SUPREME COURT Manila SECOND DIVISION G.R. No. 121087 August 26, 1999 FELIPE NAVARRO, petitioner, vs.

THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years and eight (8) months, and (1) day of reclusion temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique Ike Lingan, from P30,000.00 to P50,000.00. The information against petitioner alleged That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral concussion and shock which directly caused his death. The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique Ike Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing the nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.2 At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a picture.3 Jalbuena replied: Wala kang pakialam, because this is my job.4 Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.5 When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.6 Jalbuena and his companions went to the police station to report the matter. Three of the policeman on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.7 Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes.8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?9 Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said Ano, uutasin na kita?10 At this point, Lingan intervened and said to petitioner Navarro: Huwag namang ganyan pumarito kami para magpa-blotter, I am here to mediate.11 Petitoner Navarro replied: Walang press, press, mag-sampu pa kayo.12 He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan.13 This angered Lingan, who said: O, di ilagay mo diyan14 Petitioner Navarro retorted: Talagang ilalagay ko.15 The two then had a heated exchange.16 Finally, Lingan said: Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo.17 Petitioner Navarro replied: Ah, ganoon?18

As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.19 Petitioner Navarro turned to Jalbuena and said: Kita mo yan ha, buhay kang testigo, si Ike Lingan and naghamon.20 He said to Sgt. Aonuevo: Ilagay mo diyan sa blotter sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon.21 He then poked his gun at the right temple of Jalbuena and made him sign his name on the blotter.22 Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in print.23 Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy, Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.24 Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased.25 The following is an excerpt from the tape recording: Lingan: Pare, you are abusing yourself. Navarro: Who is that abusing? Lingan: Im here to mediate. Do not include me in the problem. Im out of the problem. xxx xxx xxx Navarro: Wala sa akin yan. Ang kaso lang . . . Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to ayusin things. Do not say bad things against me. Im the number one loko sa media. Im the best media man. . . . Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka! Lingan: Im brave also. Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nagtatrabaho lang ako ng ayon sa serbisyo ko. Lingan: You are challenging me and him. . . . Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh. Lingan: Pati ako kalaban ninyo. Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw! Lingan: You are wrong. Bakit kalaban nyo ang press? Navarro: Pulis ito! Aba! Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige. Navarro: Mayabang ka ah! (Sounds of a scuffle) Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan. Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete.26 In giving credence to the evidence for the prosecution, the trial court stated: After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the court that accused herein is criminally responsible. The defenses evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecutions evidence.

This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or injury. Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries. Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the head injuries of deceased Lingan were caused by the latters falling down on the concrete pavement head first. The Court of Appeals affirmed: We are far from being convinced by appellants aforesaid disquisition. We have carefully evaluated the conflicting versions of the incident as presented by both parties, and we find the trial courts factual conclusions to have better and stronger evidentiary support. In the first place, the mere fact that Jalbuena was himself a victim of appellants aggression does not impair the probative worth of his positive and logical account of the incident in question. In fact, far from proving his innocence, appellants unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm others. Apparently, the same motivation that led him into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him and further challenged to a fist fight. xxx xxx xxx On the other hand, appellants explanation as how Lingan was injured is too tenuous and illogical to be accepted. It is in fact contradicted by the number, nature and location of Lingans injuries as shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E.). Certainly, these injuries could not have been resulted from Lingans accidental fall. Hence, this appeal. Petitioner Navarro contends: THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD. The appeal is without merit. First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable.27 Trial courts, which have the opportunity observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her testimony should be given credence.28 In the instant case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony of Jalbuena. Indeed, Jalbuenas testimony is confirmed by the voice recording had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as dictaphone or dictagraph of dectectaphone or walkie-talkie or tape-recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay

the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. xxx xxx xxx Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29 Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally recorded the conversations; (2) that the tape played in the court was the one he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong.30 In the instant case, Jalbuena testified that he personally made the voice recording;31 that the tape played in the court was the one he recorded;32 and that the speakers on the tape were petitioner Navarro and Lingan.33 A sufficient foundation was thus laid for the authentication of the tape presented by the prosecution. Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it. Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the medical certificate,34 dated February 5, 1990, containing the following findings: Post Mortem Findings: = Dried blood, forehead & face = No blood oozed from the ears, nose & mouth = Swelling, 3 cm x 2 cm, temporal region, head, right = Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left = Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow = Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left = Cyanosis of the tips of fingers & toes CAUSE OF DEATH: = CEREBRAL CONCUSSION & SHOCK = BLOW ON THE HEAD Dr. Yamamato testified: Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from the forehead? A It may be due to a blow on the forehead or it bumped to a hard object, sir. Q Could a metal like a butt of a gun have caused this wound No. 1.? A It is possible, sir. Q And in the alternative, could have it been caused by bumping on a concrete floor? A Possible, sir. FISCAL: What could have been the cause of the contusion and swelling under your findings No. 2 doctor? WITNESS: It may be caused by bumping to a hard object, sir. Q Could a butt of a gun have caused it doctor? A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir.

Q How about this findings No. 4? A By a bump or contact of the body to a hard object, sir. Q And findings No. 5 what could have caused it? A Same cause, sir. Q This findings No. 6 what could have caused this wound? A Same thing sir. Q How about the last finding, cyanosis of tips of fingers and toes, what could have caused it doctor? WITNESS: It indicates there was cardiac failure, sir. FISCAL: In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion and Shock, will you explain it? A Cerebral concussion means in Tagalog naalog ang utak or jarring of the brain, sir. Q What could have been the cause of jarring of the brain? A It could have been caused by a blow of a hard object, sir. Q What about the shock, what could have caused it? A It was due to peripheral circulatory failure, sir. Q Could any one of both caused the death of the victim? A Yes, sir. Q Could cerebral concussion alone have caused the death of the deceased? A May be, sir. FISCAL: Which of these two more likely, to cause death? WITNESS: Shock, sir. Q Please explain further the meaning of the medical term shock? A It is caused by peripheral circulatory failure as I have said earlier sir. xxx xxx xxx FISCAL: Could a bumping or pushing of ones head against a concrete floor have caused shock? WITNESS: Possible, sir. How about striking with a butt of a gun, could it cause shock? A Possible, sir.35 The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist. Third. It is argued that the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.36 The provocation must be sufficient and should immediately precede the act.37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.38 And it must immediately precede the act so much so that there is no interval between the provocation by the offended party and the commission of the crime by the accused.39 In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v. Macaso,40 we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro. Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into

account in determining the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide. However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen were discharging their public functions.43 The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstances, the penalty should be fixed in its minimum period.44 Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum period.45 The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with the current jurisprudence.46 WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum. SO ORDERED. THIRD DIVISION [G.R. No. 176240, October 17, 2008]

ROLANDO SASAN, SR., LEONILO DAYDAY, MODESTO AGUIRRE, ALEJANDRO ARDIMER, ELEUTERIO SACIL, WILFREDO JUEGOS, PETRONILO CARCEDO AND CESAR PACIENCIA, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION 4TH DIVISION, EQUITABLE-PCI BANK AND HELPMATE, INC., RESPONDENTS. DECISION CHICO-NAZARIO, J.: Assailed in this Petition for Review under Rule 45 of the Rules of Court are the Decision [1] dated 24 April 2006 of the Court of Appeals in CA-G.R. SP No. 79912, which affirmed the Decision dated 22 January 2003 of the National Labor Relations Commission (NLRC) in NLRC Case No. V000241-2002 finding that Helpmate, Inc. (HI) is a legitimate independent job contractor and that the petitioners were not illegally dismissed from work; and the Resolution[2] dated 31 October 2006 of the same court denying the Motion for Reconsideration filed by the petitioners. Respondent Equitable-PCI Bank (E-PCIBank),[3] a banking entity duly organized and existing under and by virtue of Philippine laws, entered into a Contract for Services[4] with HI, a domestic corporation primarily engaged in the business of providing janitorial and messengerial services. Pursuant to their contract, HI shall hire and assign workers to E-PCIBank to perform janitorial/messengerial and maintenance services. The contract was impliedly renewed year after year. Petitioners Rolando Sasan, Sr.,[5] Leonilo Dayday,[6] Modesto Aguirre,[7] Alejandro Ardimer,[8] Eleuterio Sacil,[9] Wilfredo Juegos,[10] Petronilo Carcedo,[11] and Cesar Peciencia[12] were among those employed and assigned to E-PCIBank at its branch along Gorordo Avenue, Lahug, Cebu City, as well as to its other branches in the Visayas.[13] O 23 July 2001, petitioners filed with the Arbitration Branch of the NLRC in Cebu City separate

