[G.R. No. 144293.

December 4, 2002]

JOSUE R. LADIANA, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
PANGANIBAN, J.:

The Constitution bars the admission in evidence of any statement extracted by the
police from the accused without the assistance of competent and independent counsel
during a custodial investigation.However, a counter-affidavit voluntarily presented by the
accused during the preliminary investigation, even if made without the assistance of
counsel, may be used as evidence against the affiant.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the
April 10, 2000 Decision[1] and August 4, 2000 Resolution[2] of the Sandiganbayan (First
Division) in Criminal Case No. 16988. The dispositive portion of the assailed Decision
reads as follows:

WHEREFORE, judgment is hereby rendered finding accused JOSUE R.

LADIANA GUILTY beyond reasonable doubt of the crime of homicide and, in the absence of
any modifying circumstance, sentencing the said accused to: (a) suffer an indeterminate sentence
of imprisonment of ten (10) years of prision mayor, as minimum, to seventeen (17) years and
four (4) months of reclusion temporal, as maximum[;] (b) suffer all the appropriate accessory
penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco San Juan, in the
total amount of Fifty Six Thousand Five Hundred Pesos (P56,500.00); and (d) pay the costs.[3]

The assailed Resolution denied petitioners Motion for Reconsideration.

Petitioner was originally charged with murder before the Sandiganbayan in an
Information[4] dated August 5, 1991. However, the anti-graft court issued an Order[5] dated
October 14, 1991, noting that besides the allegation that the crime was allegedly
committed by the accused while he was taking advantage of his official position, nothing
else is in the Information to indicate this fact so that, as the Information stands, nothing
except a conclusion of fact exists to vest jurisdiction [in] this Court over the accused and
over the crime for which he is charged.
 Further, the Order gave the government sufficient time to amend the Information to
show adequate facts to vest the Sandiganbayan with jurisdiction over the
case. Subsequently, an Amended Information,[6] still charging petitioner with murder, was
filed on April 1, 1992. The accusatory portion reads as follows:

That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a
public officer, being then a member of the Integrated National Police (INP now PNP) assigned at
the Lumban Police Station, Lumban, Laguna, acting in relation to his duty which is primarily to
enforce peace and order within his jurisdiction, taking advantage of his official position
confronted Francisco San Juan why the latter was removing the steel pipes which were
previously placed to serve as barricade to prevent the entry of vehicles along P. Jacinto Street,
Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing along the
said street and when Francisco San Juan told the accused that the latter has no business in
stopping him, said accused who was armed with a firearm, with intent to kill and with treachery,
did then and there willfully, unlawfully and feloniously attack and sho[o]t Francisco San Juan
with the firearm hitting Francisco San Juan at his head and neck inflicting upon him fatal wounds
thereby causing the death of Francisco San Juan.[7]

During his arraignment on May 8, 1992, petitioner, assisted by his counsel de

parte,[8] pled not guilty.[9] After due trial, the Sandiganbayan found him guilty of homicide,
not murder.

The Facts

In their Memoranda, both the prosecution and the defense substantially relied upon
the Sandiganbayans narration of the facts as follows:

The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo
Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their
respective testimonies, in essence are as follows, to wit:

1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is the wife of
Francisco San Juan (hereinafter Francisco), the victim in the case at bar. Caridad testified that
Francisco was the Barangay Captain of Barangay Salac, Lumban, Laguna, until he was shot and
killed by accused Ladiana, who happens to be also a distant relative of the decedent.

Caridad recounted that, on December 29, 1989, she was in her house when an unidentified
woman came and told her that her husband was killed by accused Ladiana. She immediately
called up her sister-in-law before rushing to Jacinto Street where the gruesome incident allegedly
transpired. Thereat, many people were milling around, and Caridad saw the lifeless body of
Francisco lying in the middle of the road and being examined by [SPO2] Percival A. Gabinete.

Caridad recalled that it was around 11:00 oclock a.m. when she reached the place of the subject
incident. At that point in time, she was not even allowed by the police to touch, much less get
near to, the cadaver of Francisco. Caridad, expectedly, was crying and one of her aunts advised
her to go home.

Caridad maintained that she was aware that her husband was killed by accused Ladiana because
this was what the woman actually told her. Moreover, accused Ladiana had given himself up to
the police authorities.

Caridad went on to narrate that, on December 30, 1989, she was at the police station, where she
gave her written statement before police investigator PFC Virgilio Halili (hereinafter, Halili).

Additionally, Caridad presented the Death Certificate of her husband and testified that he was
eventually buried at the Lumban Cemetery. She declared that she had incurred about Twenty
Thousand Pesos (P20,000.00) for the funeral, burial and other incidental expenses by reason of
the death of Francisco.

On cross-examination, Caridad testified that, on December 29, 1989, she was in her house and
that she did not hear any gunshot between 10:30 and 11:00 oclock a.m. Caridad also admitted
she did not witness the killing of her husband.

On questions propounded by the Court, Caridad narrated that her husband suffered two gunshot
wounds - one on the upper right temple and the other on the left cheek. However, Caridad stated
that she was told that the wounds were the entry and the exit points. She also told the Court that
her husband was wearing short pants at the time of his death and that she found some bruises on
his knees.

Finally, Caridad recalled that, on the date of the incident, her husband was with his close friend,
a certain Rodolfo Cabrera, and some other persons, and that they went to Jacinto Street to repair
the steel humps which were used to block the street during school days for the protection and
safety of the school children.

2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared that he is

a policeman assigned at the Lumban Police Station in Lumban, Laguna. He has been designated
as the radio operator of the station since 1989.

Cacalda recounted that, on December 29, 1989, at around 11:00 oclock a.m., somebody, whose
name he could no longer recall, reported to him about an existing trouble along Jacinto Street in
Barangay Salac Cacalda responded by going to the scene, where he was accompanied by Alberto
Mercado, a member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco lying
face up on the road. Cacalda did not examine the body of Francisco. He left the place of the
incident when [SPO2] Percival A. Gabinete and other policemen subsequently arrived.

Cacalda had gathered from the people milling around the body of Francisco that it was accused
Ladiana who shot and killed Francisco. Cacalda immediately left to look for accused
Ladiana.However, he eventually saw accused Ladiana already inside the jail of the police station
and thereafter learned that said accused had surrendered to the police authority.
Cacalda recalled that he was later on investigated by Halili because he was the responding
policeman who went to the scene of the incident. Consequently, Cacalda executed a written
statement in relation to the subject incident.

On cross-examination, Cacalda testified that he was a radio operator and not an investigator of
the police station. He also testified that he did not witness the incident subject matter of the case
at bar.

Cacalda went on to testify that the people milling around the place of the incident told him that
accused Ladiana had already left. Because of this development, Cacalda proceeded to accused
Ladianaa house but was told that he had already gone to the police station. Cacalda accordingly
went to the police station where he saw accused Ladiana already locked inside the jail. He also
saw a stab wound on accused Ladianas right bicep but he did not anymore ask him how he
sustained the said injury.

3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a physician

and the Municipal Health Officer of Lumban, Laguna.

Javan recounted that he was the one who performed the necropsy on the cadaver of Francisco
and that he had prepared the corresponding reports and/or documents relating thereto.Javan made
a sketch representing the anterior and posterior views of the body of Francisco, and labeled and
placed red markings on the gunshot wounds found on the said cadaver.The marking Gunshot
wound A is the point of entry, which is one (1) centimeter in diameter and situated two (2)
inches behind the left ear. The marking Gunshot wound B is the point of exit of Gunshot wound
A, which is two (2) centimeters in diameter and found above the right cheekbone and one (1)
inch below the right eye. Javan also testified that there is another gunshot wound and the point of
entry and exit are labeled as Gunshot wound C and Gunshot wound D, respectively. Gunshot
wound D is one and one-half (1-1/2) centimeters in diameter and located at the left cheek, three
and one-half (3-1/2) centimeters below the left eye, while Gunshot wound C is one (1)
centimeter in diameter and found at the right lateral aspect of the neck, at the level of the adams
apple.

According to Javan, the assailant must be behind the victim when he inflicted Gunshot wound
A. As regards Gunshot wound C, the assailant likewise must be behind the victim, at a distance
of more than twenty-four (24) inches away.

Lastly, Javan testified that he was not able to retrieve any bullet during the
examination. However, judging from the size of the wound and the point of entry, Javan opined
that the firearm used was probably a caliber 38.

On questions propounded by the Court, Javan testified that Gunshot wound A could have been
fired first because the trajectory is on the same level so much so that the assailant and the victim
could have been both standing. Javan inferred that Gunshot wound C could have been inflicted
while the victim was already falling down. Javan then stressed that both wounds are fatal in
nature.
4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that he is a
police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.

The testimony of Gabinete was subsequently dispensed with, upon the admission of the defense
that he was part of the group of policemen who proceeded to the place of the subject incident and
that he found the body of Francisco lying along the road.Additionally, the defense admitted the
existence of the receipt issued by Funeraria de Mesa dated January 3, 1990 in the sum of Six
Thousand Five Hundred Pesos (P6,500.00).

5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired Assistant

Prosecutor of Laguna.

Prior to the conduct of the examination-in-chief on Cortez, the defense counsel made an
admission as to the authorship, authenticity, and voluntariness of the execution of the counter-
affidavit of accused Ladiana, which was subscribed and sworn to before Cortez. In said counter-
affidavit, accused Ladiana allegedly admitted to making the fatal shots on Francisco.However,
accused Ladiana allegedly did so in self-defense as Francisco was then purportedly attacking
accused Ladiana and had, in fact, already inflicted a stab wound on the arm of accused Ladiana.

However, Cortez emphasized that he was not the one who conducted the preliminary
investigation of the complaint which led to the filing of the subject case. Additionally, Cortez
testified that he would not be able to anymore recognize the face of the affiant in the said
counter-affidavit, but maintained that there was a person who appeared and identified himself as
Josue Ladiana before he affixed his signature on the counter-affidavit.

After the presentation of Cortez, the prosecution filed its formal offer of evidence and rested its
case.

On May 31, 1995, this Court issued a resolution admitting all the documentary evidence
submitted by the prosecution.

On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File Demurrer to
Evidence dated August 16, 1995, claiming that: (i) a review of the documentary and testimonial
evidence adduced by the prosecution allegedly failed to show that the accused is guilty of the
offense charged; (ii) at best, the evidence submitted by the prosecution are allegedly hearsay in
character, considering that the supposed eyewitness in the person of Rodolfo Cabrera was never
presented in court; and (iii) the prosecution was allegedly merely able to prove the fact of death
of the victim, but not the identity of the person who caused said death.

On August 23, 1996, this Court issued an Order of even date holding that the filing of a demurrer
to evidence is no longer appropriate considering that accused Ladiana received a copy of this
Courts resolution dated May 31, 1995 on the admission of the prosecutions documentary exhibits
as early as May 25, 1995.

On September 2, 1996, in view of his perception that the evidence submitted by the prosecution
is allegedly inadequate to sustain a conviction, accused Ladiana, through counsel, waived his
right to present controverting evidence. Instead, he asked for time to file a written
memorandum. Thus, both parties were given time within which to do so, after which the case
shall be deemed submitted for resolution.

Thereafter, this Court received on October 25, 1996 by mail the Memorandum for the
defense. As for the prosecution, it opted not to file any.[10] (Citations omitted)

Ruling of the Sandiganbayan

The Sandiganbayan ruled that the prosecution had been able to establish the guilt of
petitioner beyond reasonable doubt. The court a quo held that his Counter-Affidavit,[11] in
which he had admitted to having fired the fatal shots that caused the victims death,[12] may
be used as evidence against him. It underscored the admission made by the defense as
to the authorship, the authenticity and the voluntariness of the execution of the Counter-
Affidavit.[13] In short, it ruled that the document had sufficiently established his
responsibility for the death of the victim. However, it found no evidence of treachery; thus,
it convicted him of homicide only.[14]
Hence, this Petition.[15]

Issues

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

I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond reasonable
doubt of the crime of homicide even in the absence of any eyewitness who personally saw the
sho[o]ting of the victim by the accused, basing it only on the testimony of the prosecutor who
had administered the oath on the Counter-affidavit filed by petitioner-accused.

II. Whether or not the prosecution has presented proof beyond reasonable doubt to overcome the
constitutional presumption of innocence of the accused and his right against self-incrimination
on the basis of the Counter-affidavit whose execution was admitted by the counsel of the
petitioner, but not by the accused personally.

III. Whether or not the Counter-affidavit of the accused-petitioner which was considered by the
Sandiganbayan in its decision as similar to an extrajudicial confession may [be] admitted against
him as evidenc[e] of guilt beyond reasonable doubt even if he was not assi[s]ted then by counsel
and while he was under custodial investigation.

IV. Whether or not the Sandiganbayan is constitutionally and legally correct in issuing the Order
of August 23, 1996 denying the Motion for Leave of Court to File Demurrer to Evidence dated
August 16, 1995 filed by the accused in accordance with Sec. 15 of Rule 120 of the 1985 Rules
on Criminal Procedure in relation to Rule XXI of the Revised Rules of Sandiganbayan.

V. Whether or not accused is entitled to the mitigating circumstance of voluntary surrender

which fact was admitted by the prosecution as it even used the same as proof of the guilt of the
accused.[16]

In short, petitioner raises the following questions in this appeal: (1) whether the
Counter-Affidavit he executed during the preliminary investigation of this case is
admissible proof showing his complicity in the crime, (2) whether the Sandiganbayan
erred in denying his Motion for Leave to File a Demurrer to Evidence, and (3) whether he
is entitled to the mitigating circumstance of voluntary surrender.

This Courts Ruling

The Petition is not meritorious.

First Issue:
Admissibility of Counter-Affidavit

Undeniably, the resolution of this case hinges mainly on the admissibility of the
Counter-Affidavit[17] submitted by petitioner during the preliminary investigation. He argues
that no counsel was present when the Affidavit was executed. In support of his argument,
he cites the Constitution thus:

SEC. 12. (1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

xxxxxxxxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.[18]

It is well-settled that the foregoing legal formalities required by the fundamental law
of the land apply only to extra-judicial confessions or admissions obtained
during custodial investigations.[19] Indeed, the rights enumerated in the constitutional
provision exist only in custodial interrogations, or in-custody interrogation of accused
persons.[20]
 Custodial interrogation is the 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.[21]
In the present case, petitioner admits that the questioned statements were made
during the preliminary investigation, not during the custodial investigation. However, he
argues that the right to competent and independent counsel also applies during
preliminary investigations.
We disagree. A preliminary investigation is an inquiry or a proceeding to determine
whether there is sufficient ground to engender a well-founded belief that a crime has been
committed, and that the respondent is probably guilty thereof and should be held for trial.[22]
Evidently, a person undergoing preliminary investigation before the public prosecutor
cannot be considered as being under custodial investigation. In fact, this Court has
unequivocally declared that a defendant on trial or under preliminary investigation is not
under custodial interrogation.[23] It explained as follows:

His [accused] interrogation by the police, if any there had been would already have been ended
at the time of the filing of the criminal case in court (or the public prosecutors office). Hence,
with respect to a defendant in a criminal case already pending in court (or the public prosecutors
office), there is no occasion to speak of his right while under custodial interrogation laid down
by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution [now
Section 12, Article III of the 1987 Constitution], for the obvious reason that he is no longer under
custodial interrogation.[24]

There is no question that even in the absence of counsel, the admissions made by
petitioner in his Counter-Affidavit are not violative of his constitutional rights. It is clear
from the undisputed facts that it was not exacted by the police while he was under custody
or interrogation. Hence, the constitutional rights of a person under custodial investigation
as embodied in Article III, Section 12 of the 1987 Constitution, are not at issue in this
case.
However, the accused -- whether in court or undergoing preliminary investigation
before the public prosecutor -- unquestionably possess rights that must be
safeguarded. These include: 1) the right to refuse to be made witnesses; 2) the right not
to have any prejudice whatsoever imputed to them by such refusal; 3) the right to testify
on their own behalf, subject to cross-examination by the prosecution; and 4) while
testifying, the right to refuse to answer a specific question that tends to incriminate them
for some crime other than that for which they are being prosecuted.[25]
We do not, however, agree with the Sandiganbayans characterization of petitioners
Counter-Affidavit as an extrajudicial confession. It is only an admission. Sections 26 and
33 of Rule 130 of the Revised Rules on Evidence distinguish one from the other as
follows:

SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact
may be given in evidence against him.
SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the offense
charged, or of any offense necessarily included therein, may be given in evidence against him.

In a confession, there is an acknowledgment of guilt; in an admission, there is merely

a statement of fact not directly involving an acknowledgment of guilt or of the criminal
intent to commit the offense with which one is charged.[26] Thus, in the case at bar, a
statement by the accused admitting the commission of the act charged against him but
denying that it was done with criminal intent is an admission, not a confession.[27]
The Counter-Affidavit in question contains an admission that petitioner actually shot
the victim when the latter was attacking him.We quote the pertinent portion:

[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-
shirt upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng
aking pananalag hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay
hindi ko alam na siya ay tinamaan;[28]

Through the above statement, petitioner admits shooting the victim -- which
eventually led to the latters death -- but denies having done it with any criminal intent. In
fact, he claims he did it in self-defense. Nevertheless, whether categorized as a
confession or as an admission, it is admissible in evidence against him.
Further, we do not doubt the voluntariness of the Counter-Affidavit.Petitioner himself
submitted it to the public prosecutor to justify his actions in relation to the charges hurled
against him. It escapes this Court how he can cavalierly deny a document that he has
voluntarily submitted and originally relied upon in his defense.
In general, admissions may be rebutted by confessing their untruth or by showing
they were made by mistake. The party may also establish that the response that formed
the admission was made in a jocular, not a serious, manner; or that the admission was
made in ignorance of the true state of facts.[29] Yet, petitioner never offered any
rationalization why such admissions had been made, thus, leaving them unrebutted. In
addition, admissions made under oath, as in the case at bar, are evidence of great weight
against the declarant. They throw on him the burden of showing a mistake.[30]
Petitioner contends that nowhere in the transcripts of this case can it be found that
he has admitted to the authorship, the authenticity or the voluntariness of the Counter-
Affidavit. We quote verbatim the proceedings in the Sandiganbayan:
PJ GARCHITORENA
Well, he will identify the person who took the oath before him. Will you deny that it
was your client who took the oath before the Fiscal at the preliminary investigation?
ATTY. ILAGAN
We will admit that, your Honor.
PJ GARCHITORENA
 So in that case we will have no question about the authorship, authenticity and the
voluntariness of the execution of the counter-affidavit dated July 31, 1990?
Companiero?
ATTY ILAGAN
Admitted, your Honor.[31]
The admissions of petitioner made through his counsel cannot be any clearer. To be
sure, the unbroken stream of judicial dicta is that, in the conduct of their case, clients are
bound by the actions of their counsels, save when the latters negligence is so gross,
reckless and inexcusable that the former are deprived of their day in court.[32] Also, clients,
being bound by the actions of their counsels, cannot complain that the result of the
litigation might have been different had their lawyers proceeded differently. [33] A counsel
may err as to the competency of witnesses, the sufficiency and the relevance of evidence,
the proper defense, the burden of proof, the introduction or the withholding of witnesses
or pieces of evidence, or the manner of arguing the case. This Court, however, has ruled
several times that those are not even proper grounds for a new trial, unless the counsels
incompetence is so gross that the clients are prevented from fairly presenting their case. [34]
Having admitted that he had fatally shot the victim, petitioner had the duty of showing
that the killing was justified, and that the latter incurred no criminal liability
therefor.[35] Petitioner should have relied on the strength of his own evidence and not on
the weakness of that for the prosecution. Even if his evidence be weak, it cannot be
disbelieved after the accused has admitted the killing.[36]
Petitioner argues that it was the prosecution that indirectly raised the issue of self-
defense. Hence, he could not be bound by it. This argument deserves scant
consideration. As discussed earlier, the declarations contained in his Counter-Affidavit
are admissions that may be used as evidence against him.[37] The Sandiganbayan did not
unfairly presume that he had indeed raised the theory of self-defense, because this
argument had already been laid out in his Counter-Affidavit. No presumption was
necessary, because the admission was clear and unequivocal.
Neither do we believe petitioners claim that the anti-graft court miserably failed to give
equal effect or treatment to all the allegations found therein (Counter-Affidavit) choosing
deliberately and without reasonable basis the parts which are incriminating in character,
and ignoring without sufficient legal basis the exculpatory assertions of the accused. [38]
The unsubstantiated and uncorroborated statements of petitioner in his Counter-
Affidavit are utterly insufficient to discharge his burden of proving that the act of killing
was justified. It is hornbook doctrine that self-defense must be proved with certainty by
sufficient, satisfactory and convincing evidence that excludes any vestige of criminal
aggression on the part of the person invoking it.[39] It cannot be entertained if it is
uncorroborated by any separate and competent evidence, and it is also doubtful. [40] The
question whether the accused acted in self-defense is essentially a question of fact
properly evaluated by the lower court; in this case, the Sandiganbayan. [41]
By itself, the Counter-Affidavit miserably fails to establish the requisites of self-
defense enumerated in the law.[42] Had petitioner been more vigilant in protecting his
rights, he could have presented clear and cogent evidence to prove those elements. But,
as found by the court a quo, he not only failed to discharge the burden of proving the
existence of the justifying circumstance of self-defense; he did not even bother to present
any evidence at all.[43] So, we do not see how the Sandiganbayan could have been
selective in its treatment of his Counter-Affidavit.
Verily, if the accused fails to discharge the burden of proving the existence of self-
defense or of any other circumstance that eliminates criminal liability, his conviction shall
of necessity follow, on the basis of his admission of the killing. [44] Upholding this principle
does not in any way violate his right to be presumed innocent until proven guilty. When
he admitted to having killed the victim, the burden of proving his innocence fell on him. It
became his duty to establish by clear and convincing evidence the lawful justification for
the killing.
Therefore, petitioner can no longer invoke his constitutional right to be presumed
innocent of the crime charged.[45] As far as he is concerned, homicide has already been
established. The fact of death and its cause were established by his admissions coupled
with the other prosecution evidence including the Certificate of Death,[46] the Certificate of
Post-Mortem Examination[47] and the Medico-Legal Findings.[48] The intent to kill is likewise
presumed from the fact of death.[49]

Second Issue:
Denial of Motion for Leave to File Demurrer

Petitioner then argues that the Sandiganbayan erred in not giving due course to his
Motion for Leave to File Demurrer to Evidence. He brands this denial as legally and
constitutionally wrong.[50]
We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial
court.[51] And, unless there is grave abuse amounting to lack or excess of jurisdiction in its
denial, the trial courts resolution may not be disturbed.[52]

Final Issue:
Voluntary Surrender

After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising

change of tenor, implores this Court to consider his voluntary surrender to the police
authorities as a mitigating circumstance. He argues that two of the prosecution witnesses
testified that he had surrendered to the police authorities after the shooting incident.[53] To
buttress his argument, he contends that the main reason for his voluntary surrender is
that he sincerely believe[d] that he was legally justified in defending himself as a
policeman when he fought the victim after he was attacked by the latter.[54] It goes without
saying that this statement only reaffirms the admissions contained in his Counter-
Affidavit, which he so vehemently tried to discredit.
 For voluntary surrender to mitigate criminal liability, the following elements must
concur: 1) the offender has not been actually arrested, 2) the offender surrenders himself
to a person in authority or to the latters agent, and 3) the surrender is voluntary. [55] To be
sufficient, the surrender must be spontaneous and made in a manner clearly indicating
the intent of the accused to surrender unconditionally, either because they acknowledge
their guilt or wish to save the authorities the trouble and the expense that will necessarily
be incurred in searching for and capturing them.[56]
The only pieces of evidence in support of the plea of voluntary surrender made by
petitioner are statements made by two (2) prosecution witnesses that they were allegedly
told by other people that he had already gone to the police station. There is no showing
that he was not actually arrested; or that when he went to the police station, he
surrendered himself to a person in authority. Neither is there any finding that he has
evinced a desire to own to any complicity in the killing.
We have ruled in the past that the accused who had gone to the police headquarters
merely to report the shooting incident did not evince any desire to admit responsibility for
the killing. Thus, he could not be deemed to have voluntarily surrendered. [57] In the
absence of sufficient and convincing proof showing the existence of indispensable
circumstances, we cannot appreciate voluntary surrender to mitigate petitioners penalty.
WHEREFORE, the Petition is DENIED and the assailed Decision and
Resolution AFFIRMED. Costs against petitioner.
SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.
Puno, (Chairman), J., abroad on official business.

[G.R. Nos. 131799-801. February 23, 2004]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. FELICIANO ULIT y

TAMPOY, appellant.

DECISION
CALLEJO, SR., J.:

Before the Court on automatic review is the Decision[1] dated December 17, 1997 of
the Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97-385 to 97-
388 finding appellant Feliciano Ulit y Tampoy guilty beyond reasonable doubt of two
counts of qualified rape.[2] In the same decision, the appellant was convicted of two counts
of acts of lasciviousness. For each count of rape, the trial court sentenced him to suffer
the supreme penalty of death, while for each count of acts of lasciviousness, the appellant
was sentenced to suffer imprisonment from eight (8) years, eight (8) months and one (1)
day of prision mayor in its medium period, as minimum, to fifteen (15) years, six (6)
months and twenty (20) days of reclusion temporal in its medium period, as maximum.
The appellant was, likewise, ordered to indemnify the victim Lucelle Serrano, the amount
of P50,000 for each count of rape and P20,000 for each count of acts of lasciviousness.

