G.R. No. 96397 November 21, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MELENCIO "BAROC" MENDOZA, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Punzalan and Associates Law Office for defendant-appellant.

GUTIERREZ, JR., J.:pOn May 21, 1984, the accused-appellant Melencio Mendoza was charged before the Regional Trial Court of Valenzuela, Metro Manila, Branch 172 with the crime of Robbery with Homicide and Serious Physical Injuries in an Information which reads:

The undersigned Asst. Provincial Fiscal accuses Melencio "Baroc" Mendoza of the crime of robbery with homicide and physical injuries, "penalized under the provisions of Art. 294, paragraph 1, of the Revised Penal Code, committed as follows:

That on or about the 9th day of June, 1981, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the said accused Melencio "Baroc" Mendoza, with Romeo Esquillo y Cabacang, Roberto Marquez y Dionisio, and Jose Ramos y Austria who are already charged of the same crime in Crim. Case No. 4109-V-81 and another person who is still at large, armed with unlicensed firearms, conspiring and confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation upon the spouses Felipe Alkuino and Eufrocina Trajano-Alkuino, take, rob and carry away with them a lady's handbag containing cash amounting to P30,545.00 and checks with total face value of P18,167.85 or a grand total of P48,712.85, belonging to the said spouses Felipe Alkuino and Eufrocina Trajano-Alkuino, to the damage and prejudice of the said owners in the total amount of P48,712.85;

That by reason or on the occasion of the said robbery and for the purposes of enabling them to take, rob and carry away the said amount of P48,712.85 in cash and in checks, the herein accused Melencio "Baroc" Mendoza, together with his co-accused and another person still at large, in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, with evident premeditation and treachery and taking advantage of their superior strength, attack, assault and shoot with firearms they were then provided the said spouses Felipe Alkuino and Eufrocina Trajano-Alkuino, thereby inflicting fatal physical injuries on said Felipe Alkuino which directly caused his death and serious physical injuries on said Eufrocina Trajano-Alkuino which required medical attendance for a period of one (1) to two (2) months and incapacitated her from performing her customary labor for the same period of time.

Contrary to law. (Original Records, pp. 1-2)

Upon arraignment on March 9, 1985, the accused-appellant pleaded not guilty to the crime charged. Trial proceeded and a decision convicting the accused was rendered by the trial court. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, the Court finds the accused Melencio "Baroc" Mendoza guilty of the crime of robbery with homicide and physical injuries and hereby sentences him to suffer the penalty of reclusion perpetua; to suffer all the accessory penalties provided by law; to indemnify the heirs of Felipe Alkuino in the sum of P30,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. (Rollo, p. 36)

The antecedent facts as stated in the Appellee's Brief are as follows:

In the morning of June 9, 1981, Romeo Esquillo, a painter, was in his house at Barangay San Gabriel, Malolos, Bulacan when he decided to go to a store nearby. At the store, he was approached by a certain Roberto Marquez, who convinced him to go to latter's house. While in the house of Marquez, a person by the name of Romeo Magtoto arrived and he was introduced to Esquillo (TSN, May 31, 1985, pp. 8-12)

Marquez, Esquillo and Magtoto on board a motorcycle driven by Marquez, went to Malanday. When they reached Malanday, a person, who was riding in a car approached them. Marquez told Esquillo that the man was Barok Mendoza (TSN, Ibid., pp. 16-17).

The group thereafter wen to the house of a friend of Barok Mendoza where they took some drinks. After the drinking session, they proceeded to Polo where they just stood by the street purportedly waiting for a friend to pass by (TSN, Id., pp. 26-27)

When a red jeep (Isuzu pick-up KB) suddenly appeared, the group scrambled, boarded their vehicles and chased the vehicle which turned out to be that of the Alkuinos. Appellant rode in the car together with Ramos and Magtoto while Esquillo rode at the back of the motorcycle driven by Marquez (TSN, Id. pp. 33-34)

When the motorcycle was already very close to the pick-up vehicle of the Alkuinos, appellant gave Esquillo a gun and told him that the occupants of the jeep have money and if he will not get the money he will kill him (Esquillo) (TSN, Id., pp. 40-41)

Esquillo did what was commanded of him. When he jumped into the red jeep as ordered by Marquez, Esquillo poked the gun at the occupants of the vehicle and announced the holdup (TSN, Id., p. 40)

Esquillo grabbed the bag containing money and checks worth P48,712.85. Eufrocina Alkuino and Esquillo grappled for possession of the bag when suddenly the gun went off. Eufrocina Alkuino felt that her middle finger was injured. At this point, Felipe Alkuino, the husband of Eufrocina, joined in the grapple until it went off again hitting him in the chest (See RTC Decision, p. 4).

Esquillo ran with the bag but the contents thereof spilled out. Esquillo, Marquez and Ramos helped each other pick up the money and placed them inside the bag (Ibid.)

Eufrocina summoned for help and the people arrived immediately and brought Felipe to the hospital where the later expired. The cause of death, as found by Dr. Bienvenido Muñoz, supervising medico-legal officer of the NBI, is hemmorrhage, acute, severe secondary to gunshot wound. The victim suffered only one gunshot wound. Eufrocina later identified the man who poked the gun at them as Romeo Esquillo and the two others she saw in front of their vehicle when it suddenly stopped as Roberto Marquez and Jose Ramos. (Id.)

In the meantime, Esquillo ran with the bag. He looked for his companions but they already left him. He was chased by the barrio people and was later arrested by a certain Sgt. Avelino Francisco (TSN, May 31, 1985, p. 48)

Esquillo was brought to the Valenzuela Municipal Building where he was investigated. In the investigation conducted on him, after the regained consciousness, he named his companions in the robbery holdup as Roberto Marquez, Romeo Magtoto and Jose Ramos (TSN, July 7, 1986, p. 6). Esquillo then accompanied the Valenzuela police headed by then Lt. Carlos Tiquia and proceeded to Catmon, Malolos, Bulacan where Marquez and Ramos were arrested. Magtoto was able to elude the police and fled (TSN, September 15, 1986, p. 5)

An investigation was conducted on Marquez and Ramos. This time Marquez mentioned Melencio Mendoza as the Mastermined of the robbery holdup allegedly seconded by Esquillo. A team of Valenzuela police was formed and headed for Catmon, Malolos, Bulacan to track down Mendoza. The team waited for Mendoza as he was not home yet at that time. At around 10:00 p.m., Mendoza alighted from a passenger jeepney and he was informed about his alleged involvement in the robbery holdup to which accusation he vehemently denied. The police brought him to their headquarters for questioning.

On June 10, 1981, a day after that robbery incident, Eufrocina Alkuino arrived at the Valenzuela Municipal Building as she was informed that the suspects in the robbery holdup were already apprehended and arrested. In the police line-up, Eufrocina Alkuino pointed to Mendoza because, according to her, she heard Marquez and Esquillo telling the police that Mendoza was the mastermined of the holdup (see Decision, p. 7)

In the preliminary investigation that was duly conducted by the Municipal Court of Valenzuela presided by Judge Serapio, Mendoza was dropped from the charge as no probable cause was found then to indict him to the crime of robbery with homicide and physical injuries (See Exh. 5).

Three separate Informations were duly filed with the Regional Trial Court of Valenzuela, Branch 171; the first one docketed as Criminal Case No. 4109-V-81 against Esquillo, Marquez and Ramos for Robbery with Homicide and Serious Physical Injuries, and the second docketed as Criminal Case No. 4110-V-81 for illegal possession firearm against Esquillo, and the third docketed as Criminal Case No. 4111-V-81 for illegal possession of firearms against Marquez.

In the course of the trial of Criminal Case No. 4109-V-81 and Criminal Case No. 4110-V-81,

Esquillo implicated Melencio Mendoza in the commission of the crime of Robbery. All the accused in the three criminal cases were convicted of the crimes charged against them.

Subsequently, the Provincial Fiscal of Bulacan filed a separate Information charging Mendoza with the crime of Robbery with Homicide and Physical Injuries, which was docketed as Criminal Case No. 6252-V-84.

In an order dated October 28, 1985 (TSN, October 28, 1985, pp. 3-4) in Criminal Case No. 6252-V-84, the trial court, acting on the motion of the prosecution and with the conformity of appellant and his counsel, allowed the testimonies of the following witnesses in Criminal Case No. 4109-V-81 and in Criminal Case No. 4110-V-81, to be adopted and made part of the evidence of the prosecution subject to further cross-examination by counsel for the appellant: (1) Dr. Bienvenido Muñoz, Supervising Medico Legal Officer, NBI, Manila; (2) Marlene Merdegia-Salangad, Forensic Chemist, PC Crime Laboratory, Camp Crame, Quezon City; (3) Vicente de Vera, Ballistician, PC Crime Laboratory, Camp Crame, Quezon City; (4) Technical Sgt. Flordelito S. Basul, Chief Clerk, Firearms Branch and Explosives Unit, Camp Crame, Quezon City; (5) Eufrocina Trajano-Alkuino; and (6) Jose Martin (see Decision, pp. 3-6) (Appellee's Brief, pp. 4-10)

The defense of the appellant is premised on his allegedly having been somewhere else when the crime was committed. He claimed that he was working inside the bank on that day and presented the logbook of the security guard which showed his entering the place at 8:33 a.m. and leaving it at 5:32 p.m. The robbery happened at around 1:00 p.m. The appellant stated that he took his lunch at his place of work.

The accused-appellant now interposes this appeal, assigning the following as errors allegedly committed by the court a quo:

I

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED ON THE BASIS OF MERE ASSUMPTIONS AND CONJECTURES.

II

THE TRIAL COURT ERRED IN HAVING TAKEN JUDICIAL NOTICE OF THE TESTIMONIES IN CRIMINAL CASES NOS. 4109-V-81 AND 4110-V-81.

III

THE TRIAL COURT ERRED IN ENTERING A JUDGMENT OF CONVICTION WITHOUT THE REQUIRED QUANTUM OF EVIDENCE BEYOND REASONABLE DOUBT; AND IN NOT ENTERING A JUDGMENT OF ACQUITTAL. (Appellant's Brief, p. 80)

Melencio Mendoza contends that the trial court erred in basing its judgment of conviction on mere assumptions and conjectures.

The contention of the appellant is bereft of merit.

The records show that the witness, Mrs. Alkuino and the accused-appellant knew each other well. The latter was a bookkeper in the bank where the Alkuinos maintained an account. Mendoza knew the details of their bank account so much so that he would make adjustments like transferring of funds from the Alkuino's savings account to current account whenever requested by said clients in order to properly fund checks issued by them.

As stated in the facts of the case, on the day prior to the incident (June 8, 1981), Mrs. Alkuino inquired from the appellant if the checks she issued to Alaska in the amount of P20,000.00 and P30,000.00 were already presented for collection. When the accused answered in the negative, Mrs. Alkuino informed Mendoza that she will deposit the necessary amount the following day.

From this, it can be concluded that Mendoza knew that the Alkuino couple would be depositing a big amount the following in time before the checks are presented for collection.

As to Mendoza's relationship with Marquez, it was shown that the possibility of conspiracy is not remote. They were townmates and both belong to be same barangay. Thus, it can be said that they knew each other well.

We see no reason why Marquez implicate a good friend in a serious crime if there was no truth to it.

The close relationship between the two and the access of Mendoza to bank record and his relationship with regular bank clients like the Alkuinos logically establish the connection between Mendoza and the crime.

The records do not show that Esquillo previously knew Mendoza. It was Marquez whom Esquillo knew.

Marquez in turn knew Mendoza. Pieced together, the facts brings out a logical conclusion which is further established by the testimonies of other witnesses.

The accused-appellant further assails the court's having taken judicial notice of Esquillo's testimony in another case despite its not having been offered nor admitted because Mendoza was not an accused therein and he did not conform to the adoption of said testimonies in this case. He further contends that granting it were admitted as part of the prosecution's evidence in this case, it cannot be considered it was repudiated by Esquillo himself.

This contention must likewise fail.

It is noted that when a motion to adopt the said testimonies of witnesses was made by the prosecution, the appellant and his counsel did not object but instead gave their consent.

Moreover, Esquillo was confronted with portions of his testimonies in the previous cases which he merely denied or refused to explain. Said portions, thus, became part of his testimony which were duly subjected to cross-examination by the defense counsel.

When confronted with statements given in his previous testimony, it became apparent that Esquillo was trying to hide something but which he was not able to do when cornered by the judge. Thus, the appellant admitted:

Q Are you telling this court that you never testified in the sala of Judge Constantino or you testified but you were not asked those questions, so you did not give those answer?

A I testified, your Honor.

Q Since you have testified, are you trying to tell this Court that you were not asked those questions and those were not your answers, is that what you want this Court to believe?

A Those were the questions asked of me, your Honor.

Q How about the answers, were those your answers?

A Yes, your Honor. (TSN., May 31, 1985, p. 42)

Anent the third assigned error where the appellant claims he was convicted without the required quantum of evidence because Mrs. Alkuino did not specify his role in the crime, we find the same wanting of any basis.

Portions of Esquillo's testimony described in detail how appellant and his group hatched their plan. The same was corroborated by the testimonies of Mrs. Alkuino and other prosecution witnesses who had no known grudge against him. Thus, it has repeatedly been held that the testimony of witnesses not actuated by improper motives is entitled to full faith and credit (People v. Patog, 144 SCRA 429 [1986]; People v. Cruz, 191 SCRA 127 [1990]; People v. Rabang, 187 SCRA 682 [1990]).

The accused-appellant likewise contends that conspiracy was not proven.

Conspiracy has been established by the facts on record. The concerted action of each member pieced together and taken as a whole conclusively shows the existence of conspiracy.

It need not be shown by direct evidence. It may be inferred from the acts of all the accused (People v. Abueg, 145 SCRA 622 [1986]) and where each performs specific acts in the commission of the crime with such closeness and coordination that would indicate a common purpose or design, conspiracy is considered established beyond reasonable doubt. (People v. Petenia, 143 SCRA 361 [1986]).

The accused-appellant assails the admission of the testimony of Esquillo.

As stated in the case of People v. Ponce, et al. G.R. No. 83694, May 31, 1991;

It is true that there are doctrines to the effect that the testimony of a co-conspirator is not sufficient for conviction, unless supported by other evidence. The reason is that it comes from a polluted source. It must be received with caution because, as is usual with human nature, a culprit, confessing a crime, is likely to put the blame as far as possible on others rather than himself. But the aforesaid rule is not without exceptions. The testimony of a co-conspirator may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself, because it was given unhesitatingly and in a straightforward manner and full of details which by their nature could not have been the result of deliberate afterthought (People v. Cuya, Jr., 141 SCRA 351 [1986]).

In an effort to exculpate himself, Mendoza claims that he could not have been at the scene of the crime since he was at his place of work from 8:30-11:45 and 11:55-5:30 on that day. He presented as proof a xerox copy of his time records, the logbook as prepared by the security guard on duty and a certification from a bank officer that he was present that day.

The defense of the accused is mainly based on alibi which this Court has consistently considered the weakest of all defenses.

To established alibi, the accused must show that it was impossible for him to have been at the place where the crime was committed at the time of its commission (People v. Abigan, 144 SCRA 130; People v. Coronado, 145 SCRA 250 [1986]).

The appellant has failed to establish the impossibility of his presence at the scene of the crime considering that the distance between the bank and place of the crime was only a few kilometers away. Also, the crime happened during lunch break where absence of the employees is not noticeable.

In view of the foregoing, we find no reversible error in the trial court's finding of conviction. However, as in People v. Nunag, G.R. No. 92570, April 22, 1991, we find the designation of the crime erroneous.

Thus, the case states:

. . . there is no special complex crime as robbery with homicide and less serious physical injuries. The offense is denominated as robbery with homicide regardless of the number of homicides or injuries committed. These other circumstances merely serve as generic aggravating circumstances which can be offset by other mitigating circumstances (People v. Pedroso, 115 SCRA 599 [1982]).

