100,000.00 which designated her sister, herein private respondent, as its principal beneficiary. Because the insurance applied for was non-medical, petitioner did not require a medical examination and issued a policy on the sole basis of the application on February 11, 1989. On April 1992, petitioner received private respondents claim, which declared that the insured, Florence Pulido, died of acute pneumonia on September 10, 1991.

Petitioner withheld payment on the ground that the policy claimed under was void from the start for having been procured in fraud. It is petitioners contention that even before they received private respondents claim for death benefits, their investigation concerning the subject policy yielded the information that the insured, Florence Pulido, died in 1988, before the application for insurance on her life was made.[3] While this was communicated to private respondent in a letter dated April

To substantiate its defense, petitioner submitted copies of the reports of its investigators. The first report,[8] prepared by one Dr. Benedicto Briones, was dated April 1, 1992, and had attached to it a questionnaire, responded to by one Ramon Piganto,[9] who represented to be the brother-in-law of the insured and the barangay chairman of Cardiz, Bagulin, La Union. To the question Where does [Florence Pulido] reside now?, Piganto had replied that Florence Pulido used to live in Cardiz, but was dead since 1988. Pigantos statement was signed by him, and witnessed by his wife, Nenita Piganto. This report was petitioners basis for treating the disputed policy as void since April 1992, even before receipt of private respondents claim. The next two reports pertained to the investigation petitioner

71

commenced after private respondent filed her claim. One report, dated October 2, 1992, was submitted by Ferdinand Tanchoco, another of petitioners investigators, and dealt with Tanchocos interview with a certain Remylyn Piganto, a 14 -year old high school student who was the niece of the insured and daughter of Ramon Piganto. Remylyn purportedly told Tanchoco that her auntie Florence Pulido died young a long time ago, before Remylyn was even born.[10] Remylyn, however, did not execute any written statement. The other report, dated December 28, 1992,[11] was prepared by Dr. Benedicto Briones, who also prepared the first report dated April 1, 1992. This last report intimated the claim of some neighbors of the Pulido family that Florence Pulido died in a car accident in 1985. These persons, however, refused to give their names or execute statements on the matter, as they were reportedly afraid of Ramon Piganto, the insureds brother-in-law.[12]

attached to Dr. Brioness report dated April 1, 1992 was the basis for petitioners treating the subject policy as void, Piganto denied giving the statement that Florence Pulido died in 1988, and said that he was made to sign a blank coupon bond.[15]

Ferdinand Tanchoco, petitioners other investigator, identified his investigative report[16] and recounted the results of his investigation focusing particularly on the interview with Remylyn Piganto. Tanchoco also reported that private respondents information on the insureds death, as declared in her claim certificate, tallied with the entries of the death certificate as found in the records of the Local Civil Register of Bagulin, La Union.

During the trial, plaintiff-private respondent testified that the insured died of acute pneumonia on September 10, 1991 in Barangay Cardiz, Bagulin, La Union and was buried two days after within their own yard. Plaintiff next presented as a witness Dr. Irineo Gutierrez, who testified that he attended to the ailing Florence Pulido on September 8, and 9, 1991 at their house in Cardiz. Dr. Gutierrez then authenticated a Certificate of Death,[13] issued on September 12, 1991 by the Local Civil Registrar of Bagulin, La Union, which bore his signature in his capacity as then Municipal Health Officer of Bagulin, La Union. The death certificate declared that Florence Pulido died on September 10, 1991 at around 4:00 in the afternoon.

The dispositive portion of the decision of the Regional Trial Court, which was affirmed in toto by the Court of Appeals, states:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant, ordering the latter to pay the former the amount of P100,000.00, representing the face value of the insurance policy sued upon, with interest thereon at the legal rate from January 8, 1993, the date of the filing of the complaint, until fully paid, plus P20,000.00 for and as attorneys fees and costs of suit.

A neighbor of the Pulidos, Francisco Villano, also testified in support of plaintiff that the insured died of illness on September 1991. Villano claimed that he was at the Pulidos house when Dr. Gutierrez attended to the insured. He also said that he went to the wake of Florence Pulido and was able to view her remains.[14]

Meanwhile, defendant-petitioner presented Pablito Angalot, petitioners Life Claims Manager, who said that even before the filing of private respondents claim, petitioners Claims Committee had already declared the disputed policy null and void in light of the investigative report dated April 1, 1992. However, petitioner was unable to present Dr. Benedicto Briones, the investigator who prepared the April 1, 1992 report. Also, when it presented Ramon Piganto, whose statement

In ruling in favor of plaintiff-private respondent, the trial court found no reason to doubt the correctness of the entries in the Certificate of Death, which declared that Florence Pulido died on September 10, 1991. It is also found that defendant, petitioner herein, failed to discharge the burden of proving its affirmative defense that fraud attended the issuance of the policy sued upon. Contrarily, as the lower court observed, the evidence defendant presented sustained the validity of the policy instead of establishing its alleged fraud.

The lower court also struck down as hearsay the two reports prepared by Dr. Benedicto Briones, the said investigator not having been presented as a witness in court. It also held as hearsay the alleged declaration of Remylyn Piganto, as

72

recounted by Ferdinand Tanchoco in his report and on testimony, since Remylyn herself did not take the witness stand.

death certificate, testified in addition that he ministered to the ailing Florence Pulido for two days immediately prior to her death. This fact is likewise noted in the death certificate.

However, the lower court found plaintiff-private respondent entitled to legal interest only, and not to 24% per annum as prayed for. Under Section 242 of the Insurance Code, the refusal of the insurer to pay a life insurance claim within the period prescribed will entitle the beneficiary to collect interest on the proceeds at the rate of twice the ceiling prescribed by the Monetary Board for the duration of the delay, unless the refusal to pay is based on the ground that the claim is fraudulent. Fraud being the ground invoked by petitioner for refusing to honor the claim, the lower court found no unreasonable delay in petitioners decision to withhold payment.

