G.R. No. 189834 March 30, 2011PEOPLE v JAY MANDY MAGLIAN

This is an appeal from the December 23, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02541, which affirmed the May 8, 2006 Decision in Criminal Case No. 8393-00 of the Regional Trial Court (RTC), Branch 22 in Imus, Cavite. The RTC found accused Jay Mandy Maglian guilty of parricide.

The Facts

An Information2 charged the accused as follows:

That on or about the 4th day of January 2000, in the Municipality of Dasmariñas, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court[,] accused with intent to kill, did then and there, willfully, unlawfully, and feloniously attack, assault, and set on fire Mary Jay Rios Maglian, his lawfully wedded spouse, who as a result sustained 90% Third Degree Burns on the face and other vital parts of the body that caused her death, to the damage and prejudice of the heirs of the said Mary Jay Rios Maglian.

During his arraignment, the accused pleaded "not guilty."

The prosecution presented witnesses Lourdes Rios, Norma Saballero, Dr. Ludovino Lagat, Amy Velasquez, and Ramon Orendain. The defense, on the other hand, presented accused Maglian, Atty. Ma. Angelina Barcelo, Atty. Rosemarie Perey-Duque, Police Officer 3 (PO3) Celestino San Jose, and Lourdes Panopio as witnesses.

The facts established during the trial follow.

The accused is a businessman engaged in the lending business and the buying and selling of cars and real estate. He and Atty. Mary Jay Rios (Mary Jay) were married on January 29, 1999. They had a son, Mateo Jay.3

On January 4, 2000, the accused and Mary Jay were having dinner at their home in Dasmariñas, Cavite when they got into an argument. The accused did not want Mary Jay to attend a party, causing them to fight. Incensed, the accused collected the clothes that Mary Joy had given him for Christmas and told her he would burn them all and started pouring kerosene on the clothes. Mary Jay tried to wrestle the can of kerosene from him and, at the same time, warned him not to pour it on her. Despite his wife’s plea, the accused still poured gas on her, thus setting both the clothes and his wife on fire.4

The accused brought Mary Jay to the De La Salle University Medical Center in Dasmariñas. After four days, she was transferred by her aunt to the burn unit of the East Avenue Medical Center in Quezon City, where her condition improved. Subsequently, however, the accused transferred her to St. Claire Hospital, which did not have a burn unit. Since her condition deteriorated, Lourdes Rios, Mary Jay’s mother, had her transferred to the Philippine General Hospital (PGH) in Manila but she was no longer able to recover. Before she expired, she told her mother what had happened to her, declaring, "Si Jay Mandy ang nagsunog sa akin. (Jay Mandy burned me.)" She passed away on February 24, 2000.5

The accused, in his defense, said the burning incident was completely accidental. He said it was Mary Jay who was being difficult while they were arguing. She threatened to throw away the clothes he had given her. To spite her, he also took the clothes that she had given him and told her he would burn them all. He then got a match and a gallon of kerosene. Mary Jay caught up with him at the dirty kitchen and took the match and kerosene from him. In the process, they both got wet from the spilled kerosene. She got angry at how he was looking at her and screamed, "Mandy, Mandy, wag yan, wag yan, ako na lang ang sunugin mo. (Mandy, don’t burn that, burn me instead.)"

Accused, trying to avoid further provoking his wife, left his wife and went upstairs to his son. While climbing the stairs, he heard Mary Jay shouting, "Mandy, Mandy, nasusunog ako. (Mandy, I’m burning.)" He ran down the steps and saw the blaze had reached the ceiling of the kitchen. He embraced his wife and called out to his mother to help them. He poured water on her when the fire could not be put out and brought her to the living room. He then carried Mary Jay to the car while shouting for help from the neighbors. In the process, he sustained burns on his legs and arms.6

While Mary Jay was still confined at the East Avenue Medical Center, the accused learned from a certain Judge Tanguanco that using "red medicine" would help heal his wife’s burn wounds. The hospital, however, did not allow him to use the "red medicine" on Mary Jay. He thus had his wife transferred to PGH. When there was no space at the hospital, she was transferred to St. Claire Hospital with the help of a certain Judge Español. The doctors at St. Claire advised him to stop using the "red medicine" on his wife when her wounds started to get worse and began emitting a foul odor.7

The accused asserted that his mother-in-law, Lourdes Rios, and their laundrywoman, Norma Saballero, accused him of burning his wife since his wife’s family had been angry with him ever since they got married. His mother-in-law and Mary Jay’s siblings used to ask money from them and would get angry with him if they did not receive any help.8

The accused likewise claimed that his late wife made a dying declaration in the presence of PO3 Celestino San Jose and Atty. Rosemarie Perey-Duque. This allegation was corroborated by PO3 San Jose, who testified that Mary Jay was a friend and he had visited her at East Avenue Medical Center on January 13, 2000. He was there to take Mary Jay’s statement upon instructions of Chief Major Bulalacao.9 PO3 San Jose narrated the incident during his direct examination by Atty. Bihasa:

Q What, if any, was the reply of Atty. [Mary Joy] Rios?

A She nodded her head.

Q And after that, what happened next:

A I told her that I will get her statement and she told me that she could give her statement.

Q And after Atty. Rios told you that she was capable of giving her statement, what if any transpired?

A I took her statement, which was in my handwriting.

Q Her statement was in your handwriting but who uttered those statements?

A It was Atty. Rios.10

Atty. Duque testified that the last time she spoke with Mary Jay was on January 13, 2000, when she visited her at the hospital along with PO3 San Jose. The statements of Mary Jay were reduced into writing and Atty. Duque helped in lifting the arm of the patient so that she could sign the document.11

The Ruling of the Trial Court

The RTC rendered its Decision on May 8, 2006, the dispositive portion of which reads:

WHEREFORE, premises considered, this Court finds and so it hereby holds that the prosecution had established the guilt of the accused JAY MANDY MAGLIAN y REYES beyond reasonable doubt and so it hereby sentences him to suffer the penalty of RECLUSION PERPETUA.

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Inasmuch as the civil aspect of this case was prosecuted together with the criminal aspect, the accused is also hereby ordered to indemnify the heirs of the deceased the following amounts of:

a. Php500,000 as actual damages

b. Php500,000 as moral damages,

c. Php200,000 as exemplary damages,

d. Php200,000 as attorney’s fees; and

e. Cost of suit against the accused.

SO ORDERED.12

The Ruling of the Appellate Court

On appeal, accused-appellant faulted the trial court for not giving credence to the dying declaration Mary Jay made to her friends who became defense witnesses. He averred that the trial court erred in not admitting the deposition by oral examination of Atty. Ma. Angelina Barcelo which would corroborate the testimonies of the defense witnesses regarding the handwritten dying declaration of Mary Jay. The trial court was also questioned for giving credence to the perjured and biased testimonies of prosecution witnesses Lourdes Rios and Norma Saballero. Lastly, accused-appellant averred that the trial court erroneously disallowed the defense from presenting Dr. Ma. Victoria Briguela, a qualified psychiatrist, who could testify that Mary Jay’s mental, psychological, and emotional condition on February 24, 2000 was disoriented and she could not have made a dying declaration on said date.

The CA upheld the ruling of the trial court. The dying declaration made by Mary Jay to her mother Lourdes and laundrywoman Norma had all the essential requisites and could thus be used to convict accused-appellant. It noted that while the testimonies of Lourdes and Norma on the dying declaration had some inconsistencies, these were immaterial and did not affect their credibility. It observed that no ill motive was presented and proved as to why the prosecution’s witnesses would make false accusations against accused-appellant.

Hence, we have this appeal.

On December 14, 2009, this Court required the parties to submit supplemental briefs if they so desired. The People, represented by the Office of the Solicitor General, manifested that it was adopting its previous arguments.

The Issue

In his Supplemental Brief, accused-appellant raises the following issue:

Whether the guilt of accused-appellant has been established beyond reasonable doubt.

Accused-appellant contends that (1) he never or did not intend to commit so grave a wrong as that committed or so grave an offense as the felony charged against him; and (2) that he voluntarily, and of his own free will, surrendered or yielded to the police or government authorities. He claims that the victim’s dying declaration showed that what happened to her was an accident. He avers that this was corroborated by three witnesses. The victim’s attending physician, he insists, also testified that he was told by the victim that what happened to her was an accident.

If not acquitted, accused-appellant argues that, in the alternative, his sentence must be reduced due to mitigating circumstances of no intention to commit so grave a wrong and voluntary surrender. He claims he is entitled to the latter since he voluntarily surrendered to the authorities before criminal proceedings were commenced against him. The reduction of his sentence, he contends, must be by at least another degree or to prision mayor or lower.

The Ruling of the Court

We affirm accused-appellant’s conviction.

Dying declaration

While witnesses in general can only testify to facts derived from their own perception, a report in open court of a dying person’s declaration is recognized as an exception to the rule against hearsay if it is "made under the consciousness of an impending death that is the subject of inquiry in the case."13 It is considered as "evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation."14

The Rules of Court states that a dying declaration is admissible as evidence if the following circumstances are present: "(a) it concerns the cause and the surrounding circumstances of the declarant’s death; (b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarant’s death."15 The question to be answered is which dying declaration satisfies the aforementioned circumstances, the one made by Mary Jay to Lourdes and Norma, or the one she made before Atty. Duque and PO3 San Jose.

Accused-appellant contends that his late wife’s dying declaration as told to the defense witnesses Atty. Duque and PO3 San Jose effectively absolved him from any wrongdoing. However, it is the dying declaration presented by the prosecution that satisfies all the requisites provided in the Rules. In contrast, the dying declaration for the defense did not show that Mary Jay’s death at the time of said declaration appeared to be imminent and that she was under a consciousness of impending death.

Moreover, We defer to the factual finding that the witnesses for the prosecution were more credible. Mary Jay’s dying declaration to her mother Lourdes and to Norma showed that accused-appellant was the one who set her in flames. Lourdes and the Maglians’ laundrywoman Norma both testified that Mary Jay, moments before her actual death, told them that it was accused-appellant who was responsible for burning her. Lourdes and Norma both testified that at the time of May Jay’s declaration, she was lucid and aware that she was soon going to expire. Furthermore, the so-called dying declaration made by Mary Jay to defense witnesses Atty. Duque and PO3 San Jose suffers from irregularities. The dying declaration allegedly made to Atty. Duque and PO3 San Jose was handwritten by the latter but he did not have it sworn under oath. We reiterate too that it was not clear that it was executed with the knowledge of impending death since the statements were made more than a month before Mary Jay died.

We agree with the trial and appellate courts that Lourdes and Norma were both credible witnesses and had no motive to lie about Mary Jay’s dying declaration. The appellate court correctly pointed out that although Lourdes was Mary Jay’s mother, this relationship did not automatically discredit Lourdes’ testimony. And while accused-appellant alleged that Lourdes as his mother-in-law did not approve of him, he could not give any improper motive for Norma to falsely accuse him. Between the two competing statements of the two sets of witnesses, the one presented by the prosecution should clearly be given more weight as it satisfies the requisites of an admissible dying declaration.

No intent to commit so grave a wrong

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The Revised Penal Code provides under Article 13(3) the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed. We held, "This mitigating circumstance addresses itself to the intention of the offender at the particular moment when the offender executes or commits the criminal act."16 We also held, "This mitigating circumstance is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim."17

Aiming for this mitigating circumstance, accused-appellant once again relies on the statements of the defense witnesses that Mary Jay told them what happened to her was an accident. However, as earlier discussed, Mary Jay’s dying declaration contradicts the alleged exculpatory statement she earlier made to the defense witnesses. Moreover, the prosecution took pains in court to demonstrate that fighting over the kerosene container would not have caused Mary Jay to be drenched in kerosene. As aptly explained by the trial court:

The court is convinced that the deceased did not take possession of the gallon container with kerosene. The accused had full control and possession of the same. He is a bulky and very muscular person while the deceased was of light built, shorter, smaller and weaker. When a demonstration was made in open court about the struggle for possession of the container, it was shown that the contents of the same did not spill owing to the little amount of liquid and its narrow opening. To be able to wet 90 percent of the body surface the kerosene content of the gallon container must have been poured over the head of the deceased. This explains why when she got ignited, the flames rose up to the ceiling and burned her from head to toe.18

It is extremely far-fetched that accused-appellant could accidentally pour kerosene on his wife and likewise accidentally light her up and cause third degree burns to 90% of her body. We, thus, agree with the trial court’s finding that accused-appellant knew the fatal injuries that he could cause when he poured kerosene all over his wife and lit a match to ignite a fire. There was no disparity between the means he used in injuring his wife and the resulting third degree burns on her body. He is, thus, not entitled to the mitigating circumstance under Art. 13(3) of the Code.

Voluntary surrender

An accused may enjoy the mitigating circumstance of voluntary surrender if the following requisites are present: "1) the offender has not been actually arrested; 2) the offender surrendered himself to a person in authority or the latter’s agent; and 3) the surrender was voluntary. "The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture."20

To avail himself of this mitigating circumstance, accused-appellant claims that he voluntarily yielded to the police authorities on October 14, 2002, or before the commencement of the criminal proceedings against him. He avers that this claim is backed by the records of the case and a certification made by the Dasmariñas Police Station. He contends that both the RTC and the CA inexplicably did not appreciate this mitigating circumstance in his favor.

A review of the records shows that accused-appellant on October 16, 2000 filed with the Department of Justice (DOJ) a Petition for Review of the Resolution of the private prosecutor in the instant case. Subsequently, a warrant of arrest for the parricide charge was issued against him on October 30, 2000.21 However, a Motion to Defer Implementation of Warrant of Arrest was filed by accused on November 13, 200022 and was granted by the RTC on December 12, 2000 in view of the petition for review he had filed before the DOJ.23 On September 11, 2002, the DOJ issued a Resolution24 denying the petition of accused-appellant. The defense later submitted a

Certification25 issued by the Philippine National Police-Dasmariñas Municipal Police Station dated October 18 2002 stating the following:

THIS IS TO CERTIFY that the following are excerpts fom the entries on the Official Police Blotter of Dasmariñas Municipal Police Station, appearing on page 0331 and 0332, blotter entry nos. 1036 and 1047 respectively, dated 15 October 2002, quoted verbatim as follows:

150740H October 2002 – "P/I Apolinar P. Reyes reported that one Jaymandy Maglian y Reyes, 30 years old, resident of #24 Bucal, Sampalok II, Dasmariñas, Cavite, with Warrant of Arrest issued by RTC Branch 21, Imus, Cavite, in CC# 8393-00 for Parricide, voluntarily surrendered to him on October 14, 2002. Subject is turned over to this station on this date".

151350H October 2002 – "One Jaymandy Maglian was transferred to BJMP and escorted by P/I Apolinar Reyes".

(Entries written by SPO3 Ricardo V. Sayoto – duty desk officer)

We find that in the case of accused-appellant, all the elements for a valid voluntary surrender were present. Accused-appellant at the time of his surrender had not actually been arrested. He surrendered to the police authorities. His surrender was voluntary, as borne by the certification issued by the police. There is, thus, merit to the claim of accused-appellant that he is entitled to the mitigating circumstance of voluntary surrender.

It bears noting that parricide, however, according to Art. 246 of the Revised Penal Code, is punishable by two indivisible penalties, reclusion perpetua to death. The Code provides under Art. 63(3) that when a law prescribes a penalty with two indivisible penalties and the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. But Section 3 of Republic Act No. (RA) 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines) provides that "persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended." The proper sentence in the instant case would, thus, be reclusion perpetua which is still the lesser penalty.

Anent an issue previously raised by accused-appellant and which was not discussed by the CA, while accused-appellant claims that the trial court erred in not admitting the deposition by oral examination of Atty. Ma. Angelina Barcelo, We note that the records show that an Order26 was issued by Judge Norberto J. Quisumbing, Jr. granting accused-appellant’s motion to take oral deposition of Atty. Barcelo.