complaints[14] against E-PCIBank and HI for illegal dismissal, with claims for separation pay, service incentive leave pay, allowances, damages, attorney's fees and costs. Their complaints were docketed as NLRC RAB-VII Case No. 07-1381-2001 and raffled to Labor Arbiter Jose G. Gutierrez (Labor Arbiter Gutierrez) for their proper disposition. Subsequently, on 22 August 2001, the petitioners[15] amended their complaints to include a claim for 13th month-pay. Several conciliation hearings were scheduled by Labor Arbiter Gutierrez but the parties still failed to arrive at a mutually beneficial settlement; hence, Labor Arbiter Gutierrez ordered that they submit their respective position papers. In their position papers, petitioners claimed that they had become regular employees of EPCIBank with respect to the activities for which they were employed, having continuously rendered janitorial and messengerial services to the bank for more than one year; that EPCIBank had direct control and supervision over the means and methods by which they were to perform their jobs; and that their dismissal by HI was null and void because the latter had no power to do so since they had become regular employees of E-PCIBank. For its part, E-PCIBank averred that it entered into a Contract for Services with HI, an independent job contractor which hired and assigned petitioners to the bank to perform janitorial and messengerial services thereat. It was HI that paid petitioners' wages, monitored petitioners' daily time records (DTR) and uniforms, and exercised direct control and supervision over the petitioners and that therefore HI has every right to terminate their services legally. EPCIBank could not be held liable for whatever misdeed HI had committed against its employees. HI, on the other hand, asserted that it was an independent job contractor engaged in the business of providing janitorial and related services to business establishments, and E-PCIBank was one of its clients. Petitioners were its employees, part of its pool of janitors/messengers assigned to E-PCIBank. The Contract for Services between HI and E-PCIBank expired on 15 July 2000. E-PCIBank no longer renewed said contract with HI and, instead, bidded out its janitorial requirements to two other job contractors, Able Services and Puritan. HI designated petitioners to new work assignments, but the latter refused to comply with the same. Petitioners were not dismissed by HI, whether actually or constructively, thus, petitioners' complaints before the NLRC were without basis. Labor Arbiter Gutierrez focused on the following issues: (a) whether petitioners were regular employees of HI; (b) whether petitioners were illegally dismissed from their employment; and (c) whether petitioners were entitled to their money claims. On 7 January 2002, on the basis of the parties' position papers and documentary evidence, Labor Arbiter Gutierrez rendered a Decision finding that HI was not a legitimate job contractor on the ground that it did not possess the required substantial capital or investment to actually perform the job, work, or service under its own account and responsibility as required under the Labor Code.[16] HI is therefore a labor-only contractor and the real employer of petitioners is EPCIBank which is held liable to petitioners. According to Labor Arbiter Gutierrez: [T]he undisputed facts show that the [herein petitioners] were made to perform not only as janitors but also as messengers, drivers and one of them even worked as an electrician. For us, these jobs are not only directly related to the main business of the principal but are, likewise deemed necessary in the conduct of respondent Equitable-PCI Bank's principal business. Thus, based on the above, we so declare that the [petitioners] are employees of respondent Equitable-PCI Bank. And having worked with respondent Equitable-PCI Bank for more than one (1) year, they are deemed regular employees. They cannot, therefore, be removed from employment without cause and without due process, which is wanting in this case. Hence, the severance of their employment in the guise of termination of contract is illegal.[17]

In the dispositive portion of his 7 January 2002 Decision, Labor Arbiter Gutierrez awarded to petitioners the following amounts: I. - CESAR PACIENCIA a) Backwages July 15, 2001 to January 8, 2002 = P190.00 per day = 5 months and 6 days = 136 days x P190.00 b) Separation June 10, 1996 to July = 5 =P190.00 x 26 days x 5 years / 2 c) = Total 13th P190.00 Month x 26 15, Pay 2001 years = P12,350.00 Pay days = P P 43,130.00 4,940.00

= P25,840.00

II - Dominador Suico, Jr. (did not file Amended Complaint) a) Backwages July 15, 2001 to January same as Paciencia 15, 2002 = P25,840.00

b) Separation Pay Feb. 2, 1999 to July 15, 2001 = P190.00 x 26 days x 2.5 years / 2 Total III - Roland Mosquera (did not file Amended Complaint) a) Backwages (same as Paciencia) b) Separation Pay March 8, 1998 to July 15, 2001 = P190.00 x 26 days x 3 yrs. / 2 Total IV - Petronillo Carcedo a) Backwages (same as Paciencia) b) Separation Pay Sept. 16, 1984 to July 15, = P190.00 x 26 days x 17 yrs. / 2 c) = Total 13th P190.00 Month x 26 2001

= = P32,015.00

P6,175.00

= P25,840.00

= = P33,250.00

P7,410.00

= P25,840.00

= P41,990.00 = = P72,770.00 P4,940.00

Pay days

V - Rolando Sasan, Sr. a) Backwages (same as Paciencia) b) Separation Pay October 1989 to July 15, 2001 = P190.00 x 26 days x 12 yrs. / 2 c) = Total 13th P190.00 Month x 26 Pay days = P25,840.00

= P29,640.00 = P4,940.00 = P60,420.00

VI - Leonilo Dayday a) Backwages (same as Paciencia) b) Separation Pay Feb. 8, 1983 to July 15, 2001 = P190.00 x 26 days x 18 yrs. / 2 c) = Total VII - Eleuterio Sacil a) Backwages (same as Paciencia) b) Separation Pay June 2, 1992 to July 15, 2001 = P190.00 x 26 days x 9 yrs. / 2 c) = Total 13th P190.00 Month x 26 Pay days = P25,840.00 13th P190.00 x Month 26 Pay days = = P75,240.00 P4,940.00 = P25,840.00

= P44,460.00

= P22,230.00 = = P53,010.00 P4,940.00

VIII - Mario Juntilla a) Backwages (same as Pacencia) b) Separation Pay October 7, 1987 to July 15, = P190.00 x 26 days x 14 yrs. / 2 c) = Total 13th P190.00 Month x 26 2001 = P34,580.00 = = P65,360.00 P4,940.00 = P25,840.00

Pay days

IX - Wilfredo Juegos a) Backwages = P25,840.00

(same as Pacencia) b) Separation Pay July 23, 1990 to July 15, = P190.00 x 26 days x 11 yrs. / 2 c) = Total 13th P190.00 Month x 26 2001 = P27,170.00 = = P57,950.00 P4,840.00

Pay days

X - Modesto Aguirre a) Backwages (same as Paciencia) b) Separation Pay = Jan. 5, 1992 to July 15, = P190.00 x 26 days x 9.5 yrs. / 2 c) = Total 13th P190.00 Month x 26 2001 = P23,465.00 = = P54,245.00 P4,940.00 = P25,840.00

Pay days

XI - Alejandro Ardimer a) Backwages (same as Paciencia) b) Separation Pay = Jan. 20, 1990 to July 15, = P190.00 x 26 days x 11.5 yrs. / 2 c) = Total x 13th P190.00 Month x 26 x 2001 = P28,405.00 = = P59,185.00 x P4,940.00 x = P25,840.00

Pay days

WHEREFORE, the foregoing premises considered, judgment is hereby rendered directing the respondents Equitable PCI Bank and Helpmate, Inc. to pay jointly and solidarily the complainants as follows: 1. Cesar Paciencia - P 43,130.00 2. Dominador32,015.00 Suico, Jr. 3. Roland33,250.00 Mosquera 4. Petronilo72,770.00 Carceda 5. Roland Sasan,60,420.00 Sr. 6. Leonilo Dayday 75,240.00 7. Eleuterio Sacil 53,010.00 8. Mario Juntilla 65,360.00 9. Wilfredo Juegos 57,950.00 10. Modesto54,245.00

