EN BANC

[G.R. No. 146697. July 23, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO FABRE y
VICENTE, accused-appellant.

DECISION
VITUG, J.:

Leonardo Fabre was adjudged guilty by the Regional Trial Court, Br. VI, of
Prosperidad, Agusan del Sur, of raping his own daughter Marilou Fabre, and he was
sentenced to suffer the extreme penalty of death.
Fabre was indicted in an Information that read:

[1]

That on or about 4:00 oclock in the afternoon of April 26, 1995 in the house of
the accused located at Manat, Trento, Agusan del Sur, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused by force,
threats and intimidation, with lewd design, did then and there willfully,
unlawfully and feloniously succeed in having sexual intercourse with his own
daughter MARILOU FABRE, a girl thirteen (13) years of age, of good
reputation, against her will and consent to the damage and prejudice of the
said victim consisting of moral, actual and compensatory damages.
Accused pleaded not guilty to the crime charged. At the trial, the prosecution
presented the testimony of Marilou, that of Adela Fabre, her mother and the wife of the
accused, and that of Dr. Reinerio Jalalon, the doctor who examined Marilou, along with
the medico-legal certificate issued by Dr. Jalalon, the sworn statement of Adela, and the
criminal complaint signed by both Marilou and Adela. The defense, during its turn in the
presentation of evidence, countered with the testimony of the accused himself. It also
called Adela Fabre back to the witness stand.
The trial court gave credence to the evidence given by the prosecution, particularly
to the narration of the young complainant, expressing a quote from an observation once
made by this Tribunal in one of its decision that even when consumed with revenge, it
(would) take a certain amount of psychological depravity for a young woman to concoct
a story which (could) put her own father for the rest of his remaining life in jail and drag
herself and the rest of her family to a lifetime of shame. Convinced that the accused
committed the crime of rape on his own daughter, the trial judge disposed of the case
thusly:
[2]

WHEREFORE, the Court finds accused LEONARDO FABRE y VICENTE

alias Nardo, GUILTY beyond reasonable doubt as principal of the crime of
RAPE as defined and penalized under Article 335 of the Revised Penal Code

as amended by R.A. No. 7659 Section 11 thereof and hereby imposes upon
the accused Leonardo Fabre y Vicente alias Nardo the penalty of DEATH; to
pay the victim Marilou Fabre civil indemnity in the amount of FIFTY
THOUSAND (P50,000.00) PESOS and the costs.
[3]

In this automatic review, the convicted accused assigned the following alleged
errors committed by the court a quo.
I

THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO

ACCUSED-APPELLANTS DEFENSE OF ALIBI AND DENIAL.
II

ASSUMING IN ARGUENDO THAT ACCUSED-APPELLANT IS GUILTY, THE

TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH SENTENCE
UPON ACCUSED-APPELLANT DESPITE THE FAILURE OF THE
PROSECUTION TO ESTABLISH THE ACTUAL AGE OF MARILOU FABRE
AT THE TIME OF THE COMMISSION OF THE ALLEGED RAPE.
[4]

The defense argues, rather desperately, that the testimony of appellant should
acquire added strength for the failure of the prosecution to conduct cross-examination
on him and to present any rebuttal evidence. The cross-examination of a witness is a
prerogative of the party against whom the witness is called. The purpose of crossexamination is to test the truth or accuracy of the statements of a witness made on
direct examination. The party against whom the witness testifies may deem any further
examination unnecessary and instead rely on any other evidence theretofore adduced
or thereafter to be adduced or on what would be believed is the perception of the court
thereon. Certainly, the trial court is not bound to give full weight to the testimony of a
witness on direct examination merely because he is not cross-examined by the other
party.
[5]

[6]

The alibi of appellant itself would not appear to be deserving of serious

consideration.His account that at the time of the alleged rape he was working at a
coconut plantation, just about one kilometer away from the place of the crime, hardly
would amount to much. Nor would the testimony of Adela Fabre, his wife, merit any
better regard. At first, she testified that on the day of the rape incident, she had left their
house at four oclock in the afternoon.Later, however, she changed her story by saying
that she had left the house in the morning and returned only at ten oclock that same
morning, staying home the whole day thereafter. In any event, in order that alibi might
prosper, it would not be enough for an accused to prove that he was somewhere else
when the crime was committed; he would have to demonstrate likewise that he could
not have been physically present at the place of the crime or in its immediate vicinity at
the time of its commission. Clearly, in the instant case, it was not at all impossible nor
even improbable for appellant to have been at the crime scene.
[7]

Upon the other hand, the evidently candid and straightforward testimony of Marilou
should be more than enough to rebut the claim of innocence made by appellant.
[8]

On 26 April 1995, around four oclock in the afternoon, Marilou Fabre was alone in
their house in Barangay Manat, Trento, Agusan del Sur. Adela Fabre, her mother, had
gone to Purok 4 to buy fish while her siblings were out strolling. After cleaning their
yard, Marilou went to the adjacent palm plantation, about fourteen to fifteen meters
away from their house, to gather palm oil. Marilou had been gathering palm oil for about
a minute when her father, appellant Leonardo Fabre, arrived. He suddenly gripped
Marilous hands and forcibly dragged her towards the house. He closed the door and
removed his daughters underwear.He took off his pants and asked Marilou to hold his
sex organ. In tears, Marilou obeyed her father. He then began touching the girls breasts
and vagina. He forced her to lie down, mounted her and sought to insert his penis into
her organ. Marilou cried in pain. When after some time he still could not insert his penis
into Marilous vagina, he applied coconut oil to lubricate his and his daughters sexual
organs. He was finally able to penetrate her. Once inside her, appellant made push and
pull movements until he was through with her. Appellant threatened to kill her if she
would tell anybody about the sexual encounter. The young girls mother, Adela Fabre,
arrived home about five oclock that afternoon but, remembering her fathers threats, she
kept mum about her ordeal.
The credibility of Marilou would not be all that difficult to discern from her narration
that, as so described by the prosecution, was full of graphic details which a young
provincial girl could not possibly have concocted and which could only have come from
someone who must have personally experienced a brutal rape assault. She testified:
PROS. ENRIQUEZ:
Q Now, Miss Marilou, can you recall where were you on April 26, 1995 at about 4:00 oclock
in the afternoon?
A Yes, sir.
Q Where were you that time?
A In our house, sir.
Q What were you doing in your house?
A I was cleaning our yard, sir.
Q How far is your yard where you were doing some works from your house?
A (Witness pointing a distance of around 2 to 3 meters.)
Q Now, while you were doing your work in your yard, can you recall if there was an incident
that occurred?
A Yes, sir.
Q What was that incident that occurred?
A While I was gathering a palm oil my father arrived and suddenly dragged me to our house,
sir.
COURT:

Q Where is your house located?

A At Purok 4, Manat, Trento, Agusan del Sur, Your Honor.
PROS. ENRIQUEZ:
Q What did you do when your father dragged you to your house?
A Because I was dragged by my father to our house I just went with him, sir.
Q While you were in your house after having been dragged by your father, what happened if
any?
A He closed our house and he removed my panty, sir.
Q And after removing your panty, what did your father do next?
A He removed his pants and he let me hold his penis, sir.
Q And what did you do next after holding his penis?
A I was crying, sir.
Q While you were crying what did your father do?
A He was touching my breast and my vagina, sir.
Q After that what did he do next?
A He let me lie down, sir.
Q And while lying down, what did your father do?
A He mounted me and he inserted his penis, to my vagina, sir.
Q And what did you feel while your father was inserting his penis to your vagina?
A Very painful, sir.
Q And what did you do while your father was inserting his penis to your vagina?
A I was crying, sir.
Q And while you were crying what did your father do if any?
A He told me not to tell anybody because if I will do it he will kill me, sir.
Q Now, did your father find it easy to insert his penis to your vagina?
A It [took] a long time, sir.
Q And did he use anything to facilitate the insertion of his penis to your vagina?
A Yes, sir.
Q What was that?
A He used coconut oil in his penis and also in my vagina so that his penis can easily insert
my vagina, sir.
Q Now, while his penis was in your vagina, can you tell this Honorable Court if he did
anything also on top of you and while his penis was inside your vagina?
A None, sir.

Q Did he make any movement?

A Yes, sir.
Q What was that movement?
A He made a push and pull movement on my body, sir.
Q Now, while your father was doing it to you where was your mother that time?
A She was in Purok 4, Manat, Trento, Agusan del Sur, sir.
Q And did you report this incident to your mother?
A Not yet sir because he told me not to tell anybody.
Q So when did you had a chance to tell your mother about this incident?
A On May 1, 1995, sir.
Q And what did your mother do after you reported to her this incident?
A She reported [the matter] to the Kagawad, sir.[9]

It has been stressed quite often enough that the testimony of a rape victim, who is
young and still immature, deserves faith and credence for it simply would be unnatural
for a young and innocent girl to invent a story of defloration, allow an examination of her
private parts and thereafter subject herself and her family to the trauma of a public trial
unless she indeed has spoken the truth. Most especially, a daughter would not accuse
her own father of such a serious offense or allow herself to be perverted if she were not
truly motivated by a desire to seek a just retribution for a violation brazenly committed
against her.
[10]

[11]

[12]

Confirming Marilous story was the medical report and testimony of Dr. Reinerio
Jalalon, the government physician stationed at the Bunawan District Hospital in Agusan
del Sur, who examined Marilou. Dr. Jalalon made these findings; viz:

Abrasion at (L) labia minora at 3:00 oclock position.

Vaginal smear (-) negative for spermatozoa.

[13]

The doctor concluded that it was possible that genital penetration on the victim did
occur and that a penis could have caused the abrasion on the victims labia minora.
There is merit, however, in the plea of the defense, seconded by the prosecution,
that the penalty of death imposed by the trial court should be reduced to the penalty
of reclusion perpetua. Article 335 of the Revised Penal Code, as amended by Section
11 of Republic Act No. 7659, provides:

The death penalty shall also be imposed if the crime of rape is committed with
any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender
is a parent, ascendant, stepparent, guardian, relative by

consanguinity or affinity within the third civil degree, or the

common-law-spouse of the parent of the victim.
While the father-daughter relationship between appellant and private complainant
has been sufficiently established, the fact of minority of the victim, although specifically
averred in the information, has not been equally shown in evidence. These qualifying
circumstances of relationship and minority are twin requirements that should be both
alleged in the information and established beyond reasonable doubt during trial in order
to sustain an imposition of the death penalty. Neither an obvious minority of the victim
nor the failure of the defense to contest her real age always excuse the prosecution
from the desired proof required by law. Judicial notice of the issue of age without the
requisite hearing conducted under Section 3, Rule 129, of the Rules of Court, would not
be considered sufficient compliance with the law. The birth certificate of the victim or, in
lieu thereof, any other documentary evidence, like a baptismal certificate, school
records and documents of similar nature, or credible testimonial evidence, that can help
establish the age of the victim should be presented. While the declaration of a victim as
to her age, being an exception to the hearsay proscription, would be admissible under
the rule on pedigree, the question on the relative weight that may be accorded to it is a
totally different matter.
[14]

[15]

[16]

[17]

In the case at bar, the complainant claimed that she was 13 years old at the time of
the incident. Her mother stated, however, that she was 14. The birth certificate of the
victim, at least already in her teens, was not presented to ascertain her true age on the
bare allegation that the document was lost when their house burned down. No other
document that could somehow help establish the real age of the victim was submitted.
[18]

[19]

[20]

The Court, in sum, upholds the decision of the trial court convicting Leonardo Fabre
of the crime of rape but must reduce, on account of insufficiency of proof on the
qualifying circumstance of minority of the victim, the penalty of death to reclusion
perpetua. With respect to the civil liability, the Court sustains the award of P50,000.00
civil indemnity but, in keeping with prevailing jurisprudence, must additionally order the
payment of P50,000.00 moral damages and P20,000.00 exemplary damages.
[21]

[22]

WHEREFORE, the judgment of the court a quo finding LEONARDO FABRE guilty
of rape is AFFIRMED but the sentence of death therein imposed should be, as it is
hereby so, reduced to reclusion perpetua. The award of P50,000.00 civil liability in favor
of victim, Marilou Fabre, is sustained; however, appellant is further ordered to pay to the
victim the amounts of P50,000.00 moral damages and P20,000.00 exemplary damages.
SO ORDERED.
Bellosillo, (Acting C.J.), Puno, Kapunan, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez, and Corona,
JJ., concur.
Davide, Jr., C.J., on leave.

EN BANC

[G.R. No. 142556. February 5, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS PEREZ y

SEBUNGA, accused-appellant.
DECISION
PER CURIAM:

For automatic review is the Decision dated October 26, 1999 of the Regional Trial
Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant
Jesus S. Perez (appellant for brevity), guilty of raping Mayia P. Ponseca (Mayia for
brevity) and imposing on appellant the death penalty.
[1]

On January 22, 1997, the Second Assistant Provincial Prosecutor of Zambales

filed an Information charging appellant with the crime of rape penalized under Article
335 of the Revised Penal Code in relation to Section 5 (b), Article III of Republic Act No.
7610, committed as follows:
[2]

[3]

That on or about the 17th day of January, 1997 at 12:00 noon at Sitio Baco, Brgy.
Macarang, in the Municipality of Palauig, Province of Zambales, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, with lewd design and
by means of coercion, inducement and other consideration, did then and there,
wilfully (sic), unlawfully and feloniously have sexual intercourse with one Mayia P.
Ponseca, a minor of 6 years old, without her consent and against her will, to the
damage and prejudice of the latter.
Upon arraignment, appellant, assisted by counsel de officio Atty. Genaro N.
Montefalcon, pleaded not guilty to the offense charged. Subsequently, the trial court
allowed the withdrawal of Atty. Montefalcon as counsel for health reasons. The trial
court appointed Atty. Roberto Blanco as appellants counsel de oficio.
[4]

[5]

At the pre-trial, the prosecution and defense stipulated on the following facts:

1. The identity of the accused;

2. The accused was at the time of the incident in the vicinity thereof;
3. The victim in this case, Mayia P. Ponseca, was born on 23 May 1990 as evidenced
by her birth certificate;

4. That after the incident, the child was subjected to a medico-legal examination to
which a medico-legal certificate was issued by Dr. Editha Divino.
The prosecution marked in evidence the birth certificate of the victim Mayia O.
Ponseca as Exhibit A, and the medico-legal certificate issued by Dr. Editha Divino as
Exhibit B.
[6]

Thereafter, trial ensued. The prosecution presented the following witnesses: the
victim, Mayia Ponseca; the victims mother, Hermie Ponseca; the victims father, Osias
Ponseca; Virginia Espejo Giron; and Dr. Editha dela Cruz Divino. On the other hand, the
defense presented appellant and his employer, Bartolome Tolentino.
The Office of the Solicitor General (OSG for brevity) summarized the prosecutions
version of the incident in the appellees brief, to wit:

On January 17, 1997, about noontime, in Sitio Baco, Barangay Macarang, Palauig,
Zambales, six-year old Mayia Ponseca was walking along Sulok on her way to her
house in Sitio Camiling when appellant Jesus Sebunga Perez approached her (pp. 7-8,
TSN, December 15, 1998). Appellant introduced himself as Johnny and immediately
afterwards, strangled her neck and boxed her abdomen (p. 10, TSN, December 15,
1998). Still in shock, Mayia fell down (id.). At that point, a dog arrived and barked at
them.
Appellant then proceeded to lower his black denim pants while simultaneously
removing Mayias panty. He then inserted his penis inside Mayias vagina (p. 11, id.).
Mayia felt excruciating pain in her private parts (sic) but was not able to repel her
aggressor whose strength and weight totally engulfed her. Her only recourse was to
cry while her young body was being ravished (p. 13, id.).
After satisfying his beastly desires, appellant raised his pants and ran away (p. 14, id.).
Notwithstanding that her vagina was bleeding profusely and her dress now covered
with her own blood, Mayia managed to stand up and seek help. She ran to the house
of Virginia Giron, which was only fifty (50) meters away from the scene of the
crime. In fact, Giron was outside when she heard her dog barking (apparently, it was
the same dog barking at appellant while he was consummating his lust on Mayia, pp.
2-3, TSN, January 12, 1999; p. 11, TSN, December 15, 1998). Looking at the
direction of the noise, she saw a confused Mayia approaching her with blood dripping
from her private parts and thighs. When Giron asked Mayia what happened, the latter
shouted ni-rape ako, ni-rape ako (p. 4, TSN, January 4, 1999). Giron then summoned
her husband and other companions to look for Mayias attacker but was unable to find
him. Giron then proceeded to Hermie Ponseca and Osias Ponseca, Mayias parents, to
inform them of what happened (p. 5, TSN, January 5, 1999; p. 2, TSN, January 19,
1999).

When her parents asked Mayia if she knew her assailant, the latter answered the name
Johnny. (id.) The couple brought their daughter to the President Ramon Magsaysay
Memorial Hospital for medical examination (p. 2, TSN, February 24, 1999). She was
examined by Dra. Editha Dela Cruz Divino, who issued a medico-legal certificate
dated January 23, 1997 stating the following:
a. Bleeding of genitalia coming from median laceration at the vaginal floor
around four (4) centimeters in size. Possible cause, a fall and then
hitting a sharp object and also an alleged sexual assault (p. 4,
TSN, February 24, 1999).
b. Genitalia had hymenal lacerations at 3, 6, 9 and 12 oclock positions.
(pp. 4-6 id.)
Because of the extent of the damage on her genitals, Mayia undertook an IV sedation
operation to repair her lacerations (p. 6, id.) During her confinement at the hospital,
the Ponseca couple reported the incident to the Palauig PNP Police Station and
recounted their daughters narration including the name of the culprit as Johnny who,
according to their neighbors, was a worker at the fishpond of Bartolome Tolentino
(pp. 11-12, TSN, January 5, 1999). Police operatives then proceeded to the said
fishpond and arrested appellant. After her discharge from the hospital, Mayia learned
that appellant was already apprehended (pp. 3-8, TSN, January 5, 1999). In the police
station, she was able to positively identify the appellant as the person who sexually
assaulted her (p. 18, TSN, December 15, 1998).
[7]

Appellant denied raping Mayia. Appellant testified that on the date of the alleged
rape incident, he was working at a fishpond at Macarang, Zambales. He heard of the
rape of a young girl from his manager, Bartolome Tolentino (Tolentino for brevity).
Appellant further testified that on January 25, 1997, policemen went to the fishpond
where he worked. The policemen arrested appellant and brought him to the police
station at Palauig. Later, the policemen took him to the municipal jail of Palauig.
[8]

On cross-examination, appellant testified that his nickname is not Johnny but

Jessie. He testified that on January 17, 1997, at around 12 oclock noon, he left the
fishpond and walked home to Barangay Alwa which was about thirty meters from the
fishpond.
[9]

[10]

The defense formally offered the testimony of witness Tolentino to prove that
appellant was employed as caretaker of Tolentinos fishpond for almost two years before
the alleged rape incident. Appellant was purportedly of good moral character while
employed as a fishpond caretaker. The prosecution admitted the offer of
testimony. Hence, the trial court dispensed with the testimony of Tolentino in open court.
[11]

After trial, the court a quo rendered judgment on October 26, 1999, the dispositive
portion of which reads:
[12]

WHEREFORE, foregoing considered, accused Jesus Perez y Sabung (SIC) is found

GUILTY beyond reasonable doubt of the crime of Statutore Rape, defined and
penalized under Article 335 of the Revised Penal Code with the qualifying
circumstance that the victim was only 6 years old at the time of the commission of the
offense, in relation to Section 5 (b), Article III, Republic Act 7610, and is sentenced to
suffer the penalty of DEATH. Jesus Perez is directed to pay to the private complainant
the amount of Seventy-Five Thousand Pesos (P75,000.00) as and by way of civil
indemnity and Fifty Thousand (P50,000.00) as and by way of moral damages.
Hence, this automatic review.
In his brief, appellant raises the following lone assignment of error:

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF

THE APPELLANT HAS BEEN PROVEN BEYOND REASONABLE DOUBT.
Appellant contends that his identification in open court by Mayia was highly
irregular.Appellant points out that the prosecutor had already identified him as the man
wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged
rapist. Appellant stresses that when Mayia identified him in open court, she referred to
him as a man named Johnny and did not give any description or any identifying
mark. Moreover, appellant claims he was alone in the cell when Mayia identified him
after the police arrested him. Appellant bewails that the identification was not done with
the usual police line-up.
Appellants contention is untenable.
As a rule, leading questions are not allowed. However, the rules provide for
exceptions when the witness is a child of tender years as it is usually difficult for such
child to state facts without prompting or suggestion. Leading questions are necessary
to coax the truth out of their reluctant lips. In the case at bar, the trial court was justified
in allowing leading questions to Mayia as she was evidently young and unlettered,
making the recall of events difficult, if not uncertain. As explained in People v. Rodito
Dagamos:
[13]

[14]

[15]

[16]

[17]

The trend in procedural law is to give wide latitude to the courts in exercising control
over the questioning of a child witness. The reasons are spelled out in our Rule on
Examination of a Child Witness, which took effect on December 15, 2000, namely, (1)
to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a
form appropriate to the developmental level of the child, (3) to protect children from
harassment or undue embarrassment, and (4) avoid waste of time.Leading questions in
all stages of examination of a child are allowed if the same will further the interests of
justice.

The Court has repeatedly stated that it is highly inconceivable for a child of tender
age, inexperienced in the ways of the world, to fabricate a charge of defloration,
undergo a medical examination of her private part, subject herself to public trial, and
tarnish her familys honor and reputation, unless she was motivated by a strong desire to
seek justice for the wrong committed against her.
[18]

Mayia recounted her harrowing experience, thus:

Q What time was this when Johnny introduced himself to you?
A I do not recall, mam.
Q Was it in the morning, noontime or in the afternoon or in the evening?
A Noontime, mam.
Q So, when Johnny said, Ako si Johnny, what did you do?
A None, mam.
Q After that when Johnny said, Ako si Johnny, what happened?
A He strangled (sinakal) me.
Q Were there persons around in the place when Johnny strangled you?
A None, mam.
Q So, what did he do then after he strangled you?
A He boxed me on my stomach, mam.
Q When he boxed you on your stomach, what happened to you?
A I was shocked, mam.
Q Did you fall down?
A Before that, I was already lying down, so when he boxed me, I was shocked.
Q You said that you were already lying down. Who made you lie down?
A The person, mam.
Q Why were you shocked, Mayia?
A Because he strangled me and boxed me.
Q After he boxed you on your abdomen, what happened? What else did he do to you?
A There was a dog that arrived in the place and it barked at us. Then Johnny moved in
a hurry by penetrating my private part and after he dressing (SIC) me, he ran
away.
Q You said that Johnny penetrated your private part. With what instrument did he use
in penetrating your private part?
A His penis, mam.
Q What was he wearing at that time?
A A black denim, mam.

Q When he used his penis in entering your private part, did he remove his pants?
A No, mam.
Q What did he do with his pants?
A He brought out his penis, mam.
Q You mean to say Mayia, he lowered his pants?
A Yes, mam.
Q What about you, were you wearing any panty?
A Yes, mam.
Q What was your clothes at that time?
A A dress, mam.
Q When his penis entered your vagina Mayia, did he remove your panty?
A Yes, mam.[19]

The identity of appellant as the rapist has been established by the clear, convincing
and straightforward testimony of Mayia. During the trial, she testified as follows:
Q Mayia, there is a man sitting wearing orange t-shirt, do you know this man?
A Yes, mam.
Q Do you know his name?
A Yes, mam.
Q What is his name?
A Johnny, mam.
Q Why do you know him?
A Because he introduced himself to me.
Q Where did he introduced himself to you?
A At Sulok, mam.
Q Sulok is a place?
A Yes, mam.
Q Do you have any companion when this man introduced himself to you?
A None, mam.
Q How did he introduce himself to you?
A The man introduced himself to me by saying, Kilala mo ba ako? Hindi po. Ako si
Johnny.[20]

The trial court further asked Mayia:

Q You were talking of a certain Johnny. s this Johnny in court now?