Pecuniary liability

The trial court ordered accused-appellant to pay PhP 500,000 as actual damages; PhP 500,000 as moral damages; PhP 200,000 as exemplary damages; and PhP 200,000 as attorney’s fees.

We modify the monetary awards, those being excessive. We award a civil indemnity ex delicto as this is "mandatory upon proof of the fact of death of the victim and the culpability of the accused for the death."27 As We ruled, "When death occurs due to a crime, the following may be recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney’s fees and expenses of litigation; and (6) interest, in proper cases."28 Current jurisprudence pegs the award of civil indemnity at PhP 50,000.29

Moral damages should also be awarded even absent allegation and proof of the emotional suffering by the victim’s heirs. The amount should be decreased to PhP 50,000 in accordance with

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jurisprudence.30 Exemplary damages in the lowered amount of PhP 30,000 are likewise in order in this case charging parricide, as the qualifying circumstance of relationship is present.31

As to the attorney’s fees awarded, these must be reasonable in accordance with Art. 2208 of the Civil Code.32 We, thus, reduce the attorney’s fees to a more reasonable amount of PhP 50,000.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 02541 affirming the RTC Decision that found accused-appellant guilty beyond reasonable doubt of parricide is AFFIRMED with MODIFICATION.1âwphi1 The fallo of the RTC Decision should be modified to read, as follows:

WHEREFORE, premises considered, this Court finds and so it hereby holds that the prosecution had established the guilt of the accused JAY MANDY MAGLIAN y REYES beyond reasonable doubt and so it hereby sentences him to suffer the penalty of RECLUSION PERPETUA.

Inasmuch as the civil aspect of this case was prosecuted together with the criminal aspect, the accused is also hereby ordered to indemnify the heirs of the deceased the following amounts of:

a. PhP 500,000 as actual damages;

b. PhP 50,000 as civil indemnity;

c. PhP 50,000 as moral damages;

d. PhP 30,000 as exemplary damages;

e. PhP 50,000 as attorney’s fees; and

f. Cost of suit against accused-appellant.

SO ORDERED.

G.R. No. 188124 June 29, 2010PEOPLE v JONEL FALABRICA SERENAS

Before us on appeal is the Decision1 of the Court of Appeals affirming the Judgment2 of the Regional Trial Court (RTC) of Parañaque in Criminal Case No. 02-01426 convicting appellants Jonel Falabrica Serenas alias "Joe-An" (Joe-An) and Joel Lorica Labad (Joel) of the crime of murder.

Appellants were charged under the following Information:

That on or about the 8th day of December 2002 in the City of Parañaque, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating with one John Doe, whose true name and present whereabouts is still unknown, and all of them mutually helping and aiding one another, with intent to kill, treachery and evident premeditation, did then and there, willfully, unlawfully and feloniously attack, assault and stab one Nino Noel Ramos, thereby inflicting upon him serious and mortal stab wound, which caused his death.3

The facts, as narrated by prosecution witnesses, follow –

On 8 December 2002, at around 10:00 o’clock in the evening, Niño Noel Ramos (Niño) had just brought his girlfriend, Dianne Charisse Gavino (Dianne), home in Sto. Niño, Parañaque City. On his way back to La Huerta, he passed by a bridge connecting the barangays of Sto. Niño and La Huerta. Thereat, Niño was stabbed and mauled.4

Cesar Ramos (Cesar), Niño’s brother, was in the vicinity of N. Domingo Street in La Huerta when he heard a commotion on the bridge. As he was about to proceed to the bridge, he met Niño and noticed that his brother was soaked in his own blood. Niño relayed to Cesar that he was stabbed by Joe-An. Cesar immediately brought Niño to the hospital where the latter expired thirty (30) minutes later.5 At the police station, Cesar claimed that appellants told him that they merely "took fancy" on Niño.6

Dianne initially related in her affidavit executed at the police station that her cousin informed her of a commotion on the bridge. Upon reaching the bridge, she met a friend who told her that her boyfriend, Niño, was stabbed and brought to the hospital. She added that one day before the incident, she and Niño were walking along the bridge when they passed by the group of appellants and heard Joe-An utter the words, "Iyang mama na iyan, may araw din siya sa akin."7 In her testimony during the trial however, she narrated that she actually saw Joe-An stabbing Niño.8

PO3 Ramoncito Lipana (PO3 Lipana) was at the police station in La Huerta on 8 December 2002 when a woman named Dianne came to report a stabbing incident involving her boyfriend. PO3 Lipana, together with PO2 Jesus Brigola (PO2 Brigola) and PO3 Marlon Golfo, immediately proceeded to the crime scene. Upon arriving thereat, the police saw two men scampering away upon seeing them. They chased the two men, later identified as Joe-An and Joel. The police managed to catch the appellants while they were hiding near a bangka under the bridge. Appellants were brought to the police station where Dianne identified them as the assailants of Niño.9

Dr. Valentin T. Bernales (Dr. Bernales), the medico-legal officer who issued the autopsy report, testified that the victim was stabbed twice at the back and the assailant was situated within arm’s length. The victim succumbed from the stab wounds, both of which, are fatal. Dr. Bernales also noted that there were contuse abrasions on different parts of the victim’s body.10

Appellants invoked denial and alibi as their defense. Joe-An, a resident of Wawa, Sto. Niño, alleged that he was at his house on 8 December 2002. While he was taking his dinner, he saw people running towards the bridge. He went out of the house to check on what had happened. He approached a group of people talking about the commotion. Thereafter, he saw the police and barangay tanods arrive. He was immediately handcuffed and asked to go with the police. Joe-An alleged that he was physically forced by the police to admit the killing of Niño.11 Joe-An denied knowing the victim or his girlfriend, Dianne, but admitted that Joel is an acquaintance.12

Joel likewise denied his participation in killing Niño. He stated that he was sleeping at around 11 p.m. on 8 December 2002 when he was awakened by an argument involving his mother and four (4) men outside his room. He then got out of the room and saw PO3 Lipana, PO2 Brigola, and two other police "assets." The group invited him for questioning. When the two assets suddenly grabbed him, Joel resisted but he was forcibly brought to the police station. He saw Dianne at the station but the latter did not identify him as the culprit. Instead, Dianne even sought his help to identify the person who killed her boyfriend. This fact notwithstanding, the police refused to let him go. He testified that he did not know the victim or Dianne personally.13

After trial, the RTC rendered judgment convicting appellants, the dispositive portion of which reads:

WHEREFORE, considering that the prosecution was able to prove the guilt of both accused beyond reasonable doubt, accused JONEL FALABRICA SERENAS alias JOE-AN and JOEL LORICA LABAD are hereby sentenced to suffer the penalty of RECLUSION PERPETUA pursuant to R.A. 9346 which repealed the death penalty law. However, pursuant to Sec. 3 thereof, they are not eligible for parole.

Accused JONEL FALABRICA SERENAS alias JOE-AN and JOEL LORICA LABAD are jointly and severally liable to pay the heirs of NIÑO NOEL RAMOS, the following amounts, to wit:

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1. P50,000.00 as civil indemnity ex-delicto;

2. P50,000.00 as moral damages;

3. P23,000.00 as actual damages;

4. P20,000.00 as and by way of attorney’s fees; and

5. To pay the cost of suit.14

Lending full credence to the testimonies of the prosecution witnesses, the trial court concluded that the appellants conspired in assaulting and stabbing Niño. It gave full weight to the dying declaration uttered by Niño to his brother, as well as the statement of Dianne, who allegedly witnessed appellants threaten Niño the night before the incident. It also appreciated the aggravating circumstances of treachery and evident premeditation in the commission of the crime. Furthermore, the trial court regarded the uncorroborated testimonies of appellants to be "full of inconsistencies and unworthy of weight and credence."15

On 13 September 2006, appellants filed a notice of appeal informing the RTC that they are appealing the decision to the Court of Appeals.16

The Court of Appeals affirmed with modification the decision of the RTC by awarding exemplary damages in the amount of P25,000.00. Thus:

WHEREFORE, premises considered, the Decision appealed from, being in accordance with law and the evidence, is hereby AFFIRMED with the MODIFICATION that exemplary damages in the amount of P25,000.00 is awarded to the heirs of the victim. The Decision in all other respects STANDS.17

On 13 August 2008, a notice of appeal was filed assailing the decision of the Court of Appeals before this Court.18

On 26 October 2009, the parties were required to simultaneously file their respective supplemental briefs.19 In two (2) separate manifestations, both parties opted to adopt their briefs submitted before the Court of Appeals.20

Summarizing the arguments of both parties, the issues to be resolved are: (1) whether the testimonies of the witnesses are sufficient to prove appellants’ guilt beyond reasonable doubt; (2) whether the killing was qualified by treachery and evident premeditation; (3) whether conspiracy has been adequately proven.

In convicting appellants, the lower courts relied heavily on the testimonies of witnesses Cesar and Dianne, which they deemed to be credible. Jurisprudence dictates that factual findings of the trial court, its calibration of the testimonies of the witnesses, and its conclusions anchored on its findings are accorded great respect, if not conclusive effect, more so when affirmed by the Court of Appeals. The exception is when it is established that the trial court ignored, overlooked, misconstrued, or misinterpreted cogent facts and circumstances that, if considered, would change the outcome of the case.21

We respect the findings that Jonel Falabrica Serenas is guilty beyond reasonable doubt of murder not by virtue of identification by Dianne but as established by the dying declaration of the victim. Upon the other hand, we reverse the conviction of Joel Lorica Labad.

The trial court, as affirmed by the Court of Appeals, accorded full weight to the testimony of the prosecution witness, Dianne, who declared on the witness stand that she actually saw appellants maul and stab the victim, thus:

Q Miss witness, do you know the person of Niño Noel Ramos?A Yes, sir.Q Why do you know him?A He was my boyfriend, sir.Q And where is Niño Noel Ramos now?A He’s dead already, sir.Q Why do you know that he is dead?A Because I saw that day when he was stabbed, sir.Q You said that you know when he was stabbed. When was that?A On December 8, 2002, sir.Q What time was that?A At around 10:00 in the evening, sir.Q Where did it happen?A It happened on a bridge between La Huerta and Sto. Niño, Parañaque City, sir.Q Do you know the person who killed your boyfriend?A Yes, sir.Q If they are inside the courtroom, can you point to them?

COURT:

Witness pointing to the second and the third detention prisoners from among five (5) who when asked by the Court, "Ano’ng pangalan mo, ‘yong pangalawa?" answered by the name of Joel Labad. "IKaw? "Jonel Serenas po."22 [emphasis supplied]

Appellants argue that Dianne gave conflicting statements regarding the identity of the assailants. In her affidavit, she narrated that a friend informed her that Niño was stabbed and taken to the hospital. During trial however, Dianne testified that she witnessed the actual stabbing incident.

The Office of the Solicitor General (OSG) refutes the alleged inconsistencies in the statements made by Dianne in the affidavit and during trial. It claims that Dianne was categorical in her testimony that she saw appellants stab her boyfriend. Furthermore, her testimony in open court is superior to statements made in her affidavit, which statements may have been made when she was not in her right mind.23

The Court of Appeals dismissed the alleged inconsistencies by giving greater weight to the statement made in court by Dianne than that made in the affidavit she executed before the police.

We do not agree.

Dianne’s testimony is doubtful to say the least. This Court is mindful of the rule that if there is an inconsistency between the affidavit and the testimony of a witness, the latter should be given more weight since affidavits being taken ex-parte are usually incomplete and inaccurate. Corollary to this is the doctrine that, where the discrepancies are irreconcilable and unexplained and they dwell on material points, such inconsistencies necessarily discredit the veracity of the witness' claim.24 The second rule is apt to the case at bar.

Nowhere in her affidavit did Dianne point to appellants as the perpetrators of the crime. From the tenor of her affidavit, Dianne’s suspicion that appellants committed the crime merely arose from the alleged threats made by appellants on the victim the day before the incident. The pertinent portion of her affidavit is hereby reproduced:

T: Mayroon ka bang natatandaan pagbabanta kay Niño Noel bago ito nangyari sa kanya?

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S: Opo, naalala ko po kahapon ika 7 ng Disyembre 2002 humigit kumulang na alas 9:45 ng gabi noong kami ay papauwi dahil hinatid niya ako sa bahay, pagdaan naming sa Wawa Sto. Niño may apat na kalalakihan, naka upo sa may daanan malapit sa laruan ng pool, ang isa ay narinig ko nagsalita ng "IYANG MAMA NA IYAN, MAY ARAW DIN SIYA SA AKIN," hindi ko naman ito pinansin at tuloy tuloy po ang lakad namin.

T: Nakilala mo ba kong sino ang apat na kalalakihan?

S: Akin pong napag-alaman ang dalawang magkatabi na sina, Michael Baluyot at @Joe-An.

T: Sino naman ang iyong narinig nagsalita ng pagbabanta sa kanila kong natatandaan mo pa?

S: Opo, si @Joe-An po.

T: May ipapakita ako sa iyo, ano ang masasabi mo?

S: Opo, siya po ang nagsalita ng pagbabanta, affiant pointing to the person when asked identified himself as JONEL SERENAS Y FALABRICA, @Joe-An, 23 yrs. old, single, jobless, residing at 5058 Wawa Sto. Niño, P’que City.

T: Mayroon akong ihaharap sa iyo, ano naman ang iyong masasabi sa kanya?

S: Opo, siya po ang sumagot kay Joe-An ng "Oo nga, Oo nga" na umaayon sa nasabing pagbabanta, affiant pointing to the person inside investigation when asked voluntarily identified himself as MICHAEL BALUYOT Y ALIC, 17 yrs old single of 117 Wawa, Sto. Niño, P’que City referred to this office by PO2 Ramoncito Lipana, et al. for investigation.25

We cannot simply brush aside the fact that while Dianne pointed to the persons who threatened to do harm on the victim, she failed to identify who the perpetrators of the crime are. To the mind of the Court, this omission in Dianne’s affidavit is so glaring on a material point, i.e., the failure to attribute authorship to the crime. Therefore, the testimony of Dianne altogether becomes suspect.

Nevertheless, the prosecution’s case did not necessarily crumble. The victim’s dying declaration is a most telling evidence identifying Joe-an.

Appellants question the alleged dying declaration of the victim in that they were not sufficiently identified as the persons responsible for Niño’s death. Appellants anchor their argument on the utterance of the word "Joe-An" when the victim was asked on who stabbed him. Appellants advance that the victim may have been referring to some other person. Moreover, the victim did not even mention "Joel" or "Joel Labad," the other suspect.26

The OSG defends the victim’s dying declaration and insists that there was no mistake that the victim was indeed referring to Joe-An, considering that the latter was familiar to him.27

As an exception to the rule against hearsay evidence, a dying declaration or ante mortem statement is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation.28

In order for a dying declaration to be held admissible, four requisites must concur: first, the declaration must concern the cause and surrounding circumstances of the declarant's death; second, at the time the declaration was made, the declarant must be under the consciousness of an impending death; third, the declarant is competent as a witness; and fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim.29

Niño’s ante mortem statement was relayed to his brother Cesar, in this wise:

Q Cesar, will you please tell this Honorable court where were you on the night of December 8, 2002 at about 9:30?

A I was near the crime scene, sir.

Q Where is this place?

A In N. Domingo, La Huerta, Parañaque City, sir.

Q At that time, what did you notice?

A There was a commotion on top of the bridge, sir.

Q So, what did you do?

A We verified it, sir.

Q After that, what did you do?

A I saw my brother coming, sir.

Q Who is this brother of yours that you saw?

A Niño Noel Ramos, sir.