Aguirre 11. Alejandro59,185.00 Ardimer TOTAL - P606,575.00[18] Aggrieved by the decision of Labor Arbiter Gutierrez, respondents E-PCIBank and HI appealed the same to the NLRC, 4th Division, stationed in Cebu City. Their appeals were docketed as NLRC Case No. V-000241-2002. In support of its allegation that it was a legitimate job contractor, HI submitted before the NLRC several documents which it did not present before Labor Arbiter Gutierrez. These are: Certificate of Filing of Certificate of Increase of Capital Stock, Certificate of Filing Amended Articles of Incorporation, and General Information Sheet Stock Corporation of HI showing therein that it increased its authorized capital stock from P1,500,000.00 to P20,000,000.00 on 12 March 1999 with the Securities and Exchange Commission; Audited Financial Statement of HI showing therein that it has Total Assets of P20,939,935.72 as of 31 December 2000; Transfer Certificate of Title No. 110173 and Tax Declaration No. GR2K-09-063-00582 registered under the name of HI showing that it has a parcel of land with Market Value of P1,168,860.00 located along Rizal Avenue (now Bacalso Avenue), Cebu City, and Tax Declaration No. GR2K-09-063-00583 registered under the name of HI showing that it has a commercial building constructed on the preceding lot located along Bacalso Avenue, Cebu City with market value of P2,515,170.00.[19] The NLRC promulgated its Decision on 22 January 2003 modifying the ruling of Labor Arbiter Gutierrez. The NLRC took into consideration the documentary evidence presented by HI for the first time on appeal and, on the basis thereof, declared HI as a highly capitalized venture with sufficient capitalization, which cannot be considered engaged in "labor-only contracting." On the charge of illegal dismissal, the NLRC ruled that: The charge of illegal dismissal was prematurely filed. The record shows that barely eight (8) days from 15 July 2001 when the complainants were placed on a temporary "off-detail," they filed their complaints on 23 July 2001 and amended their complaints on 22 August 2001 against the respondents on the presumption that their services were already terminated. Temporary "off-detail" is not equivalent to dismissal. x x x.[20] The NLRC deleted Labor Arbiter Gutierrez's award of backwages and separation pay, but affirmed his award for 13th month pay and attorney's fees equivalent to ten percent (10%) of the 13th month pay, to the petitioners.[21] Thus, the NLRC decreed in its 22 January 2003 Decision, the payment of the following reduced amounts to petitioners: WHEREFORE, premises considered, the decision of Labor Arbiter Jose G. Gutierrez dated 7 January 2002 is MODIFIED, to wit: Ordering respondents Helpmate, Inc. and Equitable PCI Bank to jointly and severally[22] pay the complainants of their 13th month pay and attorney's fees in the aggregate amount of FortyThree Thousand Four Hundred Seventy-Two and 00/100 (P43,472.00), broken down as follows: 1. Aguirre,- P 5,434.00 Modesto 2. Ardimer,- 5,434.00 Alejandro 3. Carcedo,- 5,434.00 Petronilo 4. Dayday, Leonilo - 5,434.00 5. Juegos, Wilfredo - 5,434.00 6. Juntilla, Mario - 5,434.00 7. Paciencia, Cesar - 5,434.00 8. Sacil, Eleuterio - 5,434.00 TOTAL P43,472.00[23]

Petitioners' Motion for Reconsideration was denied by the NLRC in its Resolution dated 1 July 2003.[24] Distressed by the decision of the NLRC, petitioners sought recourse with the Court of Appeals by filing a Petition for Certiorari[25] under Rule 65 of the 1997 Rules of Civil Procedure docketed as CA-G.R. SP No. 79912. In its Decision dated 24 April 2006, the Court of Appeals affirmed the findings of the NLRC that HI was a legitimate job contractor and that it did not illegally dismiss petitioners: As to the question of whether or not, as a legitimate independent job contractor, respondent HI illegally dismissed the petitioners. We rule in the negative. It is undisputed that the contract between respondent HI and its client E-PCIBank expired on July 15, 2000. The record shows that after said expiration, respondent HI offered the petitioners new work assignments to various establishments which are HI's clients. The petitioners, therefore, were not even placed on "floating status." They simply refused, without justifiable reason, to assume their new work assignments which refusal was tantamount to abandonment. There being no illegal dismissal, petitioners are not entitled to backwages or separation pay.[26] The fallo of the 24 April 2006 Decision of the appellate court reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DENYING the petition filed in this case and AFFIRMING the decision of the NLRC, Fourth Division, in NLRC Case No. V-000145-2003 promulgated on June 22, 2003.[27] Petitioners now come before us via the instant Petition raising the following issues: WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED IN EXCESS OF THEIR JURISDICTION AND/OR COMMITTED GRAVE ABUSE OF DISCRETION IN UPHOLDING THE NLRC 4 TH DIVISION'S DECISION AND GRAVELY ERRED IN: ACCEPTING AND APPRECIATING THE PIECES OF EVIDENCE SUBMITTED BY RESPONDENTS DURING APPEAL, ALL EXISTING DURING THE TIME THE NLRC RAB 7'S TRIAL, CONTRARY TO THIS HONORABLE COURT'S PREVIOUS ESTABLISHED DECISIONS. REVERSING, WITHOUT ANY LEGAL BASIS, THE FACTUAL FINDING OF NLRC RAB 7 THAT THE RESPONDENT HI WAS LABOR ONLY CONTRACTOR. RULING, WITHOUT ANY LEGAL BASIS, THAT THE ILLEGAL DISMISSAL COMPLAINTS WERE PREMATURELY FILED.[28] Before proceeding to the substantive issues, we first address the procedural issues raised by petitioners. Petitioners object to the acceptance and consideration by the NLRC of the evidence presented by HI for the first time on appeal. This is not a novel procedural issue, however, and our jurisprudence is already replete with cases[29] allowing the NLRC to admit evidence, not presented before the Labor Arbiter, and submitted to the NLRC for the first time on appeal. Technical rules of evidence are not binding in labor cases. Labor officials should use every reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process.[30]

The submission of additional evidence before the NLRC is not prohibited by its New Rules of Procedure. After all, rules of evidence prevailing in courts of law or equity are not controlling in labor cases. The NLRC and labor arbiters are directed to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law and procedure all in the interest of substantial justice. In keeping with this directive, it has been held that the NLRC may consider evidence, such as documents and affidavits, submitted by the

parties for the first time on appeal. The submission of additional evidence on appeal does not prejudice the other party for the latter could submit counter-evidence.[31]
In Clarion Printing House, Inc. v. National Labor Relations Commission,[32] we again emphasized that: [T]he NLRC is not precluded from receiving evidence, even for the first time on appeal, because technical rules of procedure are not binding in labor cases. The settled rule is that the NLRC is not precluded from receiving evidence on appeal as technical rules of evidence are not binding in labor cases. In fact, labor officials are mandated by the Labor Code to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. Thus, in Lawin Security Services v. NLRC, and Bristol Laboratories Employees' Association-DFA v. NLRC, we held that even if the evidence was not submitted to the labor arbiter, the fact that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more judicious in admitting the same, instead of falling back on the mere technicality that said evidence can no longer be considered on appeal. Certainly, the first course of action would be more consistent with equity and the basic notions of fairness. For the same reasons, we cannot find merit in petitioners' protestations against the documentary evidence submitted by HI because they were mere photocopies. Evidently, petitioners are invoking the best evidence rule, espoused in Section 3, Rule130 of the Rules of Court. It provides that: Section 3. - Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself x x x. The above provision explicitly mandates that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. Notably, certified true copies of these documents, acceptable under the Rules of Court[33] were furnished to the petitioners. Even assuming that petitioners were given mere photocopies, again, we stress that proceedings before the NLRC are not covered by the technical rules of evidence and procedure as observed in the regular courts. Technical rules of evidence do not apply if the decision to grant the petition proceeds from an examination of its sufficiency as well as a careful look into the arguments contained in position papers and other documents.[34] Petitioners had more than adequate opportunity when they filed their motion for reconsideration before the NLRC, their Petition to the Court of Appeals and even to this Court, to refute or present their counter-evidence to the documentary evidence presented by HI. Having failed in this respect, petitioners cannot now be heard to complain about these documentary evidences presented by HI upon which the NLRC and the Court of Appeals based its finding that HI is a legitimate job contractor. The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, a fair and reasonable opportunity to explain one's side. It is also an opportunity to seek a reconsideration of the action or ruling complained of. It is not the denial of the right to be heard but denial of the opportunity to be heard that constitutes violation of due process of law. Petitioners herein were afforded every opportunity to be heard and to seek reconsideration of the adverse judgment against them. They had every opportunity to strengthen their positions by presenting their own substantial evidence to controvert those submitted by EPCIBank and HI before the NLRC, and even before the Court of Appeals. It cannot win its case by merely raising unsubstantiated doubt or relying on the weakness of the adverse parties' evidence.

We now proceed to the resolution of the substantive issues submitted by petitioners for our consideration, particularly, whether HI is a labor-only contactor and E-PCIBank should be deemed petitioners' principal employer; and whether petitioners were illegally dismissed from their employment. Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out to a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal.[35] A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur: (a) The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; (b) The contractor or subcontractor has substantial capital or investment; and

(c) The agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social and welfare benefits.[36] In contrast, labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal.[37] In labor-only contracting, the following elements are present: (a) The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or service under its own account and responsibility; and (b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal.[38] In distinguishing between permissible job contracting and prohibited labor-only contracting,[39] we elucidated in Vinoya v. National Labor Relations Commission,[40] that it is not enough to show substantial capitalization or investment in the form of tools, equipment, etc. Other facts that may be considered include the following: whether or not the contractor is carrying on an independent business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of specified pieces of work; the control and supervision of the work to another; the employer's power with respect to the hiring, firing and payment of the contractor's workers; the control of the premises; the duty to supply premises, tools, appliances, materials and labor; and the mode and manner or terms of payment.[41] Simply put, the totality of the facts and the surrounding circumstances of the case are to be considered.[42] Each case must be determined by its own facts and all the features of the relationship are to be considered.[43] In the case at bar, we find substantial evidence to support the finding of the NLRC, affirmed by the Court of Appeals, that HI is a legitimate job contractor. We take note that HI has been issued by the Department of Labor and Employment (DOLE) Certificate of Registration[44] Numbered VII-859-1297-048. The said certificate states among other things: "CERTIFICATE OF REGISTRATION Numbered VII-859-1297-048 is issued to

