G.R. No. 143439. October 14, 2005.

MAXIMO ALVAREZ, petitioner, vs. SUSAN RAMIREZ, respondent.

Remedial Law; Evidence; Witnesses; Words and Phrases; Marital

Disqualification; During their marriage, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime committed by one against the other or the
latters direct descendants or ascendants.Section 22, Rule 130 of the Revised Rules of
Court provides: Sec. 22. Disqualification by reason of marriage.During their marriage,
neither the husband nor the wife may testify for or against the other without the consent of
the affected spouse, except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latters direct descendants or ascendants.
The reasons given for the rule are: 1. There is identity of interests between husband and
wife; 2. If one were to testify for or against the other, there is consequent danger of perjury;
3. The policy of the law is to guard the security and confidences of private life, even at the
risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness;
and 4. Where there is want of domestic tranquility there is danger of punishing one spouse
through the hostile testimony of the other.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Before us is a petition for review on certiorari assailing the Decision of the Court of
1 2

Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled SUSAN RAMIREZ,
petitioner, versus, HON. BENJAMIN M. AQUINO, JR., as JUDGE RTC,
MALABON, MM, BR. 72, and MAXIMO ALVAREZ, respondents.
Susan Ramirez, herein respondent, is the complaining witness in Criminal Case
No. 19933-MN for arson pending before the Regional Trial Court, Branch 72,
3

Malabon City. The accused is Maximo Alvarez, herein petitioner. He is the husband
of Esperanza G. Alvarez, sister of respondent.
On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness
stand as the first witness against petitioner, her husband. Petitioner and his counsel
raised no objection.
Esperanza testified as follows:
ATTY. ALCANTARA:
We are calling Mrs. Esperanza Alvarez, the wife of the
accused, Your Honor.
COURT:
 Swear in the witness.
xxx
ATTY. MESIAH: (sic)
Your Honor, we are offering the testimony of this witness
for the purpose of proving that the accused Maximo
Alvarez committed all the elements of the crime being
charged particularly that accused Maximo Alvarez pour
on May 29, 1998 gasoline in the house located at Blk. 5,
Lot 9, Phase 1-C, Dagat-dagatan, Navotas, Metro Manila,
the house owned by his sister-in-law Susan Ramirez; that
accused Maximo Alvarez after pouring the gasoline on the
door of the house of Susan Ramirez ignited and set it on
fire; that the accused at the time he successfully set the
house on fire (sic) of Susan Ramirez knew that it was
occupied by Susan Ramirez, the members of the family as
well as Esperanza Alvarez, the estranged wife of the
accused; that as a consequence of the accused in
successfully setting the fire to the house of Susan
Ramirez, the door of said house was burned and together
with several articles of the house, including shoes, chairs
and others.
COURT:
You may proceed.
xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx
Q When you were able to find the source, incidentally what
: was the source of that scent?
A When I stand by the window, sir, I saw a man pouring the
: gasoline in the house of my sister (and witness pointing to
the person of the accused inside the court room).
Q For the record, Mrs. Witness, can you state the name of
: that person, if you know?
A He is my husband, sir, Maximo Alvarez.
:
Q If that Maximo Alvarez you were able to see, can you
: identify him?
A Yes, sir.
:
Q If you can see him inside the Court room, can you please
: point him?
A Witness pointing to a person and when asked to stand and
: asked his name, he gave his name as Maximo Alvarez. 4

In the course of Esperanzas direct testimony against petitioner, the latter showed
uncontrolled emotions, prompting the trial judge to suspend the proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion to disqualify 5

Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of
Court on marital disqualification.
Respondent filed an opposition to the motion. Pending resolution of the motion,
6

the trial court directed the prosecution to proceed with the presentation of the other
witnesses.
On September 2, 1999, the trial court issued the questioned Order disqualifying
Esperanza Alvarez from further testifying and deleting her testimony from the
records. The prosecution filed a motion for reconsideration but was denied in the
7

other assailed Order dated October 19, 1999. 8

This prompted respondent Susan Ramirez, the complaining witness in Criminal

Case No. 19933-MN, to file with the Court of Appeals a petition for certiorari with 9

application for preliminary injunction and temporary restraining order. 10

On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting
aside the assailed Orders issued by the trial court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether Esperanza Alvarez can testify against her
husband in Criminal Case No. 19933-MN.

Section 22, Rule 130 of the Revised Rules of Court provides:

Sec. 22. Disqualification by reason of marriage.During their marriage, neither the
husband nor the wife may testify for or against the other without the consent of the affected
spouse, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latters direct descendants or ascendants.
The reasons given for the rule are:

1. 1.There is identity of interests between husband and wife;

2. 2.If one were to testify for or against the other, there is consequent danger of perjury;

3. 3.The policy of the law is to guard the security and confidences of private life, even at
the risk of an occasional failure of justice, and to prevent domestic disunion and
unhappiness; and
 4. 4.Where there is want of domestic tranquility there is danger of punishing one
spouse through the hostile testimony of the other. 11

But like all other general rules, the marital disqualification rule has its own
exceptions, both in civil actions between the spouses and in criminal cases for
offenses committed by one against the other. Like the rule itself, the exceptions are
backed by sound reasons which, in the excepted cases, outweigh those in support of
the general rule. For instance, where the marital and domestic relations are so
strained that there is no more harmony to be preserved nor peace and tranquility
which may be disturbed, the reason based upon such harmony and tranquility fails.
In such a case, identity of interests disappears and the consequent danger of
perjury based on that identity is non-existent. Likewise, in such a situation, the
security and confidences of private life, which the law aims at protecting, will be
nothing but ideals, which through their absence, merely leave a void in the unhappy
home. 12

In Ordoo vs. Daquigan, this Court held:

13

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down
in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:
The rule that the injury must amount to a physical wrong upon the person is too narrow; and the
rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is
too broad. The better rule is that, when an offense directly attacks, or directly and vitally impairs, the
conjugal relation, it comes within the exception to the statute that one shall not be a witness against
the other except in a criminal prosecution for a crime committee (by) one against the other.

Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal
relation between him and his wife Esperanza. His act, as embodied in the
Information for arson filed against him, eradicates all the major aspects of marital
life such as trust, confidence, respect and love by which virtues the conjugal
relationship survives and flourishes.
As correctly observed by the Court of Appeals:
The act of private respondent in setting fire to the house of his sister-in-law Susan
Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of
injuring the latter, is an act totally alien to the harmony and confidences of marital relation
which the disqualification primarily seeks to protect. The criminal act complained of had
the effect of directly and vitally impairing the conjugal relation. It underscored the fact that
the marital and domestic relations between her and the accused-husband have become so
strained that there is no more harmony, peace or tranquility to be preserved. The Supreme
Court has held that in such a case, identity is non-existent. In such a situation, the security
and confidences of private life which the law aims to protect are nothing but ideals which
through their absence, merely leave a void in the unhappy home. (People v. Castaeda, 271
SCRA 504 [1997]). Thus, there is no longer any reason to apply the Marital Disqualification
Rule.
It should be stressed that as shown by the records, prior to the commission of the
offense, the relationship between petitioner and his wife was already strained. In
fact, they were separated de facto almost six months before the incident. Indeed, the
evidence and facts presented reveal that the preservation of the marriage between
petitioner and Esperanza is no longer an interest the State aims to protect.
At this point, it bears emphasis that the State, being interested in laying the
truth before the courts so that the guilty may be punished and the innocent
exonerated, must have the right to offer the direct testimony of Esperanza, even
against the objection of the accused, because (as stated by this Court in Francisco ), 14

it was the latter himself who gave rise to its necessity.

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial
court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez to
testify against petitioner, her husband, in Criminal Case No. 19933-MN. Costs
against petitioner.
SO ORDERED.

G.R. No. 143340. August 15, 2001. *

LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners, vs. LAMBERTO T.

CHUA, respondent.

Partnership; Contracts; A partnership may be constituted in any form, except where

immovable property or real rights are contributed thereto, in which case a public instrument
shall be necessary.A partnership may be constituted in any form, except where immovable
property or real rights are contributed thereto, in which case a public instrument shall be
necessary. Hence, based on the intention of the parties, as gathered from the facts and
ascertained from their language and conduct, a verbal contract of partnership may arise.
The essential points that must be proven to show that a partnership was agreed upon are
(1) mutual contribution to a common stock, and (2) a joint interest in the profits.
Understandably so, in view of the absence of a written contract of partnership between
respondent and Jacinto, respondent resorted to the introduction of documentary and
testimonial evidence to prove said partnership. The crucial issue to settle then is whether or
not the Dead Mans Statute applies to this case so as to render inadmissible respondents
testimony and that of his witness, Josephine.
Same; Evidence; Dead Mans Statute; Requirements; The Dead Mans Statute provides
that if one party to the alleged transaction is precluded from testifying by death, insanity, or
other mental disabilities, the surviving party is not entitled to undue advantage of giving his
own uncontradicted and unexplained account of the transaction.The Dead Mans Statute
provides that if one party to the alleged transaction is precluded from testifying by death,
insanity, or other mental disabilities, the surviving party is not entitled to the undue
advantage of giving his own uncontradicted and unexplained account of the transaction.
But before this rule can be successfully invoked to bar the introduction of testimonial
evidence, it is necessary that: 1. The witness is a party or assignor of a party to a case or
persons in whose behalf a case is prosecuted. 2. The action is against an executor or
administrator or other representative of a deceased person or a person of unsound mind; 3.
The subject-matter of the action is a claim or demand against the estate of such deceased
person or against person of unsound mind; 4. His testimony refers to any matter of fact
which occurred before the death of such deceased person or before such person became of
unsound mind.
Same; Same; Same; Same; When it is the executor or administrator or representatives of
the estate that sets up the counterclaim, the plaintiff, herein respondent, may testify to
occurrences before the death of the deceased to defeat the counterclaim.Two reasons
forestall the application of the Dead Mans Statute to this case. First, petitioners filed a
compulsory counterclaim against respondent in their answer before the trial court, and
with the filing of their counterclaim, petitioners themselves effectively removed this case
from the ambit of the Dead Mans Statute. Well entrenched is the rule that when it is the
executor or administrator or representatives of the estate that sets up the counterclaim, the
plaintiff, herein respondent, may testify to occurrences before the death of the deceased to
defeat the counterclaim. Moreover, as defendant in the counterclaim, respondent is not
disqualified from testifying as to matters of fact occurring before the death of the deceased,
said action not having been brought against but by the estate or representatives of the
deceased.
Same; Same; Words and Phrases; Assignor of a party means assignor of a cause of
action which has arisen, and not the assignor of a right assigned before any cause of action
has arisen.The testimony of Josephine is not covered by the Dead Mans Statute for the
simple reason that she is not a party or assignor of a party to a case or persons in whose
behalf a case is prosecuted. Records show that respondent offered the testimony of
Josephine to establish the existence of the partnership between respondent and Jacinto.
Petitioners insistence that Josephine is the alter ego of respondent does not make her an
assignor because the term assignor of a party means assignor of a cause of action which
has arisen, and not the assignor of a right assigned before any cause of action has arisen.
Plainly then, Josephine is merely a witness of respondent, the latter being the party
plaintiff.
Same; Dissolution; The Civil Code expressly provides that upon dissolution, the
partnership continues and its legal personality is retained until the complete winding up of
its business culminating in its termination.With regard to petitioners insistence that
laches and/or prescription should have extinguished respondents claim, we agree with the
trial court and the Court of Appeals that the action for accounting filed by respondent three
(3) years after Jacintos death was well within the prescribed period. The Civil Code
provides that an action to enforce an oral contract prescribes in six (6) years while the right
to demand an accounting for a partners interest as against the person continuing the
business accrues at the date of dissolution, in the absence of any contrary agreement.
Considering that the death of a partner results in the dissolution of the partnership, in this
case, it was after Jacintos death that respondent as the surviving partner had the right to
an account of his interest as against petitioners. It bears stressing that while Jacintos
death dissolved the partnership, the dissolution did not immediately terminate the
partnership. The Civil Code expressly provides that upon dissolution, the partnership
continues and its legal personality is retained until the complete winding up of its business,
culminating in its termination.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

GONZAGA-REYES, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court of
the Decision of the Court of Appeals dated January 31, 2000 in the case entitled
1

Lamberto T. Chua vs. Lilibeth Sunga Chan and Cecilia Sunga and of the
Resolution dated May 23, 2000 denying the motion for reconsideration of herein
petitioners Lilibeth Sunga Chan and Cecilia Sunga (hereafter collectively referred
to as petitioners).
The pertinent facts of this case are as follows:
On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint
against Lilibeth Sunga Chan (hereafter petitioner Lilibeth) and Cecilia Sunga
(hereafter petitioner Cecilia), daughter and wife, respectively of the deceased
Jacinto L. Sunga (hereafter Jacinto), for Winding Up of Partnership Affairs,
Accounting, Appraisal and Recovery of Shares and Damages with Writ of
Preliminary Attachment with the Regional Trial Court, Branch 11, Sindangan,
Zamboanga del Norte.
Respondent alleged that in 1977, he verbally entered into a partnership with
Jacinto in the distribution of Shellane Liquefied Petroleum Gas (LPG) in Manila.
For business convenience, respondent and Jacinto allegedly agreed to register the
business name of their partnership, SHELLITE GAS APPLIANCE CENTER
(hereafter Shellite), under the name of Jacinto as a sole proprietorship. Respondent
allegedly delivered his initial capital contribution of P100,000.00 to Jacinto while
the latter in turn produced P100,000.00 as his counterpart contribution, with the
intention that the profits would be equally divided between them. The partnership
allegedly had Jacinto as manager, assisted by Josephine Sy (hereafter Josephine), a
sister of the wife of respondent, Erlinda Sy. As compensation, Jacinto would receive
a managers fee or remuneration of 10% of the gross profit and Josephine would
receive 10% of the net profits, in addition to her wages and other remuneration from
the business.
Allegedly, from the time that Shellite opened for business on July 8, 1977, its
business operation went quite well and was profitable. Respondent claimed that he
could attest to the success of their business because of the volume of orders and
deliveries of filled Shellane cylinder tanks supplied by Pilipinas Shell Petroleum
Corporation. While Jacinto furnished respondent with the merchandise inventories,
balance sheets and net worth of Shellite from 1977 to 1989, respondent however
suspected that the amount indicated in these documents were understated and
undervalued by Jacinto and Josephine for their own selfish reasons and for tax
avoidance.
Upon Jacintos death in the later part of 1989, his surviving wife, petitioner
Cecilia and particularly his daughter, petitioner Lilibeth, took over the operations,
control, custody, disposition and management of Shellite without respondents
consent. Despite respondents repeated demands upon petitioners for accounting,
inventory, appraisal, winding up and restitution of his net shares in the
partnership, petitioners failed to comply. Petitioner Lilibeth allegedly continued the
operations of Shellite, converting to her own use and advantage its properties.
On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out of
alibis and reasons to evade respondents demands, she disbursed out of the
partnership funds the amount of P200,000.00 and partially paid the same to
respondent. Petitioner Lilibeth allegedly informed respondent that the P200,000.00
represented partial payment of the latters share in the partnership, with a promise
that the former would make the complete inventory and winding up of the
properties of the business establishment. Despite such commitment, petitioners
allegedly failed to comply with their duty to account, and continued to benefit from
the assets and income of Shellite to the damage and prejudice of respondent.
On December 19, 1992, petitioners filed a Motion to Dismiss on the ground that
the Securities and Exchange Commission (SEC) in Manila, not the Regional Trial
Court in Zamboanga del Norte had jurisdiction over the action. Respondent opposed
the motion to dismiss.
On January 12, 1993, the trial court finding the complaint sufficient in form and
substance denied the motion to dismiss.
On January 30, 1993, petitioners filed their Answer with Compulsory
Counterclaims, contending that they are not liable for partnership shares,
unreceived income/profits, interests, damages and attorneys fees, that respondent
does not have a cause of action against them, and that the trial court has no
jurisdiction over the nature of the action, the SEC being the agency that has
original and exclusive jurisdiction over the case. As counterclaim, petitioner sought
attorneys fees and expenses of litigation.
On August 2, 1993, petitioner filed a second Motion to Dismiss this time on the
ground that the claim for winding up of partnership affairs, accounting and recovery
of shares in partnership affairs, accounting and recovery of shares in partnership
assets/properties should be dismissed and prosecuted against the estate of deceased
Jacinto in a probate or intestate proceeding.
On August 16, 1993, the trial court denied the second motion to dismiss for lack
of merit.
On November 26, 1993, petitioners filed their Petition for Certiorari, Prohibition
and Mandamus with the Court of Appeals docketed as CA-G.R. SP No.
32499 questioning the denial of the motion to dismiss.
On November 29, 1993, petitioners filed with the trial court a Motion to Suspend
Pre-trial Conference.
On December 13, 1993, the trial court granted the motion to suspend pre-trial
conference.
On November 15, 1994, the Court of Appeals denied the petition for lack of merit.
On January 16, 1995, this Court denied the petition for review, on certiorari filed
by petitioner, as petitioners failed to show that a reversible error was committed by
the appellate court.
2
 On February 20, 1995, entry of judgment was made by the Clerk of Court and the
case was remanded to the trial court on April 26, 1995.
On September 25, 1995, the trial court terminated the pre-trial conference and
set the hearing of the case on January 17, 1996.
Respondent presented his evidence while petitioners were considered to have
waived their right to present evidence for their failure to attend the scheduled date
for reception of evidence despite notice.
On October 7, 1997, the trial court rendered its Decision ruling for respondent.
The dispositive portion of the Decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants, as follows:

1. (1)DIRECTING them to render an accounting in acceptable form under accounting

procedures and standards of the properties, assets, income and profits of the
Shellite Gas Appliance Center since the time of death of Jacinto L. Sunga, from
whom they continued the business operations including all businesses derived from
the Shellite Gas Appliance Center; submit an inventory, and appraisal of all these
properties, assets, income, profits, etc. to the Court and to plaintiff for approval or
disapproval;

2. (2)ORDERING them to return and restitute to the partnership any and all
properties, assets, income and profits they misapplied and converted to their own
use and advantage that legally pertain to the plaintiff and account for the
properties mentioned in pars. A and B on pages 4-5 of this petition as basis;

3. (3)DIRECTING them to restitute and pay to the plaintiff 1/2 shares and interest of
the plaintiff in the partnership of the listed properties, assets and good will (sic) in
schedules A, B and C, on pages 4-5 of the petition;

4. (4)ORDERING them to pay the plaintiff earned but unreceived income and profits
from the partnership from 1988 to May 30, 1992, when the plaintiff learned of the
closure of the store the sum of P35,000.00 per month, with legal rate of interest
until fully paid;

5. (5)ORDERING them to wind up the affairs of the partnership and terminate its
business activities pursuant to law, after delivering to the plaintiff all the 1/2
interest, shares, participation and equity in the partnership, or the value thereof in
money or moneys worth, if the properties are not physically divisible;
 6. (6)FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust and in
bad faith and hold them liable to the plaintiff the sum of P50,000.00 as moral and
exemplary damages; and,

7. (7)DIRECTING them to reimburse and pay the sum of P25,000.00 as attorneys (sic)
and P25,000.00 as litigation expenses.

NO special pronouncements as to COSTS.

SO ORDERED. 3

On October 28, 1997, petitioners filed a Notice of Appeal with the trial court,
appealing the case to the Court of Appeals.
On January 31, 2000, the Court of Appeals dismissed the appeal. The dispositive
portion of the Decision reads:
WHEREFORE, the instant appeal is dismissed. The appealed decision is AFFIRMED in
all respects.
4

On May 23, 2000, the Court of Appeals denied the motion for reconsideration filed
by petitioner.
Hence, this petition wherein petitioner relies upon the following grounds:

1. 1.The Court of Appeals erred in making a legal conclusion that there existed
a partnership between respondent Lamberto T. Chua and the late Jacinto L.
Sunga upon the latters invitation and offer and that upon his death the
partnership assets and business were taken over by petitioners.

2. 2.The Court of Appeals erred in making the legal conclusion that laches
and/or prescription did not apply in the instant case. Petitioners question
the correctness of the finding of the trial court and the Court of Appeals that
a partnership existed between respondent and Jacinto from 1977 until
Jacintos death. In the absence of any written document to show such
partnership between respondent and Jacinto, petitioners argue that these
courts were proscribed from hearing the testimonies of respondent and

3. 3.The Court of Appeals erred in making the legal conclusion that there was
competent and credible evidence to warrant the finding of a partnership, and
assuming arguendo that indeed there was a partnership, the finding of
highly exaggerated amounts or values in the partnership assets and profits. 5
Petitioners question the correctness of the finding of the trial court and the Court of
Appeals that a partnership existed between respondent and Jacinto from 1977 until
Jacintos death. In the ansence of any written document to show such partnership
between respondent and Jacinto, petitioners argue that these courts were
proscribed from hearing the testimonies of respondent and his witness, Josephine,
to prove the alleged partnership three years after Jacintos death. To support this
argument, petitioners invoke the Dead Mans Statute or Survivorship Rule
under Section 23, Rule 130 of the Rules of Court that provides:
SEC. 23. Disqualification by reason of death or insanity of adverse party.Parties or
assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a deceased person, or against a person
of unsound mind, upon a claim or demand against the estate of such deceased person, or
against such person of unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person became of unsound mind.

Petitioners thus implore this Court to rule that the testimonies of respondent and
his alter ego, Josephine, should not have been admitted to prove certain claims
against a deceased person (Jacinto), now represented by petitioners.
We are not persuaded.
A partnership may be constituted in any form, except where immovable property
or real rights are contributed thereto, in which case a public instrument shall be
necessary. Hence, based on the intention of the parties, as gathered from the facts
6

and ascertained from their language and conduct, a verbal contract of partnership
may arise. The essential points that must be proven to show that a partnership was
7

agreed upon are (1) mutual contribution to a common stock, and (2) a joint interest
in the profits. Understandably so, in view of the absence of a written contract of
8

partnership between respondent and Jacinto, respondent resorted to the

introduction of documentary and testimonial evidence to prove said partnership.
The crucial issue to settle then is whether or not the Dead Mans Statute applies
to this case so as to render inadmissible respondents testimony and that of his
witness, Josephine.
The Dead Mans Statute provides that if one party to the alleged transaction is
precluded from testifying by death, insanity, or other mental disabilities, the
surviving party is not entitled to the undue advantage of giving his own
uncontradicted and unexplained account of the transaction. But before this rule can
9

be successfully invoked to bar the introduction of testimonial evidence, it is

necessary that:
 1. 1.The witness is a party or assignor of a party to a case or persons in whose
behalf a case is prosecuted.

2. 2.The action is against an executor or administrator or other representative of

a deceased person or a person of unsound mind;

3. 3.The subject-matter of the action is a claim or demand against the estate of

such deceased person or against person of unsound mind;

4. 4.His testimony refers to any matter of fact which occurred before the death
of such deceased person or before such person became of unsound mind. 10

Two reasons forestall the application of the Dead Mans Statute to this case.
First, petitioners filed a compulsory counterclaim against respondent in their
11

answer before the trial court, and with the filing of their counterclaim, petitioners
themselves effectively removed this case from the ambit of the Dead Mans
Statute. Well entrenched is the rule that when it is the executor or administrator
12

or representatives of the estate that sets up the counterclaim, the plaintiff, herein
respondent, may testify to occurrences before the death of the deceased to defeat the
counterclaim. Moreover, as defendant in the counterclaim, respondent is not
13

disqualified from testifying as to matters of fact occurring before the death of the
deceased, said action not having been brought against but by the estate or
representatives of the deceased.14

Second, the testimony of Josephine is not covered by the Dead Mans Statute for
the simple reason that she is not a party or assignor of a party to a case or persons
in whose behalf a case is prosecuted. Records show that respondent offered the
testimony of Josephine to establish the existence of the partnership between
respondent and Jacinto. Petitioners insistence that Josephine is the alter ego of
respondent does not make her an assignor because the term assignor of a party
means assignor of a cause of action which has arisen, and not the assignor of a
right assigned before any cause of action has arisen. Plainly then, Josephine is
15

merely a witness of respondent, the latter being the party plaintiff.

We are not convinced by petitioners allegation that Josephines testimony lacks
probative value because she was allegedly coerced by respondent, her brother-in-law,
to testify in his favor. Josephine merely declared in court that she was requested by
respondent to testify and that if she were not requested to do so she would not have
testified. We fail to see how we can conclude from this candid admission that
Josephines testimony is involuntary when she did not in any way categorically say
that she was forced to be a witness of respondent. Also, the fact that Josephine is
the sister of the wife of respondent does not diminish the value of her testimony
since relationship per se, without more, does not affect the credibility of witnesses.
16

Petitioners reliance alone on the Dead Mans Statute to defeat respondents

claim cannot prevail over the factual findings of the trial court and the Court of
Appeals that a partnership was established between respondent and Jacinto. Based
not only on the testimonial evidence, but the documentary evidence as well, the trial
court and the Court of Appeals considered the evidence for respondent as sufficient
to prove the formation of a partnership, albeit an informal one.
Notably, petitioners did not present any evidence in their favor during trial. By
the weight of judicial precedents, a factual matter like the finding of the existence of
a partnership between respondent and Jacinto cannot be inquired into by this Court
on review. This Court can no longer be tasked to go over the proofs presented by the
17

parties and analyze, assess and weigh them to ascertain if the trial court and the
appellate court were correct in according superior credit to this or that piece of
evidence of one party or the other. It must be also pointed out that petitioners failed
18

to attend the presentation of evidence of respondent. Petitioners cannot now turn to

this Court to question the admissibility and authenticity of the documentary
evidence of respondent when petitioners failed to object to the admissibility of the
evidence at the time that such evidence was offered. 19

With regard to petitioners insistence that laches and/or prescription should have
extinguished respondents claim, we agree with the trial court and the Court of
Appeals that the action for accounting filed by respondent three (3) years after
Jacintos death was well within the prescribed period. The Civil Code provides that
an action to enforce an oral contract prescribes in six (6) years while the right to
20

demand an accounting for a partners interest as against the person continuing the
business accrues at the date of dissolution, in the absence of any contrary
agreement. Considering that the death of a partner results in the dissolution of the
21

partnership, in this case, it was after Jacintos death that respondent as the
22

surviving partner had the right to an account of his interest as against petitioners.
It bears stressing that while Jacintos death dissolved the partnership, the
dissolution did not immediately terminate the partnership. The Civil
Code expressly provides that upon dissolution, the partnership continues and its
23

legal personality is retained until the complete winding up of its business,

culminating in its termination. 24
 In a desperate bid to cast doubt on the validity of the oral partnership between
respondent and Jacinto, petitioners maintain that said partnership that had an
initial capital of P200,000.00 should have been registered with the Securities and
Exchange Commission (SEC) since registration is mandated by the Civil Code.
True, Article 1772 of the Civil Code requires that partnerships with a capital of
P3,000.00 or more must register with the SEC, however, this registration
requirement is not mandatory. Article 1768 of the Civil Code explicitly provides
25

that the partnership retains its juridical personality even if it fails to register. The
failure to register the contract of partnership does not invalidate the same as among
the partners, so long as the contract has the essential requisites, because the main
purpose of registration is to give notice to third parties, and it can be assumed that
the members themselves knew of the contents of their contract. In the case at bar,
26

noncompliance with this directory provision of the law will not invalidate the
partnership considering that the totality of the evidence proves that respondent and
Jacinto indeed forged the partnership in question.
WHEREFORE, in view of the foregoing, the petition is DENIED and the
appealed decision is AFFIRMED.
SO ORDERED.

No. L-25643. June 27, 1968.

JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners, vs. HON. JESUS
RODRIGUEZ, Judge of the Court of First Instance of Iloilo, JOSE DINEROS, in his
capacity as Receiver of the LA PAZ ICE PLANT & COLD STORAGE Co., INC., and
THE HON. COURT OF APPEALS, respondents.

Evidence; Husband and wife; Rule that a husband cannot be examined for or against
his wife; Scope of its application; Reason for the rule; Case at bar.A husband cannot be
examined for or against his wife without her consent; nor a wife for or against her husband
without his consent, except in a civil case by one against the other, or in a criminal case for
a crime committed by one against the other (Sec. 20 [b], Rule 130, Rules of Court). This
provision and rule deals with two different matters which rest on different grounds of
policy: the disqualification of husband and wife to testify in each others behalf, as well as
their privilege not to testify against each other. The fundamental theory of the common law
is said to be that relationship of the spouses, not their pecuniary interest, is the basis of the
disqualification. Indeed section 20 of Rule 130 is entitled Disqualification by reason of x x x
relationship.

On the other hand, while a welter of emotional reasons has been offered (see
U.S. v. Concepcion, 31 Phil. 182; and People v. Francisco, 78 Phil. 694) for the privilege, the
true explanation which is after all the simplest (Wigmore, sec. 2227 at 212) and which
constitutes the real and sole strength of the opposition to abolishing the privilege, is the
natural repugnance in every fair-minded person to compelling a wife or husband to be the
means of the others condemnation and to subjecting the culprit to the humiliation of being
condemned by the words of his intimate life partner (Id., sec. 2228, at 217).

In the case at bar where the wife is a co-defendant in a suit charging fraud against the
spouses, can the wife be compelled to testify as an adverse party witness concerning her
participation in the alleged fraud without violating section 20(b) of Rule 130? Even in those
jurisdictions which allow one spouse to be subjected to examination by the adverse party as
a hostile witness when both spouses are parties to the action, either the interests of the
spouses are separate or separable, or the spouse offerred as a witness is merely a formal or
nominal party (97 C.J.S. 477). Section 6 of Rule 132 (Rule on Direct Examination of
unwilling or hostile witnesses) is a mere concession, for the sake of discovery, from the rule
which precludes the husband or the wif e f rom becoming the means of the others
condemnation. The said rule of discovery should therefore not be expanded in meaning or
scope as to allow examination of ones spouse in a situation where this natural repugnance
obtains.

APPEAL from resolutions of the Court of Appeals.

The facts are stated in the opinion of the Court.

CASTRO, J.:

The issue tendered for resolution in this case is whether a wife, who is a co-
defendant of her husband in an action, may be examined as a hostile witness by the
adverse party under section 6 of Rule 132 of the Rules of Court, without infringing
on her marital privilege not to testify against her husband under section 20 (b) of
Rule 130. The trial court, presided by the respondent Judge Jesus Rodriguez, ruled
in the affirmative and required the wife to appear and testify. The petitioners sued
for certiorari but the Court of Appeals dismissed their petition and denied their
1

motion for reconsideration. Hence this appeal.