Q When you saw Niño Noel approaching, what did you do?

A I asked him what the commotion was all about, sir.

Q What did he answer?

A He told me that he was stabbed, sir.

Q What else did he tell you?

A I asked him who stabbed him, sir.

Q What was his answer?

A He answered [to] me that it was Joe-an, sir.

Q What else did he tell you?

A He asked me to bring him to the hospital, sir.

Q What did you do when he asked you to bring him to the hospital?

A I held him up and brought him to the hospital, sir.

Q Why? What was the condition of your brother at that time?

A He was bloodied, sir.30

6

All requisites for a dying declaration were sufficiently met by the statement of the victim communicated to Cesar. First, the statement pertained to Niño being stabbed, particularly pin-pointing Joe-An as the perpetrator. Second, Niño must have been fully aware that he was on the brink of death considering his bloodied condition when Cesar met him near the bridge. Third, the competence of Niño is unquestionable had he survived the stabbing incident. Fourth, Niño’s statement was being offered in a criminal prosecution for his murder.

Note however that based on the testimonies of witnesses, there was no direct evidence linking appellant Joel to the crime. Cesar testified, thus:

Q But you only knew that there was a stabbing incident when you were told by the victim that he was stabbed?

A Yes, sir.

Q And he told you that he was stabbed by a certain, who was that?

A Joe-an, sir.

Q Only Joe-an?

A Yes, sir.

Q And aside from this, he was not mentioning any other person?

A That is the only name he mentioned but there were three (3) or four (4) persons who mauled him, sir.

Q The accused in this case, of course, you do not know them?

A I know them by their faces, sir.

Q Why did you say so?

A Because I often pass by that place, sir.

Q But you did not see these persons at that time of the incident?

A I saw them but I cannot see their faces because it was quite far, sir.

Q And you only came to know about these persons at the police precinct, is that correct?

A Yes, sir.

Q Because Dianne and your brother told you so?

A Yes, sir.31 [Emphasis supplied]

While the police officers caught Joel hiding under the bridge, this incident appears to be circumstantial and cannot stand to prove Joel’s complicity without any corroborating evidence. Admittedly, Joel’s defense of denial and alibi are inherently weak, however, it is doctrinal that the weakness of the defense cannot be the basis for conviction. The primary burden still lies with the prosecution whose evidence must stand or fall on its own weight and who must establish by proof beyond reasonable doubt the guilt of the accused before there can be conviction.32 At this juncture, we acquit appellant Joel.

With respect to Joe-An, the lower courts properly appreciated the presence of treachery in qualifying the crime to murder.

There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and especially to ensure its execution, without risk to himself arising from any defense which the offended party might make.33

The medical records support the finding of treachery. The nature and location of his wounds are indicative of the positions of the victim and his assailant at the time the incident occurred. The trial court drew a better picture of how the victim was stabbed, thus:

It is clear under the circumstances that the victim has no opportunity to retaliate the aggression of the accused when he was stabbed because according to Dr. Valentin Bernales, Medico-Legal Officer of the National Bureau of Investigation considering the locations of the wound which was sustained by the accused, the assailant was about an arm [sic] length away and believed to be at the back of the victim who was standing and almost in the same level when the first stab wound was inflicted. As to the second wound, according to Dr. Bernales, the victim appears already lying face down on the ground when stabbed by the accused which to some extent is consistent with the testimony of Cesar that his brother/victim was mauled by four (4) other persons. This may be the reason why the victim sustained contuse abrasions on the different parts of his body.34

The victim was suddenly attacked by appellant on his way home from his girlfriend’s house. He was stabbed twice from behind. The mode of attack on the victim was clearly executed without risk to the attacker. We cannot discount the fact that there were other participants to the crime. Appellant could not have acted alone based on the testimony of the witnesses and the medico-legal report. However, the identity of the other assailants was not proven by the prosecution.1avvph!1

While affirming that treachery attended the commission of the crime, we however rule out the presence of evident premeditation.

In order for evident premeditation to be appreciated, the following requisites must be proven: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) a sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will. In the instant case, appellant uttered the words "iyang mama na iyan, may araw din siya sa akin." Even conceding that these utterances were in the form of a threat, it still cannot be presumed that at the time they were made, there was indeed a determination to kill and that appellants had indeed clung to that determination, planning and meditating on how to kill the victim.

Finally, appellants question the sufficiency of evidence to prove conspiracy. They aver that there was no concerted action pursuant to a common criminal design between the appellants. Moreover, the manner by which appellants conspired with one another in stabbing the victim was not discussed in the trial court’s decision.35

The OSG submits that conspiracy may be deduced from the manner by which the crime was perpetrated. It recalled that appellants waited by the bridge where the victim passes by whenever he visits his girlfriend. Upon seeing the victim, they grabbed and mauled him. Moments later, Joe-Ann stabbed the victim. Thereafter, appellants escaped and hid under the bridge where they were eventually apprehended. Clearly, they have performed overt acts in furtherance of the common design of killing the victim.36

There is nothing on record that would prove that conspiracy existed. The circumstantial evidence cited by the OSG are not sufficient to prove that appellant conspired with other individuals to

7

perpetrate the crime. Further lending doubt to this claim is the fact that the alleged co-conspirator’s identity was not established.

In sum, we find that the prosecution has proven that appellant Joe-An is guilty beyond reasonable doubt for the crime of murder. The acquittal of the other appellant, Joel, is in order on the ground of reasonable doubt.

As to appellant’s pecuniary liability, we find it proper to increase the award of civil indemnity and moral damages to P75,000.0037 each. The trial court’s grant of P23,000.00 as actual damages is increased to P25,000.00, but as temperate damages in line with the ruling in People v. Villanueva.38 We uphold the grant of P20,000.00 as attorney’s fees, with the victim’s mother having hired a private prosecutor to prosecute the case.39 We increase the award of exemplary damages to P30,000.00 in line with recent jurisprudence.40

WHEREFORE, the Decision of the Court of Appeals is hereby MODIFIED.

Appellant JONEL FALABRICA SERENAS is found GUILTY of the crime of murder and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the heirs of the victim Niño Noel Ramos the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages; P30,000.00 as exemplary damages, P25,000.00 as temperate damages and P20,000.00 as attorney's fees.

For failure of the prosecution to establish his guilt beyond reasonable doubt, appellant JOEL LORICA LABAD is ACQUITTED. The Director of Prisons is ordered to cause his immediate release, unless he is being held for some other lawful cause, and to inform this Court of such action within five days from receipt of this Decision.

SO ORDERED.

G.R. No. 177147 November 28, 2007(Formerly G.R. No. 147313)PEOPLE v JOEMARIE CERILLA

For automatic review is the Decision1 of the Court of Appeals2 dated 26 October 2006 in CA-G.R. CR-HC No. 00032 which affirmed with modification the Decision3 of the Regional Trial Court (RTC) of Iloilo City, Branch 23 dated 15 August 2000 in Criminal Case No. 496502 finding appellant Joemarie Cerilla guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua.

On 6 July 1998, an Information was filed against appellant charging him of the crime of murder committed as follows:

That on or about April 24, 1998, in the Municipality of Leganes, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a firearm with deliberate intent and decided purpose to kill and by means of treachery, did then and there willfully, unlawfully and feloniously shoot Alexander Parreño with the firearm which the accused was then provided, hitting and inflicting pellet wound at the right back portion of his body which caused his death.

CONTRARY TO LAW.4

The prosecution’s evidence shows that at around 6:00 pm on 24 April 1998, the victim, Alexander Parreño (Alexander), his 14-year old daughter, Michelle, and neighbor, Phoebe Sendin (Sendin), went to the house of appellant. They were cordially welcomed and entertained by appellant and his wife.5 An hour later, a blackout occurred. At this time, Alexander sought permission from the couple to leave, which the latter acknowledged.6 On their way home, Michelle was walking ahead

of Alexander with the latter closely following his daughter. Suddenly, after walking for about 100 meters

from appellant’s house, Michelle heard an explosion. Michelle immediately turned her back and saw appellant pointing a gun at Alexander who, at that moment, was staggering towards her.7 Sendin, who was also with Alexander and Michelle, did not look back but instead ran away and proceeded to the house of Mrs. Parreño.8 Meanwhile, Michelle was cuddling Alexander beside the road when the latter repeatedly told her that it was appellant who shot him.9 Twenty minutes later, Alexander’s other daughter, Novie Mae, arrived; she was also told by Alexander at that moment that it was appellant who shot him.10

SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to the crime scene and helped carry Alexander to an ambulance. SPO3 Dequito was able to ask Alexander who shot him to which he answered "Pato." "Pato" is an alias by which appellant is known.11

Alexander’s wife, Susan, who rushed to the hospital was also told by Alexander that it was appellant who shot him.12 Alexander died the following day.13

Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed an autopsy on the body of Alexander. The autopsy report stated the cause of death to be hemorrhage secondary to pellet wounds.14 Testifying on his report, Dr. Doromal explained that Alexander died from a gunshot wound which penetrated the ribs and lacerated the right lobe of the liver, colon, stomach, duodenum, and right kidney. The entrance wound was located at the middle-back portion of the body. Seven (7) pellets were recovered on the muscle of the upper and middle abdominal wall.15

The defense’s evidence consists of the testimonies of appellant himself and of his wife, Madoline, his stepdaughter, Franlin, PO1 Manolito Javelora, PO3 Alberto Sarmiento, and PO3 Wilson Allona. Appellant interposed alibi as his main defense. He claimed that Alexander, together with his daughter and Sendin, had gone to his house on 24 April 1998 at around 6:00 p.m. where they were welcomed and offered snacks.16 They were having a conversation when a blackout occurred. Alexander then asked permission to leave. After the visitors had left, appellant ordered his stepdaughter Franlin to buy candle at the store across their house. Appellant and Madoline posted themselves at their doorway holding a flashlight to light Franlin’s path. Upon Franlin’s return to the house, appellant heard an explosion and he immediately closed the door. Later, the policemen

went to his house and told him that he was a suspect in the shooting of Alexander and was then brought to the police station.17 The following day, he was subjected to paraffin test the result of which turned out to be negative.18

Appellant’s testimony was corroborated by Madoline and Franlin. PO1 Javelora declared that when he asked Alexander who shot him, the latter did not answer.19 Likewise, PO3 Sarmiento and Allona stated that when they went to the hospital to interrogate Alexander, the latter could not give a definite answer as to who shot him.20

On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt of murder and sentenced him to suffer the penalty of reclusion perpetua. The dispositive portion of the decision read:

WHEREFORE, premises considered, and in the light of the facts obtaining and the jurisprudence aforecited, judgement is hereby rendered finding the accused GUILTY beyond reasonable doubt of the crime of MURDER, hereby sentencing the said accused to the penalty of RECLUSION PERPETUA pursuant to Sec. 6 of Republic Act No. 7659[,] amending Article 248 of the Revised Penal Code. The said accused is further condemned to indemnify the surviving heirs of the deceased, Alexander Parreño, the sum of P257,774.75 by way of actual damages; the amount of P30,000.00 by way of moral damages and the sum of P50,000.00 by way of death compensation. The accused who is detained is entitled to be credited in full with the entire period of his

8

preventive detention. The Jail Warden, Iloilo Rehabilitation Center is ordered to remit the said accused to the National Penitentiary at the earliest opportunity.

SO ORDERED.21

The trial court regarded the victim’s dying declaration as the most telling evidence pointing to appellant as the assailant.22 It appreciated the presence of treachery in qualifying the crime to murder because the victim was unarmed and walking on his way

home when he was suddenly and unexpectedly shot from behind by appellant.23 The trial court ruled that appellant’s alibi and denial could not prevail over the positive testimonies of credible witnesses.24 Moreover, it observed that appellant was not able to prove the impossibility of his presence at the crime scene which could have proven his alibi.25

In view of the penalty of reclusion perpetua imposed on appellant, the case was initially elevated to this Court for review. However, pursuant to our ruling in People v. Mateo,26 the case was referred to the Court of Appeals.

The appellate court affirmed the trial court’s ruling but modified the award of moral damages from Thirty Thousand Pesos to Fifty Thousand Pesos.27 Hence, the instant appeal.

In a Resolution dated 16 July 2007, the Court required the parties to simultaneously submit their respective supplemental briefs if they so desired.28 Both parties manifested that they would adopt their briefs filed before the appellate court.29 Thereafter, the case was deemed submitted for decision.

Appellant argues that the trial court erred in giving full credence to the testimony of the prosecution's eyewitness, Michelle, as well as the dying declaration of Alexander considering that the circumstances under which the crime was committed rendered the identification of the gunman impossible.

This argument essentially challenges the credibility of the witnesses, including the eyewitness, whose testimonies were relied upon by the trial court in convicting appellant. Basic is the principle that the findings of fact of a trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect, if not conclusive effect. This is because the

trial court has the unique opportunity to observe the demeanor of a witness and is in the best position to discern whether they are telling the truth. This rule holds true especially when the trial court's findings have been affirmed by the appellate court.30

Appellant’s authorship of the crime was proven by the positive identification of an eyewitness and the victim’s dying declaration.

The prosecution presented Michelle, who categorically identified appellant as the one who shot Alexander, viz:

Q: While you and your father were walking towards home, did you remember anything unusual that happened?

A: Yes, Ma’am.

Q: What was that?

A: I heard an explosion.

Q: Where were you in relation to your father when you heard that shot?

A: I was in front of my Daddy and he was at my back.

Q: You said you heard a shot, what did you do when you heard a shot?

A: When I heard the shot, I turned back and I saw Joemarie pointing to my Dad.

COURT:

Q: What did he point towards your Dad?

A: Firearm.

PROSECUTOR PADILLA:

Q: You said Joemarie was pointing a firearm to your father. Was it [a] long or short firearm?

A: About 11 inches.

Q: After you saw Joemarie pointing a firearm to your father, what happened next?

A: I saw my father staggering towards me and I saw Joemarie Cerilla ran.

Q: Where was he going?

A: Maybe towards his house.31

x x x x

Q: If this Joemarie Cerilla is inside the Courtroom, can you identify him?

A: Yes, Ma’am.

Q: Please point to him. (Witness pointing to the accused Joemarie Cerilla).32

Michelle’s account of how her father was shot by appellant was corroborated by the post-mortem examination which reveals that the entrance wound is located at the back of the victim.33 In the same vein, the medico-legal expert concluded that the gunshot was fired at a close range, as evidenced by the presence of a power burn measuring four (4) centimeters in diameter surrounding the periphery of the wound 34 and penetrating his internal organs.35

Significantly, the eyewitness’s positive identification of appellant as the perpetrator of the crime is fully supported the victim’s dying declaration.

A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of the killing and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause and circumstances surrounding his/her death.36

As an exception to the rule against hearsay evidence, a dying declaration or ante mortem statement is evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation.37 It is thus admissible to provide the identity of the accused and the deceased, to show the cause of death of the

9

deceased, and the circumstances under which the assault was made upon him. The reasons for its admissibility is necessity and

trustworthiness. Necessity, because the declarant’s death renders it impossible his taking the witness stand, and it often happens that there is no other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice. And trustworthiness, because the declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court.38

Of the doctrines that authorize the admission of special classes of hearsay, the doctrine relating to dying declarations is the most mystical in its theory and, traditionally, among the most arbitrary in its limitations. In the United States, the notion of the special likelihood of truthfulness of deathbed statements was widespread long before the recognition of a general rule against hearsay in the early 1700s. Not surprisingly, nearly as soon as we find a hearsay rule, we also find an exception for dying declarations.39

Four requisites must concur in order that a dying declaration may be admissible, thus: first, the declaration must concern the cause and surrounding circumstances of the declarant's death. This refers not only to the facts of the assault itself, but also to matters both before and after the assault having a direct causal connection with it. Statements involving the nature of the declarant’s injury or the cause of death; those imparting deliberation and willfulness in the attack, indicating the reason or motive for the killing; justifying or accusing the accused; or indicating the absence of cause for the act are admissible.40 Second, at the time the declaration was made, the declarant must be under the consciousness of an impending death. The rule is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders the dying declaration admissible. It is not necessary that the approaching death be presaged by the personal feelings of the deceased. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending.41 Third, the declarant is competent as a witness. The rule is that where the declarant would not have been a competent witness had he survived, the proffered declarations will not be admissible. Accordingly, declarations made by a child too young to be a competent witness or by a person who was insane or incapable of understanding his own statements by reason of partial unconsciousness are not admissible in evidence.42 Thus, in the absence of evidence showing that the declarant could not have been competent to be a witness had he survived, the presumption must be sustained that he would have been competent.43 Fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim.44 Anent this requisite, the same deserves no further elaboration as, in fact, the prosecution had caused its witnesses to take the stand and testify in open court on the substance of Alexander’s ante mortem statement in the present criminal case for murder.