HELPMATE, 330 N. Bacalso Avenue, Cebu City

INCORPORATED

for having complied with the requirements as provided for under the Labor Code, as amended, and its Implementing Rules and having paid the registration fee in the amount of ONE HUNDRED PESOS (P100.00) per Official Receipt Number 9042769, dated October 16, 1997. In witness whereof, and by authority vested in me by the Labor Code, as amended, and its Implementing Rules specifically Department Order No. 10 series of 1997, I have hereunto set my hand and affixed the Official on this 23rd day of December 1997."[45] Having been issued by a public officer, this certification carries with it the presumption that it was issued in the regular performance of official duty.[46] In the absence of proof, petitioner's bare assertion cannot prevail over this presumption. Moreover, the DOLE being the agency primarily responsible for regulating the business of independent job contractors, we can presume in the absence of evidence to the contrary that it thoroughly evaluated the requirements submitted by HI as a precondition to the issuance of the Cerificate of Registration. The evidence on record also shows that HI is carrying on a distinct and independent business from E-PCIBank. The employees of HI are assigned to clients to perform janitorial and messengerial services, clearly distinguishable from the banking services in which E-PCIBank is engaged. Despite the afore-mentioned compliance by HI with the requisites for permissible job contracting, Labor Arbiter Gutierrez still declared that HI was engaged in prohibited labor-only contracting because it did not possess substantial capital or investment to actually perform the job, work or service under its own account or responsibility. Both the NLRC and the Court of Appeals ruled to the contrary, and we agree. "Substantial capital or investment" refers to capital stocks and subscribed capitalization in the case of corporations, tools, equipments, implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out.[47] An independent contractor must have either substantial capital or investment in the form of tools, equipment, machineries, work premises, among others. The law does not require both substantial capital and investment in the form of tools, equipment, machineries, etc.[48] It is enough that it has substantial capital. In the case of HI, it has proven both. We have expostulated that once it is established that an entity such as in this case, HI has substantial capital, it was no longer necessary to adduce further evidence to prove that it does not fall within the purview of "labor-only" contracting.[49] There is even no need for HI to refute the contention of petitioners that some of the activities they performed such as those of messengerial services are directly related to the principal business of E- PCIBank. In any event, we have earlier declared that while these services rendered by the petitioners as janitors, messengers and drivers are considered directly related to the principal business of a bank, in this case E-PCIBank, nevertheless, they are not necessary in the conduct of its (EPCIBANK's) principal business.[50] HI has substantial capital in the amount of P20,939,935.72. It has its own building where it holds office and it has been engaged in business for more than a decade now.[51] As observed by the Court of Appeals, surely, such a well-established business entity cannot be considered a labor-only contractor.

Etched in an unending stream of cases are four standards in determining the existence of an employer-employee relationship, namely: (a) the manner of selection and engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or absence of power of dismissal; and, (d) the presence or absence of control of the putative employee's conduct. Most determinative among these factors is the so-called "control test."[52] The presence of the first requisite for the existence of an employer-employee relationship to wit, the selection and engagement of the employee is shown by the fact that it was HI which selected and engaged the services of petitioners as its employees. This is fortified by the provision in the contract of services between HI and E-PCIBank which states: Selection, Engagement, Discharge. [HI] shall have exclusive discretion in the selection, engagement, investigation, discipline and discharge of its employees.[53] On the second requisite regarding the payment of wages, it was HI who paid petitioners their wages and who provided their daily time records and uniforms and other materials necessary for the work they performed. Therefore, it is HI who is responsible for petitioner's claims for wages and other employee's benefits. Precisely, the contract of services between HI and EPCIBank reveals the following: Indemnity for Salaries and Benefits, etc. [HI] shall be responsible for the salaries, allowances, overtime and holiday pay, and other benefits of its personnel including withholding taxes.[54] As to the third requisite on the power to control the employee's conduct, and the fourth requisite regarding the power of dismissal, again E-PCIBank did not have the power to control petitioners with respect to the means and methods by which their work was to be accomplished. It likewise had no power of dismissal over the petitioners. All that E-PCIBank could do was to report to HI any untoward act, negligence, misconduct or malfeasance of any employee assigned to the premises. The contract of services between E-PCIBank and HI is noteworthy. It states: [HI] shall have the entire charge, control and supervision over all its employees who may be fielded to [E-PCIBank]. For this purpose, [HI] shall assign a regular supervisor of its employees who may be fielded to the Bank and which regular supervisor shall exclusively supervise and control the activities and functions defined in Section 1 hereof. x x x.[55] All these circumstances establish that HI undertook said contract on its account, under its own responsibility, according to its own manner and method, and free from the control and direction of E-PCIBank. Where the control of the principal is limited only to the result of the work, independent job contracting exists. The janitorial service agreement between E-PCIBank and HI is definitely a case of permissible job contracting. Considering the foregoing, plus taking judicial notice of the general practice in private, as well as in government institutions and industries, of hiring an independent contractor to perform special services,[56] ranging from janitorial, security and even technical services, we can only conclude that HI is a legitimate job contractor. As such legitimate job contractor, the law creates an employer-employee relationship between HI and petitioners[57] which renders HI liable for the latter's claims. In view of the preceding conclusions, petitioners will never become regular employees of EPCIBank regardless of how long they were working for the latter.[58] We further rule that petitioners were not illegally dismissed by HI. Upon the termination of the Contract of Service between HI and E-PCIBank, petitioners cannot insist to continue to work for the latter. Their pull-out from E-PCIBank did not constitute illegal dismissal since, first, petitioners were not employees of E-PCIBank; and second, they were pulled out from said assignment due to the non-renewal of the Contract of Service between HI and E-PCIBank. At the time they filed their complaints with the Labor Arbiter, petitioners were not even dismissed by HI; they were only "off-detail" pending their re-assignment by HI to another client. And when they were actually given new assignments by HI with other clients,[59] petitioners even refused

the same. As the NLRC pronounced, petitioners' complaint for illegal dismissal is apparently premature. WHEREFORE, premises considered, the Petition is DENIED for lack of merit. The Decision dated 24 April 2006 and Resolution dated 31 October 2006 of the Court of Appeals are AFFIRMED. Costs against petitioners. SO ORDERED.

People v. Turco Doctrine: Admissibility of evidence is different from the probative or weight of evidence.

Rodegelio Turco, Jr. (Turco) was charged for allegedly raping his second cousin, 12 year-old Escelea Tabada (Tabada). He lured Tabada from her house, then covered her face with a towel and placed his right hand on her neck, and took her to a grassy area, where he forced himself on her. Afterwards, he threated to kill her if she told anyone. The trial court ruled against Turco and sentenced him to suffer the penalty of reclusion perpetua and to pay damages to Tabada. Turco argued that his conviction is not supported by proof beyond reasonable doubt considering that other than the written statement of Tabada before the Police Station and before the Clerk of Court of the trial court, and her testimony during direct examination, no other evidence was presented to conclusively prove that there was ever raped at all; that nothing in Tabadas testimony clearly and convincingly shows that she was able to identify Turco as her rapist, since her face had been covered with a towel; and that no actual prrof was presented that the rape actually happened since the medico-legal officer who prepared the medical certificate was not presented in court to explain the same. Issue: Turco argued that since the medico-legal officer was not presented, the medical certificate issued by the latter cannot be admitted as evidence. Is his contention correct? Held: No. In People vs. Bernaldez (supra), the court a quo erred in giving weight to the medical certificate issued by the examining physician despite the failure of the latter to testify. While the certificate could be admitted as an exception to the hearsay rule since entries in official records (under Section 44, Rule 130, Rules of Court) constitute exceptions to the hearsay evidence rule, since it involved an opinion of one who must first be established as an expert witness, it could not be given weight or credit unless the doctor who issued, it could not be given weight or credit unless the doctor who issued it is presented in court to show his qualifications. We place emphasis on the distinction between admissibility by evidence and the probative value thereof. Evidence is admissible when it is relevant to the issue and is not excluded by the law or the law or the rules (Section 3, Rule 128, Rules of Court) or is competent. Since admissibility of evidence us determined by its by its relevance and competence, admissibility is, an affair of logic and law. On the other hand, the weight to be given to such evidence, once admitted, depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid down with the Court. thus, while evidence may be admissible, it may be entitled to or no weight at all. Conversely, evidence which may have evidentiary weight may be inadmissible because a special rule forbids its reception (Regalado, Remedial Law Compendium, Vol. II, 1998 ed., p. 550). Withal, although the medical certificate is an exception to the hearsay rule, hence admissible as evidence, it has very little probative value due to the absence of the examining physician. Nevertheless, it cannot be said that the prosecution relied solely on the medical certificate (stating that there was [h]ymen rupture, secondary to penile insertion as well as foulsmelling discharges. The diagnosis was [r]uptured hymen secondary to rape [p. 68, Record]). In fact, reliance was made on the testimony of the victim herself which, standing alone even without medical examination, is sufficient to convict (people vs. Topaguen, 369 SCRA 601 [1997]). It is well-settled that a medical examination is not indispensable in the prosecution of rape (People vs. Lacaba, G.R. No. 130591, November 17, 1999; People vs. Salazar, 258 SCRA 55 [1996]; People vs. Venerable, supra). It is enough that the evidence on hand convinces the court that conviction is proper (People vs. Auxtero, supra). In the instant case, the victims testimony alone is credible and sufficient to convict. Salcedo-Ortaez v. Court of Appeals Doctrine: Under R.A. 4200, it is unlawful for any person , not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other