2 3

On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant &
Cold Storage Co. in Iloilo, together with C.N. Hodges and Ricardo Gurrea, filed an
action in the Court of First Instance of Iloilo for the annulment of a judgment
rendered against the La Paz Ice Plant by the Court of First Instance of Manila in
civil case 39827. Named as defendants were Marciano C. Roque, in whose favor
judgment was rendered, and the spouses Jose Manuel and Paquita Lezama. The
complaint alleged that, because of mismanagement by the Lezamas, the La Paz Ice
Plant was placed under the receivership of Dineros; that during the pendency of the
receivership, Marciano C. Roque brought an action against the La Paz Ice Plant in
the Court of First Instance of Manila for the collection of P150,000, which sum he
had supposedly lent to it; that summons was served not on the receiver but on the
spouses Jose Manuel and Paquita Lezama; and that, through the collusion of the
Lezamas, Roque was able to obtain judgment by default against the company. It was
claimed that, because the summons was served on Jose Manuel Lezama instead of
on the receiver, the Court of First Instance of Manila acquired no jurisdiction over
the La Paz Ice Plant and that, therefore, the decision of that court was void.

In their answer, the defendant spouses (the herein petitioners), while admitting
that the company was placed under receivership, maintained that Jose Manuel
Lezama nevertheless remained president of the La Paz Ice Plant and that as such
he had authority to receive in behalf of the company the court summons in civil case
39827. They denied entering into collusion with Roque and averred that they did not
contest Roques claim because they knew it to be a legitimate obligation which the
La Paz Ice Plant had incurred pursuant to a resolution of its board of directors.

Issues having been joined, the case was thereupon heard. At the hearing Dineros
asked the court to issue a subpoena to Paquita Lezama to testify as a witness
summoned by the plaintiffs in accordance with the Rules of Court. The request was
granted over the objection of the petitioners who invoked the following provision of
the Rules of Court:

A husband cannot be examined for or against his wife without her consent; nor a wife for or
against her husband without his consent, except in a civil case by one against the other, or
in a criminal case for a crime committed by one against the other, or in a criminal case for a
crime committed by one against the other. 4

This provision deals with two different matters which rest on different grounds of policy:
the disqualification of husband and wife to testify in each others behalf, as well as
their privilege not to testify against each other. The fundamental theory of the common law
5

is said to be that relationship of the spouses, not their pecuniary interest, is the basis of the
disqualification. Indeed section 20 of Rule 130 is entitled Disqualification by reason of x x x
6

relationship.

On the other hand, while a welter of emotional reasons has been offered for the 7

privilege, the true explanation [which] is after all the simplest and which 8

constitutes the real and sole strength of the opposition to abolishing the privilege,
is the natural repugnance in every fairminded person to compelling a wife or
husband to be the means of the others condemnation and to subjecting the culprit
to the humiliation of being condemned by the words of his intimate life partner. 9

Here the request for subpoena indicated that Paquita Lezama was to do no more
than testify as an adverse party in the case and, indeed, in the light of the
allegations both in the complaint and in the answer, the request was apparently one
that could reasonably be expected to be made. Thus, the complaint charged

13.That in obtaining the judgment by default in Civil Case No. 39827 of the Court of
First Instance of Manila against the La Paz Ice Plant & Cold Storage Co., Inc. defendants,
in gross and evident bad faith, and, in fraudulent conspiracy, made it appear that the La
Paz Ice Plant & Cold Storage Co., Inc. had obtained a loan of P150,000.00 from defendant
Marciano C. Roque thru defendant Jose Manuel Lezama allegedly upon an authority vested
upon defendant Jose Manuel Lezama by the alleged Board of Directors of the La Paz Ice
Plant & Cold Storage Co., Inc. allegedly evidenced by the minutes of the meetings of the
Board of Directors of the said corporation signed by defendant Jose Manuel Lezama and
attested to by Benjamin Luis Borja and Paquita B. Lezama and that defendants spouses
Jose Manuel Lezama and Paquita B. Lezama had manipulated the books of the corporation
by making it appear that such fictitious loan was then in existence.

On the other hand, the answer claimed

13. That the herein defendants specifically deny all the allegations contained in paragraph
13 of the complaint; the truth is, that the herein defendants have not conspired and acted in
bad faith with the plaintiff [Marciano C, Roque] in Civil Case No. 39827 of the Court of
First Instance of Manila for the rendition of the said judgment referred to therein; for the
truth is, that the herein defendants, in their capacities as President-Manager and Secretary
of the La Paz lce Plant & Cold Storage Co., Inc., believing as they believe that the obligation
sought to be enforced by said civil action being legitimate and the allegations of the
complaint in said Civil Case No. 39827 of the Court of First Instance of Manila are true,
they did not deem it wise to contest the same; that the obligation of P150,000.00 of the La
Paz Ice Plant & Cold Storage Co., Inc., which the defendant Marciano C. Roque sought to be
enforced in Civil Case No. 39827 of the Court of First Instance of Manila was legitimately
contracted in accordance with law; that said obligation was duly entered in the books of the
corporation and that the said loan is not fictitious; that the amount realized therefrom was
spent for the benefit of the said corporation.

Thus, while the petitioners denied the charge that the loan was fictitious, they did
not deny the allegation that it was Paquita Lezama who, as secretary of the
company, signed the minutes of the meeting at which Jose Manuel Lezama was
allegedly authorized to negotiate the loan and that it was she who, likewise as
secretary, made the entry in the books of the corporation.

It was obviously to test the truth of the assertion that the loan transaction was
above board that Dineros, the company receiver, wanted Paquita Lezama on the
witness stand, not as a spouse witness for or against her husband, but rather as
an adverse party in the case.

It is postulated that a party can make, as it were, such forays into his opponents
position on the strength of section 6 of Rule 132 which provides:
Direct examination of unwilling or hostile witnesses.A party may interrogate any
unwilling or hostile witness by leading questions. A party may call an adverse party or an
officer, director, or managing agent of a public or private corporation or of a partnership or
association which is an adverse party, and interrogate him by leading questions and
contradict and impeach him in all respects as if he had been called by the adverse party and
the witness thus called may be contradicted and impeached by or on behalf of the adverse
party also, and may be cross-examined by the adverse party only upon the subject-matter of
his examination in chief.

The basic issue may therefore be restated thus: In this case where the wife is a co-
defendant in a suit charging fraud against the spouses, can the wife be compelled to
testify as an adverse party witness concerning her participation in the alleged fraud
without violating section 20(b) of Rule 130?

It is argued that the wife may be so compelled but her testimony would be
receivable only against her. It is even suggested that each may testify in his or her
10

own behalf, although the testimony may inure to the benefit of the other spouse, or
against his or her own interest, although the testimony may also militate against
the other spouse. Upon the other hand, it is insisted that compelling Paquita
11

Lezama to testify will transgress section 20 (b) of Rule 130, especially if her
testimony will support the plaintiffs charge.

The complaint charges fraudulent conspiracy on the part of the spouses and one
Marciano C. Roque to make it appear that the La Paz Ice Plant & Cold Storage Co.,
Inc. was indebted to Roque. The wife, Paquita Lezama, is called upon to testify as
an adverse party witness on the basis of her following participation in the alleged
fraudulent scheme: that it was Paquita Lezama who as Secretary of the company
signed the minutes of the meeting during which Manuel Lezama was allegedly
authorized to negotiate the loan and that it was she who, likewise as Secretary,
made the entry in the books of the corporation.

Evidently, Paquita Lezama will be asked to testify on what actually transpired

during the meeting and will be asked questions on the matter of the veracity or
falsity of the entry in the books of the corporation. Whether her testimony will turn
out to be adverse or beneficial to her own interest, the inevitable result would be to
pit her against her husband. The interests of husband and wife in this case are
necessarily interrelated. Testimony adverse to the wifes own interests would tend to
show the existence of collusive f raud between the spouses and would then work
havoc upon their common defense that the loan was not fictitious. There is the
possibility, too, that the wife, in order to soften her own guilt, if guilty she is, may
unwittingly testify in a manner entirely disparaging to the interests of the husband.

Because of the unexpansive wording of the rule which provides merely that the
wife cannot be examined for or against her husband without his consent, it is
further argued that when husband and wife are parties to an action, there is no
reason why either may not be examined as a witness for or against himself or
herself alone, and his or her testimony could operate only against himself or
herself. 12

Even if such view were generally acceptable as an exception to the rule, or even
as a separate doctrine, it would be inapplicable in this case where the main charge
is collusive fraud between the spouses and a third person, and the evident purpose
of examination of the wife is to prove that charge.

Indeed, in those jurisdictions which allow one spouse to be subjected to

examination by the adverse party as a hostile witness when both spouses are
parties to the action, either the interests of the spouses are separate or separable, or
the spouse offered as a witness is merely a formal or nominal party. 13

The final point urged upon us is that to prevent one spouse from testifying would
encourage alliance of husband and wife as an instrument of fraud; for then what
better way would there be to prevent discovery than to make a co-conspirator in
fraud immune to the most convenient mode of discovery available to the opposite
party? This argument overlooks the fact that section 6 of Rule 132 is a mere
concession, for the sake of discovery, from the rule which precludes the husband or
the wife from becoming the means of the others condemnation. The said rule of
discovery should therefore not be expanded in meaning or scope as to allow
examination of ones spouse in a situation where this natural repugnance obtains. It
may not be amiss to state in passing that the respondent Dineros has not
demonstrated that there is no evidence available to him other than the Lezamas
testimony to prove the charge recited in the complaint.

ACCORDINGLY, the resolutions appealed from are reversed, and this case is
ordered remanded to the court of origin for further proceedings in accordance with
law. No costs.

G.R. No. 122954. February 15, 2000. *

NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF APPEALS,

THE DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO
MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL), THE
PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA,
and THE CITY PROSECUTOR, CITY OF MANILA, respondents.

Actions; Habeas Corpus; Words and Phrases; The high prerogative writ of habeas
corpus, whose origin is traced to antiquity, was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense
of personal freedom.The high prerogative writ of habeas corpus, whose origin is traced to
antiquity, was devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of personal freedom. It
secures to a prisoner the right to have the cause of his detention examined and determined
by a court of justice, and to have the issue ascertained as to whether he is held under lawful
authority. Consequently, the writ may also be availed of where, as a consequence of a
judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in
the restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an
excessive penalty has been imposed, as such sentence is void as to such excess. Petitioners
claim is anchored on the first ground considering, as he claims, that his continued
detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative
of his constitutional right to due process.
Evidence; Admissions; The rule that a partys declarations as to a relevant fact may be
given in evidence against him is based upon the presumption that no man would declare
anything against himself unless such declaration were true.Petitioners declarations as to
a relevant fact may be given in evidence against him under Section 23 of Rule 130 of the
Rules of Court. This rule is based upon the presumption that no man would declare
anything against himself, unless such declaration were true, particularly with respect to
such grave matter as his conviction for the crime of Robbery with Homicide. Further, under
Section 4 of Rule 129, [a]n admission, verbal or written, made by a party in the course of
the proceedings in the same case, does not require proof. The admission may be
contradicted only by a showing that it was made through palpable mistake or that no such
admission was made. Petitioner does not claim any mistake nor does he deny making such
admissions.
Same; Entry in Official Records; A courts Monthly Report constitutes an entry in
official records, which is prima facie evidence of facts therein stated.The records also
contain a certified true copy of the Monthly Report dated January 1985 of then Judge
Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of
Robbery with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in
official records under Section 44 of Rule 130 of the Revised Rules on Evidence, which is
prima facie evidence of facts therein stated.
Same; Hearsay Rule; Newspaper Articles; Newspaper articles amount to hearsay
evidence, twice removed and are therefore not only inadmissible but without any probative
value at all whether objected to or not, unless offered for a purpose other than proving the
truth of the matter asserted.Public respondents likewise presented a certified true copy of
Peoples Journal dated January 18, 1985, page 2, issued by the National Library, containing
a short news article that petitioner was convicted of the crime of Robbery with Homicide
and was sentenced to life imprisonment. However, newspaper articles amount to hearsay
evidence, twice removed and are therefore not only inadmissible but without any probative
value at all whether objected to or not, unless offered for a purpose other than proving the
truth of the matter asserted. In this case, the news article is admissible only as evidence
that such publication does exist with the tenor of the news therein stated.
Actions; Habeas Corpus; Evidence; If the detention of the prisoner is by reason of lawful
public authority, the return is considered prima facie evidence of the validity of the restraint
and the petitioner has the burden of proof to show that the restraint is illegal.As a general
rule, the burden of proving illegal restraint by the respondent rests on the petitioner who
attacks such restraint. In other words, where the return is not subject to exception, that is,
where it sets forth process which on its face shows good ground for the detention of the
prisoner, it is incumbent on petitioner to allege and prove new matter that tends to
invalidate the apparent effect of such process. If the detention of the prisoner is by reason of
lawful public authority, the return is considered prima facie evidence of the validity of the
restraint and the petitioner has the burden of proof to show that the restraint is illegal.
Same; Same; When a court has jurisdiction of the offense charged and of the party who
is so charged, its judgment, order, or decree is not subject to collateral attack by habeas
corpus.Note further that, in the present case, there is also no showing that petitioner duly
appealed his conviction of the crime of Robbery with Homicide, hence for all intents and
purposes, such judgment has already become final and executory. When a court has
jurisdiction of the offense charged and of the party who. is so charged, its judgment, order,
or decree is not subject to collateral attack by habeas corpus. Put another way, in order that
a judgment may be subject to collateral attack by habeas corpus, it must be void for lack of
jurisdiction. Thus, petitioners invocation of our ruling in Reyes v. Director of Prisons, supra,
is misplaced. In the Reyes case, we granted the writ and ordered the release of the prisoner
on the ground that [i]t does not appear that the prisoner has been sentenced by any
tribunal duly established by a competent authority during the enemy occupation and not
because there were no copies of the decision and information. Here, a copy of the mittimus
is available. And, indeed, petitioner does not raise any jurisdictional issue.
Same; Courts; Judgments; Reconstitution of Records; There is no sense in limiting
reconstitution to pending casesfinished cases are just as important as pending ones, as
evidence of rights and obligations finally adjudicated.The proper remedy in this case is for
either petitioner or public respondents to initiate the reconstitution of the judgment of the
case under either Act No. 3110, the general law governing reconstitution of judicial records,
or under the inherent power of courts to reconstitute at any time the records of their
finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court. Judicial
records are subject to reconstitution without exception, whether they refer to pending cases
or finished cases. There is no sense in limiting reconstitution to pending cases; finished
cases are just as important as pending ones, as evidence of rights and obligations finally
adjudicated.
Same; Same; Same; Same; Reconstitution is as much the duty of the prosecution as of
the defense.Petitioner belabors the fact that no initiative was taken by the Government to
reconstitute the missing records of the trial court. We reiterate, however, that
reconstitution is as much the duty of the prosecution as of the defense. Petitioners
invocation of Ordoez v. Director of Prisons, 235 SCRA 152 (1994), is misplaced since the
grant of the petition for habeas corpus therein was premised on the loss of records prior to
the filing of Informations against the prisoners, and therefore [t]he government has failed
to show that their continued detention is supported by a valid conviction or by the pendency
of charges against them or by any legitimate cause whatsoever. In this case, the records
were lost after petitioner, by his own admission, was already convicted by the trial court of
the offense charged. Further, the same incident which gave rise to the filing of the
Information for Robbery with Homicide also gave rise to another case for Illegal Possession
of Firearm, the records of which could be of assistance in the reconstitution of the present
case.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

QUISUMBING, J.:

The mere loss or destruction of the records of a criminal case subsequent to

conviction of the accused will not render the judgment of conviction void, nor will it
warrant the release of the convict by virtue of a writ of habeas corpus. The proper
remedy is the reconstitution of judicial records which is as much a duty of the
prosecution as of the defense.
Subject of this petition for review on certiorari are (1) the Decision dated April
28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the
dismissal of the petition for habeas corpus filed by petitioner, and (2) the Resolution
of the Court of Appeals dated December 1, 1995, which denied the Motion for
Reconsideration. As hereafter elucidated, we sustain the judgment of respondent
appellate court.
Based on the available records and the admissions of the parties, the antecedents
of the present petition are as follows:
Petitioner Norberto Feria y Pacquing has been under detention since May 21,
1981, up to present by reason of his conviction of the crime of Robbery with
1
Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila,
Branch 2, for the jeepney hold-up and killing of United States Peace Corps
Volunteer Margaret Viviene Carmona.
Some twelve (12) years later, or on June 9, 1993, petitioner sought to be
transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa
City, but the Jail Warden of the Manila City Jail informed the Presiding Judge of
2

the RTC-Manila, Branch 2, that the transfer cannot be effected without the
submission of the requirements, namely, the Commitment Order or Mittimus,
Decision, and Information. It was then discovered that the entire records of the
3

case, including the copy of the judgment, were missing. In response to the inquiries
made by counsel of petitioner, both the Office of the City Prosecutor of Manila and
the Clerk of Court of Regional Trial Court of Manila, Branch 2 attested to the fact
that the records of Criminal Case No. 60677 could not be found in their respective
offices. Upon further inquiries, the entire records appear to have been lost or
destroyed in the fire which occurred at the second and third floor of the Manila City
Hall on November 3, 1986. 4

On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of

Habeas Corpus with the Supreme Court against the Jail Warden of the Manila City
5

Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City
Prosecutor of Manila, praying for his discharge from confinement on the ground that
his continued detention without any valid judgment is illegal and violative of his
constitutional right to due process.
In its Resolution dated October 10, 1994, the Second Division of this Court
6

resolved
x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the
Regional Trial Court of Manila to conduct an immediate RAFFLE of this case among the
incumbent judges thereof; and (c) to REQUIRE [1] the Judge to whom this case is raffled to
SET the case for HEARING on Thursday, October 13, 1994 at 8:30 A.M., try and decide the
same on the merits and thereafter FURNISH this Court with a copy of his decision thereon;
[2] the respondents to make a RETURN of the Writ on or before the close of office hours on
Wednesday, October 12, 1994 and APPEAR PERSONALLY and PRODUCE the person of
Norberto Feria y Pa[c]quing on the aforesaid date and time of hearing to the Judge to whom
this case is raffled, and [3] the Director General, Philippine National Police, through his
duly authorized representative(s) to SERVE the Writ and Petition, and make a RETURN
thereof as provided by law and, specifically, his duly authorized representative(s) to
APPEAR PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the
aforesaid date and time of hearing.
The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which
on November 15, 1994, after hearing, issued an Order dismissing the case on the
7

ground that the mere loss of the records of the case does not invalidate the judgment
or commitment nor authorize the release of the petitioner, and that the proper
remedy would be reconstitution of the records of the case which should be filed with
the court which rendered the decision.
Petitioner duly appealed said Order to the Court of Appeals, which on April 28,
1995, rendered the assailed Decision affirming the decision of the trial court with
8

the modification that in the interest of orderly administration of justice and under
the peculiar facts of the case petitioner may be transferred to the Bureau of
Corrections in Muntinlupa City without submission of the requirements (Mittimus,
Decision and Information) but without prejudice to the reconstitution of the original
records.
The Motion for Reconsideration of the aforesaid Order having been denied for
lack of merit, petitioner is now before us on certiorari, assigning the following errors
9

of law:
10

I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE,

WHERE THE RECORDS OF CONVICTION WERE LOST, THE PETITIONERS
CONTINUED INCARCERATION IS JUSTIFIED UNDER THE LAW.
COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS
RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANTS PETITION FOR
HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A JUDGMENT OR A
SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR
HIS INCARCERATION.
II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS
LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND ITS
ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER, WHOSE
LIBERTY IS RESTRAINED.

Petitioner argues that his detention is illegal because there exists no copy of
a valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of
Court, and that the evidence considered by the trial court and Court of Appeals in
11

the habeas corpus proceedings did not establish the contents of such judgment.
Petitioner further contends that our ruling in Gunabe v. Director of Prisons, 77 Phil.
993, 995 (1947), that reconstitution is as much the duty of the prosecution as of the
defense has been modified or abandoned in the subsequent case of Ordonez v.
Director of Prisons, 235 SCRA 152, 155 (1994), wherein we held that [i]t is not the
fault of the prisoners that the records cannot now be found. If anyone is to be
blamed, it surely cannot be the prisoners, who were not the custodians of those
records.
In its Comment, the Office of the Solicitor General contends that the sole inquiry
12

in this habeas corpus proceeding is whether or not there is legal basis to detain
petitioner. The OSG maintains that public respondents have more than sufficiently
shown the existence of a legal ground for petitioners continued incarceration, viz.,
his conviction by final judgment, and under Section 4 of Rule 102 of the Rules of
Court, the discharge of a person suffering imprisonment under lawful judgment is
not authorized. Petitioners remedy, therefore, is not a petition for habeas corpus but
a proceeding for the reconstitution of judicial records.
The high prerogative writ of habeas corpus, whose origin is traced to antiquity,
was devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of personal
freedom. It secures to a prisoner the right to have the cause of his detention
13

examined and determined by a court of justice, and to have the issue ascertained as
to whether he is held under lawful authority. Consequently, the writ may also be
14

availed of where, as a consequence of a judicial proceeding, (a) there has been a

deprivation of a constitutional right resulting in the restraint of a person, (b) the
court had no jurisdiction to impose the sentence, or (c) an excessive penalty has
been imposed, as such sentence is void as to such excess. Petitioners claim is
15

anchored on the first ground considering, as he claims, that his continued detention,
notwithstanding the lack of a copy of a valid judgment of conviction, is violative of
his constitutional right to due process.
Based on the records and the hearing conducted by the trial court, there is
sufficient evidence on record to establish the fact of conviction of petitioner which
serves as the legal basis for his detention. Petitioner made judicial admissions, both
verbal and written, that he was charged with and convicted of the crime of Robbery
with Homicide, and sentenced to suffer imprisonment habang buhay.
In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding
that 16

During the trial and on manifestation and arguments made by the accused, his learned
counsel and Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears
clear and indubitable that:
(A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal
Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867.
. . . In Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a
decision was read to him in open Court by a personnel of the respondent Court (RTC Branch II)
sentencing him to Life Imprisonment (Habang buhay) . . . (emphasis supplied)

Further, in the Urgent Motion for the Issuance of Commitment Order of the Above
Entitled Criminal Case dated June 8, 1993, petitioner himself stated that
17

COMES NOW, the undersigned accused in the above entitled criminal case and unto this
Honorable Court most respectfully move:

1. 1.That in 1981 the accused was charge of (sic) Robbery with Homicide;

2. 2.That after four years of trial, the court found the accused guilty and given a Life
Sentence in a promulgation handed down in 1985; (emphasis supplied)

3. 3.That after the sentence was promulgated, the Presiding Judge told the councel
(sic) that accused has the right to appeal the decision;

4. 4.That whether the de oficio counsel appealed the decision is beyond the accused
comprehension (sic) because the last time he saw the counsel was when the decision
was promulgated;

5. 5.That everytime there is change of Warden at the Manila City Jail attempts were
made to get the Commitment Order so that transfer of the accused to the Bureau of
Corrections can be affected, but all in vain.

Petitioners declarations as to a relevant fact may be given in evidence against him

under Section 23 of Rule 130 of the Rules of Court. This rule is based upon the
presumption that no man would declare anything against himself, unless such
declaration were true, particularly with respect to such grave matter as his
18

conviction for the crime of Robbery with Homicide. Further, under Section 4 of Rule
129, [a]n admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be
contradicted only by a showing that it was made through palpable mistake or that
no such admission was made. Petitioner does not claim any mistake nor does he
deny making such admissions.
The records also contain a certified true copy of the Monthly Report dated
January 1985 of then Judge Rosalio A. De Leon, attesting to the fact that petitioner
19

was convicted of the crime of Robbery with Homicide on January 11, 1985.
Such Monthly Report constitutes an entry in official records under Section 44 of
Rule 130 of the Revised Rules on Evidence, which is prima facie evidence of facts
therein stated.
Public respondents likewise presented a certified true copy of Peoples Journal
dated January 18, 1985, page 2, issued by the National Library, containing a short
20

news article that petitioner was convicted of the crime of Robbery with Homicide
and was sentenced to life imprisonment. However, newspaper articles amount to
hearsay evidence, twice removed and are therefore not only inadmissible but
21

without any probative value at all whether objected to or not, unless offered for a
22

purpose other than proving the truth of the matter asserted. In this case, the news
article is admissible only as evidence that such publication does exist with the tenor
of the news therein stated.
As a general rule, the burden of proving illegal restraint by the respondent rests
on the petitioner who attacks such restraint. In other words, where the return is not
subject to exception, that is, where it sets forth process which on its face shows good
ground for the detention of the prisoner, it is incumbent on petitioner to allege and
prove new matter that tends to invalidate the apparent effect of such process. If the 23

detention of the prisoner is by reason of lawful public authority, the return is

considered prima facie evidence of the validity of the restraint and the petitioner
has the burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule
102 of the Rules of Court provides:
SEC. 13. When the return evidence, and when only a plea.If it appears that the prisoner
is in custody under a warrant of commitment in pursuance of law, the return shall be
considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty
by any alleged private authority, the return shall be considered only as a plea of the facts
therein set forth, and the party claiming the custody must prove such facts.
Public respondents having sufficiently shown good ground for the detention,
petitioners release from confinement is not warranted under Section 4 of Rule 102
of the Rules of Court which provides that
Sec. 4. When writ not allowed or discharge authorized.If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued by a
court or judge or by virtue of a judgment or order of a court of record, and that the court or
judge had jurisdiction to issue the process, render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall
not be discharged by reason of any informality or defect in the process, judgment, or order.
Nor shall anything in this rule be held to authorize the discharge of a person charged with
or convicted of an offense in the Philippines, or of a person suffering imprisonment under
lawful judgment.

In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was
convicted by the trial court of the crime of rape, and was committed to the New
Bilibid Prison. Pending appeal with the Court of Appeals, the records of the case
were, for reasons undisclosed, completely destroyed or lost. Accused then filed a
petition for the issuance of the writ of habeas corpus with the Supreme Court. The
Court denied the petition, ruling thus:
The petition does not make out a case. The Director of Prisons is holding the prisoner
under process issued by a competent court in pursuance of a lawful, subsisting judgment.
The prisoner himself admits the legality of his detention. The mere loss or destruction of
the record of the case does not invalidate the judgment or the commitment, or authorize the
prisoners release.

Note further that, in the present case, there is also no showing that petitioner duly
appealed his conviction of the crime of Robbery with Homicide, hence for all intents
and purposes, such judgment has already become final and executory. When a court
has jurisdiction of the offense charged and of the party who is so charged, its
judgment, order, or decree is not subject to collateral attack by habeas corpus. Put 24

another way, in order that a judgment may be subject to collateral attack by habeas
corpus, it must be void for lack of jurisdiction. Thus, petitioners invocation of our
25

ruling in Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we

granted the writ and ordered the release of the prisoner on the ground that [i]t
does not appear that the prisoner has been sentenced by any tribunal duly
established by a competent authority during the enemy occupation and not because
there were no copies of the decision and information. Here, a copy of the mittimus is
available. And, indeed, petitioner does not raise any jurisdictional issue.
The proper remedy in this case is for either petitioner or public respondents to
initiate the reconstitution of the judgment of the case under either Act No.
3110, the general law governing reconstitution of judicial records, or under the
26

inherent power of courts to reconstitute at any time the records of their finished
cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court. Judicial
27

records are subject to reconstitution without exception, whether they refer to

pending cases or finished cases. There is no sense in limiting reconstitution to
28

pending cases; finished cases are just as important as pending ones, as evidence of
rights and obligations finally adjudicated. 29
 Petitioner belabors the fact that no initiative was taken by the Government to
reconstitute the missing records of the trial court. We reiterate, however, that
reconstitution is as much the duty of the prosecution as of the defense. Petitioners
30

invocation of Ordoez v. Director of Prisons,235 SCRA 152 (1994), is misplaced since

the grant of the petition for habeas corpus therein was premised on the loss of
records prior to the filing of Informations against the prisoners, and therefore [t]he
government has failed to show that their continued detention is supported by a valid
conviction or by the pendency of charges against them or by any legitimate cause
whatsoever. In this case, the records were lost after petitioner, by his own
admission, was already convicted by the trial court of the offense charged. Further,
the same incident which gave rise to the filing of the Information for Robbery with
Homicide also gave rise to another case for Illegal Possession of Firearm, the 31

records of which could be of assistance in the reconstitution of the present case.

WHEREFORE, the petition is DENIED for lack of merit, and the decision of the
Court of Appeals is AFFIRMED.
SO ORDERED.

G.R. No. 125938. April 4, 2003. *

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL JANSON and RICKY

PINANTAO alias OGCO, appellants.