The victim communicated his ante-mortem statement to three persons who testified with unanimity that they had been told by the victim himself that it was appellant who shot him. Michelle recounted:

Q: You said your father moved towards you, what happened next?

A: I approached my father and cuddled him.

Q: What happened next?

A: While I was cuddling my father he said, "Day, it was Joemarie who shot me."

Q: How many time he said he was shot?

A: Not once but about 10 times.45

Shortly thereafter, Novie Mae arrived and was told by Alexander that it was appellant who opened fire at him:

Q: When you reached Confessor Street, what happened?

A: I saw that my elder sister was assisting my father.

COURT:

Q: What’s the name of your sister?

A: Michelle.

COURT:

Proceed.

FISCAL:

Q: When you saw your sister Michelle assisting your father, what [sic] happened next?

A: And I immediately went near my father and asked him who shot him and he answered it was Joemarie Cerilla who shot him.

Q: Before you reached your father, did you observe his physical appearance of what happened to him?

A: Yes, Ma’am, he was supporting with his arm and when I asked him he still made a response.

Q: You said [that] before you approached your father[,] you saw him supporting his body, what was his position at that time?

A: He was in a position of lying with his hand on the road and my sister was assisting him.

x x x

Q: Were you able to observe why your father was sitting on the ground and supporting himself not to fall.

A: Yes, Ma’am.

Q: Why, [sic] what did you observe?

A: My father was supporting himself in order that blood will not [ooze] from his body and his body will not fall down.46

SPO3 Dequito, who responded immediately to the crime scene, corroborated the testimonies of the Alexander’s children, to wit:

Q: So, what did you do when you arrived at the crime scene?

10

A: We advised the group to carry Mr. Parreño to the ambulance because the ambulance was on the way and after our mobile arrived, the ambulance arrived also [sic] so we carried Mr. Parreño to be brought to the hospital.

COURT:

Q: Meaning you loaded the victim into the ambulance?

A: Yes, Your Honor.

Q: And after he was loaded, what did you do?

A: Before the ambulance left the area, I questioned the victim who shot him and he answered Alias "Pato." I am referring to Joemarie Cerilla, the accused.

Q: The accused Cerilla, Alias "Pato"?

A: Yes, Your Honor.

PROSECUTOR:

Q: Can you remember the exact words uttered by the victim when you asked him who shot him?

A: He answered me that: I questioned him, "Who shot you?" and he answered that it was Cerilla and I further asked him "The husband of Madoline" and he answered "Yes, Alias "Pato", the husband of Madoline.47

Likewise, Alexander’s wife, Sonia, testified:

Q: You said from your house when you were told by the girls that your husband was shot, what did you do?

A: I looked for a taxi and proceeded to the hospital.

x x x

Q: When you arrived at the hospital, where did you go first?

A: To my husband.

x x x

Q: When you reached that hospital and your own mother led you to where Alexander was, in what part of the hospital did you first see him.

A: Outside the operating room.

Q: What was the situation of your husband when you first saw him?

A: He was leaning on his side and many nurses attending to him and saying "araguy."

x x x

Q: Between you and your husband who spoke first?

A: My husband.

Q: What were the exact words stated by your husband?

A: He told me that it was Joemarie who shot him.48

These statements comply with all the requisites of a dying declaration. First, Alexander’s declaration pertains to the identity of the person who shot him. Second, the fatal quality and extent of the injuries49 he suffered underscore the imminence of his death as his condition was so serious that his demise occurred the following morning after a thirteen (13)-hour operation. Third, he would have been competent to testify had he survived. Fourth, his dying declaration is offered in a criminal prosecution for murder where he was the victim.

Other police officers were presented by the defense to refute the dying declaration.1âwphi1 PO1 Javelora alleged that he happened to pass by the crime scene and saw a young girl crying. The girl led him to her father who was sitting on the roadside. He asked the victim who shot him but he did not get any reply.50 PO3 Allona and Sarmiento arrived at the hospital and questioned Alexander as to who shot him but the latter told them, "I am not sure because it was dark."51 These statements cannot be construed as a categorical statement of the victim denying knowledge as to the identity of his assailant. It can be recalled that at the time Alexander was being questioned, he was already being readied for surgery. At that point, he was understandably no longer fit to respond to questions. Between these two seemingly conflicting testimonies, it is the positive identification made by Alexander in his dying declaration which must be sustained.

Appellant insists that there was an inherent impossibility in identifying the assailant with clarity since there was a power blackout at the time of the commission of the crime and was then a moonless night.

The fact that the crime was committed during a blackout does not cast doubt on Alexander’s and Michelle’s positive identification of appellant. While the place of occurrence was dark, this did not prevent the Alexander or Michelle from identifying the assailant, especially since the shot was delivered at close range.

In dismissing appellant’s contention, the trial court rationalized:

x x x This argument deserves scant consideration. In the case of People v. Hillado, G.R. No. 122838[,] promulgated on May 24, 1999[,] citing the case of People v. Oliano, "visibility at nighttime is possible not only at the exact minute and date when the moon is full as indicated in the calendar. Thus, a person’s nocturnal eyesight, is not necessarily diminished just because there is no illumination from the moon, because it is a fact that our eyes can actually adjust to the darkness so that we can still see objects clearly even without sufficient lighting. In the case at bar, it would not be so hard for Michelle to identify a person’s fact especially if the latter – as in the present case – was barely two (2) arms length away from them which is confirmed by the presence of gunpowder nitrates on the body of the victim. We stress, that the normal reaction of the person is to direct his sight towards the source of a startling [shot] or occurrence. As held in People v. Dolar, the most natural reaction of the victims in criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in which the crime is committed. Added to this is the fact that the accused Joemarie Cerilla and the victim Alexander Parreño have known each other quite well before the incident so that they became familiar with each other’s face and physical features. x x x 52

Moreover, the prosecution witnesses were not shown to be impelled by ill motive to testify falsely against appellant. Besides, Susan, Michelle and Novie Mae, being immediate relatives of the deceased, would naturally be interested in having the real culprit punished.53

The positive identification of appellant must necessarily prevail over his alibi.54 It was not physically impossible for appellant to have been present at the scene of the crime at the time of its

11

commission. The distance of his house, where he supposedly was, from the locus criminis is only 120-150 meters, more or less.55

Appellant counters that there was absence of any motive on his part to kill the victim; that it was not clearly proven that he fired a gun, based on the paraffin test; and that he appeared calm and composed and showed no indication of guilt when he was invited by the police officers shortly after the commission of the crime.

Time and again, we have ruled that a negative finding on paraffin test is not a conclusive proof that one has not fired a gun because it is possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the culprit washes his hands or wears gloves.56 The trial court correctly rejected the result of the paraffin test in light of the positive identification of appellant.

The trial court held that the killing was qualified by treachery because Alexander, who was unarmed, was suddenly and unexpectedly shot from behind by appellant without any risk to the latter from any defense which the former might make. There was no opportunity given to Alexander to repel the assault or offer any defense of his person. There was not the slightest provocation on his part.57 We agree with the findings of the trial court. The presence of treachery was evident in the execution of the crime. Appellant suddenly, and without warning, shot Alexander from his back.

Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, murder is punishable with reclusion perpetua to death. Because the killing of Alexander, although qualified by treachery, was not attended by any other aggravating circumstance, the proper imposable penalty is reclusion perpetua.

We deem it proper to further impose exemplary damages in the amount of P25,000.00 which is recoverable in the presence of an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.58

WHEREFORE, the Decision of the Court of Appeals dated 26 October 2006, affirming with modification the Regional Trial Court Judgment dated 15 August 2000 finding appellant, Joemari Cerilla, guilty beyond reasonable doubt of murder, is AFFIRMED with the MODIFICATION that appellant is further ordered to pay the heirs of Alexander Parreño P25,000.00 as exemplary damages.

SO ORDERED.

G.R. No. 152364 April 15, 2010LAZARO V AGUSTIN

Assailed in the present petition for review on certiorari is the Decision1 dated February 21, 2002 of the Court of Appeals (CA) in CA-G.R. SP No. 63321. The CA had affirmed, with modification, the Decision2 dated February 6, 2001 of the Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case No. 11951-13, which also affirmed, with modification, the Decision3 dated January 6, 2000 of the Municipal Trial Court in Cities (MTCC) of Laoag City, Branch 1, in Civil Case No. 2834.

The factual and procedural antecedents of the case are as follows:

On November 4, 1998, herein petitioners filed against herein respondents a Complaint4 for partition with the MTCC of Laoag City, alleging as follows:

x x x x

II

That the plaintiffs and the defendants are the descendants of the late Simeon C. Santos, married to Trinidad Duldulao, who died intestate leaving a parcel of land situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag, designated as Lot No. 10675 of the Cadastral Survey of Laoag;

III

That Simeon C. Santos during his lifetime, married to Trinidad Duldulao, begot four (4) legitimate children, namely: Basilisa D. Santos, Alberto D. Santos, Leoncio D. Santos and Alejandra D. Santos. Basilisa D. Santos, [who] was married to Petronilo Agustin, is now deceased; Alberto Santos, married to Rizalina Guerrero, is now deceased, while Leoncio D. Santos, married to Dictinia Tabeta, and Alejandra D. Santos married to Isauro M. Lazaro, are still living;

IV

That in the desire of the children of Simeon C. Santos from whom the parcel of land originated as owner, his children, namely[:] Alberto, Leoncio and Alejandra, all surnamed Santos, consented that the parcel of land mentioned in paragraph II of this complaint be titled in the name of Basilisa, the latter being the eldest and so Original Certificate of Title No. 20742 in the name of Basilisa Santos was obtained although it was agreed among them that it did not and does not necessarily mean that Basilisa Santos is the sole and exclusive owner of this parcel of land, and as embodied in the Title obtained in the name of Basilisa Santos, the parcel of land is particularly described as follows:

A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag), with the improvements thereon, situated in the Barrio of Natividad Nstra. Sra., Municipality of Laoag. Bounded on the NE. by Lot No. 10677; on the SE. by Panganiban Street; on the SW. by Lot No. 10672; and on NW. by Lot No. 1065, containing an area of three hundred and one (301) square meters, more or less, covered by Tax Declaration No. 010-00224 for the year 1994 in the names of Modesta Agustin, et al. with a market value of P96,320.00 and an assessed value of P14,450.00.

V

That there is a residential house constructed on the lot described in paragraph IV of this complaint and in the construction of which plaintiff Alejandra Santos, then still single, spent the amount of P68,308.60, while Basilisa Santos and her children spent the amount of P3,495.00. Afterwards, Alejandra Santos got married to Isauro M. Lazaro who was employed in a private company and when he retired from the service, some additional constructions were made on the residential house and lot such as a bedroom, azotea, two (2) toilets, two (2) kitchens, a car garage, the money spent for these additional constructions came from the earnings of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro. The said residential house is now covered by Tax Declaration No. 010-00225 in the names of Basilio Agustin (should be Basilisa Agustin) and Alejandra Santos for the year 1994 with a market value of P93,920.00 and an assessed value of zero;

VI

That without the knowledge and consent of the plaintiffs, the title of the lot described in paragraph IV of the complaint was transferred into another title which is now Transfer Certificate of Title No. T-20695 in the names of Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Monica Agustin, Gregorio Agustin and Bienvenido Agustin who are the children of the late Basilisa Santos-Agustin who are herein named as defendants with Monica Agustin now deceased represented by her children Paul A. Dalalo and Noel A. Dalalo as defendants;

VII

That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra Santos-Lazaro informed the former, who are sisters, that the transfer of the title covering the lot described in paragraph IV of this complaint in the name of Basilisa Santos into the names of her children would erroneously

12

imply that the lot is solely and exclusively owned by Basilisa Santos-Agustin's children, but Basilisa Santos-Agustin replied [to] plaintiff Alejandra Santos-Lazaro not to worry because an affidavit was already executed by her recognizing and specifying that her brothers Alberto Santos and Leoncio Santos, and her sister Alejandra Santos-Lazaro would each get one fourth (¼) share of the lot;

VIII

That in a move to determine if the children and the heirs of Basilisa Santos-Agustin, namely: Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Paul Dalalo and Noel Dalalo who are the successors of their mother the late Monica Agustin, Gregorio Agustin and Bienvenido Agustin would follow the line of thinking of their mother and grandmother of Paul A. Dalalo and Noel A. Dalalo on the shares of the lot and residential house erected on it, the plaintiffs initiated a partition in the barangay court where the lot is situated described in paragraph IV of this complaint, but that the children of Basilisa Santos-Agustin and her grandchildren Paul A. Dalalo and Noel A. Dalalo refused and opposed the partition claiming that they are the sole and exclusive owners of the lot being that the lot is now titled in their names, and hence there was no settlement as shown by the certification of the barangay court hereto attached as annex "A";

IX

That plaintiffs now invoke the intervention of the court to partition the lot in accordance with the law on intestate succession and to partition the residential house as specified below. x x x

x x x x5

Petitioners also prayed for the grant of attorney's fees, moral and exemplary damages, and costs of suit.

Herein respondents filed their Answer with Counterclaim,6 raising the following as their Special/Affirmative Defenses:

1. The subject parcel of land is owned exclusively by the defendants as heirs of the late Basilisa Santos, wife of Petronilo Agustin, who was the original registered owner of the property evidenced by OCT No. 20742; the plaintiffs never became owners of said land. There was never any agreement between the ascendants of the plaintiffs and defendants, neither is there any agreement between the plaintiffs and defendants themselves that in the ownership, the plaintiffs have a share over the lot;

2. The defendants are the ones paying for the real estate taxes of said land;

3. Some of the plaintiffs were able to stay on the subject house because defendants' mother Basilisa Santos was the eldest sibling and she had to take care of her brother Leoncio and sister Alejandra when these siblings were not yet employed and Basilisa allowed them to reside in the house constructed within the lot; Alejandra Santos stayed in the house up to the present with the agreement that she will spend for the renovation of the house in lieu of monthly rentals that she has to pay when she already became financially able;

4. Prior to 1962, subject property was mortgaged by Basilisa Santos Agustin to the Philippine National Bank and the property was foreclosed by PNB when the loan was not paid, hence, TCT No. (T-9522)-4495, under the name of the Philippine National Bank was issued (Annex "A"). Thereafter, Basilisa Santos-Agustin, purchased it from the PNB and TCT No. T-5662 was issued under her name (Annex "B"); the property was later on transferred to her direct descendants, the defendants herein as evidenced by TCT No. T-20695 (Annex "C");

x x x x7

Respondents then prayed that petitioners' complaint be dismissed. In their Counterclaim, respondents asked the court to direct petitioners to pay reasonable compensation for the latter's use of the disputed property, exemplary and moral damages, attorney's fees, and costs of suit.