device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. The inadmissibility of such evidence obtained in violation of said Act is mandatory under the law. Facts: Rafael Ortanez filed with the Regional Trial Court a complaint for annulment of marriage with damages against Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of Teresita. Among the evidence orally formally offered by Ortanez were three cassette tapes of alleged telephone conversations between Teresita and unidentified persons. Issues: Teresita filed an objection/comment to Rafaels oral offer of evidence, assailing the admissibility in evidence of the cassette tapes. Can her objection be sustained? Held: Yes. The evidence presented are inadmissible by virtue of RA 4200. Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows: "Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkietalkie or tape-recorder, or however otherwise described. x x x" "Section 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any par, thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation." Clearly, respondents trial court and Court of Appeals failed consider the afore-quoted provisions of the law in admitting in the casette tapes in question. Absent a clear show that both parties to the telephone conversations allowed recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. Ramirez v. Court of Appeals Doctrine: The term private communication in RA 4200 includes private conversations. Facts: Ramirez and Garcia had a confrontation in the latters office. In the confrontation, Garcia allegedly vexed, insulted and humiliated Ramirez in a hostile and furious manner, and in a manner offensive to the person of Ramirez. Meanwhile, Ramirez intentionally used a tape recorder to record all what Garica said. Garcia then filed a criminal case for violation of RA 4200 against Ramirez. Issues: Ramirez contends that what was recorded was a private conversation and not a private communication. Therefore, RA 4200 is not applicable. Is his contention correct? Held: First legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible11 or absurb or would lead to an injustice. 12 Section I of R.A, 4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides : Section 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word

by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkietalkie or tape recorder, or however otherwise described. The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any." Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200. The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish. Second, the nature of the conversation is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section I of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." Finally, petitioner's contention that the phrase "private communication" in Section I of R. A. 4200 does not include private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to Impart." In its ordinary signification, communication connotes the act of sharing or imparting, as in a conversation,15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)."16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22,1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and commurucation" were interchangeably used by Senator Taada in his Explanatory Note to the bill quoted below: At has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well as the undeniable fact that most, if not all. civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of Communication, among others, has expressly been assured by our Constitution, Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature. of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals----- free from every justifiable intrusion by whatever means."

People v. Godoy Doctrine: The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families. Facts: Godoy was charged with rape and kidnapping with serious illegal detention. His defense was that they were lovers, as evidenced by the letters wrote by the complainant to the accused. Issue: Can Godoy be convicted of rape? Held: No. They were in fact lovers. It is basic that for kidnapping to exist, there must be indubitable proof that the actual intent of the malefactor was to deprive the offended party of her liberty. In the present charge for that crime, such intent has not at all been established by the prosecution. Prescinding from the fact that the Taha spouses desisted from pursuing this charge which they themselves instituted, several grave and irreconcilable inconsistencies bedevil the prosecution's evidence thereon and cast serious doubts on the guilt of appellant. The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families.80 It could precisely be that complainant's mother wanted to save face in the community where everybody knows everybody else, and in an effort to conceal her daughter's indiscretion and escape the wagging tongues of their small rural community, she had to weave the scenario of this rape drama.

Bank of the Philippine Islands v. Court of Tax Appeals Doctrine: There are exceptions to the rule that the court cannot take judicial notice of contents of other cases pending before it. Facts: BPI filed a written claim for refund in the amount of P112,000 with the CIR alleging that it did not apply the 1989 refundable amoun to fP279,000 to its 1990 Annual income Tax Return or other tax liabilities due to the alleged business losses it incurred for the same year. Issue: Is BPI entitled to the claimed refund? Held: Yes. Petitioner also calls the attention of this Court, as it had done before the CTA, to a Decision rendered by the Tax Court in CTA Case No. 4897, involving its claim for refund for the year 1990. In that case, the Tax Court held that "petitioner suffered a net loss for the taxable year 1990 x x x."18 [Decision in CTA Case No. 4897, p. 7; rollo, p. 59.] Respondent, however, urges this Court not to take judicial notice of the said case.19 [Respondents Memorandum, pp. 9-10.] As a rule, "courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge. Be that as it may, Section 2, Rule 129 provides that courts may take judicial notice of matters ought to be known to judges because of their judicial functions. In this case, the Court notes that a copy of the Decision in CTA Case No. 4897 was attached to the Petition for Review filed before this Court. Significantly, respondents do not claim at all that the said Decision was fraudulent or nonexistent. Indeed, they do not even dispute the contents of the said Decision, claiming merely that the Court cannot take judicial notice thereof. To our mind, respondents reasoning underscores the weakness of their case. For if they had really believed that petitioner is not entitled to a tax refund, they could have easily proved that it did not suffer any loss in 1990. Indeed, it is noteworthy that respondents opted not to assail the fact appearing therein -- that petitioner suffered a net loss in 1990 - in the same way that it refused to controvert the same fact established by petitioners other documentary exhibits. In any event, the Decision in CTA Case No. 4897 is not the sole basis of petitioners case. It is merely one more bit of information showing the stark truth: petitioner did not use its 1989 refund to pay its taxes for 1990. Torres v. Court of Appeals Doctrine: The amended complaint takes place of the original. Therefore, the admissions made in the original pleading, superseded by the amended complaint will be considered extrajudicial admission that must be alleged and proven in court. Facts: Margarita Torres was married to Claro Santillan, and they had two children: Vicente and Antonina. Antonina married and had six children. After the death of her husband, Margarita cohabited with Leon Arvisu Arbole without the benefit of marriage, and they had a child, Macaria Torres. Subsequently, Arbole and Margarita were married, and Macaria lived with and was reared by her parents. Lot 551 had been leased temporarily by the Government to Margarita who was the actual occupant of the lot. On December 13, 1910, the Director of Lands issued to Margarita a Sale Certificate over said lot, payable in 20 annual installments. 20 years before his death, Arbole sold and transferred in a notarial deed his rights and interest to the portion of the lot in favor of Macaria. On June 6, 1953, about 22 years after the death of Margarita and 20 years after the death of Arbole, Vicente Santillan executed an Affidavit claiming possession of Lot 551 and asking for the issuance of title in his name. A Transfer Certificate of Title was issued in the name of the legal heirs of Margarita.