A Yes, sir.
Q Can you point to him?
A Yes, sir.
Q Point to him.
A (Witness pointing to the person sitting at the accused bench and when asked of his
name answered Jesus Perez)
Q Is this Johnny whom you point to the person whom you saw in that Sulok?
A Yes, sir. [21]

Mayias simple, positive and straightforward recounting on the witness stand of her
harrowing experience lends credence to her accusation. Her tender age belies any
allegation that her accusation was a mere invention impelled by some ill-motive. As the
Court has stressed in numerous cases, when a woman or a child victim says that she
has been raped, she in effect says all that is necessary to show that rape was indeed
committed.
[22]

Mayia had a clear sight of appellants face since the rape occurred at noontime.
Her proximity to appellant during the sexual assault leaves no doubt as to the
correctness of her identification for a man and woman cannot be physically closer to
each other than during the sexual act. Thus, even if Mayia did not give the identifying
marks of appellant, her positive identification of appellant sufficed to establish clearly
the identity of her sexual assailant.
[23]

[24]

Appellants claim that the police improperly suggested to Mayia to identify appellant
is without basis. True, Mayia did not identify appellant in a police line-up when Mayia
identified appellant in his cell. However, appellant, in his testimony admitted that he had
two other companions in his cell. Moreover, the Court has held that there is no law
requiring a police line-up as essential to a proper identification. Even without a police
line-up, there could still be a proper identification as long as the police did not suggest
such identification to the witnesses. The records are bereft of any indication that the
police suggested to Mayia to identify appellant as the rapist.
[25]

[26]

Mayias identification in open court of appellant as her rapist dispels any doubt as to
the proper identification of appellant. Mayia positively identified and pointed to appellant
as her rapist. We are satisfied that her testimony, by itself, is sufficient identification of
her rapist. As held in People v. Marquez:
[27]

xxx. Indeed, the revelation of an innocent child whose chastity was abused deserves
full credit, as the willingness of complainant to face police investigation and to
undergo the trouble and humiliation of a public trial is eloquent testimony of the truth
of her complaint. Stated differently, it is most improbable for a five-year old girl of
tender years, so innocent and so guileless as the herein offended party, to brazenly
impute a crime so serious as rape to any man if it were not true.

In his Reply Brief, appellant contends that even assuming that the guilt of appellant
has been proven beyond reasonable doubt, the trial court erred in imposing the death
penalty.Appellant maintains that the death penalty cannot be imposed on him for failure
of the prosecution to prove Mayias age by independent evidence. Appellant points out
that while Mayias birth certificate was duly marked during the pre-trial, it was not
presented and identified during the trial. Appellant asserts that Mayias minority must not
only be specifically alleged in the Information but must also be established beyond
reasonable doubt during the trial.
Appellants argument deserves scant consideration.
At the pre-trial, the parties mutually worked out a satisfactory disposition of the
criminal case. Appellant, assisted by counsel, signed a Pre-Trial Agreement which, as
incorporated in the Pre-Trial Order, stated that:
[28]

x x x.
3. The victim in this case, Mayia P. Ponseca was born on 23 May 1990 as
evidenced by her birth certificate;
x x x. (Emphasis supplied)
During the pre-trial, the prosecution marked in evidence Mayias birth certificate as
Exhibit A. The prosecution submitted its Offer of Evidence which included Exhibit A, a
certified true copy of Mayias birth certificate. The trial court admitted Exhibit A without
any objection from the defense.
[29]

[30]

[31]

The purpose of pre-trial is to consider the following: (a) plea bargaining; (b)
stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of
objections to admissibility of evidence; (e) modification of the order of trial if the accused
admits the charge but interposes lawful defenses; and (f) such matters as will promote a
fair and expeditious trial of the criminal and civil aspects of the case. Facts stipulated
and evidence admitted during pre-trial bind the parties. Section 4, Rule 118 of the
Revised Rules of Criminal Procedure provides:
[32]

[33]

SEC. 4. Pre-trial order. - After the pre-trial conference, the court shall issue an order
reciting the actions taken, the facts stipulated, and evidence marked. Such order shall
bind the parties, limit the trial to matters not disposed of, and control the course of
the action during the trial, unless modified by the court to prevent manifest injustice.
(Emphasis supplied)
Moreover, Mayia herself testified in open court as to her age. During the trial on
December 15, 1998, which was about twenty-three (23) months after the rape incident
occurred on January 17, 1997, Mayia testified on cross-examination that she was 8
years old last May 23. Thus, by deduction, since Mayia was born on May 23, 1990 as
shown in her birth certificate, she was about six (6) years and seven (7) months old on
January 17, 1997, the day the crime took place. We rule that the prosecution has
[34]

indisputably proven that Mayia was below seven years old at the time appellant raped
her.
Finally, the trial court was correct in imposing the death penalty on appellant. Under
Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No.
7659, the death penalty shall be imposed if the crime of rape is committed against a
child below seven (7) years old. Mayia was six (6) years and seven (7) months old when
appellant raped her.
[35]

[36]

If rape is qualified by any of the circumstances warranting the imposition of the

death penalty, the civil indemnity for actual or compensatory damages is mandatory.
Following prevailing jurisprudence, the civil indemnity is fixed at P75,000.00. In
addition, moral damages of P50,000.00 should also be awarded to the rape victim
without need for pleading or proving it.
[37]

[38]

[39]

WHEREFORE, the Decision dated October 26, 1999 of the Regional Trial Court of
Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S.
Perez guilty beyond reasonable doubt of the crime of qualified rape, sentencing him to
suffer the death penalty, and ordering him to pay the victim Mayia P. Ponseca the
amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages, is
AFFIRMED in toto.
[40]

In accordance with Article 83 of the Revised Penal Code, as amended by Section

25 of the Republic Act No. 7659, upon the finality of this Decision, let the records of this
case be forthwith forwarded to the Office of the President of the Philippines for possible
exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., and Azcuna, JJ.,concur.
Ynares-Santiago, J., on leave.

[1]

EN BANC

[G.R. No. 142556. February 5, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS PEREZ y

SEBUNGA, accused-appellant.
DECISION

PER CURIAM:

For automatic review is the Decision dated October 26, 1999 of the Regional Trial
Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant
Jesus S. Perez (appellant for brevity), guilty of raping Mayia P. Ponseca (Mayia for
brevity) and imposing on appellant the death penalty.
[1]

On January 22, 1997, the Second Assistant Provincial Prosecutor of Zambales

filed an Information charging appellant with the crime of rape penalized under Article
335 of the Revised Penal Code in relation to Section 5 (b), Article III of Republic Act No.
7610, committed as follows:
[2]

[3]

That on or about the 17th day of January, 1997 at 12:00 noon at Sitio Baco, Brgy.
Macarang, in the Municipality of Palauig, Province of Zambales, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, with lewd design and
by means of coercion, inducement and other consideration, did then and there,
wilfully (sic), unlawfully and feloniously have sexual intercourse with one Mayia P.
Ponseca, a minor of 6 years old, without her consent and against her will, to the
damage and prejudice of the latter.
Upon arraignment, appellant, assisted by counsel de officio Atty. Genaro N.
Montefalcon, pleaded not guilty to the offense charged. Subsequently, the trial court
allowed the withdrawal of Atty. Montefalcon as counsel for health reasons. The trial
court appointed Atty. Roberto Blanco as appellants counsel de oficio.
[4]

[5]

At the pre-trial, the prosecution and defense stipulated on the following facts:

1. The identity of the accused;

2. The accused was at the time of the incident in the vicinity thereof;
3. The victim in this case, Mayia P. Ponseca, was born on 23 May 1990 as evidenced
by her birth certificate;
4. That after the incident, the child was subjected to a medico-legal examination to
which a medico-legal certificate was issued by Dr. Editha Divino.
The prosecution marked in evidence the birth certificate of the victim Mayia O.
Ponseca as Exhibit A, and the medico-legal certificate issued by Dr. Editha Divino as
Exhibit B.
[6]

Thereafter, trial ensued. The prosecution presented the following witnesses: the
victim, Mayia Ponseca; the victims mother, Hermie Ponseca; the victims father, Osias
Ponseca; Virginia Espejo Giron; and Dr. Editha dela Cruz Divino. On the other hand, the
defense presented appellant and his employer, Bartolome Tolentino.

The Office of the Solicitor General (OSG for brevity) summarized the prosecutions
version of the incident in the appellees brief, to wit:

On January 17, 1997, about noontime, in Sitio Baco, Barangay Macarang, Palauig,
Zambales, six-year old Mayia Ponseca was walking along Sulok on her way to her
house in Sitio Camiling when appellant Jesus Sebunga Perez approached her (pp. 7-8,
TSN, December 15, 1998). Appellant introduced himself as Johnny and immediately
afterwards, strangled her neck and boxed her abdomen (p. 10, TSN, December 15,
1998). Still in shock, Mayia fell down (id.). At that point, a dog arrived and barked at
them.
Appellant then proceeded to lower his black denim pants while simultaneously
removing Mayias panty. He then inserted his penis inside Mayias vagina (p. 11, id.).
Mayia felt excruciating pain in her private parts (sic) but was not able to repel her
aggressor whose strength and weight totally engulfed her. Her only recourse was to
cry while her young body was being ravished (p. 13, id.).
After satisfying his beastly desires, appellant raised his pants and ran away (p. 14, id.).
Notwithstanding that her vagina was bleeding profusely and her dress now covered
with her own blood, Mayia managed to stand up and seek help. She ran to the house
of Virginia Giron, which was only fifty (50) meters away from the scene of the
crime. In fact, Giron was outside when she heard her dog barking (apparently, it was
the same dog barking at appellant while he was consummating his lust on Mayia, pp.
2-3, TSN, January 12, 1999; p. 11, TSN, December 15, 1998). Looking at the
direction of the noise, she saw a confused Mayia approaching her with blood dripping
from her private parts and thighs. When Giron asked Mayia what happened, the latter
shouted ni-rape ako, ni-rape ako (p. 4, TSN, January 4, 1999). Giron then summoned
her husband and other companions to look for Mayias attacker but was unable to find
him. Giron then proceeded to Hermie Ponseca and Osias Ponseca, Mayias parents, to
inform them of what happened (p. 5, TSN, January 5, 1999; p. 2, TSN, January 19,
1999).
When her parents asked Mayia if she knew her assailant, the latter answered the name
Johnny. (id.) The couple brought their daughter to the President Ramon Magsaysay
Memorial Hospital for medical examination (p. 2, TSN, February 24, 1999). She was
examined by Dra. Editha Dela Cruz Divino, who issued a medico-legal certificate
dated January 23, 1997 stating the following:
a. Bleeding of genitalia coming from median laceration at the vaginal floor
around four (4) centimeters in size. Possible cause, a fall and then
hitting a sharp object and also an alleged sexual assault (p. 4,
TSN, February 24, 1999).

b. Genitalia had hymenal lacerations at 3, 6, 9 and 12 oclock positions.

(pp. 4-6 id.)
Because of the extent of the damage on her genitals, Mayia undertook an IV sedation
operation to repair her lacerations (p. 6, id.) During her confinement at the hospital,
the Ponseca couple reported the incident to the Palauig PNP Police Station and
recounted their daughters narration including the name of the culprit as Johnny who,
according to their neighbors, was a worker at the fishpond of Bartolome Tolentino
(pp. 11-12, TSN, January 5, 1999). Police operatives then proceeded to the said
fishpond and arrested appellant. After her discharge from the hospital, Mayia learned
that appellant was already apprehended (pp. 3-8, TSN, January 5, 1999). In the police
station, she was able to positively identify the appellant as the person who sexually
assaulted her (p. 18, TSN, December 15, 1998).
[7]

Appellant denied raping Mayia. Appellant testified that on the date of the alleged
rape incident, he was working at a fishpond at Macarang, Zambales. He heard of the
rape of a young girl from his manager, Bartolome Tolentino (Tolentino for brevity).
Appellant further testified that on January 25, 1997, policemen went to the fishpond
where he worked. The policemen arrested appellant and brought him to the police
station at Palauig. Later, the policemen took him to the municipal jail of Palauig.
[8]

On cross-examination, appellant testified that his nickname is not Johnny but

Jessie. He testified that on January 17, 1997, at around 12 oclock noon, he left the
fishpond and walked home to Barangay Alwa which was about thirty meters from the
fishpond.
[9]

[10]

The defense formally offered the testimony of witness Tolentino to prove that
appellant was employed as caretaker of Tolentinos fishpond for almost two years before
the alleged rape incident. Appellant was purportedly of good moral character while
employed as a fishpond caretaker. The prosecution admitted the offer of
testimony. Hence, the trial court dispensed with the testimony of Tolentino in open court.
[11]

After trial, the court a quo rendered judgment on October 26, 1999, the dispositive
portion of which reads:
[12]

WHEREFORE, foregoing considered, accused Jesus Perez y Sabung (SIC) is found

GUILTY beyond reasonable doubt of the crime of Statutore Rape, defined and
penalized under Article 335 of the Revised Penal Code with the qualifying
circumstance that the victim was only 6 years old at the time of the commission of the
offense, in relation to Section 5 (b), Article III, Republic Act 7610, and is sentenced to
suffer the penalty of DEATH. Jesus Perez is directed to pay to the private complainant
the amount of Seventy-Five Thousand Pesos (P75,000.00) as and by way of civil
indemnity and Fifty Thousand (P50,000.00) as and by way of moral damages.

Hence, this automatic review.

In his brief, appellant raises the following lone assignment of error:

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF

THE APPELLANT HAS BEEN PROVEN BEYOND REASONABLE DOUBT.
Appellant contends that his identification in open court by Mayia was highly
irregular.Appellant points out that the prosecutor had already identified him as the man
wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged
rapist. Appellant stresses that when Mayia identified him in open court, she referred to
him as a man named Johnny and did not give any description or any identifying
mark. Moreover, appellant claims he was alone in the cell when Mayia identified him
after the police arrested him. Appellant bewails that the identification was not done with
the usual police line-up.
Appellants contention is untenable.
As a rule, leading questions are not allowed. However, the rules provide for
exceptions when the witness is a child of tender years as it is usually difficult for such
child to state facts without prompting or suggestion. Leading questions are necessary
to coax the truth out of their reluctant lips. In the case at bar, the trial court was justified
in allowing leading questions to Mayia as she was evidently young and unlettered,
making the recall of events difficult, if not uncertain. As explained in People v. Rodito
Dagamos:
[13]

[14]

[15]

[16]

[17]

The trend in procedural law is to give wide latitude to the courts in exercising control
over the questioning of a child witness. The reasons are spelled out in our Rule on
Examination of a Child Witness, which took effect on December 15, 2000, namely, (1)
to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a
form appropriate to the developmental level of the child, (3) to protect children from
harassment or undue embarrassment, and (4) avoid waste of time.Leading questions in
all stages of examination of a child are allowed if the same will further the interests of
justice.
The Court has repeatedly stated that it is highly inconceivable for a child of tender
age, inexperienced in the ways of the world, to fabricate a charge of defloration,
undergo a medical examination of her private part, subject herself to public trial, and
tarnish her familys honor and reputation, unless she was motivated by a strong desire to
seek justice for the wrong committed against her.
[18]

Mayia recounted her harrowing experience, thus:

Q What time was this when Johnny introduced himself to you?
A I do not recall, mam.
Q Was it in the morning, noontime or in the afternoon or in the evening?

A Noontime, mam.
Q So, when Johnny said, Ako si Johnny, what did you do?
A None, mam.
Q After that when Johnny said, Ako si Johnny, what happened?
A He strangled (sinakal) me.
Q Were there persons around in the place when Johnny strangled you?
A None, mam.
Q So, what did he do then after he strangled you?
A He boxed me on my stomach, mam.
Q When he boxed you on your stomach, what happened to you?
A I was shocked, mam.
Q Did you fall down?
A Before that, I was already lying down, so when he boxed me, I was shocked.
Q You said that you were already lying down. Who made you lie down?
A The person, mam.
Q Why were you shocked, Mayia?
A Because he strangled me and boxed me.
Q After he boxed you on your abdomen, what happened? What else did he do to you?
A There was a dog that arrived in the place and it barked at us. Then Johnny moved in
a hurry by penetrating my private part and after he dressing (SIC) me, he ran
away.
Q You said that Johnny penetrated your private part. With what instrument did he use
in penetrating your private part?
A His penis, mam.
Q What was he wearing at that time?
A A black denim, mam.
Q When he used his penis in entering your private part, did he remove his pants?
A No, mam.
Q What did he do with his pants?
A He brought out his penis, mam.
Q You mean to say Mayia, he lowered his pants?
A Yes, mam.
Q What about you, were you wearing any panty?
A Yes, mam.

Q What was your clothes at that time?

A A dress, mam.
Q When his penis entered your vagina Mayia, did he remove your panty?
A Yes, mam.[19]

The identity of appellant as the rapist has been established by the clear, convincing
and straightforward testimony of Mayia. During the trial, she testified as follows:
Q Mayia, there is a man sitting wearing orange t-shirt, do you know this man?
A Yes, mam.
Q Do you know his name?
A Yes, mam.
Q What is his name?
A Johnny, mam.
Q Why do you know him?
A Because he introduced himself to me.
Q Where did he introduced himself to you?
A At Sulok, mam.
Q Sulok is a place?
A Yes, mam.
Q Do you have any companion when this man introduced himself to you?
A None, mam.
Q How did he introduce himself to you?
A The man introduced himself to me by saying, Kilala mo ba ako? Hindi po. Ako si
Johnny.[20]

The trial court further asked Mayia:

Q You were talking of a certain Johnny. s this Johnny in court now?
A Yes, sir.
Q Can you point to him?
A Yes, sir.
Q Point to him.
A (Witness pointing to the person sitting at the accused bench and when asked of his
name answered Jesus Perez)
Q Is this Johnny whom you point to the person whom you saw in that Sulok?
A Yes, sir. [21]

Mayias simple, positive and straightforward recounting on the witness stand of her
harrowing experience lends credence to her accusation. Her tender age belies any
allegation that her accusation was a mere invention impelled by some ill-motive. As the
Court has stressed in numerous cases, when a woman or a child victim says that she
has been raped, she in effect says all that is necessary to show that rape was indeed
committed.
[22]

Mayia had a clear sight of appellants face since the rape occurred at noontime.
Her proximity to appellant during the sexual assault leaves no doubt as to the
correctness of her identification for a man and woman cannot be physically closer to
each other than during the sexual act. Thus, even if Mayia did not give the identifying
marks of appellant, her positive identification of appellant sufficed to establish clearly
the identity of her sexual assailant.
[23]

[24]

Appellants claim that the police improperly suggested to Mayia to identify appellant
is without basis. True, Mayia did not identify appellant in a police line-up when Mayia
identified appellant in his cell. However, appellant, in his testimony admitted that he had
two other companions in his cell. Moreover, the Court has held that there is no law
requiring a police line-up as essential to a proper identification. Even without a police
line-up, there could still be a proper identification as long as the police did not suggest
such identification to the witnesses. The records are bereft of any indication that the
police suggested to Mayia to identify appellant as the rapist.
[25]

[26]

Mayias identification in open court of appellant as her rapist dispels any doubt as to
the proper identification of appellant. Mayia positively identified and pointed to appellant
as her rapist. We are satisfied that her testimony, by itself, is sufficient identification of
her rapist. As held in People v. Marquez:
[27]

xxx. Indeed, the revelation of an innocent child whose chastity was abused deserves
full credit, as the willingness of complainant to face police investigation and to
undergo the trouble and humiliation of a public trial is eloquent testimony of the truth
of her complaint. Stated differently, it is most improbable for a five-year old girl of
tender years, so innocent and so guileless as the herein offended party, to brazenly
impute a crime so serious as rape to any man if it were not true.
In his Reply Brief, appellant contends that even assuming that the guilt of appellant
has been proven beyond reasonable doubt, the trial court erred in imposing the death
penalty.Appellant maintains that the death penalty cannot be imposed on him for failure
of the prosecution to prove Mayias age by independent evidence. Appellant points out
that while Mayias birth certificate was duly marked during the pre-trial, it was not
presented and identified during the trial. Appellant asserts that Mayias minority must not
only be specifically alleged in the Information but must also be established beyond
reasonable doubt during the trial.
Appellants argument deserves scant consideration.

At the pre-trial, the parties mutually worked out a satisfactory disposition of the
criminal case. Appellant, assisted by counsel, signed a Pre-Trial Agreement which, as
incorporated in the Pre-Trial Order, stated that:
[28]

x x x.
3. The victim in this case, Mayia P. Ponseca was born on 23 May 1990 as
evidenced by her birth certificate;
x x x. (Emphasis supplied)
During the pre-trial, the prosecution marked in evidence Mayias birth certificate as
Exhibit A. The prosecution submitted its Offer of Evidence which included Exhibit A, a
certified true copy of Mayias birth certificate. The trial court admitted Exhibit A without
any objection from the defense.
[29]

[30]

[31]

The purpose of pre-trial is to consider the following: (a) plea bargaining; (b)
stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of
objections to admissibility of evidence; (e) modification of the order of trial if the accused
admits the charge but interposes lawful defenses; and (f) such matters as will promote a
fair and expeditious trial of the criminal and civil aspects of the case. Facts stipulated
and evidence admitted during pre-trial bind the parties. Section 4, Rule 118 of the
Revised Rules of Criminal Procedure provides:
[32]

[33]

SEC. 4. Pre-trial order. - After the pre-trial conference, the court shall issue an order
reciting the actions taken, the facts stipulated, and evidence marked. Such order shall
bind the parties, limit the trial to matters not disposed of, and control the course of
the action during the trial, unless modified by the court to prevent manifest injustice.
(Emphasis supplied)
Moreover, Mayia herself testified in open court as to her age. During the trial on
December 15, 1998, which was about twenty-three (23) months after the rape incident
occurred on January 17, 1997, Mayia testified on cross-examination that she was 8
years old last May 23. Thus, by deduction, since Mayia was born on May 23, 1990 as
shown in her birth certificate, she was about six (6) years and seven (7) months old on
January 17, 1997, the day the crime took place. We rule that the prosecution has
indisputably proven that Mayia was below seven years old at the time appellant raped
her.
[34]

Finally, the trial court was correct in imposing the death penalty on appellant. Under
Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No.
7659, the death penalty shall be imposed if the crime of rape is committed against a
child below seven (7) years old. Mayia was six (6) years and seven (7) months old when
appellant raped her.
[35]

[36]

If rape is qualified by any of the circumstances warranting the imposition of the

death penalty, the civil indemnity for actual or compensatory damages is mandatory.
[37]

Following prevailing jurisprudence, the civil indemnity is fixed at P75,000.00. In

addition, moral damages of P50,000.00 should also be awarded to the rape victim
without need for pleading or proving it.
[38]

[39]

WHEREFORE, the Decision dated October 26, 1999 of the Regional Trial Court of
Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S.
Perez guilty beyond reasonable doubt of the crime of qualified rape, sentencing him to
suffer the death penalty, and ordering him to pay the victim Mayia P. Ponseca the
amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages, is
AFFIRMED in toto.
[40]

In accordance with Article 83 of the Revised Penal Code, as amended by Section

25 of the Republic Act No. 7659, upon the finality of this Decision, let the records of this
case be forthwith forwarded to the Office of the President of the Philippines for possible
exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., and Azcuna, JJ.,concur.
Ynares-Santiago, J., on leave.