After the issues were joined and the pre-trial was terminated, trial on the merits ensued.

On January 6, 2000, the MTCC rendered its Decision8 dismissing the complaint and denying petitioners' prayer for partition.

The MTCC ruled, among others, that no evidentiary value could be given to the affidavit allegedly executed by Basilisa, wherein she purportedly acknowledged her co-ownership of the subject property with her siblings Alberto, Leoncio and Alejandra, because the affiant was not presented on the witness stand, such that all the statements made in her affidavit were hearsay. Moreover, the MTCC held that two credible witnesses testified in plain, simple and straightforward manner that at the time the affidavit was supposed to have been signed and sworn to before the notary public, Basilisa was already bedridden and an invalid who could not even raise her hand to feed herself. In addition, the MTCC also gave credence to the testimony of the notary public, before whom the document was supposedly signed and sworn to, that the said affidavit was already complete and thumbmarked when the same was presented to him by a person who claimed to be Basilisa.

Petitioners filed an appeal with the RTC of Laoag City.

On February 6, 2001 the RTC issued a Decision9 affirming, with modification, the judgment of the MTCC. The RTC found that the house erected on the disputed lot was built and renovated by petitioners in good faith. As a consequence, the RTC held that petitioners were entitled to indemnity representing the costs of the construction and renovation of the said house. The dispositive portion of the RTC Decision, thus, reads:

WHEREFORE, the decision of the lower court is hereby affirmed with the modification directing the appellees [herein respondents] to indemnify the appellants [herein petitioners] in the amount of P68,308.60 as proved by them.

Considering the apparent error of the lower court in quoting the questioned lot as Lot No. 10675, the same is hereby corrected so as to reflect the correct lot number as Lot No. 10676 to conform to the evidence presented.

SO ORDERED.10

Aggrieved by the RTC Decision, petitioners filed a petition for review with the CA.

On February 21, 2002, the CA issued its presently assailed Decision disposing as follows:

WHEREFORE, the decision dated February 6, 2001 rendered in Civil Case No. 11951-13 is hereby AFFIRMED subject to the MODIFICATION that appellees [herein respondents] pay the amount of P68,308.60 in indemnity solely to appellant Alejandra Santos-Lazaro.

SO ORDERED.11

Hence, the instant petition based on the following grounds:

I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A DECLARATION AGAINST INTEREST WHICH ESTABLISHES THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE PETITIONERS AND RESPONDENTS AS HEIRS OF THE LATE SIMEON C. SANTOS.12

13

II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S. AGUSTIN, ALBERTO D. SANTOS, ALEJANDRA S. LAZARO AND LEONCIO D. SANTOS DID NOT TERMINATE AS A RESULT OF THE TRANSFER OF THE LOT'S OWNERSHIP PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN WITH RESPECT TO THE SUBJECT PROPERTY.13

III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE RESIDENTIAL HOUSE ON LOT NO. 10676 NOT MERELY A BUILDER IN GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED TO A PARTITION OF THE SUBJECT HOUSE.14

In their first assigned error, petitioners contend that Basilisa's sworn statement which recognizes her siblings' share in the disputed property is a declaration against interest which is one of the recognized exceptions to the hearsay rule. Petitioners argue that since the sworn statement was duly notarized, it should be admitted in court without further proof of its due execution and authenticity; that the testimonies of Basilisa's nurse and physician cannot qualify as clear and convincing evidence which could overthrow such notarized document; that the notary public cannot impugn the same document which he notarized for to do so would render notarized documents worthless and unreliable resulting in prejudice to the public.

As to the second assigned error, petitioners aver that their co-ownership of the questioned property with Basilisa did not cease to exist when the Philippine National Bank (PNB) consolidated its ownership over the said parcel of land. Petitioners assert that they did not lose their share in the property co-owned when their share was mortgaged by Basilisa without their knowledge and consent; that the mortgage was limited only to the portion that may be allotted to Basilisa upon termination of their co-ownership; that PNB acquired ownership only of the share pertaining to Basilisa; that when Basilisa bought back the property from PNB, she simply re-acquired the portion pertaining to her and simply resumed co-ownership of the property with her siblings. Petitioners also contend that Basilisa's children did not acquire ownership of the subject lot by prescription, and that neither Basilisa nor respondents repudiated their co-ownership.

Anent the third assignment of error, petitioners argue that Alejandra Lazaro, being a co-owner of the disputed parcel of land and not simply a builder in good faith, is entitled to a partition of the subject residential house.

At the outset, it bears to point out that it is wrong for petitioners to argue that Basilisa's alleged sworn statement is a declaration against interest. It is not a declaration against interest. Instead, it is an admission against interest.1avvphi1

Indeed, there is a vital distinction between admissions against interest and declarations against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness.15 Declarations against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence, and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness.16 In the present case, since Basilisa is respondents' predecessor-in-interest and is, thus, in privity with the latter's legal interest, the former's sworn statement, if proven genuine and duly executed, should be considered as an admission against interest.

A cursory reading of the subject sworn statement also reveals that it refers to a parcel of land denominated as Lot No. 10678 while the property being disputed is Lot No. 10676.17 On this basis, it cannot be concluded with certainty that the property being referred to in the sworn statement is the same property claimed by petitioners.

Having made the foregoing observations and discussions, the question that arises is whether the subject sworn statement, granting that it refers to the property being disputed in the present case, can be given full faith and credence in view of the issues raised regarding its genuineness and due execution.

The Court rules in the negative.

Settled is the rule that generally, a notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity.18 However, this presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.19

Moreover, not all notarized documents are exempted from the rule on authentication.20 Thus, an affidavit does not automatically become a public document just because it contains a notarial jurat.21 The presumptions that attach to notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular.22

However, a question involving the regularity of notarization as well as the due execution of the subject sworn statement of Basilisa would require an inquiry into the appreciation of evidence by the trial court. It is not the function of this Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in such event. Settled is the rule that questions of fact cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its consideration.23 The rationale behind this doctrine is that a review of the findings of fact of the trial courts and the appellate tribunal is not a function this Court normally undertakes.24 The Court will not weigh the evidence all over again unless there is a showing that the findings of the lower courts are totally devoid of support or are clearly erroneous so as to constitute serious abuse of discretion.25 Although there are recognized exceptions26 to this rule, none exists in the present case to justify a departure therefrom.

Petitioners rely heavily on the presumption of regularity accorded by law to notarized documents. While indeed, a notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity of its contents.27 As earlier discussed, the presumption is not absolute and may be rebutted by clear and convincing evidence to the contrary.28 The presumption cannot be made to apply to the present case because the regularity in the execution of the sworn statement was challenged in the proceedings below where its prima facie validity was overthrown by the highly questionable circumstances under which it was supposedly executed, as well as the testimonies of witnesses who testified on the improbability of execution of the sworn statement, as well as on the physical condition of the signatory, at the time the questioned document was supposedly executed. The trial and appellate courts were unanimous in giving credence to the testimonies of these witnesses. The Court has repeatedly held that it will not interfere with the trial court's determination of the credibility of witnesses, unless there appears on record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.29 The reason for this is that the trial court was in a better position to do so, because it heard the witnesses testify before it and had every opportunity to observe their demeanor and deportment on the witness stand.30

Considering the foregoing, the Court finds no reason to reverse the rulings of the MTCC, the RTC and the CA. Although the questioned sworn statement is a public document having in its favor the presumption of regularity, such presumption was adequately refuted by competent witnesses.

The Court further agrees with the ruling of the RTC that:

The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut the evidence of the appellees considering his admission that the affidavit was already thumbmarked when presented to him by one who claimed to be Basilisa Santos and whom, the witness said he did not know personally. Further, what makes the documents suspect is the fact that it was subscribed on the same date as the financial statement of Alejandra Santos.

It may not be amiss to point out, at this juncture, that the principal function of a notary public is to authenticate documents.31 When a notary public certifies to the due execution and delivery of a

14

document under his hand and seal, he gives the document the force of evidence.32 Indeed, one of the purposes of requiring documents to be acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery of documents, is to authorize such documents to be given without further proof of their execution and delivery.33 A notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be able to rely upon the acknowledgment executed before a notary public and appended to a private instrument.34 Hence, a notary public must discharge his powers and duties, which are impressed with public interest, with accuracy and fidelity.35 A notary public should not notarize a document unless the persons who signed the same are the very same persons who executed and personally appeared before him to attest to the contents and truth of what are stated therein.36

In the instant case, the notary public should have exercised utmost diligence in ascertaining the true identity of the person executing the said sworn statement. However, the notary public did not comply with this requirement. He simply relied on the affirmative answers of the person appearing before him attesting that she was Basilisa Santos; that the contents of the sworn statement are true; and that the thumbmark appearing on the said document was hers. However, this would not suffice. He could have further asked the person who appeared before him to produce any identification to prove that she was indeed Basilisa Santos, considering that the said person was not personally known to him, and that the thumbmark appearing on the document sought to be notarized was not affixed in his presence. But he did not. Thus, the lower courts did not commit any error in not giving evidentiary weight to the subject sworn statement.

The second and third assigned errors proceed on the presumption that petitioners are co-owners of the disputed property. Since the Court has already ruled that the lower courts did not err in finding that petitioners failed to prove their claim that they were co-owners of the said property, there is no longer any need to discuss the other assigned errors.

WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the Court of Appeals in CA-G.R. SP No. 63321 is AFFIRMED.

SO ORDERED.

PEOPLE v ESOY

The present appeal assails the Decision[1] dated April 30, 2008 of the Court of Appeals in CA-G.R. HC-CR No. 02701 affirming the February 27, 2007 Decision[2] of the Regional Trial Court (RTC) of Manila, Branch 54, convicting appellants of the crime of robbery with homicide.In an Information[3] dated February 2, 2001, appellants Jonjie Esoy y Hungoy (Esoy), Rolando Ciano y Soledad (Ciano), and Roger Bolalacao y Dadivas (Bolalacao) were charged as follows: That on or about January 18, 2001, in the City of Manila, Philippines, the said accused, conspiring and confederating together and helping one another, with intent to gain and by means of force, violence against and intimidation, that is, by boarding a passenger jeepney pretending to be paying passengers, suddenly pulling out their deadly bladed weapons, stabbing on the chest one LORENZO CORO Y BARREDO, a paying passenger, and grabbing his cellphone worth P7,000.00, Philippine currency, did then and there willfully, unlawfully and feloniously take, rob and carry away the said cellphone of Lorenzo B. Coro against his will, to the damage and prejudice of the latter in the same sum as aforesaid; that by reason and on the occasion of the said robbery the said Lorenzo B. Coro, sustained fatal stab wounds which were the direct cause of his death immediately thereafter. CONTRARY TO LAW. At the arraignment, appellants pleaded not guilty.[4] Trial thereafter ensued. The prosecution presented three (3) witnesses: Andrea Pabalan, SPO1 Raul Olavario and Medico-Legal Officer Dr. Filemon C. Porciuncula. Taken altogether, the evidence for the prosecution established the following facts:

On January 18, 2001, around 8:00 p.m., the victim Lorenzo Coro and Andrea Pabalan (Pabalan), rode a jeepney bound for Buendia Avenue at Taft Avenue corner T.M. Kalaw Street in Manila. Upon reaching Taft Avenue corner Pedro Gil Street, Ermita, Manila, appellants boarded the jeepney. Bolalacao sat beside the victim while Esoy and Ciano sat on the opposite side. Pabalan noticed that Esoy and Ciano were staring at all the passengers. Feeling apprehensive, she moved beside the victim and whispered to him that she did not like the way the two (2) were staring at them. Esoy and Ciano also seemed to be high on drugs, so she told the victim not to look at them. When she again looked at Esoy and Ciano, the two (2) suddenly drew out their balisongs and swung the same at them. In the ensuing commotion, the other passengers including appellants alighted from the jeepney. When Pabalan told the victim that they should go down, she saw the victim’s bloodied chest. She then shouted for help and that they be taken to the hospital. The jeepney driver, however, told them to alight from the vehicle. Fearing that the victim might run out of blood, she told him that they should go down. The victim then told her that his cellular phone was snatched and asked her where appellants fled. Pabalan just insisted that they alight from the vehicle and not to worry about his cellular phone. Upon alighting from the jeepney, the victim fell down after a few steps. But with the help of two (2) motorcyclists, they were able to hail an FX taxi and the victim was immediately brought to the nearby Philippine General Hospital (PGH) where he was operated on. Unfortunately, however, the victim died at 11:00 p.m. that same night. On January 19, 2001, around 2:00 a.m., SPO1 Raul Olavario, Police Investigator of the Homicide Division of the Western Police District (WPD), Manila, received information from retired Police Inspector Cesar Diokno about a stabbing victim who expired at the PGH. SPO1 Olavario then proceeded at the PGH to investigate. The hospital guard told him about the robbery with homicide that occurred on January 18, 2001 inside a passenger jeepney along Taft Avenue. At that time, Pabalan had already left the hospital but she went to SPO1 Olavario’s office later in the morning the same day to give her sworn statement and the description of the assailants. Several days after, or on January 31, 2001, Pabalan informed SPO1 Olavario that she saw the three (3) appellants inside the WPD jail and positively identified them as the assailants. PNP Crime Laboratory Police Senior Inspector and Medico-Legal Officer Dr. Filemon C. Porciuncula testified on the autopsy he performed on the cadaver of the victim and the Medico-Legal Report No. M-0208-01[5] he submitted. The autopsy revealed that the victim sustained a stab wound and multiple abrasions on the right knee. Appellants, for their part, denied any involvement in the robbery-homicide incident. They claimed that they were at their workplace in Bacood, Sta. Mesa, Manila, when the incident happened. Both Ciano and Esoy testified that they started working at 8:00 a.m. until 5:00 p.m. of January 18, 2001. They rested for a while and resumed working with intermittent rests until five (5) o’clock the following morning of January 19, 2001. As to Bolalacao, he claimed to be working from 7:00 a.m. of January 18, 2001 up to 5:00 a.m. the following morning of January 19, 2001. Lauro Dela Cruz, supervisor of appellants, was called to testify to corroborate appellants’ defense. Though Dela Cruz recognized the faces of the appellants as among those who have worked under him, he could not categorically state that they were at the workplace at the times and dates they specified because he was not there all the time and he does not keep time records. On February 27, 2007, the trial court rendered a Decision finding appellants guilty of the crime of robbery with homicide, as follows: WHEREFORE, finding accused Jonjie Esoy y Hungoy, Rolando Ciano y Soledad, and Roger Bolalacao y Dadivas all GUILTY BEYOND REASONABLE DOUBT of the complex crime of Robbery with Homicide defined and penalized under Articles 293 and 294 (1) of the Revised Penal Code, as recently amended by Republic Act No. 9346, the aforenamed accused are each sentenced to suffer the penalty of Reclusion Perpetua and shall indemnify the heirs of Lorenzo Coro in the amount of One Hundred Fifty Thousand (P150,000.00) Pesos as actual and compensatory damages and the further sum of Seventy-Five Thousand (P75,000.00) Pesos as moral damages. SO ORDERED.[6]On April 30, 2008, the Court of Appeals affirmed with modification the RTC decision as follows: WHEREFORE, the appeal is DISMISSED. The Decision of the Regional Trial Court, Branch 54, Manila is AFFIRMED. The trial court’s award of civil liability is hereby MODIFIED. Appellants JONJIE ESOY y HUNGOY, ROLANDO CIANO y SOLEDAD and ROGER BOLALACAO y DADIVAS are