Witnesses; The findings of the trial court concerning credibility of witnesses are
accorded great weight and respect unless the trial court overlooked or misunderstood
significant contrarieties in the testimony of witnesses which if considered would materially
affect the result of the conviction.Generally, the findings of the trial court concerning
credibility of witnesses are accorded great weight and respect because it had the
opportunity to observe closely in the first instance the demeanor of the witnesses presented
before it. However, when the trial court overlooked or misunderstood significant
contrarieties in the testimony of witnesses which if considered would materially affect the
result of the conviction, such findings will not bind this Court. Such is the case at hand.
Same; Affidavits; While courts generally brush aside inconsequential contradictions
between declarations of the affiant in her sworn statements and those in court, the rule is
otherwise where the discrepancies touch on substantial and irreconcilable facts such as those
omissions in the affidavit concerning important details which the affiant would not have
failed to mention and which omissions could well affect the credibility of the affiant .While
courts generally brush aside inconsequential contradictions between declarations of the
affiant in her sworn statements and those in court, the rule is otherwise where the
discrepancies touch on substantial and irreconcilable facts such as those omissions in the
affidavit concerning important details which the affiant would not have failed to mention
and which omission could well affect the credibility of the affiant. If indeed, the victim
recognized one of her assailants as Ricky Pinantao because of his amputated hand, she
should have mentioned such glaring trait the first time she gave her statement to the
investigating officers. But she never mentioned anything. On the contrary, she admitted
that she did not recognize any of her assailants. She also admitted that it was
only after Joel Janson was apprehended and confessed to the crime, implicating Ricky
Pinantao, that she confirmed her suspicion.
Custodial Investigations; Extrajudicial Confessions; Right to Counsel; It is well-settled
that the Constitution abhors an uncounselled confession or admission and whatever
information is derived therefrom shall be regarded as inadmissible in evidence against the
confessant.Clearly, the alleged extrajudicial confession of appellant Joel Janson cannot be
admitted in evidence. The manner by which it was obtained violated accuseds
constitutional right to counsel. It is well-settled that the Constitution abhors an
uncounselled confession or admission and whatever information is derived therefrom shall
be regarded as inadmissible in evidence against the confessant.
Same; Same; Same; Requisites for Admissibility of Extrajudicial Confession; The
purpose of providing counsel to a person under custodial investigation is to curb the
uncivilized practice of extracting confession by coercion no matter how slight, as would lead
the accused to admit something false.Under the Constitution and existing law as well as
jurisprudence, a confession to be admissible must satisfy the following requirements: (1) it
must be voluntary; (2) it must be made with the assistance of competent and independent
counsel; (3) it must be express; and (4) it must be in writing. The purpose of providing
counsel to a person under custodial investigation is to curb the uncivilized practice of
extracting confession by coercion no matter how slight, as would lead the accused to admit
something false. What is sought to be avoided is the evil of extorting from the very mouth of
the person undergoing interrogation for the commission of an offense, the very evidence
with which to prosecute and thereafter convict him. These constitutional guarantees have
been made available to protect him from the inherently coercive psychological, if not
physical, atmosphere of such investigation.
Same; Same; Same; If the lawyers role is reduced to being that of a mere witness to the
signing of a priorly prepared document albeit indicating therein compliance with the
accuseds constitutional rights, the constitutional standard is not met.It is also important
to mention that the investigating officers already had a prepared statement when they went
to the lawyer who is supposed to assist appellant Janson in waiving his right to counsel.
This is not what is contemplated by law. In People v. Quidato, Jr., where the police officers
already prepared the affidavits of the accused when they were brought to the CLAO (now
PAO) lawyer, and the latter explained the contents of the affidavits in Visayan to the
accused who affirmed the veracity and voluntary execution of the same, the court held that
the affidavits are inadmissible in evidence even if they were voluntarily given. As also ruled
in People v. Compil the belated arrival of the CLAO lawyer the following day, even if prior to
the actual signing of the uncounseled confession, does not cure the defect of lack of counsel
for the investigators were already able to extract incriminatory statements from the
accused therein. Thus, in People v. De Jesus, we said that admissions obtained during
custodial interrogations without the benefit of counsel, although later reduced to writing
and signed in the presence of counsel, are still flawed under the Constitution. As pointed
out in People v. Deniega, if the lawyers role is reduced to being that of a mere witness to the
signing of a priorly prepared document albeit indicating therein compliance with the
accuseds constitutional rights, the constitutional standard is not met.
Same; Same; Res Inter Alios Acta; An extrajudicial confession by an accused
implicating another may not be utilized unless repeated in open court or when there is an
opportunity for the co-accused to cross-examine the confessant on his extrajudicial
statements.Finally, the invalid extrajudicial confession of Joel Janson cannot be used
against Ricky Pinantao. An extrajudicial confession by an accused implicating another may
not be utilized unless repeated in open court or when there is an opportunity for the co-
accused to cross-examine the confessant on his extrajudicial statements. It is considered
hearsay as against said co-accused under the res inter alios acta rule, which ordains that
the rights of a party cannot be prejudiced by an act, declaration, or omission of another.

APPEAL from a decision of the Regional Trial Court of Kidapawan, North Cotabato,
Br. 17.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Juan Sibug for accused-appellant R. Pinantao.
Public Attorneys Office for accused-appellants.

QUISUMBING, J.:
On appeal is the decision of the Regional Trial Court, Branch XVII, Kidapawan,
1

Cotabato promulgated on September 15, 1995, declaring appellants guilty of the

crime of robbery with rape, and sentencing each of them to the penalty of Reclusion
Perpetua, and ordering them to pay P30,000.00 and P10,000.00 in favor of Marites
Alcantara and Cesario Alcantara, respectively.
The information filed on August 31, 1987 alleged:
That on or about the 24th day of March 1986, at about 10:00 oclock in the evening at
Barangay Mateo, Municipality of Kidapawan, Province of Cotabato, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused JOEL JANSON, RICKY
PINANTAO alias OGCO in company with alias ABDUL, alias PUTO, JOHN DOE and
PETER DOE, who are still at large and whose names are still unknown, constituting a
band and armed with long and short firearms, conspiring, confederating and mutually
helping one another, with intent to gain, with force and intimidation, did then and there
willfully, unlawfully and feloniously take and carry away, at gun point, cash money in the
amount of P1,400.00, three (3) pieces of wrist watches, one (1) can coffee beans and one (1)
chicken and if converted into cash it amounted to P1,845.00 or a total amount of Three
Thousand Two Hundred Fourty (sic) Five Pesos (P3,245.00), Philippine Currency, owned by
Mr. & Mrs. CESARIO ALCANTARA; and on the same occasion, the above-named accused,
with the use of force, violence and intimidation and armed with firearms, did then and
there willfully, unlawfully and feloniously take turns in having carnal knowledge with one
MARITESS ALCANTARA, a girl about 13 years old, daughter of Mr. & Mrs. CESARIO
ALCANTARA, against her will and consent, to the damage and prejudice of the aforesaid
persons in the aforesaid amount.
All contrary to law with the aggravating circumstances of dwelling, nighttime and the
use of unlicensed firearms.
Kidapawan, Cotabato, August 31, 1987. 2

On December 9, 1987, both accused pleaded not guilty. Trial then ensued.
3

For the prosecution, the following witnesses were presented: Teresa Alcantara,
Marites Alcantara, Dante Alcantara, Cesario Alcantara, Dr. Cesar Manuel, Atty.
Jorge Zerrudo, and police officers Pedro Idpan, Jr. and Ortello Achas.
TERESA ALCANTARA testified that on March 24, 1986 at about 10:00 in the
evening, the accused with six (6) other companions asked for food. She asked them
to come back the following day but they threatened to strafe and burn the house if
they arc not let in. The accused then entered the house and once inside, made all
occupants lie down before covering them with a blanket. The accused demanded
money from Teresa and she gave them P1,000. She was brought to the kitchen and
someone guarded her. For a while, there was complete silence. Then she went inside
the room of her daughter Marites, and saw her totally naked. Her daughter told her
that she was raped. She gave an additional P1,000 to the accused who also got two
(2) wristwatches worth P690.00, two (2) Seiko watches worth P443.00, a chicken
worth approximately P20.00, and one can of coffee beans. The appellants were
speaking among themselves in the Manobo dialect.
Teresa identified appellants Janson and Pinantao as two of the men who robbed
their house and raped her daughter that night. She testified that she knew
appellants since they were their neighbors at Mateo. She also claimed that while
Janson and Pinantao were masked during the incident, she recognized them
through their body built, physical appearance, and their voices while speaking in
Manobo. 4

MARITES ALCANTARA testified that she was thirteen (13) years old at the
5

time of the incident. She corroborated the testimony of her mother and added that
after the group entered their house and hogtied her father, the appellants entered
her room and turned off the lights inside. Someone poked a gun at her. Then Ricky
Pinantao, who had an amputated right hand; Joel Janson, and Abdul Jona raped
her. In open court she identified appellants Pinantao and Janson as two of her
abusers, claiming that they were previously known to her. She claimed that she
knew Ricky because he was their neighbor and that he often went to their house to
buy bananas, while she knew Joel because he often went to their barangay to visit
his relatives. She likewise claimed that while the appellants turned off the lights in
their house, there was a full moon that night which gave her enough light to see her
abusers. She immediately told her parents that she was raped, and she underwent
medical examination the following day. 6

DANTE ALCANTARA testified that on the day of the robbery he was only nine
(9) years old. He said he recognized appellants Janson and Pinantao because they
were their neighbors. On cross-examination, he admitted that the four robbers were
masked, but the witness insisted that he was able to recognize Pinantao with his
cut wrist and mustache, and also Janson because of his built. 7

CESARIO ALCANTARA testified that on March 24, 1986, their house was robbed
and his daughter was raped. He admitted that during the incident, he was not able
to identify the perpetrators since he was hogtied face downwards, and he was
covered with a blanket.8

The prosecution also presented DR. CESAR MANUEL. He testified that the
physical examination he conducted on Marites Alcantara a day after the incident
revealed that there were lacerations between the labia majora, labia minora, and
the prepuce caused by a sharp instrument. There was also the presence of seminal
fluid in the vagina of the victim indicating that there was actual sexual contact.9

ATTY. JORGE ZERRUDO testified that he only assisted appellant Janson in

waiving his right to counsel, and that the sworn statement was already prepared
when he signed it. Nevertheless, he asked appellant Janson if the contents of the
statement were true, and whether he wished to be assisted by counsel. 10

P/SGT. PEDRO IDPAN, JR. testified that he was a member of the Integrated
National Police (INP), Kidapawan, Cotabato, assigned in the investigation of the
crime of robbery with rape involving appellant Joel Janson. He identified Jansons
sworn statement saying it was signed by him without being forced. He admitted
that during the investigation, there was no lawyer present and that Atty. Zerrudo
signed the affidavit only after the investigation was conducted. He claimed, however,
that prior to the custodial investigation, he informed Janson of his constitutional
rights and that despite being a Manobo, Janson fully understood Cebuano, which
11

was the language used during the custodial investigation.

Finally, P/SGT. ORTELLO ACHAS testified that he was at the police station
when Teresa Alcantara appeared on June 24, 1986, and requested that she be
accompanied to the jail to identify the person who was earlier apprehended and
detained. She identified the person as appellant Joel Janson. On cross-examination,
P/Sgt. Achas admitted that he was not the one who conducted the investigation on
the person of Joel Janson and that he could not remember whether appellant
Janson who was then sixteen (16) years old and a Manobo was assisted by a lawyer.
Neither could he remember whether a mental or physical examination was made
upon Janson. 12

For the defense, the following witnesses were presented: Datu Amado Pinantao,
Atty. Francis Palmones, Jr., and the two appellants: Joel Janson and Ricky
Pinantao.
DATU AMADO PINANTAO testified that he is an uncle of Ricky Pinantao, and
that they belong to a cultural minority group, the Manobos. He admitted that they
lived near the house of Cesario Alcantara. He said that on March 24, 1986,
appellant Pinantao was in their house and that it was impossible for him to be
elsewhere because earlier, in 1985, Pinantao was hacked by one Bernardo Agio
resulting in the amputation of Pinantaos hand. He averred that Pinantao could not
go out of their house because at the time of the incident, the wound he sustained
was not yet completely healed.13
 ATTY. FRANCIS PALMONES, JR., testified that he notarized the sworn,
statement of the appellant Janson on April 3, 1987, marked as Exh. 4 and that
14

Janson affirmed and understood the contents of said affidavit because it was
translated to him in the Visayan vernacular. 15

Appellant JOEL JANSON, for his own defense, declared that he was assisted by
a lawyer when he was investigated and made to sign a sworn statement before the
police on June 26, 1986. But he denied the accusation against him and claimed that
he was not assisted by counsel during the custodial investigation. He claimed that
he did not know how to read or write, and that he was made to execute a sworn
statement before a certain policeman named Ulep. Only after the investigation did
Atty. Zerrudo sign the document. On cross-examination, he said that he was put in
jail for another crime, robbery.16

Appellant RICKY PINANTAO also denied the accusation against him, saying
that he did not know Marites and Cesario Alcantara. He claimed that he was
arrested in March 1987 because he was implicated by appellant Janson as one of the
perpetrators of the crime, per instruction of one Cristina Agio. 17

On September 15, 1995, the Regional Trial Court rendered judgment thus:
WHEREFORE, prescinding from all of the foregoing considerations, the Court hereby
pronounces the accused Ricky Pinantao alias Ogco and Joel Janson guilty of the crime of
Robbery with Rape beyond reasonable doubt and accordingly, sentences Ricky Pinantao and
Joel Janson each to undergo a prison term of Reclusion Perpetua and to indemnify Marites
Alcantara the sum of P30,000.00; to indemnify Cesario Alcantara the sum of P10,000,00. No
award of other damages in the absence of proof thereof.
SO ORDERED. 18

Both appellants filed their notices of appeal and submitted separate appellants
briefs. Appellant Ricky Pinantao averred that:
I

THE TRIAL COURT ERRED IN ADMITTING THE ALLEGED EXTRAJUDICIAL

CONFESSION OF APPELLANT JOEL JANSON, SAID EVIDENCE BEING
INADMISSIBLE BECAUSE IT WAS OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL RIGHTS OF THE ACCUSED AND SHOULD NOT HAVE TAKEN
AGAINST HIS CO-ACCUSED RICKY PINANTAO, UNDER THE INTER ALIOS
ACTA RULE AS AGAINST HIS CO-ACCUSED RICKY PINANTAO EITHER FOR
PROBABLE CAUSE AND THE RESULTANT CONVICTION OF RICKY PINANTAO;

II
 THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE
PROSECUTION WITNESSES OF THE ALCANTARA FAMILY WHICH WERE SHOT
THROUGH WITH MATERIAL CONTRADICTIONS, INCONSISTENCIES AND
UNNATURAL TESTIMONIES; and

III

THE TRIAL COURT ERRED IN NOT FINDING THAT THE PROSECUTION

MISERABLY FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND
REASONABLE DOUBT, AND THAT IN FACT THERE WAS A REASONABLE DOUBT IN
THE IDENTITIES AND GUILT OF BOTH ACCUSED. 19

Appellant Joel Janson, for his part, averred that:

I

THE TRIAL COURT ERRED IN FINDING THAT ACCUSED-APPELLANT JOEL

JANSON WAS POSITIVELY IDENTIFIED BY THE PROSECUTION WITNESSES; and

II

THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT JOEL JANSON

GUILTY OF THE CRIME OF ROBBERY WITH RAPE DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 20

Simply put, the issues in this ease are as follows: (1) Was the guilt of appellants
Janson and Pinantao proved beyond reasonable doubt? (2) Is the extrajudicial
confession of Janson admissible as evidence for the prosecution? and (3) May said
confession be used against co-accused Pinantao?
We find the appeal impressed with merit. Appellants should be acquitted.
Generally, the findings of the trial court concerning credibility of witnesses are
accorded great weight and respect because it had the opportunity to observe closely
in the first instance the demeanor of the witnesses presented before it. However,
21

when the trial court overlooked or misunderstood significant contrarieties in the

testimony of witnesses which if considered would materially affect the result of the
conviction, such findings will not bind this Court. Such is the case at hand.
22

Consistent with the testimonies of Teresa, Marites, Cesario, and Dante

Alcantara, we can gather that what transpired that fateful night is as follows:
In the evening of March 24, 1986, six (6) men came to the house of Cesario
Alcantara threatening to strafe and burn it should they not be let in. Once inside,
the masked group of men turned off the lights, hogtied Cesario, pushed him
facedown and covered him with blankets. They asked for money and Teresa gave
them P400. Teresa was then led to the kitchen. During this time, her daughter
23

Marites was raped by four men. Then Marites was led to the kitchen where the
24

culprits threatened to abduct her if her mother would not give them money. Teresa
then gave them an additional P1,000 while the group took three wristwatches, one
can of coffee, and one chicken. Then they left the house, all the while speaking in
the Manobo dialect. 25

While the testimonies of the witnesses up to this point are credible and
undisputed, it is unfortunate that the certainty ends here.
Marites testified in open court that she was raped by Ricky alias Ogco Pinantao,
Joel Janson, and Abdul Jona. She said that she came to know Ricky Pinantao
26

because he is a neighbor and that he often goes to their house to buy bananas. She
also said that she came to know Joel Janson because he is always going to Mateo
since he has a relative there.27

Upon cross-examination, however, Marites admitted that she was not certain of
the identity of her perpetrators at the time of the incident or immediately
thereafter. According to her, it was only after Joel Janson was apprehended for
another crime, and after he confessed to the police, that she was able to confirm her
suspicion. When asked in open court, she was not able to satisfactorily explain the
discrepancy in her initial sworn statement before the police and her testimony later.
Pertinent portions of her testimony in court are instructive:
Q Was this Ricky Pinantao armed when he entered your
room?
A No sir, he wasnt.
Q Where (sic) you afraid of him?
A No, sir.
Q Knowing that, according to you, you know him, did you
not question him, Ricky, why are you doing this to me?
A I did not because I was only suspecting.28

xxx
Q Is it not Marites, to refresh your memory, is it not that
when a sworn statement was taken from your (sic), you
stated in your affidavit that you did not recognize
anybody?
A That was what I stated in my statement. 29

xxx
Q Miss Marites, in this sworn statement of yours, which was
already marked as Exhibit H for the prosecution and
Exhibit I for the defense, there is a question here: Can
 you recognized (sic) any of the four men or any of the six
men that robbed and raped you? [you answered, I do not
know anyone sir. Now] in your testimony here, you said
that you know the two accused, how will you reconcile this
one?
A It is like this, what I am telling now in Court is the one
true, during that time, when the statement was taken on me
(sic), I have already suspect in my mind and I could not tell
their names but there were some evidence that dovetailed
in my mind, like, the cut wrist of the one perpetrator, Ricky
Pinantao and the mustache. And these are the things that I
recall.
Q Now, how come that you did not tell the police of the
perpetrators during that time of investigation?
A Sir, it is very hard to name names during that time when a
statement was taken on me. But when this Joel Janson was
first apprehended, it was confirmed by his statement to the
policeman. (sic)30

xxx
Q So, when Joel Janson was apprehended, that was the time
you confirmed that he was the perpetrator?
A x x x Yes, sir.
xxx
Q Therefore, you failed to recognize Joel Janson during said
time of the incident?
A I knew him through his body built.
xxx
Q So, you merely assumed that Joel Janson is one of those
persons who robbed you because of the aforesaid
statement, that his alleged statement in the police?
A Yes, sir.
xxx
Q According to you, you have confirmed your suspicion of
this Joel Janson after he was apprehended?
A Yes, sir.
Q In the same manner you confirmed your suspicion of Ricky
Pinantao after he was apprehended?
A He himself revealed. Aside from that I already suspected
because of his cut wrist and his mustache. (emphasis ours)
31

While courts generally brush aside inconsequential contradictions between

declarations of the affiant in her sworn statements and those in court, the rule is
otherwise where the discrepancies touch on substantial and irreconcilable facts such
as those omissions in the affidavit concerning important details which the affiant
would not have failed to mention and which omission could well affect the credibility
of the affiant. If indeed, the victim recognized one of her assailants as Ricky
32

Pinantao because of his amputated hand, she should have mentioned such glaring
trait the first time she gave her statement to the investigating officers. But she
never mentioned anything. On the contrary, she admitted that she did not recognize
any of her assailants. She also admitted that it was only after Joel Janson was
apprehended and confessed to the crime, implicating Ricky Pinantao, that she
confirmed her suspicion.
The testimony of Teresa Alcantara is also riddled with uncertainties:
Q How many day had lapsed (sic) before you reported the
incident to the police?
A Three months after the incident.
xxx
Q Will you please explain why you reported the incident after
three months?
A It was only upon hearing through radio DXND the name of
this person Joel Janson who was reported to have robbed
the corn of a certain Atty. Jalipa, that I reported to the
police.
Q That was the only reason why yon reported to the police
after three months already?
A It is like this: After hearing that, I went to the police right
then and there. I saw this Joel Janson who was the person
among those who raped my daughter and entered our
house.
Q If you knew already that Joel Janson was among those
persons who robbed you, why did you not report to the
police immediately?
A The following morning, I immediately reported, sir.
Q And you gave sworn statement before (he police on the
following morning?
A Not yet, sir.
Q Of course, this Joel Janson was unmasked when those six
men came to your house?
A This Joel Janson and Ricky Pinantao were the one (sic)
wearing mask.
Q In other words, during the incident you failed to recognize
outright who were those persons masked?
A I identified them through their body built and voice
because they were speaking Manobo.
Q But you identified them because of their voice?
A Voice and bodybuilt.
Q But of course, you did not actually see the face of Joel
Janson?
A How can I see when he is masked.
xxx
Q You only mentioned his Joel Jansons name (to the police)
after you heard his name over the DXND?
A Yes . . . (emphasis ours)
33

What stands out in the testimonies of the victims is that they were uncertain of the
identities of the masked men who committed the robbery and rape that night and
anchored their suspicion on the alleged confession of Joel Janson. This confession,
however, is itself inadmissible for failing to meet the constitutional requirements for
admissibility.
The lawyer who allegedly assisted Joel Janson in the waiver of his right to counsel,
Atty. Zerrudo, testified:
Q In other words, this sworn statement marked Exhibit B
was already typewritten and prepared when it was brought
to you by the police?
A Yes, sir, that is correct.
34

xxx
Q But before he was brought to your office allegedly to assist
him in his waiving of his right, he was already subjected to
investigation as this sworn statement was already
prepared?
A That is true, but not signed.
Q Of course he was not assisted because he was already
subjected to police investigation in his waiving of his
constitutional rights?
A May be, 1 am not sure about that. That was may be, that
was already prepared when they came to my office but
only unsigned.
Q What was prepared, the whole investigation or this entire
part or that part of waiving his rights?
A As far as I can remember, it was already prepared, Your
Honor. 35

xxx
Q Atty. Zerrudo, we are clear to the fact that this document
was already prepared before when it was brought to your
office?
A Yes, sir. (emphasis ours)
36
The investigating police officer, P/Sgt. Pedro Idpan, also admitted in open court that
the sworn statement of appellant Joel Janson was taken without the presence of
counsel and that this statement together with the waiver of his right to counsel, was
already prepared when it was presented to Atty. Zerrudo for signing.
As shown by the transcript:
Q But the accused during the investigation was not assisted
by counsel, is that right?
A At the time when I conducted the investigation, the counsel
is not yet present.
Q In other words, during the conduct of the investigation
there was no counsel being present assisting the accused
Joel Janson?
A None, sir.
Q So in all the sworn statement of the accused Joel Janson
made earlier was made without the assistance of counsel?
(sic)
A When I prepared the investigation I advised him to get a
counsel of his own choice but the counsel was not yet
present.
Q He was not assisted by counsel during the conduct of the
investigation?
A Yes, sir.
Court: What do you mean, Sergeant, Atty. Zerrudo was not yet
present?
A When I conducted the investigation, Atty. Zerrudo was not
present.
xxx
Court: He signed it after the investigation?
A The prepared testimony.
Court: After the investigation?
A After the investigation. (emphasis ours)
37

Clearly, the alleged extrajudicial confession of appellant Joel Janson cannot be

admitted in evidence. The manner by which it was obtained violated accuseds
constitutional right to counsel.
It is well-settled that the Constitution abhors an uncounselled confession or
admission and whatever information is derived therefrom shall be regarded as
inadmissible in evidence against the eonfessant. 38

As provided for in Article III, Section 12 of the 1987 Constitution,

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

xxx

1. (3)Any confession or admission obtained in violation of this or the preceding section

shall be inadmissible against him.

In People v. Javar, this Court was clear in pronouncing that any statement
39

obtained in violation of the Constitution, whether exculpatory or inculpatory, in

whole or in part, shall be inadmissible in evidence. Even if the confession contains a
grain of truth, if it was made without the assistance of counsel, it becomes
inadmissible in evidence, regardless of the absence of coercion or even if it had been
voluntarily given. In People v. Gomez, citing People v. Rodrigueza this Court held
40 41 42

that Section 12(1), Article III of the Constitution requires the assistance of counsel
to a person under custody even when he waives the right to counsel.
Under the Constitution and existing law as well as jurisprudence, a confession to
be admissible must satisfy the following requirements: (1) it must be voluntary; (2)
it must be made with the assistance of competent and independent counsel; (3) it
must be express; and (4) it must be in writing. 43

The purpose of providing counsel to a person under custodial investigation is to

curb the uncivilized practice of extracting confession by coercion no matter how
slight, as would lead the accused to admit something false. What is sought to be
avoided is the evil of extorting from the very mouth of the person undergoing
interrogation for the commission of an offense, the very evidence with which to
prosecute and thereafter convict him. These constitutional guarantees have been
made available to protect him from the inherently coercive psychological, if not
physical, atmosphere of such investigation. 44

While the Constitution sanctions the waiver of the right to counsel, it must,
however, be voluntary, knowing, and intelligent, made in the presence and with the
assistance of counsel, and it must be in writing. Indeed, any waiver of the right to
45

counsel without the assistance of counsel has no evidentiary value. 46

In this case, it cannot be said that the waiver of the right to counsel was made
knowingly and intelligently. Appellant Joel Janson was illiterate, and a minor of
sixteen (16) years at the time of the offense. As held in the case of People v.
Bonola, where the accused was unschooled and only nineteen (19) years old when
47

arrested, it is difficult to believe that considering the circumstances, the accused

made an intelligent waiver of his right to counsel. In such instances, the need for
counsel is more pronounced.
It is also important to mention that the investigating officers already had a
prepared statement when they went to the lawyer who is supposed to assist
appellant Janson in waiving his right to counsel.
This is not what is contemplated by law. In People v. Quidato, Jr., where the
48

police officers already prepared the affidavits of the accused when they were brought
to the CLAO (now PAO) lawyer, and the latter explained the contents of the
affidavits in Visayan to the accused who affirmed the veracity and voluntary
execution of the same, the court held that the affidavits are inadmissible in evidence
even if they were voluntarily given. As also ruled in People v. Compil the belated
49

arrival of the CLAO lawyer the following day, even if prior to the actual signing of
the uncounseled confession, does not cure the defect of lack of counsel for the
investigators were already able to extract incriminatory statements from the
accused therein. Thus, in People v. De Jesus, we said that admissions obtained
50

during custodial interrogations without the benefit of counsel, although later

reduced to writing and signed in the presence of counsel, are still flawed under the
Constitution.
As pointed out in People v. Deniega, if the lawyers role is reduced to being that
51

of a mere witness to the signing of a priorly prepared document albeit indicating

therein compliance with the accuseds constitutional rights, the constitutional
standard is not met.
Finally, the invalid extrajudicial confession of Joel Janson cannot be used against
Ricky Pinantao. An extrajudicial confession by an accused implicating another may
not be utilized unless repeated in open court or when there is an opportunity for the
co-accused to cross-examine the confessant on his extrajudicial statements. It is
considered hearsay as against said co-accused under the res inter alios acta rule,
which ordains that the rights of a party cannot be prejudiced by an act, declaration,
or omission of another.52

For all the foregoing considerations, the judgment of the Regional Trial Court
finding Janson and Pinantao guilty of the crime of robbery with rape fails to
persuade us that appellants have been adequately identified as the perpetrators of
the heinous offense. In our view, to affirm that judgment of conviction on the basis of
contradictory testimony of prosecution witnesses and the flawed extrajudicial
confession of appellant Joel Janson is to sanction a possible miscarriage of justice.
What befell the Alcantara family, particularly to Marites, is abhorrent and
should be condemned. But after due reflection and deliberation, we still find
difficulty in sustaining the trial courts conclusion regarding appellants guilt
because of inconclusive identification. Doubts persist in our mind as to who are the
real malefactors. Yes, a complex offense has been perpetrated, but who are the
perpetrators? How we wish we had DNA or other scientific evidence to still our
doubts! But we have only uncertain testimonies to rely on. It is only when the
conscience is satisfied that the persons on trial are the ones who committed the
offense that the judgment should be for conviction. Only when there is proof beyond
reasonable doubt can we be certain that, after trial, only those responsible should be
made answerable. The evidence for the prosecution must stand or fall on its own
53

merit and cannot be allowed to draw strength from the weakness of the evidence for
the defense. In this exacting standard, the prosecution failed. It follows that the
54

judgment of the lower court convicting appellants ought to be set aside for failure to
meet the quantum of evidence constitutionally required.
WHEREFORE, the decision of the Regional Trial Court of Kidapawan, Cotabato,
Branch XVII, in Criminal Case No. 2016 is hereby REVERSED and SET ASIDE.
Appellants Joel Janson and Ricky Pinantao are ACQUITTED, on grounds of
reasonable doubt, and ordered released from prison unless they are being held for
some other lawful cause. The Director of Prisons is DIRECTED to implement this
Decision and to report to this Court immediately the action taken hereon within five
(5) days from receipt hereof.
SO ORDERED.

THE UNITED STATES, plaintiff and appellee, vs. PABLO RAYMUNDO ET AL.,
defendants and appellants.

1. 1.CRIMINAL PRACTICE AND PROCEDURE; MOTION FOR NEW TRIAL;

NEWLY DISCOVERED EVIDENCE.Motion for a new trial, on the ground of
newly discovered evidence, denied, on the ground that a review of the whole record
 discloses that the alleged newly discovered evidence is false in so far as it would
tend, if submitted on a new trial, to modify or change the judgment of conviction
and sentence imposed by the trial court, as modified and affirmed by this court.

1. 2.PRINCIPALS IN CRIME; CRIMINAL RESPONSIBILITY.Principals in the

commission of crimes, as defined in the Penal Code, are not only "those who
cooperate in the execution of the act by another act without which it could not have
been accomplished" but also all "those who take a direct part in the execution of the
act,"

1. 3.CRIMINAL PRACTICE AND PROCEDURE; PRELIMINARY EXAMINATIONS.

Defendants having been brought to trial in the Court of First Instance of Manila
upon an information based upon an investigation of the facts by the prosecuting
attorney, had in accordance with the provisions of section 39, Act No. 183, amended
by section 1, Act No. 612, were not entitled, as of right, to any other or further
preliminary examination.

1. 4.ID.; ADMISSION OF PARTIAL RECORD NOT EQUIVALENT TO JOINT TRIAL.

The mere admission, by consent, of a portion of the record in one criminal case on
the trial of another criminal case is not equivalent to a joint trial of the defendants
in the different actions.

1. 5.ID.; RIGHTS OF ACCUSED; RIGHT TO BE CONFRONTED WITH WITNESSES;

WAIVER.The right to be confronted with the witnesses in a criminal prosecution,
as guaranteed by section 5 of the Act of Congress of July 1, 1902, is a personal one
and may be waived. (U. S. vs. Anastasio, 6 Phil. Rep., 413.)

1. 6.ID.; ID.; SEPARATE TRIAL UNDER SEPARATE COMPLAINT OR

INFORMATION.The right to a separate trial does not necessarily carry with it
the right to be charged in, a separate complaint or information before the actual
trial has begun, or to have the

1. opinion of the court, and the reasoning upon which it is based set out in a separate
instrument.

1. 7.ID.; ID.; SEVERAL DEFENDANTS CHARGED IN ONE COMPLAINT OR

INFORMATION; SINGLE JUDGMENT.Where various defendants are charged
with the commission of the same offense in a single complaint or information, and
given separate trials, their substantial rights are not prejudiced by the fact that the
trial judge prepares a single written opinion setting out his findings of fact and of
law as to all of the defendants,. provided his findings of fact and conclusions of law
 as to each of the defendants are clearly set out in such manner that they may be
reviewed on appeal, separately and apart from the findings touching their codefend
ants in the complaint or information.

1. 8.ID.; EVIDENCE; ADMISSIBILITY OF ACTS AND DECLARATIONS OF

CoCONSPIRATOR.Acts and declarations of a conspirator can not be admitted in
evidence as against a coconspirator, unless such acts were performed or such
declarations made in aid or execution of the conspiracy.

1. 9.ID.; ID. ; ID.Hence, the acts and declarations must occur. during the life of the
combination, that is, after the formation of the unlawful agreement, and before the
consummation or abandonment of the object of the conspiracy.

APPEAL from the Court of First Instance of Manila. Lobingier, J.