[1]

SECOND DIVISION

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

THE

PEOPLE
OF
THE
PHILIPPINES, appellee,
vs. JAIME
CASTILLANO, SR. alias Talino, RONALD CASTILLANO alias
Nono and JAIME CASTILLANO, JR. alias Junjun, accused,

RONALD CASTILLANO alias Nono and JAIME CASTILLANO, JR. alias

Junjun, appellants.
DECISION
CALLEJO, SR., J.:

This is an appeal from the Decision of the Regional Trial Court of Pili, Camarines
Sur, Branch 31, in Criminal Case No. P-2542, convicting appellants Ronald Castillano
alias Nono and Jaime Castillano, Jr. of murder, meting on each of them the penalty
of reclusion perpetua and ordering them to pay, jointly and severally, damages to the
heirs of the victim Diosdado Volante.
[1]

The Evidence or the Prosecution

Diosdado Volante, who eked out a living as a farmer, his wife Luz, and their four
children lived in their farmland located in the outskirt of Sitio Danawan, Barangay
Sagrada, Bula, Camarines Sur.
[2]

About 200 meters away from Diosdados farmland was the farmhouse of Jaime
Castillano, Sr. He tasked his son, Jaime Castillano, Jr., to take care of the farmhouse
and allowed him to reside there. Jaime, Sr., his wife Concepcion, their son Ronald
(Nono) Castillano and other children lived at their family residence in Sagrada, Bula,
Camarines Sur, approximately three kilometers away from their farmhouse in Sitio
Danawan.
[3]

[4]

[5]

Sometime in the early part of June 1996, Jaime, Sr. fired his gun indiscriminately.
Afraid that a stray bullet might hit any member of his family, Diosdado accosted Jaime,
Sr. and asked him to desist from firing his gun indiscriminately. Jaime, Sr. resented the
intrusion. He remonstrated that neighbors did not even complain about him firing his
gun. A heated altercation ensued. Jaime, Sr. then fired his gun towards the house of
Diosdado. The incident germinated deep animosity between the two and their
respective families. Jaime, Sr. always carried a bolo whenever he passed by the house
of Diosdado.
[6]

[7]

On July 8, 1996, between 5:00 p.m. to 6:00 p.m., Levy Avila, a teacher, was in his
house doing some repairs. He noticed Jaime, Jr. and Ronald talking by the roadside
near the gate of his (Levys) house. Levy overheard the two planning to go to Diosdados
house. Jaime, Jr. and Ronald even told Levy: Ayaw namin kasing inaasar. Suspecting
that the two were intending to harm Diosdado, Levy urged them to amicably settle their
differences with Diosdado.
At around 8:00 p.m., Luz and Diosdado were about to retire for the night. Their
children were already fast asleep. Diosdado was tired after a days work of spraying
chemicals at the rice field. He reclined on a bamboo bench near the main door of their
house. A kerosene lamp lighted the house. Suddenly, Luz heard voices near their
house. She saw Jaime, Sr. holding a flashlight and his two sons, Jaime Jr. and Ronald,
on their way to the house. Luz immediately alerted her husband and told him that the
Castillanos were in their yard. However, Diosdado was nonchalant and simply told Luz
not to mind them. All of a sudden, Jaime, Sr. fired his gun at Diosdados house. Terrified,
Luz hastily carried her baby daughter Mary Jane, sought cover and hid near the rear
door. She was about five meters away from her husband when the Castillanos barged
inside their house and ganged up on Diosdado. Jaime, Jr. and Ronald, armed with
bladed weapons, took turns in stabbing Diosdado. Ronald stabbed Diosdado on the
right side of his breast, right thigh and on the back. He also struck him with a one-meter
long pipe. Not satisfied, Jaime, Sr. fired his gun hitting the right thigh of Diosdado. Luz
was so shocked by the sudden turn of events. To silence her one year old baby, she
breastfed her. As soon as she could, Luz fled to the rice paddies where she hid for a
time. The Castillanos fled on board a jeep parked in the NIA road about 200 meters
from the house of Diosdado. When Luz returned to their house, she saw her husband
sprawled on the ground in a pool of his own blood. Diosdado, at the point of death,
asked her for help. Not knowing what to do, Luz lost no time and ran to the house of
their neighbor Celedonio Espiritu for help. Celedonio rushed to the Bula Police Station
and reported the incident.
A team composed of SPO4 Jaime Javier, SPO3 Jaime Bellano and SPO3 Nilo
Fornillos, the duty investigator, went to the crime scene to conduct an on-the-spot
investigation. Photographs were taken of the cadaver. SPO3 Fornillo drew rough
sketch of the scene. The policemen saw a bolo at the place where Diosdado was
sprawled near the door of their house. A scabbard of a bolo was found a meter away
from the house of Diosdado. The policemen also found a bullet hole on the wall of the
house. Thereafter, the cadaver was placed on a hamak [hammock] brought to the
police station. The police investigators turned over the scabbard and bolo to the desk
officer of the police station.
[8]

[9]

[10]

[11]

[12]

[13]

[14]

[15]

From the police station, SPO4 Javier, SPO3 Bellano and Sgt. Rogelio Palacio
boarded their mobile police car and set out a manhunt for the malefactors. They
proceeded towards the boundary in Sto. Domingo where they put up a checkpoint. The
police officers inspected every vehicle that passed by. At around 12:45 a.m., SPO4
Javier halted a passenger jeepney. On board were Jaime, Sr. and his two sons, Jaime
Jr. and Ronald, each of whom carried a bag containing their clothes. The policemen
brought the Castillanos to the police station. The bags of Jaime, Jr. and Ronald were
[16]

turned over to the police investigators. The three were placed under arrest for the killing
of Diosdado. The policemen submitted their investigation report.
[17]

In the meantime, at 7:00 a.m., Dr. Evangeline Consolacion, the Municipal Health
Officer of Bula, conducted an autopsy on the cadaver of Diosdado. Her autopsy report
revealed the following findings:

External Findings
1. Incise Wound 3 cm Superior pinna R ear
2. Incise woud (sic) 10 cm. from nasal bridge extending to mandible R
3. Stab wound 2 cm.x 5 cm. Epigastrium R
4. Stab wound 2 cm.x 4 cm. Epigastrium L
5. Stab wound 2.5 cm. Middle third Arm R
6. Stab wound 2cm x 5 cm. posterior Back.
7. Amputating middle third finger L
8. Hacked wound posterior ankle L
9. Gunshot wound POE 2 x 2cm. with contusion collar medial aspect middle
third R thigh
No point of exit noted
Internal Findings:
Fracture femur with Foreign body bullet lodge in middle third femur with hematoma
about about 100 cc R thigh
Cause of Death; Hypovolemia secondary to Multiple Stab Wound

[18]

The doctor recovered a slug from the right thigh of Diosdado. She later signed the
victims post-mortem certificate of death. Senior Inspector Edgardo B. Sambo, Chief of
Police of Bula Police Station, filed with the Municipal Trial Court of Bula, Camarines Sur,
a criminal complaint for murder against the Castillano brothers. Judge Francisco O.
Tolentino conducted the preliminary examination and thereafter issued an order of
arrest against the Castillanos. No bail was recommended for their provisional release.
On July 9, 1996, Luz gave a sworn statement to the police investigators.
[19]

[20]

[21]

[22]

[23]

On July 10, 1996, the accused were transferred to the Tinangis Penal Farm. Senior
Inspector Sambo requested the PNP-CLRU5 Provincial Unit to conduct a paraffin test
on the Castillanos.
[24]

On July 12, 1997, Major Lorlie Arroyo, the Head Forensic Chemist of PNP-Region
5,conducted the paraffin test on the Castillanos. Ronald was found positive for
gunpowder residue. Jaime, Sr. and Jaime, Jr. were found negative for gunpowder
residue.
[25]

The MTC issued a subpoena requiring the accused to submit their counter-affidavits
from notice thereof. However, the accused failed to submit any counter-affidavit.
[26]

On August 2, 1996, an Information for murder was filed against Jaime, Sr., Ronald
and Jaime Jr. with the Regional Trial Court of Pili, Camarines Sur, Branch 31. The
accusatory portion of the Information reads:

That on or about the 8th day of July 1996 at about 8:00 oclock in the evening at
Barangay Sagrada, Municipality of Bula, Province of Camarines Sur, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and mutually helping one another with intent to kill with treachery and
evident premeditation armed with a handgun, bladed weapon and piece of wood did
then and there wilfully, unlawfully and feloniously attack, assault and shot and stab
one DIOSDADO VOLANTE y LOZANO inflicting upon the latter several mortal
wounds on the different parts of his body which caused his instantaneous death, to the
damage and prejudice of the heirs of said Diosdado Volante the amount of which to be
proven in Court.
ACTS CONTRARY TO LAW.

[27]

Upon their arraignment on August 29, 1996, accused Jaime Sr., Jaime, Jr and
Ronald, duly assisted by counsel de parte, Atty. Avelino Sales Jr., pleaded not guilty to
the offense charged. Thereafter, trial on the merits ensued.
[28]

Luz testified that when Diosdado was still alive, he had an annual income of over
P65,000. She spent P18,000 for the funeral services, P300 for religious services,
P9,111 for food and other expenses during her husbands wake and funeral. She
suffered sleepless nights and mental anguish for his sudden death.
[29]

[30]

[31]

The Defenses and Evidence of the Accused

Ronald admitted when he testified that he killed Diosdado but insisted that he did so
in self-defense and in defense of his brother Jaime, Jr. He asserted that his father
Jaime, Sr. and brother Jaime, Jr. had nothing to do with Diosdados death. Ronald
alleged that on September 8, 1996, at about 7:30 p.m., he was driving a passenger
jeepney on his way to the poblacion of Bula. Jaime, Jr. flagged down the jeepney. He

boarded the jeepney and told Ronald that he was instructed by their mother to go to the
house of Jose del Socorro to ask the latter to accompany them to their farmhouse in
order to fetch Gilda Albes. Ronald was armed with a .38 paltik gun, while Jaime, Jr. was
armed with a bolo sheathed in a scabbard. They fetched Jose and then Ronald parked
the jeepney at the NIA road. Jaime, Jr., who was holding a flashlight, walked along the
footpath on top of a pilapil (a narrow earthen barrier between two rice fields). Ronald
and Jose walked behind Jaime, Jr. As they passed by the house of Diosdado, a man
suddenly shouted: you shit, I have await (sic) for you for a while, why just now.
Surprised, Jaime, Jr. forthwith focused his flashlight towards the man who shouted. He
was aghast when he saw Diosdado armed with a bolo running towards them and about
to attack them with his bolo. Ronald shoved Jaime, Jr. who fell on the muddy rice
paddies below the pilapil. Ronald forthwith shot Diosdado. Diosdado took a step but fell
on a kneeling position. Diosdado brandished his bolo. Ronald shot Diosdado once more
but his gun misfired. To defend himself, Ronald took Jaime, Jr.s bolo and hacked
Diosdado to death. Ronald then fled from the scene and ran to the jeepney at the NIA
road. Jaime, Jr. and Jose boarded the jeep and left the scene. Ronald threw the bolo
along the way. He threw his gun into a rice farm in Danawan.
[32]

Jaime, Jr. corroborated the testimony of his brother. He, however, testified that he
did not see his brother hack and kill Diosdado. He claimed that when Ronald got hold of
his bolo, he ran away and proceeded to their jeepney which was then parked at the
roadside. Minutes later, Ronald followed. They then hastily went home to Sagrada and
told their father Jaime, Sr. of the incident.
[33]

Jose Del Socorro corroborated the testimony of Ronald. He testified that on July 8,
1996, at about 5:00 p.m. he was on his way home when he met Diosdado whom he
noticed to be inebriated and unruly Diosdado was throwing dried mud at the farmhouse
of the Castillanos and challenging the occupants of the farmhouse to a fight. He advised
Diosdado to stop what he was doing and warned him that he was only inviting trouble.
Diosdado told him to mind his own business and not to intervene. Jose thereafter left
Diosdado and went, home. When Jose arrived home, Dominador Bria was waiting for
him. He and Dominador talked business for a while and subsequently had dinner. After
some time, Jaime, Jr. and Ronald arrived at Joses house.
[34]

Concepcion Castillano testified that on July 8, 1996 at around 5:00 a.m., her son
Jaime, Jr. arrived home and told her that Diosdado threw stones at their farmhouse and
challenged everybody to a fight. She felt nervous and reported the incident to the police
and caused the same to be entered in the police blotter. Thereafter, she went home
and told her sons Jaime, Jr. and Ronald to immediately fetch Gilda. She, likewise,
instructed her sons to first drop by the house of Jose so that the latter could accompany
them to the farmhouse.
[35]

Jaime, Sr. vehemently denied any participation in the killing of Diosdado. He

claimed that at the time of the alleged incident, he was at their house in Sagrada,
bedridden due to his debilitating diabetes. He narrated to the trial court his medical
history and his confinement at the Mandaluyong Medical Center sometime in 1994. He
presented documents and receipts showing that he had been and is still under
medication. He declared that upon learning from his son Ronald that the latter killed
[36]

[37]

Diosdado, he advised his sons to look for a lawyer for legal representation. He told the
trial court that at around 11:30 p.m., he and his two sons had decided to go to
Andangnan in order to meet a cousin of his who knew of a lawyer named Atty. Rotor. As
they traversed the road to Andangan, they were stopped by some policemen at a
checkpoint and were invited to the police station where they were investigated and
eventually incarcerated.
[38]

Gilda Abes, the last witness for the defense, affirmed that she was the girlfriend of
Jaime, Jr. She told the trial court that on July 8, 1996 she was at the farmhouse of the
Castillanos. She corroborated the testimony of Jose that Diosdado was combative and
drunk. According to Gilda, Jaime, Jr. left the farmhouse before sundown to go to his
parents place at Sagrada. Jaime, Jr. never returned to the farmhouse that night. Gilda
learned of the incident the next morning when she went home.
[39]

The Verdict of the Trial Court

On December 22, 1998, the trial court rendered a decision convicting Jaime, Jr. and
Ronald of murder qualified by evident premeditation and treachery. The trial court
exonerated Jaime, Sr. of the crime on reasonable doubt. The trial court gave no
credence to Ronalds claim that he acted in self-defense. The decretal portion of the
decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered, finding the
two (2) accused RONALD CASTILLANO and JAIME CASTILLANO, JR. guilty
beyond reasonable doubt of the offense of MURDER and they are hereby sentenced to
suffer the penalty of imprisonment of RECLUSION PERPETUA with all the
accessory penalties imposed thereby. Further, as civil liability, the said two (2)
accused are hereby ordered to pay the legal heirs of the late Diosdado L. Volante,
through his widow Luz R. Volante, the total sum of ONE HUNDRED SEVENTYSEVEN THOUSAND FOUR HUNDRED TWENTY ONE PESOS (P177,421.00)
Philippine Currency as actual and moral damages including death indemnity, with
costs against both accused.
The accused Jaime Castillano, Sr. is hereby acquitted on the ground of reasonable
doubt.
SO ORDERED.

[40]

The accused, now appellants, interposed their appeal from the decision of the trial
court contending that it committed reversible errors:
(a) in rejecting appellant Ronalds plea of self-defense; and (b) in not acquitting
appellant Jaime, Jr. of the crime charged for failure of the prosecution to prove his guilt
beyond reasonable doubt.

Anent the first issue, appellant Ronald posits that he adduced proof that he acted in
self-defense when he stabbed the victim.
The Court disagrees with appellant Ronald. The Court has consistently held that like
alibi, self-defense is inherently weak because it is easy to fabricate. In a case where
self-defense and defense of relatives is invoked by the accused, the burden of evidence
is shifted to him to prove with clear and convincing evidence the essential requisites of
self-defense, namely (a) unlawful aggression on the part of the victim; (b) reasonable
necessity of the means employed to repel or prevent it; and (c) lack of sufficient
provocation on the part of the person defending himself. There can be no complete or
incomplete self-defense or defense of relatives unless the accused proves unlawful
aggression on the part of the victim. The accused must rely on the strength of his
evidence and not on the weakness of the evidence of the prosecution for by pleading
self-defense, the accused thereby admits having killed the victim and he can no longer
be exonerated of the crime charged if he fails to prove the confluence of the essential
requisites for self-defense and defense of a relative.
[41]

[42]

[43]

Appellant Ronald failed to discharge his burden.

First. After shooting and stabbing Diosdado, appellant Ronald fled from the situs
criminis.Flight from the situs of the crime is a veritable badge of guilt and negates his
plea of self-defense.
[44]

Second. Appellant Ronald threw away his paltik .38 gun and the bolo he used in
hacking Diosdado as he fled from the scene of the crime instead of surrendering the
same to the police authorities. Appellant Ronald admitted that he had no license for the
gun:
Q Where is that gun now that you use?
A I do not know, Your Honor, I think I was able to throw it away.
Q Where?
A At Danawan, Your Honor.
Q Danawan, is that a lake?
A No, Your Honor, it is a ricefarm.
Q What kind of gun is this?
A Paltik .38, Your Honor.[45]
ATTY. BALLEBAR:
q By the way, where is that bolo that you used in hacking and stabbing Diosdado
Volante?
a I do not know anymore because I was able to throw it away also when I ran away.
q Where is that place where you throw it?
a It was by the NIA road.

q You mentioned also a while ago that this gun that you said is a paltik and you throw it
away also, is it not?
a Yes, Maam.
q And that gun had been in your possession the whole day that you are driving up to
the time you shot the victim, Diosdado Volante?
a Yes, Maam.
q Do you have license to possess that firearm?
a None, Maam.[46]

The failure of appellant Ronald to surrender the bolo and his gun to the police
authorities belies his claim of self-defense.
Third. Appellant Ronald failed to report the incident to the police authorities even
when they arrested him. Curiously, he failed to inform the police officers who arrested
him that he acted in self-defense when he shot and stabbed the victim The resounding
silence of the appellant is another indicium of the incredibility of his defense.
Moreover, the records show that the municipal trial court issued a subpoena on July 9,
1996 requiring appellant Ronald to submit his counter-affidavit but he refused and/or
failed to submit the same despite service on him of the subpoena. It was only during the
trial that appellant Ronald, for the first time, invoked self-defense and defense of a
relative.
[47]

Fourth. The cadaver of the victim was found inside his house when the police
investigators arrived. This belies appellant Ronalds claim that he shot the victim in the
rice paddies, near his house and that he (appellant Ronald) took the bolo of appellant
Jaime, Jr. and used it to stab the victim. Appellant Ronald failed to prove his claim that
when the police investigators arrived in the victims house, they carried his (the victims)
body from the rice paddies to the house. The only evidence adduced by appellant
Ronald was his testimony which is hearsay, and besides being hearsay, it is speculative
and mere conjecture.
[48]

Fifth. Appellant Ronald hacked the victim no less than five times. Two of the stab
wounds sustained by the victim were at his back and posterior portion of his left ankle.
The number and nature of the wounds of the victim negate the appellants claim that he
shot the victim in self-defense. On the contrary, they prove that appellant Ronald was
determined to kill the victim.
[49]

Appellant Jaime, Jr. avers that the prosecution failed to prove his guilt beyond
reasonable doubt of the crime charged. He asserts that the testimony of Luz Volante,
the widow of Diosdado, was inconsistent with her testimony during the preliminary
examination in the municipal trial court and her sworn statement before the police
investigators as well as the testimonies of SPO1 Fornillos and SPO4 Jaime Favier, and
the physical evidence on record. The appellant catalogued said inconsistencies, thus:
1. He was lying on the bench inside just upon entering. (Tsn p. 9, 2/17/97).
-I was lying down with my husband inside our house but we were still awake (9th
Answer, Prel. Exam. MTC, 7/9/96).

2. JCS fired towards our house hitting the wall (Tsn p. 11, 2/17/96).
JCS fired twice (16th answer, Prel. Exam. MTC, 7/9/96).
JCS kept on firing the gun pointing towards the body of my husband (9th Answer,
Sworn Statement, PNP, 7/9/96).
JCS shot my husband three (3) times (Tsn p. 16, 2/17/97)
3. My husband was shot and hit on the right thigh (Tsn p. 14, 2/17/97). He was hit on
the left lap (23rd Answer, Prel. Exam. MTC, 7/9/96). He was hit on his side (Tsn p.
43, 2/17/97).
4. RC struck my husband with a 1-meter long Pipe (Tsn p. 13, 2/17/97). RC & JCJ
smashed my husband with a hard object (5th Answer, Sworn Statement, 7/9/96).
RC smashed my husband (22nd Answer, Prel. Exam. MTC, 7/9/96).
5. He was not able to fight back (Tsn p. 43, 2/17/97). He was standing and was trying
to parry the attack of the accused (26th Answer, Prel. Exam. 7/9/96).
6. When I went back to the house, he was still alive (Tsn p. 19, 2/17/97). - LV Yes, the
victim could have died instantly (Tsn p. 35, 2/3/97) With wounds sustained, he could
have died instantly (p. 8, Complainants Memorandum).
7. It was bright inside our house with a kerosene and a bottle lamp (Tsn pp. 33-34,
2/17/97). Only one kerosene lamp - bottle of gin with wick and light (Tsn p. 10,
4/1/97 - SPO1 Pornillos
Surrounding house, dark, total darkness (Tsn pp. 12-13, 4/1/97).
8. Scene Photography by Jaime Jornales (Tsn, p. 21, 2/17/97).
-do- by Mr. Lozano (Tsn., p. 12, 3/7/97).
9. SPO1 Nilo Pornillos learned of the incident at 8:00 oclock of July 8, 1996 (page
5 of Complainants Memorandum.
SPO4 Jaime Javier received report at 9:00 oclock P.M. of July 8, 1996 of
Complainants Memorandum.
SPO4 Jaime Javier received report at 8:00 P.M. (page 7 of Complainants
Memorandum).[50]

On the other hand, the Office of the Solicitor General asserts that the credibility of
the testimony of Luz, the prosecutions principal witness, cannot be impeached via her
testimony during the preliminary examination before the municipal trial court nor by her
sworn statement given to the police investigators for the reason that the transcripts and
sworn statement were neither marked and offered in evidence by the appellants nor
admitted in evidence by the trial court. Moreover, the appellants did not confront Luz
with her testimony during the preliminary examination and her sworn statement to the
police investigators. Luz was not, therefore, accorded a chance to explain the purported
inconsistencies, as mandated by Section 13, Rule 132 of the Revised Rules of
Evidence which reads:

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

can be impeached by evidence that he has made at other times statements inconsistent
with his present testimony, the statements must be related to him, with the
circumstances of the times and places and the persons present, and he must be asked
whether he made such statements, and if so, allowed to explain them. If the statements
be in writing they must be shown to the witness before any question is put to him
concerning them.
The Court agrees with the Office of the Solicitor General. Before the credibility of a
witness and the truthfulness of his testimony can be impeached by evidence consisting
of his prior statements which are inconsistent with his present testimony, the crossexaminer must lay the predicate or the foundation for impeachment and thereby prevent
an injustice to the witness being cross-examined. The witness must be given a chance
to recollect and to explain the apparent inconsistency between his two statements and
state the circumstances under which they were made. This Court held in People v.
Escosura that the statements of a witness prior to her present testimony cannot serve
as basis for impeaching her credibility unless her attention was directed to the
inconsistencies or discrepancies and she was given an opportunity to explain said
inconsistencies. In a case where the cross-examiner tries to impeach the credibility and
truthfulness of a witness via her testimony during a preliminary examination, this Court
outlined the procedure in United States vs. Baluyot, thus:
[51]