15

each ordered to pay the heirs of Lorenzo Coro the following sums: (a) One Hundred Fifty Thousand (P150,000.00) as actual damages; (b) Fifty Thousand Pesos (P50,000.00) ex delicto; and (c) Fifty Thousand Pesos (P50,000.00) as moral damages. SO ORDERED.[7] Hence, this appeal.On February 18, 2009, the Court directed the parties to file their respective supplemental briefs if they desire.[8] Both appellants[9] and the Solicitor General,[10] however, manifested that they are dispensing with the filing of a supplemental brief as their positions have already been assiduously discussed before the appellate court. Thus, the errors raised in appellants’ Brief[11] dated July 24, 2007 are now deemed adopted in this present appeal. Appellants raise the following errors:I.THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS ALTHOUGH THEIR IDENTITIES AS THE PERPETRATORS WERE NOT ESTABLISHED BEYOND REASONABLE DOUBT. II.THE TRIAL COURT GRAVELY ERRED IN GIVING SCANT CONSIDERATION TO THE EVIDENCE PRESENTED BY THE ACCUSED-APPELLANTS WHICH IS MORE CREDIBLE THAN THAT OF THE PROSECUTION’S. III.ASSUMING THAT THE APPELLANTS ARE GUILTY, THE TRIAL COURT GRAVELY ERRED IN CONVICTING THEM OF ROBBERY WITH HOMICIDE NOTWITHSTANDING THE FACT THAT ROBBERY WAS NOT PROVEN BEYOND REASONABLE DOUBT. IV.THE TRIAL COURT SERIOUSLY ERRED IN HOLDING THAT CONSPIRACY EXISTED BETWEEN AND AMONG THE ALLEGED PERPETRATORS. V.THE TRIAL COURT GRAVELY ERRED IN AWARDING ACTUAL AND MORAL DAMAGES NOTWITHSTANDING THE FACT THAT THERE WAS NO BASIS FOR ITS GRANT.[12]Essentially, the issue for our resolution is whether the guilt of the appellants for the crime of robbery with homicide has been proven beyond reasonable doubt. Appellants contend that their identities as perpetrators of the crime were not established beyond reasonable doubt. They argue that even if at the time of the incident there were many light posts along Taft Avenue, the same cannot produce enough illumination inside the vehicle to allow Pabalan to see clearly the faces of the assailants. The small bulb inside the jeepney simply cannot be considered as sufficient source of light to enable Pabalan to identify and remember the facial features of a total stranger. Further, several days had passed before Pabalan made the identification during the police line-up and thus, it was impossible for her to have easily remembered the faces of the assailants whom she supposedly saw on only one (1) occasion.We are not persuaded.As narrated by Pabalan, two (2) of the appellants – Esoy and Ciano – sat infront of them while the other, Bolalacao, sat beside the victim. Considering the limited space inside a passenger jeepney, the faces of appellants can be easily seen by Pabalan in close range. Moreover, it is of no moment that the inside of a jeepney was only illuminated by a small bulb. The said kind of light has already been held by the Court as enough lighting for identification purposes.[13] Considering also the busy thoroughfare of Taft Avenue, Ermita, light emanating from the headlights of passing vehicles can contribute sufficient illumination[14] to enable Pabalan to identify appellants. We have held that when conditions of visibility are favorable, and the witness does not appear to be biased, as in the instant case, her assertion as to the identity of the malefactors should normally be accepted.[15]Furthermore, the reliability of Pabalan’s memory should not be doubted by the mere fact that identification of the appellants at the police line-up happened several days after the incident. It is

known that the most natural reaction of a witness to a crime is to strive to look at the appearance of the perpetrator and to observe the manner in which the offense is perpetrated.[16] Most often the face of the assailant and body movements thereof, create a lasting impression which cannot be easily erased from a witness’s memory.[17] Experience dictates that precisely because of the unusual acts of violence committed right before their eyes, eyewitnesses can remember with a high degree of reliability the identity of criminals at any given time.[18]As to appellants’ defense of alibi, it cannot prevail over the positive identification of appellants as the perpetrators of the crime, especially in the face of categorical statements coming from a credible witness who has no ill motives in testifying.[19] Pabalan’s testimony was straightforward and though she became emotional during the middle part of her testimony, she remained consistent all through out even on cross-examination. Appellants have also not shown any reason for Pabalan to testify falsely against them.To establish alibi, an accused must prove (a) that he was present at another place at the time the crime was perpetrated, and (b) that it was physically impossible for him to be at the scene of the crime. Physical impossibility “refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places.”[20] Here, appellants failed to satisfy the said requisites, especially the second. The crime happened along Taft Avenue, Ermita, while appellants claimed to be in their workplace in Bacood, Sta. Mesa, at that time. The distance between Ermita and Sta. Mesa cannot be said as too far that it was physically impossible for appellants not to be at Ermita, the scene of the crime. Even the testimony of their immediate supervisor did not help in establishing their defense since Dela Cruz could not categorically state that appellants were at the workplace at the time and date the crime was committed. Appellants next argue that (1) no evidence was presented by the prosecution establishing that personal property was taken from the victim except for the hearsay allegation of Pabalan; and (2) no witness testified that the victim or Pabalan actually saw one (1) of the appellants take something from the victim. The contentions, however, are likewise without merit.The pertinent portion of Pabalan’s testimony is hereunder quoted verbatim:Witness:q What about Lorenzo Coro, do you know before this – just at the moment you had this jeepney ride, do you know if he had a cellular phone?a Yes, sir, it was clipped on the right side of his waist. Court: Clipped at the? Court Interpreter: Right side of the waist. Fiscal Carisma:(continuing) q Try to recall, Madam Witness, what else, if any, did you see at the moment that these two (2) male persons who were seated in front of you motioned to the point that they drew out their balisong and lunged the same towards you and any other direction. What else, if any, did you see in relation to Lorenzo Coro? Witness:(continuing) a After the commotion, when I was about to alight from the jeep, he told me that “my cellular phone was snatched.” I told him “let’s go.” He asked me “where did they run?” I told him not to bother about that and let’s go to the hospital.[21] [Emphasis and underscoring supplied.]

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Though Pabalan’s testimony as to the victim’s utterance that his cellular phone was taken is only hearsay, the testimony is considered an exception to the hearsay rule, the victim’s spontaneous utterance being part of res gestae. Res gestae refers to those exclamations and statements made by either the participants, the victim or spectator to a crime immediately before, during or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement.[22] In the instant case, all the elements of res gestae are sufficiently established insofar as the aforequoted spontaneous utterance is concerned: (1) the principal act (res gestae) – the robbery and stabbing of the victim – is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise, that is, within minutes after the victim was stabbed and his cellular phone was snatched; and (3) the statement concerns the occurrence in question and its immediately attending circumstances – his cellular phone was stolen during the startling occurrence. The testimony being an exception to the hearsay rule, the trial court did not err in admitting the same.

Appellants also dispute the finding of conspiracy among them. They contend that the mere fact that they boarded the jeepney at the same time does not necessarily mean that they acted in conspiracy. Again, we are unconvinced.Conspiracy may be deduced from the acts of the appellants before, during, and after the commission of the crime which are indicative of a joint purpose, concerted action, and concurrence of sentiments.[23] All three (3) appellants boarded the jeepney at the same time. Two (2) strategically sat infront of the victim and Pabalan while the other sat beside the victim. A few moments later, two (2) of the appellants (Esoy and Ciano) suddenly drew out their balisongs and swung the same at Pabalan and the victim. In the ensuing commotion, the victim’s cellular phone was snatched and he was stabbed in the process. The appellants then hurriedly alighted from the jeepney at the same time. Their original and principal intention was undoubtedly to stage a robbery with the use of violence. As conspiracy had been established among appellants, all of them are liable as co-principals regardless of the manner and extent of their participation since, in point of law, the act of one (1) is the act of all.Lastly, appellants challenge the award of actual damages claiming it was not proven for failure to present any documentary evidence particularly the proof of funeral expenses.The argument is without merit.Article 2199 of the Civil Code is clear: ART. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. [Emphasis and underscoring supplied.] The defense has stipulated during the trial that the victim’s family incurred P150,000 for funeral expenses, to wit: Fiscal Carisma: The wife of the deceased is here, your Honor. Anyway, she will only testify on the civil liability. To abbreviate the proceedings, may we respectfully stipulate from the counsel for the accused that should all the accused be found guilty by the honorable court, the civil liability be fixed, it representing actual expenses for the burial expenses of Lorenzo Coro to P150,000.00. Atty. Fontanilla: We object to the manifestation, your Honor. Fiscal Carisma: Should the accused be found guilty.

Atty. Fontanilla: We don’t stipulate, your Honor. Fiscal Carisma: That’s why I am stating that should all the accused be found guilty. So, we rather prove the actual expenses. Court: q Anyway, how many days was the wake of the deceased? Witness: a Ten (10) days, your Honor. Court: q Where was the funeral held? Witness: a We brought the body at the province at the house of my mother, your Honor. Atty. Fontanilla: Your Honor, with the premise that they spent for the burial and funeral, I think we can stipulate in the amount of --- Fiscal Carisma: P150,000.00 Atty. Fontanilla: More or less, yes, we stipulate, your Honor. Fiscal Carisma: Thank you. So, we will no longer be presenting the witness.[24] [Emphasis and underscoring supplied.] Hence, the requirement of proof in Article 2199 for the recovery of actual and compensatory damages can be dispensed with having been stipulated by the defense during trial. As to the other civil liabilities, we uphold the appellate court’s award of the moral damages of P50,000 and civil indemnity of P50,000 in line with prevailing jurisprudence.[25]The penalty imposed is likewise proper. The special complex crime of robbery with homicide is punished under Article 294 (as amended by Republic Act No. 7659) of the Revised Penal Code, as amended, by reclusion perpetua to death. Article 63 of the Revised Penal Code, as amended, states that when the law prescribes a penalty consisting of two (2) indivisible penalties, and the crime is neither attended by mitigating nor aggravating circumstances, the lesser penalty shall be imposed. Considering that no modifying circumstance attended the commission of the crime, the RTC correctly sentenced the appellants to suffer the penalty of reclusion perpetua.WHEREFORE, the April 30, 2008 Decision of the Court of Appeals in CA-G.R. HC-CR No. 02701 is AFFIRMED in toto. With costs against the accused-appellants.

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SO ORDERED.

PEOPLE v SACE This is an appeal from the Decision[1] dated November 20, 2006 of the Court of Appeals in CA- G.R. CR-H.C. No. 02324 which affirmed the June 1, 2001 Decision[2] of the Regional Trial Court (RTC) of Boac, Marinduque, Branch 94 convicting appellant Tirso Sace y Montoya of the crime of rape with homicide. Appellant was charged in an Information[3] which reads, That on or about the 9th day of September 1999, at around 7:00 o’clock in the evening, at barangay Tabionan, municipality of Gasan, province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there by means of force and intimidation, willfully, unlawfully and feloniously lie and succeed in having carnal knowledge of [AAA][4] against her will and consent and thereafter, the accused did then and there, with intent to kill, stab with a sharp bladed weapon, said victim, inflicting upon her fatal injuries causing her death, to the damage and prejudice of her legal heirs represented by her mother…. CONTRARY TO LAW.At the arraignment, appellant entered a plea of not guilty. Trial thereafter ensued.The prosecution presented the following as witnesses: BBB, CCC, Rafael Motol, Bonifacio Vitto, Maribeth Mawac (Maribeth), Carmelita Mawac, Dr. Erwin Labay, SPO2 Praxedo Seño and Domingo Motol. On the other hand, appellant testified for his own behalf.The prosecution’s evidence established the following version:On September 9, 1999, at around seven (7) o’clock in the evening, AAA was inside their house with her 10-year-old brother BBB and a nephew, who was still a toddler, when appellant suddenly showed up. As admitted by appellant, he came from a drinking spree that began at about eleven (11) o’clock in the morning. AAA told appellant to leave and go home, but he did not heed her. Appellant then made sexual advances on AAA. AAA was able to evade appellant when he tried to embrace her, but appellant pulled a bladed weapon from his pocket. Sensing danger, AAA ran upstairs to the second level of their house. Appellant followed AAA, leaving BBB and the toddler in the first floor of the house. BBB heard appellant ordering AAA to remove her clothes, otherwise, he will stab her.[5] Scared with the turn of events, the two (2) children hid at the lower portion of the house for around twenty (20) minutes, and came out only when CCC, the mother of AAA and BBB, arrived. CCC, together with her elder daughter DDD and a certain Abelardo Motol (Abelardo), was on her way home when she and her companions heard AAA scream. They hurried towards the house and searched it but found it to be empty. As they searched further, appellant came out from somewhere in the kitchen area of the house. They noticed that he was bloodied and he told them that he was chasing someone. Appellant then joined in the search for AAA. Before long, Abelardo found the lifeless body of AAA lying on the ground nearby. AAA was half-naked and she appeared to have been ravished when they found her. Immediately, Abelardo called the barangay officials and the police.Barangay Kagawad Carmelita Mawac (Carmelita) and other barangay officials and tanods, including Rafael Motol and Bonifacio Vitto, arrived. Upon arrival, they noticed the bloodstains on appellant’s clothing. Carmelita asked appellant what he did, but appellant denied any knowledge of what happened. Carmelita then went to the half-naked body of AAA and again asked appellant why he did such a thing to his cousin. At that point, appellant admitted to the barangay officials and tanods that he was the one (1) who committed the crime. He admitted that he raped and killed AAA.[6] Barangay Tanod Rafael Motol also obtained the same confession from appellant when he interviewed him infront of other people, namely, Abelardo, Carmelita, and Bonifacio Vitto, as well as Arnaldo Mawac, Conchita and Iboy Serdeña, and Salvador and Julieta Motol. Appellant was then photographed by the police and Maribeth, who at that time had a camera on hand.Dr. Erwin M. Labay examined AAA’s body. He found stab wounds and lacerations on the body, and also found irregular corrugations and lacerations of the hymenal ring.[7]On the part of the defense, appellant denied participation in the crime. Appellant claimed that he was on his way home from a drinking spree when he passed by AAA’s house. As he was walking, appellant saw AAA who was bloodied and lying on the ground. He held his cousin to determine

whether she was still alive. He then saw in the vicinity of AAA’s house, two (2) men whom he allegedly chased. Appellant could not identify nor remember what the two (2) men were wearing because it was dark at the time. Convinced that AAA was already dead, appellant did not any more call for help. Instead, appellant went to the house of his aunt and slept. When CCC and her companion arrived, he relayed to them how he had chased two (2) men who may have been responsible for AAA’s death. Appellant denied that he confessed to the crime.[8]On June 1, 2001 the RTC found appellant guilty beyond reasonable doubt for the rape and killing of AAA, to wit: WHEREFORE, premises considered and finding the accused Tirso Sace y Montoya GUILTY beyond reasonable doubt of the crime of Rape with Homicide defined and punished under Article 335 of the Revised Penal Code, as amended by RA No. 7659 and RA No. 8353, he is hereby sentenced to suffer the supreme penalty of DEATH and to indemnify the heirs of [AAA] the amount of P100,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 for exemplary damages. The body of said accused is committed to the custody of the Bureau of Corrections, Muntinlupa City through the Provincial Jail Warden of Marinduque. Let the entire records of this case be forwarded to the Supreme Court, Manila for automatic review.SO ORDERED.The trial court did not give credence to appellant’s alibi since he even categorically admitted that he was at the crime scene and saw AAA’s lifeless body. Because the crime occurred more or less around the time appellant left the drinking session, the trial court held that it was not impossible for appellant to accomplish his bestial act shortly after he left the drinking session as he had to pass by AAA’s house on his way home. Also, other than his bare denial, appellant did not offer any evidence to support his alibi.The trial court further pointed out that during the trial, appellant was positively identified by the 10-year-old brother of AAA, BBB, as the culprit who chased AAA with a bladed weapon and threatened to kill her if she would not remove her clothes. BBB, who was only an arm’s length away from AAA and appellant, was able to describe vividly the appearance of appellant that night, his attire, and how appellant tried to embrace and chase AAA. The trial court found no improper motive on the part of BBB to testify falsely against appellant. BBB’s testimony was notably straightforward and spontaneous and considering his age, the trial court held that it was improbable for him to concoct such a terrifying story against his own cousin.[9] The RTC found appellant’s defense as not only incredible and incredulous but also innately false and fatuous. Appellant never bothered to ask for help nor made an outcry when he found his cousin AAA dead. Instead, he claimed to have left the area and proceeded to the house of his aunt to sleep. When asked why he was bloodied, appellant merely said that he was chasing someone without disclosing that he carried the dead body of AAA. Appellant also disclaimed any knowledge on what happened to AAA when the others asked him.[10]Lastly, the RTC also took into consideration the confession of appellant that he was the one (1) who raped and killed AAA. The trial court noted that the confession was made voluntarily and spontaneously in public, and witnessed by prosecution’s witnesses, who were not shown to have any ill motive against appellant. Thus, appellant’s declaration was admissible as part of res gestae, his statement concerning the crime having been made immediately subsequent to the rape-slaying before he had time to contrive and devise.[11]On November 20, 2006, the Court of Appeals upheld the decision of the RTC, thus:WHEREFORE, premises considered, the Decision dated 1 June 2001 of the Regional Trial Court of Boac, Marinduque is AFFIRMED, except insofar as Republic Act No. 9346 retroactively reduces the penalty for heinous crimes from death to reclusion perpetua.The death penalty imposed by the trial court is consequently REDUCED to reclusion perpetua and herein judgment may be appealed to the Supreme Court by notice of appeal filed with this court.IT IS SO ORDERED.The appellate court ruled that while appellant’s bloodied shirt and pants alone do not establish that he committed the crime, his version is too perforated with inconsistencies to be believable. Appellant claimed to have previously located and embraced the corpse of AAA then left her at the crime scene before he went to the house of his aunt to sleep but he pretended to look for AAA with

