FIRST DIVISION

[G.R. No. 122648. August 17, 2000]

W-RED CONSTRUCTION AND DEVELOPMENT CORPORATION, petitioner, vs.

COURT OF APPEALS and ASIA INDUSTRIES, INC., respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review seeking the reversal of the Decision of the Court of
Appeals in CA-G.R. CV No. 37312.

It appears that on several occasions between May 28, 1980 and May 23, 1981,
petitioner W-Red Construction and Development Corporation purchased from
respondent Asia Industries, Inc. various electrical equipment worth P976,487.18,
covered by a total of eighteen sales invoices.[1] Petitioner was able to pay the sum
of P701,877.93, leaving a balance of P298,183.05, inclusive of interest at the rate of
14% per annum computed as of January 20, 1982.[2] For petitioners failure to settle
its remaining obligation despite demands, respondent instituted on November 8,
1982 an action for sum of money and damages, filed with the Regional Trial Court of
Makati, Branch 65, as Civil Case No. 3094.[3]

Petitioner filed its answer,[4] denying receipt of some of the items stated in the sales
invoices and alleging that certain electrical equipment delivered to it were defective
or faulty, for which proper demands for replacement were ignored by respondent.

After respondent, as plaintiff therein, rested its case, petitioner filed a demurrer to
evidence[5] which, however, was denied by the trial court in an Order dated August
28, 1991.[6] Petitioner was given opportunity to adduce evidence but it failed to
appear at the several hearings scheduled therefor. The trial court, thus, declared
petitioner as having waived its right to present evidence.

On January 22, 1992, the trial court rendered judgment for respondent ordering
petitioner to pay the sum of P298,163.05 plus 14% interest from the date of filing of
the complaint; P10,000.00 as attorneys fees and costs.[7]

On appeal, the Court of Appeals affirmed the judgment of the trial court in a decision
dated August 31, 1995.[8] Petitioner filed a Motion for Reconsideration, but the same
was denied by the Court of Appeals in a Resolution dated November 7, 1995.[9]

Hence, this petition for review anchored on the sole ground that:

THE RESPONDENT COURT OF APPEALS AS WELL AS THE TRIAL COURT

COMMITTED A GRAVE ABUSE OF DISCRETION WHEN THEY ADMITTED AND
CONSIDERED PRIVATE DOCUMENTS AS EVIDENCE WHEN SAID DOCUMENTS
WERE NOT AUTHENTICATED NOR IDENTIFIED.

Respondent failed to file its comment on the petition for review despite our
Resolution,[10] for which reason we required it to show cause why it should not be
disciplinarily dealt with or held in contempt.[11] The latter Resolution was returned
unserved.[12] On January 31, 1997, Atty. Caesar F. Mones, counsel of record for
respondent, manifested that as early as 1991 he had severed his attorney-client
relationship with respondent. The Resolution requiring respondent to comment was
sent to its office address. Respondent, still, failed to file its comment and, according
to information furnished by its former counsel, it was in the process of winding up its
business. On June 28, 1999, we dispensed with respondents comment.

In the instant petition, petitioner maintains that the sales invoices presented by
respondent during the trial were inadmissible for being mere photocopies which,
moreover, were not authenticated by respondents lone witness. Likewise, the
Statement of Account showing petitioners unpaid obligation to respondent was not
identified and authenticated by the person who prepared it.

Petitioners claim that the photocopies of the eighteen sales invoices, marked as
Exhibits "A" to "R", are inadmissible, is untenable. While only photocopies of the
documents are submitted to the court, the record shows that the originals of these
documents were presented during the trial. Hence, it is not accurate to say that the
original exhibits were not presented before the trial court. This became clear at the
beginning of the cross-examination of respondents witness by petitioners counsel:

ATTY. GINETA (for petitioner):

....Mrs. Witness, with regard to sales invoices Exhs. A to R which I would like to
make of record that they are only xerox copies, Your Honor.

ATTY. MONES (for respondent):

....May I manifest, Your Honor, that during the direct examination of the witness the
originals were already shown.

COURT:

....For the information of the counsel, the practice of the Court is that if the exhibits
were marked without the word conditional, that means that the originals were
presented. If the word appears Exh. etc. conditionally, it means the original is not yet
presented.

ATTY. GINETA:

....Because I was not the lawyer then, Your Honor.

COURT:

....Alright, never mind[13]

Petitioner also objects to the admissibility of the statement of account, Exhibit "S", on
the ground that it was not authenticated and identified by the person who prepared it.

As correctly found by the Court of Appeals, respondents only witness, Alma Ramas,
was not entirely incompetent to testify on petitioners obligation. It was sufficiently
established that Ms. Ramas, who was connected with the credit and collection
department, was in charge of monitoring the credit purchases of customers,
including petitioner.[14]

Having ruled on the admissibility of respondents documentary evidence, the next

issue to be resolved is the weight of said exhibits, for admissibility of evidence
should not be confused with its probative value.[15] On this score, the factual

findings of the trial court and the Court of Appeals, which are not shown to be
manifestly erroneous or unsupported by the record, deserve great respect. The
Supreme Court is not a trier of facts. Thus, factual findings of trial courts, when
adopted and confirmed by the Court of Appeals, are binding and conclusive and,
generally, will not be reviewed on appeal.[16]

To begin with, this Court is not a trier of facts. It is not its function to examine and
determine the weight of the evidence supporting the assailed decision. In Philippine
Airlines, Inc. vs. Court of Appeals (275 SCRA 621 [1997]), the Court held that factual
findings of the Court of Appeals which are supported by substantial evidence are
binding, final and conclusive upon the Supreme Court. So also, well-established is
the rule that "factual findings of the Court of Appeals are conclusive on the parties
and carry even more weight when the said court affirms the factual findings of the
trial court." Moreover, well entrenched is the prevailing jurisprudence that only errors
of law and not of facts are reviewable by this Court in a petition for review on
certiorari under Rule 45 of the Revised Rules of Court, which applies with greater
force to the Petition under consideration because the factual findings by the Court of
Appeals are in full agreement with what the trial court found.[17]

In this case, we find no cogent ground to disturb the conclusions of the Court of
Appeals and the trial court. We, therefore, affirm the appealed decision.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 37312 is

AFFIRMED.

SO ORDERED.

EN BANC

G.R. No. 89114

December 2, 1991

FRANCISCO S. TANTUICO, JR., petitioner,

vs.

REPUBLIC OF THE PHILIPPINES, PRESIDENTIAL COMMISSION ON GOOD

GOVERNMENT, MATEO A. T. CAPARAS, AND THE SANDIGANBAYAN,
respondents.

Kenny H. Tantuico for petitioner.

PADILLA, J.:p

In this petition for certiorari, mandamus and prohibition with a prayer for the issuance
of a writ of preliminary injunction and/or restraining order, the petitioner seeks to
annul and set aside the resolution of the Sandiganbayan, dated 21 April 1989,
denying his motion for a bill of particulars as well as its resolution, dated 29 May
1989, which denied his motion for reconsideration; to compel the respondent PCGG
to prepare and file a bill of particulars, or that said respondent be ordered to exclude
petitioner as defendant in Civil Case No. 0035 should they fail to submit the said bill
of particulars; and to enjoin the respondent Sandiganbayan from further proceeding
against petitioner until the bill of particulars is submitted, claiming that the
respondent Sandiganbayan acted with grave abuse of discretion amounting to lack
of jurisdiction in promulgating the aforesaid resolutions and that there is no appeal,
nor any plain, speedy and adequate remedy for him in the ordinary course of law
other than the present petition.

As prayed for, this Court issued on 1 August 1989 a temporary restraining order
"effective immediately and continuing until further orders from this Court, ordering the
respondent Sandiganbayan to CEASE and DESIST from further proceeding in Civil
Case No. 0035 (PCGG 35), entitled "Republic of the Philippines vs. Benjamin
(Kokoy) Romualdez, et al." pending before it. 1

The antecedents are as follows:

On 31 July 1987, the Republic of the Philippines, represented by the PCGG, and
assisted by the Office of the Solicitor General, filed with the Sandiganbayan Civil
Case No. 0035, entitled "Republic of the Philippines vs. Benjamin (Kokoy)

Romualdez, et al." for reconveyance, reversion, accounting, restitution and

damages. 2

The principal defendants in the said Civil Case No. 0035 are Benjamin (Kokoy)
Romualdez, Ferdinand E. Marcos and Imelda R. Marcos.

Petitioner Francisco S. Tantuico, Jr. was included as defendant in Civil Case No.
0035 on the theory that: (1) he acted in unlawful concert with the principal
defendants in the misappropriation and theft of public funds, plunder of the nation's
wealth, extortion, blackmail, bribery, embezzlement and other acts of corruption,
betrayal of public trust and brazen abuse of power; 3 (2) he acted as dummy,
nominee or agent, by allowing himself to be incorporator, director, board member
and/or stockholder of corporations beneficially held and/or controlled by the principal
defendants; 4 (3) he acted singly or collectively, and/or in unlawful concert with one
another, in flagrant breach of public trust and of their fiduciary obligations as public
officers, with gross and scandalous abuse of right and power and in brazen violation
of the Constitution and laws of the Philippines, embarked upon a systematic plan to
accumulate ill-gotten wealth ; 5 (4) he (petitioner) taking undue advantage of his
position as Chairman of the Commission on Audit and with grave failure to perform
his constitutional duties as such Chairman, acting in concert with defendants
Ferdinand E. Marcos and Imelda R. Marcos, facilitated and made possible the
withdrawals, disbursements and questionable use of government funds; 6 and (5) he
acted as dummy, nominee and/or agent by allowing himself to be used as instrument
in accumulating ill-gotten wealth through government concessions, orders and/or
policies prejudicial to plaintiff, or to be incorporator, director, or member of
corporations beneficially held and/or controlled by defendants Ferdinand E. Marcos,
Imelda R. Marcos, Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez in
order to conceal and prevent recovery of assets illegally obtained. 7

On 11 April 1988, after his motion for production and inspection of documents 8 was
denied by respondent court in its resolution 9 dated 9 March 1988, petitioner filed a
Motion for a Bill of Particulars, 10 alleging inter alia that he is sued for acts allegedly
committed by him as (a) a public officer-Chairman of the Commission on Audit, (b)
as a private individual, and (c) in both capacities, in a complaint couched in too
general terms and shorn of particulars that would inform him of the factual and legal
basis thereof, and that to enable him to understand and know with certainty the
particular acts allegedly committed by him and which he is now charged with
culpability, it is necessary that plaintiff furnish him the particulars sought therein
relative to the averments in paragraphs 2, 9(a), 15, 7 and 17 of the Second Amended
Complaint so that he can intelligently prepare his responsive pleading and prepare
for trial. The particulars sought for in the said motion are as follows:

a.
Relative to the averments in paragraphs 2, 9(a) and l5 of the Second
Amended Complaint:

i)
What are the dates of the resolutions (if on appeal) or the acts (if otherwise)
issued or performed by herein defendant which allowed the facilitation of, and made
possible the, withdrawals, disbursements and questionable use of government
funds;

ii)
What ministries or Departments, offices or agencies of the government were
involved in these questionable use of government funds;

iii)
What are the names of the auditors who had the original audit jurisdiction over
the said withdrawals, disbursements and questionable use of government funds;

iv)
How much government funds were involved in these questionabledisbursements, individually and in totally?

v)
Were the disbursements brought to herein defendant for action on pre-audit,
post-audit or otherwise or where they initiated and/or allowed release by herein
defendant alone, without them undergoing usual governmental audit procedures, or
in violation thereof.?

vi)
What were herein defendant's other acts or omission or participation in the
matter of allowing such disbursements and questionable use of government funds, if
any?

b.

Relative to paragraphs 7 and 17 of the Second Amended Complaint:

i)
In what particular contract, dealing, transaction and/or relationship of any
nature of Ferdinand E. Marcos, Imelda R. Marcos, Juliette Gomez Romualdez or
Benjamin T. Romualdez did herein defendant act as dummy, nominee or agent?
Please specify the dealings, the dates, the corporations or entities involved, the
government offices involved and the private and public documents, if any, showing
herein defendant's complicity, since he is not aware of any such instance. More
basically, please specify whether the defendant is a dummy or nominee or agent and
of which corporation or transaction?

ii)
What particular government concession, order and/or policy obtained by
Ferdinand E. Marcos, or Imelda R. Marcos, or Juliette Gomez Romualdez and/or
Benjamin T. Romualdez allowed them either singly or jointly to accumulate ill-gotten
wealth by using herein defendant as instrument for their accomplishment. Likewise
please identify the nature of the transactions, the dates and the document showing
complicity on the part of herein defendant; he is not aware of any such instance.

iii)
Please specify the name or denominate the particular government
concession, order and/or policy prejudicial to the interest of the government which
was obtained by either of the above-named four defendants through the participation
of herein defendant as a dummy, nominee or agent of herein defendant. Please
likewise identify the government office involved, the dates and other particulars,
likewise defendant is not aware of any such instance.

iv)
Please name and specify the corporation whether stock or non-stock, whether
government or private, beneficially held and/or controlled by either of the four above
defendants, where herein defendant is an incorporator, director or member and
where his inclusion as such incorporator, director or member of the corporation was
made in order to conceal and prevent recovery of assets illegally obtained by the
aforementioned four defendants, how many shares are involved and what are their
values, how and when have they been acquired.

The Solicitor General, for and in behalf of respondents (except the respondent
Sandiganbayan), opposed the motion.11 After the petitioner had filed his reply 12
thereto, the respondent Sandiganbayan promulgated on 21 April 1990 a resolution
13 denying the petitioner's motion for a bill of particulars on the ground that the
particulars sought by petitioner are evidentiary in nature, the pertinent part of which
resolution reads, as follows:

We are of the considered opinion that the allegations in the Expanded Complaint are
quite clear and sufficient enough for defendant-movant to know the nature and scope
of the causes of action upon which plaintiff seeks relief. They provide the factual
scenario which, coupled with other allegations set forth in the "Common Averments"
and further specified in the "Specific Averments" of herein defendant-movant and his
co-defendants' illegal acts which are within defendant-movant's peculiar and intimate
knowledge as a government official and corporate executive, will enable him to make
the proper admission, denials or qualifications, set out affirmative and/or special
defenses and thereafter prepare for trial. Evidentiary facts or matters are not
essential in the pleading of the cause of action, nor to details or probative value or
particulars of evidence by which these material evidence are to be established
(Remitere vs. Yulu, 6 SCRA 251). The matters which he seeks are evidentiary in
nature and, being within his intimate or personal knowledge, may be denied or

admitted by him or if deemed necessary, be the subject of other forms of discovery.

14

Petitioner moved for reconsideration 15 but this was denied by respondent

Sandiganbayan in its resolution 16 dated 29 May 1990.

Hence, petitioner filed the present petition.

The principal issue to be resolved in the case at bar is whether or not the respondent
Sandiganbayan acted with grave abuse of discretion in issuing the disputed
resolutions.

Petitioner argues that the allegations of the Second Amended Complaint in Civil
Case No. 0035 (PCGG 35) pertaining to him state only conclusions of fact and law,
inferences of facts from facts not pleaded and mere presumptions, not ultimate facts
as required by the Rules of Court.

On the other hand, the respondent Sandiganbayan, by and through the Solicitor
General, contends that the essential elements of an action for recovery of ill-gotten
wealth are: (1) an accumulation of assets, properties and other possessions; (2) of
former President Ferdinand E. Marcos, Mrs. Imelda Romualdez Marcos, their close
relatives, subordinates, business associates, dummies, agents, or nominees; and (3)
whose value is out of proportion to their known lawful income, and that the ultimate
facts establishing these three (3) essential elements of an action for recovery of illgotten wealth are sufficiently alleged in the complaint. Hence, petitioner is not
entitled to a bill of particulars.

A complaint is defined as a concise statement of the ultimate facts constituting the

plaintiff's cause or causes of action.17 Like all other pleadings allowed by the Rules
of Court, 18 the complaint shall contain in a methodical and logical form a plain,
concise and direct statement of the ultimate facts on which the plaintiff relies for his
claim, omitting the statement of mere evidentiary
facts. 19 Its office, purpose or function is to inform the defendant clearly and
definitely of the claims made against him so that he may be prepared to meet the
issues at the trial. The complaint should inform the defendant of all the material facts
on which the plaintiff relies to support his demand; it should state the theory of a
cause of action which forms the bases of the plaintiff's claim of liability. 20

The rules on pleading speak of two (2) kinds of facts: the first, the "ultimate facts",
and the second, the "evidentiary facts." In Remitere vs. Vda. de Yulo, 21 the term
"ultimate facts" was defined and explained as follows:

The term "ultimate facts" as used in Sec. 3, Rule 3 of the Rules of Court, means the
essential facts constituting the plaintiffs cause of action. A fact is essential if it cannot
be stricken out without leaving the statement of the cause of action insufficient. . . .
(Moran, Rules of Court, Vol. 1, 1963 ed., p. 213).

Ultimate facts are important and substantial facts which either directly form the basis
of the primary right and duty, or which directly make up the wrongful acts or
omissions of the defendant. The term does not refer to the details of probative matter
or particulars of evidence by which these material elements are to be established. It
refers to principal, determinate, constitutive facts, upon the existence of which, the
entire cause of action rests.

while the term "evidentiary fact" has been defined in the following tenor:

Those facts which are necessary for determination of the ultimate facts; they are the
premises upon which conclusions of ultimate facts are based. Womack v. Industrial
Comm., 168 Colo. 364,451 P. 2d 761, 764. Facts which furnish evidence of
existence of some other fact. 22

Where the complaint states ultimate facts that constitute the three (3) essential
elements of a cause of action, namely: (1) the legal right of the plaintiff, (2) the
correlative obligation of the defendant, and (3) the act or omission of the defendant
in violation of said legal right, the complaint states a cause of action, otherwise, the
complaint must succumb to a motion to dismiss on that ground of failure to state a
cause of action. 23 However, where the allegations of the complaint are vague,
indefinite, or in the form of conclusions, the proper recourse would be, not a motion
to dismiss, but a motion for a bill of particulars. 24 Thus, Section 1, Rule 12 of the
Rules of Court provides:

Before responding to a pleading or, if no responsive pleading is permitted by these

rules, within ten (10) days after service of the pleading upon him, a party may move
for a more definite statement or for a bill of particulars of any matter which is not
averred with sufficient definiteness or particularity to enable him properly to prepare
his responsive pleading or to prepare for trial. Such motion shall point out the defects
complained of and the details desired.

In this connection, the following allegations have been held as mere conclusions of
law, inferences from facts not alleged or opinion of the pleader: (a) the allegations
that defendants appellees were "actuated by ulterior motives, contrary to law and
morals, with abuse of their advantageous position as employers, in gross and
evident bad faith and without giving plaintiff . . . his due, wilfully, maliciously,
unlawfully, and in summary and arbitrary manner", are conclusions of law, inferences
from facts not alleged and expressions of opinion unsupported by factual premises;
25 (b) an allegation of duty in terms unaccompanied by a statement of facts showing
the existence of the duty, is a mere conclusion of law, unless there is a relation set
forth from which the law raises the duty; 26 (c) an averment . . . that an act was
"unlawful" or "wrongful" is a mere legal conclusion or opinion of the pleader; 27 (d)
the allegation that there was a violation of trust was plainly a conclusion of law, for "a
mere allegation that it was the duty of a party to do this or that, or that he was guilty
of a breach of duty, is a statement of a conclusion, not of a fact;" 28 (e) an allegation
that a contract is valid or void, is a mere conclusion of law; 29 (f) the averment in the
complaint that "defendant usurped the office of Senator of the Philippines" is a
conclusion of law not a statement of fact inasmuch as the particular facts on
which the alleged usurpation is predicated are not set forth therein; 30 and (g) the
averment that "with intent of circumventing the constitutional prohibition that 'no
officer or employee in the civil service shall be removed or suspended except for
cause as provided by law', respondents maliciously and illegally for the purpose of
political persecution and political vengeance, reverted the fund of the salary item . . .
and furthermore eliminated or abolished the said position effective 1 July 1960" is a
mere conclusion of law unsupported by factual premises. 31

Bearing in mind the foregoing rules on pleading and case law, let us now examine
the allegations of the Second Amended Complaint against the petitioner to determine
whether or no they were averred with sufficient definiteness or particularity to enable
him properly to prepare his responsive pleading or to prepare for trial. If the
allegations of the said complaint are vague, indefinite or in the form of conclusions,
then petitioner is entitled to a bill of particulars.

The allegations in the complaint pertaining to the alleged culpable and unlawful acts
of herein petitioner are quoted hereunder as follows:

GENERAL AVERMENTS

OF

DEFENDANTS' ILLEGAL ACTS

9.
(a) From the early years of his presidency, Defendant Ferdinand E. Marcos
took undue advantage of his powers as President. All throughout the period from
September 21, 1972 to February 25, 1986, he gravely abused his powers under
martial law and ruled as Dictator under the 1973 Marcos-promulgated Constitution.
Defendant Ferdinand E. Marcos, together with other Defendants, acting singly or
collectively, and/or in unlawful concert with one another, in flagrant breach of public
trust and of their fiduciary obligations as public officers, with gross and scandalous
abuse of right and power and in brazen violation of the Constitution and laws of the
Philippines, embarked upon a systematic plan to accumulate ill-gotten wealth;

(b)
Upon his unfettered discretion, and sole authority, for the purpose of
implementing the plan referred to above, Defendant Ferdinand E. Marcos ordered
and caused, among others:

(b-i) the massive and unlawful withdrawal of funds, securities, reserves and other
assets and property from the National Treasury, the Central Bank, the other financial
institutions and depositories of Plaintiff;

(b-ii) the transfer of such funds, securities, reserves and other assets and property
to payees or transferees of his choice and whether and in what manner such
transactions should be recorded in the books and records of these institutions and
other depositories of Plaintiff;

10.
Among others, in furtherance of the plan and acting in the manner referred to
above, in unlawful concerted with one another and with gross abuse of power and
authority, Defendants Ferdinand E. Marcos and Imelda R. Marcos;

xxx

xxx

xxx

b.
Converted government-owned and controlled corporations into private
enterprises and appropriated them and/or their assets for their own benefit and
enrichment;

c.
Awarded contracts with the Government to their relatives, business
associates, dummies, nominees, agents or persons who were beholden to said
Defendants, under terms and conditions grossly and manifestly disadvantageous to
the Government;

d.
Misappropriated, embezzled and/or converted to their own use funds of
Government financial institutions, particularly those allocated to the Office of the
President and other ministries and agencies of the Government including, those
conveniently denominated as intelligence or counter-insurgency funds, as well as
funds provided to Plaintiff by foreign countries, multinationals, public and private
financial institutions;

e.
Raided Government financial and banking institutions of billions of pesos in
loans, guarantees and other types of financial accommodations to finance dubious
and/or overpriced projects of favored corporations or individuals and misused and/or
converted to their own use and benefit deposits found therein to the financial ruin of
Plaintiff and the Filipino people;

xxx

xxx

xxx

h.
Sold, conveyed and/or transferred Government property, real and/or personal,
to corporations beneficially held and/ or controlled by them or through third persons,
under such terms and conditions grossly and manifestly disadvantageous to the
Government;

i.
Engaged in other illegal and improper acts and practices designed to defraud
Plaintiff and the Filipino people, or otherwise misappropriated and converted to their
own use, benefit and enrichment the lawful patrimony and revenues of Plaintiff and
the Filipino people.

11.
Among the assets acquired by Defendants in the manner above-described
and discovered by the Commission in the exercise of its official responsibilities are
funds and other property listed in Annex "A" hereof and made an integral part of this
Complaint.

12.
Defendants, acting singly or collectively, and/or in unlawful concert with one
another, for the purpose of preventing disclosure and avoiding discovery of their
unmitigated plunder of the National Treasury and of their other illegal acts, and
employing the services of prominent lawyers, accountants, financial experts,
businessmen and other persons, deposited, kept and invested funds, securities and
other assets estimated at billions of US dollars in various banks, financial institutions,
trust or investment companies and with persons here and abroad.

SPECIFIC AVERMENTS

OF

DEFENDANTS' ILLEGAL ACTS

xxx

xxx

xxx

14.
Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez,
acting by themselves and/or in unlawful concert with Defendants Ferdinand E.
Marcos and Imelda R. Marcos, and taking undue advantage of their relationship,
influence and connection with the latter Defendant spouses, engaged in devices,
schemes and strategems to unjustly enrich themselves at the expense of Plaintiff
and the Filipino people, among others:

(a)
obtained, with the active collaboration of Defendants Senen J. Gabaldon,
Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdes, Delia Tantuico,
Jovencio F. Cinco, Cesar C. Zalamea and Francisco Tantuico, control of some of the
biggest business enterprises in the Philippines, such as, the Manila Electric
Company (MERALCO), Benguet Consolidated Mining Corporation (BENGUET) and
the Pilipinas Shell Corporation, by employing devious financial schemes and
techniques calculated to require the massive infusion and hemmorrhage of
government funds with minimum or negligible "cashout" from Defendant Benjamin
Romualdez. The following are the general features of a classic take-over bid by
Defendant Benjamin Romualdez:

xxx

xxx

xxx

(ii)
The shares were held in the name of corporations which were organized
soldely (sic) for the purpose of holding title to them. These corporations did not have
any operating history nor any financial track record. Projected cash flow consisted
almost solely of future and contingent dividends on the shares held. In spite of these
limitations, these companies enjoyed excellent credit lines from banks and other
financial institutions, as evidenced by the millions of pesos in loan and guarantees
outstanding in their books;

(iii)
The "seed money" used to wrest control came from government and
taxpayers' money in the form of millions of pesos in loans, guarantees and standby
L/C's from government financial institutions, notably the DBP and PNB, which were
in turn rediscounted with the Central Bank;

(iv)

Additional funding was provided from the related interests; and

(v)
This intricate (sic) skein of inter-corporate dealings was controlled and
administered by an exclusive and closely knit group of interlocking directorate and
officership

xxx

xxx

xxx

(g)
Secured, in a veiled attempt to justify MERALCO's anomalous acquisition of
the electric cooperatives, with the active collaborations of Defendants Cesar E. A.
Virata, Juanita R. Remulla, Isidro Rodriguez, Jose C. Hernandez, Pedro Dumol,
Ricardo C. Galing, Francisco C. Gatmaitan, Mario D. Camacho and the rest of the
Defendants, the approval by Defendant Ferdinand E. Marcos and his cabinet of the
so-called "Three-Year Program for the Extension of MERALCO's Services to Areas
Within The 60-kilometer Radius of Manila", which required government capital
investment amounting to millions of pesos;

xxx

xxx

xxx

(1)
Caused the National Investment and Development Corporation (NIDC) to
dispose of its interest in the oil plants located in Tanauan, Leyte, which were owned
and operated by its subsidiary, the NIDC Oil Mills, Inc., in favor of the SOLO II, Inc.,
a corporation beneficially held and controlled by Defendant Benjamin Romualdez,
with the active collaboration of Defendants Jose Sandejas, Francisco Tantuico and
Dominador G. Ingco, under terms and conditions grossly disadvantageous to NIDC,
to the grave and irreparable damage of Plaintiff and the Filipino people.

(2)
Defendant Francisco Tantuico, taking undue advantage of his position as
Chairman of the Commission on Audit and with grave failure to perform his
constitutional duties as such Chairman, acting in concert with Defendants Ferdinand
E. Marcos and Imelda R. Marcos, facilitated and made possible the withdrawals,
disbursements and questionable use of government funds as stated in the foregoing

paragraphs to the grave and irreparable damage and injury of Plaintiff and the entire
Filipino people.

xxx

xxx

xxx

17.
The following Defendants acted as dummies, nominees and/ or agents by
allowing themselves (i) to be used as instruments in accumulating ill-gotten wealth
through government concessions, orders and/or policies prejudicial to Plaintiff, or (ii)
to be incorporators, directors, or members of corporations held and/or controlled by
Defendants Ferdinand E. Marcos, Imelda R. Marcos, Benjamin (Kokoy) Romualdez,
and Juliette Gomez Romualdez in order conceal (sic) and prevent recovery of assets
illegally obtained: Francisco Tantuico . . .

17.a. THE NAMES OF SOME OF THE CORPORATIONS BENEFICALLY HELD

AND/OR CONTROLLED BY THE DEFENDANTS BENJAMIN (KOKOY)
ROMUALDEZ, FERDINAND E. MARCOS AND IMELDA R. MARCOS WHERE THE
POSITIONS/PARTICIPATIONS AND/OR INVOLVEMENTS OF SOME OF THE
DEFENDANTS AS DUMMIES, NOMINEES AND/OR AGENTS ARE INDICATED
ARE LISTED IN ANNEX "B" HEREOF AND MADE AN INTEGRAL PART OF THIS
COMPLAINT.

xxx

xxx

xxx

18.
The acts of Defendants, singly or collectively, and/or in unlawful concert with
one another, constitute gross abuse of official position and authority, flagrant breach
of public trust and fiduciary obligations, acquisition of unexplained wealth, brazen
abuse of official position and authority, flagrant breach of public trust and fiduciary
obligations, acquisition of unexplained wealth, brazen abuse of right and power,
unjust enrichment, violation of the Constitution and laws of the Republic of the
Philippines, to the grave and irreparable damage of Plaintiff and the Filipino people.
(Emphasis supplied)

Let us now analyze and discuss the allegations of the complaint in relation to which
the petitioner pleads for a bill of particulars.