[52]

[53]

...For instance, if the attorney for the accused had information that a certain witness,
say Pedro Gonzales, had made and signed a sworn statement before the fiscal
materially different from that given in his testimony before the court, it was
incumbent upon the attorney when cross-examining said witness to direct his attention
to the discrepancy and to ask him if he did not make such and such statement before
the fiscal or if he did not there make a statement different from that delivered in court.
If the witness admits the making of such contradictory statement, the accused has the
benefit of the admission, while the witness has the opportunity to explain the
discrepancy, if he can. On the other hand, if the witness denies making any such
contradictory statement, the accused has the right to prove that the witness did make
such statement; and if the fiscal should refuse upon due notice to produce the
document, secondary evidence of the contents thereof would be admissible. This
process of cross-examining a witness upon the point of prior contradictory statements
is called in the practice of the American courts laying a predicate for the introduction
of contradictory statements. It is almost universally accepted that unless a ground is
thus laid upon cross-examination, evidence of contradictory statements are not
admissible to impeach a witness; though undoubtedly the matter is to a large extent in
the discretion of the court.
In this case, the appellants never confronted Luz with her testimony during the
preliminary examination and her sworn statement. She was not afforded any chance to

explain any discrepancies between her present testimony and her testimony during the
preliminary examination and her sworn statement. The appellants did not even mark
and offer in evidence the said transcript and sworn statement for the specific purpose of
impeaching her credibility and her present testimony. Unless so marked and offered in
evidence and accepted by the trial court, said transcript and sworn statement cannot be
considered by the court.
[54]

On the purported inconsistencies or discrepancies catalogued by the appellants

relating to the testimony of Luz during the preliminary examination and her sworn
statement, the Office of the Solicitor General posits that:

Sixth, Volante indeed testified that when she returned to their house from the ricefield,
after the three accused had left the premises, her husband was still alive (TSN,
February 17, 1997, p. 19) as he was still able to ask for her assistance (Ibid, p. 20).
But it is not inconsistent with the expert opinion of Dr. Consolacion that by the nature
of the wounds sustained by the victim, the latter could have died thereof
instantaneously (TSN, February 3, 1997, p. 35). It is clear that the said physician was
merely stating a possibility and not what happened in the instant case because in the
first place, she was not present at the scene right after the incident.
Seventh, Volante was insistent in her testimony that at the time of the commission of
the subject crime, it was bright inside their house because they had a kerosene lamp
and a bottle lamp both lighted up, one placed on the wall and the other on the ceiling
(Ibid, pp. 33, 52-53). While it may appear contradictory to SPO1 Pornillos testimony
that there was only a kerosene lamp at the time, he could not have been expected to
notice all the things found inside the house, including the bottle lamp, because he
might not have been familiar with its interiors. Or, he could have focused his attention
primarily on the body of the fallen victim and the objects that may be used later as
evidence against the perpetrators of the crime.
Eight, it is admitted that the testimonies of Volante and SPO1 Pornillos as to who took
pictures of the crime scene including the lifeless body of the victim are contradictory.
But again, such contradiction, being only minor and irrelevant, does not affect the
credibility of their testimonies.
And ninth, the apparently inconsistent statements of the prosecution witnesses (SPO1
Pornillos and SPO4 Javier) as to the exact time the subject incident was reported to
the police authorities are similarly irrelevant to the matters in issue. Of consequence
here is the fact that on the night the crime was committed, it was reported to the
authorities who later effected the arrest of the perpetrators thereof.
[55]

The Court fully agrees with the foregoing ruminations of the Office of the Solicitor
General. The inconsistencies adverted to by the appellants pertained only to minor and
collateral matters and not to the elements of the crime charged; hence, they do not

dilute the probative weight of the testimony. It bears stressing that even the most truthful
witness can make mistakes but such innocent lapses do not necessarily affect his
credibility. The testimonies of witnesses must be considered and calibrated in their
entirety and not by their truncated portions or isolated passages. And then again,
minor contradictions among several witnesses of a particular incident and aspect
thereof which do not relate to the gravamen of the crime charged are to be expected in
view of their differences in impressions, memory, vantage points and other related
factors.
[56]

[57]

Contrary to appellant Jaime, Jr.s claim, the prosecution adduced proof that he and
appellant Ronald conspired to kill and did kill Diosdado by their simultaneous acts of
stabbing the victim. As narrated by Luz:
ATTY. BALLEBAR:
Q Now after Jaime Castillano Sr. fired at your house, what happened next if any?
A They entered our house.
Q Now, when you say they to whom are you referring to?
A Jaime Castillano Sr., Jaime Castillano, Jr., and Ronald Castillano.
Q Now, where did they enter?
A In the other door.
Q Now at the time they entered your house was the door of your house closed or
opened?
A It was closed.
Q Now, after the accused entered your house what happened next, if any?
A Jaime Castillano Jr. stabbed my husband and also Ronal Castillano stabbed my
husband.
Q Now, was your husband hit by the stabbing of Ronald Castillano, Jr. (sic)?
A Yes, sir.
Q Will you tell us on what part of his body was he hit?
A My husband was still struck by Ronald Castillano hitting him on his right side of his
body including on his right thigh and also on his back..
ATTY. BALLEBAR:
Q Now, you said Ronald Castillano struck your husband, now with what instrument did
he use in strucking (sic) your husband?
ATTY. BERNALES:
We object, misleading, your Honor.
COURT:
Witness may answer.
WITNESS:

A A pipe.
ATTY. BALLEBAR:
Q Now, will you tell us more or less how long was that pipe that was used by Ronald
Castillano?
A About one (1) meter, Maam.[58]

Luz was merely five meters away from where Diosado was attacked and stabbed by
the appellants. Appellant Jaime, Jr. even tried to cut the ankle of the victim:
ATTY. BALLEBAR:
Q Now during this incident, how far were you from the accused and your husband?
A From where I am sitting up to that window which is about five (5) meters.
Q Now after the accused strucked (sic) and shot your husband, what else happened if
any?
A Jaime Castillano Jr. stabbed my husband on his breast (Witness is pointing to her
breast).
ATTY. BERNALES:
We will move that the answer be striken off from the records because it is not
responsive to the question. The question is after your husband has been stabbed
strucked (sic) and shot.
COURT:
Q Your are being asked what happened after the accused was already stabbed,
strucked (sic) and shot, what happened next?
WITNESS:
Q Jaime Castillano Junior still stabbed my husband and try to cut his ankle, Your
Honor.
COURT:
Strike our (sic) the previous answer of the witness.
ATTY. BALLEBAR:
Q By the way, will you tell us how many times did Ronald Castillano stab your
husband?
A I cannot determine how many times he even stabbed my husband on his left eye.
Q How about Jaime Castillano Jr., how many times did he stab your husband?
A I cannot determine exactly how many times but he repeatedly stabbed my husband.
[59]

The mere denial appellant Jaime, Jr. of the crime charged is but a negative selfserving which cannot prevail over the positive and straightforward testimony of Luz and
the physical evidence on record.
[60]

The Crime Committed by Appellants

The trial court correctly convicted the appellants of murder, qualified by treachery,
under Article 248 of the Revised Penal Code. The Court, however, does not agree with
the trial courts finding that evident premeditation attended the commission of the crime.
Case law has it that the prosecution has the burden to prove beyond reasonable
doubt qualifying circumstances in the commission of the crime. For evident
premeditation to qualify a crime, the prosecution must prove the confluence of the
essential requites thereof: (a) the time when the offender has determined to commit the
crime; (b) an act manifestly indicating that the offender has clung to his determination;
(c) an interval of time between the determination and the execution of the crime enough
to allow him to reflect upon the consequences of his act. There must be proof beyond
cavil when and how the offender planned to kill the victim and that sufficient time had
elapsed between the time he had decided to kill the victim and the actual killing of the
victim, and that in the interim, the offender performed overt acts positively and
conclusively showing his determination to commit the said crime. In this case, the only
evidence adduced by the prosecution to prove evident premeditation is the testimony of
Levy Avila that between 5:00 p.m. and 6:00 p.m. on July 8, 1996, he heard the
appellants planning to go to the house of Diosdado and that he heard them say: Ayaw
namin kasing inaasar, and that at 8:00 p.m., the appellants arrived in the house of the
victim and stabbed him to death. There is no evidence of any overt acts of the
appellants when they decided to kill Diosdado and how they would consummate the
crime. There is no evidence of any overt acts perpetrated by the appellants between
5:00 and 8:00 p.m. that they clung to their determination to kill Diosdado.
[61]

[62]

There is treachery in the commission of a crime when (a) at the time of attack, the
victim was not in a position to defend himself; (b) the offender consciously and
deliberately adopted the particular means, methods and forms of attack employed by
him. Even a frontal attack may be treacherous when unexpected on an unarmed
victim who would not be in a position to repel the attack or avoid it. In this case, the
victim was unarmed and was supinely resting before sleeping after a hard days work.
Although Luz warned the victim that the appellants were already approaching their
house, however, the victim remained unperturbed when the appellants barged into the
victims house. They stabbed him repeatedly with diverse deadly weapons. The victim
had nary a chance to defend himself and avoid the fatal thrusts of the appellants.
[63]

[64]

The crime was committed in the house of the victim. There was no provocation on
the part of the victim. Dwelling thus aggravated the crime. However, dwelling was not
alleged in the information, as mandated by Section 8, Rule 110 of the Revised Rules of
Criminal Procedure:

Sec. 8. Designation of the offense. - The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting
the offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

The use by appellant Ronald of an unlicensed firearm to shoot Diosdado on the

thigh is not an aggravating circumstance because (1) there is no allegation in the
information that said appellant had no license to possess the firearm. That appellant
lacked the license to possess the firearm is an essential element of the crime and must
be alleged in the information. Although the crime was committed before the new rule
took effect on December 1, 2002, the rule should, however, be applied retroactively as it
is favorable to the appellants.
[65]

[66]

The appellants are not entitled to the mitigating circumstance of voluntary surrender.
The evidence shows that the appellants were arrested when the police officers manning
the checkpoint stopped the passenger jeepney driven by appellant Ronald and arrested
the appellants. The fact that the appellants did not resist but went peacefully with the
peace officers does not mean that they surrendered voluntarily.
[67]

There being no mitigating and aggravating circumstances in the commission of the

crime, the appellants should be meted the penalty of reclusion perpetua conformably
with Article 63 of the Revised Penal Code.
The Civil Liabilities of the Appellants
The trial court awarded the total amount of P177,421 as civil indemnity, actual and
moral damages in favor of the heirs of the victim Diosdado. The Court has to modify the
awards.
Appellants Ronald and Jaime, Jr. are obliged to pay jointly and severally the amount
of P50,000 as civil indemnity; P50,000 as moral damages; P25,000 as exemplary
damages in view of the aggravating circumstance of dwelling; and the amount of
P18,300 for funeral and religious services. The heirs of the victim failed to adduce in
evidence any receipts or documentary evidence to prove their claim for food and other
expenses during the wake. However, they are entitled to temperate damages in the
amount of P5,000, conformably with the ruling of the Court in People v. dela Tongga.
His wife Luzs testimony that the victim had an annual income of more than P65,000 is
not sufficient as basis for an award for unearned income for being self-serving. There
was no proof of the average expense of the victim and his family and his net income.
In People v. Ereo, this Court held that:
[68]

[69]

[70]

It bears stress that compensation for lost income is in the nature of damages and as
such requires due proof of the damage suffered; there must be unbiased proof of the
deceaseds average income. In the instant case, the victims mother, Lita Honrubia,
gave only a self-serving hence unreliable statement of her deceased daughters income.
Moreover, the award for lost income refers to the net income of the deceased, that is,
her total income less her average expenses. No proof of the victims average expenses
was presented. Hence, there can be no reliable estimate of the deceaseds lost income.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Camarines Sur, Branch 31 in Criminal Case No. P-2542 is AFFIRMED with
MODIFICATION. Appellants Ronald Castillano alias Nono and Jaime Castillano, Jr.
alias Junjun are found guilty beyond reasonable doubt of murder, qualified by treachery,
punishable by reclusion perpetua to death, under Article 248 of the Revised Penal
Code. There being no modifying circumstances in the commission of the crime, the
appellants are sentenced to suffer the penalty of reclusion perpetua, conformably with
Article 63 of the Revised Penal Code. They are, likewise, ordered to pay jointly and
severally to the heirs of the victim, Diosdado Volante, the amounts of P50,000 as civil
indemnity; P50,000 as moral damages; P18,300 as actual damages; P25,000 as
exemplary damages; and P5,000 as temperate damages. Costs against the appellants.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Austria-Martinez, JJ., concur.

THIRD DIVISION

G.R. No. 90198 November 7, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO PLASENCIA y DESAMPARADO alias "Tonying," ROBERTO DESCARTIN y PASICARAN alias"Ruby"
and JOELITO (JULITO), DESCARTIN y PASICARAN, accused-appellants.

VITUG, J.:
Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin were accused of robbery with homicide in an
information, dated 20 December 1984, that read:
That on or about the 29th day of November, 1984 at around 3:00 o'clock in the afternoon, more or
less, in sitio San Juan, Barangay Patao, Municipality of Bantayan, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the said accused conspiring and confederating
together and mutually helping one another, did then and there wilfully, unlawfully and feloniously,
and with treachery, evident premeditation and taking advantage of their superior number and
strength and with intent to kill, treacherously attack, assault and use personal violence upon
Herminio Mansueto, thereby inflicting upon him the following physical injuries:
1. Stab wounds which was approximately two inches in length, parallel to the ribs
and is located 1 1/2 inches below the right nipple on the right anterior axillary line
and on the fifth intercostal space. On probing the wound was penetrating
immediately up to the left parasternal border approximately hitting the heart;
2. Hacking wound 9 inches in length extending from the coracoid process of the
left clavicle passing between the left anterior and the left mid axillary line up to
the left 4th intercostal space including all muscle underlying the skin exposing the
ribs.
Cause of death: Internal hemorrhage due to stab wound.
after which the body was placed inside a plastic bag and brought to an open sea by the pump boat
owned by Roberto Descartin y Pasicaran and operated by Joelito Descartin y Pasicaran and
dumped to the water by herein accused, and as a result of which said Herminio Mansueto died,
herein accused, in pursuance of their conspiracy, wilfully, unlawfully and feloniously and with intent
to gain, took and carried away the personal property belonging to Herminio Mansueto, namely: one
(1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1) Bicycle (standard size) valued at P1,000.00;
and cash in the amount of P10,000.00, all in the total amount of FOUR-TEEN THOUSAND PESOS
(P14,000.00), Philippine Currency, to the damage and prejudice of said oner (sic) in the said total
sum.
All contrary to law, and with the qualifying circumstance of alevosia, and the generic aggravating
circumstance of known premeditation.
CONTRARY TO LAW. 1

When arraigned, all the accused entered a plea of "not guilty" to the charge; whereupon, trial commenced.
The prosecution sought to establish, as follows:
At around ten o'clock in the morning of 29 November 1984, Herminio Mansueto, wearing a blue and white striped tshirt, maong pants, Seiko 5 stop watch and a pandan hat, left on his bicycle for Barangay Patao, Bantayan, Cebu. He
had with him P10,000.00 cash which he would use to purchase hogs from a certain "Ruby."
In Patao, Francisca Espina, also known in the locality as Pansing and whose house was just across the street from
the respective residences of the three accused, saw at the roadside Herminio Mansueto and Roberto
Descartinalias "Ruby" engaged in conversation. Pansing approached them and asked Mansueto if he would be
interested in buying two of her pigs for P1,400.00. Mansueto said "yes" and promised that he would be right back.
Mansueto and Ruby meantime proceeded to the latter's piggery. Joelito Descartin and his brother-in-law Rene were
also seen going to the place. After some time, Pansing noticed Joelito take Mansueto's bicycle. Believing that
Mansueto was already preparing to leave and in her desire to catch up with him, Pansing promptly walked towards
the piggery which was around 100 meters away from her house. She could see Mansueto leaning on the pigsty with
Ruby on his right side and Antonio Plasencia alias "Tonying" on his left; behind was Joelito. 2 Midway, she was

halted on her tracks; she suddenly saw Antonio stab Mansueto. The latter staggered towards Ruby who
himself then delivered another stab blow. Mansueto fell on his back. Joelito started hitting Mansueto on
the forehead while Rene held Mansueto's legs. 3 Except for a coconut tree and some ipil-ipil trees around
the area, nothing obstructed Pansing's line of vision. Pansing rushed back home. The image of Antonio
waving the weapon and the thought that she might herself be killed kept her from revealing to anyone
what she saw. 4
The following day, in Kodia, Madridejos, Cebu, where Mansueto resided, his daughter Rosalinda reported to
Francisca Tayo, the barangay captain, that her father had not returned home. Tayo proceeded to Putian, which was in
Mansueto's itinerary, and then to Ruby's piggery in Patao, where a youngster, who turned out to be Ruby's son,
innocently informed her that Mansueto's bicycle was taken by Joelito. 5
The day after, Francisca Tayo, accompanied by police officers of Madridejos, Cebu, and some relatives of Mansueto,
went back to Ruby's place. On a railing of the pigpen, she saw blood stains. When she asked Ruby's father about it,
he said that the stains had come from chicken blood. Going around the piggery, she also saw blood stains on a
bamboo pole, which Ruby's father once again so identified as chicken blood. At the back of the piggery, Francisca
noticed a digging which looked like an empty grave. The digging was measured and photos were taken. The police
found a hat at the back of a hut beside the piggery, which was later recognized to be that which belonged to
Mansueto. 6
In the morning of 30 November 1984, Patrolman Elpidio Desquitado of the Bantayan police went back to the piggery.
This time, the police learned from Pansing herself that Joelito took Mansueto's bicycle. 7 Joelito was invited to the

police headquarters to shed light on the case. Later, Joelito, waiving his right to counsel, executed a
"confession." 8
Joelito narrated that, upon Ruby's instruction, he brought the bicycle to the piggery. Unexpectedly, he said, Tonying
Plasencia stabbed Mansueto. Stunned, Joelito tried to run away but Tonying stopped him. Tonying then dragged the
victim to a nearby house. Threatened by Tonying, Joelito agreed to later return to where the victim's body was
dragged. At around eleven o'clock that evening, tonying and Joelito placed the body in a sack. Tonying asked Ruby to
allow the use of the latter's pumpboat to ferry the body. Tonying paddled the pumpboat to the island of Po-Po'o where
he picked up some pieces of stones. Then, again paddling the pumpboat farther away from the island, he ordered
Joelito to start the engine of the boat. They headed for the islet of Gilotongin (Hilotongan). On the way, Tonying filled
the sack with stones and, using a rope, tied to it the body of the victim. Tonying then unloaded their cargo into the
sea.

Guided by Joelito, members of the Bantayan police force headed for the islet of Hilotongan on two pumpboats 9 in the

area pinpointed to be the place where the body was dumped. On the second day of the search, the group
was informed that the body had already surfaced near the vicinity of the search and delivered to the
municipal building. 10
The municipal health officer of Bantayan, Dr. Oscar Quirante, examined the body and concluded that the victim died
of internal hemorrhage due to stab wounds. 11 The bloated body was in a late stage of decomposition and its

skin had sloughed off. 12 He found the victim's face to be "beyond recognition." There were "some rope
signs in the body particularly in the waistline and in the knees." 13
The main defense interposed is one of alibi.
Antonio stated that on the whole day of 29 November 1984, he was out at sea fishing with his son. Joelito, on his
part, asserted that he was in Barrio Baod, about an hour's walk from his residence, at the house of his fiancee. He
returned to his house, he said, only the day after. Roberto ("Ruby"), Joelito's uncle, testified that on that fateful day,
he was in Samoco Purok 2, Iligan City, and then left for Cebu on 06 December 1984 only after receiving a telegraph
that Joelito was implicated in the crime.
The Regional Trial Court 14 did not give credence to the defense of alibi. It convicted the three accused of

murder (punishable under Article 248 of the Revised Penal Code), instead of robbery with homicide,
explaining that the term "homicide" was used in the information in its generic sense. 15 Finding conspiracy,
the trial court ruled that the killing was qualified by both treachery and abuse of superior strength with the
latter, however, being absorbed by the former. No other aggravating or mitigating circumstances being
attendant in the commission of the crime, the trial court said, the penalty that could be imposed upon
each of the accused was reclusion perpetua with a joint and several civil liability for indemnification to the
heirs of Herminio Mansueto in the amount of P30,000.00.
The instant appeal was interposed by the three convicted appellants.
Appellant Antonio Plasencia attacks the credibility of the prosecution's lone eyewitness, Francisca Espina, alleging
that she is a pejured witness who has an axe to grind against him because his dog had once bitten Francisca's
child. 16 He bewails the fact that it has taken Francisca until 29 December 1984 to reveal what she

supposedly has seen to the police authorities. Contending that treachery has not been duly proven as "no
wound was inflicted at the back and as a matter of fact only one wound was fatal," 17 appellant argues that
even if conspiracy were to be considered to have attended the commission of the crime, he could be held
liable with the others, if at all, only for homicide.
Appellant Roberto Descartin, likewise challenging Francisca Espina's credibility because of her alleged
inconsistencies, faults the trial court for allowing the witness to glance at the notes written on her palm while
testifying. He also argues that his alibi, being corroborated, should have been given weight.
Appellant Joelito Descartin, in assailing the credibility of Francisca, has noted her "jittery actuation" while giving her
testimony. He also questions the findings of the ponente for not being the presiding judge during the examination of
Francisca on the witness stand.
The focus of this appeal is clearly one of credibility. The initial assessment on the testimony of a witness is done by
the trial court, and its findings still deserve due regard notwithstanding that the presiding judge who pens the decision
is not the one who personally may have heard the testimony. 18 The reliance on the transcript of stenographic

notes should not, for that reason alone, render the judgment subject to challenge.

19

The continuity of the

court and the efficacy of its decision are not affected by the cessation from the service of the judge
presiding it 20 or by the fact that its writer merely took over from a colleague who presided at the trial.

21

It is asserted that the testimony of Francisca Espina should not be given worth since, while testifying, she would at
times be seen reading some notes written on her left palm. Thus
Q. May I see your left hand, may I see what is written there?
A. Witness showing to the court her left palm and the following words have been
written in her palm in ball pen handwritten words and number of the pumpboat
No. 56 and there is another word "petsa" and there are words which cannot be
deciphered and all found in the palm of the left hand.
ATTY. MONTECLAR:
That is all.
ATTY. GONZALES: RE-CROSS
Q Mrs. witness, you cannot deny of what these physical evidences or writings on
the palm of your left hand. I want you to be honest, the law will not allow you to
lie, you are subject to punishment and penalty. My question is, who wrote this on
the palm of your left hand?
A I was the one who wrote this.
Q Why did you write that down?
A I was the one who wrote this.
Q Why, what was your purpose of writing that in your palm?
A I wrote this in my palm because I wanted to be sure of what time the incident
happened, was the same as that I wrote in my palm.
Q And who furnished you the data in which you wrote in the palm of your hand?
A I was the one who made that.
ATTY. GONZALES:
Q You don't understand my question. You wrote that writing but where did you
get that data?
A. This is just of what I know.
Q Since you claim to have all this knowledge of your mind, why did you find it
necessary to write that in the palm of your hand and I notice during the trial that
you used to look in your palm, why, is that necessary in your believe to testify
here to what you knew about the incident.

A Because of the fact that I have an headache.