The facts are stated in the opinion of the court.

Gibbs & Gale, J, Courtney Hixson, and R. I. St. Peters, for appellants.

Attorney-General Villamor, for appellee.

RULING ON MOTION FOR NEW TRIAL.

CARSON, J.:

Several months after judgment was rendered in this case in the court below, counsel
submitted to this court a motion for a new trial on the ground of newly discovered
evidence. Upon this motion final ruling was reserved, in accordance with the
practice uniformly f ollowed heretof ore, pending our review of the whole record
after submission of the appeal upon its merits.

A number of affidavits were submitted in support of the motion, whereby counsel

for appellants undertake to establish their contention that upon a new trial, newly
discovered evidence can, and will be introduced, which, if it does not conclusively
establish the innocence of the appellants of the crime of which they have been
convicted, will at least raise a reasonable doubt as to their guilt. This evidence
consists; First, of a sworn retraction by the principal witness for the prosecution,
Juliana Gutierrez, of her testimony given at the trial, which she now states, under
oath, was false in every essential particular, and given at the trial under the
inspiration of Captain Crame, a police officer, who forced her to testify as she did by
the use of threats and violence; second, of the sworn statement of this witness that
she saw the defendant Pablo Raymundo being maltreated by a police officer f or the
purpose of compelling him to make the confession of his guilt which was offered in
evidence at the trial; third, of evidence tending to disclose that the deceased had an
engagement with a certain woman of ill-repute on the night when he came to his
death, and that had he undertaken to keep this engagement, he would not and could
not have been in the place where the prosecution alleges, and the findings of the
trial court declare he was, when he was murdered; and fourth, of evidence as to
conditions existing in and around the place where the dead body was found, and of
the absence of blood in the yard of the house of the defendant Arcangel, which in the
opinion of counsel for the appellants sustains their contention in the court below
that the deceased could not have been done to death in the house of Arcangel, and
the dead body afterwards carried to the place where it was found, as alleged by the
witnesses for the prosecution and set out in the findings of fact by the trial court.

The Solicitor-General opposed the motion for a new trial on the ground that only
one of the affidavits upon which it is based discloses the existence of newly
discovered evidence which could not have been discovered and submitted in the court
below by the exercise of due diligence on the part of the appellants and their
counsel; and because the alleged newly discovered evidence is not evidence which if
it were submitted on a new trial would necessarily, or even probably change the
result arrived at in the original proceedings.

We are satisfied that no amount of diligence on the part of the appellants, or

their counsel, could have secured the retraction of the testimony of Juliana
Gutierrez in time to take advantage thereof in the court below; and, while it is true
that most if not all of the other affidavits set out alleged facts which, if true, might
perhaps have been developed during the trial by the exercise of due diligence, we
would not be disposed to apply, in all their rigor, the technical rules touching the
granting of new trials on the ground of newly discovered evidence, in a case
involving the imposition of the death penalty, if in our opinion, the evidence
submitted were such that if introduced upon a new trial it would probably and
properly result in an acquittal. As we understand it the granting or denial of a
motion for a new trial on the ground of newly discovered evidence lies in the sound
judicial discretion of the court to which it is directed, to be determined as the
interests of justice may demand, when the movements have brought themselves
within the well-known rules governing the submission of such motions; but the state
being not less. interested than the individual accused of a crime in his acquittal if
he is innocent, these rules should be construed and applied with marked liberality
in cases, such as that under consideration, wherein the life of an accused person is
at stake.

We have, theref ore, directed our attention to the contents of the affidavits
submitted in support of the motion, more especially with a view to determine
whether a different result would and should be arrived at, if on a new trial, in
accordance with the practice heretofore adopted by this court, the record were
returned to the court below with instructions to reopen the different cases against
the appellants, and take the evidence of all the affiants in support of the motion for
a new trial, and such other and additional evidence as the reopening of these cases
might render proper and necessary.

Without attempting to enter upon an exhaustive comparative analysis and review

of the voluminous record brought here on appeal, examined together with the
alleged facts developed by the affidavits submitted by the movents, we might
summarize our conclusions as to the probative value of the facts alleged by the
various affiants, other than Juliana Gutierrez, by saying that, assuming that the
record before us contained the testimony of these witnesses to the precise facts set
out in their affidavits, such evidence could not and should not change or modify our
conclusions as to the guilt of the appellants.

The mere fact, if it be a fact, that the policeman Delgado had an engagement to
meet a woman of ill repute after going off duty on the night on which he was
murdered, is in itself of small probative value, if indeed it can be said to have any
value whatever, in rebuttal of direct evidence to the fact that immediately after
being relieved, he went into a house just off his beat, to talk with and to be
entertained by Juliana Gutierrez, or perhaps merely to rest for a little while after
the labors of the dayand it is chiefly, if not solely for this purpose, that the
affidavits touching this alleged engagement are submitted.

So the negative testimony contained in the statements of the affiants who say
that on the morning after the murder they did not observe any traces of blood in the
yard of Arcangel through which the trial judge held that the dead body of the
policeman was carried to the place where it was found, has but little weight in
rebuttal of the testimony of an eyewitness to the incident, substantially
corroborated as it is as to one, at least, of the defendants by his extrajudicial
confession and admissions, and indirectly corroborated as to all by the testimony of
the witnesses who testified affirmatively to the discovery of unexplained traces of
blood on the floor of the room in the house of the defendant Arcangel where the trial
judge found the murderous attack was made, and on the stairs and path leading
therefrom in the direction of the place where the body was found; and this, more
especially, because at the time when they allege they were at the scene of the crime
on the morning after it was committed, none of them had any reason to suspect that
the deceased had not been done to death where he lay, so that the fact that they did
not observe traces of blood along the route over which later developments tended to
disclose that the dead body had been- carried, is in nowise remarkable.

For similar reasons the opinion of the affiant McGraw that the crime was
committed at or near the place where the body was found, which appears in his
affidavit dated more than a year after the crime was committed, is of but little
value. It was based on observations made by him on the morning after the crime
was committed, at the place where the body was found, to which he appears to have
been attracted by the mere idle curiosity of a passerby. He had at that time no
reason to believe that the policeman had not been killed while on duty on his beat,
and under the circumstances it is not to be supposed that he made a very careful
investigation for the purpose of determining whether this was true or not. In
support of his opinion he says, first, that he saw no traces of blood leading away
from the scene of the crime; second, that when the body was moved the flow of
coagulated blood from the wounds in the throat indicated that before that time
there had been no great exterior loss of blood f from these wounds, from which
affiant inferred that the body had not been moved after the death wounds had been
inflicted; and, finally, he says that he noticed that the grass was trampled down at a
point very near the place where the body lay, in such a way that affiant came to the
conclusion that the deceased and his aggressors had had a struggle there.

We have already stated that in our opinion, negative testimony as to the presence
of a trail of blood leading to the place where the body was found, submitted by
witnesses who made their observations at a time when they had no reason to
suspect that the deceased did not come to his death at the place where his body was
found, is of but little probative value; and it is worthy of observation that if this
affiant's inexpert and unscientific opinion that the deceased had not suffered a
heavy exterior loss of blood before he was abandoned at the place where his body
was found is correct, this fact would in itself partially account for the failure of the
different affiants to notice a trail of blood leading to the house of Arcangel, where
the crime was committed.

As to the trampled-down grass, it is to be remembered that from his own

statement it appears that affiant was not the first person on the scene of the crime,
and that the evidence discloses that a number of persons had preceded him in
examining the body where it lay, so that the condition of the grass which he
undertakes to recall and describe in his affidavit, may well have been the result of
the presence of these onlookers, or it may have been caused by those who carried the
dead body of the deceased as they stood for a moment preparatory to laying or
throwing it on the ground. And whatever be the correct explanation of the alleged
facts set out in the statement of this affiant, as distinguished from his opinion which
was formed originally under conditions which render it improbable that such
opinion could afford a safe guide even were it admissible as evidence, we do not
think that these facts are necessarily in conflict with the material facts developed by
the witnesses for the prosecution at the trial.

The statement of Juliana Gutierrez that she saw the defendant Pablo Raymundo
being maltreated by a police officer for the purpose of compelling him to make the
confession of his guilt which was offered in evidence at the trial is entitled to but
scant consideration in ruling upon this motion for a new trial. If her testimony at
the trial was true, nothing contained in her affidavit is worthy of credence; and if, as
she alleges, all her evidence at the trial was false, no new fact set out in her affidavit
can be taken as proven upon the testimony of such a witness. The fact alleged in the
particular statement under consideration was contradicted and denied by the
various witnesses who were present when Raymundo's confession and admissions
were taken, and the trial court after hearing these witnesses testify and upon
mature consideration of the testimony of Raymundo himself, held that they were
made "voluntarily and without compulsion or inducement;" and in our opinion this
finding is f fully sustained by the evidence of record. We are not unaware of the
possibility and even probability that an overzealous police officer may at times
succumb to the temptation to use undue methods in extorting confessions and
admissions from persons suspected of the commission of grave offenses, and we are
fully alive to the necessity for the most painstaking scrutiny in weighing evidence
relating to alleged voluntary confessions made to police officers; but the evidence as
to the voluntary character of the confessions and admissions made by this defendant
is so conclusive that it can not be put in doubt by an affidavit such as that submitted
by Juliana Gutierrez, and indeed the detailed and specific character of the
confession and admissions under consideration tends strongly to negative the
suggestion that they were extorted by the use of physical violence, and it is hardly
credible that such a confession of such a crime could be extorted involuntarily from
an accused person by the use of such methods as those described by this affiant. For
reasons indicated at the outset of this opinion, and in view of what has just been
said, we do not deem it necessary to dwell on the cumulative quality of the alleged
newly discovered evidence set out in this particular statement of the witness
Juliana Gutierrezwhich under a strict application of the rules governing the
granting of new trials, would, perhaps, in itself afford a sufficient ground for
refusing to take her statement in this regard into consideration upon this motion.

But the sworn retraction by this affiant of all her material testimony given at the
trial presents a more serious question, which must be examined and decided from a
wholly different standpoint from that adopted in dealing with the statements
contained in the affidavits already considered; since if her retraction be accepted as
genuine and true, it discloses the existence of newly discovered evidence which
would justify and require the reopening of the cases now on appeal, and in all
human probability the acquittal of one of the appellants upon whom the court below
imposed a long term of imprisonment, and perhaps the acquittal of the two
appellants upon whom capital sentences were imposed.

This affiant, Juliana Gutierrez, was the principal witness for the prosecution,
and the only eyewitness of the commission of the crime of which appellants were
convicted. When first examined by the police, a few days after the crime had been
committed, she denied all knowledge of its commission, but upon further
examination at the police station and. upon learning that the defendants had been
arrested, she broke down, and told the whole story of the crime, substantially as she
afterwards told it on the witness stand. Later, on the preliminary investigation held
by the prosecuting attorney of the city of Manila, she told, under oath, substantially
the same story, except that on that occasion she said that the crime was committed
on the road in front of and not inside the defendant Arcangel's house, and that
Arcangel took no direct part in the commission of the crime. And, now, she declares,
under oath, that the whole story was false; and her affidavit, if it could be believed,
would tend very strongly to prove that none of the defendants had any part in the
commission of the crime.

Counsel for movents, with no small show of reason, urge that the judgment of the
court below, based as it is, in large part, on the testimony of this witness, should not
be affirmed; and that the records of the various cases against the appellants should
be returned to the Court of First Instance, and new trials granted. After a careful
review of the whole record, however, we are satisfied beyond a reasonable doubt that
the statements made in affiant's retraction are false; that her testimony given in the
Court of First Instance was true; and that appellants were properly and justly.
convicted upon that testimony, taken together with the other evidence in the record.

At the time when the crime was committed this witness was an ignorant servant
girl some 16 years of age. Due to the fact that the defendants were each given a
separate trial, she was compelled to tell her story over and over again in open court,
on not less than four separate occasions. On each occasion she was subjected to a
searching cross-examination by different counsel for the various defendants, some of
whom were of her own race and some American. After having told her story on the
witness stand, she was taken to the scene of the crime to which the court adjourned,
and there again examined and reexamined. In the very nature of the story she told,
it could not be developed and was not developed by categorical answers to specific
questions, and necessitated the relation by her of a long series of closely connected
incidents, so that her testimony in the record occupies nearly one hundred pages of
typewritten matter. Throughout the entire proceedings, the trial judge was fully
cognizant of the fact that upon the testimony of this witness depended, or appeared
to depend the lives of one or more of the accused. He also knew that her story as
told at the trial was not altogether in accord with that told at the preliminary
investigation; indeed she admitted that fact when she first went on the witness
stand, and explained that she had attempted in her statements made before the
trial to shield Arcangel, in whose house she lived, and who had threatened to kill
her or have her killed if she implicated him. And, yet, the learned and experienced
judge who saw and heard her testify, with such exceptional opportunities to form a
just estimate of her qualifications and credibility as a witness, was convinced
beyond a reasonable doubt of the truth of the story. told by her on the witness stand.

In his decision, the trial judge says that he found no substiantial contradictions
in the dramatic account of the incidents of the night in question as related by her,
and that he was satisfied that her story was in nowise shaken by the severe cross-
examinations to which she was subjected; and our examination of the whole record
fully sustains his conclusions in this regard, for a careful review of all her testimony
given at the various trials in the court below discloses no discrepancies or
inconsistencies which tend in the slightest degree to weaken our faith in the
genuineness and sincerity of the story told by her on the witness stand. Under all
the circumstances, we cannot and do not believe that if her account of the crime
were false in every material detail as she now alleges, and if her story had been
prepared for her as she now pretends, she could have withstood such a series of
examinations and cross-examinations without involving herself in some fatal
contradiction, and without betraying herself at some time or other to the trained
eyes of the judge before whom she testified. Such a feat would be remarkable on the
part of a man of mature mind, with large experience in the proceedings in American
courts of justice; it is a well-nigh impossible one on the part of an ignorant servant
girl but 16 or 17 years of age.

Moreover, as stated in our decision on the merits, her story was corroborated in a
number of important details by other evidence of record, and what is not less worthy
of observation, it was not successfully contradicted or put in doubt by anything
which developed at the trial, either in the testimony of the other witnesses, or by the
admitted facts of the case as they appear in the record or as they were disclosed on
the view of the scene of the crime by the trial judge; and the extrajudicial
confessions and admissions of Raymundo and Arcangel fully and conclusively
corroborated every essential detail of the account of the commission of the crime as
related by her, and give the lie to her retraction of her testimony submitted with
this motion.

Furthermore, an examination of the circumstances under which her various

statements were made, and of the alleged motives which actuated her in making
them, tends strongly to confirm our belief in the truth of her testimony given at the
trial and the falsity of her retraction set out in her affidavit. By her affidavit, she
would now have us believe that a police officer, Captain Crame, in his anxiety to
secure the conviction of the defendants, induced or rather forced her to testify as she
did, by speaking harshly to her, and by the use of violence and maltreatment which
she states went to the extent of slapping her on the cheek or side of her head with
his hand. It appears that from the time when she had this alleged interview with
Captain Crame until after the trial, she lived in one of the convents of this city, and
that during that time she was brought before the prosecuting attorney of the city in
the course of the preliminary investigation held by that officer. Ignorant, as she
undoubtedly was, it is difficult to believe that her interview with the police officer
and the alleged violence of his behavior on that occasion could have so dominated
and controlled her will that neither in the seclusion of the convent, nor in the
prosecuting attorney's office, nor in the trial court does she appear to have made any
complaint, nor told anyone what had happened, although she must have known that
her testimony given at the trial would in all probability result in bringing to the
gallows her friend and relative in whose house she had lived, and perhaps her three
other personal friends one or two of whom were her admirers or lovers. On the other
hand her statement at the trial that the accused or their friends had threatened to
kill her if she testified against them, which she made in explanation of the fact that
she had asked to be committed for her own personal security to a convent, explains
satisfactorily her original reticence and hesitation in giving information against the
accused, and also suggests an explanation of her extraordinary conduct in
submitting the affidavit retracting her testimony given at the trial. Two other
witnesses in the court below, who testified to the presence of some of the accused
near the scene of the crime at about the time it was committed, swore that they had
been threatened with sudden death if they told what they knew, and we see no
reason to doubt the statement of Juliana Gutierrez on the witness stand that she
also was threatened in like manner; and keeping that fact in mind, and also keeping
in mind the fact that all the accused were her former friends and associates, we are
strongly convinced that the trial being ended and this poor ignorant woman having
apparently passed out of the protection and guardian care of the court, she was led
to make. her retraction of her testimony at the trial by the exercise of some such
undue influences as were undoubtedly at work in an unsuccessful effort to prevent
the introduction of damaging evidence against these appellants at the trial.

In conclusion, we may add, that even if it were admitted that this affiant's
retraction were sufficient to cast a doubt upon the truth of her testimony in the
court below, any testimony which she might give on the reopening of the trial in the
court below would be equally unworthy of belief. If her testimony given at the former
trial is unworthy of credence, no new testimony which she might give on a new trial
would merit the slightest consideration. The result would necessarily be that the
trial judge would be compelled to decide the case on the record substantially as it
stands, striking out therefrom all the testimony of this witness; and in our opinion
the evidence left in the record, while it would not be sufficient to sustain the
conviction of the appellant Gutierrez (who was sentenced to imprisonment), would
be wholly sufficient to sustain the conviction of the appellants Raymundo and
Arcangel, upon whom death sentences were imposed, their extrajudicial confessions
and admissions establishing their guilt as found by the trial court beyond a
reasonable doubt.

And it may be well to add further, that in seeking to ascertain the truth or falsity
of the statements contained in the retraction of her testimony in the court below by
the affiant, Juliana Gutierrez, we have not limited ourselves to a review of the
record in any one of the separate trials in the court below, partly because the motion
for a new trial together with this affidavit was submitted jointly in behalf of all the
appellants, but chiefly because this motion being directed to the sound discretion of
the court, the question of the truth or falsity of this affiant's retraction justifies and
requires a review of the whole record before us, the fact that separate trials were
granted in the court below in nowise limiting the breadth of the inquiry.

Convinced as we are of the falsity of the statements contained in the retraction of

her testimony by this affiant, and of the immateriality of the evidence set out in the
statements of the other affiants, it is clearly our duty to deny the motion under
consideration and it is so ordered.

Arellano, C. J., Torres, Mapa, and Moreland, JJ., concur.

Motion denied.
DECISION UPON THE MERITS.

CARSON, J.:

On the morning of the 17th day of January, 1908, a dead body was found in
a zacate field close by a narrow lane running off Calle Panaderos in Santa Ana, and
within the jurisdictional limits of the Court of First Instance of the city of Manila.
Upon it were two or three wounds in the throat and neck, and one in the abdominal
region. The medical officer who examined the body about half past 8 on the morning
of the day when it was found was of opinion that death had resulted from the
wounds inflicted in the throat and neck, and that it must have occurred some seven
or eight hours prior to the autopsy. The body was identified as that of a policeman
named Vicente Delgado, who on the day prior to his death was on duty in precinct
No. 16, Paco district, in the city of Manila, from 3 o'clock in the afternoon until 44
minutes after 10 that night, his precinct including Calle Panaderos, off which the
body was found.

Four persons, Pablo Raymundo, Felix Arcangel, Lorenzo Gutierrez, and Apolonio
Leyva, were charged with the assassination of the deceased in an information filed
by the prosecuting attorney of the city of Manila, which reads as f ollows:

"As a result of a preliminary investigation previously made by the undersigned, prosecuting

attorney of the city of Manila, Philippine Islands, in compliance with the provisions of
section 39 of Act No. 183 of the United States Commission in the Philippine Islands, and its
amendments, the undersigned, prosecuting attorney of the city of Manila, files an
information against Pablo Raymundo, Apolonio Leyva, Lorenzo Gutierrez and Felix
Arcangel and against each of them, charging all and each of them with the crime of
assassination committed as follows:

"That on or about the 16th day of January, 1908, in the city of Manila, Philippine Islands, the said
Pablo Raymundo, Lorenzo Gutierrez, Apolonio Leyva, and Felix Arcangel and each of them, by
conspiring, confederating and cooperating between them, did willingly, illegally, and criminally, with
known premeditation, treachery and malice aforethought at nighttime and in an uninhabited place,
murder, kill and treacherously deprive of his life a certain Vicente Delgado, by surprising him
perfidiously, and suddenly attacking him and wounding him with their poniards and other deadly
and dangerous weapons, to wit, knives and bolos, while the said Vicente Delgado was laying in bed,
late at night, and then and there inflicted several cuts, stabs, and mortal wounds in the neck and
throat and on the body of the said Vicente Delgado with said deadly and dangerous weapons, in
consequence of which he died. All contrary to law."

The defendants were tried separately, and Raymundo and Arcangel were convicted
as principals, and Gutierrez and Leyva as accomplices of the crime of assassination,
marked with the aggravating circumstances of deliberate premeditation and
nocturnity. Raymundo and Arcangel were sentenced to death and Gutierrez and
Leyva to seventeen years and four months' cadena temporal (imprisonment),
together with the accessory penalties prescribed by law. All the convicts appealed
except Leyva, as to whom, of course, the judgment of the lower court has become
final.

The testimony of the principal witness as to the manner in which the deceased
came to his death was succinctly and accurately summarized by the trial judge in
his decision as follows:

"Juliana Gutierrez testified that she first met the deceased two days before his death and
again the next day, and that as a result of the last interview she arranged to meet him on
the evening of the 16th at Arcangel's house, where for some time she had been sleeping,
being employed during the day as a domestic in the home of Mr. Squires, whose house is
near Arcngel's. She says that when she went to the latter on the night in question she met
the deceased at a police alarm box not far from the house and entered, passing Arcangel
himself, who was outside cooking; that shortly afterward the deceased himself came in and
after a brief conversation, stating that he was tired, lay down on the floor, with his head
toward a window facing the road, and his feet toward the door; that very soon after, three of
the accused, Gutierrez, Leyva and Raymundo, entered the house, the first placing his knee
on the stomach of the deceased, the second seizing his left arm, and the third his right; that
Raymundo stabbed the deceased in the neck with a sharp pointed instrument which he had
in his possession, and that Arcangel then came in from outside, took two bolos from the side
of the house and stabbed the deceased in the neck, giving the other bolo to Gutierrez, who
stabbed the deceased in the abdomen; that the deceased soon expired and that all four'
carried him out of the house and laid him first under a tree in the yard and waited while
Gutierrez went out to the road to see if the coast was clear, and finding it so, reported to the
others, and all then carried the body outside to the zacate field, where it was found; that
subsequently they returned, procured several buckets of water and washed the floor, which
had been stained with blood, changed their clothes, threatened her with death if she
revealed what she had seen, when all but Arcangel departed."

The testimony of this witness as to the amorous attentions paid her by two of the
accused, Raymundo and Gutierrez, and by a municipal policeman, named Antonio
Montealegre, who preceded the deceased in the precinct in which he was on duty on
the night of the murder, tends to disclose, but not conclusively, a motive for the
crime, in the jealousy which may have been aroused in the minds of her other
suitors by her favorable reception of attentions from the municipal policeman.

Her testimony as to the manner in which the deceased was murdered and as to
the connection of the accused with the commission of the crime is corroborated by
independent evidence of the fact that all four of the accused were in the immediate
vicinity of the scene of the crime at or about the time that it was committed; by the
discovery of blood stains upon the floor of Arcngel's house at or about the place
where she stated the crime was committed; by the location of the wounds upon the
body of the deceased, which was such as to justify the inference that they were
inflicted while Delgado was in a recumbent position; by the f act that, although the
underclothes of the deceased were cut by the assassin's knives or bolos, his uniform
was not injured, which renders it probable that he was off duty with his jacket
thrown open when the murder was committed; and by evidence 'that cries were
heard coming f from the direction of the house of Arcangel at or about the.time
when she alleges the crime was committed, followed by loud barking of dogs, which
she stated broke out immediately after the accused left the house with the body of
the deceased: and her story is indirectly corroborated, by the fact that none of the
details of the crime minutely and at length described' by her were put in doubt by
the ocular examination of the scene of the crime by the trial court, or by the
evidence as to the conditions existing there on the night when it was committed,
and on the following morning when the police discovered the body.
 As to the defendant, Raymundo, her testimony is conclusively corroborated by an
extrajudicial confession made by him in the presence of several police officers after
he ,was arrested, wherein he gave a detailed account of the commission of the crime
substantially identical with that given by Juliana; this confession disclosing,
furthermore, that the murder was the result of a conspiracy between this accused
and others, which had been in existence some ten days prior to the commission of
the crime, and which had for its object the killing of a municipal policeman whose
attentions were favorably received by Juliana.

As to the defendant, Arcangel, her testimony is' substantially corroborated by his

extrajudicial admissions and self-incriminating statements made after his arrest,
wherein he admitted having participated in the commission of the crime and having
struck one of the blows inflicted by the attacking party, although he insisted,
(manifestly for the purpose of extenuating the criminality of the part taken by him)
that the crime was committed on the street outside his house, and that he struck
the deceased in the abdomen and not in the throat, as testified by Juliana. This
accused at first denied having participated in the commission of the crime, but upon
his confrontation with Raymundo in the police station, a dispute arose between
them, in the course of which they charged each other with having inflicted the fatal
wounds in the neck and throat of the deceased, each insisting that he himself struck
the blow in the abdomen which was not supposed to be fatal. The admissions of this
defendant also disclose his guilty connection with the conspiracy to kill the
municipal policeman whose attentions to Juliana were resented by the murderers,
at least as far back as 2 o'clock in the afternoon of the day upon which the crime was
committed.

There is also evidence in the recordthe testimony of the witnesses Gabriel and
Dullavinwhich tends to disclose the guilty knowledge of Raymundo, Leyva and
Gutierrez of the commission of the crime, almost immediately after it had taken
place, and an effort on their part to conceal the fact that they had been in the
vicinity at that time; but the judgment of conviction in the court below rests
substantially on the testimony of the witness Juliana Gutierrez, corroborated as to
Raymundo and Arcangel by their respective extrajudicial confessions and
admissions.

We agree with the trial judge, that "the explanations of the accused are not
sufficient to shake one's confidence in the story of Juliana;" and that the testimony
of the witnesses called on behalf of the different defendants is wholly unworthy of
credit or belief.

Accepting the testimony of Juliana Gutierrez as true, as did the trial judge, there
can be no reasonable doubt as to the guilt of all the accused as principals of the
crime of assassination, since it is very clear that all of the accused took "a direct
part in the execution of the act," and that it was committed
with "alevosia" (treachery), that is to say, that means were employed which tended
directly and specially to insure the execution of the crime without risk to the person
of the criminals arising from any defense which might be made by the injured party.
(Arts. 10, 13, and 403, of the Penal Code; 1 Phil. Rep., 331 ; 2 Id., 54, 102 ; 3 Id., 1 2 3

112, 260, 7286; M, 480, 483 ; 11 Id., 56 .)

4 5 6 7 8

The trial judge was erroneously of opinion that Leyva and Gutierrez were merely
accomplices, basing his opinion on his finding that "the sole part which Leyva is
shown to have taken in the act was to hold the right arm of the deceased while the
others stabbed," and that Gutierrez "is shown to have used a smaller bolo and
stabbed the deceased in the right side of the abdomen," inflicting a relatively small
wound, which the medical expert was of opinion was not of importance; these being
in the opinion of the trial judge acts which were not of such a nature that the crime
"could not have been accomplished" without them. But it is to be observed that not
only are "those who cooperate in the execution of the act by another act without
which it could not have been accomplished" guilty as principals, but also "those who
take a direct part in the execution of the act," and clearly both Leyva and Gutierrez
took a direct part in the commission of the assassination as it was described by the
eyewitness upon whose testimony they were convicted. (Art. 13, Penal Code; 3 Phil.
Rep., 89 ; 11 Phil. Rep., 150, 225. )
1 2 3
 It appears furthermore from the extrajudicial confessions and admissions of
Arcangel and Raymundo that the crime was committed by them with deliberate
premeditation; but these extrajudicial confessions and admissions being clearly
inadmissible as evidence against their coaccused, f or the purpose of showing the
existence of deliberate premeditation (not having been made during the life of the
alleged conspiracy, and there being no other evidence in the record of the existence
of a conspiracy for any length of time prior to the commission of the crime), the
finding by the trial court that the crime as committed by the third appellant
Gutierrez was marked by this aggravating circumstance can not be sustained, the
record containing no other evidence whatever of his connection with the attacking
party prior to the time when the crime was actually committed.

Each of counsel for the various appellants submits a large array of assignments
of error, all of which, however, may for convenience be summarized as follows and
discussed together:

First. The trial court erred in compelling the defendants to proceed to trial
without giving them the benefit of a preliminary trial.

Second. The trial court erred in denying to the accused the right to a separate
trial.

Third. The trial court erred in admitting testimony touching the alleged
extrajudicial confessions and admissions of Raymundo and Gutierrez.

Fourth. The trial court having admitted evidence as to these confessions and
admissions erred in taking them into consideration in weighing the evidence as to
the coaccused of the parties who are alleged to have made them.

Fifth. The trial court erred in admitting the testimony of witnesses when the
accused had no opportunity to confront and cross-examine.

Sixth. The trial court erred in taking into consideration the testimony of certain
witnesses, taken during the separate trials of some of the accused, as to their
coaccused, although such testimony was not repeated in the separate trials given to
the latter.

Seventh. The trial court erred in writing a joint decision against all and each of
the defendants, despite the fact that the evidence was summitted as to each
defendant in a so-called separate trial.

Eighth. The trial court erred in accepting the testimony of the witnesses for the
prosecution as true.

Ninth. The trial court erred in convicting the defendants of the crime of
assassination and imposing the death penalty upon Raymundo and Arcangel and
seventeen years and four

months of cadena temporal upon Gutierrez. In answer to the first assignment of

error it is sufficient to point out that, as appears from the above-set-out copy of the
information, the accused were brought to trial in the Court of First Instance of
Manila upon an information based upon an investigation of the facts by the
prosecuting attorney, in accordance with the provisions of section 39 of Act No. 183,
amended by section 1 of Act No. 612 of the Philippine Commission, and were not,
therefore, entitled, as of right, to any other or further preliminary trial or
examination. (U. S. vs. Wilson, 4 Phil. Rep., 317; U. S. vs. McGovern, 6 Phil. Rep.,
621.)