As quoted above, paragraph 9(a) of the complaint alleges that "Defendant Ferdinand
E. Marcos, together with other Defendants, acting singly or collectively, and/or in
unlawful concert with one another, in flagrant breach of public trust and of their
fiduciary obligations as public officers, with gross and scandalous abuse of right and

power and in brazen violation of the Constitution and laws of the Philippines,
embarked upon a systematic plan to accumulate ill-gotten wealth." In the light of the
rules on pleading and case law cited above, the allegations that defendant Ferdinand
E. Marcos, together with the other defendants "embarked upon a systematic plan to
accumulate ill-gotten wealth" and that said defendants acted "in flagrant breach of
public trust and of their fiduciary obligations as public officers, with gross and
scandalous abuse of right and in brazen violation of the Constitution and laws of the
Philippines", are conclusions of law unsupported by factual premises.

Nothing is said in the complaint about the petitioner's acts in execution of the alleged
"systematic plan to accumulate ill-gotten wealth", or which are supposed to
constitute "flagrant breach of public trust", "gross and scandalous abuse of right and
power", and "violations of the Constitution and laws of the Philippines". The
complaint does not even allege what duties the petitioner failed to perform, or the
particular rights he abused.

Likewise, paragraph 15 avers that "defendant Francisco Tantuico, taking undue

advantage of his position as Chairman of the Commission on Audit and with grave
failure to perform his constitutional duties as such Chairman, acting in concert with
Defendants Ferdinand E. Marcos and Imelda R. Marcos facilitated and made
possible the withdrawals, disbursements and questionable use of government funds
as stated in the foregoing paragraphs to the grave and irreparable damage and
injury of Plaintiff and the entire Filipino people." In like manner, the allegation that
petitioner "took undue advantage of his position as Chairman of the Commission on
Audit," that he "failed to perform his constitutional duties as such Chairman," and
acting in concert with Ferdinand E. Marcos and Imelda R. Marcos, "facilitated and
made possible the withdrawals, disbursements, and questionable use of government
funds as stated in the foregoing paragraphs, to the grave and irreparable damage
and injury of plaintiff and the entire Filipino people", are mere conclusions of law.
Nowhere in the complaint is there any allegation as to how such duty came about, or
what petitioner's duties were, with respect to the alleged withdrawals and
disbursements or how petitioner facilitated the alleged withdrawals, disbursements,
or conversion of public funds and properties, nor an allegation from where the
withdrawals and disbursements came from, except for a general allegation that they
came from the national treasury. On top of that, the complaint does not even contain
any factual allegation which would show that whatever withdrawals, disbursements,
or conversions were made, were indeed subject to audit by the COA.

In this connection, it may well be stated that the Commission on Audit (COA) is an
independent, constitutional commission, which has no power or authority to
withdraw, disburse, or use funds and property pertaining to other government offices
or agencies. This is done by the agency or office itself, the chief or head of which is
primarily and directly responsible for the funds and property pertaining to such office

or agency. 32 The COA is merely authorized to audit, examine and settle accounts of
the various government offices or agencies, and this task is performed not by the
Chairman of the COA but by the COA auditors assigned to the government office or
agency subject to COA audit.

Thus, in each agency of the government, there is an auditing unit headed by an

auditor, whose duty is to audit and settle the accounts, funds, financial transactions,
and resources of the agency under his audit jurisdiction. 33 The decision of the
auditor is appealable to the Regional Director, 34 whose decision, is in turn,
appealable to the COA Manager. 35 Any party dissatisfied with the decision of the
COA Manager may bring the matter on appeal to the Commission proper, a
collegiate body exercising quasi-judicial functions, composed of three (3) COA
Commissioners, with the COA Chairman as presiding officer. 36 It is only at this
stage that the COA Chairman would come to know of the matter and be called upon
to act on the same, and only if an aggrieved party brings the matter on appeal.

In other words, the Chairman of the COA does not participate or personally audit all
disbursements and withdrawals of government funds, as well as transactions
involving government property. The averments in the particular paragraph of the
complaint merely assume that petitioner participated in or personally audited all
disbursements and withdrawals of government funds, and all transactions involving
government property. Hence, the alleged withdrawals, disbursements and
questionable use of government funds could not have been, as held by respondent
Sandiganbayan, "within the peculiar and intimate knowledge of petitioner as
Chairman of the COA."

The complaint further avers in paragraph 17 that "(t)he following Defendants acted
as dummies, nominees and/or agents by allowing themselves (i) to be instruments in
accumulating ill-gotten wealth through government concessions, order and/or
policies prejudicial to Plaintiff, or (ii) to be incorporators, directors, or members of
corporations beneficially held and/or controlled by Defendant Ferdinand E. Marcos,
Imelda R. Marcos, Benjamin (Kokoy) T. Romualdez and Juliette Gomez Romualdez
in order to conceal and prevent recovery of assets illegally obtained: Francisco
Tantuico . . ." 37 Again, the allegation that petitioner acted as dummy, nominee, or
agent by allowing himself "to be used as instrument in accumulating ill-gotten wealth
through government concessions, orders and/or policies prejudicial to Plaintiff" or "to
be (an) incorporator, director, or member of corporations beneficially held and/or
controlled" by the Marcoses and Romualdezes, is a conclusion of law without factual
basis.

The complaint does not contain any allegation as to how petitioner became, or why
he is perceived to be, a dummy, nominee or agent. Besides, there is no averment in

the complaint how petitioner allowed himself to be used as instrument in the

accumulation of ill-gotten wealth, what the concessions, orders and/or policies
prejudicial to plaintiff are, why they are prejudicial, and what petitioner had to do with
the granting, issuance, and or formulation of such concessions, orders, and/or
policies. Moreover, Annex "A" of the complaint lists down sixty-one (61) corporations
which are supposed to be beneficially owned or controlled by the Marcoses and
Romualdezes. However, the complaint does not state which corporations petitioner
is supposed to be a stockholder, director, member, dummy, nominee and/or agent.
More significantly, the petitioner's name does not even appear in Annex "B" of the
complaint, which is a listing of the alleged "Positions and Participations of Some
Defendants".

The allegations in the complaint, above-referred to, pertaining to petitioner are,

therefore, deficient in that they merely articulate conclusions of law and
presumptions unsupported by factual premises. Hence, without the particulars
prayed for in petitioner's motion for a bill of particulars, it can be said the petitioner
can not intelligently prepare his responsive pleading and for trial.

Furthermore, the particulars prayed for, such as, names of persons, names of
corporations, dates, amounts involved, specification of property for identification
purposes, the particular transactions involving withdrawals and disbursements, and a
statement of other material facts as would support the conclusions and inferences in
the complaint, are not evidentiary in nature. On the contrary, those particulars are
material facts that should be clearly and definitely averred in the complaint in order
that the defendant may, in fairness, be informed of the claims made against him to
the end that he may be prepared to meet the issues at the trial.

Thus, it has been held that the purpose or object of a bill of particulars is

. . . to amplify or limit a pleading, specify more minutely and particularly a claim or

defense set up and pleaded in general terms, give information, not contained in the
pleading, to the opposite party and the court as to the precise nature, character,
scope, and extent of the cause of action or defense relied on by the pleader, and
apprise the opposite party of the case which he has to meet, to the end that the proof
at the trial may be limited to the matters specified, and in order that surprise at, and
needless preparation for, the trial may be avoided, and that the opposite party may
be aided in framing his answering pleading and preparing for trial. It has also been
stated that it is the function or purpose of a bill of particulars to define, clarify,
particularize, and limit or circumscribe the issues in the case, to expedite the trial,
and assist the court. A general function or purpose of a bill of particulars is to prevent
injustice or do justice in the case when that cannot be accomplished without the aid
of such a bill. 38

Anent the contention of the Solicitor General that the petitioner is not entitled to a bill
of particulars because the ultimate facts constituting the three (3) essential elements
of a cause of action for recovery of ill-gotten wealth have been sufficiently alleged in
the complaint, it would suffice to state that in a motion for a bill of particulars, the only
question to be resolved is whether or not the allegations of the complaint are averred
with sufficient definiteness or particularity to enable the movant properly to prepare
his responsive pleading and to prepare for trial. As already discussed, the allegations
of the complaint pertaining to the herein petitioner are deficient because the
averments therein are mere conclusions of law or presumptions, unsupported by
factual premises.

In the light of the foregoing, the respondent Sandiganbayan acted with grave abuse
of discretion amounting to lack or excess of jurisdiction in promulgating the
questioned resolutions.

WHEREFORE, the petition is GRANTED and the resolutions dated 21 April 1989
and 29 May 1989 are hereby ANNULLED and SET ASIDE. The respondents are
hereby ordered to PREPARE and FILE a Bill of Particulars containing the facts
prayed for by petitioner within TWENTY (20) DAYS from notice, and should they fail
to submit the said Bill of Particulars, respondent Sandiganbayan is ordered TO
EXCLUDE the herein petitioner as defendant in Civil Case No. 0035.

SO ORDERED.

EN BANC
[G.R. No. 127130. October 12, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERNESTO EBIAS y

MAGANA, accused-appellant.
DECISION
MENDOZA, J.:

This case is here on automatic review in view of the imposition by the Regional Trial
Court, Branch 33, Siniloan, Laguna of the death penalty on accused-appellant

Ernesto Ebias for the complex crime of murder with frustrated murder. A new trial is
sought by accused-appellant on the ground of newly-discovered evidence.

The facts are as follows:

On December 13, 1994, accused-appellant Ebias and a John Doe were charged with
murder with frustrated murder in an information[1] filed by the Provincial Prosecutor
of Laguna who alleged -

That on or about 12:00 oclock noon on July 8, 1994 at Barangay Dambo,

Municipality of Pangil, Province of Laguna and within the jurisdiction of this
Honorable Court, the above-named accused while conveniently armed with a deadly
weapon (home made gauge 12 sulpak) with evident premeditation and with
treachery and take advantage of superior strength, with intent to kill, conspiring,
confederating and mutually helping one another, did then and there wilfully,
unlawfully and feloniously attack, assault and shoot once Ronaldo Narez and Tirso
Narez by the said weapon thereby inflicting upon Tirso Narez multiple gun shot
wounds in the abdomen and right shoulder which caused his death, to the damage
and prejudice of the surviving heirs of the victim; and Ronaldo Narez sustained gun
shot wound in the right leg, thus, accused has performed all the acts of execution
which could have also produced the felony of Murder as a consequence with respect
to said victim which nevertheless did not produce the felony by reason of cause
independent of the will of the accused, that is, due to the timely and able medical
assistance rendered to said Ronaldo Narez which prevented his death and to his
damages and prejudice.

That the qualifying and aggravating circumstances of treachery, evident

premeditation and abuse of superior strength attended the commission of the crime.

When arraigned, accused-appellant Ernesto Ebias pleaded not guilty whereupon trial
proceeded. Evidence was presented by the prosecution showing the following:

On July 7, 1994 at around 12 noon, Ronaldo Narez and his cousin, Tirso Narez,
went to get some jackfruit in Barangay Dambo, Pangil, Laguna. On their way, they
saw two men sitting by the roadside. As they were nearing the place where the two
men were, the latter waved at them. Ronaldo and Tirso Narez ignored the summon
and continued walking. When they were about 15 meters from the men, they heard
one of the men, who was brandishing a bolo, say Boy, tirahin mo na. The other man
then drew his sulpak and shot them. Ronaldo and Tirso Narez ran towards the
kaingin. Ronaldo Narez realized that his right leg was bleeding. Nonetheless, he

managed to reach his house and told his father what had happened. Ronaldo was
taken to the Pakil Hospital for treatment. Tirso, who had also been taken to the same
hospital, suffered a gunshot wound on his stomach.[2] He died from his injuries the
next day, on July 9, 1994.[3]

On July 11, 1994, Ronaldo Narez executed an affidavit identifying his assailant as a
certain Boy Marantal. In his affidavit, marked as Exhibit B, Ronaldo stated:

2 : Ano ang dahilan at ikaw ay nandidito sa tanggapan ng Pulisiya ng Pangil, Laguna

at ikaw ay kinukunan ng salaysay?

: Sa dahilan po na kami ay binaril na ang aking kasama ay namatay at ako ay may

tama.

3 : Kailan at saan naman nangyari ang bagay na ito, kung iyong tanda?

: Noong pong petsa 8 ng Hulyo, 1994, humigit kumulang sa oras alas 12:00 ng
tanghali sa Brgy. Dambo, Pangil, Laguna.

4 : Sino naman ang bumaril sa inyo, kung iyong nakikilala?

: Ang bumaril po sa amin ay akin po lamang nakilala sa alias Boy Marantal at kung
aking makikitang muli ay aking maituturo.

5 : Maaari bang iyong isalaysay ang buong pangyayari sa ikaliliwanag ng

imbistigasyong ito?

: Noong pong kami ay nasa karsada ay may nakita kaming dalawang tao na kami ay
tinatawag at kinakawayan at kami po ay hindi naman lumapit at pagkatapos po ay
sila ang lumapit sa amin at nang ang layo sa amin ay humigit kumulang na labing
limang dipa ay aking narinig itong may dalang itak na mahaba na nakalagay sa
kaluban na nakasukbit sa baywang at ang sabi dito sa kasama niya na nakasoot na
patigue ang pangitaas ay BOY TIRAHIN MO NA at pagkatapos po ay may kinuha sa
likod itong alias Boy sa kanyang likod na isang parang tobo at ito ay pumutok at
kami pong dalawa ng aking kasama ay nanakbo na papuntang kaingin at sa
pagtakbo naming iyon ay kami ay nagkahiwalay hanggang sa aking maramdaman
na ang aking binti ay kumikirot at nang aking tingnan ay may sugat ito hanggang sa

ako ay makarating sa aming bahay at sinabi ko sa aking Tatay na ako ay may tama
ng baril at ako po ay dali-dali nilang inilabas sa karsada at ako ay kanilang dinala sa
hospital ng Pakil, Laguna upang magamot at hindi pa ako gasinong natatagalan ay
may dumating na isang traysikel at aking nakita na ang ibinababa ay ang aking
pinsan at ito ay may tama din at nang kami po ay isakay sa Mobile ng Pangil PNP
upang ilipat sa Sta. Cruz, Laguna sa hospital ay aking nakita na ang aking pinsan ay
may tama sa tiyan at ibaba ng kanang balikat at pagkatapos po ay nitong madaling
araw ng petsa 9 ng Hulyo 1994 ay namatay ang aking pinsan.

6 : Ano pa ang sumunod na pangyayari, kung mayroon man?

: Wala na po akong alam.

7 : Paano mo naman nalaman na Boy Marantal ang pangalan nintong bumaril sa

inyo?

: Dahil po sa iyon po ang aking pagkakilala sa kanya na aking natandaan.

8 : Ito bang si Boy Marantal na ito ay matagal mo nang nakikilala?

: Hindi ko po siya masyadong kilala pero isang beses ko na siyang nakita at

pangalawa ay nang kami ay barilin.

9 : Alam mo ba naman kung tiga saan itong si Boy Marantal?

: Hindi po pero sa aking pong palagay sa naninirahan din sa Brgy. Dambo, Pangil,
Laguna.

10 : Anong klasing baril naman ang ibinaril sa inyo, kung iyong alam?

: Isa pong de sabog na yari sa tobo na kung tawagin ay Sulpak.

11 : Ilan beses naman kayong binaril?

: Isa pong beses lamang.

12 : May mga nakakita ba naman sa pangyayari ng kayo ay barilin?

: Wala po dahil sa malayo sa kabahayan ang pinangyarihan.

13 : Ano naman ang tunay na pangalan ng iyong pinsan na namatay na iyong

kasama ng barilin?

: Tirso Nariz po na nakatira sa Brgy. Dambo, Pangil, Laguna.[4]

About a month later, on August 16, 1994, Ronaldo executed another affidavit (Exhibit
F) in which he said that accused-appellant Ernesto Ebias was the same Boy
Marantal who shot him and his cousin on July 8. Ronaldo said in his latest affidavit:

2 : Ano ang dahilan at ikaw ay nandidito sa tanggapan ng Pulisiya ng Pangil, Laguna

at ikaw ay kinukunan ng salaysay?

: Sa dahilan po na nais kong ipabatid na nakilala at nakita ko na ang bumaril sa amin

noong July 8, 1994, humigit kumulang sa oras alas 12:00 ng tanghali sa Brgy.
Dambo, Pangil, Laguna.

3 : Kailan mo naman nakita o nakilala ang taong iyong sinasabi na bumaril sa inyo,
kung iyong tanda?

: Noong pong petsa 15 ng Agosto, 1994, humigit kumulang sa oras alas 7:00 ng gabi
sa Brgy. Dambo, Pangil, Laguna.

4 : Ano naman ang pangalan ng bumaril sa inyo, kung iyong nakikilala at iyong
nakita?

: Napagalaman ko na lamang po dito sa Himpilan ng Pulisiya ng Pangil, Laguna na

ang pangalan ay si Ernesto Ibeas na naninirahan sa Brgy. Dambo, Pangil, Laguna.

5 : Bakit mo naman ngayon lamang itinuro ang bumaril sa inyo, sa anong dahilan?

: Dahilan po na ngayon ko po lamang nakita ang taong bumaril sa amin.

6 : Bakit mo naman ngayon lamang nakita?

: Sa dahilan po na ako po ay nagtigil sa San Pablo City at nang ako po ay umuwi sa

Brgy. Dambo, Pangil, Laguna ay doon ko po nakita ang bumaril sa amin.

7 : Ano naman ang ginawa mo nang iyong makita at makilala ang taong bumaril sa
inyo?

: Nang aking pong makita ang taong bumaril sa amin ay aking pong ipinaalam sa
Hepe ng Brgy. Tanod na si Jose de Guia.

8 : Inuulit ko sa iyo, may taong nandito sa aming Himpilan ng Pulisiya ng Pangil,

Laguna, ito ba ang iyong nakikilala?

: Iyan pong taong iyan ang bumaril sa amin (Witness identified the person of
ERNESTO EBIAS residing at Brgy. Dambo, Pangil, Laguna).

9 : Nang makilala mo ba na si Ernesto Ebias, ito ba ay mapapatunayan mo sa

Husgado na siya na ang bumaril sa inyo?

: Opo.

10 : Hindi ka kaya nagkakamali sa pagkakilala mo kay Ernesto Ibeas na siya ang

bumaril sa inyo?

: Hindi po.

11 : Sino ang kasama mo nang ikaw ay barilin?

: Ang akin pong pinsan na si Tirso Nares at ito ay namatay.[5]

During the trial, Ronaldo Narez reiterated in open court that accused-appellant
Ernesto Ebias and Boy Marantal were one and the same person.[6] However, he
could not identify accused-appellants companion as the latters face was covered
with a yellow handkerchief.[7]

Accused-appellants defense consisted of denial and alibi. A defense witness, Isagani

Maray, claimed that accused-appellant Ebias, together with several laborers, was
working in a citrus plantation in Pangil, Laguna on the day in question.[8] Maray
admitted, however, that the plantation where accused-appellant was allegedly
working was only around 10 meters from the place of the incident.[9] Accusedappellant claimed that he was at the Vista Villamayor Citrus Plantation at the time of
the commission of the crime. At around 12 noon of that day, when the shooting took
place, he ate lunch at his house with Isagani Maray and other members of his family.
[10]

On May 15, 1996, the court rendered a decision, finding accused-appellant guilty of
the crime of murder with frustrated murder. The dispositive portion of its decision
reads:

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

ERNESTO EBIAS y MAGANA guilty beyond reasonable doubt of the complex crime
of MURDER with FRUSTRATED MURDER as charged, qualified by the qualifying
circumstance of treachery, without any mitigating or aggravating circumstance, and
pursuant to the provision of Art. 48 of the Revised Penal Code, hereby sentences
him the maximum penalty of death. To indemnify the heirs of Tirso Narez, in his
death the amount of P50,000.00 and as actual damages the amount of P12,000.00
representing the amount spent in the wake, funeral and for coffin. To indemnify
Ronaldo Narez as actual damages the amount of P2,000.00 representing medical
expenses. To pay the cost.

SO ORDERED.[11]

On appeal to this Court, accused-appellant maintained that the prosecution failed to

comply with the rules for the protection of the rights of the accused during
confrontations with alleged eyewitnesses before the police. He further contended
that the trial court erroneously gave credence to the testimony of a perjured
eyewitness upon whose sole testimony hinged the entire case against him. Lastly, he
argued that the trial court failed to appreciate uncontroverted facts established by the

defense as well as admissions against interests made by the prosecution witnesses.

[12]

On November 20, 1998, accused-appellant filed a motion seeking the appointment of

a counsel de oficio for Leonardo Eliseo, a death convict at the National Bilibid Prison,
who wrote a letter confessing to the commission of the crime for which accusedappellant was held liable.[13] In a resolution, dated April 27, 1999, the Court denied
accused-appellants motion for lack of merit.[14] On February 3, 2000, accusedappellant moved for new trial on the ground of newly-discovered evidence. Accusedappellant averred that new and material evidence had been discovered by the
defense, consisting of a confession made by Leonardo Eliseo, also a death row
convict, that he committed the crime for which accused-appellant was convicted and
sentenced to death. Accused-appellant further alleged that such evidence could not
have been discovered and produced during his trial because it was only after his
conviction that he came to know of Eliseos responsibility for the crime and his
willingness to confess. Accused-appellant asserted that Eliseos confession would
probably change the judgment if it was introduced in evidence.[15]

Attached to accused-appellants motion for new trial was an affidavit[16] executed by

Leonardo Eliseo narrating his participation in the shooting of Tirso and Ronaldo
Narez. The affidavit reads in full as follows:

AKO, si bilanggong LEONARDO ELISEO Y SAN LUIS, 33 taong gulang,

kasalukuyang nakakulong dito sa Pambansang Piitan at nakaselda sa I-B, Maximum
Security Compound, Muntinlupa City, matapos makapanumpa ng ayon sa Saligang
Batas, ay malayang nagsasalaysay ng mga sumusunod:

1. Na noong ika-20 ng Hunyo 1994, pumunta kami sa Barangay Lambak, Mabitak,

Laguna sa bahay ng aking kumpare na si Berting mga ganap na alas 9:00 ng gabi
na kasama ang aking kaibigan na si Boy, para mag-inuman.

2. Na may isang bisita si Berting na hindi ko na matandaan ang pangalan na

nagkwento na may isa daw Bombay sa kanilang barrio na maganda daw holdapin
dahil pag nadale daw namin ito at tiba-tiba kami dahil kadalasan ay marami daw
itong dalang pera at alahas;

3. Na aming tinandaan ito at kinabukasan ay minatiyagan na namin itong bombay at

pinagplanuhan naming holdapin ito. Hinanap namin ang lugar na madalas niyang
puntahan at may nag-tip sa amin kung kailan ang magandang petsa na siguradong

may dala itong malaking pera. At natiyak namin sa ika-8 ng Hulyo 1994 ay may
dalang malaking pera daw itong Bombay;

4. Na noong ika-8 ng Hulyo 1994, alas 6:00 pa lang umaga habang hinihintay namin
ang pagdaan noong Bombay na aming inaabangan, may dalawang lalaki na hindi
namin kilala ang lumabas mula sa gubat;

5. Na noong sila ay papalapit na sa amin ay medyo kinabahan kami at naglakad

papalayo subalit patuloy pa rin kami nilang sinundan;

6. Na agad naman dumaan ang sasakyan ng Bombay na dapat sana naming

hoholdapin. At dahil sa inis dahil hindi namin naisakatuparan ang planong
panghoholdap sa Bombay ay binaril ko ang dalawang taong sumusunod sa amin na
may kalayuan na humigit kumulang sa limampung metro, sa pamamagitan ng armas
ko na shotgun;

7. Na tinamaan ko po ang isa sa tiyan samantalang ang isa ay sa hita, at habang

ang isa sa kanila ay bumulagta at ang isa naman ay paika-ikang tumakbo, kami
naman ay naglakad lang papalayo at papauwi sa aming bayan;

8. Na ako ay nagbibigay ng salaysay ngayon dahil naawa po ako sa taong nahatulan

ng bitay sa kasalanan na ang may kagagawan ay ako.

9. Na ginawa ko ang salaysay na ito sa harap at patnubay ni Public Attorney

Abelardo D. Tomas, Public Attorneys Office Muntinlupa, matapos niyang ipaliwanag
sa akin ang aking mga karapatan at maipaalala na sa salaysay kong ito ako ay
mananagot sa isang napakabigat na krimen.

BILANG PATUNAY na ang lahat ng aking isinalaysay dito ay pawang katotohanan

lamang, ay nakahanda po akong lagdaan ito ngayong ika-4 ng Disyembre 1999, dito
sa Lungsod ng Muntinlupa.

(signed)
LEONARDO S. ELISEO
N98P-1209
WITH MY ASSISTANCE

(signed)
ATTY. ABELARDO D. TOMAS
Public Attorneys office
SUBSCRIBED AND SWORN TO BEFORE ME this 14th December 1999.

(signed)
JOSELITO A. FAJARDO
Assistant Director
(Officer Administering Oath)
The question now is whether or not Eliseos confession constitutes newly-discovered
evidence warranting a new trial in favor of accused-appellant. For newly-discovered
evidence to be a ground for new trial, the following requisites must concur: (a) the
evidence is discovered after trial; (b) such evidence could not have been discovered
and produced at the trial even with the exercise of reasonable diligence; and (c) the
evidence is material, not merely cumulative, corroborative, or impeaching, and of
such weight that, if admitted, could probably change the judgment.[17]

Accused-appellant claims that it was only during his confinement at the Maximum
Security Compound of the New Bilibid Prison in Muntinlupa that he met Leonardo
Eliseo, a fellow death convict, and learned from the latter his alleged participation in
the shooting of Tirso and Ronaldo Narez and that even with the exercise of
reasonable diligence could not have earlier known of the confession of Leonardo
Eliseo.

The Solicitor General does not dispute these allegations. He opposes accusedappellants motion for new trial, however, on the ground that Eliseos confession can
not change the outcome of the judgment against accused-appellant because it can
not overturn Ronaldo Narezs positive and unerring identification of accusedappellant as the person responsible for the crime.[18]

To be sure, the uncorroborated testimony of a lone witness is sufficient basis for the
conviction of the accused if it is credible, positive, and constitutes proof beyond
reasonable doubt that the latter is guilty.[19] In this case, the trial court relied
primarily on the positive identification made by Ronaldo Narez in convicting accusedappellant. The trial court ruled:

The Court after a perusal of the testimonies of these witnesses for the prosecution,
and the defense, is more inclined to believe the former. Accused Ernesto Ebias alias
Boy Marantal and his companion whose name remains unknown, and is still at-large,
were positively identified by Ronaldo Narez to be the person who shot them. He
could not be mistaken. The incident happened at more or less 12:00 oclock noon of
July 8, 1994. The distance of accused from the victims is about fifteen (15) meters
only.

The defense was not able to overthrow the testimonies of the prosecution, which
was straightforward, convincing as to leave no space for doubt. Accused w[as]
positively identified to be the author of the crime. It is a well settled rule that greater
weight is given to the positive identification of accused by prosecution witness. (Peo.
vs. Canada, G.R. No. 65728, Sept. 15, 1986 (144 SCRA 121)

Defenses negative evidence cannot outweigh prosecution witnesses testimony on

affirmative matters. At best, his denial is a self-serving negative evidence that can
not be given greater weight than the declaration of credible witnesses who testified
on affirmative matters. (People of the Philippines vs. Ramir Carizo, et. al., G.R. No.
96510, July 6, 1994)[20]

To be sure, Ronaldo Narez remained steadfast and unshaken in his testimony that it
was accused-appellant whom he saw shoot him and his cousin. However, questions
arise regarding the circumstances surrounding the identification made by Ronaldo
Narez of accused-appellant as the person who shot him and his cousin resulting in
the latters death.

First. Ronaldo Narez identified the person who shot them as Boy Marantal. But it
was not established how he came to know him by that particular name. In both his
affidavit and his testimony, Ronaldo quoted the assailants companion as telling the
latter, Boy, tirahin mo na.[21] Obviously, the surname Marantal did not come from the
unidentified companion. Ronaldo Narez stated in his affidavit that he knew accusedappellants name to be Boy Marantal. He said:

7.) : Paano mo nalaman na Boy Marantal and pangalan nitong bumaril sa inyo?

: Dahil po sa iyon po ang aking pagkakilala sa kanya na aking natandaan.

8.) : Ito bang si Boy Marantal na ito ay matagal mo nang nakilala?

: Hindi ko po siya masyadong kilala pero isang beses ko na siyang nakita at ang
pangalawa ay nang kami ay barilin.[22]

How Ronaldo came to know accused-appellants alias to be Boy Marantal has not
been shown. When questioned on cross-examination, Ronaldo Narez testified:

Q You do not know the full name of Ernesto Ebias according to you before the
incident?

A Not yet, mam.

Q But you know a certain Boy Marantal?

A Yes, mam.

Q Who is that Boy Marantal?

A One and the same person Ernesto Ebias.

Q Presumably Ernesto Ebias is more popular in your locality as alias Boy Marantal?

A Yes, sir.[23]

Indeed, it appears from his affidavit executed on August 16, 1994 that it was only
later when he learned from the police that the real name of Boy Marantal was
Ernesto Ebias. This raises the suspicion that Narez was influenced by matters other
than his own personal perception in identifying Ebias as the person who had shot
them.