Q When did this headache occur?
A After I left my house because my sick child.
Q Now, knowing that you have an headache, did you not bring this to the
attention of the Fiscal?
A No, I did not tell the Fiscal.
Q Do you know of your own that doing this is unfair and is not allowable while
testifying in open court, do you know that is illegal act?
A No, I did not, know.
Q And you did all of this claiming that you do not know about the incident for the
purpose of giving here testimony against the accused?
A Yes, sir. 22
The use of memory aids during an examination of a witness is not altogether proscribed. Section 16, Rule 132, of the
Rules of Court states:
Sec. 16. When witness may refer to memorandum. A witness may be allowed to refresh his
memory respecting a fact, by anything written or recorded by himself or under his direction at the
time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh
in his memory and he knew that the same was correctly written or recorded; but in such case the
writing or record must be produced and may be inspected by the adverse party, who may, if he
chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may
testify from such a writing or record, though he retain no recollection of the particular facts, if he is
able to swear that the writing or record correctly stated the transaction when made; but such
evidence must be received with caution. (Emphasis supplied.)
Allowing a witness to refer to her notes rests on the sound discretion of the trial court. 23 In this case, the

exercise of that discretion has not been abused; the witness herself has explained that she
merely wanted to be accurate on dates and like details.
Appellants see inadvertency on Francisca's appearing to be "jittery" on the witness stand. Nervousness and anxiety
of a witness is a natural reaction particularly in the case of those who are called to testify for the first time. The real
concern, in fact, should be when they show no such emotions.
Francisca did fail in immediately reporting the killing to the police authorities. Delay or vacillation, however, in making
a criminal accusation does not necessarily adulterate the credibility of the witness. 24 Francisca, in her case, has

expressed fears for her life considering that the assailants, being her neighbors, could easily exact
retribution on her. 25Also, the hesitancy in reporting the occurrence of a crime in rural areas is not
unknown. 26
Francisca's inability to respond to the summons for another appearance in court for further questioning was
satisfactorily explained by the prosecution. Francisca at the time just had a miscarriage and was found to be too weak
to travel. The recall of the witness was, after all, at the sound discretion of the trial court. 27

The claim of appellant Roberto Descartin that Francisca and her husband, a tuba-gatherer, owed him P300.00, and
the assertion made by appellant Antonio Plasencia on the dog-biting story involving Francisca's son truly were too
petty to consider. It would be absurd to think that Francisca, for such trivial reasons was actually impelled to falsely
implicate appellants for so grave an offense as murder.
Appellants questioned Francisca's ability to recognize them from a distance. Francisca knew appellants well; they all
were her neighbors while Antonio Plasencia himself was her cousin. 28 The crime occurred at around three

o'clock in the afternoon only about fifty (50) meters away from her. With an unobstructed view, Francisca's
positive identification of the culprits should be a foregone matter. 29
The alleged inconsistencies in Francisca's testimony and in her sworn statement of 18 December 1984, cover
matters of little significance. Minor inconsistencies in the testimonies of witnesses do not detract from their
credibility; 30 on the contrary, they serve to strengthen their credibility and are taken as badges of truth

rather than as indiciaof falsehood 31 even as they also erase suspicion of rehearsed testimony. 32
All considered, the case against the appellants has been proven beyond reasonable doubt even with the retracted
extra-judicial admission of Joelito Descartin. 33 The testimony of a single witness, if found to be credible, is

adequate for conviction, 34 The defense of alibi hardly can overcome the positive identification of an
unprejudiced eyewitness. 35
Like the trial court, we are not persuaded that robbery has been proven to be the principal motive for the crime that
can warrant the conviction of appellants for the complex crime of robbery with homicide. 36 Appellants could only

thus be held responsible for the killing of Mansueto. Conspiracy among the appellants has been
established beyond doubt by the sum of their deeds pointing to a joint purpose and design. 37
Three aggravating circumstances were alleged in the information, i.e., treachery, evident premeditation and abuse of
superior strength. The trial court disregarded the circumstance of evident premeditation and concluded that the attack
upon Mansueto was committed with treachery and abuse of superior strength. On its finding that the assault was
unexpectedly perpetrated upon the unarmed victim to ensure its execution without risk to themselves from the
defense that the victim might make, the trial court appreciated treachery, which it deemed as having so absorbed
abuse of superior strength.
The trial court was correct when it concluded that the crime committed was murder, a crime technically lower than
robbery with homicide, 38 not, however, because of the attendance of treachery but of abuse of superior

strength. Treachery, in our view, was not satisfactorily proven by the prosecution. Francisca Espina simply
testified that appellant Plasencia stabbed Mansueto while the latter and the appellants were in a huddle.
There was nothing adduced on whether or not the victim gave provocation, an indispensable issue in the
proper appreciation of treachery. 39 The presence, nonetheless, of the aggravating circumstance of abuse
of superior strength qualified the killing to murder. 40 The three appellants utilized superiority in numbers
and employed deadly weapons in assaulting the unarmed Mansueto.
There being no other aggravating or mitigating circumstances to consider, the trial court aptly imposed the penalty
ofreclusion perpetua, the medium period 41 of the penalty of reclusion temporal maximum to death prescribed

by Article 248 of the Revised Penal Code. In conformity with prevailing jurisprudential law, the heirs of the
victim should be indemnified in the amount of P50,000.00. 42
WHEREFORE, the decision of the trial court convicting appellants Antonio Plasencia, Roberto Descartin and Joelito
(Julito) Descartin of the crime of murder and imposing on each of them the penalty of reclusion perpetua is hereby
AFFIRMED with the modification that the indemnity to the heirs of the victim, Herminio Mansueto, is raised to
P50,000.00. Costs against appellants.

SO ORDERED.
Feliciano, Romero, Melo and Panganiban, JJ., concur.

SECOND DIVISION

[G.R. No. 96202. April 13, 1999]

ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS

andSOCOR CONSTRUCTION CORPORATION, respondents.
DECISION
MENDOZA, J.:

This petition for review on certiorari seeks a reversal of the decision [1] of the Court of
Appeals affirming the judgment[2] of the Regional Trial Court of Cebu City ordering
petitioner -

. . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine
Thousand Seven Hundred Seventeen Pesos and Seventy Five Centavos
(P299,717.75) plus interest thereon at 12% per annum from September 22,
1986, the date of the filing of the complaint until fully paid; to pay [private
respondent] the further sum of Ten Thousand Pesos (P10,000.00) for
reasonable attorneys fees; to pay the sum of Five Hundred Fifty Two Pesos
and Eighty Six Centavos (P552.86) for filing fees and to pay the costs of
suit. Since [private respondent] withdrew its prayer for an alias writ of
preliminary attachment vis-a-vis the [petitioners] counterbound, the incident on
the alias writ of preliminary attachment has become moot and academic.
The facts are as follows:
Petitioner Rosella D. Canque is a contractor doing business under the name and
style RDC Construction. At the time material to this case, she had contracts with the
government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of
Lutopan access road; and (c) the asphalting of Babag road in Lapulapu City. [3] In
connection with these projects, petitioner entered into two contracts with private
respondent Socor Construction Corporation.The first contract (Exh. A), [4] dated April 26,
1985, provided:

The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC

Construction) for the consideration hereinafter named, hereby agree as
follows:
1. SCOPE OF WORK:

a. The Sub-Contractor agrees to perform and execute the Supply, Lay and Compact
Item 310 and Item 302;
b. That Contractor shall provide the labor and materials needed to complete the
project;
c. That the Contractor agrees to pay the Sub-Contractor the price of One Thousand
Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight Thousand Only
(P8,000.00) per Metric Ton of Item 302.
d. That the Contractor shall pay the Sub-Contractor the volume of the supplied Item
based on the actual weight in Metric Tons delivered, laid and compacted and
accepted by the MPWH;
e. The construction will commence upon the acceptance of the offer.

The second contract (Exh. B),[5] dated July 23, 1985, stated:

The Supplier (SOCOR Construction) and the Contractor (RDC Construction)

for the consideration hereinafter named, hereby agree as follows:
1. SCOPE OF WORK:
a. The Supplier agrees to perform and execute the delivery of Item 310 and Item 302 to
the jobsite for the Asphalting of DAS Access Road and the Front Gate of ACMDC,
Toledo City;
b. That the Contractor should inform or give notice to the Supplier two (2) days before
the delivery of such items;
c. That the Contractor shall pay the Supplier the volume of the supplied items on the
actual weight in metric tons delivered and accepted by the MPWH fifteen (15) days
after the submission of the bill;
d. The delivery will commence upon the acceptance of the offer.

On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a
revised computation,[6] for P299,717.75, plus interest at the rate of 3% a month,
representing the balance of petitioners total account of P2,098,400.25 for materials
delivered and services rendered by private respondent under the two
contracts. However, petitioner refused to pay the amount, claiming that private
respondent failed to submit the delivery receipts showing the actual weight in metric
tons of the items delivered and the acceptance thereof by the government. [7]
Hence, on September 22, 1986, private respondent brought suit in the Regional
Trial Court of Cebu to recover from petitioner the sum of P299,717.75, plus interest at
the rate of 3% a month.
In her answer, petitioner admitted the existence of the contracts with private
respondent as well as receipt of the billing (Exh. C), dated May 28, 1986. However, she
disputed the correctness of the bill

. . . considering that the deliveries of [private respondent] were not signed and
acknowledged by the checkers of [petitioner], the bituminous tack coat it
delivered to [petitioner] consisted of 60% water, and [petitioner] has already
paid [private respondent] about P1,400,000.00 but [private respondent] has
not issued any receipt to [petitioner] for said payments and there is no
agreement that [private respondent] will charge 3% per month interest.[8]
Petitioner subsequently amended her answer denying she had entered into subcontracts with private respondent.[9]
During the trial, private respondent, as plaintiff, presented its vice-president, Sofia
O. Sanchez, and Dolores Aday, its bookkeeper.
Petitioners evidence consisted of her lone testimony.[10]
On June 22, 1988, the trial court rendered its decision ordering petitioner to pay
private respondent the sum of P299,717.75 plus interest at 12% per annum, and costs.
It held:

. . . . [B]y analyzing the plaintiffs Book of Collectible Accounts particularly page

17 thereof (Exh. K) this Court is convinced that the entries (both payments
and billings) recorded thereat are credible. Undeniably, the book contains a
detailed account of SOCORs commercial transactions with RDC which were
entered therein in the course of business. We cannot therefore disregard the
entries recorded under Exhibit K because the fact of their having been made
in the course of business carries with it some degree of trustworthiness.
Besides, no proof was ever offered to demonstrate the irregularity of the said
entries thus, there is then no cogent reason for us to doubt their authenticity.[11]
The trial court further ruled that in spite of the fact that the contracts did not have
any stipulation on interest, interest may be awarded in the form of damages under
Article 2209 of the Civil Code.[12]
On appeal, the Court of Appeals affirmed. It upheld the trial courts reliance on
private respondents Book of Collectible Accounts (Exh. K) on the basis of Rule 130,
37[13] of the Rules of Court.
Hence, this appeal. Petitioner contends that
I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS ENTRIES
IN THE COURSE OF BUSINESS THE ENTRIES IN PRIVATE RESPONDENTS
BOOK OF COLLECTIBLE ACCOUNTS CONSIDERING THAT THE PERSON WHO
MADE SAID ENTRIES ACTUALLY TESTIFIED IN THIS CASE BUT
UNFORTUNATELY HAD NO PERSONAL KNOWLEDGE OF SAID ENTRIES.
II. THE DECISION OF THE RESPONDENT COURT SHOULD BE REVERSED AS IT
HAS ONLY INADMISSIBLE EVIDENCE TO SUPPORT IT.

First. Petitioner contends that the presentation of the delivery receipts duly accepted
by the then Ministry of Public Works and Highways (MPWH) is required under the
contracts (Exhs. A and B) and is a condition precedent for her payment of the amount
claimed by private respondent. Petitioner argues that the entries in private respondents
Book of Collectible Accounts (Exh. K) cannot take the place of the delivery receipts and
that such entries are mere hearsay and, thus, inadmissible in evidence.[14]
We agree with the appellate court that the stipulation in the two contracts requiring
the submission of delivery receipts does not preclude proof of delivery of materials by
private respondent in some other way. The question is whether the entries in the Book
of Collectible Accounts (Exh. K) constitute competent evidence to show such
delivery. Private respondent cites Rule 130, 37 of the Rules of Court and argues that the
entries in question constitute entries in the course of business sufficient to prove
deliveries made for the government projects. This provision reads:

Entries in the course of business. Entries made at, or near the time of the
transactions to which they refer, by a person deceased, outside of the
Philippines or unable to testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such person made the
entries in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty.[15]
The admission in evidence of entries in corporate books requires the satisfaction of
the following conditions:
1. The person who made the entry must be dead, outside the country or unable to
testify;
2. The entries were made at or near the time of the transactions to which they refer;
3. The entrant was in a position to know the facts stated in the entries;
4. The entries were made in his professional capacity or in the performance of a
duty, whether legal, contractual, moral or religious; and
5. The entries were made in the ordinary or regular course of business or duty.[16]
As petitioner points out, the business entries in question (Exh. K) do not meet the
first and third requisites. Dolores Aday, who made the entries, was presented by private
respondent to testify on the account of RDC Construction. It was in the course of her
testimony that the entries were presented and marked in evidence. There was,
therefore, neither justification nor necessity for the presentation of the entries as the
person who made them was available to testify in court.

Necessity is given as a ground for admitting entries, in that they are the best
available evidence. Said a learned judge: What a man has actually done and
committed to writing when under obligation to do the act, it being in the course
of the business he has undertaken, and he being dead, there seems to be no

danger in submitting to the consideration of the court. The person who may be
called to court to testify on these entries being dead, there arises the
necessity of their admission without the one who made them being called to
court be sworn and subjected to cross-examination. And this is permissible in
order to prevent a failure of justice.[17]
Moreover, Aday admitted that she had no personal knowledge of the facts
constituting the entry. She said she made the entries based on the bills given to her. But
she has no knowledge of the truth or falsity of the facts stated in the bills. The deliveries
of the materials stated in the bills were supervised by an engineer for (such) functions.
[18]
The person, therefore, who has personal knowledge of the facts stated in the
entries, i.e., that such deliveries were made in the amounts and on the dates stated,
was the companys project engineer. The entries made by Aday show only that the
billings had been submitted to her by the engineer and that she faithfully recorded the
amounts stated therein in the books of account. Whether or not the bills given to Aday
correctly reflected the deliveries made in the amounts and on the dates indicated was a
fact that could be established by the project engineer alone who, however, was not
presented during trial. The rule is stated by former Chief Justice Moran, thus:

[W]hen the witness had no personal knowledge of the facts entered by him,
and the person who gave him the information is individually known and may
testify as to the facts stated in the entry which is not part of a system of entries
where scores of employees have intervened, such entry is not admissible
without the testimony of the informer.[19]
Second. It is nonetheless argued by private respondent that although the entries
cannot be considered an exception to the hearsay rule, they may be admitted under
Rule 132, 10[20]of the Rules of Court which provides:

SEC. 10. When witness may refer to memorandum. A witness may be allowed
to refresh his memory respecting a fact, by anything written by himself or
under his direction at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was fresh in his memory and he
knew that the same was correctly stated in the writing; but in such case the
writing must be produced and may be inspected by the adverse party, who
may, if he chooses, cross-examine the witness upon it, and may read it in
evidence. So, also, a witness may testify from such a writing, though he retain
no recollection of the particular facts, if he is able to swear that the writing
correctly stated the transaction when made; but such evidence must be
received with caution.
On the other hand, petitioner contends that evidence which is inadmissible for the
purpose for which it was offered cannot be admitted for another purpose. She cites the
following from Chief Justice Morans commentaries:

The purpose for which the evidence is offered must be specified. Where the
offer is general, and the evidence is admissible for one purpose and
inadmissible for another, the evidence should be rejected. Likewise, where the
offer is made for two or more purposes and the evidence is incompetent for
one of them, the evidence should be excluded. The reason for the rule is that
it is the duty of a party to select the competent from the incompetent in
offering testimony, and he cannot impose this duty upon the trial court. Where
the evidence is inadmissible for the purpose stated in the offer, it must be
rejected, though the same may be admissible for another purpose. The rule is
stated thus: If a party x x x opens the particular view with which he offers any
part of his evidence, or states the object to be attained by it, he precludes
himself from insisting on its operation in any other direction, or for any other
object; and the reason is, that the opposite party is prevented from objecting
to its competency in any view different from the one proposed.[21]
It should be noted, however, that Exh. K is not really being presented for another
purpose. Private respondents counsel offered it for the purpose of showing the amount
of petitioners indebtedness. He said:

Exhibit K, your Honor - faithful reproduction of page (17) of the book on

Collectible Accounts of the plaintiff, reflecting the principal
indebtedness of defendant in the amount of Two hundred ninety-nine
thousand seven hundred seventeen pesos and seventy-five centavos
(P299,717.75) and reflecting as well the accumulated interest of three
percent (3%) monthly compounded such that as of December 11,
1987, the amount collectible from the defendant by the plaintiff is Six
hundred sixteen thousand four hundred thirty-five pesos and seventytwo centavos (P616,435.72);[22]
This is also the purpose for which its admission is sought as a memorandum to
refresh the memory of Dolores Aday as a witness. In other words, it is the nature of the
evidence that is changed, not the purpose for which it is offered.
Be that as it may, considered as a memorandum, Exh. K does not itself constitute
evidence. As explained in Borromeo v. Court of Appeals:[23]

Under the above provision (Rule 132, 10), the memorandum used to refresh
the memory of the witness does not constitute evidence, and may not be
admitted as such, for the simple reason that the witness has just the same to
testify on the basis of refreshed memory. In other words, where the witness
has testified independently of or after his testimony has been refreshed by a
memorandum of the events in dispute, such memorandum is not admissible
as corroborative evidence. It is self-evident that a witness may not be

corroborated by any written statement prepared wholly by him. He cannot be

more credible just because he supports his open-court declaration with written
statements of the same facts even if he did prepare them during the occasion
in dispute, unless the proper predicate of his failing memory is priorly laid
down. What is more, even where this requirement has been satisfied, the
express injunction of the rule itself is that such evidence must be received with
caution, if only because it is not very difficult to conceive and fabricate
evidence of this nature. This is doubly true when the witness stands to gain
materially or otherwise from the admission of such evidence . . . .[24]
As the entries in question (Exh. K) were not made based on personal knowledge,
they could only corroborate Dolores Adays testimony that she made the entries as she
received the bills.
Third. Does this, therefore, mean there is no competent evidence of private
respondents claim as petitioner argues? [25] The answer is in the negative. Aside from
Exh. K, private respondent presented the following documents:

1) Exhibit A - Contract Agreement dated 26 April 1985 which contract covers

both the Toledo wharf project and the Babag Road project in Lapulapu City.
2) Exhibit B - Contract Agreement dated 23 July 1985 which covers the DAS
Asphalting Project.
3) Exhibit C - Revised Computation of Billings submitted on May 28, 1986.
4) Exhibit D - an affidavit executed by [petitioner] to the effect that she has no
more pending or unsettled obligations as far as Toledo Wharf Road is
concerned.
5) Exhibit D-1 - Statement of Work Accomplished on the Road Restoration of
Cebu-Toledo wharf project.
6) Exhibit E - another affidavit executed by [petitioner] attesting that she has
completely paid her laborers at the project located at Babag, Lapulapu City
7) Exhibits F, G, G-1, G-2, G-3 - Premiums paid by [private respondent]
together with the receipts for filing fees.
8) Exhibits H, I, J - certifications issued by OIC, MPWH, Regional Office;
Lapulapu City, City Engineer; Toledo City Treasurers Office respectively,
proving that RDC construction has no more collectibles with all the said
government offices in connection with its projects.

10) Exhibit L - Bill No. 057 under the account of RDC Construction in the
amount ofP153,382.75 dated August 24, 1985.
11) Exhibit M - Bill No. 069 (RDCs account), in the amount of P1,701,795.00
dated November 20, 1985.
12) Exhibit N - Bill No. 071 (RDCs account) in the amount of P47,250.00
dated November 22, 1985.
13) Exhibit O - Bill No. 079 (RDCs account) in the amount of P7,290.00 dated
December 6, 1985.
As the trial court found:

The entries recorded under Exhibit K were supported by Exhibits L, M, N, O

which are all Socor Billings under the account of RDC Construction. These
billings were presented and duly received by the authorized representatives of
defendant. The circumstances obtaining in the case at bar clearly show that
for a long period of time after receipt thereof, RDC never manifested its
dissatisfaction or objection to the aforestated billings submitted by
plaintiff.Neither did defendant immediately protest to plaintiffs alleged
incomplete or irregular performance. In view of these facts, we believe Art.
1235 of the New Civil Code is applicable.
Art. 1235. When the obligee accepts the performance, knowing its
incompleteness and irregularity and without expressing any protest or
objection, the obligation is deemed complied with.
FINALLY, after a conscientious scrutiny of the records, we find Exhibit D-1 (p.
85 record) to be a material proof of plaintiffs complete fulfillment of its
obligation.
There is no question that plaintiff supplied RDC Construction with Item 302
(Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310
(Bitunimous Concrete Surface Course) in all the three projects of the
latter. The Lutopan Access Road project, the Toledo wharf project and the
Babag-Lapulapu Road project.
On the other hand, no proof was ever offered by defendant to show the
presence of other contractors in those projects. We can therefore conclude
that it was Socor Construction Corp. ALONE who supplied RDC with

Bituminous Prime Coat, Bituminous Tack Coat and Bituminous Concrete

Surface Course for all the aforenamed three projects.[26]
Indeed,
while
petitioner
had
previously
paid
private
respondent
about P1,400,000.00 for deliveries made in the past, she did not show that she made
such payments only after the delivery receipts had been presented by private
respondent. On the other hand, it appears that petitioner was able to collect the full
amount of project costs from the government, so that petitioner would be unjustly
enriched at the expense of private respondent if she is not made to pay what is her just
obligation under the contracts.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur.