The Indictments

Upon the sworn complaint of the victim Lucelle Serrano, four Informations were filed
against her uncle, the appellant. The docket number and the accusatory portion of each
Information reads:

Criminal Case No. 97-385

That sometime in the month of November 1996, in the City of Makati, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused,
who is the uncle of the complainant LUCELLE SERRANO y ULIT, hence, her relative by
consanguinity within the third civil degree, while armed with a knife, by means of force,
violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl,
without her consent and against her will, to her damage and prejudice.

CONTRARY TO LAW.[3]

Criminal Case No. 97-386

That sometime in the month of February 1997, in the City of Makati, Metro Manila, Philippines,
a place within the jurisdiction of this Honorable Court, the above-named accused, who is the
uncle of complainant LUCELLE SERRANO y ULIT, hence her relative by consanguinity within
the third civil degree, while armed with a knife, by means of force, violence and intimidation, did
then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant
LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her
will, to her damage and prejudice.

CONTRARY TO LAW.[4]

Criminal Case No. 97-387

That sometime in the month of December 1996, in the City of Makati, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused,
with lewd design by means of force, violence and intimidation, did then and there willfully,
unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE
SERRANO y ULIT, an eleven (11) year old girl, by then and there kissing her and touching her
sexual organ, without her consent and against her will, to her damage and prejudice.

CONTRARY TO LAW.[5]

Criminal Case No. 97-388

That on or about the 2nd day of March 1997, in the City of Makati, Metro Manila, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named accused, with lewd
design by means of force, violence and intimidation, did then and there willfully, unlawfully and
feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an
eleven (11) year old girl, by then and there dragging her inside a bathroom and repeatedly
kissing her on her checks [sic], without her consent and against her will, to her damage and
prejudice.

CONTRARY TO LAW.[6]

The appellant, assisted by counsel, pleaded not guilty during the arraignment. Joint
trial of all the cases ensued.
In the meantime, Lucelle was undergoing psychiatric treatment at the Philippine
General Hospital. On May 5, 1997, the prosecution presented her as its first witness.
On direct examination, Lucelle testified that she was born on February 19, 1986. [7] In
November 1996, her uncle, the appellant, did something to her. When the prosecution
asked her what happened, Lucelle did not answer. When asked if she wanted to continue
with her testimony, again, she did not respond. The trial was reset to June 2 and 9, 1997.
When trial resumed on June 9, 1997, Lucelle was questioned by the prosecution on direct
examination, but still, she gave no answer. She cried profusely in open court. When asked
by the court if she wanted to proceed with the trial, she remained silent. The trial was
reset anew to July 9 and 14, 1997.
In the meantime, the trial court ordered that Lucelle be subjected to physical and
psychological examinations at the National Center for Mental Health (NCMH). Dr.
Rochelflume Samson examined Lucelle and submitted her Report dated August 29, 1997
with the following remarks and recommendation:

Based on clinical history, mental status examination and psychological evaluation, this patient is
suffering from Post-Traumatic Stress Disorder. This illness is characterized by intense fear and
feeling of helplessness whenever she recalls her traumatic experience of being raped. It causes
her intense psychological distress whenever asked to talk about the rape scene or incident. Thus,
she avoids recollections of the trauma.

At present, she is still manifesting symptoms described above. She would be having difficulties
testifying in court because of this. She requires psychiatric treatment at the Out-Patient Section.[8]
 During the trial on July 14, 1997, Lucelle refused to take the witness stand. The trial
was reset to July 21, 1997.
During the hearing on October 20, 1997, the prosecution presented Lucelle anew to
continue with her testimony on direct examination. She declared that the appellant raped
her in November 1996 and many other times thereafter in her residence at No. 7104 San
Maximo Street, Makati City. Instead of asking questions to elicit the facts and
circumstances before and during the commission of the crimes, the prosecutor asked
Lucelle to identify her signature in her sworn statement[9] and to affirm the truth of its
contents. She did so. The public prosecutor then marked the sworn statement in evidence
as Exhibit H, and then manifested to the court that he had no more questions for the
witness on direct examination.
On clarificatory questions by the court, Lucelle testified that she was born on February
19, 1986. The appellant mounted her, removed her pants, poked a knife at her and
threatened her.[10]
On cross-examination, Lucelle testified that the appellant was her mothers older
brother. In November 1996, she was not enrolled in any school. Her father was working
at a construction firm, the appellant was employed at the Department of Environment and
Sanitation in Makati City, while her grandmother, who lived with her, worked as a maid in
Bel Air Subdivison. Her mother worked for one of her fathers cousins. On re-direct
examination, the prosecution elicited from Lucelle that the appellant raped her in
November 1996 at 11:00 p.m. inside the room of her aunt Marina in her grandmothers
house at No. 7104 San Maximo Street, Olympia, Makati City, and that her aunt, Marina,
and her Ate Sharon were inside the room. When asked where her aunt and Ate Sharon
were when she was being raped in her aunts room, Lucelle did not respond. When asked
why she did not respond to the questions propounded to her during the previous hearings
and why she had been crying in open court, Lucelle replied that she was afraid of her
uncle, the appellant.
In her sworn statement,[11] Lucelle alleged that sometime in November 1996, she was
sleeping in a room in the house. It was about 6 oclock in the evening. She was awakened
when she felt someone kissing her on the cheek. When she opened her eyes, she saw
her uncle, the appellant, armed with a bladed weapon (balisong). He poked the weapon
on the left side of her neck. He warned her that if she told her parents, he would kill her.
He removed her panties, undressed himself and mounted her. He then inserted his penis
into her vagina. She felt pain in her private part and cried. The appellant, thereafter, left
the room. Also during the month of November 1996, the appellant continued kissing her
whenever her parents were out of the house.
In December 1996, Lucelle was in the room when the appellant entered and kissed
her and mashed her private parts. Sometime in February 1997, the appellant again
abused her (sinalbahe) while she was in the same room. It was about 11 oclock in the
evening. He again warned her not to divulge to her parents what he did to her. At 9:00
p.m. on March 2, 1997, Lucelle urinated in the bathroom and when she was about to go
out, the appellant entered, pushed her inside and kissed her on her cheeks several times.
 Celso Serrano, Lucelles father, testified that sometime in November 1996, at dawn,
he was in bed and noticed that the appellant was in the bedroom of his cousin-in-law.
Sometime later, he went to the bathroom. He then heard his wife ask the appellant where
he had come from and the latter replied that he just came from the roof of the house. On
another occasion, one early Sunday morning, he noticed blood stains on Lucelles short
pants. When she declared that she had her monthly period, he gave her P5.00 with which
to buy sanitary napkins. Lucelle refused to accept the money. He suggested that she
wash herself but she just nodded her head. When he asked her why she refused to accept
the money, Lucelle replied that she was afraid to tell him because she might be killed.
Lourdes Serrano testified that she was Lucelles mother. Lucelle was born on
February 19, 1986.[12] She and her husband Celso Serrano and their daughter Lucelle
resided with her mother, Guadalupe Ulit, at No. 7104 San Maximo Street, Olympia, Makati
City. Her sister Marina and the appellant, her brother, also resided in the same house.
The family slept together in the evenings in the sala of the house while Marina slept in
her bedroom. At times, Marina allowed her niece Lucelle to sleep in her bedroom. At
11:00 p.m. on February 19, 1997, Lourdes noticed that Lucelle was not at her side. The
appellant, who usually also slept in the sala, was not there either. Lourdes went to Marinas
bedroom and saw Lucelle in bed (papag), covered with a blanket. Beside her was the
appellant who was wearing a pair of short pants and undershirt. When the appellant saw
Lourdes, he slid down from the bed, went under the papag, and furtively left the room.
When Lourdes removed the blanket, she saw Lucelle lying sideways with her knees up
to her chin (nakabaluktot). Lucelle was trembling with fear. When Lourdes asked Lucelle
what happened, she did not respond. Lourdes left the room and went back to the sala.
She wanted to talk to the appellant but decided against it when she saw him seated in
the sala, playing with his balisong.
Lourdes further testified that at 9:00 p.m. on March 2, 1997, she and her husband
were having dinner when she noticed that Lucelle was nowhere to be found. She looked
for her daughter in the house, but failed to find her. She then asked her cousin Nita if she
had seen Lucelle. Nita replied in the negative. When Lourdes asked Nita if Lucelle was
inside the bathroom, Nita responded that the appellant was using it. Momentarily, Lourdes
saw the appellant emerge from the bathroom. He was in his short pants and his shirt was
on his shoulder. He was perspiring profusely. Lourdes was flabbergasted when she saw
Lucelle come out of the bathroom after the appellant. Lucelle was crying and looked pale.
When Lourdes asked Lucelle why she was crying, she told her mother that she had just
urinated. The appellant later told her sister Lourdes that he did not do anything to Lucelle.
Believing that the appellant had been abusing their daughter, Celso and Lourdes
brought Lucelle on March 5, 1997, to Barangay Chairman Romeo Medina. On their way,
Lucelle adamantly refused to tell her parents what the appellant did to her. However,
when they reached the barangay headquarters, Lucelle told the barangay chairman that
the appellant sexually abused her. Thereafter, Lourdes filed a complaint with the
barangay chairman against the appellant for sexually molesting Lucelle.
Barangay Tanod Fernando David testified that on March 6, 1997, the barangay
chairman ordered him and Barangay Tanod Antonio Echavez to invite and bring the
appellant to the barangay hall. The barangay chairman asked the appellant if he raped
Lucelle and the latter replied that he did. A Sinumpaang Salaysay was prepared in the
Office of the Barangay Chairman in which the appellant admitted that he raped Lucelle in
February 1997, and on March 2, 1997, despite her resistance, and that he threatened to
kill her and her family if she divulged the incidents to her parents.[13] The appellant signed
his statement in the presence of the barangay chairman and the barangay tanods.
From the barangay headquarters, the appellant was brought to the Makati City Police
Headquarters where Celso, Lourdes and Lucelle filed a complaint against him for rape
and acts of laciviousness. SPO4 Lilia Hogar of the Womens Desk Unit took the sworn
statements of Lourdes and Lucelle.[14] She conducted a custodial investigation of the
appellant who was without counsel during which the latter admitted having raped the
victim. SPO4 Hogar also prepared a report on her investigation of the victims complaint. [15]
On July 28, 1997, Dr. Armie M. Soreta-Umil, NBI Medico-Legal Officer, testified that
on March 12, 1997, she conducted genital and vaginal examinations on Lucelle and
submitted Living Case Report No. MG-97-355 which contained the following findings:

GENERAL PHYSICAL EXAMINATION:

Height: 141 cm. Weight: 78 lbs.

Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject.

Breasts, developing, conical, firm. Areolae, light-brown, 2.6 cms. in diameter. Nipples,
light-brown, protruding, 0.8 cm. in diameter.
No extragenital physical injuries noted.

GENERAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora, coaptated. Fourchette,
lax. Vestibular mucosa, pinkish. Hymen, tall, thick, intact, distensible. Hymenal orifice, admits a
tube 2.5 cms. in diameter. Vaginal walls, lax. Rugosities, shallow.

CONCLUSIONS
1.) No evident sign of extragenital physical injuries noted on the body of the subject at
the time of examination.
2.) Hymen, intact but distensible, and its orifice wide (2.5 cms. in diameter) as to allow complete
penetration by an average-sized adult Filipino male organ in full erection without producing any
genital injury.[16]

When the prosecution offered in evidence the appellants Sinumpaang

Salaysay before the barangay chairman[17] as part of the testimony of Barangay Tanod
Fernando David, the appellant objected to its admission on the ground that the appellant
was not assisted by counsel and that, he was forced and coerced into signing the same.
Nevertheless, the trial court admitted the statement as part of Davids testimony. The
appellants counsel, likewise, objected to the admissibility of Lucelles sworn statement on
the ground that she was incompetent to give the same because of her mental illness. The
trial court admitted the sworn statement of Lucelle in evidence as part of her testimony.
 After the prosecution had rested its case, the trial court reset the hearing to November
5, 1997 for the appellant to adduce his evidence. When the case was called for trial on
that date, his counsel manifested to the court that the appellant was changing his plea in
Criminal Cases Nos. 97-385 and 97-387 from not guilty to guilty. He also manifested that
he would no longer adduce any evidence in his defense in Criminal Cases Nos. 97-386
and 97-388 because the prosecution failed to prove his guilt beyond reasonable doubt for
the crimes charged therein. The trial court suspended the proceedings and gave the
appellant forty-five minutes to confer with his counsel. When trial resumed, the appellant
reiterated his earlier manifestation. When told by the court that he could be sentenced to
death for the rape charges, the appellant stood pat on his decision to plead guilty in
Criminal Cases Nos. 97-385 and 97-387, and to no longer present any evidence in his
defense in the other two cases. The appellant was re-arraigned in Criminal Cases Nos.
97-385 and 97-387 with the assistance of the same counsel and entered his plea of guilty
to the charges.
On December 15, 1997, the trial court rendered judgment convicting the appellant of
all the crimes charged. The decretal portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Case Nos. 97-385 and 97-386, for rape, the prosecution has proven beyond
reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in the
two counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code,
as amended. He is hereby declare[d] CONVICTED in each of the cases. Accordingly he is
sentenced to suffer the supreme penalty [of] DEATH in each of the two cases; and indemnify the
victim LUCELLE SERRANO, in the amount of P50,000 as moral damages for each of the cases;

2. In Criminal Case Nos. 97-387 and 97-388, for acts of lasciviousness, the prosecution has
proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as
principal in two counts of acts of lasciviousness defined under Article 336 of the Revised Penal
Code and penalized under Section 5(b) of R.A. 7610. He is hereby declared CONVICTED in
each of the two cases; and, accordingly, he is sentenced to suffer in each of the cases an
indeterminate prison term from eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal in its medium period, as maximum; and, indemnify the victim,
LUCELLE SERRANO, in the amount of P20,000 as moral damages for each of the cases.

SO ORDERED.[18]

The trial court declared that even prescinding from the appellants plea of guilty, the
prosecutor adduced proof beyond reasonable doubt of the guilt of the appellant for
qualified rape in Criminal Cases Nos. 97-385 and 97-386. The trial court ruled that
although Lucelle did not testify on the contents of her sworn statement[19] the same were
admissible in evidence as part of the res gestae.
The appellant did not appeal from the decision in Criminal Cases Nos. 97-387 and
97-388. In view of the trial courts imposition of the death penalty on the appellant in
Criminal Cases Nos. 97-385 and 97-386, the said cases were brought to this Court on
automatic appeal.
The appellant assails the decision of the trial court with the lone assignment of error,
to wit:

THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED FELICIANO ULIT WITH
A DEATH PENALTY DESPITE HIS ADMISSION OF GUILT.[20]

The appellant does not contest his conviction for rape in Criminal Cases Nos. 97-385
and 97-386, and the validity of the proceedings in the said cases in the trial court. He
pleads, however, that he be spared the death penalty. He asserts that he was so
remorseful for the crimes he committed and that he pleaded guilty in Criminal Cases Nos.
97-385 and 97-387; he no longer presented any evidence in Criminal Case No. 97-388
so that the proceedings before the court would be shortened and simplified. Nevertheless,
the appeal in a criminal case is a review de novo and the court is not limited to the
assigned errors.[21] An appeal thus opens the whole case for review, and the appellate
tribunal may consider and correct errors though unassigned and even reverse the
decision of the trial court on the grounds other than those the parties raised as errors. [22]

Appellants Plea of Guilty in

Criminal Case No. 97-385
was Imprudently Made.

In Criminal Case No. 97-385, the appellant was charged with qualified rape, i.e., the
rape of his niece, who was a minor, punishable by death under Article 335 of the Revised
Penal Code, as amended by Republic Act No. 7659. Undoubtedly, the appellant was
charged with a capital offense. When the appellant informed the trial court of his decision
to change his plea of not guilty to guilty, it behooved the trial court to conduct a searching
inquiry into the voluntariness and full comprehension of the consequences of his plea as
mandated by Section 6, Rule 116 of the Revised Rules of Criminal Procedure. In People
vs. Camay,[23] this Court enumerated the following duties of the trial court under the rule:

1. The court must conduct a searching inquiry into the voluntariness and full comprehension [by
the accused] of the consequences of his plea;

2. The court must require the prosecution to present evidence to prove the guilt of the accused
and precise degree of his culpability; and

3. The court must require the prosecution to present evidence in his behalf and allow him to do
so if he desires.[24]

The raison detre for the rule is that the courts must proceed with extreme care where
the imposable penalty is death, considering that the execution of such sentence is
irrevocable. Experience has shown that even innocent persons have at times pleaded
guilty. Improvident pleas of guilty to a capital offense on the part of the accused must be
averted since by admitting his guilt before the trial court, the accused would forfeit his life
and liberty without having fully understood the meaning, significance and the dire
consequences of his plea.[25]
There is no hard and fast rule as to how the trial judge may conduct a searching
inquiry. It has been held, however, that the focus of the inquiry must be on the
voluntariness of the plea and the full or complete comprehension by the accused of his
plea of guilty so that it can truly be said that it is based on a free and informed judgment.
In People vs. Aranzado,[26] we formulated the following guidelines as to how the trial court
may conduct its searching inquiry:
(1) Ascertain from the accused himself (a) how he was brought into the custody of the
law; (b) whether he had the assistance of a competent counsel during the custodial
and preliminary investigations; and (c) under what conditions he was detained and
interrogated during the investigations. These the court shall do in order to rule out
the possibility that the accused has been coerced or placed under a state of duress
either by actual threats of physical harm coming from malevolent or avenging
quarters.
(2) Ask the defense counsel a series of questions as to whether he had conferred with,
and completely explained to, the accused the meaning and consequences of a plea
of guilty.
(3) Elicit information about the personality profile of the accused, such as his age, socio-
economic status, and educational background, which may serve as a trustworthy
index of his capacity to give a free and informed plea of guilty.
(4) Inform the accused the exact length of imprisonment or nature of the penalty under
the law and the certainty that he will serve such sentence. Not infrequently indeed
an accused pleads guilty in the hope of a lenient treatment or upon bad advice or
because of promises of the authorities or parties of a lighter penalty should he admit
guilt or express remorse. It is the duty of the judge to see to it that the accused does
not labor under these mistaken impressions.
(5) Require the accused to fully narrate the incident that spawned the charges against
him or make him reenact the manner in which he perpetrated the crime, or cause
him to supply missing details or significance.[27]
In People vs. Ostia,[28] we held that the trial court is also required to probe thoroughly
into the reasons or motivations, as well as the facts and circumstances for a change of
plea of the accused and his comprehension of his plea; explain to him the elements of
the crime for which he is charged as well as the nature and effect of any modifying
circumstances attendant to the commission of the offense, inclusive of mitigating and
aggravating circumstances, as well as the qualifying and special qualifying
circumstances, and inform him of the imposable penalty and his civil liabilities for the
crime for which he would plead guilty to.[29]
In this case, the trial court failed to make a searching inquiry into the appellants
voluntariness and full comprehension of his plea of guilty. This is evident by the transcript
of stenographic notes taken on November 5, 1998:
ATTY. MANALO

Your Honor, at todays reception of defense evidence, accused informed this representation that
he will no longer present evidence and instead willing to change his plea from not guilty to that
of guilty. This accuseds representation is therefore praying that he be allowed to change his plea
from that of not guilty to guilty.

COURT

You better confer with your client and explain to him the consequences of his intended change of
plea from not guilty to that of guilty.

ATTY. MANALO

Yes, Your Honor.

COURT (to the accused)

Is your counsels manifestation true, that you would like to change your plea from not guilty to
that of guilty and that you are no longer presenting evidence in Criminal Cases Nos. 97-386 and
97-388?

ACCUSED

Yes, Your Honor.

COURT
(to the accused)

You talk with your lawyer and think twice before asking the court to change your plea of not
guilty to that of guilty. The Court will call your case again.

COURT
(to the accused)

Mr. Ulit, earlier your counsel informed the court that you would like to change your plea from
not guilty to that of guilty, in Criminal Case No. 97-385, for rape and Criminal Case No. 97-387,
for Acts of Lasciviousness, do you affirm the manifestation of your counsel?

ACCUSED

Yes, Your Honor.

COURT
(to accused)
Do you know that you are accused here for the crime of rape, a capital offense which carries with
it a capital punishment?

ACCUSED

Yes, Your Honor.

COURT
(to accused)

Despite your knowledge that you are charged with a capital offense which carries with it a
capital penalty you still insists that you are pleading guilty?

ACCUSED

Yes, Your Honor.

COURT (to accused)

Was there anyone who forced you to change your plea of not guilty to that of guilty?

ACCUSED

None, Your Honor.

COURT
(to accused)

Do you know that by pleading guilty you will be sentenced in accordance with [what] the law
provides?

ACCUSED

Yes, Your Honor.

COURT

(to accused)

Do you know that the penalty provided for by law is death penalty because the Information states
that the victim is eleven years old and your niece and that you used a deadly weapon in the
commission of the rape?

ACCUSED

Yes, Your Honor. I am willing to plead guilty.