While Ronaldo Narez insisted that accused-appellant was known by the alias of Boy
Marantal, no other witness was presented by the prosecution to corroborate his
testimony that accused-appellant was known in their locality by that name. To the

contrary, Santiago Narez, a prosecution witness, testified that accused-appellant was

known by the nickname or alias Estoy.[24]

Second. Accused-appellant had been a long time resident of Barangay Dambo,

Pangil, Laguna before the incident.[25] In fact, Ronaldo Narez testified that he knew
accused-appellant personally because the latter was a family friend who would
sometimes visit their house.[26] Yet, in the affidavit he executed before the police on
July 11, 1994, he stated that he was not familiar with the person who shot them
because he only saw the latter once before the incident.[27]

It is settled that the prosecution bears the burden not only of proving beyond
reasonable doubt that a crime has been committed but also the identity of the person
or persons who should be held responsible therefor.[28] The identification of the
culprit by an eyewitness must thus be examined with caution to determine whether it
fulfills the standard of proof beyond reasonable doubt. There seems to be no reason
why eyewitness Ronaldo Narez should fail to recognize accused-appellant as the
person who shot them considering that the crime was committed in broad daylight
and the latter was a neighbor who was even considered as a family friend. In a
similar case, the credibility of the eyewitness was considered diminished by the fact
that she remained silent as to the identity of the perpetrator during the initial
investigation of the crime and inexplicably failed to state why she remained so if she
truly knew who the culprit was.[29]

Third. Ronaldo Narez said in his second affidavit (Exhibit F):

3 : Kailan mo naman nakita o nakilala ang taong iyong sinasabi na bumaril sa inyo,
kung iyong tanda?

: Noong pong petsa 15 ng Agosto, 1994, humigit kumulang sa oras alas 7:00 ng gabi
sa Brgy. Dambo, Pangil, Laguna.

4 : Ano naman ang pangalan ng bumaril sa inyo, kung iyong nakikilala at iyong
nakita?

: Napagalaman ko na lamang po dito sa Himpilan ng Pulisiya ng Pangil, Laguna na

ang pangalan ay si Ernesto Ibeas na naninirahan sa Brgy. Dambo, Pangil, Laguna.

5 : Bakit mo naman ngayon lamang itinuro ang bumaril sa inyo, sa anong dahilan?

: Dahilan po na ngayon ko po lamang nakita ang taong bumaril sa amin.

6 : Bakit mo naman ngayon lamang nakita?

: Sa dahilan po na ako po ay nagtigil sa San Pablo City at nang ako po ay umuwi sa

Brgy. Dambo, Pangil, Laguna ay doon ko po nakita ang bumaril sa amin.

7 : Ano naman ang ginawa mo nang iyong makita at makilala ang taong bumaril sa
inyo?

: Nang aking pong makita ang taong bumaril sa amin ay aking pong ipinaalam sa
Hepe ng Brgy. Tanod na si Jose de Guia.

8 : Inuulit ko sa iyo, may taong nandito sa aming Himpilan ng Pulisiya ng Pangil,

Laguna, ito ba ang iyong nakikilala?

: Iyan pong taong iyan ang bumaril sa amin (Witness identified the person of
ERNESTO EBIAS residing at Brgy. Dambo, Pangil, Laguna).[30]

It would thus seem that accused-appellant was the only person shown to Ronaldo
Narez for identification. We have set our face against such procedure. The
identification of the accused during a show-up or where the suspect alone is brought
face to face with the witness for identification is highly suggestive.[31] For confronted
with a single suspect, an eyewitness would most likely yield to police pressure to
identify the suspect as the perpetrator of the crime, substituting fancy for fact,
suspicion for guilt. We cannot with certainty say that such is not the case here. This
on the one hand.

On the other hand, we cannot say that Ronaldo Narez was mistaken in identifying
accused-appellant as the person who shot him and his cousin. After all, he never
deviated from his testimony that he saw accused-appellant when the latter shot
them. The crime was committed at noontime with the shooter a mere fifteen meters
away from his victims. Ronaldo Narez was thus able to see his attacker in full view.
We cannot, therefore, discount Ronaldo Narezs positive identification of accusedappellant as the person who shot him and his cousin.

There is thus a need for a new trial in order to determine the veracity of Ronaldo
Narezs positive identification vis--vis the alleged confession made by Leonardo
Eliseo since no less than a life is at stake. We recognize that [c]ourt litigations are
primarily for the search of truth, and a liberal interpretation of the rules by which both
parties are given the fullest opportunity to adduce proofs is the best way to ferret out
such truth.[32] Hence, a liberal interpretation of the rule granting a motion for new
trial is called for.[33] We cannot in good conscience convict accused-appellant and
impose upon him the death penalty when evidence which would possibly exonerate
him may be presented by him in a new trial. Neither can we acquit him on the sole
ground that another person confessed to having committed the crime.

In previous cases, we granted the accuseds motion for new trial on the basis of
affidavits executed either by witnesses or by the perpetrators of the crime as they
tend to establish the innocence of the accused.[34] In People v. Amparado[35]and
Cuenca v. Court of Appeals,[36] affidavits confessing to the actual commission of the
crime were executed by the supposed culprits. The Court remanded the cases to the
trial court because of the possibility that, should the affidavits be proven true, the
conviction of the accused could be reversed or at least modified. As has been said,
the overriding need to render justice demands that an accused be granted all
possible legal means to prove his innocence of a crime of which he is charged.[37]

On the other hand, we cannot discount the possibility that the confession by
Leonardo Eliseo is a last-ditch effort by accused-appellant to avoid the death penalty.
For this reason, this case should be reopened only for the purpose of allowing the
defense to present the testimony of Leonardo Eliseo and for the prosecution to
present any rebutting evidence which it may desire to present.

WHEREFORE, without vacating the judgment of the Regional Trial Court, Branch 33,
at Siniloan, Laguna, this case is REMANDED to the Regional Trial Court, Branch
276, of Muntinlupa City for the purpose of allowing the presentation of the testimony
of Leonardo Eliseo and any evidence which the prosecution may wish to present to
rebut such testimony. In accordance with Rule 121, 6 of the Rules of Criminal
Procedure, evidence already in the record shall stand and the new evidence shall be
taken into account by the trial court and considered with evidence already in the
record and, thereafter, judgment should be rendered accordingly.

SO ORDERED.

FIRST DIVISION

G.R. No. 113213

August 15, 1994

PAUL JOSEPH WRIGHT, petitioner,

vs.
HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH
139, MAKATI, M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE,
respondents.

Rodrigo E. Mallari for petitioner.

Aurora Salva Bautista collaborating for petitioner.

KAPUNAN, J.:

A paramount principle of the law of extradition provides that a State may not
surrender any individual for any offense not included in a treaty of extradition. This
principle arises from the reality of extradition as a derogation of sovereignty.
Extradition is an intrusion into the territorial integrity of the host State and a
delimitation of the sovereign power of the State within its own territory. 1 The act of
extraditing amounts to a "delivery by the State of a person accused or convicted of a
crime, to another State within whose territorial jurisdiction, actual or constructive, it
was committed and which asks for his surrender with a view to execute justice." 2 As
it is an act of "surrender" of an individual found in a sovereign State to another State
which demands his surrender 3, an act of extradition, even with a treaty rendered
executory upon ratification by appropriate authorities, does not imposed an
obligation to extradite on the requested State until the latter has made its own
determination of the validity of the requesting State's demand, in accordance with the
requested State's own interests.

The principles of international law recognize no right of extradition apart from that
arising from treaty. 4 Pursuant to these principles, States enter into treaties of
extradition principally for the purpose of bringing fugitives of justice within the ambit
of their laws, under conventions recognizing the right of nations to mutually agree to
surrender individuals within their jurisdiction and control, and for the purpose of
enforcing their respective municipal laws. Since punishment of fugitive criminals is
dependent mainly on the willingness of host State to apprehend them and revert
them to the State where their offenses were committed, 5 jurisdiction over such
fugitives and subsequent enforcement of penal laws can be effectively accomplished
only by agreement between States through treaties of extradition.

Desiring to make more effective cooperation between Australia and the Government
of the Philippines in the suppression of crime, 6 the two countries entered into a
Treaty of Extradition on the 7th of March 1988. The said treaty was ratified in
accordance with the provisions of Section 21, Article VII of the 1987 Constitution in a
Resolution adopted by the Senate on September 10, 1990 and became effective
thirty (30) days after both States notified each other in writing that the respective
requirements for the entry into force of the Treaty have been complied with. 7

The Treaty adopts a "non-list, double criminality approach" which provides for
broader coverage of extraditable offenses between the two countries and (which)
embraces crimes punishable by imprisonment for at least one (1) year. Additionally,
the Treaty allows extradition for crimes committed prior to the treaty's date of
effectivity, provided that these crimes were in the statute books of the requesting
State at the time of their commission.

Under the Treaty, each contracting State agrees to extradite. . . "persons

. . . wanted for prosecution of the imposition or enforcement of a sentence in the
Requesting State for an extraditable offense." 8 A request for extradition requires, if
the person is accused of an offense, the furnishing by the requesting State of either
a warrant for the arrest or a copy of the warrant of arrest of the person, or, where
appropriate, a copy of the relevant charge against the person sought to be
extradited. 9

In defining the extraditable offenses, the Treaty includes all offenses "punishable
under the Laws of both Contracting States by imprisonment for a period of at least
one (1) year, or by a more severe penalty." 10 For the purpose of the definition, the
Treaty states that:

(a)
an offense shall be an extraditable offense whether or not the laws of the
Contracting States place the offense within the same category or denominate the
offense by the same terminology;

(b)
the totality of the acts or omissions alleged against the person whose
extradition is requested shall be taken into account in determining the constituent
elements of the offense. 11

Petitioner, an Australian Citizen, was sought by Australian authorities for indictable

crimes in his country. Extradition proceedings were filed before the Regional Trial
Court of Makati, which rendered a decision ordering the deportation of petitioner.
Said decision was sustained by the Court of Appeals; hence, petitioner came to this
Court by way of review on certiorari, to set aside the order of deportation. Petitioner
contends that the provision of the Treaty giving retroactive effect to the extradition
treaty amounts to an ex post facto law which violates Section 21 of Article VI of the
Constitution. He assails the trial court's decision ordering his extradition, arguing that
the evidence adduced in the court below failed to show that he is wanted for
prosecution in his country. Capsulized, all the principal issues raised by the petitioner
before this Court strike at the validity of the extradition proceedings instituted by the
government against him.

The facts, as found by the Court of Appeals, 12 are undisputed:

On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of

Foreign Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93
dated February 19, 1993 from the Government of Australia to the Department of
Justice through Attorney General Michael Duffy. Said Diplomatic Note was a formal
request for the extradition of Petitioner Paul Joseph Wright who is wanted for the
following indictable crimes:

1.
Wright/Orr Matter one count of Obtaining Property by Deception contrary to
Section 81(1) of the Victorian Crimes Act of 1958; and

2.
Wright/Cracker Matter Thirteen (13) counts of Obtaining Properties by
Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; one count of
attempting to Obtain Property by Deception contrary to Section 321(m) of Victorian
Crimes Act of 1958; and one count of Perjury contrary to Section 314 of Victorian
Crimes Act of 1958, which crimes were allegedly committed in the following manner:

The one (1) count of Obtaining Property by Deception contrary to Section 81 (1) of
the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and co-offender, Herbert
Lance Orr's, dishonesty in obtaining $315,250 from Mulcahy, Mendelson and Round
Solicitors (MM7R), secured by a mortgage on the property in Bangholme, Victoria
owned by Ruven Nominees Pty. Ltd., a company controlled by a Rodney and a
Mitchell, by falsely representing that all the relevant legal documents relating to the
mortgage had been signed by Rodney and Janine Mitchell.

The thirteen (13) counts of Obtaining Property by Deception contrary to Section

81(1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and co-offender
Mr. John Carson Craker's receiving a total of approximately 11.2 in commission
(including $367,044 in bonus commission) via Amazon Bond Pty. Ltd., depending on
the volume of business written, by submitting two hundred fifteen (215) life insurance
proposals, and paying premiums thereon (to the acceptance of the policies and
payment of commissions) to the Australian Mutual Provident (AMP) Society through
the Office of Melbourne Mutual Insurance, of which respondent is an insurance
agent, out of which life proposals none are in existence and approximately 200 of
which are alleged to have been false, in one or more of the following ways:

(i)
some policy-holders signed up only because they were told the policies were
free (usually for 2 years) and no payments were required.

(ii)
some policy-holders were offered cash inducements ($50 or $100) to sign and
had to supply a bank account no longer used (at which a direct debit request for
payment of premiums would apply). These policy-holders were also told no
payments by them were required.

(iii)
some policy-holders were introduced through the "Daily Personnel Agency",
and again were told the policies were free for 2 years as long as an unused bank
account was applied.

(iv)

some policy-holders were found not to exist.

The one count of Attempting to Obtain Property by Deception contrary to Section

321(m) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright's and Mr.
Craker's attempting to cause the payment of $2,870.68 commission to a bank
account in the name of Amazon Bond Pty. Ltd. by submitting one proposal for Life
Insurance to the AMP Society, the policy-holder of which does not exist with the end
in view of paying the premiums thereon to insure acceptance of the policy and
commission payments.

The one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958
constitutes in Mr. Wright's and Mr. Craker's signing and swearing before a Solicitor
holding a current practicing certificate pursuant to the Legal Profession Practice Act
(1958), a Statutory Declaration attesting to the validity of 29 of the most recent Life
Insurance proposals of AMP Society and containing three (3) false statements.

Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty concluded

between the Republic of the Philippines and Australia on September 10, 1990,
extradition proceedings were initiated on April 6, 1993 by the State Counsels of the
Department of Justice before the respondent court.

In its Order dated April 13, 1993, the respondent court directed the petitioner to
appear before it on April 30, 1993 and to file his answer within ten days. In the same
order, the respondent Judge ordered the NBI to serve summons and cause the
arrest of the petitioner.

The respondent court received return of the warrant of arrest and summons signed
by NBI Senior Agent Manuel Almendras with the information that the petitioner was
arrested on April 26, 1993 at Taguig, Metro Manila and was subsequently detained at
the NBI detention cell where petitioner, to date, continue to be held.

Thereafter, the petitioner filed his answer.

In the course of the trial, the petitioner testified that he was jobless, married to a
Filipina, Judith David, with whom he begot a child; that he has no case in Australia;
that he is not a fugitive from justice and is not aware of the offenses charged against
him; that he arrived in the Philippines on February 25, 1990 returned to Australia on
March 1, 1990, then back to the Philippines on April 11, 1990, left the Philippines
again on April 24, 1990 for Australia and returned to the Philippines on May 24,
1990, again left for Australia on May 29, 1990 passing by Singapore and then
returned to the Philippines on June 25, 1990 and from that time on, has not left the
Philippines; and that his tourist visa has been extended but he could not produce the
same in court as it was misplaced, has neither produced any certification thereof, nor
any temporary working visa.

The trial court, in its decision dated 14 June 1993, granting the petition for extradition
requested by the Government of Australia, concluding that the documents submitted
by the Australian Government meet the requirements of Article 7 of the Treaty of

Extradition and that the offenses for which the petitioner were sought in his country
are extraditable offenses under Article 2 of the said Treaty. The trial court, moreover,
held that under the provisions of the same Article, extradition could be granted
irrespective of when the offense in relation to the extradition was committed,
provided that the offense happened to be an offense in the requesting State at the
time the acts or omissions constituting the same were committed. 13

Petitioner challenged the decision of the Regional Trial Court before the Court of
Appeals assigning the following errors:

I.
THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN
GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY
DESPITE THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT
SHOW THAT THE ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT
TO BE EXTRADITED TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO
EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND
AUSTRALIA.

II.
THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING
RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN
THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN "EX
POST FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987
CONSTITUTION.

III.
THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING
THE EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE
ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION
IN AUSTRALIA.

IV.
THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS
DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING
THE EXTENDED STAY OF PETITIONER AS EVIDENCE OF PETITIONER'S
DESIGN TO HIDE AND EVADE PROSECUTION IN AUSTRALIA.

V.
THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING
THE EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR
DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND
TRIAL IN AUSTRALIA.

The Court of Appeals affirmed the trial court's decision on September 14, 1993 and
denied petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating
substantially the same assignments of error which he interposed in the Court of
Appeals, petitioner challenges in this petition the validity of the extradition order
issued by the trial court as affirmed by the Court of Appeals under the Treaty.
Petitioner vigorously argues that the trial court order violates the Constitutional
prohibition against ex post facto laws. He avers that for the extradition order to be
valid, the Australian government should show that he "has a criminal case pending
before a competent court" in that country "which can legally pass judgement or
acquittal or conviction upon him."

Clearly, a close reading of the provisions of the Treaty previously cited, which are
relevant to our determination of the validity of the extradition order, reveals that the
trial court committed no error in ordering the petitioner's extradition. Conformably
with Article 2, Section 2 of the said Treaty, the crimes for which the petitioner was
charged and for which warrants for his arrest were issued in Australia were
undeniably offenses in the Requesting State at the time they were alleged to have
been committed. From its examination of the charges against the petitioner, the trial
court correctly determined that the corresponding offenses under our penal laws are
Articles 315(2) and 183 of the Revised Penal Code on swindling/estafa and false
testimony/perjury, respectively. 15

The provisions of Article 6 of the said Treaty pertaining to the documents required for
extradition are sufficiently clear and require no interpretation. The warrant for the
arrest of an individual or a copy thereof, a statement of each and every offense and
a statement of the acts and omissions which were alleged against the person in
respect of each offense are sufficient to show that a person is wanted for prosecution
under the said article. All of these documentary requirements were dully submitted to
the trial court in its proceedings a quo. For purposes of the compliance with the
provisions of the Treaty, the signature and official seal of the Attorney-General of
Australia were sufficient to authenticate all the documents annexed to the Statement
of the Acts and Omissions, including the statement itself. 16 In conformity with the
provisions of Article 7 of the Treaty, the appropriate documents and annexes were
signed by "an officer in or of the Requesting State" 17 "sealed with . . . (a) public seal
of the Requesting State or of a Minister of State, or of a Department or officer of the
Government of the Requesting State," 18 and "certified by a diplomatic or consular
officer of the Requesting State accredited to the Requested State." 19 The last
requirement was accomplished by the certification made by the Philippine Consular
Officer in Canberra, Australia.

The petitioner's contention that a person sought to be extradited should have a

"criminal case pending before a competent court in the Requesting State which can
legally pass judgement of acquittal or conviction" 20 stretches the meaning of the

phrase "wanted for prosecution" beyond the intended by the treaty provisions
because the relevant provisions merely require "a warrant for the arrest or a copy of
the warrant for the arrest of the person sought to be extradited." 21 Furthermore, the
'Charge and Warrant of Arrest Sheets' attest to the fact that petitioner is not only
wanted for prosecution but has, in fact, absconded to evade arrest and criminal
prosecution. Since a charge or information under the Treaty is required only when
appropriate, i.e., in cases where an individual charged before a competent court in
the Requesting State thereafter absconds to the Requested State, a charge or a
copy thereof is not required if the offender has in fact already absconded before a
criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the
phrase "wanted for prosecution" to person charged with an information or a criminal
complaint renders the Treaty ineffective over individuals who abscond for the
purpose of evading arrest and prosecution. 22

This brings us to another point raised by the petitioner both in the trial court and in
the Court of Appeals. May the extradition of the petitioner who is wanted for
prosecution by the government of Australia be granted in spite of the fact that the
offenses for which the petitioner is sought in his country were allegedly committed
prior to the date of effectivity of the Treaty.

Petitioner takes the position that under Article 18 of the Treaty its enforcement
cannot be given retroactive effect. Article 18 states:

ENTRY INTO FORCE AND TERMINATION

This Treaty shall enter into force thirty (30) days after the date on which the
Contracting States have notified each other in writing that their respective
requirements for the entry into force of this Treaty have been complied with.

Either contracting State may terminate this Treaty by notice in writing at any time and
it shall cease to be in force on the one hundred and eightieth day after the day on
which notice is given.

We fail to see how the petitioner can infer a prohibition against retroactive
enforcement from this provision. The first paragraph of Article 18 refers to the
Treaty's date of effectivity; the second paragraph pertains to its termination.
Absolutely nothing in the said provision relates to, much less, prohibits retroactive
enforcement of the Treaty.

On the other hand, Article 2(4) of the Treaty unequivocally provides that:

4.
Extradition may be granted pursuant to provisions of this Treaty irrespective of
when the offense in relation to which extradition is requested was committed,
provided that:

(a)
it was an offense in the Requesting State at the time of the acts or omissions
constituting the offense; and

(b)
the acts or omissions alleged would, if they had taken place in the Territory of
the Requested State at the time of the making of the request for extradition, have
constituted an offense against the laws in force in that state.

Thus, the offenses for which petitioner is sought by his government are clearly
extraditable under Article 2 of the Treaty. They were offenses in the Requesting State
at the time they were committed, and, irrespective of the time they were committed,
they fall under the panoply of the Extradition Treaty's provisions, specifically, Article 2
paragraph 4, quoted above.

Does the Treaty's retroactive application violate the Constitutional prohibition against
ex post facto laws? Early commentators understood ex post facto laws to include all
laws of retrospective application, whether civil or criminal. 23 However, Chief Justice
Salmon P. Chase, citing Blackstone, The Federalist and other early U.S. state
constitutions in Calder vs. Bull 24 concluded that the concept was limited only to
penal and criminal statutes. As conceived under our Constitution, ex post facto laws
are 1) statutes that make an act punishable as a crime when such act was not an
offense when committed; 2) laws which, while not creating new offenses, aggravate
the seriousness of a crime; 3) statutes which prescribes greater punishment for a
crime already committed; or, 4) laws which alter the rules of evidence so as to make
it substantially easier to convict a defendant. 25 "Applying the constitutional principle,
the (Court) has held that the prohibition applies only to criminal legislation which
affects the substantial rights of the accused." 26 This being so, there is no absolutely
no merit in petitioner's contention that the ruling of the lower court sustaining the
Treaty's retroactive application with respect to offenses committed prior to the
Treaty's coming into force and effect, violates the Constitutional prohibition against
ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither
a piece of criminal legislation nor a criminal procedural statute. "It merely provides for
the extradition of persons wanted for prosecution of an offense or a crime which
offense or crime was already committed or consummated at the time the treaty was
ratified." 27

In signing the Treaty, the government of the Philippines has determined that it is
within its interests to enter into agreement with the government of Australia regarding
the repatriation of persons wanted for criminal offenses in either country. The said
Treaty was concurred and ratified by the Senate in a Resolution dated September
10, 1990. Having been ratified in accordance with the provision of the 1987
Constitution, the Treaty took effect thirty days after the requirements for entry into
force were complied with by both governments.

WHEREFORE, finding no reversible error in the decision of respondent Court of

Appeals, we hereby AFFIRM the same and DENY the instant petition for lack of
merit.

SO ORDERED.

EN BANC

G.R. No 101724

July 3, 1992

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE SANDIGANBAYAN and CEFERINO S. PAREDES, JR., respondents.

GRIO-AQUINO, J.:

Assailed in this petition for certiorari under Rule 45 of the Rules of Court is the
resolution promulgated on August 1, 1991 by the Sandiganbayan which granted the
private respondent's motion to quash the information for violation of the Anti-Graft
and Corrupt Practices Act (R.A. No. 3019) on the ground of prescription of the crime
charged.

Two letter-complaints were filed on October 28, 1986 and December 9, 1986, with
the Tanodbayan by Teofilo Gelacio, a political leader of Governor Valentina Plaza,
wife of Congressman Democrito O. Plaza of Agusan del Sur, shortly after the private
respondent had replaced Mrs. Plaza as OIC/provincial governor of Agusan del Sur in
March 1986 (p. 235, Rollo). Gelacio's complaint questioned the issuance to
Governor Paredes, when he was still the provincial attorney in 1976, of a free patent
title for Lot No. 3097-8, Pls. 67, with an area of 1,391 sq. m., more or less, in the
Rosario public land subdivision in San Francisco, Agusan del Sur.

On February 23, 1989, the tanodbayan referred the complaint to the City Fiscal of
Butuan City who subpoenaed Governor Paredes. However, the subpoena was
served on, and received by, the Station Commander of San Francisco, Agusan del
Sur, who did not serve it on Paredes. Despite the absence of notice to Paredes,
Deputized Tanodbayan/City Fiscal Ernesto M. Brocoy conducted a preliminary
investigation ex-parte. He recommended that an information be filed in court. His
recommendation was approved by the Tanodbayan who, on August 10, 1989, filed
the following information in the Sandiganbayan where it was docketed as TBP Case
No. 86-03368:

That on or about January 21, 1976, or sometime prior or subsequent thereto, in San
Francisco, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer, being then the Provincial Attorney
of Agusan del Sur, having been duly appointed and qualified as such, taking
advantage of his public position, did, then and there, wilfully and unlawfully
persuade, influence and induce the Land Inspector of the Bureau of Lands, by the
name of Armando L. Luison to violate an existing rule or regulation duly promulgated
by competent authority by misrepresenting to the latter that the land subject of an
application filed by the accused with the Bureau of Lands is disposable by a free
patent when the accused well knew that the said land had already been reserved for
a school site, thus by the accused's personal misrepresentation in his capacity as
Provincial Attorney of Agusan del Sur and applicant for a free patent, a report
favorably recommending the issuance of a free patent was given by the said
Armando L. Luison, land inspector, thereby paving the way to the release of a decree
of title, by the Register of Deeds of Agusan del Sur, an act committed by the
accused, in outright prejudice of the public interest. (pp. 3-4, Rollo.)

Paredes was arrested upon a warrant issued by the Sandiganbayan. Claiming that
the information and the warrant of arrest were null and void because he had been
denied his right to a preliminary investigation. Paredes refused to post bail. His wife
filed a petition for habeas corpus praying this Court to order his release (Paredes vs.
Sandiganbayan, 193 SCRA 464), but we denied her petition because the proper
remedy was for Paredes to file a bail bond of P20,000 fixed by the Sandiganbayan
for his provisional liberty, and move to quash the information before being arraigned.

On April 5, 1991, Paredes filed in the Sandiganbayan "An Urgent Motion to Quash
Information and to Recall Warrant of Arrest" alleging that:

1.

he is charged for an offense which has prescribed:

2.
the preliminary investigation, as well as the Information prepared by the
Tanodbayan and the Warrant of Arrest issued by the Sandiganbayan were invalid for
lack of notice to him of the preliminary investigation conducted by Deputized
Tanodbayan Ernesto M. Brocoy and Tanodbayan Prosecutor Josephine Z.
Fernandez; and

3.
his constitutional right to due process had been violated by the long delay in
the termination of the preliminary investigation.

After the parties had filed their written arguments, the Sandiganbayan issued a
resolution on August 1, 1991 granting the motion to quash on the ground of
prescription of the offense charged. The Sandiganbayan's ratiocination of its
resolution is quoted below:

The crime charged is alleged to have been committed "on or about January 21,
1976" when the accused allegedly misrepresented to a Lands Inspector of the
Bureau of Lands that the land subject of the herein movant's Application for a Free
Patent was disposable land. This misrepresentation allegedly resulted in the
issuance of a Torrens Title under a Free Patent to the herein accused-movant. This,
the Information avers, was prejudicial to the public interest because the land in
question had been reserved for a school site and was, therefore, not disposable.

Thus, the charge is for the violation of Sec. 3(a) of R.A. No. 3019 because the
accused had allegedly persuaded, induced and influenced the Public Lands
Inspector to violate existing law, rules and regulations by recommending approval of
the free patent application.

The accused asserts that since at the time of the alleged commission of the crime
(January 21, 1976) the period of prescription was ten (10) years under Sec. 11 of
R.A. No. 3019, the crime should have prescribed in 1986. The prosecution seems to
agree with the movant's statement as to the term of the prescriptive period with the
qualification that the period of prescription should have commenced to run from

March 28, 1985, when the complaint was allegedly filed by the Republic for the
cancellation of the title.

xxx

xxx

xxx

The question then is this: when should the period of prescription have commenced to
run as to the alleged misrepresentation which persuaded, influenced and induced
the Lands Inspector of the Bureau of Lands resulting in the approval of the
application of the accused for a free patent?

xxx

xxx

xxx

The Supreme Court has clearly stated that even in the case of falsification of public
documents, prescription commences from its recording with the Registry of Deeds
when the existence of the document and the averments therein theoretically become
a matter of public knowledge.

xxx

xxx

xxx

The matter of improper inducement, persuasion or influence upon the Lands

Inspector allegedly applied by the accused through his misrepresentation may have
been unknown to others besides the two of them because their interaction would
presumably have been private. The fact of the improper segregation of the piece of
land in question and the grant thereof to the accused, however, became,
presumptively at least, a matter of public knowledge upon the issuance of a Torrens
Title over that parcel of non-disposable public land.

xxx

xxx

xxx

4.
Notice to the whole world must be presumed at the very latest on May 28,
1976 when the Register of Deeds of Agusan del Sur issued Original Certificate of
Title No. 8379 in the name of the accused as a result of the grant of the patent on the
school site reservation;

5.
The act of filing the approved free patent with the Registry of Deeds is notice
duly given to the various offices and officials of the government, e.g., the Department
(Ministry) of Agriculture and the Bureau of Lands, who are affected thereby specially

because it is the Bureau of Lands which files the approved patent application with
the Registry of Deeds. If the land in question was indeed reserved for as school site,
then the Department (Ministry) of Education would also know or would be presumed
to know. (pp. 28-33, Rollo.)