FIRST DIVISION
G.R. No. 204169

September 11, 2013

YASUO IWASAWA, PETITIONER,

vs.
FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN ARAMBULO, AND FELISA GANGAN IWASAWA) AND
THE LOCAL CIVIL REGISTRAR OF PASAY CITY, RESPONDENTS.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended,
assailing the September 4, 2012 Decision2 and October 16, 2012 Order3 of the Regional Trial Court (RTC), Branch
43, of Manila in Civil Case No. 11-126203. The RTC denied the petition for declaration of nullity of the marriage of
petitioner Yasuo Iwasawa with private respondent Felisa Custodio Gangan due to insufficient evidence.
The antecedents follow:
Petitioner, a Japanese national, met private respondent sometime in 2002 in one of his visits to the Philippines.
Private respondent introduced herself as "single" and "has never married before." Since then, the two became close
to each other. Later that year, petitioner came back to the Philippines and married private respondent on November
28, 2002 in Pasay City. After the wedding, the couple resided in Japan.4
In July 2009, petitioner noticed his wife become depressed. Suspecting that something might have happened in the
Philippines, he confronted his wife about it. To his shock, private respondent confessed to him that she received news
that her previous husband passed away.5
Petitioner sought to confirm the truth of his wifes confession and discovered that indeed, she was married to one
Raymond Maglonzo Arambulo and that their marriage took place on June 20, 1994.6 This prompted petitioner to file a
petition7 for the declaration of his marriage to private respondent as null and void on the ground that their marriage is
a bigamous one, based on Article 35(4) in relation to Article 41 of the Family Code of the Philippines.
During trial, aside from his testimony, petitioner also offered the following pieces of documentary evidence issued by
the National Statistics Office (NSO):
(1)
Certificate of Marriage8 between petitioner and private respondent marked as Exhibit "A" to prove the fact of
marriage between the parties on November 28, 2002;
(2)
Certificate of Marriage9 between private respondent and Raymond Maglonzo Arambulo marked as Exhibit
"B" to prove the fact of marriage between the parties on June 20, 1994;
(3)
Certificate of Death10 of Raymond Maglonzo Arambulo marked as Exhibits "C" and "C-1" to prove the fact of
the latters death on July 14, 2009; and

(4)
Certification11 from the NSO to the effect that there are two entries of marriage recorded by the office
pertaining to private respondent marked as Exhibit "D" to prove that private respondent in fact contracted
two marriages, the first one was to a Raymond Maglonzo Arambulo on June 20, 1994, and second, to
petitioner on November 28, 2002.
The prosecutor appearing on behalf of the Office of the Solicitor General (OSG) admitted the authenticity and due
execution of the above documentary exhibits during pre-trial.12
On September 4, 2012, the RTC rendered the assailed decision. It ruled that there was insufficient evidence to prove
private respondents prior existing valid marriage to another man. It held that while petitioner offered the certificate of
marriage of private respondent to Arambulo, it was only petitioner who testified about said marriage. The RTC ruled
that petitioners testimony is unreliable because he has no personal knowledge of private respondents prior marriage
nor of Arambulos death which makes him a complete stranger to the marriage certificate between private respondent
and Arambulo and the latters death certificate. It further ruled that petitioners testimony about the NSO certification
is likewise unreliable since he is a stranger to the preparation of said document.
Petitioner filed a motion for reconsideration, but the same was denied by the RTC in an Order dated October 16,
2012.
Hence this petition raising the sole legal issue of whether the testimony of the NSO records custodian certifying the
authenticity and due execution of the public documents issued by said office was necessary before they could be
accorded evidentiary weight.
Petitioner argues that the documentary evidence he presented are public documents which are considered selfauthenticating and thus it was unnecessary to call the NSO Records Custodian as witness. He cites Article 410 of the
Civil Code which provides that books making up the civil register and all documents relating thereto shall be
considered public documents and shall be prima facie evidence of the facts stated therein. Moreover, the trial
prosecutor himself also admitted the authenticity of said documents.
The OSG, in its Comment,13 submits that the findings of the RTC are not in accord with law and established
jurisprudence. It contends that both Republic Act No. 3753, otherwise known as the Law on Registry of Civil Status,
and the Civil Code elaborated on the character of documents arising from records and entries made by the civil
registrar and categorically declared them as public documents. Being public documents, said documents are
admissible in evidence even without further proof of their due execution and genuineness and consequently, there
was no need for the court to require petitioner to present the records custodian or officer from the NSO to testify on
them. The OSG further contends that public documents have probative value since they are prima facie evidence of
the facts stated therein as provided in the above-quoted provision of the Civil Code. Thus, the OSG submits that the
public documents presented by petitioner, considered together, completely establish the facts in issue.
In her letter14 dated March 19, 2013 to this Court, private respondent indicated that she is not against her husbands
petition to have their marriage declared null and void. She likewise admitted therein that she contracted marriage with
Arambulo on June 20, 1994 and contracted a second marriage with petitioner on November 28, 2002. She further
admitted that it was due to poverty and joblessness that she married petitioner without telling the latter that she was
previously married. Private respondent also confirmed that it was when she found out that Arambulo passed away on
July 14, 2009 that she had the guts to confess to petitioner about her previous marriage. Thereafter, she and
petitioner have separated.
We grant the petition.

There is no question that the documentary evidence submitted by petitioner are all public documents. As provided in
the Civil Code:
1wphi1

ART. 410. The books making up the civil register and all documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts therein contained.
As public documents, they are admissible in evidence even without further proof of their due execution and
genuineness.15 Thus, the RTC erred when it disregarded said documents on the sole ground that the petitioner did
not present the records custodian of the NSO who issued them to testify on their authenticity and due execution since
proof of authenticity and due execution was not anymore necessary. Moreover, not only are said documents
admissible, they deserve to be given evidentiary weight because they constitute prima facie evidence of the facts
stated therein. And in the instant case, the facts stated therein remain unrebutted since neither the private respondent
nor the public prosecutor presented evidence to the contrary.
This Court has consistently held that a judicial declaration of nullity is required before a valid subsequent marriage
can be contracted; or else, what transpires is a bigamous marriage,16 which is void from the beginning as provided in
Article 35(4) of the Family Code of the Philippines. And this is what transpired in the instant case.
As correctly pointed out by the OSG, the documentary exhibits taken together concretely establish the nullity of the
marriage of petitioner to private respondent on the ground that their marriage is bigamous. The exhibits directly prove
the following facts: (1) that private respondent married Arambulo on June 20, 1994 in the City of Manila; (2) that
private respondent contracted a second marriage this time with petitioner on November 28, 2002 in Pasay City; (3)
that there was no judicial declaration of nullity of the marriage of private respondent with Arambulo at the time she
married petitioner; (3) that Arambulo died on July 14, 2009 and that it was only on said date that private respondents
marriage with Arambulo was deemed to have been dissolved; and (4) that the second marriage of private respondent
to petitioner is bigamous, hence null and void, since the first marriage was still valid and subsisting when the second
marriage was contracted.
WHEREFORE, the petition for review on certiorari is GRANTED. The September 4, 2012 Decision and October 16,
2012 Order of the Regional Trial Court of Manila, Branch 43, in Civil Case No. 11-126203 are hereby SET ASIDE.
The marriage of petitioner Yasuo Iwasawa and private respondent Felisa Custodio Gangan is declared NULL and
VOID.
The Local Civil Registrar of Pasay City and the National Statistics Office are hereby ORDERED to make proper
entries into the records of the abovementioned parties in accordance with this Decision.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice

FIRST DIVISION
G.R. No. 181163

July 24, 2013

ASIAN TERMINALS, INC., Petitioner,

vs.
PHILAM INSURANCE CO., INC. (now Chartis Philippines Insurance, Inc.), Respondent.
x-----------------------x
G.R. No. 181262
PHILAM INSURANCE CO., INC. (now Chartis Philippines Insurance, Inc.), Petitioner,
vs.
WESTWIND SHIPPING CORPORATION and ASIAN TERMINALS, INC., Respondents.
x-----------------------x
G.R. No. 181319
WESTWIND SHIPPING CORPORATION, Petitioner,
vs.
PHILAM INSURANCE CO., INC. (now Chartis Philippines Insurance, Inc.) and ASIAN TERMINALS,
INC.,Respondents.
DECISION
VILLARAMA, JR., J.:
Before us are three consolidated petitions for review on certiorari assailing the Decision1 dated October 15, 2007 and
the Resolution2 dated January 11, 2008 of the Court of Appeals (CA) which affirmed with modification the Decision3 of
the Regional Trial Court (RTC) of Makati City, Branch 148, in Civil Case No. 96-062. The RTC had ordered Westwind
Shipping Corporation (Westwind) and Asian Terminals, Inc. (ATI) to pay, jointly and severally, Philam Insurance Co.,
Inc. (Philam) the sum of P633,957.15, with interest at 12% per annum from the date of judicial demand
and P158,989.28 as attorneys fees.
The facts of the case follow:
On April 15, 1995, Nichimen Corporation shipped to Universal Motors Corporation (Universal Motors) 219 packages
containing 120 units of brand new Nissan Pickup Truck Double Cab 4x2 model, without engine, tires and batteries, on
board the vessel S/S "Calayan Iris" from Japan to Manila. The shipment, which had a declared value of US$81,368
or P29,400,000, was insured with Philam against all risks under Marine Policy No. 708-8006717-4.4
The carrying vessel arrived at the port of Manila on April 20, 1995, and when the shipment was unloaded by the staff
of ATI, it was found that the package marked as 03-245-42K/1 was in bad order.5 The Turn Over Survey of Bad Order
Cargoes6 dated April 21, 1995 identified two packages, labeled 03-245-42K/1 and 03/237/7CK/2, as being dented and
broken. Thereafter, the cargoes were stored for temporary safekeeping inside CFS Warehouse in Pier No. 5.
On May 11, 1995, the shipment was withdrawn by R.F. Revilla Customs Brokerage, Inc., the authorized broker of
Universal Motors, and delivered to the latters warehouse in Mandaluyong City. Upon the request7 of Universal
Motors, a bad order survey was conducted on the cargoes and it was found that one Frame Axle Sub without LWR

was deeply dented on the buffle plate while six Frame Assembly with Bush were deformed and misaligned.8 Owing to
the extent of the damage to said cargoes, Universal Motors declared them a total loss.
On August 4, 1995, Universal Motors filed a formal claim for damages in the amount of P643,963.84 against
Westwind,9 ATI10 and R.F. Revilla Customs Brokerage, Inc.11 When Universal Motors demands remained unheeded, it
sought reparation from and was compensated in the sum of P633,957.15 by Philam. Accordingly, Universal Motors
issued a Subrogation Receipt12 dated November 15, 1995 in favor of Philam.
On January 18, 1996, Philam, as subrogee of Universal Motors, filed a Complaint13 for damages against Westwind,
ATI and R.F. Revilla Customs Brokerage, Inc. before the RTC of Makati City, Branch 148.
On September 24, 1999, the RTC rendered judgment in favor of Philam and ordered Westwind and ATI to pay
Philam, jointly and severally, the sum of P633,957.15 with interest at the rate of 12% per annum, P158,989.28 by way
of attorneys fees and expenses of litigation.
The court a quo ruled that there was sufficient evidence to establish the respective participation of Westwind and ATI
in the discharge of and consequent damage to the shipment. It found that the subject cargoes were compressed
while being hoisted using a cable that was too short and taut.
The trial court observed that while the staff of ATI undertook the physical unloading of the cargoes from the carrying
vessel, Westwinds duty officer exercised full supervision and control throughout the process. It held Westwind
vicariously liable for failing to prove that it exercised extraordinary diligence in the supervision of the ATI stevedores
who unloaded the cargoes from the vessel. However, the court absolved R.F. Revilla Customs Brokerage, Inc. from
liability in light of its finding that the cargoes had been damaged before delivery to the consignee.
The trial court acknowledged the subrogation between Philam and Universal Motors on the strength of the
Subrogation Receipt dated November 15, 1995. It likewise upheld Philams claim for the value of the alleged
damaged vehicle parts contained in Case Nos. 03-245-42K/1 and 03-245-51K or specifically for "7 pieces of Frame
Axle Sub Without Lower and Frame Assembly with Bush."14
Westwind filed a Motion for Reconsideration15 which was, however, denied in an Order16 dated October 26, 2000.
On appeal, the CA affirmed with modification the ruling of the RTC. In a Decision dated October 15, 2007, the
appellate court directed Westwind and ATI to pay Philam, jointly and severally, the amount of P190,684.48 with
interest at the rate of 12% per annum until fully paid, attorneys fees of P47,671 and litigation expenses.
The CA stressed that Philam may not modify its allegations by claiming in its Appellees Brief 17 that the six pieces of
Frame Assembly with Bush, which were purportedly damaged, were also inside Case No. 03-245-42K/1. The CA
noted that in its Complaint, Philam alleged that "one (1) pc. FRAME AXLE SUB W/O LWR from Case No. 03-24542K/1 was completely deformed and misaligned, and six (6) other pcs. of FRAME ASSEMBLY WITH BUSH from
Case No. 03-245-51K were likewise completely deformed and misaligned."18
The appellate court accordingly affirmed Westwind and ATIs joint and solidary liability for the damage to only one (1)
unit of Frame Axle Sub without Lower inside Case No. 03-245-42K/1. It also noted that when said cargo sustained
damage, it was not yet in the custody of the consignee or the person who had the right to receive it. The CA pointed
out that Westwinds duty to observe extraordinary diligence in the care of the cargoes subsisted during unloading
thereof by ATIs personnel since the former exercised full control and supervision over the discharging operation.
Similarly, the appellate court held ATI liable for the negligence of its employees who carried out the offloading of
cargoes from the ship to the pier. As regards the extent of ATIs liability, the CA ruled that ATI cannot limit its liability
to P5,000 per damaged package. It explained that Section 7.0119 of the Contract for Cargo Handling Services20does

not apply in this case since ATI was not yet in custody and control of the cargoes when the Frame Axle Sub without
Lower suffered damage.
Citing Belgian Overseas Chartering and Shipping N.V. v. Philippine First Insurance Co., Inc.,21 the appellate court also
held that Philams action for damages had not prescribed notwithstanding the absence of a notice of claim.
All the parties moved for reconsideration, but their motions were denied in a Resolution dated January 11, 2008.
Thus, they each filed a petition for review on certiorari which were consolidated together by this Court considering
that all three petitions assail the same CA decision and resolution and involve the same parties.
Essentially, the issues posed by petitioner ATI in G.R. No. 181163, petitioner Philam in G.R. No. 181262 and
petitioner Westwind in G.R. No. 181319 can be summed up into and resolved by addressing three questions: (1) Has
Philams action for damages prescribed? (2) Who between Westwind and ATI should be held liable for the damaged
cargoes? and (3) What is the extent of their liability?
Petitioners Arguments
G.R. No. 181163
Petitioner ATI disowns liability for the damage to the Frame Axle Sub without Lower inside Case No. 03-245-42K/1. It
shifts the blame to Westwind, whom it charges with negligence in the supervision of the stevedores who unloaded the
cargoes. ATI admits that the damage could have been averted had Westwind observed extraordinary diligence in
handling the goods. Even so, ATI suspects that Case No. 03-245-42K/1 is "weak and defective"22 considering that it
alone sustained damage out of the 219 packages.
Notwithstanding, petitioner ATI submits that, at most, it can be held liable to pay only P5,000 per package pursuant to
its Contract for Cargo Handling Services. ATI maintains that it was not properly notified of the actual value of the
cargoes prior to their discharge from the vessel.
G.R. No. 181262
Petitioner Philam supports the CA in holding both Westwind and ATI liable for the deformed and misaligned Frame
Axle Sub without Lower inside Case No. 03-245-42K/1. It, however, faults the appellate court for disallowing its claim
for the value of six Chassis Frame Assembly which were likewise supposedly inside Case Nos. 03-245-51K and 03245-42K/1. As to the latter container, Philam anchors its claim on the results of the Inspection/Survey Report23 of
Chartered Adjusters, Inc., which the court received without objection from Westwind and ATI. Petitioner believes that
with the offer and consequent admission of evidence to the effect that Case No. 03-245-42K/1 contains six pieces of
dented Chassis Frame Assembly, Philams claim thereon should be treated, in all respects, as if it has been raised in
the pleadings. Thus, Philam insists on the reinstatement of the trial courts award in its favor for the payment
of P633,957.15 plus legal interest, P158,989.28 as attorneys fees and costs.
G.R. No. 181319
Petitioner Westwind denies joint liability with ATI for the value of the deformed Frame Axle Sub without Lower in Case
No. 03-245-42K/1. Westwind argues that the evidence shows that ATI was already in actual custody of said case
when the Frame Axle Sub without Lower inside it was misaligned from being compressed by the tight cable used to
unload it. Accordingly, Westwind ceased to have responsibility over the cargoes as provided in paragraph 4 of the Bill
of Lading which provides that the responsibility of the carrier shall cease when the goods are taken into the custody
of the arrastre.
Westwind contends that sole liability for the damage rests on ATI since it was the latters stevedores who operated
the ships gear to unload the cargoes. Westwind reasons that ATI is an independent company, over whose employees

and operations it does not exercise control. Moreover, it was ATIs employees who selected and used the wrong
cable to lift the box containing the cargo which was damaged.
Westwind likewise believes that ATI is bound by its acceptance of the goods in good order despite a finding that Case
No. 03-245-42K/1 was partly torn and crumpled on one side. Westwind also notes that the discovery that a piece of
Frame Axle Sub without Lower was completely deformed and misaligned came only on May 12, 1995 or 22 days after
the cargoes were turned over to ATI and after the same had been hauled by R.F. Revilla Customs Brokerage, Inc.
Westwind further argues that the CA erred in holding it liable considering that Philams cause of action has prescribed
since the latter filed a formal claim with it only on August 17, 1995 or four months after the cargoes arrived on April
20, 1995. Westwind stresses that according to the provisions of clause 20, paragraph 224 of the Bill of Lading as well
as Article 36625 of the Code of Commerce, the consignee had until April 20, 1995 within which to make a claim
considering the readily apparent nature of the damage, or until April 27, 1995 at the latest, if it is assumed that the
damage is not readily apparent.
Lastly, petitioner Westwind contests the imposition of 12% interest on the award of damages to Philam reckoned from
the time of extrajudicial demand. Westwind asserts that, at most, it can only be charged with 6% interest since the
damages claimed by Philam does not constitute a loan or forbearance of money.
The Courts Ruling
The three consolidated petitions before us call for a determination of who between ATI and Westwind is liable for the
damage suffered by the subject cargo and to what extent. However, the resolution of the issues raised by the present
petitions is predicated on the appreciation of factual issues which is beyond the scope of a petition for review on
certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended. It is settled that in petitions for review on
certiorari, only questions of law may be put in issue. Questions of fact cannot be entertained.26
There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative
value of the evidence. The resolution of the issue must rest solely on what the law provides on the given set of
circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of
fact. If the query requires a re-evaluation of the credibility of witnesses, or the existence or relevance of surrounding
circumstances and their relation to each other, the issue in that query is factual.27
In the present petitions, the resolution of the question as to who between Westwind and ATI should be liable for the
damages to the cargo and to what extent would have this Court pass upon the evidence on record. But while it is not
our duty to review, examine and evaluate or weigh all over again the probative value of the evidence presented,28the
Court may nonetheless resolve questions of fact when the case falls under any of the following exceptions:
(1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference made is
manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings the
Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition
as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the findings of
fact are premised on the supposed absence of evidence and contradicted by the evidence on record.29
In the cases at bar, the fifth and seventh exceptions apply. While the CA affirmed the joint liability of ATI and
Westwind, it held them liable only for the value of one unit of Frame Axle Sub without Lower inside Case No. 03-24542K/1. The appellate court disallowed the award of damages for the six pieces of Frame Assembly with Bush, which
petitioner Philam alleged, for the first time in its Appellees Brief, to be likewise inside Case No. 03-245-42K/1. Lastly,
the CA reduced the award of attorneys fees to P47,671.

Foremost, the Court holds that petitioner Philam has adequately established the basis of its claim against petitioners
ATI and Westwind. Philam, as insurer, was subrogated to the rights of the consignee, Universal Motors Corporation,
pursuant to the Subrogation Receipt executed by the latter in favor of the former. The right of subrogation accrues
simply upon payment by the insurance company of the insurance claim.30 Petitioner Philams action finds support in
Article 2207 of the Civil Code, which provides as follows:
Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the insurance company for
the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be
subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. x x x.
In their respective comments31 to Philams Formal Offer of Evidence,32 petitioners ATI and Westwind objected to the
admission of Marine Certificate No. 708-8006717-4 and the Subrogation Receipt as documentary exhibits "B" and
"P," respectively. Petitioner Westwind objects to the admission of both documents for being hearsay as they were not
authenticated by the persons who executed them. For the same reason, petitioner ATI assails the admissibility of the
Subrogation Receipt. As regards Marine Certificate No. 708-8006717-4, ATI makes issue of the fact that the same
was issued only on April 27, 1995 or 12 days after the shipment was loaded on and transported via S/S "Calayan
Iris."
The nature of documents as either public or private determines how the documents may be presented as evidence in
court. Public documents, as enumerated under Section 19,33 Rule 132 of the Rules of Court, are self-authenticating
and require no further authentication in order to be presented as evidence in court.34
In contrast, a private document is any other writing, deed or instrument executed by a private person without the
intervention of a notary or other person legally authorized by which some disposition or agreement is proved or set
forth. Lacking the official or sovereign character of a public document, or the solemnities prescribed by law, a private
document requires authentication35 in the manner prescribed under Section 20, Rule 132 of the Rules:
SEC. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.
The requirement of authentication of a private document is excused only in four instances, specifically: (a) when the
document is an ancient one within the context of Section 21,36 Rule 132 of the Rules; (b) when the genuineness and
authenticity of the actionable document have not been specifically denied under oath by the adverse party; (c) when
the genuineness and authenticity of the document have been admitted; or (d) when the document is not being offered
as genuine.37
Indubitably, Marine Certificate No. 708-8006717-4 and the Subrogation Receipt are private documents which Philam
and the consignee, respectively, issue in the pursuit of their business. Since none of the exceptions to the
requirement of authentication of a private document obtains in these cases, said documents may not be admitted in
evidence for Philam without being properly authenticated.
Contrary to the contention of petitioners ATI and Westwind, however, Philam presented its claims officer, Ricardo
Ongchangco, Jr. to testify on the execution of the Subrogation Receipt, as follows:
ATTY. PALACIOS

Q How were you able to get hold of this subrogation receipt?