Santillan and the children of Antonina filed a case of forcible entry against Macaria, alleging that the latter had entered a portion of the lot without their consent, constructed a house thereon and refused to vacate upon demand. Macaria claimed to be a co-owner of the lot, being one of Margaritas daughters. She instituted an action for partition of the lot, alleging that said lot was the conjugal property of Margarita and Arbole, and that she is their legitimated child. The trial court ruled that the lot was Margaritas paraphernal property and adjudicated 2/3 to her heirs by Claro Santillan and 1/3 to Macaria. Macarias share was later increased to 4/6, then reduced by the Court of Appeals to . The CA declared that she is not a legitimated child. Issues: Whether or not the contention of the petitioner is correct such that the respondent court has overlooked to include in its findings of facts the admissions made by Vicente Santilan and the heirs of Antonina Santillan? Held: No. To warrant review, petitioner has summarized her submission based on two assignments of error. The first was expressed as follows: Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres, it has overlooked to include in its findings of facts the admission nude by Vicente Santillan and the heirs of Antonina Santillan (herein respondents) that Macaria A Torres and Vicente Santillan and Antonina Santillan are brother and sisters with a common mother Margarita Torres and they are the legal heirs and nearest of relatives of Margarita Torres, and as a consequence thereof, the Court of Appeals had drawn an incorrect conclusion in adjudicating the entire share of Margarita Torres in the conjugal property solely to Vicente Santillan and the heirs of Antonina Santillan." (Italics ours) As we understand it petitioner has conceded, with which we concur, that, without taking account of the sworn statement of March 5, 1930, she cannot be considered a legitimated child of her parents. Continuous possession of the status of a. natural child, fact of delivery by the mother, etc. will not amount to automatic recognition, but an action for compulsory recognition is still necessary, which action may be commenced only during the lifetime of the putative parents, subject to certain exceptions. The admission adverted to appears in paragraph 3 of private respondents' original complaint in the Ejectment Case reading: "the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of Margarita Torres, who died in Tanza, Cavite on December 20, 1931." The statement, according to petitioner, is an admission of her legitimation and is controlling in the determination of her participation in the disputed property. We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment Case, the underlined portion was deleted so that the statement simply read: "That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza Cavite, on December 20, 1931"; In virtue thereof, the Amended Complaint takes the place of the original. The latter is retarded as abandoned and ceases to perform any further function as a pleading, The original complaint no longer forms part of the record.13 If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, required its formal offer. Contrary to petitioner's submission, therefore, there can be no estoppel by extrajudicial admission made in the original complaint, for failure to offer it in evidence.14 It should also be noted that in the Partition Case private respondents, in their Answer (par. 4), denied the legitimacy of petitioner. G.R. No. 123546. July 2, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOERAL GALLENO, accused-appellant. DECISION PER CURIAM: What could be more compelling than deciding a case which involves the sexual abuse of a fiveyear old child? Equally important is the fact that the case before us involves the highest penalty imposable by law. Being the guardian of the most fundamental liberties of every citizen, the Court must pass upon every intricate detail of the case at bar to determine whether or not accused-appellant committed the gruesome act imputed against him. Accused-appellant Joeral Galleno seeks reversal of the judgment of Branch 14 of the Regional Trial Court of the 6th Judicial Region stationed in Roxas City, relying on the defense of denial. Since the case involves the death penalty, the matter has been elevated to this Court for automatic review. Accused-appellant was charged in an Information docketed as Criminal Case No. C-4629 for the crime of Statutory Rape, reading as follows: The undersigned Assistant Provincial Prosecutor, upon prior authority and approval of the Provincial Prosecutor, and the original complaint filed by the guardian of the offended party, accuses Joeral Galleno of the crime of STATUTORY RAPE, committed as follows: That on or about 5:00 o'clock in the afternoon of August 16, 1994, at Brgy. Balighot, Maayon, Capiz, and within the jurisdiction of this Court, the said accused did, then and there, wilfully and feloniously, and without the permission of anyone, enter the house of EVELYN OBLIGAR, a fiveyear old child, and succeeded in having carnal knowledge of her thereby inflicting upon the latter a vaginal laceration which caused continuous bleeding and her admission of five (5) days at the Roxas Memorial Hospital. CONTRARY TO LAW. (p. 9, Rollo.) Accused-appellant entered a plea of not guilty. Thereafter, trial on the merits ensued, resulting in a judgment of conviction, the dispositive portion of which reads: IN THE LIGHT OF THE FOREGOING ESTABLISHED FACTS, the Court finds accused JOERAL GALLENO GUILTY beyond reasonable doubt under Section 11 of Republic Act No. 7659 amending Article 335 of the Revised Penal Code. Accordingly, accused JOERAL GALLENO is sentenced to suffer the supreme penalty of DEATH and to indemnify the victim Evelyn Obligar Garganera the sum of FIFTY THOUSAND (P50,000.00) PESOS. Let this DECISION serve as clear signal warning the perverts, the misguided elements of our society, especially their lackadaisical parents in their innate moral obligation and responsibility in educating their children that in this corner of the world the wheels of justice is not asleep and its unforgiving hands and watchful eyes are as vigilant as ever. (pp. 44-45, Rollo.) In flashback, let us visualize the events. Evelyn Obligar Garganera is the 5-year old daughter of Rosita Obligar Garganera who had to leave the province to find work in Manila after separating from her husband. Evelyn, together with her younger brother, 3-year old Eleazar, was thus left under the care and custody of their uncle, Emetario Obligar, and aunt, Penicola Obligar. Less than kilometer away from their place of residence lived accused-appellant, 19-year old Joeral Galleno, known well Evelyn's family due to his frequent visits at the Obligars' abode as he was paying court to Emetario's eldest child, Gina. On August 16, 1994, Emetario and Penicola left their residence to work at sugarcane plantation owned by Magdalena Dasibar. Their three children had all ealier left for school. The only persons left in the house were niece Evelyn and nephew Eleazar. At around 4 o'clock in the afternoon, accused-appellant was on his way to his Lola Esing to have his pants tailored. Since it was drizzling, he passed by the Obligars' residence and found the two children left to themselves. The prosecution and the defense presented conflicting versions on what occurred at said residence. However, the result is undisputed. Evelyn

sustained a laceration in her vagina which result in profuse, and to our mind, life-threatening bleeding due to her tender age. The prosecution's version of what took place at the Obligars' residence is based on the testimony of Evelyn herself, her uncle Emetario, and the doctors who examined and treated her. The Solicitor General summarized the same in this wise: 2. Appellant took advantage of the situation by sexually molesting Evelyn. After lowering her shorts, he made Evelyn sit on his lap, facing him. As Evelyn was only five-years old while appellant was fully-grown man, the penetration caused the child's vagina to bleed, making her cry in pain. (pp.10-11 and 18-25, tsn, Garganera, January 10, 1995). 3. Appellant tried to stop the bleeding by applying, with his finger, the sap of "madre de cacao" leaves on her vagina. Unsuccessful in his attempt, he left Evelyn grimacing and crying in pain. (pp. 14-15, tsn Garganera, January 10, 1995; pp. 6-7, tsn, Obligar, February 7, 1995). 4. Shortly, Emeterio and Penicola came home from work. The spouses were laborers in a sugarcane plantation about two kilometers away from their house. They arrived to find Evelyn crying. Emetario noticed that there was blood in Evelyn's dress and she was pressing a rug against her genital organ. (pp. 11-12, tsn, Obligar, January 10, 1995; pp. 8-9, tsn, Obligar, February 7, 1995). 5. Emeterio asked Evelyn what happened but she did not answer. Emetario spread the child's legs and saw that her vagina had been lacerated and blood was oozing therefrom. He summoned a "quack" doctor who applied herbal medicine on Evelyns's vagina but did not stop the bleeding. (pp.12-14, tsn, Obligar, January 12, 1995). 6. The following day, August 17, 1994, Emeterio brought Evelyn to the clinic of Dr. Alfonso D. Orosco, the Rural Health Physician of Maayon, Capiz. Dr. Orosco reported, upon examining Evelyn, that he found (1) clotted blood, about 1 centimeter in diameter, in her vaginal opening, and (2) a vaginal laceration, measuring 1.0 centimeter x o.5 centimeter, between the 3:00 o'clock and 6:00 o'clock position. He also affirmed that Evelyn's vaginal laceration could have been by blunt instrument inserted into the vigina, that it was possible that a human penis in full erection had been forcibly inserted into her vagina, and that a human penis in full errection is considered a blunt intrument (pp. 4-7, tsn, Orosco, November 28, 1994; p. 14, tsn, Obligar, January 12, 1995). 7. While he was examining Evelyn, Dr. Orosco asked Evelyn what caused her injuries. The child told him that a penis was inserted into her vagina and that its insertion caused her pain. (pp. 910, 14 and 18-19, tsn, Orosco, November 28, 1994). 8. Since his clinic lacked the proper medical facilities needed to treat Evelyn, Dr. Orosco, after dressing the victim's wound which continued to bleed, advised Emeterio and Penicola to bring the child to the hospital for further medical treatment. (p.8, tsn, Orosco, November 28, 1994; pp. 14-16, tsn, Obligar, January 12, 1995) 9. On August 18, 1994, Emeterio brought Evelyn to the Roxas Memorial General Hospital were she was examined by resident physician Dr. Ma. Lourdes Laada. Dr. Laada, upon examining Evelyn found that "there was a 3 cm. lacerated wound at the left anterior one-third of the vagina" and "the pressence of about 10-15cc of blood" at the vaginal vault. Dr. Laada recommended that evelyn be admitted for confinement in the hospital because the wound in her vagina, which was bleeding, had to be repaired. Due to financial constraints, Evelyn was not admitted into the Hospital that day and went home with Emeterio to Barangay Balighot. (pp.6-8,tsn Laada, January 4, 1995; pp. 15-16, ts, Obligar, January 12, 1995). 10. Upon her examination of the victim on August 18, 1994, Dr. Laada opined that "a lot of things will cause the lacerated wound in the vagina." (p. 9, tsn, Laada, January 4, 1995). According to Dr. Laada, the vaginal laceration may be caused (1) by trauma to the area, when a girl falls and hits her genital area on a blunt instrument; (2) by medical instrumentation, like the insertion of a speculum into the vagina; or (3) by the insertion of blunt foreign object into the vagina, like a finger or a penis of a man in full erection. (pp. 8-9, tsn, Laada, January 4, 1995). 11. On August 19, 1994, Emetario brought Evelyn back to the Roxas Memorial General Hospital where she was attended to by Dr. Machael Toledo, the resident physician on duty, who found