The Sandiganbayan could not abide the fact that the Lands Inspector (Luison) who
was supposedly induced by Paredes to violate the law, and who did violate it by
recommending approval of Paredes' free patent application was not charged with a
crime. The Sandiganbayan concluded:

It would seriously strain credulity to say that while the violation of law, rules or
regulation by the Lands Inspector was obvious and public (since the school site had
been titled in the name of the alleged inducer Pimentel **), the beneficiary thereof
could not have been suspected of having induced the violation itself. It would be
grossly unfair and unjust to say that prescription would run in favor of the Lands
Inspector who had actually violated the law but not to the public official who had
benefitted therefrom and who may have, therefore, instigated the favorable
recommendation for the disposition of non-disposable land.

In view of all the foregoing, the Motion to Quash the Information is granted. (p. 36,
Rollo.)

The Sandiganbayan further observed that since R.A. No. 3019 is a special law, the
computation of the period for the prescription of the crime of violating it is governed
by Section 29 of Act No. 3326 which provides as follows:

Sec. 2.
Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for its investigation and
punishment.

The prescription shall be interrupted when proceedings are instituted against the
guilty person, and shall begin to run again if the proceedings are dismissed for
reasons not constituting jeopardy.

The Sandiganbayan correctly observed that "the date of the violation of the law
becomes the operative date for the commencement of the period of prescription" (p.
34, Rollo).

Assuming that Paredes did induce Lands Inspector Luison to recommend approval
of his application for free patent (which both of them denied doing), the date of the
violation, for the purpose of computing the period of prescription, would be the date
of filing his application on January 21, 1976.

The theory of the prosecution that the prescriptive period should not commence
upon the filing of Paredes' application because no one could have known about it
except Paredes and Lands Inspector Luison, is not correct for, as the
Sandiganbayan pointedly observed: "it is not only the Lands Inspector who passes
upon the disposability of public land . . . other public officials pass upon the
application for a free patent including the location of the land and, therefore, the
disposable character thereof" (p. 30, Rollo). Indeed, practically all the department
personnel, who had a hand in processing and approving the application, namely: (1)
the lands inspector who inspected the land to ascertain its location and occupancy:
(2) the surveyor who prepared its technical description: (3) the regional director who
assessed the application and determined the land classification: (4) the Director of
Lands who prepared the free patent: and (5) the Department Secretary who signed
it, could not have helped "discovering" that the subject of the application was
nondisposable public agricultural land.

The Sandiganbayan correctly observed that the "crime" whether it was the filing of
Paredes application for a free patent in January 1976 or his supposedly having
induced Luison to recommend its approval, prescribed ten (10) years later, on
January 21, 1986. Gelacio's complaint, dated October 28, 1986, was filed late.

The reason for the extinction of the State's right to prosecute a crime after the lapse
of the statutory limitation period for filing the criminal action, is that:

Statutes of Limitation are construed as being acts of grace, and as a surrendering by

the sovereign of its right to prosecute or of its right to prosecute at its discretion, and
they are considered as equivalent to acts of amnesty. Such statutes are founded on
the liberal theory that prosecutions should not be allowed to ferment endlessly in the
files of the government to explode only after witnesses and proofs necessary to the
protection of accused have by sheer lapse of time passed beyond availability. They
serve, not only to bar prosecutions on aged and untrustworthy evidence, but also to
cut off prosecution for crimes a reasonable time after completion, when no further
danger to society is contemplated from the criminal activity. (22 CJS 573-574.)

In the absence of a special provision otherwise, the statute of limitations begins to

run on the commission of an offense and not from the time when the offense is

discovered or when the offender becomes known, or it normally begins to run when
the crime is complete. (22 CJS 585; Emphasis supplied.)

Even if the ten-year prescriptive period commenced to run from the registration and
issuance of the free patent title by the Register of Deeds on May 28, 1976,
registration being constructive notice to the whole world, the prescriptive period
would have fully run its course on May 28, 1986, or five (5) months before Gelacio
filed his complaint, and more than thirteen (13) years before judicial proceedings
were initiated in the Sandiganbayan on August 10, 1989 by the filing of the
information therein.

Batas Pambansa Blg. 195 which was approved on March 16, 1982, amending
Section 11 R.A. No. 3019 by increasing from ten (10) to fifteen (15) years the period
for the prescription or extinguishment of a violation of the
Anti-Graft and Corrupt Practices Act, may not be given retroactive application to the
"crime" which was committed by Paredes in January 1976 yet, for it should be
prejudicial to the accused. It would deprive him of the substantive benefit of the
shorter (10 years) prescriptive period under Section 11, R.A. 3019, which was an
essential element of the "crime" at the time he committed it.

Protection from prosecution under a statute of limitation is a substantive right. Where

the statute fixes a period of limitation as to a prosecution for a particular offense, the
limitation so fixed is jurisdictional, and the time within which the offense is committed
is a jurisdictional fact, it being necessary that the indictment or information be
actually filed within the time prescribed. (22 CJS 574.)

Fact that the statute of limitations is jurisdictional necessarily determined that a

prosecution within the period specified is an essential element of the offense.
(People vs. Allen, 118 P 2d, 927, Emphasis supplied.)

Unless statutes of limitation are clearly retrospective in their terms, they do not apply
to crimes previously committed (22 CJS 576; People vs. Lurd, 12 Hun 282; Martine
vs. State, 24 Tex 61; Emphasis ours.)

To apply B.P. Blg. 195 to Paredes would make it an ex post facto law for it would
after his situation to his disadvantage by making him criminally liable for a crime that
had already been extinguished under the law existing when it was committed. An ex
post facto law is defined as:

A law passed after the occurrence of a fact or commission of an act, which

retrospectively changes the legal consequences or relations of such fact or deed. By
Art. I, Sec. 10 of U.S. Const., the states are forbidden to pass "any ex post facto
law". Most all state constitutions contain similar prohibitions against ex post facto
laws.

An "ex post facto law" is defined as a law which provides for the infliction of
punishment upon a person for an act done which, when it was committed, was
innocent; a law which aggravates a crime or makes it greater than when it was
committed; a law that changes the punishment or inflicts a greater punishment than
the law annexed to the crime when it was committed; a law that changes the rules of
evidence and receives less or different testimony than was required at the time of the
commission of the offense in order to convict the offender; a law which, assuming to
regulate civil rights and remedies only, in effect imposes a penalty or the deprivation
of a right which, when done, was lawful; a law which deprives persons accused of
crime of some lawful protection to which they have become entitled, such as the
protection of a former conviction or acquittal, or of the proclamation of amnesty;
every law which, in relation to the offense or its consequences, alters the situation of
a person to his disadvantage. Wilensky v. Fields, Fla., 267 So. 2d 1, 5. (Black's Law
Dictionary, Fifth Edition, p. 520.)

Since an ex post facto law is proscribed by our Constitution (Sec. 22, Article 111,
1987 Constitution), the Sandiganbayan committed no reversible error in ruling that
Paredes may no longer be prosecuted for his supposed violation of R.A. 3019 in
1976, six (6) years before B.P. Blg. 195 was approved on March 16, 1982. The new
prescriptive period under that law should apply only to those offense which were
committed after the approval of B.P. 195.

WHEREFORE, the petition for review is DENIED for lack of merit. The resolution
dated August 1, 1991 of the Sandiganbayan in Crim. Case No. 13800 is AFFIRMED.
No costs.

SO ORDERED.

EN BANC
[G.R. No. 129296. September 25, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABE VALDEZ y DELA CRUZ,

accused-appellant.

DECISION
QUISUMBING, J.:

For automatic review is the decision[1] promulgated on February 18, 1997, by the
Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case
No. 3105. It found appellant Abe Valdez y Dela Cruz guilty beyond reasonable doubt
for violating Section 9 of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as
amended by R.A. No. 7659. He was sentenced to suffer the penalty of death by
lethal injection.

In an Information dated September 26, 1996, appellant was charged as follows:"That

on or about September 25, 1996, at Sitio Bulan, Barangay Sawmill, Municipality of
Villaverde, Province of Nueva Vizcaya, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, who was caught in flagrante delicto
and without authority of law, did then and there wilfully (sic), unlawfully and
feloniously plant, cultivate and culture seven (7) fully grown marijuana plants known
as Indian Hemp weighing 2.194 kilos, from which dangerous drugs maybe (sic)
manufactured or derived, to the damage and prejudice of the government of the
Republic of the Philippines.

"That the property where the said seven (7) fully grown marijuana plants were
planted, cultivated and cultured shall be confiscated and escheated in favor of the
government.

"CONTRARY TO LAW."[2]

On November 15, 1996, appellant was arraigned and, with assistance of counsel,
pleaded not guilty to the charge. Trial on the merits then ensued.

The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the
police force of Villaverde, Nueva Vizcaya. He testified that at around 10:15 a.m. of
September 24, 1996, he received a tip from an unnamed informer about the
presence of a marijuana plantation, allegedly owned by appellant at Sitio Bulan,
Ibung, Villaverde, Nueva Vizcaya.[3] The prohibited plants were allegedly planted
close to appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police of
Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to verify
the report. The team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel V.
Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I.

Balut. Inspector Parungao gave them specific instructions to "uproot said marijuana
plants and arrest the cultivator of same.[4]

At approximately 5:00 o'clock A.M. the following day, said police team, accompanied
by their informer, left for the site where the marijuana plants were allegedly being
grown. After a three-hour, uphill trek from the nearest barangay road, the police
operatives arrived at the place pinpointed by their informant. The police found
appellant alone in his nipa hut. They, then, proceeded to look around the area where
appellant had his kaingin and saw seven (7) five-foot high, flowering marijuana
plants in two rows, approximately 25 meters from appellant's hut.[5] PO2 Balut asked
appellant who owned the prohibited plants and, according to Balut, the latter
admitted that they were his.[6] The police uprooted the seven marijuana plants,
which weighed 2.194 kilograms.[7] The police took photos of appellant standing
beside the cannabis plants.[8] Appellant was then arrested. One of the plants,
weighing 1.090 kilograms, was sent to the Philippine National Police Crime
Laboratory in Bayombong, Nueva Vizcaya for analysis.[9] Inspector Prevy Fabros
Luwis, the Crime Laboratory forensic analyst, testified that upon microscopic
examination of said plant, she found cystolitic hairs containing calcium carbonate, a
positive indication for marijuana.[10] She next conducted a chemical examination,
the results of which confirmed her initial impressions. She found as follows:

"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected marijuana

plant placed inside a white sack with markings.

xxx

"FINDINGS: Qualitative examination conducted on the above stated specimen gave

POSITIVE result to the test for Marijuana, a prohibited drug."[11]

The prosecution also presented a certification from the Department of Environment

and Natural Resources that the land cultivated by appellant, on which the growing
marijuana plants were found, was Lot 3224 of Timberland Block B, which formed part
of the Integrated Social Forestry Area in Villaverde, Nueva Vizcaya.[12] This lot was
part of the public domain. Appellant was acknowledged in the certification as the
occupant of the lot, but no Certificate of Stewardship had yet been issued in his
favor.[13]

As its sole witness, the defense presented appellant. He testified that at around
10:00 o'clock A.M., September 25, 1996, he was weeding his vegetable farm in Sitio
Bulan when he was called by a person whose identity he does not know. He was

asked to go with the latter to "see something."[14] This unknown person then brought
appellant to the place where the marijuana plants were found, approximately 100
meters away from his nipa hut.[15] Five armed policemen were present and they
made him stand in front of the hemp plants. He was then asked if he knew anything
about the marijuana growing there. When he denied any knowledge thereof, SPO2
Libunao poked a fist at him and told him to admit ownership of the plants.[16]
Appellant was so nervous and afraid that he admitted owning the marijuana.[17]

The police then took a photo of him standing in front of one of the marijuana plants.
He was then made to uproot five of the cannabis plants, and bring them to his hut,
where another photo was taken of him standing next to a bundle of uprooted
marijuana plants.[18] The police team then brought him to the police station at
Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer of Barangay
Sawmill, accompanied the police officers. Pascua, who bore a grudge against him,
because of his refusal to participate in the former's illegal logging activities,
threatened him to admit owning the marijuana, otherwise he would "be put in a bad
situation."[19] At the police headquarters, appellant reiterated that he knew nothing
about the marijuana plants seized by the police.[20]

On cross-examination, appellant declared that there were ten other houses around
the vicinity of his kaingin, the nearest house being 100 meters away.[21] The latter
house belonged to one Carlito (Lito) Pascua, an uncle of the barangay peace officer
who had a grudge against him. The spot where the marijuana plants were found was
located between his house and Carlito Pascua's.[22]

The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was
offered to rebut appellant's claim that the marijuana plants were not planted in the lot
he was cultivating.[23] Tipay presented a sketch he made,[24] which showed the
location of marijuana plants in relation to the old and new nipa huts of appellant, as
well as the closest neighbor. According to Tipay, the marijuana plot was located 40
meters away from the old hut of Valdez and 250 meters distant from the hut of
Carlito Pascua.[25] Tipay admitted on cross-examination that no surveyor
accompanied him when he made the measurements.[26] He further stated that his
basis for claiming that appellant was the owner or planter of the seized plants was
the information given him by the police informer and the proximity of appellant's hut
to the location of said plants.[27]

Finding appellant's defense insipid, the trial court held appellant liable as charged for
cultivation and ownership of marijuana plants as follows:

"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of cultivating

marijuana plants punishable under section 9 of the Dangerous Drugs Act of 1972, as
amended, accused is hereby sentenced to death by lethal injection. Costs against
the accused.

"SO ORDERED."[28]

Appellant assigns the following errors for our consideration:

THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE SEVEN

(7) MARIJUANA PLANTS DESPITE THEIR INADMISSIBILITY BEING PRODUCTS
OF AN ILLEGAL SEARCH.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF

VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE
INADMISSIBILITY OF THE CORPUS DELICTI AND THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY

OF DEATH UPON APPELLANT DESPITE FAILURE OF THE PROSECUTION TO
PROVE THAT THE LAND WHERE THE MARIJUANA PLANTS WERE PLANTED IS
A PUBLIC LAND ON THE ASSUMPTION THAT INDEED APPELLANT PLANTED
THE SUBJECT MARIJUANA.[29]

Simply stated, the issues are:

(1) Was the search and seizure of the marijuana plants in the present case lawful?

(2) Were the seized plants admissible in evidence against the accused?

(3) Has the prosecution proved appellant's guilt beyond reasonable doubt?

(4) Is the sentence of death by lethal injection correct?

The first and second issues will be jointly discussed because they are interrelated.

Appellant contends that there was unlawful search. First, the records show that the
law enforcers had more than ample time to secure a search warrant. Second, that
the marijuana plants were found in an unfenced lot does not remove appellant from
the mantle of protection against unreasonable searches and seizures. He relies on
the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898, 88
S. Ct. 1868 (1968), to the effect that the protection against unreasonable
government intrusion protects people, not places.

For the appellee, the Office of the Solicitor General argues that the records clearly
show that there was no search made by the police team, in the first place. The OSG
points out that the marijuana plants in question were grown in an unfenced lot and as
each grew about five (5) feet tall, they were visible from afar, and were, in fact,
immediately spotted by the police officers when they reached the site. The seized
marijuana plants were, thus, in plain view of the police officers. The instant case
must, therefore, be treated as a warrantless lawful search under the "plain view"
doctrine.

The court a quo upheld the validity of the search and confiscation made by the police
team on the finding that:

"...It seems there was no need for any search warrant. The policemen went to the
plantation site merely to make a verification. When they found the said plants, it was
too much to expect them to apply for a search warrant. In view of the remoteness of
the plantation site (they had to walk for six hours back and forth) and the dangers
lurking in the area if they stayed overnight, they had a valid reason to confiscate the
said plants upon discovery without any search warrant. Moreover, the evidence
shows that the lot was not legally occupied by the accused and there was no fence
which evinced the occupant's desire to keep trespassers out. There was, therefore,
no privacy to protect, hence, no search warrant was required."[30]

The Constitution[31] lays down the general rule that a search and seizure must be
carried on the strength of a judicial warrant. Otherwise, the search and seizure is
deemed "unreasonable." Evidence procured on the occasion of an unreasonable
search and seizure is deemed tainted for being the proverbial fruit of a poisonous
tree and should be excluded.[32] Such evidence shall be inadmissible in evidence
for any purpose in any proceeding.[33]

In the instant case, there was no search warrant issued by a judge after personal
determination of the existence of probable cause. From the declarations of the police
officers themselves, it is clear that they had at least one (1) day to obtain a warrant
to search appellant's farm. Their informant had revealed his name to them. The
place where the cannabis plants were planted was pinpointed. From the information
in their possession, they could have convinced a judge that there was probable
cause to justify the issuance of a warrant. But they did not. Instead, they uprooted
the plants and apprehended the accused on the excuse that the trip was a good six
hours and inconvenient to them. We need not underscore that the protection against
illegal search and seizure is constitutionally mandated and only under specific
instances are searches allowed without warrants.[34] The mantle of protection
extended by the Bill of Rights covers both innocent and guilty alike against any form
of high-handedness of law enforcers, regardless of the praiseworthiness of their
intentions.

We find no reason to subscribe to Solicitor General's contention that we apply the

"plain view" doctrine. For the doctrine to apply, the following elements must be
present:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;

(b) the evidence was inadvertently discovered by the police who have the right to be
where they are; and

(c) the evidence must be immediately apparent; and

(d) plain view justified mere seizure of evidence without further search.[35]

In the instant case, recall that PO2 Balut testified that they first located the marijuana
plants before appellant was arrested without a warrant.[36] Hence, there was no
valid warrantless arrest which preceded the search of appellant's premises. Note

further that the police team was dispatched to appellant's kaingin precisely to search
for and uproot the prohibited flora. The seizure of evidence in "plain view" applies
only where the police officer is not searching for evidence against the accused, but
inadvertently comes across an incriminating object.[37] Clearly, their discovery of the
cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that
upon arriving at the area, they first had to "look around the area" before they could
spot the illegal plants.[38] Patently, the seized marijuana plants were not
"immediately apparent" and a "further search" was needed. In sum, the marijuana
plants in question were not in "plain view" or "open to eye and hand." The "plain
view" doctrine, thus, cannot be made to apply.

Nor can we sustain the trial court's conclusion that just because the marijuana plants
were found in an unfenced lot, appellant could not invoke the protection afforded by
the Charter against unreasonable searches by agents of the State. The right against
unreasonable searches and seizures is the immunity of one's person, which includes
his residence, his papers, and other possessions.[39] The guarantee refers to "the
right of personal security"[40] of the individual. As appellant correctly points out, what
is sought to be protected against the State's unlawful intrusion are persons, not
places.[41] To conclude otherwise would not only mean swimming against the
stream, it would also lead to the absurd logic that for a person to be immune against
unreasonable searches and seizures, he must be in his home or office, within a
fenced yard or a private place. The Bill of Rights belongs as much to the person in
the street as to the individual in the sanctuary of his bedroom.

We therefore hold, with respect to the first issue, that the confiscated plants were
evidently obtained during an illegal search and seizure. As to the second issue,
which involves the admissibility of the marijuana plants as evidence for the
prosecution, we find that said plants cannot, as products of an unlawful search and
seizure, be used as evidence against appellant. They are fruits of the proverbial
poisoned tree. It was, therefore, a reversible error on the part of the court a quo to
have admitted and relied upon the seized marijuana plants as evidence to convict
appellant.

We now proceed to the third issue, which revolves around the sufficiency of the
prosecution's evidence to prove appellant's guilt. Having declared the seized
marijuana plants inadmissible in evidence against appellant, we must now address
the question of whether the remaining evidence for the prosecution suffices to
convict appellant?

In convicting appellant, the trial court likewise relied on the testimony of the police
officers to the effect that appellant admitted ownership of the marijuana when he was
asked who planted them. It made the following observation:

"It may be true that the admission to the police by the accused that he planted the
marijuana plants was made in the absence of any independent and competent
counsel. But the accused was not, at the time of police verification; under custodial
investigation. His admission is, therefore, admissible in evidence and not violative of
the constitutional fiat that admission given during custodial investigation is not
admissible if given without any counsel."[42]

Appellant now argues that his admission of ownership of the marijuana plants in
question cannot be used against him for being violative of his right to counsel during
the police investigation. Hence, it was error for the trial court to have relied upon said
admission of ownership. He submits that the investigation conducted by the police
officers was not a general inquiry, but was meant to elicit information on the
ownership of the marijuana plants. Appellant theorizes that since the investigation
had narrowed down to him, competent and independent counsel should have
assisted him, when the police sought information from him regarding the ownership
of the prohibited plants. Appellant claims the presumption of regularity of duty of
officers cannot be made to apply to his purported voluntarily confession of ownership
of the marijuana plants. Nor can it override his constitutional right to counsel during
investigation.

The Office of the Solicitor General believes otherwise. The OSG avers that appellant
was not yet under custodial investigation when he admitted to the police that he
owned the marijuana plants. His right to competent and independent counsel,
accordingly, had not yet attached. Moreover, appellants failure to impute any false
motive for the police officers to falsely accuse him indicates that the presumption of
regularity in the performance of official duties by police officers was not sufficiently
rebutted.

The Constitution plainly declares that any person under investigation for the
commission of an offense shall have the right: (1) to remain silent; (2) to have
competent and independent counsel preferably of his own choice; and (3) to be
informed of such rights. These rights cannot be waived except in writing and in the
presence of counsel.[43] An investigation begins when it is no longer a general
inquiry but starts to focus on a particular person as a suspect, i.e., when the police
investigator starts interrogating or exacting a confession from the suspect in
connection with an alleged offense.[44] The moment the police try to elicit
admissions or confessions or even plain information from a person suspected of
having committed an offense, he should at that juncture be assisted by counsel,
unless he waives the right in writing and in the presence of counsel.[45]

In the instant case we find that, from the start, a tipster had furnished the police
appellant's name as well as the location of appellant's farm, where the marijuana
plants were allegedly being grown. While the police operation was supposedly meant
to merely "verify" said information, the police chief had likewise issued instructions to
arrest appellant as a suspected marijuana cultivator. Thus, at the time the police
talked to appellant in his farm, the latter was already under investigation as a
suspect. The questioning by the police was no longer a general inquiry.[46]

Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the
cultivator of that marijuana so we just asked him and I think there is no need to
inform (him of) his constitutional rights because we are just asking him..."[47] In
trying to elicit information from appellant, the police was already investigating
appellant as a suspect. At this point, he was already under custodial investigation
and had a right to counsel even if he had not yet been arrested. Custodial
investigation is "questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any
significant way."[48] As a suspect, two armed policemen interrogated appellant.
Behind his inquisitors were a barangay peace officer and three other armed
policemen.[49] All had been dispatched to arrest him.[50] From these circumstances,
we may infer that appellant had already been deprived of his freedom of action in a
significant way, even before the actual arrest. Note that even before he was arrested,
the police made him incriminatingly pose for photos in front of the marijuana plants.

Moreover, we find appellant's extrajudicial confession flawed with respect to its

admissibility. For a confession to be admissible, it must satisfy the following
requirements: (1) it must be voluntary; (2) it must be made with the assistance of
competent and independent counsel; (3) it must be express; and (4) it must be in
writing.[51] The records show that the admission by appellant was verbal. It was also
uncounselled. A verbal admission allegedly made by an accused during the
investigation, without the assistance of counsel at the time of his arrest and even
before his formal investigation is not only inadmissible for being violative of the right
to counsel during criminal investigations, it is also hearsay.[52] Even if the
confession or admission were "gospel truth", if it was made without assistance of
counsel and without a valid waiver of such assistance, the confession is inadmissible
in evidence, regardless of the absence of coercion or even if it had been voluntarily
given.[53]

It is fundamental in criminal prosecutions that before an accused may be convicted

of a crime, the prosecution must establish by proof beyond reasonable doubt that a
crime was committed and that the accused is the author thereof.[54] The evidence
arrayed against the accused, however, must not only stand the test of reason,[55] it
must likewise be credible and competent.[56] Competent evidence is "generally
admissible" evidence.[57] Admissible evidence, in turn, is evidence "of such a

character that the court or judge is bound to receive it, that is, allow it to be
introduced at trial."[58]

In the instant case, the trial court relied on two pieces of probative matter to convict
appellant of the offense charged. These were the seized marijuana plants, and
appellant's purportedly voluntary confession of ownership of said marijuana plants to
the police. Other than these proofs, there was no other evidence presented to link
appellant with the offense charged. As earlier discussed, it was error on the trial
court's part to have admitted both of these proofs against the accused and to have
relied upon said proofs to convict him. For said evidence is doubly tainted.

First, as earlier pointed out, the seized marijuana plants were obtained in violation of
appellant's constitutional rights against unreasonable searches and seizures. The
search and seizure were void ab initio for having been conducted without the
requisite judicial warrant. The prosecution's very own evidence clearly establishes
that the police had sufficient time to obtain a warrant. There was no showing of such
urgency or necessity for the warrantless search or the immediate seizure of the
marijuana plants subject of this case. To reiterate, said marijuana plants cannot be
utilized to prove appellant's guilt without running afoul of the constitutional
guarantees against illegal searches and the inadmissibility of evidence procured
pursuant to an unlawful search and seizure.

Second, the confession of ownership of the marijuana plants, which appellant

allegedly made to the police during investigation, is not only hearsay but also
violative of the Bill of Rights. The purported confession was made without the
assistance of competent and independent counsel, as mandated by the Charter.
Thus, said confession cannot be used to convict appellant without running afoul of
the Constitution's requirement that a suspect in a criminal investigation must have
the services of competent and independent counsel during such investigation.

In sum, both the object evidence and the testimonial evidence as to appellant's
voluntary confession of ownership of the prohibited plants relied upon to prove
appellant's guilt failed to meet the test of Constitutional competence.

The Constitution decrees that, "In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved..."[59] To justify the conviction of the
accused, the prosecution must adduce that quantum of evidence sufficient to
overcome the constitutional presumption of innocence. The prosecution must stand
or fall on its evidence and cannot draw strength from the weakness of the evidence
for the accused.[60] Absent the required degree of proof of an accused's guilt, he is
entitled to an acquittal.[61] In this case, the seized marijuana plants linking appellant

to the crime charged are miserably tainted with constitutional infirmities, which
render these inadmissible "for any purpose in any proceeding."[62] Nor can the
confession obtained during the uncounselled investigation be used against appellant,
"it being inadmissible in evidence against him.[63] Without these proffered but
proscribed materials, we find that the prosecution's remaining evidence did not even
approximate the quantum of evidence necessary to warrant appellant's conviction.
Hence, the presumption of innocence in his favor stands. Perforce, his acquittal is in
order.

In acquitting an appellant, we are not saying that he is lily-white, or pure as driven

snow. Rather, we are declaring his innocence because the prosecution's evidence
failed to show his guilt beyond reasonable doubt. For that is what the basic law
requires. Where the evidence is insufficient to overcome the presumption of
innocence in favor of the accused, then his "acquittal must follow in faithful
obeisance to the fundamental law."[64]

WHEREFORE, the decision promulgated on February 18, 1997, by the Regional

Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105,
finding Abe Valdez y Dela Cruz, guilty beyond reasonable doubt of violating Section
9 of the Dangerous Drugs Act of 1972, and imposing upon him the death penalty, is
hereby REVERSED and SET ASIDE for insufficiency of evidence. Appellant is
ACQUITTED and ordered RELEASED immediately from confinement unless held for
another lawful cause.

SO ORDERED.

THIRD DIVISION
[G.R. No. 132671. November 15, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISANTO BAULA, RUBEN

BAULA, ROBERT BAULA and DANILO DACUCOS, accused-appellants.
DECISION
VITUG, J.:

In an Information, dated 07 August 1996, accused-appellants were charged with

murder before the Regional Trial Court, Branch 38, of Lingayen, Pangasinan. The
accusatory portions of the Information against the indictees read:

"That on or about the 13th day of December 1995, in the evening, in barangay
Sioasio West, Municipality of Sual, Province of Pangasinan, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, armed with a bolo (tabas), with
abuse of superior strength, treachery and evident premeditation and intent to kill, did
then and there willfully, unlawfully and feloniously attack, assault and stab Patrocenia
Caburao, inflicting upon her the following:

1. Hacking wound - 3 inches in length; 2 inches deep Rt. Occipital region (nape area)
exposing brain tissue;

2. Hacking wound - 4 inches in length; 2 inches deep at mid occipital area exposing
damage brain tissue;

3. Hacking wound - 4 inches in length; 1/2 inch deep facial area running across the
Rt. Cheek and left cheek including the nasal area;

4. Hacking wound - 2 inches in height; 1 inch deep at the vertex (top of the head);

5. Abrasion; confluent at the back area.

Cause of death - Brain tissue injury secondary to mortal wounds above which
injuries directly caused her death, to the damage and prejudice of the heirs of the
said Patrocenia Caburao.

Contrary to Art. 248 of the Revised Penal Code."[1]

When arraigned, the accused all entered a plea of not guilty to the offense charged.
Trial shortly thereafter ensued.

The relevant facts and events that transpired, according to the prosecution, were
briefly narrated in the People's Brief.