The petition is without merit.

As a rule, a petition for review on certiorari may raise only questions of law which must be distinctly set forth.[17] This Court does not countenance the elevation of patently factual questions disguised by a loose and general wording of the assignment of errors.

Death certificates, and notes by a municipal health officer prepared in the regular performance of his duties, are prima facie evidence of facts therein stated.[19] A duly-registered death certificate is considered a public document and the entries found therein are presumed correct, unless the party who contests its accuracy can produce positive evidence establishing otherwise.[20] Petitioners contention that the death certificate is suspect because Dr. Gutierrez was not present when Florence Pulido died, and knew of Florences death only through Ramon Piganto, does not merit a conclusion of fraud. No motive was imputed to Dr. Gutierrez for seeking to perpetuate a falsity in public records. Petitioner was likewise unable to make out any clear motive as to why Ramon Piganto would purposely lie. Mere allegations of fraud could not substitute for the full and convincing evidence that is required to prove it.[21] A failure to do so would leave intact the presumption of good faith and regularity in the performance of public duties, which was the basis of both respondent court and the trial court in finding the date of Florence Pulidos death to be as plaintiff-private respondent maintained.

It is clear that the only issue the petition raises for review is respondent courts negative finding of fraud in the obtainment of Florence Pulidos insurance policy. Fraud is a question of fact which must be alleged and proved at the level of the lower court.[18] The records bear out that since the onset of this case, the main issue has always been whether there was fraud in the obtainment of the disputed policy, or put differently, whether the insured, Florence Pulido, was in fact dead before the application for insurance on her life was made. This the lower courts had effected ruled on, upon a preponderance of the evidence duly received from both parties. We see no reversible error in the finding of both respondent court and the trial court in favor of the correctness of the entries in Certificate of Death, duly registered with the Local Civil Registrar of Bagulin, La Union, which declared that Florence Pulido died of acute pneumonia on September 10, 1991. Dr. Irineo Gutierrez, the Municipal Health Officer of Bagulin, La Union whose signature appeared in the

We cannot likewise give credence to petitioners submission that the inconsistencies in the testimonies of the witnesses for plaintiff-private respondent are in themselves evidence of fraud. Such alleged inconsistencies are matters of credibility which had been ably passed upon by the lower court.

The absence of fraud, as a factual finding of the lower court adopted by the Court of Appeals, entirely consistent with the evidence on record, will not be reversed and, hence, is final and conclusive upon this Court. WHEREFORE, the instant petition is DENIED. Costs against petitioners.

SO ORDERED.

73

G.R. Nos. 108280-83

November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, petitioners, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them as accomplices to the murder of Salcedo.

G.R. Nos. 114931-33

November 16, 1995

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, accused-appellants. PUNO, J.:

The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence consisting of newspaper accounts of the incident and various photographs taken during the mauling.

The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista."

The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1

From August to October 1986, several informations were filed in court against eleven persons identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul Billosos y de Leon and

74

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!" 5 Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry Neri approach the victim but did not notice what he did. 7

exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9

The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he died upon arrival.

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem findings:

Cyanosis, lips, and nailbeds.

Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow.

Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.

Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip. Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life

Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital region, right side.

75

Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa.

Hemorrhage, subdural, extensive.

nor do things forcefully. 16 Richard de los Santos admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the mauling which explains why his face appeared in some of the photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The maulers however ignored him. 21

Other visceral organs, congested. The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense.

Stomach, about 1/2 filled with grayish brown food materials and fluid. 10

The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The press took pictures and a video of the event which became front-page news the following day, capturing national and international attention. This prompted President Aquino to order the Capital Regional Command and the Western Police District to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the killers. 11 Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons, including the accused, were apprehended and investigated.

On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows:

For their defense, the principal accused denied their participation in the mauling of the victim and offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in Quezon City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his mobility; he cannot run normally

WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows:

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 8647322, the Court finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge;

76

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;

6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge;

7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum.

3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal as Maximum;

The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit.

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum;

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos and Joselito Tamayo had been under detention during the pendency of these cases shall be credited to them provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause or charge.

5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt and hereby acquits him of said charge;

The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of merit.

77

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled. 22

CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for review. 24

On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying circumstance. The dispositive portion of the decision reads:

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the decision of the Court of Appeals against the four accused-appellants sentenced to reclusion perpetua.

Before this court, accused-appellants assign the following errors: PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows: I 1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby sentenced to suffer the penalty of Reclusion Perpetua;

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.

2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him;

II

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of Murder.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO SUMILANG.

III

78

TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE. THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED.

II

IV

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY. 25 IV

In their additional brief, appellants contend that: THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE INCIDENT. 26

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NONSEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE

Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect because they

79

surfaced only after a reward was announced by General Lim. Renato Banculo even submitted three sworn statements to the police geared at providing a new or improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner in another case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him several times. 28

testimonies cannot be expected from persons with imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as to some facts but disbelieved with respect to the others. 34

There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less that both or either of them ever received such reward from the government. On the contrary, the evidence shows that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the mauling, even before announcement of any reward. 29 He informed the police that he would cooperate with them and identify Salcedo's assailants if he saw them again. 30

We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each other on all important and relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each other and their narration of the events are supported by the medical and documentary evidence on record.

The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedo's death. 31

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had various wounds on his body which could have been inflicted by pressure from more than one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument. 37

The records show that Sumilang was admonished several times by the trial court on the witness stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness' testimony.

Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was pummeled by his assailants with stones in their hands. 38

Banculo's mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful testimony. Perfect

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand.