The second assignment of error is completely disposed of by an examination of

the voluminous record which clearly discloses that each of the defendants was in
fact given a separate trial, the trial judge on various occasions calling the attention
of counsel to this fact, and throughout the proceedings exercising marked
precautions to secure to each of the accused the full and complete enjoyment of his
right in this regard. The record of the trial of the appellant Pablo Raymundo will be
found under its proper title, separate and apart, on pages 2 to 230 of the joint record
in the court below (English version) ; the record of the trial of the appellant Felix
Arcangel, on pages 231 to 397 of that joint record; and the record of the trial of the
appellant Lorenzo Gutierrez, on pages 398 to 450 thereof. And while it is true that
by agreement of counsel and with the consent of the accused under advice of
counsel, "the testimony of the witnesses f or the prosecution together with the cross-
examination thereof" taken on the trial of Arcngel was received in evidence in the
separate trial of Gutierrez, counsel for Gutierrez reserving and exercising the right
to recall and cross-examine these witnesses and further to introduce such evidence
for the defense as he saw fit, it is manifest that the mere admission by consent or
otherwise of a portion of the record in one criminal case on the trial of another
criminal case, is in nowise equivalent to the trial of those cases together.

The third assignment of error is based on counsel's contention that the alleged
extrajudicial confessions and admissions of Raymundo and Arcangel were not
voluntary and therefore under the provisions of section 4 of Act No. 619, not
competent evidence. It is alleged that these defendants were subjected to cruel and
abusive treatment by the police to compel them to make these statements. But the
record discloses that Arcangel did not introduce any testimony for the purpose of
rebutting the testimony of the witnesses for the prosecution who swore to the
contrary; and there is not a scintilla of evidence in the record of his separate trial
which even tends to put in doubt the truth of the testimony of the witnesses for the
prosecution as to the voluntary admissions made by him, although these admissions
taken together with the testimony of Juliana Gutierrez establish his guilty
participation in the commission of the crime beyond a shadow of a doubt. And the
evidence of record establishes beyond a reasonable doubt the falsity of the
allegations of Raymundo that certain scars which he exhibited during the course of
the proceedings were the result of maltreatment at the hands of the police, it having
been conclusively proven that the injuries which produced these scars were received
in a fight in which Raymundo took part prior to his arrest. We are satisfied that the
overwhelming weight of the testimony establishes affirmatively the contention of the
prosecution that these extrajudicial confessions and admissions were made
voluntarily, and therefore that they were competent and admissible evidence against
the defendants who made them.
 As to the fifth assignment of error based on the alleged denial of the right of the
accused to confront and crossexamine the witnesses called by the prosecution, which
it is said was a necessary consequence of the fact that by agreement of counsel and
with the consent of the accused, a part of the evidence taken in the trial of Arcangel
was admitted on the trial of Gutierrez, it might be sufficient answer to cite the
decision of this court in the case of United States vs. Anastasio (6 Phil. Rep., 413),
wherein after an exhaustive discussion of the authorities, it was held that "the right
to be confronted with the witnesses in a criminal prosecution, as guaranteed by
section 5 of the Act of Congress of July 1, 1902, is a personal one and may be
waived." But it is worthy of observation that the accused having been given the
privilege of recalling and crossexamining the witnesses whose testimony was
admitted under the agreement, and the chief purpose of confrontation being to
secure the opportunity f or cross-examination (Greenleaf on Evidence, Vol. I, par.
163), appellant's substantial rights cannot be said to have been prejudiced by the
stipulation of which he now complains, which was entered into under the advice of
counsel, in open court, and for reasons then considered sufficient by himself and his
counsel.

We have heretofore held in the case of United States vs. Fernandez et al. (9 Phil.
Rep., 269) that "when two or more defendants are charged in the same complaint
and demand separate trials, the fact that the court rendered but one judgment, with
separate findings of fact, is not reversible error, in the absence of timely objection;"
and where various defendants are charged in a single complaint or information with
the commission of the same offense, we know of no provision of law which imposes
upon the trial judge an obligation to set out his reasoning and to make his findings
of fact and of law in separate opinions as to each of them, merely because they have
been granted separate trials; we do not understand that in such cases the
substantial rights of any of the defendants are in anywise prejudiced thereby,
provided that the findings of fact and the conclusions of law based thereon as to
each . separate defendant are clearly set out, in such manner that they may be
reviewed on appeal, separately and apart from the findings touching his
codefendants in the complaint or information. The right to a separate trial does not
necessarily carry with it the right to be charged in a separate complaint or
information before the actual trial has begun, or to have the opinion of the court,
and the reasoning upon which it is based set out in a separate instrument after the
actual trial of the accused has closed. The purpose and object of the provision of law
securing to an accused person the right to a separate trial would not be advanced by
a contrary holding; and on the other hand, such a ruling would in many cases
impose a wholly unnecessary burden upon the trial courts. In the case at bar, we are
of opinion, and so hold, that the trial judge commited no error in handing down his
judgment as to each and all of the appellants in a single opinion or decision, the
findings of fact and the conclusions of law as to each defendant being stated in such
form that they may be considered and reviewed separately, and the rights of each
defendant secured to him by the grant of a separate trial not being affected or in
anyway impaired thereby. Trial has been defined to be "the examination before a
competent tribunal, according to the laws of the land, of the facts put in issue in a
cause, for the purpose of determining such issue" (4 Mass., 232), and such an
examination of the facts put in issue by the plea of not guilty, entered by or for each
of the defendants in this action, was granted to them, and it is clear that it is such a
separate examination and no more that is secured to accused persons by the
provisions of law as to separate trials in criminal causes.

We have already stated that in our opinion, based on a review of the whole
record, the trial judge properly accepted as true the material testimony of the
witnesses for the prosecution and properly rejected as unworthy of credit or belief
the evidence introduced by the defense, in the separate trials given to the various
appellants; and that there is no error prejudicial to the rights of the accused in his
conclusions of law based on the facts disclosed by this testimony save his finding of
the existence of deliberate premeditation as to Gutierrez; and as a further and
extended discussion as to the credibility of the witnesses for the prosecution has
been rendered necessary by the motion for a new trial submitted to this court on the
ground of newly discovered evidence, it is unnecessary at this time to consider at
length the assignments of error in this regard.
 As to the contentions of appellants that the trial court improperly took into
consideration extrajudicial confessions and admissions of some of the defendants as
against their codefendants, it must be admitted that the trial court manifestly erred
in this regard, though upon examination, it will be found that the. substantial rights
of the appellants were not prejudiced thereby. Subsection 6 of section 298 of the
Code of Civil Procedure provides that evidence may be given upon a trial "after
proof of a conspiracy" of "the act or declaration of a conspirator relating to the
conspiracy," and the reason upon which this rule rests renders it as applicable in
criminal as in civil trials;. it always being understood, however, that "acts and
declarations of a conspirator cannot be admitted as against a coconspirator, unless
such acts were performed or declarations made in aid' or execution of the
conspiracy," and, therefore, that "the acts and declarations must occur during the
life of the combination, that is after the formation of the corrupt agreement, and
before the consummation or abandonment of the object of the conspiracy." (8 Cyc.,
680, 681, and cases there cited.) Applying this doctrine, it is evident that the trial
court erred in finding in the extrajudicial confessions and admissions of Raymundo
and Arcangel corroboration of the evidence introduced in the separate trial of their
coaccused in the joint information, and proof of the existence of deliberate
premeditation in the commission of the crime by the appellant Gutierrez. That he
did so seems clear from the fact that except as it appears from these confessions and
admissions there is no evidence in the record of the existence of a conspiracy, or of
the connection of Gutierrez therewith, for any length of time prior to the commission
of the crime, the facts admitted respectively by Raymundo and Arcangel being the
only evidence in the record upon which a finding of deliberate premeditation could
have been based; and also because an examination of the whole opinion, taken
together with the following citation quoted therefrom in brief of counsel for
Gutierrez, appears to sustain counsel's contention that not only as to Leyva, who is
specifically mentioned in the citation, but also as to Gutierrez, the trial court took
into consideration the extrajudicial statements made by Arcangel and Raymundo in
making findings of fact as to the participation of Gutierrez in the commission of the
crime. "Apolonio Leyva is not named among the original conspirators of January 2.
But his counsel is in error in stating that there is no testimony directly against him
save that of Juliana Gutierrez, for Leyva is mentioned in Arcangel's confession as
one of the participants in the affair, and the fact that Leyva is not so mentioned by
Raymundo may well be due to the fact that the latter is the former's uncle." But as
has already been shown, judgment of conviction of each of the appellants is fully
sustained by the competent evidence adduced in each separate trial, without relying
upon the testimony touching confessions or admissions by his alleged
coconspirators, and this court having amended the finding of the trial court as to the
commission of the crime by Gutierrez with deliberate premeditation, none of the
appellants can be said to be prejudiced in any substantial right by the error of the
trial court in this regard, since the findings of fact and the conclusions of law based
thereon, (as clearly appears from the reasoning of the opinion of the court below,
and from a review of the whole record) would be precisely the same, had the trial
judge strictly limited himself to the competent evidence in the record of each
separate trial in making the findings of fact disclosed thereby.

As to the contention that the trial court erred in taking into consideration other
testimony taken at the trial of some of the accused as against their coaccused who
were given separate trials, we think that an examination of the opinion of the trial
court shows that it is not well founded. It is true, as pointed out by counsel for
Gutierrez, that the trial judge found corroboration of the testimony of Juliana
Gutierrez to the effect that the defendant Raymundo wore a gray suit which became
smeared with blood in the testimony of the witness de la Cruz as to Raymundo's
effort to send a message from the police station to friends outside to destroy certain
blood-stained clothing, which was afterwards discovered at his home and introduced
in evidence on his trial; and that the testimony of this witness was not taken at the
trial of Gutierrez: but it is very clear that the trial judge, who had throughout the
trial taken the utmost pains to secure to the various defendants their right to. a
separate trial, did not intend that his finding based on the testimony of this witness
should be taken into consideration as a ground upon which his judgment of
conviction of any other accused than Raymundo should rest, although it is also true
that he does not expressly say so. And, however this may be, we are of opinion that
the findings as to the guilt of Arcangel and Gutierrez are in nowise affected or
weakened by the fact, even were it admitted as true, that in convicting them the
trial judge had in mind the testimony of De la Cruz taken on the separate trial of
Raymundo, as additional corroboration of the truth of the testimony of Juliana
Gutierrez.

We find no error in the. proceedings prejudicial to the rights of the appellants and
we are satisfied beyond a reasonable doubt that the evidence of record establishes
their guilt of the crime of assassination as found by the trial court, except that the
record discloses the guilt of the appellant Gutierrez as a principal and not as an
accomplice, and fails to sustain the finding of the trial court that the crime as
committed by him was marked with the aggravating circumstance of deliberate
premeditation.

The judgment of conviction of both and each of the appellants Raymundo and
Arcangel as principals of the crime of assassination, marked with the aggravating
circumstances of deliberate premeditation and nocturnity, and no extenuating
circumstances, should be and is hereby affirmed and the sentences of death together
with the accessory penalties prescribed by law, which were imposed upon both and
each of these appellants are therefore affirmed, with a proportionate share of the
costs of this appeal against each of them.

The judgment of conviction of the appellant Gutierrez of the crime of

assassination, as pronounced by the trial court, should be modified by substituting
for so much thereof as finds him "guilty as accomplice" a finding of "guilty as
principal," and by substituting for so much thereof as declares that the commission
of the crime by him was marked with the aggravating circumstances of "deliberate
premeditation and nocturnity," a declaration that the only aggravating
circumstance which it was proven marked the commission of the crime by this
appellant was that of "nocturnity," and thus modified the judgment of conviction of
this appellant should be and is hereby affirmed. It appearing that this appellant
was less than 18 years and more than 15 years old when the crime was committed,
the sentence which should be imposed upon him as a principal in the commission of
the crime is that immediately inferior to that prescribed in article 403 of the Penal
Code, defining and penalizing the crime of assassination, that is to say, from the
maximum degree of presidio mayor to the medium degree of cadena temporal, or
from ten years and one day to seventeen years and four months' imprisonment; and
since the evidence discloses that the crime committed by him was marked with the
aggravating circumstance of nocturnity, and no extenuating circumstances, save
that of age, this penalty should be imposed in its maximum degree. The penalty
imposed by the trial judge (who while holding Gutierrez guilty merely as an
accomplice and finding that he was less than 18 years of age, nevertheless took only
one of those facts into consideration in fixing the penalty) was that of seventeen
years and four month of cadena temporal, and the sentence imposed by the trial
court upon this appellant, Gutierrez, should therefore be, and is hereby affirmed,
with his proportionate share of the costs of this appeal against him.

G.R. No. 110970. March 16, 1994. *

ASUNCION JUANIR VDA. DE ALVAREZ, petitioner, vs.COURT OF APPEALS,

and JOSEFA ALMEDA (Deceased) NOW HER HEIRS, Namely: FREDISVINDA A.
CONSUNJI, ANGELITA A. CRUZ, EMMANUEL M. ALMEDA, ERLINDA A.
CHIKIANCO, ZENADIA A. ROXAS, BENJAMIN A. ALMEDA, DOMINADOR M.
ALMEDA, JR., and ERMELO M. ALMEDA, represented by ERMELO M. ALMEDA,
respondents.

Remedial Law; Evidence; Admissions; An admission in a pleading in one action may be

admitted in evidence against the pleader or his successor-in-interest at the subsequent trial
of the same suit or in another action involving the same issue or in which the admission is
pertinent to the issues.An admission in a pleading in one action may be admitted in
evidence against the pleader or his successor-in-interest at the subsequent trial of the same
suit or in another action involving the same issue or in which the admission is pertinent to
the issues. It is true that this rule will not apply if the pleading in which the statement is
found was not signed by the party and no proof was presented that he had authorized the
making of such admission. In the case at bar, however, the aforequoted answers bear the
signature of the petitioner, who in fact acknowledged it at the trial.
Same; Same; The Court of Appeals did not err in rejecting the documents on the ground
that they had not been formally offered as evidence with the trial court.The petitioner
points to certain documents she filed with the respondent court tending to show, from a
comparison of the 1987 market value of a lot adjacent to the disputed property and the 1973
market value of the disputed property itself, that the consideration for her land was grossly
inadequate. The Court of Appeals did not err in rejecting these documents on the ground
that they had not been formally offered as evidence with the trial court. Section 34, Rule
132, of the Rules of Court provides that the court shall not consider evidence not formally
offered. Furthermore, the documents could hardly be considered newly-discovered evidence
to justify the grant of a new trial as they were existing and known to the petitioner at the
time of the original trial.
Contracts; Sales; Equitable Mortgage; According to Tolentino, the presumption of
equitable mortgage will apply only if it is clearly shown that the consideration was unusually
inadequate such that the mind revolts at it and such that a reasonable man would neither
directly or indirectly be likely to consent to it.Even on the assumption that the price of
P80,000.00 was below the market value of the lot in 1973, it would nonetheless not be gross
and unconscionable, as the petitioner insists. According to Tolentino, the presumption of
equitable mortgage will apply only if it is clearly shown that the consideration was
unusually inadequate such that the mind revolts at it and such that a reasonable man
would neither directly or indirectly be likely to consent to it.
Same; Same; A test to determine whether a conveyance is a sale or merely a security for
the payment of a loan is the continued existence of a debt or liability on the part of the
mortgagor.In Cuyugan v. Santos, the Court held that another test to determine whether a
conveyance is a sale or merely a security for the payment of a loan is the continued
existence of a debt or liability on the part of the alleged mortgagor. If such a relationship
exists, the transaction is a mortgage; otherwise, it is a contract of sale.
Same; Same.In the present case, the petitioner admitted that she had never paid the
alleged indebtedness and there is no evidence either that she attempted or offered to
discharge the alleged mortgage. On the contrary, it was Almeda, the alleged lender, who
had made payments to the petitioner as follows: P40,000.00 on May 23, 1973; P60,000.00 on
February 11, 1974; P2,000.00 on February 7, 1975; and P18,000.00 on April 22, 1976. All
the receipts acknowledging the said payments were signed by the petitioner, who did not
controvert them at the trial.
 Same; Contracts; Antichresis defined.The Civil Code provides: Article 2132. By the
contract of antichresis the creditor acquires the right to receive the fruits of an immovable
of his debtor, with the obligation to apply them to the payment of the interest, if owing, and
thereafter to the principal of his credit. Article 2134. The amount of the principal and of the
interest shall be specified in writing; otherwise, the contract of antichresis shall be void.

PETITION for review of a decision of the Court of Appeals.

The main issue for resolution is whether Lot 129 at Penefrancia Avenue, Naga City,
with an area of 510 square meters, was actually sold by Asuncion Juanir Vda. de
Alvarez to Josefa Almeda or merely mortgaged to secure a loan.
In a complaint for Recovery of Possession filed on January 30, 1981, with the
Court of First Instance of Camarines Sur, plaintiff Josefa Almeda alleged that, as
the registered owner of the said Lot 129, she leased a 170 square-meter portion
thereof, including the building erected on it, to defendant Asuncion Juanir Vda. de
Alvarez for a monthly rental of P900.00; that the defendant failed to pay the rentals
from August to December 1978, from October to December 1979, and from January
1980 onward, and did not keep her promise to leave the rented property after
Christmas of 1979; and that despite written demands, she had refused to vacate the
premises. 1

In her answer, defendant Alvarez averred that sometime in 1973, the plaintiff
offered to lend her money to settle her unpaid loan of P20,000.00 with the
Continental Bank, Naga City, provided that the land given as security for the said
loan would be mortgaged to the plaintiff instead. For this purpose, the plaintiff
asked her to sign a document, which she did not read nor was it read to her, that
she assumed was a mortgage pursuant to their agreement. It was only later that
she discovered it was a deed of sale of her land together with the improvements
thereon for the sum of P80,000.00. 2

While the case was pending in the trial court, plaintiff Josefa Almeda died and
was substituted by her heirs, the private respondents herein.
On April 20, 1990, the lower court rendered judgment: 1) declaring that the
contract entered into by the parties was one of absolute sale; 2) confirming the
validity of the contract; 3) ordering defendant Alvarez and her successors-in-interest
to surrender the possession of the subject lot to plaintiff Almedas heirs or
successors-in-interest; 4) ordering the defendant to pay the monthly rental of
P900.00 for the entire duration of her occupancy of the land and building until the
same was vacated, P2,500.00 as attorneys fees, and P500.00 as expenses of
litigation; and 5) granting the writ of injunction preventing the defendant or her
heirs or successors-in-interest from committing further acts of dispossession. 3

On appeal, the decision was affirmed by the respondent court, which also 4

subsequently denied the appellants motion for new trial and/or reconsideration.
Alvarez then came to this Court, insisting that the contract invoked by Almeda
should be treated as an equitable mortgage on the grounds that: 1) the document
purporting on its face to be an absolute sale was in fact a mortgage given as a
security for the repayment of a loan; 2) being stood the document she signed; 3) the
price is grossly inadequate; and 4) she continued to possess the property in the
concept of an owner.
The petitioner bases her arguments on the presumptions laid down by Article
1602 of the Civil Code, in relation to Article 1604 of the same Code, said provisions
reading as follows: Art. 1602. The contract shall be presumed to be an equitable
mortgage, in any of the following cases:

1. (1)When the price of a sale with right to repurchase is unusually inadequate;

2. (2)When the vendor remains in possession as lessee or otherwise;

3. (3)When upon or after the expiration of the right to repurchase another instrument
extending the period of redemption or granting a new period is executed;

4. (4)When the purchaser retains for himself a part of the purchase price;

5. (5)When the vendor binds himself to pay the taxes on the thing sold;

6. (6)In any other case where it may be fairly inferred that the real intention of the
parties is that the transaction shall secure the payment of a debt or the
performance of any other obligation.

In any of the foregoing cases, any money, fruits or other benefit to be received by the vendee
as rent or otherwise shall be considered as interest which shall be subject to the usury laws.
Art. 1604. The provision of Article 1602 shall also apply to a contract purporting to be an
absolute sale.

The document evidencing the transaction between Josefa Almeda and the petitioner
is denominated a contract of sale. However, parol evidence may be introduced to
5

show that the agreement was in fact merely a mortgage masquerading as a sale.
Section 9, Rule 130, of the Rules of Court provides:
When the terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and their
successors-in-interest, no evidence of such terms other than the contents of the written
agreement.
However, a party may present evidence to modify, explain or add to the terms of the
written agreement if he puts in issue in his pleading:
1) an intrinsic ambiguity, mistake or imperfection in the written agreement;
b) the failure of the written agreement to express the true intent and agreement of the
parties thereto;
xxx

There is no ambiguity, mistake or imperfection in the deed of sale. We also find no

compelling reason to consider the express stipulations in the deed of sale were
intended only to create an equitable mortgage. The petitioner has not presented
clear, satisfactory and convincing evidence that the real intention of the parties to
the said deed was to make the property in question merely a security for a loan
extended by Almeda to the petitioner.
Article 1371 of the Civil Code provides that in order to judge the intention of the
contracting parties, their contemporaneous and subsequent acts shall be principally
considered. In the case before us, the facts clearly show that the transaction between
Almeda and the petitioner was indeed a contract of sale.
It is noted that in May 1973, Almeda caused the registration of the disputed deed
of sale, resulting in the cancellation of Original Certificate of Title No. 289 in the
6

name of the petitioner and the consequent issuance of Transfer Certificate of Title
No. 6999 in Almedas favor. The petitioner admitted having learned this fact as
7

early as 1973, first from her lawyer and personally afterwards, when she went to the
Register of Deeds to verify the matter.
If Alvarez was really misled into signing the deed of sale, she should have
protested or at least notified the Register of Deeds that she had only mortgaged and
not sold the land to Almeda. Better still, she should have taken steps to annul the
sale and recover the property. Inexplicably, she did nothing at all. It was only in
1981, when Almeda sued her for recovery of the property, that she alleged in her
answer that the deed of sale was a disguised mortgage. It took her all of eight years
to challenge the registration of the disputed property in favor of Almeda.
The Court also notes that, also in 1973, Almeda declared the subject property in her
name for tax purposes, resulting in the cancellation of the tax declaration in the
petitioners name. 8
 Alvarez never questioned the said cancellation nor did she ask for the tax
declaration in her name to be revived. It is a matter of record that when the
petitioner and Almeda were sued in 1979 by Dolores Salvan, one of the lessees of the
subject property, she declared in her answer to the complaint:
9

1. 4.That defendant admits that she has been receiving plaintiffs rentals but
from 1973 she has been receiving such rentals for defendant Josefa Almeda
after the latter purchased the land from her and that when she refused to
receive plaintiffs rental for March, it was upon instruction of defendant
Josefa Almeda, the owner of the land;

2. 5.That she denies the allegations contained in paragraph 6 of the complaint,

the truth being that if she refused to accept payment, it was because of the
instructions made upon her by her co-defendant, owner of the land, Josefa
Almeda;

3. 9.That plaintiff knows that she has no cause of action against the herein
defendant, she being no longer the owner of the land or the leased premises, x
x x (Emphasis supplied).

And when in May 1979, another lessee, Basilio Caning, filed a complaint against
her, the petitioner made the following allegations in her answer: 10

1. 4.That she denies the allegations contained in par. 4 of the complaint, the truth
being that plaintiff has never tendered any payment in February or March, what
happened was that defendant, upon instruction of Mrs. Josefa Almeda, who is the
present owner of both the land and the building occupied and leased by plaintiff,
Mrs. Almeda having long bought this from defendant, she gave notice to plaintiff to
vacate the premises as the land will be used for the construction of a multi-story
building to keep up with the growing commercial needs of the City;

2. 5.That she specifically denies each and every allegation contained in pars. 5, 6, 7,
and 9 of the complaint, she having no knowledge of any useful improvement made
by plaintiff, nor has she given any

1. consent therefor, and she knows not of any portion of the building which needed
repairs and besides as already stated defendant sold the lot including the building
to Mrs. Josefa Almeda since 1973 and therefore she had no more obligation to
 repair the same, but the owner if at all which is Mrs. Almeda;
xxxxx

2. 7.That the complaint does not include the real parties in interest, Mrs. Josefa
Almeda, who is the registered owner and lessor of the lot and building in
question and without her included no final determination of this case can be had;
xxxxx

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable

Court that this case be dismissed, or if at all that it be prosecuted against the proper party,
Mrs. Josefa Almeda, x x x. (Emphasis supplied)

The petitioner points out that it was Almeda who paid for the services of the lawyer
who prepared the said pleadings, but that fact alone does not disprove or nullify her
declarations therein. An admission in a pleading in one action may be admitted in
evidence against the pleader or his successor-in-interest at the subsequent trial of
the same suit or in another action involving the same issue or in which the
admission is pertinent to the issues. It is true that this rule will not apply if the
11

pleading in which the statement is found was not signed by the party and no proof
was presented that he had authorized the making of such admission. In the case at 12

bar, however, the aforequoted answers bear the signature of the petitioner, who in
fact acknowledged it at the trial. 13

Alvarez now claims that she signed the pleadings merely upon the prodding of
Almeda, who had not read or explained their contents to her. The petitioners
behavior is certainly strange, considering that this happened six years after she and
her lawyer came to know about the transfer of the land in Almedas name. Almeda
and Alvarez would have been at loggerheads by that time. Yet, Alvarez would have
this Court believe that she still willingly left their common defense to Almeda and
willingly signed the pleadings without clearing them first with her own lawyer. It is
inconceivable that Alvarez would still have trusted Almeda if it is true that she had
earlier been deceived by this person.
The petitioner says Almeda took advantage of her illiteracy but her own evidence
reveals her shrewdness and shows that she is not all that gullible or helpless, as she
pretends. She herself negated this pose when she testified that she was able to
mortgage the subject lot not less than three times with different banks without any
difficulty or the assistance of a lawyer. She said she knew she could manage by
herself.14
 Alvarez also claims that she could not have sold the disputed property for only
P80,000.00 because she even turned down an offer in 1971 to buy the land at
P265,200.00. She presents no corroboration, however, such as the testimony of the
supposed offeror.
To show that the consideration of P80,000.00 was grossly inadequate, the
petitioner invites attention to Tax Declaration No. 16807 and a deed of sale
15

covering a nearby 906 square meter lot, which was sold for P600,000.00. 16

The deed was executed on June 22, 1987. Surely, it cannot be considered evidence
of the market value of the land in 1973, all of fourteen years earlier. As for the tax
declaration, which was issued on May 14, 1974, the true market value of the land in
question is placed at only P60,000.00 and that of the building at only P7,200.00, for
a total of P67,200.00. This instrument belies the petitioners contention that the
price of P80,000.00 is grossly inadequate.
The petitioner points to certain documents she filed with the respondent court
tending to show, from a comparison of the 1987 market value of a lot adjacent to the
disputed property and the 1973 market value of the disputed property itself, that
the consideration for her land was grossly inadequate. The Court of Appeals did not
err in rejecting these documents on the ground that they had not been formally
offered as evidence with the trial court. Section 34, Rule 132, of the Rules of Court
provides that the court shall not consider evidence not formally offered.
Furthermore, the documents could hardly be considered newly-discovered evidence
to justify the grant of a new trial as they were existing and known to the petitioner
at the time of the original trial.
Even on the assumption that the price of P80,000.00 was below the market value
of the lot in 1973, it would nonetheless not be gross and unconscionable, as the
petitioner insists. According to Tolentino, the presumption of equitable mortgage
will apply only if it is clearly shown that the consideration was unusually
inadequate such that the mind revolts at it and such that a reasonable man would
neither directly or indirectly be likely to consent to it.
17

In Cuyugan v. Santos, the Court held that another test to determine whether a
18

conveyance is a sale or merely a security for the payment of a loan is the continued
existence of a debt or liability on the part of the alleged mortgagor. If such a
relationship exists, the transaction is a mortgage; otherwise, it is a contract of sale.
In the present case, the petitioner admitted that she had never paid the alleged
indebtedness and there is no evidence either that she attempted or offered to
19

discharge the alleged mortgage. On the contrary, it was Almeda, the

alleged lender, who had made payments to the petitioner as follows: P40,000.00 on
May 23, 1973; P60,000.00 on February 11, 1974; P2,000.00 on February 7,
20 21

1975; and P18,000.00 on April 22, 1976. All the receipts acknowledging the said
22 23

payments were signed by the petitioner, who did not controvert them at the trial.
It would appear from these payments that the true selling price of the land was
P120,000.00, which was way above the market value stated in the 1973 tax
declaration covering the property in question. There was an obvious reason for
fixing the consideration at only P80,000.00 in the disputed deed of sale. As the
petitioner blandly admitted in her brief, the true consideration of sales of land are
not usually placed in the documents of conveyances to reduce the documentary
stamps, the transfer tax fees as well as other taxes chargeable relative thereto.
The petitioner next asserts that if the deed of sale were considered a contract of
antichresis, the loan of P80,000.00 would be deemed fully paid or offset by the
rentals received by Almeda (or the private respondents) from the 340 square-meter
portion of the subject lot since 1973 up to the present. The aggregate amount of
these rentals could be more than P211,400.00. This contention is untenable.
The Civil Code provides:
Article 2132. By the contract of antichresis the creditor acquires the right to receive the
fruits of an immovable of his debtor, with the obligation to apply them to the payment of the
interest, if owing, and thereafter to the principal of his credit.
Article 2134. The amount of the principal and of the interest shall be specified in
writing; otherwise, the contract of antichresis shall be void.

There is no provision in the disputed document specifically authorizing Almeda to

receive the fruits of the land in question with the obligation to apply them to the
payment of interest if any was due, and to the principal of the alleged loan. The
instrument also does not fix the amount of P80,000.00 as the petitioners principal
obligation.
Alvarez also stresses that she remained in actual possession of the subject
property and says this possession has given rise to the presumption of an equitable
mortgage. That presumption cannot override her own judicial admission that
Almeda was the new owner of the property, having bought it from her way back in
1973. If Alvarez was indeed in possession, it was because the property had been
leased to her by Almeda, who in fact later sued her for its recovery and payment of
back rentals.
There is no merit in the private respondents submission that the decision of the
respondent court has already become final and executory. The petitioner received
that decision on May 5, 1993, and so had until May 20, 1993, to file a motion for new
trial or reconsideration. The registry receipt and the envelope containing her motion
disclose that it was mailed on May 14, 1993, well within the period to stay
enforcement of the judgment under review.
The private respondents contention that the petitioner failed to comply with Par.
4 of Circular 1-88 is also untenable. The Verification accompanying the petition
clearly states the material dates, i.e., the date of receipt of the questioned decision,
the date of filing of the motion for new trial and/or reconsideration, and the date of
receipt of the order denying such motion.
Our conclusion is that the respondent Court of Appeals committed no error in
sustaining the finding of the Regional Trial Court of Naga City that the document
executed between Josefa Almeda and Asuncion Juanir Vda. de Alvarez was a deed
of sale and not an equitable mortgage.
ACCORDINGLY, the petition is DENIED, with costs against the petitioner. It is
so ordered.

[No. 4061. December 20, 1907.]

MANUEL AND PEDRO TAGUINOT, plaintiffs and appellants, vs.THE
MUNICIPALITY OF TANAY, defendant and appellee.