On 13 December 1995, at around eight oclock in the evening, Jupiter Caburao,

decided to follow his mother, Patrocinia Caburao, who had earlier left their house at
Barangay Siwasiw West, Sual, Pangasinan, to settle her due obligations at a store,
about one-and-a-half kilometers away, owned by a certain Brigida Tumamang. While
traversing the road towards the store, Jupiter noticed a commotion near the creek
about ten meters away from him. He focused his flashlight towards the direction
where he heard the commotion and saw accused-appellants Crisanto Baula and
Danilo Dacucos in the act of hacking a person who was lying on the ground, while
accused-appellants Robert Baula and Ruben Baula stood as lookouts. The assault
lasted for about four minutes. Accused-appellants fled but not before they had
threatened Jupiter with death if he were to divulge the incident to anyone. Jupiter
went near the lifeless body of the victim who turned out to be his own mother. Her
head and face sustained four hacking wounds, two of which damaged her brain
tissues. Jupiter rushed home and brought his niece and nephew to the house of a
neighbor for their safety. For fear of reprisal from accused-appellants and believing
that the police would be able to solve the gory killing on their own, Jupiter did not
reveal the carnage to either his relatives or the police.

About two o'clock in the morning of 14 December 1995, the police authorities, led by
SPO4 Fermin Mirande, went to the locus criminis, and took pictures of the body of
the victim.[2] The investigation revealed that before the victim was killed, she had
been to Brigida Tumamang's store; that accused-appellants were also at the store
having a drinking spree; that the victim left the store between seven o'clock and eight
o'clock in the evening, and that, fifteen minutes later, accused-appellants also left.

SPO4 Mirande, with several policemen, repaired to the respective houses of

accused-appellants. The policemen asked Ruben Baula and Crisanto Baula for the
clothing they wore on the night of the murder. Ruben Baula gave his bloodstained
pair of short pants, and Crisanto Baula turned over his bloodstained polo shirt. The
policemen next went to the hut of Danilo Dacucos. Inside the hut, the group found
hanging on the wall a bloodstained bolo. The bloodstained pair of short pants, polo
shirt and bolo, together with the victim's dried blood samples,[3] were sent on the
same day to the National Bureau of Investigation, Dagupan City Branch Office,[4] for
forensic examination. The results of the examination[5] disclosed that the
bloodstains[6] found in the bolo,[7] the bloodstains[8] on the polo shirt[9] and the
bloodstains[10] on the pair of short pants[11] had the same type "O" blood as that of
the victim.

The defense had another version of the incident.

Wilson Radovan, the barangay captain of Siwasiw, Sual, Pangasinan, testified that
on 13 December 1995, at around eight o'clock in the evening, while he and the other

barangay officials were at their outpost, they heard the cry of a woman asking for
help. Rushing out, they saw Teofila Uson, a barangay mate, who told them that she
and Patrocinia Caburao were being pelted with stones. Teofila Uson said that it was
too dark to be able to identify the person who had attacked them. When the group
proceeded to the place of the incident, they saw the lifeless body of Patrocinia
Caburao, beside the road, near the creek. Radovan testified that he did not notice
any other person in the place where the incident occurred. He requested Gene
Macatiao, the son-in-law of the victim and one of those who first arrived in the scene,
to inform their relatives and the police.

Ruben Baula testified that in the morning of 13 December 1995, he, together with his
co-accused and other companions, namely, Pepito Ramos, Amber Pagudpod,
Francis Amistad and Reny, were harvesting palay, at Sitio Binabalian, Siwasiw West,
Sual, Pangasinan, on the land being tenanted by Crisanto Baula. He recounted that
they were there until 4:55 in the afternoon at about which time Crisanto Baula invited
the group to eat "merienda" in the nearby canteen of Brigida Tumamang. He noticed
that when they arrived at the store, there were three other persons partaking of
drinks. At about twilight, they left the store of Brigida Tumamang and proceeded to
their respective residences, leaving behind the three persons who continued with
their drinking spree. At about three o'clock in the morning of 14 December 1995,
while he was asleep, four policemen and several barangay officials arrived and
asked him if he knew who had killed Patrocinia Caburao. Although he denied any
knowledge about the killing, the policemen, nevertheless, invited him to accompany
them to the house of Robert Baula. Arriving thereat, the policemen likewise
questioned the latter about the killing of Patrocinia Caburao. Robert Baula, like his
co-accused Ruben Baula, denied any knowledge of the killing. After the
interrogation, the police authorities allowed them to go. Ruben and Robert Baula
both vehemently denied that the police ever took any clothing from them.

Accused-appellants, Crisanto Baula and Danilo Dacucos, corroborated the testimony

of their co-accused, Ruben and Robert Baula, in its material points, claiming that in
the morning of 13 December 1995, they went to Sitio Binabalian to harvest palay;
that in the afternoon, they took their merienda at the store of Brigida Tumamang; and
that, thereafter, they went home leaving behind the three persons still indulging in
drinks at the store of Brigida Tumamang.

The trial over, the court a quo rendered its judgment on 17 November 1997,
convicting accused-appellants of the crime charged; thus:

"WHEREFORE, in view of the foregoing premises, judgment is hereby rendered

finding the accused Danilo Dacucos, Crisanto Baula, Ruben Baula and Robert

Baula, guilty beyond reasonable doubt of the crime of Murder defined and penalized
under Article 248 of the Revised Penal Code as amended.

Pursuant thereto and in relation to Article 63, paragraph 2, No. 2 of the same code,
all the aforenamed accused are hereby sentenced to suffer the penalty of Reclusion
Perpetua and to pay, jointly and severally, the heirs of Patrocinia Caburao the
following:

a. P50,000.00 for the death of Patrocinia Caburao;

b. P15,000.00 for funeral expenses;

c. moral damages of P75,000.00;

d. to pay proportionally the costs.

SO ORDERED."[12]

Accused-appellants contend in the instant appeal that the trial court has erred (1) in
giving full credence to the belated eyewitness account of Jupiter Caburao ascribing
to herein accused-appellants authorship of the crime, and (2) in admitting in
evidence the bolo, polo shirt, and short pants taken by the policemen from accusedappellants in violation of their constitutional rights.

In convicting accused-appellants, the trial court found the explanation of Jupiter for
his delay in reporting what he knew of the gruesome killing not to be without valid
reasons. After all, the court said, he was threatened and he felt that the authorities
could solve the crime even without revealing what he knew.

True, the rule has generally been that where the culpability or innocence of an
accused hinges on the issue of credibility of witnesses and the veracity of their
testimony, the assessment made by the trial court thereover is entitled to a great
degree of respect and, absent strong justifications to the contrary, it will not be
disturbed on appeal.[13] The reason is simple. A trial court gets an opportunity, not
equally open to an appellate court, to observe the expression of witnesses at the
stand, including their demeanor under questioning, that makes up a most significant
factor in the proper evaluation of testimonial evidence. Obviously, however, this rule

will not apply where one judge hears the testimony of the witnesses and another
judge pens the decision for, in such a case, the thesis for the rule is not in the least
extant.[14]

In the case under review, such as in People vs. Capilitan[15] and People vs.
Villapana,[16] the decision was rendered by the judge who did not conduct the trial
and hear the evidence. The Court in acquitting Capilitan of rape, quoted with
approval its previous pronouncement in Villapana similarly acquitting the accused
therein, viz:

Additionally, we have to take note that in this case, the judge who heard the
evidence for the prosecution is not the same judge who decided the case. It was
Judge Serafin Salvador who heard the testimonies of complainant and her witness
before his retirement. Whereas, it was Judge Romulo Quimbo who decided the case
relying solely on the transcripts of stenographic notes in appreciating Macaranas and
her witness testimonies. Even as this Court has consistently been guided by the
precept that findings of trial courts on credibility of witnesses are accorded great
weight and must not be disturbed as it was the trial judge who had the opportunity to
observe the demeanor of the witnesses while they were testifying, this case should
be an exception in view of the fact that the Judge who decided the case is NOT the
same judge who heard the evidence (see People vs. Escalante, et al., G.R. No. L371457, August 22, 1984, 131 SCRA 237). Thus, the Court should all the more
exercise utmost care in evaluating the evidence presented in the instant case so as
to render justice not only to the accused, but also to the complainant and the State
as well.[17]

Here, it was Judge Antonio M. Belen who heard the testimony given at the trial, but it
was Judge Emilio V. Angeles who wrote the decision, dated 17 November 1997,
solely on the basis of the records of the case. Having neither personally heard the
testimony of the witnesses nor observed their deportment and manner of testifying,
his assessment on the credibility of witnesses would have to be received with
caution on appeal.[18]

Verily, it is not uncommon for a witness to show some reluctance about being
immersed in a criminal case. The natural reticence of most people to get involved is,
in fact, of judicial notice.[19] Thus, it is recognized that the delay or vacillation in
making a criminal accusation does not necessarily impair the credibility of witnesses
for, more often than not, such a delay can be satisfactorily explained.[20]

In this instance, however, the Court cannot help but doubt as being highly suspect,
the belated revelation of Jupiter on the identity of the assailants. His claim that he did

not immediately report the matter to the police relying on a supposition that the crime
could anyway be solved even without his own disclosure appears to be a bit flimsy.
Unlike previous cases where we have ruled otherwise, Jupiter is not just an innocent
bystander but the son of the victim. The raging passion and anger of a son who has
just lost a mother in such a brutal manner would have impelled him to immediately
report the crime to the authorities even with an alleged threat upon his life.

It can be accepted that there is yet no real test or a hard and fast rule in ascertaining
the truth of the testimony of a witness to an accurate degree. Nevertheless,
testimony that conforms to human knowledge, observation, and experience is often
deemed reliable and that which is repugnant to such standards belongs to the
miraculous and outside of judicial cognizance.[21] The Court finds that Jupiter's
response to the events is far from the natural reaction of a son who has just
witnessed the grisly murder of his own mother. What he has said to have done is
simply not in accord with human nature. With all the bitterness and indignation
expected of a person similarly situated, it is quite odd that he would keep the matter
to himself and fail to disclose his knowledge of the crime to the police authorities, or
even to any of his relatives, despite his presence during their investigation of the
case. His belated declaration of the identity of his mother's assailants, some two
months after the killing, can but accentuate the difficulty that the Court would have to
face if it were to rely almost completely on his testimony.

A careful reading of the records of this case additionally would reveal significant
flaws in the testimony of Jupiter.

Jupiter testified that he was able to recognize all the accused being barangaymates
but failed to recognize the victim because he was quite distant from the place where
the assault took place. He remembered well the number of times the accused
Crisanto and Danilo had allegedly hacked the victim, yet, on further questioning by
the trial court, he could not tell which part of the body of the victim was struck. On
direct examination, Jupiter would insist that he approached the victim after the
accused had fled. When asked by the court whether he went close to the place of
the incident, he answered in the negative, stating that he was shocked and
frightened. Jupiter testified that the incident had lasted for four minutes and that he
focused his flashlight on the commotion four times, at intervals of five seconds each,
but, again, when queried by the court why he had waited for four minutes before
focusing his flashlight, Jupiter kept silent and did not answer the question.

It would seem unlikely that after Jupiter focused his flashlight on them, accusedappellants would continue hacking the victim and for the two lookouts, who were
supposed to precisely warn their co-accused of the presence of witnesses, to simply
do nothing about it. The most common response of persons committing a crime

would be to flee upon being discovered. Indeed, there should be greater reason for
them to do so when that witness happened to be the son of their victim.

Testimonial evidence to be believed must not only proceed from the mouth of a
credible witness but must be credible in itself which, by common experience and
observation, could lead to the inference of at least its probability under the
circumstances.[22] In a criminal prosecution the accused is confronted with the full
might of state authority. The evidence of the prosecution must thus be strong to
pierce the shield of presumptive innocence.[23]

Accused-appellants also take exception to the admissibility of the evidence

consisting of the bloodstained bolo, polo shirt and short pants arguing that, even on
the assumption that these articles did belong to accused-appellants, their seizure
without a valid warrant has violated their constitutional rights.

Admittedly, the bloodstained bolo, polo shirt and short pants were taken, sans any
search warrant, from accused-appellants Danilo Dacucos, Crisanto Baula and
Ruben Baula, respectively, at a time when the police started to question them about
the killing of Patrocinia Caburao.

Section 2, Article III, of the 1987 Constitution provides:

"Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized."

The above constitutional mandate is complemented by Article III, Section 3(2), of the
Constitution providing that -

"Section 3(2). Any evidence obtained in violation of this or the preceding section shall
be inadmissible for any purpose in any proceeding" -

a rule pronounced by the Court in Stonehill vs. Diokno.[24] The plain import of the
fundamental law is thus to say that between the State and the people stands the

protective authority of a magistrate clothed with power to issue or refuse to issue

search warrants or warrants of arrest.[25] The protection means that the State
cannot simply intrude indiscriminately into houses, or conduct search and seizure
thereat or on the person of an individual, and it puts up an almost impenetrable
shield to protect privacy and accord sanctity against this unlawful form of restraint.
[26]

The above proscription against unreasonable searches and seizures is not absolute,
of course, and the Court has had occasions to rule that a warrantless search and
seizure of property is valid under certain circumstances. There can, for instance, be
a lawful warrantless search incidental to a lawful arrest recognized under Section 12,
Rules 126 of the Rules of Court and by prevailing jurisprudence; or seizure of
evidence in "plain view," its elements being extant;[27] or search of a moving vehicle;
[28] or consented search; or customs search.[29] The situation here in question,
however, can hardly come within the purview of any of the established exceptions.

In a warrantless search incidental to a lawful arrest, the arrest itself must have to be
effected under the circumstances enumerated by law. One such case is when an
offense has in fact just been committed, and the peace officer has personal
knowledge of facts indicating that the person to be arrested has committed it.[30]

Accused-appellants were not being arrested at the time that the subject articles were
allegedly taken from them but were just being questioned by the police officers
conducting the investigation about the death of Patrocinia Caburao. The
investigating officers had no personal knowledge of facts indicating that the accused
had committed the crime. Being in no position to effect a warrantless arrest, the
police officers were thus likewise barred from effecting a warrantless search and
seizure.

SPO4 Fermin Mirande testified:

Fiscal:

Q. What have you found in the scene of the incident?

Witness:

A. We were able to see the bloodied body of Patrocinia Caburao, sir.

Court:

Q. Dead already?

Witness:

A. Yes, sir, due to multiple hack wounds.

Fiscal:

Q. What have you and your companions done there?

Witness:

A. Since at the time we arrived at the place, we did not immediately gather such
evidence to pin point any suspect. We tried our very best to conduct further
investigation as to the place where this victim came from and we were able to
establish that she came at the place where at the place of one store, sir.

Court:

Q. Store of?

Witness:

A. I could no longer.....

Q. In Siwasiw?

A. Yes, sir. From that place, according to the information given by the owner of the
store, nobody had seen what is really happened to the victim, sir.

xxxxxxxxx

Fiscal:

Q. After you proceeded to the store and you have gathered that information, what
transpired next in that store?

Witness:

A. Since there is an information that there were persons who were drinking at the
said store, sir.

Court:

Q. Drinking wine you mean?

Witness:

A. Yes, sir. We exerted our efforts to look for these people, sir.

Fiscal:

Q. Have you ascertain the identities of the persons who were drinking at the store?

Witness:

A. The four (4) suspects were the four (4) accused now, Crisanto Baula, Danilo
Dacocos, Ruben Baula and Robert Baula and they were the one engaged in this
drinking spree at the said place, sir.

Court:

Q. All the accused?

Witness:

A. And some other unidentified persons, sir.

Fiscal:

Q. After you ascertain the four (4) accused and some other which were not identified
were the one have drunk at the said store, what transpired next in your
investigation?

Witness:

A. We tried to look for these persons, identified persons, sir.

Court:

Q. What happened?

Witness:

A. And we were able to locate them at their respective houses, sir.

Fiscal:

Q. Now, what transpired when you located the four (4) accused at their respective
houses?

Witness:

A. We examined their persons if they are really drank at that time but the same no
sign that they were drank but we made on suspicion that one of the accused to
where we requested to present his clothes during the night that he wore during their
engagement at the drinking spree in the store, sir.

Court:

Q. Who is this accused?

Witness:

A. I have not bring with me the record, sir.

Fiscal:

Q. Can you identify that suspect, if you can see him again?

Witness:

A. One of the Baulas, sir.

Q. How many Baulas?

A. Three (3), sir.

Q. Can you identify by his face?

Atty. Palma:

Already testified, he cannot.

Court:

Q. You look at the accused?

Witness:

A. So far, as of now, I could not exactly identify him, sir, but the moment I could see
on my records, I have to consult my record.

Q. What record?

A. The one presented our transmittal to the NBI, sir.

Q. NBI, Dagupan City?

A. Yes, sir.

Q. Regarding what?

A. To determine as to whether the suspected bloodstains of the clothing that is of the

victim, sir.

xxxxxxxxx

Fiscal:

Q. Now, you said the clothing which you have requested from one of the accused
Baula to give to you which he wore that evening when there was drinking spree in
the store, now, what part of the clothing was stained with blood?

Witness:

A. I could no longer remember, sir.

Q. Now, what else have you done after you had requested this one of the accused
Baula to present his clothes wore at the night of the drinking spree?

A. One of the persons who were engaged in the drinking spree was Danilo Dacocos,
sir. We tried to look for him and we were able to see him at his hut almost one (1)
kilometer away from the store, sir, and we were able to see one (1) bolo which was
hang on the wall of the hut.

Court:

Q. Was the bolo has bloodstained?

Witness:

A. There is again a suspected bloodstain, sir, and that cause us to turn over for
examination to the NBI, sir.

Q. And this is one of the specimen you sent?

A. Yes, sir.

xxxxxxxxx

Fiscal:

Q. Now, tell us if there was occupants of this hut of Danilo Dacocos when you saw
this bloodstain on that bolo?

Witness:

A. At the time we discovered the bolo there is no occupant but he was the one living
at the said hut, sir.

Q. Why do you know that it was Danilo Dacocos was the one living in that hut?

A. During the interview he admitted that he is living there, sir.

Q. Now, what transpired next after going to this hut of Danilo Dacocos?

A. We took the bolo and sent to the NBI, sir.[31] (Emphasis supplied.)

Clearly, the police officers acted on a mere suspicion that accused-appellants could
be responsible for the commission of the crime and only because of their being at
the store where the victim was last seen.

Mere suspicion cannot satisfy the requirement of probable cause which signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person accused is guilty of
the offense with which he can be charged.[32] An illegal search cannot be
undertaken and then an arrest effected on the strength of the evidence yielded by
that search.[33]

The Court finds it less than credible the stance of the prosecution that the polo shirt
and short pants have been voluntarily given. An alleged consent to a warrantless
search and seizure cannot be based merely on the presumption of regularity in the
performance of duty.[34] This presumption, by itself, cannot prevail against the
constitutionally protected rights of an individual, and zeal in the pursuit of criminals
cannot ennoble the use of arbitrary methods that the Constitution itself abhors.[35]

WHEREFORE, the assailed Decision is REVERSED and SET ASIDE and all the
accused-appellants are hereby ACQUITTED of the crime charged and ordered to be
immediately released from custody unless detained for some other lawful reason.
Costs de oficio.

SO ORDERED.

EN BANC
[A.C. No. 5151. October 19, 2004]

PEDRO G. TOLENTINO, ROMEO M. LAYGO, SOLOMON M. LUMALANG, SR.,

MELITON D. EVANGELISTA, SR., and NELSON B. MELGAR, complainants, vs.
ATTY. NORBERTO M. MENDOZA, respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:

Before us is a complaint filed by Pedro G. Tolentino, Romeo M. Laygo, Solomon M.

Lumalang, Sr., Meliton D. Evangelista, Sr., and Nelson B. Melgar against Atty.
Norberto M. Mendoza for Grossly Immoral Conduct and Gross Misconduct.

Complainants allege in their Affidavit-Complaint that respondent, a former Municipal

Trial Court Judge, abandoned his legal wife, Felicitas V. Valderia in favor of his
paramour, Marilyn dela Fuente, who is, in turn, married to one Ramon G. Marcos;
respondent and Marilyn dela Fuente have been cohabiting openly and publicly as
husband and wife in Brgy. Estrella, Naujan, Oriental Mindoro; respondent had
fathered two children by his paramour Marilyn dela Fuente; respondent and Marilyn
dela Fuente declared in the birth certificates of their two daughters that they were
married on May 12, 1986, making it appear that their two children are legitimate,
while in respondents Certificate of Candidacy filed with the COMELEC during the
1995 elections, respondent declared that his wife is Felicitas V. Valderia; in
respondents certificate of candidacy for the 1998 elections, he declared his civil
status as separated; such declarations in the birth certificates of his children and in
his certificate of candidacy are acts constituting falsification of public documents; and
respondents acts betray his lack of good moral character and constitute grounds for
his removal as a member of the bar.

Respondent filed his Comment wherein he states that complainants, who are his
political opponents in Naujan, Oriental Mindoro, are merely filing this case to exact
revenge on him for his filing of criminal charges against them; complainants illegally
procured copies of the birth certificates of Mara Khrisna Charmina dela Fuente
Mendoza and Myrra Khrisna Normina dela Fuente Mendoza, in violation of Rule 24,
Administrative Order No. 1, series of 1993, thus, such documents are inadmissible in
evidence; respondent did not participate in the preparation and submission with the
local civil registry of subject birth certificates; respondent never declared that he had

two wives, as he has always declared that he is separated in fact from his wife,
Felicitas V. Valderia; and complainants have used this issue against him during
elections and yet, the people of Naujan, Oriental Mindoro still elected him as Mayor,
hence, respondent has not offended the publics sense of morality.

The administrative case was referred to the Integrated Bar of the Philippines
(hereinafter IBP) for investigation, report and recommendation. Thereafter, the
Commission on Bar Discipline of the IBP conducted hearings.

Witnesses for complainants, Nelson B. Melgar and Romeo M. Laygo, submitted their
affidavits as their direct testimony and were subjected to cross-examination by
respondents counsel.

Witness Nelson B. Melgar declares in his affidavit as follows: He knows respondent

for they both reside in Naujan, Oriental Mindoro. Respondent is known as a
practicing lawyer and a former Municipal Trial Court Judge. Respondent has been
cohabiting openly and publicly with Marilyn dela Fuente, representing themselves to
be husband and wife, and from their cohabitation, they produced two children,
namely, Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina
dela Fuente Mendoza. Sometime in 1995, he (witness Melgar) received a letter from
a concerned citizen, informing him that respondent was married to Felicitas Valderia
of San Rafael, Bulacan, on January 16, 1980, but respondent abandoned his wife to
cohabit with Marilyn dela Fuente. Attached to the letter was a photocopy of a
Certification issued by the Civil Register attesting to the marriage between
respondent and Felicitas Valderia. He also received information from concerned
citizens that Marilyn dela Fuente is also legally married to one Ramon G. Marcos, as
evidenced by a Certification from the Office of the Civil Register. Respondent stated
in his Certificate of Candidacy filed with the COMELEC in 1995 that he is still legally
married to Felicitas Valderia. In respondents Certificate of Candidacy filed with the
COMELEC in 1998, he declared his civil status as separated. Respondent has
represented to all that he is married to Marilyn dela Fuente. In the Naujanews, a
local newspaper where respondent holds the position of Chairman of the Board of
the Editorial Staff, respondent was reported by said newspaper as husband to
Marilyn dela Fuente and the father of Mara Khrisna Charmina and Myrra Khrisna
Normina.

On cross-examination, witness Melgar testified as follows: He was the former mayor

of Naujan and he and respondent belong to warring political parties. It was not
respondent who told him about the alleged immoral conduct subject of the present
case. Although he received the letter of a concerned citizen regarding the immoral
conduct of respondent as far back as 1995, he did not immediately file a case for
disbarment against respondent. It was only after respondent filed a criminal case for

falsification against him that he decided to file an administrative case against

respondent.[1]

On re-direct examination, witness Melgar testified that there were people who were
against the open relationship between respondent and Marilyn dela Fuente as
respondent had been publicly introducing the latter as his wife despite the fact that
they are both still legally married to other persons, and so someone unknown to him
just handed to their maid copies of the birth certificates of Mara Khrisna Charmina
and Myrra Khrisna Normina.[2]

The affidavit of Mr. Romeo M. Laygo, which was adopted as his direct testimony, is
practically identical to that of witness Melgar. On cross-examination, witness Laygo
testified that he was not the one who procured the certified true copies of the birth
certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna
Normina dela Fuente Mendoza, as somebody just gave said documents to Nelson
Melgar. He was a municipal councilor in 1995 when the letter of a concerned citizen
regarding respondents immorality was sent to Melgar, but he did not take any action
against respondent at that time.[3]

Complainants then formally offered documentary evidence consisting of photocopies

which were admitted by respondents counsel to be faithful reproductions of the
originals or certified true copies thereof, to wit: a letter of one Luis Bermudez
informing Nelson Melgar of respondents immoral acts,[4] the Certification of the
Local Civil Registrar of San Rafael, Bulacan, attesting to the celebration of the
marriage between respondent and one Felicitas Valderia,[5] the Birth Certificate of
Mara Khrisna Charmina dela Fuente Mendoza,[6] the Birth Certificate of Myrra
Khrisna Normina dela Fuente Mendoza,[7] the Certificate of Candidacy of
respondent dated March 9, 1995,[8] the Certificate of Candidacy of respondent dated
March 25, 1998,[9] Certification issued by the Civil Registrar of Naujan, Oriental
Mindoro dated October 27, 1998, attesting to the marriage celebrated between
Marilyn dela Fuente and Ramon Marcos,[10] and the editorial page of the
Naujanews (February-March 1999 issue),[11] wherein it was stated that respondent
has two daughters with his wife, Marilyn dela Fuente.

Respondent, on the other hand, opted not to present any evidence and merely
submitted a memorandum expounding on his arguments that the testimonies of
complainants witnesses are mere hearsay, thus, said testimonies and their
documentary evidence have no probative weight.

On February 27, 2004, the Board of Governors of the IBP passed Resolution No.
XVI-2004-123, reading as follows:

RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED,

the Report and Recommendation of the Investigating Commissioner of the aboveentitled case, herein made part of this Resolution as Annex A; and, finding the
recommendation fully supported by the evidence on record and the applicable laws
and rules, and considering respondents violation of Rule 1.01 of the Code of
Professional Responsibility, Atty. Norberto M. Mendoza is hereby SUSPENDED
INDEFINITELY from the practice of law until he submits satisfactory proof that he is
no longer cohabiting with a woman who is not his wife and has abandoned such
immoral course of conduct.

Portions of the report and recommendation of the IBP Commission on Bar Discipline,
upon which the above-quoted Resolution was based, read as follows:

FINDINGS:

The evidence of complainants to support their charge of immorality consists in a) the

testimonies of Nelson Melgar and Romeo Laygo given by way of affidavits executed
under oath and affirmed before the Commission and b) their documentary evidence
consisting of their Exhibits A to H.

Respondent filed his comment through counsel and did not formally present or offer
any evidence. Respondent opted not to present his evidence anymore because
according to him there is none to rebut vis--vis the evidence presented by the private
complainants. Respondent instead submitted a memorandum through counsel to
argue his position. As can be seen from the comment and memorandum submitted,
respondents counsel argues that the complaint is politically motivated since
complainants are political rivals of respondent and that the birth certificates Exhibits
D and D-1 which were offered to show that respondent sired the children namely
Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela
Fuente Mendoza out of his cohabitation with Marilyn dela Fuente are inadmissible
because they were allegedly secured in violation of Administrative Order No. 1,
Series of 1993. The rest of the exhibits are either hearsay or self-serving according
to respondent.

The witnesses who are also two of the complainants herein, on the other hand,
categorically state in their affidavits [Exhibits A and B] particularly in paragraph 2 that
Respondent has been cohabiting openly and publicly with Marilyn de la Fuente,
representing themselves to be husband and wife. In paragraph 10 of said affidavits
the witnesses also categorically state that respondent has even represented to all
and sundry that Marilyn de la Fuente is his wife. These categorical statements made

under oath by complainants are not hearsay and remain un-rebutted. Respondent
chose not to rebut them.

Exhibit E, the Certificate of Candidacy executed by respondent shows that

respondent is married to one, Felicitas V. Valderia. As shown by Exhibit H, a
marriage certificate, Marilyn de la Fuente is married to one, Ramon G. Marcos. Duly
certified true copies of said exhibits have been presented by complainants.

With respect to Exhibits D and D-1, we believe that they are competent and relevant
evidence and admissible in this proceedings. The exclusionary rule which bars
admission of illegally obtained evidence applies more appropriately to evidence
obtained as a result of illegal searches and seizures. The instant case cannot be
analogous to an illegal search or seizure. A person who violates Rule 24 of
Administrative Order No. 1 Series of 1993 as cited by respondent risks the penalty of
imprisonment or payment of a fine but it does not make the document so issued
inadmissible as evidence specially in proceedings like the present case. Exhibits D
and D-1 which are duly certified birth certificates are therefore competent evidence
to show paternity of said children by respondent in the absence of any evidence to
the contrary.

By and large the evidence of complainants consisting of the testimonies of witnesses

Nelson Melgar and Romeo Laygo, and corroborated by the documentary exhibits will
show that indeed respondent has been cohabiting publicly with a certain Marilyn de
la Fuente who is not his wife and that out of said cohabitation respondent sired two
children. These facts we repeat have not been denied by respondent under oath
since he chose to just argue on the basis of the improper motivations and the
inadmissibility, hearsay and self-serving nature of the documents presented.
Complainants have presented evidence sufficient enough to convince us that indeed
respondent has been cohabiting publicly with a person who is not his wife. The
evidence taken together will support the fact that respondent is not of good moral
character. That respondent chose not to deny under oath the grave and serious
allegations made against him is to our mind his undoing and his silence has not
helped his position before the Commission. As between the documents and positive
statements of complainants, made under oath and the arguments and comments of
respondent submitted through his lawyers, which were not verified under oath by
respondent himself, we are inclined and so give weight to the evidence of
complainants. The direct and forthright testimonies and statements of Nelson Melgar
and Romeo Laygo that respondent was openly cohabiting with Marilyn de la Fuente
is not hearsay. The witnesses may have admitted that respondent Mendoza did not
tell them that a certain Marilyn de la Fuente was his paramour (for why would
respondent admit that to complainants) but the witnesses did state clearly in their
affidavits under oath that respondent was cohabiting with Marilyn de la Fuente who
is not respondents wife. Again their categorical statements taken together with the

other documents, are enough to convince us and conclude that respondent is not of
good moral character.

Members of the Bar have been repeatedly reminded that possession of good moral
character is a continuing condition for membership in the Bar in good standing. The
continued possession of good moral character is a requisite condition for remaining
in the practice of law [Mortel vs. Aspiras 100 Phil. 586 (1956); Cordova vs. Cordova
179 SCRA 680 (1989); People vs. Tuanda 181 SCRA 682 (1990)]. The moral
delinquency that affects the fitness of a member of the bar to continue as such
includes conduct that outrages the generally accepted moral standards of the
community, conduct for instance, which makes mockery of the inviolable social
institution of marriage [Mijares vs. Villaluz 274 SCRA 1 (1997)].

In the instant case respondent has disregarded and made a mockery of the
fundamental institution of marriage. Respondent in fact even so stated in Exhibit F
that he is separated from his wife. This fact and statement without any further
explanation from respondent only contributes to the blot in his moral character which
good moral character we repeat is a continuing condition for a member to remain in
good standing. Under Rule 1.01 of the Code of Professional Responsibility, a lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. Respondent
has violated this rule against engaging in immoral conduct.

We agree, as cited by the respondent, with the pronouncement made in Santos vs.
Dischoso, 84 SCRA 622 (1978) that courts should not be used by private persons
particularly disgruntled opponents to vent their rancor on members of the Bar
through unjust and unfounded accusations. However, in the instant case the charges
can hardly be considered as unfounded or unjust based on the evidence presented.
The evidence presented shows that respondent no longer possess (sic) that good
moral character necessary as a condition for him to remain a member of the Bar in
good standing. He is therefore not entitled to continue to engage in the practice of
law.

We find such report and recommendation of the IBP to be fully supported by the
pleadings and evidence on record, and, hence, approve and adopt the same.

The evidence presented by complainants reach that quantum of evidence required in

administrative proceedings which is only substantial evidence, or that amount of
relevant evidence that a reasonable mind might accept as adequate to support a
conviction.[12]

Witness Melgars testimony that respondent had been publicly introducing Marilyn
dela Fuente as his wife is corroborated by the contents of an article in the
Naujanews, introducing respondent as one of Naujans public servants, and stating
therein that respondent has been blessed with two beautiful children with his wife,
Marilyn dela Fuente.[13] It should be noted that said publication is under the control
of respondent, he being the Chairman of the Board thereof. Thus, it could be
reasonably concluded that if he contested the truth of the contents of subject article
in the Naujanews, or if he did not wish to publicly present Marilyn dela Fuente as his
wife, he could have easily ordered that the damning portions of said article to be
edited out.

With regard to respondents argument that the credibility of witnesses for the
complainants is tainted by the fact that they are motivated by revenge for
respondents filing of criminal cases against them, we opine that even if witnesses
Melgar and Laygo are so motivated, the credibility of their testimonies cannot be
discounted as they are fully supported and corroborated by documentary evidence
which speak for themselves. The birth certificates of Mara Khrisna Charmina dela
Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza born on June
16, 1988 and May 22, 1990, respectively, to Norberto M. Mendoza and Marilyn Dela
Fuente; and the Certification from the Office of the Local Civil Registrar of Bulacan
attesting to the existence in its records of an entry of a marriage between respondent
and one Felicitas Valderia celebrated on January 16, 1980, are public documents
and are prima facie evidence of the facts contained therein, as provided for under
Article 410[14] of the Civil Code of the Philippines.

Respondent mistakenly argues that the birth certificates of Mara Khrisna Charmina
dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza born on
June 16, 1988 and May 22, 1990, respectively, to Norberto M. Mendoza and Marilyn
Dela Fuente, are inadmissible in evidence for having been obtained in violation of
Rule 24, Administrative Order No. 1, series of 1993, which provides as follows:

Rule 24. Non-Disclosure of Birth Records.

(1) The records of a persons birth shall be kept strictly confidential and no
information relating thereto shall be issued except on the request of any of the
following:

a. the concerned person himself, or any person authorized by him;

b. the court or proper public official whenever absolutely necessary in administrative,

judicial or other official proceedings to determine the identity of the childs parents or
other circumstances surrounding his birth; and

c. in case of the persons death, the nearest of kin.

(2) Any person violating the prohibition shall suffer the penalty of imprisonment of at
least two months or a fine in an amount not exceeding five hundred pesos, or both in
the discretion of the court. (Article 7, P.D. 603)

Section 3, Rule 128 of the Revised Rules on Evidence provides that evidence is
admissible when it is relevant to the issue and is not excluded by the law or these
rules. There could be no dispute that the subject birth certificates are relevant to the
issue. The only question, therefore, is whether the law or the rules provide for the
inadmissibility of said birth certificates allegedly for having been obtained in violation
of Rule 24, Administrative Order No. 1, series of 1993.

Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for
sanctions against persons violating the rule on confidentiality of birth records, but
nowhere does it state that procurement of birth records in violation of said rule would
render said records inadmissible in evidence. On the other hand, the Revised Rules
of Evidence only provides for the exclusion of evidence if it is obtained as a result of
illegal searches and seizures. It should be emphasized, however, that said rule
against unreasonable searches and seizures is meant only to protect a person from
interference by the government or the state.[15] In People vs. Hipol,[16] we
explained that:

The Constitutional proscription enshrined in the Bill of Rights does not concern itself
with the relation between a private individual and another individual. It governs the
relationship between the individual and the State and its agents. The Bill of Rights
only tempers governmental power and protects the individual against any aggression
and unwarranted interference by any department of government and its agencies.
Accordingly, it cannot be extended to the acts complained of in this case. The
alleged warrantless search made by Roque, a co-employee of appellant at the
treasurers office, can hardly fall within the ambit of the constitutional proscription on
unwarranted searches and seizures.

Consequently, in this case where complainants, as private individuals, obtained the

subject birth records as evidence against respondent, the protection against
unreasonable searches and seizures does not apply.

Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised
Rules on Evidence do not provide for the exclusion from evidence of the birth
certificates in question, said public documents are, therefore, admissible and should
be properly taken into consideration in the resolution of this administrative case
against respondent.

Verily, the facts stated in the birth certificates of Mara Khrisna Charmina dela Fuente
Mendoza and Myrra Khrisna Normina dela Fuente Mendoza and respondents
Certificate of Candidacy dated March 9, 1995 wherein respondent himself declared
he was married to Felicitas Valderia, were never denied nor rebutted by respondent.
Hence, said public documents sufficiently prove that he fathered two children by
Marilyn dela Fuente despite the fact that he was still legally married to Felicitas
Valderia at that time.

In Bar Matter No. 1154,[17] good moral character was defined thus:

. . . good moral character is what a person really is, as distinguished from good
reputation or from the opinion generally entertained of him, the estimate in which he
is held by the public in the place where he is known. Moral character is not a
subjective term but one which corresponds to objective reality. The standard of
personal and professional integrity is not satisfied by such conduct as it merely
enables a person to escape the penalty of criminal law.

In Zaguirre vs. Castillo,[18] we reiterated the definition of immoral conduct, to wit:

. . . that conduct which is so willful, flagrant, or shameless as to show indifference to

the opinion of good and respectable members of the community. Furthermore, such
conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt
as to constitute a criminal act or so unprincipled as to be reprehensible to a high
degree or committed under such scandalous or revolting circumstances as to shock
the common sense of decency.

In the above-quoted case, we pointed out that a member of the Bar and officer of the
court is not only required to refrain from adulterous relationships or the keeping of
mistresses but must also behave himself as to avoid scandalizing the public by
creating the belief that he is flouting those moral standards and, thus, ruled that
siring a child with a woman other than his wife is a conduct way below the standards
of morality required of every lawyer.[19]

We must rule in the same wise in this case before us. The fact that respondent
continues to publicly and openly cohabit with a woman who is not his legal wife, thus,
siring children by her, shows his lack of good moral character. Respondent should
keep in mind that the requirement of good moral character is not only a condition
precedent to admission to the Philippine Bar but is also a continuing requirement to
maintain ones good standing in the legal profession.[20] In Aldovino vs. Pujalte, Jr.,
[21] we emphasized that:

This Court has been exacting in its demand for integrity and good moral character of
members of the Bar. They are expected at all times to uphold the integrity and dignity
of the legal profession and refrain from any act or omission which might lessen the
trust and confidence reposed by the public in the fidelity, honesty, and integrity of the
legal profession. Membership in the legal profession is a privilege. And whenever it is
made to appear that an attorney is no longer worthy of the trust and confidence of
the public, it becomes not only the right but also the duty of this Court, which made
him one of its officers and gave him the privilege of ministering within its Bar, to
withdraw the privilege.

WHEREFORE, respondent Atty. Norberto M. Mendoza is hereby found GUILTY of

immorality, in violation of Rule 1.01 of the Code of Professional Responsibility. He is
SUSPENDED INDEFINITELY from the practice of law until he submits satisfactory
proof that he has abandoned his immoral course of conduct.

Let a copy of this resolution be served personally on respondent at his last known
address and entered in his record as attorney. Let the IBP, the Bar Confidant, and
the Court Administrator be furnished also a copy of this resolution for their
information and guidance as well as for circularization to all courts in the country.

SO ORDERED.

EN BANC
[G.R. No. 123546. July 2, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOERAL GALLENO,

accused-appellant.
DECISION

PER CURIAM:

What could be more compelling than deciding a case which involves the sexual
abuse of a five-year old child? Equally important is the fact that the case before us
involves the highest penalty imposable by law. Being the guardian of the most
fundamental liberties of every citizen, the Court must pass upon every intricate detail
of the case at bar to determine whether or not accused-appellant committed the
gruesome act imputed against him.

Accused-appellant Joeral Galleno seeks reversal of the judgment of Branch 14 of the

Regional Trial Court of the 6th Judicial Region stationed in Roxas City, relying on the
defense of denial. Since the case involves the death penalty, the matter has been
elevated to this Court for automatic review.

Accused-appellant was charged in an Information docketed as Criminal Case No. C4629 for the crime of Statutory Rape, reading as follows:

The undersigned Assistant Provincial Prosecutor, upon prior authority and approval
of the Provincial Prosecutor, and the original complaint filed by the guardian of the
offended party, accuses Joeral Galleno of the crime of STATUTORY RAPE,
committed as follows:

That on or about 5:00 o'clock in the afternoon of August 16, 1994, at Brgy. Balighot,
Maayon, Capiz, and within the jurisdiction of this Court, the said accused did, then
and there, wilfully and feloniously, and without the permission of anyone, enter the
house of EVELYN OBLIGAR, a five-year old child, and succeeded in having carnal
knowledge of her thereby inflicting upon the latter a vaginal laceration which caused
continuous bleeding and her admission of five (5) days at the Roxas Memorial
Hospital.

CONTRARY TO LAW.

(p. 9, Rollo.)

Accused-appellant entered a plea of not guilty. Thereafter, trial on the merits ensued,
resulting in a judgment of conviction, the dispositive portion of which reads:

IN THE LIGHT OF THE FOREGOING ESTABLISHED FACTS, the Court finds

accused JOERAL GALLENO GUILTY beyond reasonable doubt under Section 11 of
Republic Act No. 7659 amending Article 335 of the Revised Penal Code.

Accordingly, accused JOERAL GALLENO is sentenced to suffer the supreme

penalty of DEATH and to indemnify the victim Evelyn Obligar Garganera the sum of
FIFTY THOUSAND (P50,000.00) PESOS.

Let this DECISION serve as clear signal warning the perverts, the misguided
elements of our society, especially their lackadaisical parents in their innate moral
obligation and responsibility in educating their children that in this corner of the world
the wheels of justice is not asleep and its unforgiving hands and watchful eyes are
as vigilant as ever.

(pp. 44-45, Rollo.)

In flashback, let us visualize the events.

Evelyn Obligar Garganera is the 5-year old daughter of Rosita Obligar Garganera
who had to leave the province to find work in Manila after separating from her
husband. Evelyn, together with her younger brother, 3-year old Eleazar, was thus left
under the care and custody of their uncle, Emetario Obligar, and aunt, Penicola
Obligar.

Less than kilometer away from their place of residence lived accused-appellant, 19year old Joeral Galleno, known well Evelyn's family due to his frequent visits at the
Obligars' abode as he was paying court to Emetario's eldest child, Gina.

On August 16, 1994, Emetario and Penicola left their residence to work at sugarcane
plantation owned by Magdalena Dasibar. Their three children had all ealier left for
school. The only persons left in the house were niece Evelyn and nephew Eleazar.

At around 4 o'clock in the afternoon, accused-appellant was on his way to his Lola
Esing to have his pants tailored. Since it was drizzling, he passed by the Obligars'
residence and found the two children left to themselves. The prosecution and the
defense presented conflicting versions on what occurred at said residence. However,

the result is undisputed. Evelyn sustained a laceration in her vagina which result in
profuse, and to our mind, life-threatening bleeding due to her tender age.

The prosecution's version of what took place at the Obligars' residence is based on
the testimony of Evelyn herself, her uncle Emetario, and the doctors who examined
and treated her. The Solicitor General summarized the same in this wise:

2. Appellant took advantage of the situation by sexually molesting Evelyn. After

lowering her shorts, he made Evelyn sit on his lap, facing him. As Evelyn was only
five-years old while appellant was fully-grown man, the penetration caused the
child's vagina to bleed, making her cry in pain. (pp.10-11 and 18-25, tsn, Garganera,
January 10, 1995).

3. Appellant tried to stop the bleeding by applying, with his finger, the sap of "madre
de cacao" leaves on her vagina. Unsuccessful in his attempt, he left Evelyn
grimacing and crying in pain. (pp. 14-15, tsn Garganera, January 10, 1995; pp. 6-7,
tsn, Obligar, February 7, 1995).

4. Shortly, Emeterio and Penicola came home from work. The spouses were laborers
in a sugarcane plantation about two kilometers away from their house. They arrived
to find Evelyn crying. Emetario noticed that there was blood in Evelyn's dress and
she was pressing a rug against her genital organ. (pp. 11-12, tsn, Obligar, January
10, 1995; pp. 8-9, tsn, Obligar, February 7, 1995).

5. Emeterio asked Evelyn what happened but she did not answer. Emetario spread
the child's legs and saw that her vagina had been lacerated and blood was oozing
therefrom. He summoned a "quack" doctor who applied herbal medicine on
Evelyns's vagina but did not stop the bleeding. (pp.12-14, tsn, Obligar, January 12,
1995).

6. The following day, August 17, 1994, Emeterio brought Evelyn to the clinic of Dr.
Alfonso D. Orosco, the Rural Health Physician of Maayon, Capiz. Dr. Orosco
reported, upon examining Evelyn, that he found (1) clotted blood, about 1 centimeter
in diameter, in her vaginal opening, and (2) a vaginal laceration, measuring 1.0
centimeter x o.5 centimeter, between the 3:00 o'clock and 6:00 o'clock position. He
also affirmed that Evelyn's vaginal laceration could have been by blunt instrument
inserted into the vigina, that it was possible that a human penis in full erection had
been forcibly inserted into her vagina, and that a human penis in full errection is
considered a blunt intrument (pp. 4-7, tsn, Orosco, November 28, 1994; p. 14, tsn,
Obligar, January 12, 1995).

7. While he was examining Evelyn, Dr. Orosco asked Evelyn what caused her
injuries. The child told him that a penis was inserted into her vagina and that its
insertion caused her pain. (pp. 9-10, 14 and 18-19, tsn, Orosco, November 28,
1994).

8. Since his clinic lacked the proper medical facilities needed to treat Evelyn, Dr.
Orosco, after dressing the victim's wound which continued to bleed, advised
Emeterio and Penicola to bring the child to the hospital for further medical treatment.
(p.8, tsn, Orosco, November 28, 1994; pp. 14-16, tsn, Obligar, January 12, 1995)

9. On August 18, 1994, Emeterio brought Evelyn to the Roxas Memorial General
Hospital were she was examined by resident physician Dr. Ma. Lourdes Laada. Dr.
Laada, upon examining Evelyn found that "there was a 3 cm. lacerated wound at the
left anterior one-third of the vagina" and "the pressence of about 10-15cc of blood" at
the vaginal vault. Dr. Laada recommended that evelyn be admitted for confinement
in the hospital because the wound in her vagina, which was bleeding, had to be
repaired. Due to financial constraints, Evelyn was not admitted into the Hospital that
day and went home with Emeterio to Barangay Balighot. (pp.6-8,tsn Laada, January
4, 1995; pp. 15-16, ts, Obligar, January 12, 1995).

10. Upon her examination of the victim on August 18, 1994, Dr. Laada opined that "a
lot of things will cause the lacerated wound in the vagina." (p. 9, tsn, Laada, January
4, 1995). According to Dr. Laada, the vaginal laceration may be caused (1) by
trauma to the area, when a girl falls and hits her genital area on a blunt instrument;
(2) by medical instrumentation, like the insertion of a speculum into the vagina; or (3)
by the insertion of blunt foreign object into the vagina, like a finger or a penis of a
man in full erection. (pp. 8-9, tsn, Laada, January 4, 1995).

11. On August 19, 1994, Emetario brought Evelyn back to the Roxas Memorial
General Hospital where she was attended to by Dr. Machael Toledo, the resident
physician on duty, who found blood clots and minimal bleeding in the genital area.
Dr. Toledo " pack(ed) the area to prevent further bleeding and (he) admitted the
patient for possible repair of the laceration and blood transfusion because she has
anaemia 2ndary to bleeding." Two hundred fifty five (255) cc of blood was transfused
to Evelyn and she was given antibiotics to prevent infection. However, she was no
longer operated on because the laceration had healed. Five days later, Evelyn was
discharged and sent home with medication. (pp. 11-13, 17 and 26, tsn, Toledo,
December 2, 1994).

12. Upon his examination of Evelyn on August 19, 1994, Dr. Toledo disclosed that
the child suffered severe compound laceration which could have been caused by a
normal and fully developed penis of a man in a state of erection that was forcibly
inserted into her vagina and that the insertion caused her vagina to hemorrhage
which thus required the transfusion of 255 cc of blood (pp. 14-16 and 26, tsn, Toledo,
December 2, 1994.

13. Prior to her confinement in the Roxas Memorial General Hospital on August 19,
Emetario and Penicola Obligar brought Evelyn to the Maayon Police Station on
August 18, 1994, where they reported the crime to SPO1 Paulino Durana. That
same day, appellant was apprehended in a house near the Balighot Elementary
School and brought to the police station (pp17-19, tsn, Obligar, January 12, 1995;
pp. 5-9, 16-17 and 21, tsn, Durana, January 16, 1995).

(pp. 164-171, Rollo.)

Denial is presented as the defenses. Accused-appellant testified that when he

arrived at the Obligar residence that afternoon of August 16, 1994, he found the two
children, Evelyn and Eleazar (also referred to in the record as Pilfo). While seated at
the balcony, accused-appellant was approached by Evelyn, who knew him (tsn, April
5, 1995, pp.5 and 8). He cajoled her by throwing her up and down, his right hand
holding the child and his left hand covering her vagina (Ibid., p. 21). Upon lifting up
the child the first time, his left ring finger was accidentally inserted into the vagina of
child since his fingernail was long and the child was not wearing any underwear.
Consequently, Evelyn began to cry because her vagina started to bleed. Upon
seeing this, he immediately went down the house and got some bark or leaves of
madre de cacao tree and applied the sap on the child's wound. The bleeding ceased
and Evelyn stopped crying. Thereafter, accused-appellant went home. (Ibid., pp.910).

Accused-appellant further testified that on August 18, 1994, at around 9 o'clock in the
morning, he was arrested. On the same day, Emeterio Obligar asked him to admit
the offense so that he could be released the next day, but accused-appellant did not
do so (Ibid., pp. 26-27).

Accused-appellant's father Raul Galleno was called to the witness stand and he
testified that he learned about the arrest of his son on August 18, 1994 (tsn, May 12,
1995, p.6). The following day, he went to the house of the Obligars to ask Evelyn
what happened to her. The child allegedly answered that a finger was accidentally
inserted into her genital organ, but that Penicola who was then present, butted into

the conversation and told Raul Galleno that the penis of accused-appellant was
likewise inserted (Ibid., p.8).

The trial court did not accord credence to the version of the defense, pointing out in
its decision that accused-appellant's defense of denial hinged on the argument that
the statement of Evelyn as to how she sustained her vaginal laceration was mere
concoction and a plain distortion of facts by her guardian. The trial court called this a
"desperate attempt of the defense to becloud the charge of rape."

The trial court believed and accepted the testimony of Police Officer Paulino Durana
that during the interrogation of Evelyn which he conducted at the PNP Station of
Maayon, Emeterio and Penicola Obligar did not interfere with the responses of
Evelyn, although, true enough, it was difficult to obtain answer from her because of
her tender age.

The trial deemed the following circumstances significant in finding accused-appellant

culpable:

1. Accused-appellant failed to explain how his left finger accidentally came in contact
with Evelyn's vagina, while in the process of throwing her up and down. Besides, the
prosecution was able to establish that Evelyn was wearing shorts. And assuming for
the sake of argument that Evelyn was not wearing any pants or underwear at that
time, accused-appellant failed to explain how his finger could possibly penetrate the
victim's vagina by about one-fourth of an inch (p. 23, tsn, April 5, 1995).

2. After satisfying his lust, accused-appellant left the victim with her 3-year old
brother, in pain and bleeding.

3. Evelyn's statement given to Dr. Ma. Lourdes Laada, the physician who examined
her at the Roxas Memorial General Hospital, that it was accused-appellant's finger
which injured her, was a consequence of the victim's confusion.

4. The formal offer of settlement made by accused-appellant's father Raul Galleno

militates against the cause of the defense.

Hence, the instant appeal and review, with accused-appellant assigning the following
errors:

THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
TESTIMONIES OF THE MEDICAL DOCTORS WHEN THE SAME FAILED TO
CONCLUSIVELY AND SUFFICIENTLY ESTABLISH THE CAUSE OF THE
LACERATION IN THE OFFENDED PARTY'S VAGINA

THE TRIAL COURT SHOWED MANIFEST BIAS THEREBY DEPRIVING THE

ACCUSED-APPELLANT TO A FAIR AND IMPARTIAL TRIAL AND DISREGARDED
THE RIGHT OF THE ACCUSED TO BE PRESUMED INNOCENT, WHEN HE
ACTIVELY PARTICIPATED IN THE CROSS EXAMINATIUON OF THE ACCUSED

THE TRIAL COURT ERRED IN NOT DECLARING THE WARRANTLESS ARREST

OF THE ACCUSED AS UNJUSTIFIED

THE TRIAL COURT ERRED IN INTERPRETING THE FINANCIAL ASSISTANCE

EXTENDED BY THE PARENTS OF THE ACCUSED TO THE OFFENDED PARTY
AS AN IMPLIED ADMISSION OF GUILT

(pp. 81-82, Rollo.)

One can not escape the feeling of utmost compassion for any rape victim, and more
especially so for a 5-year old statutory rape victim. However, in our consideration of
the matter before us, we set aside emotion and observe impartiality and coldness in
drawing conclusions.

Under the first assigned error, accused-appellant contends that the testimony of the
three expert witnesses presented by the prosecution, namely, Dr. Alfonso Orosco,
Dr. Ma. Lourdes Laada, and Dr. Machael Toledo, which convinced the trial court that
rape was committed against the offended party, is not impeccable considering that
they found that there was no presence of spermatozoa, and that they were not sure
as to what caused the laceration in the victim's vagina; that Dr. Laada herself
testified that Evelyn told her that it was the finger of accused-appellant which caused
the laceration. In addition, accused-appellant banks on the victim's testimony on
cross-examination, that it was the finger of accused-appellant which caused the
laceration; and that she even disclosed this to accused-appellant's father, Raul
Galleno.

We are not persuaded.

As a general rule, witnesses must state facts and not draw conclusions or give
opinions. It is the court's duty to draw conclusions from the evidence and form
opinions upon the facts proved (Francisco, Pleadings and Trial Practice, Vol. I. 1989
ed., pp. 889-890). However, conclusions and opinions of witnesses are received in
many cases, and are not confined to expert testimony, based on the principle that
either because of the special skill or expert knowledge of the witness, or because of
the nature of the subject matter under observation, of for other reasons, the
testimony will aid the court in reaching a judgment. (Ibid., p.886).

In the case at bar, the trial court arrived at its conclusions not only with the aid of the
expert testimony of doctors who gave their opinions as to the possible cause of the
victim's laceration, but also the testimony of the other prosecution witness, especially
the victim herself. In other words, the trial court did not rely solely on the testimony of
the expert witnesses. Such expert testimony merely aided the trial court in the
exercise of its judgment on the facts. Hence, the fact that the experts enumerated
various possible causes of the victim's laceration does not mean the trial court's
interference is wrong.

The absence of spermatozoa in the victim's vagina does not negate the conclusion
that it was his penis which was inserted in the victim's vagina (People vs. Caada,
253 SCRA 277 [1996]). In rape, the important consideration is not the emission of
semen but the penetration of the female genitalia by the male organ (People vs.
Dadles, 254 SCRA 696 [1996]). Verily, it is entirely probable that climax on the part of
accused-appellant was not reached due to the cries of pain of the victim and the
profuse bleeding of her vagina.

As regards the inconsistencies in Evelyn's declaration, particularly as to what really

caused the laceration, we are convinced that the child, due to her tender age, was
just confused. This is best exemplified by the testimony of Dr. Lourdes Laada on
cross-examination, as follows:

Q Now, Doctor, at the time that you conducted your examination, you were aware
that this child was only five years old?

A Yes, sir.

Q And at that tender age, Doctor, is it possible that the child may not know the
difference of distinction between fingers of the hands and a finger protruding
between the legs of a person?

A Yes, sir, it is possible.

Q So that is possible, Doctor, that the child may have referred to a finger that is
between the legs?

WITNESS

You mean the penis?

PROSECUTOR OBIENDA

Yes.

WITNESS

It is possible.

(TSN, p.27, March 30, 1995.)

Of vital consideration and importance too is the unreliability, if not the outright
incredulity of the version of accused-appellant which is not in accord with ordinary
human experience. We thus can not help expressing sentiments similar of those of
the trial court when is said:

The contention of accused Joeral Galleno raises serious doubts to his credibility. He
failed to explain how his ring finger accidentally came in contact with the genitalia of
Evelyn, while it was established by the prosecution that at that time Evelyn was
wearing shorts. Even assuming "ex gratia argumente" that Evelyn was pantyless,
how could it be possible for his finger to penetrate to the vagina for about one-fourth
of an inch when she was in shorts. The Supreme Court, in People vs. Fulgencio
Baquiran, 20 SCRA 451, (held that) evidence, to be believed must not only proceed

from the mouth of a credible witness, but it must be credible in itself. Human
perception can be warped by the impact of events and testimony colored by the
unconscious workings of the mind. No better test has yet been found to measure the
value of a witness' testimony than its conformity to the knowledge and common
experience of mankind.

(pp.42-43, Rollo.)

Section 4, Rule 128 of the Rules of Court provides that "(e)vidence must have such a
relation to the fact in issue as to induce belief in its existence or nor-existence." This
simply means that relevancy is determinable by the rules of logic and human
experience (Regalado, Remedial Law Compendium, Vol. II, 1988 ed., p.434). There
is no precise and universal test of relevancy provided by law. However, the
determination of whether particular evidence is relevant rests largely at the discretion
of the court, which must be exercised according to the teachings of logic and
everyday experience (Sibal and Salazar, Compendium on Evidence, 1995 ed., citing
Alfred Asmore Pope Foundation vs. New York, 138 A. 444, 106 Conn. 432).

There is no explanation how the left ring finger (allegedly with long fingernail) of
accused-appellant penetrated the victim's vagina by a depth of one fourth of an inch.
Admittedly, accused-appellant's right hand held the child while his left hand
supposedly held her in the vagina area. Why would the hold the child's vagina if his
only intention was to frolic and kid around with her?

Accused-appellant likewise failed to explain why after injuring Evelyn (and after
applying to the wound the sap of madre de cacao), he left her in the company of an
even younger child, the victim's 3-year old brother. He did not even make an effort to
immediately inform Emeterio and Penicola of what happened. Instead, he went
home and kept mum about the incident.

Accused-appellant also said that after the alleged accident, before going home, he
removed Eleazar's shorts and put them on Evelyn. Assuming this to be true, this only
shows that the child was still bleeding. Why then would he leave the child
considering that there was no adult to attend her? Significantly, his act of
immediately leaving the place, when considered in the light of the other evidence,
reflects his fear because of what he had done. The proverb "the wicked fleeth even
when no man pursueth, but the innocent are as bold as a lion" was correctly adopted
by the trial court in drawing its conclusions.

