Republic of the Philippines 1

Republic of the PhilippinesSUPREME COURT

Baguio City

FIRST DIVISION

G.R. No. 144222-24 - April 3, 2002

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. RONITO BOLLER alias Obat, DIANITO BOLLER alias Nonoy and FRANCISCO BOLLER alias Bayani, accused-appellants.

YNARES-SANTIAGO, J.:

This is an appeal from the decision of the Regional Trial Court, Calbayog City, Branch 31, in Criminal Cases Nos. 3022, 3023 and 3024, finding accused-appellants Ronito Boller, Dianito Boller and Francisco Boller guilty beyond reasonable doubt of three counts of Murder for the killing of Lolito dela Cruz, Jesus Orquin and Arsenio Orquin, sentencing each accused-appellant to suffer the penalty of reclusion perpetua in each count, and ordering them to indemnify, jointly and severally, the surviving heirs of the victims in the amount of P50,000.00 and to pay the costs in each case.1

On December 22, 1995, accused-appellants were charged with Murder under three informations, similarly worded save for the name of the victim, committed as follows:

That on or about the 27th day of October, 1995, at about 8:00 o'clock in the morning, at the coconut plantation of Barangay Hinayagan, Municipality of Gandara, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shot one Lolito de la Cruz with the use of firearms (M-14 rifle, M-1 rifle and shotgun), which the accused conveniently provided themselves for the purpose, thereby inflicting upon the latter fatal gunshot wound on his body, which caused the untimely death of said Lolito de la Cruz.

CONTRARY TO LAW.

When arraigned, the three accused-appellants, assisted by counsel, pleaded not guilty to the crime charged in each case.2 Thereafter, the three cases were consolidated and tried jointly.3

It appears that at 8:00 in the morning of October 27, 1995, brothers Jacinto and Jesus Orquin, their father Arsenio Orquin, and their uncle Lolito de la Cruz, were working at their copra kiln in Barangay Hinayagan, Gandara, Samar.4 They heard dogs barking, so Jacinto went outside to see

what was wrong. He saw accused-appellants Obat Boller, Nonoy Boller and Bayani Boller, about three meters away. Obat was holding an M-14 Garand, Bayani Boller was holding a shotgun, and Nonoy Boller was armed with a Garand. All of them were pointing their firearms at the copra kiln. Jacinto ran away. Accused-appellants opened fire at the copra kiln, hitting Arsenio Orquin, Jesus Orquin and Lolito de la Cruz.5

As Jacinto was running across the river, he heard Jesus shout, "Entoy, don't leave me, I will die!" Jacinto looked back and saw his brother in the water. Jacinto went back and brought Jesus to the river bank. He lay Jesus down and covered him with cogon grass.6

Jacinto proceeded towards Barangay Hinayan. As he was running, he met Roberto Tolin. Jacinto told Roberto that accused-appellants shot his brother, father and uncle, and asked him to go to the copra kiln and to save them.7

Moments later, Nixon de la Cruz reported to Barangay Captain Gutardo Berbis that his father, Lolito, was wounded and was in the house of Claro Arterio. Upon instruction of Berbis, Kagawad Pedro Sumagdon proceeded to the house of Arterio, bringing with him a pen and paper on which to write down any statement that Lolito would make.8 Sumagdon found Lolito lying on his right side. He asked Lolito, "Why are you wounded?" Lolito answered, "I was shot by Obat Boller, Nonoy Boller and Bayani Boller."9 Sumagdon wrote down the statement, which is translated in English as follows:

Statement of Lolito de la Cruz who was shot and these were the persons whom he saw, Nonoy Boller, Obat Boller and Bayani Boller, and they were clothed with military uniforms and some of them are members of CHDF of Bu-aw and the place where the shooting incident took place is near the coconut plantation of Arsenio Orquin.

Lolito's declaration was witnessed and heard by Roberto Tolin and Ponciano Orquin. The written statement, entitled "Ante-Mortem," was signed by Sumagdon, Tolin and Orquin. According to them, Lolito was unable to move his right hand at that time.10

Lolito was carried on a hammock and brought to Bu-aw for treatment, but he died before reaching the hospital.11

Roberto Tolin and others went to the scene of the crime and found the lifeless body of Arsenio Orquin lying face up. Across the river, they found the corpse of Jesus Orquin. Roberto and his companions gathered several empty shells on the ground about five arms' length from the copra kiln.12 The bodies of Jesus and Arsenio Orquin were brought to Gandara for autopsy.13

Dr. Cresilda Teston-Aguilar of the Rural Health Unit of Gandara, Samar, who conducted the autopsy, reported the following findings:

1. On the victim Lolito de la Cruz:

a. Exhibit "D" - The Autopsy Report with the following physical findings:

"A. Avulsed gunshot wound 4 x 3 inches at the umbilical area, transecting the superior and inferior apigastric arteries and veins with evisceration of the large intestines.

Diagnosis: Irreversible shock secondary to hemorrhage secondary to gunshot wounds."

b. Exhibit "E" - The Anatomical Report.

c. Exhibit "F" - The Certificate of Death.

2. On the victim Jesus Orquin:

a. Exhibit "G" - The Autopsy Report with the following findings:

"1. Avulsed gunshot wound 7 inches x 4 inches lower end of the anterior aspect of the left thigh transecting the femoral artery and veins with fracture of the distal end of the femur, left.

Diagnosis: Irreversible shock secondary to hemorrhage secondary to gunshot wound."

b. Exhibit "H" - Anatomical Chart Series.

c. Exhibit "I" - Certificate of Death.

3. On the victim Arsenio Orquin:

a. Exhibit "J" - Autopsy Report with the following post-mortem findings:

"1. Avulsed gunshot wound 3 inches in diameter 2 inches deep at the anterior aspect of the right upper thigh transecting the lateral femoral circumflex artery and vein.

2. Avulsed gunshot wound 7 x 3 inches at the upper chart, posterior aspect of the right leg transecting the posterior tribal artery and the small saphenous vein.