A Because I personally delivered the claim check to consignee and have them receive the said check.
Q I see. Therefore, what you are saying is that you personally delivered the claim check of Universal Motors
Corporation to that company and you have the subrogation receipt signed by them personally?
A Yes, sir.
Q And it was signed in your presence?
A Yes, sir.38
Indeed, all that the Rules require to establish the authenticity of a document is the testimony of a person who saw the
document executed or written. Thus, the trial court did not err in admitting the Subrogation Receipt in evidence
despite petitioners ATI and Westwinds objections that it was not authenticated by the person who signed it.
However, the same cannot be said about Marine Certificate No. 708-8006717-4 which Ongchangcho, Jr. merely
identified in court. There is nothing in Ongchangco, Jr.s testimony which indicates that he saw Philams authorized
representative sign said document, thus:
ATTY. PALACIOS
Q Now, I am presenting to you a copy of this marine certificate 708-8006717-4 issued by Philam Insurance Company,
Inc. to Universal Motors Corporation on April 15, 1995. Will you tell us what relation does it have to that policy risk
claim mentioned in that letter?
A This is a photocopy of the said policy issued by the consignee Universal Motors Corporation.
ATTY. PALACIOS
I see. May I request, if Your Honor please, that this marine risk policy of the plaintiff as submitted by claimant
Universal Motors Corporation be marked as Exhibit B.
COURT
Mark it.39
As regards the issuance of Marine Certificate No. 708-8006717-4 after the fact of loss occurred, suffice it to say that
said document simply certifies the existence of an open insurance policy in favor of the consignee. Hence, the
reference to an "Open Policy Number 9595093" in said certificate. The Court finds it completely absurd to suppose
that any insurance company, of sound business practice, would assume a loss that has already been realized, when
the profitability of its business rests precisely on the non-happening of the risk insured against.
Yet, even with the exclusion of Marine Certificate No. 708-8006717-4, the Subrogation Receipt, on its own, is
adequate proof that petitioner Philam paid the consignees claim on the damaged goods. Petitioners ATI and
Westwind failed to offer any evidence to controvert the same. In Malayan Insurance Co., Inc. v. Alberto, 40 the Court
explained the effect of payment by the insurer of the insurance claim in this wise:
We have held that payment by the insurer to the insured operates as an equitable assignment to the insurer of all the
remedies that the insured may have against the third party whose negligence or wrongful act caused the loss. The

right of subrogation is not dependent upon, nor does it grow out of, any privity of contract. It accrues simply upon
payment by the insurance company of the insurance claim. The doctrine of subrogation has its roots in equity. It is
designed to promote and accomplish justice; and is the mode that equity adopts to compel the ultimate payment of a
debt by one who, in justice, equity, and good conscience, ought to pay.41
Neither do we find support in petitioner Westwinds contention that Philams right of action has prescribed.
The Carriage of Goods by Sea Act (COGSA) or Public Act No. 521 of the 74th US Congress, was accepted to be
made applicable to all contracts for the carriage of goods by sea to and from Philippine ports in foreign trade by virtue
of Commonwealth Act (C.A.) No. 65.42 Section 1 of C.A. No. 65 states:
Section 1. That the provisions of Public Act Numbered Five hundred and twenty-one of the Seventy-fourth Congress
of the United States, approved on April sixteenth, nineteen hundred and thirty-six, be accepted, as it is hereby
accepted to be made applicable to all contracts for the carriage of goods by sea to and from Philippine ports in
foreign trade: Provided, That nothing in the Act shall be construed as repealing any existing provision of the Code of
Commerce which is now in force, or as limiting its application.
The prescriptive period for filing an action for the loss or damage of the goods under the COGSA is found in
paragraph (6), Section 3, thus:
(6) Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier
or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person
entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery
by the carrier of the goods as described in the bill of lading. If the loss or damage is not apparent, the notice must be
given within three days of the delivery.
Said notice of loss or damage maybe endorsed upon the receipt for the goods given by the person taking delivery
thereof.
The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of
joint survey or inspection.
In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is
brought within one year after delivery of the goods or the date when the goods should have been delivered: Provided,
That if a notice of loss or damage, either apparent or concealed, is not given as provided for in this section, that fact
shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the
date when the goods should have been delivered.
In the Bill of Lading43 dated April 15, 1995, Rizal Commercial Banking Corporation (RCBC) is indicated as the
consignee while Universal Motors is listed as the notify party. These designations are in line with the subject shipment
being covered by Letter of Credit No. I501054, which RCBC issued upon the request of Universal Motors.
A letter of credit is a financial device developed by merchants as a convenient and relatively safe mode of dealing
with sales of goods to satisfy the seemingly irreconcilable interests of a seller, who refuses to part with his goods
before he is paid, and a buyer, who wants to have control of his goods before paying.44 However, letters of credit are
employed by the parties desiring to enter into commercial transactions, not for the benefit of the issuing bank but
mainly for the benefit of the parties to the original transaction,45 in these cases, Nichimen Corporation as the seller
and Universal Motors as the buyer. Hence, the latter, as the buyer of the Nissan CKD parts, should be regarded as
the person entitled to delivery of the goods. Accordingly, for purposes of reckoning when notice of loss or damage
should be given to the carrier or its agent, the date of delivery to Universal Motors is controlling.

S/S "Calayan Iris" arrived at the port of Manila on April 20, 1995, and the subject cargoes were discharged to the
custody of ATI the next day. The goods were then withdrawn from the CFS Warehouse on May 11, 1995 and the last
of the packages delivered to Universal Motors on May 17, 1995. Prior to this, the latter filed a Request for Bad Order
Survey46 on May 12,1995 following a joint inspection where it was discovered that six pieces of Chassis Frame
Assembly from two bundles were deformed and one Front Axle Sub without Lower from a steel case was dented. Yet,
it was not until August 4, 1995 that Universal Motors filed a formal claim for damages against petitioner Westwind.
Even so, we have held in Insurance Company of North America v. Asian Terminals, Inc. that a request for, and the
result of a bad order examination, done within the reglementary period for furnishing notice of loss or damage to the
carrier or its agent, serves the purpose of a claim. A claim is required to be filed within the reglementary period to
afford the carrier or depositary reasonable opportunity and facilities to check the validity of the claims while facts are
still fresh in the minds of the persons who took part in the transaction and documents are still available.47 Here,
Universal Motors filed a request for bad order survey on May 12, 1995, even before all the packages could be
unloaded to its warehouse.
Moreover, paragraph (6), Section 3 of the COGSA clearly states that failure to comply with the notice requirement
shall not affect or prejudice the right of the shipper to bring suit within one year after delivery of the goods. Petitioner
Philam, as subrogee of Universal Motors, filed the Complaint for damages on January 18, 1996, just eight months
after all the packages were delivered to its possession on May 17, 1995. Evidently, petitioner Philams action against
petitioners Westwind and ATI was seasonably filed.
This brings us to the question that must be resolved in these consolidated petitions. Who between Westwind and ATI
should be liable for the damage to the cargo?
It is undisputed that Steel Case No. 03-245-42K/1 was partly torn and crumpled on one side while it was being
unloaded from the carrying vessel. The damage to said container was noted in the Bad Order Cargo Receipt48dated
April 20, 1995 and Turn Over Survey of Bad Order Cargoes dated April 21, 1995. The Turn Over Survey of Bad Order
Cargoes indicates that said steel case was not opened at the time of survey and was accepted by the arrastre in
good order. Meanwhile, the Bad Order Cargo Receipt bore a notation "B.O. not yet t/over to ATI." On the basis of
these documents, petitioner ATI claims that the contents of Steel Case No. 03-245-42K/1 were damaged while in the
custody of petitioner Westwind.
We agree.
Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods transported by them. Subject to certain exceptions enumerated
under Article 173449 of the Civil Code, common carriers are responsible for the loss, destruction, or deterioration of
the goods. The extraordinary responsibility of the common carrier lasts from the time the goods are unconditionally
placed in the possession of, and received by the carrier for transportation until the same are delivered, actually or
constructively, by the carrier to the consignee, or to the person who has a right to receive them.50
The court a quo, however, found both petitioners Westwind and ATI, jointly and severally, liable for the damage to the
cargo. It observed that while the staff of ATI undertook the physical unloading of the cargoes from the carrying vessel,
Westwinds duty officer exercised full supervision and control over the entire process. The appellate court affirmed the
solidary liability of Westwind and ATI, but only for the damage to one Frame Axle Sub without Lower.
Upon a careful review of the records, the Court finds no reason to deviate from the finding that petitioners Westwind
and ATI are concurrently accountable for the damage to the content of Steel Case No. 03-245-42K/1.
Section 251 of the COGSA provides that under every contract of carriage of goods by the sea, the carrier in relation to
the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the
responsibilities and liabilities and entitled to the rights and immunities set forth in the Act. Section 3 (2)52 thereof then

states that among the carriers responsibilities are to properly load, handle, stow, carry, keep, care for and discharge
the goods carried.53
At the trial, Westwinds Operation Assistant, Menandro G. Ramirez, testified on the presence of a ship officer to
supervise the unloading of the subject cargoes.
ATTY. LLAMAS
Q Having been present during the entire discharging operation, do you remember who else were present at that
time?
A Our surveyor and our checker the foreman of ATI.
Q Were there officials of the ship present also?
A Yes, sir there was an officer of the vessel on duty at that time.54
xxxx
Q Who selected the cable slink to be used?
A ATI Operation.
Q Are you aware of how they made that selection?
A Before the vessel arrived we issued a manifesto of the storage plan informing the ATI of what type of cargo and
equipment will be utilitized in discharging the cargo.55
xxxx
Q You testified that it was the ATI foremen who select the cable slink to be used in discharging, is that correct?
A Yes sir, because they are the one who select the slink and they know the kind of cargoes because they inspected it
before the discharge of said cargo.
Q Are you aware that the ship captain is consulted in the selection of the cable sling?
A Because the ship captain knows for a fact the equipment being utilized in the discharge of the cargoes because
before the ship leave the port of Japan the crew already utilized the proper equipment fitted to the cargo.56(Emphasis
supplied.)
It is settled in maritime law jurisprudence that cargoes while being unloaded generally remain under the custody of
the carrier.57 The Damage Survey Report58 of the survey conducted by Phil. Navtech Services, Inc. from April 20-21,
1995 reveals that Case No. 03-245-42K/1 was damaged by ATI stevedores due to overtightening of a cable sling hold
during discharge from the vessels hatch to the pier. Since the damage to the cargo was incurred during the
discharge of the shipment and while under the supervision of the carrier, the latter is liable for the damage caused to
the cargo.
This is not to say, however, that petitioner ATI is without liability for the damaged cargo.

The functions of an arrastre operator involve the handling of cargo deposited on the wharf or between the
establishment of the consignee or shipper and the ships tackle. Being the custodian of the goods discharged from a
vessel, an arrastre operators duty is to take good care of the goods and to turn them over to the party entitled to their
possession.59
Handling cargo is mainly the arrastre operators principal work so its drivers/operators or employees should observe
the standards and measures necessary to prevent losses and damage to shipments under its custody.60
While it is true that an arrastre operator and a carrier may not be held solidarily liable at all times,61 the facts of these
cases show that apart from ATIs stevedores being directly in charge of the physical unloading of the cargo, its
foreman picked the cable sling that was used to hoist the packages for transfer to the dock. Moreover, the fact that
218 of the 219 packages were unloaded with the same sling unharmed is telling of the inadequate care with which
ATIs stevedore handled and discharged Case No. 03-245-42K/1.
With respect to petitioners ATI and Westwinds liability, we agree with the CA that the same should be confined to the
value of the one piece Frame Axle Sub without Lower.
In the Bad Order Inspection Report62 prepared by Universal Motors, the latter referred to Case No. 03-245-42K/1 as
the source of said Frame Axle Sub without Lower which suffered a deep dent on its buffle plate. Yet, it identified Case
No. 03-245-51K as the container which bore the six pieces Frame Assembly with Bush. Thus, in Philams Complaint,
it alleged that "the entire shipment showed one (1) pc. FRAME AXLE SUB W/O LWR from Case No. 03-245-42K/1
was completely deformed and misaligned, and six (6) other pcs. of FRAME ASSEMBLY WITH BUSH from Case No.
03-245-51K were likewise completely deformed and misaligned."63 Philam later claimed in its Appellees Brief that the
six pieces of Frame Assembly with Bush were also inside the damaged Case No. 03-245-42K/1.
However, there is nothing in the records to show conclusively that the six Frame Assembly with Bush were likewise
contained in and damaged inside Case No. 03-245-42K/1. In the Inspection Survey Report of Chartered Adjusters,
Inc., it mentioned six pieces of chassis frame assembly with deformed body mounting bracket. However, it merely
noted the same as coming from two bundles with no identifying marks.
Lastly, we agree with petitioner Westwind that the CA erred in imposing an interest rate of 12% on the award of
damages. Under Article 2209 of the Civil Code, when an obligation not constituting a loan or forbearance of money is
breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of
6% per annum.64 In the similar case of Belgian Overseas Chartering and Shipping NV v. Philippine First Insurance
Co., lnc.,65 the Court reduced the rate of interest on the damages awarded to the carrier therein to 6% from the time of
the filing of the complaint until the finality of the decision.
WHEREFORE, the Court AFFIRMS with MODIFICATION the Decision dated October 15,2007 and the Resolution
dated January 11, 2008 of the Court of Appeals in CA-G.R. CV No. 69284 in that the interest rate on the award
ofP190,684.48 is reduced to 6% per annum from the date of extrajudicial demand, until fully paid.
With costs against the petitioners in G.R. No. 181163 and G.R. No. 181319, respectively.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice

SECOND DIVISION
LOMISES ALUDOS, deceased,
substituted by FLORA ALUDOS,
Petitioner,

G.R. No. 165285

Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

- versus -

Promulgated:
*

JOHNNY M. SUERTE,
Respondent.

June 18, 2012

x------------------------------------------------------------------------------------x
DECISION
BRION, J.:
Before the Court is a petition for review on certiorari filed under Rule 45 of the
Rules of Court by Lomises Aludos, through his wife Flora Aludos (Lomises).
[1]
Lomises seeks the reversal of the decision [2] dated August 29, 2002 of the Court
of Appeals (CA) in CA-G.R. CV No. 63113, as well as the resolution [3] dated
August 17, 2004.
THE FACTS
Sometime in January 1969, Lomises acquired from the Baguio City Government
the right to occupy two stalls in the Hangar Market in Baguio City, as evidenced by
a permit issued by the City Treasurer.[4]
On September 8, 1984, Lomises entered into an agreement with respondent Johnny
M. Suerte for the transfer of all improvements and rights over the two market
stalls(Stall Nos. 9 and 10) for the amount of P260,000.00. Johnny gave a down
payment ofP45,000.00 to Lomises, who acknowledged receipt of the amount in a
document[5]executed on the same date as the agreement:

RECEIPT
P45,000.00 September 8, 1984
Received the Sum of Forty Five Thousand Pesos (P45,000.00) from JOHNNY M.
SUERTE, with postal address at Kamog, Sablan, Benguet Province, Philippine
Currency as an advance or partial downpayment of Improvements and Rights
over Stall Nos. 9 and 10, situated at Refreshment Section, Hangar Market
Compound, Baguio City, and the said amount will be deducted from the agreed
proceeds of the transaction in the amount of Two Hundred Sixty Thousand Pesos
(P260,000.00), Philippine Currency and payable starting from September 1984 up
to December 1985, and/or (16) months.
This receipt will be formalise (sic) later, and the Deed of Absolute Transfer of
Improvements and Rights over the said Stall be executed immediately upon full
payment of the balance stated in the above.
Right hand thumbmark:
[Thumbmark affixed]
LOMISES F. ALUDOS
(Registered Stall Holder)

Johnny
made

With the Consent of the Wife:

[Signature affixed]
FLORA MENES
(Wife)
Witness to Thumbmark and/or
Paid in the presence of:
[Signature affixed]
Domes M. Suerte
(witness)
[Signature affixed]
Ana Comnad (witness)

[Signature affixed]
Agnes M. Boras
(witness)

[Signature affixed]
Dolores Aludos (with
her consent/witness)

subsequent payment ofP23,000.00; hence, a total of P68,000.00 of theP260,000.00

purchase price had been made as of 1984. Before full payment could be made,
however, Lomises backed out of the agreement and returned the P68,000.00 to
Domes and Jaime Suerte, the mother and the father of Johnny, respectively. The
return of the P68,000.00 down payment was embodied in a handwritten
receipt[6] dated October 9, 1985:

RECEIPT
P68,000.00
Received from Mr. Lomises Aludos the sum of Sixty-eight thousand (P68,000.00)
Pesos as reimbursement of my money.
Baguio City, October 9, 1985.
[Signature affixed]
JAIME SUERTE

[Signature affixed]
DOMES SUERTE

Witnesses
[Illegible signature]

[Illegible signature]

Through a letter dated October 15, 1985, Johnny protested the return of his money,
and insisted on the continuation and enforcement of his agreement with
Lomises. When Lomises refused Johnnys protest, Johnny filed a complaint against
Lomises before the Regional Trial Court (RTC), Branch 7, Baguio City,
for specific performance with damages, docketed as Civil Case No. 720R. Johnny prayed that, after due proceedings, judgment be rendered ordering
Lomises to (1) accept the payment of the balance of P192,000.00; and (2) execute
a final deed of sale and/or transfer the improvements and rights over the two
market stalls in his favor.
In a decision dated November 24, 1998,[7] the RTC nullified the agreement between
Johnny and Lomises for failure to secure the consent of the Baguio City
Government to the agreement. The RTC found that Lomises was a mere lessee of
the market stalls, and the Baguio City Government was the owner-lessor of the
stalls. Under Article 1649 of the Civil Code, [t]he lessee cannot assign the lease
without the consent of the lessor, unless there is a stipulation to the contrary. As the
permit issued to Lomises did not contain any provision that the lease of the market
stalls could further be assigned, and in the absence of the consent of the Baguio
City Government to the agreement, the RTC declared the agreement between
Lomises and Johnny null and void. The nullification of the agreement required the
parties to return what had been received under the agreement; thus, the RTC
ordered Lomises to return the down payment made by Johnny, with interest of 12%

per annum, computed from the time the complaint was filed until the amount is
fully paid. It dismissed the parties claims for damages.
Lomises appealed the RTC decision to the CA, arguing that the real agreement
between the parties was merely one of loan, and not of sale; he further claimed that
the loan had been extinguished upon the return of the P68,000.00 to Johnnys
mother, Domes.
In a decision dated August 29, 2002,[8] the CA rejected Lomises claim that
the true agreement was one of loan. The CA found that there were two agreements
entered into between Johnny and Lomises: one was for the assignment of leasehold
rights and the other was for the sale of the improvements on the market stalls. The
CA agreed with the RTC that the assignment of the leasehold rights was void for
lack of consent of the lessor, the Baguio City Government. The sale of the
improvements, however, was valid because these were Lomises private
properties. For this reason, the CA remanded the case to the RTC to determine the
value of the improvements on the two market stalls, existing at the time of the
execution of the agreement.
Lomises moved for the reconsideration of the CA ruling, contending that no
valid sale of the improvements could be made because the lease contract, dated
May 1, 1985, between Lomises and the Baguio City Government, supposedly
marked as Exh. A, provided that [a]ll improvements [introduced shall] ipso facto
become properties of the City of Baguio.[9]
In a resolution dated August 17, 2004,[10] the CA denied the motion after
finding that Lomises lawyer, Atty. Rodolfo Lockey, misrepresented Exh. A as the
governing lease contract between Lomises and the Baguio City Government; the
records reveal that Exh. A was merely a permit issued by the City Treasurer in
favor of Lomises. The contract of lease dated May 1, 1985 was never formally
offered in evidence before the RTC and could thus not be considered pursuant to
the rules of evidence.
Lomises now appeals the CA rulings through the present petition for review
oncertiorari.
THE PARTIES ARGUMENTS
Lomises insists that the agreement was merely one of loan, not of sale of
improvements and leasehold rights. Johnny could not afford to purchase from

Lomises the two market stalls for P260,000.00 because the former was a mere
college student when the agreement was entered into in 1984 and was dependent
on his parents for support. The actual lender of the amount was Johnnys mother,
Domes; Johnnys name was placed on the receipt dated September 8, 1984 so that
in case the loan was not paid, the rights over the market stalls would be transferred
to Johnnys name, not to Domes who already had a market stall and was thus
disqualified from acquiring another. The receipt dated September 8, 1984, Lomises
pointed out, bears the signature of Domes, not of Johnny.
Even assuming that Johnny was the real creditor, Lomises alleges that the loan had
been fully paid when he turned over the amount of P68,000.00 to Johnnys parents,
as evidenced by the receipt dated October 9, 1985. Domes claim that she was
pressured to accept the amount is an implied admission that payment had
nonetheless been received.When Johnny died during the pendency of the case
before the RTC, his parents became his successors and inherited all his rights. For
having received the full amount of the loan, Johnnys parents can no longer enforce
payment of the loan.
Lomises contends that there were no improvements made on the market stalls other
than the stalls themselves, and these belong to the Baguio City Government as the
lessor. A transfer of the stalls cannot be made without a transfer of the leasehold
rights, in which case, there would be an indirect violation of the lease contract with
the Baguio City Government. Lomises further alleges that, at present, the market
stalls are leased by Flora and her daughter who both obtained the lease in their own
right and not as Lomises successors.
Johnny, through his remaining successor Domes (Johnnys mother), opposed
Lomises claim. The receipt dated September 8, 1984 clearly referred to a contract
of sale of the market stalls and not a contract of loan that Lomises alleges.
Although Johnny conceded that the sale of leasehold rights to the market stalls
were void for lack of consent of the Baguio City Government, he alleged that the
sale of the improvements should be upheld as valid, as the CA did.
THE COURTS RULING
The Court does not find the petition meritorious.

The Nature of the Agreement between the

Parties
Lomises questions the nature of the agreement between him and Johnny, insisting
that it was a contract of loan, not an assignment of leasehold rights and sale of
improvements.In other words, what existed was an equitable mortgage, as
contemplated in Article 1602, in relation with Article 1604, of the Civil Code. An
equitable mortgage has been defined as one which although lacking in some
formality, or form or words, or other requisites demanded by a statute, nevertheless
reveals the intention of the parties to charge real property as security for a
debt, there being no impossibility nor anything contrary to law in this intent.
[11]
Article 1602 of the Civil Code lists down the circumstances that may indicate
that a contract is an equitable mortgage:
Art. 1602. The contract shall be presumed to be an equitable mortgage, in
any of the following cases:
(1) When the price of a sale with right to repurchase is unusually
inadequate;
(2) When the vendor remains in possession as lessee or otherwise;
(3) When upon or after the expiration of the right to repurchase another
instrument extending the period of redemption or granting a new period is
executed;
(4) When the purchaser retains for himself a part of the purchase price;
(5) When the vendor binds himself to pay the taxes on the thing sold;
(6) In any other case where it may be fairly inferred that the real
intention of the parties is that the transaction shall secure the
payment of a debt or the performance of any other obligation.
In any of the foregoing cases, any money, fruits, or other benefit to be received by
the vendee as rent or otherwise shall be considered as interest which shall be
subject to the usury laws. [Emphases ours.]

