evid case digest 2.15.docx

8/12/2019 Evid Case Digest 2.15.docx

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People vs. Narca

385 SCRA 185

FACTS:

On March 10, 1990, between 7:00 to 8:00 oclock in the evening, after spouses Mauro Reglos,

Jr. and Elizabeth Reglos have just come from the house of the father of Mauro Reglos, Jr. at

Barangay Cavite Plum, Guimba, Nueva Ecija, who was then sick, and on their way home to Sta.

Ana, Guimba, Nueva Ecija, accused Benjamin Narca suddenly hacked Mauro Reglos, Jr. at the

back portion of his head with a long bolo known as panabas. When Mauro was about to fall

at his back, Jaime Baldelamar, Rogelio Narca and Rodencio Rudy Narca suddenly appeared,

and they took turns in hacking Mauro with bolos. When appellants failed in their motion to

quash the above information, they filed a motion for bail. During the bail hearings on

September 19, 1990, the victims wife Elizabeth Reglos, who was with him on that fateful night,

testified on direct examination. Defense counsel requested the court that his cross-examination of Elizabeth be conducted on the next hearing, October 4, 1990. Such cross-

examination on said date never took place because Elizabeth and her son were bludgeoned to

death on September 28, 1990. RTC rendered judgment convicting all accused.

WHEREFORE, premises considered, judgment is hereby rendered, finding the accused Benjamin

Narca y Gagarin, Rodencio Rudy Narca y Gagarin, Rogelio Narca y Gagarin and Jaime

Benjamin Baldelamar y Selmo, guilty beyond reasonable doubt of the crime of Murder,

defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences EACH

of them to suffer the penalty of LIFE IMPRISONMENT. The said accused are likewise ordered to

pay, jointly and severally, the heirs of the deceased Mauro Reglos, Jr., the sum of P50,000.00 as

indemnification fee, the sum of P29,000.00 as actual damages and expenses, without subsidiary

imprisonment in case of insolvency, and to pay the costs.

ISSUES:

(1) Assail the validity of the preliminary investigation because they were not represented

therein by counsel and was therefore deprived of due process

(2) Argue that the testimony of Elizabeth Reglos in the bail hearings should not be given

credence since she was not cross-examined

(3) Claim that pending this appeal, appellant Benjamin executed an affidavit assuming full andsole responsibility for the victims death but nonetheless invokes self-defense while the other

appellants in their respective affidavits state that they were not in the scene of the crime.

HELD:

1. There is nothing in the Rules which renders invalid a preliminary investigation held without

defendants counsel. Not being a part of the due process clause but a right merely created by


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law, preliminary investigation if held within the statutory limitations cannot be voided. Section

1 of Rule 112, the purpose of a preliminary investigation is only to determine a well-grounded

belief if a crime was probably committed by an accused. In any case, the invalidity or absence

of a preliminary investigation does not affect the jurisdiction of the court which may have taken

cognizance of the information nor impair the validity of the information or otherwise render it

defective.

2. Mere opportunity and not actual cross-examination is the essence of the right to cross-

examine. Appellants lost such opportunity when they sought the deferment of their cross-

examination of Elizabeth, and they only have themselves to blame in forever losing that right by

reason of Elizabeths demise. This Court held that the right to cross-examination 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. x x x (W)aiver of the right to cross-examine may take various forms. But thecommon basic principle underlying the application of the rule on implied waiver is that the

party was given the opportunity to confront and cross-examine an opposing witness but failed

to take advantage of it for reasons attributable to himself alone.

3. One who claims self-defense must prove: (a) unlawful aggression, (b) reasonable necessity of

the means employed to prevent or repel it and (c) lack of sufficient provocation on the part of

the person defending himself. In the case at bench, the foremost element of unlawful

aggression is absent. Unlawful aggression presupposes an actual or imminent danger on the

life or limb of a person. Mere shouting, intimidating or threatening attitude of the victim,

assuming that to be true, does not constitute unlawful aggression. If there be any suchaggression, it obviously came from appellants. Evidence on record shows that the victim was

only walking with his wife, when he was suddenly and without warning attacked by appellants

with panabas and bolos. He was hit at the back of his head chopping off a part of his skull

exposing his brain. Where the attack is perpetrated suddenly and without warning, there is

treachery, thus, the claim of self defense cannot hold water.

The circumstantial evidence on record also points to appellants guilt. Pursuant to Section 3 of

Rule 133 conviction may be had on circumstantial evidence considering that the requisites

thereof were satisfied herein, to wit:

-there is more than one circumstance

-the facts from which the inference are derived are proven; and

-the combination of all the circumstances is such as to produce a conviction beyond reasonable

doubt.


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Loper vs. Standard Oil Co.G.R. No. 2345, January 19, 1906

385 Phil. 549

FACTS:

This is an action to recover the sum of money for professional services rendered by him asarchitect and supervisor in the construction of certain buildings belonging to the defendant.

The complaint alleged an express promise on the part of the defendant to pay this sum. Itcontained no allegation as to the reasonable value of his services.

At the trial, however, evidence was received on the part of the plaintiff to show what thereasonable value of his services was. ($1,888.25) The defendant made no objection to theintroduction of this evidence on the ground that the complaint contained no allegation as tothe reasonable value of his services, or on any other ground.

The trial court entered judgment for the plaintiff, as prayed for in the complaint, basing it uponthe evidence relating to the reasonable value of the services.

The appellant contends first, the fact that the decision is based upon an allegation not found inthe complaint and that the evidence in regard to the reasonable value of the services was givenin answer to questions directed by the court to the witness. Second, that because the court

asked the questions and not the counsel for plaintiff, the defendant was not required to objectthereto.

ISSUE:

Whether the evidence (reasonable value of the services) not found in the complaint and givenonly by way of answer to the questions directed by the court to the witness is admissible inevidence and justifies the decision rendered by the trial court?

HELD:

Yes. The evidence received in the court below justifies the decision. That evidence wasadmitted without objection on the part of the defendant. It is too late for him after judgment tosay that it should not have been received because it was inadmissible under the pleadings. The

high court said that it is difficult to conceive of a case in which, after a trial and decision of thecontroversy, as appearing on the proofs, when no question has been made during the trial inrespect to their relevancy under the pleadings, it would be the duty of the court, or within itsrightful authority, to deprive the party of his recovery on the ground of incompleteness orimperfection of the pleadings.

With regard to the second contention of the plaintiff. The high court answered that they knowof no authorities which support such rule. The defendant had a right to object to evidence


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which he considered not admissible under the complaint, even if the questions were asked bythe judge and it was his duty to do so.


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People v. Velasco

307 SCRA 684

FACTS:

Accused-appellant Nomer Velasco y Pangilinan together with Reynaldo Endrina y Roa and

Ernesto Figueroa y Santos were charged with the crime of Murder. Leonardo Lucaban, the lone

eyewitness to the incident, testified on November 22, 1994 that "he cannot remember the

(referring to the person who stabbed Danilo Valencia) face because it was dark" contrary to the

positive identification he made of the three accused which were given in his Supplemental

Statement dated February 24, 1994. He likewise testified that "because of financial diffuculties

he could not appear in court" and was only able to go when he was apprehended by the police

a day before the hearing. After the presentation of evidence, the trial court in its decision

promulgated on February 19, 1996 found the accused-appellant guilty beyond reasonable

doubt but ordered the acquittal of Reynaldo Endrina and Ernesto Figueroa. In assailing thequestioned decision the accused-appellant attacks the credibility of the lone eyewitness by

pointing out that when Leonardo Lucaban first testified on November 22, 1994 he failed to

name the appellant as the assailant even though the latter was in the courtroom at that time.

But when he was recalled to the witness stand three (3) days thereafter or on November 25,

1994, he was able to do so.

This change of heart by the said witness is attributed by the appellant Nomer Velasco to the

former being thoroughly "prepared" by the police authorities when he was taken into custody

for five (5) days.

Accused-appellant likewise imputes that the "physical, emotional and psychological stressconsequent to an apprehension of a prolonged and indefinite detention" provoked the witness

to testify "in the manner desired by the police or the prosecution if only to win back his lift and

freedom."

HELD:

We find that the deduction arrived at by the appellant is totally baseless. The police

apprehended the eyewitness in compliance with two lawful orders of the trial court. And for

the accused-appellant to impute otherwise is uncalled for, as is the implication that while under

their custody the witness was coached into pointing an accusing finger at Nomer Velasco.

A person when faced with an out of the ordinary situation is not expected to act in a manner

similar to another. The conduct therefore of Lucaban should not be deemed suspect if the only

person he recognized at the scene of the crime was Nomer Velasco or if he fails to enlist the

help of the drivers or passengers of passing vehicles or for going to a remote tricyle spot instead

of, for example, knowing on the doors of the houses in the neighborhood.


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We do not deem the deficiencies of Lucaban in his testimonies so material as to put the

trustworthiness of said witness open to serious doubt. Minor inconsistencies do not impair the

essential integrity of the prosecution's evidence as a whole. Moreover discrepancies between

sworn statements or affidavits and testimonies made at the witness stand do not necessarily

discredit the witnesses. Lucaban testified that he personally knows velasco.

Accused-appellant avers that the recall of the witness had no basis and was made with grave

abuse of discretion.

We disagree. In the case of Arce, et al. vs. Arce, et al., it was held that if, after hearing all the

evidence adduced by the parties, the trial Judge is not satisfied, he may, in the exercise of his

sound discretion, on his own motion and in furtherance of justice, call additional witnesses or

recall some of the same witnesses, for the purpose of questioning them himself, in order to

satisfy his mind with reference to particular facts or issues involved in the case.


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People v. Perez

397 SCRA 12

FACTS:

Jesus S. Perez found guilty of raping Mayia P. Ponseca (Mayia-6yr-old) and imposing on

appellant the death penalty

Appellant contends that his identification in open court by Mayia was highly irregular.

Appellant points out that the prosecutor had already identified him as the man wearing an

orange t-shirt when the prosecutor asked Mayia to identify her alleged rapist.

Appellant stresses that when Mayia identified him in open court, she referred to him as a man

named Johnny and did not give any description or any identifying mark.

ISSUES:

1)w/n leading questions are allowed?

2) w/n appelllant identification not being done in police line up but in open court is valid?

HELD:

1) As a rule, leading questions are not allowed. However, the rules provide for exceptions when

the witness is a child of tender years as it is usually difficult for such child to state facts without

prompting or suggestion. Leading questions are necessary to coax the truth out of their

reluctant lips. In the case at bar, the trial court was justified in allowing leading questions to

Mayia as she was evidently young and unlettered, making the recall of events difficult, if not

uncertain.

The reasons are spelled out in our Rule on Examination of a Child Witness, which took effect on

December 15, 2000, namely,

(1) to facilitate the ascertainment of the truth,

(2) to ensure that questions are stated in a form appropriate to the developmental level of the

child,

(3) to protect children from harassment or undue embarrassment, and

(4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if

the same will further the interests of justice.


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2) Valid,

True, Mayia did not identify appellant in a police line-up when Mayia identified appellant in his

cell. However, appellant, in his testimony admitted that he had two other companions in his

cell.

Moreover, the Court has held that there is no law requiring a police line-up as essential to a

proper identification.

Even without a police line-up, there could still be a proper identification as long as the police

did not suggest such identification to the witnesses.

Mayias identification in open court of appellant as her rapist dispels any doubt as to the proper

identification of appellant.


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People v. Aranda

226 SCRA 563

FACTS:

(VIOLATION OF DANGEROUS DRUGS ACT)

Accused-appellant: TERESITA ANRANDA appeal in the RTC Judgment finding her guilty beyond

reasonable doubt in Violation of Section 15, Article III of the Dangerous Drugs Act (R.A. No.

6425 as amended).

Aranda allegedly sell and deliver to BENITO VILLANUEVA, two (2) small white transparent

plastic bags containing METHAMPHETAMINE HYDROCHLORIDE (SHABU)

ISSUE/RULING:

Appellant is hereby ACQUITTED of the crime charged.1. INCONSISTENCIES IN THE TESTIMONY OF APPREHENDING OFFICERS

-We find that there are notable inconsistencies in the testimonies of the three

apprehending officers, namely: Pfc. Alexander Corpuz, Pfc. Elmario Adelante and Pat. Romeo

Sengco.

- These inconsistencies served to shake the foundation of the prosecution's case inasmuch as

they engendered serious doubts as to the credibility of the prosecution witnesses (Benito

Villanueva)

2. W/N BENITO VILLANUEVA IS A HOSTILE WITNESS? NO.

- The prosecution also failed to show that Villanueva had an adverse interest in the case, or

was unjustifiably reluctant to testify, or had misled the prosecution into calling him to the

witness stand. Hence, Villanueva cannot be considered as a hostile witness and the prosecution

is bound by his testimony that nothing was delivered to him by the appellant.

-There was no showing that Villanueva was declared by the trial court as a hostile witness as

required in Section 12 of Rule 132 of the Rules of Evidence.

Section 12, Rule 132 of the Rules on Evidence, provides as follows:

Sec. 12. Party may not impeach his own witness. Except with respect to witnesses referred

to in paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to

impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon

adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled

the party into calling him to the witness stand. (Emphasis supplied)


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The unwilling or hostile witness so declared, or, the witness who is an adverse party, may be

impeached by the party presenting him in all respects as if he had been called by the adverse

party, except by evidence of his bad character. He may also be impeached and cross-examined

by the adverse party, but such cross-examination must only be on the subject matter of his

examination-in-chief.


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People vs. Castillano

G.R. No. 139412, April 2, 2003

400 SCRA 401

FACTS:

1. Jaime Castillano Sr. and Diosdado (victim) had deep animosity due to the formers

indiscriminate gun firing. One night, Jaime Sr. et al fired his gun at Diosdados house. The wife

was about 5 meters away from her husband when the Castillanos barged inside their house and

ganged up on Diosdado, stabbed and shot him to death.

2. The three were placed under arrest for the killing of Diosdado. Upon arraignment, the 3

pleaded not guilty. Ronald admitted when he testified that he killed Diosdado but insisted that

he did so in self-defense and in defense of his brother Jaime, Jr. and that Jaime Sr. did not have

anything to do with the crime charged.

4. RTC Ruling: Ronald and Jaime Jr. are convicted while Jaime Sr. is acquitted. Hence, the appeal

of Ronald and Jaime Jr.

ISSUE:

WON the inconsistency in the testimony of Luz, the widow of Diosdado, in her sworn statement

and before the police, is sufficient to acquit Ronald and Jaime Jr.

HELD: No.

1. Office of the Solicitor General: the testimony of Luz cannot be impeached via her testimony

during the preliminary examination before the municipal trial court nor by her sworn statementgiven to the police investigators for the reason that the transcripts and sworn statement were

neither marked and offered in evidence by the appellants nor admitted in evidence by the trial

court.

2. Moreover, the appellants did not confront Luz with her testimony during the preliminary

examination and her sworn statement to the police investigators. Luz was not, therefore,

accorded a chance to explain the purported inconsistencies, as mandated by Section 13, Rule

132 of the Revised Rules of Evidence which reads:

How witness is impeached by evidence of inconsistent statement. - Before a witness can be

impeached by evidence that he has made at other times statements inconsistent with his

present testimony, the statements must be related to him, with the circumstances of the times

and places and the persons present, and he must be asked whether he made such statements,

and if so, allowed to explain them. If the statements be in writing they must be shown to the

witness before any question is put to him concerning them.


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3. The appellants did not even mark and offer in evidence the said transcript and sworn

statement for the specific purpose of impeaching her credibility and her present testimony.

Unless so marked and offered in evidence and accepted by the trial court, said transcript and

sworn statement cannot be considered by the court.

4. The Court fully agrees with the foregoing ruminations of the Office of the Solicitor General.The inconsistencies adverted to by the appellants pertained only to minor and collateral

matters and not to the elements of the crime charged; hence, they do not dilute the probative

weight of the testimony. It bears stressing that even the most truthful witness can make

mistakes but such innocent lapses do not necessarily affect his credibility.

5. The testimonies of witnesses must be considered and calibrated in their entirety and not by

their truncated portions or isolated passages. And then again, minor contradictions among

several witnesses of a particular incident and aspect thereof which do not relate to the

gravamen of the crime charged are to be expected in view of their differences in impressions,

memory, vantage points and other related factors.


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VICENTE PALO-PALO vs. INTERMEDIATE APPELLATE COURT, ZOSIMA TAO and JUSTIN TAO,

ABRAHAM PALALON and AGRIPINA GADIANE

214 SCRA 175

FACTS:

1. Petitioner Vicente Palo-Palo sought to be allowed to exercise the right of redemption or

pre-emption granted to a tenant under Republic Act No. 3844 over a certain landholding

situated in Negros Oriental.

2. In his complaint, he alleged that:

a. He started his tenancy over the land in 1949 when the property was still owned by

Zacarias Palacain;

b. The property was sold in 1965 to the spouses Juston and Zosima Tao who recognized

petitioner's tenancy and continued with the arrangement of sharing the harvest from thelandholding;

c. The spouses Tao sold the property sometime in October 1978 to herein private

respondents Abraham Palalon and Agripina Gadiane, who at first allowed petitioner to cultivate

the area until May 25, 1979, at which time they plowed the farmholding and planted it to corn,

thus effectively dispossessing petitioner of the land

3. Private respondents initially contended that petitioner was never a tenant of the

property sold, which landholding, in any event, they claim is different from the property

allegedly tenanted by petitioner.