All of these loopholes are palpable and manifest, and clearly work against the
credibility of accused-appellant's story on which his defense is based.

Besides, the trial court's conclusions finds supports in the testimony of accusedappellant's own witness, Dr. Lourdes Laada (who was earlier presented during the
trial as a prosecution witness), who testified that a laceration is caused by a blunt
instrument and that a fingernail is not a blunt but a sharp instrument (TSN, pp.32-33,
March 30, 1995).

As regards accused-appellant's argument that the victim's testimony is just a

concocted story of what really happened, we apply the rule that the revelation of an
innocent child whose chastity was abused deserves full credence (People vs. Cagto,
253 SCRA 455 [1996]). We likewise consider the fact that her uncle and aunt,
virtually her foster parents, themselves support her story of rape. It is unnatural for a
parent to use her offspring as an engine of malice, especially if it will subject a
daughter to embarrassment and even stigma (People vs. Dones, supra.)

Accused-appellant's father, Raul Galleno, tried to destroy the credibility of Evelyn

when he took the stand and testified that the child disclosed to him that is was
accused-appellant's finger which was inserted into her vagina. Nevertheless, this
testimony cannot prevail over the testimony of the victim, to wit:

FISCAL OBIENDA

Q You said that Joeral Galleno the accused in this case hurt you while you were in
the farm, can you tell in the farm, can you tell the Honorable Court which part of your
body was hurt by Joeral Galleno?

A (Witness pointing to her vagina) Here.

Q When you said you were hurt did you bleed?

WITNESS

A Yes, Sir.

FISCAL OBIENDA

Q What was used by Joeral Galleno in hurting your sexual organ

A His (Pitoy). Penis.

COURT

Make the translation of "Pitoy" into Penis. Do you agree that the translation of Pitoy
is Penis in English?

ATTY. DISTURA

Agreeable, Your Honor.

FISCAL OBIENDA

Q What did Joeral Galleno do with his Pitoy (Penis) to your vagina (Putay)?

A It was inserted (ginsulod) to my vagina (Putay).

Q When Joeral Galleno inserted his penis (Pitoy) to your vagina (Putay), that was
the reason why it bleed?

A Yes, sir.

Q And it was very painful?

A Yes, Sir.

Q And you cried because of pain?

A Yes, Sir.

FISCAL OBIENDA

Q And you were brought to the Doctor and admitted to the hospital because of that?

A Yes, Sir.

(TSN, pp.10-12, January 10, 1995)

Under the second assigned error, accused-appellant alleges that he was deprived of
a fair and impartial trial since the trial court showed bias by discounting his
testimony, and by actually participating in the cross-examination of accusedappellant.

We recently pronounced in People vs. Malabago (265 SCRA 198 [1996]) that a
judge may not properly intervene in the presentation of evidence to expedite and
prevent unnecessary waste of time and clarify obscure and incomplete details after
the witness was given direct testimony cannot be assailed as a specie of bias.

Of course, we are aware of Rule 3.06 of the Code of Judicial Conduct provides:

While a judge may, to promote justice, prevent waste of time or clear up some
obscurity, properly intervene in the presentation of evidence during the trial, it should
always be borne in mind that undue interference may prevent the proper
presentation of the cause or the ascertainment of truth.

And there is undoubtedly undue interference if the judge extensively propounds

question to the witness which will have the effect of or will tend to build or bolster the
case for one of the parties. We have, however, carefully examined the record and
transcript of stenographic notes of the instant case. The trial court judge, the
Honorable Salvador S. Gubaton, did not to build the case for one of the parties. For
instance, accused-appellant, in his brief, refers to the questions propounded by the
trial court on his of cajoling the child. A perusal of the line of questioning referred to
hardly shows bias on the part of the trial court, but pure clarification.

In the third assigned error, accused-appellant questions the validity of his arrest.

It is settled jurisprudence that any objection involving a warrant of arrest or

procedure in the acquisition by the court of jurisdiction over the person of the
accused must be made before he enters his plea, otherwise the objection is deemed
waived (People vs. Lopez, Jr., 245 SCRA 95[1995]). An accused should question the
validity of his arrest before he enters his plea in the trial court (Filoteo, Jr. vs.
Sandiganbayan, 263 SCRA 222 [1996]). He is estopped from questioning any defect
in the manner of his arrest if he fails to move for the quashing of the information
before the trial court (People vs. Compil, 244 SCRA 135 [1995]) or if he voluntarily
submits himself to the jurisdiction of the court by entering a plea and by participating
in the trial (People vs. De Guzman, 22 4 SCRA 93 [1993); People vs. Lopez, Jr.,
supra).

It does not appear in the record that accused-appellants raised this matter before
entering his plea of "not guilty" to the charge (pp. 63 & 67, Record). Further, this
issue was not even touched during the trial.

Lastly, accused-appellant, in his fourth assigned error, argues that the trial court
misinterpreted the financial assistance extended by his parents as an attempt to
settle the case. Accused-appellant even banks on the alleged close relationship
between Emeterio Obligar and Raul Galleno as compadres, and the fact that
Emeterio borrowed forty pesos from Raul Galleno, despite the fact that Emeterio
already knew that accused-appellant caused the laceration in Evelyn's vagina.

Accused-appellant also draws attention to two incidents involving alleged financial

assistance extended by Raul Galleno to the spouses Emeterio and Penicola Obligar.
First, Emeterio Obligar, whom Raul Galleno said is his compadre, borrowed P40.00
for fare going Roxas City where Evelyn was confined. Decond, on August 20, 1994,
Raul Galleno and his wife and one of the brothers of Penicola Obligar went to Roxas
Memorial General Hospital. There he gave P400.00 financial assistance to Penicola
Obligar. Raul Galleno later admitted that the sum of P440.00 was returned to him by
the spouses. Accused-appellant insists that these offers of financial assistance were
not attempts at an amicable settlement but were prompted out of a sincere desire on
the part of Raul Galleno to help the offended party.

We find no merit in the above-stated argument. It may be inferred that Raul Galleno
wanted to settle the case by offering an amount to the spouses Obligar, to wit:

Q Now according to you, you were paid in the amount of Four Hundred Pesos
(P400.00) then you expected your Comareng Pening as financial assistance to
Evelyn Garganera, isn't it?

A Yes, Your Honor.

Q How long after August 19, 1994, that your Comareng Pening returned to you the
amount of Four Hundred Pesos (P400.00)?

A A week after when Evelyn had already checked up from the hospital.

Q It was given by you or as voluntary financial assistance, why did you receive the
amount or the payment returned to that amount of Four Hundred Pesos (P400.00)?

A That was telling me that they refused already for the settlement of the case.

Q And that is why they returned the amount of Four Hundred Pesos (P400.00).

(tsn, pp. 29-30, May 12, 1995.)

From the above-stated clarificatory questions by the trial court, it may gleaned that
Raul Galleno no longer had any interest in aiding the victim when he found that the
Obligar spouses would still pursue the case against his son, accused-appellant, and
hence he found that his offer for settlement was unavailing. Hence, on this point we
likewise agree with the trial court when it took the financial assistance to mean an act
of settling the case. This does manifest a father's attempt to rescue his guilty son
sure incarceration.

The nightmare that was forced into the tender mind of 5-year old Evelyn Obligar
Garganera may fortunately haunt her all her life. Justice may not be able to save
from this nightmare but it can calm and assure her that her tormentor and abuser
shall undoubtedly face retribution.

Four members of the Court - although maintaining their adherence to the separate
opinions expressed in People vs. Echegaray (G.R. No. 117472, February 7, 1997)
that Republic Act No. 7659, insofar as it prescribes the death penalty is

unconstitutional - nevertheless submit to the ruling of the Court, by a majority vote,

that the law is constitutional and that the death penalty should accordingly be
imposed.

WHEREFORE, finding the conviction of accused-appellant justified by the evidence

on record, the assailed decision is hereby AFFIRMED in toto.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the
Revised Penal Code, upon finality of this decision, let the record of the case be
forthwith forwarded to the Office of the President for possible exercise of the
pardoning power.

SO ORDERED.

THIRD DIVISION
[G.R. No. 153911. December 10, 2004]

MELANIO MALLARI y LIBERATO, petitioner, vs. PEOPLE OF THE PHILIPPINES,

respondent.
DECISION
PANGANIBAN, J.:

To warrant conviction based on circumstantial evidence, the totality of the

circumstances must eliminate beyond reasonable doubt the possibility of innocence;
otherwise, the accused must be acquitted.

The Case

Before us is a Petition for Review[1] on Certiorari under Rule 45 in relation to Rule

125 of the Rules of Court, seeking to reverse, set aside, nullify and/or modify the
December 18, 2001 Decision[2] of the Court of Appeals (CA) in CA-GR CR No.
18051. The dispositive portion of that Decision states:

WHEREFORE, foregoing premises considered, the decision appealed from is

MODIFIED. Accused-appellants Melanio Mallari and Zaldy Bontia, as well as
Leonardo Bontia are found guilty of Attempted Murder punishable under Article 248
in relation to Article 6 of the Revised Penal Code for which they are SENTENCED to
four (4) years and two (2) months of prision correccional, as minimum, to ten (10)
years of prision mayor, as maximum. The award with respect to damages and costs
stand.[3]

In its May 14, 2002 Resolution,[4] the CA denied petitioners Motion for
Reconsideration of the assailed Decision.

The Facts

Version of the Prosecution

The factual background of the case, as related by the Court of Appeals[5] based on
prosecution evidence, is as follows:

The records show that private complainant Erlinda Boyose was a teacher at the
Bustamante High School, Davao City from 1977 up to 1989. At the start, she had a
good working relationship with the school principal, appellant Melanio Mallari.
However, their relationship turned sour when she began to question appellant Mallari
on alleged unaccounted school funds.

On June 29, 1989 at about 9:00 oclock in the morning, while Boyose was at the
Guidance Office, a man approached her and asked if he can still enroll his nephew.
As enrollment was already closed, she advised the man to see Mallari, who is the
school principal.

Thereafter, Boyose went to her classroom. About twenty minutes later, the man
approached her again. Meeting him by the door, she asked the man if he was able to
talk to Mallari. The man answered that the principal was not in his office. So, she
advised the man to just return the following day.

In the afternoon, Boyose rode on a jeepney bound for Sasa, Davao. She observed
that the man who talked to her in the morning was also in the same jeepney. She
then inquired from him if he was able to talk to the principal regarding the enrollment
of his nephew but the man just ignored her.

While they were near Km. 13, Panacan, Davao City, the said man drew and pointed
a gun at Boyoses temple. Boyose heard two successive clicking sounds of the gun
but it did not fire. She heard the man utter in the Cebuano dialect, Unsa man ni, dili
man ni moboto, meaning Whats this, this will not fire. She then grabbed the gun and
grappled for its possession. But she failed. Eventually, she was able to get out of the
jeepney and ran away but the man followed her and shot her repeatedly.

Boyose was hit in the lower mouth and at her back. She shouted for help. A man
helped her and brought her to the San Pedro Hospital where she was treated and
confined.

Policeman Remo Pagal of the Sasa Police Station was one of those who went to the
crime scene on June 29, 1989 to investigate. But nothing came out of it. He was only
able to get the description of the gunman the following day when he interviewed the
victim at the hospital.

The police investigators were able to get the lead when a certain Andy Magdadaro
went to the Sasa Police Station and told Policeman Pagal that he knew something
about the shooting of Erlinda Boyose. He told the said police investigator that he was
asked by one Edwin Amparado to kill Boyose but the plan was not carried out. He
pointed to accused-appellant Zaldy Bontia as the man who hired Amparado to look
for a triggerman.

Thus, Edwin Amparado was picked up by the police. While in the police station
where he was brought, he told the police investigators that in one occasion, he went
to the house of appellant Mallari and the latter asked him to kill Boyose who used to
be his neighbor at Doa Pilar Village but the same did not push thru. He later offered
this job to Andy Magdadaro who was his neighbor in Agdao. They talked about the
plan to kill Boyose and Magdadaro was only waiting for his go-signal. At the police
station, he executed an affidavit regarding the offer of Mallari to kill Boyose.

On August 1, 1989, at around 3:00 p.m., Pagal together with other policemen from
the Sasa Police Station arrested appellant Zaldy Bontia near the house of accusedappellant Mallari. Zaldy allegedly admitted participation in the incident and implicated
his brother Leonardo Bontia as the gunman. The police lost no time in going to
Asuncion, Davao del Norte to arrest Leonardo Bontia.

Leonardo Bontia was brought to the Sasa Police Station at about 2:00 p.m. of August
2, 1989. Later that day, a police line-up was conducted and Boyose identified
accused Leonardo Bontia as the gunman. She likewise identified accused-appellant
Zaldy Bontia to be the constant companion and protg of accused-appellant Mallari.

When the custodial investigation was about to start, the Bontia brothers were
apprised by police investigators Anastacio Naive of their rights under the
Constitution. When asked by Naive if they had a lawyer to assist them, they told him
that they had none. Naive then stopped the investigation and called the PAO office
for assistance. At around 5:00 p.m. on that day, Atty. Jonathan Jocum,**** a PAO
lawyer arrived. Pfc. Naive then asked the Bontia brothers if they wanted to be
represented by Atty. Jocum and they said they are agreeable.

During the custodial investigation, Leonardo Bontia admitted to be the gunman. He

pointed to appellant Mallari as the one who hired him to kill Boyose. On the [other]
hand, Zaldy Bontia admitted to have been hired by Mallari to look for a gunman to kill
Erlinda Boyose and that he was the one who recommended to Mallari his brother
Leonardo Bontia to do the job for a fee.

Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged by
Asst. City Prosecutor Jose Emmanuel M. Castillo of the crime of Frustrated Murder,
in an Information alleging

That on or about June 29, 1989, in the City of Davao, Philippines and within the
jurisdiction of this Honorable Court, the above-mentioned accused Melanio Mallari,
directly interested in the death of Erlinda P. Boyose, conspiring, confederating and
helping one another, accused Melanio Mallari induced his co-accused Leonardo
Bontia and Zaldy Bontia, the latter convincing his brother Leonardo Bontia of the
plan to kill said Erlinda P. Boyose by giving price and/or offering a reward to kill said
Erlinda P. Boyose and which price and/or offer was accepted by said Leonardo
Bontia and Zaldy Bontia; that in pursuance of said conspiracy said accused
Leonardo Bontia, with treachery and evident premeditation, willfully, unlawfully and
feloniously assaulted, and shot with a caliber 22 Magnum homemade revolver and
hit said Erlinda Boyose, thereby inflicting upon her the following, to wit:

AVULSION. LOWER LIP AND NAPE SECONDARY TO GUNSHOT WOUND WITH

DISPLACEMENT OF TEETH ON MANDIBLE; FOREIGN BODY, G-4-5 LEVEL which
injuries would ordinarily cause the death of the said Erlinda Boyose, thus performing
all the acts of execution which should have produced the crime of murder as a
consequence, but nevertheless did not produce it by reason of causes independent
of their will, that is the timely shout and cry for help of Erlinda Boyose that as a result

of which immediate assistance was had from a member of a coast guard and by the
timely and able medical assistance rendered to the said Erlinda Boyose which
prevented her death.[6]

During their arraignment,[7] all the accused pleaded not guilty. Thereafter, herein
Petitioner Mallari moved for a separate trial, which was granted by the trial court in
its Order dated September 18, 1990.

In his separate trial, Mallari did not present evidence to establish his innocence or to
refute the prosecutions evidence against him. Instead, he moved for dismissal by
way of demurrer to evidence which, however, the trial court denied in its Order dated
July 2, 1992. Thereafter, although given ample time and granted numerous
postponements over about a year, petitioner failed to present any witness in his
favor.

Even in its Memorandum, the defense did not present its version of facts.

Ruling of the Trial Court

After evaluating the evidence on record, the RTC concluded that there was
conspiracy among the three accused, although Leonardo Bontia was alone when he
shot Erlinda Boyose. It held herein Petitioner Mallari liable as principal by
inducement, Leonardo Bontia as principal by direct participation, and Zaldy Bontia as
principal by indispensable cooperation, based on the following circumstances
supposedly establishing their complicity:

1. Accused Mallari has an axe to grind against victim Boyose therefore, has an
interest of silencing her because of her persistent inquiries regarding the use or
misuse of school funds under the custody of Mallari as principal of Bustamante
Barangay High School. This is the motive for the shooting of Erlinda Boyose.

2. The contact man Zaldy Bontia is beholden to Melanio Mallari being a protg and a
man Friday of the latter who exercised moral ascendancy considering that he
promised Zaldy a steady government job and have been extending cash advances in
the form of allowances to tide him over till such time that he can receive a regular
salary from the government.

3. Leonardo Bontia is the older brother of Zaldy who at that time the job was offered
to him by Mallari to kill Boyose was in dire need of money having eight (8) children
and wife to support.

4. Leonardo Bontia when confronted by the victim at the police station readily
admitted he shot Erlinda Boyose because of the money he hopes to receive from
Mallari afterwards.

5. Zaldy Bontia gave P900.00 to Leonardo Bontia which came from Mallari so
Leonardo can hide.

6. That Zaldy Bontia likewise confessed of his participation of the crime after being
confronted by the victim at the police station.

7. Both Leonardo and Zaldy Bontia voluntarily executed an extra-judicial statement

regarding their complicity to the crime.

8. A letter marked exh. I addressed to the victim Erlinda Boyose which clearly came
from Leonardo Bontia because it contained narration of events anent the crime and
full of explicit details which only the author of the shooting has personal knowledge
of and asking for forgiveness.[8]

Thus, the RTC disposed as follows:

WHEREFORE, the prosecution having established the guilt of accused Melanio

Mallari as principal by inducement, Leonardo Bontia as principal by direct
participation and Zaldy Bontia as principal by indispensable cooperation beyond
reasonable doubt, the court finds the aforesaid three accused guilty of the crime of
frustrated murder as charged in the information. They are hereby sentenced to suffer
the indeterminate penalty of 4 years 2 months and 20 days of prision correccional as
the minimum to 11 years 6 months and 21 days of prision mayor as the maximum
and to solidarily indemnify the victim Erlinda Boyose in the amount of P15,000.00
representing loss of income, P8,000.00 representing hospital and medical expenses,
P20,000.00 as attorneys fees and P50,000.00 as moral damages and to pay the
cost.[9]

Ruling of the Court of Appeals

On appeal, the CA essentially upheld the findings and conclusions of the trial court,
except as to the stage of the crime committed.

The appellate court was convinced that petitioner was the one who had induced the
Bontia brothers to kill Boyose, despite the absence of direct evidence showing his
participation in the crime charged. It ratiocinated that the accused could be convicted
on the basis of circumstantial evidence. There was more than one circumstance, the
facts from which the inferences were derived had been proven, and the combination
of all the circumstances was such as to produce a conviction beyond reasonable
doubt.

It further held that, in the separately held trial of petitioner, there was no need for the
prosecution to offer the evidence adduced during the trial of the Bontia brother[s,]
considering that only one criminal Complaint had been filed against all the accused.
Moreover, the issue could not be raised for the first time on appeal.

Hence, as stated earlier, the CA modified the trial courts disposition and convicted
the accused-appellants of attempted murder.

This Petition[10] was filed only by the alleged mastermind, Melanio Mallari.

Issues

In his Memorandum, petitioner submits the following issues for the Courts
consideration:

I.

Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution [are in] accord with the circumstantial evidence rule
and the controlling jurisprudence thereon;

II.

Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, upholding the trial courts admission of an
irrelevant, immaterial and improper evidence (coming from Edwin Amparado) which
was among the basis for conviction was in accordance with law and jurisprudence;

III.

Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, correctly sustained the trial courts consideration of
an evidence given in a separately conducted trial (not as against the petitioner)
which was among the basis for conviction; and

IV.

Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, which failed to tackle all the issues raised on
appeal was consistent with due process.[11]

In brief, the issues raised before this Court will be discussed seriatim as follows: (1)
whether the trial and the appellate courts erred in taking cognizance of evidence
given in the separate trial of petitioners co-accused; (2) whether there was sufficient
circumstantial evidence to establish petitioners guilt beyond reasonable doubt; and
(3) whether the Court of Appeals failed to accord due process to petitioner.

This Courts Ruling

The Petition is meritorious. The prosecution failed to adduce the quantum of

evidence needed for a criminal conviction.

First Issue:
Evidence Proffered in Separate Trial

Petitioner alleges that the trial and the appellate courts convicted him on the basis
mainly of evidence adduced at the separately held trial of his co-accused. He
submits that absent such evidence, there would have been no sufficient proof to
establish his guilt beyond reasonable doubt.

In its Memorandum, the Office of the Solicitor General (OSG) simplistically contends
that in the trial against petitioner, there was no need to offer anew the evidence
separately proffered against the Bontias, because the case [filed against them]
involved only one case number.[12] Respondent fails to cite jurisprudence in support
of such logic or to give even a semblance of a sound rationale therefor.

As a rule, a court should not take judicial notice of evidence presented in other
proceedings, even if these have been brought before it or have been heard by and
are actually pending before it. This rule is especially true in criminal cases, in which
the accused have the constitutional right to confront and cross-examine the
witnesses presented against them.[13] Moreover, when a separate trial is granted,
the testimony of the accused imputing the crime to the co-accused is not admissible
against the latter, who has had no opportunity to cross-examine the witnesses.[14]

Parenthetically, the object of conducting a separate trial would be rendered naught if

evidence proffered at the trial of one of the accused would be considered likewise
adduced in the distinct trial of the other accused. What then would be the rationale
for requesting and being granted separate trial? While the grant of separate trials for
persons jointly accused of an offense is discretionary upon the court, the motions
therefor are usually found meritorious when antagonism is apparent in the respective
defenses of the accused.[15]

In the case before us, petitioners co-accused -- Zaldy and Leonardo Bontia -executed, prior to trial, their respective extrajudicial confessions admitting their
complicity in the crime charged and implicating petitioner as the mastermind. On the
other hand, in denying their accusations, petitioner stood his ground and refused to
execute a statement. Precisely, their antagonistic defenses must have impelled him
to seek, and the trial court to grant him, a separate trial.

Records show, however, that most of the prosecution witnesses presented during the
trial of the Bontias were likewise presented during the separate trial of petitioner.
Testifying against him on December 20, 1990, was Pfc. Danilo Carvajal. The latter
said that, as police investigator of the Sasa Patrol Station, he had conducted an
investigation of the shooting incident involving Erlinda Boyose, leading to the arrest
of Zaldy and Leonardo Bontia and Melanio Mallari. He had allegedly taken the
supposed extrajudicial confession of Leonardo Bontia who, after being apprised of
his constitutional rights, voluntarily executed his Sworn Statement in the presence of
an inquest lawyer of the Public Attorneys Office (PAO).[16]

On the same day, Atty. Jonathan Jocom testified that he was the PAO lawyer who
had assisted the Bontias while each of them was under custodial investigation on
August 2, 1989; that prior to their investigation, he had apprised them of their
constitutional rights to counsel and not to be compelled to make any statement
against their interests; and that despite his repeated warnings about the negative
consequences of their statements, they nevertheless voluntarily executed and
signed their statements confessing to the crime.[17]

On April 19, 1991, Pfc. Anastacio Naive testified that he had also investigated the
shooting incident; interviewed the victim (Erlinda Boyose) and the witness (Edwin
Amparado) who was an alleged friend of petitioner; and that he had reduced the
statement of Zaldy Bontia into writing after informing the latter of his constitutional
rights in the presence of Atty. Jocom. Zaldy named Melanio Mallari as the
mastermind who had asked him to look for a triggerman who would eliminate
Boyose.[18]

The testimonies of Policemen Antonio Ysulat and Victoriano Padilla were admitted by
herein petitioner, according to the stipulation of his counsel.[19] Ysulat was the Sasa
Patrol Stations exhibit custodian, to whom the gun that had allegedly been used in
the shooting incident was turned over. Padilla was the desk officer who had recorded
the Complaint regarding the incident on June 29, 1989, the appearance of Erlinda
Boyose, her identification of Zaldy and Leonardo Bontia from a police lineup, and the
appearance of Petitioner Mallari at the patrol station on August 2, 1989.

Erlinda stated[20] that she was a classroom teacher and guidance counselor of
Bustamante High School, where petitioner was the principal from 1983 to 1989; and
that initially, they had a good working relationship, which turned sour when she
began inquiring about school funds that had remained unaccounted for. On March
22, 1989, she personally handed over to him a letter[21] she had written, reminding
him of, among other things, some basic needs of the school that had remained
unmet, such as blackboards, chairs and comfort rooms for the students; and his
failure, as the school administrator in the past five years, to account for fees
collected from students.

She then admonished him in that letter for his moral indiscretions in office;[22]
recommended that he conduct dialogues/discussions with teachers, students and
their parents, to disclose financial reports so as to avoid suspicions of fund misuse;
and, finally, apologized for having to bring up all these matters, but expressed hope
that it would all be for the improvement of the school administration. Boyose further
testified that after reading the letter, Mallari told her sarcastically that he had been to
so many schools, but that it was only she who had written to him in such a manner;
he warned her that she made a mistake in writing this [letter].

Boyose also attested to the incidents of that fateful day, June 29, 1989, which
culminated in the attempt on her life by Leonardo Bontia. He had asked her earlier
that day in school about how to enroll his nephew at the Bustamante High School.
Because of the gunshot injuries that she sustained, she had to undergo
hospitalization for which she incurred expenses.

While the instant case was pending trial, Leonardo Bontia supposedly wrote her a
letter[23] asking for forgiveness for the crime [he] had done against [her,] saying that
he was in dire need of money at the time. Allegedly, he had to go to Mallari, hoping
to be able to ask for some, but the latter instead dared [him] to discipline Mrs.
Boyose, gave [him] food and drinks until [he] got drunk, and also promised to give
him money and a job. Because the accused was drunk and, thus, out of his mind, he
supposedly gave in to the prodding of Mallari.

Only two other witnesses against the Bontias were not presented against Petitioner
Mallari. They were (1) Pfc. Remo Pagal, who had also participated in the
investigation and allegedly received an informers tip that led to their arrest; and (2)
Dr. Roberto Alabado, who had treated the injuries of the victim.[24]

The remaining witnesses at the separate trial of the Bontias were petitioners coaccused, Zaldy and Leonardo Bontia. It is worth noting that despite their earlier
confessions -- as attested to by Witnesses Carvajal, Jocom and Naive -- the Bontia
brothers, assisted by counsel, entered a plea of not guilty. Moreover, during their
trial, the brothers denied committing the crime; admitted to having signed their
respective statements; but alleged that these had been procured without the
assistance of counsel and with the police officers use of force, intimidation and
violence.[25]

After reading the testimonies of Pagal, Alabado and the two Bontias and reviewing
the rulings, we find that the trial and the appellate courts could not have taken those
testimonies into substantial consideration, if at all, in convicting the petitioner. In fact,
the testimonies of Pagal and Alabado were merely corroborative of those of the other
witnesses who were presented during petitioners trial. On the other hand, the
declarations of Zaldy and Leonardo Bontia in open court were, on their face,
favorable to him. And the lower courts cognizance of those declarations would not
have prejudiced him, as petitioner asserts. However, despite the denials by the
Bontias, the lower courts still found them, including petitioner, guilty.

We therefore find no basis at all for the allegation of petitioner that the trial and the
appellate courts convicted him on the ground of evidence adduced at his coaccuseds separate trial, but supposedly not during his own trial.

Second Issue:
Sufficiency of Circumstantial Evidence

A close perusal of the testimonies of the witnesses presented against petitioner

reveals the absence of direct evidence establishing his criminal participation.
Nonetheless, in the absence of direct proof, a conviction may still be based on
circumstantial evidence. But to warrant such conviction, the following requisites must
concur: (1) there is more than one circumstance, (2) the facts from which the
inferences are derived are proven, and (3) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt.[26]

Corollary to the constitutional precept that the accused is presumed innocent until
the contrary is proved, a conviction based on circumstantial evidence must exclude
each and every hypothesis consistent with innocence.[27] Hence, if the totality of the
circumstances eliminates beyond reasonable doubt the possibility of innocence,
conviction is proper; otherwise, the accused must be acquitted.[28]

With the above jurisprudential premises in mind, we examined the circumstances on

the basis of which petitioner had been found guilty beyond reasonable doubt and,
consequently, convicted.

According to the CA, the following circumstances were sufficient to establish the
criminal culpability of the three accused (Zaldy and Leonardo Bontia, as well as
Petitioner Mallari):

x x x. First, appellant Mallari had an axe to grind against the victim because of her
persistent inquiries regarding the use or misuse of school funds under the custody of
Mallari as principal of Bustamante Barangay High School. This fact shows the motive
of Mallari in silencing her. Second, Zaldy Bontia, the person who looked for a killer, is
beholden to Melanio Mallari, considering that the latter had promised him a steady
government job and had been giving cash advances in the form of allowance to tide
him over till such time that he could receive a regular salary from the government.
Third, Leonardo Bontia is the older brother of Zaldy. When the job to kill Boyose was
offered by Mallari to Leonardo Bontia, the latter immediately acceded considering
that he was in dire need of money having eight (8) children and a wife to support.