Based on Lomises allegations in his pleadings, we consider three circumstances to

determine whether his claim is well-supported. First, Johnny was a mere college
student dependent on his parents for support when the agreement was executed,
and it was Johnnys mother, Domes, who was the party actually interested in

acquiring the market stalls. Second, Lomises received only P48,000.00 of

the P68,000.00 that Johnny claimed he gave as down payment; Lomises said that
the P20,000.00 represented interests on the loan. Third, Lomises retained
possession of the market stalls even after the execution of the agreement.
Whether separately or taken together, these circumstances do not support a
conclusion that the parties only intended to enter into a contract of loan.
That Johnny was a mere student when the agreement was executed does not
indicate that he had no financial capacity to pay the purchase price
of P260,000.00. At that time, Johnny was a 26-year old third year engineering
student who operated as a businessman as a sideline activity and who helped his
family sell goods in the Hangar Market. [12]During trial, Johnny was asked where he
was to get the funds to pay the P260,000.00 purchase price, and he said he would
get a loan from his grandfather.[13] That he did not have the full amount at the time
the agreement was executed does not necessarily negate his capacity to pay the
purchase price, since he had 16 months to complete the payment. Apart from
Lomises bare claim that it was Johnnys mother, Domes, who was interested in
acquiring his market stalls, we find no other evidence supporting the claim that
Johnny was merely acting as a dummy for his mother.
Lomises contends that of the P68,000.00 given by Johnny, he only
received P48,000.00, with the remaining P20,000.00 retained by Johnny as interest
on the loan. However, the testimonies of the witnesses presented during trial,
including Lomises himself, negate this claim. Judge Rodolfo Rodrigo (RTC of
Baguio City, Branch VII) asked Lomises lawyer, Atty. Lockey, if they deny receipt
of the P68,000.00; Atty. Lockey said that they were not denying receipt, and added
that they had in fact returned the same amount. [14]Judge Rodrigo accurately
summarized their point by stating that there is no need to dispute whether
the P68,000.00 was given, because if [Lomises] tried to return that x x x he had
received that.[15] Witness Atty. Albert Umaming said he counted the money before
he drafted the October 9, 1985 receipt evidencing the return; he said that Lomises
returned P68,000.00 in total.[16] Thus, if the transaction was indeed a loan and
the P20,000.00 interest was already prepaid by Lomises, the return of the full
amount of P68,000.00 by Lomises to Johnny (through his mother, Domes) would
not make sense.
That Lomises retained possession of the market stalls even after the execution of
his agreement with Johnny is also not an indication that the true transaction
between them was one of loan. Johnny had yet to complete his payment and, until

Lomises decided to forego with their agreement, had four more months to pay;
until then, Lomises retained ownership and possession of the market stalls.[17]
Lomises cannot feign ignorance of the import of the terms of the receipt of
September 8, 1984 by claiming that he was an illiterate old man. A witness (Ana
Comnad) testified not only of the fact of the sale, but also that Lomises daughter,
Dolores, translated the terms of the agreement from English to Ilocano for Lomises
benefit;[18] Lomises himself admitted this fact.[19] If Lomises believed that the
receipt of September 8, 1984 did not express the parties true intent, he could have
refused to sign it or subsequently requested for a reformation of its terms. Lomises
rejected the agreement only after Johnny sought to enforce it.
Hence, the CA was correct in characterizing the agreement between Johnny
and Lomises as a sale of improvements and assignment of leasehold rights.
The Validity of the Agreement
Both the RTC and the CA correctly declared that the assignment of the leasehold
rights over the two market stalls was void since it was made without the consent of
the lessor, the Baguio City Government, as required under Article 1649 of the Civil
Code.[20]Neither party appears to have contested this ruling.
Lomises, however, objects to the CA ruling upholding the validity of the agreement
insofar as it involved the sale of improvements on the stalls. Lomises alleges that
the sale of the improvements should similarly be voided because it was made
without the consent of the Baguio City Government, the owner of the
improvements, pursuant to the May 1, 1985 lease contract.[21] Lomises further
claims that the stalls themselves are the only improvements on the property and a
transfer of the stalls cannot be made without transferring the leasehold
rights. Hence, both the assignment of leasehold rights and the sale of
improvements should be voided.
The CA has already rejected the evidentiary value of the May 1, 1985 lease
contract between the Baguio City Government and Lomises, as it was not formally
offered in evidence before the RTC; in fact, the CA admonished Lomises lawyer,
Atty. Lockey, for making it appear that it was part of the records of the case. Under
Section 34, Rule 132 of the Rules of Court, the court shall consider no evidence
which has not been formally offered. The offer of evidence is necessary because it
is the duty of the court to rest its findings of fact and its judgment only and strictly
upon the evidence offered by the parties. Unless and until admitted by the court in
evidence for the purpose or purposes for which such document is offered, the same

is merely a scrap of paper barren of probative weight. [22] Although the contract was
referred to in Lomises answer to Johnnys complaint [23] and marked as Exhibit 2 in
his pre-trial brief,[24] a copy of it was never attached. In fact, a copy of the May 1,
1985 lease contract surfaced only after Lomises filed a motion for reconsideration
of the CA decision. What was formally offered was the 1969 permit, which only
stated that Lomises was permitted to occupy a stall in the Baguio City market and
nothing else.[25] In other words, no evidence was presented and formally offered
showing that any and all improvements in the market stalls shall be owned by the
Baguio City Government.
Likewise unsupported by evidence is Lomises claim that the stalls themselves were
the only improvements. Hence, the CA found it proper to order the remand of the
case for the RTC to determine the value of the improvements on the market stalls
existing as of September 8, 1984.[26] We agree with the CAs order of remand. We
note, however, that Lomises had already returned the P68,000.00 and receipt of the
amount has been duly acknowledged by Johnnys mother, Domes. Johnny testified
on October 6, 1986 that the money was still with his mother.[27] Thus, upon
determination by the RTC of the actual value of the improvements on the market
stalls, the heirs of Johnny Suerte should pay the ascertained value of these
improvements to Lomises, who shall thereafter be required to execute the deed of
sale over the improvements in favor of the heirs of Johnny.
WHEREFORE, under these premises, the Court hereby AFFIRMS the
ruling of the Court of Appeals for the remand of the case to the Regional Trial
Court of Baguio City, Branch 7, for the determination of the value of the
improvements on Stall Nos. 9 and 10 at the Refreshment Section of the Hangar
Market Compound, Baguio City as of September 8, 1984. After this determination,
the Court ORDERS the heirs of Johnny M. Suerte to pay the amount determined
to the heirs of Lomises Aludos, who shall thereafter execute the deed of sale
covering the improvements in favor of the heirs of Johnny M. Suerte and deliver
the deed to them. Costs against the petitioner.
SO ORDERED.
ARTURO D. BRION
Associate Justice

THIRD DIVISION
WESTMONT INVESTMENT

G.R. No. 194128

CORPORATION,
Petitioner,

Present:
PERALTA, J.,
Acting Chairperson,
ABAD,

- versus -

MENDOZA,
SERENO, and
PERLAS-BERNABE, JJ

AMOS P. FRANCIA, JR.,

CECILIA ZAMORA,

Promulgated:

BENJAMIN FRANCIA, and

December 7, 2011

PEARLBANK SECURITIES,
INC.,
Respondents.

x --------------------------------------------------------------------------------------- x

DECISION
MENDOZA, J.:
At bench is a petition for review on certiorari under Rule 45
of the Rules of Court assailing the (1) July 27, 2010 Decision [1] of
the Court of Appeals (CA) in CA-G.R. CV No. 84725, which affirmed
with modification the September 27, 2004 Decision [2] of the
Regional Trial Court, Branch 56, Makati City (RTC) in Civil Case No.
01-507; and (2) its October 14, 2010 Resolution, [3] which denied
the motion for the reconsideration thereof.
THE FACTS:
On March 27, 2001, respondents Amos P. Francia, Jr., Cecilia
Zamora and Benjamin Francia (the Francias) filed a Complaint for
Collection of Sum of Money and Damages [4] arising from their
investments
against
petitioner
Westmont
Investment
Corporation (Wincorp) and respondent Pearlbank Securities Inc.
(Pearlbank) before the RTC.
Wincorp and Pearlbank filed their separate motions to dismiss.
[5]
Both motions were anchored on the ground that the complaint
of the Francias failed to state a cause of action. On July 16, 2001,
after several exchanges of pleadings, the RTC issued an
order[6] dismissing the motions to dismiss of Wincorp and
Pearlbank for lack of merit.
Wincorp then filed its Answer, [7] while Pearlbank filed its
Answer with Counterclaim and Crossclaim (against Wincorp). [8]
The case was set for pre-trial but before pre-trial conference could
be held, Wincorp filed its Motion to Dismiss Crossclaim [9] of
Pearlbank to which the latter filed an opposition. [10] The RTC
denied Wincorps motion to dismiss crossclaim. [11]
The pre-trial conference was later conducted after the parties had
filed their respective pre-trial briefs. The parties agreed on the
following stipulation of facts, as contained in the Pre-Trial
Order[12] issued by the RTC on April 17, 2002:

1. The personal and juridical circumstances of the parties

meaning, the plaintiffs and both corporate defendants;
2. That plaintiffs caused the service of a demand letter on Pearl
Bank onFebruary 13, 2001 marked as Exhibit E;
3. Plaintiffs do not have personal knowledge as to
whether or not Pearl Bank indeed borrowed the
funds allegedly invested by the plaintiff from
Wincorp;and
4. That the alleged confirmation advices which
indicate Pearl Bank as alleged borrower of the
funds allegedly invested by the plaintiffs in
Wincorp
do
not
bear
the
signature
or
acknowledgment of Pearl Bank. (Emphases
supplied)

After several postponements requested by Wincorp, trial on the

merits finally ensued. The gist of the testimony of Amos Francia,
Jr. (Amos) is as follows:
1. Sometime in 1999, he was enticed by Ms.
Lalaine Alcaraz, the bank manager of Westmont Bank,
Meycauayan, Bulacan Branch, to make an investment
with Wincorp, the banks financial investment arm, as it
was offering interest rates that were 3% to 5% higher
than regular bank interest rates. Due to the promise of
a good return of investment, he was convinced to
invest. He even invited his sister, Cecilia Zamora and
his brother, Benjamin Francia, to join him. Eventually,
they placed their investment in the amounts of
1,420,352.72 and 2,522,745.34 with Wincorp in
consideration of a net interest rate of 11% over a 43day spread.Thereafter, Wincorp, through Westmont
Bank, issued Official Receipt Nos. 470844 [13] and
470845,[14] both dated January 27, 2000, evidencing the
said transactions.[15]

2. When the 43-day placement matured, the

Francias wanted to retire their investments but they
were told that Wincorp had no funds. Instead, Wincorp
rolled-over their placements and issued Confirmation
Advices[16] extending their placements for another 34
days. The said confirmation advices indicated the name
of the borrower as Pearlbank. The maturity values were
1,435,108.61 and 2,548,953.86 with a due date
ofApril 13, 2000.

3. On April 13, 2000, they again tried to get back

the principal amount they invested plus interest but,
again, they were frustrated.[17]

4. Constrained,
they
demanded
from
[18]
Pearlbank
their investments. There were several
attempts to settle the case, but all proved futile.

After the testimony of Amos Francia, Jr., the Francias filed

their
Formal
Offer
of
Evidence.[19] Pearlbank
filed
its
[20]
Comment/Objection,
while Wincorp did not file any comment or
objection. After all the exhibits of the Francias were admitted for
the purposes they were offered, the Francias rested their case.
Thereafter, the case was set for the presentation of the
defense evidence of Wincorp. On March 7, 2003, three (3) days
before the scheduled hearing, Wincorp filed a written motion to
postpone the hearing on even date, as its witness, Antonio T. Ong,
was unavailable because he had to attend a congressional
hearing. Wincorps substitute witness, Atty. Nemesio Briones, was
likewise unavailable due to a previous commitment in the
Securities and Exchange Commission.

The RTC denied Wincorps Motion to Postpone and considered

it to have waived its right to present evidence. [21] The Motion for
Reconsideration of Wincorp was likewise denied. [22]

On August 14, 2003, Pearlbank filed its Demurrer to

Evidence.[23] The
RTC
granted
the
same
in
its
[24]
Order
dated January 12, 2004. Hence, the complaint against
Pearlbank was dismissed, while the case was considered
submitted for decision insofar as Wincorp was concerned.

On September 27, 2004, the RTC rendered a decision [25] in favor of

the Francias and held Wincorp solely liable to them. The
dispositive portion thereof reads:
WHEREFORE, judgment is rendered ordering defendant
Westmont Investment Corporation to pay the plaintiffs, the
following amounts:

1.

3,984,062.47 representing the aggregate amount of

investment placements made by plaintiffs, plus 11%
per annum by way of stipulated interest, to be counted
from 10 March 2000 until fully paid; and

2. 10% of the above-mentioned amount as and for

attorneys fees and costs of suit.

SO ORDERED.

Wincorp then filed a motion for reconsideration, but it was denied

by the RTC in its Order[26] dated November 10, 2004.

Not in conformity with the pronouncement of the RTC, Wincorp

interposed an appeal with the CA, alleging the following
arguments:

I. THE REGIONAL TRIAL COURT ERRED WHEN IT HELD

THAT WINCORP AS AGENT OF PLAINTIFFS-APPELLEES WAS
LIABLE TO THE LATTER NOTWITHSTANDING THE CLEAR
WRITTEN AGREEMENT TO THE CONTRARY;

II. THE REGIONAL TRIAL COURT ALSO ERRED WHEN IT

HELD THAT PEARLBANK, THE ACTUAL BORROWER AND
RECIPIENT OF THE MONEY INVOLVED IS NOT LIABLE TO
THE PLAINTIFFS-APPELLEES; and

III. THE REGIONAL TRIAL COURT ERRED IN DISMISSING

ALL TOGETHER THE CROSS-CLAIM OF WINCORP AGAINST
PEARLBANK.[27]

The CA affirmed with modification the ruling of the RTC in its July
27, 2010 Decision, the decretal portion of which reads:

WHEREFORE, premises considered, the present Appeal

is DENIED.The Decision dated 27 September 2004 of the
Regional Trial Court, Branch 56,Makati City in Civil Case No. 01507 is hereby AFFIRMED WITH MODIFICATION of the
awards. Defendant-appellant Wincorp is hereby ordered to pay
plaintiffs-appellees the amounts of 3,984,062.47 plus 11% per
annum by way of stipulated interest to be computed from 13 April
2000 until fully paid and 100,000.00 as attorneys fees and cost
of suit.

SO ORDERED

The CA explained:

After a careful and judicious scrutiny of the records of the present

case, together with the applicable laws and jurisprudence, this
Court finds defendant-appellant Wincorp solely liable to pay the
amount of 3,984,062.47 plus 11% interest per annum computed
from 10 March 2000 to plaintiffs-appellees.

Preliminarily, the Court will rule on the procedural issues raised

to know what pieces of evidence will be considered in this appeal.

Section 34, Rule 132 of the Rules on Evidence states

that:

The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be
specified.

A formal offer is necessary because judges are mandated to rest

their findings of facts and their judgment only and strictly upon
the evidence offered by the parties at the trial. Its function is to
enable the trial judge to know the purpose or purposes for which
the proponent is presenting the evidence. On the other hand, this
allows opposing parties to examine the evidence and object to its
admissibility. Moreover, it facilitates review as the appellate court
will not be required to review documents not previously
scrutinized by the trial court.Evidence not formally offered during
the trial can not be used for or against a party litigant. Neither
may it be taken into account on appeal.

The rule on formal offer of evidence is not a trivial matter. Failure

to make a formal offer within a considerable period of time shall
be deemed a waiver to submit it. Consequently, any evidence that
has not been offered shall be excluded and rejected.

Prescinding therefrom, the very glaring conclusion is that all the

documents attached in the motion for reconsideration of the
decision of the trial court and all the documents attached in the
defendant-appellants brief filed by defendant-appellant
Wincorp cannot be given any probative weight or
credit for the sole reason that the said documents
were not formally offered as evidence in the trial
court because to consider them at this stage will
deny the other parties the right to rebut them.

The arguments of defendant-appellant Wincorp that the plaintiffsappellees made an erroneous offer of evidence as the documents
were offered to prove what is contrary to its content and that they
made a violation of the parol evidence rule do not hold water.

It is basic in the rule of evidence that objection to evidence must

be made after the evidence is formally offered. In case of
documentary evidence, offer is made after all the witnesses of the
party making the offer have testified, specifying the purpose for
which the evidence is being offered. It is only at this time, and not
at any other, that objection to the documentary evidence may be
made.

As to oral evidence, objection thereto must likewise be

raised at the earliest possible time, that is, after the objectionable

question is asked or after the answer is given if the objectionable

issue becomes apparent only after the answer was given.
xxx

In the case at bench, a perusal of the records shows that the

plaintiffs-appellees have sufficiently established their cause of
action by preponderance of evidence. The fact that on 27 January
2000, plaintiffs-appellees placed their investment in the amounts
of 1,420,352.72 and 2,522,754.34 with defendant-appellant
Wincorp to earn a net interest at the rate of 11% over a 43-day
period was distinctly proved by the testimony of plaintiff-appellee
Amos Francia, Jr. and supported by Official Receipt Nos. 470844
and 470845 issued by defendant-appellant Wincorp through
Westmont Bank. The facts that plaintiffs-appellees failed to get
back their investment after 43 days and that their investment was
rolled over for another 34 days were also established bytheir oral
evidence and confirmed by the Confirmation Advices issued by
defendant-appellant Wincorp, which indicate that their
investment
already
amounted
to 1,435,108.61
and 2,548,953.86 upon its maturity on 13 April 2000. Likewise,
the fact that plaintiffs-appellees investment was not returned to
them until this date by defendant-appellant Wincorp was proved
by their evidence. To top it all, defendant-appellant Wincorp
never negated these established facts because defendant-appellant
Wincorps claim is that it received the money of plaintiffsappellees but it merely acted as an agent of plaintiffs-appellees
and that the actual borrower of plaintiffs-appellees money is
defendant-appellee PearlBank. Hence, defendant-appellant
Wincorp alleges that it should be the latter who must be held
liable to the plaintiffs-appellees.

However, the contract of agency and the fact that defendantappellee PearlBank actually received their money were never

proven. The records are bereft of any showing that defendantappellee PearlBank is the actual borrower of the money invested
by plaintiffs-appellees as defendant-appellant Wincorp never
presented any evidence to prove the same.

Moreover, the trial court did not err in dismissing defendantappellant Wincorps crossclaim as nothing in the records supports
its claim. And such was solely due to defendant-appellant
Wincorp because it failed to present any scintilla of evidence that
would implicate defendant-appellee PearlBank to the transactions
involved in this case. The fact that the name of defendant-appellee
PearlBank was printed in the Confirmation Advices as the actual
borrower does not automatically makes defendant-appellee
PearlBank liable to the plaintiffs-appellees as nothing therein
shows that defendant-appellee PearlBank adhered or
acknowledged that it is the actual borrower of the amount
specified therein.

Clearly, the plaintiffs-appellees were able to establish their cause

of action against defendant-appellant Wincorp, while the latter
failed to establish its cause of action against defendant-appellee
PearlBank.
Hence, in view of all the foregoing, the Court finds defendantappellant Wincorp solely liable to pay the amount
of 3,984,062.47 representing the matured value of the plaintiffsappellees investment as of 13 April 2000 plus 11% interest per
annum by way of stipulated interest counted from maturity date
(13 April 2000).

As to the award of attorneys fees, this Court finds that the

undeniable source of the present controversy is the failure of
defendant-appellant Wincorp to return the principal amount and

the interest of the investment money of plaintiffs-appellees, thus,

the latter was forced to engage the services of their counsel to
protect their right. It is elementary that when attorneys fees is
awarded, they are so adjudicated, because it is in the nature of
actual damages suffered by the party to whom it is awarded, as he
was constrained to engage the services of a counsel to represent
him for the protection of his interest. Thus, although the award of
attorneys fees to plaintiffs-appellees was warranted by the
circumstances obtained in this case, this Court finds it equitable to
reduce the same from 10% of the total award to a fixed amount
of 100,000.00.[28]

Wincorps Motion for Reconsideration was likewise denied by

the CA in itsOctober 14, 2010 Resolution.[29]

Not in conformity, Wincorp seeks relief

Court via this petition for review alleging that

with

PLAINTIFFS-RESPONDENTS HAVE NO CAUSE OF

ACTION AGAINST WINCORP AS THE EVIDENCE ON
RECORD SHOWS THAT THE ACTUAL BENEFICIARY OF
THE PROCEEDS OF THE LOAN TRANSACTIONS WAS
PEARLBANK

SUBSTANTIAL JUSTICE DICTATES THAT THE

EVIDENCE PROFERRED BY WINCORP SHOULD BE
CONSIDERED TO DETERMINE WHO, AMONG THE
PARTIES, ARE LIABLE TO PLAINTIFFSRESPONDENTS[30]

ISSUE

this

The core issue in this case is whether or not the CA is correct

in finding Wincorpsolely liable to pay the Francias the amount of
3,984,062.47 plus interest of 11% per annum.

Quite clearly, the case at bench presents a factual issue.

As a rule, a petition for review under Rule 45 of the Rules of
Court covers onlyquestions of law. Questions of fact are not
reviewable and cannot be passed upon by this Court in the
exercise of its power to review. The distinction between
questions of law and questions of fact is established.
A question of law exists when the doubt or difference centers
on what the law is on a certain state of facts. A question of
fact, on the other hand, exists if the doubt centers on the truth
or falsity of the alleged facts. [31] This being so, the findings of
fact of the CA are final and conclusive and this Court will not
review them on appeal.
While it goes without saying that only questions of law can
be raised in a petition for review on certiorari under Rule 45, the
same admits of exceptions, namely: (1) when the findings are
grounded entirely on speculations, surmises, or conjectures; (2)
when the inference made is manifestly mistaken, absurd, or
impossible; (3) when there is a grave abuse of discretion;
(4) when the judgment is based on misappreciation of facts; (5)
when the findings of fact are conflicting; (6) when in making its
findings, the same are contrary to the admissions of both
appellant and appellee; (7) when the findings are contrary to
those of the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioners
main and reply briefs are not disputed by the respondent; and
(10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record.
[32]

The Court finds that no cogent reason exists in this case to

deviate from the general rule.

Wincorp insists that the CA should have based its decision on

the express terms, stipulations, and agreements provided for in
the documents offered by the Francias as the legal relationship
of the parties was clearly spelled out in the very documents
introduced by them which indicated that it merely brokered the
loan transaction between the Francias and Pearlbank. [33]
Wincorp would want the Court to rule that there was a
contract of agency between it and the Francias with the latter
authorizing the former as their agent to lend money to
Pearlbank. According to Wincorp, the two Confirmation Advices
presented as evidence by the Francias and admitted by the
court, were competent proof that the recipient of the loan
proceeds was Pearlbank.[34]
The Court is not persuaded.
In a contract of agency, a person binds himself to render some
service or to do something in representation or on behalf of
another with the latters consent.[35] It is said that the underlying
principle of the contract of agency is to accomplish results by
using the services of others to do a great variety of things. Its aim
is to extend the personality of the principal or the party for whom
another acts and from whom he or she derives the authority to
act. Its basis is representation.[36]
Significantly, the elements of the contract of agency are: (1)
consent, express or implied, of the parties to establish the
relationship; (2) the object is the execution of a juridical act in
relation to a third person; (3) the agent acts as a representative

and not for himself; (4) the agent acts within the scope of his
authority.[37]
In this case, the principal-agent relationship between the
Francias and Wincorp was not duly established by evidence.
The records are bereft of any showing that Wincorp merely
brokered the loan transactions between the Francias and
Pearlbank and the latter was the actual recipient of the money
invested by the former. Pearlbank did not authorize Wincorp to
borrow money for it. Neither was there a ratification, expressly
or impliedly, that it had authorized or consented to said
transaction.
As to Pearlbank, records bear out that the Francias anchor their
cause of action against it merely on the strength of the subject
Confirmation Advices bearing the name PearlBank as the
supposed borrower of their investments. Apparently, the
Francias ran after Pearlbank only after learning that Wincorp
was reportedly bankrupt.[38] The Francias were consistent in
saying that they only dealt with Wincorp and not with
Pearlbank. It bears noting that even in their Complaint and
during the pre-trial conference, the Francias alleged that they
did not have any personal knowledge if Pearlbank was indeed
the recipient/beneficiary of their investments.
Although the subject Confirmation Advices indicate the name of
Pearlbank as the purported borrower of the said investments,
said documents do not bear the signature or acknowledgment
of Pearlbank or any of its officers. This cannot prove the
position of Wincorp that it was Pearlbank which received and
benefited from the investments made by the Francias. There
was not even a promissory note validly and duly executed by
Pearlbank which would in any way serve as evidence of the
said borrowing.
Another significant point which would support the stand of
Pearlbank that it was not the borrower of whatever funds

supposedly invested by the Francias was the fact that it

initiated, filed and pursued several cases against Wincorp,
questioning, among others, the latters acts of naming it as
borrower of funds from investors.[39]
It bears stressing too that all the documents attached by
Wincorp to its pleadings before the CA cannot be given any
weight or evidentiary value for the sole reason that, as
correctly
observed
by
the
CA,
these
documents
were not formally offered as evidence in the trial court. To
consider them now would deny the other parties the right to
examine and rebut them. Section 34, Rule 132 of the Rules of
Court provides:
Section 34. Offer of evidence The court shall consider
no evidence which has not been formally offered. The
purpose for which the evidence is offered must be
specified.

The offer of evidence is necessary because it is the duty of

the court to rest its findings of fact and its judgment only and
strictly upon the evidence offered by the parties. Unless and
until admitted by the court in evidence for the purpose or
purposes for which such document is offered, the same is
merely a scrap of paper barren of probative weight. [40]
The Court cannot, likewise, disturb the findings of the RTC
and the CA as to the evidence presented by the Francias. It is
elementary that objection to evidence must be made after
evidence is formally offered.[41] It appears that Wincorp was
given ample opportunity to file its Comment/Objection to the
formal offer of evidence of the Francias but it chose not to file
any.

All told, the CA committed no reversible error in rendering the

assailed July
27,
2010Decision
and
in
issuing
the
challenged October 14, 2010 Resolution.
WHEREFORE, the petition is DENIED.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice