[G.R. No.

185518, April 17, 2013]

SPOUSES FELIX CHINGKOE AND ROSITA CHINGKOE, Petitioners, v. SPOUSES

FAUSTINO CHINGKOE AND GLORIA CHINGKOE, Respondents.

DECISION

ERENO, C.J.:

This Petition for Review on Certiorari under Rule 45 of the Rules of Court assails the
3 July 2008 Decision of the Court of Appeals (CA) annulling the 30 March 2007
Decision o(the Regional Trial Court (RTC) of Quezon City.1 The RTC affirmed2 the
Metropolitan Trial Court's (MTC) dismissal3 of the Complaint for unlawful detainer
filed by herein respondents.

The facts, as culled from the records, are as follows:cralaw

Respondents are the registered owners of a real property covered by Transfer

Certificate of Title No. 82834 of the Registry of Deeds of Quezon City. They claim
that sometime in 1990, out of tolerance and permission, they allowed respondent
Faustino’s brother, Felix, and his wife, Rosita, to inhabit the subject property situated
at No. 58 Lopez Jaena Street, Ayala Heights, Quezon City. Due to the intercession
of their mother, Tan Po Chu, Faustino agreed to sell the property to Felix on
condition that the title shall be delivered only after Felix and Rosita’s payment of the
full purchase price, and after respondents’ settlement of their mortgage obligations
with the Rizal Commercial Banking Corporation (RCBC). After further prodding from
their mother, however, and at Felix’s request, Faustino agreed to deliver in advance
an incomplete draft of a Deed of Absolute Sale, which had not yet been notarized.
While respondents themselves drafted the deed, the parties again agreed that the
document would only be completed after full payment.5cralawvllred

On 24 July 2001, respondents sent a demand letter6 to petitioners asking them to

vacate the premises. To this date, petitioners have refused to do so, prompting
respondents to file a complaint7 for unlawful detainer with the MTC of Quezon City.
In their Answer, petitioners presented a copy of a completed Deed of Absolute Sale
dated 10 October 1994, claiming that respondents had sold the property for
P3,130,000, which petitioners had paid in full and in cash on the same day. Due to
respondents’ adamant refusal to surrender the title to them as buyers, petitioners
were allegedly constrained to file an action for specific performance with Branch 96
of the Quezon City RTC on 31 January 1995.8cralawvllred

The MTC gave weight to the Deed of Sale presented by petitioners and dismissed
the Complaint, as follows:chanroblesvirtuallawlibrary

The defendants herein assert that “since October 1994, when they bought their
property in CASH, their stay thereat is by virtue of their absolute ownership thereof
as provided for in the Absolute Deed of Sale,” x x x. The foregoing would right away
tell us that this Court is barred from ordering the ejectment of the defendants from
the premises in question so much so that what is at stake only in cases of this nature
as above stated is as regards possession only.

With the execution of the Deed of Absolute Sale whereby the Vendors never
reserved their rights and interests over the property after the sale, and the transfer
appears to be absolute, beside the fact that the property is now under the control
and custody of the defendants, we could conclude that instant case unlawful
detainer (sic) is destined to fail,9 x x x.

The RTC affirmed the findings of the MTC in toto, reasoning

thus:chanroblesvirtuallawlibrary

x x x (T)here exists a Deed presented in evidence on the sale of the subject property
entered into by the herein parties. The Deed of Sale renders weak the claim of
tolerance or permission.

Although the plaintiffs-appellants questioned the validity and authenticity of the Deed
of Sale, this will not change the nature of the action as an unlawful detainer, in the
light of our premise of the principal issue in unlawful detainer – possession de
facto.10

The CA reversed the findings of the lower courts and ruled that a mere plea of title
over disputed land by the defendant cannot be used as sound basis for dismissing
an action for recovery of possession. Citing Refugia v. Court of Appeals, the
appellate court found that petitioners’ stay on the property was merely a tolerated
possession, which they were no longer entitled to continue. The deed they presented
was not one of sale, but a “document preparatory to an actual sale, prepared by the
petitioners upon the insistence and prodding of their mother to soothe in temper
respondent Felix Chingkoe.”11cralawvllred

Petitioners now come before this Court, raising the following arguments:cralaw

a. The CA committed reversible error when it admitted and gave weight to

testimony given in a different proceeding (action for specific performance)
pending before the Regional Trial Court in resolving the issue herein (unlawful
detainer); and

b. The CA committed reversible error when it ruled on the validity of a notarized

Deed of Sale in a summary ejectment action.

We deny the petition.

Anent the first argument, petitioners fault the CA for citing and giving credence to the
testimony of Tan Po Chu, who was presented as a witness in another case, the
action for specific performance filed by petitioners. The CA
stated:chanroblesvirtuallawlibrary

In the case instituted by the respondents against herein petitioner for Specific
Performance entitled “<I>Felix Chingkoe and Rosita Chingkoe v. Faustino Chingkoe
and Gloria Chingkoe,</I>” docketed as Civil Case No. Q-95-22865 pending before
Branch 96 of the Regional Trial Court of Quezon City, Tan Po Chu testified on 25
November 1999 to shed light on the matter once and for all, to wit:
xxxx
Atty.
Nicolas:
Q You mentioned that this is the second copy of the deed of absolute sale, you
identified the signature appearing here as the signature of Felix, how do you
know that this is the signature of Felix?
A Well, he is my son. I am familiar with his signature and besides that he
signed it in my presence.
Q And this is the very document and not as photocopy (sic) of the second
document which you brought to Felix?
Atty. Flores:
Again, Your Honor, very leading.
Court:
I will allow.
A I am not very sure now but I think this is the real one, I think this is the one
because I saw him signed (sic) this.
Atty. Nicolas:
May I request that this be marked as Exhibit “1” and the signature of Felix
be signed as Exhibit “1-A”?
Court:
Mark.
Atty.
Flores:
Just a moment, no basis, Your Honor, please.
Atty.
Nicolas:
Your Honor, the witness said that there was a deed of absolute sale, I was
asking if she knows how much Felix paid for the property when she
delivered the document.
Court:
She never testified that there was a sale, she only said that there was a
deed of sale.
Atty. Nicolas:
I will reform, Your Honor.
Q When you delivered this document to Felix, what did he give you in return, if
any?
A He did not give me anything, he had never paid me any single cent.
Q When you delivered the deed of sale?
A There was no payment whatsoever.
Q As far as you know, Ms. Witness, was the property paid for by Felix to
Faustino?
A I swear to God, no payment, there was no payment at all, I swear.
xxxx
As clearly shown in the testimony given in open court which was above-
quoted, petitioners merely delivered to their mother a draft of the deed,
which they signed to appease her and respondent Felix
Chingkoe.12 (Emphases supplied.)

The CA indeed quoted at length from the testimony of Tan Po Chu, and culled
therefrom the factual finding that the purported contract of sale had never been
consummated between the parties. The CA cited as basis her testimony from Civil
Case No. Q-95-22865: that she witnessed Felix signing the blank deed, and that
upon its signing, there was no payment for the property. This account directly
contradicts petitioners’ claim that payment was made simultaneously with the
perfection of the contract.

Petitioners claim that the CA erroneously considered this testimony in Civil Case No.
Q-95-22865. They cite the general rule that courts are not authorized to take judicial
notice of the contents of the records of other cases. This rule, however, admits of
exceptions. As early as United States v. Claveria, this Court has stated: “In the
absence of objection and as a matter of convenience, a court may properly treat all
or part of the original record of a former case filed in its archives, as read into the
record of a case pending before it, when, with the knowledge of the opposing party,
reference is made to it for that purpose by name and number or in some other
manner by which it is sufficiently designated.”13cralawvllred

We reiterated this stance in Adiarte v. Domingo,14 in which the trial court decided the
action pending before it by taking judicial notice of the records of a prior case for a
sum of money. The Supreme Court affirmed the trial court’s dismissal of the
Complaint, after it considered evidence clearly showing that the subject matter
thereof was the same as that in the prior litigation. In a 1993 case, Occidental Land
Transportation Company, Inc. v. Court of Appeals, the Court
ruled:chanroblesvirtuallawlibrary

The reasons advanced by the respondent court in taking judicial notice of Civil Case
No. 3156 are valid and not contrary to law. As a general rule, “courts are not
authorized to take judicial notice, in the adjudication of cases pending before them,
of the contents of the records of other cases, even when such cases have been tried
or are pending in the same court, and notwithstanding the fact that both cases may
have been heard or are actually pending before the same judge.” The general rule
admits of exceptions as enumerated inTabuena v. Court of Appeals, the Court,
citing U.S. v. Claveria, which We quote:cralaw

x x x (I)n the absence of objection, and as a matter of convenience to all parties, a

court may properly treat all or any part of the original record of a case filed in its
archives as read into the record of a case pending before it, when, with the
knowledge of the opposing party, reference is made to it for that purpose, by name
and number or in some other manner by which it is sufficiently designated; or when
the original record of the former case or any part of it, is actually withdrawn from the
archives by the court's direction, at the request or with the consent of the parties,
and admitted as a part of the record of the case then pending.

It is clear, though, that this exception is applicable only when, ‘in the absence
of objection,’ ‘with the knowledge of the opposing party,’ or ‘at the request or
with the consent of the parties’ the case is clearly referred to or ‘the original or
part of the records of the case are actually withdrawn from the archives' and
'admitted as part of the record of the case then pending.’

xxxx

And unlike the factual situation in Tabuena v. CA, the decision in Civil Case
No. 3156 formed part of the records of the instant case (Civil Case No. 2728)
with the knowledge of the parties and in the absence of their
objection. (Emphases supplied, citations omitted).15
This doctrine was restated in Republic v. Sandiganbayan, viz: “As a matter of
convenience to all the parties, a court may properly treat all or any part of the original
record of a case filed in its archives as read into the record of a case pending before
it, when, with the knowledge of, andabsent an objection from, the adverse party,
reference is made to it for that purpose, by name and number or in some other
manner by which it is sufficiently designated; or when the original record of the
former case or any part of it, is actually withdrawn from the archives at the court’s
direction, at the request or with the consent of the parties, and admitted as a part of
the record of the case then pending.”16 (Underscoring supplied)

In the case at bar, as the CA rightly points out in its Resolution dated 28 November
2008,17 petitioners never objected to the introduction of the Transcript of
Stenographic Notes containing the testimony of Tan Po Chu, which were records of
Civil Case No. Q-95-22865. As shown by the records and as petitioners admitted in
their Reply, the testimony was already introduced on appeal before the RTC. In fact,
it was petitioners themselves who specifically cited Civil Case No. Q-95-22865,
referring to it both by name and number, purportedly to bolster the claim that they
were constrained to sue, in order to compel delivery of the title.18cralawvllred
Given these facts, the CA committed no reversible error in taking judicial notice of
the records of Civil Case No. Q-95-22865. In any case, the said testimony was not
the only basis for reversing the RTC’s Decision. Independent of the testimony, the
CA – through its perusal and assessment of other pieces of evidence, specifically
the Deed of Absolute Sale – concluded that petitioners’ stay on the premises had
become unlawful.

Concerning the second issue, petitioners object to the assessment of the Deed of
Sale by the CA, claiming such a determination is improper in summary proceedings.
It should be noted that it was petitioners who introduced the Deed of Sale in
evidence before the MTC and the RTC, as evidence of their claimed right to
possession over the property. They attached the deed to their Answer as Annex
“1.”19 The CA discovered that they falsified their copy of the document denominated
as Deed of Absolute Sale in this wise:chanroblesvirtuallawlibrary

Said draft of the deed was undated and bears the signature of one witness, as can
be clearly noticed upon its very careful perusal. Notably, respondents made it appear
in the draft of the Deed of Absolute Sale that there indeed was a valid and
consummated sale when in truth and in fact, there was none. The document
accomplished by the respondents (herein petitioners) gave them some semblance,
albeit highly questionable, of ownership over the property by affixing their signatures,
affixing the signature of one Cora Hizon as witness and superimposing the signature
of Jane Chan with that of one Noralyn Collado.20

Batas Pambansa Blg. 129 states that when the defendant raises the question of
ownership in unlawful detainer cases and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.21 This Court has repeatedly
ruled that although the issue in unlawful detainer cases is physical possession over
a property, trial courts may provisionally resolve the issue of ownership for the sole
purpose of determining the issue of possession.22 “These actions are intended to
avoid disruption of public order by those who would take the law in their hands
purportedly to enforce their claimed right of possession. In these cases, the issue is
pure physical or de facto possession, and pronouncements made on questions of
ownership are provisional in nature. The provisional determination of ownership in
the ejectment case cannot be clothed with finality."23cralawvllred

Trial courts must necessarily delve into and weigh the evidence of the parties in
order to rule on the right of possession, as we have discussed in Sps. Esmaquel and
Sordevilla v. Coprada:chanroblesvirtuallawlibrary

In unlawful detainer cases, the possession of the defendant was originally legal, as
his possession was permitted by the plaintiff on account of an express or implied
contract between them. However, defendant's possession became illegal when the
plaintiff demanded that defendant vacate the subject property due to the expiration
or termination of the right to possess under their contract, and defendant refused to
heed such demand.

The sole issue for resolution in an unlawful detainer case is physical or material
possession of the property involved, independent of any claim of ownership by any
of the parties. Where the issue of ownership is raised by any of the parties, the
courts may pass upon the same in order to determine who has the right to possess
the property. The adjudication is, however, merely provisional and would not bar or
prejudice an action between the same parties involving title to the property. Since
the issue of ownership was raised in the unlawful detainer case, its resolution boils
down to which of the parties' respective evidence deserves more
weight.24 (Emphasis supplied, citations omitted.)

WHEREFORE, in view of the foregoing, we deny the instant Petition for lack of
merit.  The Decision of the Court of Appeals in CA-G.R. SP No. 100008 (dated 3
July 2008) is AFFIRMED.

We make no pronouncement as to attorney's fees for lack of evidence. 

SO ORDERED.
PEOPLE VS. PARUNGAO

THIRD DIVISION G.R. No. 125812, November 28, 1996 PEOPLE OF THE
PHILIPPINES, PLAINTIFF-APPELLEE, VS. ABELARDO PARUNGAO, ACCUSED-
APPELLANT. 

DE C I S I O N

MELO, J.:

On May 30, 1989, early in the morning, the detention prisoners in Cells No. 2 and 6
of the Pampanga Provincial Jail at the Provincial Capitol in San Fernando, staged a
jailbreak. On the occasion thereof, Jail Guards Conrado Basa and Emilardo Valencia
were killed, while Jail Guard Arnel Aldana was seriously wounded. Several pieces of
firearms valued at P41,000.00 were also forcibly taken and carried away from the
Provincial Jail Armory.

The incident triggered the filing on April 16, 1990, of an Information against herein
accused-appellant Abelardo Parungao and 15 other prisoners charging them with
the crime of Robbery with Homicide and Serious Physical Injuries, thusly:

That on or about the 30th day of May, 1989 inside the Pampanga Provincial Jail at
Provincial Capitol, municipality of San Fernando, province of Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused who are cell-mates at Cell No. 6, with evident premeditation and taking
advantage of their superior strength, and with intent to escape from their detention
cell, by conspiring, confederating and mutually helping one another, with intent of
gain, and by means of force, violence and intimidation, did then and there wilfully,
unlawfully and feloniously attack, assault and employ personal violence upon
Conrado Basa, Emilardo Valencia and Arnel Aldana who are all Provincial Jail
Guards and while engaged in the performance and discharge of their official duties
as such, by beating and striking them repeatedly with pieces of wood (bamboo stick)
on the different parts of their bodies, thereby inflicting upon Conrado Basa and
Emilardo Valencia serious and fatal injuries which cause their death thereafter, and
serious physical injuries upon Arnel Aldana, and on the same occasion thereof and
thereafter, did then and there take, steal and carry away with them the following
properties, to wit:

1. One (1) shotgun 12 gauge -- SN957475 - P8,500.00

2. One (1) shotgun 12 gauge -- SN974412 - 8,500.00
3. One (1) shotgun 12 gauge -- SN974105 - 8,500.00
4. One (1) Ruby cal. 22 -- SN613085 - 5,200.00
5. One (1) Ruby cal. 22 -- SN637171 - 5,200.00
6. One (1) Ruby cal. 22 (high std) SN1166602 - 5,200.00
belonging to the armory of the Provincial Jail valued at FORTY ONE THOUSAND
ONE HUNDRED PESOS (P41,100.00), Philippine Currency, to the damage and
prejudice of the said owner in the total amount of P41,100.00, Philippine Currency.

All contrary to law.

San Fernando, Pampanga, April 16, 1990.

(pp. 37-38, Rollo.)

In an earlier and a separate trial, the court below, handed down a decision dated
October 4, 1990, convicting four of the accused, namely, Romeo Pamintuan, Edgar
Pabalan, Mario Briones, and Ronnie Pilapil, while two, Gerardo Javier and Vivencio
Feliciano, were acquitted. The judgment of conviction was later affirmed by this
Court in a decision dated May 28, 1993 (PEOPLE VS. PAMINTUAN, 222 SCRA 716
[1993]).

Herein accused-appellant Parungao who was arraigned only on January 14, 1990,
was tried separately and thereafter convicted by the Regional Trial Court of the Third
Judicial Region (Branch 42, San Fernando, Pampanga) on March 18, 1991. The
instant appeal is thus with reference only to accused-appellant Parungao.

The evidence of the prosecution tends to show the following incidents:

At about 7 P.M. on May 29, 1989, Mario Quito, a detention prisoner in Cell No. 2 of
the Provincial Jail of San Fernando, Pampanga, was asked by his cell mates Jun
Solis and Edgar Pabalan, if he wanted to join them in a jailbreak and escape, to
which Quito answered "Bahala na." Solis and Pabalan told Quito there is no problem
because many prisoners were joining, adding that herein accused-appellant
Parungao was the mastermind. Sometime thereafter, Ramon Sevilla, a detainee and
trustee, came and handed a letter to Pabalan. Quito read the letter which allegedly
instructed Pabalan and Solis to tie Jail Guard Basa and to put off the main switch.

Early the following morning, at about 1 o'clock, prisoner Sevilla came and opened
the gate of Cell No. 2, and the prisoners therein, including Quito,went out.

While Quito was in the jail yard, he saw accused-appellant Parungao near the gate
of Cell No. 1 shouting out to Sevilla to open also their Cell No. 1. Sevilla opened the
gate of Cell No. 1 but accused-appellant Parungao and his cell mates Feliciano and
Javier did not go out of their cell.

In the meantime, the prisoners from Cells No. 2 and 6, ran out and on their way out,
they passed by Jail Guards Basa, Valencia, Aldana, and Pacheco, in their respective
gates, all sleeping. To insure their escape, the escapees tied the guards, beat them
with bamboo sticks, and/or stabbed them with knives. Basa and Valencia were killed;
Aldana was seriously wounded, but Pacheco was unharmed.

As the prisoners were beating up the jail guards, accused-appellant who remained in
his cell was heard by Pacheco shouting to Briones words which were
ungrammatically translated during the trial as: "Alright, go ahead and kill those son of
a bitch" (tsn, March 4, 1991, p. 5).
Later, an investigation by the Integrated National Police (INP) of San Fernando,
Pampanga, showed that 6 firearms were missing from the prison armory.

Accused-appellant puts up the defense of denial. According to him, during the

jailbreak, he was inside Cell No. 1 together with the rest of his cell mates, including
Luisito Tolentino, Vivencio Feliciano, and a certain Lapid. There was a brownout and
he lay on the floor as gunshots were fired. He claims he had nothing to do with the
jailbreak and was implicated because the prosecution witnesses, who were
prisoners and jail guards, took offense against him because he had reported them
for drug trafficking inside the jail.

Persuaded by the prosecution's evidence, the trial court rendered its decision on
March 18, 1991, the decretal portion of which reads:

WHEREFORE, the Court finds accused Abelardo Parungao y Gatus guilty and
hereby sentences him to suffer the penalty of life imprisonment and to pay solidarily
(alongside with Romeo Pamintuan y Bautista, Edgar Pabalan y Benamira, Ronnie
Pilapil y Esaya and Mario Briones y Guinto) the following:

1. The heirs of the late Emilardo Valencia the total sum of P180,000.00, broken
down as follows: P50,000.00 for the death of Emilardo Valencia, P10,000.00 for
funeral/burial expenses; P100,000.00 for loss of earning capacity; P20,000.00 as
moral damages;

2. The heirs of the late Conrado Basa the total sum of P182,000.00 broken down as
follows: P50,000.00 for the death of Cornado Basa; P12,000.00 for funeral/burial
expenses; P100,000.00 for loss of earning capacity; P20,000.00 as moral damages;

3. Arnel Aldana the amount of P800.00;

4. Provincial Jail of San Fernando, Pampanga the amount of P41,100.00.

SO ORDERED.

(p. 43, Rollo.)

Accused-appellant anchors his appeal on what he considers to be reversible error on
the part of the trial court in accepting and giving full probative value to the hearsay
and uncorroborated testimony of the prosecution witnesses and on the basis thereof,
in finding him a co-conspirator and a principal by inducement.

The principal query posed, therefore, in the instant appeal is whether or not
accused-appellant is a co-conspirator and principal by inducement.

The prosecution presented four witnesses - Mario Quito, Ronnie Pilapil, Arnel
Aldana, and Fernando Pacheco to establish the existence of conspiracy and that
accused-appellant was co-conspirator and a principal by inducement in the
commission of the crime charged.

Mario Quito, a prisoner in Cell 2 testified that his cell mates Jun Solis and Edgar
Pabalan told him that the mastermind of the jailbreak was accused-appellant, based
on a letterr of Ramon Sevilla to Pabalan and Solis. Unfortunately, this letter was not
presented as evidence.

Ronnie Pilapil, also a detainee at the Pampanga Provincial Jail, declared that Mario
Briones and Mario Quito told him that Parungao had asked them to join in the
jailbreak.

Arnel Aldana, a jail guard testified that he was told by Mario Quito, Romeo
Pamintuan, and Ronnie Pilapil that accused-appellant Parungao was the
mastermind of the jailbreak.

Pacheco, a jail guard trainee declared that he heard accused-appellant Parungao

ask Briones to open Cell No. 1, shouting in the process, "Alright go ahead and kill
those son of a bitch."

Plainly the foregoing testimony of Quito, Pilapil, and Aldana that accused-appellant
was the mastermind of the jail break is not sufficient to prove such fact, such
evidence being merely hearsay because said witnesses testified and conveyed to
the court matters not of their own personal knowledge but matters only narrated to
them by other detainees. There is nothing in their testimony pointing to accused-
appellant as the very source of their information that he planned the jailbreak.
However, it must be noted that neither accused-appellant nor his counsel objected to
the admission of the testimony of Quito, Pilapil, and Aldana.

The general rule is that hearsay evidence is not admissible. However, the lack of
objection to hearsay testimony may result in its being admitted as evidence. But one
should not be misled into thinking that such declarations are thereby impressed with
probative value. Admissibility of evidence should not be equated with weight of
evidence. Hearsay evidence whether objected to or not can not be given credence
for it has no probative value.

We have consistently held that :

The failure of the defense counsel to object to the presentation of incompetent

evidence, like hearsay evidence or evidence that violates the rule of res inter alios
acta, or his failure to ask for the striking out of the same does not give such
evidence any probative value. The lack of objection may make any incompetent
evidence admissible. But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to or not has no probative
value (PEOPLE VS. VALERO, 112 SCRA 661 [1982]; Reiterated in PEOPLE VS.
NEBREJA, 203 SCRA 45 [1991]; PEOPLE VS. DAMASO, 212 SCRA 547
[1992]; Baguio vs. Court of Appeals, 226 SCRA 366 [1993]; PEOPLE VS.
CABINTOY, 247 SCRA 442 [1995]).
To give weight to the hearsay testimony of Quito, Pilapil, and Aldana, and to make
the same the basis for finding accused-appellant a co-conspirator and for imposing
the penalty of life imprisonment, gravely violates the hearsay rule and the
constitutional right of the accused-appellant to meet the witnesses face-to-face and
to subject the source of the information to the rigid test of cross-examination, the
only effective means to test their truthfulness, memory, and intelligence. In case of
conflict between a provision of the Constitution giving the accused a substantive
right and mere technical rules of evidence we have no choice but to give effect to the
Constitution (PEOPLE VS. VALERO,supra).
Obviously, the trial court gravely erred in accepting, and worse still, in giving weight
to the hearsay testimony of Quito, Pilapil, and Aldana, that accused appellant
masterminded the jailbreak, and was a co-conspirator. Too, it defies logic to say that
accused-appellant is the mastermind of the jailbreak, giving written instructions even,
but in the same breath say that he did not in fact join the jailbreak and sat meekly
inside his detention cell.

Again, we can not agree with the trial court that accused-appellant is guilty as
principal by inducement simply because as testified by jail guard Pacheco, he
shouted out words of encouragement to Briones. Accused-appellant's remarks or
utterances did not make him a principal by inducement.

This Court has held that for utterances of an accused to make him a principal by
inducement, the same must be of such a nature and uttered in such a manner as to
become the determining cause of the crime to serve such purpose, and that such
inducement was uttered with the intention of producing the result (PEOPLE VS.
CAIMBRE, et al., G.R. No. L-12087, Dec. 29, 1960, PEOPLE VS. CASTILLO, 17
SCRA 721 [1966]; PEOPLE VS. CANIAL, 46 SCRA 634 [1972]).

In other words, the inciting words must have great dominance and influence over the
person who acts; they ought to be direct and as efficacious, or powerful as physical
or moral coercion or violence itself. Thus, where the alleged inducement to commit
the crime was no longer necessary to incite the assailant, the utterer can not be held
accountable for the crime as a principal by inducement (PEOPLE VS. CANIAL, 46
SCRA 634, [1972]); People vs. Indanan, 24 Phil. 203).

In the case at bar, considering that the accused-appellant uttered the words only
after the prisoners who had escaped had already beaten up and killed jail guards
Basa and Valencia and seriously injured Aldana, accused-appellant's statement
cannot be taken as an order to kill. It taxes the imagination how the ungrammatically
translated declaration imputed to accused-appellant could become the moving cause
without which the jailbreakers would not have killed or harmed the victims. The jail
breakers had already killed the guards and needed no prodding or instigation from
anybody to kill. It appears, therefore, that the alleged proddings and urgings were no
longer necessary to induce the assailants to commit the crime.

Conspiracy has not been established beyond reasonable doubt. It is a rule that
although there is no direct evidence of prior agreement to commit the crime,
conspiracy may be inferred from the acts of the accused before, during, and after the
crime which are indicative of a joint purpose, concerted action, and concurrence of
sentiments (PEOPLE VS. DE LEON, et al., 245 SCRA 538 [1995]).

The record is bereft of any evidence indicating a prior plan or agreement between
accused-appellant and the other inmates in the implementation of a common design
to bolt jail, kill the guards, and rob the prison armory. There is no evidence that
accused-appellant participated in the killing of the two guards, Basa and Valencia,
nor in inflicting injuries on Aldana. In fact, accused-appellant before, during and after
the incident never left his cell.

In the light of the established circumstances, the Court is not convinced that there is
enough evidence to prove accused-appellant's guilt beyond the shadow of a doubt.
The paucity of such evidence only strengthens the suspicion that the prosecution
witnesses fabricated their testimony against accused-appellant because of his
having reported their drug trafficking activities in the provincial jail.

All told, the criminal complicity of accused-appellant, either as a co-conspirator or a

principal by inducement in the crime charged, has not been established beyond
reasonable doubt.

WHEREFORE, the decision appealed from is hereby SET

ASIDE and REVERSED. Accused-appellant Abelardo Parungao is
hereby ACQUITTEDand his immediate release from custody is ordered unless he is
being held on other legal grounds.

SO ORDERED.
[ GR No. 190846, Feb 03, 2016 ]

TOMAS P. TAN v. JOSE G. HOSANA +

DECISION

BRION, J.:
Before us is a petition for review on certiorari[1] challenging the August 28, 2009
decision[2] and November 17, 2009 resolution[3] of the Court of Appeals (CA) in CA-
G.R. CV No. 88645.

The Facts

The respondent Jose G. Hosana (Jose) married Milagros C. Hosana (Milagros) on

January 14, 1979.[4] During their marriage, Jose and Milagros bought a house and lot
located at Tinago, Naga City, which lot was covered by Transfer Certificate of Title
(TCT) No. 21229.[5]

On January 13, 1998, Milagros sold to the petitioner Tomas P. Tan, Jr. (Tomas) the
subject property, as evidenced by a deed of sale executed by Milagros herself and
as attorney-in-fact of Jose, by virtue of a Special Power of Attorney (SPA) executed
by Jose in her favor.[6] The Deed of Sale stated that the purchase price for the lot
was P200,000.00.[7] After the sale, TCT No. 21229 was cancelled and TCT No.
32568 was issued in the name of Tomas.[8]

On October 19, 2001, Jose filed a Complaint for Annulment of Sale/Cancellation of

Title/Reconveyance and Damages against Milagros, Tomas, and the Register of
Deeds of Naga City.[9] The complaint was filed before the Regional Trial Court (RTC),
Branch 62, Naga City. In the complaint, Jose averred that while he was working in
Japan, Milagros, without his consent and knowledge, conspired with Tomas to
execute the SPA by forging Jose's signature making it appear that Jose had
authorized Milagros to sell the subject property to Tomas.[10]

In his Answer, Tomas maintained that he was a buyer in good faith and for value.
[11]
 Before he paid the full consideration of the sale, Tomas claimed he sought advice
from his lawyer-friend who told him that the title of the subject lot was authentic and
in order.[12]Furthermore, he alleged that the SPA authorizing Milagros to sell the
property was annotated at the back of the title.[13]

Tomas filed a cross-claim against Milagros and claimed compensatory and moral
damages, attorney's fees, and expenses, for litigation, in the event that judgment be
rendered in favor of Jose.[14]

The RTC declared Milagros in default for her failure to file her answer to Jose's
complaint and Tomas' cross-claim.[15] On the other hand, it dismissed Tomas'
complaint against the Register of Deeds since it was only a nominal party.[16]

After the pre-trial conference, trial on the merits ensued.[17]

Jose presented his brother, Bonifacio Hosana (Bonifacio), as sole witness. Bonifacio
testified that he learned of the sale of the subject property from Milagros' son.
[18]
 When Bonifacio confronted Milagros that Jose would get angry because of the
sale, Milagros retorted that she sold the property because she needed the money.
Bonifacio immediately informed Jose, who was then in Japan, of the sale.[19]

Jose was furious when he learned of the sale and went back to the Philippines. Jose
and Bonifacio verified with the Register of Deeds and discovered that the title
covering the disputed property had been transferred to Tomas.[20]

Bonifacio further testified that Jose's signature in the SPA was forged.[21] Bonifacio
presented documents containing the signature of Jose for comparison: Philippine
passport, complaint-affidavit, duplicate original of SPA dated 16 February 2002,
notice of lis pendens, community tax certificate, voter's affidavit, specimen
signatures, and a handwritten letter.[22]

On the other hand, Tomas submitted his own account of events as corroborated by
Rosana Robles (Rosana), his goddaughter. Sometime in December 1997, Tomas
directed Rosana to go to the house of Milagros to confirm if Jose knew about the
sale transaction. Through a phone call by Milagros to Jose, Rosana was able to talk
to Jose who confirmed that he was aware of the sale and had given his wife
authority to proceed with the sale. Rosana informed Tomas of Jose's confirmation.[23]

With the assurance that all the documents were in order, Tomas made a partial
payment of P350,000.00 and another P350,000.00 upon the execution of the Deed
of Absolute Sale (Deed of Sale). Tomas noticed that the consideration written by
Milagros on the Deed of Sale was only P200,000.00; he inquired why the written
consideration was lower than the actual consideration paid. Milagros explained that it
was done to save on taxes. Tomas also learned from Milagros that she needed
money badly and had to sell the house because Jose had stopped sending her
money.[24]

The RTC Ruling

In its decision dated December 27, 2006,[25] the RTC decided in favor of Jose and
nullified the sale of the subject property to Tomas. The RTC held that the SPA dated
June 10, 1996, wherein Jose supposedly appointed Milagros as his attorney-in-fact,
was actually null and void.

Tomas and Milagros were ordered to jointly and severally indemnify Jose the
amount of P20,000.00 as temperate damages.[26]

The CA Ruling

Tomas appealed the RTC's ruling to the CA.

In a decision dated August 28, 2009,[27] the CA affirmed the RTC ruling that the deed
of sale and the SPA were void. However, the CA modified the judgment of the
RTC: first, by deleting the award of temperate damages; and second, by directing
Jose and Milagros to reimburse Tomas the purchase price of P200,000.00, with
interest, under the principle of unjust enrichment. Despite Tomas' allegation that he
paid P700,000.00 for the subject lot, the CA found that there was no convincing
evidence that established this claim.[28]

Tomas filed a motion for the reconsideration of the CA decision on the ground that
the amount of P200,000.00 as reimbursement for the purchase price of the house
and lot was insufficient and not supported by the evidence formally offered before
and admitted by the RTC. Tomas contended that the actual amount he paid as
consideration for the sale was P700,000.00, as supported by his testimony before
the RTC.[29]

The C A denied the motion for reconsideration for lack of merit" in a resolution dated
November 17, 2009.[30]

The Petition

Tomas filed the present petition for review on certiorari to challenge the CA ruling
which ordered the reimbursement of P200,000.00 only, instead of the actual
purchase price he paid in the amount of P700,000.00.[31]

Tomas argues that, first, all matters contained in the deed of sale, including the
consideration stated, cannot be used as evidence since it was declared null and
void; second, the deed of sale was not specifically offered to prove the actual
consideration of the sale;[32] third, his testimony establishing the actual purchase
price of P700,000.00 paid was uncontroverted;[33] and, fourth, Jose must return the
full amount actually paid under the principle of solutio indebiti.[34]

Jose, on the other hand, argues that first, Jose is estopped from questioning the
purchase price indicated in the deed of dale for failing to immediately raise this
question; and second, the terms of an agreement reduced into writing are deemed to
include all the terms agreed upon and no other evidence can be admitted other than
the terms of the agreement itself.[35]

The Issues

The core issues are (1) whether the deed of sale can be used as the basis for the
amount of consideration paid; and (2) whether the testimony of Tomas is sufficient to
establish the actual purchase price of the sale.

OUR RULING

We affirm the CA ruling and deny the petition.

Whether Tomas paid the purchase price of P700,000.00 is a question of fact not
proper in a petition for review on certiorari. Appreciation of evidence and inquiry on
the correctness of the appellate court's factual findings are not the functions of this
Court, as we are not a trier of facts.[36]

This Court does not address questions of fact which require us to rule on "the truth
or falsehood of alleged facts,"[37] except in the following cases:

(1) when the findings are grounded entirely on speculations, surmises, or

conjectures; (2) when the inference made is manifestly mistaken, absurd, or
impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is
based on misappreciation of facts; (5) when the findings of fact are conflicting; (6)
when in making its findings, the same are contrary to the admissions of both
appellant and appellee; (7) when the findings are contrary to those of the trial court;
(8) when the findings are conclusions without citation of specific evidence on which
they are based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent; and (10) when
the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record.[38]
The present case does not fall under any of these exceptions.

Whether Tomas sufficiently proved that he paid P700,000.00 for the subject property
is a factual question that the CA had already resolved in the negative.[39] The CA
found Tomas' claim of paying P700,000.00 for the subject property to be
unsubstantiated as he failed to tender any convincing evidence to establish his
claim.

We uphold the CA's finding.

In civil cases, the basic rule is that the party making allegations has the burden of
proving them by a preponderance of evidence.[40]Moreover, the parties must rely on
the strength of their own evidence, not upon the weakness of the defense offered by
their opponent.[41]

Preponderance of evidence is the weight, credit, and value of the aggregate

evidence on either side and is usually considered to be synonymous with the term
"greater weight of the evidence" or "greater weight of the credible
evidence."[42] Preponderance of evidence is a phrase that, in the last analysis, means
probability of the truth. It is evidence that is more convincing to the court as it is
worthier of belief than that which is offered in opposition thereto.[43]

We agree with the CA that Tomas' bare allegation that he paid Milagros the sum of
P700,000.00 cannot be considered as proof of payment, without any other
convincing evidence to establish this claim. Tomas' bare allegation, while
uncontroverted, does not automatically entitle it to be given weight and credence.

It is settled in jurisprudence that one who pleads payment has the burden of proving
it;[44] the burden rests on the defendant to prove payment, rather than on the plaintiff
to prove non-payment.[45] A mere allegation is not evidence,[46] and the person who
alleges has the burden of proving his or her allegation with the requisite quantum of
evidence, which in civil cases is preponderance of evidence.
The force and effect of a void contract is distinguished from its admissibility
as evidence.

The next question to be resolved is whether the CA correctly ordered the

reimbursement of P200,000.00, which is the consideration stated in the Deed of
Sale, based on the principle of unjust enrichment.

The petitioner argues that the CA erred in relying on the consideration stated in the
deed of sale as basis for the reimbursable amount because a null and void
document cannot be used as evidence.

We find no merit in the petitioner's argument.

A void or inexistent contract has no force and effect from the very beginning.[47] This
rule applies to contracts that are declared void by positive provision of law, as in the
case of a sale of conjugal property without the other spouse's written consent.[48] A
void contract is equivalent to nothing and is absolutely wanting in civil effects.[49] It
cannot be validated either by ratification or prescription.[50] When, however, any of
the terms of a void contract have been performed, an action to declare its
inexistence is necessary to allow restitution of what has been given under it.[51]

It is basic that if a void contract has already "been performed, the restoration of what
has been given is in order."[52] This principle springs from Article 22 of the New Civil
Code which states that "every person who through an act of performance by
another, or any other means, acquires or comes into possession of something at the
expense of the latter without just or legal ground, shall return the same." Hence, the
restitution of what each party has given is a consequence of a void and inexistent
contract.

While the terms and provisions of a void contract cannot be enforced since it is
deemed inexistent, it does not preclude the admissibility of the contract as evidence
to prove matters that occurred in the course of executing the contract, i.e., what each
party has given in the execution of the contract.

Evidence is the means of ascertaining in a judicial proceeding the truth respecting a

matter of fact, sanctioned by the Rules of Court.[53]The purpose of introducing
documentary evidence is to ascertain the truthfulness of a matter at issue, which can
be the entire content or a specific provision/term in the document.

The deed of sale as documentary evidence may be used as a means to ascertain

the truthfulness of the consideration stated and its actual payment. The purpose of
introducing the deed of sale as evidence is not to enforce the terms written in the
contract, which is an obligatory force and effect of a valid contract. The deed of sale,
rather, is used as a means to determine matters that occurred in the execution of
such contract, i.e., the determination of what each party has given under the void
contract to allow restitution and prevent unjust enrichment.

Evidence is admissible when it is relevant to the issue and is not excluded by the
law of these rules.[54] There is no provision in the Rules of Evidence which excludes
the admissibility of a void document. The Rules only require that the evidence is
relevant and not excluded by the Rules for its admissibility.[55]

Hence, a void document is admissible as evidence because the purpose of

introducing it as evidence is to ascertain the truth respecting a matter of fact, not to
enforce the terms of the document itself.

It is also settled in jurisprudence that with respect to evidence which appears to be

of doubtful relevancy, incompetency, or admissibility, the safer policy is to be liberal
and not reject them on doubtful or technical grounds, but admit them unless plainly
irrelevant, immaterial, or incompetent; for the reason that their rejection places them
beyond the consideration of the court, if they are thereafter found relevant or
competent. On the other hand, their admission, if they turn out later to be irrelevant
or incompetent, can easily be remedied by completely discarding them or ignoring
them.[56]

In the present case, the deed of sale was declared null and void by positive provision
of the law prohibiting the sale of conjugal property without the spouse's consent. It
does not, however, preclude the possibility that Tomas paid the consideration stated
therein. The admission of the deed of sale as evidence is consistent with the liberal
policy of the court to admit the evidence: which appears to be relevant in resolving
an issue before the courts.

An offer to prove the regular execution of the deed of sale is basis for the
court to determine the presence of the essential elements of the sale,
including the consideration paid.

Tomas argues that the Deed of Sale was not specifically offered to prove the actual
consideration of the sale and, hence, cannot be considered by the court. Tomas is
incorrect.

The deed of sale in the present case was formally offered by both parties as
evidence.[57] Tomas, in fact, formally offered it for the purpose of proving its execution
and the regularity of the sale.[58]

The offer of the deed of sale to prove its regularity necessarily allowed the; lower
courts to consider the terms written therein to determine whether all the essential
elements[59] for a valid contract of sale are present, including the consideration of the
sale. The fact that the sale was declared null and void does not prevent the court
from relying on consideration stated in the deed of sale to determine the actual
amount paid by the petitioner for the purpose of preventing unjust enrichment.

Hence, the specific offer of the Deed of Sale to prove the actual consideration of the
sale is not necessary since it is necessarily included in determining the regular
execution of the sale.

The consideration stated in the notarized Deed of Sale is prima facie evidence

of the amount paid by the petitioner.

The notarized deed of sale is a public document and is prima facie evidence of the
truth of the facts stated therein.[60]
Prima facie evidence is defined as evidence good and sufficient on its face. Such
evidence as, in the judgment of the law, is sufficient to establish a given fact, or the
group or chain of facts constituting the party's claim or defense and which if not
rebutted or contradicted, will remain sufficient.[61]

In the present case, the consideration stated in the deed of sale constitutes prima
facie evidence of the amount paid by Tomas for the transfer of the property to his
name. Tomas failed to adduce satisfactory evidence to rebut or contradict the
consideration stated as the actual consideration and amount paid to Milagros and
Jose.

The deed of sale was declared null and void by a positive provision of law requiring
the consent of both spouses for the sale of conjugal property. There is, however, no
question on the presence of the consideration of the sale, except with respect to the
actual amount paid. While the deed of sale has no force and effect as a contract, it
remains prima facie evidence of the actual consideration paid.

As earlier discussed, Tomas failed to substantiate his claim that he paid to Milagros
the amount of P700,000.00, instead of the amount of P200,000.00 stated in the deed
of sale. No documentary or testimonial evidence to prove payment of the higher
amount was presented, apart from Tomas' sole testimony. Tomas' sole testimony of
payment is self-serving and insufficient to unequivocally prove that Milagros received
P700,000.00 for the subject property.

Hence, the consideration stated in the deed of sale remains sufficient evidence of
the actual amount the petitioner paid and the same amount which should be
returned under the principle of unjust enrichment.

Unjust enrichment exists "when a person unjustly retains a benefit at the loss of
another, or when a person retains money or property of another against the
fundamental principles of justice, equity, and good conscience."[62] The prevention of
unjust enrichment is a recognized public policy of the State and is based on Article
22 of the Civil Code.[63]

The principle of unjust enrichment requires Jose to return what he or Milagros

received under the void contract which presumably benefitted their conjugal
partnership.

Accordingly, the CA correctly ordered Jose to return the amount of P200,000.00

since this the consideration stated in the Deed of Sale and given credence by the
lower court. Indeed, even Jose expressly stated in his comment that Tomas is
entitled to recover the money paid by him in the amount of P200,000.00 as
appearing in the contract.

WHEREFORE, we hereby DENY the petition for review on certiorari. The decision

dated August 28, 2009 and the resolution dated November 17, 2009, of the Court of
Appeals in CA-G.R. CV No. 88645 is AFFIRMED. Costs against the petitioner.

SO ORDERED.
G.R. No. L-40322             August 10, 1934

Intestate estate of the deceased Pedro de Gala. 

SINFOROSO DE GALA, petitioner-appellee, 
vs.
GENEROSO DE GALA and JOSEFA ALBASTRO, oppositors-appellants.

Agustin Alvarez for appellant De Gala.

Jose G. Generoso for appellant Alabastro.
Claro M. Recto and Francisco Lavides for appellee.

VILLA-REAL, J.:

This is an appeal taken by the oppositors Generoso de Gala and Josefa Alabastro
from the order of the Court of First Instance of Tayabas, the dispositive part of which
reads as follows:

Wherefore, the administrator Generoso de Gala and his mother Josefa

Alabastro are ordered to file with the office of the clerk of this court, within
twenty days from receipt of a copy of this order, a detailed account f their
administration of the entire estate of the deceased Pedro de Gala, which
should embrace the period from July 23, 1919, the date of the death of said
deceased, to January 14, 1929, and show separately the annual products of
each of the rice and coconut fields, which form the entire intestate estate. The
petitioner Sinforoso de Gala is granted a period of 15 days, from the date upon
which the administrator and his mother Josefa Alabastro file said accounting,
within which to file his written objections or comments thereon. So ordered.

In support of his appeal, the appellant Generoso de Gala assigns the following
alleged errors as committed by the trial court in its said order, to wit:

1. The lower court erred in holding that it had jurisdiction in these proceedings
to compel Generoso de Gala to render an accounting covering a period prior to
his appointment and qualification as a judicial administrator.

2. The lower court erred in unduly interpreting the decision rendered by the
Supreme Court in the case of Lopez vs. Garcia Lopez (40 Phil., 184), and
applying the ruling therein contained to this question on appeal.

3. The lower court has inadvertently failed to study and ignored some proven
questions of fact relative to the disputed point, thus giving rise to that part of its
order directing the rendition of separate accounts of the annual products of
each of the parcels of land belonging to the estate left by the deceased Pedro
de Gala.

In support of her appeal, the appellant Josefa Alabastro, in turn, assigns the
following sole alleged error as committed by the trial court in its said order, to wit:

The Court of First Instance of Tayabas erred in directing Josefa Alabastro, by

means of its orders of May 6,1932, and March 31, 1933, to "file with the office
 of the clerk of this court a detailed account of her administration of the entire
estate of the deceased Pedro de Gala", from July 23, 1919, to January 14,
1929.

The pertinent facts which are necessary for the resolution of the questions of the law
raised in this appeal are as follows:

On August 29, 1917, Sinforoso de Gala brought an action in the Court of First
Instance of Tayabas (civil case No. 483) against Pedro de Gala, praying that the
latter be compelled to acknowledge him as his natural child, basing his claim on an
alleged uninterrupted possession of the status of a natural child of said Pedro de
Gala. As the case was decided adversely to Sinforoso de Gala, he brought the same
on appeal to this court. On July 23, 1919, and while the appeal was pending, Pedro
de Gala died. Inasmuch as the case is not among those that are abated by reason
for the defendant's death, the latter's surviving wife Josefa Alabastro and his
legitimate son Generoso De Gala were substituted in his place, in accordance with
the provisions of section 119 of the Code of Civil Procedure.

Having found, in the course of the appeal, that the petitioner- appellee Sinforoso de
Gala had been in the uninterrupted possession of the status of a natural child of
Pedro de Gala, this court, on February 15, 1922, 1entered judgment the dispositive
part of which reads as follows:

For all of the foregoing reasons, the judgment of the lower court is hereby revoked,
with the costs of this instance against the appellees, and it is hereby ordered and
decreed that a judgment be entered, requiring the appellees, Josefa Alabastro and
Generoso de Gala, to recognize and acknowledge the appellant, Sinforoso de Gala,
as the natural son of the deceased Pedro de Gala. So ordered.

Having been declared and acknowledged natural child of Pedro de Gala, Sinforoso
de Gala, on July 26, 1922, filed with the said Court of First Instance of Tayabas the
petition which gave rise to his case, praying for the appointment of Ricardo Nadres
as administrator of the estate of the deceased Pedro de Gala.

Josefa Alabastro and Generoso de Gala, legitimate widow and son, respectively, of
the deceased Pedro de Gala, as above stated, opposed said petition.

When said petition was called for hearing on July 29, 1922, the parties, in open
court, signed the following stipulation of facts:

1. That all the facts and allegations contained in paragraphs 1, 2, 3, 4, 5, 6,

and 11 of the petition are admitted to be true, with the exception of the word "of
the value of approximately Five Hundred Thousand Pesos (P500, 000.00)"
contained in paragraph 3.

2. That the widow and the son Generoso de Gala and even the deceased,
during his lifetime, have not recognize or cared to recognize Sinforoso de
Gala, for which reason the action for acknowledgment of a natural child,
referred to in paragraph 4 of the petition, was brought during the lifetime of
said deceased, as a result of which a conflicting interest now exists among
them in connection with the hereditary portion of the natural child Sinforoso de
Gala.
 3. hat from the death of Pedro de Gala, the petitioner has not received
anything from the oppositors as fruits produced by the property that might be
allotted to or constitute the heredity portion of the petitioner.

4. That there is a divergence of opinion between the petitioner and the

oppositors regarding the value of the estate in question, for while the petitioner
estimates it at five hundred thousand pesos, the oppositors maintain that it
hardly amounts to forty thousand pesos.

5. That it is true that the oppositors have to date failed to institute in court
intestate proceedings of the deceased Pedro de Gala.

6. That it is likewise admitted by the petitioner and the oppositors that in or

about the middle of the year 1920, Josefa Alabastro and Generoso de Gala
executed a contract of partition of the estate left by the deceased Pedro de
Gala, stipulating that one-half thereof should belong to Josefa Alabastro and
the other half to Generoso de Gala, and in order not to subdivide the parcels of
land, they have to date been jointly managing the estate between them,
apportioning the fruits pro rata between themselves, and Generoso de Gala
delivering to his mother one-third of one-half of his products as usufruct; that
such is the condition of the estate, but Sinforoso de Gala did not intervene in or
consent to said partition because his case, No. 483 of this court, for
acknowledgment of a natural child, was pending; that his hereditary rights
cannot now be affected by said partition and that said Sinforoso de Gala does
not consider himself bound thereby.

7. That it is an admitted fact, having been investigated by all the parties to this
case, and it is so agreed, that the deceased left no debts and there are no
creditors of the estate or claims for debts against the deceased Pedro de Gala.

8. That the disputed point between the parties is as follows: The petitioner
maintains that the estate of the deceased should be placed under
administration and an administrator appointed, who must be neither one of the
oppositors; and the latter maintain the contrary, that is, it is not necessary to
place the estate under administration or to have an administrator appointed
and that the proper proceeding is an action for partition among the parties.

9. Both parties agree to file their written memorandums within ten days without
the necessity of serving copies upon each other, and to refrain, after filing the
memorandums, from further discussing the case either orally or in writing, thus
submitting to the decision of the court the question at issue between the
parties.

On September 16, 1922, the court, upon stipulating of facts and memorandums
submitted by the parties, entered an order the dispositive part of which reads as
follows:

Wherefore, the intestate proceeding of the deceased Pedro de Gala is

declared open and it is ordered that his estate be placed under administration,
thus overruling the opposition of his widow and legitimate son, Josefa
Alabastro and Generoso de Gala, respectively.
 As to who should be appointed administrator of the estate of the deceased
Pedro de Gala, the attorney for the petitioner is opposed to Josefa Alabastro
as well as to Generoso de Gala and proposes Ricardo Nadres, resident of
Candelaria, Province of Tayabas, for said post; for which reason, and in order
that Josefa Alabastro and Generoso de Gala may have the opportunity of
being previously heard, they are given a period of five days to show cause why
Ricardo Nadres, who has been proposed by the petitioner, should not be
appointed administrator, and for this purpose let a Saturday be set for the
hearing of the case.

After several incidents which are of no moment to the resolution of the questions
raised herein, the Court of First Instance of Tayabas, on May 6, 1932, entered an
order the dispositive part of which have been herein before quoted.

The principal question to be decided in this appeal is whether or not the court a
quo had jurisdiction to compel the oppositor-appellant Generoso de Gala to render
an accounting of his administration of that portion which had been allotted to him in
an extra judicial partition between him and his mother, of the estate of the said
deceased Pedro de Gala, prior to his appointment as judicial administrator of said
estate, and the oppositor Josefa Alabastro, of her administration of the estate of her
deceased husband Pedro de Gala, prior to said partition, and of one-half of the
conjugal property which had been allotted to her in the liquidation made by her.

In maintaining the negative, Generoso de Gala alleges that "the courts of justice lack
jurisdiction to order the rendition of accounts in testamentary cases when no case or
special proceeding for the settlement of an estate is pending before them," citing in
support of his contention the doctrine laid down by this court in the case
of Nepomuceno vs. Carlos (9 Phil., 194), which reads as follows:

1. WILLS; NECESSARY CONDITION FOR THE EXERCISE OF PROBATE

JURISDICTION.—In order that a Court of First Instance may exercise its
probate jurisdiction, as conferred by section 599 of the Code of Civil Procedure
which went into effect on October 1, 1901, it is essential that there should be
pending in the court some judicial proceeding for the settlement of the estate of
a deceased person.

However, he admits that in subsequent decisions, particularly in that rendered in the

case of Lopez vs. Garcia Lopez (40 Phil., 184), wherein the above cited case
of Nepomuceno vs. Carlos was discussed and differentiated, the following doctrine
was laid down:

1. EXECUTORS AND ADMINISTRATORS; EXTRA JUDICIAL

MANAGEMENT PRIOR TO APPOINTMENTS OF ADMINISTRATOR;
LIABILITY OF ADMINISTRATOR TO ACCOUNT.—By agreement among the
numerous children of a deceased person, the management of the estate was
confided to the widow, their mother, who accordingly administered the property
extrajudicially for many years. Finally the will of the decedent was proved, and
the widow was appointed administratrix. Held: That the Court of First Instance,
in the exercise of its probate authority, has jurisdiction to require such
administratrix to account for her management of the estate during the time she
acted as extrajudicial manager prior to her appointment as administratrix.
 2. ID.; ID.; ACCOUNTABILITY OF CUSTODIAN OR MANGER QUALIFYING
AS ADMINISTRATOR.—All persons who come into possession of property
belonging to any decedent are liable therefor and accountable to the lawful
administrator when the estate is finally drawn into judicial administration; and
this responsibility extend to the restoration of the fruits, increase, and
accessions of such property as well as to surrender of its proceeds, where it
has been sold, or exchanged, and to compensation for its value where it has
been appropriated, converted or consumed. When it occurs, as here, that the
person qualifying as administrator is the same as the one who acted as
custodian and manager prior to the inception of the administration
proceedings, his duty to account is no less insistent and inevitable.

Generoso de Gala's contention, therefore, is unfounded and is contrary to the rulings

of this court.

As to the question raised by Josefa Alabastro, it is well first determine the time from
which the declaration of this court in its decision rendered on February 15, 1922, in
the case of De Gala vs. De Gala (42 Phil., 771), cited above, to the effect that the
petitioner Sinforoso de Gala is an acknowledged natural child of the deceased Pedro
de Gala, justified by the latter's own conduct and that of this family (article 135, Civil
Code), legally took effect.

Article 134 of the civil code provides that an acknowledged natural child is entitled, in
such case, to receive the heredity portion determined by the said Code, and article
657 of the same code provides that the right to the succession of a person are
transmitted from the moment of his death.

It will be noted that the law is silent as to the time from which a judicial declaration
regarding the existence of the acknowledgment possession of the status thereof,
justified by the conduct of the father himself and that of his family, should take effect.
If an acknowledged natural child is entitled to inherit from his natural parent and its
right to the succession of its said parent is transmitted from the moment of the
latter's death, the legal effects of the judicial declaration of the existence of a tacit
acknowledgment of a natural child should retroact not only to the date on which said
decedent died, but to the date of the child's birth, (1 Colin y Capitan, Derecho Civil,
paragraph 557; 1 M. Planiol, Traite Elementaire de Droit Civil, 494). If the judicial
declaration to the effect that a a person is acknowledged natural child were to take
effect only from the date of its promulgation, the provisions f article 137 of the Civil
Code, which, in certain cases, authorize the commencement of an action for the
acknowledgment of a natural child even after the death of the father or the mother,
would be nugatory because if said declaration did not have a retroactive effect, the
natural child, if of age, or its guardian, if a minor, would be unable to intervene in the
settlement of the estate of its deceased natural parent at the latter's death, in order
to protect its hereditary rights.

According to repeated rulings of this court interpreting section 685 of the Code of
Civil Procedure, when the husband dies, the conjugal property must be liquidated by
the administrator appointed in his testamentary or intestate proceedings, not by the
surviving wife (Enriquez vs. Victoria, 10 Phil., 10; Alfonso vs. Natividad, 6 Phil., 240).
It is true that according to section 596 of the Code of Civil Procedure, whenever all
the heirs of a decedent are of lawful age and legal capacity and there are no debts
due from the estate, they may apportion ad divide the estate among themselves, as
they may see fit, without proceedings in court. Although in this case the widow and
the legitimate son of the deceased Pedro de Gala are of lawful age and no debts are
due from the estate, however, when, as of a natural child brought against the
deceased, during his lifetime, and continued against his widow son, in his stead,
after his death, which action affected the state of said deceased Pedro de Gala until
said action is decided. inasmuch as the liquidation by Josefa Alabastro, widow of
Pedro de Gala, of the conjugal partnership formed by the two, as well as the
extrajudicial partition of the half allotted to the deceased under such liquidation, is
illegal, each of the oppositors, upon taking possession of his respective portion,
became an officious manager of said portion (article 1888, Civil Code), under
obligation to render an accounting of his administration thereof to the court which
takes cognizance of the intestate proceedings of the deceased.

The herein oppositor-appellant Josefa Alabastro is, therefore bound to render an

accounting to the trial court of her administration of the entire estate of the decedent
Pedro de Gala from July 14, 1929.

As to the appeal of the other oppositor-appellant Generoso de Gala, all that has
been said relative to the appeal of his mother Josefa Alabastro, is applicable to him.

Neither the oppositor-appellant Josefa Alabastro nor her son, the other oppositor-
appellant Generoso de Gala, can invoke in their favor acquisition by prescription
through possession of the property for more than ten years inasmuch as their
character of officious managers and their inclusion as defendants instead of their
deceased husband and father, respectively, in the action acknowledgment of a
natural child instituted by the petitioner-appellee Sinforoso de Gala, estop them from
invoking in their favor uninterrupted possession (article 1945, Civil Court).

In view of the foregoing considerations, this court is of the opinion and so holds: (1)
That the liquidation of the conjugal property by the widow upon her husbands death,
not being authorized by section 685 of the Code of Civil Procedure, is illegal and null
(Alfonso vs. Natividad, 6 Phil., 240; Enriquez vs. Victoria, 10 Phil., 10); (2) that the
effects of a judicial declaration that a person is a natural and acknowledged child,
made after the death of the defendant parent, retroact to the date of the said child's
birth; 3 that an extrajudicial partition made among themselves by heirs of legal age,
pending an action for the acknowledgment of a natural child brought against the
predecessor of the inheritance during his lifetime, and his heirs, by substitution, after
his death, is illegal and null (section 596, Act No. 190), inasmuch as said action
implies a claim for inheritance, and (4) that the possession by the widow, of one-half
of the illegally liquidated conjugal property as well as that by the heir, of the
hereditary portion which was allotted to him in the illegal extrajudicial partition, is that
of an officious manager under obligation to render an accounting of his
administration o the probate of intestate court.

Wherefore, finding no error in the appealed order, the same is affirmed in all its
parts, with costs against the appellants. So ordered.
G.R. No. 89114 December 2, 1991

FRANCISCO S. TANTUICO, JR., petitioner, 

vs.
REPUBLIC OF THE PHILIPPINES, PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, MATEO A. T. CAPARAS, AND THE
SANDIGANBAYAN, respondents.

Kenny H. Tantuico for petitioner.

PADILLA, J.:

In this petition for certiorari, mandamus and prohibition with a prayer for the issuance

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

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

The antecedents are as follows:

On 31 July 1987, the Republic of the Philippines, represented by the PCGG, and assisted by the Office of the Solicitor General, filed with the
Sandiganbayan Civil Case No. 0035, entitled "Republic of the Philippines vs. Benjamin (Kokoy) Romualdez, et al." for reconveyance, reversion,
accounting, restitution and damages. 2

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

Petitioner Francisco S. Tantuico, Jr. was included as defendant in Civil Case No. 0035 on the theory that: (1) he acted in unlawful concert with the
principal defendants in the misappropriation and theft of public funds, plunder of the nation's wealth, extortion, blackmail, bribery, embezzlement
and other acts of corruption, betrayal of public trust and brazen abuse of power; 3
 (2) he acted as dummy, nominee or
agent, by allowing himself to be incorporator, director, board member and/or
stockholder of corporations beneficially held and/or controlled by the principal
defendants; 4 (3) he acted singly or collectively, and/or in unlawful concert with one
another, in flagrant breach of public trust and of their fiduciary obligations as public
officers, with gross and scandalous abuse of right and power and in brazen violation
of the Constitution and laws of the Philippines, embarked upon a systematic plan to
accumulate ill-gotten wealth ; 5(4) he (petitioner) taking undue advantage of his
position as Chairman of the Commission on Audit and with grave failure to perform
his constitutional duties as such Chairman, acting in concert with defendants
Ferdinand E. Marcos and Imelda R. Marcos, facilitated and made possible the
withdrawals, disbursements and questionable use of government funds; 6 and (5) he
acted as dummy, nominee and/or agent by allowing himself to be used as instrument
in accumulating ill-gotten wealth through government concessions, orders and/or
policies prejudicial to plaintiff, or to be incorporator, director, or member of
corporations beneficially held and/or controlled by defendants Ferdinand E. Marcos,
Imelda R. Marcos, Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez in
order to conceal and prevent recovery of assets illegally obtained. 7
On 11 April 1988, after his motion for production and inspection of documents 8
 was denied by respondent court in its
9
resolution   dated 9 March 1988, petitioner filed a Motion for a Bill of
Particulars, 10 alleging inter alia that he is sued for acts allegedly committed by him
as (a) a public officer-Chairman of the Commission on Audit, (b) as a private
individual, and (c) in both capacities, in a complaint couched in too general terms
and shorn of particulars that would inform him of the factual and legal basis thereof,
and that to enable him to understand and know with certainty the particular acts
allegedly committed by him and which he is now charged with culpability, it is
necessary that plaintiff furnish him the particulars sought therein relative to the
averments in paragraphs 2, 9(a), 15, 7 and 17 of the Second Amended Complaint so
that he can intelligently prepare his responsive pleading and prepare for trial. The
particulars sought for in the said motion are as follows:

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

Amended Complaint:

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

ii) What ministries or Departments, offices or agencies of the government

were involved in these questionable use of government funds;

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

iv) How much government funds were involved in these questionable-

disbursements, individually and in totally?

v) Were the disbursements brought to herein defendant for action on pre-

audit, post-audit or otherwise or where they initiated and/or allowed
 release by herein defendant alone, without them undergoing usual
governmental audit procedures, or in violation thereof.?

vi) What were herein defendant's other acts or omission or participation

in the matter of allowing such disbursements and questionable use of
government funds, if any?

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

i) In what particular contract, dealing, transaction and/or relationship of

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

ii) What particular government concession, order and/or policy obtained

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

iii) Please specify the name or denominate the particular government

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

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

The Solicitor General, for and in behalf of respondents (except the respondent
Sandiganbayan), opposed the motion. 11 After the petitioner had filed his
reply 12 thereto, the respondent Sandiganbayan promulgated on 21 April 1990
a resolution 13 denying the petitioner's motion for a bill of particulars on the
ground that the particulars sought by petitioner are evidentiary in nature, the
pertinent part of which resolution reads, as follows:
 We are of the considered opinion that the allegations in the Expanded
Complaint are quite clear and sufficient enough for defendant-movant to
know the nature and scope of the causes of action upon which plaintiff
seeks relief. They provide the factual scenario which, coupled with other
allegations set forth in the "Common Averments" and further specified in
the "Specific Averments" of herein defendant-movant and his co-
defendants' illegal acts which are within defendant-movant's peculiar and
intimate knowledge as a government official and corporate executive, will
enable him to make the proper admission, denials or qualifications, set
out affirmative and/or special defenses and thereafter prepare for trial.
Evidentiary facts or matters are not essential in the pleading of the cause
of action, nor to details or probative value or particulars of evidence by
which these material evidence are to be established (Remitere vs. Yulu,
6 SCRA 251). The matters which he seeks are evidentiary in nature and,
being within his intimate or personal knowledge, may be denied or
admitted by him or if deemed necessary, be the subject of other forms of
discovery. 14
Petitioner moved for reconsideration 15
 but this was denied by respondent Sandiganbayan in
16
its resolution   dated 29 May 1990.

Hence, petitioner filed the present petition.

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

Petitioner argues that the allegations of the Second Amended Complaint in

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

On the other hand, the respondent Sandiganbayan, by and through the

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

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

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

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

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

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

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

Those facts which are necessary for determination of the ultimate facts;
they are the premises upon which conclusions of ultimate facts are
based. Womack v. Industrial Comm., 168 Colo. 364,451 P. 2d 761, 764.
Facts which furnish evidence of existence of some other fact. 22
Where the complaint states ultimate facts that constitute the three (3) essential elements of a cause of action, namely: (1) the legal right
of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right,
the complaint states a cause of action, otherwise, the complaint must succumb to a motion to dismiss on that ground of failure to state a
cause of action. 23
 However, where the allegations of the complaint are vague,
indefinite, or in the form of conclusions, the proper recourse would be, not a
motion to dismiss, but a motion for a bill of particulars. 24 Thus, Section 1, Rule
12 of the Rules of Court provides:

Before responding to a pleading or, if no responsive pleading is

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

In this connection, the following allegations have been held as mere

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

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

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

GENERAL AVERMENTS

OF

DEFENDANTS' ILLEGAL ACTS

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

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

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

(b-ii) the transfer of such funds, securities, reserves and other assets and property to payees or transferees of his
choice and whether and in what manner such transactions should be recorded in the books and records of these
institutions and other depositories of Plaintiff;
10. Among others, in furtherance of the plan and acting in the manner referred to above, in unlawful concerted with one
another and with gross abuse of power and authority, Defendants Ferdinand E. Marcos and Imelda R. Marcos;

x x x           x x x          x x x

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

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

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

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

x x x           x x x          x x x

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

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

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

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

SPECIFIC AVERMENTS

OF

DEFENDANTS' ILLEGAL ACTS

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

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

x x x           x x x          x x x

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

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

(iv) Additional funding was provided from the related interests; and

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

x x x           x x x          x x x

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

x x x           x x x          x x x

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

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

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

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

x x x           x x x          x x x

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

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

As quoted above, paragraph 9(a) of the complaint alleges that "Defendant Ferdinand E. Marcos, together with other Defendants, acting
singly or collectively, and/or in unlawful concert with one another, in flagrant breach of public trust and of their fiduciary obligations as
public officers, with gross and scandalous abuse of right and power and in brazen violation of the Constitution and laws of the
Philippines, embarked upon a systematic plan to accumulate ill-gotten wealth." In the light of the rules on pleading and case law cited
above, the allegations that defendant Ferdinand E. Marcos, together with the other defendants "embarked upon a systematic plan to
accumulate ill-gotten wealth" and that said defendants acted "in flagrant breach of public trust and of their fiduciary obligations as public
officers, with gross and scandalous abuse of right and in brazen violation of the Constitution and laws of the Philippines",  are
conclusions of law unsupported by factual premises.

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

Likewise, paragraph 15 avers that "defendant Francisco Tantuico, taking undue advantage of his position as Chairman of the
Commission on Audit and with grave failure to perform his constitutional duties as such Chairman, acting in concert with Defendants
Ferdinand E. Marcos and Imelda R. Marcos facilitated and made possible the withdrawals, disbursements and questionable use of
government funds as stated in the foregoing paragraphs to the grave and irreparable damage and injury of Plaintiff and the entire
Filipino people." In like manner, the allegation that petitioner "took undue advantage of his position as Chairman of the Commission on
Audit," that he "failed to perform his constitutional duties as such Chairman," and acting in concert with Ferdinand E. Marcos and Imelda
R. Marcos, "facilitated and made possible the withdrawals, disbursements, and questionable use of government funds as stated in the
foregoing paragraphs, to the grave and irreparable damage and injury of plaintiff and the entire Filipino people", are mere conclusions of
law. Nowhere in the complaint is there any allegation as to how such duty came about, or what petitioner's duties were, with respect to
the alleged withdrawals and disbursements or how petitioner facilitated the alleged withdrawals, disbursements, or conversion of public
funds and properties, nor an allegation from where the withdrawals and disbursements came from, except for a general allegation that
they came from the national treasury. On top of that, the complaint does not even contain any factual allegation which would show that
whatever withdrawals, disbursements, or conversions were made, were indeed subject to audit by the COA.
In this connection, it may well be stated that the Commission on Audit (COA) is an independent, constitutional commission, which has no
power or authority to withdraw, disburse, or use funds and property pertaining to other government offices or agencies. This is done by
the agency or office itself, the chief or head of which is primarily and directly responsible for the funds and property pertaining to such
office or agency. 32
 The COA is merely authorized to audit, examine and settle
accounts of the various government offices or agencies, and this task is
performed not by the Chairman of the COA but by the COA auditors assigned
to the government office or agency subject to COA audit.

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

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

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

The complaint further avers in paragraph 17 that "(t)he following Defendants

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

The complaint does not contain any allegation as to how petitioner became, or
why he is perceived to be, a dummy, nominee or agent. Besides, there is no
averment in the complaint how petitioner allowed himself to be used as
instrument in the accumulation of ill-gotten wealth, what the concessions,
orders and/or policies prejudicial to plaintiff are, why they are prejudicial, and
what petitioner had to do with the granting, issuance, and or formulation of
such concessions, orders, and/or policies. Moreover, Annex "A" of the
complaint lists down sixty-one (61) corporations which are supposed to be
beneficially owned or controlled by the Marcoses and Romualdezes. However,
the complaint does not state which corporations petitioner is supposed to be a
stockholder, director, member, dummy, nominee and/or agent. More
significantly, the petitioner's name does not even appear in Annex "B" of the
complaint, which is a listing of the alleged "Positions and Participations of
Some Defendants".

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

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

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

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

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

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

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

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

SO ORDERED.

G.R. No. 106429 June 13, 1994

JOSELITA SALITA, petitioner, 
vs.
HON. DELILAH MAGTOLIS, in her capacity as Judge of the RTC, Quezon City,
Br. 107, and ERWIN ESPINOSA, respondents.

Alfredo F. Tadiar for petitioner.

Yolanda, Quisumbing-Javellana & Associates for private respondent.

BELLOSILLO, J.:

Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman Catholic
Church in Ermita, Manila, on 25 January 1986. A year later, their union turned sour.
They separated in fact in 1988. Subsequently, Erwin sued for annulment on the
ground of Joselita’s psychological incapacity.

The issue before us however is not the scope nor even the interpretation of Art. 36 of
the Family Code. 1 Rather, the issue is the sufficiency of the allegations in the
petition for annulment of marriage and the subsequent bill of particulars filed in
amplification of the petition.

The petition for annulment was filed before the Regional Trial Court of Quezon City
on 7 January 1992. Therein it is alleged that "[s]ometime in 1987, petitioner came to
realize that respondent was psychologically incapacitated to comply with the
essential marital obligations of their marriage, which incapacity existed at the time of
the marriage although the same became manifest only thereafter." 2 Dissatisfied with
the allegation in the petition, Joselita moved for a bill of particulars which the trial
court granted. 3 Subsequently, in his Bill of Particulars, Edwin specified that —

. . . at the time of their marriage, respondent (Joselita Salita) was

psychologically incapacitated to comply with the essential marital
obligations of their marriage in that she was unable to understand and
accept the demands made by his profession — that of a newly qualified
Doctor of Medicine — upon petitioner’s time and efforts so that she
frequently complained of his lack of attention to her even to her mother,
whose intervention caused petitioner to lose his job.

Still Joselita was not contented with the Bill of Particulars. She argued that the
"assertion (in the Bill of Particulars) is a statement of legal conclusion made by
petitioner’s counsel and not an averment of ‘ultimate facts,’ as required by the Rules
of Court, from which such a conclusion may properly be inferred . . . ." 4 But finding
the questioned Bill of Particulars adequate, the trial court issued an order upholding
its sufficiency and directing Joselita to file her responsive pleading.

Joselita was not convinced. She filed a petition for certiorari with us. However, we
referred her petition to the Court of Appeals for resolution.

On 21 July 1992, the Court of Appeals denied due course to her petition thus —

In the case under consideration, Espinosa has amplified Salita’s alleged

psychological incapacity in his bill of particulars . . .

In our view, the aforesaid specification more than satisfies the Rules’
requirement that a complaint must allege the ultimate facts constituting a
plaintiff’s cause of action. To require more details thereof, to insist on a
specification of Salita’s particular conduct or behavior with the
corresponding ‘circumstances of time, place and person’ indicating her
alleged psychological incapacity would be to ask for information on
evidentiary matters. To obtain evidentiary details, Salita may avail herself
 of the different modes of discovery provided by the Rules of Court
(Rules 24 to 28).

Whether Espinosa’s averments in his bill of particulars constitute

psychological incapacity in the contemplation of the Family Code is a
question that may be resolved in a motion to dismiss or after trial on the
merits of the case, not in a motion for bill of particulars. And certainly,
that matter cannot be resolved in the present petition. 5

Hence, the instant petition for review on certiorari filed by Joselita Salita questioning
the Resolution of the Court of Appeals denying due course to her petition.

Petitioner insists that the allegations in the Bill of Particulars constitute a legal
conclusion, not an averment of facts, and fail to point out the specific essential
marital obligations she allegedly was not able to perform, and thus render the Bill of
Particulars insufficient if not irrelevant to her husband’s cause of action. She
rationalizes that her insistence on the specification of her particular conduct or
behavior with the corresponding circumstances of time, place and person does not
call for information on evidentiary matters because without these details she cannot
adequately and intelligently prepare her answer to the petition.

Private respondent on the other hand believes that his allegations in the Bill of
Particulars constitute the ultimate facts which the Rules of Court requires at this
point. He defines ultimate facts as —

. . . important and substantial facts which either directly form the basis of
the primary right and duty, or which directly make upon the wrongful acts
or omissions of the defendant. The term does not refer to the details of
probative matter or particulars of evidence by which these material
elements are to be established. It refers to principal, determinate facts
upon the existence of which the entire cause of action rests. 6

Ultimate facts are conclusions drawn from intermediate and evidentiary

facts, or allegations of mixed law and fact; they are conclusions from
reflection and natural reasoning on evidentiary fact. The ultimate facts
which are to be pleaded are the issuable, constitutive, or traversible facts
essential to the statement of the cause of action; the facts which the
evidence on the trial will prove, and not the evidence which will be
required to prove the existence of those facts . . . 7

Private respondent further argues that "[c]onclusions of law and evidentiary matters
need not be stated in the complaint. The rules of pleading limit the statement of the
cause of action only to such operative facts as would give rise to the right of action of
the plaintiff to obtain relief against the wrongdoer. The details of probative matter or
particulars of evidence, statements of law, inferences and arguments need not be
stated." 8

In a nutshell, the ultimate question is whether the Bill of Particulars submitted by

herein respondent is of sufficient definiteness or particularity as to enable herein
petitioner to properly prepare her responsive pleading or for trial.
A complaint only needs to state the "ultimate facts constituting the plaintiff’s cause or
causes of action." 9 Ultimate facts has been defined as "those facts which the
expected evidence will support." 10 As stated by private respondent, "[t]he term does
not refer to the details of probative matter or particulars of evidence by which these
material elements are to be established." It refers to "the facts which the evidence on
the trial will prove, and not the evidence which will be required to prove the existence
of those facts." And a motion for bill of particulars will not be granted if the complaint,
while not very definite, nonetheless already states a sufficient cause of action. 11 A
motion for bill of particulars may not call for matters which should form part of the
proof of the complaint upon trial. Such information may be obtained by other
means. 12

We sustain the view of respondent Court of Appeals that the Bill of Particulars filed
by private respondent is sufficient to state a cause of action, and to require more
details from private respondent would be to ask for information on evidentiary
matters. Indeed, petitioner has already been adequately apprised of private
respondent’s cause of action against her thus —

. . . . (she) was psychologically incapacitated to comply with the essential

marital obligations of their marriage in that she was unable to understand
and accept the demands made by his profession — that of a newly
qualified Doctor of Medicine — upon petitioner’s time and efforts so that
she frequently complained of his lack of attention to her even to her
mother, whose intervention caused petitioner to lose his job.

On the basis of the aforequoted allegations, it is evident that petitioner can already
prepare her responsive pleading or for trial. Private respondent has already alleged
that "she (petitioner) was unable to understand and accept the demands made by
his profession . . . upon his time and efforts . . . " Certainly, she can respond to this.
To demand for more details would indeed be asking for information on evidentiary
facts — facts necessary to prove essential or ultimate facts. 13 For sure, the
additional facts called for by petitioner regarding her particular acts or omissions
would be evidentiary, and to obtain evidentiary matters is not the function of a motion
for bill of particulars. 14

We distinguish the instant case from Tantuico, Jr. v. Republic 15 where we said —

Furthermore, the particulars prayed for such as names of persons,

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

The aforementioned pronouncement cannot apply to the instant case. That ruling
involves alleged "misappropriation and theft of public funds, plunder of the nation’s
wealth, extortion, blackmail, bribery, embezzlement, and other acts of corruption,
betrayal of public trust and brazen abuse of power." The respondents therein pray
for reconveyance, reversion, accounting, restitution and damages. There, the
alleged illicit acts should be fully documented. The instant case, on the other hand,
concerns marital relationship. It would be unreasonable, if not unfeeling, to
document each and every circumstance of marital disagreement. True, the
complaining spouse will have to prove his case, but that will not come until trial
begins.

Consequently, we have no other recourse but to order the immediate resumption of

the annulment proceeding which have already been delayed for more than two years
now, even before it could reach its trial stage. Whether petitioner is psychologically
incapacitated should be immediately determined. There is no point in unreasonably
delaying the resolution of the petition and prolonging the agony of the wedded
couple who after coming out from a storm still have the right to a renewed blissful life
either alone or in the company of each other.

A word on Art. 36 of the Family Code. 16 We do not see the need to define or limit the
scope of the provision. Not in this case, at least. For, we are not called upon to do
so, the actual controversy being the sufficiency of the bill of particulars. To interpret
the provision at this juncture would be to give an obiter dictum which is ill-timed.
Besides, it appears that petitioner in her memorandum has demonstrated a good
grasp of what Art. 36 actually covers. Suffice it to say that Mme. Justice Sempio-Diy,
formerly of the Court of Appeals and a member of the Civil Code Revision
Committee that drafted the Family code, explains —

The Committee did not give any examples of psychological incapacity for
fear that the giving of examples would limit the applicability of the
provision under the principle of ejusdem generis. Rather, the Committee
would like the judge to interpret the provision on a case-to-case basis,
guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which,
although not binding on the civil courts, may be given persuasive effect
since the provision was taken from Canon Law. 17

WHEREFORE, there being no reversible error, the instant petition is DENIED and
the questioned Resolution of respondent Court of Appeals dated 21 July 1992 is
AFFIRMED.

SO ORDERED.

[ GR NO. 153699, Aug 22, 2005 ]

CIRSE FRANCISCO 'CHOY' TORRALBA v. PEOPLE +

DECISION
505 Phil. 71

CHICO-NAZARIO, J.:
This is a petition for review on certiorari of the Decision[1] promulgated on 22 May
2002 of the Court of Appeals in CA-G.R. CR No. 24818 which affirmed, with
modification, the trial court's[2] decision finding petitioner Cirse Francisco "Choy"
Torralba guilty of the crime of libel in Criminal Case No. 9107.

Culled from the records are the following facts:

Petitioner Torralba was the host of a radio program called "Tug-Ani ang Lungsod"
which was aired over the radio station DYFX in Cebu City. On 12 September 1994,
an information for libel was filed before the Regional Trial Court (RTC) of Tagbilaran
City against petitioner Torralba. The information states:

The undersigned, City Prosecutor II, City of Tagbilaran, Philippines, hereby accuses
CIRSE FRANCISCO "CHOY" TORRALBA for the crime of Libel, committed as
follows:

That, on or about the 11th day of April, 1994, in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously, with deliberate and malicious
intent of maligning, impeaching and discrediting the honesty, integrity, reputation,
prestige and honor of late CFI Judge Agapito Y. Hontanosas, who was during his
[lifetime] a CFI Judge of Cebu and a man of good reputation and social standing in
the community and for the purpose of exposing him to public hatred, contempt,
disrespect and ridicule, in his radio program "TUG-ANI AND LUNGSOD" (TELL THE
PEOPLE) over radio station DYFX, openly, publicly and repeatedly announce[d] the
following: "KINING MGA HONTANOSAS, AGAPITO HONTANOSAS UG CASTOR
HONTANOSAS, MGA COLLABORATOR SA PANAHON SA GUERRA. SA ATO
PA, TRAYDOR SA YUTANG NATAWHAN." X X X. "DUNAY DUGO NGA
PAGKATRAYDOR ANG AMAHAN NI MANOLING HONTANOSAS," which in
English means: "THESE HONTANOSAS, AGAPITO HONTANOSAS AND CASTOR
HONTANOSAS, ARE COLLABORATORS DURING THE WAR. IN OTHER
WORDS, THEY ARE TRAITORS TO THE LAND OF THEIR BIRTH." X X X. "THE
FATHER OF MANOLING HONTANOSAS HAD TREACHEROUS BLOOD," and
other words of similar import, thereby maliciously exposing the family of the late
Judge Agapito Hontanosas including Atty. Manuel L. Hontanosas,[3] one of the
legitimate children of [the] late CFI Judge Agapito Y. Hontanosas to public hatred,
dishonor, discredit, contempt and ridicule causing the latter to suffer social
humiliation, embarrassment, wounded feelings and mental anguish, to the damage
and prejudice of said Atty. Manuel L. Hontanosas in the amount to be proved during
the trial of the case.

Acts committed contrary to the provisions of Article 353 of the Revised Penal Code
in relation to Article 355 of the same Code.

City of Tagbilaran, Philippines, September 8, 1994.

(SGD.) ADRIANO P. MONTES

City Prosecutor II
APPROVED:
(SGD) MARIANO CAPAYAS
City Prosecutor[4]
Upon arraignment on 12 March 1996, petitioner Torralba pleaded not guilty to the
crime he was charged with.[5]

On 14 May 1998, petitioner Torralba filed before the RTC, Branch 1, Tagbilaran City,
where Crim. Case No. 9107 was raffled off, a motion for consolidation[6] alleging
therein that private complainant Atty. Manuel Hontanosas (Atty. Hontanosas) filed a
total of four (4) criminal cases for libel against petitioner Torralba, three of which -
Crim. Cases No. 8956, No. 8957, and No. 8958 - were then pending with the RTC,
Branch III, Tagbilaran City. As the evidence for the prosecution as well as the
defense were substantially the same, petitioner Torralba moved that Crim. Case No.
9107 be consolidated with the three other cases so as to save time, effort, and to
facilitate the early disposition of these cases.

In its order dated 25 May 1998,[7] the motion for consolidation filed by petitioner
Torralba was granted by the RTC, Branch 1, Tagbilaran City.

During the trial on the merits of the consolidated cases, the prosecution presented
as witnesses Segundo Lim, private complainant Atty. Hontanosas, and Gabriel
Sarmiento.

Lim testified that he was one of the incorporators of the Tagbilaran Maritime
Services, Inc. (TMSI) and was at that time the assigned manager of the port in
Tagbilaran City. According to him, sometime during the Marcos administration,
petitioner Torralba sought TMSI's sponsorship of his radio program. This request
was approved by private complainant Atty. Hontanosas who was then the president
of TMSI. During the existence of said sponsorship agreement, the management of
TMSI noticed that petitioner Torralba was persistently attacking former Bureau of
Internal Revenue Deputy Director Tomas Toledo and his brother Boy Toledo who
was a customs collector. Fearing that the Toledos would think that TMSI was behind
the incessant criticisms hurled at them, the management of TMSI decided to cease
sponsoring petitioner Torralba's radio show. In effect, the TMSI sponsored "Tug-Ani
ang Lungsod" for only a month at the cost of P500.00.

Soon thereafter, petitioner Torralba took on the management of TMSI. Lim testified
that petitioner Torralba accused TMSI of not observing the minimum wage law and
that said corporation was charging higher handling rates than what it was supposed
to collect.

On 17 December 1993, private complainant Atty. Hontanosas went on-air in

petitioner Torralba's radio program to explain the side of TMSI. The day after said
incident, however, petitioner Torralba resumed his assault on TMSI and its
management. It was petitioner Torralba's relentless badgering of TMSI which
allegedly prompted Lim to tape record petitioner Torralba's radio broadcasts. Three
of the tape recordings were introduced in evidence by the prosecution, to wit:

Exhibit B - tape recording of 19 January 1994[8]

Exhibit C - tape recording of 25 January 1994[9]
Exhibit D - tape recording of 11 April 1994[10]

During his testimony, Lim admitted that he did not know how to operate a tape
recorder and that he asked either his adopted daughter, Shirly Lim, or his housemaid
to record petitioner Torralba's radio program. He maintained, however, that he was
near the radio whenever the recording took place and had actually heard petitioner
Torralba's radio program while it was being taped. This prompted petitioner Torralba
to pose a continuing objection to the admission of the said tape recordings for lack of
proper authentication by the person who actually made the recordings. In the case of
the subject tape recordings, Lim admitted that they were recorded by Shirly Lim. The
trial court provisionally admitted the tape recordings subject to the presentation by
the prosecution of Shirly Lim for the proper authentication of said pieces of evidence.
Despite petitioner Torralba's objection to the formal offer of these pieces of evidence,
the court a quo eventually admitted the three tape recordings into evidence.[11]

It was revealed during Lim's cross-examination[12] that petitioner Torralba previously

instituted a criminal action for libel[13] against the former arising from an article
published in the Sunday Post, a newspaper of general circulation in the provinces of
Cebu and Bohol. In said case, Lim was found guilty as charged by the trial
court[14] and this decision was subsequently affirmed, with modification, by the Court
of Appeals in its decision promulgated on 29 July 1996 in CA-G.R. CR No. 16413
entitled, "People of the Philippines v. Segundo Lim and Boy Guingguing."[15] In our
resolution of 04 December 1996, we denied Lim's petition for review on certiorari.[16]

For his part, private complainant Atty. Hontanosas testified that he was at that time
the chairman and manager of TMSI; that on 20 January 1994, Lim presented to him
a tape recording of petitioner Torralba's radio program aired on 18 January 1994
during which petitioner Torralba allegedly criticized him and stated that he was a
person who could not be trusted; that in his radio show on 25 January 1994,
petitioner Torralba mentioned that "he was now [wary] to interview any one because
he had a sad experience with someone who betrayed him and this "someone" was
like his father who was a collaborator"; that on 12 April 1994, Lim brought to his
office a tape recording of petitioner Torralba's radio program of 11 April 1994 during
which petitioner Torralba averred that the Hontanosas were traitors to the land of
their birth; that Judge Agapito Hontanosas and Castor Hontanosas were
collaborators during the Japanese occupation; and that after he informed his siblings
regarding this, they asked him to institute a case against petitioner Torralba.[17]

When he was cross-examined by petitioner Torralba's counsel, private complainant

Atty. Hontanosas disclosed that he did not actually hear petitioner Torralba's radio
broadcasts and he merely relied on the tape recordings presented to him by Lim as
he believed them to be genuine.[18]

Sarmiento testified that he was the former court stenographer and interpreter of
RTC, Branch 3, Tagbilaran City, and that he translated the contents of the tape
recordings in 1994 upon the request of private complainant Atty. Hontanosas.

The defense presented, as its sole witness, petitioner Torralba himself. Petitioner
Torralba maintained that he was a member of the Kapisanan ng mga Brodkaster ng
Pilipinas and other civic organizations in Cebu. In the course of his profession as a
radio broadcaster, he allegedly received complaints regarding the services of TMSI
particularly with respect to the laborers' low pay and exhorbitant rates being charged
for the arrastre services. As he was in favor of balanced programming, petitioner
Torralba requested TMSI to send a representative to his radio show in order to give
the corporation an opportunity to address the issues leveled against it; thus, the
radio interview of private complainant Atty. Hontanosas on 17 December 1993.

When petitioner Torralba was cross-examined by private complainant Atty.

Hontanosas,[19] he denied having called former CFI Judge Hontanosas a traitor
during his 11 April 1994 radio broadcast. Petitioner Torralba admitted, though, that
during the 17 December 1993 appearance of private complainant Atty. Hontanosas
in his radio program, he did ask the latter if he was in any way related to the late CFI
Judge Hontanosas. Petitioner Torralba averred that he posed said question as mere
backgrounder on his interviewee.

On 24 August 2000, the trial court rendered an omnibus decision[20] acquitting

petitioner Torralba in Crim. Cases No. 8956, No. 8957, and No. 8958 but holding him
guilty of the crime of libel in Crim. Case No. 9107. The dispositive portion of the trial
court's decision reads:

WHEREFORE, in view of all the foregoing, the Court hereby ACQUITS from criminal
liability herein accused Cirse Francisco Choy Torralba of the charges alluded in
Criminal Cases Nos. 8956, 8957, and 8958 being an exercise of legitimate self-
defense, as afore-discussed. Consequently, the corresponding cash bonds of the
accused in said cases as shown by OR No. 5301156, No. 5301157, and No.
5301158, all dated February 23, 2000, issued by the Clerk of Court of Multiple Salas
in the amount of P4,200.00 each representing cash deposits therefore are hereby
cancelled and released.

However, the Court finds the same accused GUILTY beyond reasonable doubt in
Crim. Case No. 9107 for his unwarranted blackening of the memory of the late Hon.
CFI Judge Agapito Y. Hontanosas through the air lanes in his radio program
resulting to the dishonor and wounded feelings of his children, grandchildren,
relatives, friends, and close associates. For this, the Court hereby sentences the
accused to imprisonment for an indeterminate period of FOUR MONTHS of Arresto
Mayor to THREE YEARS of Prision Correccional medium period pursuant to Art. 353
in relation to Art. 354 and Art. 355 of the Revised Penal Code under which the
instant case falls. Furthermore, he is ordered to indemnify the heirs of the late Judge
Agapito Y. Hontanosas for moral damages suffered in the amount of ONE MILLION
PESOS (P1,000,000.00), as prayed for, considering their good reputation and high
social standing in the community and the gravity of the dishonor and public
humiliation caused.[21]
Petitioner Torralba seasonably filed an appeal before the Court of Appeals which, in
the challenged decision before us, affirmed, with modification, the findings of the
court a quo, thus:

WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the

modification that accused-appellant is hereby sentenced to suffer imprisonment of
four (4) months of arresto mayor to two (2) years, eleven (11) months and ten (10)
days of prision correccional and to pay moral damages in the amount of
P100,000.00.[22]
Hence, the present recourse where petitioner Torralba raises the following issues:

THE HONORABLE COURT OF APPEALS SPEAKING THROUGH ITS SPECIAL

FIFTEENTH DIVISION GRAVELY ERRED IN AFFIRMING THE DECISION OF THE
LOWER COURT A QUO (WITH MODIFICATION), CONVICTING PETITIONER-
APPELLANT [TORRALBA] FOR THE CRIME OF LIBEL AS DEFINED AND
PENALIZED UNDER ARTICLES 353 AND 355 OF THE REVISED PENAL CODE
BASED SOLELY ON THE ALLEGED TESTIMONY OF SEGUNDO LIM . . . AS
BORNE OUT BY THE STENOGRAPHIC NOTES WOULD NOT SUPPORT THE
FINDING THAT HE TESTIFIED ON THE MALICIOUS IMPUTATIONS
PURPORTEDLY MADE BY PETITIONER-APPELLANT [TORRALBA] IN CRIMINAL
CASE NO. 9107.

II

THE HONORABLE COURT OF APPEALS SERIOUSLY COMMITTED AN ERROR

IN ADMITTING IN EVIDENCE AN UNAUTHENTICATED AND SPURIOUS TAPE
RECORD OF A RADIO BROADCAST (EXHIBIT "D") ALLEGEDLY BY HEREIN
PETITIONER-APPELLANT [TORRALBA] ON THE BASIS OF WHICH THE LATTER
WAS CONVICTED FOR THE CRIME OF LIBEL.

III

ASSUMING WITHOUT ADMITTING THAT PETITIONER-APPELLANT

[TORRALBA] MADE UTTERANCES CONTAINED IN THE TAPE RECORD
MARKED AS EXHIBIT "D," THE HONORABLE COURT SERIOUSLY ERRED IN
NOT CONSIDERING THE PRIVILEGE[D] NATURE OF HIS ALLEGED
STATEMENTS IN FEALTY ADHERRENCE TO THE LANDMARK DECISION OF
THE HONORABLE SUPREME COURT IN BORJAL VS. CA, 301 SCRA 01 (JAN.
14, 1999).

IV

THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR IN

AWARDING DAMAGES AGAINST THE PETITIONER ABSENT ANY SHOWING OF
EVIDENT BAD FAITH ON THE PART OF THE PETITIONER-APPELLANT
[TORRALBA] WHO ACTED WITH UBERIMA FIDES (OVERWHELMING GOOD
FAITH) IN EXERCISING THE CONSTITUTIONALLY ENSHRINED FREEDOM OF
THE PRESS (ARTICLE 2220, NEW CIVIL CODE).[23]
This Court deems it proper to first resolve the issue of the propriety of the lower
court's admission in evidence of the 11 April 1994 tape recording. Oddly, this matter
was not addressed head-on by the Office of the Solicitor General in its comment.

Petitioner Torralba vigorously argues that the court a quo should not have given
considerable weight on the tape recording in question as it was not duly
authenticated by Lim's adopted daughter, Shirly Lim. Without said authentication,
petitioner Torralba continues, the tape recording is incompetent and inadmissible
evidence. We agree.

It is generally held that sound recording is not inadmissible because of its

form[24] where a proper foundation has been laid to guarantee the genuineness of the
recording.[25] In our jurisdiction, it is a rudimentary rule of evidence that before a tape
recording is admissible in evidence and given probative value, the following
requisites must first be established, to wit:

(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and
a showing that the testimony elicited was voluntarily made without any kind
(7)
of inducement.[26]

In one case, it was held that the testimony of the operator of the recording device as
regards its operation, his method of operating it, the accuracy of the recordings, and
the identities of the persons speaking laid a sufficient foundation for the admission of
the recordings.[27]Likewise, a witness' declaration that the sound recording
represents a true portrayal of the voices contained therein satisfies the requirement
of authentication.[28] The party seeking the introduction in evidence of a tape
recording bears the burden of going forth with sufficient evidence to show that the
recording is an accurate reproduction of the conversation recorded.[29]

These requisites were laid down precisely to address the criticism of susceptibility to
tampering of tape recordings. Thus, it was held that the establishment of a proper
foundation for the admission of a recording provided adequate assurance that proper
safeguards were observed for the preservation of the recording and for its protection
against tampering.[30]

In the case at bar, one can easily discern that the proper foundation for the
admissibility of the tape recording was not adhered to. It bears stressing that Lim
categorically admitted in the witness stand that he was not familiar at all with the
process of tape recording[31] and that he had to instruct his adopted daughter to
record petitioner Torralba's radio broadcasts, thus:

ATTY. HONTANOSAS:
q Was this radio program of the accused recorded on April 11, 1994?
a Yes, sir.
q Who recorded the same radio program of April 11, 1994?
It was my adopted daughter whom I ordered to tape recorded the radio
a
program of Choy Torralba.[32]

Clearly, Shirly Lim, the person who actually recorded petitioner Torralba's radio show
on 11 April 1994, should have been presented by the prosecution in order to lay the
proper foundation for the admission of the purported tape recording for said date.
Without the requisite authentication, there was no basis for the trial court to admit the
tape recording - Exhibit "D" - in evidence.

In view of our disallowance of the 11 April 1994 tape recording, we are constrained
to examine the records of this case in order to determine the sufficiency of evidence
stacked against petitioner Torralba, bearing in mind that in criminal cases, the guilt of
the accused can only be sustained upon proof beyond reasonable doubt.
In his comprehensive book on evidence, our former colleague, Justice Ricardo
Francisco, wrote that "[e]vidence of a message or a speech by means of radio
broadcast is admissible as evidence when the identity of the speaker is established
either by the testimony of a witness who saw him broadcast his message or speech,
or by the witness' recognition of the voice of the speaker."[33]

The records of this case are bereft of any proof that a witness saw petitioner
Torralba broadcast the alleged libelous remarks on 11 April 1994. Lim, however,
stated that while petitioner Torralba's radio program on that date was being tape
recorded by his adopted daughter, he was so near the radio that he could even
touch the same.[34] In effect, Lim was implying that he was listening to "Tug-Ani ang
Lungsod" at that time. In our view, such bare assertion on the part of Lim,
uncorroborated as it was by any other evidence, fails to meet the standard that a
witness must be able to "recognize the voice of the speaker." Being near the radio is
one thing; actually listening to the radio broadcast and recognizing the voice of the
speaker is another. Indeed, a person may be in close proximity to said device
without necessarily listening to the contents of a radio broadcast or to what a radio
commentator is saying over the airwaves.

What further undermines the credibility of Lim's testimony is the fact that he had an
ax to grind against petitioner Torralba as he was previously accused by the latter
with the crime of libel and for which he was found guilty as charged by the court.
Surely then, Lim could not present himself as an "uninterested witness" whose
testimony merits significance from this Court.

Nor is this Court inclined to confer probative value on the testimony of private
complainant Atty. Hontanosas particularly in the light of his declaration that he did
not listen to petitioner Torralba's radio show subject of this petition. He simply relied
on the tape recording handed over to him by Lim.

Time and again, this Court has faithfully observed and given effect to the
constitutional presumption of innocence which can only be overcome by contrary
proof beyond reasonable doubt -- one which requires moral certainty, a certainty that
convinces and satisfies the reason and conscience of those who are to act upon it.
[35]
 As we have so stated in the past -

... Accusation is not, according to the fundamental law, synonymous with guilt, the
prosecution must overthrow the presumption of innocence with proof of guilt beyond
reasonable doubt. To meet this standard, there is need for the most careful scrutiny
of the testimony of the State, both oral and documentary, independently of whatever
defense is offered by the accused. Only if the judge below and the appellate tribunal
could arrive at a conclusion that the crime had been committed precisely by the
person on trial under such an exacting test should the sentence be one of conviction.
It is thus required that every circumstance favoring innocence be duly taken into
account. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment.[36]
Confronted with what the State was able to present as evidence against petitioner
Torralba, this Court is compelled to overturn the decision of the Court of Appeals due
to insufficiency of evidence meriting a finding of guilt beyond reasonable doubt.
WHEREFORE, the petition is GRANTED. The Decision promulgated on 22 May
2002 of the Court of Appeals, affirming the omnibus decision dated 24 August 2000
of the Regional Trial Court, Branch 3, Tagbilaran City, is
hereby REVERSED and SET ASIDE. Instead, a new one is
entered ACQUITTING petitioner Cirse Francisco "Choy" Torralba of the crime of
libel. The cash bond posted by said petitioner is ordered released to him subject to
the usual auditing and accounting procedures. No costs.

SO ORDERED.

G.R. No. L-21805             February 25, 1967

PEOPLE OF THE PHILIPPINES, plaintiff-appellant, 

vs.
FIDEL TAN, defendant-appellee.

Narciso Vasquez, Jr. for defendant and appellee.

Office of the Solicitor General for plaintiff and appellant.

REYES, J.B.L., J.:
Appeal from the order, dated 4 January 1963, of the Court of First Instance of
Samar, in its Criminal Case G.R. No. 4097, denying the government's motion for the
re- arrest of the accused-appellee, Fidel Tan.

The aforesaid appellee was, under a modified judgment, sentenced by said court to
suffer —

an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4)
MONTHS, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS, as
maximum, both of prision correccional, with the accessory penalties provided
by law, indemnify the heirs of Sinforoso Volfango P3,000.00, and pay the
costs.

He appealed, but upon his own motion the Court of Appeals dismissed the appeal, in
a resolution of 1 August 1958.

The sentence having become final, the accused was committed to the Director of
Prisons, on 2 March 1959, through the provincial warden.

The provincial warden did not, however, commit the prisoner to the national
penitentiary but retained him in the Samar provincial jail.

Thereafter, the warden took it upon himself to apply the provisions of Articles 97 and
99 of the Revised Penal Code as well as Act No. 2489, and credited the prisoner
with good conduct time allowance. After the prisoner's actual confinement in jail for 2
years, 8 months and 21 days, the warden released him on 23 November 1961.

On 6 September 1962, the provincial fiscal moved for the re-arrest of the accused
and to order him recommitted to the national penitentiary, on the ground that the
provincial warden had no authority to release him with good conduct time allowance.
The motion was unopposed.

Acting on the motion, the court required the warden to explain why the prisoner was
kept in the provincial jail and not "sent to Manila" and to answer the fiscal's allegation
that he released the prisoner without an order from the Director of Prisons and
before the service of the full term of the sentence.

The warden explained as follows:

That said prisoner was not made to serve his imprisonment in the national
penitentiary because sometime in 1959 our office received a communication
from the Director of Prisons to withhold transfers of prisoners from the
provincial jails to the New Bilibid Prison due to congestion resulting in the
bloody riots. In same year when my attention was called why prisoner Fidel
Tan was not yet sent to Muntinlupa inspite of the cessation of the riots, I have
explained in a letter dated October 1, 1959, to the Assistant Director of
Prisons, that same prisoner could not be sent as he was undergoing close
medical treatment of his left lumbar region where previous wound was located,
his left thigh, and presence of blood in the urine as evidenced by a medical
certificate sent together with my explanation. Being of the opinion and belief
then that if this prisoner be transferred to the national penitentiary he might be
involved in another occasional and undetermined riots, where his physical
 condition cannot resist the fear and which may aggravate his ailment, that for
the sake of humanity, until his physical condition should improve but which did
not until his time of release.1äwphï1.ñët

That said prisoner was released without order from the Director of Prisons on
the ground that he cannot be made to still be lodged in the provincial jail when
the date of his release was already due, much less send him to Muntinlupa
when the term of his sentence minus good behavior credit has expired.

That said prisoner was released after having served the term diminished by the
credit of good conduct time allowance in accordance with the provisions of Art.
XI, Sec. 1 (a) and (b) of the Revised Rules and Regulations for the
Government of Insular and Provincial Prisoners in the Philippines. That the
computation made by me was correct according to my interpretation in good
faith of the aforementioned provision based on the maximum term of sentence
of 4 years, 2 months.

On 21 September 1962, the lower court issued an order requiring the appearance of
the warden to show the veracity of his information and, on 4 January 1963, it issued
the order that is now the subject of this appeal denying the fiscal's petition to
recommit the accused.

The excuses tendered by the provincial warden are clearly inacceptable. The alleged
fear that the convict Tan might be involved in occasional riots in the Insular
Penitentiary is but a flimsy pretext for evading the warden's plain duty of remitting the
prisoner to his proper place of confinement. Having been sentenced to more than
one year of imprisonment, the convict was not a provincial Prisoner but an insular
prisoner (Adm. Code, section 1740), and there being no showing that his life would
be endangered by the trip to Muntinlupa penitentiary, the warden's failure to send
him thither was a breach of duty for which said officer should be held accountable. It
needs no stressing that to allow provincial wardens to retain insular prisoners without
proper authorization would open the way to all sorts of discrimination in the
treatment of prisoners and constitute a standing invitation for the commission of
abuses and anomalies for personal or political motives.

Nor do we find in the record any justification for the warden's usurping the authority
of the Director of Prisons in crediting the prisoner with good conduct time allowance.
Article 99 of the Revised Penal Code vests such authority exclusively in the Director
and no one else.

Assuming that appellee Tan was entitled to good conduct time allowance, his
release by the provincial warden, after an imprisonment of only 2 years, 8 months
and 1 day, was premature. Under paragraph No. 1, Article 97, of the Revised Penal
Code, he may be allowed a deduction of five (5) days for each month of good
behavior during his first two years of imprisonment, which would be 24 months
multiplied by 5, or 120, days; under paragraph No. 2, he may be allowed a deduction
of eight (8) days a month f or the next three years. For the balance of eight (8)
months, multiplied by 8, we have 64 days; so that the total credit for good behavior
would be 184 days, equivalent to 6 months and 4 days.1 The prisoner's actual
confinement of 2 years, 8 months and 21 days, plus his possible total credit of 6
months and 4 days, would give the result of 3 years, 2 months and 25 days. Since
the maximum term of his sentence is 4 years and 2 months, appellee Tan, assuming
that he is entitled to good conduct time allowance, has an unserved portion of 11
months and 5 days.2

The court below denied the fiscal's motion for the rearrest of the accused-appellee
on the following grounds: (a) that when the accused-appellee commenced serving
his sentence and was committed to the warden, the court lost jurisdiction over the
prisoner's "person with respect to his imprisonment"; (b) that to re-arrest him after his
release would amount to double jeopardy or deprive him of his liberty without due
process of law; and (c) that the accused abided by the judgment and served it in
good faith, even if the act of the jailer was irresponsible and erroneous.

We agree with the Solicitor General that the lower court had already lost jurisdiction
to amend or alter its judgment of conviction, but not over its execution or satisfaction.
The court's jurisdiction was not terminated by the commitment of the convict to the
jail authorities — the commitment was but the start in carrying out of the court's
decision. It is the prerogative of the court meting out the punishment to see to it that
the punishment be served until, by act of lawfully authorized administrative agencies
of the state the convict is pardoned or paroled or, on lawful grounds, set at liberty
sooner than the expiration of the sentence imposed.

The prisoner's re-arrests3 would not place him twice in jeopardy because his re-
incarceration is merely a continuation of the penalty that he had not completely
served due to the erroneous act of the warden, it is not a new or subsequent
conviction. Neither would his re-arrest deprive him of liberty without due process of
law, because he was not yet entitled to liberty at the time he was released. Service
of penalties and allowance for good conduct are specifically, even elaborately,
governed by the Penal Code and do not depend upon the good faith of the warden
and of the prisoner.

For the foregoing reasons, the appealed order is hereby reversed and a new one
entered, ordering the re-arrest, and the continuance of the imprisonment of the
accused-appellee, Fidel Tan, for one (1) year, five (5) months and eleven (11) days
more.

Let a copy of this decision be furnished to the Director of Prisons, who is hereby
directed to incarcerate the appellee in the national penitentiary, if present conditions
thereat would allow his accommodation, or if not, in any other suitable jail, without
prejudice to credit for good behavior from the time he was jailed on 2 March 1959, in
accordance with Article 99 of the Revised Penal Code.

Let another copy of this decision be sent to the Secretary of Justice, that he may
take action, if warranted, against the warden concerned. No costs.

G.R. No. 144656            May 9, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-appellant.

PER CURIAM:
This is an appeal from the decision1 of the Regional Trial Court, Branch 88, Cavite
City, sentencing Gerrico Vallejo y Samartino to death and ordering him to indemnify
the heirs of the victim in the amount of P100,000.00 as civil indemnity and
P50,000.00 as moral damages for the rape-slaying of a 9-year old child, Daisy
Diolola, in Rosario, Cavite on July 10, 1999.

The Information charging accused-appellant Gerrico Vallejo with the crime of Rape
with Homicide alleged:

"That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality
of Rosario, Province of Cavite, Philippines and within the jurisdiction of this
Honorable Trial Court, the above-named accused, with lewd design, by means
of force and intimidation, did then and there, willfully, unlawfully and feloniously
have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child
against the latter's will and while raping the said victim, said accused strangled
her to death."

"CONTRARY TO LAW."2

Accused-appellant was arraigned on July 26, 1999 and, with the assistance of
counsel, pleaded not guilty to the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the
victim's mother; Dr. Antonio S. Vertido, medico-legal officer of the NBI; Atty. Lupo
Leyva; Mayor Renato Abutan of Rosario, Cavite; Atty. Sikat Agbunag of the Public
Attorney's Office; Pet Byron Buan, NBI Forensic Biologist; Aida Viloria-Magsipoc,
NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and
Jessiemin Mataverde and Charito Paras-Yepes, both neighbors of the victim.

The victim's mother, Ma. Nida Diolola, testified that at around 1:00 o'clock in the
afternoon of July 10, 1999, she sent her 9-year old daughter Daisy Diolola to their
neighbor's house in Pilapil, Ligtong I, Rosario, Cavite, so that Aimee Vallejo, the
sister of accused-appellant, could help Daisy with her lessons. Aimee's house,
where accused-appellant was also staying, is about four to five meters away from
Daisy's house. Ma. Nida saw her daughter go to the house of her tutor. She was
wearing pink short pants and a white sleeveless shirt. An hour later, Daisy came
back with accused-appellant. They were looking for a book which accused-appellant
could copy to make a drawing or a poster that Daisy would submit to her teacher.
After finding the book, Daisy and accused-appellant went back to the latter's house.
When Ma. Nida woke up at about 5:30 o'clock after an afternoon nap, she noticed
that Daisy was not yet home. She started looking for her daughter and proceeded to
the house of Aimee, Daisy's tutor. Aimee's mother told Ma. Nida that Daisy was not
there and that Aimee was not able to help Daisy with her lessons because Aimee
was not feeling well as she had her menstrual period. Ma. Nida looked for Daisy in
her brother's and sister's houses, but she was not there, either. At about 7:00 o'clock
that evening, Ma. Nida went back to her neighbor's house, and there saw accused-
appellant, who told her that Daisy had gone to her classmate's house to borrow a
book. But, when Ma. Nida went there, she was told that Daisy had not been there.
Ma. Nida went to the dike and was told that they saw Daisy playing at about 3:30
o'clock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was
playing in front of her house that afternoon and even watched television in her
house, but that Daisy later left with accused-appellant.
Ma. Nida and her brother and sister searched for Daisy the whole evening of June
10, 1999, a Saturday, until the early morning of the following day, June 11, 1999, a
Sunday, but their search proved fruitless. Then, at about 10:00 o'clock in the
morning of June 11, 1999, she was informed that the dead body of her daughter was
found tied to the root of an aroma tree by the river after the "compuerta" by a certain
Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her
daughter. Daisy was wearing her pink short pants with her sleeveless shirt tied
around her neck. Barangay Councilmen Raul Ricasa and Calring Purihin reported
the incident to the Rosario police. The other barangay officers fetched accused-
appellant from his house and took him to the barangay hall. At the barangay hall,
Ma. Nida pointed to accused-appellant Gerrico Vallejo as the probable suspect since
he was with the victim when she was last seen alive.3

Another witness, Jessiemin Mataverde, testified that at around 3:00 o'clock in the
afternoon of that day, she saw Daisy playing with other children outside her house.
She asked Daisy and her playmates to stop playing as their noise was keeping
Jessiemin's one-year old baby awake. Daisy relented and watched television instead
from the door of Jessiemin's house. About five minutes later, accused-appellant
came to the house and told Daisy something, as a result of which she went with him
and the two proceeded towards the "compuerta."

Jessiemin testified that at around 5:00 o'clock that afternoon, while she and her
daughter were in front of a store across the street from her house, accused-appellant
arrived to buy a stick of Marlboro cigarette. Accused-appellant had only his
basketball shorts on and was just holding his shirt. They noticed both his shorts and
his shirt were wet. After lighting his cigarette, accused-appellant left.4

Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about
4:30 o'clock in the afternoon of July 10, 1999, while she and her husband and
children were walking towards the "compuerta" near the seashore of Ligtong,
Rosario, Cavite, they met a fisherman named Herminio who said that it was a good
day for catching milkfish (bangus). For this reason, according to this witness, they
decided to get some fishing implements. She said they met accused-appellant
Gerrico Vallejo near the seashore and noticed that he was uneasy and looked
troubled. Charito said that accused-appellant did not even greet them, which was
unusual. She also testified that accused-appellant's shorts and shirt (sando) were
wet, but his face and hair were not.5

SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief
Ricardo B. de la Cruz, Jr. responded to the call together with his men, PO2 Garcia,
SPO1 Araracap and PO2 Lariza. When they arrived, Daisy's body was already in the
barangay hall. SPO1 Cuevas took photographs of the body. At that time, Daisy was
wearing pink short pants and a dirty white panty with a dirty white sleeveless shirt
wrapped around her neck. The body was afterwards taken to the Samson Funeral
Parlor in Rosario, Cavite. The inquiries conducted by the police showed that one
Freddie Quinto was fishing near the compuerta when he accidentally hit the body of
Daisy, which was in the mud and tied to the root of an aroma tree.

Accused-appellant was invited by the policemen for questioning. Two others, a

certain Raymond and Esting, were also taken into custody because they were seen
with accused-appellant in front of the store in the late afternoon of July 10 1999.
Later, however, the two were released. Based on the statements of Jessiemin
Mataverde and Charito Paras-Yepes, the policemen went to the house of accused-
appellant at about 4:00 o'clock in the afternoon of July 11, 1999 and recovered the
white basketball shirt, with the name Samartino and No. 13 printed at the back, and
the violet basketball shorts, with the number 9 printed on it, worn by accused-
appellant the day before. The shirt and shorts, which were bloodstained, were turned
over to the NBI for laboratory examination.6

Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o'clock
in the evening of July 11, 1999, he conducted a physical examination of accused-
appellant. His findings7 showed the following:

"PHYSICAL FINDINGS:

"Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee,
left, 7.0 x 6.0 cm. legs, right anterior aspect, 28.0 x 8.0 cms., left anterior
aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0 x 3.0 cms. and left,
13.0 x 5.0 cms.
"Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
"Lacerations, left ring finger, posterior aspect, 0.3 cm.
"(Living Case No. BMP-9902, p. 101, records)"

At about 10:00 o'clock in the evening, Dr. Vertido went to the Samson Funeral Parlor
in Rosario, Cavite for an autopsy on the cadaver of the victim Daisy Diolola. The
autopsy revealed the following postmortem findings:8

"Body in early stage of postmortem decomposition characterized by foul odor,

eyes and tongue protruding, bloating of the face and blister formation.

"Washerwoman's hands and feet.

"Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms.
Contused abrasions, forehead, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms.,
lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect, 8.0 x 5.0 cms.,
arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect,
upper 3rd, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left,
posterior aspect, 21.0 x 8.0 cms. left thumb, anterior aspect, 1.5 x 1.0 cms., left
middle, ring and little fingers, dorsal aspect, .50 x 4.0 cms. knees, right, 3.0 x
2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle
3rd 3.0 x 2.5 cms. foot right, dorsal aspect.

"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.

"Fracture, tracheal rings.

"Hemorrhages, interstitial, neck, underneath, nailmarks. "Petechial

hemorrhages, subendocardial, subpleural.

"Brain and other visceral organs are congested.

"Stomach, contains ½ rice and other food particles.

"CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

 "GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora,
gaping and congested. Hymen, moderately tall, thick with fresh lacerations,
complete at 3:00, 6:00 and 9:00 o'clock positions, edges with blood clots."
[Autopsy Report No. BTNO-99-152]

Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of
the rape and murder at past 10:00 o'clock in the evening of June 11, 1999. The
mayor said he immediately proceeded to the municipal jail, where accused-appellant
was detained, and talked to the latter. Accused-appellant at first denied having
anything to do with the killing and rape of the child. The mayor said he told accused-
appellant that he could not help him if he did not tell the truth. At that point, accused-
appellant started crying and told the mayor that he killed the victim by strangling her.
Accused-appellant claimed that he was under the influence of drugs. The mayor
asked accused-appellant if he wanted to have the services of Atty. Lupo Leyva, a
resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor
Abutan fetched Atty. Leyva from his house and took him to the police station about
11:00 o'clock that evening.9

Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said that upon arriving
at the police station, he asked accused-appellant if he wanted his services as
counsel in the investigation. After accused-appellant assented, Atty. Leyva testified
that he "sort of discouraged" the former from making statements as anything he said
could be used against him. But, as accused-appellant was willing to be investigated,
Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the investigator,
informed accused-appellant of his constitutional rights to remain silent and to be
assisted by counsel and warned him that any answer he gave could and might be
used against him in a court of law. PO2 Garcia asked questions from accused-
appellant, who gave his answers in the presence of Atty. Leyva. After the statement
was taken, Atty. Leyva and accused-appellant read it and afterwards signed it. Atty.
Leyva testified that he did not see or notice any indication that accused-appellant
had been maltreated by the police. In his sworn statement (Exh. M), accused-
appellant confessed to killing the victim by strangling her to death, but denied having
molested her.10

Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he
took blood samples from accused-appellant in his office for laboratory examination to
determine his blood type. Likewise, the basketball shorts and shirt worn by accused-
appellant on the day the victim was missing and the victim's clothing were turned
over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Rosario,
Cavite police for the purpose of determining the presence of human blood and its
groups.11

The results of the examinations conducted by Pet Byron T. Buan showed accused-
appellant to belong to Group "O". The following specimens: (1) one (1) white no. 13
athletic basketball shirt, with patches "Grizzlies" in front and "SAMARTINO" at the
back; (2) one (1) violet no. 9 athletic basketball short pants; (3) one (1) white small
"Hello Kitty" T-shirt with reddish brown stains; (4) one (1) "cut" pink short pants with
reddish brown stains; (5) one (1) "cut" dirty white small panty with reddish brown
stains, were all positive for the presence of human blood showing the reactions of
Group "A".12
Pet Byron Buan also testified that before he took the blood samples, he had a
conversation with accused-appellant during which the latter admitted that he had
raped and later killed the victim by strangulation and stated that he was willing to
accept the punishment that would be meted out on him because of the grievous
offense he had committed. Mr. Buan observed that accused-appellant was
remorseful and was crying when he made the confession in the presence of SPO1
Amoranto at the NBI laboratory.13

When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at

around noon of July 13, 1999 in Cavite City, accused-appellant had with him a
handwritten confession which he had executed inside his cell at the Municipal Jail of
Rosario. In his confession, accused-appellant admitted not only that he killed the
victim but that he had before that raped her. Accused-appellant said he laid down
the victim on a grassy area near the dike. He claimed that she did not resist when he
removed her undergarments but that when he tried to insert his penis into the
victim's vagina, she struggled and resisted. Accused-appellant said he panicked and
killed the child. He then dumped her body in the shallow river near the "compuerta"
and went home.14

Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office, testified that at noon
of July 13, 1999, while she was in their office in Cavite City, Prosecutor Itoc came
together with accused-appellant and some policemen. Prosecutor Itoc asked Atty.
Agbunag to assist accused-appellant about his confession. Atty. Agbunag read the
document, informed accused-appellant of his constitutional rights, and warned him
that the document could be used against him and that he could be convicted of the
case against him, but, according to her, accused-appellant said that he had freely
and voluntarily executed the document because he was bothered by his conscience.
Accused-appellant, assisted by Atty. Agbunag, then affixed his signature to the
document and swore to it before Prosecutor Itoc.15

At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic

Biologist Pet Byron Buan took buccal swabs and hair samples from accused-
appellant, as well as buccal swabs and hair samples from the parents of the victim,
namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitted to the
DNA Laboratory of the NBI for examination.

Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the
specimens collected by Dr. Vertido. She testified that the vaginal swabs of the victim
taken by Dr. Vertido during the autopsy contained the DNA profiles of accused-
appellant and the victim.16

The defense then presented as witnesses accused-appellant Gerrico Vallejo and his
sister Aimee Vallejo. Their testimonies show that at about 1:00 o'clock in the
afternoon of July 10, 1999, accused-appellant, Aimee, and their sister Abigail were in
their house in Barangay Talisay, Ligtong I, Rosario, Cavite when Daisy Diolola came
to ask accused-appellant to draw her school project. After making the request, Daisy
left.17 Accused-appellant did not immediately make the drawing because he was
watching television. Accused-appellant said that he finished the drawing at about
3:00 o'clock in the afternoon and gave it to the victim's aunt, Glory. He then returned
home to watch television again. He claimed he did not go out of the house until 7:00
o'clock in the evening when he saw Ma. Nida, who was looking for her daughter.
Accused-appellant said he told her that he had not seen Daisy. After that, accused-
appellant said he went to the "pilapil" and talked with some friends, and, at about
8:00 o'clock that evening, he went home.

At 9:00 o'clock in the morning of July 11, 1999, barangay officials fetched accused-
appellant from his house and took him to the barangay hall, where he was asked
about the disappearance of Daisy. He claimed that he did not know anything about
it. Accused-appellant was allowed to go home, but, at 11:00 o'clock that morning,
policemen came and invited him to the police headquarters for questioning. His
mother went with him to the police station. There, accused-appellant was asked
whether he had something to do with the rape and killing of Daisy. He denied
knowledge of the crime.

At 4:00 o'clock that afternoon, accused-appellant accompanied the police to his

house to get the basketball shorts and shirt he was wearing the day before, which
were placed together with other dirty clothes at the back of their house. According to
accused-appellant, the police forced him to admit that he had raped and killed Daisy
and that he admitted having committed the crime to stop them from beating him up.
Accused-appellant claimed the police even burned his penis with a lighted cigarette
and pricked it with a needle.

Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went
to see him in the investigation room of the police station and told him that they would
help him if he told the truth. Atty. Leyva asked him whether he wanted him to be his
counsel, and accused-appellant said he answered in the affirmative. He said Atty.
Leyva informed him of his constitutional rights. Accused-appellant claimed that,
although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime,
this was because the police had maltreated him. Accused-appellant said he did not
tell the mayor or Atty. Leyva that he had been tortured because the policemen were
around and he was afraid of them. It appears that the family of accused-appellant
transferred their residence to Laguna on July 12, 1999 because of fear of reprisal by
residents of their barangay.18 According to accused-appellant, Mayor Abutan and
Atty. Leyva were not present when he gave his confession to the police and signed
the same. Accused-appellant claims that although Exhibit "N" was in his own
handwriting, he merely copied the contents thereof from a pattern given to him by
the police.19

On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty
of the offense charged. The dispositive portion of its decision reads:

"WHEREFORE, in view of all the foregoing considerations, the Court finds the
accused Gerrico Vallejo y Samartino GUILTY beyond reasonable doubt of the
crime of Rape with Homicide, as charged in the Information, accordingly
hereby sentences him to the supreme penalty of DEATH. The accused is
directed to indemnify the heirs of the victim in the amount of P100,000.00 as
civil indemnity and P50,000.00 as moral damages.

"SO ORDERED."20

Hence this appeal. Accused-appellant contends that:

"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF RAPE WITH HOMICIDE DESPITE THE INSUFFICIENCY
 AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE
PROSECUTION.

"II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY

WEIGHT TO THE ALLEGED ORAL CONFESSIONS OF THE ACCUSED-
APPELLANT DESPITE ITS BEING HEARSAY IN NATURE.

"III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING

PROBATIVE VALUE TO THE WRITTEN EXTRA-JUDICIAL CONFESSION
OF THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE SAME
WAS OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE
LAWYER WHO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION
DID NOT AND COULD NOT POSSIBLY GIVE HIM EFFECTIVE LEGAL
ASSISTANCE."

We find accused-appellant's contentions to be without merit.

First. An accused can be convicted even if no eyewitness is available, provided

sufficient circumstantial evidence is presented by the prosecution to prove beyond
reasonable doubt that the accused committed the crime.21 In rape with homicide, the
evidence against an accused is more often than not circumstantial. This is because
the nature of the crime, where only the victim and the rapist would have been
present at the time of its commission, makes the prosecution of the offense
particularly difficult since the victim could no longer testify against the perpetrator.
Resort to circumstantial evidence is inevitable and to demand direct evidence
proving the modality of the offense and the identity of the perpetrator is
unreasonable.22

Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial

evidence is sufficient to sustain a conviction if:

"(a) there is more than one circumstance;

"(b) the facts from which the inferences are derived are proven; and

"(c) the combination of all circumstances is such as to produce conviction

beyond reasonable doubt."23

In the case at bar, the following circumstantial evidence establish beyond reasonable
doubt the guilt of accused-appellant:

1. The victim went to Aimee Vallejo's house, where accused-appellant was

residing, at 1:00 o'clock in the afternoon of July 10, 1999, for tutoring.

2. At around 2:00 o'clock in the afternoon, accused-appellant and Daisy went

together to the latter's house to get a book from which the former could copy
Daisy's school project. After getting the book, they proceeded to accused-
appellant's residence.

3. From accused-appellant's house, Daisy then went to the house of Jessiemin

Mataverde where she watched television. Accused-appellant thereafter arrived
 and whispered something to Daisy, and the latter went with him towards the
"compuerta."

4. At about 4:30 o'clock in the afternoon, the spouses Iluminado and Charito
Yepes saw accused-appellant coming out of the "compuerta," with his clothes,
basketball shorts, and t-shirt wet, although his face and hair were not.
According to these witnesses, he looked pale, uneasy, and troubled (balisa).
He kept looking around and did not even greet them as was his custom to do
so.

5. The fishing boat which accused-appellant used as a bomber (a boat for

catching fish with dynamite) was docked by the seashore.

6. A little before 5:00 o'clock in the afternoon, Jessiemin Mataverde also saw
accused-appellant buying a Marlboro cigarette from a store. Jessiemen also
noticed that accused-appellant's clothes were wet but not his face nor his hair.

7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for her
daughter, she was told by accused-appellant that Daisy had gone to her
classmate Rosario's house. The information proved to be false.

8. Daisy's body was found tied to an aroma tree at the part of the river near the
"compuerta."

9. During the initial investigation, accused-appellant had scratches on his feet

similar to those caused by the thorns of an aroma tree.

10. The clothes which accused-appellant wore the day before were
bloodstained. The bloodstains on accused-appellant's clothes and on Daisy's
clothes were found positive of human blood type "A."

11. Accused-appellant has blood type "O."

12. The vaginal swabs from Daisy's body contained her DNA profile as well as
that of accused-appellant.

Accused-appellant contends that the bloodstains found on his garments were not
proven to have been that of the victim as the victim's blood type was not determined.

The contention has no merit. The examination conducted by Forensic Biologist Pet
Byron Buan of both accused-appellant's and the victim's clothing yielded bloodstains
of the same blood type "A".24 Even if there was no direct determination as to what
blood type the victim had, it can reasonably be inferred that the victim was blood
type "A" since she sustained contused abrasions all over her body which would
necessarily produce the bloodstains on her clothing.25 That it was the victim's blood
which predominantly registered in the examination was explained by Mr. Buan,
thus:26

"ATTY. ESPIRITU

Q:         But you will agree with me that more probably than not, if a crime is
being committed, and it results in a bloody death, it is very possible that the
 blood of the victim and the blood of the assailant might mix in that particular
item like the t-shirt, shorts or pants?

A:         It is possible when there is a huge amount of blood coming from the

victim and the suspect, Sir. It is possible. It will mix. Whichever is the dominant
blood in it, it will be the one which will register. For example, if there is more
blood coming from the victim, that blood will be the one to register, on
occasions when the two blood mix.

Q:         But in these specimens number 1 to 5, it is very clear now that only

type A and no type O blood was found?

A:         Yes, sir."

Accused-appellant also questions the validity of the method by which his

bloodstained clothes were recovered. According to accused-appellant, the
policemen questioned him as to the clothes he wore the day before. Thereafter, they
took him to his house and accused-appellant accompanied them to the back of the
house where dirty clothes were kept.27 There is no showing, however, that accused-
appellant was coerced or forced into producing the garments. Indeed, that the
accused-appellant voluntarily brought out the clothes sought by the police becomes
more convincing when considered together with his confessions. A consented
warrantless search is an exception to the proscription in Section 2 of Article III of the
Constitution. As we have held, the consent of the owner of the house to the search
effectively removes any badge of illegality.28

The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also
questioned by accused-appellant. He argues that the prosecution failed to show that
all the samples submitted for DNA testing were not contaminated, considering that
these specimens were already soaked in smirchy waters before they were submitted
to the laboratory.

DNA is an organic substance found in a person's cells which contains his or her
genetic code. Except for identical twins, each person's DNA profile is distinct and
unique.29

When a crime is committed, material is collected from the scene of the crime or from
the victim's body for the suspect's DNA. This is the evidence sample. The evidence
sample is then matched with the reference sample taken from the suspect and the
victim.30

The purpose of DNA testing is to ascertain whether an association exists between

the evidence sample and the reference sample.31 The samples collected are
subjected to various chemical processes to establish their profile.32The test may yield
three possible results:

1) The samples are different and therefore must have originated from different
sources (exclusion). This conclusion is absolute and requires no further
analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the
samples have similar DNA types (inconclusive). This might occur for a variety
 of reasons including degradation, contamination, or failure of some aspect of
the protocol. Various parts of the analysis might then be repeated with the
same or a different sample, to obtain a more conclusive result; or

3) The samples are similar, and could have originated from the same source
(inclusion).33 In such a case, the samples are found to be similar, the analyst
proceeds to determine the statistical significance of the Similarity.34

In assessing the probative value of DNA evidence, therefore, courts should consider,
among others things, the following data: how the samples were collected, how they
were handled, the possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether the proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of
accused-appellant, the smears taken from the victim as well as the strands of hair
and nails taken from her tested negative for the presence of human DNA,35 because,
as Ms. Viloria-Magsipoc explained:

"PROSECUTOR LU:

Q:         I noticed that specimens 1 to 5 consisting of bloodstains taken from the

clothing of the victim and of the accused gave negative results for the
presence of human DNA. Why is it so? What is the reason for this when there
are still bloodstains on the clothing?

A:         After this Honorable Court issued an Order for DNA analysis,

serological methods were already conducted on the said specimens. And upon
inquiry from Mr. Buan and as far as he also knew of this case, and we also
interviewed the mother who came over to the laboratory one time on how was
the state of the specimens when they were found out. We found that these
specimens were soaked in smirchy water before they were submitted to the
laboratory. The state of the specimens prior to the DNA analysis could have
hampered the preservation of any DNA that could have been there before. So
when serological methods were done on these specimens, Mr. Byron could
have taken such portion or stains that were only amenable for serological
method and were not enough for DNA analysis already. So negative results
were found on the clothings that were submitted which were specimens no. 1
to 5 in my report, Sir.

Q:         I also noticed that specimen no. 6-B consisting of the smears taken
from the victim also proved negative for human DNA, why is it so?

A:         Because when we received the vaginal smears submitted by Dr.

Vertido, the smear on the slide was very, very dry and could have chipped off. I
already informed Dr. Vertido about it and he confirmed the state of the
specimen. And I told him that maybe it would be the swab that could help us in
this case, Sir. And so upon examination, the smears geared negative results
and the swabs gave positive results, Sir.
 Q:         How about specimen no. 7, the hair and nails taken from the victim,
why did they show negative results for DNA?

A:         The hair samples were cut hair. This means that the hair did not
contain any root. So any hair that is above the skin or the epidermis of one's
skin would give negative results as the hair shaft is negative for DNA. And then
the nails did not contain any subcutaneous cells that would be amenable for
DNA analysis also, Sir.

Q:         So it's the inadequacy of the specimens that were the reason for this
negative result, not the inadequacy of the examination or the instruments
used?

A:         Yes, Sir."

Thus, it is the inadequacy of the specimens submitted for examination, and not the
possibility that the samples had been contaminated, which accounted for the
negative results of their examination. But the vaginal swabs taken from the victim
yielded positive for the presence of human DNA. Upon analysis by the experts, they
showed the DNA profile of accused-appellant:36

"PROSECUTOR LU:

Q:         So based on your findings, can we say conclusively that the DNA

profile of the accused in this case was found in the vaginal swabs taken from
the victim?

A:         Yes, Sir.

Q:         That is very definite and conclusive?

A:         Yes, Sir."

In conclusion, we hold that the totality of the evidence points to no other conclusion
than that accused-appellant is guilty of the crime charged. Evidence is weighed not
counted. When facts or circumstances which are proved are not only consistent with
the guilt of the accused but also inconsistent with his innocence, such evidence, in
its weight and probative force, may surpass direct evidence in its effect upon the
court.37 This is how it is in this case.

Second. Accused-appellant challenges the validity of the oral and written

confessions presented as evidence against him. He alleges that the oral confessions
were inadmissible in evidence for being hearsay, while the extrajudicial confessions
were obtained through force and intimidation.

The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent
parts:

"(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.

"(2) No torture, force, violence, threat, intimidation or any other means which
vitiate the free will shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited.

"(3) Any confession or admission obtained in violation of this or Section 17

shall be inadmissible in evidence against him."

There are two kinds of involuntary or coerced confessions treated in this

constitutional provision: (1) coerced confessions, the product of third degree
methods such as torture, force, violence, threat, and intimidation, which are dealt
with in paragraph 2 of Section 12, and (2) uncounselled statements, given without
the benefit of Miranda warnings, which are the subject of paragraph 1 of the same
section.38

Accused-appellant argues that the oral confessions given to Mayor Abutan of

Rosario, Cavite and to NBI Forensic Biologist should be deemed inadmissible for
being violative of his constitutional rights as these were made by one already under
custodial investigation to persons in authority without the presence of counsel. With
respect to the oral confessions, Atty. Leyva testified:39

"PROSECUTOR LU:

Q:         Upon meeting this Gerrico Vallejo at the police station were you able to
confer with him?

A:         Yes, Sir.

Q:         Did you ask him whether he really wants you to represent or assist him
as a lawyer during that investigation?

A:         I did, as a matter of fact, I asked him whether he would like me to

represent him in that investigation, Sir.

Q:         And what was his answer?

A:         He said "yes".

Q:         After agreeing to retain you as his counsel, what else did you talk
about?

A:         I told him that in the investigation, whatever he will state may be used
against him, so it's a sort of discouraging him from making any statement to
the police, Sir."

Upon cross-examination, Atty. Leyva testified as follows:40

Q:         You stated that you personally read this recital of the constitutional
rights of the accused?

A:         Yes, Sir.
 Q:         But it will appear in this recital of constitutional rights that you did not
inform the accused that the statement that he will be giving might be used
against him in a court of justice?

A:         I did that, Sir.

Q:         But it does not appear in this statement?

PROSECUTOR LU

The best evidence will be the statement, your Honor.

ATTY ESPIRITU

The only thing that is stated here is that "Maaaring gamitin pabor o laban
sa iyo."

COURT

Let the witness answer.

A:         I told him that, as a matter of fact, and I also told him to tell the truth
and nothing but the truth."

The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor
Renato Abutan,41 it is also confirmed by accused-appellant who testified as follows:42

"ATTY. ESPIRITU:

Q:         Did Atty. Leyva explain to you the meaning and significance of that
document which you are supposed to have executed and signed?

A:         Yes, Sir.

Q:         What did Atty. Leyva tell you?

A:         That they are allowing me to exercise my constitutional right to reveal

or narrate all what I know about this case, Sir.

Q:         Did Atty. Leyva tell you that if you do not want, nobody can force you
to give that statement?

A:         Yes, Sir.

Q:         And did he tell you that what you would be giving is an extra-judicial
confession?

A:         Yes, Sir."

Clearly, accused-appellant cannot now claim that he was not apprised of the
consequences of the statements he was to make as well as the written confessions
he was to execute. Neither can he question the qualifications of Atty. Lupo Leyva
who acted as his counsel during the investigation. To be an effective counsel, a
lawyer need not challenge all the questions being propounded to his client. The
presence of a lawyer is not intended to stop an accused from saying anything which
might incriminate him but, rather, it was adopted in our Constitution to preclude the
slightest coercion as would lead the accused to admit something false. Indeed,
counsel should not prevent an accused from freely and voluntarily telling the truth.43

Indeed, accused-appellant admitted that he was first asked whether he wanted the
services of Atty. Leyva before the latter acted as his defense counsel.44 And counsel
who is provided by the investigators is deemed engaged by the accused where the
latter never raised any objection against the former's appointment during the course
of the investigation but, on the contrary, thereafter subscribed to the veracity of his
statement before the swearing officer.45Contrary to the assertions of accused-
appellant, Atty. Leyva was not the municipal attorney of Rosario, Cavite but only a
legal adviser of Mayor Renato Abutan.46

Accused-appellant contends that the rulings in People vs. Andan47 and People vs.

Mantung48 do not apply to this case. We disagree. The facts of these cases and that
of the case at bar are similar. In all these cases, the accused made extrajudicial
confessions to the municipal mayor freely and voluntarily. In all of them, the
extrajudicial confessions were held admissible in evidence, being the spontaneous,
free, and voluntary admissions of the guilt of the accused. We note further that the
testimony of Mayor Abutan was never objected to by the defense.

Indeed, the mayor's questions to accused-appellant were not in the nature of an

interrogation, but rather an act of benevolence by a leader seeking to help one of his
constituents. Thus, Mayor Abutan testified:49

"PROSECUTOR LU:

Q:         And during the conversation you had with Accused Gerrico Vallejo,
what exactly did he tell you?

A:         At first he said that he did not do that. That was the first thing he told
me. Then I told him that I will not be able to help him if he will not tell me the
truth.

Q:         And what was the reply of the accused?

A:         He had been silent for a minute. Then we talked about the incident, Sir.

Q:         And what exactly did he tell you about the incident?

A:         I asked him, "Were you under the influence of drugs at that time"?

Q:         What else did he tell you?

A:         I told him, "What reason pushed you to do that thing?" x x x

Q:         Please tell us in tagalog, the exact words that the accused used in
telling you what happened.

A:         He told me that he saw the child as if she was headless at that time.
That is why he strangled the child, Sir. ("Ang sabi niya po sa 'kin, nakita niya
raw 'yung bata na parang walang ulo na naglalakad. Kaya po sinakal niya.")
x x x           x x x           x x x

COURT:

Q:         When you told the accused that you will help him, what kind of help
were you thinking at that time?

A:         I told him that if he will tell the truth, I could help give him legal counsel.

Q:         And what was the answer of the accused?

A:         Yes, he will tell me the truth, Your Honor."

In People vs. Mantung,50 this Court said:

"Never was it raised during the trial that Mantung's admission during the press
conference was coerced or made under duress. As the records show,
accused-appellant voluntarily made the statements in response to Mayor
Marquez' question as to whether he killed the pawnshop employees. Mantung
answered in the affirmative and even proceeded to explain that he killed the
victims because they made him eat pork. These circumstances hardly indicate
that Mantung felt compelled to own up to the crime. Besides, he could have
chosen to remain silent or to do deny altogether any participation in the
robbery and killings but he did not; thus accused-appellant sealed his own fate.
As held in People v. Montiero, a confession constitutes evidence of high order
since it is supported by the strong presumption that no person of normal mind
would deliberately and knowingly confess to a crime unless prompted by truth
and his conscience."

And in People vs. Andan, it was explained:

"Thus, it has been held that the constitutional procedures on custodial

investigation do not apply to a spontaneous statement, not elicited through
questioning by the authorities, but given in an ordinary manner whereby
appellant orally admitted having committed the crime. What the Constitution
bars is the compulsory disclosure of incriminating facts or confessions. The
rights under Section 12 are guaranteed to preclude the slightest use of
coercion by the state as would lead the accused to admit something false, not
prevent him from freely and voluntarily telling the truth."51

For the same reason, the oral confession made by accused-appellant to NBI
Forensic Biologist Pet Byron Buan is admissible. Accused-appellant would have this
Court exclude this confession on the ground that it was uncounselled and that Mr.
Buan, who initiated the conversation with accused-appellant, was part of the NBI.
The issue concerning the sufficiency of the assistance given by Atty. Leyva has
already been discussed. On the other hand, the questions put by Mr. Buan to
accused-appellant were asked out of mere personal curiosity and clearly not as part
of his tasks. As Buan testified:52

"PROSECUTOR LU:

Q:         What was the subject of your conversation with him?

 A:         It is customary when we examine the accused. During the examination,
we talk to them for me to add knowledge on the case, Sir.

Q:         What did you talk about during your conversation?

A:         I asked him if he was the one who did the killing on this victim, Daisy
Diolola, Sir.

Q:         And what was the reply of the accused?

A:         He said yes, Sir.

Q:         What else did you ask the accused?

A:         I remember that while asking him, he was crying as if feeling remorse

on the killing, Sir.

....

Q:         And it was you who initiated the conversation?

A:         Yes, Sir.

Q:         Do you usually do that?

A:         Yes, Sir. We usually do that.

Q:         Is that part of your procedure?

A:         It is not SOP. But for me alone, I want to know more about the case,
Sir. And any information either on the victim or from the suspect will help me
personally. It's not an SOP, Sir."

The confession, thus, can be likened to one freely and voluntarily given to an
ordinary individual and is, therefore, admissible as evidence.

Third. The admissibility of the extrajudicial confessions of accused-appellant is also

attacked on the ground that these were extracted from him by means of torture,
beatings, and threats to his life. The bare assertions of maltreatment by the police
authorities in extracting confessions from the accused are not sufficient. The
standing rule is that "where the defendants did not present evidence of compulsion,
or duress nor violence on their person; where they failed to complain to the officer
who administered their 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," all these will
be considered as indicating voluntariness.53 Indeed, extrajudicial confessions are
presumed to be voluntary, and, in the absence of conclusive evidence showing that
the declarant's consent in executing the same has been vitiated, the confession will
be sustained.54
Accused-appellant's claim that he was tortured and subjected to beatings by
policemen in order to extract the said confession from him is unsupported by any
proof:55

"ATTY. ESPIRITU:

Q:         Did they further interrogate you?

A:         Yes, sir.

Q:         What else did they ask you?

A:         They were asking me the project, Sir.

Q:         What else?

A:         That is the only thing, Sir.

Q:         Who was doing the questioning?

A:         The investigator, Sir.

Q:         How many were they inside that room?

A:         Five, Sir.

Q:         They are all policemen?

A:         Yes, Sir.

x x x           x x x           x x x

Q:         Until what time did they keep you inside that room?

A:         Up to 11:00 in the evening, Sir.

Q:         Between 10:30 in the morning up to 11:00 o'clock in the evening, what

did you do there?

A:         They were interrogating and forcing me to admit something, Sir.

Q:         In what way did they force you to admit something?

A:         They were mauling me, Sir.

Q:         The 5 of them?

A:         Yes, Sir.

Q:         The 5 of them remained inside that room with you throughout the
questioning?

A:         Yes, Sir.
 Q:         In what way did they hurt you?

A:         They burned my private part with a lighted cigarette butt and pierced
me with a needle, Sir.

Q:         Who did these things to you?

A:         Mercado, Sir.

Q:         Who is this Mercado?

A:         EPZA policemen, Sir.

Q:         Did the other policemen help in doing these things to you?

A:         No, Sir.

Q:         Were you asked to undress or you were forced to do that?

A:         They forced me to remove my clothes, Sir.

Q:         In what way did they force you to remove your clothes?

A:         They were asking me to take off the pants which I was wearing at the
time, Sir.

Q:         Did they do anything to you to force you to remove your pants?

A:         Yes, Sir.

Q:         What?

A:         They boxed me, Sir.

Q:         What else, if any?

A:         They hit me with a piece of wood, Sir.

Q:         What did you feel when your private part was burned with a cigarette
butt?

A:         It was painful, Sir.

Q:         In what part of your body were you pricked by a needle?

A:         At my private part, Sir."

These bare assertions cannot be given weight. Accused-appellant testified that he

was made to stay in the municipal hall from 10:00 o'clock in the morning until 11:00
o'clock that night of July 10, 1999, during which time he was boxed, tortured, and hit
with a piece of wood by policemen to make him admit to the crime. However,
accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00
o'clock in the evening of the same day. While the results show that accused-
appellant did sustain injuries, the same are incompatible with his claim of torture. As
Dr. Vertido testified:56

"PROSECUTOR LU:

Q:         What were your findings when you conducted the physical examination
of the suspect?

A:         I found abrasions, your Honor, abrasions on the thigh, knees, legs and
feet of the suspect, and I also found hematoma on the left ring finger, posterior
aspect and at the same time, a laceration on the left ring finger.

x x x           x x x           x x x

Q:         In your findings, it appears that the accused in this case suffered

certain physical injuries on his person like this abrasion on the thigh, right
anterior lateral aspect lower third of the knee, what could have caused this
injury?

A:         Abrasions are usually caused when the skin comes in contact with a
rough surface, Sir. Hematoma are usually caused by a blunt instrument or
object and laceration is the forcible contact of the skin from that blunt object.

Q:         I am particularly interested in your findings hematoma on the left ring

finger, posterior aspect and laceration left ring finger posterior aspect, what
could have caused those injuries on the accused?

A:         My opinion to these hematoma and laceration found on the said left

ring finger was that it was caused by a bite, Sir."

If the account of accused-appellant that he was beaten up is true, Dr. Antonio

Vertido would have found more than mere abrasions and hematoma on his left
finger. Dr. Vertido's findings are more consistent with the theory that accused-
appellant sustained physical injuries as a result of the struggle made by the victim
during the commission of the rape in the "compuerta."

At all events, even if accused-appellant was truthful and his assailed confessions are
inadmissible, the circumstantial evidence, as already shown, is sufficient to establish
his guilt beyond all reasonable doubt. The prosecution witnesses presented a
mosaic of circumstances showing accused-appellant's guilt. Their testimonies rule
out the possibility that the crime was the handiwork of some other evil mind. These
witnesses have not been shown to have been motivated by ill will against accused-
appellant.

On the other hand, no other witness not related to accused-appellant was ever
called to corroborate his claim. The defense presented only accused-appellant's
sister, Aimee Vallejo, to corroborate his story. We have held time and again that alibi
cannot prosper if it is established mainly by the accused and his relatives, and not by
credible persons.57 It is well settled that alibi is the weakest of all defenses as it is
easy to contrive and difficult to disprove. For this reason, this Court looks with
caution upon the defense of alibi, especially when, as in this case, it is corroborated
only by relatives or friends of the accused.58
Article 266-B of the Revised Penal Code provides that "When by reason or on the
occasion of the rape, homicide is committed, the penalty shall be
death."59 Therefore, no other penalty can be imposed on accused-appellant.

WHEREFORE, in view of all the foregoing considerations, the decision of the

Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Gerrico
Vallejo y Samartino GUILTY beyond reasonable doubt of the crime of Rape with
Homicide and sentencing him to the supreme penalty of DEATH and directing him to
indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and
P50,000.00 as moral damages, is hereby AFFIRMED.

In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal
Code, upon the finality of this decision, let the records of this case be forthwith
forwarded to the President of the Philippines for the possible exercise of the
pardoning power.

SO ORDERED.

499 Phil. 185

CARPIO, J.:
The Case

This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000 of
the Court of Appeals ("appellate court") in CA-G.R. SP No. 59766. The appellate
court affirmed two Orders[3] issued by Branch 48 of the Regional Trial Court of Manila
("trial court") in SP No. 98-88759. The Order dated 3 February 2000 directed
Rosendo Herrera ("petitioner") to submit to deoxyribonucleic acid ("DNA") paternity
testing, while the Order dated 8 June 2000 denied petitioner's motion for
reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"), represented

by his mother Armi Alba, filed before the trial court a petition for compulsory
recognition, support and damages against petitioner. On 7 August 1998, petitioner
filed his answer with counterclaim where he denied that he is the biological father of
respondent. Petitioner also denied physical contact with respondent's mother.

Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate
the proceedings. To support the motion, respondent presented the testimony of
Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor
at De La Salle University where she taught Cell Biology. She was also head of the
University of the Philippines Natural Sciences Research Institute ("UP-NSRI"), a
DNA analysis laboratory. She was a former professor at the University of the
Philippines in Diliman, Quezon City, where she developed the Molecular Biology
Program and taught Molecular Biology. In her testimony, Dr. Halos described the
process for DNA paternity testing and asserted that the test had an accuracy rate of
99.9999% in establishing paternity.[4]

Petitioner opposed DNA paternity testing and contended that it has not gained
acceptability. Petitioner further argued that DNA paternity testing violates his right
against self-incrimination.

The Ruling of the Trial Court

In an Order dated 3 February 2000, the trial court granted respondent's motion to
conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus:

In view of the foregoing, the motion of the petitioner is GRANTED and the relevant

individuals, namely: the petitioner, the minor child, and respondent are directed to
undergo DNA paternity testing in a laboratory of their common choice within a
period of thirty (30) days from receipt of the Order, and to submit the results thereof
within a period of ninety (90) days from completion. The parties are further reminded
of the hearing set on 24 February 2000 for the reception of other evidence in support
of the petition.

IT IS SO ORDERED.[5] (Emphasis in the original)

Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He
asserted that "under the present circumstances, the DNA test [he] is compelled to
take would be inconclusive, irrelevant and the coercive process to obtain the
requisite specimen…, unconstitutional."

In an Order dated 8 June 2000, the trial court denied petitioner's motion for
reconsideration.[6]

On 18 July 2000, petitioner filed before the appellate court a petition

for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that
the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 "in
excess of, or without jurisdiction and/or with grave abuse of discretion amounting to
lack or excess of jurisdiction." Petitioner further contended that there is "no appeal
nor any [other] plain, adequate and speedy remedy in the ordinary course of law."
Petitioner maintained his previous objections to the taking of DNA paternity testing.
He submitted the following grounds to support his objection:

1. Public respondent misread and misapplied the ruling in Lim vs. Court of
Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the limitations
on, and conditions precedent for the admissibility of DNA testing and ignoring
the serious constraints affecting the reliability of the test as admitted by private
respondent's "expert" witness.
3. Subject Orders lack legal and factual support, with public respondent relying
on scientific findings and conclusions unfit for judicial notice and unsupported
by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled to
take will be inconclusive, irrelevant and the coercive process to obtain the
requisite specimen from the petitioner, unconstitutional.[7]

The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision denying the petition
and affirming the questioned Orders of the trial court. The appellate court stated that
petitioner merely desires to correct the trial court's evaluation of evidence. Thus,
appeal is an available remedy for an error of judgment that the court may commit in
the exercise of its jurisdiction. The appellate court also stated that the proposed DNA
paternity testing does not violate his right against self-incrimination because the right
applies only to testimonial compulsion. Finally, the appellate court pointed out that
petitioner can still refute a possible adverse result of the DNA paternity testing. The
dispositive portion of the appellate court's decision reads:

WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE

COURSE, and ordered dismissed, and the challenged orders of the Trial
Court AFFIRMED, with costs to Petitioner.

SO ORDERED.[8]
Petitioner moved for reconsideration, which the appellate court denied in its
Resolution dated 23 May 2001.[9]

Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this
jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA
technology may be integrated into our judicial system and the prerequisites for the
admissibility of DNA test results in a paternity suit.[10]

Petitioner further submits that the appellate court gravely abused its discretion when
it authorized the trial court "to embark in [sic] a new procedure xxx to determine
filiation despite the absence of legislation to ensure its reliability and integrity, want
of official recognition as made clear in Lim vs. Court of Appeals and the presence of
technical and legal constraints in respect of [sic] its implementation."[11]Petitioner
maintains that the proposed DNA paternity testing violates his right against self-
incrimination.[12]

The Ruling of the Court

The petition has no merit.

Before discussing the issues on DNA paternity testing, we deem it appropriate to

give an overview of a paternity suit and apply it to the facts of this case. We shall
consider the requirements of the Family Code and of the Rules of Evidence to
establish paternity and filiation.

An Overview of the Paternity and Filiation Suit

Filiation proceedings are usually filed not just to adjudicate paternity but also to
secure a legal right associated with paternity, such as citizenship,[13] support (as in
the present case), or inheritance. The burden of proving paternity is on the person
who alleges that the putative father is the biological father of the child. There are four
significant procedural aspects of a traditional paternity action which parties have to
face: a prima facie case, affirmative defenses, presumption of legitimacy, and
physical resemblance between the putative father and child.[14]

A prima facie case exists if a woman declares that she had sexual relations with the
putative father. In our jurisdiction, corroborative proof is required to carry the burden
forward and shift it to the putative father.[15]

There are two affirmative defenses available to the putative father. The putative
father may show incapability of sexual relations with the mother, because of either
physical absence or impotency.[16] The putative father may also show that the mother
had sexual relations with other men at the time of conception.

A child born to a husband and wife during a valid marriage is presumed legitimate.
[17]
 The child's legitimacy may be impugned only under the strict standards provided
by law.[18]

Finally, physical resemblance between the putative father and child may be offered
as part of evidence of paternity. Resemblance is a trial technique unique to a
paternity proceeding. However, although likeness is a function of heredity, there is
no mathematical formula that could quantify how much a child must or must not look
like his biological father.[19] This kind of evidence appeals to the emotions of the trier
of fact.

In the present case, the trial court encountered three of the four aspects. Armi Alba,
respondent's mother, put forward a prima facie case when she asserted that
petitioner is respondent's biological father. Aware that her assertion is not enough to
convince the trial court, she offered corroborative proof in the form of letters and
pictures. Petitioner, on the other hand, denied Armi Alba's assertion. He denied ever
having sexual relations with Armi Alba and stated that respondent is Armi Alba's
child with another man. Armi Alba countered petitioner's denial by submitting
pictures of respondent and petitioner side by side, to show how much they resemble
each other.

Paternity and filiation disputes can easily become credibility contests. We now look
to the law, rules, and governing jurisprudence to help us determine what evidence of
incriminating acts on paternity and filiation are allowed in this jurisdiction.

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same evidence as legitimate children.

xxx

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of
Rule 130 provide:

SEC. 39. Act or declaration about pedigree. The act or declaration of a person

deceased, or unable to testify, in respect to the pedigree of another person related to
him by birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence
other than such act or declaration. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces also facts of family history
intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree. The reputation or

tradition existing in a family previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity or affinity. Entries in
family bibles or other family books or charts, engraving on rings, family portraits and
the like, may be received as evidence of pedigree.
This Court's rulings further specify what incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v. CA,[20] a case petitioner often cites, we
stated that the issue of paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts by the putative
father.  Under Article 278 of the New Civil Code, voluntary recognition by a parent
shall be made in the record of birth, a will, a statement before a court of record, or in
any authentic writing. To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the writing of the putative father.[21] A
notarial agreement to support a child whose filiation is admitted by the putative father
was considered acceptable evidence.[22] Letters to the mother vowing to be a good
father to the child and pictures of the putative father cuddling the child on various
occasions, together with the certificate of live birth, proved filiation.[23] However, a
student permanent record, a written consent to a father's operation, or a marriage
contract where the putative father gave consent, cannot be taken as authentic
writing.[24] Standing alone, neither a certificate of baptism[25] nor family pictures[26] are
sufficient to establish filiation.

So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and
filiation to incriminating acts alone. However, advances in science show that sources
of evidence of paternity and filiation need not be limited to incriminating acts. There
is now almost universal scientific agreement that blood grouping tests are conclusive
on non-paternity, although inconclusive on paternity.[27]

In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that
the putative father was a "possible father" of the child. Paternity was imputed to the
putative father after the possibility of paternity was proven on presentation during
trial of facts and circumstances other than the results of the blood grouping test.

In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed
to submit themselves to a blood grouping test. The National Bureau of Investigation
("NBI") conducted the test, which indicated that the child could not have been the
possible offspring of the mother and the putative father. We held that the result of the
blood grouping test was conclusive on the non-paternity of the putative father.

The present case asks us to go one step further. We are now asked whether DNA
analysis may be admitted as evidence to prove paternity.

DNA Analysis as Evidence

DNA is the fundamental building block of a person's entire genetic make-up. DNA is
found in all human cells and is the same in every cell of the same person. Genetic
identity is unique. Hence, a person's DNA profile can determine his identity.[30]

DNA analysis is a procedure in which DNA extracted from a biological sample

obtained from an individual is examined. The DNA is processed to generate a
pattern, or a DNA profile, for the individual from whom the sample is taken. This
DNA profile is unique for each person, except for identical twins.[31] We quote
relevant portions of the trial court's 3 February 2000 Order with approval:

Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic

acid). It is exclusive to an individual (except in the rare occurrence of identical twins
that share a single, fertilized egg), and DNA is unchanging throughout life. Being a
component of every cell in the human body, the DNA of an individual's blood is the
very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal
swabs, saliva, or other body parts.

The chemical structure of DNA has four bases. They are known
as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the
four bases appear in an individual's DNA determines his or her physical makeup.
And since DNA is a double-stranded molecule, it is composed of two specific paired
bases, A-T or T-A and G-C or C-G. These are called "genes."

Every gene has a certain number of the above base pairs distributed in a particular

sequence. This gives a person his or her genetic code. Somewhere in the DNA
framework, nonetheless, are sections that differ. They are known as "polymorphic
loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or
analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA
typing simply means determining the "polymorphic loci."

How is DNA typing performed? From a DNA sample obtained or extracted, a

molecular biologist may proceed to analyze it in several ways. There are five (5)
techniques to conduct DNA typing. They are: the RFLP (restriction fragment length
polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases
that were admitted as evidence by 37 courts in the U.S. as of November 1994;
mtDNA process; VNTR (variable number tandem repeats); and the most recent
which is known as the PCR-([polymerase] chain reaction) based STR (short tandem
repeats) method which, as of 1996, was availed of by most forensic laboratories in
the world. PCR is the process of replicating or copying DNA in an evidence sample a
million times through repeated cycling of a reaction involving the so-called DNA
polymerize enzyme. STR, on the other hand, takes measurements in 13 separate
places and can match two (2) samples with a reported theoretical error rate of less
than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, "matches" are determined. To

illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal
case, the evidence collected from the crime scene is compared with
the "known" print. If a substantial amount of the identifying features are the same,
the DNA or fingerprint is deemed to be a match. But then, even if only one feature of
the DNA or fingerprint is different, it is deemed not to have come from the suspect.

As earlier stated, certain regions of human DNA show variations between people. In
each of these regions, a person possesses two genetic types called "allele", one
inherited from each parent. In [a] paternity test, the forensic scientist looks at a
number of these variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is possible to determine
which half of the child's DNA was inherited from the mother. The other half must
have been inherited from the biological father. The alleged father's profile is then
examined to ascertain whether he has the DNA types in his profile, which match the
paternal types in the child. If the man's DNA types do not match that of the child, the
man is excluded as the father. If the DNA types match, then he is not excluded as
the father.[32] (Emphasis in the original)
Although the term "DNA testing" was mentioned in the 1995 case of People v.
Teehankee, Jr.,[33] it was only in the 2001 case of Tijing v. Court of Appeals[34] that
more than a passing mention was given to DNA analysis. In Tijing, we issued a writ
of habeas corpus against respondent who abducted petitioners' youngest son.
Testimonial and documentary evidence and physical resemblance were used to
establish parentage. However, we observed that:

Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage testing. The University of
the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA typing using short tandem repeat
(STR) analysis. xxx For it was said, that courts should apply the results of science
when completely obtained in aid of situations presented, since to reject said result is
to deny progress. Though it is not necessary in this case to resort to DNA testing, in
[the] future it would be useful to all concerned in the prompt resolution of parentage
and identity issues.
Admissibility of
DNA Analysis as Evidence

The 2002 case of People v. Vallejo[35] discussed DNA analysis as evidence. This

may be considered a 180 degree turn from the Court's wary attitude towards DNA
testing in the 1997 Pe Lim case,[36] where we stated that "DNA, being a relatively
new science, xxx has not yet been accorded official recognition by our courts."
In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim
matched the accused's DNA profile. We affirmed the accused's conviction of rape
with homicide and sentenced him to death. We declared:

In assessing the probative value of DNA evidence, therefore, courts should consider,
among other things, the following data: how the samples were collected, how they
were handled, the possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether the proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.[37]
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002,
there was no longer any question on the validity of the use of DNA analysis as
evidence. The Court moved from the issue of according "official recognition" to DNA
analysis as evidence to the issue of observance of procedures in conducting DNA
analysis.

In 2004, there were two other cases that had a significant impact on jurisprudence
on DNA testing: People v. Yatar[38] and In re: The Writ of Habeas Corpus for
Reynaldo de Villa.[39] In Yatar, a match existed between the DNA profile of the semen
found in the victim and the DNA profile of the blood sample given by appellant in
open court. The Court, following Vallejo's footsteps, affirmed the conviction of
appellant because the physical evidence, corroborated by circumstantial evidence,
showed appellant guilty of rape with homicide. In De Villa, the convict-petitioner
presented DNA test results to prove that he is not the father of the child conceived at
the time of commission of the rape. The Court ruled that a difference between the
DNA profile of the convict-petitioner and the DNA profile of the victim's child does not
preclude the convict-petitioner's commission of rape.

In the present case, the various pleadings filed by petitioner and respondent refer to
two United States cases to support their respective positions on the admissibility of
DNA analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow
Pharmaceuticals.[41] In Frye v. U.S., the trial court convicted Frye of murder. Frye
appealed his conviction to the Supreme Court of the District of Columbia. During
trial, Frye's counsel offered an expert witness to testify on the result of a systolic
blood pressure deception test[42] made on defendant. The state Supreme Court
affirmed Frye's conviction and ruled that "the systolic blood pressure deception test
has not yet gained such standing and scientific recognition among physiological and
psychological authorities as would justify the courts in admitting expert testimony
deduced from the discovery, development, and experiments thus far made."
The Frye standard of general acceptance states as follows:

Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere in this
twilight zone the evidential force of the principle must be recognized, and while
courts will go a long way in admitting expert testimony deduced from a well
recognized scientific principle or discovery, the thing from which the deduction is
made must be sufficiently established to have gained general acceptance in the
particular field in which it belongs.
In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged with
stabbing and murder. Bloodstained articles and blood samples of the accused and
the victim were submitted for DNA testing to a government facility and a private
facility. The prosecution introduced the private testing facility's results over
Schwartz's objection. One of the issues brought before the state Supreme Court
included the admissibility of DNA test results in a criminal proceeding. The state
Supreme Court concluded that:

While we agree with the trial court that forensic DNA typing has gained general
acceptance in the scientific community, we hold that admissibility of specific test
results in a particular case hinges on the laboratory's compliance with appropriate
standards and controls, and the availability of their testing data and results.[44]
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified
the Frye-Schwartz standard. Daubert was a product liability case where both the
trial and appellate courts denied the admissibility of an expert's testimony because it
failed to meet the Frye standard of "general acceptance." The United States
Supreme Court ruled that in federal trials, the Federal Rules of Evidence have
superseded the Frye standard. Rule 401 defines relevant evidence, while Rule 402
provides the foundation for admissibility of evidence. Thus:

Rule 401. "Relevant evidence" is defined as that which has any "tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.

Rule 402. All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by these rules, or by other
rules prescribed by the Supreme Court pursuant to statutory authority. Evidence
which is not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance does
not mean that the Federal Rules do not place limits on the admissibility of scientific
evidence. Rather, the judge must ensure that the testimony's reasoning or method is
scientifically valid and is relevant to the issue. Admissibility would depend on factors
such as (1) whether the theory or technique can be or has been tested; (2) whether
the theory or technique has been subjected to peer review and publication; (3) the
known or potential rate of error; (4) the existence and maintenance of standards
controlling the technique's operation; and (5) whether the theory or technique is
generally accepted in the scientific community.

Another product liability case, Kumho Tires Co. v. Carmichael,[46] further modified

the Daubert standard. This led to the amendment of Rule 702 in 2000 and which
now reads as follows:

If scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these American cases.
Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is
controlling in the Philippines.[47] At best, American jurisprudence merely has a
persuasive effect on our decisions. Here, evidence is admissible when it is relevant
to the fact in issue and is not otherwise excluded by statute or the Rules of Court.
[48]
 Evidence is relevant when it has such a relation to the fact in issue as to induce
belief in its existence or non-existence.[49]Section 49 of Rule 130, which governs the
admissibility of expert testimony, provides as follows:

The opinion of a witness on a matter requiring special knowledge, skill, experience

or training which he is shown to possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as
evidence. Indeed, even evidence on collateral matters is allowed "when it tends in
any reasonable degree to establish the probability or improbability of the fact in
issue."[50]

Indeed, it would have been convenient to merely refer petitioner to our decisions
in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence.
In our jurisdiction, the restrictive tests for admissibility established by Frye-
Schwartz and Daubert-Kumho go into the weight of the evidence.

Probative Value of
DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in
giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo:

In assessing the probative value of DNA evidence, therefore, courts should consider,
among other things, the following data: how the samples were collected, how they
were handled, the possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether the proper standards and procedures
were followed in conducting the tests, and the qualification of the analyst who
conducted the tests.[51]
We also repeat the trial court's explanation of DNA analysis used in paternity cases:

In [a] paternity test, the forensic scientist looks at a number of these variable regions
in an individual to produce a DNA profile. Comparing next the DNA profiles of the
mother and child, it is possible to determine which half of the child's DNA was
inherited from the mother. The other half must have been inherited from the
biological father. The alleged father's profile is then examined to ascertain whether
he has the DNA types in his profile, which match the paternal types in the child. If the
man's DNA types do not match that of the child, the man is excluded as the father. If
the DNA types match, then he is not excluded as the father.[52]
It is not enough to state that the child's DNA profile matches that of the putative
father. A complete match between the DNA profile of the child and the DNA profile of
the putative father does not necessarily establish paternity. For this reason, following
the highest standard adopted in an American jurisdiction,[53] trial courts should
require at least 99.9% as a minimum value of the Probability of Paternity ("W") prior
to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a
putative father compared to the probability of a random match of two unrelated
individuals. An appropriate reference population database, such as the Philippine
population database, is required to compute for W. Due to the probabilistic nature of
paternity inclusions, W will never equal to 100%. However, the accuracy of W
estimates is higher when the putative father, mother and child are subjected to DNA
analysis compared to those conducted between the putative father and child alone.
[54]

DNA analysis that excludes the putative father from paternity should be conclusive
proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA
analysis should be considered as corroborative evidence. If the value of W is 99.9%
or higher, then there isrefutable presumption of paternity.[55] This refutable
presumption of paternity should be subjected to the Vallejo standards.

Right Against
Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that "no person shall be
compelled to be a witness against himself." Petitioner asserts that obtaining samples
from him for DNA testing violates his right against self-incrimination. Petitioner
ignores our earlier pronouncements that the privilege is applicable only to testimonial
evidence. Again, we quote relevant portions of the trial court's 3 February 2000
Order with approval:
Obtaining DNA samples from an accused in a criminal case or from the respondent
in a paternity case, contrary to the belief of respondent in this action, will not violate
the right against self-incrimination. This privilege applies only to evidence that is
"communicative" in essence taken under duress (People vs. Olvis, 154 SCRA 513,
1987). The Supreme Court has ruled that the right against self-incrimination is just a
prohibition on the use of physical or moral compulsion to extort communication
(testimonial evidence) from a defendant, not an exclusion of evidence taken from his
body when it may be material. As such, a defendant can be required to submit to a
test to extract virus from his body (as cited in People vs. Olvis, Supra); the
substance emitting from the body of the accused was received as evidence for acts
of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth
was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for
the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil.
244); and the court can compel a woman accused of adultery to submit for
pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is
the restriction on "testimonial compulsion."[56]
The policy of the Family Code to liberalize the rule on the investigation of the
paternity and filiation of children, especially of illegitimate children, is without
prejudice to the right of the putative parent to claim his or her own defenses.
[57]
 Where the evidence to aid this investigation is obtainable through the facilities of
modern science and technology, such evidence should be considered subject to the
limits established by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of

Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the
Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional
Trial Court of Manila in Civil Case No. SP-98-88759.

SO ORDERED.

[A.M. NO. CA-05-18-P : April 12, 2005]

ZALDY NUEZ, Complainant, v. ELVIRA CRUZ-APAO, Respondent.

DECISION

PER CURIAM:

What brings our judicial system into disrepute are often the actuations of a few erring
court personnel peddling influence to party-litigants, creating the impression that
decisions can be bought and sold, ultimately resulting in the disillusionment of the
public. This Court has never wavered in its vigilance in eradicating the so-called "bad
eggs" in the judiciary. And whenever warranted by the gravity of the offense, the
supreme penalty of dismissal in an administrative case is meted to erring
personnel.1

The above pronouncement of this Court in the case of Mendoza v. Tiongson2 is

applicable to the case at bar.

This is an administrative case for Dishonesty and Grave Misconduct3 against Elvira
Cruz-Apao (Respondent), Executive Assistant II of the Acting Division Clerk of Court
of the Fifteenth (15th) Division, Court of Appeals (CA). The complaint arose out of
respondent's solicitation of One Million Pesos (P1,000,000.00) from Zaldy Nuez
(Complainant) in exchange for a speedy and favorable decision of the latter's
pending case in the CA,4 more particularly, CA-G.R. SP No. 73460 entitled
"PAGCOR v. Zaldy Nuez."5 Complainant initially lodged a complaint with the Action
Center of the Television program Imbestigador of GMA Network,6 the crew of which
had accompanied him to the Presidential Anti-Organized Crime Commission'Special
Projects Group (PAOCC-SPG) in Malacañang where he filed a complaint for
extortion7 against respondent. This led to the conduct of an entrapment operation by
elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28
September 2004 at the Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner
Taft and United Nations Avenue, Manila,8 the place where the supposed hand-over
of the money was going to take place.

Respondent's apprehension by agents of the PAOCTF in the course of the

entrapment operation prompted then CA Presiding Justice (PJ) Cancio C. Garcia
(now Supreme Court Justice) to issue Office Order No. 297-04-CG9 (Order) which
created an ad-hoc investigating committee (Committee).10 The Committee was
specifically tasked among others to conduct a thorough and exhaustive investigation
of respondent's case and to recommend the proper administrative sanctions against
her as the evidence may warrant.11
In accordance with the mandate of the Order, the Committee conducted an
investigation of the case and issued a Resolution12 dated 18 October 2004 where it
concluded that a prima facie case of Dishonesty and Serious Misconduct against
respondent existed. The Committee thus recommended respondent's preventive
suspension for ninety (90) days pending formal investigation of the charges against
her.13 On 28 January 2005, the Committee submitted a Report14 to the new CA
Presiding Justice Romeo A. Brawner with its recommendation that respondent be
dismissed from service.

Based on the hearings conducted and the evidence received by the Committee, the
antecedent facts are as follows:

Complainant's case referred to above had been pending with the CA for more than
two years.15 Complainant filed an illegal dismissal case against PAGCOR before
the Civil Service Commission (CSC). The CSC ordered complainant's
reinstatement but a writ of preliminary injunction and a temporary restraining order
was issued by the CA in favor of PAGCOR, thus complainant was not reinstated to
his former job pending adjudication of the case.16 Desiring an expeditious decision
of his case, complainant sought the assistance of respondent sometime in July 2004
after learning of the latter's employment with the CA from her sister, Magdalena
David. During their first telephone conversation17 and thereafter through a series of
messages they exchanged via SMS,18 complainant informed respondent of the
particulars of his pending case. Allegedly, complainant thought that respondent
would be able to advise him on how to achieve an early resolution of his case.

However, a week after their first telephone conversation, respondent allegedly told
complainant that a favorable and speedy decision of his case was attainable but the
person who was to draft the decision was in return asking for One Million Pesos
(P1,000,000.00).19

Complainant expostulated that he did not have that kind of money since he had been
jobless for a long time, to which respondent replied, "Eh, ganoon talaga ang lakaran
dito, eh. Kung wala kang pera, pasensiya na."20 Complainant then tried to ask for a
reduction of the amount but respondent held firm asserting that the price had been
set, not by her but by the person who was going to make the decision.21
Respondent even admonished complainant with the words "Wala tayo sa palengke
iho!"22 when the latter bargained for a lower amount.23

Complainant then asked for time to determine whether or not to pay the money in
exchange for the decision. Instead, in August of 2004, he sought the assistance of
Imbestigador.24 The crew of the TV program accompanied him to PAOCCF-SPG
where he lodged a complaint against respondent for extortion.25 Thereafter, he
communicated with respondent again to verify if the latter was still asking for the
money26 and to set up a meeting with her.27 Upon learning that respondent's offer
of a favorable decision in exchange for One Million Pesos (P1,000,000.00) was still
standing, the plan for the entrapment operation was formulated by Imbestigador in
cooperation with the PAOCC.

On 24 September 2004, complainant and respondent met for the first time in person
at the 2nd Floor of Jollibee, Times Plaza Bldg.,28 the place where the entrapment
operation was later conducted. Patricia Siringan (Siringan), a researcher of
Imbestigador, accompanied complainant and posed as his sister-in-law.29 During
the meeting, complainant clarified from respondent that if he gave the amount of
One Million Pesos (P1,000,000.00), he would get a favorable decision. This was
confirmed by the latter together with the assurance that it would take about a month
for the decision to come out.30 Respondent also explained that the amount of One
Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but
did not extend to the Supreme Court should the case be appealed later.31

When respondent was asked where the money will go, she claimed that it will go to a
male researcher whose name she refused to divulge. The researcher was allegedly
a lawyer in the CA Fifth (5th) Division where complainant case was pending.32
She also claimed that she will not get any part of the money unless the researcher
decides to give her some.33

Complainant tried once again to bargain for a lower amount during the meeting but
respondent asserted that the amount was fixed. She even explained that this was
their second transaction and the reason why the amount was closed at One Million
Pesos (P1,000,000.00) was because on a previous occasion, only Eight Hundred
Thousand Pesos (P800,000.00) was paid by the client despite the fact that the
amount had been pegged at One Million Three Hundred Thousand Pesos
(P1,300,000.00).34 Complainant then proposed that he pay a down payment of
Seven Hundred Thousand Pesos (P700,000.00) while the balance of Three Hundred
Thousand Pesos (P300,000.00) will be paid once the decision had been released.35
However, respondent refused to entertain the offer, she and the researcher having
learned their lesson from their previous experience for as then, the client no longer
paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision
had come out.36

Complainant brought along copies of the documents pertinent to his case during the
first meeting. After reading through them, respondent allegedly uttered, "Ah, panalo
ka."37 The parties set the next meeting date at lunchtime on 28 September 2004
and it was understood that the money would be handed over by complainant to
respondent then.38
On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt.
Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay (Banay), PO1
Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar delos Reyes39
arrived at around 11:30 in the morning at Jollibee.40 Nuez and Siringan arrived at
past noon and seated themselves at the table beside the one occupied by the two
(2) agents, Banay and Villena. Complainant had with him an unsealed long brown
envelope containing ten (10) bundles of marked money and paper money which was
to be given to respondent.41 The envelope did not actually contain the One Million
Pesos (P1,000,000.00) demanded by respondent, but instead contained paper
money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos
(P500.00) and One Thousand Pesos (P1,000.00), as well as newspaper cut-outs.42
There were also ten (10) authentic One Hundred Peso (P100.00) bills which had
been previously dusted with ultra-violet powder by the PAOCTF.43 The three other
PAOCTF agents were seated a few tables away44 and there were also three (3)
crew members from Imbestigador at another table operating a mini DV camera that
was secretly recording the whole transaction.

Respondent arrived at around 1:00 p.m.46 She appeared very nervous and
suspicious during the meeting.47 Ironically, she repeatedly said that complainant
might entrap her, precisely like those that were shown on Imbestigador.48 She thus
refused to receive the money then and there. What she proposed was for
complainant and Siringan to travel with her in a taxi and drop her off at the CA where
she would receive the money.

More irony ensued. Respondent actually said that she felt there were policemen
around and she was afraid that once she took hold of the envelope complainant
proffered, she would suddenly be arrested and handcuffed.50 At one point, she even
said, "Ayan o, tapos na silang kumain, bakit hindi pa sila umaalis?,"51 referring to
Banay and Villena at the next table. To allay respondent's suspicion, the two agents
stood up after a few minutes and went near the staircase where they could still see
what was going on.

Complainant, respondent and Siringan negotiated for almost one hour.53

Complainant and Siringan bargained for a lower price but respondent refused to
accede. When respondent finally touched the unsealed envelope to look at the
money inside, the PAOCTF agents converged on her and invited her to the Western
Police District (WPD) Headquarters at United Nations Avenue for questioning.54
Respondent became hysterical as a commotion ensued inside the restaurant.55

On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent
why she went to the restaurant. The latter replied that she went there to get the One
Million Pesos (P1,000,000.00).56

Respondent was brought to the PNP Crime Laboratory at the WPD where she was
tested and found positive for ultra-violet powder that was previously dusted on the
money.57 She was later detained at the WPD Headquarters.
At seven o'clock in the evening of 28 September 2004, respondent called Atty. Lilia
Mercedes Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the
latter's house.58 She tearfully confessed to Atty. Gepty that "she asked for money
for a case and was entrapped by police officers and the media."59 Enraged at the
news, Atty. Gepty asked why she had done such a thing to which respondent
replied, "Wala lang ma'am, sinubukan ko lang baka makalusot."60 Respondent
claimed that she was ashamed of what she did and repented the same. She also
asked for Atty. Gepty's forgiveness and help. The latter instead reminded respondent
of the instances when she and her co-employees at the CA were exhorted during
office meetings never to commit such offenses.

Atty. Gepty rendered a verbal report62 of her conversation with their division's
chairman, Justice Martin S. Villarama. She reduced the report into writing and
submitted the same to then PJ Cancio Garcia on 29 September 2004.63 She also
later testified as to the contents of her report to the Committee.

During the hearing of this case, respondent maintained that what happened was a
case of instigation and not an entrapment. She asserted that the offer of money in
exchange for a favorable decision came not from her but from complainant. To
support her contention, she presented witnesses who testified that it was
complainant who allegedly offered money to anyone who could help him with his
pending case. She likewise claimed that she never touched the money on 28
September 2004, rather it was Capt. Maclang who forcibly held her hands and
pressed it to the envelope containing the money. She thus asked that the
administrative case against her be dismissed.

This Court is not persuaded by respondent's version. Based on the evidence on

record, what happened was a clear case of entrapment, and not instigation as
respondent would like to claim.

In entrapment, ways and means are resorted to for the purpose of ensnaring and
capturing the law-breakers in the execution of their criminal plan. On the other
hand, in instigation, the instigator practically induces the would-be defendant into the
commission of the offense, and he himself becomes a co-principal.64

In this case, complainant and the law enforcers resorted to entrapment precisely
because respondent demanded the amount of One Million Pesos (P1,000,000.00)
from complainant in exchange for a favorable decision of the latter's pending case.
Complainant's narration of the incidents which led to the entrapment operation are
more in accord with the circumstances that actually transpired and are more credible
than respondent's version.

Complainant was able to prove by his testimony in conjunction with the text
messages from respondent duly presented before the Committee that the latter
asked for One Million Pesos (P1,000,000.00) in exchange for a favorable decision of
the former's pending case with the CA. The text messages were properly admitted
by the Committee since the same are now covered by Section 1(k), Rule 2 of the
Rules on Electronic Evidence65 which provides:

"Ephemeral electronic communication" refers to telephone conversations, text

messages . . . and other electronic forms of communication the evidence of which is
not recorded or retained."
Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic
communications shall be proven by the testimony of a person who was a party to the
same or who has personal knowledge thereof . . . ." In this case, complainant who
was the recipient of said messages and therefore had personal knowledge thereof
testified on their contents and import. Respondent herself admitted that the
cellphone number reflected in complainant's cellphone from which the messages
originated was hers.66 Moreover, any doubt respondent may have had as to the
admissibility of the text messages had been laid to rest when she and her counsel
signed and attested to the veracity of the text messages between her and
complainant.67 It is also well to remember that in administrative cases, technical
rules of procedure and evidence are not strictly applied.68 We have no doubt as to
the probative value of the text messages as evidence in determining the guilt or lack
thereof of respondent in this case.

Complainant's testimony as to the discussion between him and respondent on the

latter's demand for One Million Pesos (P1,000,000.00) was corroborated by the
testimony of a disinterested witness, Siringan, the reporter of Imbestigador who was
present when the parties met in person. Siringan was privy to the parties' actual
conversation since she accompanied complainant on both meetings held on 24 and
28 of September 2004 at Jollibee.

Respondent's evidence was comprised by the testimony of her daughter and sister
as well as an acquaintance who merely testified on how respondent and complainant
first met. Respondent's own testimony consisted of bare denials and self-serving
claims that she did not remember either the statements she herself made or the
contents of the messages she sent. Respondent had a very selective memory
made apparent when clarificatory questions were propounded by the Committee.

When she was asked if she had sent the text messages contained in complainant's
cellphone and which reflected her cellphone number, respondent admitted those that
were not incriminating but claimed she did not remember those that clearly showed
she was transacting with complainant. Thus, during the 17 November 2004
hearing, where respondent was questioned by Justice Salazar-Fernando, the
following transpired:

Q: After reading those text messages, do you remember having made those text
messages?chanroblesvirtualawlibrary

(Respondent)

A: Only some of these, your honors.

Justice Salazar-Fernando: Which one?chanroblesvirtualawlibrary

A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po,
your Honors.