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the others. And assuming that he took pity and wanted to help AAA, who was wounded and half-naked, appellant’s behavior was inconsistent with human nature when he went to his aunt’s house to sleep instead of asking for assistance. Likewise, the Court of Appeals found appellant’s testimony to be too evasive and vague. Moreover, the appellate court noted that, while flight oftentimes denotes guilt, the failure of the accused to flee does not per se establish his innocence. It held that appellant was in all probability too drunk to think of escape in the darkness of the night.[12] Hence this appeal.Appellant had assigned an error in his appeal initially passed upon by the Court of Appeals, to wit: whether the RTC erred in finding him guilty beyond reasonable doubt of the crime of rape with homicide.[13]Appellant claimed that the circumstantial evidence relied upon by the RTC did not prove his guilt beyond reasonable doubt. The fact that appellant was wearing a bloodstained shirt did not mean that he committed the crime charged. Appellant had explained that when he saw AAA he held her in his arm to see if she was still alive; thus, his shirt was stained with blood. Moreover, if indeed he was guilty of the crime, he would not have assisted in the search for AAA’s body as he could have just escaped or at least changed his clothing. He stressed that it was not impossible that the two (2) unidentified men he chased had committed the crime.We affirm appellant’s conviction.It is doctrinal that the requirement of proof beyond reasonable doubt in criminal law does not mean such a degree of proof as to exclude the possibility of error and produce absolute certainty. Only moral certainty is required or that degree of proof which produces conviction in an unprejudiced mind.[14] While it is established that nothing less than proof beyond reasonable doubt is required for a conviction, this exacting standard does not preclude resort to circumstantial evidence when direct evidence is not available. Direct evidence is not a condition sine qua non to prove the guilt of an accused beyond reasonable doubt. For in the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under conditions where concealment is highly probable. If direct evidence is insisted on under all circumstances, the prosecution of vicious felons who commit heinous crimes in secret or secluded places will be hard, if not impossible, to prove.[15]

In this case, as found by the RTC, the following chain of events was established by prosecution’s evidence: (a) a drunken appellant came to AAA’s house; (b) appellant tried to embrace AAA but when the latter resisted and ran away, he chased her with a knife; (c) when appellant caught up with AAA at the upper portion of the house, he was heard uttering the words “Pag hindi daw po naghubad ay asaksakin”; (d) appellant was hiding when CCC and her companion searched the house for AAA, then he suddenly appeared from his hiding place with bloodied apparels; (e) when asked by CCC, appellant denied any knowledge of the whereabouts of AAA and what happened to her; and (f) appellant voluntarily confessed to having committed the rape with homicide infront of many witnesses then he submitted himself to police custody.[16]

BBB’s candid and unequivocal narration, which positively identified appellant as the culprit who tried to force himself on AAA, debunks appellant’s denial of any participation in the crime. BBB testified,

Fiscal Balquiedra : x x x On September 9, 1999 at around seven o’clock in the evening, where were you?Witness : At our house.Fiscal Balquiedra : Who were your companion at that time?Witness : My sister and my “pamangkin”.Fiscal Balquiedra : How old is that “pamangkin” of yours?Witness : Four (4) years old. x x x x Fiscal Balquiedra : What happened during that time?Witness : Manong Tirso came to our house, sir.

Fiscal Balquiedra : That Manong Tirso of yours who came to your house, where is he now?Witness (Interpreter): Witness pointing to a man who identified himself as Tirso Sace.Fiscal Balquiedra : What happened when Tirso Sace arrived?Witness : When Manong Tirso arrived at our house he was drunk. x x x xFiscal Balquiedra : When he did not leave, what else happened?Witness : “Ayapusin po si Ate noong hindi po siya umalis”.Fiscal Balquiedra : What happened next when Tirso tried to embrace your Ate [AAA]?Witness : “Hindi po nagpayapos si Ate”.Fiscal Balquiedra : And what happened next?Witness : “Tumayo po si Ate and Manong Tirso also stand up and bumunot ng patalim”.Fiscal Balquiedra : What happened when he pulled out bladed weapon?Witness : Ate [AAA] ran towards the upper portion of our house.Fiscal Balquiedra : How about Tirso, what did he do?Witness : He ran after her.Fiscal Balquiedra : Then what happened next?Witness : Ate [AAA] shouted.Fiscal Balquiedra : What happened after your Ate [AAA] shouted?Witness : My pamangkin was awakened and he went to the lower portion of our house.Fiscal Balquiedra : How about Tirso, what did he do?Interpreter : No answer.Fiscal Balquiedra : When your Ate [AAA] shouted, did you hear Tirso say anything?Witness : Yes, sir.Fiscal Balquiedra : What did he say?Witness : “Pag hindi daw po naghubad ay asaksakin”.Fiscal Balquiedra : Who said that?Witness : Manong Tirso.Fiscal Balquiedra : After hearing that, what did you and your pamangkin do?Witness : We hid, sir.Fiscal Balquiedra : Why did you and your pamangkin hide?Witness : Because we were afraid, sir.Fiscal Balquiedra : You said that your Ate [AAA] ran and Tirso ran after her, when Tirso ran after her, where was the “patalim”?Witness : On his hands, “kinuha po sa bulsa niya”.Fiscal Balquiedra : What happened next?Witness : Ate [AAA] ran when she saw the knife of Tirso.[17]BBB did not waver during cross-examination, to wit:Atty. de Luna : You testified that accused embraced the victim, is that correct?Witness : Yes, sir.Atty. de Luna : And was the accused successful when he allegedly embraced the victim?Witness : No, sir.Atty. de Luna : Why?Witness : [AAA] evaded.Atty. de Luna : When the accused allegedly embraced the victim, was he behind or infront the victim?Witness : Infront, sir.Atty. de Luna : How far were you from the victim when accused allegedly embraced her/or when he tried to embrace her?Witness : “Kalahating dipa”. x x x xAtty. de Luna : When accused arrived in your house, were you sleeping at that time?Witness : No, sir.Atty. de Luna : You testified that Tirso Sace pulled up a bladed weapon that night, is that correct?

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Witness : Yes, sir.Atty. de Luna : Did the accused pulled the knife before or after accused tried to embrace [AAA]?Witness : After embracing, sir. x x x xAtty. de Luna : Where did the accused get the knife?Witness : From his pocket, sir.Atty. de Luna : And how far were you when you saw it?Witness : “Mga isang dipa po”.[18] x x x xIt is axiomatic that a witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent on cross-examination is a credible witness.[19] We see no justification to reverse the RTC’s appreciation of the testimony of BBB. Having observed the witness’s deportment while testifying, the trial court’s assessment of the credibility of BBB deserves our highest respect.

In contrast, appellant could only offer denial and alibi in his defense. Denial and alibi are weak defenses which must be supported by strong evidence of non-culpability to merit credibility. These are negative self-serving evidence which cannot be given greater weight than the testimony of a credible witness who testified on affirmative matters. Between the positive declarations of a prosecution witness and the negative statements of the accused, the former deserves more credence.[20] Thus, between the positive identification made by BBB and the bare denial and alibi of appellant, there is scarcely any doubt that decisive weight must be given to the positive testimony of BBB.

Also, the facts in this case clearly show that appellant admitted the commission of the crime to the prosecution’s witnesses. According to their testimonies, appellant admitted having raped and killed AAA. Their testimonies were not rebutted by the defense. Appellant’s statements infront of the prosecution witnesses are admissible for being part of the res gestae. Under the Revised Rules on Evidence,[21] a declaration is deemed part of the res gestae and admissible in evidence as an exception to the hearsay rule when the following requisites concur: (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately attending circumstances.[22] All these requisites are present in this case. Appellant had just been through a startling and gruesome occurrence, AAA’s death. His admission was made while he was still under the influence of said startling occurrence and before he had an opportunity to concoct or contrive a story. In addition, he was still under the influence of alcohol at that time, having engaged in a drinking spree from 1:00 p.m. to 7:00 p.m. that day. His confession concerned the rape and killing of AAA. Appellant’s spontaneous statements made to private persons, not agents of the State or law enforcers, are not covered by the constitutional safeguards on custodial investigation and, as res gestae, admissible in evidence against him.The rule is settled that where the culpability or innocence of the accused hinges on the credibility of the witnesses and the veracity of their testimonies, the findings of trial courts are given the highest degree of respect. Hence, their findings on such matters are binding and conclusive on appellate courts, unless some fact or circumstance of weight and substance has been overlooked, misapprehended or misinterpreted.[23] We find no circumstance of weight or substance that was overlooked by the trial court.

With regard to damages, we modify the award of moral damages affirmed by the Court of Appeals. The heirs of AAA are entitled to moral damages amounting to P75,000.00,[24] pursuant to prevailing jurisprudence. Likewise, as to actual damages, we have held that if the amount of the actual damages cannot be determined because no receipts were presented to prove the same, but it was shown that the heirs are entitled thereto, temperate damages amounting to P25,000.00 may be awarded.[25] There being a sufficient showing in the instant case that the heirs of AAA incurred funeral expenses, the award of temperate damages is in order.

WHEREFORE, the appeal of Tirso Sace y Montoya is DISMISSED and the November 20, 2006 Decision of the Court of Appeals in CA-G.R. CR- H.C. No. 02324 is AFFIRMED with MODIFICATIONS. Temperate damages amounting to P25,000.00 are hereby awarded in lieu of actual damages and the award of moral damages is increased to P75,000.00 in line with current jurisprudence.With costs against the accused-appellant.SO ORDERED.

G.R. No. 172031 July 14, 2008TALIDANO v FALCON

This Petition for Certiorari1 under Rule 65 of the Rules of Court seeks to annul the Decision2 and Resolution3 of the Court of Appeals, dated 16 November 2005 and 2 February 2006, respectively, which upheld the validity of the dismissal of Juanito Talidano (petitioner). The challenged decision reversed and set aside the Decision4 of the National Labor Relations Commission (NLRC) and reinstated that of the Labor Arbiter.5

Petitioner was employed as a second marine officer by Falcon Maritime and Allied Services, Inc. (private respondent) and was assigned to M/V Phoenix Seven, a vessel owned and operated by Hansu Corporation (Hansu) which is based in Korea. His one (1)-year contract of employment commenced on 15 October 1996 and stipulated the monthly wage at $900.00 with a fixed overtime pay of $270.00 and leave pay of $75.00.6

Petitioner claimed that his chief officer, a Korean, always discriminated against and maltreated the vessel’s Filipino crew. This prompted him to send a letter-complaint to the officer-in-charge of the International Transport Federation (ITF) in London, a measure that allegedly was resented by the chief officer. Consequently, petitioner was dismissed on 21 January 1997. He filed a complaint for illegal dismissal on 27 October 1999.7

Private respondent countered that petitioner had voluntarily disembarked the vessel after having been warned several times of dismissal from service for his incompetence, insubordination, disrespect and insulting attitude toward his superiors. It cited an incident involving petitioner’s incompetence wherein the vessel invaded a different route at the Osaka Port in Japan due to the absence of petitioner who was then supposed to be on watch duty. As proof, it presented a copy of a fax message, sent to it on the date of incident, reporting the vessel’s deviation from its course due to petitioner’s neglect of duty at the bridge,8 as well as a copy of the report of crew discharge issued by the master of M/V Phoenix Seven two days after the incident.9

Private respondent stated that since petitioner lodged the complaint before the Labor Arbiter two (2) years and nine (9) months after his repatriation, prescription had already set in by virtue of Revised POEA Memorandum Circular No. 55, series of 1996 which provides for a one-year prescriptive period for the institution of seafarers’ claims arising from employment contract.10

On 5 November 2001, the Labor Arbiter rendered judgment dismissing petitioner’s complaint, holding that he was validly dismissed for gross neglect of duties. The Labor Arbiter relied on the fax messages presented by private respondent to prove petitioner’s neglect of his duties, thus:

x x x The fax message said that the Master of M/V Phoenix Seven received an emergency warning call from Japan Sisan Sebo Naika Radio Authority calling attention to the Master of the vessel M/V Phoenix Seven that his vessel is invading other route [sic]. When the Master checked the Bridge, he found out that the Second Officer (complainant) did not carry out his duty wathch. There was a confrontation between the Master and the Complainant but the latter insisted that he was right. The argument of the Complainant asserting that he was right cannot be sustained by this Arbitration Branch. The fact that there was an emergency call from the Japanese port authority that M/V Phoenix Seven was invading other route simply means that Complainant neglected his duty. The fax message stating that Complainant was not at the bridge at the time of the emergency call was likewise not denied nor refuted by the Complainant. Under our jurisprudence, any

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material allegation and/or document which is not denied specifically is deemed admitted. If not of the timely call [sic] from the port authority that M/V Phoenix Seven invaded other route, the safety of the vessel, her crew and cargo may be endangered. She could have collided with other vessels because of complainant’s failure to render watch duty.11

On appeal, the NLRC reversed the ruling of the Labor Arbiter and declared the dismissal as illegal. The dispositive portion of the NLRC’s decision reads:

WHEREFORE, premises considered, the decision appealed from is hereby reversed and set aside and a new one entered declaring the dismissal of the complainant as illegal. Respondents Falcon Maritime & Allied Services, Inc. and Hansu Corporation are hereby ordered to jointly and severally pay complainant the amount equivalent to his three (3) months salary as a result thereof.12

The NLRC held that the fax messages in support of the alleged misbehavior and neglect of duty by petitioner have no probative value and are self-serving. It added that the ship’s logbook should have been submitted in evidence as it is the repository of all the activities on board the vessel, especially those affecting the performance or attitude of the officers and crew members, and, more importantly, the procedures preparatory to the discharge of a crew member. The NLRC also noted that private respondent failed to comply with due process in terminating petitioner’s employment.13

Private respondent moved for reconsideration,14 claiming that the complaint was filed beyond the one-year prescriptive period. The NLRC, however, denied reconsideration in a Resolution dated 30 August 2002.15 Rejecting the argument that the complaint had already prescribed, it ruled:

Records show that respondent in this case had filed a motion to dismiss on the ground of prescription before the Labor Arbiter a quo who denied the same in an Order dated August 1, 2000. Such an Order being unappealable, the said issue of prescription cannot be raised anew specially in a motion for reconsideration. (Citations omitted)16

It appears that respondent received a copy of the NLRC Resolution17 on 24 September 2002 and that said resolution became final and executory on 7 October 2002.18

Private respondent brought the case to the Court of Appeals via a Petition for Certiorari19 on 8 October 2002. The petition, docketed as CA-G.R. Sp. No. 73521, was dismissed on technicality in a Resolution dated 29 October 2002. The pertinent portion of the resolution reads:

(1) [T]he VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING was signed by one Florida Z. Jose, President of petitioner Falcon Maritime and Allied Services, Inc., without proof that she is the duly authorized representative of petitioner-corporation;

(2) [T]here is no affidavit of service of the petition to the National Labor Relations Commission and to the adverse party;

(3) [T]here is no explanation to justify service by mail in lieu of the required personal service. (Citations omitted)20

An entry of judgment was issued by the clerk of court on 23 November 2002 stating that the 29 October 2002 Resolution had already become final and executory.21 Meanwhile, on 12 November 2002, private respondent filed another petition before the Court of Appeals,22 docketed as CA G.R. SP No. 73790. This is the subject of the present petition.