1.TITLE WITHOUT A CLAIM OF DOMINION..No error is committed by considering

that both the principal and the heirs, the present plaintiffs, have never had the
possession and management of the land which is the subject of the complaint, if,
as a matter of fact, neither proof nor offer thereof appears in the record regarding
the material act of possession, at the present or any other time, on the part of the
principal or of his children, the present plaintiffs, beyond the right inherent to
the title and the proceedings for obtaining possession instituted in consequence
of the issue of the title, which possession was, however, immediately followed by
the relinquishment and transmission of the same and of the title in favor of the
defendant who ever since, according to the uniform testimony of many witnesses,
has quietly and peacefully enjoyed the possession and usufruct of the land; no
proof was offered nor any attempt made to prove that said possession resulting
from the disturbance of some other possession dated back more than a year prior
to the presentation of the complaint, as claimed herein.
2.VALUE AND EFFICIENCY OF A PRIVATE DOCUMENT.Neither was there error in
admitting the authenticity and validity of the private document, Exhibit G, of the
 defendant, said to have been executed and signed by the principal of the
plaintiffs, as a confession made by him that the ownership of the land did not
actually pertain to him but to the defendant, because the private document in
question was legally acknowledged at the trial and the signature appearing
therein duly recognized, the authenticity thereof not having been impugned; the
following reasons contained in the judgment appealed from are in every way in
accordance with the law and the merits of the case:

() "It is a settled rule of the supreme court of Spain that private documents
not impugned as false, and attested by eyewitnesses, are admissible in evidence,
even though the same may not have been ratified by the obligor, by reason of his
death. (Decisions of March 2, 1868, and May 31, 1873.)
(b) "Although private documents legally acknowledged can not, as a general
rule, prejudice a third party who has taken no part m the execution thereof, it is
not the same, however, with regard to those who signed them and their legal
representatives who are bound thereby "(art. 1225, Civil Code), because
according to a decision of the supreme court of Spain dated February 17, 1875,
obligations contracted by parents are transmitted to and binding on the children.
(c) "Section 282 of the Code of Procedure in Civil Actions reads: 'The
declaration, act, or omission of a deceased person, having sufficient knowledge of
the subject, against his pecuniary interest, is admissible as evidence to that
extent against his successor in interest.'
(d) "The declaration of the principal of the plaintiffs, stated in a private
document duly authenticated by the person who drew it up and by those who
witnessed its execution, constitutes a valid proof that, in this question, the said
principal acted simply as agent of the community of residents of the defendant
town, and, accordingly, the ownership of the hacienda pertained to said
community."
3.ESTOPPEL.No error is committed by ignoring the estoppel against the defendant
entity because the fact that the latter stated in. a preliminary report, in
connection with the issuing of the title to the principal of the .plaintiffs, that the
examination and survey of the places denounced by him had been performed, and
that they were in accordance with his petition; this is not a repudiation of
acknowledged acts, when the same are not inconsistent with the fact that the
designation and petition made by the said principal of the plaintiffs were not for
himself but for the municipality for which he served as a directorcillo, according
to the testimony of the witnesses offered by the plaintiffs themselves.
 And no error was committed by the court below in dismissing the complaint, even
though the defendant did not ask, as counterclaim or cross complaint, the
cancellation of the title of ownership to the hacienda in question, nor yet because
the same was not previously and expressly declared, for no. such necessity exists
or is required by the law; the dismissal rests upon the entire absence of dominion,
and even of possession, and on account of the lack of proof of acts of dominion and
possession tending to confirm the title.

APPEAL from a judgment of the Court of First Instance of Rizal.

The facts are stated in the opinion of the court.
E. Ricafort, for appellants.
B. Revilla, for appellee.

ARELLANO, C. J.:
The result upon the hearing of this appeal is
That the plaintiffs herein, as the lawful heirs of Juan Taguinot, their late father,
who died in March, 1890, instituted proceedings for the recovery from the defendant
of a tract of land with an area of 92 hectares 83 ares and 13 centares in the places
named Tulay, Batlag, Balidbiran, Inalisan, Maytambo, and Marulas, within the
jurisdiction of the municipality of Tanay, basing the same on the fact that their
father had acquired it as vacant Crown land, and that the aforesaid municipality
has held the property for more than one year before the date of the complaint, 24th
of February, 1904, depriving them of the possession thereof.
That the defendant, when answering the complaint, denied the ownership and
possession claimed by the Taguinot family, and stated that the land had been
acquired with the money of the residents of the town, Juan Taguinot having acted
when acquiring the same as agent thereof.
That the plaintiffs by merely presenting a copy of the instrument made for the
sale by the Government of said tract of vacant land in favor of Juan Taguinot, and a
plain copy of the title issued by the state in his favor, considered their case proven;
the allegation that the defendant had retained the land for more than one year prior
to the date of the complaint was not proven.
That as documentary evidence the defendant offered the original title issued by
the Government on the 8th of February, 1887, in favor of Juan Taguinot, the same
having been registered in several departments of the Government, including the
provincial government of Morong, to which Tanay belonged; this title, however, upon
being forwarded to said town in order that the grantee might take possession of the
land, was retained by Orispulo Tanjuatco, then the gobernadorcillo of the pueblo,
who issued to Taguinot a copy thereof, which is the one now offered by the plaintiffs,
stating in said copy that he retained the original "for such purposes as might be
expedient;" and in addition to the above, the defendant has offered as evidence a
document signed by Juan Taguinot on the 10th of May, 1887, by which he
relinquished the dominion and title in favor of the people of Tanay, at whose
expense and by whose order he acquired the land, and engaging to execute a public
instrument deeding and conveying the property to the town; the said instrument
was made in duplicate, one copy of the same being written in Tagalog and drawn up
on stamped paper, and the other copy in Spanish, on plain paper, is offered as
evidence herein; and, finally, the defendant has brought a great number of
witnesses who have testified regarding the acquisition made by Juan Taguinot on
behalf and at the expense of the town of Tanay, for which he acted merely as agent
for the possession and management of the land for the municipality, which was the
only authority granting concessions to the residents for the utilization of forest
products within the limits thereof; and, as to the preservation- of the title filed with
the office of the municipality, the gobernadorcillos and municipal capitanes who
succeeded each other in the government took charge of the same as a thing which
belonged to the town.
That the court dismissed the complaint without any special ruling as to costs,
from which decision the plaintiffs appealed and filed the present bill of exceptions,
in which the following errors are charged, that
"I.
"The court erred when holding that both Juan Taguinot, the principal of the plaintiffs, as
well as the latter, had never had the possession and management of the land which is the
subject of the complaint, but that, on the contrary, it was the defendant who, from the time
when title was issued to the present day, was in possession thereof.

"II.
"The court erred when admitting the authenticity and validity of the private document,
Exhibit B, of the defendant, which is said to have been executed and signed by Juan
Taguinot as a confession that the ownership" of the land in question, in reality, did not
appertain to him but to the defendant.
"III.
"The court erred when considering that there exists an express mandatory obligation or
contract for the purchase of the hacienda in question between the community of the
residents of Tanay as principal, and the principal of the plaintiffs, Juan Taguinot, as agent.
"IV.
 "The court erred when not considering the estoppel which existed in favor of the
plaintiffs as against the defendant entity, in that at no time can it deny the right of
ownership which Juan Taguinot and now his heirs,.the present plaintiffs, have to the land
in question.
"V.
"The court erred by dismissing the complaint when the defendant had not recommended
nor asked in the form of a counterclaim or cross complaint the cancellation of the title of
ownership to the hacienda in question made out in the name of Juan Taguinot, without an
express declaration having been previously made by the court in. regard to the cancellation
of said title.
"VI.
"Finally the court erred by not entering judgment in favor of the plaintiffs as prayed for
by them in the complaint."

The court below has not committed the first alleged error because the record
contains neither proof nor an offer of proof in support of the allegation of actual pos-
session by Juan Taguinot or by his sons, the present plaintiffs, beyond the right
inherent in the title and the proceedings for obtaining possession instituted on the
9th of May, 1887, immediately followed by the relinquishment and transmission of
the same and of the title by virtue of which the possession had been given him on
behalf of the municipality of Tanay, which ever since, according to the uniform
testimony of a large number of witnesses, has quietly and peacefully enjoyed the
possession and usufruct of the land without any proof having been offered or
attempted, that this possession, resulting from the disturbance of some other
possession, dated more than a year prior to the presentation of the complaint.
Neither has the court erred in the second and third assignment, because the
private document referred to in the suit has been accepted and the signature
appearing therein allowed, no objection having been offered thereto on the ground of
its falsity.
The bases of the judgment appealed from are in every way in accordance with the
law and the merits of the case:

" (1) It is a settled rule of the supreme court of Spain that private documents not
impugned as false, and attested by eyewitnesses, are admissible in evidence even though
the same may not have been ratified by the obligor, owing to his death. (Decisions of Mar. 2,
1868, and May 31, 1873.)
" (2) Although private documents legally acknowledged can not, as a general rule,
prejudice a third party who has not taken a part in the execution thereof, it is not the same,
however, with regard to those who signed them and their legal representatives who are
bound thereby (art. 1225, Civil Code), because according to a decision of the Supreme Court
dated February 17, 1875, obligations contracted by the parents are transmitted to and
binding on the children.
" (3) Section 282 of the Code of Procedure in Civil Actions reads: 'The declaration, act, or
omission of a deceased person, having sufficient knowledge of the subject, against his
pecuniary interest, is admissible as evidence to that extent against his successor in
interest.'

" (4) The declaration of Juan Taguinot, in a private document duly authenticated by the
person who drew it up and by those who witnessed its execution, constitutes a valid proof
that, in this question, Juan Taguinot acted simply as an agent of the community of
residents of the town of Tanay, and in such case the ownership of the hacienda of Tulay
pertained to the said community. (B. of E., 7 and 8.)"

Nor has the court committed an error with respect to the fourth assignment of
error, because the municipality of Tanay did not repudiate its own action, in a
preliminary report concerning the granting of title to Taguinot, by stating that the
examination and survey of the places designated by the latter had been performed.
All of such facts are not inconsistent with the fact that the designation and petition
made by Taguinot were not for himself but on behalf of the municipality which he
served as a directorcillo, according to the testimony of witnesses offered by the
plaintiffs themselves.
As to what is termed the fifth error, it would rather be error to permit the
dismissal of the complaint to depend upon the necessity of previously canceling the
title which appears in the name of Taguinot, and upon the necessity of requesting
such cancellation under the form of a counterclaim, because under the law neither
necessity exists, and the dismissal was based upon the complete absence of. actual
dominion, and, further, because of the lack of possession and of evidence of acts of
dominion and possession to confirm the title; hence no error has been committed by
not entering judgment in favor of the plaintiffs.
In view of the foregoing, the judgment appealed from is hereby affirmed, with the
costs of this instance against the appellants, and it is so ordered.
 G.R. No. 95089. August 11, 1997. *

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NICOMEDES FABRO,

FRANCISCO DIMALANTA, AMADO ALCALA, WILLIAM HOGE and JOHN
DOE, accused, NICOMEDES FABRO, accused-appellant.

Criminal Law; Constitutional Law; Preliminary Investigations; Extrajudicial

Confessions; Words and Phrases; A confession is defined as a declaration made voluntarily
and without compulsion or inducement by a person, stating or acknowledging that he has
committed or participated in the commission of a crime.A confession is defined in
jurisprudence as a declaration made voluntarily and without compulsion or inducement by
a person, stating or acknowledging that he has committed or participated in the commission
of a crime. But before it can be admitted in evidence, several requirements have to be
satisfied.

Same; Same; Same; Same; Requisites for the Admission of Confessions.In

jurisprudence, no confession can be admitted in evidence unless it is given: 1. Freely and
voluntarily, without compulsion, inducement or trickery; 2. Knowingly based on an effective
communication to the individual under custodial investigation of his constitutional rights;
and 3. Intelligently with full appreciation of its importance and comprehension of its
consequences. Once admitted, the confession must inspire credibility or be one which the
normal experience of mankind can accept as being within the realm of probability.
 Same; Same; Same; When all the requirements for the admission of confessions are met
and the confession is admitted in evidence, the burden of proof that it was obtained by undue
pressure, threat or intimidation rests upon the accused.A confession meeting all the
foregoing requisites constitutes evidence of a high order since it is supported by the strong
presumption that no person of normal mind will knowingly, freely and deliberately confess
that he is the perpetrator of a crime unless prompted by truth and conscience. When all
these requirements are met and the confession is admitted in evidence, the burden of proof
that it was obtained by undue pressure, threat or intimidation rests upon the accused.

Same; Same; Same; Same; Right to Counsel; The president of a local Chapter of the
Integrated Bar of the Philippines is an independent counsel.The Constitution further
requires that the counsel be independent; thus, he cannot be a special counsel, public or
private prosecutor, counsel of the police, or a municipal attorney whose interest is
admittedly adverse to that of the accused. Atty. Jungco does not fall under any of said
enumeration. Nor is there any evidence that he had any interest adverse to that of the
accused. The indelible fact is that he was president of the Zambales Chapter of the
Integrated Bar of the Philippines, and not a lackey of the lawmen.

Same; Same; Same; Same; Evidence; A high degree of proof is needed to overthrow the
presumption of truth in the recitals contained in a public instrument executed with all the
legal formalities.After the prosecution has shown that the confession was obtained in
accordance with the aforesaid constitutional guarantee, the burden of proving that undue
pressure or duress was used to obtain it rests on the accused. In Antillon vs. Barcelon, the
Court imposed a high degree of proof to overthrow the presumption of truth in the recitals
contained in a public instrument executed with all the legal formalities.

Same; Same; Same; Same; Murder; Denial; When the evidence for the prosecution
convincingly connects the crime and the culprit, the probative value of the denial is
negligible.The defense claims that this weak identification by Beck strengthened
appellants alibi, which is actually and more accurately a denial in view of appellants
admission that he was at the scene of the crime. However, giving it a different name does
not increase its probative value. A denial, like other defenses, remains subject to the
strength of the prosecution evidence which is independently assessed. When the evidence
for the prosecution convincingly connects the crime and the culprit, the probative value of
the denial is negligible. Otherwise, credibility of testimonies and their evidentiary weight
come into play. The well-settled rule is that the assessment by the trial court of credibility
and weight of evidence is accorded the highest respect and will not be disturbed on appeal
in the absence of any clear showing that the trial court overlooked, misunderstood or
misapplied some facts or circumstances of substance which would have affected the result of
the case.

Same; Same; Same; Same; Recantations; Repudiation and recantation of confessions

which have been obtained in accordance with the Constitution are looked upon with disfavor
as unreliable.In light of this confession, the denial is actually a belated retraction of said
confession. The rule in this jurisdiction is that repudiation and recantation of confessions
which have been obtained in accordance with the Constitution are looked upon with
disfavor as unreliable. They have negligible probative weight.

Same; Murder; Evidence; Hearsay Rule; While the name of the accused which was
supplied by another person to a witness may be considered hearsay, the formers identity
which the said witness personally knew is not.The defense claims that the identification of
appellant was hearsay because appellants name was allegedly given to Witness Beck by a
certain Eduardo Ragonton who, however, was not presented as a witness. We cannot
sustain this. The fact remains that Witness Beck was able to identify appellant in open
court because he had seen the latters face that fateful night. While Beck may not have
known the name of the appellant, he was certain about the latters identity. Indeed,
appellants name which was supplied by another person to Witness Beck may be considered
hearsay; but appellants identity which the said witness personally knew is not.

Same; Same; Conspiracy; There is conspiracy where the acts of two or more accused
show that they were animated by the same purpose and were united in their execution.The
acts of the accused show that they were animated by the same purpose and were united in
their execution. When, by their acts, two or more persons proceed toward the
accomplishment of the same unlawful objecteach doing a part so that their acts though
apparently independent were in fact connected, indicating a closeness of formal association
and a concurrence of sentimentconspiracy may be inferred.

Same; Same; Aggravating Circumstances; Evident Premeditation; Reward; The

aggravating circumstances of evident premedita-tion and offer of money, reward or promise
are not incompatible and may be appreciated together, one being independent of the other.
That the crime was committed in consideration of a price has been satisfactorily shown by
appellants confession. From the confession also, evident premeditation is manifest from the
fact that on April 10, 1987, appellant was approached and hired by Dimalanta to kill the
victim; that the appellant clung to his determination to kill the victim even after an
unsuccessful first attempt on April 11, 1987 at the D & E Fast Food Restaurant; and that a
sufficient lapse of time had passed giving the appellant a chance to reflect upon the
consequences of his act. In U.S. vs. Manalinde, the Court held that the aggravating
circumstances of evident premeditation and offer of money, reward or promise are not
incompatible and may be appreciated together, one being independent of the other.

Same; Same; Same; Treachery; There is treachery where it is shown that the accused,
after several days of observing the movements of the victim, shot the latter while he was
asleep.Treachery is shown by the fact that appellant, after several days of observing the
movements of the victim, shot the latter while he was asleep. The means of execution (1)
gave the person attacked no opportunity to defend himself or to retaliate; and (2) showed
that such method was deliberately or consciously adopted.

Same; Same; Same; Where three aggravating circumstances are proven, only one will be
appreciated to qualify the killing to murder and the two others will be used only as generic
aggravating circumstances.Although all three circumstances (price, premeditation and
treachery) were proven, only one will be appreciated to qualify the killing to murder and the
two others can be used only as generic aggravating circumstances.

APPEAL from a decision of the Regional Trial Court of Olongapo City, Br. 72.

The facts are stated in the opinion of the Court.

PANGANIBAN, J.:

The 1987 Constitution guarantees persons undergoing custodial investigation the

rights to remain silent and to have competent and independent counsel. These
rights cannot be waived except in writing and in the presence of counsel. The
Constitution impels strict compliance with these requirements because a confession
of guilt given during such investigation constitutes formidable evidence against the
accused on the principle that no one will knowingly, freely and deliberately admit
authorship of a crime unless prompted by truth and conscience, particularly where
the facts given could have been known only by appellant. On the other hand, any
allegation of force, duress, undue influence or other forms of involuntariness in
exacting such confession must be proven by clear, convincing and competent
evidence by the defense. Otherwise, the confessions full probative value may be
used to demonstrate the guilt of the accused beyond reasonable doubt.

Statement of the Case

These doctrines are applied by the Court in deciding this appeal from the
Decision of the Regional Trial Court of Olongapo City, Branch 72, in Crim. Case
1 2

No. 364-87, finding the accused guilty of murder and sentencing them to reclusin
perpetua.

In an Information dated June 11, 1987, Second Assistant Fiscal of Olongapo City,
Jesus P. Duranto, charged Nicomedes Fabro, Francisco Dimalanta, Amado Alcala,
William Hoge and a certain John Doe with murder committed as follows:

That on or about the twelfth (12th) day of April 1987, in the City of Olongapo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping one another, accused Nicomedes Fabro armed
with a gun, with intent to kill and with treachery, evident premeditation and in
consideration of promise of reward, did then and there wilfully, unlawfully and feloniously
assault, attack and shot (sic) therewith one Dionisio Joaquin and as a result thereof, the
latter suffered shock and Hemorrhage Massive, Secondary to Gun Shot Wound which
directly caused his death shortly thereafter. CONTRARY TO LAW: With the qualifying
circumstances of treachery, evident premeditation and reward. 3

On August 10, 1987, Dimalanta and Appellant Fabro, with the assistance of
Counsel de oficio Romeo C. Alinea, pleaded not guilty. On September 8, 1987,
Accused Alcala entered the same plea. The other two accused, William Hoge and
John Doe, were never arrested or arraigned.
 In the course of the trial, both Accused Dimalanta and Alcala jumped bail. Thus, 4

only appellant was presented as witness by the defense.

On June 25, 1990, the trial court rendered its assailed Decision, the dispositive
portion of which reads:

WHEREFORE, premised on all the foregoing consideration, the Court finds accused
NICOMEDES FABRO, FRANCISCO DIMALANTA and AMADO ALCALA guilty beyond
the shadow of a doubt of the crime of MURDER as charged in the information, with three
aggravating circumstances and pursuant to Article 248, and hereby sentences them (to) the
maximum penalty of death. However, with the abolition of death penalty, accused shall
suffer reclusion perpetua, with costs against the accused. The Court orders the accused
collectively to indemnify the heirs of Dionisio Joaquin (in) the sum of P30,000.00. 5

On June 29, 1990, a Notice of Appeal direct to the Supreme Court was filed in the
trial court in view of the penalty imposed, reclusin perpetua. As Dimalanta and
Alcala jumped bail during the proceedings before the court a quo, their appeal is
deemed dismissed pursuant to Rule 124, Section 8 of the Rules of Court and 6

Supreme Court Administrative Circular 2-92. Hence, only the appeal of Fabro will
7

be ruled upon. References to Dimalanta and Alcala in this Decision are made only
7-a

to complete the narration of the case, and thus will affect only Fabro.

The Facts
Version of the Prosecution

The prosecution presented five witnesses: (1) Dr. Richard Patilano who conducted
the autopsy on the remains of the victim; (2) Sgt. Felipe Bolina, the police
investigator; (3) An-thony Beck, companion of the victim; (4) Conrado Joaquin, the

victims father; and (5) Atty. Isagani Jungco, the IBP President (Zambales Chapter)
who was presented as rebuttal witness. Among the documentary evidence
submitted were the sworn statements of appellant, Beck, Dimalanta and Joaquin,
and the joint affidavit of Sgts. Bolina and Lappay. The prosecutions version of the
facts, as summarized by the Solicitor General in the Appellees Brief, is as follows:
8

Sometime in the second week of April, 1987, a strike was held by workers on the premises
of the Casa Blanca, located at Barrio Barretto, Olongapo City. Dionisio Joaquin, the victim,
was one of organizers thereof. He sought the assistance of friends, among whom was
Anthony Beck, a stevedore and resident of Olongapo City (pp. 28-31, TSN, May 24, 1988).

At about 6:00 P.M. on April 11, 1987, Joaquin and Beck were at Whisky Bar fronting the
Casa Blanca, at Barrio Barretto, Olongapo City. They were conversing while resting at the
veranda of said Whisky Bar, fronting the Casa Blanca where a picket was being conducted
by their co-strikers. Both had fallen asleep, as they lacked sleep the previous nights, on a
chair near each other with their feet resting on the veranda railings (pp. 39-46, ibid.).

Anthony Beck fell asleep at about 4:00 oclock in the early morning of April 12, 1987.
Shortly thereafter, at about 5:00 to 5:30 in the morning, he was awakened by gun report.
Opening his eyes, he saw Joaquin dead, with a single bullet wound on the forehead. Blood
was oozing from Joaquins head. Seeing a man running away from where he and Joaquin
were seated, Anthony Beck then gave chase. The fleeing man turned left on an alley and
then right on another. Beck lost him at the second turn. He saw an old man who inquired
why he was chasing the fleeing man. Beck told the old man of the shooting incident. Then
and there the old man told Beck that the man he (Beck) was running after was Badong,
later identified as the accused Nicomedes Fabro (pp. 54-62, ibid.).

Police officers from the Olongapo Metrodiscom, led by Sgt. Felipe Bolina, proceeded to
Fabros residence at about noon that same day. They failed to apprehend Fabro as he was
allegedly then asleep. The accused (Fabro) was surrendered by his sister to the CIS the
following day (pp. 12-14, TSN, July 18, 1989).

At 6:00 oclock that night, April 13, 1987, Fabro was interrogated by CIS personnel
and grilled for about two (2) hours (pp. 16-19, supra).

At that juncture, CIS investigator Santiago requested Fabro to sign a document,

which turned out to be his extra-judicial confes-sion/admission (Exh. F). Accused
Fabro (claims that he) was not allowed to read the document, neither were its
contents read to him (pp. 24-26). A certain Atty. Isagani Jungco was however
present when he signed the document (p. 28, supra; pp. 2-18, TSN, March 19, 1990).

While it appears from the transcript that co-accused Francisco Dimalanta

executed an extra-judicial statement (confession) (pp. 24-25, TSN, Feb. 2, 1988),
Dimalanta himself was never presented in court as defense witness, as both accused
Dimalanta and Alcala jumped bail during trial.

Version of the Defense

The defense presented its only witness in the person of the appellant. No
documentary evidence was submitted. The counter-statement of facts, as narrated
in the six-page Brief for the Appellants, reads as follows:
9

The version of the defense as testified to by Nicomedes Fabro was that at two oclock in the
morning of April 12, 1987, he stopped ferrying passengers and slept on a sofa at the
Whiskey River Club, located on a terrace of said club. When he laid down and rested at the
sofa, there was also another person who was seated on the sofa and was more or less one
arms length away from him. The man was then asleep but (Fabro) only knew his face but
not his name. While sleeping, he was awakened by the shout of one of his companion saying
may binaril, may binaril. The shout was very loud and after shouting the man ran
towards Olongapo City. Accused according to him was standing and looking at the bloodied
person who was more or less two arms length away from him. The bloodied person was at
the balcony of the Whiskey River Club.

Accused was surrendered to the CIS by his sister on April 13, 1987. Nicomedes Fabro
claimed that he was made to sign a document without allowing him to read the contents.
According to accused Fabro, investigator Santiago told him that if he will not sign the
document something will happen to him. Atty. Isagani Jungco was present when he signed
his name, however, the document was already prepared and ready for signature.

Trial Courts Findings

In its Decision, the trial court leaned towards the version of the prosecution: 10
From the evidence presented by the prosecution, both testimonial and documentary, the
Court finds these facts to be indubitable. That in the early morning of April 12, 1987,
between 5:00 and 5:30, the deceased Dionisio Joaquin who was sleeping side by side with
Anthony Beck on the terrace of the Whiskey Bar, opposite Casa Blanca, Barrio Barretto,
Olongapo City, was shot in the head at close range by accused Nicomedes Fabro. The
deceased was bleeding with blood oozing from the forehead when found by some Olongapo
police and Sgt. Bolina, a PC soldier who arrived at the scene. The deceased was found on a
chair, his feet raised on the veranda with his head inclined back.

xxx xxx xxx

Anthony Beck who was asleep side by side with the deceased was awakened by a shot
and even heard the kalansing of the bullet, chased the person whom he saw running away
after the shot was fired. He testified that when he was chasing the man he did not yet know
his name but he could identify him. Beck made the identification when accused Fabro was
mixed with other people getting clearance at 164th PC Company Office. Beck positively
identified the accused when he testified in Court.

xxx xxx xxx

Beck testified that Dionisio Joaquin was an organizer of a labor organization and that
the latter invited the former to support the strikers.

Sgt. Bolina thru his investigation learned the identity of the man who was running away
from the scene of the crime as Nicomedes Fabro. Upon learning the identity of the suspect,
Bolina went to the parents of Fabro whom he knew personally and requested that Fabro be
surrendered to him. Bolina learned later that the suspect was surrendered to the CIS. After
the CIS investigation, Nicomedes Fabro gave his confession in the presence of Atty. Isagani
Jungco who was called to assist the suspect. In his confession, Fabro implicated Francisco
Dimalanta and Amado Alcala.

From reliable information received by Sgt. Bolina and the other policemen, they learned the
identity of two other suspects, namely: Francisco Dimalanta and Amado Alcala. From
unconfirmed reports these two Dimalanta and Alcala participated in the killing of Dionisio
Joaquin. The confession of Fabro confirmed that indeed Dimalanta and Alcala were his co-
conspirator.
 xxx xxx xxx

xxxx (Sgt.) Lappay testified that he was present during the investigation of Fabro. Fabro
in his presence admitted his participation and pointed to Francisco Dimalanta and Amado
Alcala and one Ernesto de Guzman. It was in early morning of April 14, 1987 that de
Guzman and Dimalanta were apprehended along Rizal Extension, they being neighbors.
Alcala was arrested at above street.

After analyzing and weighing all the pieces of testimonial and documentary
evidence, the trial court declined to give credence to the uncorroborated claim of
appellant that he was asleep at the terrace of the Whiskey Club at the time of the
incident. The court a quo also rejected his contention that he was coerced into
signing a confession, since the solitary verbal threat allegedly made by the
investigator was vague and not backed up by the use of actual physical force. After
considering the presence of the counsel (Atty. Jungco) who assisted the appellant
and his co-accused during the custodial investigation as well as in the execution of
their respective sworn statements, the lower court admitted in evidence their extra-
judicial confessions.

The confession of Appellant Fabro was summarized by the lower court, thus:

In the confession of Nicomedes Fabro he narrated how Francisco Dimalanta offered him
P10,000.00 to kill a man, how the gun was given him and how they observed the movements
of the victim to the time of the killing. While Nicomedes Fabro did the actual shooting,
accused Alcala and Dimalanta were present awaiting the outcome of the shooting.

The confession of Dimalanta coincided in all material points with the confession of
Fabro. Dimalanta narrated how he was promised the amount P10,000 by a certain Bill
Hoge and how he was paid of P5,000.00 as initial payment and the balance to be paid after
the killing is accomplished. The P5,000.00 initial payment was shared by the three
accused.

From the foregoing, the trial court established the existence of conspiracy among
the three accused. The trial court further found the testimony of Beck unbiased,
truthful and credible. Finally, the court below held that the commission of the crime
was attended by the aggravating circumstances of treachery, evident premeditation
and consideration of price or reward.

Assignment of Errors

Appellant interposes the present appeal, faulting the trial court:

For not considering the defense of alibi when there is doubt as to the identity of the
suspect.

II

For not considering the admissions and confessions as inadmissible as violative of the
Constitution.

III

For not considering the statements and testimonies of prosecution witnesses as hearsay.

IV

For presuming that conspiracy exists.

The Courts Ruling

The appeal is not meritorious. In view of the incriminatory nature of appellants

confession, the Court will tackle the second assigned error ahead of the first.

First Issue: Admissibility of Appellants Confession

A confession is defined in jurisprudence as a declaration made voluntarily and

without compulsion or inducement by a person, stating or acknowledging that he
has committed or participated in the commission of a crime. But before it can be
11

admitted in evidence, several requirements have to be satisfied.

 Article III, Section 12 of the 1987 Constitution, which came into effect on
February 2, 1987, requires that:

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

xxx xxx xxx

(3) Any confession or admission obtained in violation of this or section 17 hereof shall be
inadmissible in evidence against him. Moreover, Article III, Section 17 of the Constitution,
guaranteeing the right of the accused against self-incrimination, provides:

SEC. 17. No person shall be compelled to be a witness against himself.