Diagnosis: Irreversible shock secondary to hemorrhage secondary to gunshot wounds."

b. Exhibit "K" - Anatomical Chart Series.

c. Exhibit "L" - Certificate of Death.14

Accused-appellants proffered the following defense:

The first witness, Ronito Boller, alias Obat, is one of the accused. He testified that on October 27, 1995 at around 7:00 a.m., he was fetched by Luz Villocero at their house to work in the latter's farm which was about ten (10) minute hike away from their house. They stayed at the farm until 5:00 p.m., after which, he proceeded home. He said that it was Jacinto Orquin, the private complainant in this case, who killed his cousin Tantoy Boller. He was with Tantoy when

the latter was killed. The elder brother of Tantoy, Eduardo, filed a case against Jacinto but the latter likewise killed Eduardo. He denied that he is a member of the CAFGU.15

The second witness, Luz Villocero, was presented to corroborate the testimony of Ronito Boller. She testified that on October 27, 1995 at around 7:00 a.m., she fetched Ronito Boller from their house to have him help them in harvesting the corn. They stayed at the farm till 5:00 p.m. She disclosed that, all the time, Ronito was with them.16

The third witness, Dianito Boller, is one of the accused. He testified that on October 27, 1995 at around 6:00 a.m., he was at their house taking his breakfast, after which he proceeded to the Camp because he was on duty up to 6:00 p.m. He took his lunch at their house at 12:00 p.m. and he returned to the Camp. He was with Sgt. Espiritu, Sgt. Palalay and PFC Raginal Narcing Selages who was his partner, and they stayed at the Camp until 6:00 p.m.17

The fourth witness, Zosimo Suarello, hired the services of Francisco Boller on October 27, 1995. He testified that on October 27, 1995 at around 7:00 a.m., Francisco Boller was at their house because he hired the services of the latter to fix the nipa roof of their house. Francisco ate lunch at his house and he stayed until 4:00 p.m. He paid Francisco P50.00.18

The fifth witness, Narciso Selajes, is a CAFGU member and the duty partner of Dianito Boller on October 27, 1995. He testified that on October 27, 1995 at around 6:00 a.m., he saw Dianito Boller enter the camp because they were on duty from 6:00 a.m. to 6:00 p.m. They were issued firearms but after their duty they left their firearms behind inside the camp.19

The last witness, Francisco Boller, is one of the accused. He testified that on October 24, 1995, he arrived at Barangay Buan because his father called for him to work in the farm. He arrived at Barangay Buan from Barangay Hinayagan where he is residing. He likewise helped his father on October 26, 1995 at around 5:00 p.m. But he did not return to Barangay Hinayagan because he promised Zosimo Suarino that he will repair his roof. He stayed at the house of Zosimo up to 4:00 p.m. At around 10:00 a.m., Zosimo left because he was called by their commandant at the camp on account of the fact that something happened. Upon the return of Zosimo, he was informed that Arsenio and Jesus Orquin were killed but the killers were not yet known. On October 28, 1995, they were arrested by the police in connection with the killing of Arsenio and Jesus Orquin.20

On May 16, 2000, the trial court rendered judgment, the dispositive portion of which reads:

WHEREFORE, this Court declares all the accused, namely: Ronito Boller alias Obat, Dianito Boller alias Nonoy and Francisco Boller alias Bayani, GUILTY beyond reasonable doubt for three (3) counts of Murder in the above-entitled cases and hereby sentences each of them to suffer the penalties consisting of:

(1) In Crim. Case No. 3022:

a. Reclusion Perpetua;

b. To jointly and severally indemnify the surviving heirs of the late Lolito de la Cruz in the amount of P50,000.00;

c. To pay the costs.



b. To jointly and severally indemnify the surviving heirs of Jesus Orquin in the amount of P50,000.00;




b. To jointly and severally indemnify the surviving legal heirs of the late Arsenio Orquin, and


In the service of the sentence, each of the accused shall be credited with the full period of their preventive imprisonment, provided each of them has voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, they shall only be entitled to four-fifths thereof pursuant to the provisions of Art. 29 of the Revised Penal code, as amended.

SO ORDERED.21

Accused-appellants appealed directly to this Court raising the following assignments of error:

I

THE LOWER COURT ERRED IN CONSIDERING THE STATEMENT MADE BY LOLITO DE LA CRUZ AS A DYING DECLARATION WHEN IT FAILED TO COMPLY WITH THE FORMAL REQUIREMENTS OF LAW.

II

THE LOWER COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AGAINST ACCUSED-APPELLANTS WHICH WAS NOT PROVEN BY THE PROSECUTION

III

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIME OF MURDER, WHEN THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

In order that a dying declaration may be admissible in evidence, four requisites must concur:

1. That the declaration must concern the cause and surrounding circumstances of the declarant's death;

2. That at the time the declaration was made, the declarant was under a consciousness of an impending death;

3. That the declarant is competent as a witness; and

4. That the declaration is offered in a criminal case for homicide, murder, or parricide, in which the declarant is a victim.22

All the above requisites are present in the case at bar. The statement of Lolito de la Cruz certainly pertains to the cause and surrounding circumstance that eventually led to his death. The victim was able to identify who the perpetrators were, their appearances and the place where the incident happened. The victim sustained fatal wounds and survival was a remote possibility. He pleaded that he be brought to a hospital.23 He had to be carried in a hammock by several people,24

but he died before reaching the hospital.25 The autopsy conducted by Dr. Cresilda Teston-Aguilar confirmed the cause of his death as gunshot wounds.

The above circumstances indicate that the victim was conscious of his impending death. The records are bereft of any fact that would otherwise consider the victim an incompetent witness. Finally, the statement was offered in a criminal case in which the declarant was the victim.

Accused-appellants argue that the dying declaration is inadmissible in evidence, saying that "the barangay tanod reduced the dying declaration of the victim into writing using his own words and not that of the declarant himself worse, he didn't read the same to Lolito de la Cruz after preparing it, nor did he ask the latter to sign or authenticate the statement."26 Nevertheless, the Rules do not require that the witness repeat the exact words of the victim, it being sufficient that he testify on the substance of what was said by the declarant. Pedro Sumagdon, on cross-examination, explained:

Q Now, it appears that what you have written here appears to be merely abstract, that these are not actually the exact words that were given to you but your own words as a result of what you deduced from the statements given to you?

A What I wrote down there were statements coming from him but my mistake was, I was not able to let him sign on it.27

The rule is that a dying declaration may be oral or written. If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent, if he is able to give

the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down.28

Accused-appellants raised the defense of alibi. It is well settled that courts have always looked upon this defense with caution if not suspicion, not only because it is inherently unreliable but likewise it is rather easy to fabricate.29 For alibi to prosper, it is not enough that the accused prove that he has been elsewhere when the crime is committed. He must further demonstrate that it would have been physically impossible for him to be at the scene of the crime at the time of its commission. Accused-appellants failed to discharge this burden in the case at bar. More importantly, accused-appellants were positively identified by Lolito de la Cruz and Jacinto Orquin. The testimony of Jacinto Orquin was found by the trial court as "straightforward and equivocal."30 Hence, the defense of alibi cannot prevail over the dying declaration and the positive identification of accused-appellants.

However, the trial court erred in appreciating treachery as a qualifying circumstance. We find nothing in the records which show the exact manner of the killing.

Treachery cannot be presumed, it must be proved as clearly and convincingly as the killing itself. Any doubt as to the existence of treachery must be resolved in favor of the accused. We cannot, therefore, surmise from the circumstances that the accused perpetrated the killing with treachery.

However, we find that accused-appellants' acts showed a common purpose, interest and design, thereby establishing a conspiracy among them. Hence, the act of one is the act of all, and each accused-appellant is equally guilty of the crime as the others.

Accused-appellants, therefore, are guilty of three counts of Homicide, each punishable by reclusion temporal under Article 249 of the Revised Penal Code. In the absence of either aggravating or mitigating circumstance, the prescribed penalty shall be imposed in its medium period. Applying the Indeterminate Sentence Law, accused-appellants are therefore sentenced to suffer the penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.

In addition to the civil indemnity, accused-appellants should also be held liable for moral damages in the amount of P50,000.00, which needs no proof other than the fact of death of the victim.31

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Calbayog City, Branch 31, in Criminal Cases Nos. 3022, 3023 and 3024, is AFFIRMED with MODIFICATIONS. Accused-appellants are found guilty beyond reasonable doubt of three counts of Homicide and each of them is sentenced in each count to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. Further, accused-appellant are ordered to pay, jointly and severally, in each count the respective heirs of Lolito dela Cruz, Jesus Orquin and Arsenio Orquin, the sums of P50,000.00 as moral damages and P50,000.00 as civil indemnity.

Cost de officio.

SO ORDERED.

SECOND DIVISION

[G.R. No. 113685. June 19, 1997]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. THEODORE BERNAL, JOHN DOE and PETER DOE, Accused-Appellants.

D E C I S I O N

ROMERO, J.:

Accused-appellant Theodore Bernal, together with two other persons whose identities and whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No. 26658-92 of the Regional Trial Court of Davao City, Branch 10, under an information1 dated July 13, 1992, which reads as follows:

That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with hand guns, conspiring, confederating and cooperating together and helping one another, and by means of force, violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and kidnapped one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends at Bolton Isla, this City and was brought, handcuffed and carried away using a PU then fled together with Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda, Jr. of his liberty against his will.

CONTRARY TO LAW.

A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four witnesses.2 On the other hand, Theodore Bernal testified for his defense.

The material facts and events as found by the court a quo are:

It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them.

After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was Payat.3 When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him not to run because they were policemen and because he had an atraso or a score to settle with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and informed the latters mother of the abduction.

The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair with Bernals wife Naty and this was the motive behind the formers kidnapping. Until now, Openda, Jr. is still missing.

On the other hand, the defense asserts that Openda, Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence, was never kidnapped.4

chanroblesvirtuallawlibrary

On December 10, 1993, the court a quo rendered judgment5 finding Bernal guilty beyond reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido Openda, Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental anguish and moral suffering.6


Bernal assails the lower court for giving weight and credence to the prosecution witnesses allegedly illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt.

We find no compelling reason to overturn the decision of the lower court.

The Court notes that up to this day, neither the victim nor his body has been found. This, however, does not preclude the Court from ruling on the merits of the case. In kidnapping, what is important is to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victims bodies.

Article 267 of the Revised Penal Code provides thus:

ART. 267. - Kidnapping and serious illegal detention. -

Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

For the charge of kidnapping to prosper, the deprivation of the victims liberty, which is the essential element of the offense, must be duly proved. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals as shown by their concerted acts evidentiary of a unity of thought and community of purpose.7 Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only.8 The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr.

The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with his two companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his two companions and overheard him dispatching one of them to Tarsings Store to check if a certain person was still there. This person later turned out to be Openda, Jr. He added that after the latters presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed by the billiard hall with Bernals companions.

Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who knew both Bernal and the victim, the former being his neighbor and compadre. He narrated that he and the victim were drinking at Tarsings Store on that fateful day when Bernal passed by and had a drink with them. After a few minutes, Bernal decided to leave, after which, two men came to the store and asked for Payat. When Openda, Jr. confirmed that he was indeed Payat, he was handcuffed and taken away by the unidentified men.

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda, Jr. confided to him that he and Bernals wife Naty were having an affair. One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He advised Naty not to do it again because she (was) a married woman.9 Undoubtedly, his wifes infidelity was ample reason for Bernal to contemplate revenge.

Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction.1010 Openda, Jr.s revelation to Enriquez regarding his illicit relationship with Bernals wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:

Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarants own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.

With the deletion of the phrase pecuniary or moral interest from the present provision, it is safe to assume that declaration against interest has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal.1111


A statement may be admissible when it complies with the following requisites, to wit: (1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true.1212


Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence1313 because no sane person will be presumed to tell a falsehood to his own detriment.1414


In his brief, Bernal highlights supposed inconsistencies in Sagarinos testimony. He alleges that the latter could not have seen the actual handcuffing because Tarsings Store could not be seen from the billiard hall. Sagarinos testimony shows that after Bernal and two others left the billiard hall, the latter came back with Openda, Jr., already handcuffed.

"Q The three of them together?

A Yes, sir.

Q And what about you, where did you stay?

A I just stayed in the billiard hall.

Q While you stay (sic) in the billiard hall, after a while, what did you see next?

A The two came back.

Q Who were these two whom you said who (sic) came back?

A The companions of Bernal.

Q And what did these two men do?

A They apprehended Jun-jun Openda.1515chanroblesvirtuallawlibrary

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The lower court correctly rejected this argument by holding that:

But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or Tarcing store. On the contrary, he says that he had not known who the person was that Bernal referred to when he requested one of this two companions to go see if that person was still there

at the store, and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified companions of Bernal with him, on their way out to the main road.1616


If one had a direct view of Tarsings Store from the billiard hall, Bernal would not have requested his companion to check if Openda, Jr. were still there drinking with Racasa. Another discrepancy pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on cross-examination, stated:

"Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct?

A Yes, sir, because I was still in the store.1717chanroblesvirtuallawlibrary

On the other hand, Sagarino averred that:

"Q When Theodore Bernal left the place, how long (sic) were you able to see him again?

A Quite a time, sir, because when they left, his two companions came back and proceeded to Tarcing Store and arrested Jun-jun Openda. When these two men brought out Jun-jun Openda, fifteen minutes later, Bernal came.

Q Do you know where this Bernal from? (sic)

A He was coming from outside.

Q He has with him his son?

A He was with nobody, sir.

Q Are you sure of that?

A Yes, sir.

Q He was alone?

A Yes, sir.1818chanroblesvirtuallawlibrary

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility that when Racasa saw Bernal with his son at the store, the latter could have already brought home his son before proceeding alone to the billiard hall where he was seen by Sagarino.1919


Bernal would like the Court to dismiss Sagarinos testimony by imputing revenge as his motive for testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five

policemen arrived at Kasilak, Bucana on board a patrol car asking for Openda, Jr., Sagarino, Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and staying at the billiard hall and mahjong house. The policemen departed and went to the places he mentioned.

"Q - Minutes later do you know what happened?

"A - They came back.

"Q - What did you do after they came back?

"A - I asked these police officers if they found these (sic) persons they were looking (for)?

"Q - What was their answer?

"A - They answered in the negative.

"Q - Since the answer is in the negative, what did you do?

"A - I asked the police officers why they were looking for these persons.(?)

"Q - What was the answer of the policemen?

"A - The police officer said that those people were wanted by them because accordingly (sic) they were marijuana pushers.2020


Bernals position is that no abduction or kidnapping ever took place but that an arrest was made by pursuing policemen. This contention is quite improbable, if not highly preposterous.

The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive against Bernal. If the latters allegations were true, then Sagarino should have been arrested by the police at the time he gave his testimony in court. No such arrest was, however, made.

The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino sufficient to convict Bernal. The court said that Sagarinos forthright answers to the questions of the prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or kidnapping of Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself.2121 This Court once again finds occasion to reiterate the established rule that the findings of fact of a trial court carry great weight and are entitled to respect on appeal, absent any strong and cogent reason to the contrary, since it is in a better position to decide the question of credibility of witnesses.2222


We note that after a lapse of a considerable length of time, the victim has yet to resurface. Considering the circumstances, it is safe to assume that Openda, Jr. is already dead.

Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua, as maximum. The maximum penalty must be determined in accordance with rules and provisions of the Revised Penal Code. With respect to the minimum penalty, however, " it is left entirely within the discretion of the court to fix it anywhere within the range of the penalty next lower without reference to the periods in to which it may be subdivided."2323 Consistent with this ruling, this court imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua, as maximum.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSEDand the appealed decision dated November 18, 1993, is AFFIRMED in toto.

Costs against accused-appellant Theodore Bernal.

SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

Endnotes:

SECOND DIVISION

[G.R. No. 113685. June 19, 1997]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. THEODORE BERNAL, JOHN DOE and PETER DOE, Accused-Appellants.

D E C I S I O N

ROMERO, J.:

Accused-appellant Theodore Bernal, together with two other persons whose identities and whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No. 26658-92 of the Regional Trial Court of Davao City, Branch 10, under an information1 dated July 13, 1992, which reads as follows:

That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with hand guns, conspiring, confederating and cooperating together and helping one another, and by means of force, violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and kidnapped one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends at Bolton Isla, this City and was brought, handcuffed and carried away using a PU then fled together with Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda, Jr. of his liberty against his will.

CONTRARY TO LAW.

A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four witnesses.2 On the other hand, Theodore Bernal testified for his defense.

The material facts and events as found by the court a quo are:

It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them.

After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was Payat.3 When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him not to run because they were policemen and because he had an atraso or a score to settle with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and informed the latters mother of the abduction.

The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair with Bernals wife Naty and this was the motive behind the formers kidnapping. Until now, Openda, Jr. is still missing.

On the other hand, the defense asserts that Openda, Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence, was never kidnapped.4


On December 10, 1993, the court a quo rendered judgment5 finding Bernal guilty beyond reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido Openda, Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental anguish and moral suffering.6


Bernal assails the lower court for giving weight and credence to the prosecution witnesses allegedly illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt.

We find no compelling reason to overturn the decision of the lower court.

The Court notes that up to this day, neither the victim nor his body has been found. This, however, does not preclude the Court from ruling on the merits of the case. In kidnapping, what is important is to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victims bodies.

Article 267 of the Revised Penal Code provides thus:

ART. 267. - Kidnapping and serious illegal detention. -

Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

For the charge of kidnapping to prosper, the deprivation of the victims liberty, which is the essential element of the offense, must be duly proved. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals as shown by their concerted acts evidentiary of a unity of thought and community of purpose.7 Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only.8 The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr.

The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with his two companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his two companions and overheard him dispatching one of them to Tarsings Store to check if a certain person was still there. This person later turned out to be Openda, Jr. He added that after the latters presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed by the billiard hall with Bernals companions.

Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who knew both Bernal and the victim, the former being his neighbor and compadre. He narrated that he and the victim were drinking at Tarsings Store on that fateful day when Bernal passed by and had a drink with them. After a few minutes, Bernal decided to leave, after which, two men came

to the store and asked for Payat. When Openda, Jr. confirmed that he was indeed Payat, he was handcuffed and taken away by the unidentified men.

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda, Jr. confided to him that he and Bernals wife Naty were having an affair. One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He advised Naty not to do it again because she (was) a married woman.9 Undoubtedly, his wifes infidelity was ample reason for Bernal to contemplate revenge.

Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction.1010 Openda, Jr.s revelation to Enriquez regarding his illicit relationship with Bernals wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:

Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarants own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.

With the deletion of the phrase pecuniary or moral interest from the present provision, it is safe to assume that declaration against interest has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal.1111


A statement may be admissible when it complies with the following requisites, to wit: (1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true.1212


Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence1313 because no sane person will be presumed to tell a falsehood to his own detriment.1414


In his brief, Bernal highlights supposed inconsistencies in Sagarinos testimony. He alleges that the latter could not have seen the actual handcuffing because Tarsings Store could not be seen from the billiard hall. Sagarinos testimony shows that after Bernal and two others left the billiard hall, the latter came back with Openda, Jr., already handcuffed.

"Q The three of them together?

A Yes, sir.

Q And what about you, where did you stay?

A I just stayed in the billiard hall.

Q While you stay (sic) in the billiard hall, after a while, what did you see next?

A The two came back.

Q Who were these two whom you said who (sic) came back?

A The companions of Bernal.

Q And what did these two men do?

A They apprehended Jun-jun Openda.1515chanroblesvirtuallawlibrary

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The lower court correctly rejected this argument by holding that:

But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or Tarcing store. On the contrary, he says that he had not known who the person was that Bernal referred to when he requested one of this two companions to go see if that person was still there at the store, and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified companions of Bernal with him, on their way out to the main road.1616


If one had a direct view of Tarsings Store from the billiard hall, Bernal would not have requested his companion to check if Openda, Jr. were still there drinking with Racasa. Another discrepancy pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on cross-examination, stated:

"Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct?

A Yes, sir, because I was still in the store.1717chanroblesvirtuallawlibrary

On the other hand, Sagarino averred that:

"Q When Theodore Bernal left the place, how long (sic) were you able to see him again?

A Quite a time, sir, because when they left, his two companions came back and proceeded to Tarcing Store and arrested Jun-jun Openda. When these two men brought out Jun-jun Openda, fifteen minutes later, Bernal came.

Q Do you know where this Bernal from? (sic)

A He was coming from outside.

Q He has with him his son?

A He was with nobody, sir.

Q Are you sure of that?

A Yes, sir.

Q He was alone?

A Yes, sir.1818chanroblesvirtuallawlibrary

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility that when Racasa saw Bernal with his son at the store, the latter could have already brought home his son before proceeding alone to the billiard hall where he was seen by Sagarino.1919


Bernal would like the Court to dismiss Sagarinos testimony by imputing revenge as his motive for testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five policemen arrived at Kasilak, Bucana on board a patrol car asking for Openda, Jr., Sagarino, Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and staying at the billiard hall and mahjong house. The policemen departed and went to the places he mentioned.

"Q - Minutes later do you know what happened?

"A - They came back.

"Q - What did you do after they came back?

"A - I asked these police officers if they found these (sic) persons they were looking (for)?

"Q - What was their answer?

"A - They answered in the negative.

"Q - Since the answer is in the negative, what did you do?

"A - I asked the police officers why they were looking for these persons.(?)

"Q - What was the answer of the policemen?

"A - The police officer said that those people were wanted by them because accordingly (sic) they were marijuana pushers.2020


Bernals position is that no abduction or kidnapping ever took place but that an arrest was made by pursuing policemen. This contention is quite improbable, if not highly preposterous.

The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive against Bernal. If the latters allegations were true, then Sagarino should have been arrested by the police at the time he gave his testimony in court. No such arrest was, however, made.

The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino sufficient to convict Bernal. The court said that Sagarinos forthright answers to the questions of the prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or kidnapping of Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself.2121 This Court once again finds occasion to reiterate the established rule that the findings of fact of a trial court carry great weight and are entitled to respect on appeal, absent any strong and cogent reason to the contrary, since it is in a better position to decide the question of credibility of witnesses.2222


We note that after a lapse of a considerable length of time, the victim has yet to resurface. Considering the circumstances, it is safe to assume that Openda, Jr. is already dead.

Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua, as maximum. The maximum penalty must be determined in accordance with rules and provisions of the Revised Penal Code. With respect to the minimum penalty, however, " it is left entirely within the discretion of the court to fix it anywhere within the range of the penalty next lower without reference to the periods in to which it may be subdivided."2323 Consistent with this ruling, this court imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua, as maximum.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSEDand the appealed decision dated November 18, 1993, is AFFIRMED in toto.

Costs against accused-appellant Theodore Bernal.

SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

Endnotes:

SEPARATE OPINION

DAVIDE, JR. C.J.:

The procedural and factual antecedents of these consolidated cases are as follows:

On 9 January 2004, petitioner Victorino X. Fornier filed with public respondent Commission on Elections (COMELEC) a

petition to disqualify private respondent Fernando Poe, Jr. (FPJ) and to deny due course to or cancel his certificate of candidacy for

the position of President in the forthcoming 10 May 2004 presidential elections.As a ground therefore, he averred that FPJ committed falsity in a material representation in his certificate of candidacy in declaring that he is a natural-born Filipino citizen

when in truth and in fact he is not, since he is the illegitimate son of Bessie Kelley, an American citizen, and Allan Poe, a Spanish

national.The case was docketed as COMELEC Case SPA No. 04-003 and assigned to the COMELECs First Division.

At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJs record of birth to prove that FPJ

was born on 20 August 1939 to Bessie Kelley, an American citizen, and Allan Poe, who was then married to Paulita Gomez.Upon the

other hand, FPJ tried to establish that his father was a Filipino citizen whose parents, although Spanish nationals, were Filipino

citizens.He adduced in evidence a copy of the marriage contract of Allan Poe and Bessie Kelley, showing that they were married on 16

September 1940 in Manila.

In its Resolution of 23 January 2004, the First Division of the COMELEC dismissed COMELEC Case SPA No. 04-003 for lack of merit.It declared that COMELECs jurisdiction is limited to all

matters relating to election, returns and qualifications of all elective regional, provincial and city officials, but not those of national

officials like the President.It has, however, jurisdiction to pass upon the issue of citizenship of national officials under Section 78 of the Omnibus Election Code on petitions to deny due course or cancel

certificates of candidacy on the ground that any material representation contained therein is false.It found that the evidence adduced by petitioner Fornier is not substantial, and that FPJ did

not commit any falsehood in material representation when he stated in his certificate of candidacy that he is a natural-born Filipino

citizen.

His motion for reconsideration filed before the COMELEC en banc having been denied, petitioner Fornier filed a petition with this

Court, which was docketed as G.R. No. 161824.

Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B. Desiderio, Jr. came to this Court via a special civil action for

certiorari under Rule 65 of the Rules of Court, docketed as G.R. No. 161434, to challenge the jurisdiction of the COMELEC over the issue of the citizenship of FPJ.They assert that only this Court

has jurisdiction over the issue in light of the last paragraph of Section 4 of Article VII of the Constitution, which provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election returns, and qualifications of the President or Vice-President, and may promulgate its rules for the

purpose.

On 29 January 2004 petitioner Velez filed a similar petition, which was docketed as G.R. No. 161634.

The core issues in these consolidated cases, as defined by the Court during the oral argument, are as follows:

(1)Whether the COMELEC has jurisdiction over petitions to deny due course to or cancel certificates of candidacy of Presidential

candidates;

(2)Whether the Supreme Court has jurisdiction over the petitions of (a) Tecson, et al., (b) Velez, and (c) Fornier; and

(3)Whether respondent FPJ is a Filipino citizen, and if so, whether he is a natural-born Filipino citizen.

These consolidated petitions must be dismissed.

Both the petitions of Tecson and Velez invoke the jurisdiction of this Court asprovided for in the last paragraph of Section 4 of

Article VII of the Constitution, and raise the issue of the ineligibility of a candidate for President on the ground that he is not a natural-born citizen of the Philippines.The actions contemplated

in the said provision of the Constitution are post-election remedies, namely, regular election contests and quo warranto.The petitioner

should have, instead, resorted to pre-election remedies, such as those prescribed in Section 68 (Disqualifications), in relation to Section 72; Section 69 (Nuisance candidates); and Section 78

(Petition to deny course to or cancel a certificate of candidacy), in relation to Section 74, of the Omnibus Election Code, which are implemented in Rules 23, 24 and 25 of the COMELEC Rules of

Procedure.These pre-election remedies or actions do not, however, fall within the original jurisdiction of this Court.

Under the Omnibus Election Code and the COMELEC Rules of Procedure, the COMELEC has the original jurisdiction to

determine in an appropriate proceeding whether a candidate for an elective office is eligible for the office for which he filed his

certificate of candidacy or is disqualified to be a candidate or to continue such candidacy because of any of the recognized grounds for disqualification.Its jurisdiction over COMELEC SPA No. 04-

003 is, therefore, beyond question.

Upon the other hand, this Court has jurisdiction over Forniers petition (G.R. No. 161824) under Section 7 of Article IX-A of the

Constitution, which provides:

Section 7.Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution.A case or

matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the

rules of the Commission or by the Commission itself.Unless otherwise provided by this Constitution or by law, any decision,

order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty

days from receipt of a copy thereof.

This Court can also take cognizance of the issue of whether the COMELEC committed grave abuse of discretion amounting to lack

or excess of jurisdiction in issuing the challenged resolution in COMELECSPA No. 04-003 by virtue of Section 1 of Article VIII

of the Constitution, which reads as follows:

Section 1.The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a

grave abuse of discretion amounting to lack or excess of jurisdiction on the part of nay branch or instrumentality of the

Government.

On the issue of whether private respondent FPJ is a natural-born Filipino citizen, the following facts have been established by a

weighty preponderance of evidence either in the pleadings and the documents attached thereto or from the admissions of the parties,

through their counsels, during the oral arguments:

1.FPJ was born on 20 August 1939 in Manila, Philippines.