COURT

Alright, arraign the accused.[30]

First. The trial court did not ask the appellant his reasons for changing his plea, from
not guilty to that of guilty, and the cogent circumstances that led him to decide to do so.
Second. It appears in the Informations filed by the Public Prosecutor that the appellant
opted not to avail himself of his right to a regular preliminary investigation and refused to
execute a waiver under Article 125 of the Revised Penal Code. The records also show
that the appellant executed a Sinumpaang Salaysay while detained at the barangay hall
where he confessed to having raped the victim in February 1997 and March 2, 1997.
However, the trial court did not ask the appellant whether he was assisted by counsel
when he was brought to the Office of the Public Prosecutor for inquest investigation.
Neither did the court a quo inquire about the circumstances and the appellants reasons
for refusing to execute the said waiver.
The records show that when the prosecution offered the appellants Sinumpaang
Salaysay in evidence to prove that he confessed to having raped the victim in February
1997 and March 2, 1997, the appellant objected thereto on the ground that he was not
assisted by counsel and that he was coerced into signing the same.
Third. The trial court also failed to ascertain from the appellant whether he was
assisted by counsel when he executed his Sinumpaang Salaysay while detained at the
barangay hall; and, if he was not so assisted by counsel, whether he had waived his right
thereto, before and when he signed his Sinumpaang Salaysay.
Fourth. The trial court failed to ask the appellant why he was pleading guilty to a rape
committed in November 1996, when in his Sinumpaang Salaysay,[31] he confessed to
having raped the victim only in February 1997 and March 2, 1997. The appellant did not
admit having raped her in November 1996 as alleged in the Information in Criminal Case
No. 97-385. The trial court did not even inquire from the appellant who prepared and
typed his Sinumpaang Salaysay and if the contents of his statement were explained to
him before he signed the same.
Fifth. The trial court did not explain the following to the appellant, in plain and simple
terms so as to be understood by him: (a) the elements of the crime of qualified rape; (b)
the circumstances of relationship and the minority of the victim; and (c) that his plea of
guilty to qualified rape would not mitigate the penalty for the crime in light of Article 63 of
the Revised Penal Code.
Sixth. It was not explained to the appellant that if convicted of qualified rape, he would
be civilly liable to the victim in the amount of P50,000 as moral damages and P75,000 as
civil indemnity ex delicto.
Seventh. Neither did the trial court inquire from the appellants counsel whether the
meaning and the consequences of a guilty plea were explained to the appellant in a
language or dialect known to and understood by him.
 Eight. The trial court failed to delve into and ascertain from the appellant his age,
educational attainment and socio-economic status.
Ninth. The trial court failed to ask the appellant to narrate the facts and circumstances
surrounding the incident of qualified rape as charged in Criminal Case No. 97-385.
Tenth. The appellant was not asked if he desired to adduce evidence in Criminal
Case No. 97-385 in spite of his plea of guilty.
As a rule, this Court has set aside convictions based on pleas of guilty in capital
offenses because of the improvidence thereof, and when such plea is the sole basis of
the condemnatory judgment.[32]However, where the trial court receives, independently of
his plea of guilty, evidence to determine whether the accused committed the crimes
charged and the precise degree of his criminal culpability therefor, he may still be
convicted if there is ample proof on record, not contingent on the plea of guilty, on which
to predicate conviction.[33]
In this case, the prosecution had already rested its case when the appellant decided
to change his plea. In fact, the trial court granted the prosecutions motion that the
evidence it had presented be considered proof of the degree of culpability of the appellant.
It is, thus, incumbent upon this Court to determine whether the evidence adduced by the
prosecution in Criminal Case No. 97-385 is sufficient to establish beyond reasonable
doubt the appellants guilt for qualified rape.
In determining the guilt of the accused in rape cases, the Court is guided by the
following considerations: (a) that an accusation of rape can be made with facility; it is
difficult to prove, but more difficult for the person accused, though innocent, to disprove;
(b) that in view of the intrinsic nature of the crime which usually involves two persons, the
testimony of the complainant must be scrutinized with extreme caution; and (c) that the
evidence for the prosecution must stand or fall on its own merits and cannot be allowed
to draw strength from the weakness of the evidence of the defense. [34] It, likewise, bears
stressing that in all criminal prosecutions, without regard to the nature of the defense
which the accused may raise, the burden of proof remains at all times upon the
prosecution to establish his guilt beyond reasonable doubt.[35]

The Prosecution Adduced Proof

of the Appellants Guilt Beyond
Reasonable Doubt of the Crime
of Rape in Criminal Case
No. 97-385

We have reviewed the evidence on record and we are convinced that the prosecution
adduced proof beyond reasonable doubt that the appellant raped the victim in November
1996. The victim declared in her sworn statement, on direct examination and her
testimony on clarificatory questions made by the trial court, that indeed, the appellant
raped her in November 1996. Quoted hereunder is the testimony of Lucelle on direct and
on re-direct examination:
Fiscal
Q So, matapos mong ituro ang tiyuhin mo, ano ang ginawa niya sa iyo?
A Ginahasa niya ako.
Q Ilang ulit kang ginahasa?
A Marami po.
Q Kailan ka ginahasa ng tiyuhin mo?
A November po.
Q 19?
A 1996, po.
Q Saan ka ginahasa?
A 7104 San Maximo St., Makati City, po.[36]
Fiscal
Q Humigit-kumulang, anong oras ng gabi nang gahasain ka ng Tito Ely mo noong
Nobyembre 1996?
A Alas onse po ng gabi.
Q Samakatuwid, hindi na siya nagtratrabaho, wala na siya sa trabaho?
A Wala na po.
Q Saang lugar ka ginahasa?
A Sa 7104 San Maximo St.
Q Sa loob ba ng bahay?
A Opo.
Q Saang parte ng bahay ka ginahasa ng Tito mo?
A Sa kuwarto po.[37]
...
COURT
Q Noong Nobyembre 1996, ayon sa iyo ay ginahasa ka ng iyong Tito. Saan ka ginahasa
ng Tito mo?
A Sa 7104 San Maximo St., po.
Q Doon din sa bahay na iyong tinitirhan?
A Opo.[38]
In her Sworn Statement,[39] Lucelle narrated in detail how the appellant ravished her:
06. T: Kailan ka unang senalbahe ng iyong TITO ELY?
S: Noon pong Nobyembre 1996 hindi ko na po matandaan ang petsa, mga bandang
6:00 ng gabi po nang ako ay natutulog sa loob po ng kuwarto ay nagising na lang
 po ako nang maramdaman ko na may humahalik sa aking pisngi, at nang ako po ay
magising ay nakita ko po si TITO ELY na may hawak na balisong na humigit
kumulang po sa 10 pulgada ang haba na nakatutok sa aking kaliwang leeg habang
humahalik po sa aking pisngi at ang sabi ay kung ako daw po ay magsusumbong
sa aking magulang ay papatayin po niya (TITO ELY) ako. Pagkatapos po ay
hinubaran po ako ng panty at naghubad na rin po si TITO ELY ng kanyang short
pants at pumatong na po sa akin. Ipinasok po ni TITO ELY and kanyang (TITO ELY)
ari sa aking PEPE at ako po ay nasaktan at umiyak na lang po ako at nang makaraos
po si TITO ELY ay umalis na lang .[40]
We do not agree with the ruling of the trial court that the contents of the sworn
statement of Lucelle are hearsay, simply because she did not testify thereon and merely
identified her signatures therein. By hearsay evidence is meant that kind of evidence
which does not derive its value solely from the credence to be attributed to the witness
herself but rests solely in part on the veracity and competence of some persons from
whom the witness has received the information.[41] It signifies all evidence which is not
founded upon the personal knowledge of the witness from whom it is elicited, and which,
consequently, is not subject to cross-examination.[42] The basis for the exclusion appears
to lie in the fact that such testimony is not subject to the test which can ordinarily be
applied for the ascertainment of truth of testimony, since the declarant is not present and
available for cross-examination. In criminal cases, the admission of hearsay evidence
would be a violation of the constitutional provision while the accused shall enjoy the right
to confront and cross-examine the witness testifying against him.[43]Generally, the
affidavits of persons who are not presented to testify on the truth of the contents thereof
are hearsay evidence.[44] Such affidavit must be formally offered in evidence and accepted
by the court; otherwise, it shall not be considered by the court for the simple reason that
the court shall consider such evidence formally offered and accepted.[45]
In this case, Lucelle testified on and affirmed the truth of the contents of her sworn
statement which she herself had given. As gleaned from the said statement, she narrated
how and when the appellant raped and subjected her to lascivious acts. She was cross-
examined by the appellants counsel and answered the trial courts clarificatory questions.
The prosecution offered her sworn statement as part of her testimony and the court
admitted the same for the said purpose without objection on the part of the appellant.

The Prosecution Proved Beyond

Reasonable Doubt that the Appellant
Raped the Victim in February 1997

The trial court convicted the appellant of rape in Criminal Case No. 97-386 on the
basis of Lucelles sworn statement,[46] the testimony of her mother, Lourdes Serrano, the
appellants statement[47] executed in the Barangay Chairmans Office, and the testimony of
Dr. Armie Soreta-Umil. We agree with the trial courts findings and conclusion.
First. In Lucelles sworn statement,[48] she declared that the appellant subjected her to
sexual abuse.
 Second. Lourdes saw Lucelle in bed (papag) in Marinas room, covered with a blanket
beside the appellant who was wearing a pair of short pants and undershirt. He slid down
from the papag, went under the bed and slipped outside. When Lourdes removed the
blanket, she saw Lucelle trembling with fear, lying sidewise, her knees near her chin
(nakabaluktot).
Third. The appellant admitted to the barangay chairman on March 5, 1997, that he
raped Lucelle in February 1997:

Na, noong isang araw ng PEBRERO 1997, sa loob ng kuwarto ng aking kapatid na
babae, pumasok ako na nadatnang nakahiga si LUCILLE ULIT sa isang papag na
anyong natutulog. Lumapit ako sa kanya at pinaghihipuan sa maseselang parte ng
kanyang katawan at nang siyay magising tinakot ko siyang huwag sisigaw, habang
siya ay aking hinuhubaran ng Short na kasama pati ang kanyang panty.
Nagpupumiglas siya habang ako ay nakadagan sa kanya na noon din ay hinuhubad
ko ang aking brief. Pinaghahalikan ko po siya habang siya ay nagpupumiglas at
umiiyak at noon din ay aking pinasok ang aking ari sa kanyang ari. Umiiyak siya
habang ang aking ari ay labas masok sa kanyang ari. Nang ako ay makaraos ay
tinakot ko siyang huwag magsusumbog sa kanyang mga magulang. [49]

Although the appellant was not assisted by counsel at the time he gave his statement
to the barangay chairman and when he signed the same, it is still admissible in evidence
against him because he was not under arrest nor under custodial investigation when he
gave his statement.[50]
The exclusionary rule is premised on the presumption that the defendant is thrust into
an unfamiliar atmosphere and runs through menacing police interrogation procedures
where the potentiality for compulsion, physical and psychological, is forcefully apparent.
As intended by the 1971 Constitutional Convention, this covers investigation conducted
by police authorities which will include investigations conducted by the municipal police,
the PC and the NBI and such other police agencies in our government. [51] The barangay
chairman[52] is not deemed a law enforcement officer for purposes of applying Section
12(1) and (3) of Article III of the Constitution. Under these circumstances, it cannot be
successfully claimed that the appellants statement before the barangay chairman is
inadmissible.

The Sufficiency of Evidence on

Lucelles Relationship with the
Appellant, her Minority, and the
Propriety of the Imposition of
the Death Penalty

The appellants conviction for two counts of rape having been duly established by the
prosecution, we now come to the question of the penalty to be meted upon him.
 Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act
No. 7659, which was the law in effect at the time of the commission of the subject rapes,
provides in part:

ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge
of a woman under any of the following circumstances.

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death.

...

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the parent of the victim.

...

The qualifying circumstances of minority and relationship must concur. More

importantly, they must be both alleged and proved, in order to qualify the crime of rape
and warrant the imposition of the death penalty.[53] In addition to the requirement that the
qualifying and aggravating circumstance must be specifically alleged in the information,
it must be established with certainty that the victim was below eighteen (18) years of age
or that she was a minor at the time of the commission of the crime. It must be stressed
that the severity of the death penalty, especially its irreversible and final nature once
carried out, makes the decision-making process in capital offenses aptly subject to the
most exacting rules of procedure and evidence.[54]
The relationship between the appellant and the victim has been adequately
established. The allegations in both Informations that the appellant is the victims uncle, a
relative by consanguinity within the third civil degree is specific enough to satisfy the
special qualifying circumstance of relationship.
In People v. Ferolino,[55] we said
In this case the allegation that FERLYN is ANTONIO's niece is not specific enough to satisfy
the special qualifying circumstances of relationship. If the offender is merely a relation - not a
parent, ascendant, step-parent, or guardian or common law spouse of the mother of the victim - it
must be alleged in the information that he is a relative by consanguinity or affinity [as the case
may be] within the third civil degree. That relationship by consanguinity or affinity was not
alleged in the informations in these cases. Even if it was, it was still necessary to further allege
that such relationship was within the third civil degree.[56]

The prosecutions evidence has also shown that the appellant is the victims uncle,
being the older brother of the victims mother, a fact that the appellant himself admitted.
The same cannot, however, be said with respect to the age of the victim. In People
v. Pruna,[57] the Court, after noting the divergent rulings on proof of age of the victim in
rape cases, set out certain guidelines in appreciating age, either as an element of the
crime or as qualifying circumstance:

1. The best evidence to prove the age of the offended party is an original or certified
true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as

baptismal certificate and school records which show the date of birth of the victim
would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the
victim's mother or a member of the family either by affinity or consanguinity who
is qualified to testify on matters respecting pedigree such as the exact age or date
of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be

proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be

proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be

proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of

the victim's mother or relatives concerning the victim's age, the complainant's
testimony will suffice provided that it is expressly and clearly admitted by the
accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not
be taken against him.
 6. The trial court should always make a categorical finding as to the age of the victim.[58]

In the present case, no birth certificate or any similar authentic document was
presented and offered in evidence to prove Lucelles age. While the victim testified that
she was born on February 19, 1986, therefore 11 years old when the appellant twice
raped her, the same will not suffice as the appellant did not expressly and clearly admit
the same as required by Pruna. The corroboration of Lucelles mother as to her age is not
sufficient either, as there is no evidence that the said certificate of birth was lost or
destroyed or was unavailable without the fault of the prosecution. The fact that there was
no objection from the defense regarding the victims age cannot be taken against the
appellant since it is the prosecution that has the burden of proving the same. Moreover,
the trial court did not make a categorical finding of the victims minority, another
requirement mandated by Pruna.
Another issue that needs to be settled is the third paragraph of Article 335 of the
Revised Penal Code, as amended, which provides that, [w]henever rape is committed
with the use of a deadly weapon or by two or more persons, the imposable penalty shall
be reclusion perpetua to death.
The evidence on record shows that the appellant raped Lucelle with the use of a
deadly weapon in both rape incidents as alleged in both informations, and under Article
335 of the Revised Penal Code, as amended by Republic Act No. 7659, the imposable
penalty for the crime is reclusion perpetua to death.
In the determination of whether the death penalty should be imposed on the appellant,
the presence of an aggravating circumstance in the commission of the crime is crucial. In
the cases at bar, although the relationship of uncle and niece between the appellant and
the victim has been duly proven, the alternative circumstance of relationship under Article
15 of the Revised Penal Code cannot be appreciated as an aggravating circumstance
against the appellant. While it is true that the alternative circumstance of relationship is
always aggravating in crimes against chastity, regardless of whether the offender is a
relative of a higher or lower degree of the offended party, it is only taken into consideration
under Article 15 of the Revised Penal Code when the offended party is the spouse,
ascendant, descendant, legitimate, natural or adopted brother or sister, or relative by
affinity in the same degree of the offender. The relationship of uncle and niece is not
covered by any of the relationships mentioned.[59]
Hence, for the prosecutions failure to prove the age of the victim by any means set
forth in Pruna, and considering that the relationship of uncle and niece is not covered by
any of the relationships mentioned in Article 15 of the Revised Penal Code, as amended,
the appellant can only be convicted of rape in its aggravated form, the imposable penalty
for which is reclusion perpetua to death.
There being no modifying circumstances attendant to the commission of the crimes,
the appellant should be sentenced to suffer reclusion perpetua for each count of rape,
conformably to Article 69 of the Revised Penal Code.
The victim is entitled to moral damages without need of proof other than the fact of
the rape itself because it is assumed that the victim has suffered moral injuries entitling
her to such an award.[60]We find the trial courts award of P50,000 as moral damages to
the victim in each rape to be in order.
However, the trial court erred in not awarding civil indemnity to the victim in each
case, the same being mandatory upon the finding of the fact of rape. [61] Thus, this Court
awards the victim the sum of P50,000 as civil indemnity for each count of rape.
In addition to this, appellant is ordered to pay the victim P25,000 as exemplary
damages, the qualifying aggravating circumstance of use of a deadly weapon having
attended the commission of the crime.[62]
WHEREFORE, the Decision of the Regional Trial Court of Makati City, Branch 62, in
Criminal Cases Nos. 97-385 to 97-388 is AFFIRMED with MODIFICATION. The appellant
Feliciano Ulit y Tampoy is found GUILTY beyond reasonable doubt of two counts of rape
in Criminal Cases Nos. 97-385 and 97-386, and in each case, is hereby sentenced to
suffer the penalty of reclusion perpetua and ordered to pay the victim, Lucelle
Serrano, P50,000 as moral damages; P50,000 as civil indemnity; and P25,000 as
exemplary damages. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga,
JJ., concur.

[G.R. No. 147201. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. BENJAMIN

SAYABOC y SEGUBA, PATRICIO ESCORPISO y VALDEZ,
MARLON BUENVIAJE y PINEDA, and MIGUEL
BUENVIAJE y FLORES, appellants.

DECISION
DAVIDE, JR., C.J.:

Before us is the decision of 9 November 2000 of the Regional Trial Court of

Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 2912 finding
appellant Benjamin Sayaboc guilty beyond reasonable doubt of the crime of
murder and sentencing him to suffer the penalty of death; and (2) finding
appellant Marlon Buenviaje guilty as principal and appellants Miguel Buenviaje
and Patricio Escorpiso guilty as accomplices in the crime of homicide.
 On 17 April 1995, an information was filed charging Benjamin Sayaboc,
Patricio Escorpiso, Marlon Buenviaje, and Miguel Buenviaje with murder, the
accusatory portion of which reads as follows:

That on or about December 2, 1994, in the Municipality of Solano, Province of Nueva

Vizcaya, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating together and mutually helping each other,
and who were then armed with a firearm, did then and there willfully, unlawfully and
feloniously with evident premeditation, by means of treachery and with intent to kill,
attack, assault and use personal violence upon the person of Joseph Galam y Antonio,
by then and there suddenly firing at the said Joseph Galam y Antonio who has not
given any provocation, thereby inflicting upon him mortal wounds which were the
direct and immediate cause of his death thereafter, to the damage and prejudice of his
heirs.
[1]

At their arraignment, appellants Benjamin Sayaboc, Patricio Escorpiso, and Miguel

Buenviaje pleaded not guilty to the charge of murder. Marlon Buenviaje, who was
arrested only on 10 July 1997, also pleaded not guilty upon his arraignment.
The evidence for the prosecution discloses as follows:
At about 9:00 a.m. of 13 August 1994, while prosecution witness Abel
Ramos was at a vulcanizing shop in Barangay Quezon, Solano, Nueva
Vizcaya, he heard one Tessie Pawid screaming from across the road: Enough,
enough, enough! In front of her were Marlon Buenviaje and Joseph Galam, who
were engaged in a fisticuff. By the time Pawid was able to subdue the two men
by standing between them and embracing Galam, Buenviajes face was already
bloodied and Galams shirt collar torn. As Buenviaje was leaving, he turned to
face Galam and, with his right index finger making a slicing motion across his
throat, shouted: Putang-ina mo Joseph, may araw ka rin, papatayin kita. Galam
retorted, Gago, traydor, gold digger, halika.Buenviaje did not respond anymore
and left on a tricycle.
[2]

More than three months thereafter, or on 2 December 1994, Galam was

shot to death at the Rooftop Disco and Lodging House (Rooftop, for short)
owned by him, which was located at Barangay Quezon, Solano, Nueva
Vizcaya.
According to a waitress of the Rooftop Diana Grace Sanchez Jaramillo,
earlier or at 3:00 p.m. of that fateful day, a man whom she later identified as
Benjamin Sayaboc rang the doorbell of the Rooftop and asked whether a
woman wearing a green t-shirt had checked in.She answered in the
negative. As she was about to leave, Sayaboc asked another question, What
time does your bosing arrive? She replied that she did not know. She then went
to the second floor of the establishment.[3]

Tessie Pilar, the caretaker of the lodging house, narrated that between 5:30
and 5:45 p.m. Sayaboc, who was still seated in the swing beside the information
counter with his hands tucked in the pocket of his jacket, ordered a bottle of
beer. She then went up to the kitchen, but was delayed in delivering the beer
because she gave some instructions to the dishwasher. When she gave the
beer to Benjamin, the latter was angry and asked why it took her so long to
bring the beer. Thereafter, she went upstairs and chatted with Jaramillo and
some other waitresses. Then the vehicle of Joseph Galam arrived. [4]

Shortly thereafter, they heard four gunbursts emanating from the ground
floor of the building. When Jaramillo looked down, she saw Sayaboc shooting
Galam, causing the latter to fall to the ground face up, with blood spurting out
of his chest. Sayaboc forthwith ran out and disappeared into the darkness. [5]

Meanwhile, at about 5:30 p.m. of that fateful day, as Joselito Parungao,

Chief Barangay Tanod of Barangay Quezon, Solano, Nueva Vizcaya, was on
his way to the Kowloon Restaurant located along the national road, he saw
Marlon Buenviaje with his father Miguel Buenviaje and Patricio Escorpiso. The
three were aboard a tricycle parked in a vacant lot between the Rooftop and
Diego Theater. The younger Buenviaje was on the drivers seat, while the older
Buenviaje and Escorpiso were inside the sidecar. Parungao ordered pancit
bihon. While he was waiting outside of the restaurant, he noticed that the
tricycle was still parked in the vacant lot, and the three occupants thereof were
talking with each other. After getting his order and while he was getting out of
the restaurant, Parungao heard four gunshots coming from behind the Rooftop
building. He thereafter saw a person, whom he later came to know as Benjamin
Sayaboc, walking briskly toward the tricycle and then rode behind Marlon
Buenviaje.Afterwards, the tricycle sped off towards the center of the town. [6]

The employees of the Rooftop lost no time in bringing Galam to a hospital,

where he was declared dead on arrival. Dr. Antonio R. Labasan, who
[7]

conducted an autopsy on his cadaver, found four gunshot wounds and opined
that the first two of which were inflicted from behind and the last two were
frontal.
[8]

That evening, SPO4 Roberto Cagungao, Chief Investigator of the Solano

Police Station, assigned some investigators to go to the scene of the crime to
gather evidence. At about 10:00 to 11:00 p.m., he and Lt. Alejandro Parungao
brought Pilar and Jaramillo to the Philippine National Police (PNP) Crime
Laboratory in Camp Crame, Quezon City. Pilar and Jaramillo were interviewed
by the cartographic artist, who thereafter drew a cartographic sketch showing
the face of the assailant. [9]

On 8 March 1995, Pilar and Jaramillo identified Benjamin Sayaboc at the

PNP Provincial Headquarters in Bayombong as the gunman who shot Joseph
Galam to death. [10]

On the afternoon of that day, SPO4 Cagungao was called to the Provincial Command
Headquarters in Bayombong, Nueva Vizcaya, to take the statement of Sayaboc. When
he arrived at the headquarters he saw Sayaboc being interviewed by reporters inside the
investigation room. He then brought Sayaboc to the inner part of the room. Before taking
the statement of Sayaboc, he advised the latter of his constitutional rights. Then Sayaboc
told him that he wanted to have a counsel of his own choice. But since Sayaboc could not
name one, Cagungao asked the police officers to get a lawyer. Half an hour later, the
police officers brought Atty. Rodolfo Cornejo of the PAO, who then conferred with
Sayaboc for a while. After Cagungao heard Sayaboc say, okay, he continued the
investigation, during which Atty. Cornejo remained silent the entire time. However,
Cagungao would stop questioning Sayaboc whenever Atty. Cornejo would leave to go to
the comfort room.[11] That night Sayaboc executed an extrajudicial confession [12] in Ilocano
dialect. He therein confessed to killing Joseph Galam at the behest of Marlon Buenviaje
for the sum of P100,000. He likewise implicated Miguel Buenviaje and Patricio Escorpiso.
The confession was also signed by Atty. Cornejo and attested to by one Fiscal Melvin
Tiongson.
At the hearing on 22 June 1999, after the prosecution rested its case,
1counsel for accused Mike Buenviaje, Marlon Buenviaje and Patricio Escorpiso
manifested that he be given fifteen days to file a motion for leave to admit
demurrer to the evidence. The trial court acceded. But instead of filing such
[13]

motion first, he filed a Demurrer to Evidence on 12 July 1999. The motion for
[14]

leave to file the pleading was filed the next day only. [15]

The trial court denied the demurrer to evidence in an order issued on 16 [16]

August 1999. Further, it ruled that because of they did not seek nor were
granted express leave of court prior to their filing of the demurrer to evidence,
the Buenviajes and Escorpiso were deemed to have submitted their case for
judgment in accordance with Section 15, Rule 119 of the Rules of Court. Thus,
only Sayaboc was allowed to proceed with the presentation of his defense.
Sayaboc denied having committed the crime and proffered the defense of alibi. He
also flatly denied having met Atty. Cornejo or having been informed of his rights. He
testified to having been beaten by six or seven police officers in the investigating room,
who then coerced him to confess to having killed Galam. [17] Apart from his testimony, he
submitted a handwritten statement dated 20 March 1995 [18] and an affidavit dated 10 April
1995[19] to support his claim of police brutality and retraction of his confession.
In its decision dated 9 November 2000, the trial court found Benjamin
[20]

Sayaboc guilty of the crime of murder, with treachery as the qualifying

circumstance and craft and price or reward as aggravating circumstances. It
then sentenced him to the maximum penalty of death. As for Marlon Buenviaje,
Miguel Buenviaje, and Patricio Escorpiso, the court held that the treachery
employed by Sayaboc could not be taken against them and, therefore, declared
them guilty of the crime of homicide only, with the first as principal and the two
others as accomplices. Each was sentenced to suffer an indeterminate penalty
and to pay solidarily with Sayaboc the amounts of P115,000 as actual
damages; P25,000 as moral damages; and the costs of the suit in favor of the
heirs of Joseph Galam.
From this decision, the appellants raise the following errors:
I

THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT SAYABOC

GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND
SENTENCING HIM TO DEATH.

II

ASSUMING ARGUENDO THAT ACCUSED SAYABOC IS GUILTY, HE IS

GUILTY ONLY OF THE CRIME OF HOMICIDE.

III

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE

EXTRAJUDICIAL CONFESSION OF ACCUSED SAYABOC WHEN IT WAS
TAKEN WITHOUT THE ASSISTANCE OF A COMPETENT AND
INDEPENDENT COUNSEL NOR BY AN EFFECTIVE AND VIGILANT
COUNSEL.

IV

THE TRIAL COURT ERRED IN FINDING FATHER AND SON BUENVIAJE

AND ACCUSED ESCORPISO LIKEWISE GUILTY WHEN IT DENIED THEM
THEIR CONSTITUTIONAL RIGHT TO BE HEARD BY THEMSELVES AND
COUNSEL AFTER THEY FILED THEIR DEMURRER TO EVIDENCE
ALLEGEDLY WITHOUT FIRST SEEKING EXPRESS LEAVE OF COURT.

In the first and second assigned errors, the appellants contend that the
crime committed by Sayaboc was homicide only, there being no proof of
treachery because the two eyewitnesses did not see the commencement of the
shooting. Besides, treachery, as well as evident premeditation, was not
specifically designated as a qualifying circumstance in the information. Neither
can the aggravating circumstances of craft and price or reward be appreciated
because they were not alleged in the information, albeit proved during trial.
Sections 8 and 9 of Rule 110 of the 2000 Rules of Criminal Procedure, which
require aggravating and qualifying circumstances to be alleged in the
information, are beneficial to the accused and should, therefore, be applied
retroactively.
As to the third assigned error, the appellants argue that the extrajudicial
confession of Sayaboc may not be admitted in evidence against him because
Atty. Cornejo, the PAO lawyer who was his counsel during the custodial
investigation, was not a competent, independent, vigilant, and effective
counsel. He was ineffective because he remained silent during the entire
proceedings. He was not independent, as he was formerly a judge in the
National Police Commission, which was holding court inside the PNP
Command of Bayombong, Nueva Vizcaya.
Finally, appellants Marlon Buenviaje, Miguel Buenviaje, and Patricio
Escorpiso claim that they were denied due process because they were not able
to present evidence in their defense. They ask this Court to relax the rule of
criminal procedure in favor of enforcing their constitutional right to be heard by
themselves and counsel.
On the other hand, the Office of the Solicitor General (OSG) maintains that
Sayabocs extrajudicial confession that he shot the victim in the back is
adequate proof of treachery. Invoking People v. Aquino, the OSG contends
[21]

that for treachery to be considered as a qualifying circumstance, it needs only

to be specifically alleged in the information and does not have to be preceded
by the words qualifying or qualified by. As to the proven circumstances of craft
and price or reward, the same cannot be appreciated because they were not
specifically alleged in the information, as required by the 2000 Rules of Criminal
Procedure, which are applicable to actions that are pending and undetermined
at the time of their passage.
The OSG further asserts that Sayabocs extrajudicial confession is
admissible in evidence against him, since it was made after he was informed
of, and accorded, his constitutional rights, particularly the right to an
independent counsel of his own choice. No evidence was adduced during the
trial to substantiate the claim that Atty. Cornejo used to be connected with the
NAPOLCOM. Moreover, this claim was made for the first time in this appeal,
and was based merely on an information furnished by defense counsel Atty.
Virgil Castro (now deceased) to Sayabocs counsel in this appeal, which makes
the said information hearsay twice removed.
 As to the fourth assigned error, the OSG counters that no exceptional
circumstance exists in this case that may warrant the relaxation of the rule that
the denial of a unilateral demurrer to evidence carries with it a waiver of the
accuseds right to present evidence.
Beginning with the admissibility of Sayabocs extrajudicial confession, we hold that
such cannot be used in evidence in this case.
Section 12 of Article III of the 1987 Constitution provides:

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel.

(3) Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible in evidence against him.

Jurisprudence provides that extrajudicial confessions are presumed to be

voluntary.[22] The condition for this presumption, however, is that the prosecution is able to
show that the constitutional requirements safeguarding an accuseds rights during
custodial investigation have been strictly complied with, especially when the extrajudicial
confession has been denounced. The rationale for this requirement is to allay any fear
that the person being investigated would succumb to coercion while in the unfamiliar or
intimidating environment that is inherent in custodial investigations. Therefore, even if the
confession may appear to have been given voluntarily since the confessant did not file
charges against his alleged intimidators for maltreatment, [23] the failure to properly inform
a suspect of his rights during a custodial investigation renders the confession valueless
and inadmissible.[24]
In this case, contrary to SPO4 Cagungaos claim that he conferred with Sayaboc for
half an hour informing him about his constitutional rights, the extrajudicial
confession provides only the following:

PRELIMINARY: I would like to inform you Mr. Sayaboc that questions will be asked
to you regarding an incident last December 2, 1994 at the Rooftop,
Brgy. Quezon, Solano, Nueva Vizcaya, in connection with the
shooting of Joseph Galam, owner of the said Disco House as a
result of his death. Before questions will be asked [of] you I would
like to inform you about your ri[g]hts under the new Constitution
of the Philippines, as follows: That you have the right to remain
silent or refuse to answer the questions which you think will
incriminate you; That you have the right to seek the services of a
counsel of your own choice or if not, this office will provide you a
lawyer if you wish.
 QUESTIONS: After informing you all your constitutional rights, are you willing to give
your true statement regarding the death of Joseph Galam?

ANSWER: Yes, sir.

QUESTIONS: Do you want to get a lawyer to assist in this investigation?

ANSWER: Yes, sir. I want to seek the assistance of Atty. Rodolfo Cornejo.

QUESTIONS: Atty. Rodolfo Cornejo is here now, do you want him to assist you in this
investigation?

ANSWER: Yes, sir. [25]

Apart from the absence of an express waiver of his rights, the confession contains
the passing of information of the kind held to be in violation of the right to be informed
under Section 12, Article III of the Constitution. In People v. Jara,[26] the Court explained:

The stereotyped advice appearing in practically all extrajudicial confessions which are later
repudiated has assumed the nature of a legal form or model. Police investigators either
automatically type it together with the curt Opo as the answer or ask the accused to sign it or
even copy it in their handwriting. Its tired, punctilious, fixed, and artificially stately style does
not create an impression of voluntariness or even understanding on the part of the accused. The
showing of a spontaneous, free, and unconstrained giving up of a right is missing.

The right to be informed requires the transmission of meaningful information rather

than just the ceremonial and perfunctory recitation of an abstract constitutional
principle.[27] It should allow the suspect to consider the effects and consequences of any
waiver he might make of these rights. More so when the suspect is one like Sayaboc,
who has an educational attainment of Grade IV, was a stranger in Nueva Vizcaya, and
had already been under the control of the police officers for two days previous to the
investigation, albeit for another offense.
We likewise rule that Sayaboc was not afforded his constitutional right to a competent
counsel. While we are unable to rule on the unsubstantiated claim that Atty. Cornejo was
partial to the police, still, the facts show through the testimonies of Sayaboc and
prosecution witness SPO4 Cagungao that Atty. Cornejo remained silent throughout the
duration of the custodial investigation. The trial court attributed the silence of Atty. Cornejo
to the garrulous nature and intelligence of Sayaboc, thus:

As already stated, Sayaboc was a garrulous man and intelligent.It was in his character for him to
want to be a central figure in a drama, albeit tragic for others. He would do what he wanted to do
regardless of the advice of others. Hence, Atty. Cornejo could only advise him of his
constitutional rights, which was apparently done. The said counsel could not stop him from
making his confession even if he did try.[28]
 We find this explanation unacceptable. That Sayaboc was a garrulous man who
would do what he wanted to do regardless of the advice of others is immaterial. The
waiver of a right is within the rights of a suspect. What is lacking is a showing, to the
satisfaction of this Court, of a faithful attempt at each stage of the investigation to make
Sayaboc aware of the consequences of his actions. If anything, it appears that Sayabocs
counsel was ineffectual for having been cowed by his clients enthusiasm to speak, or,
worse, was indifferent to it.
The right to a competent and independent counsel means that the counsel should
satisfy himself, during the conduct of the investigation, that the suspect understands the
import and consequences of answering the questions propounded. In People v.
Deniega,[29] we said:

The desired role of counsel in the process of custodial investigation is rendered meaningless if
the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of
the person undergoing questioning. If the advice given is so cursory as to be useless,
voluntariness is impaired.

This is not to say that a counsel should try to prevent an accused from making a
confession. Indeed, as an officer of the court, it is an attorneys duty to, first and foremost,
seek the truth. However, counsel should be able, throughout the investigation, to explain
the nature of the questions by conferring with his client and halting the investigation
should the need arise. The duty of a lawyer includes ensuring that the suspect under
custodial investigation is aware that the right of an accused to remain silent may be
invoked at any time.
We understand the difficulty and frustration of police investigators in obtaining
evidence to bring criminals to justice. But even the hardest of criminals have rights that
cannot be interfered with. Those tasked with the enforcement of the law and who accuse
those who violate it carry the burden of ensuring that all evidence obtained by them in the
course of the performance of their duties are untainted with constitutional infirmity. The
purpose of the stringent requirements of the law is to protect all persons, especially the
innocent and the weak, against possible indiscriminate use of the powers of the
government. Any deviation cannot be tolerated, and any fruit of such deviation shall be
excluded from evidence.
For these reasons, the extrajudicial confession of Sayaboc cannot be used in
evidence against him. We hold, however, that the prosecution has discharged its burden
of proving his guilt for the crime of homicide.
From the records of the case, there can be no doubt that Sayaboc shot and killed
Galam in the early evening of 2 December 1994. He was seen waiting at the Rooftop
from 3:00 to 6:00 p.m. of that day, shooting Galam shortly after the latters arrival, and
fleeing from the scene of the crime to a waiting tricycle. Credible witnesses described
Sayabocs appearance to the police soon after the shooting incident and prepared
affidavits about the incident. They identified Sayaboc at the police station while he was in
custody, during the preliminary investigation, and, again, in open court. Such positive
identification constitutes more than sufficient direct evidence to uphold the finding that
Sayaboc was Galams killer. It cannot just be rebutted by Sayabocs bare denial and weak
alibi.
Appellants claim that the information against them is insufficient for failure to
specifically state that treachery and evident premeditation were qualifying circumstances
holds no water. In People v. Aquino,[30] we held that even after the recent amendments to
the Rules of Criminal Procedure, qualifying circumstances need not be preceded by
descriptive words such as qualifying or qualified by to properly qualify an
offense. Nevertheless, from our review of the case, we find that neither evident
premeditation nor treachery has been sufficiently proved to qualify the crime to murder.
There is treachery when the offender commits any of the crimes against persons,
employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which the
offended party might make. Thus, two conditions must be present: (1) at the time of the
attack, the victim was not in a position to defend himself; and (2) the offender consciously
adopted the particular means, method or form of attack employed by him. For treachery
to be appreciated, it must be present and seen by the witness right at the inception of the
attack. Where no particulars are known as to how the killing began, its perpetration with
treachery cannot merely be supposed. [31]
In this case, the trial court concluded that the fact that the witnesses did not hear any
shout or conversation between the assailant and the victim immediately before the attack
could only mean that Sayaboc had approached his victim through stealth. [32]While not
improbable, that conclusion is merely an inference. The fact remains that none of the
witnesses testified as to how the aggression began. The witnesses testified having heard
four shots, the last two of which were seen as having been fired while Sayaboc was facing
Galam. The autopsy conducted by Dr. Labasan reveals two frontal wounds at the thigh
and the shoulder, and two wounds on the right side of Galams back. Although it is
plausible that the initial shots were fired from behind, such inference is insufficient to
establish treachery.[33]
Neither can we appreciate evident premeditation as a qualifying
circumstance. Evident premeditation exists when it is shown that the execution of a
criminal act is preceded by cool thought and reflection upon the resolution to carry out the
criminal intent. The requisites of evident premeditation are (1) the time when the accused
determined to commit the crime; (2) an act manifestly indicating that the accused clung
to his determination; and (3) sufficient lapse of time between such determination and
execution to allow him to reflect upon the circumstances of his act.[34]
Without the extrajudicial confession narrating when Sayaboc was hired to kill Galam,
the testimony that the former inquired about the latter while waiting in the Rooftop from
3:00 p.m. to 6:00 p.m. of that fateful day does not prove the time when Sayaboc decided
to kill Galam. Settled is the rule that when it is not shown how and when the plan to kill
was hatched or what time had elapsed before that plan was carried out, evident
premeditation cannot be considered.[35]
The aggravating circumstances of craft and price or reward, even if proved, can
neither be considered because they were not specifically alleged in the
information. Section 8, Rule 110 of the 2000 Revised Rules of Criminal Procedure
requires that the information specify the aggravating circumstances attending the
commission of the crime for it to be considered in the imposition of penalty. This
requirement is beneficial to an accused and may, therefore, be given retroactive effect. [36]
Thus, appellant Benjamin Sayaboc can be found guilty of the crime of homicide only,
which is punishable by reclusion temporal. There being no mitigating or aggravating
circumstances appreciated for or against him, the penalty to be imposed upon him should
be in the medium period. Applying the Indeterminate Sentence Law, he should be meted
a penalty whose minimum is within the range of prision mayor and whose maximum is
within the range of reclusion temporal in its medium period.
We cannot subscribe to the contention of appellants Marlon Buenviaje, Miguel
Buenviaje, and Patricio Escorpiso that the case should be remanded to the trial court
because they were denied the right to be heard by the trial court. It must be remembered
that their demurrer to evidence filed on 12 July 1999 was without prior leave of court. The
motion for leave to file the said pleading was filed only the next day. The filing of the
demurrer was clearly without leave of court. The trial court, therefore, correctly applied
the rule on demurrer to evidence found in Section 15, Rule 119 of the 1985 Rules of
Criminal Procedure when it disallowed the abovementioned appellants to present
evidence on their behalf.
The filing of a demurrer to evidence without leave of court is an unqualified
waiver of the right to present evidence for the accused. The rationale for this
[37]

rule is that when the accused moves for dismissal on the ground of insufficiency
of evidence of the prosecution evidence, he does so in the belief that said
evidence is insufficient to convict and, therefore, any need for him to present
any evidence is negated. An accused cannot be allowed to wager on the
outcome of judicial proceedings by espousing inconsistent viewpoints
whenever dictated by convenience. The purpose behind the rule is also to avoid
the dilatory practice of filing motions for dismissal as a demurrer to the evidence
and, after denial thereof, the defense would then claim the right to present its
evidence. [38]

The trial court, therefore, correctly applied Section 15, Rule 119 of the 1985
Rules of Criminal Procedure on demurrer to evidence when it disallowed the
abovementioned appellants to present evidence on their behalf. They cannot
now claim that they were denied their right to be heard by themselves and
counsel.
On the basis of the evidence for the prosecution, we find the existence of
conspiracy between Marlon Buenviaje and Sayaboc.
It has been held that price or reward is evidence of conspiracy. But the [39]

same was not established by competent proof in this case. The extrajudicial
confession and the newspaper reports adduced by the prosecution, which
[40] [41]

both contained Sayabocs statement pointing to Marlon Buenviaje as the one

who paid him P100,000 to kill Galam, are inadmissible in evidence. The first, as
earlier stated, was executed in violation of Sayabocs constitutional rights. The
second are hearsay, since the authors of such reports were not presented as
witnesses to affirm the veracity thereof. [42]

Conspiracy need not, however, be established by direct proof; it may be shown by

circumstantial evidence.[43] As correctly found by the trial court and concurred with by the
OSG, the concatenation of circumstantial evidence shows that Marlon Buenviaje
conspired with Sayaboc, thus:
1. On 13 August 1994, Marlon Buenviaje had a fistfight with Joseph Galam, causing
him injuries on his face and prompting him to make a threat to kill the latter; [44]
2. More than three months later, Galam was killed by Sayaboc, who had no
discernible motive to do so;[45]
3. Shortly after shooting Galam, Sayaboc joined Marlon Buenviaje and the other
appellants in the tricycle, which was waiting in a vacant lot near the crime scene;[46]
4. The tricycle driven by Marlon Buenviaje sped away and disappeared; [47]
5. Marlon Buenviaje became a fugitive from justice for a long time, or until 10 July
1997; and
6. During the pendency of the case, the relatives of Marlon Buenviaje offered
prosecution eyewitness Diana Grace Jaramillo a job abroad, allowances, and two
motorcycles in consideration of her retraction of her testimony against Sayaboc.[48]
Circumstantial evidence is sufficient for conviction when (1) there is more than one
circumstances established; (2) the facts from which the inferences are derived have been
proved; and (3) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt. All these requisites are present in the case at bar.
Being a conspirator equally guilty as Sayaboc, Marlon Buenviaje must be meted the same
penalty as that of Sayaboc.
However, as to Miguel Buenviaje and Patricio Escorpiso, there is paucity of evidence
linking them to the killing. They might have been with Marlon Buenviaje in that tricycle,
but there is nothing to show that they knew of the conspiracy to kill Galam. Absent any
active participation in furtherance of the common design or purpose to kill Galam, their
mere presence near the crime scene or in the tricycle driven by Marlon Buenviaje does
not necessarily make them conspirators. Even knowledge, acquiescence or approval of
the act without the cooperation and the agreement to cooperate is not enough to establish
conspiracy.[49]
Now on the civil liability of Sayaboc and Marlon Buenviaje. The trial courts award of
actual damages, representing the wake and burial expenses, is reduced to P106,436, this
being the amount supported by receipts. The award of moral damages is, however,
increased to P50,000 conformably with current jurisprudence.[50] In addition, the heirs of
the victim are entitled to P50,000 as civil indemnity ex delicto.
 WHEREFORE, the decision of the Regional Trial Court of Bayombong, Nueva Ecija,
Branch 27, in Criminal Case No. 2912 is MODIFIED. Appellants Benjamin Sayaboc and
Marlon Buenviaje are found guilty beyond reasonable doubt of the crime of homicide and
are each sentenced to suffer an indeterminate penalty of ten (10) years of prision
mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum and to pay jointly and severally the heirs of Joseph Galam the amounts
of P106,436 as actual damages; P50,000 as civil indemnity; P50,000 as moral damages;
and the cost of the suit. Appellants Miguel Buenviaje and Patricio Escorpiso are
hereby ACQUITTED on the ground of reasonable doubt.
Costs de oficio.
SO ORDERED.

G.R. No. 179448 June 26, 2013

CARLOS L. TANENGGEE, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

DEL CASTILLO, J.:

Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court is the
December 12, 2006 Decision2 of the Court of Appeals (CA) in CA-G.R. CR No. 23653 affirming with
modification the June 25, 1999 Decision3 of the Regional Trial Court (RTC) of Manila, Branch 30, in
Criminal Case Nos. 98-163806-10 finding Carlos L." Tanenggee (petitioner) guilty beyond
reasonable doubt of five counts of estafa through falsification of commercial documents. Likewise
questioned is the CA's September 6, 2007 Resolution4 denying petitioner's Motion for
Reconsideration5 and Supplemental Motion for Reconsideration.6

Factual Antecedents

On March 27, 1998, five separate Informations7 for estafa through falsification of commercial
documents were filed against petitioner. The said Informations portray the same mode of
commission of the crime as in Criminal Case No. 98-163806 but differ with respect to the numbers of
the checks and promissory notes involved and the dates and amounts thereof, viz:

That on or about July 24, 1997, in the City of Manila, Philippines, the said accused, being then a
private individual, did then and there willfully, unlawfully and feloniously defraud, thru falsification of
commercial document, the METROPOLITAN BANK & TRUST CO. (METROBANK), represented by
its Legal officer, Atty. Ferdinand R. Aguirre, in the following manner: herein accused, being then the
Manager of the COMMERCIO BRANCH OF METROBANK located at the New Divisoria Market
Bldg., Divisoria, Manila, and taking advantage of his position as such, prepared and filled up or
caused to be prepared and filled up METROBANK Promissory Note Form No. 366857 with letters
and figures reading "BD#083/97" after the letters reading "PN", with figures reading "07.24.97" after
the word "DATE", with the amount of ₱16,000,000.00 in words and in figures, and with other words
and figures now appearing thereon, typing or causing to be typed at the right bottom thereof the
name reading "ROMEO TAN", feigning and forging or causing to be feigned and forged on top of
said name the signature of Romeo Tan, affixing his own signature at the left bottom thereof
purportedly to show that he witnessed the alleged signing of the said note by Romeo Tan, thereafter
preparing and filling up or causing to be prepared and filled up METROBANK CASHIER’S CHECK
NO. CC 0000001531, a commercial document, with date reading "July 24, 1997", with the name
reading "Romeo Tan" as payee, and with the sum of ₱15,362,666.67 in words and in figures, which
purports to be the proceeds of the loan being obtained, thereafter affixing his own signature thereon,
and directing the unsuspecting bank cashier to also affix his signature on the said check, as
authorized signatories, and finally affixing, feigning and forging or causing to be affixed, feigned and
forged four (4) times at the back thereof the signature of said Romeo Tan, thereby making it appear,
as it did appear that Romeo Tan had participated in the preparation, execution and signing of the
said Promissory Note and the signing and endorsement of the said METROBANK CASHIER’S
CHECK and that he obtained a loan of ₱16,000,000.00 from METROBANK, when in truth and in
fact, as the said accused well knew, such was not the case in that said Romeo Tan did not obtain
such loan from METROBANK, neither did he participate in the preparation, execution and signing of
the said promissory note and signing and endorsement of said METROBANK CASHIER’S CHECK,
much less authorize herein accused to prepare, execute and affix his signature in the said
documents; that once the said documents were forged and falsified in the manner above set forth,
the said accused released, obtained and received from the METROBANK the sum of
₱15,363,666.67 purportedly representing the proceeds of the said loan, which amount, once in his
possession, with intent to defraud, he misappropriated, misapplied and converted to his own
personal use and benefit, to the damage and prejudice of the said METROBANK in the same sum of
₱15,363,666.67, Philippine currency.

CONTRARY TO LAW.8

On May 27, 1998, the RTC entered a plea of not guilty for the petitioner after he refused to enter a
plea.9 The cases were then consolidated and jointly tried.

The proceedings before the RTC as aptly summarized by the CA are as follows:

During the pre-trial, except for the identity of the accused, the jurisdiction of the court, and that
accused was the branch manager of Metrobank Commercio Branch from July 1997 to December
1997, no other stipulations were entered into. Prosecution marked its exhibits "A" to "L" and sub-
markings.

xxxx

The prosecution alleged that on different occasions, appellant caused to be prepared promissory
notes and cashier’s checks in the name of Romeo Tan, a valued client of the bank since he has
substantial deposits in his account, in connection with the purported loans obtained by the latter from
the bank. Appellant approved and signed the cashier’s check as branch manager of Metrobank
Commercio Branch. Appellant affixed, forged or caused to be signed the signature of Tan as
endorser and payee of the proceeds of the checks at the back of the same to show that the latter
had indeed endorsed the same for payment. He handed the checks to the Loans clerk, Maria
Dolores Miranda, for encashment. Once said documents were forged and falsified, appellant
released and obtained from Metrobank the proceeds of the alleged loan and misappropriated the
same to his use and benefit. After the discovery of the irregular loans, an internal audit was
conducted and an administrative investigation was held in the Head Office of Metrobank, during
which appellant signed a written statement (marked as Exhibit "N") in the form of questions and
answers.

The prosecution presented the following witnesses:

Valentino Elevado, a member of the Internal Affairs Department of Metrobank, testified that he
conducted and interviewed the appellant in January 1998; that in said interview, appellant admitted
having committed the allegations in the Informations, specifically forging the promissory notes; that
the proceeds of the loan were secured or personally received by the appellant although it should be
the client of the bank who should receive the same; and that all the answers of the appellant were
contained in a typewritten document voluntarily executed, thumbmarked, and signed by him (Exhibit
"N").

Rosemarie Tan Apostol, assistant branch manager, testified that the signatures appearing on the
promissory notes were not the signatures of Romeo Tan; that the promissory notes did not bear her
signature although it is required, due to the fact that Romeo Tan is a valued client and her manager
accommodated valued clients; that she signed the corresponding checks upon instruction of
appellant; and that after signing the checks, appellant took the same which remained in his custody.

Eliodoro M. Constantino, NBI Supervisor and a handwriting expert, testified that the signatures
appearing on the promissory notes and specimen signatures on the signature card of Romeo Tan
were not written by one and the same person.

Maria Dolores Miranda, a Loans Clerk at Metrobank Commercio Branch, testified that several
cashier’s checks were issued in favor of Romeo Tan; that appellant instructed her to encash the
same; and that it was appellant who received the proceeds of the loan.

For his defense, appellant Carlos Lo Tanenggee testified that he is a holder of a Masters degree
from the Asian Institute of Management, and was the Branch Manager of Metrobank Commercio
Branch from 1994 until he was charged in 1998 [with] the above-named offense. He was with
Metrobank for nine (9) years starting as assistant manager of Metrobank Dasmariñas Branch,
Binondo, Manila. As manager, he oversaw the day to day operations of the branch, solicited
accounts and processed loans, among others.

Appellant claimed that he was able to solicit Romeo Tan as a client-depositor when he was the
branch manager of Metrobank Commercio. As a valued client, Romeo Tan was granted a credit line
for forty million pesos (₱40,000,000.00) by Metrobank. Tan was also allowed to open a fictitious
account for his personal use and was assisted personally by appellant in his dealings with the bank.
In the middle of 1997, Tan allegedly opened a fictitious account and used the name Jose Tan. Such
practice for valued clients was allowed by and known to the bank to hide their finances due to
rampantkidnappings or from the Bureau of Internal Revenue (BIR) or from their spouses.

According to appellant, Tan availed of his standing credit line (through promissory notes) for five (5)
times on the following dates: 1) 24 July 1997 for sixteen million pesos (₱16,000,000.00), 2) 27
October 1997 for six million pesos (₱6,000,000.00), 3) 12 November 1997 for three million pesos
(₱3,000,000.00), 4) 21 November 1997 for sixteen million pesos (₱16,000,000,00), 5) 22 December
1997 for two million pesos (₱2,000,000.00). On all these occasions except the loan on 24 July 1997
when Tan personally went to the bank, Tan allegedly gave his instructions regarding the loan
through the telephone. Upon receiving the instructions, appellant would order the Loans clerk to
prepare the promissory note and send the same through the bank’s messenger to Tan’s office,
which was located across the street. The latter would then return to the bank, through his own
messenger, the promissory notes already signed by him. Upon receipt of the promissory note,
appellant would order the preparation of the corresponding cashier’s check representing the
proceeds of the particular loan, send the same through the bank’s messenger to the office of Tan,
and the latter would return the same through his own messenger already endorsed together with a
deposit slip under Current Account No. 258-250133-7 of Jose Tan. Only Cashier’s Check dated 21
November 1997 for sixteen million pesos (₱16,000,000.00) was not endorsed and deposited for,
allegedly, it was used to pay the loan obtained on 24 July 1997. Appellant claimed that all the
signatures of Tan appearing on the promissory notes and the cashier’s checks were the genuine
signatures of Tan although he never saw the latter affix them thereon.

In the middle of January 1998, two (2) Metrobank auditors conducted an audit of the Commercio
Branch for more than a week. Thereafter or on 26 January 1998, appellant was asked by Elvira Ong-
Chan, senior vice president of Metrobank, to report to the Head Office on the following day. When
appellant arrived at the said office, he was surprised that there were seven (7) other people present:
two (2) senior branch officers, two (2) bank lawyers, two (2) policemen (one in uniform and the other
in plain clothes), and a representative of the Internal Affairs unit of the bank, Valentino Elevado.

Appellant claimed that Elevado asked him to sign a paper (Exhibit "N") in connection with the audit
investigation; that he inquired what he was made to sign but was not offered any explanation; that he
was intimidated to sign and was threatened by the police that he will be brought to the precinct if he
will not sign; that he was not able to consult a lawyer since he was not apprised of the purpose of the
meeting; and that "just to get it over with" he signed the paper which turned out to be a confession.
After the said meeting, appellant went to see Tan at his office but was unable to find the latter. He
also tried to phone him but to no avail.10

Ruling of the Regional Trial Court

After the joint trial, the RTC rendered a consolidated Decision11 dated June 25, 1999 finding
petitioner guilty of the crimes charged, the decretal portion of which states:

WHEREFORE, the Court finds the accused, Carlos Lo Tanenggee, guilty beyond reasonable doubt
of the offense of estafa thru falsification of commercial documents charged in each of the five (5)
Informations filed and hereby sentences him to suffer the following penalties:

1. In Criminal Case No. 98-163806, to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law.

2. In Criminal Case No. 98-163807, to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
sum of ₱16 Million with interest at 18% per annum counted from 27 November 1997 until
fully paid.

3. In Criminal Case No. 98-163808, to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
sum of ₱6 Million with interest at 18% per annum counted from 27 October 1997 until fully
paid.

4. In Criminal Case No. 98-163809, to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
 sum of ₱2 Million with interest at 18% per annum counted from 22 December 1997 until fully
paid.

5. In Criminal Case No. 98-163810, to suffer the indeterminate penalty of imprisonment from
eight (8) years of prision mayor as minimum to twenty (20) years of reclusion temporal as
maximum including the accessory penalties provided by law, and to indemnify Metrobank the
sum of ₱3 Million with interest at 18% per annum counted from 12 November 1997 until fully
paid.

Accused shall serve the said penalties imposed successively.

As mandated in Article 70 of the Revised Penal Code, the maximum duration of the sentence
imposed shall not be more than threefold the length of time corresponding to the most severe of the
penalties imposed upon him and such maximum period shall in no case exceed forty (40) years.

SO ORDERED.12

Ruling of the Court of Appeals

Petitioner appealed the judgment of conviction to the CA where the case was docketed as CA-G.R.
CR No. 23653. On December 12, 2006, the CA promulgated its Decision13 affirming with modification
the RTC Decision and disposing of the appeal as follows:

WHEREFORE, the appeal is DENIED for lack of merit and the Decision dated 25 June 1999 of the
Regional Trial Court (RTC) of Manila, Branch 30 convicting the accused-appellant Carlos Lo
Tanenggee on five counts of estafa through falsification of commercial documents is hereby
AFFIRMED with MODIFICATION that in Criminal Case No. 98-163806, he is further ordered to
indemnify Metrobank the sum of ₱16 Million with interest at 18% per annum counted from 24 July
1997 until fully paid.

SO ORDERED.14

On December 29, 2006,15 petitioner moved for reconsideration, which the CA denied per its
September 6, 2007 Resolution.16

Hence, the present Petition for Review on Certiorari under Rule 45 of the Rules of Court raising the
basic issues of: (1) whether the CA erred in affirming the RTC’s admission in evidence of the
petitioner’s written statement based on its finding that he was not in police custody or under
custodial interrogation when the same was taken; and, (2) whether the essential elements of estafa
through falsification of commercial documents were established by the prosecution.17

The Parties’ Arguments

While he admits signing a written statement,18 petitioner refutes the truth of the contents thereof and
alleges that he was only forced to sign the same without reading its contents. He asserts that said
written statement was taken in violation of his rights under Section 12, Article III of the Constitution,
particularly of his right to remain silent, right to counsel, and right to be informed of the first two
rights. Hence, the same should not have been admitted in evidence against him.

On the other hand, respondent People of the Philippines, through the Office of the Solicitor General
(OSG), maintains that petitioner’s written statement is admissible in evidence since the constitutional
proscription invoked by petitioner does not apply to inquiries made in the context of private
employment but is applicable only in cases of custodial interrogation. The OSG thus prays for the
affirmance of the appealed CA Decision.

Our Ruling

We find the Petition wanting in merit.

Petitioner’s written statement is admissible in evidence.

The constitutional proscription against the admissibility of admission or confession of guilt obtained
in violation of Section 12, Article III of the Constitution, as correctly observed by the CA and the
OSG, is applicable only in custodial interrogation.

Custodial interrogation means any questioning initiated by law enforcement authorities after a
person is taken into custody or otherwise deprived of his freedom of action in any significant manner.
Indeed, a person under custodial investigation is guaranteed certain rights which attach upon the
commencement thereof, viz: (1) to remain silent, (2) to have competent and independent counsel
preferably of his own choice, and (3) to be informed of the two other rights above.19 In the present
case, while it is undisputed that petitioner gave an uncounselled written statement regarding an
anomaly discovered in the branch he managed, the following are clear: (1) the questioning was not
initiated by a law enforcement authority but merely by an internal affairs manager of the bank; and,
(2) petitioner was neither arrested nor restrained of his liberty in any significant manner during the
questioning. Clearly, petitioner cannot be said to be under custodial investigation and to have been
deprived of the constitutional prerogative during the taking of his written statement.

Moreover, in Remolona v. Civil Service Commission,20 we declared that the right to counsel "applies
only to admissions made in a criminal investigation but not to those made in an administrative
investigation." Amplifying further on the matter, the Court made clear in the recent case of Carbonel
v. Civil Service Commission:21

However, it must be remembered that the right to counsel under Section 12 of the Bill of Rights is
meant to protect a suspect during custodial investigation. Thus, the exclusionary rule under
paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a criminal
investigation but not to those made in an administrative investigation.22

Here, petitioner’s written statement was given during an administrative inquiry conducted by his
employer in connection with an anomaly/irregularity he allegedly committed in the course of his
employment. No error can therefore be attributed to the courts below in admitting in evidence and in
giving due consideration to petitioner’s written statement as there is no constitutional impediment to
its admissibility.

Petitioner’s written statement was given voluntarily, knowingly and intelligently.

Petitioner attempts to convince us that he signed, under duress and intimidation, an already
prepared typewritten statement. However, his claim lacks sustainable basis and his supposition is
just an afterthought for there is nothing in the records that would support his claim of duress and
intimidation.

Moreover, "it is settled that a confession or admission is presumed voluntary until the contrary is
proved and the confessant bears the burden of proving the contrary."23 Petitioner failed to overcome
this presumption. On the contrary, his written statement was found to have been executed freely and
consciously. The pertinent details he narrated in his statement were of such nature and quality that
only a perpetrator of the crime could furnish. The details contained therein attest to its voluntariness.
As correctly pointed out by the CA:

As the trial court noted, the written statement (Exhibit N) of appellant is replete with details which
could only be supplied by appellant. The statement reflects spontaneity and coherence which cannot
be associated with a mind to which intimidation has been applied. Appellant’s answers to questions
14 and 24 were even initialed by him to indicate his conformity to the corrections made therein. The
response to every question was fully informative, even beyond the required answers, which only
indicates the mind to be free from extraneous restraints.24

In People v. Muit,25 it was held that "one of the indicia of voluntariness in the execution of petitioner’s
extrajudicial statement is that it contains many details and facts which the investigating officers could
not have known and could not have supplied without the knowledge and information given by him."

Also, the fact that petitioner did not raise a whimper of protest and file any charges, criminal or
administrative, against the investigator and the two policemen present who allegedly intimidated him
and forced him to sign negate his bare assertions of compulsion and intimidation. It is a settled rule
that where the defendant did not present evidence of compulsion, where he did not institute any
criminal or administrative action against his supposed intimidators, where no physical evidence of
violence was presented, his extrajudicial statement shall be considered as having been voluntarily
executed.26

Neither will petitioner’s assertion that he did not read the contents of his statement before affixing his
signature thereon "just to get it over with" prop up the instant Petition. To recall, petitioner has a
masteral degree from a reputable educational institution and had been a bank manager for quite a
number of years. He is thus expected to fully understand and comprehend the significance of signing
an instrument. It is just unfortunate that he did not exercise due diligence in the conduct of his own
affairs. He can therefore expect no consideration for it.

Forgery duly established.

"Forgery is present when any writing is counterfeited by the signing of another’s name with intent to
defraud."27 It can be established by comparing the alleged false signature with the authentic or
genuine one. A finding of forgery does not depend entirely on the testimonies of government
handwriting experts whose opinions do not mandatorily bind the courts. A trial judge is not precluded
but is even authorized by law28 to conduct an independent examination of the questioned signature
in order to arrive at a reasonable conclusion as to its authenticity.

In this case, the finding of forgery on the signature of Romeo Tan (Tan) appearing in the promissory
notes and cashier’s checks was not anchored solely on the result of the examination conducted by
the National Bureau of Investigation (NBI) Document Examiner. The trial court also made an
independent examination of the questioned signatures and after analyzing the same, reached the
conclusion that the signatures of Tan appearing in the promissory notes are different from his
genuine signatures appearing in his Deposit Account Information and Specimen Signature Cards on
file with the bank. Thus, we find no reason to disturb the above findings of the RTC which was
affirmed by the CA. A rule of long standing in this jurisdiction is that findings of a trial court, when
affirmed by the CA, are accorded great weight and respect. Absent any reason to deviate from the
said findings, as in this case, the same should be deemed conclusive and binding to this Court.

No suppression of evidence on the part of the prosecution.

Petitioner claims that the prosecution should have presented Tan in court to shed light on the matter.
His non-presentation created the presumption that his testimony if given would be adverse to the
case of the prosecution. Petitioner thus contends that the prosecution suppressed its own evidence.

Such contention is likewise untenable. The prosecution has the prerogative to choose the evidence
or the witnesses it wishes to present. It has the discretion as to how it should present its
case.29Moreover, the presumption that suppressed evidence is unfavorable does not apply where
the evidence was at the disposal of both the defense and the prosecution.30 In the present case, if
petitioner believes that Tan is the principal witness who could exculpate him from liability by
establishing that it was Tan and not him who signed the subject documents, the most prudent thing
to do is to utilize him as his witness. Anyway, petitioner has the right to have compulsory process to
secure Tan’s attendance during the trial pursuant to Article III, Section 14(2)31of the Constitution. The
records show, however, that petitioner did not invoke such right. In view of these, no suppression of
evidence can be attributed to the prosecution.

Petitioner’s denial is unavailing.

The Court is also not persuaded by the bare and uncorroborated allegation of petitioner that the
loans covered by the promissory notes and the cashier’s checks were personally transacted by Tan
against his approved letter of credit, although he admittedly never saw Tan affix his signature
thereto. Again, this allegation, as the RTC aptly observed, is not supported by established evidence.
"It is settled that denials which are unsubstantiated by clear and convincing evidence are negative
and self-serving evidence. They merit no weight in law and cannot be given greater evidentiary value
over the testimony of credible witnesses who testified on affirmative matters."32 The chain of events
in this case, from the preparation of the promissory notes to the encashment of the cashier’s checks,
as narrated by the prosecution witnesses and based on petitioner’s own admission, established
beyond reasonable doubt that he committed the unlawful acts alleged in the Informations.

Elements of falsification of commercial documents established.

Falsification of documents under paragraph 1, Article 172 in relation to Article 171 of the Revised
Penal Code (RPC) refers to falsification by a private individual or a public officer or employee, who
did not take advantage of his official position, of public, private or commercial document. The
elements of falsification of documents under paragraph 1, Article 172 of the RPC are: (1) that the
offender is a private individual or a public officer or employee who did not take advantage of his
official position; (2) that he committed any of the acts of falsification enumerated in Article 171 of the
RPC;33 and, (3) that the falsification was committed in a public, official or commercial document.

All the above-mentioned elements were established in this case. First, petitioner is a private
individual. Second, the acts of falsification consisted in petitioner’s (1) counterfeiting or imitating the
handwriting or signature of Tan and causing it to appear that the same is true and genuine in all
respects; and (2) causing it to appear that Tan has participated in an act or proceeding when he did
not in fact so participate. Third, the falsification was committed in promissory notes and checks
which are commercial documents. Commercial documents are, in general, documents or
instruments which are "used by merchants or businessmen to promote or facilitate trade or credit
transactions."34Promissory notes facilitate credit transactions while a check is a means of payment
used in business in lieu of money for convenience in business transactions. A cashier’s check
necessarily facilitates bank transactions for it allows the person whose name and signature appear
thereon to encash the check and withdraw the amount indicated therein.35

Falsification as a necessary means to commit estafa.

When the offender commits on a public, official or commercial document any of the acts of
falsification enumerated in Article 171 as a necessary means to commit another crime like estafa,
theft or malversation, the two crimes form a complex crime. Under Article 48 of the RPC, there are
two classes of a complex crime. A complex crime may refer to a single act which constitutes two or
more grave or less grave felonies or to an offense as a necessary means for committing another.

In Domingo v. People,36 we held:

The falsification of a public, official, or commercial document may be a means of committing estafa,
because before the falsified document is actually utilized to defraud another, the crime of falsification
has already been consummated, damage or intent to cause damage not being an element of the
crime of falsification of public, official or commercial document. In other words, the crime of
falsification has already existed. Actually utilizing that falsified public, official or commercial
document to defraud another is estafa. But the damage is caused by the commission of estafa, not
by the falsification of the document. Therefore, the falsification of the public, official or commercial
document is only a necessary means to commit estafa.

"Estafa is generally committed when (a) the accused defrauded another by abuse of confidence, or
by means of deceit, and (b) the offended party or a third party suffered damage or prejudice capable
of pecuniary estimation."37 Deceit is the false representation of a matter of fact, whether by words or
conduct, by false or misleading allegations, or by concealment of that which should have been
disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal
injury."38

The elements of estafa obtain in this case. By falsely representing that Tan requested him to
process purported loans on the latter’s behalf, petitioner counterfeited or imitated the signature of
Tan in the cashier’s checks. Through these, petitioner succeeded in withdrawing money from the
1âw phi1

bank. Once in possession of the amount, petitioner thereafter invested the same in Eurocan Future
Commodities. Clearly, petitioner employed deceit in order to take hold of the money,
misappropriated and converted it to his own personal use and benefit, and these resulted to the
damage and prejudice of the bank in the amount of about ₱43 million.

Taken in its entirety, the proven facts show that petitioner could not have withdrawn the money
without falsifying the questioned documents. The falsification was, therefore, a necessary means to
commit estafa, and falsification was already consummated even before the falsified documents were
used to defraud the bank. The conviction of petitioner for the complex crime of Estafa through
Falsification of Commercial Document by the lower courts was thus proper.

The Proper Imposable Penalty

The penalty for falsification of a commercial document under Article 172 of the RPC is prision
correccional in its medium and maximum periods and a fine of not more than ₱5,000.00.

The penalty in estafa cases, on the other hand, as provided under paragraph 1, Article 315 of the
RPC is prision correccional in its maximum period to prision mayor in its minimum period39 if the
amount defrauded is over ₱12,000.00 but does not exceed ₱22,000.00. If the amount involved
exceeds the latter sum, the same paragraph provides the imposition of the penalty in its maximum
period with an incremental penalty of one year imprisonment for every ₱10,000.00 but in no case
shall the total penalty exceed 20 years of imprisonment.

Petitioner in this case is found liable for the commission of the complex crime of estafa through
falsification of commercial document. The crime of falsification was established to be a necessary
means to commit estafa. Pursuant to Article 48 of the Code, the penalty to be imposed in such case
should be that corresponding to the most serious crime, the same to be applied in its maximum
period. The applicable penalty therefore is for the crime of estafa, being the more serious offense
than falsification.

The amounts involved in this case range from ₱2 million to ₱16 million. Said amounts being in
excess of ₱22,000.00, the penalty imposable should be within the maximum term of six (6) years,
eight (8) months and twenty-one (21) days to eight (8) years of prision mayor, adding one (1) year
for each additional ₱10,000.00. Considering the amounts involved, the additional penalty of one (1)
year for each additional ₱10,000.00 would surely exceed the maximum limitation provided under
Article 315, which is twenty (20) years. Thus, the RTC correctly imposed the maximum term of
twenty (20) years of reclusion temporal.

There is need, however, to modify the penalties imposed by the trial court as affirmed by the CA in
each case respecting the minimum term of imprisonment. The trial court imposed the indeterminate
penalty of imprisonment from eight (8) years of prision mayor as minimum which is beyond the lawful
range. Under the Indeterminate Sentence Law, the minimum term of the penalty should be within the
range of the penalty next lower to that prescribed by law for the offense. Since the penalty
prescribed for the estafa charge against petitioner is prision correccional maximum to prision mayor
minimum, the penalty next lower would then be prision correccional in its minimum and medium
periods which has a duration of six (6) months and one (1) day to four (4) years and two (2) months.
Thus, the Court sets the minimum term of the indeterminate penalty at four (4) years and two (2)
months of prision correccional. Petitioner is therefore sentenced in each case to suffer the
indeterminate penalty of four (4) years and two (2) months of prision correccional as minimum to
twenty (20) years of reclusion temporal as maximum.

WHEREFORE, the Petition is DENIED. The Decision and Resolution of the Court of Appeals in CA-
G.R. CR No. 23653 dated December 12, 2006 and September 6, 2007, respectively, are hereby
AFFIRMED with the MODIFICATION that the minimum term of the indeterminate sentence to be
imposed upon the petitioner should be four (4) years and two (2) months of prision correccional.

SO ORDERED.

G.R. Nos. 100225-26 May 11, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAUL SANTOS Y NARCISO, MARIO MORALES Y BACANI, PETER DOE and RICHARD
DOE, Accused, RAUL SANTOS y NARCISO, accused-appellant.

The Solicitor General for plaintiff-appellee

Valmonte Law Offices for accused-appellant.

FELICIANO, J.:
Raul N. Santos appeals from a judgment of the trial court convicting him of murder and frustrated
murder.

On 26 October 1989, appellant Santos was charged with the crimes of murder with the use of
unlicensed firearms and frustrated murder, under the following informations:

In Crim. Case No. 8517-MN: 1

That on or about the 26th day of May, 1989 in Navotas, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping with one another, without any justifiable
cause, with deliberate intent to kill, treachery and evident premediation, did then and
there willfully, unlawfully and feloniously shoot GLICERIO CUPCUPIN y REYES with
the use of unlicensed firearms of unknown caliber, thereby inflicting upon the latter
serious physical injuries which caused his death at the Tondo Medical Center,
Manila.

Contrary to Law.

In Crim. Case No. 8518-MN: 2

That on or about the 26th of May, 1989 in Navotas, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together
and mutually helping with one another, witout any justifiable cause, with deliberate
intent to kill, treachery and evident premeditation did, then and there, willfully,
unlawfully and feloniously shoot ALBERTO BAUTISTA Y CAYETANO, with the use
use of firearms of unknown caliber, thereby inflicting upon the latter serious physical
injuries, thus performing all the acts of execution which would have produced the
crime of MURDER as a consequence but which nevertheless did not produce it by
reason of causes independent of the will of the herein accused, that is due to the
timely, able and efficient medical attendance rendered to the victim at the Tondo
Medical Center, Manila.

Contrary to Law.

Three (3) other persons were charged in the same informations. Upon request of the City Prosecutor
who had conducted a re-investigation of the cases, the trial court ordered the amendment of the
information on 4 April 1990 so as to insert the name of one Mario Morales, in lieu of John Doe, as a
co-accused. Morales for whom a warrant of arrest was issued, is, however, still at large, The
identities of the two (2) other accused remain unknown.

At arraignment, Raul Santos entered a plea of not guilty. A joint trial of the two 92) criminal cases
ensued, culminating in a judagment of conviction. The dispositive portion of this judgment reads as
follows:

WHEREFORE, premises considerd, judgment is hereby rendered finding accused

Raul Santos guilty beyond reasonable doubt of the offenses charged against him in
these cases. He is accordingly sentenced to two (2) prision terms as follows:
 1) In Crim. Case No. 8517-MN for Murder, to life imprisonment, the death penalty
which should have been imposed in this case having been abolished under the
present Constitution;

2) In Crim. Case No. 8518-MN for Frustrated Murder, to a prison term ranging from
SIX (6) YEARS OF prision correccional, as minimum to TWELVE (12) YEARS
of prision mayor as maximum.

Accused Santos is also odered to proportionately pay the heirs of Glicerio Cupcupin
the sum of P30,000.00 for the loss of the latter's life and to pay said heirs,
proportionately aldo, P100,000.00 by way of indemnification for the expenses
incurred in connection with Cupcupin's death.

Costs against accused in both cases.

SO ORDERED. 3

The relevant facts as found by the trial court are the following:

Glicierio Cupcupin and Alberto Bautista were riding on a jeep driven by the former on
May 26, 1989. At around 11:45 o'clock in the morning of said date, the jeep was at a
stop at the corner of Estrella and Yangco Streets in navotas, Metro Manila and was
about to make a right turn when two (2) persons armed with short guns approached
the jeep and fired at Cupcupin and Bautista. Cupcupin was hit several itmes in
different parts of his body and he died as a result of the multiple gunshot wounds he
sustained (Exh. V). Bautista sustained gunshot wounds, one at the left thigh, one in
theloer abdomen, one at the back of the right foot and another at the back of the
body. Bautista was able to run away even as he was bieng fired upon. He took cover
in a store. The one firing the gun at thim was a man he later identified to be accused
Raul Santos. The other one which he saw similary firing his gun was aiming at
Cupcupin. He identified the man to be one Mario Morales. He added that he saw
Cupcupin hit by gunshots at the left side of the body near the waist which made
Cupcupin fall-off the steering wheel. After running away, Bautista could not
remember anymore what else happened. He could not rmember anymore what else
happened. He at thim and Cupcupin. After hearing a shout that the ambushers were
no longer around, he learned that a woman bystander was hit and was boarded on a
jeep to be brought to the hospital. He was boarded on said jeep too but later
transferred to was brought to the Martinez General Hospital and to the Mary Jonston
hospital where he was treated. Bautista was oeporated on (Exhs. B, B-1, C, D and
E). Upon the apprehensionof accused where he picked out from a line-up accused
Raul Santos. In another line-up, he also picked out accused Morales. Bautista also
gave a sworn statement narrating the shooting incident (Exh. F).

Police Aide Victorino Bohol was on duty and directing traffic at the corner of Plaza
Rizal and Estrella Streets when he heard gunshots. When he looked around the saw
two 92) persons who were holding Cal. 45 pistols firing at persons on board a
stainless steel owner jeep. Bohol was not able to approach the men firing their guns
because he was not provided with a gun. What he did was to run to headquarters to
call for policemen and when he returned to the scene of the shooting he learned that
one of hte passengers of the jeep was killed. He learned also that the slain man was
killed. He learned also that the slain man was Glicerio Cupcupin and that his
companion was Alberto Bautista alias "Tiwa". Bohol also added that tere were two
 (2) other persons who were also firing at the passengers of the jeep although he did
not recognize these two (2) other persons. After the arrest of accused Santos, Bohol
was called to the police station and through a one-way mirror he was able to identify
accused Santos as one of the persons who shot Cupcupin and Bautista. Bohol also
gave a sworn statement to the police (Exh. A).

On cross-examination, Bohol admitted that at the time of the shooting he was at the
Jim Bread Store talking to someone. When he heard gunshots thier guns at the
same time at the jeep. He added that the accused was arrested some months later in
connectiion with another shooting incident wherein Santos was suspected of
involvement. He confirmed that Bautista was bieng shot at while running away from
the place.

Cpl. Sabino Patood of the Navotas Police delcared that he was investigating a
shooting incident which resulted in the death of one Abudl Rosas wherein the
suspect was accused Santos when he was tipped by police intelligence operatives
that Santos was involved in the ambush of Cupcupin. This made him conduct further
investigation by calling for Bautista and Bohol. Patood also interviewed Santos who
admitted his participation inthe ambush to him. He did not take any written statement
from accused Santos because there was nocounsel available at that time and
because Santos was not willing to give any written statement.

Dr. Maximo Reyes of the NBI Medico Legal Division performed an autorpsy
onthecadaver of victim Cupcupin and found out that the latter sustained nineteen
(19) gunshot wounds in different parts of his body. The cause of death gunshot
wounds. Dr. Reyes added that the assailants were probably at the left side of the
victim as they were shooting at the latter with the victim possibly seated at the time
he was shot and hit.

The victim's wife Lucia Cupcupin declared that P100,000.00 was spent in connection
with the death of her husband who was earning P5,000.00 a month as a
businessman dealing in junk materials and
marbale. 4

The trial court found that the accused Raul Santos had been identified positively by the surviving
vicitm of the shooting incident — Alberto Bautista, and by teh Traffic Aide who had witnessed the
execution of the crime — Victorino Bohol. The defensse of alibi offered by the accused and
supported by the testimonies of a friend and a sister, was rejected as weak and unavailing. As
noted, a judgment of conviction followed.

Inhis appeal, Raul Santos assings the following as errors committed by the trial court:

i the lower court erred in holding that accused's identification by proscution's

witnesses was "positive" and, and, therefore it erred when it rejected accused's
defense of alib.

ii the lower court erred in considering one of the two cases (not the instant ones) filed
against the accused in holding also for his guilt.

iii the lower court erred in convicting the accused.5

In respect of the first assigned error, appellant Santos contendes that the testimonies of the principal
prosecution witnesses do not coform with the "knowledge and common experience of mankind."
Appellant argues that the two (2) prosecution witnesses, the victim Bautista and Police Aide Bohol,
testified that they saw the accused for the first time in their lives when the crime was committed and
yet identified him as one of the gunmen five (5) months later in the Police headquarters in Navotas.
The ambuscade and the slaying of Glicierio Cupcupin happened on 26 May 1989; appellant Santos
was identified at the police station on 25 October 1989. Appellant argues that this lapse of time was
unreasonable, which, when coupled with the brief, limited and obstructed view which the prosecution
witnesses had of the gunmen at the time of the shooting, casts serious doubt on the accuracy and
reliabitlity of the identification by the witnesses.

Appellant's argument does not persuade.

Police Aide Bohol was only abot twelve (12) armlengths away from teh ambush vehicle. The ambush
slaying occurred under conditions of high visibility: the victim Cupcupin was shot to death at 11:45
o'clock in the morning, in good weahter, when the sun was almost at its zenith. On cross-
examination, Bohol stated that there were no passing vehicles that blocked his view of the slaying of
the victim as the vehicles stopped some distance away from the jeep when the shooting began. In
addition, Bohol testified that he saw one of teh gunmen take a wrist watch and a gun form
Cupcupin's lifeless body. Clearly, Bohol had the opportunity to observe the extraordinary and
startling events which unfolded on the corner of two (2) busy streets almost at high noon, events
which may be expected to leave a strong impression upon the minds of an eye-witnesses who, like
Police Aide Bohol, had a duty to maintain law and order. Alberto Bautista who had been riding on a
jeep and hwo escped death (but not gunshot wounds) by reason of his quick reflexes, had every
reason to remember the faces of those whom he saw firing at the jeep and at himself. This has been
recognized a number of times in ouir case law. In People v. Jacolo, et al., 6 the Couirt said:

[W]hile evidence as to the identity of the accused as the person who committed the
crime should be carefully analyzed, . . . "were the conditions of visibility are favorable
and the witness does not appear to be biased agains teh man on the dock, his or her
assertions as to the identity of the malefactore should normally be accpeted. And this
is more so where the witness is the victim or his near-relative, as in this case,
because these (people) usually strive to remember the faces of the assailants."
(Emphasis supplied.) 7

Appellant Santos also contended that Police Aide Bohol could not have had a clear view of the
ambuscade and the shooting of Cupcupin since he (Bohol) was situated on the left side of the
gunmen. As observed by teh Solicitor General, however, the trial court had pointed out that "if he
[Bohol] was to the front right of the jeep" then he must [have been] a little by the left side of the
persons firing at the jeep . . ." 8 "Bohol's view, therefore," the Solicitor General continued, "was not
limited to the left side of the assilants, especially since he was able to see them [the gunmen] move
around the site of the ambush after the [had] stopped firing, specifically when one of them stripped
victim Cupcupin of his gun and jewelry and they all walked away from the place."9 The trial court
obviously concluded that Bohol had ample opportunity actually to observe tha events on which he
testified, and we find no basis for overtunring this conclusion of the trial court.

In respect of the identification by Bautista, accused also suggests that Bautista had no real
opoortunityto see and impress upon his memory the faces of the assailants. In his testimony,
Bautista stated that two (2) men armed with handguns suddenly apporoached the jeep in which he
and Cupcupin were riding. He agreed that his attention had been "focused" (defense counsel's own
language) on vehicles passing along Estrella Street as Cupcupin maneuvered the jeep to turn right
at the corner and to head towards Navotas. When the assailants started shooting, Bautista jumped
from the jeep, was hit on the left thigh and other parts of the body, but managed to run for cover from
repeated shots or bursts of gunfire. Bautista testified further that he was shot by appellant Raul
Santos while Morales pumped bullets into Cupcupin; that the gunmen fired at Cupcupin and Bautista
from close range, Morales being a mere half an arm-length to the left of Cupcupin while appellant
Santos was about two (2) arm-lengths away from the ambushed jeep; and that Bautista saw his
compaion, Cupcupin, slump on the steering wheel as the bullets crashed into him. Once more, the
trial court was led by the above circumstances to conclude that Bautista had adequate oportunity to
see appellant Santos and to retain his face in his memory. We find no basis for rejecting this factual
conclusion of the trial court.

Appellant Santos makes two (2) additional arguments. Firstly, he complains that he was not afforded
his right to counsel int he course of the police line-up, at the police station where he was identified by
the prosecution witnesses. This argument, of course, assumes that during the police line-up,
accused was under custodial investigation, a stage which, per the appellant, began the instant the
police suspected Santos then had no lawyer present nor was one provided, his counsel argues,
Santos's identification was "tainted" and inadmissible. The argument is creative, but has no legal
bais. In Gamboa v. Cruz, 10 the Court said that there is "no real need to afford a suspect the serivce
of counsel at police line-up," 11 a declaration reiterated in People v. Loveria. 12 The customary practice
is, of course, that it is the witness who is investigaged or interrogated in the course of a police line-
up and who gives a statement to the police, rather than the accused who is not questioned at all at
that stage. The Court is aware of the caveat in Gamboa. 13 But there is nothing in the record of this
case which shows that in the course of the line-up, the police investigators sought to extract any
admission or confession from appellant Santos. The investigators did not in fact interrogate appellant
Santos during the line-up and he remained silent after he had bee identified by Bautista and Bohol.

Appellant Santos's secon dcontention is that there had bee "improper suggestiveness" in the course
of the police line-up amounting to an uncounselled confession. In effect, defense counsel claims that
Bautista and Bohol were induced by the plice investigators to point to appellant Santos as one of the
gunmen. The record does not show that the police investigators had coached Bautista. Appellant
Santos's counsel directed the attention of this Court to a portion of Bohol's testimony during cross-
examination, to wit:

Atty. Valmonte:

Alright, that somebody who told you to go to the office of Capt. Puzon you were
informed that on the other side of the office of Capt. Puzon there was already the
person whom they would like to identfy?

Victorino Bohol:

Yes, sir.

Atty. Valmonte:

And was there somebody who asked you who among those in the
investigation room the person whom you saw?

Victorino Bohol:

No, sir. Somebody approached me and said, iyan po. But before
answering, I made a very careful look at the person.14
We are not convinced, however, that the phrase "iyan po" constituted an "improper suggestion,"
certainly not in the context of a situation where, as here, appellant Santos was identified
successively by Bautista and Bohol from a group of person. We consider that the phrase "iyan po" is
too cryptic. What that Court warned against in People v. Acosta, 15 i.e., against an identification
process that was "pointedly suggestive, or generated confidence when there was noen, activated
visual imagination, and all told, subverted [a person's] reliablity as [an] eye-witness [..]," has not been
successfully shown in the case at bar.

Appellant Santos next seeks to assail the credibility of Bautista and Bohol by citing supposed
inconsistencies between statements made in their affidavits before trial and their testimony given in
the course of the trial. Appellant's counsel complains 16 that while witness Bohol could recall the
gunmen's general apperance, he could not remember the kind of shoes that appellant Santos was
wearing nor the color of their guns; that he had stated in his swon statement that he had picked out
appellant Santos from a line-up consisting of seven (7) persons, while he testified in open court that
he had identified appellant when the later was together with only one (1) detainee in the investigation
froom of the police station; that Bohol had intiallystated that Bautista was driving the jeep but on
direct examination, he stated that it was Cupcupin instead who had been driving the jeep; that in his
sworn statement, Bohol had claimed that he was directing traffic when he first heard gunshots, but
on cross-examination, stated that at the point he was engaged in taking his merienda.

Close examination of the record will, however, show that the supposed inconsistenceise adduced by
appellant Santos are either non-existent or clearly minor and inconsequential in character. The fact
that witness Bohol might not have remembered the kind of shoes appellant Santos was wearing
onthat violent occassion nor the color of the gunmen's weapons, is clearly inconsequential. Close
scrutiny of the sworn statement of Bohol (Exhibit "A") does not reveal any statement that he (Bohol)
had picked out appellant Santos from a seven (7) - person line-up nor does the transcript show that
witness Bohol had identified appellant Santos when appellant was alone with only one detainee in
the investigation room at the police station. 17 Appellant's counsel did not document his averments.
Moreover, as pointed out by the Solicitor General, 18 whether a police line-up considted of two (2) or
seven (7) persons is actually immaterial since a police line-up is not essential to a proper and
positive identification. 19 Whether it was Bautista or Cupcupin who had been driving the jeep and
whether Bohol was direcitng traffic or enjoying his merienda when the first gun shots rang out,
cannot be regarded as critical in nature; such questions do not detract from the basic facts that
Bohol was in a position and Bautista and saw both assailants and the victims. The netrenched
principle is that minro inconsistencies in the testimony of a witness tend to strengthen rather than to
weaken the credibility of the witness as they erase any suspicion of rehearsed testimony. 20

In his second assignment of error, appellant Santos in effect questions the trial court for admitting a
sworn statement by one Ronaldo Guerrero (Exhibit "EE"), a witnesses in another criminal case
(Criminal Case No. 8117) where appellant Santos was also charged with the murder of one Daniel
Nuguera which had taken place in the very same site where Bautista and Cupcupin were ambushed,
i.e., at the corner of Yangco Street and Estrella Street, Malabon, Metro Manila. When the
prosecution first presented the sworn statement of Guerrero in order to show criminal propensity on
the part of appellant Santos, the defesne objected to admission of such sworn statment; the trial
court sustained the objection and rejected the evidence for the purpose it was initially offered.
However, the trial court admitted the same as falling within one or more of the exceptions set out in
Section 34, Rule 130 of the Rules of Court, which reads:

Sec. 34. Similar Acts as Evifence. — Evidence that one did or didnot do a certain
thing at one time is not admissible to prove that he did or did not do the same or a
similar thing at another time; but it may be received to prove a specific intent
or knowledge, identity, plan, system, shceme, habit, custom or usage and the like.
(Empahsis supplied).
Appellant Santos now complains that the affidavit of Ronaldo Guerrero was hearsay evidence,
considering that the prosecution did not present Ronaldo Guerrero as a witness during the trial. We
consider that the trial court did not commit reversible error in admitting the Guerrero affidavit for the
limited purpose for provign knowledge or plan or shceme, and more specifically, that appellant knew
that the particular corner of two (2) particular streets in Manila was a good place to ambus a vehicle
and its passenters. Appellant also had waived the hearsay character of this evidence by failure
seasonably to ojbect to the admission of the affidavit; it is too late in that day to raise the hearsay
rule in the appellant's memorandum after prosecution and defense had presented their respective
cases and had made their repsective offers of evidence. 21 Finally, and in any cae, as pointed out by
the Solicitor General, the exclusion of the Guerrero affidavit would not result in any change in the
result reache by the trial court. For that result is esentially and adequately based upon the positive
identification of appellant Santos as one of the gunmen by Baustisa and Bohol.

That it took the police authorities five (5) months to locate and apprehend appellant Santos who, it
turned out, resided close by the very locale of the ambush-slaying, did not in any way weaken the
evidence of the prosecution of detract from the conclusions reached by the trial court. The length of
that period of time shows only that police procedures are not always as efficient as they could be
and that witnesses are frequently reluctant to voluntee information to the police authorities in criminal
cases, a point noted so frequently as to have become a matter of judicial notice. 22

Finally, we come to the defense of alibi which appellant Santos raised before the trial court and
which was recounted by the trial court in the following manner:

Accused Raul Santos, after denying the accusations against him, insisted that he
was on the date and time that Cupcupin and Bautista were ambushed somwhere in
Ibaan, Batangas to which place he went on May 20, 1989, because his sister
Teresita received a subpoena in a case involving one Apolonio Nuguera and which
subpoena was given to him by another sister named Isabel. Accused Santos claimed
that he was surprised and confused by said subpoena (Exh. 2) and had to got to
Batangas while his sisters are verifying the complaint against him. Accused Santos
also maintained that from the time he left the place on June 12, 1989, he remained
continuously in said place.

xxx xxx xxx

The testimony of accused Santos regarding his stay in Batangas was corroborated
by Melinda David in show house he stayed and by this sister Isabel Santos. 23

In respect of the weight properly given to a defense of a alibi, the Court has, times beyond
numbering, ruled that such defense is weak most especially when established exclusively or mainly
by the accused himself and his relatives and nto by independent and credible persons, 24 and that
such a defense will not prevail over the positive idenfication made by credible witnesses, 25 especially
where the witness is the victim-complainant himself.

WHEREFORE, for all the foregoing, we hold that the judgment of conviction rendered by the trial
court must be, and it is hereby, AFFIRMED with the following modifications: the civil indemnity
payable to the heirs of Glicerio Cupcupin shall be INCREASED to P50,000.00; the penalty of life
imprisonment in Criminal Case No. 8517-MN shall be CHANGED to reclusion perpetua, which is the
proper imposable penalty under the Revised Penal Code. Costs against apellant.

SO ORDERED.
G.R. No. 133888 March 1, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALFREDO NARDO Y ROSALES, accused-appellant.

PER CURIAM:

This case is before this Court on automatic review from the Regional Trial Court of Legazpi City,
Albay, Branch III, which imposed on accused-appellant the death penalty for rape in Criminal Case
No. 7170.

The victim, Lorielyn R. Nardo, is the eldest daughter of accused- appellant. She was born on
September 11, 1981 and, at the time of the incident, was fourteen (14) years old.1

On February 24, 1996, around noon, Lorielyn was in their house located in Barangay 3, Camalig,
Albay, together with her father, accused-appellant Alfredo Nardo, two younger brothers, Leonel and
Louie, and maternal grandfather, Vicente Remot. At 1:30 o'clock in the afternoon, after they had
lunch, Vicente left for work. Alfredo told his sons, Leonel and Louie, to go out. He then ordered
Lorielyn to get his cigarettes in his bedroom. When Lorielyn went inside the bedroom, her father
followed her. He embraced Lorielyn from behind and began mashing her breasts. Lorielyn pleaded,
"Papa, please stop it. Have mercy." Her father ignored her. Instead, he undressed her and pushed
her to the bed. Lorielyn started to cry, while Alfredo took off his clothes. Then, he lay on top of her
and had sexual intercourse with her. He kissed her from the neck down. She tried to free herself but
Alfredo took hold of a knife from a nearby cabinet and pointed it at her right ear. He threatened to kill
their whole family if Lorielyn told anyone what he did. When he was finished, Alfredo left the house.
During all this time, Lorielyn's mother, Elizabeth Nardo, was washing clothes about five houses
away.2

Elizabeth returned home at about 3:00 o'clock p.m. She saw Lorielyn crying while washing the
dishes. She asked Lorielyn why she was crying, but her daughter said nothing.3

On March 19, 1996, Lorielyn was washing clothes when her father approached her and whispered,
"We will play tonight near the river." Lorielyn understood this to mean that her father wanted to have
sexual intercourse with her again. She finished the laundry and left the house. She took a passenger
jeepney to Barangay Libod, Camalig, Albay and proceeded to the house of her aunt, Carol Navera.
She stayed there until her aunt arrived at around 5:00 o'clock in the afternoon. When it became late,
Carol told Lorielyn to go home, but she decided to spend the night at her aunt's house because she
was afraid to undergo the ordeal from her father again.4

The next day, Lorielyn's brother, Leonel, was sent by her father to fetch her, but she refused to go
with him. Her aunt asked her again why she did not want to go home. She merely said she had a
problem. She slept at her aunt's house again that night. The following day, her mother came to fetch
her. Lorielyn told her mother she did not want to go home. She said "Mama, do you want me to
become pregnant in that house?" Her mother asked, "Who will impregnate you there?" Lorielyn
replied, "Your husband." Her mother retorted that Alfredo could not do that to her, then left.5
Lorielyn stayed at her aunt's house until March 22, 1996. On that date, Carol again asked Lorielyn
what her problem was. Finally, she told her aunt that her father raped her. Immediately, Carol went
to report the matter to the police. She later returned home with two policemen, and together they
brought Lorielyn to the Camalig Police Station. The rape was entered in the police blotter.6 The
policemen then brought Lorielyn to the Municipal Health Office of Camalig, Albay, where she was
examined by Dr. Melvyn F. Orbe, the Municipal Health Officer.7 From there Lorielyn was brought to
the Municipal Trial Court of Camalig-Albay to file a formal complaint for rape against her father,
Alfredo Nardo.8

On May 29, 1996, an Information for rape was filed against Alfredo Nardo, charging as follows:

That on or about the 24th day of February 1996, at more or less 1:30 o'clock in the
afternoon, at Brgy. No. 3, Municipality of Camalig, Province of Albay, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, being the father of the
herein victim, with lewd and unchaste design, by means of violence, force and intimidation,
armed with a knife, did then and there wilfully, unlawfully and feloniously have carnal
knowledge with her (sic) own daughter, LORIELYN R. NARDO, a 14 year old girl, against
her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW.9

At the arraignment on August 8, 1996, accused-appellant pleaded not guilty.10

The prosecution presented Dr. Melvyn Orbe, who testified on the following findings as a result of his
examination of the victim, Lorielyn Nardo:

Pelvic Examination:

• whitish to yellowish discharge

• irritation lateral aspect of the posterior vulva at 3 o'clock

• healed laceration hymenal in origin posterior aspect of the fourchette11

Dr. Orbe stated that based on these findings, it is possible that Lorielyn had sexual intercourse.12

Carolina Navera, testifying for the prosecution, corroborated Lorielyn's statement that the latter went
to her house on March 20, 1996. Lorielyn cried and told her that she did not want to go home
because she had a problem. Elizabeth, Lorielyn's mother, came to fetch her but she refused to go
home, saying that she was raped by her father. Upon hearing this, Elizabeth left and told Carolina
not to let Lorielyn leave her house. After Elizabeth was gone, Carolina went to the police station. She
returned later with two policemen, who then brought Lorielyn to the police headquarters.13

Ma. Francia Aguilar, the social welfare officer of the Department of Social Welfare and Development,
also testified that in the evening of March 22, 1996, she responded to a report of a rape incident.
She met the victim, Lorielyn Nardo, at the house of Cely Bantog, a social worker, at Camalig, Albay.
She interviewed Lorielyn and her mother, Elizabeth, for the purpose of preparing a Social Case
Study Report.14 Thereafter, she endorsed Lorielyn to the DSWD Center for Girls in Sorsogon,
Sorsogon to undergo therapeutics.15
SPO3 Jose Nuylan, a member of the Camalig police force, testified that he investigated the rape
incident and took the statement of Lorielyn Nardo.16

Elizabeth Nardo, the victim's mother, was called to the witness stand. She testified that she and
Alfredo are not married, but they have been living together. They have seven children, the eldest of
whom is Lorielyn. She stated that Lorielyn was born on September 11, 1981 at Anei, Claveria,
Misamis Oriental; that Lorielyn's birth certificate was burned in the Municipal Building of Misamis
Oriental.17 However, Elizabeth presented and identified Lorielyn's baptismal certificate showing that
she was born on September 11, 1981.18

The defense, on the other hand, presented lawyer Santer G. Gonzales, the employer of accused-
appellant. He testified that accused-appellant worked as a helper at his farm in Quirangay, Camalig,
Albay. On February 24, 1996, accused-appellant arrived at his farm before 8:00 o'clock in the
morning. He was followed by his father-in-law, Vicente Remot, who lived with him in the same
house. It started to rain hard, so they decided not to work that day. Vicente Remot went home at
around 8:30 or 9:00 o'clock in the morning. Accused-appellant stayed behind. After a while, Paterno
Ramas, a neighbor of Atty. Gonzales, arrived. They started to drink. None of them left the farmhouse
since Atty. Gonzales kept bottles of gin and cigarettes in stock. They were joined later in the
afternoon by Didjo Mujar, another friend of Atty. Gonzales. They drank about five bottles of gin and
sang while Atty. Gonzales played the guitar. The rain subsided at around 3:30 o'clock in the
afternoon, so they stopped drinking. At 4:00 o'clock in the afternoon, accused-appellant left.19 The
farm is located around 400 to 500 meters away from Barangay 3, where accused-appellant and the
victim reside, and can be reached in 15 minutes.20

When asked to comment on the victim, Lorielyn Nardo, Atty. Gonzales described her as one capable
of telling a lie. He narrated that once, she went to his farm to collect the amount of P50.00 as daily
wage of her grandfather, Vicente Remot, but she gave only P35.00 to her mother. Elizabeth thus
went to Atty. Gonzales' to ask about the deficiency. They later learned from Lorielyn's younger sister
that she spent the missing P15.00 on snacks.21

Vicente Remot, accused-appellant's father-in-law, corroborated Atty. Gonzales' testimony that he

reported for work at the latter's farm in the morning of February 24, 1996, but he was unable to work
because of the rain, so he went home instead, leaving accused-appellant in the farm. At 1:00 o'clock
in the afternoon of that day, he was at home watching television with Elizabeth and his
grandchildren, including Lorielyn. He refuted Lorielyn's claim that he left after lunch to work, saying
that he stayed in the house the whole afternoon since it was raining.22

Elizabeth also testified that on February 24, 1996, she was at home watching television with her
father and children, namely, Lorielyn, Lewcherd, Lailani, Leonel, Louie Boy and Leo Boy. All her
children were at home because it was a Saturday. She claimed that Lorielyn filed the complaint for
rape against her father because he was very strict with her. She learned from Lorielyn's best friend
that she had a problem with her boyfriend, a certain Erwin Loreno. At one time, Lorielyn asked
permission to attend a holy retreat, but Elizabeth found out from the school that there was no such
retreat. Lorielyn lied on another occasion, when she told Mrs. Bonifacia "Paz" Nieva that her
grandfather was sick so she can borrow money.23

Mrs. Bonifacia Nieva testified that her daughter was a classmate of Lorielyn. Once, Lorielyn visited
her saying that she was sent by Elizabeth to borrow money because her grandfather was sick. Mrs.
Nieva gave Lorielyn P200.00. Later, when she went to see Elizabeth to collect payment, she found
out that Lorielyn's grandfather did not get sick. Lorielyn admitted to her that she lied about it to be
able to borrow money.24
The prosecution recalled Lorielyn to the witness stand by way of rebuttal evidence. She refuted Atty.
Gonzales' statement that she did not turn over in full the salary of her grandfather in the amount of
P50.00. She denied that she lied to her mother about a holy retreat held by her school. Anent the
amount of P200.00 she borrowed from Mrs. Nieva, she asserted that it was her father who ordered
her to do that, and that she gave the whole sum of P200.00 to him.25

On clarificatory questioning by the presiding judge, Lorielyn maintained that her grandfather, Vicente
Remot, indeed came home in the morning of February 24, 1996, but he left again to go to Atty.
Gonzales' farm after lunch. That afternoon, her mother was at the public faucet located far away
from their house washing clothes. The judge wondered aloud why she was doing the laundry in the
afternoon when this is usually done in the morning. Lorielyn replied that her mother had started
doing the laundry in the morning but that she was not able to finish it, so she returned in the
afternoon to continue her chore. She denied having any male friends, saying all her friends are girls.
When asked once more by the judge, Lorielyn reiterated that her father had sexual intercourse with
her.26

Carolina Nieva and Elizabeth Nardo were presented as sur-rebuttal witnesses. They testified in sum
that Lorielyn had a boyfriend.27

Accused-appellant was presented as the last witness. He denied that he raped his daughter on
February 24, 1997, saying that he was at the farm of Atty. Gonzales. He scolded Lorielyn when he
learned from her sister and brother that she was always going around with a boy. He also stated that
Lorielyn got mad at him because he did not permit her to leave the house whenever she wanted to.28

On March 3, 1998, the trial court rendered judgment as follows:

WHEREFORE, IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, this court finds

the accused ALFREDO NARDO Y ROSALES GUILTY BEYOND REASONABLE DOUBT of
the crime of RAPE and sentences him to suffer the penalty of DEATH. The said accused in
likewise ordered to pay Lorielyn Nardo the amount of Fifty Thousand Pesos (P50,000.00) for
moral damages.

For humanitarian reasons, however, it is recommended that the DEATH penalty be

commuted to RECLUSION PERPETUA.

SO ORDERED.29

Accused-appellant raises the following assignment of errors:

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE

VICTIM LORIELYN AND DISREGARDING THE EVIDENCE FOR THE DEFENSE.

II

THE TRIAL COURT ERRED IN REFUSING TO RECITE THE REASONS WHY IT WAS
RECOMMENDING EXECUTIVE CLEMENCY FOR THE ACCUSED.30

Accused-appellant assails the trial court's finding that Atty. Gonzales was his employer and therefore
was likely to testify in his favor; and that he could not have noticed accused-appellant leave the farm
in the afternoon of February 24, 1996 because he had one drink too many. Accused-appellant
contends that the court should not have been too quick to condemn him when his witness was a
lawyer. Furthermore, he argues that Lorielyn's conduct after the alleged rape, specifically from
February 25 to March 19, 1996, during which she stayed in the house with her father and continued
to do her daily chores, creates a doubt on the veracity of the charge.

In the Reply Brief for accused-appellant,31 defense counsel reveals that Lorielyn wrote her the
following letter:

7-13-99

Dear Atty. De Guzman:

Ako nga po pala si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinbin pa sa ngayon sa
Maximum Security Compound NBP I-D Muntinlupa City. Sumulat po ako sa inyo upang
humingi ng tulong na gawin po sana ang lahat, wala po talagang kasalanan ang aking ama
ako na po mismong nag-akusa ang nagsasabi na walang katotohanan ang lahat ng mga
sinabi ko na pinagsamantalahan niya ako. Nagawa ko lang po 'yon dahil masyado po kasi
siyang mahigpit sa aming magkakapatid. Atty. tulungan ninyo sana ako, nalaman ko nga po
pala ang inyong address dahil dumalaw po ang mama ko noon sa papa ko at hiningi ko
naman po para masulatan ko po kayo.

Umaasa po akong lubos na ako'y inyong matutulungan.

Lubos na umaasa

LORIELYN NARDO32

On May 4, 2000, counsel for accused-appellant filed a Supplemental Reply Brief,33 alleging that she
received another letter from Lorielyn Nardo which states:

04-17-2000

Dear Atty. Teresita de Guzman,

Unung-una po sa lahat ay nagpapasalamat po ako sa pag-response mo sa letter. Ako nga

po pala si Lorielyn Nardo na anak ni Mr. Alfredo Nardo na nakapiit ngayon sa DORM 1-D ng
Muntinlupa, ako po yung nagpadala ng liham sa inyo. Attorney, lagi ko pong ipinagdarasal
na nawa'y matapos na ang paghihirap at pagdurusa ng aking ama sa loob ng piitan, nawa'y
matapos na ang lahat ng problema upang manumbalik muli ang sigla ng aming pamilya.
Nagpapasalamat nga rin po pala ako sa ginagawa mong pagtulong sa amin, attorney nawa
po ay makamit nyo ang tagumpay.

Hanggang na lamang po ang aking liham, umaasa po ako sa inyong pang-unawa at

tagumpay.

Nagpapasalamat at umaasa,

Lorielyn Nardo34
In compliance with the Court's Resolution dated November 14 2000,35the Office of the Solicitor
General filed its comment on the letters of Lorielyn Nardo,36 contending that there is no mention of
her father's innocence in her letter dated April 17, 2000. Rather, she merely expressed therein her
deep sympathy for her father's situation in prison. The Solicitor General argues that a recantation is
not sufficient to warrant the exoneration of accused-appellant after he has been proven guilty
beyond reasonable doubt based on Lorielyn's candid, categorical and straightforward testimony
before the trial court.

In the meantime, counsel for accused-appellant, by way of a Manifestation and Motion,37 submitted
two more letters from Lorielyn Nardo which are hereunder reproduced, viz:

August 10, 2000

Dear Attorney,

Unang-una po sa lahat ay ang taos-puso kong pasasalamat, sa dahilang pagpapaunlak niyo

sa kahilingan kong maipasa sa korte ang isang liham ng katotohanan, at kahit wala pa po
ang isang desisyon mula sa korte ay lubos po akong umaasa at nagtitiwala sa inyong
kakayahan. Attorney, kung alam niyo lang po ng matanggap at mabasa ang isang letter na
nagmula sa'yo ay punung-puno po ng kaligayahan ang aking puso dahil kahit papaano ay
nabawasan na ang pag-aalinlangan sa aking isipan. Sa ngayon po ay patuloy na lang akong
umaasa na sana isang araw ay makita kong muling masaya ang aking pamilya. Attorney,
isang pabor po ang nais kong hilingin, na sana bago magpasko ay muli ko ng makasama
ang aking ama, at gusto ko pong maging ninyo 'to sa akin sa darating na pasko.

Hanggang dito na lamang po ang aking liham, at lubos po akong nagtitiwala sa inyong
kakayahan na mapapawalang sala ang aking ama.

Truly yours,

Lorielyn Nardo38
January 17, 2001

Dear Atty. Teresita De Guzman,

Ako po muli si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinhin sa NBP Dorm-1-D
Muntinlupa. Kahit hindi po natupad ang hinihiling kong sana'y makalaya ang aking ama
noong nakaraang Disyembre ay patuloy ko pa rin pong inaasahan at hinihiling ang inyong
tulong na sana po ay makalaya na ang aking ama. Patuloy pong nangingibabaw ang aking
konsensiya dahil sa aking ginawa, usmaasa po ako na sana ay lalo pang mapadali ang
paglabas niya sa loob ng kulungan, maniwala po kayo wala siyang kasalanan. Attorney,
alam ko po na ginagawa niyo (po) ang lahat kaya't ngayon pa lang po ay nagpapasalamat
ako sa inyo at patuloy na umuasa ng inyong tulong at sana 'y maunawaan niyo ako.

Patuloy na umaasa,

Lorielyn Nardo (anak)39

Accused-appellant relies on these letters to obtain a reversal of the trial court's judgment of his
conviction. However, the said letters were not subscribed and sworn to by Lorielyn.

Be that as it may, recantations are frowned upon by the courts. A recantation of a testimony is
exceedingly unreliable, for there is always the probability that such recantation may later on be itself
repudiated. Courts look with disfavor upon retractions, because they can easily be obtained from
witnesses through intimidation or for monetary consideration. A retraction does not necessarily
negate an earlier declaration.40 Especially, recantations made after the conviction of the accused
deserve only scant consideration.41

Moreover, any recantation or affidavit of desistance, by itself, even when construed as a pardon in
the so-called "private crimes," is not a ground for the dismissal of the criminal case once the action
has been instituted.42 The pardon to justify the dismissal of the complaint should be made prior to the
institution of the criminal action.43 Parenthetically, the crime in the case at bar was committed in
1996, i.e., prior to the passage of the R.A. 8353, The Anti-Rape Law of 1997, which reclassified rape
as a crime against persons.

Even if it were sworn, Lorielyn's recantation could hardly suffice to overturn the finding of guilt by the
trial court which was based on her own clear and convincing testimony, given during a full-blown
trial. An affidavit of recantation, being usually taken ex parte, would be considered inferior to the
testimony given in open court. It would be a dangerous rule to reject the testimony taken before a
court of justice simply because the witness who gave it later on changed his/her mind for one reason
or another. Such a rule would make a solemn trial a mockery, and place the proceedings at the
mercy of unscrupulous witnesses.44

As stated, the trial court arrived at its finding of guilt after a careful assessment of the evidence
presented, foremost of which was the testimony of the victim in open court, where the trial judge was
able to personally evaluate her manner of testifying, and from there reach a studied opinion as to her
credibility. As a rule, we do not disturb the findings by the trial court on the credibility of witnesses,
for the trial court is in a better position to pass upon the same.45

"The trial judge is in a better position to decide the question of credibility, since he personally
heard the witnesses and observed their deportment and manner of testifying. He had before
him the essential aids to determine whether a witness was telling the truth or lying. Truth
does not always stalk boldly forth naked; she often hides in nooks and crannies visible only
to the mind's eye of the judge who tried the case. To him appears the furtive glance, the
blush of conscious shame, the hesitation, the sincere or flippant or sneering tone, the heat,
the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the
solemnity of an oath, the carriage and mien."46

We find nothing in the records which would indicate that the findings of fact of the trial court are not
supported by the evidence or were arrived at in manifest or palpable error, such as to warrant a
departure from the foregoing rule. The trial court was correct in lending credibility to the testimony of
Lorielyn. The sole testimony of Lorielyn was sufficient to establish the guilt of accused-appellant. It is
settled that a person accused of rape can be convicted solely on the testimony of the victim if the
trial court finds said testimony to be credible, natural, convincing, and consistent with human nature
and the course of things.47

Indeed, a daughter, especially one in her minority, would not accuse her own father of such an
unspeakable crime as incestuous rape had she really not been aggrieved.48 More importantly,
Lorielyn withstood all the rigors of the case, starting from the initial police interrogation, the medical
examination, the formal charge, the public trial, to the cross-examination. She went through the court
hearings, where she came face to face with her father. If it was true that she merely made up the
charge, she should have been bothered by her conscience at the sight of her father in prison garb
and upon the realization of his sorry state while in detention. The fact that she maintained her story
during her testimony-in-chief all the way up to her rebuttal testimony only serves to substantiate the
veracity of her claim.

Well settled is the rule that no woman would concoct a story of defloration, allow an examination of
her private parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid
tale was not true and her sole motivation was not to have the culprit apprehended and punished.49 A
young girl's revelation that she has been raped, coupled with her voluntary submission to medical
examination and her willingness to undergo public trial where she could be compelled to give out the
details of an assault on her dignity by, as in this case, her own father, cannot be so easily dismissed
as a mere concoction. 50 Courts usually give credence to the testimony of a girl who is a victim of
sexual assault, particularly if it constitutes incestuous rape because, normally, no person would be
willing to undergo the humiliation of a public trial and to testify on the details of her ordeal were it not
to condemn an injustice. Needless to say, it is settled jurisprudence that testimonies of child-victims
are given full weight and credit, since when a woman, more so if she is a minor, says that she has
been raped, she says in effect all that is necessary to show that rape was committed. Youth and
immaturity are generally badges of truth and sincerity.51

During the trial, the defense endeavored to portray Lorielyn as an incorrigible liar. Occasions were
cited wherein Lorielyn supposedly lied in order to obtain money or her parents' permission to leave
the house. However, Rule 130, Section 34, of the Rules of Court provides that: "Evidence that one
did or did not do a certain thing at one time is not admissible to prove that he did nor did not do the
same or a similar thing at another time; but it may be received to prove a specific intent or
knowledge, identity, plan, system, scheme, habit, custom or usage, and the like." While lying may
constitute a habit, we believe that the falsehoods committed by Lorielyn, assuming them for the
moment to be true, are petty and inconsequential. They are not as serious as charging one's own
father of the sordid crime of rape, with all of its serious repercussions.

Accused-appellant argues that the trial court should have given credence to his witness, Atty. Santer
G. Gonzales, because he is a member of the bar. Atty. Gonzales, however, took the witness stand
not as a lawyer but as an ordinary person. He testified in his capacity as accused-appellant's
employer. As such, no special privilege should be accorded him by the trial court by reason only of
his being a member of the bar. He did not appear in that case as an officer of the court but as a
mere witness, and hence should be treated as one.

Likewise, accused-appellant insists that Lorielyn's conduct after the rape, during which she
continued to perform her tasks and lived with her father in their house, negates the commission of
rape. Accused-appellant's proposition is derived from Lorielyn's perfunctory yes-or-no answers to the
leading questions propounded to her on cross-examination. Rather than sustain this argument, we
rely instead on the observations of the Social Welfare Officer, whom we find to be an impartial
witness, in this wise:

Per observation, Lorielyn is a shy and silent type person. She talked in a very small voice
and during the interview she only talks when being asked. She also appears to be very sad
and have been staring blankly (sic).52

Accused-appellant assigns as error the trial court's failure to give the reasons for recommending the
commutation of his sentence from death to reclusion perpetua. As correctly observed by the Solicitor
General, the trial court was impelled by humanitarian reason.53 Moreover, the commutation of
sentence is a prerogative of the Chief Executive.
As against the positive and categorical testimony of Lorielyn, accused-appellant can only proffer the
defense of alibi. However, in order to overcome the evidence of the prosecution with the defense of
alibi, he must establish not only that he was somewhere else when the crime was committed but
also that it was physically impossible for him to have been at the scene of the crime at the time it
was committed.54 In the instant case, the testimonies for the defense sought to establish that
accused-appellant was 400 to 500 meters, or 15 minutes, away from the scene of the crime. This
hardly qualifies as proof that it was physically impossible for him to be at the scene of the crime
when it was committed. Accused-appellant's defense of alibi must, therefore, necessarily fail.

Carefully sifting through the entire body of evidence presented in this case, we find nothing which
would destroy the moral certainty of accused- appellant's guilt. While there may be some
inconsistencies in the testimony of Lorielyn, these to our mind are minor inconsistencies which serve
to strengthen her credibility as they are badges of truth rather than indicia of falsehood.55 Minor
inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather
than weaken their credibility. Inconsistencies in the testimony of prosecution witnesses with respect
to minor details and collateral matters do not affect either the substance of their declaration, their
veracity, or the weight of their testimony. Such minor flaws may even enhance the worth of a
testimony, for they guard against memorized falsities.56 Besides, a rape victim can not be expected
to recall vividly all the sordid details of the violation committed against her virtue.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, provides:

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law-spouse of the parent of the victim. . . ..57

The concurrence of the two special qualifying circumstances, namely the victim's minority and the
relationship between the victim and the culprit, increases the penalty of rape to one (1) degree, thus
resulting in the imposition of the death penalty. In order to be appreciated as qualifying
circumstances, however, these must be properly pleaded in the indictment.58 In addition, the
qualifying circumstances should be duly proved during the trial.59

These requirements are met in this case. The Information sufficiently alleges that accused-appellant
is the father of the victim, and that the latter was fourteen (14) years old at the time of commission of
the rape. These elements, furthermore, were categorically affirmed by Elizabeth Nardo, the victim's
mother and the most competent witness. She testified that accused-appellant is Lorielyn's father,
and that Lorielyn was born on September 11, 1981,60 thus placing her age at the time of the rape at
fourteen (14) years. Moreover, the Lorielyn's birth date and her relationship to accused-appellant are
shown by her Certificate of Baptism.61 This was presented by her mother, Elizabeth, in lieu of her
Certificate of Live Birth, which was destroyed by fire.62 The baptismal certificate, coupled by her
mother's testimony, is sufficient to establish Lorielyn's age.63

We therefore affirm the trial court's imposition of the death penalty.

Four justices of the Court have continued to maintain the unconstitutionality of Republic Act No.
7659 insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the majority
to the effect that this law is constitutional and that the death penalty can be lawfully imposed in the
case at bar.
We likewise affirm the award of P50,000.00 for moral damages which is consistent with prevailing
jurisprudence.64 No proof is required to substantiate the award of moral damages in rape cases.
In People vs. Prades,65 we held:

x x x The Court has also resolved that in crimes of rape, such as that under consideration,
moral damages may additionally be awarded to the victim in the criminal proceeding, in such
amount as the Court deems just, without the need for pleading or proof of the basis thereof
as has heretofore been the practice. Indeed, the conventional requirement of allegata et
probata in civil procedure and for essentially civil cases should be dispensed with in criminal
prosecutions for rape with the civil aspect included therein, since no appropriate pleadings
are filed wherein such allegations can be made.

Corollarily, the fact that complainant has suffered the trauma of mental, physical and
psychological sufferings which constitute the bases for moral damages are too obvious to
still require the recital thereof at the trial by the victim, since the Court itself even assumes
and acknowledges such agony on her part as a gauge of her credibility. What exists by
necessary implication as being ineludibly present in the case need not go through the
superfluity of still being proved through a testimonial charade.

In addition to moral damages, the amount of P75,000.00, is awarded to the victim as indemnity.

x x x Indictments for rape continue unabated and the legislative response has been in the
form of higher penalties. The Court believes that, on like considerations, the jurisprudential
path on the civil aspect should follow the same direction. Hence, starting with the case at
bar, if the crime of rape is committed or effectively qualified by any of the circumstances
under which the death penalty is authorized by the present amended law, the indemnity for
the victim shall be in the increased amount of not less than P75,000.00. This is not only a
reaction to the apathetic societal perception of the penal law and the financial fluctuations
over time, but also an expression of the displeasure of the Court over the incidence of
heinous crimes against chastity.66

WHEREFORE, the judgment of the Regional Trial Court of Legaspi City, Albay, Branch III,
convicting accused-appellant Alfredo Nardo y Rosales of the crime of rape, sentencing him to death,
and ordering him to pay the victim, Lorielyn Nardo moral damages in the amount of P50,000.00, is
AFFIRMED with the MODIFICATION that accused-appellant is, further, ordered to pay the victim
civil indemnity in the amount of P75,000.00.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal
Code, upon finality of this decision, let certified true copies thereof, as well as the records of this
case, be forwarded without delay to the Office of the President for possible exercise of the clemency
or pardoning power.

SO ORDERED.
 [G.R. No. 146030. December 3, 2002]

REPUBLIC OF THE PHILIPPINES, represented by the Department of

Environment and Natural Resources, petitioner, vs. HEIRS OF
FELIPE ALEJAGA SR., represented by ROQUETA ALEJAGA,
FELIPE ALEJAGA JR., MARIA DULLA ALEJAGA, FELIPE
ALEJAGA III, ROQUETA ALEJAGA, JENNIFER ALEJAGA,
EVERETTE CAPUNDAN, AND LYNETTE ALEJAGA; THE
PHILIPPINE NATIONAL BANK and THE REGISTER OF DEEDS OF
ROXAS CITY, respondents.

DECISION
PANGANIBAN, J.:

We reiterate the familiar doctrine that a free patent obtained through fraud or
misrepresentation is void. Furthermore, the one-year prescriptive period provided in the
Public Land Act does not bar the State from asking for the reversion of property acquired
through such means.

Statement of the Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the November 15, 2000 Decision[1] of the Court of Appeals (CA) in CA-GR CV
No. 44568. The decretal portion of the challenged Decision reads as follows:

WHEREFORE, the appealed decision is hereby REVERSED, SET ASIDE and RECALLED.[2]

The Facts

The factual antecedents of the case are summarized by the CA thus:

On December 28, 1978, [Respondent] Felipe Alejaga, Sr. x x x filed with the District Land
Office, Roxas City, Free Patent Application No. (VI-2) 8442 covering a parcel of land identified
as Lot 1, Mli-06-000020-D, with an area of .3899 hectares, more or less located at Dumolog,
Roxas City (Exh. A; Exh 9). It appears that on December 27, 1978, when the application was
executed under oath, Efren L. Recio, Land Inspector, submitted a report of his investigation and
verification of the land to the District Land Office, Bureau of Lands, City of Roxas. On March
14, 1979, the District Land Officer of Roxas City approved the application and the issuance of
[a] Free Patent to the applicant. On March 16, 1979, the patent was also ordered to be issued and
the patent was forwarded to defendant Register of Deeds, City of Roxas, for registration and
issuance of the corresponding Certificate of Title. Thereafter, Original Certificate of Title No. P-
15 Free Patent No. (VI-2) 3358 was issued to [respondent] by defendant Register of Deeds.

On April 4, 1979, the heirs of Ignacio Arrobang, through counsel in a letter-complaint requested
the Director of Lands, Manila, for an investigation of the District Land Officer, Roxas City, and
the Regional Office, Region VI, Iloilo City, for irregularities in the issuance of the title of a
foreshore land in favor of [respondent]. Isagani Cartagena, Supervising Special Investigator,
Legal Division, Land Management Bureau (formerly Bureau of Lands) submitted his Report
dated April 17, 1989. The Chief, Legal Division, Land Management Bureau, Manila,
recommended to the Director of Lands appropriate civil proceeding for the cancellation of Free
Patent Title No. (VI-2) 3358 and the corresponding Original Certificate of Title No. P-15 in the
name of [respondent].

In the meantime, [respondent] obtained a NACIDA loan under the Cottage Industry Guarantee
and Loan Fund by the defendant Philippine National Bank (hereinafter referred to as PNB)
executed in Cebu City in the amount of P100,000.00 on August 18, 1981. The loan was secured
by a real estate mortgage in favor of defendant PNB. The promissory note of appellant was
annotated at the back of the title.

On April 18, 1990, the government through the Solicitor General instituted an action for
Annulment/Cancellation of Patent and Title and Reversion against [respondent], the PNB of
Roxas City and defendant Register of Deeds of Roxas City covering Free Patent Application
(VI-2) 8442 of the parcel of land with an area of .3899 hectares more or less located at Dumolog,
Roxas City.

On November 17, 1990, while the case is pending hearing, [respondent] died. He was substituted
by his wife Roqueta Alejaga and his children, namely: Everette Alejaga, Lynnette Alejaga,
Felipe Alejaga, Jr., Maria Dulla Alejaga. Roqueta Alejaga, Jennifer Alejaga and Felipe Alejaga
III.

xxxxxxxxx

After hearing, the [trial] court in its dispositive portion decreed as follows:

WHEREFORE, judgment is rendered declaring that the approval of Free Patent Application No.
3358 and issuance of Original Certificate of Title No. P-15 in the name of Felipe Alejaga is by
means of fraud hence, null and void ab initio and the court orders:

a) the cancellation of the approval of the application No. (VI-2) 8442 covering Lot No. 1, Mli-
06-000020-D with an area of .3899 hectares, more or less, located at Dumulog, Roxas City;

b) the cancellation of Original Certificate of Title No. P-15, Free Patent No. (VI-2) 3358 in the
name of Felipe Alejaga;

c) the land covered thereby as above described is reverted to the mass of the public domain;
d) the defendants, Heirs of Felipe Alejaga Sr. or defendant, Philippine National Bank, Roxas
City Branch, to surrender the owners duplicate copy of above described Original Certificate of
Title No. P-15 to the Register of Deeds (now Registries of Land Titles and Deeds), Roxas City;

e) the defendant, Register of Deeds, Roxas City, to cancel Original Certificate of Title No. P-15
and the owners duplicate copy of said title surrendered by above stated defendants;

f) defendants, Philippine National Bank, cross-claim is dismissed.

Costs against the defendants Heirs of Felipe, Alejaga, Sr.[3]

Ruling of the Court of Appeals

In reversing the RTC, the CA ruled that petitioner failed to prove its allegation that
respondents had obtained the free patent and the Certificate of Title through fraud and
misrepresentation.[4] The appellate court likewise held that, assuming there was
misrepresentation or fraud as claimed by petitioner, the action for reversion should have
been brought within one (1) year from the registration of the patent with the Registry of
Deeds.[5]
Further, the CA brushed aside as hearsay Isagani Cartagenas testimony that Land
Inspector Efren L. Recio had not conducted an investigation on the free patent application
of Felipe Alejaga Sr.[6] The CA added that petitioner had failed to support its claim that the
lot covered by respondents free patent and title was foreshore land. [7]
Hence, this Petition.[8]

Issues

Petitioner raises the following issues for this Courts consideration:

I

The Honorable Court of Appeals erred in not finding that the case is already final and executory
as against respondent PNB.

II

The Court of Appeals erred in not considering that petitioner has proven the allegations to the
Complaint.

III

The Honorable Court of Appeals erred in declaring that the action for reversion is unavailing.[9]
 Simply stated, the issues can be summed up into two: (1) the efficacy of the grant of
the free patent and (2) the indefeasibility of the Certificate of Title issued in consequence
thereof.

This Courts Ruling

The Petition is meritorious.

First Issue:
Efficacy of the Grant

Petitioner argues that it has proven fraud in the issuance of Respondent Alejagas
free patent and Certificate of Title.[10] It also avers that Respondent PNB has failed to file
a timely Notice of Appeal.
On the other hand, the Alejagas contend that they have acquired a vested right over
the parcel of land covered by OCT No. P-15 by virtue of their proven open, actual,
exclusive and undisputed possession of the land for more than 30 years. [11]
At the outset, we must immediately clarify that the records show receipt by
Respondent PNB of a copy of the Decision on October 27, not on October 3, 1993 as
alleged by petitioner.[12] Further, the bank filed its Notice of Appeal on November 9, 1993,
within the 15-day reglementary period.
In addition, we must point out that the essential issue raised in this Petition -- the
presence of fraud -- is factual. As a general rule, this Court does not review factual
matters.[13] However, the instant case falls under one of the exceptions, because the
findings of the CA conflict with those of the RTC and with the evidence on record.[14]
We begin our resolution of this issue with the well-settled rule that the party alleging
fraud or mistake in a transaction bears the burden of proof.[15] The circumstances
evidencing fraud are as varied as the people who perpetrate it in each case. [16] It may
assume different shapes and forms; it may be committed in as many different
ways.[17]Thus, the law requires that it be established by clear and convincing evidence. [18]
In the case before us, we find that petitioner has adduced a preponderance of
evidence before the trial court, showing manifest fraud in procuring the patent. [19] This
Court agrees with the RTC that in obtaining a free patent over the lot under scrutiny,
petitioner had resorted to misrepresentation or fraud, signs of which were[20]ignored by the
Court of Appeals.[21]
First, the issuance of the free patent was not made in accordance with the procedure
laid down by Commonwealth Act No. 141, otherwise known as the Public Land
Act.[22] Under Section 91 thereof, an investigation should be conducted for the purpose of
ascertaining whether the material facts set out in the application are true.[23]
 Further, after the filing of the application, the law requires sufficient notice to the
municipality and the barrio where the land is located, in order to give adverse claimants
the opportunity to present their claims.[24] Note that this notice and the verification and
investigation of the parcel of land are to be conducted after an application for free patent
has been filed with the Bureau of Lands.
In this case, however, Felipe Alejaga Sr.s Application for Free Patent [25] was dated
and filed on December 28, 1978. On the other hand, the Investigation & Verification
Report[26] prepared by Land Inspector Elfren L. Recio of the District Land Office of the
Bureau of Lands of Roxas City was dated December 27, 1978. In that Report, he stated
that he had conducted the necessary investigation and verification in the presence of the
applicant. Even if we accept this statement as gospel truth, the violation of the rule cannot
be condoned because, obviously, the required notice to adverse claimants was not
served.
Evidently, the filing of the application and the verification and investigation allegedly
conducted by Recio were precipitate and beyond the pale of the Public Land Act.[27] As
correctly pointed out by the trial court, investigation and verification should have been
done only after the filing of the application. Hence, it would have been highly anomalous
for Recio to conduct his own investigation and verification on December 27, 1998, a day
before Felipe Alejaga Sr. filed the Application for Free Patent.[28] It must also be noted that
while the Alejagas insist that an investigation was conducted, they do not dispute the
fact that it preceded the filing of the application.[29]
Second, the claim of the Alejagas that an actual investigation was conducted is not
sustained by the Verification & Investigation Report itself, which bears no
signature.[30] Their reliance on the presumption of regularity in the performance of official
duty[31] is thus misplaced.Since Recios signature does not appear on the December 27,
1978 Report, there can be no presumption that an investigation and verification of the
parcel of land was actually conducted. Strangely, respondents do not proffer any
explanation why the Verification & Investigation Report was not signed by Recio. Even
more important and as will later on be explained, this alleged presumption of regularity --
assuming it ever existed -- is overcome by the evidence presented by petitioner.
Third, the report of Special Investigator Isagani P. Cartagena has not been
successfully rebutted. In that report, Recio supposedly admitted that he had not actually
conducted an investigation and ocular inspection of the parcel of land. Cartagenas
statement on Recios alleged admission may be considered as independently relevant. A
witness may testify as to the state of mind of another person -- the latters knowledge,
belief, or good or bad faith -- and the formers statements may then be regarded as
independently relevant without violating the hearsay rule.[32]
Thus, because Cartagena took the witness stand and opened himself to cross-
examination, the Investigation Report[33] he had submitted to the director of the Bureau of
Lands constitutes part of his testimony. Those portions of the report that consisted of his
personal knowledge, perceptions and conclusions are not hearsay.[34]On the other hand,
the part referring to the statement made by Recio may be considered as independently
relevant.[35]
 The doctrine on independently relevant statements holds that conversations
communicated to a witness by a third person may be admitted as proof that, regardless
of their truth or falsity, they were actually made. Evidence as to the making of such
statements is not secondary but primary, for in itself it (a) constitutes a fact in issue [36]or
(b) is circumstantially relevant to the existence of such fact.[37]
Since Cartagenas testimony was based on the report of the investigation he had
conducted, his testimony was not hearsay and was, hence, properly admitted by the trial
court.[38]
Based on the foregoing badges of fraud, we sustain petitioners contention that the
free patent granted to Felipe Alejaga Sr. is void. [39]Such fraud is a ground for impugning
the validity of the Certificate of Title.[40] The invalidity of the patent is sufficient basis for
nullifying the Certificate of Title issued in consequence thereof, since the latter is merely
evidence of the former.[41] Verily, we must uphold petitioners claim that the issuance of the
Alejagas patent and title was tainted with fraud.[42]

Second Issue:
Indefeasibility of Title

Petitioner contends that the State has an imprescriptible right to cause the reversion
of a piece of property belonging to the public domain.[43] On the other hand, the Alejagas
claim that, pursuant to Section 32 of PD 1529[44] -- otherwise known as the Property
Registration Decree -- the one-year period for reversion has already lapsed. [45] Thus, the
States Complaint for reversion should be dismissed.
We agree with petitioner.
True, once a patent is registered and the corresponding certificate of title issued, the
land covered by them ceases to be part of the public domain and becomes private
property. Further, the Torrens Title issued pursuant to the patent becomes indefeasible a
year after the issuance of the latter.[46] However, this indefeasibility of a title does not attach
to titles secured by fraud and misrepresentation.[47]Well-settled is the doctrine that the
registration of a patent under the Torrens System does not by itself vest title; it merely
confirms the registrants already existing one. Verily, registration under the Torrens
System is not a mode of acquiring ownership.[48]
Therefore, under Section 101 of Commonwealth Act No. 141,[49] the State -- even after
the lapse of one year -- may still bring an action for the reversion to the public domain of
land that has been fraudulently granted to private individuals.[50] Further, this indefeasibility
cannot be a bar to an investigation by the State as to how the title has been acquired, if
the purpose of the investigation is to determine whether fraud has in fact been committed
in securing the title.[51]
In the case before us, the indefeasibility of a certificate of title cannot be invoked by
the Alejagas, whose forebear obtained the title by means of fraud. [52] Public policy
demands that those who have done so should not be allowed to benefit from their
misdeed.[53] Thus, prescription and laches will not bar actions filed by the State to recover
its own property acquired through fraud by private individuals.[54] This is settled law.[55]

Prohibition Against Alienation

or Encumbrance

Assuming arguendo that the Alejagas title was validly issued, there is another basis
for the cancellation of the grant and the reversion of the land to the public domain. Section
118 of Commonwealth Act No. 141[56] proscribes the encumbrance of a parcel of land
acquired under a free patent or homestead within five years from its grant. [57]The
prohibition against any alienation or encumbrance of the land grant is a proviso attached
to the approval of every application.[58]
Further, corporations are expressly forbidden by law to have any right or title to, or
interest in, lands that are granted under free or homestead patents; or any improvements
thereon. They are forbidden from enjoying such right, title or interest, if they have not
secured the consent of the grantee and the approval of the secretary of the
Department of Agriculture and Natural Resources; and if such lands are to be devoted
to purposes other than education, charity, or easement of way. [59]
In the case at bar, Free Patent No. (VI-2) 3358[60] was approved and issued on March
14, 1979. Corresponding Original Certificate of Title No. P-15[61] was issued on the same
date. On August 18, 1981, or two (2) years after the grant of the free patent, Felipe
Alejaga Sr. obtained from Respondent PNB a loan[62] in the amount of P100,000. Despite
the statement on the title certificate itself that the land granted under the free patent shall
be inalienable for five (5) years from the grant, a real estate mortgage was nonetheless
constituted on the parcel of land covered by OCT No. P-15.[63] In his testimony, Gabriel D.
Aranas Jr., then Cashier III of respondent bank, even admitted that the PNB was aware
of such restriction.
COURT You testified Mr. Aranas that you inspected the title also when you credit
investigated the loan applicant Felipe Alejaga and you have personally
examined this?
A Yes, your Honor.
COURT Do you conclude that this Original Certificate of Title is a [free] patent?
A Yes, your Honor.
COURT And this [free] patent was granted on March 19, 1979.
A Yes, your honor.
COURT And as such [free] patent it cannot be alienated except [to] the government or
within five years from its issuance?
A Yes, your honor.
COURT Why did you recommend the loan?
 A Because it is just a mortgage.[64]
Thus, the mortgage executed by Respondent Felipe Alejaga Sr.falls squarely within
the term encumbrance proscribed by Section 118 of the Public Land Act.[65] A mortgage
constitutes a legal limitation on the estate, and the foreclosure of the mortgage would
necessarily result in the auction of the property.[66]
As early as Pascua v. Talens,[67] we have explained the rationale for the prohibition
against the encumbrance of a homestead -- its lease and mortgage included -- an
encumbrance which, by analogy, applies to a free patent. We ruled as follows:

It is well-known that the homestead laws were designed to distribute disposable agricultural lots
of the State to land-destitute citizens for their home and cultivation. Pursuant to such benevolent
intention the State prohibits the sale or encumbrance of the homestead (Section 116) within five
years after the grant of the patent.

Further, an encumbrance on a parcel of land acquired through free patent constitutes

sufficient ground for the nullification of such grant, as provided under Commonwealth Act
No. 141, which we quote:

SEC. 124. Any acquisition, conveyance, alienation, transfer, or other contract made or executed
in violation of any of the provisions of sections one hundred and eighteen, one hundred and
twenty, one hundred and twenty-one, one hundred and twenty-two, and one hundred and twenty-
three of this Act shall be unlawful and null and void from its execution and shall produce the
effect of annulling and canceling the grant, title, patent, or permit originally issued, recognized
or confirmed, actually or presumptively, and cause the reversion of the property and its
improvements to the State.

Mortgage over a parcel of land acquired through a free patent grant nullifies the award
and constitutes a cause for the reversion of the property to the state, as we held
in Republic v. Court of Appeals:[68]

The foregoing legal provisions clearly proscribe the encumbrance of a parcel of land acquired
under a free patent or homestead within five years from the grant of such patent.Furthermore,
such encumbrance results in the cancellation of the grant and the reversion of the land to the
public domain.[69]

To comply with the condition for the grant of the free patent, within five years from its
issuance, Felipe Alejaga Sr. should not have encumbered the parcel land granted to
him. The mortgage he made over the land violated that condition.[70] Hence, the property
must necessarily revert to the public domain, pursuant to Section 124 of the Public Land
Act.
WHEREFORE, the Petition is GRANTED and the assailed Decision SET
ASIDE. The Decision of the RTC of Roxas City (Branch 15) dated October 27, 1993
is REINSTATED. No costs.
SO ORDERED
G.R. No. L-44060 July 20, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO PARAGSA, alias "BENBEN", defendant-appellant.

MAKASIAR, J.:

Bienvenido Paragsa, alias "Benben", appealed to the Court of Appeals the decision of the Court of
First Instance of Cebu (Judge Agapito Hontanosas, presiding), the dispositive portion of which reads
as follows:

WHEREFORE, judgment is hereby rendered convicting the accused Bienvenido

Paragsa of the crime of Rape as charged in the Information beyond reasonable
doubt and applying the Indeterminate Sentence Law, hereby sentences him to suffer
the indeterminate penalty of twelve (12) years of prision mayor as minimum to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal as the
maximum and to indemnify the complaining witness in the amount of P8,000.00
(People vs. Rogato Rivera, 58, O.G. and People vs. Chan et al., CA No. 03545-GR,
August 11, 1967) with all legal accessories and to pay the costs. Being a detention
prisoner, he is entitled to the full credit of his preventive imprisonment from the time
of his confinement up to the date of the promulgation of this judgment.

xxx xxx xxx

(pp. 10-19, rollo).

Because the penalty of reclusion perpetua was imposed by the Court of Appeals on the accused,
this case is now before US for review pursuant to Section 34, Republic Act No. 296, as amended,
otherwise known as the Judiciary Act of 1948.

The evidence for the prosecution consists of the testimony of Mirasol Magallanes, the alleged rape
victim, her aunt-in-law, Mrs. Lita Parochel, and Dr. Luis L. Gandiongco of the Bantayan Emergency
Hospital, Bantayan, Cebu, who examined the offended party and submitted Exhibit A embodying his
findings thereon,

Substantially, the records show that in the afternoon of July 13, 1971, Mirasol, who was then a little
over twelve and a half (12½) years old (Exhibit B, p. 7, rec.), was alone in her parents' house in Sitio
Tabagac of Barrio Bunacan, Municipality of Madridejos, Cebu, cooking hog feed. Her parents were
away at the time — her father was in Cadiz, while her mother was in Sagay, both in Negros
Occidental (p. 16, t.s.n., Jan. 5, 1972) while the rest of the family were with Mirasol's grandmother in
Barrio Codia; also in Madridejos, Cebu. Mirasol was a 6th grade student of the Bunacan Elementary
School (p. 6, t.s.n., Dec. 3, 1971). Upon instruction of her mother, she did not go to school that
afternoon so that she could look after the pigs and cook their feed. Thus, she was alone in the
ground floor of their house cooking hog feed when the accused, Bienvenido Paragsa, armed with a
hunting knife, entered the house and closed the door after him. Approaching from behind, he placed
his left arm around Mirasol's neck, encircled her abdomen with his right arm, at the same time
pointing the hunting knife with s right hand at her breast, and threatened her not to shout otherwise
she would be killed. Thereafter, the accused pushed her to a bamboo bed nearby, rolled up her
dress and, with his two hands, removed her panties. The accused then placed his hunting knife on
the bed by Mirasol's side, opened the zipper of his pants while kneeling on the bed, opened
Mirasol's thighs, picked up the hunting knife again, placed himself on top of Mirasol, inserted his
erect penis into her sexual organ and then made four push and pull movement until he ejaculated
(pp. 7, 10-11, 12, 13, 14, t.s.n., Ibid). In the process, Mirasol's dress and panties were not torn,
since, because of fear, she allowed the accused to roll up her dress and pull her panties without any
resistance whatsoever. During the intercourse, the accused was not holding the hunting knife. After
the accused had discharged, he ran to the storeroom of the house upstairs because he heard Mrs.
Lita Parochel, wife of the younger brother of Mirasol's father, calling from outside the gate of the
house, asking Mirasol to open the gate. Mirasol did not answer because she was then in the act of
putting on her panties (p. 14, t.s.n., Ibid; p. 10, t.s.n., Jan. 5, 1972). After she had put on her panties,
she opened the gate and saw her aunt Lita, who asked her what the accused did to her, but she did
not answer because she was afraid as the accused was still inside the house. She also did not tell
her aunt Lita that the accused had sexual intercourse with her under threats and against her will. Her
aunt Lita then walked away.

Thereafter, the accused reappeared in the room and told Mirasol that if she would tell her aunt Lita
what he did, he would kill her (pp. 13-14, t.s.n., Dec. 3, 1971). After the incident, Mirasol went to
Barrio Codia later in the afternoon of the same day and joined her brother and sister and
grandmother. She did not reveal to any of them what transpired between her and the accused in
Tabagac.

Mirasol's father returned from Cadiz, Negros Occidental that same day; but Mirasol did not also
reveal the incident to him because she was afraid her father might punish her. Her mother returned
home on July 16, 1971 from Sagay, Negros Occidental; but Mirasol did not also tell her mother
about what happened to her on July 13 in Tabagac It was her aunt Lita who revealed the matter to
Mirasol's mother, who thereupon confronted her daughter. Mirasol had to reveal the incident of July
13 to her mother only when her mother asked her about it; because, according to her, she wanted to
take revenge on the accused (p. 15, Dec. 3, 1971). Three days after her return from Sagay, Negros
Occidental — on July 19, 1971 — Mirasol's mother brought her to the Bantayan Emergency Hospital
in Bantayan, Cebu, where she was examined by Dr. Luis L. Gandiongco, who submitted his findings
as follows:

Abrasion of inguinal region

Abrasion, left thigh, medial side

INTERNAL FINDINGS:

1. Discharges sticky, milky in color, found at the anterior fornix but negative for
spermatozoa (Exh. A, p. 8, rec.; p. 2, t.s.n., Nov. 16, 1971).

Mrs. Lita Parochel, the aunt-in-law of Mirasol, testified that she is the wife of the younger brother of
Mirasol's father. Her house is fifty (50) meters away from the house of her brother-in-law, Ruperto
Magallanes. In the afternoon of July 13, 1971, she went to the house of her brother-in-law in
Tabagac Arriving there, she saw, through the gate which was made of split bamboos, the accused
running away when she shouted to Mirasol, who was then in the act of putting on her panties, to
open the gate (p. 10, t.s.n., Jan. 15, 1972). Mirasol opened the gate after she had put on her
panties. Entering the house, Mrs. Parochel asked Mirasol what the accused did to her, but Mirasol
did not answer. So, she hid and from her hiding place she saw the accused emerge from his hiding
place and run away, passing through the gate of the fence. Thereupon, she told Mirasol to go home
to barrio Codia because she was also going there (p. 15, t.s.n., Ibid).

Mrs. Parochel met Mirasol's father at about 4:00 o'clock the same afternoon but she did not talk to
him about what she saw earlier in Tabagak However, she revealed the incident to her husband (p.
17, t.s.n., Ibid).

When Mirasol's mother returned from Sagay, Negros Occidental, Mrs. Parochel had a conversation
with her regarding the person of the accused and thereafter Mirasol's mother filed the corresponding
complaint against the accused (p. 18, t.s.n., Ibid).

Incidentally, in support of the complaint of Bernandina Magallanes, mother of Mirasol, Mrs. Parochel
executed an affidavit which she subscribed and swore to before the municipal judge of Madridejos,
Cebu, on July 30, 1971, wherein she stated, among other things:

1. That at about 3:00 o'clock in the afternoon of July 13, 1971, I went to the house of
Ruperto Magallanes, my neighbor;

2. That when I entered their fence, I found out that one Benben Paragsa ran from the
bed where Mirasol Magallanes was sitting on while putting on her panties;

3. That she, Mirasol Magallanes, upon my arrival, did not say anything to me about
the happening; and that I was only thinking that something had happened (Exh. 1, p.
5, rec.).

In his typewritten brief, the appellant enumerated and discussed five errors as having been
committed by the trial court. These errors may, however, be boiled down to the issue of credibility.

Appellant admits having sexual intercourse with Mirasol, the complaining witness, but he stoutly
denied that he did so by employing force or intimidation against Mirasol. He claims he and Mirasol
were sweethearts; that on the day of the incident, it was Mirasol who invited him to the latter's house
where they had sexual intercourse after kissing each other; and that the intercourse they had that
afternoon was, as a matter of fact, their third sexual intercourse (pp. 2, 3, 5, 6, 8-9, t.s.n., March 21,
1972).

The foregoing testimony of the accused was substantially corroborated by two witnesses for the
defense, Mercado Batosbatosan and Eduardo Ducay (pp. 5, 6-7, 12, 15-16, 17, 18, 19, 20, 25, t.s.n.,
Feb. 1, 1972).

A careful scrutiny of the record reveals that the prosecution's evidence is weak, unsatisfactory and
inconclusive to justify a conviction.

Certain circumstances negate the commission by the appellant of the crime charged and point to the
conclusion that the sexual intercourse between the appellant and the complaining witness was
voluntary. Force and intimidation were not proven. Mirasol did not offer any resistance or vocal
protestation against the alleged sexual assault. She could have easily made an outcry or resisted
the appellant's advances without endangering her life. But she did not. She was allegedly raped in
her own home, not far from her neighbors and during the daytime. If, indeed, she was raped under
the circumstances narrated by her, she could have revealed the same the very moment she was
confronted by her aunt Lita who asked her what the accused did to her upon entering the house
immediately after the intercourse took place and when the accused ran from the bed to a storeroom
of the house to hide upon seeing and/or hearing the voice of her aunt Lita. or, she could have
grabbed the hunting knife by her side when the copulation was going on, and with it she could have
possibly prevented the accused from consummating the sexual act. But she did not.

Another circumstance is that Mirasol did not reveal immediately to her parents that she was raped. It
was only after her mother arrived from Sagay, Negros Occidental, three (3) days after the incident,
and confronted her about the rape incident that her mother learned through her aunt Lita that she
eventually revealed to her mother what the accused did to her in the afternoon of July 13, 1971.

Still another circumstance is the fact that Mirasol did not bother at all to rebut the testimony of the
appellant and his witnesses to the effect that the accused and Mirasol were actually sweethearts;
and that they had had two previous sexual communications before July 13, 1971, one of which
happened on June 29, 1971 in the house of the accused, where Mirasol and the accused slept
together in the evening of the same day after the mother of the accused and Mirasol had returned
from the town fiesta of Bantayan, Cebu (p. 10, t.s.n., March 21, 1972).

The rule allowing silence of a person to be taken as an implied admission of the truth of the
statements uttered in his presence is applicable in criminal cases. But before the silence of a party
can be taken as an admission of what is said, it must appear: (1) that he heard and understood the
statement; (2) that he was at liberty to interpose a denial; (3) that the statement was in respect to
some matter affecting his rights or in which he was then interested, and calling, naturally, for an
answer; (4) that the facts were within his knowledge; and (5) that the fact admitted or the inference
to be drawn from his silence would be material to the issue (IV Francisco, The Revised Rules of
Court in the Philippines, 1973 ed., p. 316). These requisites of admission by silence all obtain in the
present case. Hence, the silence of Mirasol on the facts asserted by the accused and his witnesses
may be safely construed as an admission of the truth of such assertion.

One more circumstance which engenders serious doubt on the truthfulness of Mirasol is the
testimony of Dr. Gandiongco that he did not notice any laceration in the walls of Mirasol's vagina,
thus —

Q Doctor, you testified that according to your findings a foreign body

might have inserted the internal organ of the offended party?

A Yes, sir.

Q And as a matter of fact, in your examination there was no

laceration?

A There was no laceration (p 5, t.s.n., November 16, 1971; Emphasis

supplied).

Considering Mirasol's tender age, if she had no previous sexual experience, she must have been a
virgin when she was allegedly raped by the accused. Yet she did not state that she felt some pain as
the accused tried to insert his organ into her private part. Neither did she state that she was bleeding
during and after the alleged forced coition. Instead, she matter-of-factly narrated that the accused
made four push and pull movements after which the latter ejaculated — indicating that he had an
easy time doing it.
If WE are to believe her story, certainly the doctor who examined her could have noticed the
lacerations even after the lapse of three (3) days from the coition, if the intercourse on July 13, 1971
was in fact her first experience. WE believe the absence of lacerations in the walls of Mirasol's
vagina, as testified to by Dr. Gandiongco, supra, eloquently confirms the truth of the accused's
assertion that before the incident in question, he and Mirasol had two prior copulations.

And still another circumstance which casts serious doubt on the credibility of the complaining
witness and her aunt Lita is the matter of the hunting knife. While it is true that on the witness stand
these two witnesses practically corroborated each other on this particular point, the matter of the
accused having a hunting knife with him on the day of the incident was not, however, mentioned by
Mrs. Parochel in her affidavit, Exhibit 1, which she executed on July 30, 1971 — five months before
she testified in court. Besides, at the trial, the prosecution did not bother to present such "hunting
knife".

A last circumstance which also engenders serious doubt on the veracity of Mrs. Parochel, whose
testimony the trial court summarized, runs thus:

... The victim did not answer the call of her aunt nor did she open the barred door.

... She returned to the opened door and asked Mirasol what had happened. Mirasol
was very pale, trembling and in a state of shock, did not answer her inquiries ...(p. 3,
Decision; p. 64, rec.; emphasis added).

The Solicitor General adopted the above factual summary made by the trial court by stating that —

Mirasol's aunt, Lita Parochel ... found her niece in a state of shock (p. 4, Brief for the
Plaintiff-Appellee; p. 49, rec.; Emphasis supplied).

A painstaking scrutiny of the record, particularly the transcript of stenographic notes, shows that
contrary to the finding of the trial court, Mirasol answered the call of her aunt and opened the gate of
the house after she had put on her panties (p. 14, t.s.n., Dec. 3, 1971); and that Mirasol only seemed
to be afraid, besides trembling (p. 23, t.s.n., 1972); nowhere in the record is any evidence of Mirasol
having been in a state of shock.

If Mirasol was in fact in a state of shock —

1. How come she was able to put on her panties and thereafter open the gate of the house when
she heard her aunt Lita calling from the outside?

2. Her aunt Lita would feel so alarmed and so concerned that she would not lose any time to bring
her to a doctor or to a hospital for medical treatment or assistance;

3. Her aunt Lita would have confronted the accused who was still hiding in the closet in a corner of
the ground floor, or she would have gone to the nearest police authority or barrio captain, who could
have easily apprehended the accused:

4. Her aunt could have sought the assistance of their barriomates or neighbors; or

5. She could have brought Mirasol to her own house which was on about 50 meters away (pp. 7, 20,
t.s.n., Jan. 5, 1972). But what did she do? She abandoned Mirasol "because" she Mirasol had to
feed her hogs (p. 24, Idem).
That Mirasol was pale, afraid and trembling can only be attributed to the fact that her aunt
discovered her having sexual intercourse at so young an age and that she feared that her aunt
would report the same to her parents.

And if Mrs. Parochel really believed that her niece Mirasol was raped by appellant about 3 o'clock
that afternoon of July 13, 1971, why did she not report the outrage to Mirasol's father — her
husband's brother — whom she met about 4 o'clock that same afternoon, just one hour after the
alleged rape?

Mrs. Parochel's close relationship to her niece-daughter of her brother-in-law — vitiates her
credibility.

Appellant cannot be legally convicted of simple seduction under Article 338 of the Revised Penal
Code, for the same is not warranted by the wording of the information, which does not alleged
deceit, although appellant testified that he promised to marry Mirasol if "something happens to her
body." Much less can simple seduction include rape.

WHEREFORE, APPELLANT BIENVENIDO PARAGSA, ALIAS "BENBEN", IS HEREBY

ACQUITTED, WITH COSTS de oficio AND HIS IMMEDIATE RELEASE IS HEREBY ORDERED
UNLESS HE IS BEING DETAINED ON OTHER CHARGES.

SO ORDERED