In jurisprudence, no confession can be admitted in evidence unless it is given:

1. 1.Freely and voluntarily, without compulsion, inducement or trickery; 12

2. 2.Knowingly based on an effective communication to the individual under custodial

investigation of his constitutional rights; and
13

3. 3.Intelligently with full appreciation of its importance and comprehension of its

consequences. 14

Once admitted, the confession must inspire credibility or be one which the normal
experience of mankind can accept as being within the realm of probability. 15

A confession meeting all the foregoing requisites constitutes evidence of a high

order since it is supported by the strong presumption that no person of normal mind
will knowingly, freely and deliberately confess that he is the perpetrator of a crime
unless prompted by truth and conscience. When all these requirements are met and
16

the confession is admitted in evidence, the burden of proof that it was obtained by
undue pressure, threat or intimidation rests upon the accused. 17
 Admittedly, the case of the prosecution hinges on appellants confession. The
defense maintains that the same is inadmissible for the following reasons: (1)
appellants confession was extracted under threat and intimidation; (2) the lawyers
(Atty. Jungcos) participation was only as a witness during the signing of the
prepared confession and not during the investigation or interrogation itself; and (3)
appellant was made to sign the confession without having read it and without the
presence of counsel.

As proof thereof, the defense quotes appellants statements during direct

examination: 18

Q And what did (CIS Investigator) Santiago tell you if he

. told you anything?

A. Santiago told me that if I will not sign it, something will

happen to me.

Q. But you will admit before this Court that before you
affixed your signature, the document was shown to you
by Santiago, did he not?

A. No more, I was just made to sign.

Q. Do you want to impress the Court that you just affixed

your signature without you being allowed to read the
documents or the investigator Santiago did not even read
unto you the contents of the documents?

A. No sir.

Such uncorroborated and anemic allegations are insufficient to render appellants

confession inadmissible. Rather, they appear to be a mere subterfuge designed to
impute constitutional infirmity to the conduct of the custodial interrogation.
 The more credible evidence is the rebuttal testimony of Atty. Jungco showing
adherence to the constitutional requirements. Atty. Jungco testified that after he
apprised ap-pellant of his constitutional rights to be silent and to have counsel
during the investigation, the latter waived them in his (Atty. Jungcos) presence.
Thus: 19

ATTY. DE DIOS:

Q Atty. Jungco, I would like to bring your attention to April

13, 1987, do you remember having been called to assistan
accused detained at the CIS Office, Camp Maquinaya,
Olongapo City?

A Yes, I was then the President of the IBP of Zambales-

Olongapo Chapter and the CIS people approached me if I
will help them in the waiver, to be present when waiver
will be signed by the person before the CIS.

Olongapo Chapter and the CIS people approached me if I will help them in the
waiver, to be present when waiver will be signed by the person before the CIS.

Q Waiver of what?

A Waiver of the right to counsel and the presence of counsel

during the taking of his investigation.

xxx xxx xxx

Q To refresh your memory, Atty. Jungco, I am showing you a

statement which has been marked as Exhibit F for the
prosecution, please go over this before I ask my question.

A (Witness going over the document handed to him) I

 recognize this statement.

xxx xxx xxx

Q Can you explain what is this Pagpapatunay wherein you

are a witness to that?

A I was present when Nicomedes Fabro during the time that I

was there signed his waiver of the right to have counsel at
the time of the taking of his testimony.

Q Now, it is the waiver of the accused to counsel, will you

please tell the Court if you advised him of his rights and
effect of such waiver?

xxx xxx xxx

A Before he signed this waiver, I apprised him of his rights

under the Constitution, that is, the right to be silent, the
right to counsel and that any statement that he will make in
any investigation may be used for or against him in any
court of law and after that, I asked him if despite his right
to have counsel present during the taking of his testimony,
he still waives that right to counsel and he said Yes and
he signed that statement there. As a matt er of fact, in this
Pagpapatunay, the last sentence Pumirma ako x x x x sa
harapan ni Atty. Isagani Jungco, IBP President. (Sgd)
Nicomedes Fabro.

Q Atty. Jungco, was that advice given in Tagalog or in

English?

A It was given in Tagalog and in English.

Q Did he understand your admonition or your reminders
concerning his right?

A He understood because he said Yes.

xxx xxx xxx

Q Thank you. Atty. Jungco, at the last page and this is the end
of his confession, there is a signature of Nicomedes Fabro,
were you present when he signed the last page of his
testimony?

A At the time that he signed this, I was there present bec ause
I was talking then with their Chief there which is I think
Capt. Flores and before I left, this statement was
completed.

ATTY. DE DIOS:

Q Thank you. Atty. Jungco, when you signed this first page
and when Nicomedes Fabro signed this waiver, do you
remember whether or not there was already a statement
prepared?

xxx xxx xxx

A At the time that he signed this, the investigation has not yet
began because precisely, I was asked to be present because
of the waiver. And after he signed his waiver and I signed it
also in his presence, I was talking with Capt. Flores and
they were taking his testimony at that time. Then,
afterwards, before I left.
This adherence to the Constitution is further confirmed by the confession itself. It
starts off with a Pasubali wherein appellant was informed of his constitutional
20

rights and a Pagpapatunay which confirmed that he understood said rights. Both
parts also serve as a written proof of appellants waiver in fulfillment of the
requirements of the Constitution.

As pointed out by the Solicitor General, the testimony of Atty. Jungco was replete
with details as to how he informed and warned appellant of the consequences of the
waiver of his right to counsel. Thus, he argues that there is no room for doubt that
appellant was indeed assisted by counsel when he waived his right to counsel
during the time that his statement was taken, and not only at the time he signed it
as claimed by appellant.

The Constitution further requires that the counsel be independent; thus, he

cannot be a special counsel, public or private prosecutor, counsel of the police, or a
municipal attorney whose interest is admittedly adverse to that of the accused. Atty.
Jungco does not fall under any of said enumeration. Nor is there any evidence that
he had any interest adverse to that of the accused. The indelible fact is that he was
21

president of the Zambales Chapter of the Integrated Bar of the Philippines, and not
a lackey of the lawmen.

Doubts that Atty. Jungcos assistance to appellant was not independent since he
was engaged by the CIS Investigators are further dispelled by the fact that he was
sent to the CIS Office by Sgt. Bolina who personally knew appellants parents and
22

was a friend of his brother-in-law. He took the trouble to ensure that a lawyer was
23

present during the taking of appellants statement, even though he (Bolina) would
not be there. Ineluctably, appellant, by his uncorroborated, puerile and matter-of-
fact claim, failed to overcome the presumption that Atty. Jungco regularly
performed his official duty as an officer of the court in giving assistance to persons
undergoing custodial interrogation. Upon the other hand, the overwhelming
24

evidence is that he did perform such duty faithfully. After the prosecution has
shown that the confession was obtained in accordance with the aforesaid
constitutional guarantee, the burden of proving that undue pressure or duress was
used to obtain it rests on the accused. In Antillon vs. Barcelon, the Court imposed
25 26

a high degree of proof to overthrow the presumption of truth in the recitals

contained in a public instrument executed with all the legal formalities.

In People vs. Pia, the Court held that where the accused failed to present
27

credible evidence of compulsion or duress or violence on their persons, e.g., where

they failed to complain to the officers who administered the oaths; where they did
not institute any criminal or administrative action against their alleged
intimidators for maltreatment; where there appeared to be no marks of violence on
their bodies; and where they did not have themselves examined by a reputable
physician to buttress their claim, their confession should be considered voluntary. 28

Appellant has miserably failed to present any convincing evidence to prove the
use of force or intimidation on his person to secure his confession. The records show
that appellants confession was sworn and subscribed to before Fiscal Jesus
Dorante, to whom he could have and should have voiced his objection, if any. Quite
the contrary, Fiscal Dorante certified that he personally examined appellant and
was convinced that the latter gave his statement freely and voluntarily and that he
understood the contents of his confession. Appellants failure to voice out his
complaints is tantamount to a manifestation that indeed he waived his right to
counsel in the presence of Atty. Jungco in accordance with the Constitution. His 29

assertion on appeal that he was intimidated into giving said confession rings hollow
and too late. 30

This claim is further belied by appellants lack of complaint, or even any mention
thereof, to his sister and relatives who visited him at Camp Maquinaya where he
was detained for one year. This reinforces the trial courts ruling.
31

Perhaps the most telling indication that appellants confession was voluntary is
the fact that said confession contained exculpatory claims (Question Nos. 5, 7, 8 and
32

9) and facts that only the appellant could have known (Question Nos. 5, 6, 7, 8, 9, 14,
15, 17, 20 and 29). 33
Thus, we can only affirm the following findings of the trial court:

Neither can the Court accept that accused Nicomedes Fabro was only forced into giving a
confession. The Court cannot even for a while believe that he was only forced to give his
statement when the accused himself stated that he was not even once hurt by any of the
CIS investigators. In (fact), he was even told to rest.

Atty. Alinea:

Q And immediately after your sister left, your interrogation

by the CIS agents started, that is correct or it is not?

A No, sir I was asked to clean.

Q What portion or portions of the CIS headquarters were you

ordered to clean?

A The ceilings.

Q And after cleaning the ceiling of the CIS headquarters,

what was the next order to you?

A They asked me to rest. (TSN, July 18, 1989, pp. 15-16.)

xxx

Q And after cleaning the car of Capt. Flores, what was your
next chore or activity?

A I cooked food for them.

Q And these activities became routinary and ordinary for how

 many days?

A I stayed there for a year and that was the routinary work I
did. (TSN, July 18, 1989, p. 23)

The only alleged threat to him was that Santiago told me that if I will not sign it
something will happen to me. (TSN, July 18, 1989, p. 26). Nothing was mentioned about
actual physical force used on accused. x x x
34

We hold that appellants confession was properly admitted by the trial court as part
of the prosecution evidence. Second Issue: Defense of Alibi vs. Positive
Identification

The defense argues that, although alibi is the weakest defense, easily fabricated
and concocted, nevertheless it gains strength when there is doubt as to the identity
of the suspect. Although appellant admitted that he was sleeping next to the victim
when the latter was shot, he claims that Witness Beck could not have seen the face
of the person running away from the crime scene since it was still dark at that time.
Beck had just awakened, so it would have taken some time before his eyes could
have adjusted. Thus, the defense speculates that the identification of appellant by
Beck was coached and suggested by the investigators who fetched him and
prepared his second statement.

These arguments do not inspire belief. Beck claimed that he saw appellant
running away from the scene of the shooting. In answer to the trial judges
clarificatory questions during the cross-examination, the witness replied that, when
he opened his eyes after hearing the gun report, he saw a person who immediately
ran away. Beck testified that he saw appellants face while chasing the latter,
35

although he did not catch up with appellant. Therefore, from the time he was
36

awakened until he lost the appellant during the chase, Beck saw appellants face.
Subsequently, in open court, he pointed to appellant as the man he had chased. This
fact was not lost on the defense; thus, the defense claimed that, considering the time
of the incident (5:00 to 5:30 a.m. in mid-April), there would have been insufficient
daylight to permit clear and positive identification of the culprit by the witness.

The defense claims that this weak identification by Beck strengthened

appellants alibi, which is actually and more accurately a denial in view of
appellants admission that he was at the scene of the crime. However, giving it a
different name does not increase its probative value. A denial, like other defenses,
remains subject to the strength of the prosecution evidence which is independently
assessed. When the evidence for the prosecution convincingly connects the crime
and the culprit, the probative value of the denial is negligible. Otherwise, credibility
of testimonies and their evidentiary weight come into play. The well-settled rule is
that the assessment by the trial court of credibility and weight of evidence is
accorded the highest respect and will not be disturbed on appeal in the absence of
any clear showing that the trial court overlooked, misunderstood or misapplied some
facts or circumstances of substance which would have affected the result of the case.

Becks testimony that appellant was the man he chased contravenes the
contention that appellant was sleeping one arms length away from the victim; that
appellant was only awakened by shouts that somebody was shot; and that he stayed
at the crime scene for a time during the investigation. Moreover, the denial is
directly contravened by his confession that he shot the victim.

In light of this confession, the denial is actually a belated retraction of said

confession. The rule in this jurisdiction is that repudiation and recantation of
confessions which have been obtained in accordance with the Constitution are
looked upon with disfavor as unreliable. They have negligible probative weight.
37

Thus, we agree with the trial court that appellants denial is totally
unconvincing. Appellants uncorroborated testimony is: (1) that he just happened to
be asleep at the terrace of the Whiskey Bar; (2) that appellant who resided nearby,
for no explainable reason, elected to sleep on the same veranda during the very
same night that the victim was shot; (3) that he was awakened only by the shouting
of people and not by the sound of the gunshot; (4) and finally, that he stayed at the
scene of the crime for about 30 minutes without anybody noticing that he was there
at all. 38

Third Issue: Alleged Hearsay Evidence

The defense claims that the identification of appellant was hearsay because
appellants name was allegedly given to Witness Beck by a certain Eduardo
Ragonton who, however, was not presented as a witness. We cannot sustain this.
The fact remains that Witness Beck was able to identify appellant in open court
because he had seen the latters face that fateful night. While Beck may not have
39

known the name of the appellant, he was certain about the latters identity. Indeed,
appellants name which was supplied by another person to Witness Beck may be
considered hearsay; but appellants identity which the said witness personally knew
is not.

Fourth Issue: Existence of Conspiracy

The defense raises this issue without elaborating further or offering any evidence in
support thereof. We are not persuaded. In fact, the conspiracy between appellant
and his co-accused appears indubitable. The decision of the trial court states that:

From reliable information received by Sgt. Bolina and other policemen, they learned the
identity of two other suspects, namely: Francisco Dimalanta and Amado Alcala. From
unconfirmed reports these two (,) Dimalanta and Alcala(,) participated in the killing of
Dionisio Joaquin. The confession of Fabro confirmed that indeed Dimalanta and Alcala were
his co-conspirators.

xxx xxx xxx

In the confession of Nicomedes Fabro he narrated how Francisco Dimalanta offered him
P10,000.00 to kill a man, how the gun was given him and how they observed the movements
of the victim to the time of the killing. While Nicomedes Fabro did the actual shooting,
accused Alcala and Dimalanta were present awaiting the outcome of the shooting. 40

The said decision further elaborates:

The confession of Dimalanta coincided in all material points with the confession of Fabro.
Dimalanta narrated how he was promised the amount of P10,000.00 by a certain Bill Hoge
and how he was paid P5,000.00 initial payment was shared by the three accused. 41

The acts of the accused show that they were animated by the same purpose and
were united in their execution. When, by their acts, two or more persons proceed
toward the accomplishment of the same unlawful objecteach doing a part so that
their acts though apparently independent were in fact connected, indicating a
closeness of formal association and a concurrence of sentimentconspiracy may be
inferred. 42

From appellants confession, it is clear that Dimalanta offered him money to kill
Joaquin; that, together with Alcala, they observed the movements of the victim; that
prior to the shooting, they had attempted to kill the victim at the D & E Fast Food
Restaurant; and that at the time of the shooting, on April 12, 1987, Dimalanta and
Alcala were at or near the scene of the crime, acting as lookouts and awaiting the
outcome of the killing. 43

Aggravating Circumstances

The trial court held that the following circumstances attended the killing:

1. 1.The crime was committed in consideration of a price. Dimalanta was promised

P10,000.00 by Hoge to look for a killer. P5,000.00 was actually paid. In turn
Dimalanta secured the services of the triggerman, Fabro in exchange for money.
Alcala was paid for his participation in the plan.

1. 2.With evident premeditation, the accused directly aiming the gun at a (sic) close
range; and

2. 3.Treachery, by shooting the helpless victim while asleep to insure its execution
without risk to the killer.
44

That the crime was committed in consideration of a price has been satisfactorily
shown by appellants confession. From the confession also, evident premeditation is
manifest from the fact that on April 10, 1987, appellant was approached and hired
by Dimalanta to kill the victim; that the appellant clung to his determination to kill
the victim even after an unsuccessful first attempt on April 11, 1987 at the D & E
Fast Food Restaurant; and that a sufficient lapse of time had passed giving the
appellant a chance to reflect upon the consequences of his act.

In U.S. vs. Manalinde, the Court held that the aggravating circumstances of
45

evident premeditation and offer of money, reward or promise are not incompatible
and may be appreciated together, one being independent of the other.

Treachery is shown by the fact that appellant, after several days of observing the
movements of the victim, shot the latter while he was asleep. The means of
46

execution (1) gave the person attacked no opportunity to defend himself or to

retaliate; and (2) showed that such method was deliberately or consciously adopted. 47

Although all three circumstances (price, premeditation and treachery) were

proven, only one will be appreciated to qualify the killing to murder and the two
others can be used only as generic aggravating circumstances.

However, the mitigating circumstance of voluntary surrender should also be

appreciated in appellants favor, as he surrendered to the CIS in Camp Maquinaya
on April 13, 1987, thus, offsetting one generic aggravating circumstance.
Accordingly, the proper penalty is reclusin perpetua.

WHEREFORE, the assailed Decision is hereby AFFIRMED with slight

modification, i.e., the indemnity is INCREASED to P50,000.00 in line with current
jurisprudence. 48

SO ORDERED.
 [No. 4625. December 18, 1908.]

VICENTE BRIONES, plaintiff and appellant, vs. PETRA PLATON, defendant and
appellee.

ESTATES; PARTITION; RECOVERY OF POSSESSION.Plaintiff claimed

exclusive right to certain land in possession of the defendants, a part of an estate of
inheritance, alleging that in 1903 all the members of the family agreed to a partition
which was effected in 1907, and in support of his contention produced certain deeds in
evidence. None of the defendants participated in the partition, but one of the heirs
assumed to act for the absent heirs: Held, That defendants are not bound by. such a
transaction, in which they did not take part and that plaintiff can not recover the
exclusive possession of the property.

APPEAL from a judgment of the Court of First Instance of Batangas. Powell, J.

The facts are stated in the opinion of the court.

TRACEY, J.:
This is an appeal from a judgment of the Court of First Instance of Batangas,
dismissing a complaint in an action to recover an orange grove in Tinuric in the
municipality of Tanauan. More than fifty years prior to this action, Domingo,
Castillo and his wife died owning a. tract of 25 cavanes de cabida including the land
in question, and leaving it in undivided shares among his four children. The last of
them, Domingo Castillo, died more than thirty years ago and this litigation has
arisen between descendants of the second and third degrees, the plaintiff alleging
that in 1903 all the members of the family agreed upon a partition which was
carried into effect in 1907 by certain deeds which are in evidence. It seems that
none of the defendants took part in this partition nor had they any knowledge. of it,
one witness, Epifanio Atienza, saying that, while none of the other heirs of that part
of the family were present, he, as the eldest male, assumed to represent the rest of
that branch and to divide the land for them. Apparently he held no power to that
effect,. either written or oral.

The Court of First Instance put its judgment upon the ground of prescription in
favor of the defendants, but this, we think, was error. It is plain, however, that the
defendants are not bound by an operation in which they took no part, and for that
reason the plaintiff can not succeed in recovering the exclusive possession of the
land occupied by them, which is the object of his action. Upon this ground the
judgment of the court below dismissing the action is hereby affirmed, leaving both
plaintiff and defendants to assert in a proper way whatever rights may have
originally been theirs in the property in suit, whether as tenants in common or
otherwise.

As hereby modified, the judgment is affirmed, with the costs of this instance. So
ordered.
 G.R. No. 140405. March 4, 2004. *

PEOPLE OF THE PHILIPPINES, plaintiff, vs.MAJOR EMILIO COMILING, GIL

SALAGUBANG (acquitted), MARIO CLOTARIO (acquitted), GERALDO
GALINGAN, EDDIE CALDERON (at large), BALOT CABOTAJE (at large) and
RICKY MENDOZA (at large), accused. MAJOR EMILIO COMILING and
GERALDO GALINGAN, appellants.

Criminal Law; Robbery with Homicide; To sustain a conviction for this crime, it is
enough that the killing, which is designated as homicide, has a direct relation to the
robbery, regardless of whether the latter takes place before or after the killing; As long the
killing occurs during or because of the heist, even if the killing is merely accidental, robbery
with homicide is committed.As correctly stressed by the Solicitor General, robbery with
homicide is a special complex crime. It is enough that in order to sustain a conviction for
this crime, the killing, which is designated as homicide, has a direct relation to the
robbery, regardless of whether the latter takes place before or after the killing. For as long
as the killing occurs during or because of the heist, even if the killing is merely accidental,
robbery with homicide is committed.
Same; Same; Evidence; Witnesses; Between the positive assertions of prosecution
witnesses and the mere denials of the accused, the former undisputedly deserve more
credence and are entitled to greater evidentiary value.The time-tested rule is that,
between the positive assertions of prosecution witnesses and the mere denials of the
accused, the former undisputedly deserve more credence and are entitled to greater
evidentiary value.
Same; Same; Same; Same; Res Inter Alios Acta; The res inter alios acta rule refers only
to extrajudicial declarations or admissions and not to testimony given on the witness stand
where the party adversely affected has the opportunity to cross-examine the declarant.
According to Comiling, Natys testimony showed that she was also a conspirator, thus, the
existence of conspiracy must be shown by evidence other than Natys admission. As there
was no independent proof of conspiracy except the testimony of Naty, the latters testimony
concerning appellants participation in the conspiracy was inadmissible against him. This
contention is misplaced. The res inter alios acta rule refers only to extrajudicial declarations
or admissions and not to testimony given on the witness stand where the party adversely
affected has the opportunity to cross-examine the declarant. In the present case, Natys
admission implicating appellant Comiling was made in open court and therefore may be
taken in evidence against him.
Same; Same; Same; Alibi; To be given full faith and credit, alibi must be clearly
established and must not leave any room for doubt as to its plausibility and verity. In this
case, Galingan did not meet the settled requirements of time and place. He failed to prove
that he was indeed in Novaliches at the time of the commission of the crime; his alleged
presence therein was not established by a positive declaration from an independent witness.
Likewise, the place where he claimed to be on the night of the crime was not of such
distance that it was impossible for him to be at the scene of the crime at the time of its
commission considering that either place could be reached in just about four hours by land.
The fact that he met his wife upon arrival on September 4, 1995 was likewise
inconsequential as it was two days after September 2, 1995, the date material to this case.
Alibi, in order to be given full faith and credit, must be clearly established and must not
leave any room for doubt as to its plausibility and verity.
Same; Same; Same; Witnesses; With respect to a witness in both criminal and civil
cases, evidence of his character, in order to affect his credibility, must refer to his general
reputation for truth, honesty and integrity; Personal opinions on the moral character of a
witness, being usually too general, sweeping or subjective, are excluded.The fact that a
witness is a person of unchaste character or even a drug dependent does not per se affect
her credibility. Character is frequently used to refer to ones reputation in the neighborhood.
It means the estimate attached to the individual by the community and not the qualities of
the individual as conceived by one person. With respect to a witness in both criminal and
civil cases, evidence of his character, in order to affect his credibility, must refer to his
general reputation for truth, honesty or integrity. Thus, testimonies attacking the
character of a witness for the purpose of impugning his credibility must relate and be
confined to the general reputation which such witness has in the community or
neighborhood where he lives or has lived. Personal opinions on the moral character of a
witness, being usually too general, sweeping or subjective, are excluded.
Same; Same; Same; Hearsay Evidence; Dying Declarations; The declaration of a dying
person with the consciousness of impending death may be received in any case wherein his
death is the subject of inquiry, as evidence of the cause and the surrounding circumstances of
such death; Requisites before a dying declaration may be admissible in evidence.Under
Rule 130, Section 37 of the Rules of Court, the declaration of a dying person with the
consciousness of impending death may be received in any case wherein his death is the
subject of inquiry, as evidence of the cause and the surrounding circumstances of such
death. There are four requisites which must concur in order that a dying declaration may be
admissible: (1) it must concern the crime and surrounding circumstances of the declarants
death; (2) at the time it was made, the declarant was under the consciousness of an
impending death; (3) the declarant was competent as a witness; and (4) the declaration is
offered in any criminal case for homicide, murder or parricide in which the declarant was
the victim.
Same; Same; Same; Same; Same; An ante-mortem statement is evidence of the highest
order; It is doctrinal that, when a person is at the point of death, every motive of falsehood is
silenced.Indubitably, PO3 Pastors dying declaration is complete in the sense that it was a
full expression of all that he wanted to say with regard to the circumstances of his death.
An ante-mortem statement is evidence of the highest order. It is doctrinal that, when a
person is at the point of death, every motive of falsehood is silenced. The mind is induced by
the strongest of reasons to speak the truththe declarants impending meeting with his
Creator.
Same; Same; Same; Conspiracy; The rule is, whenever homicide is committed as a
consequence or on the occasion of a robbery, all those who take part as principals in the
robbery will also be held guilty as principals of the special complex crime of robbery with
homicide.The existence of conspiracy in this case cannot be doubted. The rule is,
whenever homicide is committed as a consequence or on the occasion of a robbery, all those
who take part as principals in the robbery will also be held guilty as principals of the
special complex crime of robbery with homicide.

AUTOMATIC REVIEW of a decision of the Regional Trial Court of Tayug,

Pangasinan, Br. 51.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff.
Amado Auditor Caballero and Isidro Sta. Maria for appellant E. Comiling.
Alfonso Bince, Jr. for appellant G. Galingan.

CORONA,J.:

This is an automatic review of the decision dated September 1, 1999 of the Regional
1

Trial Court, Branch 51, Tayug, Pangasinan, convicting Maj. Emilio Comiling,
Geraldo Galingan alias Bong and Ricky Mendoza alias Leo of the crime of
robbery with homicide and sentencing them to suffer the extreme penalty of death.
The three accused were charged under an information which alleged:
The undersigned hereby accuses MAJOR EMILIO COMILING, GIL SALAGUBANG,
BONG CLOTARIO, GERALDO GALINGAN, EDDIE CALDERON, BALOT CABOTAJE and
RICKY MENDOZA @ Leo of the crime of ROBBERY WITH HOMICIDE and PHYSICAL
INJURIES, committed as follows:
That on or about the 2nd day of September, 1995, in the evening, inside the Masterline Grocery
located at Bonifacio Street corner Quezon Blvd., municipality of Tayug, province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused including
certain JOE, REY and PAUL, whose family names have not yet been known, armed with firearms
and handgrenade, aboard an owner-type stainless jeep and motorized tricycle, with intent to gain
and with the use of violence against or intimidations upon persons, conspiring, confederating and
helping one another, did then and there wilfully, unlawfully and feloniously enter the Masterline
Grocery pretending to be customers and once inside, poked their guns and intimidated the owner of
said grocery, MR. INCIONG CO, and his worker to open the drawers of the tables of said grocery and
when opened, took and carried away EIGHTY ONE THOUSAND PESOS (P81,000.00) and three (3)
pieces of Chinese gold necklace worth TWENTY SIX THOUSAND PESOS (P26,000.00), and
afterwhich the above-named accused on their way out to escape with their loot, shot and hit a
responding Tayug Policeman, PO3 ERWIL V. PASTOR, mortally wounding him on his face that
subsequently led to his untimely death, and when said accused were cornered by other responding
policemen, ran and passed to an adjacent store (Good Taste Bakery) and used it as their exit and
while there also shot, hit and mortally wounded MRS. CONCHING CO, the owner of said bakery
causing her injuries, the accused having thus performed the acts of execution which would have
produced the crime of Homicide as a consequence, but nevertheless did not produce it by reason of
causes independent of the will of the accused, and that is due to the timely and able medical
assistance rendered to the said MRS. CONCHING CO, to her damage and prejudice and also to the
heirs of PO3 ERWIL V. PASTOR.

CONTRARY to Article 294, par. 1 of the Revised Penal Code. 2

Accused Eddie Calderon and Balot Cabotaje have remained at large to this day. The
remaining accused (Comiling, Galingan, Mendoza, Salagubang and Clotario)
pleaded not guilty during their arraignment. Trial on the merits ensued thereafter.
On March 28, 1997, Mendoza escaped from detention and was thus tried in
absentia.
The records show that at sundown on September 2, 1995, Ysiong Chua, the
owner of Masterline Grocery and his helper Mario were about to close the store
when someone knocked on the door to buy some cigarettes. Masterline was located
at the corner of Quezon Blvd. and Bonifacio St. in Tayug, Pangasinan.
As soon as Mario opened the door, three masked, armed men suddenly barged
into the store and announced a hold-up. One of the robbers shoved Ysiong into the
recesses of the grocery where he threatened to kill him if he did not give them his
earnings. Ysiong retorted that he only had a small amount, which remark
apparently irked the robber who then hit Ysiongs thumb with the butt of his gun. A
simultaneous kick made the grocer fall down in pain.
As Ysiong lay prostrate on the floor, he saw the two other intruders, and a little
later the robber who hit him, ransacking the drawers of his desk. Fortunately, he
was able to quickly recover from the blows; whereupon he darted to the adjacent
Good Taste Bakery and out to the Tayug Police Station farther west along Quezon
Blvd. to report the incident.
SPO1 Rolando Torio, PO3 Erwil Pastor and SPO4 Emilio Nagui of the Tayug
Police Station rushed to the crime scene where SPO1 Torio chanced upon Sonny
Rimas, a barangay councilman, and his friend Jessie Batalla at the grocery
entrance. He asked them if they knew what was going on inside the store but the
two did not answer. While SPO1 Torio was standing outside the stores door, he
heard three gunshots coming from inside the store, all directed towards Bonifacio
Street. PO3 Pastor was then on the street while Nagui was some 50 meters away.
PO3 Pastor ran and hid behind a concrete marker, then moved westward as if to
return to the police headquarters. Unfortunately, in his attempt to flee, PO3 Pastor
was shot in the face. He was rushed to the Eastern Pangasinan District Hospital.
On September 6, 1995, PO3 Pastor died from the injury he suffered.
Meanwhile, Ysiong discovered that he lost three gold necklaces worth P26,000
and cash amounting to P81,000.
On September 26, 1995, bothered by her conscience, prosecution witness Naty
Panimbaan decided to reveal to police authorities what she knew about the case.
During the trial, she testified that she was present in all the four meetings in which
the plan to rob the Masterline Grocery was hatched.
The first meeting was on June 30, 1995 at the Zariza Inn in Tayug, Pangasinan.
Among those present were Comiling, Galingan, Salagubang, Calderon, Clotario and
Mendoza, along with two other persons known only as Paul and Rey. Another
meeting was held by the group in July 1995 in the house of a certain Lani Galingan
also in Tayug, Pangasinan. There were two other meetings in August 1995. Finally,
on September 2, 1995, the group met at Lanis house where they received their final
instructions and the firearms they were to use from Comiling and Galingan. The
entire group headed for Masterline Grocery at around 4:00 p.m. except for Naty who
stayed behind in Lanis house.
At around 8:00 p.m., she met the group in the house of a person named Joe.
Galingan blamed a companion for shooting the policeman. The group planned to
escape to Manila. She and Lani were given $50 by Galingan for their fare to Manila.
Upon arrival there on September 3, 1995, they, together with Galingan, proceeded
to Comilings house in Paraaque. They discussed where she and Lani should stay
as Comiling did not want them around. Comiling decided that the two of them
should stay in Makati. It was while she was hiding in Makati that she was able to
reflect on the events that transpired, gathering enough courage to confess the
robbery to the police authorities.
3

On the other hand, all the accused denied culpability for the felony. Each of them
claimed to be somewhere else at the time the crime happened on September 2, 1995.
The witnesses for the defense also tried to impugn the credibility of the lead witness
for the prosecution, Naty Panimbaan.
On September 1, 1999, the trial court rendered its decision, the dispositive
portion of which read:
WHEREFORE, the prosecution having failed to establish their alleged guilt beyond moral
certainty, a judgment of ACQUITTAL is hereby rendered in favor of the accused Gil
Salagubang and Mario Clotario alias Bong, and their respective bail bonds are hereby
ordered released.
However, on the basis of the evidence the prosecution has adduced, which in the Courts
perception satisfies the requisite proof beyond reasonable doubt as mandated by Section 2,
Rule 133 of the Rules of Court, the Court hereby renders a judgment, as to the accused
MAJ. EMILIO COMILING of Block 18, Lot 3, Camella Classic Phase II, Bicutan,
Paraaque, Metro Manila, GERALDO GALINGAN alias Bong of Iris, Brgy. B, Tayug,
Pangasinan and RICKY MENDOZA, said to be a resident of Paraaque, Metro Manila, as
per records of the BJMP district jail, Balugnao, Pangasinan, finding them GUILTY of the
special complex crime of ROBBERY WITH HOMICIDE, defined and penalized under
paragraph 1, Article 294 of the Revised Penal Code as amended, and pursuant to paragraph
1, Article 63, same Code, hereby sentences them to each suffer the penalty of DEATH, and
in solidum to restitute, when possible, to private complainant Ysiong Chua his lost
valuables, otherwise to make reparation therefor and pay to him their value of P26,000.00,
plus the cash amount aggregating P81,000.00, and the heirs of PO3 Erwil Pastor,
P50,000.00 for his death, and P100,000.00 for consequential damages as naturally must
have arisen therefrom; and, to pay the costs.