Thus, when confronted by the victim at the police station, he readily admitted that he
shot Erlinda Boyose because of the consideration he hoped to receive from Mallari
afterwards. Fourth, the money in the amount of P900.00 which Zaldy Bontia gave to
his brother Leonardo so that he can hide came from Mallari. Fifth, the confession
made by Zaldy Bontia concerning his participation to the crime after he was
confronted by the victim at the police station. Sixth, both Leonardo and Zaldy Bontia
voluntarily executed extra-judicial statements regarding their involvement in the
crime. In their respective extra-judicial confession, they pointed to Mallari as the
person who induced them to kill Boyose. Finally, the letter of Leonardo Bontia
marked as Exhibit I, addressed to the victim asking for forgiveness, contained
narration of events with full of explicit details regarding the commission of the crime.
[29]

In its Memorandum,[30] the OSG substantially repeats the above circumstances in

support of the conviction of petitioner.

The first circumstance -- that Mallari had an axe to grind against the victim because
of her persistent inquiries regarding the use or misuse of school funds -- appears to
be a conclusion based merely on the impression of the victim herself. Other than the
one letter[31] she wrote to petitioner, only her self-serving statement supported her
allegation that she had questioned persistently (several times) his supposed
administrative malpractices as school principal.

Be that as it may, a reading of that letter, which was indeed replete with denigrating
statements against him, probably served as a motive for a reprisal from him, if its
contents were not treated as constructive criticism. To the extent that it tends to
establish motive, this circumstance may be taken into consideration in the overall
assessment of the evidence against him.

The second to the fourth circumstances[32] are not directly established by the
evidence against petitioner. None of the prosecution witnesses testified thereon. A
scrutiny of the records of the case reveals that those circumstances were derived
from the Written Statements[33] that had been made by petitioners co-accused and
presented when Prosecution Witnesses Carvajal and Naive testified. These
witnesses were the police investigators who had reduced into writing the statements
of Leonardo and Zaldy Bontia at the time of the arrest of the latter two.

Section 36 of Rule 130 of the Rules of Court provides that witnesses can testify only
with regard to facts of which they have personal knowledge; otherwise, their
testimonies would be inadmissible for being hearsay.[34] In the present case, neither
of the said witnesses had personal knowledge of the second to the fourth

circumstances considered by the appellate court, or of the rest of the statements

made by the declarants in their respective Written Statements. The witnesses merely
attested to the voluntariness and due execution of the Bontias respective
extrajudicial confessions. Thus, insofar as the substance of those confessions is
concerned, the testimonies of the police witnesses are mere hearsay.[35]

The fifth and the sixth circumstances refer to the aforementioned Written Statements
of petitioners co-accused who did not, however, testify against him. Well-settled is
the rule that extrajudicial declarations are inadmissible in evidence against the
declarants co-accused.[36] The admission by the court of such declarations violates
the incriminated persons right to due process. This principle holds if, as in the case
before us, the declarants fail to take the witness stand and thereby deny the
accused-petitioner the fundamental right to confront and cross-examine them faceto-face, in order to test their truthfulness and credibility.

True, there are exceptions to this rule, such as when the confession is used as
circumstantial evidence to show the probability of the participation of the co-accused
in the crime, or when the confession is corroborated by other pieces of evidence.[37]
In such instances, the significance of the confession comes to the fore, but only in
relation to the other circumstantial evidence establishing the guilt of the person
incriminated. In the instant case, the merits of the fifth and the sixth circumstances
mentioned by the appellate court depend, therefore, on the strength of the other
circumstantial evidence against petitioner.

But, as discussed so far, just the first circumstance, establishing petitioners motive,
may be given due weight. Only one more remains to be considered, as the three
other circumstances have been discounted as hearsay.

This last circumstance cited by the appellate court pertains to a supposed letter of
Leonardo Bontia addressed to the victim, containing explicit details regarding the
commission of the crime and asking for forgiveness. The latter was presented as
part of the testimony of the victim, Erlinda Boyose. However, Leonardo was not
presented in court to identify it. No other witness testified as to its genuineness or as
to the fact that it had personally and voluntarily been written by him. Incidentally,
Boyose received it through the mail, and no one ever attested that it had in fact been
written and sent by the same Leonardo Bontia, petitioners co-accused.[38]

As we have said earlier, witnesses can testify only with regard to facts of which they
have personal knowledge. Testimonial or documentary evidence is hearsay if it is
based, not on the personal knowledge of the witness, but on the knowledge of some
other person not on the witness stand. Consequently, hearsay evidence -- whether

objected to or not -- has no probative value unless the proponent can show that the
evidence falls within any of the exceptions to the hearsay rule, as provided in the
Rules of Court.[39] Clearly, none of the exceptions apply to the present case.

Thus, an unverified and unidentified private document cannot be accorded probative

value. It is precluded because the party against whom it is presented is deprived of
the right and opportunity to cross-examine the person to whom the statements or
writings are attributed. Its executor or author should be presented as a witness to
provide the other party to the litigation the opportunity to question its contents. Being
mere hearsay evidence, failure to present the author of the letter renders its contents
suspect and of no probative value.[40]

There is another circumstance, not mentioned by the appellate court but advanced
by the Office of the Solicitor General: that Prosecution Witness Edwin Amparado
declared that he had been contacted by petitioner to kill Boyose. Let us first recall
the testimony of that witness, as related by the trial court:

On December 11, 1990, Edwin Amparado testified that he personally knows accused
Mallari because he studied at F. Bangoy Barangay High School where Melanio
Mallari was the principal from 1983 to 1984, that he also knows Zaldy Bontia, that
the last time he saw Zaldy Bontia was in February 1989 in the house of Melanio
Mallari located at Juan Luna, corner Chavez Streets, that he went to the house of
Melanio Mallari to pledge his electric fan, that Melanio Mallari asked him to kill Mrs.
Boyose who used to be his neighbor at Doa Pilar Village but nothing came out of it,
that later he heard over the radio that Mrs. Boyose was shot, that he knows Andy
Magdadaro who was his neighbor in Agdao, that they talked about the plan to kill
Mrs. Boyose, that Andy Magdadaro was only waiting for his go-signal, that he
executed an affidavit regarding the offer of Melanio Mallari to kill Mrs. Boyose. He
said on cross-examination that he did not feel disgusted when Mallari asked him to
kill Mrs. Boyose, that he thought of killing Mrs. Boyose and relayed the offer to Andy
Magdadaro the same job, that he is close to Mr. Mallari, that the job of killing Mrs.
Boyose was the only illegal job offered to him by Melanio Mallari, that during that
time he needed money because his wife was pregnant, that he relayed the offer to
Andy Magdadaro because he is a rebel returnee.[41]

It appears that the prosecution presented Amparado merely to show that petitioner
had criminal intent against the victim. The testimony of the witness, however,
concerned petitioners alleged proposal to him (not to the Bontias) to kill Boyose -- an
act that, by his own admission, did not materialize. Even if indeed petitioner made
such a proposal, it did not necessarily mean that it was also made to the Bontias,
absent any strong supporting evidence. The witness does not in fact appear privy to
any conspiracy between petitioner and the Bontias.

Thus, insofar as the actual attempt on the life of Boyose is concerned, Amparados
testimony is clearly irrelevant or of no probative weight. It does not tend to establish,
to any reasonable degree, the probability of a fact in issue[42] -- whether petitioner
had induced or conspired with the Bontias to kill Boyose. Hence, the testimony is
worthless in establishing the guilt of petitioner of the crime charged against him.

In the final analysis, other than the victims letter to petitioner tending to establish his
ill motive, there is hardly any evidence to corroborate his co-accuseds extrajudicial
confessions (later recanted) or to establish the probability of his actual participation
(by inducement) in the commission of the crime. Considering that the strength of the
prosecution evidence against him falls short of the required quantum of proof beyond
reasonable doubt, his constitutional right to be presumed innocent must prevail.

The Court has repeatedly held that when the circumstances shown to exist yield at
least two inferences -- one of which is consistent with the presumption of innocence
and the other with the finding of guilt -- the Court must acquit the accused, because
the evidence does not then fulfill the test of moral certainty or suffice to support a
judgment of conviction.[43]

Consistent with the above principles, and in view of the dearth of evidence to prove
his guilt beyond reasonable doubt, petitioner must be acquitted.

Third Issue:
Due Process

Petitioner also claims that he was denied due process by the Court of Appeals,
because it allegedly failed to tackle all the issues raised in his appeal brief.

While it is no longer necessary to resolve this issue in view of our disposition of the
second one, it is enough to say that petitioner has neglected to substantiate this
allegation in his Petition. He did not, in fact, even care to point out -- much less
discuss -- what issues the appellate court had failed to resolve. In any event, a
wrong disposition by the court is not tantamount to denial of due process.

WHEREFORE, the assailed Decision insofar as it pertains to Petitioner is

REVERSED and SET ASIDE. On reasonable doubt, Petitioner Melanio Mallari y
Liberato is ACQUITTED. The director of the Bureau of Corrections is directed to

cause the immediate release of petitioner, unless the latter is being lawfully held for
another cause; and to inform the Court of the date of his release, or the reasons for
his continued confinement, within ten days from notice. No costs.

SO ORDERED.

FIRST DIVISION
[G.R. No. 121099. February 17, 1999]

FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST DIVISION,

respondent.
DECISION
PARDO, J.:

The case is an appeal via certiorari taken by petitioner from a decision of the
Sandiganbayan and its resolution convicting him of malversation of public property
defined and penalized in Article 217 in relation to Article 222 of the Revised Penal
Code, and appreciating the mitigating circumstance of full restitution, imposing upon
him the indeterminate sentence of two (2) years four (4) months and one (1) day of
prision correccional, as minimum, to six (6) years and one (1) day of prision mayor,
as maximum; the penalty of perpetual special disqualification, and a fine of
P5,000.00, the value of the .38 Cal. Smith & Wesson Revolver, with Serial No.
879886.

We reverse.

The facts may be related as follows:

On February 2, 1988, petitioner was elected to and assumed the position of mayor of
the municipality of Casiguran, province of Aurora.

Later that month, he received from Casiguran Barangay Captain[1] Antonio

Benavidez one .38 Caliber Smith & Wesson Revolver, with Serial No. 879886. The
gun was owned by and licensed to Ponciano Benavidez, an uncle of Antonio, who
mortgaged it to him. Petitioner placed the gun in an attache case.

After about a week, petitioner together with his security men, went to Manila, and
brought with them the attache case with the gun in it. On their return to the province,
their car was stopped at a spot checkpoint in Quezon City, where Pat. Alfredo B.
Villanueva of the Quezon City Police saw the revolver. On petitioners instruction, his
security men surrendered the gun to police officer Villanueva.

Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of

the gun claimed it from petitioner. The latter informed Ponciano that the gun was
confiscated by the Quezon City Police.

On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial
Prosecutor of Aurora a complaint for theft against petitioner and Antonio Benavidez.

On December 13, 1988, Ponciano Benavidez filed with the Department of Local
Government, an administrative complaint against petitioner for abuse of authority,
ignorance of the law and conduct unbecoming of a public servant.

On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for
theft.

On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft against
petitioner with the Office of the Ombudsman in Manila.

On August 21, 1990, during the investigation of the administrative case by the
Sangguniang Panlalawigan of Aurora, complainant Ponciano Benavidez executed an
affidavit of desistance acknowledging that petitioner had paid the value of the gun,
and withdrawing the administrative case and the criminal case he filed against
petitioner with the Ombudsman.

On August 22, 1990, the Sangguniang Panlalawigan approved a resolution

dismissing the administrative case against petitioner.

On March 9, 1992, the Ombudsman approved the filing by Special Prosecution

Officer Prospero G. Pelayo of an information against petitioner for malversation of
public funds, which was duly filed on March 12, 1992, with the Sandiganbayan,
Manila.

On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30,
1992, petitioner posted a cash bail of P20,000.00, which he deposited with the
provincial treasurer of Aurora, duly approved by Regional Trial Court Judge Filemon
N. Tan of Baler, Aurora.[2]

Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division,

petitioner entered a plea of not guilty, and accordingly, the court scheduled the case
for pre-trial conference.

Meantime, on or about August 14, 1992, petitioner was able to contact Pat.
Villanueva in Camp Karingal, Quezon City. The latter said that he returned the gun to
Patrolman Orgas, one of petitioner's security men on the very next day after he had
confiscated it. Unfortunately, Pat. Orgas did not inform petitioner about the recovery
of the gun, and, at the time Villanueva so informed petitioner, Pat. Orgas had died.

At the pre-trial conference held on August 28, 1992, the prosecution and the accused
(petitioner herein) assisted by counsel de parte, entered into a stipulation of facts
signed by them, as follows:

1. At all times relevant to this case, the accused was the Mayor of the Municipality of
Casiguran, Aurora;

2. That in the exercise of his functions as Mayor, the accused had the occasion to
confiscate one .38 caliber Smith & Wesson revolver with Serial No. 879886 from
Barangay Captain Antonio Benavidez;

3. This weapon was actually owned by Ponciano Benavidez, the value of which the
parties have not agreed upon;

4. That the accused confiscated this weapon in the performance of his official
functions and was, therefore, in custody thereof in his capacity as such;

5. That demand was made from the accused by Ponciano Benavidez sometime in
June of 1988 to produce the above-mentioned firearm but the accused failed to do
so;

6. That at a subsequent time, the accused and Ponciano Benavidez went to the
offices of the Quezon City Police Department in search of this weapon;

7. That there has been restitution of the value of the firearm by the accused to the
complaining witness Ponciano Benavidez although there is disagreement as to the
amount of the restitution;

8. That the following affidavits were executed:

a. By complaining witness Ponciano Benavidez indicating his desistance from further

prosecution thereof for reasons stated therein;

b. By Alfredo Villanueva of the Quezon City Police Department purporting to describe

the circumstances under which he allegedly confiscated the weapon in question from
the accused Mayor.

Further to the above stipulations, the Government now marks the following exhibit
which is admitted by the accused:

Exhibit A - a xerox copy of the License to Carry Firearm No. 0188490, issued by
Necesitas Katigbak of the Firearm and Explosives Unit, to Ponciano Benavidez
involving .38 caliber Smith & Wesson revolver with SN 879886.

The accused for his part has marked the following exhibits:

Exhibit 1 - The Order of the Fiscal dated January 20, 1989, dismissing the charge of
Theft, which is Annex 1 to the Supplemental Affidavit;

Exhibit 2 - The administrative complaint filed by the complaining witness dated

December 13, 1988, which is Annex 2 to the Supplemental Affidavit;

Exhibit 3 - The Complaint for the filing of the case before the Ombudsman on April 6,
1989, which is Annex 3 to the Supplemental Affidavit;

Exhibit 4 - The investigation before the Sangguniang Panlalawigan dated August 21,
1990 at Baler, Aurora, wherein the owner of the gun submitted his affidavit of
desistance and admitting therein that he was paid for the loss of the gun, which is
Annex 4 to the Supplemental Affidavit;

Exhibit 5 - the Affidavit of Desistance executed by the owner of the gun dated August
21, 1990, marked as Annex 5 to the Supplemental Affidavit, wherein the owner of the
gun admitted that he verified the loss of the gun to be true and also admitted that the
equivalent amount in cash and in kind for the .38 caliber revolver was paid to him, for
which he promised to dismiss the criminal case and the administrative case.

Exhibit 6 - the Minutes of the Sangguniang Panlalawigan of Aurora dated August 22,
1990, which decided to dismiss the administrative case, which is marked as Annex 6
to the Supplemental Affidavit;

Exhibit 7 - the Resolution of the Investigating Fiscal for the Ombudsman dated
February 24, 1992, which is marked as Annex 7 to the Supplemental Affidavit;

Exhibit 8 - the Resolution of the Ombudsman, which is marked as Annex 8 to the

Supplemental Affidavit;

Exhibit 9 - a copy of the Order of Arrest issued by the Sandiganbayan, marked as

Annex 9 to the Supplemental Affidavit;

Exhibit 10 - the payment of the Bond for the provisional release of the accused,
marked as Annex 10 to the Supplemental Affidavit;

Exhibit 11 - the Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and
a certain Angelito Salamera stating that they were present when payment was made
for the gun to the owner, which is marked as Annex "11 to the Supplemental Affidavit;

Exhibit 12 - the Affidavit executed by Alfonso Villanueva dated August 14, 1992,
wherein he admitted that he had confiscated the gun at a checkpoint in Quezon City,
which is marked as Annex 12 to the Supplemental Affidavit;

Exhibit 13 - the Affidavit executed by Antonio Benavidez dated July 30, 1989, which
is marked as Annex 13 to the Supplemental Affidavit.

On June 30, 1993, the prosecution formally presented as its evidence Exhibit "A"[3]
and upon the admission thereof, rested its case.

On the other hand, the defense presented two (2) witnesses including petitioner.

After the testimony of the witnesses on July 21, 1993, the court gave the defense
counsel ten (10) days to formally offer his evidence in writing. In time, the defense
formally offered its exhibits, and on September 6, 1993, the court admitted all
exhibits except Exhibits 11 and 13, which were rejected for being hearsay.

On February 17, 1995, more than a year after the case was submitted for decision,
the Sandiganbayan promulgated its decision, the decretal portion of which is
narrated in the opening paragraph of this opinion.

On March 3, 1995, petitioner filed a motion for reconsideration of the decision;

however, on July 5, 1995, the Sandiganbayan denied the motion.

Hence, this appeal.

On October 4, 1995, the Court required respondent to file its comment on the
petition. On January 4, 1996, the Office of the Special Prosecutor filed its comment
on the petition for review. On January 30, 1996, the Solicitor General also filed his
comment.

We give due course to the petition.

To begin with, petitioner is charged with malversation under Article 217 in relation to
Article 222 of the Revised Penal Code, providing as follows:

Article 217. Malversation of public funds or property--Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or misappropriate or shall
consent, or through abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall otherwise be guilty of
the misappropriation of malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than 200 pesos but does not exceed 6,000 pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than 6,000 pesos but is less than
12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the
amount exceeds the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to personal
uses. (As amended by Rep. Act No. 1060, approved June 12, 1954).

Article 222. Officers included in the preceding provisions. The provisions of this
chapter shall apply to private individuals who, in any capacity whatever, have charge
of any insular, provincial or municipal funds, revenues, or property and to any
administrator or depository of funds or property attached, seized or deposited by
public authority, even if such property belongs to a private individual.

One essential element of the crime of malversation is that a public officer must take
public funds, money or property, and misappropriate it to his own private use or
benefit. There must be asportation of public funds or property, akin to the taking of
another's property in theft. The funds, money or property taken must be public funds
or private funds impressed with public attributes or character for which the public
officer is accountable.

In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith &
Wesson revolver, to petitioner mayor of the town of Casiguran, Aurora. Antonio
surrendered the gun to the mayor. The gun was duly licensed. It was not seized or
confiscated. Antonio obtained possession of the gun from Ponciano Benavidez, an
uncle of his, who was the owner and licensee of the gun. Ponciano mortgaged it to
Antonio.

The elements of malversation, essential for the conviction of an accused, under the
above penal provisions are that

(a) the offender is a public officer;

(b) he has the custody or control of funds or property by reason of the duties of his
office;

(c) the funds or property involved are public funds or property for which he is
accountable; and

(d) he has appropriated, taken or misappropriated, or has consented to, or through

abandonment or negligence permitted, the taking by another person of, such funds
or property.[4]

The question may be asked: Did Antonio's surrender of the gun to petitioner mayor
invest the gun with public character sufficient to consider the gun as public property
for which the mayor is accountable? We believe not. There was no reason to
surrender or confiscate the gun. It was duly licensed to Ponciano Benavidez. The
license is not transferable. Antonio could not validly possess the gun. He should
have returned the gun to Ponciano, the licensed owner or surrendered it to the local
police or to the Constabulary Provincial Commander. By turning over the gun to
petitioner mayor, the gun did not become public property because it was not
intended for public use or purpose nor was it lawfully seized. The gun continued to
be private property, that is why the gun owner rightfully asked for its return to him,
not to be turned over to the public coffer or treasury. Petitioner's failure to return the
gun after demand by the private owner did not constitute a prima facie evidence of
malversation. The property was private and the one who demanded its return was a
private person, not a person in authority. The presumption of conversion will not
apply.

A respected author in Criminal Law wrote Malversation can only be committed by a

public official who has charge of public funds or property by virtue of his official
position. A public official not responsible for public funds or property and without
authority to safeguard the same can not be convicted of malversation.[5]

What is more, the gun was confiscated by a police officer at a checkpoint in Quezon
City. The policeman should have turned over the confiscated gun to the
Constabulary Firearm and Explosive Unit, in Camp Crame, Quezon City. Instead, he
returned the gun to a security aide of petitioner mayor, as a favor to the mayor. The
security aide died in the meantime, and, apparently, the gun got lost. Assuming that
the loss was due to petitioner's fault or negligence, he is not criminally liable for
malversation through negligence because there was no evidence of conversion of
public funds or property to the use or benefit of the accused. The legal presumption
of malversation created by a demand for restitution of public funds or property is not
applicable because the gun was private property and a public officer entitled to its
possession did not make the demand for its return.

The presumption takes the place of affirmative proofs showing the actual conversion.
It obviates the necessity of proving acts of conversion; a thing most extremely
difficult to do. If in a particular case a demand was made upon an accountable public
official to produce the funds in his custody and he failed to do so, the presumption
thereby arising would render unnecessary further proof of conversion. The
disappearance of public funds in the hands of the accountable public officer is prima
facie evidence of its conversion.[6] Here, there is no presumption of conversion nor
evidence of actual conversion.

Nevertheless, petitioner made restitution of the value of the gun to the private owner,
Ponciano Benavidez. Obviously, petitioner did not malverse the gun by dolo or culpa
to his private use or benefit.

One more point. Admittedly, there was no evidence submitted to the court of the
value of the gun to enable the court to fix the penalty to be imposed on the accused.
Assuming that petitioner malversed the gun, in malversation, the penalty for the
offense is dependent on the value of the public funds, money or property malversed.
In this case, the Sandiganbayan did not base the penalty on the minimum value of
the gun in the absence of evidence of its true worth. It took judicial notice of its
market value and estimated its "reasonable value" at P5,000.00. This is a grievous
error.

The Sandiganbayan could not take judicial notice of the value of the gun. It must be
duly proved in evidence as a fact. The court can not take judicial notice of a disputed

fact. The court may take judicial notice of matters of public knowledge, or which are
capable of unquestionable demonstration, or ought to be known to judges because
of their judicial functions.[7] Otherwise, the court must receive evidence of disputed
facts with notice to the parties.[8] This is an innovation introduced in the Revised
Rules of Evidence the Supreme Court adopted on July 1, 1989, which should not be
unknown to the lower courts.[9] The new rule of evidence governs this case, since it
was decided in 1995, six years after its effectivity.

WHEREFORE, the Court hereby REVERSES the appealed decision and resolution
of the Sandiganbayan in its Criminal Case No. 17563, and ACQUITS the accused
Fidel Salamera y Torres, with costs de oficio.

The Court orders the Sandiganbayan to forthwith cancel the cash bail of the
accused, and immediately reimburse the amount to him.

SO ORDERED.

SECOND DIVISION

CABALEN MANAGEMENT CO., INC., MA. ESTELA O. NIEVERA, IAN TIONGSON,

ADJI TIONGSON, ESTER O. NIEVERA and ANASTACIA NAVAL, ADRIANO JR.
CORPORATION, LEDA A. PANGILINAN, EVA S. CANDELARIA, ROSE MARIE
MORALES, DANILO SUNUBA, LETECIA DAVID, MARLON BULANADI, MA.
THERESA L. GADDI and CONSUELO HALILI REYES,
Petitioners,

- versus -

JESUS P. QUIAMBAO, GERALDINE M. PALERMO, RODEL B. PANGILINAN,

WILLIAM F. LACSON, ROCHELLE B. DE LEON, JOCELYN B. DEANG, EDGAR E.
DE GUZMAN, VIZIER INOCENCIO, VINCENT EDWARD C. MAPUA and
JESSEBEL G. OBIEN,
Respondents.
G.R. No. 169494

Present:

QUISUMBING, J., Chairperson,

CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

PROMULGATED:

July 24, 2007

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

RESOLUTION

CARPIO MORALES, J.:

From this Courts Decision[1] of March 14, 2007, petitioners seek reconsideration.

In their petition for review on certiorari before this Court, petitioners sought to set
aside the April 29, 2005 Decision[2] of the Court of Appeals (CA) in CA-G.R. SP No.
85159, which reversed the earlier rulings of the Labor Arbiter and the National Labor
Relations Commission (NLRC); and its Resolution of August 25, 2005,[3] which
denied their motion for reconsideration.

The assailed CA Decision held that except for respondents Vizier Inocencio and
Vincent Edward Mapa whose petitions were dismissed pursuant to Section 5, Rule 7
of the Rules of Court and Section 4 (a) of the Rules of Procedure of the NLRC,
herein respondents were illegally dismissed from their employment.

This Court, by Decision of March 14, 2007, affirmed the CA Decision, hence,
petitioners Motion for Reconsideration now subject of the present Resolution. To the
Motion, respondents filed their Opposition.

In pleading a reconsideration of the Decision, petitioners invite attention to the fact

that not one, but two administrative bodies possessing specialized knowledge and
expertise in their respective fields, i.e, the office of the Labor Arbiter and the NLRC,
had previously ruled that the dismissal of respondents from work was legal.

Petitioners claim that contrary to the CAs and this Courts holdings, the affidavits of
their witnesses, Henry dela Vega Balen (Balen) and Roderick Malana (Malana), as
well as the audit report dated September 19, 2001, are admissible and of rational
probative value.

With respect to the statements executed by Balen and Malana, petitioners manifest
that the originals thereof were submitted to the Labor Arbiter during the preliminary
conference of the case; and even respondents have not objected to the submission

of the statements, either on the ground that they were photocopies or that they were
altered or were not presented to them at all.

Further, petitioners contend that respondents did not contest the findings of the audit
report that the cancelled Order Slips (OS) and receipts, and the incidents of
swapping dining OS with bar OS were beyond the course of ordinary business. Such
finding should thus be accorded credit, they urge, given the observations of the
Labor Arbiter about a wholly credible scenario of tip pocketing by respondents and
the alleged admission of respondent Jesus Quiambao in his Sinumpaang Salaysay
dated March 14, 2002, of the existence of the anomalous activity.

Petitioners furthermore maintain that the CA should have dismissed the petition with
respect to respondents Geraldine Palermo, Rochelle De Leon, and William Lacson.
For, so petitioners contend, respondents failed to sign the verification of their appeal
to the NLRC to thus render the decision of the Labor Arbiter final as to them.

Finally, petitioners posit that the Decision of this Court should not have passed upon
the legality of the dismissal of Quiambao because the same is subject of another
case, NLRC NCR Case No. 00-05-06210-2003, which is still pending consideration
by Labor Arbiter Ramon Valentin Reyes.
It bears stressing that this Court thoroughly considered the rulings made by the
Labor Arbiter and the NLRC, which were pleaded by petitioners both in their petition
for certiorari before the CA and in their petition for review before this Court. Then, as
now, this Court appreciates no error in the reversal by the CA of the findings of the
Labor Arbiter and the NLRC.

With respect to the statements of Balen and Malana and the audit report, petitioners
need only to be reminded that evidence, even if not objected to, may still carry no
probative value. For admissibility, should not be equated with weight, of evidence.[4]

Moreover, as respondents correctly point out in their Opposition, they have

vehemently objected to the statements of petitioners witnesses in their Reply[5] for
being self-serving, undated, wanting in material particulars and not executed under
oath. The same Reply bears out the fact that respondents objected to the audit
report for being self-serving.[6]

Even assuming that the originals of the statements of Balen and Malana were
submitted to the Labor Arbiter, still the copies extant in the records are lacking in
material particulars, specifically the dates of execution and the persons before whom
they were executed.

Notably, these particulars are determinative of whether the statements as well as the
audit report had indeed precipitated the investigation of respondents as petitioners
had claimed; or were presented only after the cases for illegal dismissal were filed as
respondents had contended.

It may not be amiss to reiterate that it is the employers burden to prove a valid
dismissal. The case of the employer must stand or fall on its own merits and not on
the weakness of the employee/s defense.[7]

In discharging this bounden duty, it is not enough that petitioners showed that
Quiambao had confirmed the occurrence of incidents of tip pocketing; they also had
to prove that he and the rest of the respondents were responsible for it. This duty is
all the more pressing in the case of Quiambao considering that it was he who called
the managements attention to the incidents of tip pocketing among some of his coemployees, only to be charged with the offense he had asked to be investigated.[8]
Not only that. Petitioners also had to prove that due process was observed in
terminating the employment of respondents. As previously traversed in the Decision
under reconsideration, petitioners unfortunately failed in all respects.

As to the alleged error of the CA in relaxing the verification requirement with respect
to petitioners Palermo, De Leon and Lacson, it bears noting that petitioners had
failed to raise this as an issue in its motion for reconsideration of the CA Decision,[9]
thus precluding the appellate court from addressing the same. In fact, it is only now
that the issue is presented before this Court.

Finally, regarding this Courts judgment on the legality of Quiambaos dismissal,

respondents Opposition affirms that his case for illegal dismissal due to business
losses, which is docketed as NLRC NCR Case No. 00-05-06210-2003, is still
unresolved before Labor Arbiter Ramon Valentin Reyes. On this score, this Court
sets aside the judgment concerning the dismissal of respondent Quiambao.

WHEREFORE, the Motion for Reconsideration is PARTLY GRANTED. The judgment

pertaining to respondent Jesus P. Quiambao is VACATED and SET ASIDE.
Petitioners Motion for Reconsideration is, in all other respects, DENIED for lack of
merit, and the DENIAL is FINAL.

SO ORDERED.