blood clots and minimal bleeding in the genital area. Dr. Toledo " pack(ed) the area to prevent further bleeding and (he) admitted the patient for possible repair of the laceration and blood transfusion because she has anaemia 2ndary to bleeding." Two hundred fifty five (255) cc of blood was transfused to Evelyn and she was given antibiotics to prevent infection. However, she was no longer operated on because the laceration had healed. Five days later, Evelyn was discharged and sent home with medication. (pp. 11-13, 17 and 26, tsn, Toledo, December 2, 1994). 12. Upon his examination of Evelyn on August 19, 1994, Dr. Toledo disclosed that the child suffered severe compound laceration which could have been caused by a normal and fully developed penis of a man in a state of erection that was forcibly inserted into her vagina and that the insertion caused her vagina to hemorrhage which thus required the transfusion of 255 cc of blood (pp. 14-16 and 26, tsn, Toledo, December 2, 1994. 13. Prior to her confinement in the Roxas Memorial General Hospital on August 19, Emetario and Penicola Obligar brought Evelyn to the Maayon Police Station on August 18, 1994, where they reported the crime to SPO1 Paulino Durana. That same day, appellant was apprehended in a house near the Balighot Elementary School and brought to the police station (pp17-19, tsn, Obligar, January 12, 1995; pp. 5-9, 16-17 and 21, tsn, Durana, January 16, 1995). (pp. 164-171, Rollo.) Denial is presented as the defenses. Accused-appellant testified that when he arrived at the Obligar residence that afternoon of August 16, 1994, he found the two children, Evelyn and Eleazar (also referred to in the record as Pilfo). While seated at the balcony, accused-appellant was approached by Evelyn, who knew him (tsn, April 5, 1995, pp.5 and 8). He cajoled her by throwing her up and down, his right hand holding the child and his left hand covering her vagina (Ibid., p. 21). Upon lifting up the child the first time, his left ring finger was accidentally inserted into the vagina of child since his fingernail was long and the child was not wearing any underwear. Consequently, Evelyn began to cry because her vagina started to bleed. Upon seeing this, he immediately went down the house and got some bark or leaves of madre de cacao tree and applied the sap on the child's wound. The bleeding ceased and Evelyn stopped crying. Thereafter, accused-appellant went home. (Ibid., pp.9-10). Accused-appellant further testified that on August 18, 1994, at around 9 o'clock in the morning, he was arrested. On the same day, Emeterio Obligar asked him to admit the offense so that he could be released the next day, but accused-appellant did not do so (Ibid., pp. 26-27). Accused-appellant's father Raul Galleno was called to the witness stand and he testified that he learned about the arrest of his son on August 18, 1994 (tsn, May 12, 1995, p.6). The following day, he went to the house of the Obligars to ask Evelyn what happened to her. The child allegedly answered that a finger was accidentally inserted into her genital organ, but that Penicola who was then present, butted into the conversation and told Raul Galleno that the penis of accused-appellant was likewise inserted (Ibid., p.8). The trial court did not accord credence to the version of the defense, pointing out in its decision that accused-appellant's defense of denial hinged on the argument that the statement of Evelyn as to how she sustained her vaginal laceration was mere concoction and a plain distortion of facts by her guardian. The trial court called this a "desperate attempt of the defense to becloud the charge of rape." The trial court believed and accepted the testimony of Police Officer Paulino Durana that during the interrogation of Evelyn which he conducted at the PNP Station of Maayon, Emeterio and Penicola Obligar did not interfere with the responses of Evelyn, although, true enough, it was difficult to obtain answer from her because of her tender age. The trial deemed the following circumstances significant in finding accused-appellant culpable: 1. Accused-appellant failed to explain how his left finger accidentally came in contact with Evelyn's vagina, while in the process of throwing her up and down. Besides, the prosecution was able to establish that Evelyn was wearing shorts. And assuming for the sake of argument that Evelyn was not wearing any pants or underwear at that time, accused-appellant failed to explain how his finger could possibly penetrate the victim's vagina by about one-fourth of an inch (p. 23, tsn, April 5, 1995).

2. After satisfying his lust, accused-appellant left the victim with her 3-year old brother, in pain and bleeding. 3. Evelyn's statement given to Dr. Ma. Lourdes Laada, the physician who examined her at the Roxas Memorial General Hospital, that it was accused-appellant's finger which injured her, was a consequence of the victim's confusion. 4. The formal offer of settlement made by accused-appellant's father Raul Galleno militates against the cause of the defense. Hence, the instant appeal and review, with accused-appellant assigning the following errors: THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE MEDICAL DOCTORS WHEN THE SAME FAILED TO CONCLUSIVELY AND SUFFICIENTLY ESTABLISH THE CAUSE OF THE LACERATION IN THE OFFENDED PARTY'S VAGINA THE TRIAL COURT SHOWED MANIFEST BIAS THEREBY DEPRIVING THE ACCUSED-APPELLANT TO A FAIR AND IMPARTIAL TRIAL AND DISREGARDED THE RIGHT OF THE ACCUSED TO BE PRESUMED INNOCENT, WHEN HE ACTIVELY PARTICIPATED IN THE CROSS EXAMINATIUON OF THE ACCUSED THE TRIAL COURT ERRED IN NOT DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AS UNJUSTIFIED THE TRIAL COURT ERRED IN INTERPRETING THE FINANCIAL ASSISTANCE EXTENDED BY THE PARENTS OF THE ACCUSED TO THE OFFENDED PARTY AS AN IMPLIED ADMISSION OF GUILT (pp. 81-82, Rollo.) One can not escape the feeling of utmost compassion for any rape victim, and more especially so for a 5-year old statutory rape victim. However, in our consideration of the matter before us, we set aside emotion and observe impartiality and coldness in drawing conclusions. Under the first assigned error, accused-appellant contends that the testimony of the three expert witnesses presented by the prosecution, namely, Dr. Alfonso Orosco, Dr. Ma. Lourdes Laada, and Dr. Machael Toledo, which convinced the trial court that rape was committed against the offended party, is not impeccable considering that they found that there was no presence of spermatozoa, and that they were not sure as to what caused the laceration in the victim's vagina; that Dr. Laada herself testified that Evelyn told her that it was the finger of accused-appellant which caused the laceration. In addition, accused-appellant banks on the victim's testimony on cross-examination, that it was the finger of accused-appellant which caused the laceration; and that she even disclosed this to accused-appellant's father, Raul Galleno. We are not persuaded. As a general rule, witnesses must state facts and not draw conclusions or give opinions. It is the court's duty to draw conclusions from the evidence and form opinions upon the facts proved (Francisco, Pleadings and Trial Practice, Vol. I. 1989 ed., pp. 889-890). However, conclusions and opinions of witnesses are received in many cases, and are not confined to expert testimony, based on the principle that either because of the special skill or expert knowledge of the witness, or because of the nature of the subject matter under observation, of for other reasons, the testimony will aid the court in reaching a judgment. (Ibid., p.886). In the case at bar, the trial court arrived at its conclusions not only with the aid of the expert testimony of doctors who gave their opinions as to the possible cause of the victim's laceration, but also the testimony of the other prosecution witness, especially the victim herself. In other words, the trial court did not rely solely on the testimony of the expert witnesses. Such expert testimony merely aided the trial court in the exercise of its judgment on the facts. Hence, the fact that the experts enumerated various possible causes of the victim's laceration does not mean the trial court's interference is wrong. The absence of spermatozoa in the victim's vagina does not negate the conclusion that it was his penis which was inserted in the victim's vagina (People vs. Caada, 253 SCRA 277 [1996]). In rape, the important consideration is not the emission of semen but the penetration of the female genitalia by the male organ (People vs. Dadles, 254 SCRA 696 [1996]). Verily, it is entirely probable that climax on the part of accused-appellant was not reached due to the cries of pain of the victim and the profuse bleeding of her vagina.