Q: What else?chanroblesvirtualawlibrary

A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya
sa kanya si Len David.
Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at
1309 which was around 1:09 in the afternoon and you said "di me pwede punta na
lang kayo dito sa office Thursday 4:45 p.m. Room 107 Centennial Building.

A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon
you again texted Zaldy Nuez and you said "Sige bukas nang tanghali sa Times
Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng I.D. para makilala kita o
isama mo si Len David.

A: Opo, your Honors.

Q: How about on September 23 at 5:05 in the afternoon when you said "Di
pwede kelan mo gusto fixed price na iyon."

A: I don't remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said "Alam mo di ko iyon price and
nagbigay noon yung gagawa. Wala ako doon." You don't also remember this?
chanroblesvirtualawlibrary

A: Yes, your Honors.

Q: September 27 at 1:42 p.m. "Oo naman ayusin nyo yung hindi halatang pera".
You also don't remember that?chanroblesvirtualawlibrary

A: Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, "Di na pwede sabi sa akin.

Pinakaiusapan ko na nga ulit iyon." You don't remember that?
chanroblesvirtualawlibrary

A: No, your Honors.69

Respondent would like this Court to believe that she never had any intention of
committing a crime, that the offer of a million pesos for a favorable decision came
from complainant and that it was complainant and the law enforcers who instigated
the whole incident.

Respondent thus stated that she met with complainant only to tell the latter to stop
calling and texting her, not to get the One Million Pesos (P1,000,000.00) as pre-
arranged.

This claim of respondent is preposterous to say the least. Had the offer of a million
pesos really come from complainant and had she really intended to stop the latter
from corrupting her, she could have simply refused to answer the latter's messages
and calls. This she did not do. She answered those calls and messages though
she later claimed she did not remember having sent the same messages to
complainant. She could also have reported the matter to the CA Presiding Justice,
an action which respondent admitted during the hearing was the proper thing to do
under the circumstances.70 But this course of action she did not resort to either,
allegedly because she never expected things to end this way.71

While claiming that she was not interested in complainant's offer of a million pesos,
she met with him not only once but twice, ostensibly, to tell the latter to stop
pestering her. If respondent felt that telling complainant to stop pestering her would
be more effective if she did it in person, the same would have been accomplished
with a single meeting. There was no reason for her to meet with complainant again
on 28 September 2004 unless there was really an understanding between them that
the One Million Pesos (P1,000,000.00) will be handed over to her then.
Respondent even claimed that she became afraid of complainant when she learned
that the latter had been dismissed by PAGCOR for using illegal drugs.72 This
notwithstanding, she still met with him on 28 September 2004.

Anent complainant's narration of respondent's refusal to reduce the amount of One

Million Pesos (P1,000.000.00) based on the lesson learned from a previous
transaction, while admitting that she actually said the same, respondent wants this
Court to believe that she said it merely to have something to talk about.73 If indeed,
respondent had no intention of committing any wrongdoing, it escapes the Court why
she had to make up stories merely to test if complainant could make good on his
alleged boast that he could come up with a million pesos. It is not in accord with
ordinary human experience for an honest government employee to make up stories
that would make party-litigants believe that court decisions may be bought and sold.
Time and again this Court has declared, thus:

"Everyone in the judiciary bears a heavy burden of responsibility for the proper
discharge of his duty and it behooves everyone to steer clear of any situations in
which the slightest suspicion might be cast on his conduct. Any misbehavior on his
part, whether true or only perceived, is likely to reflect adversely on the
administration of justice."74

Respondent having worked for the government for twenty four (24) years, nineteen
(19) of which have been in the CA,75 should have known very well that court
employees are held to the strictest standards of honesty and integrity. Their
conduct should at all times be above suspicion. As held by this Court in a number
of cases, "The conduct or behavior of all officials of an agency involved in the
administration of justice, from the Presiding Judge to the most junior clerk, should be
circumscribed with the heavy burden of responsibility."76 Their conduct must, at all
times be characterized by among others, strict propriety and decorum in order to
earn and maintain the respect of the public for the judiciary.77

Respondent's actuations from the time she started communicating with complainant
in July 2004 until the entrapment operation on 28 September 2004 show a lack of
the moral fiber demanded from court employees. Respondent's avowals of
innocence notwithstanding, the evidence clearly show that she solicited the amount
of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable
decision. The testimony of Atty. Gepty, the recipient of respondent's confession
immediately after the entrapment operation, unmistakably supports the finding that
respondent did voluntarily engage herself in the activity she is being accused of.

Respondent's solicitation of money from complainant in exchange for a favorable

decision violates Canon I of the Code of Conduct for Court Personnel which took
effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I
of the Code of Conduct for Court Personnel expressly provide:

"SECTION 1. Court personnel shall not use their official position to secure
unwarranted benefits, privileges or exemption for themselves or for others."

"SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit
based on any explicit or implicit understanding that such gift, favor or benefit shall
influence their official actions." (Underscoring supplied)

It is noteworthy that the penultimate paragraph of the Code of Conduct for Court
Personnel specifically provides:

INCORPORATION OF OTHER RULES

"SECTION 1. All provisions of the law, Civil Service rules, and issuances of the
Supreme Court governing the conduct of public officers and employees applicable to
the judiciary are deemed incorporated into this Code."

By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant,

respondent committed an act of impropriety which immeasurably affects the honor
and dignity of the judiciary and the people's confidence in it.

In the recent case of Aspiras v. Abalos,78 complainant charged respondent, an

employee of the Records Section, Office of the Court Administrator (OCA), Supreme
Court for allegedly deceiving him into giving her money in the total amount of Fifty
Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder case on
appeal before the Supreme Court. It turned out that respondent's representation
was false because complainant was subsequently convicted of murder and
sentenced to suffer the penalty of reclusion perpetua by the Supreme Court.79

The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct
and ordered her dismissal from the service. This Court aptly held thus:

"In Mirano v. Saavedra,80 this Court emphatically declared that a public servant
must exhibit at all times the highest sense of honesty and integrity. The
administration of justice is a sacred task, and by the very nature of their duties and
responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and
invigorate the principle that public office is a public trust, solemnly enshrined in the
Constitution."81

Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the
Shari a Circuit Court, Bengo, Tawi-Tawi,82 this Court stated:

"No position demands greater moral righteousness and uprightness from the
occupant than the judicial office. Those connected with the dispensation of justice
bear a heavy burden of responsibility. Court employees in particular, must be
individuals of competence, honesty and probity charged as they are with
safeguarding the integrity of the court . . . . The High Court has consistently held that
persons involved in the administration of justice ought to live up to the strictest
standards of honesty and integrity in the public service. He should refrain from
financial dealings which would interfere with the efficient performance of his
duties.83 The conduct required of court personnel must always be beyond
reproach."

The following pronouncement of this Court in the case of Yrastorza, Sr. v. Latiza,
Court Aide, RTC Branch 14 Cebu City85 is also worth remembering:

"Court employees bear the burden of observing exacting standards of ethics and
morality. This is the price one pays for the honor of working in the judiciary. Those
who are part of the machinery dispensing justice from the lowliest clerk to the
presiding judge must conduct themselves with utmost decorum and propriety to
maintain the public's faith and respect for the judiciary. Improper behavior exhibits
not only a paucity of professionalism at the workplace but also a great disrespect to
the court itself. Such demeanor is a failure of circumspection demanded of every
public official and employee."86

In view of the facts narrated above and taking into account the applicable laws and
jurisprudence, the Committee in their Report87 recommended that respondent be
dismissed from government service for GRAVE MISCONDUCT and violation of
Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel.88

Finding the Committee's recommendation to be supported by more than substantial

evidence and in accord with the applicable laws and jurisprudence, the
recommendation is well taken.

WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY

of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF
CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED from
government service, with prejudice to re-employment in any branch, instrumentality
or agency of the government, including government-owned and controlled
corporations. Her retirement and all benefits except accrued leave credits are
hereby FORFEITED.

SO ORDERED.

G.R. No. 95207-17

CRUZ, J.:
Enrique Taguba and Mirafe Taguba were both charged with eight counts of illegal
recruitment and three counts of estafa in separate informations[1] commonly worded
(except only as to the date of the offense, the name of the complainant and the
amount involved) as follows:

The undersigned Assistant City Fiscal accuses ENRIQUE C. TAGUBA, MIRAFE

TAGUBA and JANE DOE, true name, real identity and present whereabouts of the
last-mentioned accused still unknown, of the crime of "ILLEGAL RECRUITMENT,"
committed as follows:

That (date of commission) in Caloocan City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together
and mutually helping one another, representing themselves to have the capacity to
contract, enlist and recruit workers for employment abroad did then and there
wilfully, unlawfully and feloniously, for a fee recruit and promise employment/job
placement to one (name of complainant), without first securing the required license
or authority from the Ministry of Labor and Employment.

Contrary to law.

xxx

The undersigned Assistant City Fiscal accuses ENRIQUE C. TAGUBA, MIRAFE

TAGUBA and JANE DOE, true name, real identity and present whereabouts of the
last-mentioned accused still unknown, of the crime of "ESTAFA," committed as
follows:

That (date of commission) in Caloocan City, Metro Manila, the above-named and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring
together and mutually helping one another, defrauded and deceived one (name of
plaintiff) in the following manner, to wit: said accused, by means of false
manifestations and fraudulent representation which they made to said complainants
to the effect that they have the capacity and power to recruit and employ
complainant abroad and could facilitate the necessary papers in connection
therewith if given the necessary amount to meet the requirements thereof, knowing
said manifestations and representations to be false and fraudulent and were made
only to induce said complainant to give and deliver, as in fact the latter did give and
deliver to said accused the amount of P_________, but said accused, once in
possession of the said amount, with intent to defraud, did then and there wilfully,
unlawfully and feloniously misapply, misappropriate and convert to their own
personal use and benefit, to the damage and prejudice of the complainant in the
aforementioned amount of P___________.

Contrary to law.
Trial of the cases was held jointly.

The complainants, namely, Jesus Garcia, Gilbert Fabrigas, Josefina Sarrion, Myrna
Roxas, Elena Santiago, Federico Sagurit, Manuel Aquiban, Violeta Porte, Renelito
Cerbito, Danilo Pacheco, narrated almost identical versions of the deception
practiced on them by the accused.

These witnesses testified that Enrique and Mirafe approached them on separate
occasions and assured them that upon their payment of a specified sum of money
they would be sent to Korror, Palau, to work variously as a waiter,[2] fisherman,
[3]
 master cutter,[4] dressmaker,[5] farmer,[6] laborer,[7] mason carpenter[8] or macho
dancer.[9]

The consideration for their recruitment ranged from P2,200,00 to P20,000.00 while
the promised monthly wages ranged from $300.00 to $500.00.

The required payments were made by them from loans they had contracted or from
the proceeds of the sale of their properties. However, no overseas employment
materialized. Only Gilbert Fabrigas and Norman Sarrion (the son of Josefina Sarion)
were able to reach Korror but after three months, during which they were not given
any work, they were deported to Manila for expired visas.[10] The rest of the
complainants were never even able to leave the Philippines.

In his defense, Enrique Taguba first claimed that he merely happened to be at the
RAY/DECO office when the complainants submitted their papers. RAY/DECO is a
corporation licensed to recruit workers for employment abroad with which he had
entered into a joint venture. From the office, the documents were submitted to the
foreign employer, who brought them to Korror.[11]

He later declared that a special power of attorney issued to him by RAY/DECO

authorized him to recruit and hire contract workers. It was by virtue of this
authorization that he recruited the complainants. At the same hearing, however, he
retracted this statement, reiterating his earlier claim that he had no participation in
the complainants' transactions with the company. The sole exception was when he
accompanied Gilbert Fabrigas and Norman Sarrion korror upon RAY/DECO's
request.[12]

Mirafe, on the other hand, averred that she was working as a domestic helper in
Korror when the alleged irregularities happened. She presented a round-trip
Continental Airline ticket issued in her name on May 3, 1985, for Manila - Korror -
Manila[13] and a certification issued by the Manager of Air Nauru that on March 3,
1986, she was a passenger on Air Nauru Flight No. 420 bound for Manila from
Korror.[14]

After trial, Judge Adoracion C. Angeles of the Regional Trial Court in Caloocan City
declared them guilty of all the charges in a decision dated June 4, 1990.[15]

For the offense of illegal recruitment on a grand scale, each was sentenced to a
penalty of reclusion perpetua and a fine of P100,000.00. They were also held jointly
and severally liable for the reimbursement of the money they received from the
complainants.[16]

For each of the three counts of estafa, they were both meted the penalty of four
years, two months and one day of prision correccional. In addition, they were held
solidarily liable for the return of the money given them by the complainants.[17]

In their challenge to the decision, the appellants stress what they call the failure of
the prosecution to prove that they were not holders of licenses to engage in the
recruitment and placement of workers abroad; the unrebutted evidence of Mirafe
Taguba's absence in the Philippines during the commission of the alleged crimes;
the imposition of a penalty which was not yet in effect when the alleged crime of
illegal recruitment on a grand scale were committed; and the lack of sufficient
evidence to support their conviction for estafa.

The appellants argue that before one can be held guilty of illegal recruitment, two
elements have to be established, to wit, that (1) the offender is not a licensee or
holder of authority to lawfully engage in the recruitment and placement of workers;
and (2) the offender undertook the recruitment activities defined under Article 13(b)
or any of the prohibited practices enumerated under Article 34 of the Labor Code.
Their argument is that the prosecution has the burden of proving beyond reasonable
doubt each of the elements of the offense charged and that this burden had not been
discharged in the cases against them.

The appellants also contend that the penalty of life imprisonment for illegal
recruitment committed on a large scale is not applicable to them because the
presidential decree imposing this penalty was published in the Official Gazette only
on February 10, 1986. P.D. 2018 was thus not yet effective at the time of the alleged
commission of the crimes imputed to them. Only two of the eight complainants for
illegal recruitment testified that they were recruited after February 10, 1986. If at all,
therefore, the appellants can only be convicted of eight separate counts of illegal
recruitment under Art. 39 (c) of the Labor Code, which is subject to a lesser penalty.

Regarding the charges of estafa, the appellants' claim they had made no
representation that they had the capacity to recruit and send the complainants
abroad. This is clear from the testimony of Josefina Sarrion herself, who declared as
follows:

The accused in this case did not say that they had (a) recruitment office to you
Q.
(sic)?
A. They did not, sir.
The accused did not say to you or represent to you that they had (a) permit to
Q.
recruit?
A. They did not, sir.[18]
The Solicitor General maintains in the appellee's brief that it was incumbent on the
accused to prove that they were licensed to recruit workers, conformably to the well-
settled rule that any party who asserts the affirmative of an issue has the burden of
presenting evidence required to obtain a favorable judgment.[19] He agrees, however,
that PD 2018 is inapplicable and that the appellants can only be held guilty of eight
counts of illegal recruitment and penalized in accordance with Sec. 39 (c) of the
Labor Code.

Our rulings follow.

The record shows that the prosecution indeed failed to establish that the appellants
had not been issued licenses to recruit for overseas employment. It had moved to
present Cecilia E. Curso, Chief of the Licensing and Evaluation Division of the
Philippine Overseas Employment Agency, so she could testify that the accused were
not licensed recruiters, but this was never done.

Rule 131 Sec. 2, of the Rules of Court provides:

Sec. 2. Burden of proof in criminal cases. - In criminal cases the burden of proof as
to the offense charged lies on the prosecution. A negative fact alleged by the
prosecution need not be proved unless it is an essential ingredient of the offense.
Non-possession of a license to recruit is an essential ingredient of the crime of illegal
recruiting. As it is an indispensable requisite for the conviction of the pretended
recruiter, the burden of establishing this element is upon the prosecution. In the case
before us, the prosecution cannot deny its failure to show that no license had indeed
been issued to either of the appellees by the Philippine Overseas Employment
Administration.

This would have been a fatal omission under ordinary circumstances. Fortunately for
the prosecution, however, this flaw was repaired by appellant Enrique Taguba
himself when he testified as follows:

In connection with the operation of your office, do you have the authority to
Q.
recruit?
I have a special power of attorney issued by the general manager of Ray/Deco,
A.
International Development Corporation.
Mr. Taguba you stated that you were clothed with a special power of attorney, is
Q.
that correct?
A. Yes, sir.
And according to you the special power of attorney you were then authorized as
Q.
attorney-in-fact of Ray/Deco to recruit and hire Filipino contract workers?
A. Yes, sir.
And this is the only evidence or authority for your having recruited Filipino
Q.
contractual workers?
A. I have submitted several papers, sir.
By virtue of the special power of attorney you recruited all these complainants
Q. namely: (At this juncture, the prosecuting fiscal read the names listed in the
information)?
A. Yes, sir.[20]
The special power of attorney[21] granted to Enrique by RAY/DECO did not operate
as a license to recruit workers on his own behalf, which is what he did. Besides, the
special power of attorney only authorized him:

1. To represent our Agency, RAY/DECO International Development and

Employment Corporation, and to negotiate and deal with any person,
company, Employer or Principal in foreign countries who may be interested in
engaging the services of and appointing our Agency in the recruitment and
hiring of Filipino contractual workers for employment abroad.

2. To enter into such conditions he may deem proper, reasonable and

advantageous to the Agency and to see to it that all documents and papers
necessary, required and proper in the appointment of our Agency by the
Principal or Employer as well as in the recruitment and hiring of the workers
are all in proper order; and

3. Finally, it is a condition of this Power of Attorney that our aforesaid Legal

Representative shall not demand, collect and receive from the Principal or
Employer any fee or sums of money without our prior consent and approval.
It is clear from the above-quoted document that Enrique's authority was confined to
negotiating with foreign employers for the appointment of RAY/DECO as their
agency in the recruiting of Filipino workers for employment abroad. What he was
supposed to recruit was not Filipino overseas workers but the foreign employers to
which the workers were to be assigned.

It is significant that the only authority the appellants could invoke was this special
power of attorney although he did speak of "several papers." These did not include
any license. It strikes us that if they had been issued a license to recruit, there would
have been no reason why they did not present it in evidence to exculpate them from
liability under the Labor Code.

Mirafe's defense of alibi is not acceptable either. The fact that she left for Korror on
May 3, 1985, and arrived in Manila on March 3, 1986, does not prove that in
between these dates, she did not come back to the Philippines to practice her
deceptions. The tickets and certification she submitted were not the best evidence to
establish her absence from the Philippines on the dates the offenses were
committed. What she should have submitted to the trial court was her passport,
where the holder's departure/arrivals are officially indicated.

Curiously, the ticket issued to her on May 3, 1985, by Continental for Manila Korror-
Manila was used by her in going to Korror but not in coming back to Manila. She
claims to have returned to Manila on March 3, 1986, but via Air Nauru instead. Why
she did not avail herself of the pre-paid Continental return trip ticket to Manila raises
some doubt on her credibility. Could it be that she had earlier used the return ticket
in coming back to Manila and that she went back later to Korror, from which she
returned to the Philippines on March 3, 1986, on board Air Nauru Flight 420? At any
rate, the certification by the Manager of Air Nauru is hearsay and inadmissible
because he was not presented at the trial to affirm it.

The appellees argue that they cannot be held liable for estafa because they were
prevented from complying with their promise due to their incarceration. This is not
true. Enrique Taguba accompanied Norman Sarrion and Gilbert Fabrigas to Korror
on December 29, 1985. After a week, Taguba came back to the Philippines, leaving
the two to stay there for three months and fend for themselves without any work. All
this happened before Enrique and Mirafe were arrested and detained on March 9,
1986 and March 10, 1986, respectively.[22]

In the case of Jesus Garcia, the promised employment on March 2, 1986, never
came. Learning that Enrique had been apprehended, Garcia even gave him money
for his bail. The money was an additional consideration for his overseas
employment, but even after Enrique's release, Garcia remained unemployed. In fact,
Enrique cannot validly argue that his detention prevented him from fulfilling his
obligation because he had in fact already defaulted prior to his arrest.

The appellants' claim that they made no representation that they could send
complainants abroad is belied by the following testimonies of the complainants:

Myrna Roxas:
Q. Did you talk with the two accused at that time?
A. Yes, sir.
Q. What did you talk about?
A. They told us, sir, that they are having us employed as dressmakers at Palau.
Q. Who is this who told you that you would be employed at Palau?
A. Enrique Taguba and Mirafe Taguba, your Honor.
Q. What was or what were the conditions for your employment at Palau, Guam?
They told us sir that if we give P5,000,00 we will have medical examination, NBI
A.
clearance and then passport.[23]
Gilbert Fabrigas:
Q. Did he tell you how you were supposed to go for employment abroad?
A. Yes, sir. He told me as long as I pay.
Q. For how much did he require you to pay for your employment abroad?
A. P20,000.00, sir.
Were you able to comply with that requirement to pay P20,000.00 in order to go
Q.
abroad for employment?
A. Yes, sir.
Q. When did you pay that or give that amount of P20,000.00 to Atty. Taguba?
On November 23, 1985, I gave him P10,000.00 and on December 27, 1985, I
A.
gave him another P10,000.00, sir.[24]
Substantially similar narrations were made by the other complainants.

The indisputable fact is that the appellants gave the distinct assurance that they had
the ability to send the complainants abroad, employing false pretenses and
imaginary business transactions to beguile their victims. The complainants willingly
gave their hard-earned money to the appellants in hopes of the overseas
employment deceitfully promised them by the latter.

It is also evident from the testimonies of the complainants that the deceptions were
practiced on them by both appellants, who cooperated with each other in fleecing the
complainants of their money. A conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to commit it.[25] It is
clear from the evidence of record that appellants, who were live-in partners, were
moved by a common design to victimize the complainants. As a consequence, they
are enmeshed in the same criminal liability for their conspiracy, which makes the act
of one the act of both.

The Court agrees that the appellants cannot be convicted of illegal recruitment on a
large scale because only two of the complainants, Jesus Garcia and Elena Santiago,
categorically testified that their recruitment came after February 10, 1986. This was
the date when P.D. 2018, the law defining and penalizing illegal recruitment in a
large scale, took effect.

P.D. 2018 has amended Articles 38 and 39 of the Labor Code by providing inter
alia as follows:

ART. 38. Illegal Recruitment. - x x x

(b) Illegal recruitment when committed by a syndicate or in large scale shall be

considered an offense involving economic sabotage and shall be penalized in
accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of

three (3) or more persons conspiring and/or confederating with one another in
carrying out any unlawful or illegal transaction, enterprise or scheme defined under
this first paragraph hereof. Illegal recruitment is deemed committed in large scale if
committed against three (3) or more persons individually or as a group.

xxx

ART. 39. Penalties. - (a) The penalty of the imprisonment and a fine of One Hundred
Thousand Pesos (P100,000) shall be imposed if illegal recruitment constitutes
economic sabotage as defined herein;

xxx

(c) Any person who is neither a licensee nor a holder of authority under this Title
found violating any provision thereof or its implementing rules and regulations shall,
upon conviction thereof, suffer the penalty of imprisonment of not less than four
years nor more than eight years or a fine of not less than P20,000 nor more than
P100,000 or both such imprisonment and fine, at the discretion of the Court.
P.D. 2018 cannot apply to the appellants retroactively as it would be an ex post
facto law as to them. A law is ex post facto if it refers to a criminal act, punishes an
act which was innocent when done, and retroacts to the disadvantage of the
accused.[26] Prior to the said date, recruiting on a large scale was not yet punished
with the penalty imposed in the said decree.

Moreover, each of the eight informations for illegal recruitment charged the
appellants with illegally recruiting only one person. It is a basic right of the accused
to be informed of the nature and cause of the accusation against him and, if he is
found guilty, to be penalized only for the offense specified in the information or
necessarily included in such offense.[27] Under the decree, illegal recruiting on a large
scale can take place only when it is committed against three or more persons,
individually or as a group.

The proper penalty for the illegal recruitment committed by the appellants is provided
for in Art. 39 (c) of the Labor Code, to wit, imprisonment of not less than four years
nor more than eight years or fine of not less than P20,000.00 nor more than
P100,000.00 or both such imprisonment and fine, at the court's discretion. We
hearby fix the penalty at from four to eight years and a fine of P50,000.00 for each of
the eight charges. The amounts ordered reimbursed to the complainants are
affirmed except the amount reimbursable to Manuel Aquiban, which is reduced from
P10,000.00 to P6,000.00, the amount actually delivered by him to the appellants.

Regarding the estafa, we shall accept the modification of the penalty as suggested
by the Solicitor General, after applying the Indeterminate Sentence Law, to two
years, eleven months and ten days of prision correccional, as minimum, to six years,
eight months and twenty days of prision mayor, as maximum, for each count of the
offense. The monetary awards made by the trial court are affirmed.

Duplicity is condemnable under any circumstance but it becomes doubly deplorable

when exercised on the poor and unemployed, as in the case before us. The
complainants were desperate for a living and were willing to work even away from
their families so they could lift themselves from their penury. The appellants took
advantage of their plight and enticed them with dollar earnings abroad. The
complainants succumbed to their wiles and raised the money demanded of them,
borrowing what they could and selling what little they had. All they got was
disenchantment. The appellants were like vultures preying on the victims and
feeding on their broken dreams.

WHEREFORE, the appealed decision is AFFIRMED, but with the following

modifications:

(1) For each of the 8 counts of illegal recruiting in Criminal Cases Nos. C-26359; C-
26364; C-26367; C-26368; C-26370; C-26371; C-26374 and C-26389, the
appellants are sentenced to a penalty of four to eight years imprisonment and a fine
of P50,000.00. The amounts ordered by the trial court to be reimbursed to the
respective complainants are affirmed except the amount reimbursable to Manuel
Aquiban, which is reduced to P6,000.00.

(2) For each of the 3 counts of estafa in Criminal Cases Nos. C-26343; C-26347 and
C-26348, the appellants are sentenced to two years, eleven months and ten days
of prision correccional, as minimum, to six years, eight months and twenty days
of prision mayor, as maximum. The amounts ordered reimbursed to the respective
complainants are affirmed. SO ORDERED.