WHEREFORE, the appealed decision is hereby AFFIRMED but MODIFIED. The appellant is found guilty of the special complex crime of robbery with homicide but indemnity is increased from THIRTY THOUSAND PESOS (P30,000.00) to FIFTY THOUSAND PESOS (P50,000.00) in accordance with recent rulings.

SO ORDERED.

Fernan, C.J., Bidin, Davide, Jr. and Romero, JJ., concur.

G.R. No. 113779-80 February 23, 1995

ALVIN TUASON y OCHOA, petitioner, vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J.:

The first duty of the prosecution is not to prove the crime but to prove the identity of the criminal. For even if the commission of the crime can be established, without proof of identity of the criminal beyond reasonable doubt there can be no conviction. In the case at bench, the identification of the petitioner cannot rest on an assured conscience. We rule that petitioner is entitled to a mandatory acquittal.

Petitioner Alvin Tuason y Ochoa, John Doe, Peter Doe, and Richard Doe were charged before the Regional Trial Court of Quezon City 1 with Robbery 2 (Article 294, paragraph 5 of the Revised penal Code) and Carnapping 3 (republic Act No. 6539).

Of the four (4) accused, only petitioner was apprehended. The other three (3) are still at-large.

Upon arraignment, petitioner pleaded not guilty to both charges and was tried.

We come to the facts.

Complainant CIPRIANA F. TORRES is a public school teacher of Kaligayahan Elementary School, Novaliches. Her work requires her to leave her maid, JOVINA MADARAOG TORRES, alone in her house at Block 45, Lot 28, Lagro Subdivision, Novaliches, Quezon City. Her husband is in Australia while her children go to school.

The incident transpired at around 8:45 in the morning of July 19, 1988. Somebody knocked at the gate of the Torres residence pretending to buy ice. As the maid Madaraog handed the ice to the buyer, one of the robbers jumped over the fence, poked a gun at her, covered her mouth, and opened the gate of their house. 4 The ice buyer and his companions barged in. Numbering four (4), they pushed her inside Torres' house and demanded the keys to the car and the safety vault. 5

She told them she did not know where the keys were hidden. 6 They tied up her hands and dragged her to the second floor of the house. Petitioner was allegedly left downstairs as their lookout. 7

On order of the accused, Madaraog sat on Torres' bed, her body facing the bedroom door with her back on the vault. They also gagged her mouth and ransacked Torres' room. One of the accused stumbled upon a box containing keys. They used the keys to open drawers and in the process found the car key. Petitioner was then summoned upstairs and given the car key. He tried it on the car and succeeded in starting its engine.

In twenty (20) minutes, accused were able to loot the vault and other valuable items in the house. They then tied Madaraog's hands and feet to the bed's headboard and escaped using Torres' car.

Still gripped with fear, Madaraog loosened her ties with her fingers, hopped to the stairs and cried for help. 8 Her neighbor Semia Quintal responded and untied her. They also sought the help of Angelina Garcia, another neighbor. It was Garcia who informed Torres that her house was burglarized.

Torres reported the robbery to the police authorities at Fairview, Quezon City and the National Bureau of Investigation (NBI). On July 25, 1988, Madaraog and Quintal described the physical features of the four (4) robbers before the NBI cartographer. One of those drawn by the artist was a person with a large mole between his eyebrows. 9 On August 30, 1988, petitioner was arrested by the NBI agents. The next day, at the NBI headquarters, he was pointed to by Madaraog and the other prosecution witnesses as one of the perpetrators of the crimes at bench.

SEMIA QUINTAL 10 averred that she saw petitioner allegedly among the three (3) men whiling away their time in front of Alabang's store some time before the crimes were committed. Quintal is a neighboring maid.

MARY BARBIETO 11 likewise declared that she saw petitioner allegedly with several companions standing-by at Torres' house that morning of July 19, 1988. She is a teacher and lives within the block where the crimes were committed.

Petitioner ALVIN TUASON, 12 on the other hand, anchored his defense on alibi and insufficient identification by the prosecution. he has lived within the neighborhood of the Torres family since 1978. He averred that on July 19, 1988, he was mixing dough and rushing cake orders from 7:00 o'clock in the morning till 1:00 o'clock in the afternoon at his sisters' TipTop bakeshop in Antipolo Street, Tondo, Manila. It takes him two (2) hours to commute daily from Lagro, Novaliches to Tondo.

He was arrested more than one (1) month after the robbery. On August 30, 1988 at about 8:00 o'clock in the evening, he was in their house watching a basketball game on T.V. and went out to buy a cigarette. On his way back, a person accosted him and asked his name. After he identified himself, 13 a gun was poked at his right side, a shot was fired upward, and five (5) men swooped on him without any warrant of arrest. He asked them if he could wear t-shirt as he was naked from waist up. They refused. They turned out to be NBI agents of one of whom a certain Atty. Harwin who lived in Lagro, Novaliches. He was shoved into the car and brought to the NBI headquarters. 14 He was surprised when an NBI agent, whose identity was unknown to him, pointed to him as one of the suspects in the robbery in the presence of Madaraog and the other prosecution witnesses.

Petitioner's sister ANGELI TUASON, 15 part-owner of TipTop Bakeshop corroborated his story. She testified that on July 17, 1988 she asked her sister Mary Ann to remind petitioner to work early on July 19, 1988 since Mondays, Tuesdays, and Wednesdays are busy days as she caters to schools.

The trial court in a Joint Decision convicted petitioner of the crimes charged and sentenced him

as follows:

xxx xxx xxx

In Q-88-396 (carnapping) or an indeterminate term of SEVENTEEN (17) YEARS and FOUR (4) MONTHS as minimum and TWENTY (20) YEARS as maximum; and in Q-88-397 (robbery) for a term of ONE (1) YEAR, SEVEN (7) MONTHS and ELEVEN (11) DAYS as minimum and TWO (2) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS as maximum.

On the civil aspect, the court hereby orders Alvin Tuason y Ochoa as follows:

1. In Q-88-396 (carnapping) to return to Mrs. Cipriana Torres and her husband the carnapped Toyota Corona Sedan, Model 1980 with Plate No. NPZ 159 or to pay its value of P180,000.00 which the court finds to be the reasonable value of the said car; and

2. In Q-88-397 (robbery) to return to Mrs. Cipriana Torres and her husband the stolen items mentioned in the information filed in said case and hereinabove stated or pay the corresponding values thereon or a total of P280,550.00 which the court finds to be the reasonable values.

The civil liability is joint and solidary with the co-conspirators of accused Alvin Tuason.

In case of appeal, the bail bonds are fixed at TWO HUNDRED EIGHTY THOUSAND PESOS (P280,000.00) fro criminal case No. Q-88-396 and ONE HUNDRED THOUSAND PESOS (P100,000.00) for criminal case No. Q-88-397.

Costs against the accused.

SO ORDERED. 16

Petitioner appealed to respondent Court of Appeals. On December 16, 1993, the Eleventh Division of the appellate court gave no credence tothe exculpatory allegations of petitioner and affirmed in toto the assailed Decisions. 17 On February 4, 1994, petitioner's Motion for Reconsideration was denied for lack of merit. 18

In this petition for certiorari, petitioner contends that respondent appellate court erred:

A.

[I]N WRONGLY APPLYING TO THE CASE AT BAR THE PRINCIPLE THAT FINDINGS OF TRIAL COURTS ARE GENERALLY NOT DISTURBED ON APPEAL, PARTICULARLY CONSIDERING THAT THE FINDINGS OF THE TRIAL COURT IN THIS CASE ARE BASED ON CERTAIN REFUTABLE REASONS EXPRESSLY STATED IN ITS DECISION.

B.

[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE CONCEPT AND ATTENDING INFIRMITY OF "SELF-SERVING EVIDENCE."

C.

[I]N WRONGLY APPLYING TO THE TESTIMONY OF HEREIN PETITIONER THE CONCEPT AND ATTENDING INFIRMITY OF "NEGATIVE EVIDENCE."

D.

[F]OR IGNORING OR DISREGARDING THE GLARING AND FATAL INFIRMITIES OF THE TESTIMONIES OF PROSECUTION WITNESSES, SPECIALLY AS IDENTIFICATION, AS WELL AS TO THE PALPABLE IMPROBABILITY OF HEREIN PETITIONER HAVING BEEN A SUPPOSED PARTICIPANT IN THE OFFENSES CHARGED, THE ERROR BEING TANTAMOUNT TO GROSS MISAPPREHENSION OF THE RECORD.

E.

[I]N AFFIRMING THE CLEARLY REVERSIBLE DECISION OF THE TRIAL COURT.

We reverse.

Time and again, this Court has held that evidence to be believed, must proceed not only from the mouth of a credible witness but the same must be credible in itself. 19 The trial court and respondent appellate court relied mainly on the testimony of prosecution witness Madaraog that from her vantage position near the door of the bedroom she clearly saw how petitioner allegedly participated in the robbery. After a careful review of the evidence, we find that the identification of petitioner made by Madaraog and Quintal is open to doubt and cannot serve as a basis for conviction of petitioner.

Firstly, it must be emphasized that of the four (4) prosecution witnesses, only the maid Madaraog actually saw petitioner in the act of committing the crimes at bench. Witnesses Quintal and Barbieto testified they only saw petitioner at the vicinity of the crimes before they happened. There is, however, a serious doubt whether Madaraog and Quintal have correctly identified petitioner. At the NBI headquarters, Madaraog described petitioner as 5'3" tall and with a big mole between his eyebrows. 20 While Quintal also described petitioner as 5'3" and with a black mole between his eyebrows. 21 On the basis of their description, the NBI cartographer made a drawing of petitioner showing a dominant mole between his eyes. 22 As it turned out, petitioner has no mole but only a scar between his eyes. Moreover, he is 5'8 1/2" and not 5'3" tall. There is a big difference between a mole and a scar. A scar is a mark left in the skin by a new connective tissue that replaces tissue injured. 23 On the other hand, a mole is a small often pigmented spot or protuberance on the skin. 24 If indeed Madaraog and Quintal had a good look at petitioner during the robbery, they could not have erroneously described petitioner. Worthy to note, petitioner was not wearing any mask in the occasion. Madaraog's attempt to explain her erroneous description does not at all convince, viz.:

xxx xxx xxx

Q We come now to the third person "iyong namang isa ay mga 28 o 29 ang edad, mga 5'2" o 5'3" ang taas, payat, medyo kulot ang buhok at maiksi at mayroong malaking bilog na nunal sa pagitan ng kilay sa noo. Mahaba at malantik ang pilikmata," who is that?

Interpreter: Witness referring to Exhibit "J-3."

Q Madam witness where is that round mole that appears in the two eyebrows of the person?

A It is probably the cartographer that made a mistake.

Q I am referring to you now Exhibit "J". I call your attention to that black rounded figure at the middle of the bridge of the nose between the two eyebrows, what was that represent?

A A mole, sir. 25

xxx xxx xxx

Q Among the four drawings prepared by the cartographer section of the NBI, you will agree ith me Madam Witness that it is only on Exhibit "J" when that rounded mole appear?

A No sir, it is the third one. 26

xxx xxx xxx

Q You did not call the attention of the NBI that the third one whom you just identified as Exhibit "J-3" did not bear that rounded mole as mentioned by you, did you?

A I did not remember.

Q Why did you not remember having called the attention of the NBI to that deficiency in the drawing?

A I was not able to call the attention of the NBI (sic) because there were four of us who made the description. 27

Secondly, the trial court and the respondent appellate court unduly minimized the importance of this glaring discrepancy in the identification of the petitioner. The trial court resorted to wild guesswork. It ruled:

xxx xxx xxx

[T]he court has observed that Alvin has a prominent scar in between his two (2) eyebrows. It is not within the realm of improbability that Alvin covered up that scar with a black coloring to make it appear that he has a "nunal" which was therefore the one described by Jovina and, which reinforces her testimony that she had a good eye view of Alvin from the start of the robbery to its conclusion. 28

This is a grave error. The trial court cannot convict petitioner on the basis of a deduction that is irrational because it is not derived from an established fact. The records do not show any fact from which the trial court can logically deduce the conclusion that petitioner covered up his scar with black coloring to make it appear as a mole. Such an illogical reasoning cannot constitute evidence of guilt beyond reasonable doubt. This palpable error was perpetrated by respondent appellate court when it relied on the theory that this "fact" should not be disturbed on appeal because the trial court had a better opportunity to observe the behavior of the prosecution witnesses during the hearing. This is a misapplication of the rule in calibrating the credibility of witnesses. The subject finding of the trial court was not based on the demeanor of any witnesses which it had a better opportunity to observe. Rather, it was a mere surmise, an illogical one at that. By no means can it be categorized as a fact properly established by evidence.

And thirdly, corroborating witness Barbieto has serious lapses in her testimony that diluted her credibility, thus:

xxx xxx xxx

Q I am showing to you Exhibit "M" and please point to this Honorable Court that portion where the accused (Alvin Tuason) allegedly asked from you the price of that plastic pack of ice.

A I did not state it in my statement.

Q Why did you say a moment ago that you place it there (Sinumpaang Salaysay)?

A But that is the truth, sir.

Q I am not asking you the truth or falsehood . . . I am only asking you why you said a moment ago that the portion of your testimony now is incorporated in Exhibit "M".

A [B]ecause they asked the price of the ice. 29

xxx xxx xxx

Q After reading Exhibit "M", did you or did you not call the attention of the investigator that some of your narrations were not incorporated therein?

A No, I did not because he did not ask me.

Q [Y]ou did not come forward to volunteer that some portions of your narration were not incorporated therein?

A [T]he investigator knew it.

Q You mean to tell the Honorable Court that after reading Exhibit "M", the NBI investigator knew that there were some lapses or omissions in your statement?

A It's up to the investigator. 30

Barbieto is a school teacher and the kind of excuses she proffered does not enhance her credibility. However, she and Quintal merely testified they saw petitioner within the vicinity where the crimes were committed. By itself, this circumstance cannot lead to the conclusion that petitioner truly committed the crimes at bench. Petitioner, we note, lives in the same vicinity as the victim. To use his words, he lives some six (6) posts from the house of Torres. His presence in the said vicinity is thus not unnatural.

The doubtful identification of petitioner was not at all cured by the process followed by the NBI agents when petitioner was pointed to by Madaraog and the other prosecution witnesses in their headquarters. Madaraog's identification of petitioner from a line-up at the NBI was not spontaneous and independent. An NBI agent improperly suggested to them petitioner's person. Petitioner thus testified:

xxx xxx xxx

Q Mr. Witness (Alvin Tuason) do you know of any reason why these two witnesses in the persons of Jovina Madaraog Torres and Mary Barbieto would be testifying in the manner that they did against you?

A At the NBI, I saw them with the NBI agent. After the agent pointed at me, later on they also pointed at me. 31

On cross-examination, he declared:

xxx xxx xxx

Q Do you know the reason why they testified and pointed to you as one of the robbers of July 19, 1988?

A Because when I was at the NBI, the NBI agent pointed at me.

Q Did you see them at the NBI when they pointed at you?

A They were outside a room where there was a glass window.

Q So you can see those persons outside the room?

A Yes, sir.

Q When they pointed you and identified you where there other person with you when you were lined up during that time?

A In the second line I was in the line-up.

Q When was the first time they pointed you as one of the suspects?

A In the Office of the Chief Unit there, to the third floor of the NBI building. 32

This damaging testimony of the petitioner was not rebutted by the prosecution. The NBI agent present during the identification of petitioner was not presented to belie petitioner's testimony. Consequently, the identification of the petitioner in the NBI headquarters is seriously flawed. According to writer Wall, the mode of identification other than an identification parade is a show-up, the presentation of a single suspect to a witness for purposes of identification. Together with its aggravated forms, it constitutes the most grossly suggestive identification procedure now or ever used by the police. 33

The respondent appellate court, however, dismissed this claim of petitioner as self-serving. Again, the ruling misconstrues the meaning of self-serving evidence. Self-serving evidence is not to be literally taken as evidence that serves one's selfish interest. Under our law of evidence, self-serving evidence is one made by a party out of court at one time; it does not include a party's testimony as a witness in court. It is excluded on the same ground as any hearsay evidence, that is the lack of opportunity for cross-examination by the adverse party, and on the consideration that its admission would open the door to fraud and to fabrication of testimony. On the other hand, a party's testimony in court is sworn and affords the other party the opportunity for cross-examination. 34 Clearly, petitioner's testimony in court on how he was identified by the prosecution witnesses in the NBI headquarters is not self-serving.