SO ORDERED. 4

Appellants Comiling and Galingan filed separate appeal briefs.

Appellant Comiling, who was a major in the Philippine Army, assails his
conviction by asserting that the killing of PO3 Erwil Pastor happened after the
robbery took place, hence the homicide could not have been a necessary means of
committing the robbery. Neither could it be said that the robbery produced another
offense.
The argument is specious. As correctly stressed by the Solicitor General, robbery
with homicide is a special complex crime. It is enough that in order to sustain a
conviction for this crime, the killing, which is designated as homicide, has a direct
relation to the robbery, regardless of whether the latter takes place before or after
the killing. For as long as the killing occurs during or because of the heist, even if
the killing is merely accidental, robbery with homicide is committed.
Comiling also questions the credibility of the prosecution witnesses, particularly
Naty Panimbaan, who was supposedly a polluted source since she was one of the
conspirators. The reasoning is out of line. This Court is not a trier of facts. All we
have to discern from the records to believe the trial courts findings is a reasonable
basis for its method of examining the credibility of witnesses and its assessment
thereof. We do not second-guess the court a quo for as long as it does not gravely
abuse such power.
 In the case at bar, there is nothing to suggest that the trial court was whimsical
or capricious in the performance of its tasks. Thus we have no recourse but to
uphold its findings on the credibility of Naty Panimbaan and of the other
prosecution witnesses. In any event, as correctly stated by the Solicitor General,
Naty Panimbaan was examined three times not only under the close scrutiny of two
defense counsels but also, in some instances, under the abrasive tirades of the trial
judge who called her a whore. Yet, despite the trial courts apparent misgivings
about her character, it still gave full credence to her testimony:
None of their dark attributes dissuades the Court from giving credence to their respective
narratives, however. The Court agrees that Panimbaan knew too much, for her open-court
testimony was abundantly detailed, generally consistent, straightforward and credible.

xxx xxx xxx

The Court believes Panimbaans testimony that finally, at around 4:00 oclock in the
afternoon of September 2, 1995 the accused Comiling, Galingan, Calderon, Clotario and
Mendoza, together with Rimas, Paul, Rey and Jose left Lanis place, while she stayed
behind.
The Court believes Panimbaans testimony that all throughout the four meetings
conducted before September 2, the accused Comiling and Galingan presided, gave
instructions and provided firearms and explosives.
5

We find no compelling reason to disturb the factual findings and conclusions of the
trial court. Indeed, prosecution witness Naty Panimbaan proved credible during the
trial. She never wavered in her testimony on the details of the crime:
ATTY. CALPITO:
Q Since when was Geraldo Galingan your boyfriend, if you
can still remember?
A Since September 1994, sir.
Q You mentioned a while ago that they are going to talk (sic)
their plan to rob the Masterline Grocery, who are these
people whom you refer as they?
A Maj. Comiling, Gil Salagubang, Eddie Calderon, certain
Paul, Leo, Rey and Eddy, Bong Clotario and Sonny Rimas.
ATTY. CALPITO:
Q How about your boyfriend Geraldo Galingan? Would he or
would he not participate?
A He was there, sir. He was one.
Q And so Madam Witness, when you were there at Zariza
Village Inn, who were the persons whom you saw there, if
any?
A We were inside the hotel. When we arrived I saw the group
 of Maj. Comiling.
Q You refer to a group of Maj. Comiling, will you be kind
enough to enumerate their names?
A Maj. Emilio Comiling, Bong Galingan, Eddie Calderon,
Gil Salagubang, Sonny Rimas, Bong Clotario, Rey and
Paul.
Q Madam Witness, when you said that you saw this group
when you arrived there, what did you do upon arrival
there?
COURT:
When you said you whom you were (sic) referring to? He
or a bigger number?
ATTY. CALPITO:
Q What did you do? Specifically you, sir.
A I sat beside them.
Q Will you tell the Honorable Court your distance from the
members of the group when you sat beside them?
COURT:
That will be very difficult to answer, counsel. Since this
was a group you will have to measure the distance from
one person to another and up to the last member of the
group. Why dont you refer to the group as a whole? And
probably establish who was nearest to her.
ATTY. CALPITO:
Q Madam Witness, when you said you went and sat beside
the group, will you then describe the physical arrangement
of the group when you went and sat beside them?
A I was beside Bong Galingan and the group was in a circle
formation.
Q And so what transpired when you were there within the
group, Madam Witness?
A Since I was beside them I overheard their conversation.
Q And what was the conversation all about, Madam Witness?
A That they are going to stage a hold-up at the Masterline
Grocery, sir.
Q What was the result of that conversation?
A The others left.
Q Who specifically left?
A Eddie Calderon, Sonny Rimas.
Q Who else, if any?
A Bong Clotario.
Q And do you know the reason why these three persons left?
A Yes, sir.
Q Please tell the reasons to the Court?
A They observed the Masterline Grocery if there are
policemen or people around and when they came back they
said it is not possible.
COURT:
Q How did you come to the conclusion that the three persons
left in order to observe because you told that you stayed
behind?
WITNESS:
A We were all there, sir, when Maj. Comiling ordered that
they must go to the Masterline Grocery.
COURT:
Q For what purpose, if any?
A To stage a hold-up.
Q You mean Galingan and Comiling ordered them to go and
hold-up Masterline at that time when they were about to
leave?
A Bong Galingan and Maj. Comiling ordered these men
because they were the brains of that hold-up.
Q And whom did they order?
A Their men, sir.
Q Who?
A Clotario, Calderon and Rimas.
Q I am referring to the three whom (sic) according to you
left. Were they ordered by Galingan and Comiling to
leave?
A Yes, sir.
Q Do you know what for?
A Yes, sir.
Q What?
A They will observe the Masterline grocery.
ATTY. CALPITO:
Q Madam Witness, you said that when the three persons you
just named came back and said it is not yet possible, what
was the consensus of the group, if any?
A They drank again.
COURT:
That was the consensus.
ATTY. CALPITO:
Q Madam Witness, you mentioned that the three left to haze
(sic) the Masterline grocery and when they came back they
said it is not yet possible. With respect to that plan what
was the consensus or decision of the group then?
ATTY. STA. MARIA:
Objection, your Honor. Already answered.
COURT:
The objection is sustained not on that ground but on the
ground that there is still no premise. You are referring to a
consensus when there was still no evidence that a
consensus was being set up. Lay the basis.
ATTY. CALPITO:
Q Madam Witness, when the three persons arrived or came
back and they said that it was not yet possible was there
any reply from the group that was left?
A None, sir.
Q How about a decision or a consensus from the group was
there any Madam Witness after they learned that it is not
yet possible?
ATTY. DANCEL:
Objection, your Honor. Leading.
COURT:
Sustain (sic).
Q What happened after the three allegedly reported back?
A When the three reported that it was not yet possible to
stage such plan because there were many policemen, Maj.
Comiling decided to forego.
COURT:
Q To forego what?
A Not to stage the hold-up yet because there were many
policemen.
ATTY. CALPITO:
Q So what happened next Madam Witness after Comiling
said that?
A We just tarried along but they kept on planning.
Q You said that they kept on planning how did you know that
they kept on planning after that meeting in June 1995?
A Because I was always with them whenever they talk with
each other.
Q You said that you were always with them whenever they
plan. Are you telling the Honorable Court that it was not
only once that they planned, Madam Witness?
A Yes, sir. They planned several times.
COURT:
Q What did they plan?
A They kept on planning about the hold-up but it was not
continued.
ATTY. CALPITO:
Q How many times did this group plan in your presence?
A Many times, sir.
Q Could you please give your estimate?
A Four times.
Q If you said that they planned for four times when was the
second time?
A July, but I cannot remember the date.
COURT:
Q What year?
A 1995, sir.
ATTY. CALPITO:
Q Where was this that the group planned sometime in July
1995?
A At the house of Lani Galingan at Iris, Tayug, Pangasinan.
Q And who were present at that second meeting at the place
of Lani Galingan?
A Sonny Rimas, Eddie Calderon, Bong Clotario, Eddie
Tangkad, Rey, Paul, Leo, Gil Salagubang, Maj. Comiling
and Bong Galingan.
Q You just mentioned several persons whom you claimed to
be present at that second meeting at the house of Lani
Galingan. Why do you know that they were the persons
who were there, Madam Witness?
A Because I was fetched by Bong Galingan and I overheard
their plan to stage a hold-up at the Masterline.
Q In short you are saying that you were there?
A Yes, sir. I was there.
Q And did the plan materialize at that time, Madam Witness?
A No, sir.
Q And what was the reason, Madam Witness, if you know?
A Yes, sir.
Q What was the reason?
A Because there were many people at the Masterline grocery.
Q And how did the group came (sic) to know that there were
a lot of people at the Masterline grocery?
ATTY. STA. MARIA:
Incompetent, your Honor.
COURT:
If you know.
WITNESS:
A Because that was being told after Comiling and Bong
Galingan ordered somebody.
COURT:
Q And who said that?
A Eddie Calderon and Bong Clotario.
ATTY. CALPITO:
Q If you said that the plan did not materialize at that second
meeting when was the third meeting then, if you know?
A August, sir. I cannot remember the date.
COURT:
Q What year?
A 1995.
ATTY. CALPITO:
Q Will it be first week, second week or third week or 4th
week? I am referring to the third meeting.
A First week, sir.
Q And where was this meeting held?
A At the house of Lani Galingan, sir.
Q And who were the persons who were present at that time,
Madam Witness?
A The group of Maj. Comiling, sir.
ATTY. CALPITO:
Q Please enumerate them.
A Bong Galingan, Maj. Comiling, Sonny Rimas, Gil
Salagubang, Eddie Calderon, Leo, Paul and Rey.
Q And what was the result of this third meeting?
A It did not materialize yet.
COURT:
Q What did not materialize the meeting or what?
A The meeting was held but the schedule of the hold-up did
not materialize.
ATTY. CALPITO:
Q And when was the fourth meeting, Madam Witness?
A In the house of Lani Galingan.
Q When?
A I cannot remember the date.
Q How about the month?
A Last week of August, sir.
COURT:
Q What year?
A 1995, sir.
ATTY. CALPITO:
Q And how do you know that this 4th meeting was held on
the last week of August 1995 at the house of Lani
Galingan?
A Because I was in the house of Lani Galingan, sir.
ATTY. CALPITO:
Q Why? Do you usually reside there or not?
A Bong Galingan made me resign at J-5 restaurant.
Q When was that?
A August 21, sir.
COURT:
Q How far was this J-5 from Lani Galingans place?
A Not too far.
Q In other words in response to the last question propounded
by the private prosecutor you were not actually residing at
Lani Galingans place?
A I was residing there at the time because Bong Galingan
made me resign.
Q You resigned from your job and your boyfriend lodged you
at Lani Galingans place. Is that what you are saying?
A Yes, sir.
Q Were you such a resident at Lani Galingans place
throughout the four alleged meetings that you testified on?
A Yes, sir.
Q From the first meeting to the fourth you were already
residing or lodging at Lani Galingans place?
A No, sir.
Q So when did you start residing at Lanis place?
A August 21, 1995.
COURT:
Q What makes you remember that?
A Because that is when Bong Galingan lodged me.
xxx xxx xxx
Q Madam Witness, you enumerated some names of persons
whom you claimed to be present in the last week of August
21, 1995 at Lani Galingans residence. Why do you know
that these were the persons who were there at the time for
the 4th meeting?
A Because we usually went together.
Q So that Madam Witness during that particular time of the
4th meeting where were you?
A I was at the house of Lani Galingan.
ATTY. CALPITO:
Q And what happened at that time Madam Witness?
A They were talking about the supposed hold-up at the
Masterline.
Q And what else transpired, if any? I am referring to that 4th
 meeting?
A They were talking about the subject matter Masterline
grocery.
Q What about the Masterline grocery?
A Their staging of a hold-up.
Q And what was the result of that 4th meeting?
A It did not yet materialize.
Q You mentioned a while ago that there were four meetings.
You just mentioned now that in that 4th meeting it resulted
into the plan not pushing through. Was there any other
meeting, Madam Witness?
ATTY. STA. MARIA:
Objection, your Honor.
COURT:
Sustain (sic).
ATTY. CALPITO:
Q That was in the last week of August 25, 1995. So what
happened after that?
A The staging of the hold-up pushed through.
Q If you said that the plan of the hold-up of the Masterline
grocery pushed through when was that Madam Witness?
A September 2, 1995, sir.
COURT:
Q What time?
A At 4:00 they were still at the house. Maybe that was at
6:00.
Q You mentioned 4:00 and 6:00, what was that?
A In the afternoon, sir.
ATTY. CALPITO:
Q You said that at around 4:00 in the afternoon of September
2, 1995 they were still there. Whom are you referring to as
the persons still there?
A Bong Galingan, Maj. Comiling, Sonny Rimas, Eddie
Calderon, Bong Clotario, Joe, Gil Salagubang.
Q And what were these people doing there? By the way
Madam Witness, where is this place that you are referring
to?
A Lani Galingans place.
Q What were these people doing there at 4:00 in the
afternoon?
A They were just there waiting for the persons being sent by
Maj. Comiling.
COURT:
Q You have mentioned of four alleged meetings and you even
enumerated names. Could you tell the Court if there was
anybody who presided?
A Bong Galingan and Comiling.
Q How did you know that?
A I have known that and he said that all the orders of Bong
are being followed.
Q The orders of who?
A Bong, sir.
COURT:
Q I am asking you who presided, if any?
A Bong Galingan and Maj. Comiling.
Q How did you know that?
A Because all the orders of Maj. Comiling and Bong
Galingan are being followed by their men.
ATTY. CALPITO:
Q And what time did these people leave Lani Galingans
place?
A 4:00 oclock.
Q Where did they go?
A They proceeded towards Masterline.
Q How about you Madam Witness, what did you do?
A I was just there at the house of Lani.
Q So after they left at 4:00, what happened next? What
happened next as far as you are concerned?
A After some time there were shots at the town.
Q Around what time would that be when you heard gunshots?
A 6:00 oclock.
COURT:
Q And where were you then at 6:00 oclock?
A I was at the house of Lani.
Q Did you ever stay put at Lanis place at 6:00 oclock?
A No, sir.
ATTY. CALPITO:
Q Did you personally see those people leave Lanis place
before the gunshots? Before you heard the gunshots?
A Yes, sir.
COURT:
Q About how many minutes or hours passed from the time
you allegedly saw the people leave Lanis place from the
time you allegedly heard shots in town?
A I heard the gun fire at 6:30.
Q So are you saying that it was almost 2-1/2 hours?
A Yes, sir.
ATTY. CALPITO:
Q If you say Madam Witness that you saw them when they
left Lani Galingans house, did they take any ride with
them or not?
ATTYS. DANCEL & STA. MARIA:
Leading.
COURT:
Answer.
WITNESS:
A Yes, sir. There was.
ATTY. CALPITO:
Q How many rides were there?
A Three rides, sir.
Q And what were these rides?
A One owner-type and two tricycles.
COURT:
Q Owner type plane or what?
A Owner-type jeep.
ATTY. CALPITO:
Q And who were the persons who rode on the owner-type
jeep, if you know?
A Bong Galingan, Leo, Paul and Rey.
Q And you said that there were two tricycles who rode on the
two tricycles?
A Maj. Comiling and Joe.
COURT:
Q One tricycle each you mean?
A No, sir. The other tricycle were on board Sonny Rimas and
Bong Clotario.
ATTY. CALPITO:
Q If I will add the persons whom you named there were 8
whom you said boarded the three vehicles. Is that all,
Madam Witness?
A Eddie Calderon and Gil Salagubang.
Q And how about them? Where did they ride?
A Tricycle. 6

Natys tenacious insistence on the minute details of what happened suggested

nothing else except that she was telling the truth. We do not doubt her credibility.
The time-tested rule is that, between the positive assertions of prosecution
witnesses and the mere denials of the accused, the former undisputedly deserve
more credence and are entitled to greater evidentiary value. 7
 Appellant Comiling likewise contends that Natys testimony was inadmissible
against him to prove conspiracy because of the res inter alios acta rule under
Section 30, Rule 130 of the Rules of Court which provides:
Admission by conspirator.The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other than such act or declaration.

This rule prescribes that any declaration made by a conspirator relating to the
conspiracy is admissible against him alone but not against his co-conspirators
unless the conspiracy is first shown by other independent evidence.
According to Comiling, Natys testimony showed that she was also a conspirator,
thus, the existence of conspiracy must be shown by evidence other than Natys
admission. As there was no independent proof of conspiracy except the testimony of
Naty, the latters testimony concerning appellants participation in the conspiracy
was inadmissible against him. This contention is misplaced.
The res inter alios acta rule refers only to extrajudicial declarations or admissions
and not to testimony given on the witness stand where the party adversely affected
has the opportunity to cross-examine the declarant. In the present case, Natys
8

admission implicating appellant Comiling was made in open court and therefore
may be taken in evidence against him.
Lastly, Comiling asserts that he cannot be held liable for robbery as he was not
physically present at the Masterline Grocery and had no ostensible participation
therein. The contention is offtangent. Although Comiling was never tagged as one of
the three robbers who entered the store of Ysiong Chua nor the one who mauled the
victim or who shot PO3 Erwil Pastor to death, his participation was his leadership
in the conspiracy to commit robbery with homicide and his inducement to his
cohorts to perpetrate the same. As held in People vs. Assad, one who plans the
9

commission of a crime is a principal by inducement. As testified to by Naty

Panimbaan:
Q And what happened to this fourth meeting, Madam
Witness?
A They talked about the projected robbery and Major
Comiling decided that they will push through on
September 2.
Q What else happened during that fourth meeting?
A Major Comiling gave their respective assignments.
Q You said Major Comiling gave their respective
assignments to the members of this group, what
assignments if you know was given to Bong Galingan?
A Bong Galingan should be in front of the LBC.
Q How about Sonny Rimas?
COURT:
Your answer should be one at a time.
WITNESS:
A Sonny Rimas and Bong Clotario should be at the tricycle.
ATTY. ESTRADA:
Q What about Gil Salagubang?
A Gil Salagubang and Eddie Calderon should be in front of
the Masterline Grocery.
Q What about Major Comiling?
A Major Comiling should be posted at the back of the bakery
including Joe. 10

Natys testimony showed that Comiling was determined to commit the crime as
early as June 1995. The fact that the heist was finally executed only on September
2, 1995 indicated that Comiling had indomitably clung to his determination.
Principalship by inducement (or by induction) presupposes that the offender himself
is determined to commit the felony and must have persistently clung to his
determination. In all the meetings prior to the commission of the crime, Comiling
11

was seen and heard presiding over and leading the group. He was even the one who
assigned each of his men his specific role in the robbery. Then, in the house where
the perpetrators regrouped after the commission of the crime, Comiling was handed
the money and jewelry stolen from the grocery store. It was also Comiling who
instructed Naty and Lani to hide in Makati after the incident. He paid for the
monthly rental of the room where Naty and Lani stayed. All this can only prove that
Comiling was the acknowledged leader of the group.
Moreover, another witness for the prosecution, Sonny Rimas, testified that while
serving beer to the accused at Zariza Inn, he heard that Comiling was planning the
robbery of Masterline. He even heard Comiling say, We will enter the place of Isko,
referring to Ysiong Chuas store. Indeed, appellant Comiling was the undisputable
mastermind. The judgment of conviction of Emilio Comiling must therefore be
affirmed.
For his part, appellant Galingan interposed the defense of alibi. He claimed that
he was in the house of his uncle in Novaliches, Metro Manila when the incident
happened on September 2, 1995. He was in Manila because his wife was scheduled
to arrive from Hong Kong on September 4, 1995.
 For the defense of alibi to prosper, the accused must show that he was in another
place for such period of time that it was physically impossible for him to have been
at the place where the crime was committed at the time of its commission. 12

In this case, Galingan did not meet the settled requirements of time and place. He
failed to prove that he was indeed in Novaliches at the time of the commission of the
crime; his alleged presence therein was not established by a positive declaration
from an independent witness. Likewise, the place where he claimed to be on the
night of the crime was not of such distance that it was impossible for him to be at
the scene of the crime at the time of its commission considering that either place
could be reached in just about four hours by land. The fact that he met his wife upon
arrival on September 4, 1995 was likewise inconsequential as it was two days after
September 2, 1995, the date material to this case. Alibi, in order to be given full
faith and credit, must be clearly established and must not leave any room for doubt
as to its plausibility and verity.
13

It should also be noted that Rimas testified that, while he was standing near the
door of Masterline Grocery at around 6:30 p.m. on September 2, 1995, he noticed the
arrival of an owner-type jeep. Rimas positively identified appellant Galingan as the
driver thereof.
Galingans invocation of alibi should be disregarded not only because of its
inherent weakness but also because of the circumstances pointing to its contrived
nature and his positive identification by prosecution witness Rimas as one of those
present during the Masterline Grocery robbery on September 2, 1995.
Appellant Galingan also impugns the credibility of prosecution witness Naty
Panimbaan. He denies Natys claim that they were lovers. He maintains that Naty
was a woman of ill-repute whom he paid P700 everytime they had sex. Galingan
insists that the only reason why Naty implicated him in the offense was because she
wanted him to leave his wife which he did not want to do. Furthermore, according to
Galingan, Naty was a drug user and this supposedly tainted her credibility.
These attacks on Natys character and reputation are too flimsy and irrelevant to
deserve serious consideration. The fact that a witness is a person of unchaste
character or even a drug dependent does not per se affect her credibility. Character
is frequently used to refer to ones reputation in the neighborhood. It means the
estimate attached to the individual by the community and not the qualities of the
individual as conceived by one person. With respect to a witness in both criminal
14

and civil cases, evidence of his character, in order to affect his credibility, must refer
to his general reputation for truth, honesty or integrity. Thus, testimonies
15
attacking the character of a witness for the purpose of impugning his credibility
must relate and be confined to the general reputation which such witness has in the
community or neighborhood where he lives or has lived. Personal opinions on the
moral character of a witness, being usually too general, sweeping or subjective, are
excluded.
Measured against the foregoing standard, appellant Galingans testimony on the
alleged bad character and unreliability as a witness of Naty Panimbaan deserves no
merit. Other than his adverse testimony, Galingan never credibly established that
Naty was reputed in the community or neighborhood to be a woman of loose morals
or a drug user. Clearly, Galingans testimony and evidence concerning Natys
character was based solely on his own self-serving claim or private opinion, and did
not at all reflect the general reputation by which Naty was held by the community.
We therefore remain convinced of Natys credibility as a witness.
Besides, the credibility of a witness is left primarily to the judgment of the trial
judge. Given the direct opportunity to observe the witness on the stand, the trial
judge is in a vantage position to assess the witness demeanor, conduct and attitude
under grueling examination. 16

In People vs. De Guzman, we held that:

In the resolution of the factual issues, the Court relies heavily on the trial court for its
evaluation of the witnesses and their credibility. Having the opportunity to observe them on
the stand, the trial judge is able to detect that sometimes thin line between fact and
prevarication that will determine the guilt or innocence of the accused. That line may not be
discernible from a mere reading of the impersonal record by the reviewing court. The record
will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like
the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the
tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record
will not show if the eyes have darted in evasion or looked down in confession or gazed
steadily with a serenity that has nothing to distort or conceal. The record will not show if
tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only
the judge trying the case can see all these and on the basis of his observations arrive at an
informed and reasoned verdict. (italics ours)
17

Moreover, Galingan failed to substantiate his claim that Naty was driven by ill will
or false motive in testifying against him. His vain attempt to portray Naty as a
woman scorned by her lover certainly did not constitute sufficient reason for Naty
to accuse him of a very serious crime where the possible penalty could either be
death or life imprisonment. In fact, the trial court did not perceive such improper
motivation on the part of Naty and the other prosecution witnesses as would make
them falsely implicate appellants in the commission of the very serious crime. To us,
the only plausible motivation for Naty was her honest desire to speak the truth.
Our established doctrine is that the witness testimony deserves full faith and
credit where there exists no evidence to show any dubious reason or improper
motive why he should testify falsely against the accused, or why he should implicate
the accused in a serious offense. 18

More importantly, PO3 Erwil Pastor identified Galingan as the robber who shot
him. In the emergency room of the Eastern Pangasinan District Hospital, at around
7:00 p.m. on September 2, 1995, Pastor moaned I might die. I might die. in the
presence of SPO1 Conrado Hidalgo and SPO4 Emilio Nagui. Hence, PO3 Pastors
statements were taken down by SPO1 Hidalgo who assisted PO3 Pastor in affixing
his thumbmark with his own blood:
Q Who shot you?
A Bong Galingan, x x x 19

Under Rule 130, Section 37 of the Rules of Court, the declaration of a dying person
with the consciousness of impending death may be received in any case wherein his
death is the subject of inquiry, as evidence of the cause and the surrounding
circumstances of such death. There are four requisites which must concur in order
that a dying declaration may be admissible: (1) it must concern the crime and
surrounding circumstances of the declarants death; (2) at the time it was made, the
declarant was under the consciousness of an impending death; (3) the declarant was
competent as a witness; and (4) the declaration is offered in any criminal case for
homicide, murder or parricide in which the declarant was the victim. 20

1. (1)The first requisite is present in the ante-mortem statements of deceased

PO3 Pastor. Certainly, the narration made by Pastor at the hospitals
emergency room before SPO1 Hidalgo and SPO4 Nagui concerned the cause
and surrounding circumstances of the declarants death. The two policemen
heard from the declarants own lips his utterance of the name Bong
Galingan as his assailant. This fact was even testified to by these
policemen.

2. (2)The declarant, at the time he gave the dying declaration, was conscious of
his impending death. PO3 Pastor knew at the time he was being questioned
that his chances of recovery were nil. In fact, he uttered the words, I might
die. I might die. to signify his perception that death was forthcoming.
 3. (3)PO3 Pastor, at the time he uttered the dying declaration, was competent as
a witness. This fact is too obvious to warrant further discussion.

4. (4)The dying declaration of PO3 Pastor was offered as evidence in a criminal

case for robbery with homicide in which the declarant was the victim.

Indubitably, PO3 Pastors dying declaration is complete in the sense that it was a
full expression of all that he wanted to say with regard to the circumstances of his
death. An ante-mortem statement is evidence of the highest order. It is doctrinal
21

that, when a person is at the point of death, every motive of falsehood is

silenced. The mind is induced by the strongest of reasons to speak the truththe
22

declarants impending meeting with his Creator.

Insofar as Ricky Mendoza is concerned, the evidence likewise confirms his
responsibility for the offense. He was positively identified by prosecution witness
Rimas as one of the men who alighted from the jeep, barged into the Masterline
Grocery and shot his way out therefrom. Naty Panimbaan also positively confirmed
his participation in the crime. More than that, as shown by the records, Mendoza
flew the coop after he was arraigned and remains at large up to the present. Flight
from justice is evidence of guilt.
The existence of conspiracy in this case cannot be doubted. The rule is, whenever
homicide is committed as a consequence or on the occasion of a robbery, all those
who take part as principals in the robbery will also be held guilty as principals of
the special complex crime of robbery with homicide.23

While we are convinced that appellants are guilty beyond reasonable doubt of
robbery with homicide, we cannot impose the penalty of death on them. Under
Article 294 (1) of the Revised Penal Code, the crime of robbery carries the penalty
24

of reclusion perpetuato death. In imposing the death penalty, the trial court
appreciated the aggravating circumstances of band, evident premeditation, craft
and disguise against appellants. However, these circumstances were not specifically
alleged in the information as required under Rule 110, Section 8 of the Revised
Rules of Criminal Procedure. Hence, inasmuch as no aggravating and mitigating
circumstances can be deemed to have attended the commission of the offense, the
lower penalty of reclusion perpetua should be imposed on them.
On the award of damages, this Court modifies the amounts as well as the
designations thereof. Thus, appellants Emilio Comiling, Geraldo Galingan alias
Bong and accused Ricky Mendoza alias Leo must in solidum restore to Ysiong
Chua his lost valuables, and if impossible to do so, must pay him as reparation the
amount of P26,000, plus the P81,000 in cash he lost, as actual damages. They
should also pay the heirs of PO3 Erwil Pastor P50,000 as civil indemnity for his
death as this is in accord with prevailing jurisprudence. In addition, the heirs of
25

PO3 Pastor are entitled to P25,000 as temperate damages in lieu of actual damages,
pursuant to the case of People vs. Abrazaldo. However, we cannot award moral
26

damages to the heirs of PO3 Pastor because of their failure to present any proof or
testimony that they suffered anguish and distress as a result of his death.
WHEREFORE, the decision of the trial court is hereby AFFIRMED with
MODIFICATION. Appellants Emilio Comiling, Geraldo Galingan and accused Ricky
Mendoza are hereby found guilty of robbery with homicide and sentenced to suffer
the penalty of reclusion perpetua.
They are also ordered to return to Ysiong Chua his lost valuables, and if this
cannot be done, to pay him in solidum its value of P26,000 as reparation, plus
P81,000 which was the amount of the cash stolen, as actual damages, and to pay the
heirs of PO3 Erwil Pastor P50,000 as civil indemnity and P25,000 as temperate
damages.
SO ORDERED.