As regards the inconsistencies in Evelyn's declaration, particularly as to what really caused the laceration, we are convinced that the child, due to her tender age, was just confused. This is best exemplified by the testimony of Dr. Lourdes Laada on cross-examination, as follows: Q Now, Doctor, at the time that you conducted your examination, you were aware that this child was only five years old? A Yes, sir. Q And at that tender age, Doctor, is it possible that the child may not know the difference of distinction between fingers of the hands and a finger protruding between the legs of a person? A Yes, sir, it is possible. Q So that is possible, Doctor, that the child may have referred to a finger that is between the legs? WITNESS You mean the penis? PROSECUTOR OBIENDA Yes. WITNESS It is possible. (TSN, p.27, March 30, 1995.) Of vital consideration and importance too is the unreliability, if not the outright incredulity of the version of accused-appellant which is not in accord with ordinary human experience. We thus can not help expressing sentiments similar of those of the trial court when is said: The contention of accused Joeral Galleno raises serious doubts to his credibility. He failed to explain how his ring finger accidentally came in contact with the genitalia of Evelyn, while it was established by the prosecution that at that time Evelyn was wearing shorts. Even assuming "ex gratia argumente" that Evelyn was pantyless, how could it be possible for his finger to penetrate to the vagina for about one-fourth of an inch when she was in shorts. The Supreme Court, in People vs. Fulgencio Baquiran, 20 SCRA 451, (held that) evidence, to be believed must not only proceed from the mouth of a credible witness, but it must be credible in itself. Human perception can be warped by the impact of events and testimony colored by the unconscious workings of the mind. No better test has yet been found to measure the value of a witness' testimony than its conformity to the knowledge and common experience of mankind. (pp.42-43, Rollo.) Section 4, Rule 128 of the Rules of Court provides that "(e)vidence must have such a relation to the fact in issue as to induce belief in its existence or nor-existence." This simply means that relevancy is determinable by the rules of logic and human experience (Regalado, Remedial Law Compendium, Vol. II, 1988 ed., p.434). There is no precise and universal test of relevancy provided by law. However, the determination of whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and everyday experience (Sibal and Salazar, Compendium on Evidence, 1995 ed., citing Alfred Asmore Pope Foundation vs. New York, 138 A. 444, 106 Conn. 432). There is no explanation how the left ring finger (allegedly with long fingernail) of accusedappellant penetrated the victim's vagina by a depth of one fourth of an inch. Admittedly, accused-appellant's right hand held the child while his left hand supposedly held her in the vagina area. Why would the hold the child's vagina if his only intention was to frolic and kid around with her? Accused-appellant likewise failed to explain why after injuring Evelyn (and after applying to the wound the sap of madre de cacao), he left her in the company of an even younger child, the victim's 3-year old brother. He did not even make an effort to immediately inform Emeterio and Penicola of what happened. Instead, he went home and kept mum about the incident. Accused-appellant also said that after the alleged accident, before going home, he removed Eleazar's shorts and put them on Evelyn. Assuming this to be true, this only shows that the child was still bleeding. Why then would he leave the child considering that there was no adult to attend her? Significantly, his act of immediately leaving the place, when considered in the

light of the other evidence, reflects his fear because of what he had done. The proverb "the wicked fleeth even when no man pursueth, but the innocent are as bold as a lion" was correctly adopted by the trial court in drawing its conclusions. All of these loopholes are palpable and manifest, and clearly work against the credibility of accused-appellant's story on which his defense is based. Besides, the trial court's conclusions finds supports in the testimony of accused-appellant's own witness, Dr. Lourdes Laada (who was earlier presented during the trial as a prosecution witness), who testified that a laceration is caused by a blunt instrument and that a fingernail is not a blunt but a sharp instrument (TSN, pp.32-33, March 30, 1995). As regards accused-appellant's argument that the victim's testimony is just a concocted story of what really happened, we apply the rule that the revelation of an innocent child whose chastity was abused deserves full credence (People vs. Cagto, 253 SCRA 455 [1996]). We likewise consider the fact that her uncle and aunt, virtually her foster parents, themselves support her story of rape. It is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject a daughter to embarrassment and even stigma (People vs. Dones, supra.) Accused-appellant's father, Raul Galleno, tried to destroy the credibility of Evelyn when he took the stand and testified that the child disclosed to him that is was accused-appellant's finger which was inserted into her vagina. Nevertheless, this testimony cannot prevail over the testimony of the victim, to wit: FISCAL OBIENDA Q You said that Joeral Galleno the accused in this case hurt you while you were in the farm, can you tell in the farm, can you tell the Honorable Court which part of your body was hurt by Joeral Galleno? A (Witness pointing to her vagina) Here. Q When you said you were hurt did you bleed? WITNESS A Yes, Sir. FISCAL OBIENDA Q What was used by Joeral Galleno in hurting your sexual organ A His (Pitoy). Penis. COURT Make the translation of "Pitoy" into Penis. Do you agree that the translation of Pitoy is Penis in English? ATTY. DISTURA Agreeable, Your Honor. FISCAL OBIENDA Q What did Joeral Galleno do with his Pitoy (Penis) to your vagina (Putay)? A It was inserted (ginsulod) to my vagina (Putay). Q When Joeral Galleno inserted his penis (Pitoy) to your vagina (Putay), that was the reason why it bleed? A Yes, sir. Q And it was very painful? A Yes, Sir. Q And you cried because of pain? A Yes, Sir. FISCAL OBIENDA Q And you were brought to the Doctor and admitted to the hospital because of that? A Yes, Sir. (TSN, pp.10-12, January 10, 1995) Under the second assigned error, accused-appellant alleges that he was deprived of a fair and impartial trial since the trial court showed bias by discounting his testimony, and by actually participating in the cross-examination of accused-appellant.

We recently pronounced in People vs. Malabago (265 SCRA 198 [1996]) that a judge may not properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time and clarify obscure and incomplete details after the witness was given direct testimony cannot be assailed as a specie of bias. Of course, we are aware of Rule 3.06 of the Code of Judicial Conduct provides: While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth. And there is undoubtedly undue interference if the judge extensively propounds question to the witness which will have the effect of or will tend to build or bolster the case for one of the parties. We have, however, carefully examined the record and transcript of stenographic notes of the instant case. The trial court judge, the Honorable Salvador S. Gubaton, did not to build the case for one of the parties. For instance, accused-appellant, in his brief, refers to the questions propounded by the trial court on his of cajoling the child. A perusal of the line of questioning referred to hardly shows bias on the part of the trial court, but pure clarification. In the third assigned error, accused-appellant questions the validity of his arrest. It is settled jurisprudence that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived (People vs. Lopez, Jr., 245 SCRA 95[1995]). An accused should question the validity of his arrest before he enters his plea in the trial court (Filoteo, Jr. vs. Sandiganbayan, 263 SCRA 222 [1996]). He is estopped from questioning any defect in the manner of his arrest if he fails to move for the quashing of the information before the trial court (People vs. Compil, 244 SCRA 135 [1995]) or if he voluntarily submits himself to the jurisdiction of the court by entering a plea and by participating in the trial (People vs. De Guzman, 22 4 SCRA 93 [1993); People vs. Lopez, Jr., supra). It does not appear in the record that accused-appellants raised this matter before entering his plea of "not guilty" to the charge (pp. 63 & 67, Record). Further, this issue was not even touched during the trial. Lastly, accused-appellant, in his fourth assigned error, argues that the trial court misinterpreted the financial assistance extended by his parents as an attempt to settle the case. Accusedappellant even banks on the alleged close relationship between Emeterio Obligar and Raul Galleno as compadres, and the fact that Emeterio borrowed forty pesos from Raul Galleno, despite the fact that Emeterio already knew that accused-appellant caused the laceration in Evelyn's vagina. Accused-appellant also draws attention to two incidents involving alleged financial assistance extended by Raul Galleno to the spouses Emeterio and Penicola Obligar. First, Emeterio Obligar, whom Raul Galleno said is his compadre, borrowed P40.00 for fare going Roxas City where Evelyn was confined. Decond, on August 20, 1994, Raul Galleno and his wife and one of the brothers of Penicola Obligar went to Roxas Memorial General Hospital. There he gave P400.00 financial assistance to Penicola Obligar. Raul Galleno later admitted that the sum of P440.00 was returned to him by the spouses. Accused-appellant insists that these offers of financial assistance were not attempts at an amicable settlement but were prompted out of a sincere desire on the part of Raul Galleno to help the offended party. We find no merit in the above-stated argument. It may be inferred that Raul Galleno wanted to settle the case by offering an amount to the spouses Obligar, to wit: Q Now according to you, you were paid in the amount of Four Hundred Pesos (P400.00) then you expected your Comareng Pening as financial assistance to Evelyn Garganera, isn't it? A Yes, Your Honor. Q How long after August 19, 1994, that your Comareng Pening returned to you the amount of Four Hundred Pesos (P400.00)? A A week after when Evelyn had already checked up from the hospital. Q It was given by you or as voluntary financial assistance, why did you receive the amount or the payment returned to that amount of Four Hundred Pesos (P400.00)?

A That was telling me that they refused already for the settlement of the case. Q And that is why they returned the amount of Four Hundred Pesos (P400.00). (tsn, pp. 29-30, May 12, 1995.) From the above-stated clarificatory questions by the trial court, it may gleaned that Raul Galleno no longer had any interest in aiding the victim when he found that the Obligar spouses would still pursue the case against his son, accused-appellant, and hence he found that his offer for settlement was unavailing. Hence, on this point we likewise agree with the trial court when it took the financial assistance to mean an act of settling the case. This does manifest a father's attempt to rescue his guilty son sure incarceration. The nightmare that was forced into the tender mind of 5-year old Evelyn Obligar Garganera may fortunately haunt her all her life. Justice may not be able to save from this nightmare but it can calm and assure her that her tormentor and abuser shall undoubtedly face retribution. Four members of the Court - although maintaining their adherence to the separate opinions expressed in People vs. Echegaray (G.R. No. 117472, February 7, 1997) that Republic Act No. 7659, insofar as it prescribes the death penalty is unconstitutional - nevertheless submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed. WHEREFORE, finding the conviction of accused-appellant justified by the evidence on record, the assailed decision is hereby AFFIRMED in toto. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the record of the case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED. Narvasa, C.J., Regalado, Davide Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez