Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 74145 June 17, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ZOSIMO CRISOLOGO, alias "AMANG", defendant-appellant.
The Solicitor General for plaintiff-appellee.
Marcelino G. Agana III for defendant-appellant.

PADILLA, J.:
Appeal from a decision of the Court of First Instance of Davao del Sur in Criminal Case No. 92 (76) convicting the defendant of
robbery with homicide, sentencing him to the death penalty, and ordering him to indemnity the heirs of Martin Francisco the
sums of P35,000.00 for loss of life, P25,000.00 for funeral expenses, P30,000.00 for loss of earnings and P20,000.00 for moral
damages.
On 5 May 1976, a criminal complaint was filed by the Station Commander with the Municipal Court of Magsaysay, Davao del
Sur against the accused Zosimo Crisologo alias "Amang," a deaf-mute, for robbery and homicide alleged to have been
committed on 1 May 1976 between ten to eleven o'clock in the evening in Calamagoy, Poblacion Magsaysay, Davao del Sur.
The following information was subsequently filed by the Provincial Fiscal against the accused on 16 September 1977:
That on or about the 1st day of May, 1976, in the Municipality of Magsaysay, Province of Davao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a
bladed weapon, with violence against and intimidation upon persons, and with intent of gain, did then and
there wilfully, unlawfully and feloniously rob Martin Francisco of one (1) "Seiko 5 Actus" wrist watch valued
at Four Hundred (P400.00) Pesos and a two battery flashlight valued at Thirty (P30.00) Pesos in the total
amount of Four Hundred Thirty (P430.00) Pesos, to the damage and prejudice of the said owner in the
amount aforesaid and on the same occasion, the above-named accused, with intent to kill wilfully,
unlawfully and feloniously attack[ed] and stab[bed] the said Martin Francisco with the same bladed
weapon, thereby inflicting upon him wounds which caused his death.
CONTRARY TO LAW with the aggravating circumstance of:
(a) disregard of the respect due the offended party on account of his age; and
(b) night time.
Digos, Davao del Sur, Philippines, September 15, 1977.
On 12 December 1977, arraignment was set. The accused was allegedly informed of the charge against him through sign
language by Special Policeman Alejandro Munoz a childhood acquaintance. Mr. Munoz subsequently entered a plea of guilty on
behalf of the accused. Upon objection of counsel, however, this plea was disregarded and arraignment was rescheduled until
such time as the Court could avail of the services of an expert in the sign language from the school of the deaf and dumb.
On 26 June 1979 the Court through another presiding judge, upon insistent plea of defense counsel for a sign language expert
to assist the accused, again reset arraignment as no expert in sign language was available. The School for the Deaf and Dumb in
Pasay City was sent a copy of the court order to enable it to furnish the court with an expert in sign language. No such expert
was made available.
On 9 November 1982, or after five years from the date of filing of the information, and order through still another presiding
judge was entered directing that a representative of the School of the Deaf and Dumb in Bago Gallera, Talomo District, Davao
City be availed of to enable the accused to intelligently express his understanding of a plea of guilty or not guilty.
Apparently no sign language expert or representative ever arrived.
On 6 April 1983, the accused through a counsel de oficio waived the reading of the information and pleaded not guilty. Trial
proceeded without any evidence being presented on his part. Finally, on 10 February 1986, without the services of an expert in
sign language ever being utilized at any stage of the proceedings, the accused was found guilty beyond reasonable doubt of
robbery with homicide and sentenced to die by electrocution. Executive clemency was recommended, however, in view of the
accused's infirmity and his nearly ten-year detention as a suspect.
Counsel for the accused and the Solicitor-General now ask for the reversal of the judgment of conviction due to the failure of
the trial court to safeguard the accused's right to due process of law and the insufficiency of the purely circumstantial evidence
presented to overcome the constitutional presumption of innocence in favor of the accused.
We find their position to be well-taken.
The absence of an interpreter in sign language who could have conveyed to the accused, a deaf-mute, the full facts of the
offense with which he was charged and who could also have communicated the accused's own version of the circumstances
which led to his implication in the crime, deprived the accused of a full and fair trial and a reasonable opportunity to defend
himself. Not even the accused's final plea of not guilty can excuse these inherently unjust circumstances.
The absence of a qualified interpreter in sign language and of any other means, whether in writing or otherwise, to inform the
accused of the charges against him denied the accused his fundamental right to due process of law. 1The accuracy and fairness
of the factual process by which the guilt or innocence of the accused was determined was not safeguarded. The accused could
not be said to have enjoyed the right to be heard by himself and counsel, and to be informed of the nature and cause of the
accusation against him
2
in the proceedings where his life and liberty were at stake.
In Terry v. State,
3
where a deaf-mute accused of manslaughter was not provided with an interpreter despite repeated requests
from counsel, it was held:
... The Constitution of this state expressly provides that an accused has a right to be heard by himself and
counsel, also, to demand the nature and cause of the accusation; against him, and, further to be confronted
by the witnesses, who are to testify against him. In constructing this constitutional provision it needs no
discussion in deciding that all this must be done in a manner by which the accused can know, the nature and
the cause of the accusation he is called upon to answer, and all necessary means must be provided, and the
law so contemplates, that the accused must not only beconfronted by the witnesses against him, but he
must be accorded all necessary means to know and understand the testimony given by said witnesses, and
must be placed in a condition where he can make his plea rebut such testimony, and give his own version of
the transaction upon which the accusation is based. This the fundamental law accords, and for this the law
must provide. These humane provisions must not, and cannot, be dependent upon the ability, financial or
otherwise, of the accused ... [This] constitutional right ... would be meaningless and a vain and useless
provision unless the testimony of the witnesses against him could be understood by the accused. Mere
confrontation of the witnesses would be useless, bordering upon the farcical, if the accused could not hear
or understand their testimony. So, also, as to the nature and cause of the accusation. In the absence of an
interpreter it would be a physical impossibility for the accused, a deaf-mute, to know or to understand the
nature and cause of the accusation against him, and, as here, he could only stand by helplessly, take his
medicine, or whatever may be coming to him, without knowing or understanding, and all this in the teeth of
the mandatory constitutional rights which apply to an unfortunate afflicted deafmute, just as it does to
every person accused of a violation of the criminal law. In other words the physical infirmity of this
appellant can in no sense lessen his rights under the Constitution, and, in the proper administration of its
laws, this great and sovereign state must and will accord the means by which its citizens, humble and
afflicted though they may be, shall receive all the rights, benefits and privileges which the Constitution,
laws, regulations, and rules of practice provide.
4

The basic constitutional infirmity alone in the conduct of the case against the accused is, in our candid assessment, fatal to the
judgment of conviction meted out against him.
Aside from the unfair setting and circumstance in which the accused was convicted, insufficiency of evidence to warrant a
finding of guilty beyond reasonable doubt also leads this Court to set aside the conviction. The following events and
circumstances are relevant in this regard:
On 1 May 1976, at past eight o'clock in the evening, the accused and the deceased were last seen walking away together from
a sari-sari store where they had been drinking tuba steadily in apparent harmony. At around eleven thirty of the same evening,
the accused suddenly appeared in the house of Wilson Evangelists, who was then with relatives butchering a pig for the
baptism of his child the following day. The accused was panting and trembling, and told Wilson Evangelista in sign language that
he had come from Calamagoy, at the side of the canal, where there were persons fighting on the road. Evangelista later
testified that he noticed the accused wearing a fatigue shirt with a blood-stain on it, and carrying a flashlight.
On 2 May 1976, Patrolman Reynaldo Pinto, Jr., was told to investigate a case of robbery with homicide with the deceased
Martin Francisco as victim, and to arrest the accused on the basis of Wilson Evangelista's statement that he saw the accused
with a bloodstained shirt the previous evening when the crime could conceivably have occurred. Patrolman Pinto did so that
very day. Several days later, he was also able to recover the deceased's wristwatch and flashlight from the house of the
accused's father allegedly through the assistance of the accused himself.
Upon being asked who killed the deceased, the accused allegedly admitted to Pat. Pinto in sign language that it was he by
making gestures which Pat. Pinto interpreted to mean that the accused had been stoned by the deceased, thus impelling the
accused to stab the latter. This confession, however, was not included in Pat. Pinto's affidavit as he allegedly forgot to tell the
investigator. He also acknowledge his failure to notify the accused of his right to counsel before interrogation and investigation
due to difficulty in conveying the matter by sign language.
Based on the above circumstances and evidence, the trial court found the accused guilty beyond reasonable doubt of the crime
charged, reasoning as follows:
The prosecution proved and which this Court finds that the accused was the last person to be seen with the
deceased, and that he was drunk when he left the store of prosecution witness Salome del Socorro together
with the deceased. The Court also finds that the accused's clothes had bloodstain on it when he went to the
house of prosecution witness Wilson Evangelista at 11:30 in the evening of May 1, 1976, the night when the
deceased was robbed and killed. The seiko 5 actus wrist watch and the flashlight colored red and white both
belonging to the deceased Martin Francisco were recovered from the possession of the accused and which
recovery was done with his help, The unexplained possession by the accused of the properties belonging to
the deceased proved that he took these things unlawfully. The fifteen (15) stab wounds which were inflicted
on the deceased, many of which were fatal wounds proved that a much younger [man] than the deceased
could have inflicted the same. In the case at bar, the accused is very much younger than the deceased who
was 63 years old at the time of his death, ... frail and without physical attributes, unlike the accused who
looks healthy, robust and young ...
While it is true that Pat. Pinto and his companion were able to get a statement from the accused without
telling him in advance of his constitutional rights, due to difficulty in explaining them in sign language, the
accused's statement by sign language was coupled with his voluntary help in recovering the things
belonging to the deceased. Furthermore, the court considered and took note of the plea of guilty which was
entered into by the accused on his first arraignment by sign language through Mr. Alejandro Munoz who is
an associate of the accused in their younger days. (Emphasis supplied.)
We find the trial court's decision essentially lacking in that degree of certainty in reason and conscience which is necessary to
establish guilt beyond reasonable doubt. As held in U.S. v. Lasada,
5
"By reasonable doubt is not meant that which of possibility
may arise, but it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let
the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal
charge but moral certainty is required, and this. certainty is required as to every proposition of proof requisite to constitute the
offense."
6
Facts must be presented methodically and meticulously, contradictions must be clarified, and gaps and loopholes in
the evidence must be adequately explained "to the end that the court's mind may not be tortured by doubts, the innocent [not]
suffer and the guilty [go] unpunished."
7

Such standards, we believe, have not been met in this case.
Patrolman Pinto, the interrogator to whom the accused allegedly confessed the details which led to a presumption that lie
killed the deceased, expressly admitted that he could have misinterpreted the gestures made by the accused as he had only a
slight knowledge of sign language. Furthermore, the same witness did not give fully credible replies when questioned about the
possibility that he was ordered to proceed to the house of accused's father to get the incriminating watch and flashlight which
were delivered there earlier by a certain Nicolas.
The bloodstain on the accused's shirt could conceivably have come also from the fighting that the accused told Wilson
Evangelista he had witnessed. Considering that the deceased sustained fifteen (15) stab wounds, twelve (12) of which could
have separately caused death, according to the medical officer who examined the body of the deceased, the presence of a
single bloodstain on the front of accused's shirt hardly supports the conclusion reached by the trial court, especially when
related to the high degree of intoxication appreciated against the accused. As testified to by the medical officer who, as stated,
examined the body of the deceased, the stab wounds could also have been inflicted by several assailants using different
weapons. That the accused looked much more robust than the deceased and thus could have committed the crime does not by
itself deserve the weight and consideration that the trial court gave to it. Furthermore, the rubber slippers and eyeglasses
found near the scene of the crime were never Identified or explained.
The trial court's appreciation of the plea of guilty earlier entered for the accused by Special Policeman Alejandro Munoz, which
the first presiding judge earlier discarded, is regrettable, to say the least, especially when considered with the admittedly
limited knowledge in sign language on the part of Pat. Munoz and in relation to the investigator's own admission that the
accused was never informed of his right to counsel.
8

WHEREFORE, the appealed decision is hereby reversed. The accused is acquitted, on the ground that his guilt has not been
proved beyond reasonable doubt. The Court hereby orders his immediate release from confinement, unless he is legally
detained for some other cause or offense.
SO ORDERED.
Teehankee, C.J., Yap, Fernando, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento
and Cortes, JJ., concur.







Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-41166 August 25, 1976
PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO, petitioners,
vs.
HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO OJOYrespondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and Solicitor Mariano M. Martinez
for petitioner People of the Philippines.
Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del Rosario and Dionisio Cerbo.
Sixto P. Demaisip for private respondent.

ANTONIO, J.:p
Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of respondent Judge, dated July 30, 1975,
sustaining the procedure proposed by defense counsel that, in lieu of the testimony of the witnesses for the accused on direct
examination in open court, he was filing their affidavits, subject to cross-examination by the prosecution. Per Resolution dated
August 22, 1975, this Court issued a temporary restraining order enjoining the respondent Judge from enforcing the questioned
Order.
In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio Ojoy, accused", of the Court of First
Instance of Iloilo, Branch III, after the accused himself had testified in his defense, his counsel manifested that for his
subsequent witnesses he was filing only their affidavits subject to cross-examination by the prosecution on matters stated in
the affidavits and on all other matters pertinent and material to the case. Private prosecutor Atty. Amelia K. del Rosario, one of
the petitioners here, objected to the proposed procedure but this notwithstanding, respondent Judge gave his conformity
thereto and subsequently issued the questioned Order. Contending that respondent Judge gravely abused his discretion
because the aforesaid Orders violates Sections 1 and 2 of Rule 132 of the Revised Rules of Court, which requires that the
testimony of the witness should be given orally in open court, and there is no appeal nor any plain, speedy and adequate
remedy in the ordinary course of law, petitioners instituted the present petition.
We grant the petition.
Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require that the testimony of a witness
shall be given orally in open court. The afore-cited Sections 1 and 2 provide:
SECTION 1. Testimony to be given in open court. The testimony of witnesses shall be given orally in open
court and under oath or affirmation.
SEC. 2. Testimony in superior courts to be reduced to writing.- In superior courts the testimony of each
witness shall be taken in shorthand or stenotype, the name, residence, and occupation of the witness being
stated, and all questions put to the witness and his answers thereto being included. If a question put is
objected to and the objection is ruled on, the nature of the objection and the ground on which it was
sustained or overruled must be stated, or if a witness declines to answer a question put, the fact and the
proceedings taken thereon shall be entered in the record. A transcript of the record made by the official
stenographer or stenotypist and certified as correct by him shall be prima facie a correct statement of such
testimony and proceedings.
Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of Sections 77 and 78 of Rule 123, of
the Old Rules of Court. Section 77 in turn was taken from Section 381 of Act No. 190,
1
while Section 78 from Section 32 of
General Order No. 58.
2

The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the
opportunity of cross-examination. "The opponent", according to an eminent authority,
3
demands confrontation, not for the
Idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination which cannot
be had except by the direct and personal putting of questions and obtaining immediate answers." There is also the advantage
to be obtained by the personal appearance of the witness before the judge, and it is this it enables the judge as the trier of facts
"to obtain the elusive and incommunicable evidence of a witness deportment while testifying, and a certain subjective moral
effect is produced upon the witness.
4
It is only when the witness testifies orally that the judge may have a true idea of his
countenance, manner and expression, which may confirm or detract from the weight of his testimony.
5
Certainly, the physical
condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy
will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court. Indeed, the
great weight given the findings of fact of the trial judge in the appellate court is based upon his having had just that opportunity
and the assumption that he took advantage of it to ascertain the credibility of the witnesses. This has been explained by Chief
Justice Appleton, thus:
The witness present, the promptless and unpremeditatedness of his answers or the reverse, their
distinctness and particularity or the want of these essentials, their incorrectness in generals or particulars,
their directness or evasiveness are soon detected. ... The appearance and manner, the voice, the gestures,
the readiness and promptness of the answers, the evasions, the reluctance the silence, the contumacious
silence, the contradictions, the explanations, the intelligence or the want of intelligence of the witness, the
passions which more or less control-fear, love, have, envy, or revenge are all open to observation, noted
and weighed by jury.
6

Thus, Section 1 of Rule 133 of the Rule
7
requires that in determining the superior weight of evidence on the issues involved,
the court, aside from the other factors therein enumerated, may consider the "witness manner of testifying" which can only be
done if the witness gives his testimony orally in open court". If a trial judge prepares his opinion immediately after the
conclusion of the trial, with the evidence and his impressions of the witnesses fresh in his mind, it is obvious that he is much
more likely to reach a correct result than if he simply reviews the evidence from a typewritten transcript, without having had
the opportunity to see, hear and observe the actions and utterances of the witnesses.
There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given orally ill court.
Rules governing the examination of witnesses are intended to protect the rights of litigants and to secure orderly dispatch of
the business of the courts. Under the rules, only questions directed to the eliciting of testimony which, under the general rules
of evidence, is relevant to, and competent to prove, the issue of the case, may be propounded to the witness. A witness in
testify only on those facts which he knows of his own knowledge. Thus, on direct examination, leading questions are not
allowed, except or, preliminary matters, or when there is difficult in getting direct and intelligible answer from the witness who
is ignorant, a child of tender years, or feebleminded, or a deaf mute.
8
It is obvious that such purpose may be subverted, and the
orderly dispatch of the business of the courts thwarted if trial judges are allowed, as in the case at bar, to adopt any procedure
in the presentation of evidence other than what is specifically authorized by the Rules of Court.
WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and the order of respondent Judge, dated
July 30, 1975, in Criminal Case No. 2891 is hereby set aside, and the temporary restraining order issued on August 22, 1975 is
hereby made permanent, without any pronouncement as to costs.
Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.



Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 92355 January 24, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRING CALIXTRO, CELSO FERRER and LOUIE FERRER, accused, PEDRING CALIXTRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Eliseo A. Mendoza for accused-appellant.

PARAS, J.:p
This is an appeal from the decision of the Regional Trial Court, Branch 33, Guimba, Nueva Ecija, in Criminal Case No. 536-G1
entitled "People of the Philippines v. Pedring Calixtro, Celso Ferrer and Louie Ferrer", convicting the accused-appellant, Pedring
Calixtro, of the crime of rape (Rollo, pp. 22-26).
The accused Pedring Calixtro, Celso Ferrer and Louie Ferrer were charged with the crime of Robbery with Rape under the
following information:
That on or about the 24th day of April, 1989 in Barangay Faigal, Municipality of Guimba, Province of Nueva
Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then
armed with sharp-pointed instrument (patalim), conspiring, confederating and helping one another, and
with intent to gain and by means of force and violence and intimidation upon person, did then and there
willfully, unlawfully and feloniously take, steal and carry away one (1) gold ring with three (3) stones of
diamond and one (1) pair of earrings with one stone diamond with a total value of TEN THOUSAND PESOS
(P10,000.00) Philippine Currency, more or less, belonging to EDELIZA ASTELERO to the damage and
prejudice of the latter in the said amount; and that during or on the occasion of the robbery, the said three
(3) accused conspiring, confederating and helping one another did then and there willfully, unlawfully and
feloniously have sexual intercourse one after the other with said EDELIZA ASTELERO against her will.
That the crime was committed with the aggravating circumstance of nighttime which was taken advantage
of by the said accused and as a consequence of which the complaining witness suffered actual, moral and
consequential damages which could be estimated in the total sum of P100,000.00.
CONTRARY TO LAW. (p. 7, Rollo)
The pertinent facts of the case as gathered from the records are as follows:
Edeliza Astelero, her husband Gonzalo Astelero, and an 11 year old son are residents of Barangay Faigal, Guimba, Nueva Ecija.
Pedring Calixtro had been a resident of the same barangay for a year before the incident occurred.
At about 10:00 o'clock in the night of April 24, 1989, while the Astelero family were peacefully resting in their abode, Edeliza
heard the barking of dogs; she peeped thru the hole of their window and she saw three male persons. She went to her husband
on the bed and awakened him. Both peeped through the hole of the window where they saw three men calling from outside,
"Manang, Manang, buksan mo ang pintuan." She went near the door of their hut. One of the three persons threatened her that
if she would not open the door, they would blast the house with a hand grenade. She was about to open the door but they
continued kicking the door to open the same (p. 8, TSN, Oct. 10, 1989). Then they hacked the wall of their house and the same
fell down. She was afraid that her family would be killed, so she decided to open the door. As she was opening the door, Celso
Ferrer pulled her outside of the house and threatened her not to ask for help. Then they dragged her out to the middle of the
fields (pp. 9-10, TSN, Ibid.).
In the middle of the field, Celso Ferrer and Louie Ferrer took hold of her arms and pointed a bladed weapon at her neck. At that
very moment, accused Pedring Calixtro told her that if she would not give her womanhood she would be killed. She pleaded for
mercy but accused Pedring Calixtro succeeded in removing her duster and short pants. She struggled but the accused started
hurting her thighs (p. 11, TSN, Ibid.). Pedring Calixtro succeeded in having sexual intercourse with the victim, while Celso Ferrer
took off her ring and earrings. Celso Ferrer and Louie Ferrer took turns in abusing her. After the heinous acts, the three accused
debated whether to kill Edeliza Astelero or not. Edeliza took the opportunity to flee while the three were discussing. She ran as
fast as she could until she saw a jeep, which she later found to be carrying her husband. Thereafter, she was brought to the
hacienda of Bebang Adriano (pp. 12-14, TSN, Ibid.).
The testimony of complainant witness is corroborated by Rogelio de la Cruz, a barangay tanod and neighbor of the Asteleros.
He testified that in the evening of April 24, 1989 at around 10:00 o'clock, more or less, the accused Pedring Calixtro, Celso
Ferrer and Louie Ferrer arrived in his house, and asked him for chicken, which they told him to cook and prepare as "pulutan"
but he refused. The three consumed a bottle of wine in his house. When the three left, he followed them secretly towards the
house of complainant. He saw them kicking the house and ordering the occupants to open the door. Moments later, he saw
them dragging the complainant away from her house towards the field. He reported the incident to the Barangay Captain (pp.
3-8, TSN, Nov. 14, 1989).
Police Corporal Juanito Villaba testified that in the evening of April 24, 1989, while in the office of the Integrated National
Police, Guimba, Nueva Ecija, Barangay Captain Marina Quitallas and companions arrived and reported that a certain Edeliza
Astelero had forcibly been taken from her house by three male persons. Officer-in-charge, Lt. Soriano, dispatched Sgt. Mendoza
and other policemen to respond to the call (pp. 5-6, TSN, Nov. 21, 1989).
Dr. Diosdado Barawid testified that the victim was brought to him for examination sometime on April 25, 1989 and he made the
following observation: "light blackish discoloration right hip lower portion, inner aspect; several abrasion upper portion and
inner aspect, and laboratory examination of vaginal smear-positive (+) for sperm cell, 3 counted." He further testified that the
abrasions or injuries sustained by Edeliza Astelero were caused by a blow and there were signs of struggle (pp. 3-7, TSN, Nov.
27,1989).
Pedro Calixtro testified on his behald that at 5:00 p.m. on April 24, 1989 he was tendering water in his ricefield. And about 5:30
of the same afternoon he was invited by Celso Ferrer and Louie Ferrer to the house of Rogelio de la Cruz to buy chicken. He
proceeded back to the ranch after 30 minutes and attended to the water pump. That during the hours of 10:00 and 11:00 p.m.
of the same night he heard shouts. He proceeded to the direction of the shouts and saw a naked woman being forced and
brought away by Celso Ferrer and Louie Ferrer. Then he heard from Celso Ferrer the words "papatayin kita", being addressed to
Edeliza. Witness gave to Edeliza the dress which he noticed behind her. A fist fight ensued between him and Celso. After the
fight, he noticed that Edeliza ran away, whereas, he went to the watering pump.
At about 6:00 o'clock the following morning, he was apprehended by Sgt. Soriano (pp. 3-11, TSN, November 28, 1989; pp. 7-9,
Brief for the Accused-Appellant; Rollo, pp. 43-45).
Of the three accused, only Pedring Calixtro was apprehended. Pedring Calixtro pleaded "not guilty" to the crime charged,
thereafter, trial on the merits ensued. After trial, the court a quo rendered a decision, the dispositive portion of which reads as
follows:
WHEREFORE, the Court finds the accused Pedring Calixtro guilty beyond reasonable doubt of the crime of
Rape as described under Art. 335 of the Revised Penal Code, as amended, and hereby sentences him to
suffer the penalty of reclusion perpetua and to indemnify the complainant in the amount of P30,000.00,
without subsidiary imprisonment in case of insolvency.
SO ORDERED. (pp. 26, Rollo)
Dissatisfied, Pedring Calixtro appealed and assigned the following errors, to wit:
I
THE LOWER COURT ERRED IN CATEGORICALLY PRONOUNCING THAT THE TESTIMONIES OF THE
COMPLAINANT EDELIZA ASTELERO DURING THE TRIAL OF THE CASE CLEARLY ESTABLISHED THE GUILT OF
ACCUSED-APPELLANT BEYOND REASONABLE DOUBT, AS NARRATED BY SAID COURT IN THE THIRD AND
LONGEST PARAGRAPH OF PAGE 2 OF THE DECISION IN QUESTION.
II
THE LOWER COURT ERRED IN: STATING THAT THE ACCUSED-APPELLANT'S DEFENSE CONSISTED OF MERE
DENIALS OF THE CRIME CHARGED AND ALIBI; AND IN RE-STATING THE TESTIMONIES OF SAID ACCUSED-
APPELLANT IN SHORT FIRST PARAGRAPH OF PAGE 4 OF SAID DECISION.
III
THE LOWER COURT ERRED IN FINDING THAT THE COMPLAINANT HAD POSITIVELY IDENTIFIED ACCUSED-
APPELLANT AS ONE OF THE PERSONS WHO SEXUALLY MOLESTED HER.
IV
THE LOWER COURT ERRED IN DISCREDITING THE TESTIMONIES OF THE ACCUSED-APPELLANT AS THE SAME
WERE NOT CORROBORATED BY OTHER EVIDENCE.
V
THE LOWER COURT ERRED IN NOT FINDING COGENT REASON WHY THE COMPLAINANT SHOULD FALSELY
CHARGE THE ACCUSED-APPELLANT OF THE SERIOUS CRIME OR ROBBERY WITH RAPE.
VI
THE LOWER COURT ERRED IN NOT DISCREDITING THE TESTIMONIES OF ROGELIO DE LA CRUZ.
VII
THE LOWER COURT ERRED IN ALLOWING THE COMPLAINANT TO TESTIFY IN STORY-TELLING MANNER OVER
THE OBJECTION OF THE UNDERSIGNED COUNSEL; and
VIII
THE LOWER COURT ERRED IN NOT TAKING INTO CONSIDERATION IN MAKING ITS DECISION, THE ACCUSED-
APPELLANT'S MEMORANDUM FILED ON JANUARY 2,1990, PURSUANT TO THE VERBAL ORDER DATED
DECEMBER 11, 1989 AND IN NOT INCLUDING SAID MEMORANDUM AND THE NOTICE OF APPEAL IN THE
RECORDS OF THE CASE REMANDED TO THIS HONORABLE SUPREME COURT. (pp. 37-38, Rollo)
Under Article 335 of the Revised Penal Code, rape is committed if the accused had carnal knowledge of a woman and such act is
accomplished under the following circumstances: (1) by using force or intimidation; (2) when the woman is deprived of reason
or otherwise unconscious; and (3) when the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs is present.
There are three settled principles to guide an appellate court in reviewing the evidence in rape cases: (1) an accusation for rape
can be made with facility; it is difficult to prove it but more difficult for the person accused, though innocent, to disprove it
(People v. Aldana, G.R. No. 81817, July 27, 1989); (2) in view of the intrinsic nature of the crime of rape where two persons are
usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the
prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence
for the defense (People v. Villapana, 161 SCRA 72). What is decisive in the rape charged is complainant's positive identification
of the accused-appellant as the malefactor (People v. Mustacisa, 159 SCRA 227; People v. Ramilo, 146 SCRA 258).
In the case at bar, the defense depended heavily on supposed inconsistencies pervading complainant's testimony at the trial
court below. Appellant pointed out alleged inconsistencies and improbabilities in the testimony of the rape victim Edeliza
Astelero which allegedly cast reasonable doubt on his guilt. The most notable of these were: (a) although she testified on direct
that she was alone when she peeped through the hole of their window and saw three (3) male persons, on cross, she claimed
that it was she and her husband who peeped through the hole of their window (b) while, on direct, she testified that she heard
the barking of the dogs at around 10:00 p.m., on cross, she stated that she heard the barking of the dogs at around 7:00 p.m.;
(c) on direct, she did not state that her assailants wore masks and that she herself was blindfolded which she mentioned only
on cross; (d) she could not have recognized her assaillants because they wore masks and she was blindfolded.
We find the alleged inconsistencies as too trivial, insignificant and inconsequential to merit the reversal of the trial court's
decision. The inconsistencies pointed out by appellant can hardly affect the complainant's credibility. They refer to minor
details or to the precise sequence of events that do not detract from the central fact of rape, on which complainant had
consistently and candidly testified. A witness who is in a state of flight cannot be expected to recall with accuracy or uniformity
matters connected with the main overt act (People v. Ramilo, supra). The testimonial discrepancies could have also been
caused by the natural fickleness of memory, which tend to strengthen, rather than weaken, credibility as they erase any
suspicion of rehearsed testimony (People v. Cayago; 158 SCRA 586). These discrepancies on minor details serve to add credence
and veracity to her categorical, straightforward, and spontaneous testimony (People v. Ramilo, supra).
Minor discrepancies indicate that the witness was not previously rehearsed, and consequently strengthen her credibility. It
would, perhaps, have been more suspicious if complainant had been able to pinpoint with clarity or described with precision
the exact sequence of events (People v. Cayago, supra; People v. Alfonso, 153 SCRA 487). The rape victim should not be
expected to keep an accurate account of the traumatic and horrifying experience she went through.
Needless to say, when the issue is one of credibility of witnesses, the findings of the trial court are generally accorded a high
degree of respect, the court having observed the demeanor and deportment of witness. We find no compelling reason to
deviate from this settled rule.
Appellant alleged that it was improbable for Edeliza to have recognized him when she herself was blindfolded and her
assaillants wore masks. Such contention is devoid of merit.
Although Edeliza was blindfolded and her assaillants wore masks, she was positive in her testimony that she recognized the
appellant as one of her attackers through the latter's voice. Edeliza could recognize appellant through his voice inasmuch as
they are barriomates. In fact, appellant even admitted that they were friends, thus:
Q Mr. Witness, how long have you been in Faigal, Guimba, Nueva Ecija, in the ranch of
Mrs. Bebang Adriano prior to April 24,1989?
A About one (1) year, sir, that I had been staying there.
Q And during that length of time you came to know Edeliza Astelero and her husband
who are also from Faigal, Guimba, Nueva Ecija, is it not?
A Yes, sir.
Q And they used to go to that ranch. In fact considering the length of time that you have
known Edeliza Astelero and her husband you alleged that you are their friend and the
same way that they also were your friends?
A Yes, sir. (p. 16, TSN, Nov. 18,1989)
In People vs. Inot, 150 SCRA 322 (1987), We ruled:
. . . complainant's identification of the appellant was not based solely on the latter's physical defect, but by
his voice as well, when he warned complainant, "Flor, keep quiet." Although complainant did not see
appellant's face during the sexual act because the house was dark, nevertheless, no error could have been
committed by the complainant in identifying the voice of the accused, inasmuch as complainant and
appellant were neighbors. . . .
This is corroborated by the testimony of Rogelio de la Cruz who saw Pedring Calixtro, Celso Ferrer and Louie Ferrer dragged
Edeliza Astelero out of her house.
Appellant put up the defense of alibi that he was looking after his irrigation task when he heard shouts, and went back after
having a fist fight with Celso Ferrer.
Defense of alibi is inherently weak and cannot prevail over the positive identification of the accused (People v. Cayago, 158
SCRA 586). For the defense of alibi to succeed, the accused must establish physical impossibility and improper motive of the
prosecution witnesses, which matters the accused failed to prove (People v. Alfonso, 153 SCRA 487).
Edeliza Astelero had positively identified the accused Pedring Calixtro as one of the persons who had raped her in the middle of
the fields. His alibi, that he was at the ranch during the hours of 10:00 and 11:00 p.m. of April 24, 1989 and while he was
looking after his farm he heard shouts, and he was the one who saved and rescued Edeliza Astelero, can only be taken with a
grain of salt. Such a statement could easily be fabricated, more so when it is not corroborated by testimonies of other impartial
witnesses. The accused was the lone witness for his defense. The accused could have had his testimony corroborated by
presenting other persons who could well testify on what he had been doing in the evening of April 24, 1989. Mere denial of the
commission of a crime cannot prevail over the positive identification made by the complaining witness.
Appellant stresses the prosecution's failure to present the husband and son of Edeliza. The expected testimony of husband and
son had already been dealt upon by Edeliza Astelero and Rogelio de la Cruz. There is no cogent reason for them to corroborate
what had been testified on. Besides it is the prerogative of the prosecution to choose its witnesses (People v. Quebral, 134
SCRA 425; People v. Martinez, 127 SCRA 260).
In rape, the prosecution need not, present testimonies of people other than the offended party herself if the same is accurate
and credible (People v. Robles, G.R. No. 53569, February 23, 1989).
Appellant questions the credibility of Rogelio de la Cruz as a witness. The former argues that being a barangay tanod, de la Cruz
should have apprehended the malefactors and should have prevented the heinous crime. De la Cruz reasoned out that he was
afraid that they might kill him; the malefactors were, then, armed with deadly bladed weapons. His only weapon was a stick,
which was not a match against bladed weapons. He feared for his life, such is not contrary to human nature. Thus, de la Cruz
should not foolhardily attempt to stop the malefactors in his state of physical disavantage and stake his life in the process.
The allegation that Pedring Calixtro was implicated because the real perpetrators were not arrested defies human reason.
It is hard to believe that a woman, a simple housewife and mother, would fabricate a rape charge and subject herself and family
to shame, humiliation and embarrassment of a public trial. We have oftentimes ruled that a woman would not undergo the
expense, trouble and inconvenience of a public trial, not to mention the scandal, embarrassment and humiliation such action
inevitably invites, as well as allow an examination of her private parts, if her motive is not to bring to justice the persons who
had abused her (People v. Muoz, 163 SCRA 730; People v. Cayago, 158 SCRA 586; People v. Viray 164 SCRA 135; People v.
Magdaraog, 160 SCRA 153; People v. Bulosan, 160 SCRA 492; People v. Hacbang, 164 SCRA 441).
Appellant further contends that the trial court erred in allowing the complainant-witness to testify in narrative form.
This contention is likewise devoid of merit.
Usually in criminal cases, the material facts within the knowledge of a witness are elicited by questions put to him by the
counsel calling him. By this means, the evidence is readily limited and confined within the issue for the reason that the
relevancy of the answer can in most cases be ascertained from the character of the question (Underhill's Criminal Evidence,
Sec. 387, p. 742). While this is the general rule, it still rests within the sound discretion of the trial judge to determine whether a
witness will be required to testify by question and answer, or will be permitted to testify in a narrative form (98 C.J.S., Sec. 325,
p. 26). There is no legal principle which prevents a witness from giving his testimony in a narrative form if he is requested to do
so by counsel. A witness may be allowed to testify by narration if it would be the best way of getting at what he knew or could
state concerning the matter at issue. It would expedite the trial and would perhaps furnish the court a clearer understanding of
the matters related as they occurred. Moreover, narrative testimony may be allowed if material parts of his evidence cannot be
easily obtained through piecemeal testimonies. But if, in giving such testimony, the witness states matters irrelevant or
immaterial or incompetent, it is the right and duty of counsel objecting to such testimony to interpose and arrest the narration
by calling the attention of the court particularly to the objectionable matter and, by a motion to strike it out, obtain a ruling of
the court excluding such testimony from the case (98 C.J.S., Ibid.). While a witness may be permitted in the discretion of the
court to narrate his knowledge of material facts bearing upon the case without specifically being interrogated in detail, it is also
within the discretion of the court to prohibit a witness from volunteering unsought information in connection with the case (5
Jones on Evidence, Sec. 2312).
Appellant takes notice of the fact that the trial court did not consider his memorandum. We find that the contents of the
memorandum were passed upon in the judgment of the trial court. The arguments therein were discussed by it. The arguments
presented did not raise new issues; hence, the memorandum deserves scant consideration.
We find, as the trial court found, that appellant successively raped the offended party while the other two accused held down
the victim, showing that conspiracy existed. Said other two also took turns in raping. In a conspiracy, the act of one is the act of
all. There are three (3) crimes of rape, appellant, having conspired with the two others, should be convicted on three counts of
rape. Thus, Pedring Calixtro is also responsible for the acts of Celso Ferrer and Louie Ferrer. The case of People v. Cayago, (158
SCRA 586) is applicable in the case at bar:
The trial court found as a fact that appellant and others, having conspired with each other, successively
raped the offended party while the other held down the victim. This is adequate basis for convicting
appellant Cayago of three (3) crimes of rape. The judgment of the trial court does not purport to convict
Macaraeg and Capitle and would not, of course, bind them should they ever be arrested and brought to
trial; they may plead any defense to which they might feel entitled, such as insanity or mistaken identity,
etc.
We find the accused's guilt to have been proved beyond reasonable doubt.
ACCORDINGLY, the judgment of conviction is hereby AFFIRMED, INCREASING the penalty imposed on the appellant to three (3)
penalties of RECLUSION PERPETUA, and for him to indemnify the offended party in the sum of P30,000.00 in each case for a
total of P90,000.00 and to pay the costs.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur






Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29169 August 19, 1968
ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF
MANILA, respondents.
Estanislao E. Fernandez and Fausto Arce for petitioner.
Office of the Solicitor General for respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he
is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his
conviction
1
he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that,
should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of
Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this
Court for the reason that he was raising purely questions of law.
The indictment in the court below the third amended information upon which the judgment of conviction herein
challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with
Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein,
Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis
Asistio alias "Baby" Asistio, Lorenzo Meneses alias"Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.
2

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused
conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in
asporting the motor vehicle above-described.
Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not
guilty.1wph1.t
On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City.
The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:.
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one of the accused].
ATTY. CARBON [Counsel for petitioner Chavez]:
I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him
as his witness. I object.
COURT:
On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified
by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this
very moment that I come to know about this strategy of the prosecution.
COURT (To the Fiscal):
You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness, Your Honor.
I am only presenting him as an ordinary witness.
ATTY. CARBON:
As a matter of right, because it will incriminate my client, I object.
COURT:
The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the
giving of his testimony.
x x x x x x x x x
COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding was suspended in order to enable me to confer with my client.
I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have
explained to him the consequences of what will transpire.
COURT:
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.
If there should be any question that is incriminating then that is the time for counsel to interpose his objection and
the court will sustain him if and when the court feels that the answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate
him.
But surely, counsel could not object to have the accused called on the witnessstand.
ATTY. CARBON:
I submit.
x x x x x x x x x
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has
come to the knowledge of this counsel.
This representation has been apprised of the witnesses embraced in the information.
For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will
bring about. I therefore move for postponement of today's hearing.
COURT:
The court will give counsel time within which to prepare his cross-examination of this witness.
ATTY. CRUZ:
I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the
information.
I did not know until this morning that one of the accused will testify as witness for the prosecution.
COURT:
That's the reason why the court will go along with counsels for the accused and will give them time within which to
prepare for their cross-examination of this witness.
The court will not defer the taking of the direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department
headquarters, after being duly sworn according to law, declared as follows:
ATTY. IBASCO [Counsel for defendant Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of the accused in this case No. Q-5311.
The information alleges conspiracy. Under Rule 123, Section 12, it states:
'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.'
COURT:
That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution
events to establish by calling this witness to the witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.
3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia".
Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as
follows:
A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo
Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his
car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a
barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car.
Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon
the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one
occasion, already lent Romeo Vasquez P3,000.00 on the same Buick car. Asistio however told the two that he had a better idea
on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as
a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio
would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He
furnished the name of Johnson Lee who was selling his Thunderbird. 1wph1.t
In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon.
Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's
driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they
went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a
lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale was drawn up,
it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.
As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place.
The deed of sale and other papers remained in the pockets of Johnson Lee.
At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang
then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to
exhibit the deed of sale of the car to the note bearer.
4

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some
fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes.
The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found
that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car
and impounded it.
Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at
Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth
P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the
name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows:
In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a
Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him
with a down payment of P10,000.00.
To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out
a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to
see a certain Mario Baltazar, an agent of the Pasay City Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang
asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed
immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the
check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang
that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because
P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent
Chavez to Baltazar and Cailles, with a note requesting that they accommodate him once more. He also sent a check, again
without funds. Baltazar gave the money after verifying the authenticity of the note.
On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the
rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave
P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the
car was already bought by a Chinese who would be the vendor.
The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at
the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez.
At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging"
Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual
warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a
friend of Pascual, offered to make out a receipt for Chavez to sign.
After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already
signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was
offered as an exhibit by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the
keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel.
Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio
with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the
offer was good, and knowing Asistio's and his friends' reputation for always getting what they wanted, Sumilang consented to
the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with
some financing company. Before said balance could be paid, the car was impounded.
The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good
money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And
so, the prosecution's theory of conspiracy was discounted.
As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The
accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court.
As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his
testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."
5
The trial court branded him "a self-
confessed culprit".
6
The court further continued:
It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused
down with him by coloring his story with fabrications which he expected would easily stick together what with the
newspaper notoriety of one and the sensationalism caused by the other. But Roger Chavez'accusations of Asistio's
participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for
acts not very different from those charged in this information, the Court would be too gullible if it were to give full
credence to his words even if they concerned a man no less notorious than himself.
7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to
blame.
The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable
doubt of the crime of qualified theft. He was accordingly sentenced to suffer an indeterminate penalty of not less than ten (10)
years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to
indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to
undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI
was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the
latter chose to pay P21,500.00, representing the balance of the contract price for the car.
The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals.
On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten
days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer
received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any
brief having been filed.
On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file
appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is
erroneous.
8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider
was unavailing. For, on June 21, 1968, the Court of Appeals, through a per curiam resolution, disposed to maintain its May 14
resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of
arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below,
and ordered remand of the case to the Quezon City court for execution of judgment.
It was at this stage that the present proceedings were commenced in this Court.
Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main
problem presented.
We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify
against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these
should not be pursued here.
1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right constitutionally entrenched
against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of
the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness
against himself,"
9
fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be
entitled: "(e) To be exempt from being a witness against himself." .
It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican
government";
10
that [i]t may suit the purposes of despotic power but it can not abide the pure atmosphere of political liberty
and personal freedom."
11
Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: "
"The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods
of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts
from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of
arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily
and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his
apparent connection with a crime under investigation, the ease with which the questions put to him may assume an
inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him
into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably
in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand
for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and
no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has
become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system
impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to
question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence,
became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597;
40 Law. ed., 819, 821)."
12
Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the
early days "in a revolt against the thumbscrew and the rack."
13
An old Philippine case [1904]
14
speaks of this constitutional
injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial
methods of interrogating the accused person"; and as having been adopted in the Philippines "to wipe out such practices as
formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony
regarding the offenses with which they were charged."
So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court";
it is mandatory; it secures to a defendant a valuable and substantive right;
15
it is fundamental to our scheme of justice. Just a
few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that
"[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted."
16

It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory;
it secures to every defendant a valuable and substantive right. Taada and Fernando (Constitution of the Philippines, 4th ed.,
vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was
established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every
species and degree of which the law abhors.
17

Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court
as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the
tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he
chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will.
Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional
statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his
capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the
unwilling lips of the defendant."
18

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the
prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and
invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's
protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as
witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on
the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus
peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the
Constitution, the law, and jurisprudence.
Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at
him,
19
and accused may altogether refuse to take the witness stand and refuse to answer any and all questions.
20
For, in
reality, the purpose of calling an accused as a witness for the People would be to incriminate him.
21
The rule positively intends
to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his
conviction."
22
This rule may apply even to a co-defendant in a joint trial.
23

And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence
against himself "is not the probability of the evidence but it is the capability of abuse."
24
Thus it is, that it was undoubtedly
erroneous for the trial judge to placate petitioner with these words:.
What he will testify to does not necessarily incriminate him, counsel.
And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.
If there should be any question that is incriminating then that is the time for counsel to interpose his objection and
the court will sustain him if and when the court feels that the answer of this witness to the question would
incriminate him.
Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate
him.
But surely, counsel could not object to have the accused called on the witness stand.
Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355,
25
While a
defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed"
to conviction.
The judge's words heretofore quoted "But surely counsel could not object to have the accused called on the witness stand"
wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they
foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing
but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent.
3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent.
The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents
on July 17, 1963 at 5:00 o'clock in the afternoon.
26
And this statement detailed the plan and execution thereof by Sumilang
(Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same
anew in open court. He identified the Thunderbird car involved in the case.
27

The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the
admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging
facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo
Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very
same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his
guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1wph1.t
4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his
constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand
and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify.
If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt,
this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled
submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt
had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least
on direct examination would be taken right then and thereon the first day of the trial.
It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions
propounded to him were made. Here involve is not a mere question of self-incrimination. It is a defendant's constitutional
immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1wph1.t
There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, andintelligently,
understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a
witness cannot properly be held to have waived his privilege on vague and uncertain evidence."
28
The teaching in Johnson vs.
Zerbst
29
is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental
constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an
intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense.
It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we
say again, is a rampart that gives protection - even to the guilty.
30

5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ.
31
It is traditionally considered as an
exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are
disregarded.
32
Such defect results in the absence or loss of jurisdiction
33
and therefore invalidates the trial and the consequent
conviction of the accused whose fundamental right was violated.
34
That void judgment of conviction may be challenged by
collateral attack, which precisely is the function of habeas corpus.
35
This writ may issue even if another remedy which is less
effective may be availed of by the defendant.
36
Thus, failure by the accused to perfect his appeal before the Court of Appeals
does not preclude a recourse to the writ.
37
The writ may be granted upon a judgment already final.
38
For, as explained
in Johnson vs. Zerbst,
39
the writ of habeas corpus as an extraordinary remedy must be liberally given effect
40
so as to protect
well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another
constitutional right, in this wise:
Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance
with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this
right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to
proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently
and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the
course of the proceedings" due to failure to complete the court as the Sixth Amendment requires by providing
Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty,
and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no
longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and
one imprisoned thereunder may obtain release of habeas corpus.
41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of
disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly
provided by law, "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.
Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment.
By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are
equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The
parties attempting to enforce it may be responsible as trespassers. ... "
42

6. Respondents' return
43
shows that petitioner is still serving under a final and valid judgment of conviction for another
offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position
we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the
Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.
Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or
the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the
Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled"People of the Philippines, plaintiff, vs.
Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained
for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal,
Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to
exist.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. Castro, J., concurs in a separate
opinion.


















Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. Nos. 100720-23 June 30, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO CODILLA, GERMAN LUCAAS and MARCELO PUTULIN, accused-appellants.
The Solicitor General for plaintiff-appellee.
Erlich V. Barraquias for accused-appellants Lucaas and Putulin.
Public Attorney's Office for accused-appellant R. Codilla.

REGALADO, J.:
Margarita Alpos, Helen Pepito and Letecia Pepito instituted four separate complaints with the Regional Trial Court, Branch 12,
Ormoc City, for rape against accused-appellants Rolando Codilla, German Lucanas and Marcelo Putulin. Two separate
complaints were filed by Helen Pepito and Margarita Alpos against Rolando Codilla in Criminal Cases Nos. 3739-0 and 3740-0,
respectively. German Lucaas was charged with the same offense of rape by the same Margarita Alpos in Criminal Case No.
3742-0, while Marcelo Putulin was also charged with the same crime of rape by Letecia Pepito, sister of Helen, in criminal Case
No. 3741-0.
These complaints
1
were of the following tenor:
Criminal Case No. 3739-0
That on or about the 24th day of May, 1990, at around 3:00 o'clock in the morning, at Brgy. Concepcion,
Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused, ROLANDO
CODILLA y Dumalan, being then armed with a small pointed bolo, by means of violence and intimidation,
did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant herein,
HELEN PEPITO y Maglinte, against her will and in her own house.
All contrary to law and with the aggravating circumstance that the said offense was committed in the
dwelling of the offended party, the latter not having given provocation for the offense.
In violation of Article 335, Revised Penal Code.
Ormoc City. December 19, 1990.
(SGD.) HELEN M. PEPITO
Complainant
Criminal Case No. 3740-0
That on or about the 27th day of November, 1990, at around 3:00 o'clock in the morning at Brgy.
Concepcion, Ormoc City, and within the jurisdiction of this Honorable Court, the above- named accused,
ROLANDO CODILLA y Dumalan, being then armed with a handgun with unknown caliber, by means of
violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of
the complainant herein, MARGARITA ALPOS, against her will and in her own house.
All contrary to law and with the aggravating circumstance that the said offense was committed in the
dwelling of the offended party, the latter not having given provocation for the offense.
In violation of Article 335, Revised Penal Code.
Ormoc City, December 21, 1990.
(SGD.) MARGARITA ALPOS
Complainant
Criminal Case No. 3741-0
That on or about the 24th day of May, 1990, at around 3:00 o'clock in the morning, at Brgy. Concepcion,
Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused, MARCELO
PUTULIN y Genoguin, being then armed with a small pointed bolo, by means of violence and intimidation,
did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant LETECIA
PEPITO y Maglinte, against her will and in her own house.
All contrary to law and with the aggravating circumstance that the said offense was committed in the
dwelling of the offended party, the latter not having given provocation for the offense.
In violation of Article 335, Revised Penal Code.
Ormoc City, December 19, 1990.
(SGD.) LETECIA PEPITO
Complainant
Criminal Case No. 3742-0
That on or about the 27th day of November, 1990, at around 3:00 o'clock in the morning, at Brgy.
Concepcion. Ormoc City, and within the jurisdiction of this Honorable Court, the above-named accused
GERMAN LUCAAS y dela Cruz, being then armed with a handgun with unknown caliber, by means of
violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of
the complainant herein, MARGARITA ALPOS, against her will and in her own house.
All contrary to law and with the aggravating circumstance that the said offense was committed in the
dwelling of the offended party, the latter not having given provocation for the offense.
In violation of Article 335, Revised Penal Code.
Ormoc City, December 21, 1990.
(SGD.) MARGARITA ALPOS
Complainant
The factual milieu of these cases, as correctly and succinctly summarized by the Solicitor General with page references to the
transcripts of stenographic notes taken during the trial, is in concordance with the findings of the trial court, and we adopt and
reproduce the same hereunder:
In Criminal Case No. 3739-0, the private offended party, Helen Pepito, testified that she is thirteen (13)
years old, single and a student (tsn, Feb. 19, 1991, p. 13). At about 3:00 o'clock in the early morning of May
24, 1990, at Barangay Concepcion, Ormoc City, she and her sister Letecia were awakened from their sleep
by a heavy rain (tsn, Feb. 19, 1991, p. 15). When she opened her eyes, she was surprised to see two men
wearing briefs and sleeveless shirts (tsn, Feb. 19, 1991, p.16). The men were carrying bolos and a flashlight
(tsn, Feb. 19, 1991, p.15).
One of the men asked her if they had money. When she replied that she had none, she was ordered to go
down to the kitchen with him. She obeyed the man out of overwhelming fear (tsn, Feb. 19, 1991, p. 18).
In the kitchen, one of the two men ordered her to remove her clothes. She initially refused, but when the
man pointed his bolo at her, she undressed herself. The men then held both her hands, inserted his penis in
her vagina and had sexual intercourse with her (tsn, Feb. 19, 1991, p. 19-20). When the carnal act was
consummated, she felt pain, in her private parts (tsn, Feb. 19, 1991, p. 20).
Helen Pepito identified the man who ravished her as Rolando Codilla (Ibid.).
Dr. Nelson Udtajan, Senior Resident Physician of the Ormoc District Hospital, testified that he examined
Helen Pepito on May 25, 1990. His findings, contained in Exhibit "A" of Criminal Case No. 3739-0, show that
Helen Pepito sustained lacerations in her hymen and indubitably indicated consummation of the carnal act
(tsn, Feb. 19, 1991, pp. 7-9).
In Criminal Case No. 3741-0, the private offended party, Letecia Pepito, testified that she is fifteen (15)
years old, single and a student (tsn, March. 4, 1991, p. 3). In the early morning of May 24, 1990, she was
awakened from her sleep by a light coming from a flashlight being focused on her face (tsn, Mar. 4, 1991, p.
4). When she opened her eyes, she saw two men who pointed bolos at her and her sister, Helen Pepito. One
man ordered her sister to go down to the kitchen while the other brought her to the sala where he ordered
her to remove her panty (tsn, Mar. 1991, pp. 6-7). When she refused to comply, the man pushed her to the
ground, removed her panty himself and sexually abused her (tsn, Mar. 4, 1991, p. 8).
Letecia Pepito identified the man who raped her as Marcelo Putulin (tsn, Mar. 4, 1991, p. 10).
The defense admitted the authenticity of the medical certificate issued by Dr. Nelson Udtajan which found
that Letecia Pepito's hymen sustained lacerations that indubitably indicated the consummation of the
carnal act (tsn, Feb. 28, 1991, pp. 2-4).
Criminal Cases Nos. 3740-0 and 3742-0 involve the same private offended party, Margarita Alpos, and the
offenses were committed under the same circumstances and time.
Margarita Alpos testified that at about 3:00 o'clock in the early morning of November 27, 1990, she was
sleeping in her house at Barangay Concepcion, Ormoc City when she was awakened by the fall of her gallon
containing water (tsn, Feb. 28, 1991, p. 5). She stood up to go to the kitchen but was met by two men on
the stairs who pointed a flashlight on her face (tsn, Feb. 28, 1991, pp. 5-6). The two men asked her to give
some money, but since she had no money at that time, the two men brought her upstairs. Once upstairs,
the two men put out the light coming from an oil lamp. One of the men then put himself on top of
Margarita and succeeded in having sexual with her (tsn, Feb. 28, 1991, pp. 7-8). When he was through, the
other man took his turn in sexually abusing Margarita (tsn, Feb. 28, 1991, p. 8).
Margarita Alpos identified the two men who sexually abused her as Rolando Codilla and German Lucaas
(tsn, Feb. 28, 1991, p. 7).
Dr. Edilberto Calipayan, Medical Officer IV of the Ormoc City Health Office, testified that he examined
Margarita Alpos at about 3:00 o'clock p.m. on November 27, 1990 and he found that the victim had carnal
intercourse with at least two men about thirteen (13) hours prior to examination (tsn, Feb. 19, 1991, pp. 4-
7).
Sgt. Romeo Pearanda, a member of the Philippine National Police (PNP) assigned to Ormoc City, testified
that at around 2:30 p.m. on November 27, 1990, he was at Brgy. Concepcion, Ormoc City, responding to a
rape case. Together with him were PFC Mamerto Sarcol, Jr., PFC Diosdado Tagalog, Pat. Eduardo Bituin and
CVO Manuel Pepito (tsn, Feb. 28, 1991, p. 32). They proceeded to the house of the Barangay Captain
who provided them with a guide to show them the place where the rape suspects were hiding. The police
were able to apprehend the suspects and brought them to the Ormoc City Police Station. Margarita Alpos
was able to identify two of the three suspects (Codilla and Lucaas) during the custodial investigation of the
case, as the persons who sexually assaulted her (tsn, Feb. 28, 1991, pp. 35-36).
Helen and Letecia Pepito likewise identified the persons who raped them as Codilla and Putulin,
respectively, at the Police Station during the custodial investigation of the case (tsn, Feb. 19, 1991, pp. 30-
31; 60).
2

Accused-appellants, anchoring their defense on denial and alibi, present different versions which, as culled from the joint
decision of the court a quo, are respectively of the substantial import recounted in the succeeding paragraphs.
3

Appellant Rolando Codilla asserts that on the fateful day of May 24, 1990, at around 3:00 A.M., he was at San Isidro, Leyte,
working in the four-hectare cornland of Ernesto de la Cruz, having done so since the middle part of March of the same year. He
claims that he never left the place until August 6, 1990 when he stopped working on the aforesaid land. This was corroborated
by Ernesto de la Cruz who confirmed having hired Codilla to harvest his corn from March, 1990 to August 6, 1990, and who
supported Codilla's claim that he never left San Isidro during this time.
Codilla also denies having had carnal knowledge of Margarita Alpos, claiming that on November 27, 1990, at about 3:00 A.M.,
when the alleged rape occurred, he was sleeping in their house at Sitio Tipik II, Bgy. San Jose, Ormoc City.
Appellant German Lucaas, on his part, avers that having stayed in Manila for twelve (12) years, he came home to Ormoc City
on November 11, 1990 on board the M/V Cebuano Princess with appellant Marcelo Putulin. On November 27, 1990, at about
3:00 A.M., he was at Sitio Tipik II, Bgy. San Jose, Ormoc City, visiting his uncle, Gaudioso Potot.
Witness Gregoria Genoguin was presented by the defense to prove that she has known appellants Codilla and Lucaas for
fourteen years; that she was a resident of Sitio Tipik II, Bgy. San Jose, Ormoc City; and that Codilla and Lucaas stayed in the
barracks of Del Socorro at Brgy. Concepcion, Ormoc City.
As for appellant Marcelo Putulin, he alleges that she was in Manila on January 10, 1989 and he stayed there until November 11,
1990 when he returned to Ormoc City with appellant Lucaas. While in Manila, he sustained himself by selling hotcakes.
Florentina Putulin, Marcelo's mother, was also called to the witness stand to testify to the fact that her son was in Manila from
January, 1990 to November, 1990 and that he never left Manila during this period.
At the arraignment, appellants Codilla and Lucaas, assisted by Atty. Crisologo S. Bitas,
4
and appellant Putulin, assisted by Atty.
Pablo Oliver, entered pleas of not guilty
5
and, after a joint trial on the merits, the court a quo rendered a joint decision, with
the following decretal portion:
WHEREFORE, decision is hereby rendered:
1. In Crim. Case No. 3739-0, finding the accused ROLANDO CODILLA guilty beyond reasonable doubt of the
crime of RAPE defined and penalized under Article 335 of the Revised Penal Code. There being no
aggravating nor mitigating circumstances, the court imposes upon the same ROLANDO CODILLA the
sentence of RECLUSION PERPETUA and to indemnify HELEN PEPITO (in) the sum of P20,000.00;
2. In Crim. Case No. 3740-0, finding the accused ROLANDO CODILLA guilty beyond reasonable doubt of the
crime of RAPE defined and penalized under Article 335 of the Revised Penal Code. There being no
aggravating nor mitigating circumstance, the court imposes upon the same ROLANDO CODILLA the sentence
of RECLUSION PERPETUA and to indemnify MARGARITA ALPOS (in) the sum of P20,000.00;
3. In Crim. Case No. 3741-0, finding the accused MARCELO PUTULIN guilty beyond reasonable doubt of the
crime of RAPE defined and penalized under Article 335 of the Revised Penal Code. There being no
aggravating nor mitigating circumstance, the court imposes upon the same MARCELO PUTULIN the
sentence of RECLUSION PERPETUA and to indemnify LETECIA ALPOS (in) the sum of P20,000.00;
4. In Crim. Case No. 3742-0, finding the accused GERMAN LUCAAS guilty beyond reasonable doubt of the
crime of RAPE defined and penalized under Article 335 of the Revised Penal Code. There being no
aggravating nor mitigating circumstance, the court imposes upon the same GERMAN LUCAAS the sentence
of RECLUSION PERPETUA and to indemnify MARGARITA ALPOS (in) the sum of P20,000.00;
As all three (3) accused are detention prisoners, the period of their detention shall be credited in full if they
conform in writing to the rules and conditions of convicted prisoners, otherwise only 4/5 thereof. In the
case of ROLANDO CODILLA, by reason of the two sentences of Reclusion Perpetua, the two penalties shall
be served successively in accordance with the provisions of Article 70 of the Revised Penal Code.
SO ORDERED.
6

Appellants now invoke this Court's jurisdiction to review and reverse the decision of the court a quo, contending that the latter
supposedly erred: (1) in not considering the dubious circumstances surrounding their arrest which is violative of their
constitutional rights, and by indicating fabrication of charges against them; (2) in not considering the conduct of the police
investigators during the pre-trial identification of appellants which was calculated to induce positive identification; (3) in giving
credence to the testimonies of the prosecution witnesses despite their incredibility and unworthiness, and (4) in not
considering acceptable jurisprudence that identification arising from suggestive police behavior is unreliabe and inadmissible
for being violative of an accused's right against self-incrimination.
7

During the pendency of this appeal, after it was proven that appellant Rolando Codilla escaped from the Ormoc City Jail on July
27, 1991, the Court issued a resolution on April 6, 1992
8
dismissing his appeal pursuant to Section 8, Rule 124 of the Rules of
Court which provides, inter alia, that "(t)he court may also, upon motion of the appellee or on its own motion, dismiss the
appeal if the appellant escapes from prison or confinement or flees to a foreign country during the pendency of the appeal." It
is a judicial dictum that where the accused escapes from custody or jumps bail during the pendency of his appeal, the appellate
court has the discretion to either postpone the resolution of his case until his recapture or to dismiss the appeal.
9

Meanwhile, the Jail Warden of the Ormoc City Jail, Rodolfo D. Sonon, also manifested in a letter dated August 11, 1992, that
appellant German Lucaas was missing and the latter's whereabouts is unknown up to the present. He expressed the belief that
Lucaas was one of the victims of the flash flood which hit Ormoc City last November 5, 1991.
10
In a resolution dated
September 14, 1992,
11
the National Bureau of Investigation (NBI) was ordered by this Court to investigate Lucaas'
whereabouts. In response to NBI queries, Jail Warden Sonon again manifested, in a letter dated September 22, 1992,
12
that
Lucaas is still missing.
After this investigation, the NBI submitted a report to this Court dated November 4, 1992, containing the following excerpts:
03. . . . An interview was conducted at Ormoc City to determine the veracity of the report submitted by the
former City Jail Warden JUANITO CATIPAY. In an interview with JUANITO CATIPAY he averred that because
of the growing water occupying the ground floor at around 11:30 in the morning, he decided to open the
cell at the ground floor so that the prisoners could take refuge at the second floor or other elevated portion
of the jail. Minutes later, several people took shelter at the second floor making it unmanageable coupled
with the circumstance that everybody was in panic and concerned with his own safety. . . .
04. . . . In view thereof, based on the interview and the spot inspection conducted by this Command
coupled with the fact that nobody was ever recovered after the calamity which was positively identified as
that of GERMAN LUCAAS, plus the fact that no witness could either confirm or deny the fact of death of
herein subject, nor could this command safely conclude the fact that he might still be alive, this Command
after a careful search for herein subject (in) in depth study of this matter respectively finds the following:
1. That as to GERMAN LUCAAS being one of the victims of the flashflood which hit Ormoc City last
November 5, 1991, this Command based on the foregoing premises had found no basis to adopt such a
conclusion.
2. That as to his present whereabouts, the same remains unknown.
13

Atty. Erlich V. Barraquias, counsel of the record for appellant Lucaas, manifested that he does not have sufficient knowledge
to form a belief as to the whereabouts of his client, and that Juanito Lucaas, father of said appellant, informed him that there
has been no communication between him and his son since the Ormoc City flash flood.
14

From the foregoing, it is not clear whether Lucaas died or merely escaped and is now hiding. At any rate, in either case, his
appeal will have to be dismissed and declared abandoned. If he has indeed escaped, he is deemed to have abandoned his
appeal in line with our pronouncement in People vs. Quiritan, et al.,
15
to the effect that if an accused-appellant escapes or
refuses to surrender to the proper authorities, he is deemed to have abandoned his appeal, and so his appeal should be
dismissed. Moreover, he is guilty of evasion of service of sentence under Article 158 of the Revised Penal Code. If, on the other
hand, he was indeed one of the victims of the Ormoc City tragedy, under Article 89 of the Revised Penal Code his criminal
liability, with respect to the personal penalties, is totally extinguished and as to the pecuniary penalties, since his death
occurred while this case is pending appeal, the civil indemnity to be paid subsists and must be charged against his estate.
16

The conviction of both appellants Codilla and Lucaas must, therefore be affirmed, with the modification that their respective
civil liabilities should be increased to an indemnity of P30,000.00 for each offended party, respectively raped by them. The
circumstances of nighttime, dwelling and use of a deadly weapon shall hereinafter be discussed as matters of law involved in
these cases and our disposition thereof, although the imposable penalty ofreclusion perpetua has to be maintained.
As for appellant Putulin, his appeal from his conviction for the rape of Letecia Pepito stands and his liability wherefore we shall
now resolve, the discussion which follows being with reference to his criminal liability alone.
This appellant starts his defense by challenging his warrantless arrest and detention for two days without any charges being
filed against him.
17
We have of necessity to reject this argument for the simple reason that he is estopped from questioning the
legality of his arrest. Any objection involving a warrant of arrest or the procedure in the acquisition by the court of jurisdiction
over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.
18
Besides,
this issue is being raised for the first time by appellant before this Court. He did not move for the quashal of the information
before the trial court on this ground. Hence, any irregularity attendant to his arrest, if any, was cured when he voluntarily
submitted himself to the jurisdiction of the trial court by entering a plea of not guilty and participating in the trial.
19

After considering the factual findings on which the impugned decision is based, we do not descry any cogent reason to depart
from the holding of the lower court. As has often been emphasized, on the matter of credibility of witnesses the findings of the
trial court are generally accorded great weight and respect, if not conclusive effect, because it has the opportunity to observe
the demeanor of witnesses while testifying. Such findings may only be disturbed on appeal if there is any showing that the trial
court overlooked some material or substantial fact which if given consideration will alter the assailed decision
20
and, as we
have just stated, we do not find any such arbitrary oversight or omission by the court below.
Letecia's account regarding the rape committed upon her was given full faith and credit by the trial court.
21
We agree with the
latter that Letecia is a credible witness, having testified in a categorical, straightforward, spontaneous and frank manner, and
having remained consistent on cross-examination.
22
Her story finds ample support in the testimony of her sister, Helen, who
was likewise deflowered on that fateful day of May 24, 1990. The two sisters were able to identify their abusers through the
"lamparilla" which was then lighted inside their house.
23
Moreover, their claims that they were raped that early morning have
been corroborated by Anita Royeras, the wife of the barangay captain of Barangay Catayum, Ormoc City, who had been
conducting a surveillance in their community and had observed that the three suspicious-looking appellants used to go home at
around 3:00 o'clock in the morning.
24

Although Letecia could recognize her abuser, as shown by the fact that she was able to describe the latter's physical features at
the police station a day after the incident, she did not know his name nor his whereabouts.
25
Nevertheless, on November 28,
1990, she was able to identify her defiler, who turned to be appellant Putulin, when the latter was picked up and placed in a
police line-up together with the other two appellants herein.
26
This positive identification was reiterated in open court during
the trial.
27

The scenario and details of the sexual abuse were fully established by the evidence for the prosecution. After barging into
Letecia's room, appellant Putulin threatened her with a knife and ordered her to go to the sala. Along the way, appellant
continuously pushed her, causing her to fall to the ground and sustain bruises on her elbow. Upon reaching the sala, appellant
Putulin commanded her to remove her underwear and, when she refused, he remove it himself and then satisfied his bestial
desire. Despite the struggle put up by the overpowered victim, the sexual abuse was consummated.
28
Letecia was paralyzed
with fear, causing her to succumb to appellant's animal instinct.
Considering her tender age, the force and intimidation exerted upon her suffice to constitute that requisite element of rape. It
is well settled that the force or violence required in rape cases is relative; when applied, it need not be overpowering or
irresistible.
29
It need but be present, and so long as it brings about the desired result, all considerations of whether it was more
or less irresistible are beside the point.
So it must likewise be for intimidation, which is addressed to the mind of the victim and is, therefore, subjective. Intimidation
must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime and not by any
hard and fast rule; it is therefore enough that it produces fear fear that if the victim does not yield to the lecherous demands
of the accused, something would happen to her at that moment or even thereafter, as when she is threatened with death if she
reports the incident. Intimidation includes the moral kind, as the fear caused by threatening the girl with a knife. When such
intimidation exists and the victim is cowed into submission as a result thereof, thereby rendering resistance futile, it would be
extremely unreasonable, to say the least, to expect the victim to act with equanimity of disposition and with nerves of steel; or
to act like an adult or a mature and experienced woman who would know what to do under the circumstances, or to have the
courage and intelligence to disregard the threat.
30

For an innocent girl who was then only fifteen years old, we are satisfied that the threats made by appellant against this
complainant engendered in her a well-grounded fear that if she dared resist or frustrate his lustful advances, she would be
killed.
31

The defense attempts to discredit her testimony on the theory that she, together with her sister Helen, did not immediately
reveal the incident to their parents who were just sleeping in the room nearby and, instead, just let the time pass crying and
sobbing in one corner.
32
This specious contention cannot pass judicial muster.
The fact that she and her sister did not immediately divulge their ravishment does not necessarily mean that they were not
sexually desecrated. Being then of very tender ages and utterly innocent of the ways of the world, their temporary silence is
easily understandable. They could have been terrified by the threats of their ravishers and shocked into insensibility by the
satyric acts they were subjected to. Young and naive as they were, they ingenuously opted to momentarily suffer in silence if
only to avoid humiliation and embarrassment that may be brought about by the public disclosure of such dastardly acts.
33

It is likewise of no moment that the rape occurred with the complainant's parents, brothers and sisters just sleeping in the
nearby room.
34
It is not impossible nor incredible for her family members to be in deep slumber and not be awakened while
the sexual assault was being committed. As we have repeatedly pointed out, rape can be committed even in places where
people congregate: in parks, along the roadside, within the school premises and even inside a house where there are other
occupants. Lust is no respecter of time or place.
35

We are convinced, in line with our previous rulings which we now repeat, that what motivated complainant to come out in the
open is her desire to obtain justice. It is unthinkable that a rural-bred and minor victim like her would endure the
embarrassment and humiliation of public disclosure that she had been ravished, allow an examination of her private parts, and
undergo the ordeal and expense of a court proceeding if her story is a lie.
36
Considering the inbred modesty and antipathy of a
Filipina to the airing in public of things that affect her honor, it is hard to conceive that the complainant would assume and
admit the ignominy she had undergone if it were not true.
37
Besides, by testifying, she made public a painful and humiliating
secret which others would have simply kept to themselves forever, jeopardizing her chances of marriage or foreclosing the
possibility of a blissful married life as her husband may not fully understand the excruciatingly painful experience which would
always haunt her.
38

Appellant's alibi is too superficial and transparent to merit this Court's consideration, as he was even caught fabricating stories
to suit his defense. As correctly pointed out by the lower court, the fact that she was in Manila since January 10, 1989 and
returned to Ormoc City on November 11, 1990 does not prevent him from being in Ormoc City on May 24, 1990 when the
crime occurred. He was an unable to present any witness who could prove to the satisfaction of this Court that on the precise
date of May 24, 1990, at 3:00 o'clock in the morning, he was indeed in Manila.
On this point, we give credit to and quote with approval this observation of the court below:
On the claim of Marcelo Putulin that he was in Manila at the time Letecia and Helen Pepito were raped on
May 24, 1990, the accused's evidence does not inspire belief. The assertion by accused Marcelo Putulin that
he took a jeepney from Pier 17 to Makati and he found the place where his mother lives by just asking
people when he did not even have the address of (his) mother is too incredible to be true. The court take
judicial notice that there are no jeepneys in the pier area of Manila that have a direct route to Makati and it
is absolutely impossible to find the place in Makati where his mother lives if he did not even know the
address. Marcelo Putulin's claim that he came to know Rolando Codilla only in November 11, 1990, through
German Lucaas, is belied by the fact that the three of them were at one place at the barracks of (D)el
Socorro in Brgy. Concepcion, at the time of their arrest and their claim that they worked in the farm of (D)el
Socorro is too shallow. Marcelo Putulin and German Lucaas told the court that they had work in Manila
and came to Ormoc City in November 1990 to take a vacation. If true, why did they have to work as farm
laborers when their purpose in coming to Ormoc was to take a vacation?
39

Being aware of appellant's prevarications, the trial court had to advise the former's counsel not to ask appellant any more re-
direct questions, with the warning that he would "just be exposing this witness to perjury."
40
Not even appellant's mother,
Florentina, could sustain his fabricated defense, for when asked how she was able to say that her son never left Manila for
Ormoc City from January to November, 1990, all she could say was: "Because every Sunday I have to visit him in his place
because Sunday is my day-off."
41
The rape occurred on May 24, 1990 which was a Thursday. It is, therefore, possible for
appellant to have arrived in Manila before Sunday, that is, before May 27, 1990, just in time for his mother's visit.
Besides, mother and son rendered conflicting testimonies on the witness stand, to which the former's attention had to be
called by the trial court:
Q Do you know if that was the first time that your son Marcelo Putulin arrived in Manila,
that is January, 1990?
A Last January 15, 1990, it was the third time that Marcelo Putulin have gone (sic) to
Manila, and the first time he went to Manila he was yet single; the second time he was
already married.
42

xxx xxx xxx
Q But you are not aware that your son testified that it was the first time, on January 10,
1990, that he left for Manila, no other date and year when he has gone to Manila?
A Maybe he was just frightened because he is innocent and
illiterate.
43

xxx xxx xxx
Q When your son Marcelo Putulin arrived in Manila in January 1990, did he go direct(ly)
to your house or did you meet him at the pier?
A No. sir, because he went direct(ly) to my uncle and there he called by telephone.
COURT
Q Your son testified in court that he went direct(ly) to you, as a matter of fact the court
was rather surprised with the way he testified that he just took a jeepney from the pier
to Makati and the court takes judicial notice that there are no jeepneys to Makati. What
can you say about this?
A. Maybe he was frightened because he was not used to testify before the court
because he is illiterate.
44

The foregoing testimonial colloquy clearly does violence to what we have held in a number of cases that evidence, to be worthy
or credit, must not only proceed from a credible source but must, in addition, be credible in itself. And by this is meant that it
shall be natural, reasonable and probable as to make it easy to believe.
45

Appellant also asserts that the police investigators induced positive identification by placing him and the two other appellants
in a police line-up by themselves only and by having them undress, thus violating their right against self-incrimination.
46
We
disagree.
The right against self-incrimination has been defined as a protection against testimonial compulsion.
47
It prohibits the use of
physical or moral compulsion to extort communications from the accused, not an exclusion of his body as evidence when it may
be material.
48
Essentially, the right is meant to "avoid and prohibit positively the repetition and recurrence of the certainly
inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his
conviction."
49

With the passage of time, this has been extended to any evidence "communicative in nature acquired under circumstances of
duress." An act, whether testimonial or passive, that would amount to disclosure of incriminatory facts is covered by the
inhibition of the Constitution. This should be distinguished, parenthetically, from mechanical acts the accused is made to
execute which are not meant to unearth undisclosed facts but to ascertain physical attributes determinable by simple
observation, like requiring him to take part in a police line-up.
50
In fact, it has been held that to require a person to remove his
garments would not be violative of the right against self-incrimination. To require the accused to put on a pair of pants and a
hat to determine whether they fitted him for measuring or photographing of a party, or the removal or replacement of
garments or shoes, are not within the privilege against self-incrimination too.
51

Contrary to appellant's asseverations, there was no undue influence exerted by the police upon the complainant which induced
the latter to positively identify him. As already noted, even right after the incident, complainant was able to describe the
features of her rapist at the police headquarters, and upon being given the chance to identify the malefactor at the police line-
up, she did so without faltering.
The cases to which appellant clings for his protection, far from favoring his cause, actually work against him. First, in People vs.
Cruz,
52
the lighting situation in the house was wholly uncertain and rendered highly suspect and questionable, if not altogether
infirm, the ability of the two girls to shape out a positive identification of the appellant therein. Moreover, the identification at
the police station was attended by a great deal of whispered conversations, as well as by at least one unexplained conference
elsewhere in the municipal building, at which they were present immediately prior to their being confronted by the accused.
Furthermore, the witnesses there were unable to identify the accused at sight.
In the cases of People vs. Hassan
53
and People vs. Domingo, et al.,
54
the eyewitnesses were not positive enough as to the
identity of the assailant. In fact, in the latter case, the witness even declared that he would not be able to recognize the
assailant, even if he were to see him again. In Chavez vs. Court of Appeals, et al.,
55
there was no issue as to proper
identification, but only as to the accused being called by the prosecution to the witness stand.
In the instant case, the environs were conducive enough for complainant to recognize her debaucher at the time of the
incident. As earlier stated, the "lamparilla" was still lighted when herein appellant barged into her room. Moreover, upon
seeing the suspect at the police line-up, she immediately identified him without even the least prodding from the law enforcers.
As we have heretofore observed, a consideration of the modifying circumstances attendant to this case would be virtually of
academic value insofar as the aggravation of appellants' criminal liability and the corresponding penalty therefor are
concerned,
56
in view of the constitutional constraint thereon. It is felt, however, that a disquisition is in order for future
guidance as a sub silentio treatment may be misconstrued as implying the non-applicability of said circumstances to these
cases.
We rule that the court a quo erred in not appreciating the aggravating circumstances of nocturnity and dwelling. Nighttime,
according to Viada, is that period of darkness beginning at the end of dusk and ending at dawn.
57
Our Civil Code defines nights
as from sunset to sunrise.
58
When the rapes were committed at 3:00 A.M. on May 24, 1990, it was still "nighttime," and this
aggravating circumstance can be considered as long as it is proved, even if not alleged in the information.
59
It is obvious that
appellant Putulin and his two other co-appellants specially sought the cover of darkness to facilitate the commission of the
crimes without their being recognized, aside from ensuring their unmolested escape. They chose to unleash their evil deeds at
the unholy hour of 3:00 o'clock in the morning, taking advantage of the stillness of a sleeping world.
60

The crime having been perpetrated in the house of the complainant, there can be no serious debate that the aggravating
circumstance of dwelling should properly be appreciated, considering the sanctity of privacy which the law accords to a human
abode.
The use of a deadly weapon which is considered as a qualifying circumstance in the crime of rape
61
is likewise to be
appreciated to constitute the offenses charged in these cases into what are jurisprudentially referred as qualified rapes, such
circumstance being alleged in each of the complaints in these cases and it being uncontroverted that herein appellant was
armed with a pointed bolo, appellant Codilla with a bolo and a handgun, while appellant Lucaas used a handgun, to realize
their criminal objectives. Nevertheless, the penalty of reclusion perpetua imposed by the trial court on appellants shall remain
because of the death penalty until the restoration thereof by congressional fiat.
WHEREFORE, with the MODIFICATIONS that the civil indemnity, which accused-appellants Rolando Codilla, German Lucaas
and Marcelo Putulin must pay to each of their victims for every crime of rape committed by them against the latter, is hereby
increased to P30,000.00; and that the aggravating circumstances of nighttime and dwelling, together with the qualifying
circumstance of use of a deadly weapon, are duly taken account of in point of law as above explained and are hereby made of
judicial record in these cases, the assailed judgment of the courta quo is consequently AFFIRMED, with costs against accused-
appellants.
SO ORDERED.
Narvasa, C.J., Padilla, and Nocon, JJ., concur.
Padilla, J. is on leave.









Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-61570 February 12, 1990.
RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed
FULGADO, petitioners,
vs.
HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL PORCIUNCULA and
DOMINGA MACARULAY, respondents.
Dollete, Blanco, Ejercito & Associates for petitioners.
Ramon Tuangco for private respondents.

FERNAN, C.J.:
On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook the arduous task of filing an
action in the Court of First Instance of Rizal, Pasig branch against Rufino Custodia, Simplicia Custodia, Arsenio Piguing, Ismael
Porciuncula and Dominga Macarulay for the annulment of certain contracts of sale and partition with accounting.
1
The
defendants (herein private respondents) filed their answer to the complaint with special and affirmative defenses and a
counterclaim.
After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30 in the morning. Private
respondents and their counsel failed to appear on time at the pre-trial and were subsequently declared as in default. Plaintiff
Fulgado was then allowed to present his evidence ex parte before the Deputy Clerk of Court.
Meanwhile, upon learning of their predicament, private respondents immediately filed a motion to lift the order of default on
the same day that the order was issued. The trial court denied said motion in its order of February 16, 1972. Their motion for
reconsideration was also denied. Persistently, respondents filed a petition for relief from the default order. Once more, this was
denied.
On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On appeal, however, the Court of
Appeals found that private respondents had been deprived of their day in court by the unjust denial of their motion to lift the
order of default.
2
The Appellate Court, in no less than explicit terms, said:
WHEREFORE, the decision of the court a quo is hereby set aside and the case is remanded to the court of
origin for trial on the merits, granting to the defendants the opportunity to present their evidence,
provided, however, that the evidence already presented before the commissioner shall stand, but with the
right of the defendants to cross-examine the witness who had already testified and with the right of the
plaintiff to present additional evidence that then he may decide. Without costs.
3

The Court of Appeals' decision became final and executory on June 27,1974 and the records of the case were remanded to the
trial court.
On July 3, 1975, or more than a year after the finality of the Appellate Court's decision, counsel for private respondents moved
that the trial court "include th(e) case in any date of the August and September calendar of the Court, at the usual hour in the
morning."
4

The case was set for hearing on September 16,1975. Unfortunately, the presiding judge went on official leave and the hearing
was postponed anew to January 15 and February 15, 1976. In the meantime, plaintiff Ruperto Fulgado died on November
25,1975 and was substituted by his children as party plaintiffs. Fulgado's witness, Jose Fulgado, referred to in the dispositive
part of the Appellate Court's judgment, had earlier migrated to the United States on September 16, 1974.
When the case was heard on May 4, 1976, the following proceedings transpired:
Atty Dollete:
For the plaintiff, Your Honor. If your Honor please, may I inform this Honorable Court
that this is a remanded case from the Court of Appeals for cross-examination or
presentation by the plaintiff of any additional evidence. But we have no further
evidence in this case ... except those evidence already adduced in the lower court
before it was appealed in the Court of Appeals. It is up for the defense now to cross-
examine the witnesses.
Court (To Atty. Tuangco):
You are through with the cross-examination?
Atty. Tuangco:
Not yet, Your Honor, we were granted by the Court of Appeals the right to cross-
examine the witnesses ... . The last time this case was called for hearing by this
Honorable Court, the Presiding Judge tried to make the parties come to a settlement,
but it seems that. they could not come to such settlement. I advised my clients to try to
meet them. So now, this is the stage where they could not agree and so we will be
proceeding with the cross-examination of the witnesses.
Atty. Dollete:
There were only two witnesses. Two witnesses were presented, one is Ruperto Fulgado
and he died already. Your Honor, the other witness was Jose Fulgado who is now abroad
for almost a year, Your Honor.
Atty. Tuangco:
I understand that the other witness was here on a visit, Your Honor. He came back.
Court:
So, what shall we do now?
Atty. Tuangco:
So, I move to strike out the testimonies of the witnesses who testified on the ground
that we were deprived of our right to cross-examine them.
Atty. Dollete:
We will submit, Your Honor, for resolution the motion of the defendants.
Court (To Atty. Tuangco):
So, what do you want?
Atty. Tuangco:
That the whole testimonies of the two witnesses who were presented ex parte be
stricken off the record because we have not been granted the right of cross-examining
them and they are not available at this stage, Your Honor.
Atty. Dollete:
We will submit Your Honor. We maintain, Your Honor. Our opposition is that it hinges
on the fact that defendants committed laches in their failure to cross-examine the
witness. That is our opposition.
Court:
Why?
Atty. Dollete:
There were several opportunities for them to cross-examine especially the witness
Ruperto Fulgado, Your Honor. They are with full knowledge of the age of this witness.
They could have taken steps to assert their right granted by the Court of Appeals.
Notwithstanding their knowledge about the age, the advanced age and health condition
of this witness Ruperto Fulgado, then we maintain, Your Honor, that defendants, in a
way, have committed laches in the assertion of their right to cross-examine.
Atty. Tuangco:
The records will show Your Honor, that it was the defendants who moved to set this
case for hearing upon the remanding of the records from the Court of Appeals.
Court:
You make a written motion and I will grant you a period of ten (10) days within which to
file an opposition and then another additional period of ten (10) days within which to
reply. Then this matter shall be deemed submitted for resolution. But the fact is clear
now that plaintiff has no more additional evidence.
Atty. Dollete:
Yes, Your Honor.
Court:
So that in case the court favorably grants the motion of defendants and orders the
striking out of the testimonies of Ruperto Fulgado and the other witness, together with
the documentary evidence, the plaintiff had no more evidence to offer.
Atty. Dollete:
Yes, Your Honor. We stand on the evidence on Record.
5

On June 30, 1976, the trial court issued an order dismissing the case. It decreed:
For reason stated in the defendants' motion filed on May 18, 1976, which the Court finds meritorious, the
testimonies of plaintiffs witnesses Ruperto Fulgado and Jose Fulgado, who were not presented by the
plaintiff so that the defendants could cross-examine them on May 4, 1976, are stricken off the record and,
as a consequence, in view of the manifestation of plaintiffs counsel that he had no more witnesses to
present, the above-entitled case is dismissed without pronouncement as to costs.
6

On appeal to the Appellate Court in C.A. G.R No. 62353-R, said order was affirmed on June 30, 1982.
7
Petitioners now question
said affirmance before this Court in the instant petition for review.
The principal issue in the case at bar is the propriety of the exclusion of the testimonies given by the now deceased Ruperto
Fulgado and his witness, Jose Fulgado, who has departed for the United States, which resulted in the dismissal of the complaint.
Private respondents maintain that such testimonies are wholly inadmissible for being hearsay, because respondents were not
able to cross-examine the witnesses.
Petitioners, on the other hand, contend that while the right to cross-examination is an essential part of due process, the same
may however be waived as the private respondent have done when they allowed an unreasonable length of time to lapse from
the inception of the opportunity to cross-examine before availing themselves of such right and likewise when they failed to
exhaust other remedies to secure the exercise of such right.
The appeal is well-taken.
In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino,
8
and the cases cited thereunder, the Court, speaking through
Justice Muoz Palma, has provided us with a concise overview of the right to cross-examination as a vital element of due
process. Thus:
The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal
or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a
fundamental right which is part of due process. However, the right is a personal one which may be waived
expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus,
where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness
will be received or allowed to remain in the record.
The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take
various forms. But the common basic principle underlying the application of the rule on implied waiver is
that the party was given the opportunity to confr ont and cross-examine an opposing witness but failed to
take advantage of it for reasons attributable to himself alone.
The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not
necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired.
9
Thus the
resolution of the present case would hinge on whether or not this was an opportunity for cross-examination.
There is no disputing that where there was no such opportunity (to cross examine) and the want of it was caused by the party
offering (plaintiff), the testimony should be stricken out. However, where the failure to obtain cross-examination was
imputable to the cross examiner's fault, the lack of cross-examination is no longer a ground for exclusion according to the
general principle that an opportunity, though waived, will suffice.
10

From the records presented, it is manifest that private respondents had enough opportunity to cross-examine plaintiff Ruperto
Fulgado before his death, and Jose Fulgado before his migration to the United States. Conceding that private respondents lost
their standing in court during the time they were in default, they were no longer in that situation on June 6, 1974 when the
Court of Appeals set aside the default judgment in CA-G.R. No. 42590-R and remanded the case to the court of origin for trial on
the merits, "granting to the defendants the opportunity to present their evidence ... ."
11
This was a positive signal for them to
proceed with the cross-examination of the two Fulgados, a right previously withheld from them when they were considered in
default. But despite knowledge of Ruperto's failing health (he was then 89 years of age) and Jose's imminent travel to the
United States, private respondents did not move swiftly and decisively. They tarried for more than one year from the finality of
the Appellate Court's decision on June 27, 1974 to ask the trial court on July 3, 1975 to set the already much delayed case for
hearing "in any date of August and September ... ."
12

Such inaction on the part of private respondents cannot be easily dismissed by the argument that it is the duty of the plaintiff to
always take the initiative in keeping the proceedings "alive." At best, the argument is fatuous.
The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so
because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on
time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-
examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own
witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the
burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on
plaintiffs shoulders can be construed to extremes as what happened in the instant proceedings.
Having had the liberty to cross-examine and having opted not to exercise it, the case is then the same in effect as if private
respondent had actually cross-examined. We therefore hold that it was gross error for both the trial court and the Appellate
Court to dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there was an alleged failure of cross-
examination. The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it
prejudiced the party whose only fault during the entire proceedings was to die before he could be cross-examined. The prudent
alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to
be not in that instance a material loss.
13
And more compellingly so in the instant case where it has become evident that the
adverse party was afforded a reasonable chance for cross-examination but through his own fault failed to cross-examine the
witness.
Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the
plaintiff or his witness, it seems a harsh measure to strike out all that has been obtained in the direct examination.
14

As to the witness Jose Fulgado who is reportedly abroad, private respondents could have resorted to the various modes of
discovery under the Rules of Court to cross-examine Jose. D, During the hearing of May 4, 1976, counsel for private
respondents unwittingly or wittingly disclosed that they knew that Jose was in the country "for a visit" but they did not exert
any effort to have him subpoenaed.
Altogether, the acts of private respondents constitute a waiver, and consequently, a forfeiture of their right to cross-
examination. And having failed to make use of this right, the consequences should rightfully fall on them and not on their
adversary.
WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R dated June 30, 1982 is SET ASIDE. The
trial court is ordered to REINSTATE Civil Case No. 10256 and to allow the direct testimonies of plaintiff Ruperto Fulgado and his
witness Jose Fulgado to remain in the record. The court is further ordered to give priority to the hearing of said case in view of
the length of time that it has remained unresolved on account of procedural differences. This judgment is immediately
executory. No costs.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.


Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-48883 August 6, 1980
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ALBERTO V. SENERIS, As District Judge, Court of First Instance, Branch II, Sixteenth Judicial District, Zamboanga City and
PILAR ANGELES DE PIMENTEL, respondents.
MAKASIAR, J.:
The legal issue posed in this special civil action for certiorari, with prayer for a writ of preliminary injunction, spawned by the
August 4, 1978 order of respondent judge in Criminal Case No. 750 for parricide against therein accused Pilar Angeles de
Pimentel, hereinafter referred to as private respondent, is the admissibility in evidence of the testimony of a prosecution
witness in the said criminal case who dies before completion of his cross-examination. That issue is crucial to the fate of private
respondent, considering that the deceased prosecution witness "... is the most vital and the only eyewitness available to the
prosecution against respondent Pilar Angeles de Pimentel for the commission of the gruesome crime of parricide ..." (p. 10,
rec.).
The factual background of the action is undisputed.
On February 8, 1978, Assistant Provincial Fiscal Camilo E. Tamin, who was then on official detail with the office of the City Fiscal,
Zamboanga City, filed with the Court of First Instance, Sixteenth Judicial District, Zamboanga City, an amended information for
parricide in Criminal Case No. 1742, charging herein private respondent as principal by inducement, Mario Nemenio y delos
Santos and Salim Doe as principals by direct participation and MoisesAndaya y Julkanain, as accomplice, in the fatal stabbing on
September 6, 1977 in Zamboanga City of Eduardo Pimentel y Orario, the lawful husband of private respondent. The amended
information reads:
That on or about September 6, 1977, in the City of Zamboanga, Philippines, and within the jurisdiction of
this Court, the above-named accused Pilar Angeles de Pimentel, with deliberate intent to kill her husband,
Eduardo Pimentel y Orario, with whom she was united in lawful wedlock, did then and there, willfully,
unlawfully and feloniously, induce and offer a sum of money as consideration or prize to said accused Mario
Nemenio y delos Santos and Salim Doe to kill her said lawfully wedded husband Eduardo Pimentel y Orario,
and because and on account of said promised consideration or prize which was accepted, the said accused
Mario Nemenio y delos Santos and Salim Doe, did then and there, willfully and feloniously assault, attack
and stab with a knife with which they were conveniently provided, the person of said Eduardo Pimentel y
Orario, thereby inflicting upon the latter mortal wound which directly caused his death; that the above-
named accused Moises Andaya y Julkanain although without having participated directly in the commission
of the offense above- described, took part prior to its commission by then and there acting as the contact
man in the execution of their plot to kill said Eduardo Pimentel y Orario.
Contrary to law (p. 13, rec.)
On January 17, 1978, private respondent, assisted by her counsel, moved and was granted a separate trial (p. 16, rec.).
On February 22, 1978, the accused Mario Nemenio y delos Santos, assisted by his counsel de oficio, entered on arraignment a
plea of guilty. Respondent judge thereafter rendered judgment convicting accused Mario Nemenio y delos Santos of murder
qualified by the circumstance of prize and reward-and not of parricide as charged in the information; because he "... had no
relation whatsoever to the deceased Eduardo Pimentel ..." and appreciating the mitigating circumstances of voluntary plea of
guilty and lack of instruction and education, imposed on him the indeterminate penalty of eight (8) years of prision mayor as
the minimum, to fourteen (14) years and eight (8) months of reclusion temporal as the maximum; to indemnify the heirs of the
deceased Eduardo Pimentel the amount of P12,000.00 and to pay one-fourth () of the costs of the proceedings (pp. 15-19,
rec.).
Immediately after promulgation of judgment, accused Mario Nemenio y delos Santos offered to testify against his co-accused,
herein private respondent, in her separate trial earlier granted by the respondent judge in the same criminal case, now
numbered 750. Allowed, he testified as prosecution witness on February 28, March 6, and March 22, 1978 and as summarized
by the petitioner, his testimony on direct examination contained in seventy-six (76) pages of transcripts of stenographic notes
(pp. 21-44, 57-64, rec.), is to the effect "...that he and Salim Doe were hired by respondent Pilar Angeles de Pimentel, for the
consideration of P3,000.00 to kill Eduardo Pimentel, husband of respondent Pilar Angeles de Pimentel, in the evening of
September 6, 1977, in the latter's residence in Zamboanga City, and that it was respondent Pilar Angeles de Pimentel herself
who actually pointed out the victim Eduardo Pimentel to the witness, who then stabbed the said victim to death...That he did
not know the Identity of the victim Eduardo Pimentel at the time of the stabbing in the evening of September 6, 1977. He was
guided solely by respondent Pilar Angeles de Pimentel, who pointed out her victim spouse to him ..." (allegation No. 4, petition,
pp. 4-5, rec.).
After the prosecution had terminated on March 22, 1978 the direct examination of its witness Mario Nemenio y delos Santos,
counsel for private respondent moved for the holding in abeyance of the cross-examination of the said prosecution witness
until after he (counsel) shall have been furnished with the transcripts of the stenographic notes of the direct examination of
said prosecution witness (p. 47, TSN, March 22, 1978, p. 64, rec.); allegation No. 5, petition, p. 5, rec.). The same was granted by
the respondent judge who ordered the resumption of the hearing on April 19, 1978 (pp. 64, 94, 108, rec.).
But on April 19, 1978, aforesaid prosecution witness failed to appear because he was not served with a subpoena (p. 108, rec.).
Consequently, the hearing was reset for June 7, 1978 (ibid.)
On June 7, 1978, counsel for private respondent commenced his cross- examination of prosecution witness Mario Nemenio y
delos Santos, which cross-examination however was not completed on that session for lack of material time, thus:
ATTY. CALVENTO:
I reserve my right to cross-examine the witness further.
COURT
Reservation to continue the cross-examination is granted.
ORDER: For lack of material time, as prayed for and upon agreement of the parties today's hearing is hereby
adjourned and to be resumed on July 3, 1978 at 8:30 o'clock in the morning (p. 84, rec.).
According to the petition, the uncompleted cross-examination reduced in fifty-three (53) pages of transcripts of stenographic
notes (pp. 65-84, rec.) had already "... touched on the conspiracy existing among Salim Doe, witness Mario Nemenio and
respondent Pilar Angeles de Pimentel to kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the evening of
September 6, 1977, and also on the actual stabbing by witness Mario Nemenio of the victim Eduardo Pimentel who was
pointed out to the witness-killer by his wife, respondent Pilar Angeles de Pimentel ..." (p. 7, rec.). This is not disputed by private
respondent.
Continuation of the cross-examination was, as aforestated, set for July 3, 1978 at 8:30 o'clock in the morning.
However, prosecution witness Mario Nemenio y delos Santos was shot dead by the Integrated National Police patrols on June
21, 1978 while allegedly escaping from the San Ramon Prison and Penal Farm, Zamboanga City, where he was then serving his
sentence. Consequently, the completion of his cross-examination became an impossibility.
On July 20, 1978, petitioner, without any motion on the part of the defense for the striking out of the deceased witness's
testimony, filed with the respondent court a motion praying for a ruling on the admissibility of the testimony of deceased
witness Mario Nemenio y delos Santos.
On August 4, 1978, respondent judge issued an order declaring as inadmissible the entire testimony of the deceased witness
Mario Nemenio y delos Santos on the principal ground "... that the defense was not able to complete its cross-examination of
said witness ...", relying on the case of Ortigas, Jr. vs. Lufthansa, etc., L-28773, June 30, 1975, 64 SCRA, pp. 610,636-37).
Hence, this action, to which WE gave due course on December 4, 1978, after considering private respondent's comment as well
as those of the Solicitor General and of the respondent judge who was required to file one. On even date, WE likewise issued a
temporary restraining order "... effective immediately and until further orders from this Court enjoining respondent District
Judge from continuing with the trial of Criminal Case No. 750 (1742) entitled People of the Philippines, plaintiff, versus Pilar
Angeles de Pimentel, accused, in the Court of First Instance of Zamboanga City, Branch II."
Petitioner contends that respondent judge gravely abused his discretion in ruling as inadmissible the testimony of prosecution
witness Mario Nemenio y delos Santos.
WE agree.
I
1. The constitutional right of confrontation, which guarantees to the accused the right to cross-examine the witnesses for the
prosecution, is one of the most basic rights of an accused person under our system of justice. It is a fundamental right which is
part of due process not only in criminal proceedings but also in civil proceedings as well as in proceedings in administrative
tribunals with quasi-judicial powers (Savory Luncheonette vs. Lakas Manggagawang Pilipino, et al., 62 SCRA 258 [1975]).
In almost exactly the same language, both the 1935 and 1973 Constitutions secured it, thus: "In all criminal prosecutions, the
accused ... shall enjoy the right ... to meet the witnesses face to face ..." (Section 19, Art. IV, Bill of Rights, 1973 Constitution;
Section 17, Art. III, 1935 Constitution). Echoing the same guarantee, Section I (f) of Rule 115 of the Revised Rules of Court
provides that in all criminal proceedings the defendant shall have the right to be confronted at the trial by, and to cross-
examine the witnesses against him. Constitutional confrontation requirements apply specifically to criminal proceedings and
have been held to have two purposes; first and primarily, to secure the opportunity of cross-examination, and secondarily, to
obtain the benefit of the moral impact of the courtroom atmosphere as it affects the witnesses demeanor (21 Am Jur 2d 360).
Stated otherwise, it insures that the witness will give his testimony under oath, thus deterring lying by the threat of perjury
charge; it forces the witness to submit to cross-examination, a valuable instrument in exposing falsehood and bringing out the
truth; and it enables the court to observe the demeanor of the witness and assess his credibility (California v. Green, 339 U.S.
157 [1970]).
2. But while the right to confrontation and cross-examination is a fundamental right, WE have ruled that the same can be
waived expressly or implied by conduct amounting to a renunciation of the right of cross-examination (Savory Luncheonettee
vs. Lakas ng Manggagawang Pilipino, et al., supra, p. 259, citing U.S. v. Atanacio, 6 Phil. 413 [1906]; People vs. dela Cruz, 56
SCRA 84, 91 [19741). The conduct of a party which may be construed as a implied waiver of the right to cross-examine may take
various forms. But the common basic principles underlying the application of the rule on implied waiver is that the party was
given the opportunity to confront and cross-examination an opposing witness but failed to take advantage of it for reasons
attributable to himself alone. Thus, where a party has had the opportunity to cross-examine an opposing witness but failed to
avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the
witness will be received or allowed to remain in the record (Savory Luncheonette vs. Lakas ng Maggagawang Pilipino, et
al.,supra, citing Francisco, Revised Rules of Court, Vol. on Evidence, p. 853, in turn citing People vs. Cole, 43 N.Y. 508-512 and
Bradley vs. Mirick, 91 N.Y. 293; see alo 29 Am. Jur. 2d 749).
On the other hand, when the cross-examination is not and cannot be done or completed due to causes attributable to the party
offering the witness, as was the situation in the Lufthansa German Airlines case (64 SCRA 610 [1975]) relied upon by
respondent judge, the uncompleted testimony is thereby rendered incompetent and inadmissible in evidence. WE emphasized
in the said case that "[T]he right of a party to cross-examine the witness of his adversary is invaluable as it is inviolable in civil
cases, no less than the right of the accused in criminal cases. The express recognition of such right of the accused in the
Constitution does not render the right of parties in civil cases less constitutionally based, for it is an indispensable part of the
due process guaranteed by the fundamental law. Subject to appropriate supervision by the judge in order to avoid unnecessary
delays on account of its being unduly protracted and to needed injunctions protective of the right of the witness against self-
incrimination and oppressive and unwarranted harassment and embarrassment, a party is absolutely entitled to a full cross-
examination as prescribed in Section 8 of Rule 132 ... Until such cross-examination has been finished, the testimony of the
witness cannot be considered as complete and may not, therefore be allowed to form part of the evidence to be considered by
the court in deciding the case" (p. 637). However, WE likewise therein emphasized that where the right to cross examine is lost
wholly or in part through the fault of the cross-examiner, then the testimony on direct examination may be taken into account;
but when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the
witness, the uncompleted testimony is thereby rendered incompetent (p. 636)
3. The effects of absence of and incomplete cross-examination of witness on the admissibility in evidence of his testimony on
direct examination has been extensively discussed thus: "As a general rule, the testimony of a witness, given on direct
examination, should be stricken where there is not an adequate opportunity for cross-examination, as where the witness by
reason of his death, illness, or absence cannot be subjected to cross-examination. Although the contrary has been held (Scott v.
McCann, 24 A. 536, 76 Md. 47), the testimony of a witness, given on direct examination, should be stricken where there is not
an adequate opportunity for cross-examination (Nehring v. Smith, 49 N.W. 2d 831, 243 Iowa 225), as where the party against
whom he testified is, through no fault of his own, deprived of the right to cross-examine him by reason of his death (Henderson
v. Twin Falls County 80 P. 2d 801, 59 Idaho 97; Twin Falls County, State of Idaho v. Henderson, 59 S. Ct. 149, 305 U.S. 568, 83 L.
Ed. 358), or as a result of the illness of the witness or absence, or a mistrial ordered. The direct testimony of a witness who dies
before conclusion of the cross-examination can be stricken only insofar as not covered by the cross-examination (Curtice v.
West, 2 NYS 507, 50 Hun 47, affirmed 24 N.E. 1099, 121 N.Y. 696), and absence of a witness is not enough to warrant striking his
testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-
examined (Lew Choy v. Lim Sing 216 P. 888, 125 Wash 631), or the matter on which further cross-examination is sought is not in
controversy (supra). It has been held that a referee has no power to strike the examination of a witness on his failure to appear
for cross-examination where a good excuse is given (In re Crooks, 23 Hun 696)" [98 CJS 126-127, Emphasis supplied].
Moreover, "[I]f one is deprived of the opportunity of a cross-examination without fault upon his part, as in the case of the
illness or death of a witness after direct examination, it is generally held that he is entitled to have the direct testimony stricken
from the record. This doctrine rests on the common law rule that no evidence should be admitted but what was or might be
under the examination of both parties, and that exparte statements are too uncertain and unreliable to be considered in the
investigation of controverted facts (Wray vs. State, 154 Ala 36, 45 So 697; People vs. Manchetti, 29 Cal. 2d 452,175 P2d 533; A.
H. Angerstein, Inc. vs. Jankowski, 55 Del 304, 187 A2d 81; Nehring vs. Smith, 243 Iowa 225, 49 NW2d 831; Citizens Bank & Trust
Co. vs. Reid Motor Co. 216 NC 432, 5 SE 2d 318). It has been held, however, that the trial court did not abuse its discretion in
refusing to discharge the jury where the state witness collapsed before cross- examination was completed, it being shown
thatno motion to strike the testimony was made, that it was not indicated what further information was sought to be produced
by further cross-examination, and that the witness' testimony was largely cumulative (Banks vs, Commonwealth, 312 Ky 297,
227 SW 2d 426)" [81 Am Jur 2d 474].
4. Wigmore, eminent authority on evidence, opined that:
xxx xxx xxx
... where the death or illness prevents cross-examination under such circumstances that no responsibility of
any sort can be attributed to either the witness of his party, it seems harsh measure to strike out all that has
been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution
would be to avoid any inflexible rule, and to leave it to the trial judge to admit the direct examination so far
as the loss of cross-examination can be shown to him to be not in that instance a material loss. Courts differ
in their treatment of this difficult situation; except that by general concession a cross-examination begun
but unfinished sufices if its purposes have been substantially accomplished
xxx xxx xxx
(Vol. II, P. 108, Emphasis supplied).
II
1. Respondent judge's full reliance on the Lufthansa German Airlines case cannot be sustained. To be sure, while the cross-
examination of the witness in the aforesaid Lufthansa case and that of the witness in the present action were both
uncompleted, the causes thereof were different in that while in the present case it was the death of the witness, in the
Lufthansa case, it was the unjustified and unexplained failure of Lufthansa to present its witness on the scheduled date for his
cross-examination which had already been preceded by several postponements initiated by Lufthansa itself, thus depriving the
other party the opportunity to complete the cross-examination of said witness. Consequently, this Court therein correctly ruled
as inadmissible the testimony of the said witness on the principle that "... when cross-examination is not and cannot be done or
completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered
incompetent ..." (supra, at p. 636). As clear as day, the Lufthansa ruling therefore applies only if there is a finding that the cause
for non-completion of the cross-examination of a witness was attributable to the very party offering the said witness.
Consequently, the same is inapplicable to the instant action as the cause for the non-completion of the cross-examination of
petitioner's witness was a fortuitous event as he was killed, as per the pleadings submitted in this action, by the law enforcers
(Integrated National Police Patrols) after his escape from prison. As a matter of fact, respondent judge, in his questioned order,
did not lay any basis for the application of the Lufthansa ruling as he failed to make any finding that the non-completion was
due to petitioner, the party offering the witness, whose testimony he declared as inadmissible in evidence. A reading of the
questioned order reveals that respondent judge ruled as inadmissible said questioned testimony mainly because private
respondent can no longer finish her cross-examination; hence incomplete. However, private respondent advanced in this action
the cavalier theory that the failure of her counsel to complete his cross-examination of petitioner's witness was due to the fault
of or was attributable to the petitioner, People of the Philippines, because it was the very agents of State who killed its own
witness; hence, making the questioned testimony of petitioner's witness inadmissible, per the Lufthansa ruling.
The contention does not deserve serious consideration. There was no finding nor any showing as the same is farfetched or
inconceivable that the killing of the witness of petitioner by its own agents was ill-motivated. The prosecution did not order the
shooting of the government witness. He was shot while escaping from prison. It is petitioner's cause which will possibly suffer
from said death; not the cause of private respondent. It may be true that the escape of the said witness and his consequent
death may be attributable to the negligence of petitioner's agents; but such negligence may not bind the petitioner as to pre-
judicially affect its cause and interest the prosecution of criminal offenses by reason of the generally accepted principle
that the State is not bound by the negligence or tortious acts of its agents. As the cause of non-completion was, as aforesaid,
beyond the control of the prosecution, respondent judge's questioned order cannot be sustained on the basis of the Lufthansa
ruling which, as aforestated, was principally anchored on the finding that the cause of the non-completion of the cross-
examination of the therein witness was attributable to the very party offering him as a witness.
2. On the other hand, WE find no merit in petitioner's contention that the testimony of its deceased witness is admissible on
the ground that private respondent had waived her right to cross-examine the witness and that the cause of non-completion
was attributable to said private respondent. As correctly pointed out by private respondent and sustained by respondent judge,
petitioner is not justified in attributing fault to her (private respondent) and in contending that she is deemed to have partly
lost already the right of cross-examination by not availing of the right to cross-examine the witness Mario Nemenio on March
22, 1978 or right after his direct examination was closed and delaying until the lapse of two and a half (2) months thereafter
before making such cross-examination; because while it is true that her counsel did not immediately start with his cross-
examination of the deceased witness on March 22, 1978, he did avail, however, of such right on the same day by initially
obtaining an opportunity to make preparations for an effective exercise thereof considering the nature of the case a capital
one and the length of the direct examination; three sittings on three different dates or on February 28, 1978, March 6, 1978
and March 22, 1978. Hence, there was no waiver of her right of cross-examination. Moreover, the deferment of the cross-
examination of the witness requested by private respondent on March 22, 1978 was approved by respondent judge without
any objection on the part of petitioner (pp. 45, 46, 64, rec.). And on the date for the cross-examination of the witness Mario
Nemenio or on April 19, 1978, counsel for private respondent failed to cross-examine the said witness not of his own design but
because said witness failed to appear on that date for the reason that due to the oversight of the court's personnel the
subpoena for said witness was not served on him at the San Ramon Prison and Penal Farm (pp. 90, 108, rec.). And respondent
judge had to re-set the hearing for the cross-examination of the witness by the private respondent only to June 7, 1978 because
of the fact that respondent judge took, with the approval of the Supreme Court, his summer vacation the whole month of May,
1978.
It is thus apparent that no fault can be imputed to the private respondent for the length of time that elapsed before her
counsel was able to commence his cross-examination of the witness. And private respondent's counsel was not able to
complete his cross-examination of the witness on June 7, 1978 for lack of material time by reason of which and upon
agreement of the parties the hearing was adjourned and ordered resumed on July 3, 1978 (p. 84, rec.).
It appears, therefore, that the situation is one whereby the cause of non-completion of the cross-examination of the deceased
witness was attributed neither to the fault of petitioner nor the private respondent. Consequently, the admissibility or
inadmissibility of the testimony of the said witness cannot be resolved on the basis of the rule enunciated in the Lufthansa case.
III
There is merit in the contention of the petitioner that the questioned testimony of its deceased witness is admissible in
evidence because private respondent's counsel had already "... rigorously and extensively cross-examined witness Mario
Nemenio on all essential elements of the crime charged (parricide), all of which have been testified upon by said witness in his
direct examination-in-chief, and consequently, the cross-examination-in- chief, has already been concluded."
The cross-examination was completed insofar as the essential elements of the crime charged parricide, fact ofkilling-is
concerned. What remained was merely the cross-examination regarding the price or reward, which is not an element of
parricide, but only an aggravating circumstance (par. 11, Art. 14, Revised Penal Code).
As elaborated by petitioner in its memorandum:
The crime charged in the case at bar is Parricide under Article 246 of the Revised Penal Code.
The elements of the crime of Parricide are that a person was killed; that the killing was intentionally caused
by the accused; and that the victim is a parent or child, whether legitimate or illegitimate, or the lawful
spouse, or legitimate ascendant or descendant of the accused. Once these facts are established beyond
reasonable doubt, conviction is warranted (See Aquino, The Revised Penal Code, 1961 Ed., Vol. II, p. 1171).
The deceased Eduardo Pimentel has been sufficiently shown to be the lawful husband of private respondent
Pilar Pimentel by means of the marriage contract executed between them on May 18, 1971 ... marked as
Exhibit 'R' for the prosecution ...
The cross-examination of witness Mario Nemenio by the counsel for private respondent on June 7, 1978
touched on the conspiracy, and agreement, existing among Salim Doe, witness Mario Nemenio and private
respondent Pilar Pimentel to kill Eduardo Pimentel, in the latter's residence in Zamboanga City in the
evening of September 6, 1977, and also on the actual stabbing by witness Mario Nemenio of the victim
Eduardo Pimentel who was pointed out to the witness-killer by his wife, the private respondent Pilar
Pimentel herself... The matter of consideration or price of P3,000.00, which both the public and private
respondents maintain was not touched in the cross-examination of witness Mario Nemenio, is not an
essential element of the crime of parricide. Price or consideration is merely an aggravating circumstance of
the crime charged, not an essential element thereof. The failure to touch the same in the cross-examination
would not at all affect the existence of the crime of parricide. Furthermore, there is no showing or even the
slightest indication that the witness or his testimony would be discredited if he was cross-examined on the
promised consideration. The probability is rather very great that the witness would only have confirmed the
existence of the promised consideration were he cross-examined on the same.
From the foregoing discussion, it is submitted that the rigorous and searching cross-examination of witness
Mario Nemenio on June 7, 1978, practically concluded already the cross-examination-in-chief, or has
already substantially accomplished the purpose of the cross-examination, and therefore, the failure to
pursue the privilege of further cross-examination, would not adversely affect the admissibility of the direct
testimony of said witness anymore (pp. 159162, rec.).
Private respondent did not dwell on the aforesaid points in her memorandum.
Because the cross-examination made by the counsel of private respondent of the deceased witness was extensive and already
covered the subject matter of his direct testimony as state witness relating to the essential elements of the crime of parricide,
and what remained for further cross-examination is the matter of price or reward allegedly paid by private respondent for the
commission of the crime, which is merely an aggravating circumstance and does not affect the existence of the offense
charged, the respondent judge gravely abused his discretion in declaring as entirely inadmissible the testimony of the state
witness who died through no fault of any of the parties before his cross-examination could be finished.
WHEREFORE, THE AUGUST 4,1978 ORDER OF THE RESPONDENT JUDGE IS HEREBY SET ASIDE; THE RESTRAINING ORDER OF
DECEMBER 4, 1978 ISSUED BY THIS COURT IS HEREBY LIFTED; AND RESPONDENT JUDGE OR HIS SUCCESSOR IS ACCORDINGLY
ORDERED TO PROCEED WITH THE TRIAL OF CRIMINAL CASE NO. 750 (1742) AND TO ADMIT AND CONSIDER IN DECIDING THE
CASE THE TESTIMONY OF THE DECEASED WITNESS MARIO NEMENIO y DELOS SANTOS EXCLUDING ONLY THE PORTION
THEREOF CONCERNING THE AGGRAVATING CIRCUMSTANCE OF PRICE OR REWARD WHICH WAS NOT COVERED BY THE CROSS-
EXAMINATION. NO COSTS.
Teehankee (Chairman), Guerrero, De Castro and Melencio-Herrera, JJ., concur.
Fernandez, J., is on leave.





















Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-51513 May 15, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELICIANO GOROSPE and RUFINO BULANADI, accused-appellants.
The Solicitor General for plaintiff-appellee.
Francisco S. Pagaduan, Sr. for accused-appellants.

ABAD SANTOS, J.:
In a verified complaint filed on October 8, 1974, with the Municipal Court of Pulilan, Bulacan, ANASTACIA DE JESUS accused
GERARDO FAJARDO, RUFINO BULANADI and FELICIANO GOROSPE of the crime of forcible abduction with rape. (Expediente, p.
1.) The crime was said to have been committed on September 30, 1974, starting in Plaridel, Bulacan, thru Pulilan, and thence to
Talavera, Nueva Ecija.
Municipal Judge Alfredo V. Granados of the Municipal Court of Pulilan received the complaint and conducted a preliminary
investigation, first stage.
On October 25, 1974, the Complaint was amended. Rufino Bulanadi and Feliciano Gorospe were again named but Gerardo
Fajardo was dropped and OSCAR ALVARAN was named instead. The date when the crime was said to have been committed was
changed from September 30, 1974, to September 25, 1974. (Id, p. 41.)
Again Judge Granados conducted a preliminary investigation and on November 18, 1974, he issued an order for the arrest of
Bulanadi, Gorospe and Alvaran and fixed their bail at P15,000.00 each. (Id, p. 70.)
Bulanadi and Gorospe posted the requisite bail. Alvaran remained at large.
The second stage of the preliminary investigation was set on February 5, 1975, but on that day neither Bulanadi or Gorospe
appeared for which reason Judge Granados declared that they had waived their right thereto and elevated the case to the
Court of First Instance of Bulacan, (Id, p. 87.)
On March 19, 1975, Provincial Fiscal Pascual C. Kliatchko filed with the CFI of Bulacan an information for forcible abduction with
rape against Gorospe and Bulanadi. It was docketed as Criminal Case No. 1293-M. (Id., p. 88.) But on July 25, 1975, Fiscal
Kliatchko filed an amended information which reads:
That on or about the 25th day of September, 1974, in the municipality of Plaridel province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the said accused Feliciano Gorospe and
Rufino Bulanadi, together with one Oscar Alvaran who is still at large, conspiring and confederating together
and helping one another, did then and there wilfully, unlawfully, and feloniously, by means of force,
violence and intimidation, and with lewd design abduct the complaining witness Anastacia de Jesus, an
unmarried woman, 14 years of age, by then and there taking and carrying her to Talavera, Nueva Ecija,
against her will and with-out her consent, and upon arrival there, the said accused by means of violence,
force and intimidation have carnal knowledge of the said Anastacia de Jesus against her will and consent.
(Id, p. 100.)
Judge Nelly L. Romero Valdellon started the trial of the case on October 15, 1975. The accused and their counselde parte had
long been notified that the case was to be tried on that day but they did not appear so the former were tried in absentia, After
hearing part of the testimony of Anastacia de Jesus, the complainant, Judge Valdellon was transferred to Metro Manila and she
was replaced by Judge Fidel P. Purisima who finished the trial. But Judge Purisima issued an order on March 10, 1976, wherein
he inhibited himself from deciding the case. He said, "Considering that Judge Alfredo V. Granados is a first cousin by affinity of
the undersigned Presiding Judge and if only to make sure that the decision to be rendered in this case shall be above suspicion
and considering further the gravity of the offense charged, the undersigned Presiding Judge hereby inhibits himself from
deciding this case." (Id, pp. 386-387.) So it was Judge Jesus R. de Vega who decided the case and rendered the following
judgment:
PREMISES CONSIDERED, the Court finds both the herein accused Gorospe and Bulanadi guilty beyond
reasonable doubt of rape committed against Anastacia de Jesus as charged in the information. Considering
the legal principle that each of the herein accused is responsible not only for the act of rape committed
personally by him but also for the rape committed by his other co-accused on account of the finding of
conspiracy or cooperation in the commission of the said crime charged against them, the Court accordingly
sentences each of the herein accused Gorospe and Bulanadi to suffer two (2) perpetual penalties
of reclusion perpetua to be served in accordance with Art. 70 of the Revised Penal Code, with all the
accessory penalty of the law.
Both accused are further ordered to indemnify Anastacia de Jesus in the amount of P40,000.00 for actual
exemplary and moral damages; and to pay the costs. (Id, p. 419.)
The case is now before Us on appeal.
The People's version of the facts is as follows:
Complainant Anastacia de Jesus, a 14 year-old girl at the tune of the incident, single, student at the
Calumpit Institute, Bulacan, and resident of Pugo, Calumpit, Bulacan, was, at about 10:00 and of
September 25, 1974, at Plaridel, Bulacan, in front of the Caltex Station, intending to cross the street to buy a
book. She was looking for a book, entitled "Diwang Guinto" (pp. 2-5, t.s.n., Dec. 15, 1975; pp. 17-18, t.s.n.,
March 10, 1976; p. 4, t.s.n., March 11, 1976). Two persons passed by, one of whom was appellant Rufino
Bulanadi who waived a handkerchief across her face, which affected her consciousness and she felt dizzy
but felt that she was being held and boarded into a motor vehicle (pp. 5-11, t.s.n., Dec. 15, 1975; p. 18,
t.s.n., March 10, 1976).
Complainant regained her fun consciousness at about 8:00 o'clock in the evening of September 25, 1974, in
a nipa hut near the irrigation pump, of Gerardo Fajardo, at Calipahan, Talavera, Nueva Ecija, Inside she saw
appellants, Feliciano Gorospe, Rufino Bulanadi, and Gerardo Fajardo (pp. 11-14, 17, 21, t.s.n., Dec. 15,
1975). They were arguing why she (complainant) had to be taken by appellants Rufino Bulanadi and
Feliciano Gorospe (p. 16, t.s.n., Dec. 15, 1975).
That evening, at the said nipa hut, complainant was forced to drink a strange tasting royal soft drink by
appellant Feliciano Gorospe and appellant Rufino Bulanadi, who held her hands (pp. 21-23, t.s.n., Dec. 15,
1975). After drinking the soft drink complainant lost consciousness. She woke up only the next morning with
aches and pains all over her body especially her private part. She found herself naked. Appellants, Rufino
Bulanadi and Feliciano Gorospe, were there by her side standing when she woke up (pp. 23-26, t.s.n., Dec.
15, 1975; p. 22, t.s.n., Jan. 12, 1976). Gerardo Fajardo was also there. All the three of them were naked.
Evidently, appellants and Gerardo Fajardo sexually abused her (p. 27, t.s.n., Dec. 15, 1975; p. 15, t.s.n.,
March 10, 1976).
Appellants and Gerardo Fajardo forcibly kept Anastacia de Jesus for nine (9) days in the hut, with appellants,
and Gerardo Fajardo taking turns in sexually abusing her during the night. During the day she was guarded
by Oscar Alvaran.
After her nine-day ordeal, Gerardo Fajardo brought her to the house of Cirilo Balanagay at Bancal Talavera,
Nueva Ecija (pp. 20-23, t.s.n., March 12, 1976). When Gerardo Fajardo left the house, Anastacia de Jesus
related to Cirilo Balanagay what the appellants and Fajardo did to her. Cirilo Balanagay, therefore, wired
Anastacia's parents and then brought her to the Talavera Municipal Building where she executed an
affidavit about her ordeal. She also told the PC of her harrowing experience (pp. 23-25, t.s.n., March 12,
1976).
When complainant was brought home, her friends readily noticed that she was not her usual self anymore
as "she cannot answer and she just kept on shouting and crying and trembling", saying "keep away from
me, have pity on me." (pp. 14-15, t.s.n., Oct. 14,1975).
Complainant Anastacia de Jesus was physically examined on October 6, 1974, by Dra. Norma V. Gungon
who issued a medical certificate on her findings, as follows:
Patient examined with the presence of a ward Nurse. She is conscious, coherent
answers to questions intelligently.
Physical Examination
Breast symetrical conical in shape, areola pigmented.
Mons pubis pubic hair scanty in amount.
Internal Examination:
Hymen presence of healed lacerations, at 11, 5, 3 o'clock.
Vaginal introctus admits 2 fingers w/ difficulty.
Cervix small, closed
SMEAR FOR SPERMATOZOA NEGATIVE' (Exh. G-1, P. 6, rec.) (Brief, pp. 3-6.)
The appellants make the following assignment of errors:
I. THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME OF RAPE WHICH THE
PROSECUTION ALLEGES TO HAVE BEEN COMMITTED IN TALAVERA, PROVINCE OF NUEVA ECIJA AND NOT IN
THE PROVINCE OF BULACAN.
II. THE HONORABLE JUDGE JESUS R. DE VEGA, PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF
BULACAN, BRANCH II ERRED IN RENDERING THE DECISION APPEALED FROM WHEN HE HAS NO AUTHORITY
TO DO SO BECAUSE THIS CASE WAS ENTIRELY TRIED IN THE COURT OF FIRST INSTANCE OF BULACAN,
BRANCH I, PRESIDED OVER BY HONORABLE JUDGE FIDEL P. PURISIMA.
III. THE LOWER COURT ERRED IN ADMITTING THE TESTIMONY OF GERARDO FAJARDO WHOSE CROSS-
EXAMINATION WAS NOT FINISHED DUE TO HIS FAILURE TO APPEAR INSPITE OF A WARRANT FOR HIS
ARREST.
IV. THE LOWER COURT ERRED IN FINDING THE ACCUSED FELICIANO GOROSPE AND RUFINO BULANADI
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE. (Brief, pp. 21-22.)
The first assignment of error raises the following questions: (1) Why was the complaint not filed in Plaridel, Bulacan or Talavera,
Nueva Ecija but in Pulilan, Bulacan? (2) Since the rape was committed in Talavera, why was the case tried by the CFI of Bulacan
and not by the CFI of Nueva Ecija?
The above questions are easily answered. Abduction is a persistent and continuing offense. (U.S. vs. Bernabe, 23 Phil. 154
[1912].) Hence it may be "tried in the court of the municipality or province wherein the offense was committed or any one of
the essential ingredients thereof took place." (Rules of Court, Rule 110, Sec. 14[a].) The Municipal Court of Pulilan had
jurisdiction because the abductors and their captive passed Pulilan on their way from Plaridel to Talavera. And the CFI of
Bulacan (as well as the CFI of Nueva Ecija) had jurisdiction because essential elements of the offense took place in Bulacan (and
also in Nueva Ecija).
The second assignment of error asserts that Judge de Vega had no authority to render the decision in the case.
Judge Purisima in the order wherein he inhibited himself from deciding the case also "ordered to have the same re-raffled off
and assigned to another branch. " The case was presumably re-raffled to Judge de Vega who issued an order on June 23, 1978,
which states, inter alia:
Considering the foregoing, and in order to be properly guided in the further disposition of this case, and to
obviate possible objections and criticisms which may come from any or both parties in the final disposition
thereof, the Court resolves to require the parties to submit their respective written comments within fifteen
(15) days from receipt hereof on the propriety and advisability of the decision in this case to be rendered by
the Presiding Judge of this Court; and to call a conference to hear further the views and arguments of the
parties on this question, which is hereby set on July 18, 1978, at 1:30 p.m. Let notices be sent accordingly,
to all parties concerned. (Expediente, p. 390.)
Neither the comments nor the memorial of the conference are in the expediente but on March 28, 1979, counsel for the
accused filed a motion stating:
2. That the above promulgation was held in abeyance, and then the accused received the order dated June
13, 1978 where the Court, called the parties to a conference on July 18, 1978;
3. That the parties appeared before this Court on July 18, 1978;
4. That up to the present a Decision in the above entitled case has not yet been promulgated.
WHEREFORE, it is respectfully prayed of this Honorable Court that the above entitled case be resolved. (Id.,
p. 401.)
And on June 4, 1979, Judge de Vega promulgated the decision. (Id, p. 410.)
We hold that Judge de Vega had the power to decide the case. "Where a court of first instance is divided into several branches
each of the branches is not a court distinct and separate from the others. Jurisdiction is vested in the court, not in the judges, so
that when a complaint or information is filed before one branch or judge, jurisdiction does not attach to said branch of judge
alone, to the exclusion of the others. Trial may be had or proceedings may continue by and before another branch or judge."
(Lumpay, et al. vs. Moscoso, 105 Phil. 968 [1959].)
It is to be recalled Chat in the original complaint filed by Anastacia de Jesus before the Municipal Court of Pulilan, Gerardo
Fajardo was one of the accused. In the amended complaint, Fajardo's name was dropped and Oscar Alvaran was named
instead. Nonetheless, when Anastacia testified she said that she was brought to the house of Gerardo Fajardo in Talavera,
Nueva Ecija; that when she woke up after she was forced to drink something, Fajardo was there with Gorospe and Bulanadi,
and all three were naked; that Fajardo was one of those who raped her; and that it was Fajardo who brought her to Cirilo
Balanagay.
Why was Fajardo dropped from the complaint? The record does not yield an answer but perhaps he decided to cooperate with
the complainant because soon after she finished her testimony the prosecution presented Fajardo as its next witness.
Fajardo testified, among other things, that he was given a lift from the monument in Caloocan City to Nueva Ecija by Gorospe
and Bulanadi; that in Plaridel, between the market and the bridge, the two forced Anastacia to go with them; that Anastacia
was brought to his house and later transferred to a nipa hut near an irrigation pump; that in the nipa hut Anastacia was
undressed by Gorospe; that Gorospe, Bulanadi and Alvaran took turns in spending 20 to 30 minutes inside the hut with
Anastacia; and that he did not have sex with her.
It can thus be seen that Fajardo was a key witness. His testimony corroborated that of Anastacia in material matters.
His direct examination took place on June 23 and 24, 1976. His cross-examination commenced on August 4, 1976 (whole day),
and was continued on August 9, 1976. The cross-examination is recorded on pages 112 to 230 of the transcript. But the defense
did not indicate that it was through with Fajardo.
On August 9, 1976, the trial court continued the hearing to August 11, 1976. (Expediente, p. 204.) On the latter date, Fajardo
failed to appear and the case was re-scheduled to be heard on September 13, 1976. (Id. p. 208.) On September 13, 1976,
Fajardo again failed to appear and the case was re-set to September 29, 1976. (Id. p. 222.) Fajardo did not appear on
September 29, 1976, so he was ordered arrested. (Id, p. 223-226.) Fajardo was not arrested but despite such fact the
prosecution rested its case.
In their third assignment of error the appellants bewail the fact that the trial court decided the case even though they had not
finished cross-examining Fajardo.
The trial court committed no error in admitting the testimony of Fajardo although the defense had not finished its cross-
examination. An examination of the transcript of Fajardo's testimony shows that he was subjected to detailed cross-
examination on material points. In fact, the cross-examination was lengthier than the direct examination. We adopt with
approval the statement of the court a quo on this point:
The records show that the counsel for the accused has extensively cross examined Fajardo. The Court could
not help but wonder what other matters not yet touched during the cross-examination of Fajardo could still
be elicited from him that would probably destroy or affect his testimony in-chief. If the counsel for the
accused expected Fajardo to testify further on material matters favorable to the cause of the defense, he
should have proffered such further testimony and entered into the records how the absent witness would
have testified if he were available for further cross-examination. The failure of the said counsel to do so
indicates that every material point has been asked from Fajardo during the time he was under examination.
While cross-examination is a right available to the adverse party, it is not absolute in the sense that a cross-
examiner could determine for himself the length and scope of his cross-examination of a witness. The court
has always the discretion to limit the cross examination and to consider it terminated donated if it would
serve the ends of justice.
The Court, therefore, hereby resolves to admit the testimony of Fajardo. This resolution finds support,
though indirectly, from Section 6, Rule 133 of the Rules of Court, which empowers the court to stop the
introduction of further testimony upon a particular point when the evidence upon it is already so full that
more to the same point cannot reasonably be expected to be additionally persuasive. The position herein
taken by the Court in brushing aside technicalities is in accordance with a fundamental rule that the
provisions of the Rules of Court shall be liberally construed in order to promote their object and assist the
parties in obtaining a just, speedy and inexpensive determination of every action or proceeding. (Section 2,
Rule 1, Rules of Court)." (Id, p. 418.)
Moreover, even if Fajardo's testimony be disregarded the accused may nonetheless be convicted in the light of other evidence.
The fourth assignment of error raises the issue of credibility of witnesses those of the prosecution versus those of the
defense.
The prosecution's version has already been stated above. We now have to consider the version of the appellants which is as
follows:
On September 30, 1974 at 4: 00 O'clock in the afternoon, accused Feliciano Gorospe, Barangay Captain of
Andal Alinio district, Talavera, Nueva Ecija, since 1972 up to the present and at the same time a member of
the Sangguniang Bayan of Talavera, Nueva Ecija, representing tha Barangay Group, went to the house of his
friend, Reynaldo Matias at Calipahan, Talavera, Nueva Ecija, to attend a birthday party (pp. 36 & 37, T.s.n.,
February 7, 1977, CFI). Accused Rufino Bulanadi, who was a former councilman of Calipahan, Talavera,
Nueva Ecija, also attended said party as he was also invited (p. 12, T.s.n., February 28, 1977, CFI.). At about
7:00 o'clock in the evening, several teenagers were shouting in front of the house of Gerardo Fajardo which
is ONE HUNDRED (100) METERS away from the house where the birthday party was being held (p. 38, T.s.n.,
February 7, 1977 CFI). The house of Fajardo being within his jurisdiction (pp. 39 & 40 Ibid ), accused
Barangay Captain Gorospe proceeded to the place where the shouts were coming from, followed by other
guests in the birthday party, among whom was Councilman Rufino Bulanadi (p. 39, Ibid). there were 2
groups of teenagers who were at odds with each other. One was the group of Gil Nocum and the other, the
group of Isagani Castro. Barrio Captain Gorospe talked with the two (2) groups of teenagers and he was
informed that Fajardo who promised to give a woman to one group made the same commitment with
respect to the same woman to the other group (pp. 41 & 42, Ibid). That woman was complainant Anastacia
de Jesus, as there were previous occasions that Gerardo Fajardo brought women of Ill-repute to his house,
Gorospe called him and asked him why he brought again another woman of ill-repute to that place. He even
asked Gerardo's wife, Della Fajardo, why she tolerated Gerardo to bring that kind of woman in their house
when they are already married. She answered that she could not stop him because he would cause her
bodily harm. Gorospe also called Anastacia and askeed her why she went with Grardo who is a married man
(pp. 44 to 47, Ibid). Thereafter he told her to leave the place. Gerardo pleaded that Anastacia be allowed to
stay only for that night and he would take her out of the place the next day.
The following morning, October 1,1974 while accused Rufino Bulanadi was tying the rope of his carabao to
graze in the subdivision at Calipahan, Talavera, Nueva Ecija, Gerardo approached him and said, "Konsehal
maaari bang itira ko and babaing dala-dala ko sa bahay sa balong-balong ng kalabaw mo" ( Councilman, may
I be allowed to let the girl who is with me in my house to live or stay in the shade of you carabao). He
pleaded with Bulanadi because according to him his wife was quarrelling with him because of that woman
(pp. 21-23, T.s.n., February 28, 1977, CFI). Bulanadi vehemently refused and reminded Gerardo about the
warning of Barrio Captain Gorospe to get that woman out of the place. Gerardo left, angry and was
murmuring (p. 23, Ibid). Bulanadi left his carabao to graze and proceeded to his field to see the laborers
who were pulling grasses there, The farmers in Talavera are organized into groups of Twenty (20) for the
systematic distribution of irrigation water, each with a chairman. Bulanadi was the chairman of his group.
Because there was shortage of water he started the engine of his irrigation pump. lie had his lunch in the
field. At 3:00 o'clock in the afternoon, a son of an owner of a neighboring field informed him that water was
already being released from the Sapang Baca Dam. Upon verifying that water was really coming, he stopped
the motor of his litigation pump. (pp. 22-26, Ibid), He cleaned the passage of water to his field for two (2)
hours. At 5:00 o'clock in the afternoon, he went home to eat because he was hungry. He left the pump
house open because he intended to go bad after supper. When he came back, he saw that there was light
inside his pump house. As he was approaching, Gerardo met him and pleaded that he and the woman be
allowed to sleep there. Bulanadi refused saying, I just bought this pump recently, "Sasalahulain mo ba ito?
Hindi pwede yon Gerardo, kamalasan yon." (Are you going to tarnish this? That cannot be Gerardo, that will
bring me bad luck) (26-29, Ibid). Bulanadi saw Anastacia playing with the water. He told her not to make the
water dirty as it is being used as drinking water and Anastacia said, "suya naman kayo kay selan-selan mong
matanda." (You are very touchy old man). When Bulanadi told them that he would report them to the
Barrio Captain, they pleaded to him not to do so, but just the same, he went to the Barrio Captain to report.
When Bulanadi arrived in the house of Barrio Captain Feliciano Gorospe, the latter was conversing with
Oscar Alvaran (p. 31, Ibid & p. 49, t.s.n., February 7, 1977). Upon receiving the report, the 3, Rufino
Bulanadi, Feliciano Gorospe and Oscar Alvaran, went to the pump house. Barrio Captain Gorospe talked to
Gerardo Fajardo and Anastacia de Jesus saying. "Talaga palang matitigas ang ulo ninyo, pinaalalahanan ko
na kayo, ayaw pa ninyong lumayo dito!" (You are really hard headed, I have already warned you but still you
did not leave this place). Bulanadi and Gorospe were very angry and Anastacia got angry too and said that it
is none of their business what she and Gerardo do. She rushed towards the two as if to strike them but
Gerardo stopped her and pleaded with the two to allow them to stay there just for that night because he
said, "aabutan na kami ng curfew" (we will be curfewed). Gorospe and Bulanadi relented and left warning
them that if they would still be there the next morning they will report the matter to the P.C. (pp. 31-
35, Ibid & pp. 2-6, February 24, 1977, CFI).
The next morning, October 2, 1977, Wednesday, Gerardo Fajardo and Anastacia de Jesus left the pump
house of Bulanadi. Gerardo brought Anastacia to the house of his cousin Floring at Munoz, Nueva Ecija,
where they stayed that night. The following morning, October 3, 1977 he brought her to the house of his
uncle Cirilo Balanagay at Bakal I, Talavera, Nueva Ecija (Exhibit I). He told his uncle that Anastacia is a
student, and he requested Balanagay to devise ways and means to return her to her parents because he
might be placed in trouble (p. 7, T.s.n., October 12, 1974, Municipal Court of Pulilan).
After Gerardo left, Balanagay went to the room where Anastacia was and volunteered to take her to her
parents, but she said she would think it over. That night, October 3, 1974, Balanagay brought her to the
house of Barrio Captain Andres Nazar of Bakal I, Talavera, Nueva Ecija, to inform him of Anastacia's
presence in that house, and also so that she could relate everything to the Barrio Captain (p. 10, T.s.n.,
October 12, 1974, Municipal Court of Pulilan). There was a regulation in Bakal I, Talavera, Nueva Ecija, that a
stranger who arrives there should submit a statement as to the reason of his presence in the barrio. Barrio
Captain Andres Nazar took the statement of Anastacia de Jesus (p. 4, T.s.n., February 7, 1977, CFI) which
was in the form of question and answer. This was reduced in writing by Councilman Aniceto Damian who
was summoned for that occasion, in the presence of the barrio captain himself, Cirilo Balanagay, and his
wife. The statement of Anastacia de Jesus marked as Exhibit "1" was signed by Councilman Aniceto Damian
and Cirilo Balanagay as witnesses (pp. 7 to 14, T.s.n., February 7, 1977 CFI). To protect the interest of
Anastacia, Barrio Captain Nazar asked Balanagay to notify her parents (p. 13, Ibid).
On October 4, 1974, Cirilo Balanagay accompanied Anastacia to the Police Department of Talavera, Nueva
Ecija, where she made a report (Exhibit 13). Then he wired the family of Anastacia at Pungo, Calumpit,
Bulacan. On October 6, 1974 Anastacia's relatives arrived, composed of her uncle, Enrique de Jesus, brother
of Victoriano de Jesus, sister Lolita de Jesus and brother-in-law Adriano Nicolas. They accompanied her to
the Police Department of Talavera, where she made a statement, Exhibit 5 which is also Exhibit C (p. 3,
T.s.n., June 16, 1976, CFI). That same date, October 6, 1974 she was examined by Dr. Norma Gongon at the
Dr. Paulino J. Garcia Memorial Research and Medical Center upon request of the Police Department of
Talavera, Nueva Ecija and a Medical Certificate was issued to her (Exhs. "G", "G-1", "G-2", "H" and "H-1").
In the meantime, on October 4, 1974, accused Barrio Captain Feliciano Gorospe and his wife, with Mayor
and Mrs. Bonifacio de Jesus of Talavera, Nueva Ecija, Engineer and Mrs. Bacani and 3 other couples went to
Baguio City to attend the convention of the Luzon Area Community Christian Family Movement at St. Louise
University. They rented a house and stayed there for THREE (3) days, October 4, 1974 to October 6, 1974. At
5:00 o'clock in the afternoon on October 6, 1974, when the convention ended, they went home to Talavera,
Nueva Ecija (pp. 10-12, T.s.n., February 24, 1977, CFI).
On October 6, 1974, at about 8:00 o'clock in the morning, accused Rufino Bulanadi on his way to the field to
cut grasses for his carabao, passed by a store to buy cigarette. To his surprise he saw Gerardo there and he
asked him where his "alaga" was (the girl he is taking care of) and Gerardo answered, "Pinagpapahinga ko
siya sa Bakal at pinakawalan ko na" (I let her rest in Bakal and I have already let her go). Gerardo further
said that the girl was intending to file a case against him, and Bulanadi told him, "Mabuti nga sa iyo, ayaw
mo kasing tumigil sa masamang negosyo mo". (That's good for you because you don't want to stop your bad
business). When Bulanadi proceeded on his way to the field, a jeep suddenly stopped beside him. On the
jeep were PC Sgt. Jimenez, several policemen and Anastacia de Jesus. Sgt. Jimenez immediately got off the
jeep, tied Rufino's hand with his own rope that he brought with him to be used in tying the grasses that he
would cut, and brought him to the Municipal Building of Talavera, Nueva Ecija, where he was locked in jail.
When asked about Gerardo, he informed the P.C. that he saw him in the store. Gerardo was likewise
arrested. Bulanadi was asked about the case and he said he did not know anything about it (pp. 37 to 40,
T.s.n., February 28, 1977, CFI).
When accused Barrio Captain Gorospe arrived with his wife from Baguio in the evening of October 6, 1974,
his mother informed him that a policeman was looking for him. He told his mother that he would just go to
the Municipal Building the following day because he was tired. The next day, October 7, 1974 at 8:30 o'clock
in the morning, he went to the Municipal Building. Upon his arrival, Gerardo met him, put his arms on his
shoulders and said that the case can be settled in the amount of P200.00. Gorospe said "tarantado ka pala"
(You son of a bitch). "I will not give even a single centavo because you are the one responsible for this. I
have nothing to do with this case." Gorospe proceeded to see Sgt. Jimenez who told him that the case was
transferred to Cabanatuan City. The 3 of them, Bulanadi, Gorospe and Fajardo were brought to the PC
headquarters where they were interviewed one after the other, after which Gorospe and Bulanadi were
sent home.
The complainant filed the case in the Municipal Court of Pulilan, Bulacan, on October 8, 1974, two (2) days
after she had gone home in Pungo, Calumpit, Bulacan (Exhibit 8). Gerardo Fajardo who was in the custody
of the Police Department of Talavera, Nueva Ecija was taken by the Policemen of Pulilan, Bulacan.
On October 22, 1974 while the case was being investigated by Municipal Judge Alfredo Granados where
Anastacia had already testified on October 9, 1974, Anastacia again executed another affidavit because that
was what her lawyer, Atty. Santos wanted (p. 26, t.s.n., March 12, 1976, CFI). On the same date Gerardo
Fajardo executed another statement in the Police Department of Pulilan Bulacan. Thereafter, complainant
filed an Amended Complaint wherein Gerardo, against whom she was originally complaining against, was
excluded as one of the accused to be utilized as her witness, and Oscar Alvaran was included for the first
time. The alleged date of the incident was changed from September 30, 1974 to September 25, 1974.
Subsequently the case was elevated to the Court of First Instance of Bulacan, Branch I. (Brief, pp. 12-21.)
The version of the appellants does net inspire belief because it appears to have been contrived. The appellants portray
Anastacia as wanton and unchaste woman a prostitute. But one's credulity has to be unduly stretched in order to buy the line
that a girl of 14 years who was still going to school was a prostitute who went far away from her home in order to peddle her
body. The appellant's version is simply too crude to be convincing.
Opposed to the appellants' version is the affirmative narration of events made by Anastacia which were corroborated by
Gerardo Fajardo. The story winch she unfolded could have been inspired only by her thirst for justice. In her quest she had to
live her ordeal all over again for a lengthy period because she was on the witness stand on December 15, 1975; January 12,
March 10, March 11, May 3 and June 16, 1976. During all those days she had to bare in public her shame and humiliation.
To be sure there were inconsistencies in the testimony of Anastacia but they were in details rather than in the highlights of her
terrible experience and could very well be attributed to her tender age and confused state of mind caused by her private hell.
The Solicitor General states that Gerardo Fajardo, the discharged state witness, also committed rape hence the appellants
should each be found guilty of three (3) rapes because in a conspiracy the act of one is the act of all. We cannot agree in respect
of the participation of Fajardo. Since Fajardo was dropped from the complaint his guilt had not been established. However, We
agree with the Solicitor General's observation "that a motor vehicle was used to bring her [Anastacia de Jesus] from Plaridel,
Bulacan, where she was first deceived and drugged, and then taken to an isolated uninhabited place at a nipa hut, near an
irrigation pump at Calipahan, Talavera, Nueva Ecija, where she was abused, two (2) aggravating circumstances are present,
namely use of motor vehicle and uninhabited place (Art. 14, R.P.C.)," so that death is the proper penalty. (Brief, pp. 14-15.)
However, for lack of the necessary number of votes the death penalty cannot be imposed.
WHEREFORE, the judgment of the court a quo is hereby affirmed in all respects. Costs against the appellants.
SO ORDERED.
Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr. and
De la Fuente, JJ., concur.
Fernando, C.J., concurs in the result.



Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-28773 June 30, 1975
FRANCISCO ORTIGAS, JR., plaintiff-appellant-appellee,
vs.
LUFTHANSA GERMAN AIRLINES, defendant-appellant-appellee.
Baizas, Alberto and Associates for appellant Lufthansa German Airlines.
Pelaez, Jalandoni and Jamir for appellant Francisco Ortigas, Jr.

BARREDO, J.:
Direct appeals of both parties plaintiff, Francisco Ortigas, and defendant Lufthansa German Airlines, from the decision of the
Court of First Instance of Manila, Branch X, "condemning the defendant to pay plaintiff the amount of P100,000 as moral
damages, P30,000 as exemplary or corrective damages, with interest on both sums at the legal rate from the commencement
of this suit until fully paid, P20,000 as attorney's fees and the costs" for the former's failure to "comply with its obligation to
give first class accommodation to (the latter) a (Filipino) passenger holding a first class ticket," aggravated by the giving of the
space instead to a Belgian and the improper conduct of its agents in dealing with him during the occasion of such discriminatory
violation of its contract of carriage.
Defendant buttresses its appeal on the following:
ASSIGNMENT OF ERRORS
I
THE LOWER COURT ACTED WITH GRAVE ABUSE OF DISCRETION IN DENYING THE DEFENDANT'S URGENT
MOTION FOR POSTPONEMENT DATED SEPTEMBER 24, 1966.
II
THE LOWER COURT CONSEQUENTLY ERRED IN ORDERING THE STRIKING FROM THE RECORDS THE
TESTIMONY OF WITNESS IVO LAZZARI AND IN DEEMING THE CASE SUBMITTED FOR DECISION ON THE
EVIDENCE OF THE PLAINTIFF ALONE.
III
THE LOWER COURT ERRED IN CONDEMNING DEFENDANT TO PAY THE PLAINTIFF THE AMOUNT OF
P100,000.00 AS MORAL DAMAGES, P30,000.00 AS EXEMPLARY OR CORRECTIVE DAMAGES, WITH INTEREST
ON BOTH SUMS AT THE LEGAL RATE FROM THE COMMENCEMENT OF THIS SUIT UNTIL FULLY PAID,
P20,000.00 AS ATTORNEY'S FEES, AND COSTS. (Pp. 12-13, p. 118, Record.)
On the other hand, plaintiff's sole ground for his appeal is that "the trial court erred in ordering Lufthansa to pay Ortigas only
P100,000 as moral damages, P20,000 as exemplary or corrective damages, and P20,000 as attorney's fees." (Plaintiff-
Appellant's Brief, p. a.) Thus, apart from the contention of defendant that it has been denied its full day in court, the only issue
raised by both appellants relate to the amount of the damages awarded by the trial court, plaintiff claiming it is less than he is
entitled to and the defendant insisting on the opposite.
Lufthansa maintains it has not had its full day in court because the trial court abruptly ended the trial by denying its last motion
for postponement notwithstanding it was well founded and forthwith ordering the striking out of the testimony of its absent
witness whose cross-examination had not been finished and then declaring the case submitted for decision. In this connection,
the record reveals the following facts:
Plaintiff's complaint was filed with the court below on December 24, 1963 and after issues were joined, a pre-trial was held, the
parties submitted a partial stipulation of facts and thereafter went to trial, the last day of which was on September 28, 1966. As
to what happened in between, a detailed account is made in the brief of Ortigas as plaintiff-appellee as follows:
... Thereafter the case was set for hearing twenty four (24) times, or on April 27, 1964, July 9, 1964, August 20, 1964, October 1,
1964, November 11, 1964, December 22, 1964, February 3, 1965, March 18, 1965, May 5, 1965, June 11, 1965, July 22, 1965,
August 26, 1965 and September 8, 1965, September 22, 1965, November 3, 1965, November 24, 1965, December 17, 1965,
December 29, 1965, January 14, 1966, February 2, 1966, April 19, 1966, April 20, 1966, July 5, 6 and 7, 1966, August 25, 1966
and September 28, 1966.
One (1) hearing, or that of August 25, 1966, was cancelled because the trial judge, Hon. Jose L. Moya, was
then sick. Other postponements were as follows:
Postponements at instance of
plaintiff
Three (3) settings were cancelled upon motion of plaintiff on grounds that defendant's counsel (Atty. Crispin
Baizas) himself must have found sufficient, for he gave his conformity thereto. These were the hearings set
for:
July 9, 1964 postponed upon plaintiff's motion, dated June 27, 1964, or 12 days before the hearing, on
the ground that he had to attend an important business matter in Mindanao, which was so urgent that "for
plaintiff to even make a flying trip to Manila for the scheduled hearing might jeopardize and render to
naught a project to which plaintiff has already expended considerable time, money and effort" (RA pp.
28-29. Note: All reference herein will be to plaintiff's Record on Appeal).
August 26, 1965 postpone upon plaintiff's motion, dated August 23, 1965, for the reason that he was in
London for business reasons and could not return to the Philippines on time for the hearing. This motion is
not reproduced in any Record on Appeal but is admitted.
July 5-7, 1966 18 days before the dates set for the hearing, counsel for plaintiff filed a motion, dated June
17, 1966, for Postponement on the ground that Atty. Rodegelio M. Jalandoni, who had been personally
handling this case was then in Washington, D.C. on business and would not be back until the middle part of
August, 1966. Considering that the trial of the case was far advanced, it would be difficult for another
lawyer to substitute for Atty. Jalandoni. Defendant's counsel agreed to the motion (RA pp. 50-51).
Postponement at instance of
both parties
Four (4) settings, or those of August 20, 1964, October 1, 1964, November 11, 1964 and December 22,
1964, were cancelled upon the joint motion of the parties on the ground that negotiations for the possible
settlement of this case were pending (RA pp. 31-34).
While both attorneys for plaintiff and defendant signed the joint motions for postponement, the initiative
to have the hearings cancelled actually came from defendant's counsel who claimed that he needed time to
consult with his client. Plaintiff welcomed the possibility of compromise and acceded to join the requests
for postponement but became impatient at and suspicious of the attempt to delay so that in the motion to
postpone the December 22, 1964 hearing, plaintiff insisted on the insertion of the phrase "be postponed for
the last time" (RA p. 34).1wph1.t These took place after the pre-trial but before plaintiff had started
presenting his evidence.
Postponement at instance of
defendant
Of the remaining 16 settings, at least TEN (10) were postponed or could not proceed except for a few
minutes because either Atty. Crispin Baizas, counsel for defendant, was not available or needed time to
prepare or had to attend a meeting somewhere else, or, as in the case of September 28, 1966, defendants
witnesses wanted to avoid the inconvenience of coming to the Philippines. The situation became such that
on two (2) occasions the court a quo warned the defendant and/or its counsel that it was postponing the
trial "for the last time" and "definitely for the last time." Thus:
February 3, 1965 On this date, although plaintiff was ready to present his evidence and the Court to hear
the parties, Atty. Baizas asked for postponement for the reason that he had to be somewhere else. The
undersigned graciously obliged by not objecting, albeit the motion was made without warning and in open
court.
March 18, 1965 Once again the hearing scheduled for this date was postponed on motion of Atty. Baizas
in open court. The undersigned did not object because, as far as he can now recall, the excuse given was
that opposite counsel had another appointment.
June 11, 1965 The Court was free the whole morning of this day and plaintiff actually took the witness
stand. After plaintiff was through with his direct testimony, Atty. Zaida R. Alberto, who appeared for the
defendant, asked that the cross-examination be postponed for the next hearing, on the ground that Atty.
Baizas knew more of the defense. The following appears of record:
"ATTY. ALBERTO:
If Your Honor please, may I request to allow the cross examination
at the next hearing.
COURT:
You can handle the cross examination now.
ATTY. ALBERTO:
The defense are more in the knowledge of Atty.
Baizas.
COURT:
If you postpone the cross-examination we will forget the testimony
and will be spending much time referring to his testimony, so you
better cross-examine him while his testimony is still fresh.
ATTY. ALBERTO:
May I ask for a reconsideration, Your Honor, anyway it is past 11:00
o'clock I do not think there will be enough time.
COURT:
We still have one hour.
ATTY. ALBERTO:
I ask for a reconsideration, Your Honor.
COURT:
On motion of the defendant's counsel, the continuation of the trial is
postponed to July 22, 1965, at 8:30 a.m. The parties were notified in
open court of this new assignment." (t.s.n. pp. 43-44, June 11, 1965)
Notwithstanding there was an hour left, which was precious considering the crowded calendar of the Court,
and Judge Moya wanted to hear the cross-examination because plaintiff's testimony was fresh, the Court
pleased counsel for the defendant and postponed the hearing to July 22, 1965.
September 22, 1965 At this hearing the undersigned requested that Dr. Isidro Pertiera be permitted to
take the witness stand. He is a heart specialist and it was difficult to bring him to court because of his many
patients. His direct testimony did not take long, after which Atty. Baizas asked for postponement, for the
reason that he did not expect Dr. Pertiera to testify and, since the subject of the testimony was important
and technical, he needed time to be able to cross-examine. The undersigned, understanding the
predicament of Atty. Baizas, did not offer any objection.
November 3, 1965 This scheduled hearing was postponed upon motion dated October 7, 1965, of Atty.
Baizas on the ground that he was leaving on a business trip abroad. The undersigned again did not object.
November 24, 1965 It will be recalled that the hearing of September 22, 1965, supra, was postponed to
enable Atty. Baizas to prepare for his cross-examination of Dr. Pertiera. On this date, November 24, 1965,
Atty. Baizas cross-examined briefly the doctor, but announced:
"ATTY. BAIZAS:
May I announce, your Honor, that after I cross-examine the Doctor I will ask for a
postponement of my cross examination of Atty. Ortigas because I will have to attend a
meeting of the PAL Board of Directors this morning. My cross examination will not be
very long." (t.s.n., pp. 34, November 24, 1965)
The PAL Board of Directors' meeting was certainly not more important than the occupation of the Court,
and it was still early, but counsel was insistent. The Court was beginning to be perturbed by the dilatory
motions; yet it granted counsel's requested postponement but "for the last time." Thus:
"ATTY. BAIZAS:
That is all. May I make that request, Your Honor, that it is simply that
I have to be present at the meeting. I wish to finish my cross
examination on Atty. Ortigas but it is merely that the meeting is held
for today at 10:00 o'clock and I would like to ask for a postponement
to continue the cross examination.
COURT:
I will grant this for the last time. On motion of Atty. Baizas, the
continuation of the hearing is postponed for the last time to
December 17, 1965, at 8:30 a.m., by agreement between him and
Atty. Jalandoni." (t.s.n., p. 17, November 24, 1965)
December 17, 1965 Although at the hearing of November 24, 1965 trial was postponed for the last time
to December 17, 1965, the Court's warning did not seem to register because on December 7, 1965
defendant's counsel filed another motion for postponement alleging that he had received a telegram to the
effect that the meeting of the Legal Committee of IATA that he was attending, originally scheduled for
December 10-15, had been deferred and would begin on December 13 and as it was for 5 days, it would not
be possible for him to return for the December 17 hearing; hence, he requested that said hearing be reset
for December 27 and 29. In his undated motion filed on December 7,1965 counsel averred that:
"There is no intention whatever to delay the case but because of the circumstances
above-stated, undersigned counsel is constrained to ask, for the last time, for the
cancellation of the hearing on December 17 and for its resetting on such dates as may
be convenient to this Honorable Court, preferably December 27 and 29." (RA p. 41)
The undersigned opposed said motion and alleged:
"That this case has been pending since December 24, 1963, or almost two years now,
and trial thereof has been repeatedly suspended and/or postponed;
That at the hearing of November 24, 1965, this Honorable Court precisely postponed
continuation of the trial thereof for the last time to December 17, a date which was
fixed by agreement of the parties;
That when counsel for defendant left, as alleged, on December 6, 1965 he did so with
full knowledge of the intransferable character of the trial set for December 17;
That defendant can well be represented by Atty. Baizas' associate, Atty. Alberto, who, as
a matter of fact, handled this case when trial started on June 11, 1965 and has been
actively collaborating with Atty. Baizas since then;
That when plaintiff testified on direct examination on June 11, 1965 said Atty. Alberto
appeared for defendant and that plaintiff is now merely due for further cross-
examination." (RA p. 43)
In spite of said opposition, the Trial Court once more granted defendant's request but was more categorical
this time with its admonition against further postponements and used the word "definitely" in its order
which read:
"ORDER
For the reasons stated in the defendant's motion for postponement and in view of the
fact that it seeks a deferment of the hearing for only a few days, the continuation of the
trial is postponed definitely for the last time to December 29, 1965, at 8:30 a.m.
"SO ORDERED.
"Manila, Philippines, December 11, 1965.
J
O
S
E

L
.

M
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Y
A


J
u
d
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e
"
(RA p. 46)
March 10, 1966 The hearing on this date lasted for only a few minutes, with the undersigned offering the
documentary evidence for the plaintiff. Thereupon, defendant's counsel again asked for postponement so
he could go over said evidence. Since he had no witnesses to present, the Court once more postponed the
trial to April 19, 1966 without any objection on the part of the undersigned.
April 19, 1966 The hearing for this day was cancelled upon motion of defendant's counsel (RA p. 49)
on his representation that defendant's witness Ivo Lazzari had arrived from Italy at midnight of April 18,
1.966 and was not in a condition to take the witness stand. The Court again accommodatingly transferred
the hearing to the following day, April 20, 1966, although it had other cases scheduled for that date and the
case at bar was not among them, just so Lazzari's trip would not be useless. The undersigned likewise did
not oppose the transfer of hearing. (Pp. 2-13 Brief, p. 132 Record.)
Defendant does not seriously deny these facts. Seemingly, the controversy between the parties revolves around defendant's
motion for postponement of the hearing set for September 28, 1966 which was denied by the trial court. It is this denial that is
the subject of the first above-quoted alleged errors assigned by Lufthansa in its brief as defendant-appellant.
At the time this incident of postponement arose, plaintiff had already closed his evidence, and so it was the turn of the
defendant to prove its defenses. The starting date for this was April 19, 1966, but, upon motion of defendant's counsel, it was
deferred to the next day, April 20, 1966, on which date defendant's first witness, Ivo Lazzari, took the witness stand. His
testimony, however, was not finished in the morning and afternoon of that day nor during the whole day of April 22, 1966.
Atty. Rodegelio M. Jalandoni was still cross-examining him when the hearing was continued "to the first available date in the
calendar". Eventually, the next continuation of the trial was set at first for July 5, 6 and 7, 1966, but upon motion of plaintiff's
counsel, it was reset for August 25, 1966, on which date, in spite of the presence of Lazzari who came from Rome purposely for
the trial together with another expected witness, Severino Caselli, and still another witness, C.H. Dehio, who came from
Hongkong, no trial could be held because of the absence of the judge. Hence, another date, September 28, 1966 was fixed with
notice to the parties received by them respectively the month previous.
On September 24, 1966, defendant's counsel filed a motion for postponement thus:
COMES NOW the defendant by undersigned counsel and to this Honorable Court respectfully states:
1
The above-entitled case is set for hearing on September 28, 1966 at 8:30 o'clock in the morning.
2
The witnesses who are scheduled to testify for the defendant at said hearing are to come from Rome, Italy;
3
Word has been received from the defendant that said witn will not be able to come for the hearing
aforementioned.
WHEREFORE, it is respectfully prayed that the hearing of this case scheduled for September 28 be
postponed to some other date most convenient to this Honorable Court, preferably on any of the following
dates: October 21, 17; Novembers, 3, 8, 9 or 11, 1966.
... . (Page 53, Record on Appeal, p. 29, Rec.)
On September 27, 1966, plaintiff's counsel filed the following opposition to the above motion:
COMES NOW plaintiff, through undersigned counsel and, in opposition to defendant's urgent motion for
postponement, dated September 24, 1966, to this Honorable Court respectfully states:
That this case has been pending since December, 1963;
That defendant's aforesaid motion does not give any valid reason for postponing the hearing, since it does
not state why defendant's witnesses cannot come to Manila on the scheduled dates of continuation of trial;
That the convenience and motive of defendant and its witnesses in not exerting every effort to testify are
not the concern of the plaintiff, and more so of this Honorable Court, and that the speedy and proper
administration of justice dictates that the hearing proceed irrespective of defendant's obvious disregard of
the need thereofl;
That defendant's attitude is aggravated by the fact that, being an airline company, it has all facilities to have
its employees available as witnesses at any time it desires.
WHEREFORE, it is respectfully prayed that defendant's aforesaid motion for postponement be denied.
... . (Pp. 55-56, id.)
In view of this opposition, on the same day, His Honor issued an order of denial:
No reason whatsoever having been alleged or shown why the defendant's witnesses will not be able to
come from Rome to Manila on the day of the hearing, and this case having been pending since December,
1963, the motion for postponement is denied. (Pp. 56-57, id.)
On the day set for the hearing, September 28, 1966, Atty. Zaida Ruby S. Alberto appeared for defendant and verbally moved for
reconsideration of the foregoing order of denial. She argued that:
Actually, it is not intended to delay the termination of this case. As a matter of fact, on August 15, 1966, the
date set for the hearing of this case, we were ready with the presentation of our evidence as our two
witnesses from Rome were here. But unfortunately, Your Honor was indisposed, so the hearing was
postponed to this date. I really do not know why our witness failed to come. However, I intend to make an
inquiry about the matter so that I could file the corresponding explanation for their failure to appear in
Court today. May I, therefore, reiterate my motion for reconsideration, with the reservation that I be
allowed to file my explanation for the failure of these two witnesses coming from Rome to appear for
today's hearing. (Page 2, t.s.n., Sept. 28/66.)
But as counsel could not give the exact reason why defendant's witness scheduled to testify were absent, the trial court denied
the motion; ruling that "no ground has been alleged in support thereof." (p. 6, t.s.n., September 28, 1966.)
This order was immediately followed by a motion of plaintiff's counsel for the striking out of the entire testimony of the
witness, Ivo Lazzari, upon the ground that counsel had not yet finished his cross-examination of him and his absence was
unexplained. No objection appears to have been made to such motion, albeit counsel for defendant tried to point out that Atty.
Jalandoni had already finished his cross-examination of the witness. After verifying from the records that such was not the case,
His Honor issued the following order:
The witness Ivo Lazzari not having appeared at the hearing set for today, for which reason his cross-
examination cannot be continued, on motion of the plaintiff's counsel, his testimony is striken from the
record, and this case is deemed submitted for decision on the evidence already presented. (Pp. 57-58, Rec.
on Ap., id.)
Thus the trial ended and parties were allowed to submit their respective memoranda.
On October 19, 1966, however, defendant's counsel filed the following motion for reconsideration:
MOTION FOR RECONSIDERATION .
COMES NOW defendant by undersigned counsel this Honorable Court moving for a reconsideration of the
orders dated September 27 and September 28, 1966, respectively, respectfully states:
1
On September 26, 1966 a motion for postponement of the hearing on September 28, 1966 was filed by
undersigned counsel for the reason that word had just been received from the defendant that the witnesses
who were scheduled to testify at the said hearing and who were to come from Rome, Italy, would not be
able to come to the Philippines for said hearing. This motion was denied in the order of September 27,
1966;
2
No reason could be stated in the aforesaid motion for postponement because at the time it was prepared,
counsel for defendant did not really know the specific reasons for the inability of said witnesses to come. A
simple telex message had been sent by the Far East Manager of the defendant company to defendant's
representatives in Manila advising the latter that the witnesses in question could not come. Copy of said
telex message is attached to and made part of this motion for reconsideration as Annex "I";
3
For this reason on September 28, 1966, when the case was called, counsel for the defendant reiterated the
motion for postponement and requested this Honorable Court for time to submit an explanation on the
failure of defendant's witnesses to come as a letter elaborating on the matter would surely follow the telex'
message. This request was however denied by the Honorable Court and upon motion of plaintiff's counsel,
another order was issued striking out from the record the testimony of defendant's only witness so far, Ivo
Lazzari, whose cross-examination was to be continued that date, for the latter's failure to appear at the
hearing, and deeming the case submitted for decision;
4
It is alleged by opposing counsel that the witnesses did not come for the hearing of September 28, 1966
because it was inconvenient for them and for defendant. This accusation is absolutely without basis and
malicious;
5
If inconvenience were the only reason for the witnesses' failure to come, then they would not also have
come previously because it was just as inconvenient for them then. It will be recalled that Ivo Lazzari had
been here in April 1966 when he was presented on direct examination and partly on cross-examination. On
August 25, 1966, the case was also scheduled for hearing. All of defendant's witnesses came here from
Rome, Italy for said hearing. Even Mr. C. H. Dehio was also here to testify. Unfortunately, the Presiding
(Judge) of this Honorable Court was indisposed on that particular morning and so the hearing on said date
was cancelled. We mention this only to show that the failure of the witnesses to come for the hearing on
September 28 was not caused by mere inconvenience;
6
Defendant had and had no intention to delay the proceedings whatsoever. The witnesses in question could
not come because of certain circumstances that rendered their coming over virtually impossible. Both
witnesses, Ivo Lazzari and Saverino Casilli are employees of defendant company at the Rome office. The air
traffic in Rome has been particularly heavy this season. Some of the personnel of the Lufthansa Rome office
were on leave and these two employees had to assume some of the duties of those employees who were
on leave, aside from performing their own regular duties, If they were to leave their posts to come for the
hearing on September 28, there would be grave disruption to the public service and for this reason they
were not able to come. These facts are contained in a letter dated September 29, 1966 written to
undersigned counsel by C. H. Dehio, IATA Agency Manager, Far East and Australasia, Lufthansa German Air
Lines, copy of which is attached to and made part of this motion for reconsideration as Annex "2";. The
envelope in which said letter contained is likewise attached to and made part of this motion as Annex "2-A";
7
Witness Ivo Lazzari had first shed his testimony on direct examination and on September 28, 1966, opposing
counsel was to continue cross-examination of said witness. The other witness Saverino Casilli was to be
presented after Ivo Lazzari would have finished testifying. Both witnesses are material for the defense and
no other person could testify on the facts that are the subject of their testimony. The inability of said
witnesses to come for the hearing on September 28 was not due to any fault or neglect on the part of
defendant who in fact had exerted every effort to have them come, but because of the supervening
circumstances above-described, their coming over could not have been possible without seriously
disrupting public service;
8
There is no question that the granting or denial of a motion for postponement rests upon the sound
discretion of the court. We submit however that under the circumstances, the ends of justice would have
been better served by granting the motion on question. The reason for defendant's motion for
postponement is valid and meritorious, and the grant of a postponement based on such ground would not
have adversely affected the substantial rights of plaintiffs.
"Continuances and postponements of trial are part and parcel of our judicial system of
justice, and where no substantial rights are affected and the intention to delay is not
manifest, it is sound judicial discretion to allow them. (Rexwell vs. Canlas, No. L-16746,
Dec. 30, 1961)
"There is even authority for the view that the right to a speedy trial is not violated by
granting a continuance on the ground of absence of material witness. (People vs.
Romero, G.R. No. L-4517-20, May 25, 1953)
The lower court erred in denying a motion for postponement filed by defense to await
arrival of a material witness." (People vs. Narsolis, et al. G.R. No. L-2764, March 24,
1950)
"A miscarriage of justice may result from the accidental or excusable absence of a
material witness, where presence can be secured by the grant of a reasonable
continuance." (Luna vs. Arcenas, 34 Phil. 80, 98-99)
8
Defendant has a valid and meritorious defense, and if given opportunity to present its side of the case, it
would certainly diminish, if not altogether disprove plaintiffs claim.
... court litigations are primarily for the search of truth. ... A trial by which both parties
are given the chance to adduce truth is the best way to find out such truth. A denial of
this chance would be too technical. The dispensation of justice and the vindication of
grievances should not be barred by technicalities." (Ronquillo vs. Marasigan, L-11621,
May 21, 1962; Santiago vs. Joaquin, L-15237, May 31, 1963, emphasis ours.)
"Judicial experience dictates that it is better that cases are tried on the merits even with
a little delay than that substantial rights of a party litigant be sacrificed on the altar of
technicality." (Uy vs. Demetillo, CA-G.R. No. 32665-R, Jan. 14, 1964.)
9
An affidavit of merit by Clarita C. de la Riva, Manager, Rocha & Cua., Inc., General Sales Agents, Lufthansa
German Airlines is likewise attached to and made an integral part of this motion for reconsideration as
Annex "3";
10
The order dated September 27, denying defendant's motion for postponement and the order of September
28, 1966 striking off from the records the testimony on direct examination of the witness Ivo Lazzari and
holding the case submitted for decision on the evidence presented would unduly prejudice defendant's
stand, and would amount to a denial of due process to defendant.
"The paramount interests of justice demand such reasonable allowances as would
prevent, without doing an injustice to the opposing party, the loss by a litigant of his
chance to duly present his side of the case before the court. With a view of avoiding a
possible miscarriage of justice, the exercise of the court's discretion ought to lean, in a
reasonable degree toward bringing about a presentation of evidence on both sides. ..."
(Gerona vs. Calada, CA-G.R. No. 23955-R March 30, 1963, Tormes vs. Balzado, CA-G.R.
No. 32019-R, April 17, 1964.)
WHEREFORE, it is respectfully prayed that the orders of the Honorable Court dated September 27, and
September 28, 1966, respectively, be reconsidered and set aside; that the testimony of defendant's witness
Ivo Lazzari be allowed to remain on record and that a date be set for the continuation of defendant's
evidence.
Manila, Philippines, October 19, 1966.
CRISPIN
D. BAIZAS
&
ASSOCIA
TES
By: s/t/
Crispin D.
Baizas
Counsel
for the
defendan
t
Suite 305
Shurdut
Building
Intramur
os,
Manila
VERIFICATION
I, CRISPIN D. BAIZAS, after having been sworn according to law, depose and say:
I am the counsel for the defendant in the above-entitled case;
I have prepared the foregoing motion for reconsideration and all the allegations contained therein are true
and correct of my own knowledge and to the best of my information and belief.
s/t/ CRISPIN D. BAIZAS
SUBSCRIBED AND SWORN TO BEFORE ME this 19th day of October. 1966 in the City of Manila, affiant
exhibiting to me his Res. Cert. No. A- 5892423 issued on January 28, 1966 at Makati, Rizal.
s/
(Illigible)
NOTARY
PUBLIC
Until
Decembe
r 31,
1967
Doc. No. 1377
Page No. 77
Book No. III
Series of 1966.
(Pages 58-67, Record on Appeal, id.)
to which, plaintiff's counsel filed the following opposition:
COMES NOW plaintiff, through undersigned counsel, and, in opposition to defendant's motion for
reconsideration, dated October 19, 1966, to this Honorable Court respectfully states that:
1. This is in effect the second motion for reconsideration that defendant has filed against the order of
September 27, 1966 denying its motion for postponement of the hearing of September 28. The first motion
for reconsideration was made in open court by Atty. Zaida S. Alberto and denied on the same date.
2. Defendant now claims that it did not intend to delay the trial of this case and seeks to justify the failure of
its witnesses, Ivo Lazzari and Saverino Casilli, to appear on September 28 on the ground that:
"... The air traffic in Rome has been particularly heavy this season. Some of the personnel of the Lufthansa
Rome office were on leave and these two employees had to assume some of the duties of these employees
who were on leave, aside from performing their own regular duties. If they were to leave their posts to
come for the hearing on September 28, there would be grave disruption to the public service and for this
reason they were not able to come. ..." (p. 3, Defendant's Motion for Reconsideration.)
3. Note that the above alleged facts are contained in a mere letter that was written by a certain Mr. C.H.
Dehio, an employee of defendant in Hongkong, to its counsel on September 29, 1966, or one day after the
hearing of September 28, when presumably defendant's aforesaid employee had already been informed
that this Honorable Court had denied the postponement and considered this case as submitted for decision.
Defendant is an airline company and has all the telex facilities to communicate in a matter of minutes with
its various agencies. The ground for failure to appear, to wit, supposed pressure of work of said employees,
is as easy to conceive and gratuitously state as to flick one's fingers. We wish to call attention to the
significant fact that the statement of Mr. Dehio in his letter is not under oath. Incorporating said statement
in the body of the motion for reconsideration that is sworn to by counsel merely `to the best of his
information and belief, or in an affidavit of Mrs. Clarita C. de la Riva (Annex 3) who was only referring to
hearsay information derived from Mr. Dehio's aforesaid letter, is insufficient verification of the motion for
reconsideration under Section 6, Rule 7 of the Rules of Court. Even Mr. Dehio had he executed the affidavit
himself, would have been disqualified to swear to the facts because he is stationed in Hongkong. So that,
when defendant's counsel and Mrs. de la Riva verified the motion on "information and belief" derived from
Mr. Dehio's letter, their statements were hearsay thrice removed.
4. But assuming said facts to be true, did this justify the failure of defendant's witnesses to appear at the
scheduled hearing or constitute a valid excuse for defendant's inability to present evidence. We respectfully
submit that they do not. The September 28 hearing was set as early as August 25, 1966, or more than one
(1) month previous, to suit the schedules not only of this Honorable Court but of the parties as well. Surely,
it was incumbent on defendant, if it has deference to this Honorable Court and our administration of justice
to see to it that its witnesses, particularly Ivo Lazzari who was on the witness stand and due for cross-
examination, would be available, rather than granting leave to its other employees and burdening the two
needed witnesses with additional work. Defendant is not a neophyte in the airline business.
Assuming arguendo that it is true that the volume of air traffic in Europe was high in "September and early
October", it should have foreseen the situation and taken appropriate measures to assure compliance with
its obligation to this Honorable Court. The witnesses are defendant's employees and subject to its exclusive
control. Instead, defendant allegedly rendered itself short handed by granting leave to its other employees,
and now comes to court with a lame excuse requesting that it be extricated from a predicament that it has
deliberatedly brought upon itself. For the execuse that with the workload for Mr. Lazzari and Mr. Casilli
becoming heavier than usual "it would seriously disrupt our service to the travelling public if, during this
time, they were to leave their jobs for several days" (Please see Mr. Dehio's letter, Annex "2") is lame, by
any standard. The local newspapers are constantly carrying news articles of how large and expanded is the
Lufthansa as an airline outfit. Surely, of its hundred (if not thousands) of available employees, two like
Lazzari and Casilli could have been dispensed from their work temporarily to defend the company against
the just grievance asserted by an injured passenger before a court of justice. At the most, defendant was
after the promotion of its own interest in holding the two employees to their jobs, and is not avoiding
"grave disruption to the public service" as counsel exaggerates Mr. Dehio's expression "seriously disrupt our
service to the travelling public" two distinct ideas, the latter signifying self-interest as distinguished from
public necessity. This Honorable Court can take judicial notice that there are many other airlines-operating
in the same areas as doe, Lufthansa and competing with it.
5. As we explained at the September 28 hearing, the truth of the matter is that, contrary to the unverified
representations of defendant, the reason for the non-attendance of defendant's witnesses was to avoid the
inconvenience of coming to the Philippines to testify. In other words, after Ivo Lazzari and Saverino Casilli
were unable to testify last August 25, 1966, defendant thought of avoiding having said witnesses come
again to Manila. We say this because sometime on September 20, 1966, Atty. Leonardo P. Valmonte (an
assistant attorney of plaintiff who is helping in this case) had a telephone conversation with defendant's
counsel, Atty. Zaida S. Alberto in connection with the former's request for a copy of a certain exhibit, and in
the course of their conversation Atty. Alberto informed Atty. Valmonte that the trial scheduled for
September 28, 1966 would not proceed because they were intending "to secure the permission of the court
to take the testimonies of their witnesses by way of deposition". In short, even before the receipt of the
alleged telex (Annex "1" of Motion) by defendant's counsel on September 22, 1966, said counsel
announcing that the trial could not proceed because they were going to resort to depositions of their
witnesses in Rome, rather than have said witnesses come to Manila. The decision to take depositions having
been made on or before September 20, it was an easy matter to have Lufthansa's Hongkong office send the
telex of September 22 stating that they would be unable to provide witnesses on September 28. No reason
was given why witnesses could not be provided 6 or 7 days thence. If in truth there was unexpected
increase in air traffic, surely 6 or 7 days were more than sufficient to make the necessary arrangements so
that the work of Lazzari and Casilli could be taken over temporarily just so these witnesses could appear
before this Honorable Court at the appointed date. Attached hereto as Annex "A" is the affidavit of Atty.
Leonardo P. Valmonte on his aforesaid conversation with Atty. Alberto.
6. At the hearing on September 28, when we made reference to the above-referred to conversation
between Attys. Valmonte and Alberto, the latter did not deny that she had in truth spoken to Atty.
Valmonte in the tenor above related. As a matter of fact, she admitted that defendant was intending to take
the depositions of its witnesses in Rome.
7. When this honorable Court denied the motion for postponement on September 28, 1966, it did so in the
exercise of its sound judicial discretion, for no valid reason was given why the witnesses could not appear,
whereas this case had been pending for about three (3) years and had been postponed several times with
repeated warnings on defendant that said postponements were for the last time. And now, in its motion for
reconsideration, defendant has failed to effectively allege the ground for the failure of said witnesses to
come, and even if said ground be admitted as true for argument's sake, it merely showed "inofficiousness,
lack of resourcefulness and diligence, if not total indifference" on the part of defendant to protect in court
its interests and to prevent needless delays in the discharge of judicial business.
"Postponement not based on valid reasons. Where a party seeks postponement of the hearing of this
case for reasons caused by his own inofficiousness, lack of resourcefulness and diligence if not total
indifference to his own interests or to the interests of those he represents, thereby resulting in his failure to
present his own evidence, the court would not extend to him its mantle of protection. If it was he who
created the situation that brought about the resulting adverse consequences, he cannot plead for his day in
court nor claim that he was so denied of it." (De Leon vs. People's Homesite and Housing Corporation, CA-
G.R. No. 31169-R, Aug. 31,1963.)
8. In the case of Hap Hong Hardware Co. vs. Philippine Company, GR. No. L-16773 (May 23, 1961), the
Supreme Court, in sustaining the trial court's denial of a motion for postponement and on the ground that
the defendant's witnesses, officers of the company, had not come because it was the beginning of the
milling season in the municipality of San Jose, Mindoro Occidental and their presence in the Central was
very, necessary, held that the trial court was perfectly justified in denying said motion for postponement
because the reason adduced was "not unavoidable and one that could not have been foreseen." Said the
Supreme Court:
"The reason adduced in support of the motion for postponement is not unavoidable and
one that could not have been foreseen. Defendant ought to have known long before the
date of trial that the milling season would start when the trial of the case would be held.
The motion should have been presented long in advance of the hearing, so that the
court could have taken steps to postpone the trial without inconvenience to the adverse
party. As it is, however, the motion was presented on the day of the trial. Knowing as it
should have known that postponements lie in the court's discretion and there being no
apparent reason why the defendant could not have presented the motion earlier, thus
avoiding inconvenience to the adverse party, the appellant cannot claim that the trial
court erred in denying postponement. Under all the circumstances we hold that the
Court was perfectly justified in denying the motion for postponement."
In the case at bar, the same unjustified excuse is adduced that the witnesses, who are employees (not
even officers) of defendant, had work to do, albeit date of trial was set one month previous.
9. The cases cited by defendant are not in point, the facts involved therein being very different from those
attending the case at bar. For example, in the cited case of Lino Luna vs. Arcenas, 34 Phil. 93, the trial judge
declined to grant a continuance of a few hours to give counsel an opportunity to secure the presence of the
defendant. The Supreme Court held that considering that it did not appear that defendant was indulging in
dilatory tactics, the denial of the motion for short Postponement was improper. Again, in the case of People
vs. Romero, G.R. No. L-4517, May 25, 1953, the prosecution witnesses, although subpoenaed, failed to
appear; whereupon the fiscal asked that they be ordered arrested and that in the meantime the trial be
postponed. The Supreme Court likewise held that the denial of the postponement was improper. These fact
situations, however, as can immediately be seen are completely different from that of Lufthansa whose
non-presentation of its employees-witnesses was motivated by the desire to avoid inconvenience to them,
hence its frustrated plan to have their depositions taken in Rome.
10. Complaints regarding delays in the disposition of court cases are prevalent and have recently found
expression not only in executive pronouncements but in judicial admonitions. The unclogging of court
dockets remains a pressing problem to the despair of litigants. As the Court of Appeals put it:
"The records reveals that the trial of the case was postponed five times at the instance
of appellants themselves, and for this reason the trial was delayed for more than one
year and three months. In granting these several postponements, the trial judge was
over liberal already, and to have allowed another postponement would have been to
jeopardize plaintiff's interest. Obviously courts cannot unduly protect the interests of
one party to the detriment of the other. Already, there are complaints regarding delays
in the disposition of court cases. The unclogging of our court dockets still remains a
pressing problem in the despair of many a litigant. However to eliminate, at least
minimize, these delays is as much our concern and any act of trial courts conducive
towards this purposeful end will be encouraged by appellate court's." (Rosario vs. De
Leon, CA-G.R. No. 6495-R, April 25, 1941; 40 O.G. 752.)
11. Prejudice will be occasioned plaintiff if defendant's belated motion for reconsideration is granted.
Notwithstanding defendant's counsel's receipt of Mr. Dehio's letter, dated September 25, 1966, a few days
after said date, defendant delayed the filing of its motion for reconsideration until after about three (3)
weeks later. In the meantime, it knew as of September 28 that this Honorable Court had striken out the
testimony of Ivo Lazzari, considered the case submitted for decision on the evidence on record, and given
plaintiff's counsel 7 days to present his memorandum. Plaintiff and his counsel exerted all efforts and
worked overtime just so to be able to submit his memorandum within the short period allowed. Said
memorandum was finished on time, and has been served on defendant's counsel and submitted to Court. In
other words, defendant purposely waited until the submission of plaintiffs memorandum before presenting
its motion for reconsideration based on alleged information received three (3) weeks previous. To grant
defendant's instant motion for reconsideration would place plaintiff at a great disadvantage, because
defendant is now fully aware of every facet of plaintiff's cause and can simply tailor its defenses and
evidence in refutation thereof.
12. Defendant claims that plaintiff is taking undue advantage of a technicality and it should not be deprived
of its day in court on this ground. Suffice it to state that it is never technical to invoke one's rights, and that
while the Rules of Court should be liberally construed, their strict observance has been considered
indispensable to the prevention of needless delays and the orderly and speedy discharge of judicial
business. Thus:
"Although the Rules of Court should be liberally construed, however their strict
observance which have been considered indispensable to the prevention of needless
delays and to the orderly and speedy discharge of judicial business, is as imperative
necessity. Thus, the rules prescribing the time within which certain act must be done, or
certain proceedings taken, are considered absolutely indispensable to the prevention of
needless delays and to the orderly and speedy discharge of judicial business, is as
imperative necessity. Thus, the rules prescribing the time within which certain act must
be done, or certain proceedings taken, are considered absolutely indispensable to the
prevention of needless delays and to the orderly and speedy discharge of judicial
business and therefore must be strictly complied with." (Alvero vs. De la Rosa, 76 Phil.
428, cited in Francisco on Civil Procedure, Vol. 1, P. 89)
"Rules of Courts, promulgated by authority of law, have the force and effect of law; and
rules of court prescribing the time within which certain acts must be done, or certain
proceedings taken are considered absolutely indispensable to the prevention of
needless delays and to the orderly and speedy discharge of judicial business. "Conlu vs.
Court of Appeals, et al., G.R. No. L-14027, January 29, 1960, citing Shioji vs. Harvey, 43
Phil. 333; Alvero vs. De la Rosa, et al., 42 Off. Gaz., p. 316, (Supra.)
WHEREFORE, it is respectfully prayed that defendant's motion for reconsideration, dated October 19, 1966,
be denied.
Manila, October 31, 1966. (Pages 74-88, Record on Appeal, id.)
By way of reply to the above opposition, defendant's counsel alleged:
Defendant could have from the beginning taken depositions in Rome, but so as to avoid any inconvenience
to plaintiff and that the court may see and hear the witnesses testify to better determine the credibility of
their testimony defendant had been bringing the witnesses here. As a matter of fact, defendant even
without leave of court may take the depositions of its witness by merely giving the Court notice of its
intention to do so.
"After answer has been filed no leave at court is required as a prerequisite to taking
depositions ... (Marzo vs. Moore McCormick Line, Inc. 8 Feb. Rules of Service, p. 560;
cited in Moran Comments on Rules of Court Vol. II, p. 18)
"After issue is joined, depositions may be taken without leave of court. (Lyons vs. Bronx
Towing Line, Inc., 1 Fed. Service p. 341)
"After answer is served, depositions may be taken as of course and application should
not be made to the court for leave. (Schultz vs. State Mutual Life Assurance Company, 1
Fed. Rules of Service, p. 340, US Dist. Ct. Dist. of Oregon, Oct. 14, 1938)
"The statements made by Atty. Valmonte are false and malicious. An affidavit executed by Atty. Zaida Ruby
Alberto is attached to and made part of this Reply as Annex "1". (Pages 92-93, Record on Appeal, id.)
On October 24, 1966, the trial court resolved the incident in a brief order holding that "(f)or the reasons stated in the plaintiff's
opposition to the motion for reconsideration, it is denied."
In its appeal, defendant reiterates insistently its position that the denial of its motion for postponement as well as the order
striking out the testimony of Ivo Lazzari were issued in grave abuse of discretion and should be set aside. Before going any
further, however, it may be mentioned that since defendant has not assigned as error, although it discusses in its brief, the
denial of its last motion for reconsideration, plaintiff contends that such failure constitutes a bar to any further consideration of
the merits of the arguments of defendant relative to the main denial-of-postponement and striking-out orders. To be sure,
there is technical plausibility in such pose of plaintiff, but considering the importance of the other matters involved in this case,
it would serve the interests of justice more if We passed on the merits of the substantial issues in this controversy. After all,
"this Court is clothed with ample authority to review matters, even if they are not assigned as errors in the appeal, if it finds
that their consideration is necessary in arriving at a just decision of the case." (Saura Import & Export Co., Inc. vs. Philippine
International Surety Co., Inc., L-15184, May 31, 1963, 8 SCRA 143.) And considering the inter-relation between the omitted
assignment of error and those actually assigned and discussed by defendant's counsel, We can apply here the ruling
in Hernandez vs. Andal, 78 Phil. 196, to the effect that "an unassigned error closely related to an error properly assigned or
upon which the determination of the question raised by the error properly assigned is dependent, will be considered by the
appellate court notwithstanding the failure to assign it as an error." (at pp. 209-210.)
Now, with respect to defendant's first assignment of error, We feel that the rather extended recital We have made above of the
incidents and proceedings related to the trial court's order denying defendant's motion for postponement of the hearing set for
September 28, 1966 is self-revealing. It argues against the charge that His Honor's order of denial was improper and unjustified.
The case had been pending for about three years and had actually suffered during that period even more than the usually
permissible number of continuances, quite often to suit the convenience of defendant's counsel. Notice of the September 28,
1966 schedule had been served on counsel the month previous. It must be assumed that due preparations and arrangements
were to be made since the receipt of that notice to insure the presence in Manila for the expected witnesses on the date set.
Under the circumstances, the excuse given by defendant that the witnesses could not leave their respective stations and places
of work to attend the trial is plainly unacceptable. There was enough time and opportunity for defendant to have made the
corresponding adjustments in the assignments of its personnel so as to enable its witnesses to be in court. The trouble is that
defendant relied on the assumption that the court could be made to wait until the volume and other conditions of its business
would permit it to comply with the schedule of the court. For an airline company engaged in international transportation and
presumably having all the facilities to have any of its employees available practically anywhere in the world at a moment's
notice, if it only took due care to do this, defendant's attitude cannot be countenanced.
What is more, the motion of September 24, 1966 gave no reason at all why defendant's witnesses supposed to come from
Rome would be unable to be at the trial. Even as late as the day of the hearing, September 28, 1966, the court could not be told
the reason for such inability. All that counsel could say was that she "intend(ed) to inquire and file the explanation" later. This
was not as it should have been, for the telex advising the Manila office that the witnesses would not be available was received
on September 22nd yet, and certainly there was enough time to investigate and find out the reason for such unavailability. And
as no justifiable reason could be advanced in support of the verbal motion for reconsideration. We cannot say that His Honor
acted improperly when he denied the same.
We reiterate, the case had been pending for more than three years, with so many postponements, and the least that defendant
should have done to merit favorable action on the part of the trial judge was to be ready with an explanation of its inability to
proceed with the trial, giving the detailed and good reasons therefor. As it is, there was actually no basis at all for the exercise
of discretion on the part of the trial judge in a manner favorable to it. Trials may be postponed because of the absence of
evidence only when such absence is justified. Mere absence is not a justification in itself. Section 4 of Rule 22 is sufficiently clear
on this point. It provides that "A motion to postpone a trial on the ground of absence of evidence can be granted only upon
affidavit showing the materiality of evidence expected to be obtained, and that due diligence has been used to procure it." This
means that it must be shown to the court that due diligence had been exercised in either securing the presence of the evidence
(witnesses) or preventing the absence thereof.
There is, of course, defendant's motion for reconsideration of October 19, 1966 praying for the setting aside of the court's
order of denial as well as the other order striking out the testimony of witness Lazzari. But, as already noted, the only excuse
given in said motion is that:
... The witnesses in question could not come because of certain circumstances that rendered their coming
over virtually impossible. Both witnesses, Ivo Lazzari and Saverino Casilli are employees of defendant
company at the Rome office. The air traffic in Rome has been particularly heavy this season. Some of the
personnel of the Lufthansa Rome office were on leave and these two employees had to assume some of the
duties of those employees who were on leave aside from performing their own regular duties. If they were
to leave their posts to come for the hearing on September 28, there would be grave disruption to the public
service and for this reason they were not able to come. ... (Page 47, Rec. on Ap., p. 32, Record.)
Indeed, even if such reason were given earlier on September 24, 1966 the court would have been as well justified in denying
the requested postponement. We cannot see any reason why, despite its having knowledge of the date of the hearing about a
month before, defendant did not see to it that its expected witnesses were not assigned to do duty on the day they were
supposed to appear in court. We cannot believe Lufthansa could be so undermanned that such a simple adjustment of its
personnel had to be "impossible."
Moreover, the Rome based witnesses were not the only possible witnesses of defendant. To begin with, Mr. C.H. Dehio, the
IATA Agency Manager, Far East and Australasia, Lufthansa German Air Lines, who, according to the record, had already
attended previous hearings as a prospective witness could have been made to go to court. There is nothing in the record to
show that he was also rendered incapable of doing so. Then there could still be local witnesses, it is no excuse that presenting
other witnesses would have disrupted the presentation of defendant's case, for parties may be allowed to maintain their own
way of presenting their evidence only where this can be done without injury to the expeditious disposition of the case and the
best interests of the administration of justice.
Coming now to the second assigned error regarding the striking out of the unfinished testimony of Lazarri, the Court is also of
the opinion and so holds that the trial court's action cannot be categorized as arbitrary or oppressive or as amounting to a
grave abuse of discretion. To be sure, this second order was but a logical consequence of the previous order denying
defendant's motion for postponement. With such denial, the next thing in order was to declare the presentation of evidence of
the defendant terminated. Accordingly, it was necessary to determine what evidence could be considered to be for the
defendant. And so when counsel for plaintiff asked the court to strike out the testimony so far given by Lazarri, there was
practically no alternative for the court but to grant the same. Indeed, defendant's counsel could not and did not offer any
objection thereto.
Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by
the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-
examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent.
The right of a party to cross-examine the witnesses of his adversary is invaluable as it is inviolable in civil cases, no less than the
right of the accused in criminal cases. The express recognition of such right of the accused in the Constitution does not render
the right thereto of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed
by the fundamental law. Subject to appropriate supervision by the judge in order to avoid unnecessary delays on account of its
being unduly protracted and to needed injunctions protective of the right of the witness against self-incrimination and
oppressive and unwarranted harrassment and embarrassment, a party is absolutely entitled to a full cross-examination as
prescribed in Section 8 of Rule 132 thus: "Upon the termination of the direct examination, the witness may be cross-examined
by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts
bearing upon the issue." Until such cross-examination has been finished, the testimony of the witness cannot be considered as
complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the case.
In the case at bar, however, We have opted not to rely exclusively on the foregoing considerations. In order to satisfy Ourselves
as to whether or not defendant stands to be irreparably prejudiced by the impugned action of the trial court relative to the
testimony of Lazzari, We have just the same gone over the transcript thereof. After considering the same, however, We are of
the impression that even his direct testimony, without taking into account anymore his answers to the cross-examination
questions of counsel for plaintiff, cannot be of much weight in establishing the defenses in defendant's answer. But it would
seem more appropriate to elaborate on this point when We come to the discussion of the mutual accusation of the parties that
the trial court erred in the portion of its discretion awarding damages to plaintiff.
The last issue submitted for Our resolution relates to the award of damages made by the trial court in favor of Ortigas against
Lufthansa in the amounts aforestated, as to which, as already noted at the outset, both parties have appealed taking opposite
positions. In this respect, the appealed decision made the following findings and discussion of the material facts:
In October, 1963, the Sharp Travel Service, the travel department of C. F. Sharp, Inc., the majority interest-
in-which is held by Rocha y Cia., Inc., General Agents of the defendant, Lufthansa German Airlines issued to
the plaintiff First Class Pan American Ticket No. 026492147076 to 81 which would take him from Manila,
the place of departure, to Hongkong, various cities in the United States, Europe, Asia, the Far East, and then
back to Manila, the place of destination. Ortigas' ticket for all these different legs of his journey was first
class.
He left Manila October 12, 1963, as scheduled. In New York, he decided to leave out some cities, included in
his original itinerary, to be in Hongkong on the 19th day of November, 1963, for several appointments he
had there. He went to the Trans World Airlines and had his Pan American ticket changed with First Class
TWA Ticket No. 115-460-451- 878 to 881. His TWA ticket was also first class for the entire trip from New
York to several European cities, including Rome, and thence to the Far East, with Manila also as the place of
destination.
Ortigas arrived in due course in Rome. To be sure he could fly first class to Hongkong on November 18,
1963, for his appointments there the next day, Ortigas repaired to the office of the Alitalia on Saturday,
November 16, 1963, to book passage. The man at the counter of the Alitalia office told him it had no flight
on Monday but the Lufthansa had. The man thereupon called up the office of the Lufthansa and, after
talking to an employee thereof, told Ortigas that the Lufthansa had no first class, but only economy, seats
available on its Monday flight.
Ortigas answered that he was not willing to take an economy seat and requested the employee to call up
other airlines. Then the phone rang. The employee answered and afterwards informed Ortigas that the
Lufthansa had a first class seat available for its Monday flight. Ortigas immediately asked him to get the seat
and to see to it that his ticket be confirmed and validated for the flight and a first class seat. The man
thereafter asked for Ortigas' passport and other travel papers and attached a validating sticker (Exhibit "D-
1") on flight coupon No. 4 (Exhibit "B") which corresponded to the Rome-Hongkong leg of his TWA Ticket
No. 115-460-461-878 The sticker recites:
Flight Res.
Carrier No. Date Time Status
LH 646 18 Nov. 12:35 P.M. O.K.
Wishing to be doubly sure, Ortigas again requested the Alitalia employee to call back the Lufthansa office to
recheck whether his ticket was really confirmed and validated. The man did so, after which he told Ortigas
that his ticket had been checked, validated, and confirmed as shown by the word "O.K." on the sticker. The
same employee later wrote on the cover of the plaintiff's ticket "10.15 Terminal-36, via Gioliti" (Exhibits "C"
and "C-1") and told him to be in the air terminal on Monday, November 18, at 10:00 A.M.
The following Monday, Ortigas checked out of his hotel and took a taxi to the terminal, arriving there about
9:30 A.M. He unloaded his baggage and proceeded to the counter in charge of the Lufthansa passengers.
The lady at the counter told him the Lufthansa had no space for him that day. Ortigas requested her to
check with her main office, which she did by calling it up. After calling, she apologized and said the plaintiff's
ticket was in order and would be confirmed and validated. On her request, Ortigas had his luggage weighed
and was given the free luggage allowance of a first class passenger. He was furthermore asked to pay 800
liras for bus fare and 700 liras as embarkation tax. Then Ortigas, along with other passengers, one of whom
was Amado Castro of the Development Bank of the Philippines, boarded a bus for the airport.
At the airport, the plaintiff handed over his ticket to the man behind the Lufthansa counter, who told him
everything was all right. At that juncture, the plaintiff heard his name called. He inquired if he was being
called from an employee of the Lufthansa and, on receiving an affirmative answer, said he was Ortigas. The
employee asked for his passport and other papers and, after examining his passport, where his Filipino
nationality appears, said he could not board the plane that day because his seat would be given to a
Belgian. Ortigas asked the man why he was doing that to him when his ticket was confirmed and validated
first class. The Lufthansa employee replied he was sorry but Ortigas could not leave.
Fearing he would have a recurrence of his heart ailment, Ortigas took a nitroglycerin pill which his doctor
advised him to take on occasions of stress. The plaintiff then told the Lufthansa man to bring the Belgian
over so that his papers may be examined to determine whether he had a preferred right to Ortigas' seat but
the Lufthansa employee turned down the request, raised his voice, and said if the plaintiff desired, he could
take an economy seat and he would be allowed a refund. Ortigas retorted he was not interested in a refund
and what he wanted was to travel first class in accordance with his ticket.
This argument occurred in the presence of the other passengers, one of whom was Amado Castro, and the
plaintiff felt embarrassed and humiliated because the Lufthansa employee was shouting at him and treating
him the way he did. Ortigas made another request, namely, that the employee call other airlines to inquire
if they had flights to Hongkong that day but he once more turned down the plea and insisted that Ortigas
travel economy, with the promise that he will be transferred to first class in Cairo and onward to Hongkong.
After promising to, the man went inside a room and, after a while, came out and assured the plaintiff he
would travel first class from Cairo to Hongkong because he sent a communication that it should be done. He
then jotted down some letters on Ortigas' ticket. The plaintiff replied he was not satisfied with the
arrangement but was constrained to agree to it because he had to be in Hongkong the next day, his luggage
was in all probability already inside the plane, he was not certain he could still secure a hotel reservation,
the manager of the hotel where he stayed having told him it would be hard for him to get another
reservation once he checks out, and he was assured he would be given first class passage from Cairo
onward.
Upon arrival in Cairo, the plaintiff requested the Lufthansa agent to transfer him to first class but the agent
said he could not and that he did not receive any communication from Rome to that effect. Ortigas also
requested the man to find out if there were other airlines having planes leaving that day but his request was
likewise denied. The man, however, promised that at Dharham, Ortigas will be transferred to first class.
Ortigas had no alternative but to continue traveling as before but he did so again under protest.
At Dharham, the plaintiff once more requested a transfer to first class but was also told by the Lufthansa
agent that he had not received any communication about the change and the request could not be granted.
The plaintiff had to travel perforce economy from Dharham. In Calcutta, Ortigas once again requested a
transfer or that he be assisted in booking passage on other planes but was also refused. It was only in
Bangkok when the chief steward asked him if he wanted to move over to first class but having been already
embarrassed and humiliated and the trip to Hongkong being only three hours, he said he would not as a
sign of protest.
In Hongkong, Ortigas protested against the treatment given him but was told by the Lufthansa office he had
to file his protest in Manila, it being the point of destination. He did so by means of a letter, dated
November 25, 1963 (Exhibit "F"), followed by another letter, dated December 20, 1963 (Exhibit "C"), and
not having received any definite answer, he brought this suit.
Although Ortigas' ticket for the flight from Rome to Hongkong was validated and confirmed by the Alitalia,
its act bound and obligated the Lufthansa. The Alitalia and Lufthansa are members of the International Air
Transport Association (IATA). It is admitted that as such member, the Alitalia can issue tickets for other
members of the association like the Lufthansa, Pan American World Airways, and others. Par. 10, Order of
April 29, 1964, and Exhibit "H", certification of the manager of the Alitalia. Aside from being members of the
IATA, the Alitalia and Lufthansa are pool partners and conduct a joint service with interchangeable flights
for the European-Far East-and Australia sectors. Par. 11, Order of April 29, 1964. Under the pool agreement
(Exhibit "DD") they undertake to adhere to the appropriate IATA regulations and to take measures to
provide district sales offices with every possibility for close cooperation in the promotion of the pool
services covered by the agreement, including "reservation and booking". They furthermore, in effect
confirm in the agreement that tickets of one, other than free and reduced tickets, may be validated by the
other.
Finally, Manuel Otayza, general manager of Filital, Inc., which is the general agent of the Alitalia in the
Philippines, testified that space reservation through telephone calls between airlines is permitted by IATA's,
"Manual of Traffic Conference Resolutions" and that telephone calls for reservation by one airline to
another is in fact accepted procedure in accordance with the official airline guide of the Air Traffic
Conference and International Air Transport Association (Exhibit "W").
The placing by the Alitalia of a sticker on the plaintiff's ticket obligated the Lufthansa to give him a first class
seat on its flight from Rome to Hongkong on November 18, 1963. The same witness, Manuel Otayza,
testified that the placing of a validating sticker on a ticket is standard airline procedure; that a sticker
changes are status of a reservation; that consequently while Ortigas' ticket was "open", that is, it had no
reservation for a particular flight between Rome and Hongkong, the moment a validating sticker was placed
thereon, stating the flight number of the airline, the day and hour of departure, with the letters "O-K", his
ticket was changed from an "open" to a "confirmed" or "validated" ticket; and that the sticker on Ortigas'
ticket meant that first class space was confirmed for him on Lufthansa flight 646 to Hongkong on November
18, 1963, at 12:35 P.M.
Aside from Otayza's testimony, it is admitted that in the stipulation of facts that "the letters "O.K." (Exhibit
D-2) appearing on the "Res. Status" box of the sticker (Exhibit D-1) attached to Flight Coupon No. 4 of TWA
Ticket No. 015-410:451-880 (Exhibit "D") means space confirmed, per IATA Resolution 275, page 4, Issue 2,
a photostatic copy of which is attached hereto as Exhibit "O"; that validate means to stamp or write on the
passenger ticket an indication that the passenger ticket has been officially issued by the carrier; that "the
placing of a sticker on a flight coupon is a revalidation thereof for the flight mentioned in said sticker and is
an alteration effected on said coupon, in accordance with the procedure laid down in IATA Resolution 275d,
Page 1, Issue 1, a photostatic copy of which is attached thereto as Exhibit "S";. and that "prior endorsement
was not necessary for Alitalia to revalidate TWA Ticket No. 115-410-880 Exhibit "D" because Alitalia is the
carrier originally designated in the "Via carrier" box of said ticket, in accordance with IATA Resolution No.
279, photostatic copy of which is attached hereto as Exhibit 'T'."
There was, therefore, a valid and binding contract between Lufthansa and the plaintiff to transport him as a
first class passenger from Rome to Hongkong on November 18, 1963, and this agreement the defendant
violated by compelling the plaintiff to travel as an economy passenger. It cannot be said the breach was the
result of an honest mistake or excusable negligence. There is evidence the defendant acted with `bad faith
and in wilful disregard of the plaintiffs rights.
Ortigas' ticket was confirmed on the early morning of November 16, 1963, more than 48 hours before his
departure on the afternoon of November 18. There was, therefore, ample time to send a telex message
from Rome to the defendant's main office in Frankfurt, which is only about 2-1/2 flying hours away, to
reserve a first class seat for the plaintiff.
At the terminal on Via Gioliti, he was again told that he had a first class seat, his luggage was checked in
divesting him of control thereof, and transported to the airport some 37 kilometers distant. He was in this
manner deprived of the opportunity of availing himself of the facilities of other airlines and compelled to
take the Lufthansa flight even against his will.
In the airport, although he, was found entitled to fly first class, he was told after his Filipino passport was
seen, that his seat would be given to a Belgian, without any reason or explanation whatsoever. His simple
request that the Belgian's ticket be produced and examined to see who had a better right to a first class
seat was turned down. So was his equally simple request that other airlines be called to find out if any of
them could accept him as a first class passenger to Hongkong that day. He was deceived into boarding the
Lufthansa plane at Rome by falsely assuring him he will be transferred to first class at Cairo, the next stop in
the flight. The same false and deceptive promise was given him at Dharham and Calcutta.
Indubitable proof of the defendant's bad faith is found in the fact that while its employee was assuring the
plaintiff he would be transferred to first class in Cairo, he was at the same time writing on his ticket the
following notation: "TRVLDY/c ROME HEG ROME ST", which means "Travelled economy class Rome to
Hongkong St", thereby barring Ortigas from asserting any right to demand first class accommodation. The
defendant's employee, therefore, knew all along the plaintiff would not travel first class, and yet he
deliberately made him believe he would be transferred to first class from Cairo to Hongkong.
From the circumstances, it is clear that the defendant not only breached its duty to the plaintiff but also did
not want to release him as a passenger and wished to hold on to him even if it would cause him
inconvenience and embarrassment. (Pages 97-109, Record on Appeal.) .
Disputing the foregoing conclusions, Lufthansa claims firstly that the Alitalia employee who validated and confirmed Ortigas'
reservation must have made a mistake because actually, he was informed by the Lufthansa Rome office that Ortigas could only
be waitlisted. Assuming, however, there was such an error, it has been indisputably proven that under the so-called pool
arrangement among different airline companies pursuant to the International Air Transport Association (IATA) agreement of
which Alitalia and Lufthansa are signatories, both companies are constituted thereby as agents of each other in the issuing of
tickets and other matters pertaining to their relations with those who would need their services, and since there can be no
question that on its face, the annotations made by Alitalia on the ticket here in dispute cannot have any (other meaning than
that the reservation of Ortigas for the Rome Hongkong flight was validated and confirmed, Lufthansa's disclaimer is
unavailing. Besides, it appears that when Ortigas checked in at the airport, the Lufthansa lady employee thereat told him, after
making the proper verification, that the reservation was correct. What is more, in the unconcluded testimony of Ivo Lazzari, the
striking out of which is questioned by Lufthansa, he admitted that it was a fact that the said reservation of plaintiff for first class
was confirmed, albeit he qualified that this was done already in the morning of November 18th, the day of the flight, almost at
the last hour. What seems to have happened was that somehow the first class accommodations for that flight were overboard
and Lufthansa tried to solve the problem by downgrading Ortigas to the economy class in favor of a Belgian, as Ortigas was told
by the Lufthansa employee who paged him over the public address system for the purpose just as he was about to go to the
departure area, with his luggage already checked and his overweight fees duly paid, so much so that they were already loaded
in the plane. Verily, such treatment given to plaintiff was completely wrong and absolutely unjustifiable. Nobody, much less a
common carrier who is under constant special obligation to give utmost consideration to the convenience of its customers, may
be permitted to relieve itself from any difficulty situation created by its own lack of diligence in the conduct of its affairs in a
manner prejudicial to such customers. It is Our considered view that when it comes to contracts of common carriage,
inattention and lack of care on the part of the carrier resulting in the failure of the passenger to be accommodated in the class
contracted for amounts to bad faith or fraud which entitles the passenger to the award of moral damages in accordance with
Article 2220 of the Civil Code. But in the instant case, the breach appears to be of graver nature, since the preference given to
the Belgian passenger over plaintiff was done willfully and in wanton disregard of plaintiff's rights and his dignity as a human
being and as a Filipino, who may not be discriminated against with impunity.
Lufthansa contends, however, that there could not have been any possible discrimination by reason of race against Ortigas
because from his appearance, said plaintiff can easily be taken for a European or white more than his own witness Amado
Castro and besides, there were other orientals in the same flight on that occasion. It is argued that any such policy would be
self-defeating, since it would certainly be damaging to its own business. Again, this ratiocination cannot carry the day for
Lufthansa, for what appears from the evidence in this case is not really a case of a general policy of discriminating against
orientals or non-whites, but a specific act of Lufthansa employee at the airport of giving preference to a Belgian after examining
Ortigas passport wherein his Filipino nationality is noted. Indeed, the fact that despite plaintiffs protestations and demand that
he be shown how it could happen that somebody else, particularly that Belgian, should be given his place when his reservation
was validated and confirmed and actually, he had already checked in and his baggage was already in the plane, nothing was
done to satisfy him, merely infused bad faith into the breach of contract already committed of depriving plaintiff of his reserved
accommodation. In other words, from the legal standpoint, such preference given to a European surely aggravated the damage
or injury suffered by plaintiff, but the very act alone of deliberately downgrading him despite his confirmed reservation for first
class accommodation is sufficient ground for relief. And considering that there are already recorded cases in this Court wherein
Filipinos have been similarly discriminated against by foreign airline company employees in the treatment of passengers this
new instance can easily be believed and correspondingly dealt with in fixing and assessing the liability of herein defendant.
As found by the court below what worsened the situation of Ortigas was that Lufthansa succeeded in keeping him as its
passenger by assuring him that he would be given first class accommodation at Cairo, the next station, the proper
arrangements therefor having been made already, when in truth such was not the case. Thus, instead of complying with the
request of Ortigas that other airlines be contacted to find out it they had first class space for him, the Lufthansa employee who
had indifferently told him about his downgrading paid very little attention if ever to said request. And to keep him from giving
the business to another company, he was made to believe that he would be given first class accommodation at Cairo. Although
molested and embarrassed to the point that he had to take nitroglycerine pills to ward off a possible heart attack, Ortigas
hardly had any choice, since his luggage was already in the plane. To his disappointment, when the plane reached Cairo, he was
told by the Lufthansa office there that no word at all had been received from Rome and they had no space for him in first class.
Worse, similar false representations were made to him at Dharham and Calcutta. It was only at Bangkok where for the first
time, Ortigas was at last informed that he could have a first class seat in that leg of the flight, from Bangkok to Hongkong. This
Ortigas rejected, if only to make patent his displeasure and indignation at being so inconsiderately treated in the earlier part of
his journey.
Lufthansa insists in its brief that it could have proven that there was no such "entrapment of a captive passenger" had it been
allowed the postponement it sought of the September 28, 1966 hearing. It is argued that there could have been no way by
which its Rome office could have assured Ortigas about what he would be given in Cairo, the flight being fully booked as it was
without any assurance of any first class seat being vacated by then. We are not impressed. In view of the insistence of plaintiff
that he be given the first class accommodation he had contracted and paid for, the least that the, Rome office should have
done was to communicate with Cairo and strongly urge that all possible effort be made to comply with his well grounded
request. As it happened, however, the Cairo office informed Ortigas when he arrived there that they had not received any word
at all from Rome. On the contrary, as pointed out by the trial court, contrary to the verbal assurance given Ortigas, the
Lufthansa employee made annotations on his ticket that he was travelling economy class from Rome to Hongkong. If, as
contended by Lufthansa, Ortigas was duly advised to make arrangements for transfer to first class as soon as he arrived at each
station on the way, why was such notation made that he was travelling up to Hongkong in economy class? All these only go to
show that any evidence of defendant tending to disprove the testimony of Ortigas would in any event have been inconclusive
or unreliable.
Likewise, Lufthansa maintains that it could have proven that Ortigas did not take offense at being downgraded, as in fact,
according to Lufthansa, he was in jovial mood throughout the trip enjoying his conversation and exchange of amenities with his
seatmate, who by strange coincidence happened to be the Manager of Lufthansa German Airlines for the district of Australia
and New Zealand holding said position since 1962.
1
Moreover, it is argued, the economy class accommodations are not much
different from first class and Ortigas was not delayed in his trip. We cannot see the point. A passenger contracts for first class
accommodations for many reasons peculiar to himself and pays a higher price therefor, and it is certainly not for the airplane to
say later, after it deprives him of his space in order to favor another passenger, that economy class is anyway just as good as
first class. That Ortigas was rightfully indignant is not difficult to imagine. No person in his normal senses and possessed of
human dignity would have been unperturbed and unruffled by the treatment he had received. More, he was under express
admonition of his doctor taking care of his ailing coronary condition to travel only in first class. Indeed, that he complained and
made himself emphatically clear while still in Rome is sufficiently substantiated in the record, as it was more or less admitted by
defendant's witness Lazzari when he testified that he heard about plaintiff's complaint that same day, November 18, 1963.
In the light of all the foregoing, there can be no doubt as to the right of Ortigas to damages, both moral and exemplary.
Precedents We have consistently adhered to so dictate. Beginning with Cuenca,
2
wherein the Court rejected the theory that an
air carrier is liable only in the event of death or injury suffered by a passenger, because, according to the Court, to so hold
would be tantamount to declaring the carrier "exempt from any liability for damages in the event of its absolute refusal, in bad
faith, to comply with a contract of carriage, which is absurd", We have uniformly upheld the right of a passenger to damages in
all cases wherein, after having contracted and paid for first class accommodations duly confirmed and validated, he is
transferred over his objection to economy, class, which he has to take in order to be able to arrive at his destination on his
scheduled time.
In the case of Nicolas L. Cuenca, then Commissioner of Public Highways of the Philippines, he boarded a Northwest plane in
Manila with a first class ticket to Tokyo, but upon arrival at Okinawa, an agent of the company rudely compelled him, over his
protest, to move over to the tourist class, which he had to do, so he could reach the international conference he was attending
on time. Under these facts, the Court held that the P20,000 awarded by the lower court to Cuenca "may well be considered as
nominal and also as exemplary, the Court of Appeals having modified the trial court's designation thereof as moral, saying it
should have been nominal.
In Lopez
3
, Honorable Fernando Lopez, then an incumbent senator and former Vice President of the Philippines, together with
his wife and his daughter and son-in-law, made first class reservations with the Pan American World Airways in its Tokyo-San
Francisco flight. The reservation having been confirmed, first class tickets were subsequently issued in their favor. Mistakenly,
however, defendant's agent cancelled said reservation, but expecting some cancellations before the flight scheduled about a
month later, the reservations supervisor decided to withhold the information from them, with the result that upon arrival in
Tokyo, the Lopezes discovered they had no first class accommodations and were thus compelled to take the tourist class, just
so the senator could be on time for his pressing engagements in the United States. In the light of these facts, the Court held
there was a breach of the contract of carriage and viewed as the element of bad faith entitling the plaintiffs to moral damages
for such contractual breach, the failure of the agents of the defendant to inform the plaintiffs on time that their reservation for
first class had long before been cancelled by mistake. According to the Court, such omission placed plaintiffs in a predicament
that enabled the company to keep the plaintiffs as their passengers in the tourist class, thereby retaining the business and
promoting the company's self-interest at the expense of, embarrassment, discomfort and humiliation on the part of the
plaintiffs.
In Air France vs. Carrascoso
4
plaintiff Mr. Rafael Carrascoso, a civil engineer who was going to Lourdes, France, as a member of
a religious group of pilgrims was issued by the Philippine Air Lines, as agent of the defendant Air France, a ticket for first class
round trip from Manila to Rome. From Manila, Carrascoso travelled first class, as per said ticket, but at Bangkok, the Manager
of the defendant airline forced him to vacate the first class seat because there was a white man who allegedly had a better right
thereto, without, however, showing him the basis for such preference. Upon these factual premises, the Court held:
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the
term `bad faith'. But can it be doubted that the recital of facts therein points to bad faith? The manager not
only prevented Carrascoso from enjoying his right to a first class seat, worse, he imposed his arbitrary will;
he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class
compartment just to give way to another passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is
understood in law. For, bad faith, contemplates a "state of mind affirmatively operating with furtive design
or with some motive of self-interest or ill will or for ulterior purpose." (Words & Phrases, Perm. Ed., Vol. 5,
p. 13, citing Warfield Natural Gas Co. vs. Allen, 59 S.W. (2d) 534, 538.)
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the
Court of First Instance, thus:
"The evidence shows that defendant violated its contract of transportation with plaintiff
inbad faith, with the aggravating circumstances that defendant's Manager in Bangkok
went to the extent of threatening the plaintiff in the presence of many passengers to
have him thrown out of the airplane to give the "first class" seat that he was occupying
to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he
(defendant's Manager) wished to accommodate, and the defendant has not proven that
this "white man" had any "better right" to occupy the "first class" seat that the plaintiff
was occupying, duly paid for, and for which the corresponding "first class" ticket was
issued by the defendant to him." (R.A., p. 74; emphasis supplied.) (at pp. 166-167.)
These precedents, as may be seen, apply four-square to herein plaintiffs case. Defendant's liability for willful and wanton
breach of its contract of carriage with plaintiff is, therefore, indubitable.
Coming now to the amount that should be awarded by way of damages to the plaintiff, it is also the teaching of the cases
aforecited that defendant is liable not only for moral but also for exemplary damages. As earlier stated, the court below fixed
the compensation for moral damages at P100,000 and the exemplary at P30,000. The Court believes that these amounts are
not enough.
According to the lower court:
Although the plaintiff has not held any elective public office, he has however, a distinguished record as a
private citizen, a lawyer, businessman, a civic and religious leader, a member of numerous government
boards and organizations as well as of local and international bodies, and is the recipient of awards and
citations for outstanding services and achievements.
He was, and still is, moreover suffering from a heart ailment and has been advised by his physician to travel
first class because it is more relaxing and comfortable. His position as chairman of the boards of directors of
the corporation he represented also required that he travel in that manner. He was, furthermore, carrying a
special passport issued by the Philippine Government to represent it and business corporations abroad.
His sickness and the need for him to travel in the most comfortable manner possible were made known to
the defendant's employee, but he paid no heed to them. Instead, he engaged Ortigas in a heated
discussion, summarily brushed off his protests and pleas, humiliated him, and tricked him into boarding his
employer's plane, endangering thereby his health and obliging him to take medicine to forestall an attack.
There is, finally, evidence that he was discriminated against because of his nationality for he was told to
yield his first class seat to a Belgian only after his passport was examined and his Filipino citizenship must
have been noted. .
Under the circumstances and measured by the criterion, jurisprudence has followed, the compensation the
plaintiff should be entitled to receive must be fixed at P100,000.00 as moral damages, P30,000.00 as
exemplary damages or corrective damages, and P20,000.00 as attorney's fees. (Pp. 111-113, Record on
Appeal.)
We have reviewed the evidence and We are convinced there is more than ample basis for these findings. But under the
circumstances revealed in the record, it is Our considered opinion that the award of moral damages should be increased to
P150,000.
We cannot go along with defendant's pose that in Cuenca the amount awarded was only P20,000, for the very obvious reason
that in that case what was involved was only one leg of the flight contracted for, namely, that from Okinawa to Tokyo, whereas
in the case not at bar, the offense was repeated four times, at Rome, Cairo, Dharham and Calcutta, with apparent cold
indifference of defendant's agents to plaintiff's plight. Besides, it appears that Cuenca did not appeal from the trial court's
decision fixing said amount, hence there was no occasion for the Supreme Court to award more. This was also what happened
in the Carrascoso case, where the plaintiff did not complain against the award of only P25,000-moral-and P10,000-exemplary
damages made by the trial court. It was Air France who claimed that these were even excessive. Verily, however, such,
discriminatory acts of the defendants in those cases which were not only violative of their contractual obligations but also
offensive to human dignity and national or racial pride constitute about the most justifiable ground for the award of moral
damages, for the resulting injury therefrom cannot but cause immense mental anguish, besmirched reputation, wounded
feelings, moral shock and social humiliation. (See Article 2217 of the Civil Code.) We reiterate, they are to be considered as
infecting with bad faith the breach of contract committed, under Article 2220 of the same Code. (Lopez vs. Pan Am., supra.)
Lufthansa suggests that compared to the P100,000 awarded to Vice President Lopez in the case aforementioned, the P100,000
given by the trial court to Ortigas are "grossly excessive". It does not appear to Us to be so. As pointed out by His Honor,
"although plaintiff has not held any elective public office, he has, however, a distinguished record as a private citizen, a lawyer,
businessman, a civic and religious leader, a member of numerous boards and organizations as well as local and international
bodies, and is the recipient of awards and citations for outstanding services and achievements." Indeed, under the proven facts
in the record, We cannot regard plaintiff in any inferior position vis-a-vis Vice President Lopez in the highest circles of Philippine
society and in the business and religious world, not to speak of his standing in government officialdom.
Beside there is again the disparity between then Lopez case and this one that here the offense, which, as in Cuenca, is
aggravated by the Lufthansa employee at Rome having falsely noted on the ticket that Ortigas was travelling in economy from
Rome to Hongkong,
5
was repeated four times in the same trip, namely in Rome, Cairo, Dharham and Calcutta. More
importantly, unlike in the case of Lopez, Ortigas was suffering from a weak heart and under doctor's advice to travel only in first
class, hence, his being compelled to stay in economy or tourist class during the major part of his trip, must have given him
added apprehensive feelings about his safety. And, moreover, it is to benoted that in the Lopez case, which was decided in
1966, aside from taking into account the personal circumstances of the plaintiff, the Court considered "the present rate of
exchange and the terms at which amount of damages awarded would approximately be in U.S. dollars", hence, We may not
justifiably do differently here..
Furthermore, it may not be amiss to mention here that in Zulueta vs. Pan American Airways Inc., 43 SCRA 397, the Court
awarded the plaintiffs: Zulueta, the husband, his wife and a minor daughter, a total of P775,000 as damages consisting of
P500,000 as moral, P200,000 as exemplary and P75,000 as attorney's fees, apart from actual damages. In that case, the
Zulueta's were coming home to Manila from Honolulu in a Pan-American plane. At Wake, however, where the plane arrived at
4:00 o'clock in the morning, Zulueta could not be found at flight time because, without letting anyone know, not even his wife
or daughter, he had relieved himself, according to him, at the beach behind the terminal. When at last, he was found, the Pan-
Am employee who first met him while walking back from the beach remonstrated him thus: "What in the hell do you think you
are! Get on that plane." This angered Zulueta who engaged the said employee in an exchange of angry words. In the
meanwhile, the pilot who had been tipped by a "man from the State Department", also a passenger in that flight, that there
might be a bomb in the plane and expressed apprehension for the safety of the flight unless Zulueta could be found, ordered
the unloading of the bags of the Zuluetas, and when three of the four of them had already been unloaded, he ordered Zulueta
to open them, but the latter refused. Another exchange of angry words followed, in the course of which, according to Zulueta's
evidence, the pilot went to the extent of referring to him and his family as "those monkeys". Ultimately, the plane left without
Zulueta, albeit his wife and daughter were on board, because the captain refused to allow Zulueta to board until after his bags
were opened and inspected, which Zulueta refused entirely to do. Although, said decision is not yet final, because of the
pendency of a second motion for reconsideration the Court has not yet resolved, the Court has already allowed the partial
execution of the judgment, thus enabling Zuluetas to collect already one-half of the amount or over P335,000, which amount,
according to the concurring and dissenting opinion there of the writer of the instant decision could be the least that should
anyway be allowed. Of course, the Court did not itemize the award but granted the same to the family as a whole, but it is
evident that in the final distribution, Zulueta would get for himself from at least P150,000 to not more than P200,00.
6

We hold that the foregoing considerations justify the increase of the award of moral damages from P100,000 to P150,000.
Finally, We have the dispute regarding the amount of exemplary damages awarded. In this respect, it is Our considered opinion
that defendant should Pay P100,000 instead of the P30,000 awarded by the trial court. The record of this case taken together
with what are revealed in the other similar cases decided by this Court, those aforediscussed, convinces Us that defendant, as
an airline, should be made to pay an amount that can really serve as a deterrent against a seeming pattern of indifference and
unconcern, and what is worse, of discrimination for racial reasons, discernible in the treatment of air passengers. This is not the
first case, and unless the proper sanctions are applied, it does not appear it is going to be the last yet, of instances wherein
Filipino passengers having validated and confirmed tickets for first class would be shoved to the economy class, over their valid
objections and without any regard at all to their feelings and convenience, only to favor other passengers presumed by the
airlines to be of superior race, hence, deserving preference. It is high time everyone concerned were made to realize that the
laws of the Philippines do not permit any act of discrimination against its citizens, specially when this accompanies a clear
breach of contractual obligations of common carriers whose business is affected with public interest and must be directed to
serve the convenience and comfort of the passengers. When any disregard of such laws is committed, the Supreme Court, as
the interpreter of such laws, must exact the commensurate liability which they contemplate.
"Exemplary damages are required by public policy, for wanton acts must be repressed. They are an antidote so that the poison
of wickedness may not run through the body politic." (Report of Code Commission, pp. 75-76) by authority of the decided cases
aforediscussed,
7
acts of similar nature as those herein involved fall within the category of those justifying the imposition of
exemplary damages pursuant to the codal concept just stated.
The rationale behind exemplary or corrective damages is, as the name implies, to provide an example or correction for public
good. ... In view of its nature, it should be imposed in such an amount as to sufficiently and effectively deter similar breach of
contracts by defendant or other airlines." (Lopez v. Pan-American World Airways, supra; see also Rotea vs. Halili, 109 Phil. 495;
People vs. Medroso, Jr., G.R. No. L-37633, Jan. 31, 1975, 62 SCRA 245; Cotabato Timberland Co. Inc. vs. Plaridel Lumber Co.,
Inc., 13 SCRA 235) Thus, all relevant matters considered, P100,000 of exemplary damages, which practically amounts only to
not more than $15,000 U.S. under the present rate of exchange, would serve the ends for which the liability has been
conceived.
WHEREFORE, the judgment appealed from is modified by raising the award of moral and exemplary damages to plaintiff Ortigas
to P150,000.00 and P100,000.00, respectively. In all other respects, including as to the payment of interests on the said
amounts, the same is affirmed.
Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.











Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16941 October 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MATEO DEL CASTILLO, ET AL., defendants,
JOSE ESTRADA, defendant-appellant.
Assistant Solicitor General Esmeraldo Umali and Solicitor Ceferino P. Padua for plaintiff-appealee.
Jose W. Diokno for defendant-appellant.
ANGELES, J.:
This is a review, on appeal by accused Jose Estrada, of Criminal Case No. 213-G of the Court of First Instance of Quezon,
wherein the death sentence was imposed upon the said accused by the court a quo in its decision dated February 11, 1960, the
dispositive portion of which reads as follows:
PREMISED on the foregoing considerations the Court hereby finds the accused Jose Estrada GUILTY beyond
reasonable doubt of the crime of kidnapping for ransom as defined and punished by Article 267 of the Revised Penal
Code, as ultimately amended by Republic Act No. 1084, with the aggravating circumstance of abuse of public office
(he being then municipal councilor of Gumaca), without any mitigating circumstance to offset it, and hereby
sentences him to die by electrocution as provided by law, ordering his heirs after his execution, to indemnify Elvira
Taada Principe or her heirs in case of her death, in the amount of P50,000.00, and to pay the costs.
For a prefatory statement of the background facts of the case, the details of which shall be set forth later as We review the
evidence, the following antecedents need be stated.
In the afternoon of February 27, 1956, Mrs. Elvira Taada de Principe, a young, prominent patron of Gumaca, Quezon, a
member of the rich, well known Principe family, was kidnapped by a band of Hukbalahaps, headed by one Commander Pepe
Alcantara. She was detained for 18 days in the Huk lairs deep in the mountains of the Bondoc Peninsula, and was released only
upon payment of a ransom of P50,000.00.
On account of the kidnapping, three(3) cases, filed one after another, were instituted by the Government against the known
suspects. We are presently concerned only with the last of these cases, which has culminated in this appeal. But for a better
understanding of this case, We have to make mention of them all in passing. And for this purpose, the statement made by the
trial court in the decision appealed from will suffice.
(a) The First Case. Criminal Case No. 137-G.
The first charge was a complaint initiated on March 11, 1956, by Lt. Lucas B. Apolonio of the 38th PC Company
stationed at Gumaca and lodged with the justice of the peace court of Gumaca which upon elevation to this Court
became Crim. Case No. 137-G for the complex crime of rebellion with kidnapping in which the information was filed
by Assistant Provincial Filed Severino I. Villafranca on April 24, 1956.
On June 4, 1956, Fiscal Villafranca amended his first information to name Arcadio Talavera as Lt. Alcantara in the
assumption that Lt. Alcantara was Arcadio Talavera.
Later on and after the Luis Taruc case was decided by the Supreme Court to the effect that there was no such
complex crime of rebellion with kidnapping, Fiscal Villafranca moved the Court to permit him to amend his
information and to charge the accused separately, one information for the crime of kidnapping for ransom.
On June 26, 1956, a second amended information in Criminal Case No. 137-G was filed by Fiscal Villafranca charging
all the accused headed by Arcadio Talavera alias Lt. Alcantara with the simple crime of rebellion.
On August 26, 1956, a third information was filed by Fiscal Villafranca eliminating Arcadio Talavera from the
information but adding Lt. Alcantara as one of the accused. The crime charged was still for the crime of rebellion.
The record shows that this third amended information was provisionally dismissed by the Court on October 16, 1956,
on the petition of Fiscal Villafranca and Special Prosecutor Capilitan on the ground that the evidence against the two
accused Doroteo Edungan and Buenaventura Miel, who were then the only accused placed in the custody of the law
for rebellion, were not sufficient to convict them of rebellion.
The record further shows that the entire case was provisionally dismissed on the ground that the rest of the accused
had not yet been arrested, subject to the proviso that any time the case may be revived for rebellion against those
that might be arrested later. This Case No. 137-G is therefore a closed case, at least provisionally as a case for
rebellion.
(b) The Second Case. Criminal Case No. 164-G, for Kidnapping for Ransom.
On June 26, 1956, Assistant Provincial Fiscal Villafranca filed a separate information for the kidnapping for ransom of
Elvira Taada de Principe, naming the thirty-three accused in Crim. Case No. 137-G as defendants. This case was
docketed as Criminal Case No. 164.
The record shows that on August 17, 1956, this Court upon petition of Provincial Fiscal Jose O. Lardizabal dismissed
the case against Arcadio Talavera as Lt. Alcantara and Provincial Fiscal Lardizabal filed an amended information on
August 16, 1956, against Lt. Alcantara and the thirty-two persons named in the first information. In other words,
Arcadio Talavera alias Lt. Alcantara was eliminated but Lt. Alcantara was continued in his stead.
The accused Antonio Campaniero alias Nelson de Rosas was discharged from thisinformation to be utilized as witness
for the government in Crim. Case No. 213-G.
The case against Buenaventura Miel was dismissed on March 19, 1957, for insufficiency of evidence.
The case against Gonzalo Mallare alias Commander Romy was dismissed on December 5, 1957, for insufficiency of
evidence.
On February 25, 1958, the case against Doroteo Edungan was dismissed upon petition of Special Prosecutor Victor
Santillan and Artemio Alejo and of Assistant Provincial Fiscal Eufemio A. Caparros for insufficiency of evidence.
On February 26, 1958, the accused Quirino Ravela alias de Leon pleaded guilty as accessory after the fact in the crime
of kidnapping for ransom of Elvira Taada and was sentenced accordingly.
On February 1, 1960, the accused Clodualdo Camacho pleaded guilty as accessory after the fact and was sentenced
accordingly.
Isidro Alpay alias Commander Bulaklak, Domingo America alias Laguimay, Ireneo Capisonda alias Erning alias Lope,
Benjamin de Jesus @ Amin, Ben Ramirez @ Ben, Pedro Martinez @ Pedro, Santiago Napoles @ Nomver, @ Jaime @
Jimmy @ Jimay, @ Gelacio @ Elioso, @ Liwayway, @ Berna, @ Timoteo, @ Juan, @ De Guzman, @ Torres, @
Valencia, @ Bayas and @ Ladres have not yet been placed in the custody of the law. On February 27, 1958, the case
against those who are still at large was dismissed provisionally.
The accused Alfredo Reyes @ Commander Fred, Emiliano Blasco @ Commander Emy, Rodrigo @ Commander Tony,
Victoriano Dayunot @ Torio and Panfilo Rosales @ Predo @ Banaag are all reported dead.
For all purposes therefore, Case No. 164-G may be considered a terminated case.
(c) The Third Case. Crim. Case No. 213-G, for Kidnapping for Ransom.
On October 10, 1956, a third case was filed by a special prosecutor from the Department of Justice, Antonio O.
Capilitan, after the surrender of some of the Huks who participated in the kidnapping of Elvira Taada de Principe. In
this third case, the special prosecutor accused Mateo del Castillo, Jose Estrada and Julio Ceribo and several others
under assumed names or aliases of kidnapping for ransom and this case was docketed as Crim. Case No. 213-G. This is
now the case under consideration of the Court in which the accused Jose Estrada was the only accused tried by the
Court.
The accused Jose Ceribo was discharged from this case to be utilized as witness for the government.
The accused Mateo del Castillo has been reported dead.
The accused Romaguerra Doe @ Romaguerra was identified as Francisco Rabi and Heling Doe @ Heling was identified
as Angel Veran. They both pleaded guilty upon their arraignment on February 1, 1960, as accessory and were
sentenced accordingly.
The accused Pete Doe @ Pete and William Doe @ William were identified as Francisco Lisay and Quintin Magdaong.
They also both pleaded guilty as accessory and were sentenced accordingly.
The accused Carding Doe @ Carding is reported dead.
As to the other accused, Teddy Doe @ Teddy, Nato Doe @ Nato, Mike Doe @ Mike, Inso Doe @ Inso, Essi Doe @ Essi,
Kaloy Doe @ Kaloy, Loring Doe @ Loring, and John Doe, they are still at large and have not yet been placed under
arrest.
During the trial of this case No. 213-G the defense of Estrada asserted that the accused Lt. Alcantara was already in
the custody of the Philippine Constabulary and was subpoenaed as witness for the defense but notwithstandingthe
efforts of the Court this accused has not been produced by the authorities. He is still charged in Crim. Case No. 213-G
but his case has not yet been set for hearing.
The foregoing statement of the genesis of Criminal Case No. 213-G explains why the decision appealed from concerns only Jose
Estrada (herein appellant).
Accused Jose Estrada was tried alone by the court below under the corresponding information, alleging as follows:
That on or about the 27th day of February, 1956, in the municipality of Gumaca, Province of Quezon, Philippines and
within the jurisdiction of this Honorable Court, the aforementioned Accused, together with (1) LT. ALCANTARA, (2)
ROMY DOE @ Comdr ROMEO, (3) JOSE MALUBAY @ Comdr PEPE, (4) GALICANO MANAOG @ Comdr BULAKLAK, (6)
DOMINADOR AMERICA @ LAGUIMAY, (7) ALFREDO REYES @ Comdr FRED, (8) EMILIANO BLASCO @ Comdr EMMY, (9)
RODRIGO DOE Comdr TONY, (10) CLODUALDO CAMACHO @ EFREN, (11) VICTORIANO DAYUNOT @ TORIO, (12)
IRINEO CAPISONDA @ ERNING, (13) DOROTEO EDUNGAN @ DOROT, (14) BUENAVENTURA MIEL @ TURA, (15)
BENJAMIN DE JESUS @ AMIN, (16) BEN RAMIREZ @ BEN, (17) PEDRO MARTINEZ @ PEDRO, (18) SANTIAGO NAPOLES
@ NOMER, (19) PANFILO ROSALES @ FREDO @ BANAAG, (20) ANTONIO CAMPANIERO @ NELSON DE ROSAS, (21) @
JAIME @ JIMMY @ JlMAY, (22) @ GELACIO @ ELIOSO, (23) @ LIWAYWAY, (24) @ BERNA, (25) @ TIMOTEO, (26) @
JUAN, (27) @ DE DUZMAN, (28) @ MENDOZA, (29) @ DE LEON, (30) @ TORRES, already charged with Kidnapping in
Criminal Case No. 164-G, under the same facts herein charged, conspiring and confederating and mutually helping
each other, did then and there wilfully, unlawfully, and feloniously through force, threats and intimidation, kidnap
ELVIRA TAADA DE PRINCIPE and CARMEN NOCETO, take and carry them away from their dwellings to an
uninhabited far distant forest in the mountain of Bondoc Peninsula for 18 days confinement under their custody and
control for the purpose of demanding ransom in the amount of FIFTY THOUSAND PESOS (P50,000.00) Philippine
currency, which the said Accused did in fact receive on the 16th day of March 1956 in consideration of which amount
said kidnapped persons were released to the damage and prejudice of the said offended parties in the said amount.
That the following aggravating circumstances are present in the commission of the offense:
(1) Superior strength; (2) in band; (3) use of unlicensed firearms; (4) in an uninhabited place; and (5) use of Army
uniforms and other insignias for disguise.
Upon arraignment on November 27, 1956, accused Jose Estrada refused to make any plea to the information against him;
hence, the trial court entered for him a plea of "not guilty." His petition for bail had been denied; and since then, Jose Estrada
has remained in confinement.
Our own examination of the record revealed that the case of the People was established thru the testimonies of 12 prosecution
witnesses, namely: Elvira Taada de Principe and Carmen Noceto, the kidnap victims; Reynaldo Principe, Elvira's husband;
Marciano Principe, Reynaldo's father; Petra Maego, Basilio Angulo, Beato Glinoga and Jesus Letargo who all had something to
do with the negotiations between the kidnappers and the family of the victims, which led to their subsequent release of the
kidnapped victims; Antonio Campaniero and Julio Ceribo who were both discharged from the information to be utilized as state
witnesses; Gonzalo Mallare, as against whom the case was dismissed for insufficiency of evidence; and Col. Francisco del
Castillo, Provincial Commander of Quezon at the time the information in this case was filed in court. Stripped of unessential
details, the testimonies of the principal witnesses may individually be summarized as follows:
TESTIMONY OF ELVIRA TAADA DE PRINCIPE:
Elvira Taada de Principe was inside her store on the ground floor of the house of her father-in-law in Gumaca, Quezon, at
about 4: 00 o'clock in the afternoon of February 27, 1956. She was busy estimating her laundry bills. Three (3) men wearing
uniforms similar to those worn by soldiers in the army arrived and entered her store. One of them first inquired for the price of
a pack of "Chelsea" cigarettes, and then asked for one. As Elvira reached for the pack of cigarettes, the other two suddenly
grabbed her hands and pointed their pistols to her. They pulled her out of the store and dragged her towards the bodega of her
father-in-law, Marciano Principe, and then on to the railroad track going to the direction of the elementary school of the town.
The two uniformed men were later substituted by two others in civilian clothes who, after holding Elvira by the hand on each
side, continued running with her through the coconut plantations toward the mountains. There were gun fires that followed,
but the men continued running, taking Elvira Taada de Principe along with them. They told her not to be afraid, as they were
just making a "show". They stopped running, however, when the firing ceased; and soon other persons came running towards
them and joined their group. One of them gave Elvira a pair of shoes and stockings. She put them on before they continued
their way, deeper into the mountain. The leader ordered two of his men to buy bread for Elvira, but they were not able to buy
any. Instead, she was given candy. Then they continued walking all through the night stopping only at midday of the 28th of
February when they reached a sawmill site. From there, they continued walking again at dawn of the following day until they
came upon a copra kiln; and there the men prepared food. Thereafter, they continued hiking once again until they reached the
Huk lairs. There were five huts at the place, all without walls. Elvira Taada de Principe and Carmen Noceto were kept in the
one located at the center for two weeks.
There were sixteen (16) men in the group that took Elvira and Carmen to the mountains, including the three (3) who originally
took Elvira out of her store in Gumaca. Elvira came to know their names because they had nameplates on their breasts. The
leader who earlier asked for a pack of "Chelsea" cigarettes at her store was Lt. Alcantara, while those who dragged her out
of the store were Gomez and Mendoza. Not long after their arrival at the place of the huts, the kidnappers divided into two
groups. Lt. Alcantara soon left the place with seven (7) men, leaving the eight (8) others to guard Elvira Taada de Principe and
Carmen Noceto. These men left behind were Ladres, Bayas, Gomez, Torres, De Leon, Villazar, Delgado and Mendoza. Lt.
Alcantara and Julio Ceribo came back to the place every now and then, bringing food and letters from Elvira's husband.
After the lapse of about two weeks, Lt. Alcantara finally told Elvira that she would be released. He showed her letters from her
husband, her father and her brother. And on March 15, they left the huts at about 11:00 o'clock in the morning, with Carmen
Noceto and others. They moved to another place where they waited for Lt. Alcantara's other companions. In due time, they
arrived, and Elvira and Carmen Noceto were then taken to another place which they reached after about an hour's walk. There
they met Angulo, Letargo, Erea and Francia who had come all the way from Gumaca and brought the P50,000.00 ransom
money. Elvira counted the money, then delivered the same to Lt. Alcantara. Thereafter, Elvira and Carmen Noceto were
released. They were not accompanied by anyone of the kidnappers. Lt. Alcantara merely instructed them to follow the course
of a river until they could see a house, and there to find one who could guide them to Barrio Magisian, Lopez, Quezon. They
followed these instructions and reached the road in said barrio, where they were picked up by a station wagon which took
them back to Gumaca at about 5:00 o'clock in the afternoon of March 16, 1956.
TESTIMONY OF CARMEN NOCETO:
In the afternoon of February 27, 1956, Carmen Noceto was at the house of her sister near the elementary school in Gumaca.
She saw two persons running on the railroad track, leading Elvira Taada de Principe by the hands. Suddenly, a "soldier", also
on the railroad track and called her out of the house. Pointing his gun at her, the "soldier" pulled her by the hand and dragged
her along, telling her that she would just accompany Elvira Taada de Principe. She could not refuse; she was greatly terrified.
Her father who was then present was stunned for the "soldier" also pointed his gun at him. She was taken, along with the group
of Elvira Taada de Principe, to the far away mountains she had never reached before. They walked all night, then for two days
more, resting only when they took their meals. They finally stopped walking, only when they reached a place where there were
five huts without walls. She and Elvira Taada de Principe were kept in one of these huts together during the eighteen days that
they were held in captivity by their kidnappers. They were allowed to go home only after the arrival of the P50,000.00 ransom
money which was brought by Manoling Letargo, Basilio Angulo and two others whom she did not know. Before their release,
they were guarded by several men, among them De Leon, Angelo Veran @ Villazar, Antonio Campaniero @ Nelson and Julio
Ceribo @ July.
Carmen Noceto did not know Elvira Taada de Principe before the kidnapping. She came to know her only when they were kept
together in one hut in the mountains. They became intimate with one another later, and Elvira allowed her to read the letters
sent to her by her husband while she and Elvira were held captives.
TESTIMONY OF BEATO GLINOGA:
Beato Glinoga was asleep in his house in Barrio Villa Taada, Gumaca, on the night of March 4, 1956, when he was awakened
by his barriomate, Leon Calvelo. The former was informed by the latter that some soldiers wanted to see him. Glinoga obliged,
and went with Calvelo to the latter's place which was about half a kilometer away, to meet the soldiers referred to by Calvelo.
He did meet them at the place which was dark; so much so that altho he spoke with one of the supposed "soldiers", Glinoga
was not able to recognize any of them. Nevertheless, the person with whom Glinoga spoke introduced himself as Lt. Alcantara,
at the same time identifying himself and his companions as the ones who had kidnapped Elvira Taada de Principe. Lt.
Alcantara then asked Glinoga if he could deliver a letter to the Principes in Gumaca, to which Glinoga consented. Lt. Alcantara
warned him not to reveal that he had seen them to anybody. He also instructed Glinoga to see accused Jose Estrada first before
delivering the letter, so that he (Estrada) could accompany him to the house of the Principes, and then to the mountains in Villa
Taada where Lt. Alcantara would meet them later, for according to the letter, Estrada knew what it is all about. Glinoga was
warned further, that should he fail to contact Estrada, he should not tell anybody about it, but should proceed directly to the
house of the Principes in Gumaca, and then meet him (Lt. Alcantara) later in the mountains.
Pursuant to such instructions, Glinoga left Villa Taada early the following morning and proceeded to the town of Gumaca, to
deliver Lt. Alcantara's letter to the Principes. He tried to locate Estrada when he reached the town, but he was not able to find
him; so, Glinoga went directly to the house of Marciano Principe and delivered the letter to the old man in the presence of the
other members of the family. Marciano Principe immediately prepared a letter in answer to Lt. Alcantara's note. He then gave it
to Basilio Angulo who was at the house of the Principes at the time, requesting Angulo to go with Glinoga back to Villa Taada
and see Lt. Alcantara. Angulo agreed. He went with Glinoga to the mountains in Villa Taada. They reached the Huk lairs at
about 7:00 o'clock in the evening of that same day, and they were met by Lt. Alcantara after Glinoga had signalled three times
with his flashlight. Basilio Angulo then had a conference with the Huk leader. Asked by one of Lt. Alcantara's men where
accused Estrada was, Glinoga gave the information that he was not able to find him in town.
TESTIMONY OF ANTONIO CAMPANIERO @ NELSON DE ROSAS:
Antonio Campaniero joined the Hukbalahap organization on August 25, 1952, under the Huk name @ Nelson. He served under
various Huk Commanders in the field. From 1955 up to the time of his surrender on July 18, 1956, he was under the command
of Huk Comdr. Teddy Corazon, head of the Organizers Brigade (OB), operating near the mountains of Gumaca, Quezon.
Sometime during the first week of February, 1956, Comdr. Teddy ordered Nelson and another Huk, @ Fredo, to contact the
accused, Councilor Jose Estrada of Gumaca, and inform the latter that Huk Lt. Alcantara (head of the "Tadtad Unit or G-Men")
and Comdr. Teddy Corazon wanted to meet him (Estrada) in Barrio Biga. Nelson and Fredo complied with the order; Fredo
talked with Estrada in Gumaca, as Nelson stood guard. Estrada showed up in Barrio Biga, three days later, at about 2:00 o'clock
in the afternoon. Aside from Lt. Alcantara and accused Jose Estrada, there were other Huks present during the meeting, among
them, Comdr. Teddy, Comdr. Emy, @ Romy, @ Fredo, @ July, @ Sonia and @ Nelson. Estrada was asked by Lt. Alcantara who
the richest man in Gumaca was, and the former answered that "he would suggest the Principe family" (ang maimumungkahi ko
po ay ang pamilya Principe). Asked by Lt. Alcantara if he was referring to Reynaldo Principe, Estrada answered that if Reynaldo
Principe were the one to be kidnapped, it would be difficult for the family to ransom him for the reason that most of the
properties of the Principes were in his name. Instead, accused Estrada recommended his wife, Elvira Taada de Principe, who
could easily be ransomed. Lt. Alcantara agreed to the suggestion of Estrada saying, "if that is the case, yes, and you will be
informed when the kidnapping will take place," to which Estrada answered: "All the time you can depend upon me." Estrada
then left the place that same afternoon at about 5:00 clock, after he and Lt. Alcantara had talked about politics.
Sometime thereafter, Comdr. Teddy informed Nelson that the latter, together with others in their Unit, would be "borrowed"
by Lt. Alcantara to supplement the men of the "Tadtad Unit" and join them in the execution of the plan to kidnap Elvira Taada
de Principe. And thenceforth, Nelson began receiving orders directly from Lt. Alcantara.
In the afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio Biga and entered the town proper of
Gumaca, Quezon. Alias Essi, @ Loring and @ Nelson stood guard near the railroad station. After taking Elvira Taada de
Principe, they fled and went through the mountains for three days and three nights, with short stops to rest at some points on
the way. They hid Elvira Taada de Principe in Barrio Laguio between the municipalities of Lopez, Gumaca and Macalelon.
Carmen Noceto was also taken by them to the mountains with Elvira that same day.
On July 18, 1956, @ Nelson surrendered to the authorities. He did not know then what the penalty for kidnapping for ransom
was. He was investigated in Camp Natividad on July 22. Having just surrendered then, he was afraid to be implicated in the
Principe kidnapping therein. Later, he was investigated again in Lucena. He then decided to tell the truth and did not mind
anymore the consequences. He gave his statement (Exh. X) wherein he revealed his participation in the Principe kidnapping
case and the role played therein by accused Jose Estrada, on September 5, 1956. Having known the truth from the said
statement, both the investigator and the prosecutor then told Nelson that he would be a witness against Estrada after his
discharge from the information. He was later arraigned on November 20, 1956.
In the month of January, 1957, Antonio Nieva, brother of then Chief of Police, Ricardo Nieva of Pasay City, met @ Nelson near
the house of Col. del Castillo, Provincial Commander of Quezon. They had a sort of conference. Nieva promised Nelson to work
out his case with Malacaang, should he agree not to testify against Estrada in court. Nieva urged him to deny the truth of his
statement (Exh. X) when the trial comes, and to testify that he had executed it only because he had been maltreated, rewarded
and given promises. Nieva gave him P20.00 on that occasion.
Nelson at first denied having written Exhibit 2 (a letter signed by Nelson addressed to Estrada, on January 24, 1957), wherein
Nelson appears to be telling Estrada that they were then in a bad fix; that Col. Castillo had come to know that Congressman
Roces of the CAFA was coming to see them, and he believed that Estrada was the one who had written the congressman, and
then caused Nelson and his companions to make a "turn about;" that because of that suspicion of Col. Castillo, they were no
longer permitted to talk with any visitors; that Nelson, Gregana and Pedro Masilungan Estrada's former adversaries in the
Barretto case have all agreed to make a "turnabout", and that the Fiscal had been informed that they really did not know
Estrada. Later, however, he admitted that he was the one who wrote it. On January 25, 1957, Nelson sent Estrada another
letter, Exhibit 3 (Nelson appears to be urging Estrada to write and complain to the CAFA; to give them help so that they may be
able to deny the truth of their "statements" which the PC investigations had forced them to sign; and to request Nieva to
intercede in their behalf in Malacaang in order to put an end to the doings of the Provincial Commander in Quezon). On
January 27, 1957, Nelson wrote another letter, Exhibit 10 (styled "to whom it may concern," Nelson appears to be declaring
here that he and his companions knew nothing about the kidnapping of Elvira Principe, much less, the alleged conference with
Estrada regarding the same; that they signed their "statements" only because they have been threatened, the investigators
telling them that they would be prosecuted if they would not cooperate with the Government; that they had been required to
drink plenty of water; that they had been made to testify against persons like Estrada, with the promise of a bright future and
of money; and that Col. Castillo was really mad at Nieva. Nelson appears to be requesting Antonio Nieva also for "cigarette
money" and for his letters to be returned to him). Nelson wrote another letter on the same date, which he signed with the
name of Pedro Masilungan. (This letter, Exh. 1, purports to show that Pedro Masilungan had also been forced to sign his
"statement" and to testify against Estrada by Capt. Zita). Nelson explained that he wrote to Estrada because he had been
coerced by two insular prisoners who were allowed to enter his cell, warning him that his life would be in danger, should he fail
to do so. He wrote Exh. 3 only after the said prisoners had talked to him and to Melchor Gregana and Julio Ceribo who were
with him in the same cell at the time.
A few days thereafter, probably on January 31, 1957, Nelson, along with Julio Ceribo, @ Sonia, Pedro Masilungan, Antonio
Batanes and others, was taken by Col. Castillo before Col. Yan at Camp Crame. He then affirmed the truth of the contents of his
statements (Exh. X) before the said official. He did the same when he was taken before General Cabal who examined him on
the said statement. He, likewise, affirmed the truth thereof before President Ramon Magsaysay before whom he was seen in
the office of Secretary Balao at Camp Murphy. He did not mention the letters he had written to Estrada then, because the
contents of said letters were false and he was afraid to tell any lies before the highest authority of the land. He stated in those
letters that he did not know Estrada, because he merely wanted to make Estrada believe that he would really make a "turn
about". But the same is false; it was only the idea of Antonio Nieva. Nieva had told them that Estrada was ever willing to give
them help, that is why Nelson and his companions agreed to mulct him. Thus, in one of the said letters, Nelson had asked
Estrada for "cigarettes money".
Nelson had been discharged from the information on March 20, 1957; but he was still under PC custody because he had
demanded such protection pending the termination of the case.
TESTIMONY OF JULIO CERIBO:
Julio Ceribo testified that he was a surrendered Huk; he joined the Hukbalahaps in 1946; he served under various Huk
Commanders in the field; in 1953, he was assigned as a member of the unit headed by Lt. Alcantara with the old man
Mateo del Castillo, the highest in command; he knew about the kidnapping of Elvira Taada de Principe because he was with Lt.
Alcantara when they kidnapped her; but even before the actual kidnapping, he already knew about it because there was a
conference in Barrio Biga where it was agreed to kidnap her because she was the one pointed to by Estrada; first, Lt. Alcantara
approached Comdr. Teddy Corazon, and then the latter ordered Huks Nelson and Fredo to contact Estrada in the poblacion;
three days after, Estrada came to Barrio Biga and conferred with Lt. Alcantara, Comdr. Teddy Corazon, Comdr. Emy and others;
Estrada was asked by Lt. Alcantara then as to who was the richest in Gumaca, and Estrada suggested Elvira Taada de Principe
because she could easily be ransomed; Estrada explained that if it were her husband to be kidnapped, it would be hard for the
family to ransom him because the properties of the Principes were in the name of Elvira's husband, Reynaldo Principe; Lt.
Alcantara agreed, and about one week after that conference, they came down to Gumaca and took Elvira; he stood guard in
one of the streets in the town during the kidnapping; one of his companions took along Carmen Noceto on the way so that
Elvira Taada de Principe would have a companion; it was about 5: 00 o'clock in the afternoon of February 27, 1956, when they
kidnapped Elvira; there were 16 of them who executed the said kidnapping, among them, Lt. Alcantara, Nato, Mike, Heling,
Nelson, Emilia, Carding, Payat, Efren, another Efren and Del Moro; they took Elvira and Carmen to the mountains between
Macalelon and Lopez, Quezon; they hid them there for two weeks in one of five huts they built; Elvira was later ransomed by
her husband; Basilio Angulo and three other persons brought the ransom money of P50,000.00, after which both Elvira and
Carmen Noceto were released; they kidnapped Elvira Taada de Principe because they were in need of a large sum of money;
on August 7, 1956, he was with the Huks that had an encounter with the government forces in Usiwan Lucban, Quezon; there
he was wounded in the right foot, and soon, unable to withstand the deprivations anymore, he decided to have a "new life"; he
proposed to surrender to the Mayor of Majayjay, Laguna, thru the intercession of Juan Cuates of Barrio Botocan; he had no
chance to talk with the Mayor, however, because when they came to get him, the BCT soldiers were the ones who got hold of
him first, and they took him directly to their headquarters in Majayjay Laguna; from there, he was taken to Canlubang where he
was questioned as to when he first joined the Huks; then he was transferred to Lucena City where he was investigated by Eddie
Recuenco; after that he was brought to the Court of First Instance of San Pablo where he was charged of rebellion; but later he
was discharged from the information thru the efforts of his brother who secured the services of Atty. Ribong; his brother
showed to him his discharge papers, but he was still kept in the stockade at Lucena City with Nelson, he was not released; and
when he was investigated there in connection with the kidnapping of Elvira Taada de Principe, he had to admit; at first he
wanted to deny it, but when Nelson pointed to him, he was frightened and had to tell the truth that he was with the group
that kidnapped Elvira that is why he was included in the information in this case; but when he was arraigned, he pleaded
"not guilty", assisted by one Atty. Gonzales; he pleaded "not guilty" to the charge because he knew that kidnapping is a very
serious crime, for even up in the mountains they had been told; that the penalty for kidnapping was severe and "we had better
be dead than caught alive;" but the truth is he was really with the kidnappers who took Elvira Taada de Principe; he knew Atty.
Franco, the latter introduced himself to him and told him that he was his counsel; they first met in Lucena City, then for a
number of times later in Gumaca, Quezon where they talked about his case; he told him (Atty. Franco) that he could not deny
the circumstances because they were all true; they met again after that in the stockade in Lucena when Atty. Franco brought
some typewriter papers which he was asked to sign; the papers (Exh. 16) was shown to him, but he would hardly read it
because it was held by Atty. Franco far from his face; they were in the kitchen of the stockade then, and Atty. Franco told him
to sign it at once because the soldiers might come; he insisted that he should sign it because he was his lawyer, and it was for
his benefit for his acquittal; but he had no hand in the preparation of that document, and its contents are not true; he met
Atty. Franco again in Majayjay later when he was granted leave; Atty. Franco instructed him to go to Manila because he would
prepare an affidavit, but he did not go there, he left Majayjay immediately even if he had not fully enjoyed his 19-day leave; he
later told Capt. Alejo (government prosecutor) that Atty. Franco had made him sign Exh. 16; its contents, except for his age, are
not true; for the truth is that he knew everything about the kidnapping of Elvira Taada de Principe; the document was already
prepared when it was shown to him by Atty. Franco, and the latter compelled him to sign it; when he was at the stockade in
Lucena with Nelson, he knew that Nelson was writting letters, and that he (Nelson) was sign their names on the letters, but
Nelson never showed the letters to him; he came to know the letters to accused Estrada only when the said letters were later
discovered; he knew Col. Yan, he was taken before him at Camp Crame; Col. Yan asked him whether or not his declarations in
his statement (Exh. H) were true, and he confirmed them; he was next taken before Gen. Cabal, before whom he declared that
he had executed Exh. H voluntarily, i.e., that he was not maltreated by the PC; later he was taken before the late President
Magsaysay in the office of the Secretary Balao, and there, he also affirmed the truth of his statement before the President.
TESTIMONY OF GONZALO MALLARE:
Gonzalo Mallare testified that he was a former Huk, he surrendered to the authorities on March 20, 1957; he joined the Huks in
Manila, as early as April, 1948; in December of that year, he was apprehended by the PC, and was maltreated; they released
him, later, however, because the Communist Party had then not yet been declared illegal; but after that he went up the
mountains, and from the position of mere clerk in the Manila office of the Huks, he rose to higher positions; he was again
apprehended by the PC in 1949, and again he was released in February, 1950; thereafter, he rejoined the Huks in the
mountains; in 1955, he was educational chairman of RECO 4 charged with the duty of indoctrinating the people with the
tenets of the HMB, which he learned from Dr. Jesus Lava with jurisdiction in the province of Rizal, half of Laguna, and the
whole province of Quezon; about May 1, 1954, as he and his men were passing thru Barrio Labnig Gumaca, Quezon, he was
introduced to accused Estrada by Huk Comdr. Tony who was then operating in the Bondoc Peninsula; Estrada told him then
that he was a friend of the Huks and the civilians, and that he was influential with the Army; Estrada told him further, that if he
could be of help to him, he would do it; remembering that he was in need of a typewriter and a mimeographing machine then,
he asked Estrada if he could help him procure them for him, and Estrada promised to do so; in the afternoon of that same day,
he gave P650.00 P500.00 coming from him, and P150.00 coming from Comdr. Onoy to Comdr. Matta, for delivery to
Estrada; he knew that Estrada received the money for, soon, he received the typewriter and the mimeographing machine,
Comdr. Matta informing him then that Estrada had sent him (Matta) a letter stating that the amount given was P43.00 short of
the cost of the typewriter and the mimeographing machine, aside from the expenses of the two persons who had brought
them; this typewriter and mimeographing machine he acquired thru Estrada's help, was delivered by him to the 26th BCT when
he surrendered; he met Estrada in about a week before February 23, 1956, at noon, in Barrio Biga, Gumaca, Quezon; he was
with Comdr. Teddy then, in his way to contact a certain teacher who had previously promised to help him buy some supplies;
he failed to contact the teacher, and as he approached Lt. Alcantara to bid him goodbye, he heard the conversation between Lt.
Alcantara and accused Estrada; Lt. Alcantara asked Estrada if Elvira Taada de Principe was the richest woman in Gumaca who
could be kidnapped, and Estrada answered that she was; that was all that he heard; Lt. Alcantara then borrowed some of his
men and firearms; and when his men rejoined him later, they reported to him that they had participated in the kidnapping; he
recalled that he came from Barrio Malimatik, Lopez, when he went to Barrio Biga, Gumaca; he was with Comdr. Emy; those
present in that meeting in Barrio Biga, Gumaca, Quezon were Estrada, Lt. Alcantara, Comdr. Teddy Corazon, Emy, Fredo and
others; on March 20, 1957, he surrendered the following day his affidavit was taken by an investigator; it was a very long one,
but he purposely did not make any mention about the meeting in Biga, Gumaca, where he saw and heard the conversation
during the meeting between Estrada and Lt. Alcantara, because he did not want his name linked with the latter; he wanted to
avoid any mention about the kidnappings in the Bondoc Peninsula, because he feared that he would be included in it; that is
why, when he was taken before Secretary Balao in Camp Murphy, he told him not to ask him about the kidnapping; but when
he later met Antonio Campaniero @ Nelson, Melchor Gregana @ Rony and Julio Ceribo @ July who have knowledge of the
secrets of these kidnappings, and the purchase of the typewriter and the mimeographing machine thru Estrada, and after
knowing that Nelson, Ceribo and Angel Veran were already accused of the kidnapping, he decided to reveal the matter; and he
believed that if the government were to be convinced of his loyalty they would realize that he had nothing to do with all the
kidnappings in the Bondoc Peninsula; that is why, since his surrender, he had been helping the Army, in its campaign for peace
and order; he had contacted his former companions in the Bondoc Peninsula so that they may return and live peacefully; on
November 27, 1957, about 92 of them surrendered.
Other witnesses testified for the prosecution, but their testimonies deal largely on how the ransom money of P50,000.00 was
finally agreed upon and delivered to Lt. Alcantara thru couriers. Thru them, the letters of Lt. Alcantara to the Principes and vice
versa (Exhibits A to E) and the photograph of Lt. Alcantara (Exh. F) were identified. This picture and other exhibits, where
admitted as evidence for the prosecution.
For his defense, accused Jose Estrada denied his complicity in the commission of the kidnapping of Elvira Taada de Principe in
the afternoon of February 27, 1956. He swore that he had never been to Barrio Biga, Gumaca, in the month of February, 1956,
much less ever conferred with any Lt. Alcantara for the alleged purpose of pointing to Elvira Taada de Principe as the best
kidnap victim in Gumaca. His testimony may be reduced as follows: he knew Elvira Taada de Principe; her family was his
neighbors, and his younger brother, Fernando, was the godson of Elvira's father; he was elected councilor of Gumaca from 1948
to 1951; again he was elected councilor for the term 1956-1960; he was a recognized guerrilla and a pensioner of U.S.
Government; he belonged to the following civic organizations: President, Gumaca Club 37; Worshipful Master of the Masons;
Chairman, Boy Scouts Organization; President, PTA District league; President (twice), Purok Castillo; Vice President, Jaycees of
Gumaca; Chairman, Civilian Affairs Organization; and Vice Chairman, Red Cross Campaign in 1951 for Quezon Province; the
barracks of the 8th BCT in Gumaca was constructed through him; he was the moving spirit in the construction of Camp
Natividad in 1948, which now houses the 38th PC Company; he joined the pacification campaign in the towns of Quezon which
brought about the surrender of several firearms; he exerted efforts for the construction of the Army Officers Quarters of the
26th BCT in Calauag, Quezon; he is an informant of the Philippine Army; as such informant, he had caused the arrest of several
persons; and he was commended by Col. Baltazar for his effort and cooperation with the Army; he came to know prosecution
witness Antonio Campaniero alias Nelson only in court, and it is not true that he and Huk Fredo came to his house to deliver the
message of Lt. Alcantara; Nelson sent him letters during his confinement in the provincial jail of Quezon, and he had sent them,
to Congressman Roces of the CAFA; he did not know also Huk Comdr. Teddy Corazon, for he came to know him only in court;
Teddy Corazon told him in jail than that it was not true that he had instructed Huk Nelson and Fredo to see him before; on
November 25, 1956, he met prosecution witness Julio Ceribo in jail, and the latter confessed to him that he (Ceribo) did not
know him (Estrada), and that Ceribo said he merely implicated him because the PC had forced him to include him; detained
prisoners Gutierrez and Mangubat were present when Ceribo told him so; he likewise did not know Huk Gonzalo Mallare
(prosecution witness) before the trial, and it is not true that they met each other before; there is no truth in Mallare's
testimony that he (accused) purchased a typewriter and a mimeographing machine for him; in fact, when he learned that the
said typewriter and a mimeographing chine was loaded in one of his trucks for delivery to the Huks, he informed Captain Daza
of the Army about it, only that Capt. Daza happened not to be there at the time; there is also no truth in the testimony of Beato
Glinoga; this prosecution witness, as a matter of fact, begged his forgiveness after testifying against him, when they met in the
office of the Chief of Police of Gumaca; at the time, Col. Castillo came along, and finding them together, threw out Beato
Glinoga and then challenged him (Estrada) and his brother to a fight; in fact, Beato Glinoga became his own witness after the
relief of Col. Castillo as provincial commander of Quezon; he was combat officer in the guerrilla forces; charges of murder were
filed against him after liberation, but he had been given the benefits of the guerrilla amnesty; he was also accused in the
Barretto kidnapping case, but his participation there was only that he had contacted the kidnappers at the behest of the family
of the victims, for purposes of reducing the amount demanded by the Huks; on the day of the kidnapping of Elvira Taada de
Principe, he was at home; upon learning about it, he helped the family in raising the ransom money, he was the largest copra
dealer in Gumaca; his customers owed him not less than P60,000.00; Elvira Taada de Principe's father-in-law, Marciano
Principe, was also one of the largest copra dealers in the town, but there were other large copra dealers there; he knew, thru
the newspapers, about the other kidnapping cases in the Bondoc Peninsula the kidnapping of Ex-Mayor Yumul of Lopez, of
Wee King of Catanauan, of the Barrettos of Gumaca, of De Leon of Catanauan and of Elvira Taada de Principe of Gumaca; he
(Estrada) had not been the victim of kidnapping. Asked by the court whether kidnappings disappeared in Gumaca after his
arrest, accused Estrada refused to answer.
ELISEO RAMOS, a detained prisoner for rebellion in the provincial jail of Lucena City, testified that he knew prosecution witness
Julio Ceribo; they were both Huks, and had occasion to meet each other in the mountains; the last time he met Ceribo was on
November 25, 1956, when Ceribo was also confined in the provincial jail of Lucena; he asked him (Ceribo) then why he was
detained, and the latter answered that he was being used as witness against accused Estrada; there were many detention
prisoners at the time they talked to each other, among them were Hilarion Gutierrez, Juanito Bautista, Cenon Entiosco and
Pedro Masilungan; during the course of their conversation, accused Estrada appeared, and he asked Ceribo if he knew him;
Ceribo then told Estrada that he did not know him; asked why he was going to testify against Estrada when according to him he
did not know the said accused, Ceribo answered that the investigators had promised to discharge him from the complaint, and
that was the only way he (Ceribo) could save himself; and Ceribo told him: "Ikaw ang tumayo sa aking kalagayan kulang lamang
akoy patayin sa bugbog;" Ceribo further confided to him that had he known such treatment would happen to him, "he would
not have surrendered."
Other witness PEDRO MANGUBAT, a co-accused of Estrada in the Barretto kidnapping case; CENON ENTIOSCO, a prisoner
serving sentence for robbery with rape and physical injuries, and also for illegal possession of firearm; and HILARION
GUTIERREZ, another detention prisoner on charges of murder and robbery of which he was later convicted testified that they
were all in the provincial jail of Quezon when prosecution witness Julio Ceribo was brought in there; that they all heard the
conversation between Ramos and Ceribo on the one hand, and between Ceribo and accused Estrada on the other hand, and
that they knew that Ceribo had told accused Estrada then that he (Ceribo) did not know Estrada.
Col. ESTANISLAO BALTAZAR testified that in 1952, he was commanding officer of the 26th BCT, stationed in Calauag, Quezon; in
one of the meetings he held in the town hall of Gumaca, asking the people to cooperate with the Army in its campaign against
the dissidents, one of those present stood up and said, "How can you expect the people to help the Armed Forces when they do
not treat the barrio people well, they are taken to the headquarters of the Army and there they are maltreated and compelled
to admit crimes which they did not commit?"; he knew later on that that man who had spoken was Councilor Estrada; and soon
he solicited his help; Estrada rendered valuable services to the Army then, for he had extensive connections with the barrio
people and he supplied valuable information as to the movements of the Huks in the place; and in recognition of his services,
he gave Estrada a written commendation (Exh. 18). Col. Baltazar admitted tho that the Huks were very active in the place
during his stay there as BCT Commander, and that they (the Huks) had an upper hand. He admitted further that the information
supplied by Estrada was always late, that was why they had no encounter with the dissidents. They almost caught up with the
Huks in a barrio when they went to the place to verify the report made by Estrada, for the residents informed them that the
Huks had left only about an hour before their arrival.
Major FELIPE BRUAN declared that he was formerly stationed in Gumaca, and there he came to know Estrada. The latter gave
the PC then valuable information regarding the movements of the Huks. In May, 1954, Estrada reported to them the presence
of Huks near the boundary of Lopez and Gumaca, and they went to the place to verify the report; unluckily, the Huks had left
the day before when they reached the barrio they had visited. He was in command of the PC Detachment in Gumaca when
Elvira Taada de Principe was kidnapped. Estrada did not make any report then about the presence of the Huks in Gumaca
before the incident. But after the incident, he (Bruan) received news about it and he immediately pursued the kidnappers.
There was an encounter that ensued when they had contact with the Huks at about 6:00 or 7:00 o'clock in the evening. There
was firing for about 30 minutes, after which they returned to the town because they soon lost contact with them.
Capt. JUAN DAZA testified that he was once stationed in Gumaca as commanding officer of Love Company, 26th BCT; even
before he was stationed at the place, he already had news about the valuable services of Estrada to the Army; so, he sought
Estrada's help when he moved to the place; and as expected, Estrada rendered valuable services; one time, Estrada informed
him that there were three (3) amazons who were willing to surrender, and he soon brought them Huk Amazons Liwayway,
Leonor and Amy to his camp; these amazons were all wives of Huk Commanders; in 1954, they were able to kill a Huk named
Absalon at Barrio Sastre thru the information supplied by Estrada; on May 2, 1954, they received information from Estrada that
the Huks had loaded some things on one of his trucks, for delivery to Barrio Labnig; he sent men to verify the report and there
was an encounter; they did not catch up with the Huks, however; and according to Estrada, the things loaded on his truck were
a typewriter and a mimeographing machine.
The defense later placed the victim, Elvira Taada de Principe, on the witness stand. From her testimony, the defense elicited
the fact that during her confinement in the mountains, Lt. Alcantara inquired from her, if she was the wife of Teodosio Principe.
Upon her answer that she was not the wife of Teodosio Lt. Alcantara then asked her if she was the wife of Reynaldo Principe, to
which question, she gave an affirmative answer.
QUIRINO RAVELA, one of the companions of Lt. Alcantara in the kidnapping of Elvira, and who had been sentenced already in
this case upon a plea of "guilty" testified that while in the mountains, he overheard the conversation between Lt. Alcantara and
Elvira Taada, wherein Lt. Alcantara asked the victim if she was "Doctora". To this question, Elvira answered that she was not
the doctora; she cried then and said, "I am the poorest among the Principes."
MARCELO BARRAL, a resident of Gumaca who sells copra to the Principes, testified that he was in the house of Marciano
Principe when Elvira arrived from the mountains after her release. He then heard Elvira talk to her sister Consuelo and exclaim
in Tagalog: "Ako pala Ate Consuelo ay pinagkamalan, at ang akala pala ay ako ang asawa ni Dosio."
In September, 1958 (after about one year and three months after he had testified for the prosecution), BEATO GLINOGA was
placed on the stand by the defense. He then made a complete turn about regarding the previous instructions of Lt. Alcantara
for him to see first accused Estrada before delivering the ransom note to the Principes for the reason that Estrada knew all
about it. This time, he declared that he was not so instructed by Lt. Alcantara; that the truth is, that he was directed by Lt.
Alcantara to proceed to the house of the Principes, without mention whatsoever of the name of Estrada; that he made mention
of and implicated Estrada, upon orders of the PC investigators that he should mention Estrada in his affidavit, and which orders
he followed, because they would not stop maltreating him; that on his way to the house of the Principes, he met Federico
Caparros and another man, and together they boarded a truck going to the poblacion of Gumaca; that he even showed to them
the letter he was to deliver to the Principes when they asked him where he was going; and that he alighted right in front of the
house of Marciano Principe when the truck reached the town.
FEDERICO CAPARROS and TOMAS SOMBILLA both testified and corroborated the statement of Glinoga that they met Glinoga
on March 5, 1956; that they asked him where he was going then, and Glinoga told them that he was going to the poblacion,
showing to them a letter which he pulled out of his pocket; that Glinoga did not stop at any other place, but went directly to the
house of Marciano Principe.
ATTY. ANDRES FRANCO, upon permission of Julio Ceribo, declared that he was the counsel of Julio Ceribo in this case, and
another case for rebellion in Laguna; that he prepared Ceribo's statement (Exh. 16) at the instance of Julio Ceribo who had
supplied the facts contained in the said statement; that he prepared the statement first and then took it to his place of
confinement, asking him to sign it only after he had read the statement and understood its contents; and that Julio Ceribo
swore to it before Notary Public Rodolfo Garduque whom he (Franco) had requested to come along. (The trial court appears to
have commented, after examining Exh. 16, that the same was not necessary in the defense of Julio Ceribo in the present case,
considering that Julio Ceribo had already been discharged from the information when Atty. Franco secured the said statement
of Ceribo).
The testimony of Atty. Franco was substantially corroborated by Atty. Rodolfo Garduque who declared that he ratified Ceribo's
statement only after he was sure that Ceribo understood it; and that there were witnesses (brought along by Atty. Franco) who
witnessed the signing of the document.
ANTONIO NIEVA testified that he was a former Army Officer stationed in Pitogo, Quezon; Estrada was their informer when he
was stationed there, and Estrada helped in the surrender of many Huks; ha approached Col. Castillo regarding the case of
Estrada because he believed that Estrada was innocent; he met Col. Castillo several times regarding the matter, and he told him
that he was wrong in prosecuting accused Estrada; but Col. Castillo confided to him that his career was at stake in this case, for
he had been instructed to get the "big shots" from the second district of Quezon; later, Col. Castillo also confided to him that he
was interested in monetary considerations which he itemized as follows: for Estrada's involvement in the Barretto case,
P20,000.00; in this case, P20,000.00; and for eight (8) other murder cases, P2,000.00 each; Col. Castillo then told him that if he
could give him P50,000.00 he would still be economizing by P16,000.00; he then immediately went to see the President and
asked for the relief of Col. Castillo as Provincial Commander of Quezon, and President Magsaysay then gave him a note,
addressed to Gen. Cabal; when he met Gen. Cabal, however, accompanied by Gov. Santayana, Jardin and his (Antonio Nieva's)
brother, then Chief of Police of Pasay City, he received the same answer as Col. Castillo's from Gen. Cabal, who told him further
that "as long as he was Chief of the Philippine Constabulary, Col. Castillo will not be touched in Quezon Province;" he never
expected to hear from Gen. Cabal the same words which Col. Castillo had confided to him, and in exasperation he exclaimed: "it
seems to me that I am not talking to the General;" in the note given by the President to Gen. Cabal, the President told the
General that the Nieva brothers knew more of the peace and order conditions in Quezon, and should be left alone; he was told
by the President to report to him the following Monday, but unluckily, the President died on the Sunday before their
appointment; he recalled that he used to be in good terms with Col. Castillo before, but he became indifferent to him when he
(Castillo) failed to stop him from taking interest in the Estrada case telling him that P20,000.00 was not enough; he insisted on
his demand for P50,000.00.
With the offer of various exhibits, including a copy of the decision of Court of First Instance of Quezon in the Barretto case,
wherein accused Estrada and all his co-accused were acquitted, the defense rested its case. It appears that before the defense
did so, they made an attempt to put back prosecution witness Julio Ceribo on the witness stand in order that he could explain
why he allegedly had testified falsely against accused Estrada when he testified for the prosecution in this case, but the court
below did not allow the defense to put back the witness. The trial appears to have been delayed also for a considerable time
because the defense had made attempts to produce Lt. Alcantara in court, in which attempt they failed. Gen. Yan testified that
a certain Pepe Alcantara working with the Army was still operating in the field, and that his whereabouts was unknown.
In rebuttal, the prosecution placed on the witness stand Col. Francisco del Castillo, who testified as follows: he was Provincial
Commander of Quezon from May 2, 1956 to July 7, 1958; he was on a mission then the prosecution of all the kidnapping
cases in the Bondoc Peninsula, namely: the case of Wee King of Catanauan (1954); of Saturnino Barretto and his children of
Gumaca (1952); of Ex-Mayor Yumul of Lopez (1955); of Rosita de Leon of Catanauan (1955); and of Elvira Taada Principe (this
case, 1956); he had no personal grudge against Estrada, for even before he came to Quezon as provincial commander, Estrada
was already accused in the kidnapping case of Saturnino Barretto and his children; Antonio Nieva and many other persons came
to him and asked that the case against Estrada be quashed, but he refused; he turned down the immoral proposals of Antonio
Nieva; he did not prosecute him, however, on those immoral proposals because it was hard to prove, as there were no
witnesses; Nieva used to approach him during the time of his rest near his house; later, he learned that Antonio Nieva had
tampered with the witnesses for the prosecution; so, he ordered his men to put Nieva "off limits" in his camp; Nieva
complained to higher authorities in Quezon City, that was why said higher authorities called him there to the PC Headquarters;
he then brought along the witnesses of the government against Estrada, and they were investigated by the said higher
authorities: these witness were the ones who revealed the participation of Estrada in this case; and he never demanded
P50,000.00 as consideration for the quashing of the cases against Estrada.
After a careful evaluation of the evidence thus set forth, We find that the inculpatory facts proven by the testimonies of
witnesses for the prosecution to establish the guilt of accused Jose Estrada are as follows: The Hukbalahaps in and around the
mountains of the Bondoc Peninsula were the friends of accused Jose Estrada. With and through his help, the chairman of the
educational committee of the HMB in the region, acquired a typewriter and a mimeographing machine on May 1 or 2,
1954.
1
About the first week of February,
2
or about a week before the actual kidnapping of Elvira Taada de Principe on
February 27, 1956,
3
Huk Lt. Pepe Alcantara met with other Huk Commanders in Barrio Biga, Gumaca, Quezon. Lt. Alcantara
gave some instructions to Comdr. Teddy Corazon then, and the latter ordered huks @ Nelson and @ Fredo to contact councilor
Estrada of Gumaca in the poblacion and to tell him to see Lt. Alcantara in Barrio Biga.
4
Alias Nelson and @ Fredo were able to
talk with Estrada in the town, and three days later, Estrada met with Lt. Alcantara and his companions in Barrio Biga.
5
During
that meeting between them, Lt. Alcantara asked Estrada who (for purposes of kidnapping) was the richest man in Gumaca, and
Estrada answered in Tagalog, "ang maimumungkahi ko sa inyo ay ang mga Principe." Lt. Alcantara inquired if it was Reynaldo
Principe, to which question Estrada answered "no" because "it would be difficult for the family to ransom him for most of the
properties were in his name." Lt. Alcantara then asked, "whom can we kidnap?" Estrada suggested Elvira Taada Principe who
"could easily be ransomed." Lt. Alcantara agreed to the suggestion of Estrada saying: "if that is the case, yes, let us kidnap Elvira
Taada Principe,
6
it will be good for us to kidnap Elvira Taada Principe."
7
The huk lieutenant told Estrada further: "you will be
advised when the kidnapping will take place;"
8
and Estrada answered: "all the time you can depend upon me."
9
In the
afternoon of February 27, 1956, Lt. Alcantara and his men came down from Barrio Biga to Gumaca and kidnapped Elvira Taada
Principe from the store on the ground floor of the house of her father-in-law, Marciano Principe. They took her, together with
Carmen Noceto whom they picked up along the way, to the mountains near the boundaries of the towns of Gumaca, Lopez and
Macalelon. The Huks kept them there for about two weeks.
10
Thereafter, Lt. Alcantara and some of his men went to Barrio Villa
Taada, Gumaca, and contacted the barrio lieutenant, Beato Glinoga, on the night of March 4, 1956. Identifying himself and his
companions, as the kidnappers of Elvira Taada Principe, Lt. Alcantara asked Beato Glinoga to deliver his letter to the Principes.
He instructed Glinoga to see Councilor Estrada first in the town, so that the latter could accompany him to the house of the
Principes, and then to the mountains where he (Lt. Alcantara) would later meet them.
11
The chosen courier followed the orders
of the Huk Commander. He went to the poblacion of Gumaca the following morning. He looked for Estrada, but he failed to
contact him. So, he went directly to the house of Marciano Principe and personally delivered the letter of Lt. Alcantara
entrusted to him.
12
Marciano Principe read the letter of the Huk Commander, and then wrote an answer. He gave the same to
Basilio Angulo, a compadre of his who was at the house at the time, and requested him to join Beato Glinoga back to Lt.
Alcantara in Barrio Villa Taada. The courier and the emissary went together and met Lt. Alcantara that same evening, in the
mountains of Villa Taada?
13
Basilio Angulo and Lt. Alcantara then had a conference. As they did, one of the huks present
nudged Glinoga and inquired from him where Estrada was, and Glinoga explained that he was not able to see him.
14

Basically, Estrada's defense is that the charge against him is but a pure concoction. Naturally, he vehemently denied the truth of
the above inculpatory facts proven by the prosecution, by showing that he could not have been in Barrio Biga, Gumaca, nor
conferred with Lt. Alcantara at the place in February, 1956, because he never left the town of Gumaca during the said month,
but once when he went to Lucena City to renew the plates of his trucks. He sought to destroy the credibility of the witnesses
for the prosecution. He tried hard to convince the trial court that a man of his stature and character an elective official of
social prominence and with substantial income, and commended by a ranking PC officer for "his exploits and undertakings" as
an "informer" of the Army could not have been in league with the Huks in the mountains, and propose to them a neighbor
and family friend as an object of the heinous crime of kidnapping for ransom. His version, however, failed to convince the trial
court of his innocence of the crime imputed to him.
Accused Jose Estrada has appealed from the decision.
Appellant contends that the trial court had fallen into grave error in giving faith and credit to the testemonies of huks Antonio
Campaniero @ Nelson, Julio Ceribo @ July, and Gonzalo Mallare @ Commander Romy. Attention is called to the fact that
Nelson and Ceribo former co-accused turned state witnesses had no choice but to testify against appellant in
consideration of the prosecution's promise to discharge them from the information and save their skin, while the case as
against witness Mallare was apparently dismissed, on motion of the prosecution for alleged insufficiency of evidence, purposely
to make him testify against herein appellant. Under the circumstances, it is argued, these witnesses had no option but to testify
as the prosecution desired to secure the conviction of the appellant at all cost.
There should be no quarrel that Nelson and Ceribo must have testified as state witnesses in consideration of the prosecution's
promise to discharge them from the information in this case; but that is not true with respect to witness Gonzalo Mallare, who
appears to have testified long after the case against him had been dismissed for insufficiency of evidence. But these
circumstances alone short of any showing that in consideration of the State's leniency, these witnesses had been ordered
and had agreed, not only to testify for the prosecution but also to prevaricate in their espousal of the People's cause cannot
detract from their credibility. We have examined the testimonies of these witnesses with painstaking solicitude, in our sincere
desire to find the usual signs of wavering and wobbling in declarations of lying witnesses, and We note that notwithstanding
the fact that they have been subjected to extraordinarily long and searching cross-examinations lasting several days of trial
by the brilliant lawyers for the defense, they never fell into serious contradictions in their long declarations, which could
reasonably be expected if they were merely concocting lies. On the contrary, they withstood the ordeals of the lengthy cross-
examinations, explaining every point on which the counsels for the defense dwelled, in a straight-forward and satisfactory way.
The above contention of appellant, therefore, cannot be accepted.
Much emphasis is placed by appellant upon the circumstance that during his confinement in the provincial jail in Lucena City,
prosecution witness Nelson (then confined in the PC stockade) had written several letters addressed to him and his witness,
Antonio Nieva, altogether purporting to show that Nelson had been telling them that he and his companions who had
previously given statements implicating herein appellant in the commission of the crime, before the government investigators,
did not really know him (Estrada); and that they implicated herein appellant in their said statements because they were
maltreated by the investigators into signing them. It is our considered opinion, however, after considering the surrounding
circumstances under which the letters adverted to were written, that their contents are false. Nelson declared that Antonio
Nieva talked with him before he wrote the letters. Nieva explained to him that by testifying as state witness, he cannot be
relieved of his responsibility in the commission of the crime. Pointing out that he (Nelson) was not just a witness but an accused
(Nelson had not been discharged from the information at the time), Nieva warned Nelson that he would also be punished like
Estrada, and perhaps go to the electric chair. With assurance of his close connection with Malacaang, Nieva promised Nelson
that he could do something about this case in Malacaang, and Estrada would be willing to help them, provided they would not
testify against the latter, otherwise, something bad would happen to them. And with this idea brought out to him by Nieva,
Nelson wrote a letter (Exh. 2) to Estrada on January 24, 1957. The witness explained as follows:
Sinabi po sa akin ni Tony (Antonio Nieva) na huwag lamang kalabanin si Jose Estrada ay siya ang bahalang humango sa
aming mga testigo at kung kakalabanin namin ay mapapasama kami, at binigyan po kami ng P20.00 suhol. At sinabi pa
niyang siya ang bahalang lumakad sa Malacaang at sa panahong kami ay bibistahan gaya nito ay tanggihan namin at
sabihin na kung kaya kami nakapagsabi ng sa aming "statement" ay kami sinaktan at ginantingpalaan at
pinangakuan.
15

Regarding his letter (Exh. 3), Nelson declared that he did not write it voluntarily. About noontime of January 25, day after he
had written the first letter, two prisoners wearing yellow suits entered their cell in the stockade and asked who were the
witnesses against Estrada in this case; and the witnesses pointed to one another. One of the said prisoners then told Nelson
that if he still valued his life, he should prepare a letter to Estrada and make him believe that they will not testify against him.
Nelson explained that he believed this to be a threat on their lives, for he thought that they might have been bribed to liquidate
them. So, he wrote the letter, in the presence of the said prisoners. With respect to a portion of another letter (Exh. 10), dated
January 27, 1957 (letter was styled "to whom it may concern"), Nelson asked Estrada to give him some amount for cigarettes,
and herein appellant would capitalize on this apparent weakness of character of Nelson to destroy his credibility. We are more
inclined, however, to disregard this theory because We found that the witness had frankly admitted that he did it because
Antonio Nieva had assured them that Estrada was willing to help them, and while confined in jail they (the witnesses) had
agreed to milk him. In fact, in another portion of the said letter, Nelson had asked Estrada to return his letter; and Nelson
explained in court later that he wanted to destroy the letter because if Col. Castillo should come to know about the lies he had
told therein the more they would suffer (lalo kaming mahihirapan). Thus, he explained to the court below:
Ang ibig ko pong sabihin ay lalo kaming kukulungin sa loob ng "stockade" kung malalaman kami'y sumulat kay Estrada
at magpapanday ng kasinungalingan. Yayamang kami na-stockade at kami halos incomunicado pa ay dahil nga sa
pangyayari ng kami kausapin ni Tony Nieva na gawin namin ang lahat ng paraan sa pagsisinungaling, tanggihan namin
ang mga "statement" na nilagdaan naming kusangloob. Nangangahulugang babaligtad kami sa katotohanan tungo sa
kasinungalingan.
16

This jibes with the other evidence of the prosecution of record, and admitted by the witness for the defense concerned, that
Antonio Nieva, for having shown extraordinary interest in this case, had thereafter been ordered "off limits" inside the PC
camp. Finally, there is another circumstance that adds a ring of truth to the testimony of Nelson. Col. Castillo testified that
Antonio Nieva had complained to higher authorities about him. This is admitted by defense witness Nieva who declared that he
went to see the late President Magsaysay and General Cabal, and asked for the relief of Col. Castillo as provincial Commander
of Quezon province by reason of his actuations in this case. As a result of Nieva's Complaint, Col. Castillo was called by higher
authorities to Quezon City; and Col. Castillo brought along the witnesses of the government before Col. Yan, General Cabal, and
then to the late President Magsaysay. Nelson testified that when he was taken to Col. Yan in Quezon City, the said official asked
him if the contents of his affidavit (Exh. X, wherein he had implicated appellant Estrada) were true, and he affirmed the content
thereof. The witness also declared that he was cross-examined (binabaligtad ng tanong sa aming"statement") on his statement
by General Cabal, before whom he, likewise, affirmed the truth thereof, explaining to the General that he was not threatened,
harmed, or promised any reward when he voluntarily affixed his signature on the document. Nelson made the same affirmation
before President Magsaysay on the same occasion. And when asked why he did not mention about the letters (Exhibits 2, 3, 10,
11 & 12) now heavily relied upon by herein appellant, Nelson declared outright in court that the contents of the said letters
were not true, and he was afraid to tell any falsehood to the highest authority of the land. Such explanations, considered in the
light of the surrounding circumstances, leave no iota of doubt that the witness had told the truth in court.
Again herein appellant would capitalize upon the circumstances that both witnesses Ceribo and Mallare have made apparently
contradictory statements (affidavits) at different times during their confinement. More specifically, it is pointed out that
Mallare had disclaimed any knowledge about the kidnapping in the Bondoc Peninsula in his statement (Exh. 17) which is
contrary to his later declaration in court that he heard the conversation between Lt. Alcantara and herein appellant in Barrio
Biga, Gumaca, regarding the kidnapping of Elvira Taada Principe. This witness explained that he did not mention in exhibit 17
about the participation of Estrada, because he did not want his name linked with the name of Lt. Alcantara. At the time, he had
not met Nelson, Ceribo and Gregana. He learned later, however, that these persons were already accused in this case, and
knowing that they knew all the secrets of the kidnapping, he decided to reveal his knowledge thereof. At any rate, it will be
noted that Mallare's testimony regarding the involvement of appellant in this case was merely cumulative in nature, a disregard
of which would not affect at all the testimonies of Nelson and Ceribo regarding the same point. And so with the alleged
contradiction between the statement of Ceribo before the PC on September 12, 1956, and his subsequent affidavit prepared by
his counsel on April 16, 1957. It is true that in the one (Exh. H) Ceribo had inculpated Estrada, while in the other (Exh. 16) he
had exonerated him; but Ceribo explained that the contents of the latter are false. He declared that when the said document
was taken to him inside the PC stockade, it was already prepared. His counsel had manifested to him that it was necessary for
his acquittal, for which reason he signed it without first reading its contents. We believe this explanation of the witness is
sufficient, for We find no reason for his counsel to prepare the latter affidavit when We consider the fact that Ceribo had long
been discharged from the information before it was prepared. And as the trial court had aptly observed, the said affidavit was
no longer necessary for the acquittal of the witness. Add to this suspicious character of Exh. 16 the unshaken testimony of the
witness that its contents are false and the fact that he had affirmed the truth of his other statement not only before the highest
officers of the Army, but also before the Chief Executive of the land, that the value of Exhibit 16 soon fades into nothingness.
But appellant charges that the trial court had abused its discretion when it denied the defense the right to call back witness
Ceribo who, it is claimed, was then ready to retract his previous testimony for the prosecution, and then testify for the defense.
This, it is pointed out, was a denial of herein appellant's right to due process. We cannot agree. Section 14, Rule 132 of the
Rules of Court explicitly provides that the court may grant or withhold leave to recall a witness, in its discretion, as the interests
of justice may require; and We believe that it was the better part of discretion and caution on the part of the trial court to have
denied as it did, the request of the defense to recall Ceribo. The record is loaded with circumstances tending to show insidious
attempts, too obvious to be overlooked, to tamper with the witnesses for the prosecution. Under the circumstances, to allow
such a procedure would only encourage the perversion of truth and make a mockery of court proceedings.
A certain alleged statement attributed to Lt. Alcantara, is here also relied upon by appellant to show that he (appellant) did not
really suggest Elvira Taada Principe to be the kidnap victim. It appears that soon after Elvira was taken to the mountains, she
was asked by Lt. Alcantara if she was the wife of Teodosio Principe. Elvira answered the question in the negative. Thereafter, Lt.
Alcantara asked her if she was the wife of Reynaldo Principe, and this time she answered in the affirmative. We believe not
much may be made out of this circumstance, for it merely shows that Lt. Alcantara was not even sure if the woman they had
kidnapped was the wife of Teodosio or Reynaldo. It does not necessarily follow, however, that herein appellant did not really
make the suggestion to kidnap Elvira, in the light of positive evidence that he did so. Neither may We sustain the charge that
the prosecution in this case was guilty of suppression of evidence, on account. alone of the circumstance that the highest
authorities of the Army had failed to produce Lt. Alcantara in court, as desired by the defense. It is true that the prosecutor in
this case was a captain in the Army, but it cannot be denied that he had prosecuted this case not as such officer, but as a special
prosecutor under the Department of Justice; nor do We find any evidence of record that will justify an inference that he had
prevailed upon his superior officers in the Armed Forces not to obey the orders of the trial court to produce Lt. Alcantara.
Herein appellant claims that Lt. Alcantara was already in the custody of the Army at the time. Col. Yan testified, however, that
the Lt. Alcantara in the service of the PC was at the time "in the field of operation and his whereabouts was unknown." We see
no reason then why the blame should be attributed to the prosecution.
With the foregoing conclusions, We have to sustain the finding of the court below that herein appellant is guilty of the crime
imputed to him in this case. There could be no question that appellant had knowledge of the criminal intention of Lt. Alcantara
and his men to kidnap somebody from Gumaca for ransom. It seems, however, that they had no definite person in mind in the
beginning. So much so, that they had to call for herein appellant, a councilor and prominent citizen of the place, for his
cooperation in the matter of selecting and pointing to the prospective victim. Appellant suggested the Principes as the most
suitable object of their criminal design, pinpointing Elvira, wife of one of the Principes, as the ideal victim, with the explanation
that the Principe family would not meet with any difficulty in producing the ransom money for her release. Lt. Alcantara and his
men became convinced of appellant's suggestion and reasoning, and then and there they decided to kidnap Elvira Taada
Principe. The Huk leader told appellant that he (appellant) would be informed accordingly when the kidnapping was to be
effected and the latter answered that Lt. Alcantara could count upon him all the time. Appellant knew, and must have realized
the frightful consequences of being kidnapped by the Huks. He was not unaware of previous other kidnappings of prominent
citizens in the Bondoc Peninsula the kidnapping of Ex-Mayor Yumul of Lopez, of Wee King of Catanauan, of the Barrettos of
Gumaca, and of De Leon of Catanauan which had invariably resulted in either the loss of honor of the victims, payment of
huge amounts for ransom by their families, or the horrible deaths of the victims. With that knowledge, nevertheless, herein
appellant agreed and conspired with Lt. Alcantara and his men in the kidnapping of Elvira Taada Principe, who was not only
detained by Lt. Alcantara and his men in the mountains for eighteen (18) days, but was only released after the payment of a
P50,000.00 ransom. These circumstances, to the mind of the Court, altogether show that appellant enjoyed such ascendancy of
the mind over that of Lt. Alcantara to the extent that his suggestion was the efficacious inducement which led the latter and his
men to proceed with the criminal design, thus making herein appellant a principal by inducement. However, for failure to
obtain the necessary number of votes to affirm the death sentence in the decision appealed from, the penalty next lower
should be imposed.
WHEREFORE, appellant is hereby rentented to reclusion perpetua. With this modification, decision is affirmed by way of
ordering appellant to pay the civil liability and the costs. On equitable considerations, no costs in this instance.
Concepcion, C.J., Reyes J.B.L., Dizon, Makalintal, Sanchez, Castro, Fernando and Capistrano, JJ., concur.
Zaldivar, J., is on leave.