80

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard, 41 as he was being chased by his assailants 42 and as he sat pleading with his assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants for lack of proper identification by the person or persons who took the same.

took the witness stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility. 57

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person who took the same was not presented to identify them. We rule that the use of these photographs by some of the accused to show their alleged non-participation in the crime is an admission of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for their presence thereat. 58

The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. 50 The photographer, however, is not the only witness who can identify the pictures he has taken. 51 The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. 53

An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison appears only once and he, although afflicted with hernia is shown merely running after the victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellants in the photographs does not exculpate them. The photographs did not capture the entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and Banculo 61Appellants' denials and alibis cannot overcome their eyeball identification.

This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in any of the pictures and therefore could not have participated in the mauling of the victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent hearings, the prosecution used the photographs to cross-examine all the accused who

Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused and in convicting them of murder qualified by abuse of superior strength, not death in tumultuous affray.

Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:

81

Art. 251. Death caused in a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prison mayor.

attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. 64

If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim.

For this article to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified. 62

As the lower courts found, the victim's assailants were numerous by as much as fifty in number 65 and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder.

A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. 63

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. 66

The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and

The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was not preceded by cool thought and reflection.

82

We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all. 68

3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts:

(a)

P74,000.00 as actual damages;

(b) The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought on his widow and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71

P100,000.00 as moral damages; and

(c)

P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

SO ORDERED. IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum;

83

G.R. No. 105083

August 20, 1993

VIRGILIO CALLANTA, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, DISTILLERIA LIMTUACO CO., INC. and/or JULIUS T. LIMPE., as President and General Manager, respondents.

In October of 1986, or before the expiration his appointment, petitioner was promoted to the position of national promoter salesman of respondent company for Iligan City, Lanao del Norte and Lanao del Sur (Rollo, p. 29). On 28 April 1987, a however, a "spot audit" was conducted and petitioner was found to have a tentative shortage in amount of P49,005.59 (Rollo, p. 30).

On 30 April 1987, petitioner rendered his resignation to private respondent Julius T. Limpe, effective on the same date. The petitioner's resignation letter is herein quoted in toto:

M.P. Gallego, Borja & Co. for petitioner.

April 30, 1987 MR. JULIUS T. LIMPE

Jose T. de Leon for Distilleria Limtuaco & Co., Inc. BIDIN, J.:

President & Gen. Manager Destilleria Limtuaco & Co., Inc. 1830 EDSA, Quezon City

In this petition for certiorari, petitioner Virgilio Callanta seeks the annulment or setting aside of the decision of public respondent National Labor Relations Commission (NLRC) dated September 10, 1991 which reversed the finding of illegal dismissal and order of reinstatement with backwages by the Executive Labor Arbiter Zosimo T. Vassalo.

Dear Sir:

I have the honor to render (sic) my resignation as National Promoter Salesman effective April 30, 1987. The undisputed fact are as follows:

From June 18, 1986 to December 31, 1986, petitioner was appointed as sub-agent by respondent company under supervision of Edgar Rodriguez with specific assignment at Iligan City and Lanao Province.

I take this opportunity to thank you for the invaluable experience I gained during my stay here. As I leave, I take such experience as a stepping stone in pursuing greener pasture with the same honesty ands integrity I have displayed in the performance of my duties while on your employ.

84

Rest assured that if problem arise (sic) in the future I shall be happy to assist in any way I can.

Ordering respondent to pay and/or refund to complainant the sum of P76,893.42 as per audit finding of respondent and to pay an amount equivalent to 10% of the aggregate award as attorney's fee, plus the sum of P10,000.00 as the allowance still due to complaint as discussed above.

Respectfully yours, All the other claims are hereby dismissed for lack of merit. (SGD.) VIRGILIO CALLANTA SO ORDERED. (Rollo, p. 21.) Seven months thereafter, petitioner wrote a letter to private respondent Limpe complaining about his false resignation and demanding for the refund of the amount of P76,465.81 as well as reinstatement to his former position.

Respondent company ignored above demands and on March 21, 1988, petitioner filed a complaint against, respondent company before the NLRC Regional Arbitration Branch No. X for illegal dismissal, unpaid commission and receivable and/or claims due, non-payment of vacation leaves, holiday pays, 13th month pay, COLA and other company benefits and damages (Rollo, p. 4).

Aggrieved by the decision, respondent company appealed the same to the Fifth Division of the NLRC in Cagayan de Oro City on March 20, 1989. On October 16, 1989 respondent NLRC issued an order requiring private respondent company as appellant therein, to post a cash or surety bond in the amount equal to the monetary award in the Labor Arbiter's judgment. Pursuant to the provisions of the then newly promulgated Republic Act No. 6715, the NLRC also ordered immediate reinstatement of petitioner to his former position either physically or in the payroll, at the option of respondent company. Two (2) months from the date of the Order, private respondent filed the required bond but did not reinstate petitioner.

On the basis of the petition papers submitted by the parties, the Labor Arbiter rendered a decision declaring termination of petitioner's services illegal. The dispositive portion of the decision reads:

IN VIEW OF THE FOREGOING, judgment is hereby entered declaring the termination of complianant by respondent as illegal and ordering respondent to immediately reinstate complainant to his former position as National Promoter Salesman with backwages from the time of his dismissal until actually reinstated plus other benefits which he is supposed to be entitled to had he not been unlawfully dismissed.

Meanwhile, petitioner filed with respondent NLRC a Motion for Writ of Execution pending appeal dated November 12, 1990 praying for the immediate execution of the reinstatement aspect of the Labor Arbiter's decision in accordance with the October 16, 1989 Order of the NLRC as well as Article 223 of the Labor Code as amended by R.A. 6715. The motion for the writ of execution was not acted upon up to the time where public respondent NRLC decided the appeal on September 10, 1991, which as aforesaid, set aside the decision of the Labor Arbiter and dismissed the complaint of petitioner for lack of merit.