Petitioner's main defense is alibi. He professed that on July 19, 1988 he was mixing dough at TipTop Bakeshop from 7:00 o'clock in the morning till 1:00 o'clock in the afternoon. With the usual traffic jam, it takes him two (2) hours to commute from Lagro to Tondo. It was thus physically impossible for him to be at the locus criminis. He said he learned about the robbery thru his neighbor three (3) days thereafter. He did not flee. He was arrested by the NBI agents more than one (1) month after the crimes were perpetrated.

Angeli Tuason's corroborative testimony established that her brother had an eye examination on July 17, 1988 35 and she reminded him to work early on July 19, 1988 which he did.

Judges should not at once look with disfavor at the defense of alibi. Alibi should be considered in light of all the evidence on record for it can tilt the scales of justice in favor of the accused. 36 In People vs. Omega, 37 we held:

Although alibi is known to be the weakest of all defenses for it is easy to concoct and difficult to disprove, nevertheless, where the evidence for the prosecution is weak and betrays lack of concreteness on the question of whether or not the accused committed the crime charged, the defense of alibi assumes importance.

The case at bench reminds us of the warning that judges seem disposed more readily to credit the veracity and reliability of eyewitnesses than any amount of contrary evidence by or on behalf of the accused , whether by way of alibi, insufficient identification, or other testimony. 38 They are unmindful that in some cases the emotional balance of the eyewitness is disturbed by her experience that her powers of perception becomes distorted and her identification is frequently more untrustworthy. Into the identification, enter other motives, not necessarily stimulated originally by the accusedpersonally — the desire to requite a crime, to find a scapegoat, or to support, consciously or unconsciously, an identification already made by another. 39

IN VIEW THEREOF, the Decision of December 16, 1993 is REVERSED and SET ASIDE and petitioner Alvin Tuason is ACQUITTED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado and Mendoza, JJ., concur.

G.R. No. 79094 June 22, 1988

MANOLO P. FULE, petitioner, vs.THE HONORABLE COURT OF APPEALS, respondent.

Balagtas P. Ilagan for petitioner.

The Solicitor General for respondent.

MELENCIO-HERRERA, J.:This is a Petition for Review on certiorari of the Decision of respondent Appellate Court, which affirmed the judgment of the Regional Trial Court, Lucena City, Branch LIV, convicting petitioner (the accused-appellant) of Violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on the basis of the Stipulation of Facts entered into between the prosecution and the defense during the pre-trial conference in the Trial Court. The facts stipulated upon read:

a) That this Court has jurisdiction over the person and subject matter of this case;

b) That the accused was an agent of the Towers Assurance Corporation on or before January 21,

1981;

c) That on January 21, 1981, the accused issued and made out check No. 26741, dated January 24, 1981 in the sum of P2,541.05;

d) That the said check was drawn in favor of the complaining witness, Roy Nadera;

e) That the check was drawn in favor of the complaining witness in remittance of collection;

f) That the said check was presented for payment on January 24, 1981 but the same was dishonored for the reason that the said checking account was already closed;

g) That the accused Manolo Fule has been properly Identified as the accused party in this case.

At the hearing of August 23, 1985, only the prosecution presented its evidence consisting of Exhibits "A," "B" and "C." At the subsequent hearing on September 17, 1985, petitioner-appellant waived the right to present evidence and, in lieu thereof, submitted a Memorandum confirming the Stipulation of Facts. The Trial Court convicted petitioner-appellant.

On appeal, respondent Appellate Court upheld the Stipulation of Facts and affirmed the judgment of conviction. 1

Hence, this recourse, with petitioner-appellant contending that:

The Honorable Respondent Court of Appeals erred in the decision of the Regional Trial Court convicting the petitioner of the offense charged, despite the cold fact that the basis of the conviction was based solely on the stipulation of facts made during the pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel.

Finding the petition meritorious, we resolved to give due course.

The 1985 Rules on Criminal Procedure, which became effective on January 1, 1985, applicable to this case since the pre-trial was held on August 8, 1985, provides:

SEC. 4. Pre-trial agreements must be signed. — No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel. (Rule 118) [Emphasis supplied]

By its very language, the Rule is mandatory. Under the rule of statutory construction, negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory (McGee vs. Republic, 94 Phil. 820 [1954]). The use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced (Bersabal vs. Salvador, No. L-35910, July 21, 1978, 84 SCRA 176). And more importantly, penal statutes whether substantive and remedial or procedural are, by consecrated rule, to be strictly applied against the government and liberally in favor of the accused (People vs. Terrado No. L-23625, November 25, 1983, 125 SCRA 648).

The conclusion is inevitable, therefore, that the omission of the signature of the accused and his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence. The fact that the lawyer of the accused, in his memorandum, confirmed the Stipulation of Facts does not cure the defect because Rule 118 requires both the accused and his counsel to sign the Stipulation of Facts. What the prosecution should have done, upon discovering that the accused did not sign the Stipulation of Facts, as required by Rule 118, was to submit evidence to establish the elements of the crime, instead of relying solely on the supposed admission of the accused in the Stipulation of Facts. Without said evidence independent of the admission, the guilt of the accused cannot be deemed established beyond reasonable doubt.

Consequently, under the circumstances obtaining in this case, the ends of justice require that evidence be presented to determine the culpability of the accused. When a judgment has been entered by consent of an attorney without special authority, it will sometimes be set aside or reopened (Natividad vs. Natividad, 51 Phil. 613 [1928]).

WHEREFORE, the judgment of respondent Appellate Court is REVERSED and this case is hereby ordered RE-OPENED and REMANDED to the appropriate Branch of the Regional Trial Court of Lucena City, for further reception of evidence.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino and Medialdea, JJ., concur.

Paras, J., took no part.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISTINA M. HERNANDEZ, accused-appellant.

D E C I S I O N

FRANCISCO, J.:

Accused-appellant Cristina Hernandez was charged with the crime of illegal recruitment committed in large scale in violation of Article 38 (a) and (b) in relation to Article 13 (b) and (c) of the New Labor Code,[1] committed as follows:

"That in or about and during the period comprised between December 14, 1988 to December 24, 1988, inclusive in the City of Manila, Philippines, the said accused representing herself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully for a fee, recruit and promise employment/job placement abroad to the following persons to wit: ROGELIO N. LEGASPI, ULDARICO P. LEGASPI, SONNY P. BERNABE, ARNEL B. MENDOZA, BENITO L. BERNABE, ARNOLD P. VALENZUELA, ARMANDO P. PAGULAYAN, GREGORIO P. MENDOZA, JR., RONALD T. CORREA, DANILO PALAD and ROBERT P. VELASQUEZ (hereinafter known as private complainants) without first having secured the required license or authority from the POEA."[2] (underscoring supplied.)

Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. Of the fourteen (14) private complainants, four (4) were presented as witnesses for the prosecution, namely: Benito L. Bernabe, Robert P. Velasquez, Gregorio P. Mendoza and Arnel Mendoza. They testified to the following essential facts: Private complainants' first encounter with the appellant was on December 12, 1988 when one Josefa Cinco accompanied them to the office of the Philippine Thai Association, Inc. (Philippine-Thai) in Ermita, Manila to meet the appellant. Introducing herself as the general manager of Philippine-Thai, appellant asserted that her company recruited workers for placement abroad and asked private complainants if they wanted to work as factory workers in Taipeh. Enticed by the assurance of immediate employment and an $800 per month salary, private complainants applied. Appellant required private complainants to pay placement and passport fees in the total amount of P22,500.00 per applicant, to be paid in three installments, to wit: P1,500 on December 14, 1988, P10,000.00 on December 16,

1988, and P11,000.00 on December 22, 1988. When the complainants-witnesses paid the first two installments, they were issued receipts by Liza Mendoza, the alleged treasurer of Philippine-Thai signed by the latter in the presence of the appellant. The receipts for the last installment paid by them were signed by Liza Mendoza, and the appellant. After having received the entire amount[3] from the witnesses, appellant assured them that they would be able to leave for Taipeh sometime before the end of December, 1988. But contrary to appellant's promise, complainants-witnesses were unable to leave for abroad. They demanded for the return of their money but to no avail. Appellant's unfulfilled promise of employment and her refusal to return the money that had been paid by way of placement and passport fees, triggered the filing of the complaint.

For its part, the defense presented as its lone witness, the appellant whose testimony consisted mainly in denying the charges against her. Appellant claimed that she never met any of the complainants nor did she ever recruit any of them. She likewise denied having received money from anyone and asserted that she did not know any Liza Mendoza who is the alleged treasurer of Philippine-Thai. Appellant maintained that although she had an office in Ermita Building located at Arquiza Street, Ermita, Manila, the said office belonged to B.C. Island Wood Products Corporation which was engaged in the logging business. However, when questioned further, appellant admitted being the president of Philippine-Thai but only in a nominal capacity, and claimed that as nominee-president, she did not participate in any of its transactions. Appellant likewise insisted that Philippine-Thai was engaged solely in the barong tagalog business.

After careful calibration of the evidence presented by the prosecution and the defense, the court a quo rendered a decision holding that the defense of "denial" interposed by the accused could not prevail over the positive and clear testimonies of the prosecution witnesses which had established the guilt of the accused beyond reasonable doubt.[4] The dispositive portion of the decision reads:

"WHEREFORE, premises considered, this Court hereby finds that the accused CRISTINA HERNANDEZ, (sic) guilty beyond reasonable doubt of the crime of illegal recruitment, committed in large scale, as defined in Article 38(a) & (b) of Presidential Decree No. 1412, x x x in relation to Article 13 (b) and (c) x x x, accordingly, sentences the accused to suffer the penalty of life imprisonment (RECLUSION PERPETUA) with the accessory penalties provided for by law; to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND AND FIVE HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO THOUSAND AND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs.

SO ORDERED.

Manila, Philippines, November 29, 1991."[5]

Appellant comes to this Court for the reversal of the judgment of conviction assigning the following errors against the lower court:

I

THE TRIAL COURT ERRED IN FINDING THE ACCUSED "LIABLE OF (sic) ILLEGAL RECRUITMENT COMMITTED IN A LARGE SCALE AND BY A SYNDICATED (sic)" FOR HAVING "MAINTAINED OFFICE WITHOUT LICENSE OR REGISTRATION FROM THE DEPARTMENT OF LABOR, THRU ITS OFFICE, THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA)."

II

THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF THE "FACT THAT ACCUSED CRISTINA M. HERNANDEZ HAD BEEN CHARGED x x x OF ANOTHER ILLEGAL RECRUITMENT x x x DOCKETED AS CRIMINAL CASE NO. 88-62599" AND IN CONSIDERING THE PENDENCY THEREOF AS EVIDENCE OF THE "SCHEME AND STRATEGY ADOPTED BY THE ACCUSED x x x AND PRACTICED WITH THE HELP OF HER AGENTS AND OTHER PERSONS WORKING UNDER THE SHADE OF HER PROTECTION."

III

THE TRIAL COURT ERRED IN NOT GIVING CREDENCE OR WEIGHT TO THE DEFENSE OF THE ACCUSED.[6]

The first assignment of error is anchored on the contention that the prosecution failed to prove one of the essential elements of the crime of illegal recruitment -- that the offender is a non-licensee or non-holder of authority to lawfully engage in the recruitment and placement of workers.[7] The aforementioned element, specifically the fact that neither appellant nor Philippine-Thai was licensed or authorized to recruit workers as shown by the records of the POEA, was the subject of a stipulation proposed by the prosecution and admitted by the defense during trial. Appellant assails as erroneous the reliance placed by the prosecution on the said stipulation of facts in dispensing with the presentation of evidence to prove the said element of the crime of illegal recruitment. Appellant argues that: (1) the stipulation of facts was not tantamount to an admission by the appellant of the fact of non-possession of the requisite authority or license from the POEA, but was merely an admission that the Chief Licensing Officer of the POEA, if presented in court, would testify to this fact, and (2) the stipulation of facts is null and void for being contrary to law and public policy. Appellant posits the foregoing arguments to bolster her contention that the stipulation of facts did not relieve the prosecution of its duty to present evidence to prove all the elements of the crime charged to the end that the guilt of the accused may be proven beyond reasonable doubt.

At the outset, it should be said that the above contention and the arguments are insignificant in view of the fact that records disclose that the prosecution had in fact presented evidence to prove the said element of the crime of illegal recruitment. "EXHIBIT I", a certification issued by the Chief Licensing Branch of the POEA, attesting to the fact that neither appellant nor Philippine-Thai is licensed/authorized to recruit workers for employment abroad, was offered and admitted in evidence without the objection of the appellant.[8]

Although appellant's arguments find no significant bearing in the face of the existence of "EXHIBIT I", they nonetheless require deeper scrutiny and a clear response for future application. Hence, the following discussion.

Appellant correctly distinguishes between an admission that a particular witness if presented in court would testify to certain facts, and an admission of the facts themselves. According to the appellant, what was stipulated on between the prosecution and defense counsel at the hearing on June 6, 1990 was "merely that the testimony of the Chief Licensing Officer of the POEA would be to the effect that appellant is not licensed nor authorized to recruit workers",[9] Thus:

"Prosecutor

x x x Before we call on our first witness, we propose some stipulations regarding the testimony of the Chief Licensing Branch of the POEA — that Cristina Hernandez is not a (sic) licensed nor authorized by the Department of Labor to recruit workers abroad.

Court

Would you agree?

Atty. Ulep (Counsel for the Accused): Agreed, Your Honor."[10]

She claims that the foregoing clearly indicate that there was no judicial admission of the fact of non-possession of a license/authority but rather a mere admission that the witness, if presented, would testify to such fact. This being the case, it remained incumbent upon the prosecution to present evidence of such fact. To buttress her position, the following was cited to note the distinction:

"Suppose a case is set for trial and one of the parties moves for a continuance because of the absence of W, an important witness. His opponent, who is anxious to go to trial; asks what are the facts to which W would testify. The other attorney tells him, adding: 'If I consent to the overruling of my motion, will you stipulate that those are the facts?' The attorney who is pressing for trial says: 'No but I will stipulate that if W were called in this case as a witness, he would so testify.' What is the difference between the two stipulations?

In the first stipulation proposed there is a judicial admission of the facts, and they cannot be contradicted. But the second stipulation proposed will only have the same effect as if the witness had testified to the facts. Such testimony the party is free to contradict."[11]

The distinction, though cogent, is unfortunately inapplicable to the case at bar. Conveniently omitted from the appellant's reply brief is the ensuing statement made by the court after counsel for the accused, Atty. Ulep agreed to the stipulation proposed by the prosecution, to wit:

Atty. Ulep (counsel for the accused): Agreed, Your Honor.

Court

The prosecution and the defense agreed to stipulate/admit that from the record of the POEA Licensing and Regulation Office, Dept. of Labor and Employment, accused Cristina Hernandez/Phil. etc., Ass. x x x is neither licensed nor authorized by that office to recruit workers overseas abroad and that if the duly authorized representative from the POEA Administration is to take the witness stand, he will confirm to this fact as borne by the records.[12] (Underscoring supplied .)

From the foregoing, it is evident that the prosecution and the defense counsel stipulated on two things: that "x x x from the record of the POEA, x x x accused Cristina

Hernandez, Phil. etc. Ass. x x x is neither licensed nor authorized by that office to recruit workers for overseas abroad and that if the duly authorized representative from the POEA Administratin (sic) is to take the witness stand, he will confirm to this fact x x x."[13]The claim that the lower court mistakenly interpreted defense counsel's acquiescence to the prosecution's proposed stipulation as an admission of non-possession of the requisite POEA license or authority is belied by the fact that after the above enunciation by the court, no objection was interposed by defense counsel.

Appellant further contends that granting arguendo that defense counsel had in fact agreed to the above stipulation of facts, the same is null and void for being contrary to the well-established rule that a stipulation of facts is not allowed in criminal cases. To bolster this contention, appellant cited the consistent ruling of this Court on the matter. Thus, as held in the case of U.S. vs. Donato:[14]

"Agreements between attorneys for the prosecution and for the defense in criminal cases, by which it is stipulated that certain witnesses, if present, would testify to certain facts prevent a review of the evidence by the Supreme Court and are in violation of the law."[15]

The above ruling was reiterated in a subsequent case where the accused was convicted solely on the basis of an agreement between the fiscal and the counsel for the accused that certain witnesses would testify confirming the complaint in all its parts. In reversing the judgment of conviction, this Court held that:

"It is neither proper nor permissible to consider a case closed, or to render judgment therein, by virtue of an agreement entered into between the provincial fiscal and the counsel for the accused with reference to facts, some of which are favorable to the defense, and others related to the prosecution, without any evidence being adduced or testimony taken from the witnesses mentioned in the agreement; such practice is not authorized and defeats the purposes of criminal law; it is an open violation of the rules of criminal procedure x x x."[16]

The rule prohibiting the stipulation of facts in criminal cases is grounded on the fundamental right of the accused to be presumed innocent until proven guilty, and the corollary duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. It is therefore advanced that the prosecution being duty-bound to prove all the elements of the crime, may not be relieved of this obligation by the mere expedient of stipulating with defense counsel on a matter constitutive of an essential element of the crime charged.

The rationale behind the proscription against this class of agreements between prosecution and defense was enunciated in the case of U.S. vs. Manlimos:[17]

"It is not supposed to be within the knowledge or competence of counsel to predict what a proposed witness shall say under the sanction of his oath and the test of cross-examination. A conviction for crime should not rest upon mere conjecture. Nor is it possible for a trial court to weigh with exact nicety the contradictory declaration of witnesses not produced so as to be subjected to its observation and its judgment as to their credibility."[18]

However, in the light of recent changes in our rules on criminal procedure, particularly the pre-trial provisions found in Rule 118, the prohibition against a stipulation of facts in

criminal cases no longer holds true. Rule 118 provides the following:

"Section 1. Pre-trial; when proper — To expedite trial, where the accused and counsel agree, the court shall conduct a pre-trial conference on the matters enunciated in Section 2 hereof, without impairing the rights of the accused.

Sec. 2 Pre-trial conference; subjects x x x The pre-trial conference shall consider the following:

(a) Plea bargaining;

(b) Stipulation of facts;

x x x x x x x x x"(underscoring supplied)

By virtue of the foregoing rule, a stipulation of facts in criminal cases is now expressly sanctioned by law. In further pursuit of the objective of expediting trial by dispensing with the presentation of evidence on matters that the accused is willing to admit, a stipulation of facts should be allowed not only during pre-trial but also and with more reason, during trial proper itself. Parenthetically, although not expressly sanctioned under the old rules of court, a stipulation of facts by the parties in criminal cases has long been allowed and recognized as declarations constituting judicial admissions, hence, binding upon the parties. In the case of People vs. Mapa[19] where the accused was charged with illegal possession of firearms, the prosecution and the defense stipulated on the fact that the accused was found in possession of a gun without the requisite permit or license. More at point is the case of People vs. Bocar[20] wherein the fiscal proposed the admission by the accused of the affidavits and other exhibits already presented by the prosecution to dispense with oral testimonies on the matter. Holding that the admissions made by the parties were binding, this Court stated that:

"x x x [T]here is nothing unlawful or irregular about the above procedure. The declarations constitute judicial admissions, which are binding on the parties, by virtue of which the prosecution dispensed with the introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statements contained in the exhibits."[21] (underscoring supplied .)

American jurisprudence has established the acceptability of the practice of stipulating during the trial of criminal cases, and categorically stated in People vs. Hare[22] that:

"That record discloses that the defense counsel stipulated to what certain witnesses would testify if they were present in court. x x x

x x x The defendant contends that it was error for his counsel to make these stipulations. This court has held that an accused may by stipulation waive the necessity of proof of all or any part of the case which the people have alleged against him and that having done so, he cannot complain in this Court of evidence which he has stipulated into the record.[23]

The corollary issue left for the determination of this Court is whether or not Section 4 of Rule 118 -- requiring an agreement or admission made or entered during the pre-trial conference to be reduced in writing and signed by the accused and his counsel before the same may be used in evidence against the accused -- equally applies to a stipulation of facts made during trial. We resolved this issue in the negative.

A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that: "x x x an attorney who is employed to manage a party's conduct of a lawsuit x x x has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, x x x which unless allowed to be withdrawn are conclusive."[24] (underscoring supplied.) In fact, "judicial admissions are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made x x x for the purpose of dispensing with proof of some fact, x x x they bind the client, whether made during, or even after, the trial."[25]

The foregoing find basis in the general rule that a client is bound by the acts of his counsel who represents him.[26] For all intents and purposes, the acts of a lawyer in the defense of a case are the acts of his client. The rule extends even to the mistakes and negligence committed by the lawyer except only when such mistakes would result in serious injustice to the client.[27] No cogent reason exists to make such exception in this case. It is worth noting that Atty. Ulep, appellant's counsel in the lower court, agreed to the stipulation of facts proposed by the prosecution not out of mistake nor inadvertence, but obviously because the said stipulation of facts was also in conformity to defense's theory of the case. It may be recalled that throughout the entire duration of the trial, appellant staunchly denied ever having engaged in the recruitment business either in her personal capacity or through Philippine-Thai. Therefore, it was but logical to admit that the POEA records show that neither she nor Philippine-Thai was licensed or authorized to recruit workers.

It is true that the rights of an accused during trial are given paramount importance in our laws on criminal procedure. Among the fundamental rights of the accused is the right to confront and cross-examine the witnesses against him.[28] But the right of confrontation guaranteed and secured to the accused is a personal privilege which may be waived.[29] Thus, in the case of U.S. vs. Anastasio,[30] this Court deemed as a waiver of the right of confrontation, the admission by the accused that witnesses if present would testify to certain facts stated in the affidavit of the prosecution.[31]

In the same vein, it may be said that such an admission is a waiver of the right of an accused to present evidence on his behalf. Although the right to present evidence is guaranteed by no less than the Constitution itself for the protection of the accused, this right may be waived expressly or impliedly.[32] This is in consonance with the doctrine of waiver which recognizes that "x x x everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large."[33]

The abovementioned doctrine is squarely applicable to the case at bar. Appellant was never prevented from presenting evidence contrary to the stipulation of facts. If appellant believed that the testimony of the Chief Licensing Officer of the POEA would be beneficial to her case, then it is the defense who should have presented him. Her continuous failure to do so during trial was a waiver of her right to present the pertinent evidence to contradict the stipulation of facts and establish her defense.

In view of the foregoing, the stipulation of facts proposed during trial by prosecution and admitted by defense counsel is tantamount to a judicial admission by the appellant of the facts stipulated on. Controlling, therefore, is Section 4, Rule 129 of the Rules of Court which provides that:

"An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made."

We now go to appellant's second and third assignment of errors. In her second assignment of error, appellant makes much ado of the "judicial notice" taken by the lower court of the fact that appellant had been charged with another illegal recruitment case,[34] and in considering the pendency thereof as evidence of the scheme and strategy adopted by the accused. Appellant cites a violation of Section 3 of Rule 129 of the Rules of Court which provides that before the court may take judicial notice of any matter, the parties shall be heard thereon if such matter is decisive of a material issue in the case. It is claimed that the lower court never announced its intention to take judicial notice of the pendency of the other illegal recruitment case nor did it allow the accused to be heard thereon.

It is true that as a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge.[35] However, this rule is subject to the exception that:

"x x x in the absence of objection and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of the case filed in its archives as read into the records of a case pending before it, when with the knowledge of the opposing party, reference is made to it, by name and number or in some other manner by which it is sufficiently designated, x x x"[36] (underscoring supplied .)

The judicial notice taken by the lower court of the pendency of another illegal recruitment case against the appellant falls squarely under the above exception in view of the fact that it was the appellant herself who introduced evidence on the matter when she testified in open court as follows:

"Q: You mean to say . . . by the way, where (sic) were you at the NBI when Mrs. Cinco inquired from you about placement abroad?

A: I was just invited by the personnel of the NBI and I was not allowed to go home.

Q: Why were you invited by the NBI?

A: They told me that there was a complaint against me.

Q: Complaint about what?

A: The same case.

Q: You mean illegal recruitment also?

A: Yes, sir.

xxx xxx xxx

Q: You made mention than an illegal recruitment case which was supposed to be the

cause of your detention at the NBI. . . .

I am not referring to this case, Mrs. Hernandez -- what happened to that case, what is the status of that case?

A: It is also in this sala.

COURT: It is already submitted for decision.[37]

Even assuming, however, that the lower court improperly took judicial notice of the pendency of another illegal recruitment case against the appellant, the error would not be fatal to the prosecution's cause. The judgment of conviction was not based on the existence of another illegal recruitment case filed against appellant by a different group of complainants, but on the overwhelming evidence against her in the instant case.

Anent the last assignment of error, suffice it to say that we do not find any compelling reason to reverse the findings of the lower court that appellant's bare denials cannot overthrow the positive testimonies of the prosecution witnesses against her.

Well established is the rule that denials if unsubstantiated by clear and convincing evidence are negative, self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses who testify on affirmative matters.[38] That she did not merely deny, but likewise raised as an affirmative defense her appointment as mere nominee-president of Philippine-Thai is a futile attempt at exculpating herself and is of no consequence whatsoever when weighed against the positive declarations of witnesses that it was the appellant who executed the acts of illegal recruitment as complained of.

Finally, under Article 39 of the New Labor Code, the penalty for illegal recruitment committed in large scale is life imprisonment and a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00). As previously held by this Court, life imprisonment is not synonymous with reclusion perpetua.[39] The lower court erred in imposing "the penalty of life imprisonment (reclusion perpetua) with the accessory penalties provided for by law; x x x"[40] (Underscoring supplied)

WHEREFORE, appellant's conviction of the crime of illegal recruitment in large scale is hereby AFFIRMED, and the penalty imposed MODIFIED as follows: the court sentences the accused to suffer the penalty of life imprisonment and to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND FIVE HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.

G.R. No. L-28297 March 30, 1970

ELPIDIO JAVELLANA, plaintiff-appellant, vs.D. O. PLAZA ENTERPRISES, INC., defendant-appellee.

Ramon A. Gonzales for plaintiff-appellant.

Hermosisima, Maramara and Sol for defendant-appellee.

REYES, J.B.L., J.:

Direct appeal, on points of law, from an order of the Court of First Instance of Manila, in its Civil Case No. 46762, modifying an earlier decision for the plaintiff by reducing the rate of interest on the sum adjudged, and also the attorney's fees; and by ordering the plaintiff to pay damages to the defendant on account of a preliminary attachment obtained by the former upon the latter's counterclaim.

The complaint in the aforesaid civil case was for collection of the sum of P43,017.32 representing balance due on purchases of wire ropes, tractors and diesel parts made by the defendant-appellee, D. O. Plaza Enterprises, Inc., from the plaintiff-appellant, Elpidio Javellana. The complaint prayed that the defendant be ordered to pay the said sum of P43,017.32, with legal interest, plus attorney's fees in the sum of P5,000.00; it also prayed for a writ of preliminary attachment.

Upon plaintiff's putting up a bond, the trial court, on 15 April 1961, issued a writ of attachment. On 20 May 1961, the defendant moved to discharge the attachment on the ground that it was improperly issued. The motion was denied.

On 7 November 1961, the defendant filed its answer and counter-claimed for damages arising from the attachment. The plaintiff answered and interposed a counterclaim to the counterclaim.

After some years, or on 27 April 1966, the defendant moved for the dissolution of the preliminary attachment. Upon its filing a counterbond, the court, on 7 May 1966, dissolved the attachment.

On 3 November 1966, the plaintiff filed a motion to admit his amended complaint, which the court granted on 12 November 1966. In this amended complaint, the plaintiff averred that of the sum of P43,017.32 alleged in the original complaint, the defendant has paid P3,900.00, thereby leaving a balance of P39,117.32 unpaid, but that, as indicated by invoices, defendant's purchases were payable within thirty (30) days and were to bear interest of 12% per annum plus 25% attorney's fees. The amended complaint accordingly prayed for the increased amounts. Defendant did not answer this amended complaint.

After trial, the court, on 15 June 1967, rendered judgment. It found the following facts:

.... During the period from 23 July 1959 to 30 July 1960, defendant, in a

series of transactions, purchased from plaintiff wire ropes, tractors and diesel spare parts, (in) payment for which he issued several checks amounting to P43,017.32, which, when presented to the bank, were dishonored for lack of funds. Defendant substituted these checks with another set of checks for the same amount, but again, the same were dishonored for lack of funds, as evidenced by Exhibits A to M, except for one check in the amount of P3,900.00 as evidenced by Exhibit C. Thus, the principal obligation was reduced to P39,117.32. At the time of the issuance of the said checks, the defendant never informed plaintiff that it had funds to back them up. Plaintiff made demands to defendant for payment, but defendant pleaded for time and liberalization of payment, which was rejected by the plaintiff. The transactions in question were covered by invoices listed in Exhibit P, a sample of which is evidenced by Exhibit C, wherein said transactions were for 30-day term, 12% interest per annum to be charged from date of invoice, and 25% attorney's fees in case of litigation.

The defendant claims that there were other transactions between plaintiff and defendant involving the amount of P196,828.58; that it had no intention not to pay the checks it issued upon presentment; and that it suffered damages in the amount of P14,800.00 by reason of the attachment.

xxx xxx xxx

The counterclaim for damages arising from the attachment is without merit. The defendant was manifestly in bad faith when it issued two sets of bouncing checks. Hence, the attachment was not improper, contrary to defendant's claim.

The dispositive portion of the decision decreed:

WHEREFORE, judgment is hereby rendered for the plaintiff and against the defendant, ordering the latter to pay the former the sum of P39,117.32 with interest at 12% per annum from 14 April 1961, the date of the filing of the original complaint, until final payment, plus 25% of the principal indebtedness as attorney's fees and costs of suit.

The counterclaim as well as the counterclaim to the counter claim are hereby dismissed for lack of merit.

On 28 June 1967, the defendant moved to reconsider. Over the objection of the plaintiff, the court issued an order dated 10 August 1967, now the subject of the present appeal, modifying the previous decision, in the manner following:

WHEREFORE, the dispositive part of the decision rendered in this case is hereby modified as follows:

(a) By ordering the defendant to pay plaintiff the sum of P39,117.20 plus the legal interest therein from the filing of the complaint until the amount is fully paid.

(b) Ordering the plaintiff to pay defendant the sum of P16,190.00, the

amount of damages suffered by the defendant on account of the preliminary attachment of the defendant; and

(c) By ordering the defendant to pay P5,000.00 as attorney's fees.

Without pronouncement as to costs.

Plaintiff-appellant assigns the following errors: the reduction of the attorney's fees, the reduction of the interest, and the grant to the defendant of damages arising from the attachment.

The first two assigned errors are well taken. The court a quo reduced the interest stated in its previous decision from 12% to mere legal interest and the attorney's fees from 25% to P5,000.00 on the basis of estoppel, the ground therefor being that the reduced amounts were those alleged, hence admitted, by the plaintiff in his original complaint. This was error. The original complaint was not formally offered in evidence. Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, requires its formal offer.

Pleadings superseded or amended disappear from the record as judicial admissions. However, any statement contained therein may be considered as an extrajudicial admission, and as such, in order that the court may take it into consideration, it should be offered formality in evidence. (5 Moran 58, citing Lucido v. Calupitan, 27 Phil. 148; Bastida v. Menzi, 58 Phil. 188.)

Where amended pleadings have been filed, allegations in the original pleadings can have no effect, unless formally offered in evidence. (Jones on Evidence, Sec. 273.)

Since the record does not show that the complaint (marked as Exhibit 115) was admitted in evidence, there is no proof of estoppel on the part of the plaintiff on his allegations in the complaint. Not only this, but since the stipulation for 12% interest on balance due and the 25% counsel fees appear on the invoices themselves, appellee Plaza Enterprises cannot fairly claim that it was deceived or misled by the pleadings of appellant. Even more, the original plea for P5,000.00 as attorney's fees is only contained in the prayer of the original complaint, and it is a well established rule that the prayer for relief, although part of the complaint, is no part of the cause of action and does not give character, the plaintiff being entitled to as much relief as the facts warrant (Rosales vs. Reyes, 25 Phil. 495; Aguilar vs. Rubiato, 40 Phil. 470).

But the appellant's last assigned error is without merit. Although the defendant was found to be in bad faith in issuing two (2) sets of bouncing checks in payment for its indebtedness, such bad faith was not related to his having incurred the obligation in favor of the plaintiff but to defendant's failure to perform said obligation. There was, therefore, no ground for the plaintiff to attach the defendant's properties on the ground of fraud. That the plaintiff acted in good faith in securing attachment does not relieve him from the damages that the defendant sustained by reason of the attachment because he, the plaintiff, was,

in the first place, not entitled to attachments, the element of malice was unnecessary (3 Moran, Rules of Court, 19).

FOR THE FOREGOING REASONS, the appealed order is hereby reversed insofar as it reduced the amount of attorney's fees and the interest on the principal sum adjudged in the original decision dated 15 June 1967; but the order is affirmed in all other respects. No costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur.

FIRST DIVISION

[G.R. No. 80505 : December 4, 1990.]

192 SCRA 28

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM, Defendant-Appellant.

D E C I S I O N

CRUZ, J.:

The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987, convicting Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the Dangerous Drugs Act of 1972, is before us on appeal.

The information against the accused-appellant read as follows:

That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused without being authorized by law, did then and there willfully, unlawfully and feloniously sell eight (8) pieces of dried marijuana flowering tops, two (2) pieces of dried marijuana flowering tops and crushed dried marijuana flowering tops, which are prohibited drug, for and in consideration of P20.00.

Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J. Guerrero rendered a decision the dispositive portion of which declared:

WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of violation of Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life imprisonment and to pay a fine of P20,000.00 and cost.: nad

The marijuana confiscated in this case is declared confiscated and forfeited and ordered turned over to the Dangerous Drugs Board for proper disposal.

SO ORDERED.

The accused-appellant raises the following assignment of errors in this appeal:

1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged despite lack of evidence to prove that he sold marijuana to the poseur-buyer.

2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which is merely a xerox copy of the P10.00 bill allegedly used as buy-bust money.

The evidence of the prosecution may be summarized as follows:

On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay Singkamas, Makati.

The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone near the store waiting for any pusher to approach. The other members of the team strategically positioned themselves. Soon, three men approached Singayan. One of them was the accused-appellant, who said without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made then and there — two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit).

The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the accused-appellant and took from him the marked money, as well as eight more rolls/foils of marijuana and crushed leaves.: nad

The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police Station, for investigation by Detective Marvin Pajilan. The accused-appellant chose to remain silent after having been informed of his constitutional rights.

These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1 Microscopic, chemical and chromotographic examination was performed on the confiscated marijuana by Raquel P. Angeles, forensic chemist of the National Bureau of Investigation, who later testified that the findings were positive. The marijuana was offered as an exhibit. 2

As might be expected, the accused-appellant had a different story. His testimony was that from 1:30 to 4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons along Solchuaga St. when somebody suddenly said that policemen were making arrests. The players grabbed the bet money and scampered. However, he and a certain Danny (another "cara y cruz" player) were caught and taken to the Narcotics Command headquarters in Makati. There they were mauled and warned that if they did not point to their fellow pushers, they would rot in jail. The accused-appellant denied he had sold marijuana to Singayan and insisted the bills taken from him were the bet money he had grabbed at the "cara y cruz" game. 3

The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen to their respective testimonies, gave more credence to the statements of the arresting officers. Applying the presumption that they had performed their duties in a regular manner, it rejected Tandoy's uncorroborated allegation that he had been

manhandled and framed. Tandoy had not submitted sufficient evidence of his charges, let alone his admission that he had no quarrel with the peace officers whom he had met only on the day of his arrest.

In People v. Patog, 4 this Court held:

When there is no evidence and nothing to indicate the principal witness for the prosecution was actuated by improper motives, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.

Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger until the seller is certain of the identity of the buyer."

The conjecture must be rejected.: nad

In People v. Paco, 5 this Court observed:

Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade as these factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store (People vs. Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988).

As the Court has also held, "What matters is not an existing familiarity between the buyer and the seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves." 6

Under the second assigned error, the accused-appellant invokes the best evidence rule and questions the admission by the trial court of the xerox copy only of the marked P10.00 bill.

The Solicitor General, in his Comment, correctly refuted that contention thus:

This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh. E-2-A) which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence except in the five (5) instances mentioned therein.:-cralaw

The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.)

Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence,

like a xerox copy thereof, is therefore admissible without the need of accounting for the original.

Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as an exhibit, the failure to produce the marked money itself would not constitute a fatal omission.

We are convinced from the evidence on record that the prosecution has overcome the constitutional presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of drug addiction upon our people.

WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with costs against the accused-appellant.: nad

SO ORDERED

Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner, vs.RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of

record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8

The law, however, solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony

of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters within an issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16 They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane company could have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the company should know whether or riot the tickets it issues are to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

x x x x x x x x x

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and

air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to Manila.32

x x x x x x x x x

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33

x x x x x x x x x

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg;

Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K."

appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted to accommodate, using the words of the witness Ernesto G. Cuento, the "white man".38

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 will or for ulterior purpose." 39

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 the defendant violated its contract of transportation with plaintiff in bad 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.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight attendants approached me and requested from me my ticket and I said, What for? and she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I also said,

"You are not going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in my notebook." He read it and translated it to me — because it was recorded in French — "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages — in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages

justifies a similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised — as it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur.Bengzon, J.P., J., took no part.

G.R. No. 83377 February 9, 1993

BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA represented by GLICERIA PAPA-FRANCISCO, et al., petitioners, vs.SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, respondents.

Pablo M. Gancayaco for petitioners.

De Mesa, Villarica & Associates for respondents.

CAMPOS, JR., J.:

This is a petition for review on certiorari of the decision * of the Court of Appeals dated November 27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of Eustaquia de Vera-Papa, represented by Gliceria Papa-Francisco, and Heirs of Maria de Vera-Torres, represented by Luis V. Torres, plaintiffs-appellees versus Spouses Mariano Aguilar and Leona V. Aguilar, defendants-appellants", which reversed the decision ** of the Regional Trial Court of Bulacan, Third Judicial Region, Branch 14, for failure of petitioners to prove the loss or destruction of the original deed of sale and of all its duplicate original copies.

The undisputed facts are as follows:

Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona, married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated in Camalig, Meycauayan, Bulacan, with an area of 4,195 square meters, designated as Cadastral Lot No. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre.

The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of absolute sale dated February 11, 1956.

On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of another in the name of the Aguilars. Since then and up to the present, the Aguilars have been paying taxes on the land.

On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which Original Certificate of Title No. P-1356(M) was issued in his name.

On September 1, 1980, the petitioners wrote to the respondents claiming that as children of Marcosa Bernabe, they were co-owners of the property and demanded partition thereof on threats that the respondents would be charged with perjury and/or falsification. The petitioners also claimed that the respondents had resold the property to Marcosa Bernabe on April 28, 1959.

On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe.

True to petitioners' threat, they filed a falsification case against the respondents. However, on March 31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of falsification of public document against the respondents for lack of a prima facie case.

On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate of Title No. P-1356(M).

On July 31, 1985, the trial court rendered its decision *** the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered ordering defendants:

1. To reconvey the property in question to the plaintiffs;

2. To pay plaintiffs P10,000.00 as litigation expenses;

3. To pay plaintiffs P5,000.00 as exemplary damages;

4. To pay P10,000.00 as attorney's fees.

SO ORDERED. 1

In ruling in favor of the petitioners, the trial court admitted, over the objection of the respondents, Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by the respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of land for and in consideration of P1,500.00.

Not contented with the decision, respondents appealed to the Court of Appeals contending that they never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents contended that since the petitioners have failed to produce the original of the alleged deed of sale dated April 28, 1959, the same was not the best evidence of the alleged sale hence it should have been excluded and should not have been accorded any evidentiary value. On the other hand, the petitioners claimed that the existence of the document of sale dated April 28, 1959 had been duly established by the testimony of the notary public before whom it was acknowledged and by Luis de Vera who was present during its execution and that the loss of the original document had been proven by the testimony of the representatives of the offices of the National Archives and the Provincial Assessor of Bulacan.

On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's decision. It found that the loss or destruction of the original deed of sale has not been duly proven by the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged deed of sale is inadmissible.

Hence this petition.

The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the original deed of sale so as to allow the presentation of the xeroxed copy of the same.

We rule in the negative.

Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence states:

Sec. 4. Secondary evidence when original is lost or destroyed. — When the original writing has been lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses.

Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents although this order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. 2

A reading of the decision of the trial court shows that it merely ruled on the existence and due execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale.

In the case at bar, the existence of an alleged sale of a parcel of land was proved by the presentation of a xeroxed copy of the alleged deed of absolute sale.

In establishing the execution of a document the same may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof. 3

We agree with the trial court's findings that petitioners have sufficiently established the due execution of the alleged deed of sale through the testimony of the notary public to wit:

Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures appearing therein

to be that (sic) of the spouses and witnesses Luis de Vera and Ismael Estela, in his capacity as Notary Public who ratified the document. 4

After the due execution of the document has been established, it must next be proved that said document has been lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. 5

However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like). 6

In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or five original copies. 7 Hence, all originals must be accounted for before secondary evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for three out of four or five original copies.

In reversing the trial court, the respondent Court of Appeals considered the following points:

Asked on the witness stand where the original of the document (Exhibit A) was, plaintiff-appellee Luis de Vera answered that it was with the Provincial Assessor in Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it in evidence (p. 11, tsn., August 11, 1981, Steno, Tecson). The same question propounded to the same witness at the next hearing, he replied that in the early part of 1976 his sister Maria borrowed from him the original document and a certified true copy thereof and brought them to the Office of the Register of Deeds in Malolos "for the purpose of having it registered;" and that when she returned she told him that the original copy of the document was submitted to that office "and it (the property) was transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8, tsn., December 10, 1981, Steno, Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno, Vallarta).

Indeed, upon the appellees' own evidence the original of the deed of sale in question, a purported xerox copy and certified true copy of which are marked as Exhibits A and B, has not been lost or destroyed. It was submitted to the Office of the Register of Deeds of Malolos for registration. The appellees, therefore, should have asked the office to produce it in court and if it could not be produced for one reason or another should have called the Register of Deeds or his representative to explain why. That they failed to do. The loss or destruction of the original of the document in question has not, therefore, been established. Hence, secondary evidence of it is inadmissible . . . .

Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have a copy of the deed of sale in question because his files were burned when his office at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4, tsn., November 10, 1981, Steno, Crisostomo) establish the loss or destruction of the original document in question. What was lost or destroyed in the custody of Atty. Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor did the testimony of Hipolito Timoteo, representative of the Assessor's Office of Bulacan, to the effect that he failed to see the deed of absolute sale annotated on the simple copy of tax declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno, Vallarta) and of David Montenegro, Jr. of the National Archives to the effect that his office had no copy of the document in question because the notary public might not have submitted a copy thereof; or that it was lost or destroyed during the transmittal; and that most of the record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno, Tecson), prove loss or destruction of the original and of all the duplicate original copies of the document in question. 8

We find no cogent reason to rule otherwise.

WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

G.R. No. 77116 January 31, 1989

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FERDINAND CAMALOG and NOVELITO SOTTO, defendants-appellants.

The Solicitor General for plaintiff-appellee.

Coronel Law Office for defendant-appellants.

GANCAYCO, J.:

When is a confession legally sufficient in accordance with the system of criminal justice in this country? The present case brought before this Court on appeal from a decision of the Regional Trial Court of Cavite in Criminal Case No. TM-140 entitled People vs. Armando de los Reyes, et al., projects this issue.

In an Information that was filed by the Provincial Fiscal of Cavite, Armando de los Reyes, Ferdinand Camalog and Novelito Sotto were charged with the crime of Robbery with Homicide before the Regional Trial Court of Cavite. It reads as follows:

That on or about June 12, 1985, In the municipality of Tanza, Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, conspiring together, acting jointly and assisting one another, with violence against persons and with intent of gain and without the consent of the owner did, then and there wilfully and feloniously rob, take and carry away cash money amounting to P600.00 and assorted jewelry valued at P30,600.00 Philippine Currency and owned by Jose M. Malabanan, and by reason and on the occasion of the robbery, the said accused with intent to kill, did, then and there wilfully and feloniously strike and stab Jose M. Malabanan, with a pickax and a three-bladed and pointed weapon commonly known as tres cantos on the different parts of his body causing the death of Jose M. Malabanan, to the damage and prejudice of his heirs.

The aggravating circumstances of dwelling, nighttime, treachery and abuse of superior strength, were present at the time of the commission of the aforesaid offense.

CONTRARY TO LAW. 1

The accused pleaded not guilty when arraigned. The three accused were earlier arrested and detained without bail.

The facts of the case as presented by the prosecution are as follows:

In the morning of June 12, 1985, the Integrated National Police (INP) stationed at Tanza, Cavite received a report that a killing was perpetrated inside a house at Barrio Amaya, Tanza, Cavite. Two INP police officers, Patrolmen Ruben Bolante and Augusta de la Cruz responded to the report and conducted an investigation at the scene of the crime. They came upon the lifeless body of Jose M. Malabanan. The deceased was found lying on the floor of the room. They noted that the furniture was in disarray and that the cabinet in the room was forcibly opened with its contents scattered around the victim. The investigators took note of the presence of several bloodstains in many parts of the room. They then found a pick hammer lying near the victim's body. They also came upon a triple bladed knife, popularly called as tres cantos. Upon going outside the house, they discovered human blood spilled near an artesian well. A third police officer, Sgt. Esmeraldo Romero, interrogated some of the residents of the Barrio. He eventually came upon a barrio resident, Bayani Bocalan, who told them that he saw Armando de los Reyes, a resident of Tanza, strolling near the house of the victim in the early morning of June 12, 1985 and was in the company of two other men, all of them acting suspiciously in the vicinity of the house of the victim.

Acting on the information given by Bayani Bocalan, the police authorities invited Armando de los Reyes to their office for questioning. Sgt. Romero informed de los Reyes about his constitutional rights and then began interrogating him. De los Reyes admitted his participation in the commission of the crime and identified his two companions as a certain Mario from Ilocos and one Ben from Manila, both of whom, according to him, could be found in the Luneta Park of Manila. The extra-judicial confession was reduced in writing and was signed by him before Judge Aurelio Icasiano, Municipal Trial Court Judge of Tanza, Cavite.

A team of Tanza policemen accompanied De los Reyes to the Luneta on the evening of June 13, 1985 to look for the said Mario and Ben. At the Luneta, De los Reyes pointed out to the policemen the accused Ferdinand Camalog and Novelito Sotto whom he identified as his fellow conspirators.

Ferdinand Camalog and Novelito Sotto were interrogated and made to sign extra-judicial confessions wherein they admitted their alleged participation in the commission of the crime charged. These statements were subscribed and sworn to also before Judge Icasiano.

On the basis of these extra-judicial confessions, the three were charged with the crime of Robbery with Homicide.

The appellants pleaded not guilty to the charge.

Both oral and documentary evidence were presented in court by the prosecution. They established the death of Jose Malabanan, the damage caused to his heirs, and the loss of P30,600.00 worth of cash and jewelries. The extra-judicial statements of the accused were presented, identified and admitted in court as part of the testimony of the police investigators.

The defense presented witnesses who testified on the good moral character of Camalog and Sotto and their whereabouts in the early morning of June 12, 1985.

On the witness stand, De los Reyes admitted his participation in the commission of the crime charged but retracted his statement made in the extra-judicial confession regarding the participation of his co-accused Camalog and Sotto. He testified that he had been mauled by the police investigators during the interrogation. He also testified that he was threatened with bodily harm if he refused to admit having committed the crime charged. He likewise testified that be was forced to pinpoint the two other accused as his co-conspirators on account of a threat against his life made by the police authorities. He asserted that Camalog and Sotto were not involved in the commission of the robberry and homicide, that two men named Ben and Mario were his companions then, and that both Ben and Mario are still at large.

The other two accused, Camalog and Sotto, testified that they were never near the scene of the crime on the date and time it was committed, and that they were in their residences in Manila and Quezon City, respectively. Two witnesses, Concepcion Villasis and Robert Cabanban, employer and brother-in-law, respectively, of Sotto and Camalog, were presented to corroborate the alibi they gave.

The accused further stressed the fact that they were forced to sign the extra-judicial confessions presented in court. They also testified that the police investigators heat, maltreated and threatened them with death if they refused to sign the confessions. They likewise stated that they were never informed about their constitutional rights and that the police investigators never conducted an investigation as regards their alleged participation in the crime. The two accused further testified that during the period covering their custodial interrogation, they never had the chance to confer with a lawyer.

On September 30, 1986, the trial court rendered a decision finding all the three accused guilty of the crime charged, the dispositive portion of which reads:

WHEREFORE, the Court finds accused ARMANDO DE LOS REYES, FERDINAND CAMALOG, and NOVELITO SOTTO guilty beyond reasonable doubt of the crime of Robbery with Homicide punishable under Article 294 par. (1) of the Revised Penal Code and there being no mitigating or aggravating circumstances present in the commission of the crime hereby sentences said accused to suffer the penalty of reclusion perpetua, to indemnify the heirs of the victim jointly and severally (1) in the amount of P30,000.00 for the death of Jose Malabanan; (2) P30,600.00 for the items taken from the victim's house; and (3) actual damages of P70,000.00; (4) moral damages of P5,000.00 and to pay the proportionate costs.

SO ORDERED. 2

Taking exception to the finding that their guilt has been proved beyond reasonable doubt, the accused Ferdinand Camalog and Novelito Sotto appealed their case to this Court on the ground that the trial court erred as follows:

I. THE TRIAL COURT ERRED IN ADMITTING THE EXTRA-JUDICIAL CONFESSIONS OF THE APPELLATE BECAUSE THEY WERE OBTAINED THROUGH FORCE, THREAT AND INTIMIDATION AND THAT THEY WERE OBTAINED IN VIOLATION OF SECTION 20, ARTICLE IV OF THE (1973) PHILIPPINE CONSTITUTION.

II. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF JOHN LEO ALABADO.

III. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF ALIBI.

IV. THE TRIAL COURT ERRED IN DISREGARDING THE TESTIMONY OF ACCUSED ARMANDO DE LOS REYES.

V. THE TRIAL COURT ERRED IN FINDING THE APPELLATE APPELLANT'S GUILTY BEYOND REASONABLE DOUBT.

In considering these interrelated errors assigned by appellants, We find merit in their contention that there is no moral certainty to find them guilty beyond reasonable doubt of the crime charged.

The records show that their confessions were not regularly obtained. There were enough indications that the statements were not given voluntarily.

The trial court gave credence to the claim of the prosecution that the subject confessions were signed voluntarily on the basis of the failure of appellants to complain to the Municipal Trial Judge that they were forced to sign the same. The trial court failed to take note of the fact that when said confessions were presented to Judge Icasiano, their tormentors were present to hear and know what the appellants would say and do. They remained in the custody of their tormentors and not with Judge Icasiano. Appellants must have been reasonably apprehensive of further maltreatment if they manifested to Judge Icasiano that they were forced to sign the said confessions. 3

An observation was also made by the court a quo that it was not shown that the police

investigators had ill motive in order to implicate the accused to such a heinous crime. The police investigators were from Tanza, Cavite, just like the victim and his heirs. Appellant Ferdinand Camalog is from Ilocos Sur while appellant Novelito Sotto hails from Oriental Mindoro and both resided in Metro Manila. De los Reyes pointed them out to the police investigators to be the "Ben" and "Mario" who were his confederates. None of said nicknames jibed with the true names of appellants. The police investigators did not care. They brought the two to their headquarters in Tanza. They investigated them under circumstances that place into serious doubt their impartiality and motive.

The presence of details in the confessions of appellants were considered by the trial court as evidence that the confessions were voluntarily made. An examination of the confession earlier executed by De los Reyes shows that the details in the questioned confessions of appellants were culled from the said confession of De los Reyes.

The high point in deciding this case is the respect which must be accorded the constitutional rights of custodial prisoners at the time they are subjected to interrogation and their subsequent execution of an extra-judicial confession, was there really a confession or admission during the custodial investigation? Were they informed of their rights? We find no affirmative answers to these questions. It appears that the appellants were not informed of their constitutional rights and, even assuming that they were so informed, there is no indication that they understood those rights.

We gave emphasis to these points in recent cases, to wit:

When the Constitution requires a person under investigation to be informed of his rights to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled: he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. 4

In Reyes vs. Quizo 5 We took time to elucidate on this viz.

In other words, the right of a person under interrogation "to be informed' implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been 'informed' of his rights. Now, since the right to be informed' implies comprehension, the degree of explanation required will necessarily vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered.

The trial court relied on the testimony of the police investigators that the appellants have been informed of their fundamental rights but failed to take note of the conspicuous absence of any lawyer to assist the accused during the custodial investigation. Even assuming that the accused waived their constitutional right to counsel, there is no indication that they did so with the assistance of counsel. The testimony of the accused during the trial of this case supports Our observation, to wit:

Atty. Abaya:

Q. Do you know who conducted the investigation?

A. The police.

Q. When you were investigated by the police were you assisted by counsel of your choice?

A. No, sir.

Q. Did they inform you that you have the right to counsel?

A. No, sir.

Q. And did they manifest to you that they will give you a lawyer to assist you in your investigation?

A. No, sir.

Q. Despite the absence of a lawyer, did you give a statement to the police investigator?

A. No, sir. I did not give (a) statement. 6

Atty. Abaya:

Q. You did not give a statement to the police investigator?

A. I was just asked to sign the document.

Q. Why did you sign the document?

A. I signed it because I was being threatened by the police.

Q. What kind of threat did the police exert on your person?

A. They told me that if I will not sign the document, they are going to salvage me. 7

The prosecution witness, Sgt. Esmeraldo G. Romero, testified:

Atty. Bince:

Q. In short, when you told him of his right to counsel, there was no lawyer present, is that correct?

A. Yes, sir.

Q. When you told him that the statement that he will give might be used against him, you told that without the presence of the lawyer, is that correct?

A. Yes, sir.

Q. When he refused allegedly the assistance of counsel there was no counsel around, is that also correct?

A. Yes, sir. 8

Atty. Bince:

Q. You said you investigated also Novelito Sotto. During your investigation of him there was no lawyer present. Is that correct?

A. Yes, sir.

Q. When you told him he can avail (of) the services of a lawyer, there was no lawyer present. Is that correct?

A. Yes, sir.

Q. In short in both the custodial investigation of Armando de los Reyes and Novelito Sotto there was no lawyer present to assist them?

A. Yes, sir. 9

Very relevant to this case is the pronouncement of this Court in Morales vs. Ponce Enrile, 10

reiterated in People vs. Galit 11 and People vs. Lumayok, 12 where this Court categorically stated that the waiver by the accused of his right to counsel must be made in the presence and with the assistance of counsel.

We stressed the inadmissibility of extra-judicial confessions obtained in violation of this principle:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any, He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibilityof the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the

person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself of by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid, whether exculpatory or inculpatory in whole or in part, shall be inadmissible in evidence. (Emphasis supplied.) 13

In People vs. Lumayok, 14 this Court made the following observation —

No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested by any person on his behalf or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance ofcounsel. Any statement obtained in violation of the procedure herein laid down whether exculpatory or inculpatory in whole or in part shall be inadmissible in evidence. (Emphasis supplied).

The second error submitted by the appellants is that the extra-judicial confessions offered in evidence were obtained in violation of Section 20, Article IV of the 1973 Constitution, the fundamental law in force and effect at the time of their arrest. Even assuming that the accused were informed of their right to remain silent, there is no showing that the appellants fully understood the same.

The assertion made by the police investigators to the effect that the appellants were informed of their fundamental rights will not overthrow the fact that appellants were not assisted by counsel during the custodial investigation even if they had waived the right. The fact that the appellants were never assisted by counsel during the custodial investigation is confirmed in the testimony of prosecution witness Sgt. Esmeraldo Romero.

From the foregoing, it clearly appears that the Tanza, Cavite police investigators informed the accused-appellants Ferdinand Camalog and Novelito Sotto about their constitutional rights in a rather sloopy manner. The type of questions and answers recited in their extra-judicial confessions is Identical to that of their co-accused Armando de los Reyes. There was not even a semblance of conformity with the fundamental law.

Of course, the trial court put emphasis on the testimony of prosecution rebuttal witness John Leo Alabado that at about 5:00 o'clock in the morning of June 17, 1985 on his way to the residence of Bayani Bocalan, he saw the three (3) persons coming out of the victim's house. He identified the appellants to be among the three. 15

This witness was presented by the prosecution when its witness Bayani Bocalan failed to appear and accused De los Reyes denied the participation of the appellants in the commission of the offense. It took this witness over a year to report what he saw. And instead of reporting the same to the police authorities he conveniently allegedly reported what he supposedly saw to the victim's father who was then looking for witnesses. He appeared in court without a subpoena. The sudden emergence of this witness at the closing stages of the case is, to say the least, suspicious. A reading of the transcript of his testimony, shows how incredible it can be. He remembers the exact day he saw appellants. He did not notice any startling occurrence to remember said date and the identities of appellants so vividly. He met Francisco Malabanan, the father of the victim, for the first time in April 1986 when he revealed what he knew allegedly because his conscience bothered him. It was Malabanan who brought him to court to testify.

Bayani Bocalan, who was the witness who identified De lo Reyes and saw his two companions, was never presented by the prosecution. Such wilful suppression of evidence gives rise to the presumption that if presented the same would prove to be adverse to the prosecution. 16

Moreover as argued by appellants, the testimony of Alabado was improper for rebuttal. It should have been presented at the time the prosecution was presenting its evidence on direct examination.

The Solicitor General does not share the enthusiasm of the trial court in accepting the testimony of this witness. He argues, however that the extra-judicial confessions of appellants are sufficient to establish their guilt beyond reasonable doubt. The Court finds otherwise. With the

inadmissibility of the extra-judicial confessions of appellants, their conviction becomes baseless. They are entitled to an acquittal.

WHEREFORE, the decision of the Regional Trial Court of Cavite in Criminal Case No. TM-140 dated September 30, 1986 is hereby REVERSED and SET ASIDE as to the defendants-appellants and another judgment is hereby rendered ACQUITTING defendants-appellants FERDINAND CAMALOG and NOVELITO SOTTO with costs de oficio. This Decision is immediately executory.

SO ORDERED.

Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

G.R. No. L-38930 June 28, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ISABELO TRINIDAD, alias "Pedro Diplat," and ROMEO CONDAYA, alias "Romy," accused-appellants.

The Solicitor General for plaintiff-appellee.

Domingo V. Pascua for accused-appellant Isabelo Trinidad.

Emiliano S. Micu for accused-appellant Romeo Condaya.

CORTES, J.:Appellants were accused of the crime of murder on the basis of the following information:

That on or about the 16th day of April, 1973, at night, in Barrio San Vicente, municipality of Umingan, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Isabelo Trinidad, alias "Pedro Diplat and Romeo Condaya, alias "Romy," and Bonifacio Palding, alias "Pacio," and Wilfredo Mitrado, alias "Edo," who were discharged in the municipal court for insufficiency of evidence, conspiring together and mutually helping one another, armed with a shotgun and with intent to kill, with evident premeditation and treachery, did, then and there, wilfully, unlawfully and feloniously attack, assault and shoot Cristita Balancio Vda. de Angel inflicting upon her fatal gunshot wounds which caused her death as a consequence.

Contrary to Art. 248 of the Revised Penal Code. [Rollo, p. 4].

Upon arraignment, both accused-appellants, with the assistance of counsel, pleaded "Not Guilty."

In a decision dated May 27, 1974, the Court of First Instance rendered judgment convicting accused-appellants of murder and sentencing them to suffer the penalty of reclusion perpetua, to jointly and severally indemnify the heirs of the deceased Cristita Balancio Vda. de Angel in the amount of P12,000.00 and to pay the costs. The shotgun and the cartridges used in the commission of the crime were ordered confiscated and forfeited in favor of the government.

Not agreeing with the decision of the trial court accused-appellants appealed to this Court.

In his brief, accused-appellant Trinidad assigned the following errors:

I. THAT THE LOWER COURT ERRED SERIOUSLY WHEN IT REFUSED TO CONSIDER THE EVIDENCE FOR THE DEFENSE

II. THAT THE LOWER COURT ERRED GRAVELY AND SERIOUSLY WHEN IT CONCLUDED WITHOUT GROUNDS THAT:

1. It is undeniable that the initial holder of the gun was Isabelo Trinidad.

2. Isabelo Trinidad made sufficient steps in trying to escape suspicion by giving the gun for safekeeping to Romeo Condaya.

3. It is inconceivable for the police authorities to exactly know where the gun and the cartridges were hidden if not for the information furnished them by Romeo Condaya.

4. Isabelo Trinidad's presence at the scene of the crime was established by even the evidence in his behalf [as) his house is a few meters away from the victim's house.

5. Such startling occurrence could have roused Isabelo Trinidad from his sleep. In fine, when Isabelo Trinidad, after the burst of gunfire returned to the victim's house it was only to shield himself from responsibility for the crime which he concocted.

6. that the evidence clearly establish that Isabelo Trinidad conveniently evaded direct confrontation with the police authorities at the initial stage of the police investigation.

III. THAT THE LOWER COURT ERRED SO GRAVELY WHEN IT CONVICTED THE ACCUSED (YOUR APPELLANT) OF THE CRIME CHARGED CONTRARY TO LAW AND THE EVIDENCE.

On his part, accused-appellant Condaya assigned the following errors:

I

THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE PRESENTED BY THE DEFENSE TO PROVE THE IRREGULARITY RESORTED TO BY THE POLICE AUTHORITIES TO EXACT ADMISSION BY MEANS OF VIOLENCE, INTIMIDATION AND DECEIT FROM THE ACCUSED WAS IRRELEVANT DESPITE THAT ITS MATERIALITY AND RELEVANCE TO THE CASE IS VERY CLEAR.

II

THE LOWER COURT ERRED IN HOLDING THAT THE INITIAL INVESTIGATION REVEALED THAT ISABELO TRINIDAD, ROMEO CONDAYA, BONIFACIO PALDING AND WILFREDO MITRADO IMMEDIATELY AFTER THE, BURST OF GUNFIRE WAS HEARD, WERE SEEN A FEW METERS FROM THE HOUSE OF THE VICTIM CRISTITA BALANCIO VDA. DE ANGEL HURRIEDLY WALKING TOWARDS THE NORTH AND THAT ROMEO CONDAYA WAS HOLDING A GUN, DESPITE THE CLEARLY IMPROBABLE AND INCONSISTENT TESTIMONIES OF THE WITNESSES WHO TESTIFIED ON THIS (SIC) POINTS.

III

THE LOWER COURT ERRED IN HOLDING THAT ROMEO CONDAYA LED THE AUTHORITIES TO THE COLIBANGBANG" TREE AND THE BAMBOO GROVES WHERE THE SHOTGUN (EXH. C) AND THE CARTRIDGES (EXHS. D, D-1, D-2 AND D-3) WERE ALLEGEDLY RESPECTIVELY RETRIEVED DESPITE THE UNRELIABLE AND THE INADMISSIBILITY OF THE EVIDENCE UPON WHICH IT WAS BASED.

IV

THE LOWER COURT ERRED IN CONCLUDING THAT ROMEO CONDAYA WAS THE GUN WIELDER AND THAT HE DID SO UPON THE ACTIVE INDUCEMENT OF HIS CO-ACCUSED ISABELO TRINIDAD, DESPITE THE TOTAL LACK OF EVIDENCE TO SUPPORT IT.

V

AND, FINALLY, THE LOWER COURT ERRED IN CONCLUDING THAT THE CRIME CHARGED IN THE INFORMATION WAS PROVED AND THAT BOTH THE ACCUSED ARE GUILTY THEREOF DESPITE THE TOTAL LACK OF SUFFICIENT EVIDENCE TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

Ultimately, however, as pointed out by accused-appellant Condaya, the issue boils down to whether or not the prosecution has proven beyond reasonable doubt that accused-appellants Trinidad and Condaya were the persons responsible for the death of the victim.

To support its judgment of conviction, the trial court relied on the following findings:

The evidence for the prosecution tends to establish that in the evening of April 16, 1973, one Cristita Balancio Vda. de Angel was asleep by the balcony of her house situated at Barrio San

Vicente, Umingan, Pangasinan. With her at that time were her son, Juan Angel, her daughter-in- law and two (2) grandchildren. Suddenly, there was a burst of gunfire, rousing Juan Angel and his wife from their sleep. Juan Angel then peeped out from the window to find out what happened as his carabao was tied just below the said window. As Juan Angel peeped, he saw Isabelo Trinidad, Romeo Condaya, Wilfredo Mitrado and Bonifacio Palding, about five (5) to six (6) meters away hurriedly walking towards the North.

Shortly, as Juan Angel's wife shouted. Romeo Condaya who was then holding a gun, Isabelo Trinidad, Bonifacio Palding, and Wilfredo Mitrado ran farther towards the North.

It turned out that Cristita Balancio Vda. de Angel was hit by her neck which caused her death. (Exhibits "A" and "A-1"). So, Juan Angel proceeded to call for help. He asked somebody to fetch Ignacio Dopale, the Barrio Captain of San Vicente, Umingan, Pangasinan, who immediately responded to Juan Angel's call for help. Initial inquiries from Juan Angel, revealed the information that Immediately after the burst of gunfire, Romeo Condaya, Wilfredo Mitrado, Isabelo Trinidad and Bonifacio Palding, were seen hurriedly walking towards the North. So that, Barrio Captain Ignacio Dopale proceeded to the Umingan Municipal Building in Order to report the matter.

Corporal Dominador Barwel of the Umingan Police Force to whom the case was referred first fetched Sergeant Casio of the Philippine Constabulary at Umingan, Pangasinan. Then, they proceeded to the scene of the incident in order to investigate.

Arriving at the premises, they saw Cristita Balancio Vda. de Angel, already dead as a result of gunshot wounds suffered at the back of her neck. This investigation again revealed the information that Isabelo Trinidad, Romeo Condaya, Bonifacio Palding, and Wilfredo Mitrado, were seen within the vicinity immediately after the gunfire. As Isabelo Trinidad was then on the premises, he was apprehended and brought to the Municipal Building of Umingan, Pangasinan. On the way, Isabelo Trinidad revealed that he had caused the death of Cristita Balancio Vda. de Angel, as in fact he offered to pay Romeo Condaya the amount of Five Hundred Pesos (P500.00) to do the job. However, the intended victim was Juan Angel, because of Isabelo Trinidad's carabao.

Accordingly, Sgt. Casio and Cpl. Dominador Barwel on April 17, 1973 took steps to apprehend Romeo Condaya, Wilfredo Mitrado and Bonifacio Palding, at Sta. Rosa, Umingan, Pangasinan. Wilfredo Mitrado was apprehended on April 18,1973 while Romeo Condaya was apprehended sometime on April 20, 1973 at Sto. Tomas, Pangasinan, after being turned over by the Sto. Tomas police authorities. On the way to Umingan, Pangasinan, Romeo Condaya was verbally interrogated inside the jeep. Here, Condaya was asked if he had anything to do with the killing of Cristita Balancio Vda. de Angel. Readily, Romeo Condaya admitted the shooting as Isabelo Trinidad promised to pay him (Condaya) the amount of Five Hundred Pesos (P500.00). However, this amount remained unpaid. On the same occasion, Romeo Condaya informed Sgt. Casio and Cpl. Barwel that the gun used in the killing was hidden somewhere atop a "Colibangbang" tree at Sta. Rosa, Umingan, Pangasinan.

At Sta. Rosa, Umingan, Pangasinan, and upon Condaya's instructions, the 12 gauge locally made buck-shot was recovered. (Exhibit "C"). Thereafter, Romeo Condaya pointed to the bamboo grove where he hid the cartridges. (Exhibits "D", "D-1', "D-2" and "D-3").

After their apprehension, Romeo Condaya, Isabelo Trinidad, Bonifacio Palding, and Wilfredo Mitrado were made to execute sworn statements which, however, they refused to affirm before the Municipal Judge of Umingan, Pangasinan. [CFI Decision, pp. 2-4; Rollo, pp. 21-23].

In their testimonies, accused-appellants Trinidad and Condaya denied their participation in the crime and asserted that after their apprehension they were tortured and maltreated until they signed documents which they later found out to be their extrajudicial confessions. Hence, their refusal to affirm their written confessions before the municipal judge.

To prove his innocence, Trinidad emphasized the undisputed facts that he was even among those who went to Umingan to fetch Sgt. Casio and Cpl. Barwel and that he even remained at the scene of the crime while, they were conducting their investigation and provided refreshments for the investigators.

The trial court dismissed accused-appellants defense with the following observation:

Before anything else, this Court notes with muffled amusement the manner at which the accused presented their side of the case. For aware as they were that the alleged statements taken from them by the authorities of Umingan, Pangasinan when offered by the prosecution was denied admission, they persisted at presenting evidence along this line. There really was no need for the accused to do what they did. As far as this Court is concerned, the supposed irregularity at securing these admissions was irrelevant. For so it is that these statements were not even

subscribed and sworn to before any competent authority. So that, when the accused persistently harped at this alleged violence upon their persons, this Court was furnished a sufficient basis at attributing a semblance of meaning to these statements. But conformably with our settled constitutional demands of due process, this Court considers these averments of violence extraneous to this case, although the Municipal Health Officer, Dr. Eddie Soriano's medical certificates had shown a contrary finding. (Exhibits "H", "H-1", "H-2", "I", "I-1", "I-2" and "I- 3"). [Rollo, pp. 31-32].

At the outset, it must be stated that the trial court correctly denied the admissibility as evidence of the written extrajudicial confessions of the accused-appellants. Such denial, however, should not have been for the reason given, namely, that they were not subscribed and sworn to before the proper authorities, but, rather, because the requirements of the Constitution were disregarded.

The 1973 Constitution, then in force and effect when the confessions were taken, provided in words that left no room for doubt:

Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. [Article IV].

The rule is that when an accused testifies that he signed his confession because he was maltreated, the prosecution must present evidence to rebut this claim, otherwise the confession will be considered illegally procured [People v. Inguito, L-53497, October 18, 1982, 117 SCRA 641.] The presumption of regularity of performance of official duty does not apply to incustody confessions. The prosecution must prove compliance with the constitutional requirements [People v. Tolentino, G.R. No. L-50103, November 24, 1986, 145 SCRA 597.]In the instant case, accused-appellants' allegations of torture and maltreatment were refuted by Dr. Soriano's testimony and medical certificate.

However, since there is no proof that when they made their confessions they were informed of their right to remain silent and to counsel and that they knowingly and intelligently waived these rights, such confessions are inadmissible in evidence [People v. Duero, G.R. No. L-52016, May 13, 1981, 104 SCRA 379.] Likewise, the absence of counsel at the time of custodial investigation when the extrajudicial confession was taken renders it inadmissible [People v. Burgos, G.R. No. L-68955, September 4, 1986, 144 SCRA 1.] It is not enough that the suspect is asked if he needs a lawyer, he must be informed that if he is an indigent a lawyer will be appointed to represent him during custodial interrogation [People v. Tolentino, supra].

It is not only the oral confessions made to the apprehending officers, Sgt. Casio and Cpl. Barwel, that are tainted but also the written confessions made and signed a few days after their arrest. Thus, the testimonies of the police officers on the matters allegedly confessed to them by accused-appellants and the written extrajudicial confessions are inadmissible in evidence.

2. As the extrajudicial confessions are inadmissible, the Court is tasked with determining whether there remains sufficient evidence to sustain a finding of guilt beyond reasonable doubt.

It must be emphasized that no direct evidence was adduced to prove accused-appellants' commission of the crime charged.

To sustain a finding of guilt beyond reasonable doubt, the trial court wove together several pieces of circumstantial evidence.

The Rules of Court provides that circumstantial evidence is sufficient for a conviction if:

(1) there is more than one circumstance;

(2) the facts from which the inferences are derived are proven; and

(3) the combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. [Sec. 5, Rule 133].

Although no general rule has been formulated as to the quantity of circumstantial evidence sufficient for a conviction, the established requirement is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty [People v. Ludday, 61 Phil. 216; People v. Contante, G.R. No. L-14639, December 28,1964,12 SCRA 653.]

Thus, using the requirements of the Rules of Court and established jurisprudence as yardsticks, this Court is called upon, in this appeal, to ultimately determine whether the circumstantial evidence adduced during the trial are sufficient for a conviction.

The Solicitor General, in his brief [pp. 13-15], enumerated several circumstances in support of a finding that accused-appellants were guilty beyond reasonable doubt of the murder of Cristita Balancio Vda. de Angel, which may be summarize as follows:

1. Before April 16, 1973, accused-appellant, Isabelo Trinidad, bore a grudge against Juan Angel. Trinidad suspected Juan Angel of having burned the rope of his (Trinidad's) carabao.

2. Trinidad had warned Juan Angel on April 15, 1973, that he (Trinidad) could have Juan Angel killed at anytime, even inside the latter's house.

3. In the evening of April 16, 1973, Bonifacio Palding, saw Trinidad and Condaya (in the course of a drinking session with Palding, and Wilfredo Mitrado) converse secretly some six (6) meters away from Palding and Mitrado. After this conversation, Trinidad gave Condaya a home made shotgun and then Trinidad and Condaya, followed by Palding, and Mitrado, proceeded to the house of Juan Angel.

4. While Palding, was some four (4) meters behind Trinidad and Condaya he (Palding) heard a gunshot and saw a flash of light near the door of Juan Angel's house.

5. A few seconds later, Palding, saw Trinidad and Condaya running away from the house. Palding and Mitrado also ran away in the direction taken by Trinidad and Condaya.

6. Juan Angel saw Trinidad, Condaya, Palding, and Mitrado running away from the house as he peeped through a window after he heard the gunshot.

7. When Palding, and Mitrado caught up with Trinidad and Condaya in a certain field, Palding heard Trinidad instruct Condaya to take the shotgun to Sta. Rosa, Umingan, Pangasinan and hide it.

8. After the apprehension of Condaya on April 20 or 21, 1973, the home-made shotgun was recovered on top of a "colibangbang" tree behind the house of Condaya's parents, together with three (3) live cartridges hidden in a bamboo grove nearby.

To this enumeration may be added three (3) more circumstances: (1) that the victim was found dead near the door inside her son Juan Angel's house; (2) that the victim died of hemorrhage caused by gunshot wounds; and (3) that two pellets were recovered from her body.

All of these circumstances, eleven (11) in all, have been proven by direct evidence. Together, these circumstances lead to the conclusion that accused-appellants Trinidad and Condaya were guilty beyond reasonable doubt for the shooting of Cristita Balancio Vda. de Angel.

Even if the eighth circumstance cited by the Solicitor General — that the shotgun and the ammunition were recovered in the vicinity of the house of Condaya's parents — is disregarded on the ground that the recovery was the fruit of the tainted confession, the result would be the same because of the overwhelming circumstantial evidence.

Two (2) of the circumstances also manifest a community of purpose indicative of a conspiracy between Trinidad and Condaya, which would make both of them equally guilty of the crime [People v. Garcia, G.R. Nos. L-26105, February 18, 1986, 141 SCRA 336], although only one of them may have pulled the trigger and actually fired the fatal shot. Where a conspiracy has been proven, a showing as to who inflicted the fatal wound is not required. [People v. Tala, G.R. Nos. L-69153-54, January 30, 1986,141 SCRA 240].

The rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and convincingly as the commission of the crime itself [People v. Vicente, G.R. No. L-26241, May 21, 1969, 28 SCRA 247]. In the instant case, the third circumstance cited by the Solicitor General (that Trinidad pulled Condaya away from Palding and Mitrado to converse secretly and then gave him the shotgun before they all went to Juan Angel's house), coupled with the seventh (that Trinidad told Condaya to hide the shotgun as they were running away from Juan Angel's house), sufficiently proves the conspiracy between Trinidad and Condaya. The conduct of accused-appellants before, during and after the commission of the crime are circumstances showing the presence of conspiracy [People v. Cabiltes, G.R. No. L-18010, September 25, 1968, 25 SCRA 112].

The crime committed was murder with the qualifying circumstance of treachery, as characterized by the fact that the victim was shot at close range while she was asleep, thus ensuring the commission of the crime without risk to the assailants [People v. Dequina, 60 Phil. 279 (1934)]. That Juan Angel, and not his mother, was apparently the intended victim is not incompatible with the existence of treachery. Treachery may be taken into account even if the victim of the attack was not the person whom the accused intended to kill. However, evident premeditation may not be considered as a qualifying circumstance as it cannot be said that the assailants premeditated on the killing of the actual victim [People v. Mabug-at, 51 Phil. 967 (1926); People v. Guillen, 85 Phil. 307 (1950)]. Thus, evident premeditation, although alleged in the information, may

not be considered as a qualifying circumstance.

With the abolition of the death penalty in the 1987 Constitution, murder is now penalized by reclusion temporal in its maximum period to reclusion perpetua. Absent any modifying circumstances, the penalty is imposable in its medium period, or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the range of the penalty is lowered by one degree to prision mayor in its maximum period to reclusion temporal in its medium period, or from ten (10) years and one (1) day to seventeen (17) years and four (4) months.

WHEREFORE, the decision of the court a quo is MODIFIED and the Court, in the exercise of its discretion, sentences accused-appellants to suffer the indeterminate penalty of from fourteen (14) years and one (1) day of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal, as maximum, and to indemnify the heirs of the victim in the amount of P30,000.00.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner, vs.HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

NARVASA, J.:

What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. 2

On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten notes 3 reading as follows:

2-8-86

TO WHOM IT MAY CONCERN:

THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000

(APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.

(s) Felipe Ramos

(Printed) F. Ramos

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated.

About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) —

.. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted with and received in trust fare tickets of passengers for one-way trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, ... once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, ... failed and refused to make good his obligation, to the damage and prejudice of the offended party .. .

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal.

At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, 6 which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.'

By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by

counsel when he made said admission."

The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question.

The Court deems that there has been full ventilation of the issue — of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows:

SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely:

1) the right against self-incrimination — i.e., the right of a person not to be compelled to be a witness against himself — set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and

2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in

Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 13

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself"

The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty.

That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17

The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

Section 20 states that whenever any person is "under investigation for the commission of an offense"--

1) he shall have the right to remain silent and to counsel, and to be informed of such right, 21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; 22 and

3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence. 23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. 24

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also been more precisely described by this Court." 28

.. . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be tanned unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance.

Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime.

It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. 30

Additionally, the accused in a criminal case in court has other rights in the matter of giving

testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others-

1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32

The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words — unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith . 36 He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged.

It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa.

In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit:

1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and

2) AFTER THE CASE IS FILED IN COURT — 37

a) to refuse to be a witness;

b) not to have any prejudice whatsoever result to him by such refusal;

c) to testify in his own behalf, subject to cross-examination by the prosecution;

d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments

he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside.

It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation — or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is now declared of no further force and effect.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

G.R. No. 96602 November 19, 1991

EDUARDO ARROYO, JR., petitioner, vs.COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 96715 November 19, 1991

RUBY VERA-NERI, petitioner, vs.THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents.

Efren C. Carag for Eduardo C. Arroyo, Jr.

Singson, Valdes & Associates for Ruby Vera Neri.

R E S O L U T I O N

FELICIANO, J.:pIn G.R. No. 96602, the Court summarized the facts of the case in this manner:

Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and Eduardo Arroyo committed on 2 November 1982 in the City of Baguio.

Both defendants pleaded not guilty and after trial, the RTC convicted petitioner and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the Revised Penal Code.

The essential facts of the case, as found by the trial court and the Court of Appeals, are as follows:

... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and witness Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped first at the house of Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to the Mines View Park Condominium of the Neri spouses. At around 7:00 o' clock in the evening, accused Eduardo Arroyo arrived at the Neris' condominium. Witness opened the door for Arroyo who entered, he went down to and knocked at the master's bedroom where accused Ruby Vera Neri and her companion Linda Sare were. On accused Ruby Vera Neri's request, Linda Sare left the master's bedroom and went upstairs to the sala leaving the two accused. About forty-five minutes later, Arroyo Jr. came up and told Linda Sare that she could already come down. Three of them, thereafter, went up to the sala then left the condominium. (Court of Appeals Decision, p. 4) 1

Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision. Petitioner Ruby Vera Neri also moved for reconsideration or a new trial, contending that a pardon had been extended by her husband, private complain ant Dr. Jorge B. Neri, and that her husband had later con traded marriage with another woman with whom he is presently co-habiting. Both motions were denied by the Court of Appeals.

Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this court denied in a Resolution dated 24 April 1991.

In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February

1991.

Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715.

On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in accordance with long-stand ing practice of the Court.

On 29 July 1991, the Third Division deliberated upon the case which was then assigned to the ponente for the writing of the Court's Resolution. 2

On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case against petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4

Petitioners then filed their respective motions praying for the dismissal or for the granting of new trial of the case claiming a basis for their motions Dr. Neri's manifestation. The Solicitor General was then asked to comment on the manifestation; hi comment was filed with this Court on 18 October 1991. 5

In October 1991, the consolidated cases were, again in accordance with long-standing practice of the Court, assigned to the First Division upon the assignment of the ponente to that division. On 4 November 1991, the consolidated cases were re deliberated upon by the members of the First Division who reached the same conclusion as the members of the Third Division of the Court.

In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following contentions:

1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure misunderstanding' raises questions as to the truth of the alleged admission made by Mrs. Neri;

2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an illicit affair but not that adultery was committed on the date and place in question;

3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent marriage to another woman which, if proven would preclude either of the spouses from filing charges of adultery or concubinage against each other.

In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:

1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration and/or new trial of the petitioner;

2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of petitioner against self-incrimination;

3. The Honorable Court of Appeals erred in failing to take into consideration the material inconsistencies of the testimony of the complaining witness; and

4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the physical impossibility of the petitioner to have committed the crime charged. 6

The issues in the consolidated cases may be summarized as follows:

1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his credibility;

2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated;

3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal complaint on the ground of pari delicto; and

4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial.

Deliberating on the:

1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has failed to show any ground that would warrant the Court reversing its Resolution dated 24 April 1991; and on the

2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera Neri has failed to show reversible error on the part of the Court of Appeals in issuing its Decision dated 21 May 1990 and its Resolution, dated 18 December 1990.

Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on the basis of Dr. Neri's pardon. He, together with petitioner Neri, now cites the same affidavit in the effort to cast doubts on the credibility of Dr. Neri's testimony given before the trial court. However, in the Court's Resolution, dated 24 April 1991, dismissing the Petition for certiorari in G.R. No. 96602, the Court held that:

It has been our constant holding that:

In certiorari proceedings under Rule 45, the findings of fact of the lower court as well its conclusions on credibility of witnesses are generally not disturbed, the question before the court being limited to questions of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the credibility of witnesses are given considerable weight, since said court is in the best position to observe the demeanor, conduct and attitude of witnesses at the trial. (Aguirre v. People, 155 SCRA 337 [1987]; emphasis supplied)

Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the Court does not believe that such an admission by an unfaithful wife was inherently improbable or impossible. 7 (Emphasis supplied)

The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs. Neri's constitutional right against self-incrimination had been disregarded when her admission to her husband in the privacy of their conjugal home that she had indeed lain with petitioner Arroyo was taken into account by the trial court, to wit:

Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of 1982, he surprised his wife while she was looking at some photographs in their bedroom in their house in Dasmariñas Village, Makati. Accused Ruby Vera Neri then turned pale and started for the door. Struck by this unusual behavior, Dr. Neri started looking around the dressing room and he came upon a Kodak envelope with film negatives inside. He took the negatives for printing and a few days later, armed with the photographs which showed his wife in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at this point that Ruby Vera Neri admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in Baguio on 2 and 3 November 1982.

xxx xxx xxx

As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that:

The right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confession or admissions from respondent-accused.(emphasis supplied)

In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a custodial interrogation, hence, petitioner cannot now claim that Mrs. Neri's admission should have been rejected.

In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:

The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him.

The rule is that any person, otherwise competent as witness, who heard the confession, is competent to testify as to substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance.

Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim.

We also note that the husband is not precluded under the Rules of Court from testifying against his wife in criminal cases for a crime committed by one against the other (Section 22, Rule 129, Revised Rules of Court).

In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as he was a competent witness. Neither was said testimony rendered inadmissible by the constitutional provision on the right to remain silent and the right to counsel of a "person under investigation for the commission of an offense."

Petitioner next claims that the trial court erred in convicting him on the basis of the failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83 SCRA 282 [1978]), it was held that:

We have held that an accused has the right to decline to testify at the trial without having any inference of guilt drawn from his failure to go on the witness stand. Thus, a verdict of conviction on the basis, solely or mainly, of the failure or refusal of the accused to take the witness stand to deny the charges against him is a judicial heresy which cannot be

countenanced. Invariably, any such verdict deserves to be reserved.

Such situation does not obtain, however, in the case at bar. For while the trial court took note of the failure of defendant to take the witness stand to deny the charge against him, the same was not the main reason, much less the sole basis, of the trial court in holding, as credible the testimony of complainant, and in ultimately concluding that the crime of rape had been committed by the accused-appellant. (Emphasis supplied)

Examination of the trial court decision here shows that said failure to testify was not the sole nor the main basis of the conviction. Aside from accused's failure to deny Dr. Neri's testimony, the trial court also considered the testimonies of Dr. Neri and other prosecution witnesses and the photographs of the two accused in intimate poses (and three of which showed them half naked in bed). 8 (Emphasis supplied)

We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and concubinage and that in such a case "it would be only a hypocritical pretense for such spouse to appear in court as the offended spouse." 9

In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case, the Court found that the complaining husband, by entering into an agreement with his wife that each of them were to live separately and could marry other persons and by filing complaint only about a year after discovering his wife's infidelity, had "consented to, and acquiesced in, the adulterous relations existing between the accused, and he is, therefore, not authorized by law to institute the criminal proceedings." In fine, the Guinucud case refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be implied: the accused did not enter into any agreement with Dr. Neri allowing each other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering the illicit affair.

Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal consideration.10 The case at bar does not involve any illegal contract which either of the contracting parties is now seeking to enforce.

Petitioners also contend that Dr. Neri's manifestation which reads:

2. Even before I filed the complaint in court and before the pardon that I had extended to my wife and her co-accused, I was in reality aware of what was going on between and therefore, tacitly consented to my wife's infidelity, ...

should result in the dismissal of the case or, at the very least, in the remand of the case for new trial claiming that in People v. Camara 11 it was held that "the consent of the spouse is valid defense to a prosecution for adultery and/or concubinage." 12

Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by him before the trial court. It is settled that not all recantations by witnesses should result in the granting of a new trial. 13 In People v. Follantes and Jacinto, 14 it was held that:

... [R]ecantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. ... 15 (Emphasis supplied)

Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation. Dr. Neri had two (2) previous occasions to make the claim contained in his manifestation: first, in the compromise agreement 16 dated 16 February 1989 submitted before the Regional Trial Court of Makati, Branch 149 in relation to Civil Case No. M-001; and second, his affidavit 17 dated 23 November 1988 submitted to the Court of Appeals. Instead, however, these two (2) documents merely stated that Dr. Neri had pardoned petitioners 18 and the complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of the adulterous relations. It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to cure the deficiency noted by the Court in the two (2) previous documents in the disposition of the petition in G.R. No. 96602:

Petitioner will find no solace in the cases he cites, in support of his prayer to dismiss the case based on Dr. Neri's pardon. People v. Camara (100 Phil. 1098 (1957) is inapplicable as the affidavit there expressly stated that the wife had consented to the illicit relationship. In Gomez v. Intermediate Appellate Court (135 SCRA 620 [1985]) a case involving estafa, the criminal case was

dismissed as the affidavit of desistance specifically stated that the accused had nothing to do whatsoever with the crime charged. In the present case, the pardon did not state that Dr. Neri had consented to the illicit relationship petitioner and Mrs. Neri. Neither did it state that the case was filed against the wrong parties. 20

Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of petitioner Arroyo's motion for reconsideration, it was subscribed to only on 23 August 1991.

Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise agreement operate as a pardon meriting a new trial. The Court notes that the cases of People v. Camara (supra) and Gomez v. Intermediate Appellate Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No. 96602 which the Court has already held to be inapplicable in the present case.

The rule on pardon is found in Article 344 of the Revised Penal Code which provides:

ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse.

The offended party cannot institute criminal prosecution without including both parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders.

xxx xxx xxx

While there is a conceptual difference between consent and pardon in the sense that consent is granted prior to the adulterous act while pardon is given after the illicit affair, 21 nevertheless, for either consent or pardon to benefit the accused, it must be given prior to the filing of a criminal complaint. 22 In the present case, the affidavit of desistance was executed only on 23 November 1988 while the compromise agreement was executed only on 16 February 1989, after the trial court had already rendered its decision dated 17 December 1987 finding petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated and signed after issuance of our Resolution in G.R. No. 96602 on 24 April 1991.

It should also be noted that while Article 344 of the Revise Penal Code provides that the crime of adultery cannot be prosecuted without the offended spouse's complaint, once the complaint has been filed, the control of the case passes to the public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor even principally, a matter of vindication of the private honor of the offended spouse; much less is it a matter merely of personal or social hypocrisy. Such enforcement relates, more importantly, to protection of the basic social institutions of marriage and the family in the preservation of which the State has the strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect find strengthen the family as a basic autonomous social institution ...

The same sentiment has been expressed in the Family Code o the Philippines in Article 149:

The family, being the foundation of the ration, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.

In U.S. v. Topiño, 24 the Court held that:

... The husband being the head of the family and the only person who could institute the prosecution and control its effects, it is quite clear that the principal object in penalizing the offense by the state was to protect the purity of the family and the honor of the husband, but now the conduct of the prosecution, after it is once commenced by the husband, and the enforcement of the penalties imposed is also a matter of public policy in which the Government is vitally interested to the extent of preserving the public peace and providing for the general welfare of the community. ... 25 (Emphasis supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month after her ceasarian operation, the Court agrees with the Solicitor General that this is a question of fact which cannot be raised at this stage. In any case, we find no reason to overturn the Court of Appeals' finding that "a woman who has the staying power to volley tennis bags for fifteen minutes at the [John Hay] tennis court would not be incapable of doing the sexual act" which ball play was followed, as noted by the Court of Appeals "by a picture taking of both accused in different intimate poses." 26

ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly DENIED for lack of merit. Costs against petitioners.

Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23 August 1991 be forwarded to the Department of Justice for inquiry into the possible liability of Dr. Neri for perjury.

Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.

have you stopped yelling at your wife?- leading

Open-Ended Leading Middle-Ground

What did you see? You saw the plaintiff standing by the car, didn’t you?

Did you see the plaintiff standing by the car?

When did you arrive at the office?

You arrived to the office at 5:30 PM.

Did you arrive at the office at 5:30 PM?

What, if anything, was she carrying?

Didn’t she have a gun in her hand?

Did she have a gun?

How old are you? You’re 45. Are you 45?

Where do you work? You work at the Grab-N-Go on Magazine St., don’t you?

Do you work at the Grab-N-Go on Magazine St.?

Here are some typical form objections:

• "Vague." The question is unclear. The question might be too long, some of the key

words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.")

• "Compound." The question is actually two questions.

Example: "Did you find the cancelled check on the ground and take it with you?"

• "Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.

Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"

• "Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer.

• "Assumes facts not in evidence." The question contains a factual statement that has not yet been established.

Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)

• "Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.

• "Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.

Example: "When you proceeded into the intersection, the light was green, correct?"

• "Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.)

• "Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.

Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.)

Some common objections that are not to the form of the question include irrelevance and hearsay.

If you'd like to add other objections to the list, please leave a comment. For more information on deposition objections, see my book, Deposition Checklists and Strategies

(James Publishing)

vague- when do you leave your house in the morning? - does not specify the day of the week to which it refers.

For example, if, in a case regarding an individual having committed a parking violating, evidence is brought to bear which would instead prove that the defendant cheated on his or her spouse, then that evidence might be objected to as immaterial or irrelevant, unless the evidence proving the affair would also somehow prove the parking violation. Thus, immaterial or irrelevant evidence can only be determined based on the underlying law in the case in question. - See more at: http://trial.laws.com/objection/immaterial#sthash.kz1Edv2d.dpuf

Relivent evidence means evidence that is pertinent to the case. Example: A man is murdered. He is killed by gunshot to the head from a .40 s&w. The main suspect in the case was caught near the scene of the crime with a handgun of the same caliber in his possession.

The fact that the weapon is of the same caliber is pertinent because it shows that the suspect had the proper weapon to commit the crime.

Relevant evidence need not, on it’s own, be capable of proving the point it is offered in support of. It need only be a link in a chain that ultimately proves or disproves a fact material to the case at hand. Therefore relevance analysis is often the analysis of a chain of references. For example: Defendant is charged with murdering his wife.

The fact that husband had a gambling problem could be relevant. The chain of inference could read: Husband has money troubles –> Wife has life insurance policy –> Husband is beneficiary –> Husband killed wife.

The fact that husband had a gambling problem alone isn’t enough to support an inference of murder, but as a link in the chain of evidence the information makes it more likely that he did, thereby making it relevant.

Evidence must be rationally relevant however. If someone sued a police officer for brutality it wouldn’t be relevant for the Plaintiff’s attorney to ask the Officer if he is married. His marital status has nothing to do with evaluating his conduct as a police

officer. In other words, knowing that the plaintiff is married does not help the trier of fact decide whether the officer used to much force against the Plaintiff so the rules of evidence keep that information out of the trial.

Foundation for admissibility of physical evidence or expert opinions

• Example: Prosecution calls expert witness to the stand to prove bullet found at the crime scene was fired from the weapon discovered in the defendant's home. The evidence is conditionally relevant based on whether the expert opinion is based on reliable methods.

Proving personal knowledge for witnesses

• Example: Prosecution calls witness to say defendant fired a weapon into a crowded bus. The evidence is only relevant if the witness has first hand knowledge

Proof of defendant's prior bad act

• Example: Prosecution wants to introduce evidence that defendant robbed store in the past and had knowledge of how to do it. The evidence is only relevant if the defendant actually committed the crime in the past.