4. The trial court declared that the petitioner cannot avail himself of the right of pre-

emption of a tenant because he is not a tenant of the property, solely premised on the ground

that petitioner, as did private respondents, offered in evidence the Deed of Absolute Sale of the

property in favor of Abraham Palalon and Agripina Gadiane for P1,850.00, for which reason, so

the trial court ruled, petitioner is bound by the statement in said deed that the property is "not

tenanted".

5. IAC re-echoed the trial court's conclusion that petitioner is bound by the statement in

the deed of sale that the property is not tenanted, holding that: The rule is that any party

introducing a document is conclusively bound thereby. The appellant himself adopted thisdocument as his own evidence and marked it as his own Exhibit "B". Since said document

explicitly reveals that the sale was not tenanted, appellant is bound by the contents thereof

particularly regarding the fact that it was not tenanted at all.


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ISSUE:

Whether or not petitioner is bound by the statement in the deed of sale that the property is

"not tenanted"

HELD:

1. Petitioner introduced the deed of sale but this was done solely for the purpose of

proving the fact of conveyance of the landholding. This is clear from petitioner's memorandum

of exhibits and offer of evidence where he declared that he was submitting the deed of sale as

his Exhibit "B" to show the transfer of the tenanted land from the spouses Zocima Palacain

Tao and Juston Tao to the spouses Abraham Palalon and Agripina Gadiane for the

consideration of P1,850.00 which fact of conveyance entitled the plaintiff to exercise the right

of redemption.

2. Verily petitioner had to show the fact of transfer of the landholding, this being an

essential requisite before he can claim the right of pre-emption or redemption. He cannot bebound by the statement in the document to the effect that the property is not tenanted, for

petitioner was not a party nor a signatory in the transaction and the deed.

3. Intermediate Appellate Court went no further after it pronounced that petitioner is not

a tenant of the property on the basis of the deed of sale. Considering, however, our rejection of

such position, it becomes necessary to resolve two additional issues, namely: (a) whether the

landholding of which petitioner claims to be a tenant is the same property sold by the spouses

Tao to Abraham and Agripina, and (b) whether petitioner is indeed a tenant of the

landholding.

4. We found it necessary to refer to the Original Record of the case.

5. Even before the case was decided by the trial court, the fact that the landholding

claimed to be tenanted by petitioner and the property sold to Abraham and Agripina by the

spouses Tao are one and the same was already a settled matter.

6. Thus CAR Deputy Sheriff Montano A. Galvez, Sr. who was directed by the trial court to

determine the identity of the property, rendered his report: It is further agreed by both parties

present that the land inspected by the undersigned is the same land in question.

7. It is on this basis that the trial court later said: There is no question now as to the

identity of the land described in paragraph 2 of the Complaint. The sketch is the sketch of theland described in the second paragraph of Exhibit "B" of plaintiff which is also Exhibit "6" for the

defendants and is also the sketch of the land described in paragraph 2 of the Complaint. There

is evidence to show that there is no more question as to the identity of the land when Atty.

Pajunar for the defendants stated that "Before we proceed since the land in question has been

identified already jointly by the plaintiff and it would seem that the only question now would

be whether there was a sale or not.


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8. Going to the question of tenancy, this too was settled in the amended answer of private

respondent wherein they admitted "that the plaintiff had been a tenant of the late Zacarias

Palacain in the land of the latter", the very land shown to have been sold by the Taos to

Abraham and Agripina.

9. In fine, both the court of origin and the appellate court could have found for petitionerwere said courts not unduly swayed by the circumstance that petitioner presented as his own

evidence the deed of sale wherein it was stated that the land involved is not tenanted. Such

conclusion having been rejected and the identity and the landholding as well as the fact of the

tenancy thereon of petitioner being established matters, there is no further hindrance to the

exercise by petitioner of the right of redemption or pre-emption extended and granted to him

by law.

10. WHEREFORE, the decision under review is hereby set aside and another is granted

recognizing the right of pre-emption or redemption of petitioner over the subject property in

accordance with the provisions of Republic Act No. 3844, as amended by Republic Act No. 6389.


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FERNANDO VALDEZ alias WILSON VALDEZ, petitioner,

vs.

HONORABLE JUDGE GREGORIO U. AQUILIZAN, Presiding Judge of the Regional Trial Court, 12th

Judicial Region, Branch XVI, Kabacan, North Cotabato, respondents.

G.R. No. L-67422-24 October 31, 1984

ABAD SANTOS, J.:

This is a petition for certiorari which was posted on March 22, 1984, in Cotabato City by speed

airmail but was received only on April 26, 1984. The petitioner is accused of rape in three cases

Criminal Case Nos. 13, 14 and 15 filed in the court presided by the respondent judge. The

private complainant is the same in all the three cases but the rapes were alleged to have beencommitted on different dates, namely: February 10, 1982, March 17, 1982 and April 10, 1982.

The petition seeks to annul the proceedings which were conducted by the respondent judge

and to disqualify him from the case. Because the verified petition imputed serious irregularities

to the respondent judge, this Court issued a temporary restraining order on May 21, 1984,

restraining him from further proceeding with Criminal Case Nos. 13, 14 and 15.

In the comment which the respondent judge was required to submit, he said that he had

already decided the three cases. (Petitioner Wilson Valdez was convicted of rape in each of the

three cases and was sentenced to three reclusion perpetua plus indemnity.) The decision isdated April 2, 1984, but the petitioner claims that it was promulgated on May 3, 1984, without

the presence of his counsel and even of the Fiscal; that no notice was issued in respect of the

promulgation; and that no copy of the decision was given to the defense counsel of record.

The case was set for hearing on August 6, 1984, and thereafter the Court issued a resolution

which reads:

At the hearing this morning the following appeared: Attys. Jose V. Juan and Antonio T. Nicolas

of the Special Appealed Cases Division, Citizens' Legal Assistance Office, Ministry of Justice,

Padre Faura, Manila, for the petitioner; respondent Judge Gregorio U. Aquilizan on his own

behalf; and North Cotabato Provincial Fiscal Aquiles Narajos who brought the record of Criminal

Case Nos. 13, 14 and 15 in the sala of the respondent judge.

Counsels for the petitioner mentioned several irregularities said to have been committed by the

respondent judge in the handling of the case above-mentioned. Resort to the record proved to

be fruitless because it was grossly deficient.


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Counsels for the petitioner are hereby given ten (10) days from notice hereof to submit a

memorandum specifying the irregularities said to have been committed by the respondent

judge with supporting evidence. A copy of the memorandum shall be furnished to the

respondent judge who is required to answer the same point by point within ten (10) days from

receipt. (Rollo, p. 127.)

The memoranda are now before this Court and the immediate reaction is that the petition is

highly impressed with merit.

In the hearing of the three criminal cases on May 26, 1983, the private complainant was to be

cross- examined inasmuch as her direct examination had been finished at the previous hearing

on April 7, 1983. On May 26, the private prosecutor, Atty. Norberto Ela, was absent. Thereafter,

the respondent judge stated: "It appears in the records that the complaining witness is still

under cross. It is the Honorable Judge who is examining her ... (Addressing the witness) Duringthe last hearing of this case, the Honorable Court reserved its right to cross examine you on

your testimony." And the respondent judge examined the witness but the examination is better

described as direct rather than cross. Witness the following: t.hqw

COURT: ... After going over the records of the cases and the supposed exhibits, you mentioned

about a pair of scissors used to intimidate you, coerced and forced by the accused, by pressing

the same at your left side?

A. Yes, your Honor.

COURT: Proceed Fiscal.

FISCAL FULVADORA:

Q You mentioned about a pair of scissors used by the accused. Showing to you this scissors,

what relation is this scissors which was used by the accused in threatening you on February 10,

1982?

A Yes, sir, this is the one being used by him.

COURT:

Q Is this the very scissors that you saw when he pressed it?

A Yes, your Honor.


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Q When was this used by the accused Wilson Valdez?

A On February 10, 1982, your Honor.

FISCAL FULVADORA:

May we request that this scissors Identified by the witness be marked as Exh. "F", your Honor.

COURT: t.hqw

Mark it.

Q Please demonstrate to the Court how this Exh. "F" was used by the accused in intimidating

you?

A (Witness demonstrating to the Court)

The witness demonstrating to the supposed victim the pressing of the pointed scissors at the

left side abdomen.

Q Did he also use that during the accord rape he committed

A Yes your Honor.

Q About the third time, he use also?

A Yes your Honor. (TSN, May 26, 1983.)

To be sure a trial judge has the right, nay even the duty, to address questions to witnesses. But

the questions should be clarificatory; they should not build the case for any of the adversaries.

On June 23, 1983, a hearing was scheduled. The transcript for that day shows that Fiscal Camilo

Fulvadora appeared for the prosecution but private prosecutor Ela, was absent. Also absent

was Atty. Jorge Zerrudo, counsel for the accused. The transcript does not show whether or not

the accused was brought to court. Notwithstanding the absence of counsel for the accused and

probably the accused himself, the respondent judge continued his "cross-examination" of the

private complainant. The respondent judge explained his behaviour thus:

WHEREFORE, premises considered, in view of the absence of Atty. Zerrudo who in spite of due

notice in open court, during the last hearing of this case and without justifiable reason failed to

appear, however, for the sake of justice in order not to prejudice the right of the accused as the


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complaining witness was on cross- examination, stated the witness is being cross examined by

the court in order to get an illustration of certain facts needed by all defense here or the

prosecution of the accused Wilson Valdez alias Willy. (TSN, June 23, 1983.)

In his memorandum the respondent judge claims that he "did not proceed with the trial but

merely sought clarifications on vital aspects taken up in the hearing of April 7, 1983."

The explanation of the respondent judge is belied by the transcript which shows that he asked

the private complainant searching questions and this is reflected on pages 4 to 12 of the

transcript.

The statement of the respondent judge that he wanted to protect the right of the accused to a

speedy trial is not appreciated. He "protected" the rights of the accused by holding a trial in the

absence of the latter's counsel. If an accused has a "protector" like the respondent judge, there

is no need for a fiscal or a private prosecutor. It may not be amiss to state in this connectionthat the accused did not complain of delay in the trial of his case probably because he was not

there. At any rate if the respondent judge had wanted to expedite the trial he should have

appointed a temporary counsel for the accused.

The hearing on the three cases was resumed on August 18, 1983. In the meantime, Atty.

Zerrudo was replaced by Atty. Julian Ruiz as counsel for the accused because he wanted an

Ilocano lawyer to represent him for better communication. On that day. the private

complainant was still on cross-examination. Without any request from the parties, the

respondent judge decided to hold the hearing in his chamber "due to delicadeza." Present in

the chamber were counsel for the accused, the fiscal and the stenographer only; the accusedwas not allowed to go inside.

The respondent judge claims, however, "that the accused together with his guard were at the

door of a make-shift room, so-called judge's chamber." This might well have been the case but

the accused was entitled as of right to be inside the room because it was his liberty and honor

which were at stake. On August 31, 1983, the respondent judge announced, "We will hear this

in chamber." And then the following took place:

ATTY. RUIZ:

Now, last time this case was presented and was scheduled for hearing inside the chamber.

Counsel for the accused requested that the accused be given chance to confront the

complaining witness but this, your honor was denied so at this instance it is reiterated that the

accused be given again a chance to be present during the investigation (sic).

COURT:


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Fiscal.

FISCAL CAMILO FULVADORA:

With the sound discretion of the Honorable Court.

COURT:

Denied. (TSN, August 31,1983.)

On February 7, 1984, the following took place:

ATTY. RUIZ:

Your honor, we are still in the process of direct examination for the accused. We are recallingthe accused in the witness stand. I understand your honor last time, due to lack of material

time, we requested for a resetting of these three cases inasmuch as the matter whether to give

the accused for the meantime your honor, I am petitioning that he must be recalled and placed

in the witness stand.

COURT:

It is discretionary on the part of the Judge. What can you say Fiscal?

FISCAL FULVADORA:

I remembered right that it is the purpose for the trial, that the manifestation of the defense

counsel that he is through with the testimony of the witness, he requested that the prosecution

will be continued in some other time.

ATTY. RUIZ:

We concur with the Provincial Fiscal but prior, we are petitioning the Honorable Court to recall

the witness for further direct examination and I am requesting that will have to continue the

proceeding. We are convinced with the observation of the Court that it is discretionary of the

Honorable Court but this representation however, we would like to request and reiterate and

manifest for the petition that he be recalled. It is not the intention of the defense counsel, your

honor, to delay the speedy termination of these cases. As a counsel for the accused, I would like

to reiterate that the accused be recalled to the witness stand.

FISCAL FULVADORA:


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The Honorable Court will decide on that part of presentation of the accused, whether to grant it

or not the manifestation.

COURT:

How many questions are you asking?

ATTY. RUIZ:

Due to lack of material time, the three cases, I forgot to ask few questions regarding the

evidences or exhibits which are the panty, knife, and scissors, in the direct examination in that,

it was overlooked in the part of this representation that the three after presented some of the

exhibits per prosecution, were not questioned.

FISCAL FULVADORA:

It is not the matter of forgotting the exhibits of the counsel, there are time given to present this

trial. I remembered that he propounded few questions for the defense and he manifested that

he is through in his direct examination and it is my time to cross the testimony of the accused.

ATTY. RUIZ:

I forgot, before the Honorable Court that this representation have reasons of overlooking why I

was not able to question to all the matters considering of the lack of material time and that

there are other cases waiting which are ready for the hearing. It is the discretionary on the part

of the Honorable Court specially that the criminal penalty is death and while the ProvincialFiscal having further presentation of exhibits at the beginning of the case, where the

questioning we were already finished, yet the Provincial Fiscal continued separately to the

presentation of other cases.

COURT':

Denied.

Under cross. (TSN Feb. 7, 1984.)

It is obvious from the foregoing that the respondent judge did not manifest the requisite cold

impartiality which the petitioner deserved.

The petition which questions the actuations of the respondent judge and seeks his

disqualification was received by him on March 29, 1984. Prudence dictated that he refrain from

deciding the cases or at the very least to hold in abeyance the promulgation of his decision


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pending action by this Court. But prudence gave way to imprudence; the respondent judge

acted precipitately by deciding the cases on April 2, 1984, and promulgating his decision on

May 3 of the same year. All of the acts of the respondent judge manifest grave abuse of

discretion on his part amounting to lack of jurisdiction which substantively prejudiced the

petitioner.

WHEREFORE, the petition is hereby granted. The decision in Criminal Case Nos. 13, 14 and 15 of

the respondent judge is set aside; the aforesaid cases shall be transferred to Branch XVII of the

Regional Trial Court in Kidapawan for trial de novo which shall also resolve the petitioner's

motion for release on recognizance under Sec. 191 of P.D. No. 603. No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Escolin and Cuevas, JJ., concur.

Aquino, J., took no part.


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PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ANTONIO PLASENCIA y DESAMPARADO alias "Tonying," ROBERTO DESCARTIN y PASICARAN

alias "Ruby" and JOELITO (JULITO), DESCARTIN y PASICARAN, accused-appellants.

G.R. No. 90198 November 7, 1995

VITUG, J.:

Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin were accused of robbery

with homicide in an information, dated 20 December 1984, that read:

That on or about the 29th day of November, 1984 at around 3:00 o'clock in the afternoon,

more or less, in sitio San Juan, Barangay Patao, Municipality of Bantayan, Province of Cebu,Philippines, and within the jurisdiction of this Honorable Court, the said accused conspiring and

confederating together and mutually helping one another, did then and there wilfully,

unlawfully and feloniously, and with treachery, evident premeditation and taking advantage of

their superior number and strength and with intent to kill, treacherously attack, assault and use

personal violence upon Herminio Mansueto, thereby inflicting upon him the following physical

injuries:

1. Stab wounds which was approximately two inches in length, parallel to the ribs and is located

1 1/2 inches below the right nipple on the right anterior axillary line and on the fifth intercostal

space. On probing the wound was penetrating immediately up to the left parasternal borderapproximately hitting the heart;

2. Hacking wound 9 inches in length extending from the coracoid process of the left clavicle

passing between the left anterior and the left mid axillary line up to the left 4th intercostal

space including all muscle underlying the skin exposing the ribs.

Cause of death: Internal hemorrhage due to stab wound.

after which the body was placed inside a plastic bag and brought to an open sea by the pump

boat owned by Roberto Descartin y Pasicaran and operated by Joelito Descartin y Pasicaran and

dumped to the water by herein accused, and as a result of which said Herminio Mansueto died,

herein accused, in pursuance of their conspiracy, wilfully, unlawfully and feloniously and with

intent to gain, took and carried away the personal property belonging to Herminio Mansueto,

namely: one (1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1) Bicycle (standard size)

valued at P1,000.00; and cash in the amount of P10,000.00, all in the total amount of FOUR-


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TEEN THOUSAND PESOS (P14,000.00), Philippine Currency, to the damage and prejudice of said

oner (sic) in the said total sum.

All contrary to law, and with the qualifying circumstance of alevosia, and the generic

aggravating circumstance of known premeditation.

CONTRARY TO LAW. 1

When arraigned, all the accused entered a plea of "not guilty" to the charge; whereupon, trial

commenced.

The prosecution sought to establish, as follows:

At around ten o'clock in the morning of 29 November 1984, Herminio Mansueto, wearing a

blue and white striped t-shirt, maong pants, Seiko 5 stop watch and a pandan hat, left on hisbicycle for Barangay Patao, Bantayan, Cebu. He had with him P10,000.00 cash which he would

use to purchase hogs from a certain "Ruby."

In Patao, Francisca Espina, also known in the locality as Pansing and whose house was just

across the street from the respective residences of the three accused, saw at the roadside

Herminio Mansueto and Roberto Descartin alias "Ruby" engaged in conversation. Pansing

approached them and asked Mansueto if he would be interested in buying two of her pigs for

P1,400.00. Mansueto said "yes" and promised that he would be right back.

Mansueto and Ruby meantime proceeded to the latter's piggery. Joelito Descartin and hisbrother-in-law Rene were also seen going to the place. After some time, Pansing noticed Joelito

take Mansueto's bicycle. Believing that Mansueto was already preparing to leave and in her

desire to catch up with him, Pansing promptly walked towards the piggery which was around

100 meters away from her house. She could see Mansueto leaning on the pigsty with Ruby on

his right side and Antonio Plasencia alias "Tonying" on his left; behind was Joelito. 2 Midway,

she was halted on her tracks; she suddenly saw Antonio stab Mansueto. The latter staggered

towards Ruby who himself then delivered another stab blow. Mansueto fell on his back. Joelito

started hitting Mansueto on the forehead while Rene held Mansueto's legs. 3 Except for a

coconut tree and some ipil-ipil trees around the area, nothing obstructed Pansing's line of

vision. Pansing rushed back home. The image of Antonio waving the weapon and the thought

that she might herself be killed kept her from revealing to anyone what she saw. 4

The following day, in Kodia, Madridejos, Cebu, where Mansueto resided, his daughter Rosalinda

reported to Francisca Tayo, the barangay captain, that her father had not returned home. Tayo

proceeded to Putian, which was in Mansueto's itinerary, and then to Ruby's piggery in Patao,


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where a youngster, who turned out to be Ruby's son, innocently informed her that Mansueto's

bicycle was taken by Joelito. 5

The day after, Francisca Tayo, accompanied by police officers of Madridejos, Cebu, and some

relatives of Mansueto, went back to Ruby's place. On a railing of the pigpen, she saw blood

stains. When she asked Ruby's father about it, he said that the stains had come from chicken

blood. Going around the piggery, she also saw blood stains on a bamboo pole, which Ruby's

father once again so identified as chicken blood. At the back of the piggery, Francisca noticed a

digging which looked like an empty grave. The digging was measured and photos were taken.

The police found a hat at the back of a hut beside the piggery, which was later recognized to be

that which belonged to Mansueto. 6

In the morning of 30 November 1984, Patrolman Elpidio Desquitado of the Bantayan police

went back to the piggery. This time, the police learned from Pansing herself that Joelito took

Mansueto's bicycle. 7 Joelito was invited to the police headquarters to shed light on the case.Later, Joelito, waiving his right to counsel, executed a "confession." 8

Joelito narrated that, upon Ruby's instruction, he brought the bicycle to the piggery.

Unexpectedly, he said, Tonying Plasencia stabbed Mansueto. Stunned, Joelito tried to run away

but Tonying stopped him. Tonying then dragged the victim to a nearby house. Threatened by

Tonying, Joelito agreed to later return to where the victim's body was dragged. At around

eleven o'clock that evening, tonying and Joelito placed the body in a sack. Tonying asked Ruby

to allow the use of the latter's pumpboat to ferry the body. Tonying paddled the pumpboat to

the island of Po-Po'o where he picked up some pieces of stones. Then, again paddling the

pumpboat farther away from the island, he ordered Joelito to start the engine of the boat. Theyheaded for the islet of Gilotongin (Hilotongan). On the way, Tonying filled the sack with stones

and, using a rope, tied to it the body of the victim. Tonying then unloaded their cargo into the

sea.

Guided by Joelito, members of the Bantayan police force headed for the islet of Hilotongan on

two pumpboats 9 in the area pinpointed to be the place where the body was dumped. On the

second day of the search, the group was informed that the body had already surfaced near the

vicinity of the search and delivered to the municipal building. 10

The municipal health officer of Bantayan, Dr. Oscar Quirante, examined the body and

concluded that the victim died of internal hemorrhage due to stab wounds. 11 The bloated

body was in a late stage of decomposition and its skin had sloughed off. 12 He found the

victim's face to be "beyond recognition." There were "some rope signs in the body particularly

in the waistline and in the knees." 13

The main defense interposed is one of alibi.


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27/42

testimony. 18 The reliance on the transcript of stenographic notes should not, for that reason

alone, render the judgment subject to challenge. 19 The continuity of the court and the efficacy

of its decision are not affected by the cessation from the service of the judge presiding it 20 or

by the fact that its writer merely took over from a colleague who presided at the trial. 21

It is asserted that the testimony of Francisca Espina should not be given worth since, while

testifying, she would at times be seen reading some notes written on her left palm. Thus

Q. May I see your left hand, may I see what is written there?

A. Witness showing to the court her left palm and the following words have been written in her

palm in ball pen handwritten words and number of the pumpboat No. 56 and there is another

word "petsa" and there are words which cannot be deciphered and all found in the palm of the

left hand.

ATTY. MONTECLAR:

That is all.

ATTY. GONZALES: RE-CROSS

Q Mrs. witness, you cannot deny of what these physical evidences or writings on the palm of

your left hand. I want you to be honest, the law will not allow you to lie, you are subject to

punishment and penalty. My question is, who wrote this on the palm of your left hand?

A I was the one who wrote this.

Q Why did you write that down?

A I was the one who wrote this.

Q Why, what was your purpose of writing that in your palm?

A I wrote this in my palm because I wanted to be sure of what time the incident happened, was

the same as that I wrote in my palm.

Q And who furnished you the data in which you wrote in the palm of your hand?

A I was the one who made that.

ATTY. GONZALES:


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Q You don't understand my question. You wrote that writing but where did you get that data?

A. This is just of what I know.

Q Since you claim to have all this knowledge of your mind, why did you find it necessary to

write that in the palm of your hand and I notice during the trial that you used to look in your

palm, why, is that necessary in your believe to testify here to what you knew about the

incident.

A Because of the fact that I have an headache.

Q When did this headache occur?

A After I left my house because my sick child.

Q Now, knowing that you have an headache, did you not bring this to the attention of the

Fiscal?

A No, I did not tell the Fiscal.

Q Do you know of your own that doing this is unfair and is not allowable while testifying in

open court, do you know that is illegal act?

A No, I did not, know.

Q And you did all of this claiming that you do not know about the incident for the purpose of

giving here testimony against the accused?

A Yes, sir. 22

The use of memory aids during an examination of a witness is not altogether proscribed.

Section 16, Rule 132, of the Rules of Court states:

Sec. 16. When witness may refer to memorandum. A witness may be allowed to refresh his

memory respecting a fact, by anything written or recorded by himself or under his direction at

the time when the fact occurred, or immediately thereafter, or at any other time when the fact

was fresh in his memory and he knew that the same was correctly written or recorded; but in

such case the writing or record must be produced and may be inspected by the adverse party,

who may, if he chooses, cross-examine the witness upon it and may read it in evidence. So,

also, a witness may testify from such a writing or record, though he retain no recollection of the


29/42

particular facts, if he is able to swear that the writing or record correctly stated the transaction

when made; but such evidence must be received with caution. (Emphasis supplied.)

Allowing a witness to refer to her notes rests on the sound discretion of the trial court. 23 In

this case, the exercise of that discretion has not been abused; the witness herself has explained

that she merely wanted to be accurate on dates and like details.

Appellants see inadvertency on Francisca's appearing to be "jittery" on the witness stand.

Nervousness and anxiety of a witness is a natural reaction particularly in the case of those who

are called to testify for the first time. The real concern, in fact, should be when they show no

such emotions.

Francisca did fail in immediately reporting the killing to the police authorities. Delay or

vacillation, however, in making a criminal accusation does not necessarily adulterate the

credibility of the witness. 24 Francisca, in her case, has expressed fears for her life consideringthat the assailants, being her neighbors, could easily exact retribution on her. 25 Also, the

hesitancy in reporting the occurrence of a crime in rural areas is not unknown. 26

Francisca's inability to respond to the summons for another appearance in court for further

questioning was satisfactorily explained by the prosecution. Francisca at the time just had a

miscarriage and was found to be too weak to travel. The recall of the witness was, after all, at

the sound discretion of the trial court. 27

The claim of appellant Roberto Descartin that Francisca and her husband, a tuba-gatherer,

owed him P300.00, and the assertion made by appellant Antonio Plasencia on the dog-bitingstory involving Francisca's son truly were too petty to consider. It would be absurd to think that

Francisca, for such trivial reasons was actually impelled to falsely implicate appellants for so

grave an offense as murder.

Appellants questioned Francisca's ability to recognize them from a distance. Francisca knew

appellants well; they all were her neighbors while Antonio Plasencia himself was her cousin. 28

The crime occurred at around three o'clock in the afternoon only about fifty (50) meters away

from her. With an unobstructed view, Francisca's positive identification of the culprits should

be a foregone matter. 29

The alleged inconsistencies in Francisca's testimony and in her sworn statement of 18

December 1984, cover matters of little significance. Minor inconsistencies in the testimonies of

witnesses do not detract from their credibility; 30 on the contrary, they serve to strengthen

their credibility and are taken as badges of truth rather than as indicia of falsehood 31 even as

they also erase suspicion of rehearsed testimony. 32


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All considered, the case against the appellants has been proven beyond reasonable doubt even

with the retracted extra-judicial admission of Joelito Descartin. 33 The testimony of a single

witness, if found to be credible, is adequate for conviction, 34 The defense of alibi hardly can

overcome the positive identification of an unprejudiced eyewitness. 35

Like the trial court, we are not persuaded that robbery has been proven to be the principal

motive for the crime that can warrant the conviction of appellants for the complex crime of

robbery with homicide. 36 Appellants could only thus be held responsible for the killing of

Mansueto. Conspiracy among the appellants has been established beyond doubt by the sum of

their deeds pointing to a joint purpose and design. 37

Three aggravating circumstances were alleged in the information, i.e., treachery, evident

premeditation and abuse of superior strength. The trial court disregarded the circumstance of

evident premeditation and concluded that the attack upon Mansueto was committed with

treachery and abuse of superior strength. On its finding that the assault was unexpectedlyperpetrated upon the unarmed victim to ensure its execution without risk to themselves from

the defense that the victim might make, the trial court appreciated treachery, which it deemed

as having so absorbed abuse of superior strength.

The trial court was correct when it concluded that the crime committed was murder, a crime

technically lower than robbery with homicide, 38 not, however, because of the attendance of

treachery but of abuse of superior strength. Treachery, in our view, was not satisfactorily

proven by the prosecution. Francisca Espina simply testified that appellant Plasencia stabbed

Mansueto while the latter and the appellants were in a huddle. There was nothing adduced on

whether or not the victim gave provocation, an indispensable issue in the proper appreciationof treachery. 39 The presence, nonetheless, of the aggravating circumstance of abuse of

superior strength qualified the killing to murder. 40 The three appellants utilized superiority in

numbers and employed deadly weapons in assaulting the unarmed Mansueto.

There being no other aggravating or mitigating circumstances to consider, the trial court aptly

imposed the penalty of reclusion perpetua, the medium period 41 of the penalty of reclusion

temporal maximum to death prescribed by Article 248 of the Revised Penal Code. In conformity

with prevailing jurisprudential law, the heirs of the victim should be indemnified in the amount

of P50,000.00. 42

WHEREFORE, the decision of the trial court convicting appellants Antonio Plasencia, Roberto

Descartin and Joelito (Julito) Descartin of the crime of murder and imposing on each of them

the penalty of reclusion perpetua is hereby AFFIRMED with the modification that the indemnity

to the heirs of the victim, Herminio Mansueto, is raised to P50,000.00. Costs against appellants.


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PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

TEOFILO KEMPIS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Efren N. de la Cruz for accused-appellant.

G.R. No. 97169 May 10, 1993

DAVIDE, JR., J.:

This is an appeal from the decision in Criminal Case No. 841 of Branch 10 of the Regional Trial

Court (RTC), Eighth Judicial Region, at Abuyog, Leyte, promulgated on 9 October 1990 1 finding

the accused guilty beyond reasonable doubt of the crime of murder, and sentencing him:

. . . to suffer the penalty of RECLUSION PERPETUA, to indemnify the heirs of Lolito Rivero the

amount of P30,000.00 without subsidiary imprisonment in case of insolvency and to pay the

costs.

The accused who has been detained since his arrest on May 19, 1989 up to the present is

hereby accorded full credit of the preventive imprisonment he has undergone, pursuant to Art.29 of the Revised Penal Code.

SO ORDERED. 2

Accused Teofilo Kempis, then a member of the Philippine Constabulary (PC), was initially

charged with two (2) counts of murder, viz.: for the stabbing of Antonio Miraflor and the

shooting of Lolito Rivero, grave threats and abuse of authority. In preparation for a general

court martial proceedings, Sgt. Samuel Rosales of the Office of the Regional Inspector (ORI) of

the PC/INP Regional Command 8 at Camp September 21st Movement, Palo, Leyte, conducted

an investigation. In his Investigation Report to the Regional Inspector General of the said

command dated 13 December 1988, Sgt. Rosales recommended that the case be referred to

the Regional Judge Advocate for the latter's legal opinion. 3 In the meantime, however, the

accused was discharged from the service. The records of the case were then transmitted to the

Office of the Provincial Prosecutor of Leyte for appropriate action.


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In due course, the Provincial Prosecutor of Leyte caused to be filed on 13 April 1989 the

Information in Criminal Case No. 841, the accusatory portion of which reads:

That on or about the 15th day of September, 1988, in the Municipality of Mayorga, province of

Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named

accused, with deliberate intent to kill and with treachery and evident premeditation, did then

and there wilfully, unlawfully and feloniously attack, assault, shot (sic) and wound one LOLITO

RIVERO with an M-16 ride with which said accused had purposely provided himself, thereby

causing and inflicting upon him gunshot wounds on his body which caused his death.

Contrary to law. 4

The accused entered a plea of not guilty during his arraignment on 29 June 1989. 5

Trial on the merits then ensued.

Seven (7) witnessess 6 testified for the prosecution. For the defense, the accused testified on

his behalf and presented six (6) other witnesses, 7 including the common-law wife of the victim.

In convicting the accused, the trial court relied on the prosecution's version which, except for

the name of the victim which should read Lolito Rivero and not Rivera, is succinctly, but

faithfully, summarized in the Brief for the Appellee 8 as follows:

At about 3:00 o'clock in the afternoon of September 15, 1988, Lolito Rivera was at his house

located in Bgy. Talisay, Mayorga, Leyte. Rivera had just butchered a pig and was cooking lunchfor his guests which included Carmencita Navarro, Corazon de Paz, Rivera's common-law wife

and Rivera's sister Rosalina Adonis. Suddenly, appellant Kempis a member of the Philippine

Constabulary (PC) and a companion, Wilfredo Bautista arrived at the yard of Rivera's house on a

board (sic) a motorcycle. Both were armed with armalite rifles. Appellant insisted on bringing

Rivera with them and directed Rivera who was standing near the kitchen door to board the

motorcycle. Rivera, however, declined saying that he was cooking. Angered by such refusal,

appellant successively fired his armalite rifle at Rivera hitting the latter's arm, chest and mouth

while Bautista whip stationed himself behind a banana tree had his rifle Rivera (sic) died

instantly.

Thereafter, appellant and Bautista boarded their motorcycle and left (pp. 4-9, tsn, June 15,

1989). Adonis went to the house of the barangay captain to report the incident but since the

latter was not there, Adonis immediately proceeded to the Police Station at Mayorga, Leyte

(pp. 21-22, supra).


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Postmortem Examination shows that five of the seven wounds inflicted on Rivera were gunshot

wounds. 9

On the other hand, the accused's version discloses that the incident in question actually

occurred on 16 September 1988 not on 15 September 1988 and that he killed Lolito

Rivero under circumstances that could exempt or mitigate his liability. His counsel puts the

matter in more explicit terms before starting with the direct examination of the accused:

xxx xxx xxx.

Additionally, we are offering the testimony of the witness to show that the incident happened

under circumstances that could exempt or mitigate the liability of the accused. 10

As condensed in his Brief, 11 the accused's version reveals that:.

At about 3:00 o'clock on September 16, 1988 not September 15, 1988 the accused, who

was a PC soldier, went to the house of one Lolito Rivero, at Barangay Talisay, Mayorga, Leyte,

for the purpose of advising the latter not to steal and create trouble in their town. Upon

reaching Rivero's house, the accused met his common-law-wife Corazon de Elaz Catanoy who

had a visitor then by the name of Francisca Rinoza (Francisca Rinoza was there because she was

demanding payment of Corazon's debt to her). When the accused asked from Corazon where

Rivero was, she told the accused that Rivero was in their kitchen doing something. At the time,

the accused was carrying his M-16 rifle slung on his left shoulder with its barrel pointing down.

Upon reaching the door of the kitchen, the accused did advise Rivero as he intended Rivero told

him "I will not do it again, Sir, as I have just come out of jail." Hearing Rivero's promise, theaccused turned his back to leave. It was at that juncture that Rivero immediately grabbed the

accused's M-16 rifle. They grappled for the rifle until it went off and Rivero was hit. The latter

died because of gunshot wounds. 12

As to the prosecution's claim that the incident occurred on 15 September 1988, the accused set

up the defense of alibi. According to him, he was in barangay Cabacungan, Dulag, Leyte

specifically in the house of Dominador Kempis from:

About 12:00 o'clock noontime up to late afternoon. 13

for the wake of his cousin, Diosdado Kempis, who had been killed. 14 Dominador Kempis

testified that the accused arrived at his house at about "1:00 o'clock to 2:00 o'clock" and left at

about 6:00 o'clock in the afternoon. 15

The trial court gave full faith and credit to the testimonies of the prosecution witnesses and

pronounced that Lolito Rivero was in fact shot and killed by the accused on 15 September 1988.


34/42

It brushed aside the alibi interposed by the latter because Rivero's place is located in the

Municipality of Mayorga which is adjacent to the Municipality of Dulag. It is in Dulag where the

accused claims to have been for the wake of Diosdado Kempis. The court a quo observed that

"it would not have been impossible for the accused to have gone to Bgy. Talisay (in Mayorga)

and kill Lolito as accused admitted he owns a motorcycle." 16 Moreover, the court declared

that the accused "was positively identified by the prosecution witnesses that he killed Lolito

Rivero on September 15, 1988." 17

Anent the accused's claim of self-defense, the trial court rejected the same as it was of the

opinion that the accused, being a soldier, was more knowledgeable and trained in the use of

firearms than the victim, a mere farmer, "who at the time of the incident was not even armed

with a bolo or any weapon." The court added that "even granting . . . that Lolito was able to

grab the gun . . . Lolito . . . would have not know (sic) how to use it on the accused. " 18 It

further observed that although the accused reported the killing to the police, he failed to

inform the latter that he had merely acted in self-defense.

After the promulgation of the decision on 9 October 1990, the accused seasonably filed a

Motion for Reconsideration 19 alleging therein that the trial court erred (a) in not crediting him

with the mitigating circumstance of voluntary surrender and (b) in ruling that the incident

actually took place on 16 September 1988 and not on 15 September 1988 as testified to by

prosecution witnesses Rosalina Adonis, Urbano Adonis and Carmen Navarro, and as evidenced

by the death certificate of the victim, a xerox copy of which was annexed to the motion. The

prosecution opposed the motion. 20 In its Order of 8 January 1991, the trial court denied the

motion. 21

On 21 January 1991, the accused filed his Notice of Appeal. 22

In his Brief, the accused imputes upon the lower court the commission of the following errors

First Assignment of Error

. . . IN IGNORING THE TESTIMONIAL AND DOCUMENTARY EVIDENCE OF THE DEFENSE WHICH

CLEARLY SHOWED THAT THE TESTIMONIES OF PROSECUTION WITNESSES ROSALINA ADONIS

AND CARMEN NAVARRO WERE UNTRUE AND INCREDIBLE.

xxx xxx xxx

Second Assignment of Error


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THE LOWER COURT WAS BIASED AGAINST THE ACCUSED AND FAILED TO EXERCISE THE COLD

NEUTRALITY EXPECTED OF AN IMPARTIAL ARBITER, IN VIOLATION OF THE CONSTITUTIONAL

RIGHTS OF THE ACCUSED.

xxx xxx xxx

Third Assignment of Error

. . . IN GIVING CREDENCE TO THE TESTIMONY (sic) OF THE PROSECUTION WITNESSES DESPITE

THE FACT THAT THE SAME ARE INHERENTLY INCREDIBLE AND CONTRARY TO THE COMMON

EXPERIENCE OF MAN.

xxx xxx xxx

Fourth Assignment of Error

. . . IN NOT GIVING THE DEFENSE AN OPPORTUNITY TO PRESENT THE DEATH CERTIFICATE OF

THE DECEASED LOLITO RIVERO, OR AT LEAST CONSIDER THE SAME IN ITS DECISION.

The primary reasons relied on for the first assigned error are that (a) the declarations of

prosecution witnesses Rosalina Adonis and Carmen Navarro that the incident in question took

place on 15 September 1988 are false because according to defense witness Antonio Varona, it

actually happened on 16 September 1988, the day he requested the victim, Lolito Rivero, to

slaughter a pig, and (b) the trial court disregarded Entries No. 904 and No. 905 of the Mayorga

Police Blotter which were made immediately after the incident on 13 September 1988.

The second assigned error is premised on the accused's conclusion that the trial court was

biased in (a) stating in its decision that the defense did not submit any documentary evidence

when in fact it did submit Exhibit "1", 24 a portion of the Investigation Report prepared by the

Office of the Regional Inspector, PC/INP Regional Command 8 that refers to Entry No. 904 in the

Police Blotter of Mayorga, Leyte which in turn states that the accused reported that he shot

Lolito Rivero to death on 16 September 1988; (b) considering the aforesaid Investigation Report

for the prosecution although the same was not offered in evidence; and (c) restricting the

cross-examination of the prosecution witnesses, and in being liberal during the cross-

examination of the defense witnesses.

In support of the third assigned error, the accused contends that the trial court took "hook-line-

and-sinker and regarded as a gospel truth the testimony (sic) of the prosecution witnesses,

specifically that of Rosalinda (sic) Adonis, the elder sister of the deceased Lolito Rivera." 25


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At the bottom of the first and third assigned errors is the issue of the credibility of the

witnesses. In view thereof, both errors will be discussed jointly. One well-settled rule which this

Court has consistently upheld and faithfully adhered to is that the issue of credibility is to be

resolved primarily by the trial court because it is in a better position to decide the question,

having heard the witnesses and observed their deportment and manner of testifying during the

trial. 26 The trial court's findings on the matter of credibility are thus entitled to the highest

degree of respect 27 and will not be disturbed on appeal in the absence of any showing that it

overlooked, misunderstood or misapplied some facts or circumstances of weight and substance

which would have affected the result of the case. 28 Our careful review and evaluation of the

testimonies of the witnesses for the prosecution as well as for the defense yield no cogent or

compelling reason to alter the findings of fact made by the trial court.

Accused's insistence that the shooting took place on 16 September 1988 as testified to by

Antonio Varona and as allegedly borne out by Exhibit "1" and not on 15 September 1988 as

testified to by prosecution witnesses Rosalina Adonis and Carmen Navarro, deserves scantconsideration. It is to be observed that Varona's testimony is based entirely on his recollection

of the date he requested the victim to slaughter a pig. The judge who observed his demeanor

while he was on the witness stand found the testimony to be unworthy of credit. The accused

provides Us with no weighty reason to overturn the trial court's findings. As to Exhibit "'L", a

portion of page 5 of the Investigation Report of Sgt. Samuel Resales, investigator of the Office

of the Regional Inspector submitted to the Regional Inspector General of the PC/INP Regional

Command 8, 29 which reads:

28. In the police blotter from Hqs. Mayorga INP, page number 117, Entry Number 904 dated

September 16, 1988 states that C2C Teofilo Kempis OIC presently assigned as Hqs Svc Coy,HRECOM 8, reported to this station that he shot to death one alyas Lolito Rivero of an unknown

resident(sic) at Brgy Talisay, Mayorga, Leyte at more or less 3:00 o'clock in the afternoon of

September 16, 1988. Said victim was known to be a suspect of some illegal activities (Kawat) on

the said Brgy. He also reported that his parents were mistreated by said suspect. (Exh. "P-1") 30

it is quite evident that the accused himself was the informant. The trial court found that Entry

No. 904, referred to in Exhibit "1", and Entry No. 905 in the Mayorga police blotter, do not state

when Lolito Rivero was shot by the accused. Thereupon, on the basis of the testimonies of the

witnesses for the prosecution, it concluded that the incident did in fact occur on 15 September

1988. The court's careful analysis reads:

. . . While both entries 904 & 905 were entered on September 16, 1988, the accused who

reported the killing of Lolito Rivero did not reveal in said entry No. 904 the exact date of the

killing but the entry just stated that accused killed somebody at Bgy. Talisay, Mayorga, Leyte.

The victim was Lolito Rivero. He also reported that his parents were maltreated by the said

victim. The accused did not mention the date of the killing. To the mind of the Court, the date


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September 16, 1988 is the date accused reported the incident but not the date Lolito Rivero

was killed which was on September 15, 1988. Again, as to Entry No. 905 reported by Corazon de

Paz Catanoy, the exact date of the incident was not also given by her. The entry only states:

'September 1988', no day was mentioned by Corazon de Paz Catanoy as she left immediately

after reporting the incident.

These entries Nos. 904 & 905 which are dated September 16, 1988 were used by the defense to

destroy the credibility of the testimonies of prosecution, witnesses Rosalina Adonis, Urbano

Adonis and Carmen Navarro as to the real date of the incident as the incident happened on

September 15, 1988, which testimonies the Court lends full faith and credence as these

prosecution witnesses testified in a clear, concise and straightforward manner and the Court

finds no infirmity in their testimonies at the trial. The records of this case showed ample proof

at the investigation made of these prosecution witnesses at the Headquarters, PC/INP Regional

Command 8, Office of the Regional Inspector dated December 13, 1988 conducted at Camp

September 21st movement, at Palo, Leyte which showed from the affidavits of theseprosecution witness (sic) that the killing of Lolito Rivero happened on 'September, 1988 15,

1500H' meaning to say in military parlance as September 15, 1988 at 3:00 o'clock in the

afternoon, which date dovetails with the declarations of the prosecution witnesses. 31

Then too, We find it rather strange that the accused merely assails the testimonies of Rosalina

Adonis and Carmen Navarro only insofar as the date of the commission of the crime is

concerned. He seems to have forgotten that two (2) other prosecution witnesses, namely

Urbano Adonis 32 and Pascual Vega, 33 the latter being the Municipal Mayor of Mayorga at

that time and who considers the accused as his grandson a claim not even rebutted by the

latter collaborated the testimonies of Rosalina and Carmen. Accused further failed toremember that in his motion for reconsideration, 34 he attempted to assail Urbano's testimony

and place Urbano himself in the same category as Rosalina and Carmen. Thus:

Finally, and at the hazard of seeking a new trial, Rosalina Adonis, Urbano Adonis, and Carmen

Navarro perjured themselves in open court by testifying that the incident took place on

September 15, 1988. 35

The accused's deafening silence in his Brief as regards Urbano's declaration signifies nothing

less than the recanting of his previous imputation that Urbano had likewise perjured himself.

In an effort to save his theory that Lolito Rivero was shot on 16 September 1988, the accused

now faults the trial court, by way of his fourth assigned error, for not giving him the opportunity

to present the death certificate of the deceased Lolito Rivero, or at least consider the same in

its decision. He asseverates that this certificate indicates that Lolito Rivero died on 16

September 1988. This claim is unfounded. Neither the records of the case nor the transcripts of

the stenographic notes reveal that at any time before the case was submitted for decision,


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counsel for the accused had sought to offer in evidence the said death certificate or compel its

production by compulsory process. It was only in his motion for the reconsideration of the

adverse decision that he referred to the death certificate, attaching to the said motion a hardly

legible photocopy thereof as Annex "A". 36 A motion for reconsideration is not the proper

procedural remedy for such a purpose. Hence, the same was correctly rejected by the trial

court. This disposes of the fourth assigned error.

Coming back to the second assigned error, We find the three(3) grounds invoked in support

thereof to be without any merit. In the first place, while it may be true that the trial court

should not have taken into consideration that portion of the Investigation Report of the Office

of the Regional Inspector (PC/INP Regional Command 8), which is not included in Exhibit "1", to

bolster its conclusion that the incident in question did in fact occur on 15 September 1988, such

an erroneous recourse did not in any way affect the veracity of its findings which were based

principally on the testimonies of the witnesses given in open court and subjected to rigorous

scrutiny during cross-examination by counsel for the accused. We, of course, agree with theaccused that since only a portion thereof, Exhibit "1", was offered in evidence, the trial court

should not have taken the rest into account in the formulation of its conclusions. Section 17,

Rule 132 of the Revised Rules of Court provides:

SEC. 17. When part of transaction, writing of record given in evidence, the remainder

admissible. When part of an act, declaration, conversation, writing or record is given in

evidence by one party, the whole of the same subject may be inquired into by the other, and

when a detached act, declaration, conversation, writing or record is given in evidence, any

other act, declaration, conversation, writing or record necessary to its understanding may also

be given in evidence. (11a)

Thus, in order that the rest of the Investigation Report may have been considered by the trial

court, the prosecution should have offered the same in evidence 37 or moved that the entire

document be received in evidence. 38 It bears stressing at this point that the Report attached

to the records of Criminal Case No. 841 is only an uncertified plain copy which is actually

annexed to an Order of the Provincial Prosecutor dated 31 March 1989. 39 This Order was not

identified or offered in evidence. How it found its way into the records of the case was never

explained. Hence, the trial court cannot even take judicial notice thereof. Nevertheless, stated

above, this error was of no consequence.

In the second place, the claim of an alleged restriction on the cross-examination of the

prosecution witnesses is unfounded. A valid objection was interposed by the prosecutor on the

ground of relevancy or materiality. After the court had sustained the objection, counsel for the

accused did not further press his point. He did not even ask for a reconsideration of the ruling.


39/42

It having been conclusively established that the incident on question actually took place on 15

September 198, accused's first defense of alibi may be appropriately looked into.

Unfortunately, however, this defense provides him of no relief. Prosecution witnesses Rosalina

Adonis, Carmen Navarro and Urbano Adonis all saw him at the scene of the crime at the time of

the killing. In fact, the first two were eyewitnesses to the actual shooting. Moreover, the

accused further failed to prove that it was physically impossible for him to have been at the

scene of the crime at the time the crime was committed. It is a fundamental juridicial dictum

that the defense of alibi cannot prevail over the positive identification of the accused. 40 For it

to prosper, it is not enough that, an accused show that he was somewhere else when the crime

was committed; he must, more importantly, demonstrate that it was physically impossible for

him to have been at the scene of the crime. 41 In the instant case, the trial court found that

Barangay Cabacungan, Dulag, Leyte the place where the accused claims to have stayed in the

afternoon of 15 September 1988 is only a few kilometers from Barangay Talisay, Mayorga,

Leyte, the place where Lolito Rivero was killed. The municipalities of Dulag and Mayorga adjoin

each other; considering that the accused has a motorcycle, it was then not physically impossiblefor him to have been in Talisay at the time of the killing.

The accused's second defense based on the theory that the incident occurred on 16

September 1988 was erroneously considered by the trial court as self-defense. As earlier

noted, however, the accused, via the manifestation of his counsel, had offered his oral

testimony "to show that the incident happened under circumstances that could exempt or

mitigate" his liability. 42 In other words, it would seem that the accused himself is not

convinced that he had acted in self-defense. The exempting circumstance alluded to could, at

most, be that prescribed in paragraph 4, Article 12 of the Revised Penal Code, viz.:

4. Any person who, while performing a lawful act with due care, cause an injury by mere

accident without fault or intention of causing it.

He claims that the trigger of his M-16 Armalite rifle "was accidentally pulled" by him while he

and the victim were grappling for the possession of the said weapon. Thus:

ATTY. TABAO:

Q Mr. Kempis, what was the purpose in your going to the house of Lolito Rivero?

A My purpose was to advice him that he should not be stealing and challenging people to a

fight, because he is causing trouble to other persons.

Q When Corazon de Paz told you that Lolito Rivero was at the kitchen, what if anything did you

do?


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A After telling Lolito to come out to the yard and Lolito Rivero came near, so I said to him: You,

Lolito, do not steal again and do not be challenging people because you are causing them

trouble.

Q After telling Lolito Rivero, what did he say in reply?

A He said: I will not steal anymore, sir, because I have just been released from jail, and so I said:

Thank you. Then when I turned my back he immediately grabbed my M-16 because at that time

I was carrying my M-16.

Q Where was your M-16 located at the very moment?

A It was slung on my left shoulder.

Q Now, after Lolito Rivero grabbed your M-16 rifle, what happened?

A We grappled for the possession of the gun and in the process both of us fell down.

Q Now, after both of you fell down, what if anything happened?

A The trigger was accidentally pulled.

Q Now, who was hit after the trigger of the M16 was pulled?

A He was the one hit because I was holding the gun by the trigger, while he was holding themuzzle portion.

Q How many shots were fired accidentally?

A Three (3) successive shots." 43 (underscoring supplied for emphasis).

This allegation of an accidental pulling of the weapon's trigger hardly deserves even the most

liberal or sympathetic consideration. As aptly observed by the trial court, the accused is a

"trained soldier" 44 while the victim was "defenseless . . .who . . . was not even armed with a

bolo or any weapon and,. . . untrained . . . in firearms . . . . " 45 The characterization by the

court of the victim was not even rebutted by the accused in his Brief. And even if We are to

assume, for the sake of argument, that the victim did grab the weapon which was then slung

over the accus

evid case digest 2.15.docx

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