Petitioner dispensed with the filing of a comment.23 In his Memorandum,24 however, he argued that an entry of judgment having been issued in CA-G.R. SP No. 73521, the filing of the second petition hinging on the same cause of action after the first petition had been dismissed violates not only the rule on forum shopping but also the principle of res judicata. He highlighted the fact that

the decision subject of the second petition before the Court of Appeals had twice become final and executory, with entries of judgment made first by the NLRC and then by the Court of Appeals.

The appellate court ultimately settled the issue of prescription, categorically declaring that the one-year prescriptive period applies only to employment contracts entered into as of 1 January 1997 and not those entered prior thereto, thus:

x x x The question of prescription is untenable. Admittedly, POEA Memorandum Circular [No.] 55 prescribing the standard terms of an employment contract of a seafarer was in effect when the respondent was repatriated on January 21, 1997. This administrative issuance was released in accordance with Department Order [No.] 33 of the Secretary of Labor directing the revision of the existing Standard Employment Contract to be effective by January 1, 1997. Section 28 of this revised contract states: all claims arising therefrom shall be made within one year from the date of the seafarer’s return to the point of hire.

It is crystal clear that the one-year period of prescription of claims in the revised standard contract applies only to employment contracts entered into as of January 1, 1997. If there is still any doubt about this, it should be removed by the provision of Circular [No.] 55 which says that the new schedule of benefits to be embodied in the standard contract will apply to any Filipino seafarer that will be deployed on or after the effectivity of the circular.

The respondent was deployed before January 1, 1997. As acknowledged by the petitioners, the rule prior to Circular [No.] 55 provided for a prescriptive period of three years. We cannot avoid the ineluctable conclusion that the claim of the respondent was filed within the prescriptive period.25

Despite ruling that prescription had not set in, the appellate court nonetheless declared petitioner’s dismissal from employment as valid and reinstated the Labor Arbiter’s decision.

The appellate court relied on the fax messages issued by the ship master shortly after petitioner had committed a serious neglect of his duties. It noted that the said fax messages constitute the res gestae. In defending the non-presentation of the logbook, it stated that three years had already passed since the incident and Hansu was no longer the principal of private respondent.

Petitioner’s motion for reconsideration was denied. Hence he filed this instant petition.

Citing grave abuse of discretion on the part of the Court of Appeals, petitioner reiterates his argument that the appellate court should not have accepted the second petition in view of the fact that a corresponding entry of judgment already has been issued. By filing the second petition, petitioner believes that private respondent has engaged in forum shopping.26

Private respondent, for its part, defends the appellate court in taking cognizance of the second petition by stressing that there is no law, rule or decision that prohibits the filing of a new petition for certiorari within the reglementary period after the dismissal of the first petition due to technicality.27 It rebuts petitioner’s charge of forum shopping by pointing out that the dismissal of the first petition due to technicality has not ripened into res judicata, which is an essential element of forum shopping.28

In determining whether a party has violated the rule against forum shopping, the test to be applied is whether the elements of litis pendentia are present or whether a final judgment in one case will amount to res judicata in the other.29 This issue has been thoroughly and extensively discussed and correctly resolved by the Court of Appeals in this wise:

The respondent’s two arguments essay on certain developments in the case after the NLRC rendered its decision. He points out with alacrity that an entry of judgment was issued twice – first by the NLRC with respect to its decision and then by the Ninth Division of the Court of Appeals

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after it dismissed on technical grounds the first petition for certiorari filed by the petitioner. Neither event, for sure, militates against the institution of a second petition for certiorari. A decision of the NLRC is never final for as long as it is the subject of a petition for certiorari that is pending with a superior court. A contrary view only demeans our certiorari jurisdiction and will never gain currency under our system of appellate court review. It is more to the point to ask if a second petition can stand after the first is dismissed, but under the particular circumstances in which the second was brought, we hold that it can. The theory of res judicata invoked by the respondent to bar the filing of the second petition does not apply. The judgment or final resolution in the first petition must be on the merits for res judicata to inhere, and it will not be on the merits if it is founded on a consideration of only technical or collateral points. Yet this was exactly how the first petition was disposed of. SP 73521 was dismissed as a result of the failure of the petitioner to comply with the procedural requirements of a petition for certiorari. The case never touched base. There was no occasion for the determination of the substantive rights of the parties and, in this sense, the merits of the case were not involved. The petitioner had actually the option of either refilling [sic] the case or seeking reconsideration in the original action. It chose to file SP 73790 after realizing that it still had enough time left of the original period of 60 days under Rule 65 to do so.

Since the dismissal of the first petition did not ripen into res judicata, it may not be said that there was forum shopping with the filing of the second. The accepted test for determining whether a party violated the rule against forum shopping insofar as it is applicable to this setting is whether the judgment or final resolution in the first case amounts to res judicata in the second. Res judicata is central to the idea of forum shopping. Without it, forum shopping is non-existent. The dismissal of the first petition, moreover, if it does not amount to res judicata, need not be mentioned in the certification of non-forum shopping accompanying the second action. The omission will not be fatal to the viability of the second case. (Citations omitted)30

Private respondent, in turn, questions the propriety of the instant certiorari petition and avers that the issues raised by petitioner can only be dealt with under Rule 45 of the Rules of Court.31 Against this thesis, petitioner submits that the acceptance of the petition is addressed to the sound discretion of this Court.32

The proper remedy to assail decisions of the Court of Appeals involving final disposition of a case is through a petition for review under Rule 45. In this case, petitioner filed instead a certiorari petition under Rule 65. Notwithstanding this procedural lapse, this Court resolves to rule on the merits of the petition in the interest of substantial justice,33 the underlying consideration in this petition being the arbitrary dismissal of petitioner from employment.

Petitioner submits that the Court of Appeals erred in relying merely on fax messages to support the validity of his dismissal from employment. He maintains that the first fax message containing the information that the vessel encroached on a different route was a mere personal observation of the ship master and should have thus been corroborated by evidence, and that these fax messages cannot be considered as res gestae because the statement of the ship master embodied therein is just a report. He also contends that he has not caused any immediate danger to the vessel and that if he did commit any wrongdoing, the incident would have been recorded in the logbook. Thus, he posits that the failure to produce the logbook reinforces the theory that the fax messages have been concocted to justify his unceremonious dismissal from employment. Hence, he believes that his dismissal from employment stemmed from his filing of the complaint with the ITF which his superiors resented.34

Private respondent insists that the appellate court is correct in considering the fax messages as res gestae statements. It likewise emphasizes that non-presentment of the logbook is justified as the same could no longer be retrieved because Hansu has already ceased to be its principal. Furthermore, it refutes the allegation of petitioner that he was dismissed because he filed a complaint with the ITF in behalf of his fellow crew members. It claims that petitioner’s allegation

is a hoax because there is no showing that the alleged complaint has been received by the ITF and that no action thereon was ever taken by the ITF.35

Private respondent also asserts that petitioner was not dismissed but that he voluntarily asked for his repatriation. This assertion, however, deserves scant consideration. It is highly illogical for an employee to voluntarily request for repatriation and then file a suit for illegal dismissal. As voluntary repatriation is synonymous to resignation, it is proper to conclude that repatriation is inconsistent with the filing of a complaint for illegal dismissal.36

The paramount issue therefore boils down to the validity of petitioner’s dismissal, the determination of which generally involves a question of fact. It is not the function of this Court to assess and evaluate the facts and the evidence again, our jurisdiction being generally limited to reviewing errors of law that might have been committed by the trial court or administrative agency. Nevertheless, since the factual findings of the Court of Appeals and the Labor Arbiter are at variance with those of the NLRC, we resolve to evaluate the records and the evidence presented by the parties.37

The validity of an employee's dismissal hinges on the satisfaction of two substantive requirements, to wit: (1) the dismissal must be for any of the causes provided for in Article 282 of the Labor Code; and (2) the employee was accorded due process, basic of which is the opportunity to be heard and to defend himself.38

The Labor Arbiter held that petitioner’s absence during his watch duty when an emergency call was received from the Japanese port authority that M/V Phoenix Seven was "invading other route" constituted neglect of duty, a just cause for terminating an employee. Records reveal that this information was related to private respondent via two fax messages sent by the captain of M/V Phoenix Seven. The first fax message dated 18 January 1997 is reproduced below:

JUST RECEIVED PHONE CALL FROM MASTER N C/OFFICER THAT THEY DECIDED TO DISCHARGE 2/OFFICER AT OSAKA PORT.

DUE TO MIS-BEHAVIOUR N RESEST [SIC] TO OFFICIAL ORDER.

CAPT. HAD RECEIVED EMERGENCY WARNING CALL FROM JAPAN BISAN SETO NAIKAI RADIO AUTHORITY THAT SHIP IS INVADING OTHER ROUTE.

SO, HE WAS SURPRISED N CAME TO BRIDGE N FOUND 2/O NOT CARRY OUT HIS WATCH DUTY.

MASTER SCOLD HIM ABOUT THIS N CORRECT HIS ERROR BUT HE RESIST [SIC] THAT HE IS RIGHT AND THEN SAID THAT HE WILL COME BACK HOME.

FURTHER MORE HE ASKED MASTER TO PAY HIM I.T.F. WAGE SCALE.

MASTER N/CIO STRONGLY ASKED US HIS REPATRIATION WITH I.E.U.

PLS. CONFIRM YOUR OPINION ON THIS HAPPENING.39

The second fax message dated 20 January 1997 pertained to a report of crew discharge essentially containing the same information as the first fax message. The Court of Appeals treated these fax messages as part of the res gestae proving neglect of duty on the part of petitioner.

Section 42 of Rule 13040 of the Rules of Court mentions two acts which form part of the res gestae, namely: spontaneous statements and verbal acts. In spontaneous exclamations, the res gestae is the startling occurrence, whereas in verbal acts, the res gestae are the statements accompanying the equivocal act.41 We find that the fax messages cannot be deemed part of the res gestae.

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To be admissible under the first class of res gestae, it is required that: (1) the principal act be a startling occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances.42

Assuming that petitioner’s negligence—which allegedly caused the ship to deviate from its course—is the startling occurrence, there is no showing that the statements contained in the fax messages were made immediately after the alleged incident. In addition, no dates have been mentioned to determine if these utterances were made spontaneously or with careful deliberation. Absent the critical element of spontaneity, the fax messages cannot be admitted as part of the res gestae of the first kind.

Neither will the second kind of res gestae apply. The requisites for its admissibility are: (1) the principal act to be characterized must be equivocal; (2) the equivocal act must be material to the issue; (3) the statement must accompany the equivocal act; and (4) the statements give a legal significance to the equivocal act.43

Petitioner’s alleged absence from watch duty is simply an innocuous act or at least proved to be one. Assuming arguendo that such absence was the equivocal act, it is nevertheless not accompanied by any statement more so by the fax statements adverted to as parts of the res gestae. No date or time has been mentioned to determine whether the fax messages were made simultaneously with the purported equivocal act.

Furthermore, the material contents of the fax messages are unclear. The matter of route encroachment or invasion is questionable. The ship master, who is the author of the fax messages, did not witness the incident. He obtained such information only from the Japanese port authorities. Verily, the messages can be characterized as double hearsay.

In any event, under Article 282 of the Labor Code,44 an employer may terminate an employee for gross and habitual neglect of duties. Neglect of duty, to be a ground for dismissal, must be both gross and habitual. Gross negligence connotes want of care in the performance of one’s duties. Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending upon the circumstances. A single or isolated act of negligence does not constitute a just cause for the dismissal of the employee.45

Petitioner’s supposed absence from watch duty in a single isolated instance is neither gross nor habitual negligence. Without question, the alleged lapse did not result in any untoward incident. If there was any serious aftermath, the incident should have been recorded in the ship’s logbook and presented by private respondent to substantiate its claim. Instead, private respondent belittled the probative value of the logbook and dismissed it as self-serving. Quite the contrary, the ship’s logbook is the repository of all activities and transactions on board a vessel. Had the route invasion been so serious as to merit petitioner’s dismissal, then it would have been recorded in the logbook. Private respondent would have then had all the more reason to preserve it considering that vital pieces of information are contained therein.

In Haverton Shipping Ltd. v. NLRC,46 the Court held that the vessel’s logbook is an official record of entries made by a person in the performance of a duty required by law.47 In Abacast Shipping and Management Agency, Inc. v. NLRC,48 a case cited by petitioner, the logbook is a respectable record that can be relied upon to authenticate the charges filed and the procedure taken against the employees prior to their dismissal.49 In Wallem Maritime Services, Inc. v. NLRC,50 the logbook is a vital evidence as Article 612 of the Code of Commerce requires the ship captain to keep a record of the decisions he had adopted as the vessel's head.51 Therefore, the non-presentation of the logbook raises serious doubts as to whether the incident did happen at all.

In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer.52 Private respondent miserably failed to discharge this burden. Consequently, the petitioner’s dismissal is illegal.

We also note that private respondent failed to comply with the procedural due process requirement for terminating an employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern since it constitutes a safeguard of the highest order in response to man's innate sense of justice. The Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be dismissed. This is especially true in the case of a vessel on the ocean or in a foreign port. The minimum requirement of due process in termination proceedings, which must be complied with even with respect to seamen on board a vessel, consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to present their own side of the alleged offense or misconduct, which led to the management's decision to terminate. To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the employer’s decision to dismiss him.531avvphi1

Private respondent’s sole reliance on the fax messages in dismissing petitioner is clearly insufficient as these messages were addressed only to itself. No notice was ever given to petitioner apprising him in writing of the particular acts showing neglect of duty. Neither was he informed of his dismissal from employment. Petitioner was never given an opportunity to present his side. The failure to comply with the two-notice rule only aggravated respondent’s liability on top of dismissing petitioner without a valid cause.

Pursuant to Section 10 of Republic Act No. 804254 or the Migrant Worker’s Act, employees who are unjustly dismissed from work are entitled to an amount representing their three (3) months’ salary considering that their employment contract has a term of exactly one (1) year plus a full refund of his placement fee, with interest at 12% per annum.55

IN LIGHT OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE. The Decision of the NLRC is REINSTATED with the MODIFICATION that in addition to the payment of the sum equivalent to petitioner’s three (3) months’ salary, the full amount of placement fee with 12% legal interest must be refunded.

SO ORDERED.

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