Petitioner now comes to this Court by way of special civil action of certiorari praying for the nullification of the decision of public respondent anchored on the following grounds:

85

To resolve the first issue raised by petitioner, it is imperative to note the dates involved in the present case in order to determine whether petitioner was entitled to the immediate execution of the reinstatement aspect of the Labor Arbiter's decision.

THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION ACTED WITHOUT JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION WHEN IT DID NOT CONSIDER AND GIVE DUE COURSE TO THE MOTION FOR WRIT OF EXECUTION FOR IMMEDIATE REINSTATEMENT OF PETITIONER BY RESPONDENT.

As borne by the records, the Labor Arbiter rendered his decision in favor of petitioner on February 16, 1989. Private respondent, on the other hand, filed its appeal on March 20, 1989. Ironically, Republic Act No. 6715, which granted the right to immediate reinstatement under Section 12 thereof amending Article 223 of the Labor Code, became effective on March 21, 1989, or the day after the appeal was filed by private respondent company. Meanwhile, the NLRC Interim Rules on Appeal under Republic Act No. 6715 became effective on September 5, 1989.

II Given this factual background, it is apparent that when the Labor Arbiter rendered his decision and even up to the time when private respondent company filed an appeal therefrom, Republic Act No. 6715 was not yet in effect. Thus, the most logical and necessary consequence was that the execution of the Labor Arbiter's decision as well as the requirements for the perfection of the appeal would have to be governed by the rules prevailing prior to the amendment of the Labor Code by R. A. 6715.

THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION ACTED WITHOUT JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT THE ALLEGED RESIGNATION LETTER COMPLAINANT WAS VALID AND EFFECTIVE CONTRARY TO THE FINDINGS OF THE LABOR ARBITER THAT THE SAME WAS FORCED UPON COMPLAINANT.

III

THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION ACTED WITHOUT JURISDICTION AND WITH GRAVE ABUSE OF DISCRETION WHEN IT FAILED TO CONSIDER THAT COMPLAINANT IS STILL ENTITLED TO THE PAYMENT AND/OR REFUND OF P76,893.42 AS PER AUDIT FINDING OF RESPONDENT COMPANY'S AUDITOR PLUS THE SUM OF P10,000.00 AS ALLOWANCE STILL DUE TO COMPLAINANT. (Rollo, p. 6.)

Prior to the amendment of Article 223 of the Labor code by R. A. 6715, "decisions, awards, orders of the Labor Arbiter are final and executory unless appealed to the Commission within ten (10) days from receipt of such awards, orders, or decisions" (emphasis supplied). There was then no provision providing for an execution pending appeal. Hence, under the facts of the present petition, petitioner had no right to ask for the immediate enforcement of the reinstatement aspect of the Labor Arbiter's decision, no such right having been granted to him under the old rules. Instead, the decision of the Labor Arbiter was stayed by the timely filing of the appeal by private respondent company.

86

In the motion for writ of execution filed by petitioner, he contended that the appeal of private respondent company was not perfected since there was no bond filed along with appeal (Rollo, p. 22).

Petitioner erroneously based his argument on premise that the amended provisions of Article 223 of the Labor Code are applicable to his case. But as previously emphasized, R.A. No. 6715 was not yet in force at the time the appeal was filed. Neither can R.A. No. 6715 be deemed to have retroactive effect, prospective application of the law being the rule rather than the exception (Article 4, New Civil Code). More so in the present case where the law (R.A. No. 6715) itself did not provide for retroactive application (Inciong vs. National Labor Relations Commission, 185 SCRA 651 [1990]).

The Court finds that while Article 223 of the Labor Code, as amended by Republic Act No. 6715, requiring a cash or surety bond in the amount equivalent to the monetary award in the judgment appealed from for the appeal to be perfected, may be considered a jurisdictional requirement, nevertheless, adhering to the principle that substantial justice is better served by allowing the appeal on the merits threshed out by the NLRC, the Court finds and so holds that the foregoing requirement of law should be given a liberal interpretation.

Thus, applying the old rules, where perfection of the appeal involved only "the payment of the appeal fee and the filing of the position paper containing among others, the assignment of error/s, the argument/s in support thereof, and the reliefs sought within the prescribed period" (Omnibus Rules Implementing the Labor Code Book V, Rule I Section 1(s), there is no doubt that private respondent company's appeal was duly perfected.

In rebuffing the contentions of petitioner involving the issue of immediate execution, public respondent NLRC correctly ruled that it had no jurisdiction to act upon the motion for writ of execution. Since it was the labor arbiter who issued the decision sought to be executed, the motion for execution should also be filed with the labor arbiter, as explicitly provided in the New Rules of Procedure of the National Labor Relations Commission Rule V Section 16 (3) to wit:

It cannot be denied, however, that upon the effectivity of R.A. No. 6715, public respondent NLRC ordered private respondent company to post the additional requirement of cash bond and immediate reinstatement of the petitioner. By this time, the appeal of private respondent company has already been perfected in accordance with the old rules. Consequently, the latter's failure to timely comply with the bond requirement cannot be deemed in any way to affect the perfection of the appeal. Besides, considering the factual peculiarities of the present petition as above-described, compliance with the bond requirement, although a jurisdictional requirement, should be liberally construed to give way to substantial justice. The same sentiment was expressed by this Court in the 1990 case of YBL (Your Bus Line) vs. NRLC (190 SCRA 160), where the factual background of the case likewise played a vital role in upholding a liberal interpretation of the rules. In the aforementioned case, We held:

In case the decision includes an order of reinstatement, the Labor Arbiter shall direct the employer to immediately reinstate the dismissed or separated employee even pending appeal. The order or reinstatement shall indicate that the employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. (emphasis supplied)

Coming now to the main issue of the present petition, i.e., whether the resignation by petitioner was valid and effective this Court believes and so holds that the resignation tendered by petitioner was voluntary, and therefore valid, in the absence of any evidence of coercion and intimidation on the part of private respondent company.

Petitioner claims that private respondent company thru private respondent Julius Limpe showed him am alleged "spot audit" report wherein petitioner appeared to be

87

short of P49,005.59. He was then handed a ready made resignation letter and ordered to sign the same otherwise an estafa case will be filed against him (Rollo, p. 8). The only evidence presented by petitioner to support his contention of coercion was a letter written by himself and addressed to private respondent Limpe, to wit:

Very truly yours,

V. P. CALLANTA (SGD.) (Rollo, p. 18)

Nov. 17, 1987 Mr. J. T. Limpe Distilleria Limtuaco & Co. Inc. 1830 Edsa Balintawak Quezon City

We agree with public respondent NLRC that petitioner "failed to adduce evidence that may prove that and resignation was obtained by means of coercion and intimidation" (Rollo, p. 33). The aforequoted letter depicting the coercion allegedly imposed upon him as well as the reason therefore, was nothing but a self-serving assertion which has so little or no value at all as evidence for the petitioner.

Sir:

The basic inspiration why you dismissed or forced me to resign was that I was identified with Mr. R.S. Chua the Sales Manager for Visayas & Mindanao. Your so called "post audit" was but a convenient afterthought and was designed to give semblance of legality to your otherwise illegal acts. As a matter of fact and contrary to the finding of such "post audit", I had an average or amount refundable to me to be exact P76,465.81. From March 1986 up to Sept. 30, 1986 I do not have any accountability with Limtuaco what so ever as I was sub-agent of E.V. Rodriguez. The refusal of Mrs. Lourdes Galang to show me the records/audit of Mr. E. V. Rodriguez and of L. Pong, Jr. raise doubts as to what your intentions are.

Moreover, it is a well-settled principle that for intimidation to vitiate consent, petitioner must have been compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants (Article 1335, par. 2 New Civil Code). In present case, what allegedly constituted the "intimidation" was the threat by private respondent company to file a case for estafa against petitioner unless the latter resigns.

In asserting that the above-described circumstance constituted intimidation, petitioner missed altogether the essential ingredient that would qualify the act complained of as intimidation, i.e. that the threat must be of an unjust act. In the present case, the threat to prosecute for estafa not being an unjust act (P.P. Agustinos vs. Del Rey, 56 Phil. 512 [1932]), but rather a valid and legal act to enforce a claim, cannot at all be considered as intimidation. A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent. (Article 1335, par. 4 New Civil Code).

I therefore demand of you to refund me such amount and reinstate me from my position as "National Promoter" otherwise I will be constrained to file against you a labor case.

Furthermore, and on top of the absence of evidence adduced by petitioner to the contrary, the Court also finds it unbelievable that petitioner was rattled and confused into signing a resignation letter on account of a mere "spot audit" report. It is highly unlikely and incredible for man of petitioner's position and educational attainment to

88

so easily succumb to private respondent company's alleged pressures without even defending himself nor demanding a final audit report before signing any resignation letter. Assuming that pressure was indeed exerted against him, there was no urgency for petitioner to sign the resignation letter. He knew the nature of the letter that he was signing, for as argued by respondent company, petitioner being "a man of high educational attainment and qualification, . . . he is expected to know the import of everything that he executes, whether written or oral: (Rollo, p. 124). In view of foregoing factual setting, petitioner cannot now be allowed to withdraw the resignation which, in the absence of any evidence to the contrary, the Court believes was tendered voluntarily by him.

Pong, Jr. These facts are inconsistent with petitioner's contention that is was the auditor of private respondent company itself who made the written summation.

Finally, the claim of petitioner for unpaid allowances amounting to P10,000.00 was satisfactorily refuted by evidence presented by private respondent company in the form of vouchers proving payment of the same (Rollo, p. 98). Thus, petitioner has no more right to demand payment of the same.

Anent the claims for refund, petitioner once against failed to convincingly prove the authenticity of his claim against private respondent company. Petitioner claims that the amounts of P76,893.42 and P10,000.00 allegedly owed to him by private respondent company were matter proved during the hearings before the Labor Arbiter (Rollo, p.10). However, the records show that no hearing for the reception of evidence was ever conducted by the Labor Arbiter. At most, what transpired were preliminary hearings which had to be reset for five (5) times due to the absence of counsel for private respondent (Rollo, p. 4). In fact, because of the absence of counsel for respondent company, the Labor Arbiter just ordered the parties to submit their respective position papers in lieu of actual hearings. This having been the case, the Court is not convinced that the money claims of petitioner have really been proven during the alleged hearings before the Labor Arbiter, if any, especially in the present case where the money claims are even refuted by private respondent.

WHEREFORE, the petition is DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.

In support of its claims for refund, petitioner presented a written summation of accounts reflecting the amounts allegedly owed by private respondent company to him. However, the aforestated summation is undated and unsigned, thus inadmissible and uncertain as to its origin and authenticity. Further kindling the flame of suspicion as to the origin of the summation in question is the context of the November 17, 1987 letter of petitioner to private respondent Limpe. Quite unusual is the fact that in refuting the findings of the alleged "post audit" conducted by private respondent company, petitioner did not even bother to mention the source of his conclusion that private respondent company still owes him P76,893.42, while at the same time complaining that somehow he is being refused access to and disclosure of some of the company records, particularly the records/audit of E.V. Rodriguez and J.

89

G.R. No. 129329

July 31, 2001

On August 9, 1994, the private respondent, Medical Director Wilfrido Juco, issued a memorandum to petitioner charging her with the following offenses:

ESTER M. ASUNCION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, Second Division, MABINI MEDICAL CLINIC and DR. WILFRIDO JUCO, respondents. 2. Habitual tardiness You have late (sic) for 108 times. As shown on the record book. KAPUNAN, J.: 3. Loitering and wasting of company time on several occasions and witnessed by several employees. 1. Chronic Absentism (sic) You have incurred since Aug. 1993 up to the present 35 absences and 23 half-days.

In her petition filed before this Court, Ester Asuncion prays that the Decision, dated November 29, 1996, and the Resolution, dated February 20,1997, of the public respondent National Labor Relations Commission, Second Division, in NLRC CA. 011188 which reversed the Decision of the Labor Arbiter, dated May 15, 1996 be set aside.

4. Getting salary of an absent employee without acknowledging or signing for it.

The antecedents of this case are as follows:

5. Disobedience and insubordination - continued refusal to sign memos given to you.1

On August 16, 1993, petitioner Ester M. Asuncion was employed as an accountant/bookkeeper by the respondent Mabini Medical Clinic. Sometime in May 1994, certain officials of the NCR-Industrial Relations Division of the Department of Labor and Employment conducted a routine inspection of the premises of the respondent company and discovered upon the disclosure of the petitioner of (documents) violations of the labor standards law such as the non-coverage from the SSS of the employees. Consequently, respondent Company was made to correct these violations.

Petitioner was required to explain within two (2) days why she should not be terminated based on the above charges.

Three days later, in the morning of August 12, 1994, petitioner submitted her response to the memorandum. On the same day, respondent Dr. Juco, through a letter dated August 12, 1994, dismissed the petitioner on the ground of disobedience of lawful orders and for her failure to submit her reply within the two-day period.

This prompted petitioner to file a case for illegal termination before the NLRC.

90

SO ORDERED.3 In a Decision, dated May 15, 1996, Labor Arbiter Manuel Caday rendered judgment declaring that the petitioner was illegally dismissed. The Labor Arbiter found that the private respondents were unable to prove the allegation of chronic absenteeism as it failed to present in evidence the time cards, logbooks or record book which complainant signed recording her time in reporting for work. These documents, according to the Labor Arbiter, were in the possession of the private respondents. In fact, the record book was mentioned in the notice of termination. Hence, the nonpresentation of these documents gives rise to the presumption that these documents were intentionally suppressed since they would be adverse to private respondents claim. Moreover, the Labor Arbiter ruled that the petitioners absences were with the conformity of the private respondents as both parties had agreed beforehand that petitioner would not report to work on Saturdays. The handwritten listing of the days when complainant was absent from work or late in reporting for work and even the computerized print-out, do not suffice to prove that petitioners absences were unauthorized as they could easily be manufactured.2 Accordingly, the dispositive portion of the decision states, to wit:

On appeal, public respondent NLRC rendered the assailed decision which set aside the Labor Arbiters ruling. Insofar as finding the private respondents as having failed to present evidence relative to petitioners absences and tardiness, the NLRC agrees with the Labor Arbiter. However, the NLRC ruled that petitioner had admitted the tardiness and absences though offering justifications for the infractions. The decretal portion of the assailed decision reads:

WHEREFORE, premises considered, the appealed decision is hereby VACATED and SET ASIDE and a NEW ONE entered dismissing the complaint for illegal dismissal for lack of merit.

WHEREFORE, Premises Considered, judgment is hereby rendered declaring the dismissal of the complainant as illegal and ordering the respondent company to immediately reinstate her to her former position without loss of seniority rights and to pay the complainants backwages and other benefits, as follows:

However, respondents Mabini Medical Clinic and Dr. Wilfrido Juco are jointly and solidarily ordered to pay complainant Ester Asuncion the equivalent of her three (3) months salary for and as a penalty for respondents non-observance of complainants right to due process.

SO ORDERED.4 1) P73,500.00 representing backwages as of the date of this decision until she is actually reinstated in the service;

2) P20,000.00 by way of moral damages and another P20,000.00 representing exemplary damages; and

Petitioner filed a motion for reconsideration which the public respondent denied in its Resolution, dated February 19, 1997. Hence, petitioner through a petition for certiorari under Rule 65 of the Rules of Court seeks recourse to this Court and raises the following issue:

3) 10% of the recoverable award in this case representing attorneys fees.

THE PUBLIC RESPONDENT ERRED IN FINDING THAT THE PETITIONER WAS DISMISSED BY THE PRIVATE RESPONDENT FOR A JUST OR AUTHORIZED CAUSE.

91

The petition is impressed with merit.

Although, it is a legal tenet that factual findings of administrative bodies are entitled to great weight and respect, we are constrained to take a second look at the facts before us because of the diversity in the opinions of the Labor Arbiter and the NLRC.5 A disharmony between the factual findings of the Labor Arbiter and those of the NLRC opens the door to a review thereof by this Court.6

x x x In the instant case, while the Notice of Termination served on the complainant clearly mentions the record book upon which her tardiness (and absences) was based, the respondent (company) failed to establish (through) any of these documents and the handwritten listing, notwithstanding, of (sic) the days when complainant was absent from work or late in reporting for work and even the computerized print-outs, do not suffice to prove the complainants absences were unauthorized as they could easily be manufactured. x x x12

It bears stressing that a workers employment is property in the constitutional sense. He cannot be deprived of his work without due process. In order for the dismissal to be valid, not only must it be based on just cause supported by clear and convincing evidence,7 the employee must also be given an opportunity to be heard and defend himself. 8 It is the employer who has the burden of proving that the dismissal was with just or authorized cause.9 The failure of the employer to discharge this burden means that the dismissal is not justified and that the employee is entitled to reinstatement and backwages.10

In IBM Philippines, Inc. v. NLRC,13 this Court clarified that the liberality of procedure in administrative actions is not absolute and does not justify the total disregard of certain fundamental rules of evidence. Such that evidence without any rational probative value may not be made the basis of order or decision of administrative bodies. The Courts ratiocination in that case is relevant to the propriety of rejecting the unsigned handwritten listings and computer print-outs submitted by private respondents which we quote, to wit:

In the case at bar, there is a paucity of evidence to establish the charges of absenteeism and tardiness. We note that the employer company submitted mere handwritten listing and computer print-outs. The handwritten listing was not signed by the one who made the same. As regards the print-outs, while the listing was computer generated, the entries of time and other annotations were again handwritten and unsigned.11

However, the liberality of procedure in administrative actions is subject to limitations imposed by basic requirements of due process. As this Court said in Ang Tibay v. CIR, the provision for flexibility in administrative procedure "does not go so far as to justify orders without a basis in evidence having rational probative value." More specifically, as held in Uichico v. NLRC:

We find that the handwritten listing and unsigned computer print-outs were unauthenticated and, hence, unreliable. Mere self-serving evidence of which the listing and print-outs are of that nature should be rejected as evidence without any rational probative value even in administrative proceedings. For this reason, we find the findings of the Labor Arbiter to be correct. On this point, the Labor Arbiter ruled, to wit:

"It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical rules of procedure in the adjudication of cases. However, this procedural rule should not be construed as a license to disregard certain fundamental evidentiary rules. While the rules of evidence prevailing in the courts of law or equity are not controlling in proceedings before the NLRC, the evidence presented before it must at least have a modicum of admissibility for it to be given some probative value. The Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged losses, without the accompanying signature of a certified public accountant or audited by an independent auditor, are nothing but self-serving

92

documents which ought to be treated as a mere scrap of paper devoid of any probative value."

The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents.

opportunity to present the same. Being the basis of the charges against the petitioner, it is without doubt the best evidence available to substantiate the allegations. The purpose of the rule requiring the production of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its production would expose and defeat.15 Thus, private respondents unexplained and unjustified non presentation of the record book, which is the best evidence in its possession and control of the charges against the petitioner, casts serious doubts on the factual basis of the charges of absenteeism and tardiness.

In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC,14 this Court held as incompetent unsigned daily time records presented to prove that the employee was neglectful of his duties:

Indeed, the DTRs annexed to the present petition would tend to establish private respondents neglectful attitude towards his work duties as shown by repeated and habitual absences and tardiness and propensity for working undertime for the year 1992. But the problem with these DTRs is that they are neither originals nor certified true copies. They are plain photocopies of the originals, if the latter do exist. More importantly, they are not even signed by private respondent nor by any of the employers representatives. x x x.

We find that private respondents failed to present a single piece of credible evidence to serve as the basis for their charges against petitioner and consequently, failed to fulfill their burden of proving the facts which constitute the just cause for the dismissal of the petitioner. However, the NLRC ruled that despite such absence of evidence, there was an admission on the part of petitioner in her Letter dated August 11, 1994 wherein she wrote:

In the case at bar, both the handwritten listing and computer print-outs being unsigned, the authenticity thereof is highly suspect and devoid of any rational probative value especially in the light of the existence of the official record book of the petitioners alleged absences and tardiness in the possession of the employer company.

I am quite surprised why I have incurred 35 absences since August 1993 up to the present. I can only surmise that Saturdays were not included in my work week at your clinic. If you will please recall, per agreement with you, my work days at your clinic is from Monday to Friday without Saturday work. As to my other supposed absences, I believe that said absences were authorized and therefore cannot be considered as absences which need not be explained (sic). It is also extremely difficult to understand why it is only now that I am charged to explain alleged absences incurred way back August 1993.16

In reversing the decision of the Labor Arbiter, public respondent NLRC relied upon the supposed admission of the petitioner of her habitual absenteeism and chronic tardiness.

Ironically, in the memorandum charging petitioner and notice of termination, private respondents referred to the record book as its basis for petitioners alleged absenteeism and tardiness. Interestingly, however, the record book was never presented in evidence. Private respondents had possession thereof and the

93

We do not subscribe to the findings of the NLRC that the above quoted letter of petitioner amounted to an admission of her alleged absences. As explained by petitioner, her alleged absences were incurred on Saturdays. According to petitioner, these should not be considered as absences as there was an arrangement between her and the private respondents that she would not be required to work on Saturdays. Private respondents have failed to deny the existence of this arrangement. Hence, the decision of the NLRC that private respondent had sufficient grounds to terminate petitioner as she admitted the charges of habitual absences has no leg to stand on.

Apart from chronic absenteeism and habitual tardiness, petitioner was also made to answer for loitering and wasting of company time, getting salary of an absent employee without acknowledging or signing for it and disobedience and insubordination.18 Thus, the Labor Arbiter found that actually petitioner tried to submit her explanation on August 11, 1994 or within the two-day period given her, but private respondents prevented her from doing so by instructing their staff not to accept complainants explanation, which was the reason why her explanation was submitted a day later.19

Neither have the private respondents shown by competent evidence that the petitioner was given any warning or reprimanded for her alleged absences and tardiness. Private respondents claimed that they sent several notices to the petitioner warning her of her absences, however, petitioner refused to receive the same. On this point, the Labor Arbiter succinctly observed:

The law mandates that every opportunity and assistance must be accorded to the employee by the management to enable him to prepare adequately for his defense.20 In Ruffy v. NLRC,21 the Court held that what would qualify as sufficient or "ample opportunity," as required by law, would be "every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense." In the case at bar, private respondents cannot be gainsaid to have given petitioner the ample opportunity to answer the charges leveled against her.

The record is bereft of any showing that complainant was ever warned of her absences prior to her dismissal on August 9, 1994. The alleged notices of her absences from August 17, until September 30, 1993, from October until November 27, 1993, from December 1, 1993 up to February 26, 1994 and the notice dated 31 May 1994 reminding complainant of her five (5) days absences, four (4) half-days and tardiness for 582 minutes (Annex "1" to "1-D" attached to respondent' Rejoinder), fail to show that the notices were received by the complainant. The allegation of the respondents that the complainant refused to received (sic) the same is self-serving and merits scant consideration. xxx17

From the foregoing, there are serious doubts in the evidence on record as to the factual basis of the charges against petitioner. These doubts shall be resolved in her favor in line with the policy under the Labor Code to afford protection to labor and construe doubts in favor of labor.22 The consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. The employer must affirmatively show rationally adequate evidence that the dismissal was for a justifiable cause.23 Not having satisfied its burden of proof, we conclude that the employer dismissed the petitioner without any just cause. Hence, the termination is illegal.

The Court, likewise, takes note of the fact that the two-day period given to petitioner to explain and answer the charges against her was most unreasonable, considering that she was charged with several offenses and infractions (35 absences, 23 halfdays and 108 tardiness), some of which were allegedly committed almost a year before, not to mention the fact that the charges leveled against her lacked particularity.

Having found that the petitioner has been illegally terminated, she is necessarily entitled to reinstatement to her former previous position without loss of seniority and the payment of backwages.24

94

WHEREFORE, the Decision of the National Labor Relations Commission, dated November 29, 1996 and the Resolution, dated February 20, 1997 are hereby REVERSED and SET ASIDE, and the Decision of the Labor Arbiter, dated May 15, 1996 REINSTATED.

SO ORDERED.

95

G.R. No. 124893

April 18, 1997 On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, 4 disapproved petitioner's certificate of candidacy again due to her age. 5 Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run. 6

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents. PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte.

On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be disapproved. 7 Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The petition was sent by facsimile 8 and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila.

The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her application on the ground that petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824.

On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. The order reads as follows:

On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Circuit Trial Court, Bangui-PagudpudAdams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan. 1 The Board of Election Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte. 2 The presiding judge of the Regional Trial Court, however, inhibited himself from acting on the appeal due to his close association with petitioner. 3

Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads:

xxx

xxx

xxx

96

5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, copy of which is hereto attached and marked as Annex "A";

On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. 11 The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party." 12 On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon. 13

6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course and that said candidacy must be cancelled;

xxx

xxx

xxx

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK.

the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she garners the highest number of votes for the position of Sangguniang Kabataan [sic].

Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and legal research fees in the amount of P510.00.

Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code. 14 The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz:

SO ORDERED. 9

On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76. 10 In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27, 1996.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election.

In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective

97

office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself. 15

Sec. 1. Filing of Pleadings. Every pleading, motion and other papers must be filed in ten (10) legible copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or protest as there are additional respondents or protestees.

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc. 16 It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the said Rules thus:

Sec. 2. How Filed. The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with.

Sec. 3. Form of Pleadings, etc. (a) All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.

Sec. 3. The Commission Sitting in Divisions. The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission. 17

xxx

xxx

xxx

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996. 18

Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of Court of the COMELEC personally, or, by registered mail.

II

In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were filed with the COMELEC. 19 Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by registered mail.

The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal requirements of pleadings under the COMELEC Rules of Procedure. These requirements are: A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one

98

elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. 20 The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. 21 The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile. 22

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. 23 Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en banc from acting on the petition and issuing the questioned order. The COMELEC en banc should have waited until it received the petition filed by registered mail.

The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old. 27 The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan. 28 The chairman automatically becomes ex-officio member of the Sangguniang Barangay. 29 A member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office. 30

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code of 1991, viz:

III

Sec. 424. Katipunan ng Kabataan. The katipunan ng kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary.

To write finis to the case at bar, we shall now resolve the issue of petitioner's age. A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the following qualifications: The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age. 24 The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in issues of transcendental importance. 25 Its affairs were administered by a barangay youth chairman together with six barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age. 26 In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age."

Sec. 428. Qualifications. An elective official of the sangguniang kabataan must be a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to election, at least fifteen (15) years but not more than twenty-one (21) years of age on the day of his election, able to read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral turpitude.

99

Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude.

xxx

xxx

xxx

Sec. 6. be:

Qualifications of elective members. An elective official of the SK must

a)

a qualified voter;

For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus:

b) a resident in the barangay for at least one (1) year immediately prior to the elections; and

c) able to read and write Filipino or any Philippine language or dialect or English. Sec. 3. Qualifications of a voter. To be qualified to register as a voter in the SK elections, a person must be: Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer (EO) whose decision shall be final. a) a citizen of the Philippines; A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write.

b) fifteen (15) but not more than twenty-one (21) years of age on election day that is, he must have been born between May 6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for at least six (6) months immediately preceding the elections.

Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan.

100

Petitioner 's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections.

A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "or the day of his election" is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio. 31 The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification. 32

The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each. 34 One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth the last day of the year. 35 In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365day cycle. This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day.

The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on election day.

The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution No. 2824. 33 Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election.

In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly stated as ". . . at least fifteen years of age or over but less than eighteen . . ." 36 This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the Local Government Code increased the age limit of members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matter open to confusion and doubt. 37

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared that one of the reasons why the Katipunan ng

101

Kabataan was created and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed power. 38 They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more than 21 years 39 and the only exception is in the second paragraph of Section 423 which reads:

months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections.

Sec. 423. Creation and Election. The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible. 41 In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election. 42 The will of the people as expressed through the ballot cannot cure the vice of ineligibility. 43

a)

...;

b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he was elected.

The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected. According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday." 40 Conversely, the SK official must not have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election.

The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected. 44 A defeated candidate cannot be deemed elected to the office. 45 Moreover, despite his claims, 46 private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate. 47

Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections. 48 Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, 49 is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months."

In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11

102

The question of the age qualification is a question of eligibility. 50 Being "eligible" means being "legally qualified; capable of being legally chosen." 51 Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office. 52 Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman.

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office.

IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.

SO ORDERED.

103