2.FPJ was born to Allan Poe and Bessie Kelley.

3.Bessie Kelley and Allan Poe were married on 16 September 1940.

4.Allan Poe was a Filipino because his father, Lorenzo Poe, albeit a Spanish subject, was not shown to have declared his allegiance to Spain by virtue of the Treaty of Paris and the Philippine Bill of 1902.

From the foregoing it is clear that respondent FPJ was born before the marriage of his parents.Thus, pursuant to the Civil Code then in force, he could either be (a) a natural child if both his parents had no legal impediments to marry each other; or (b) an illegitimate

child if, indeed, Allan Poe was married to another woman who was still alive at the time FPJ was born.

Petitioner Fornier never alleged that Allan Poe was not the father of FPJ.By revolving his case around the illegitimacy of FPJ, Fornier

effectively conceded paternity or filiation as a non-issue.For purposes of the citizenship of an illegitimate child whose father is a Filipino and whose mother is an alien, proof of paternity or filiation

is enough for the child to follow the citizenship of his putative father, as advanced by Fr. Joaquin Bernas, one of the amici

curiae.Since paternity or filiation is in fact admitted by petitioner Fornier, the COMELEC committed no grave abuse of discretion in

holding that FPJ is a Filipino citizen, pursuant to paragraph 3 of Section 1 of Article IV of the 1935 Constitution, which reads:

Section 1.The following are citizens of the Philippines:

(3) Those whose fathers are citizens of the Philippines.

I agree with the amici curiae that this provision makes no distinction between legitimate and illegitimate children of Filipino fathers.It is enough that filiation is established or that the child is

acknowledged or recognized by the father.

FEATURED DECISION

Scralaw

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20REME COURTManila

THIRD DIVISION

G.R. No. 74065 February 27, 1989

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NERIO GADDI y CATUBAY, Defendant-Appellant.

CORTES, J.:

Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y Navarro in an information which reads as follows:

xxx xxx xxx chanrobles virtual law library

That on or about the 11th day of December, 1981, in Quezon City, Metro Manila, Philippines, the above-named accused, with intent to kill, without any justifiable cause, qualified with treachery and with evident pre-meditation (sic), did then and there, wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by then and there stabbing him several times with a knife, hitting him on the different parts of his body, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of the offended party in such amount as maybe awarded under the provision of the Civil Code. chanroblesvirtualawlibrary chanrobles virtual law library

CONTRARY TO LAW. [Rollo, p. 15.]

After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a verdict of guilt for the crime charged, the decretal portion of which reads:


WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond reasonable doubt of the crime of murder, as charged in the information, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of Augusta Esguerra the sum of P50,000.00 without subsidiary imprisonment in case of insolvency, with all the accessory penalties provided for by law, and to pay the costs. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. [Rollo, p. 31.]

On appeal to this Court, Gaddi assigns as errors of the trial court the following:

I chanrobles virtual law library

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.chanroblesvirtualawlibrary chanrobles virtual law library

II chanrobles virtual law library

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE. chanroblesvirtualawlibrary chanrobles virtual law library

III chanrobles virtual law library

THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PRE-MEDITATION [Rollo, p. 38.]

The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto Guzman, Pat, Arturo Angeles, Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness presented for the defense. The prosecution's version of the facts are as follows:


At about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome, Novaliches, Quezon City, Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In the morning of the following day, December 12, 1981, appellant told Ernesto Guzman that he killed his drinking partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised appellant to surrender to the police. After work, Guzman went to the police and reported what appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983).chanroblesvirtualawlibrary chanrobles virtual law library

At around 2:00 o'clock in the afternoon of the same day, December 12, 1981, Corporal Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches, Quezon City. Appellant told Corporal Castillo that he killed the victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to where the body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body (Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and took down the confession of appellant (Exhibit F). Later, the cadaver was subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984).chanroblesvirtualawlibrary chanrobles virtual law library

A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the pit where the body of the victim was dug out. The T-shirt and shorts were Identified by Ernesto Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber slipper, bottle of wine and glass were likewise recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for the Appellee, pp. 35; Rollo, p. 52.1

On the other hand, the defense's version of the facts are as follows:

Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December 11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusta Esguerra (Bong Kuleleng) near the house of Ernesto Guzman. At about 5:00 p.m., be was requested by Ernesto Guzman to buy gin. He left Ernesto Guzman and Augusta Esguerra (who were allegedly drinking) in order to buy a bottle of gin in a nearby store, about 200 meters away. At the store, he met an acquaintance and they talked for a while before returning. Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood in the place where they had been drinking and Augusta Esguerra, alias Bong Kuleleng was not there anymore. He inquired from Ernesto Guzman the whereabouts of Augusta Esguerra and was told that the latter "went home already". He then asked Guzman about the blood and was told that it was the blood stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto Guzman informed him about the killing of Augusta Esguerra. Guzman narrated to him that Bong Kuleleng (Augusta Esguerra) held his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased by him. He did not report the killing to the authorities. Guzman likewise requested ban to admit the killing but he refused. While in the house, Guzman filed the case ahead. He was later arrested and investigated while looking for the corpse. When brought to the police station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20, 1984). [Appellant's Brief, p. 4-5; Rollo, p. 38.]

The Court finds the instant appeal unmeritorious. chanroblesvirtualawlibrary chanrobles virtual law library

Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the validity of such conviction that: 1) there be more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court, People v. Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet all that is required is that the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with any other hypothesis except that of guilty [People v. Constante, G.R. No. L-14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132, September 26, 1964, 12 SCRA 9.] chanrobles virtual law library

In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra.

1. The fact that said victim was last seen on the day he was killed in the company of the accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9,1983, p. 1.] chanrobles virtual law library

2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was 'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located at the yard of Ernesto Guzman [TSN, August 9,1983, p. 7.] chanrobles virtual law library

3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the Northern Police District by the barangay people who apprehended him, be admitted the truth of the charge of the barangay residents that he killed someone and that he dumped the body of the victim in a place being dug out as an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the barangay people started digging for the body of the victim, the appellant was even instructing them as to the exact location where the body was buried [TSN, August 24, 1983, p. 6.] chanrobles virtual law library

4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body of the victim was found there after the digging [TSN, January 3, 1984, p. 5.] chanrobles virtual law library

5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree were later recovered from the place where the victim was buried [TSN, September 2, 1982, p. 3.]

Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses is entitled to great weight and respect [People v. Valentino, G.R. Nos. L-49859- 60, February 20, 1986, 141 SCRA 397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the advantage of observing the demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.] chanrobles virtual law library

Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal bad previously declared that 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 [People v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the commission of a crime can be presented in evidence without violating the hearsay rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those facts which he merely learned from other persons but not as to those facts which he "knows of his own knowledge: that is, which are derived from his own perception." Hence, while the testimony of a witness regarding the statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement [People v. Cusi Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta Esguerra and not to the truth of the appellant's statement. chanroblesvirtualawlibrary chanrobles virtual law library

That the testimony of Guzman on appellant's oral confession is competent evidence finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 4311 which upheld the trial court's reliance on an extrajudicial confession given, not to a police officer during custodial interrogation, but to an ordinary farmer as the basis for conviction. The Court's pronouncements in the aforesaid case find relevance in the instant case:

The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him' (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae. chanroblesvirtualawlibrary chanrobles virtual law library

The Rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.) chanrobles virtual law library

Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused [citing Underhill's Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551.) [at pp. 436-437; Emphasis supplied.]

The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the community as a member of a religious movement participating in such activities as "mañanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a "mañanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at all that he was actuated by improper motives in testifying against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the former to sleep in the porch of his house as the former had no

immediate relatives in Quezon City [TSN, August 9, 1983, p. 14.] chanrobles virtual law library

As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant, credence should be given to their narration of how the appellant was apprehended and how he led the police and the barangay residents to the place where he dumped the body of his victim since those police officers are presumed to have performed their duties in a regular manner in the absence of evidence to the contrary [People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April 30 1987, 149 SCRA 464.] chanrobles virtual law library

Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi. It has been ruled time and again that courts look upon the evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because of its easy fabrication [People v. Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil 828 (1917).] This test requires not only proof that the accused was somewhere else other than the scene of the crime but clear and convincing proof of physical impossibility for the accused to have been at the place of the commission of the crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984. 130 SCRA 540; People v. Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA 113.] chanrobles virtual law library

The testimony of the accused himself believes any claim of physical impossibility for him to be at the scene of the crime since according to him, the store where he allegedly bought another bottle of gin was only 200 meters away. He was able to return to Guzman's house only after half an hour since he still had a chat with an acquaintance at the store. Even granting the truth of appellant's story that he was ordered by Guzman to buy a bottle of gin at about 5:00 o'clock in the afternoon and that he was back after thirty minutes, it was not impossible for him to have committed the crime since Guzman and his wife left appellant alone with the victim at around 6:00 o'clock in the evening to attend the mananita at the house of Junior Isla. Thus, his statements on the witness stand, far from demonstrating physical impossibility of being at the scene of the crime, cast serious doubt on the veracity of his alibi. chanroblesvirtualawlibrary chanrobles virtual law library

As the culpability of the accused has been established beyond reasonable doubt by the evidence of the prosecution, there is no need to dwell on the admissibility of appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be sustained independently of said confession. chanroblesvirtualawlibrary chanrobles virtual law library

However, in the absence of proof as to how the victim was killed, the aggravating circumstances of treachery and evident premeditation cannot be properly appreciated. The killing must be considered as homicide only and not murder since the circumstance qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case that

As heretofore stated, not a single eyewitness to the stabbing incident had been presented by the prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted to by appellant in attacking the victim. It is needless to add that treachery cannot be deduced from mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable doubt is

required before any conclusion may be reached respecting the attendance of alevosia [People v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied. ]

Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of

1. the time when the of tender determined to commit the crime; chanrobles virtual law library

2. an act manifestly indicating that the culprit clung to his dead termination; and chanrobles virtual law library

3. a sufficient laspe of time between the determination and the execution to allow him to reflect upon the consequences of his act [People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.]

As the evidence on record does not disclose the existence of treachery and evident premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and not murder, Since there are neither mitigating nor aggravating circumstances, the penalty for homicide which is reclusion temporal should be imposed in its medium period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.chanroblesvirtualawlibrary chanrobles virtual law library

Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the indemnity of P 30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P 30,000.00.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

21

22

23

SECOND DIVISION

[G.R. No. 123137. October 17, 2001]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PO2 ALBERT ABRIOL, MACARIO ASTELLERO, and JANUARIO DOSDOS, accused-appellants.

D E C I S I O N

QUISUMBING, J.:

On appeal is the decision dated May 17, 1995, of the Regional Trial Court of Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 for murder and CBU-33664 for illegal possession of firearms, finding appellants Albert Abriol, Macario Astellero, and Januario Dosdos guilty beyond reasonable doubt of murder and violation of Presidential Decree No. 1866 on Illegal Possession of Firearms. Its decretal portion reads:

WHEREFORE, judgement is hereby rendered:

In Criminal Case No. CBU-30350 for Murder, the Court finds accused Albert Abriol, Macario Astellero and Januario Dosdos, GUILTY of murder beyond reasonable doubt and each is hereby sentenced to reclusion perpetua, with the accessory penalties provided by law; to indemnify the heirs of deceased Alejandro Flores the sum of P50,000.00; actual damages of P30,000.00, representing a reasonable amount for the embalming, vigil, wake, and burial expenses; P30,000.00 for attorneys fees; and to pay the costs.

For insufficiency of evidence, accused Gaudioso Navales is hereby ACQUITTED with costs de officio.

In Criminal Case No. CBU-33664 for Illegal Possession of Firearms, accused Albert Abriol, Macario Astellero and Januario Dosdos, are hereby sentenced to suffer an indeterminate penalty of 14 years, 8 months and 1 day to 17 years and 4 months and to pay the costs.

The .38 caliber revolver, SN P08445 and the two .45 caliber pistols with SN PGO 13506 and SN 52469, are hereby confiscated and forfeited in favor of the Government and accordingly, the Clerk of Court of this Branch is directed to turn over the said firearms to the Chief of Police, Cebu City, or to the Firearms and Explosives Office (FEO) of the PNP Region 7, upon proper receipt.

The Cebu City Chief of Police is directed to release immediately upon receipt hereof, the person of Gaudioso Navales, unless there be any other valid reason for his continued detention.

SO ORDERED. [1

This judgment was the culmination of proceedings beginning with the Amended Information dated September 6, 1993, docketed as Criminal Case No. CBU-30350, wherein appellants PO2 Albert Abriol of the Philippine National Police (PNP), Macario Astellero, Januario Dosdos, and PNP P/Chief Inspector Gaudioso Navales were charged with murder allegedly committed as follows:

That on or about the 5th day of June, 1993, at about 11:50 P.M., in the City of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, armed with handguns, conniving and

confederating together and mutually helping one another, with treachery and evident premeditation, with deliberate intent, with intent to kill, did then and there shot one Alejandro Flores alias Alex with the said handguns, hitting him on the different parts of his body, thereby inflicting upon him the following physical injuries:

CARDIO RESPIRATORY ARREST DUE TO SHOCK AND HEMORRHAGE SECONDARY TO MULTIPLE GUNSHOT WOUNDS TO THE TRUNK AND THE HEAD

as a consequence of which the said Alejandro Flores alias Alex died later.

CONTRARY TO LAW. [2

At the time of the incident, appellant Abriol, a policeman previously detailed as a jailguard at the Bagong Buhay Rehabilitation Center (BBRC) in Cebu City, was himself a detention prisoner in BBRC. He was charged with murder, a non-bailable offense, in Criminal Case No. CBU-28843 before the RTC of Cebu City, Branch 14. [3

Appellant Astellero was a former prisoner at BBRC, who had served time for grave threats. [4 The warden then, Chief Inspector Navales, [5 employed him as his personal driver and general factotum. [6 Navales was found guilty of grave misconduct in Administrative Case No. 01-93 for allowing Abriol and Dosdos out of BBRC on the day of the murder and was summarily dismissed from the police force.

Dosdos had been convicted by the RTC of Cebu City, Branch 10, of highway robbery in Criminal Case No. CBU-18152 but Navales failed to act on the mittimus ordering Dosdos transfer to the national penitentiary, and he remained in BBRC. [7 Abriol and Dosdos enjoyed special privileges at BBRC as the wardens errand boys [8 or trustees.

The victim, Alejandro Flores alias Alex, was a former policeman. He was dismissed from the PNP in August 1992 after testing positive for prohibited drugs. [9

Abriol, Astellero, and Dosdos were also indicted for illegal possession of firearms in Criminal Case No. CBU-33664. The charge sheet reads:

That on or about the 5th day of June 1993 at about 11:48 P.M. in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conniving and confederating together and mutually helping one another, with deliberate intent, did then and there keep under their control and possession the following:

1. one (1) .38 cal. revolver (Armscor) with SN P08445 with six empty shells;

2. one (1) .45 cal. pistol (Colt) with SN P6013506 with 9 live ammunitions (sic);

3. one (1) .45 cal. Pistol (Colt) with SN 52469 with five live ammunitions.

without first obtaining a permit or license therefor from competent authority.

CONTRARY TO LAW. [10

When arraigned, all the accused pleaded not guilty to both charges. Since the indictments arose from the same incident, the cases were jointly tried.

The facts of the case are as follows:

At around 11:50 P.M., June 5, 1993, Romeo Sta. Cruz, Jr., a radio news reporter then aboard his jeep, had just reached the ABS-CBN compound in P. del Rosario Street, Cebu City, when he heard a couple of gunshots. He looked around and saw a man running unsteadily towards the intersection of P. del Rosario Street and Jones Avenue (Osmea Boulevard). The man was shouting Tabang, tabang! (Help! Help!). Sta. Cruz, Jr., saw a red Jiffy make a U-turn near the gate of the city central school that nearly ran over the man shouting for help. The man turned back and staggered towards the direction of Bacalso Avenue and Urgello Private Road, but after a few meters on wobbly legs, he stopped and collapsed.

Meanwhile, the Jiffy followed. It stopped beside the fallen figure and a tall, thin man alighted. The man fired several shots at the prostrate figure. He boarded the Jiffy which sped away towards Leon Kilat Street. Romeo Sta. Cruz, Jr., moved his jeep and focused its headlights on the victim.

In the meantime, PO3 Alexander Rustela was at a vulcanizing shop near the intersection of Bacalso Avenue and Leon Kilat Street, when he heard gunshots coming from the north. He ran towards where the gunshots came and saw people scampering. All of a sudden, the Jiffy with three persons on board sped past him and made an abrupt left turn at Leon Kilat Street. Rustela immediately radioed for assistance. Minutes later, patrol car No. 201 with PO2 Herbert Ramos on board arrived. Rustela boarded the car and they followed the Jiffy, while broadcasting an alarm to police headquarters and other mobile patrol cars.

On nearby Colon Street, SPO1 Eleazar Abrigana and PO2 Romeo Abellana were cruising aboard patrol car No. 208, when they heard a radio message that the suspects in the shooting incident were aboard a Jiffy. As they turned left at Leon Kilat Street, they saw the Jiffy heading towards Carbon Market. They pursued the Jiffy which stopped in front of the Don Bosco Building near BBRC, when police car No. 205, with PO Eugenio Badrinas and PO2 Gerald Cue aboard, blocked the Jiffys path. Cue fired a warning shot and three persons alighted. The driver was appellant Astellero, whom Cue had recognized and seen before at the BBRC. Abrigana and Cue approached the trio who stood a meter away from the Jiffy. SPO1 Abrigana frisked Abriol and seized from his waist a .38 caliber revolver with serial number PO8485 with six (6) empty shells in its cylinder. [11 Under Abriols seat, the police also found a .45 caliber pistol bearing serial number PGO 13506 with nine (9) live rounds in its magazine and another .45 caliber pistol with serial number 52469 loaded with five (5) unfired bullets. [12

While the patrol cars were chasing the Jiffy, another police team proceeded to the crime scene in response to the alarm. This team from Police Station No. 3 in San Nicolas, Cebu City rushed the victim to the Cebu City Medical Center, where he was pronounced dead on arrival. Meanwhile, PO3 Celso Seville, Jr., a homicide investigator of Police Station No. 3 found four (4) .45 caliber shells some four (4) feet away from the victims body, and two (2) deformed slugs where the victim had lain, and submitted them to the Region 7 PNP Crime Laboratory for ballistics testing. [13

Dr. Ladislao Diola, Jr., Chief of the PNP Region 7 Crime Laboratory autopsied the victims body. He found that the cause of the victims death was cardiorespiratory arrest due to shock and hemorrhage secondary to multiple gunshot wounds to the trunk and head. [14 Dr. Diola recovered a .38 caliber slug

from the corpse, which he later submitted for ballistics examination.

SPO4 Lemuel Caser, ballistician of the PNP Crime Laboratory, reported the following:

1. Fired cartridge cases marked JA-1 to JA-3 possesses similar individual characteristics markings with the test cartridge cases fired from cal .45 with SN: PGO13506;

2. Fired cartridge cases marked JA-4 and E-69-6 possesses similar individual characteristics markings with the test cartridge cases fired from cal .45 pistol with SN: 52469;

3. Fired bullet metal jacket marked JA-5 possesses similar individual characteristics markings with test bullets fired from cal .45 pistol with SN: PGO13506;

4. Fired cartridge cases marked E-45-1 to E-45-6 possesses similar individual characteristics markings with the test cartridge cases fired from cal .38 Rev. SN: P8445;

5. Fired bullets marked as JA-6 and LD possesses similar individual characteristic markings with the test bullets fired from cal .38 Rev. SN: P8445.[15

The following day, appellants underwent a paraffin test. The hands of appellants were found positive for gunpowder residues. A chemistry test on the firearms showed that the three handguns were also positive. Inspector Myrna Areola, Chief of the Chemistry Section of the PNP Region 7 Crime Laboratory, stated in her testimony that the firearms had been fired, [16 and that appellants had fired the guns within a period of seventy-two (72) hours prior to the examination.

The widow and relatives of the victim testified on the possible motive behind the killing. They claimed the victim, a confessed drug user, may have been rubbed out on the orders of Navales for failure to remit P31,000 as proceeds from pushing prohibited drugs. After failing to deliver the drug money to Navales, for whom he was repeatedly pushing drugs, the victim went into hiding, but later returned to Cebu City because he missed his family. [17

Appellants deny the accusations. Abriol averred that he and Dosdos were among the several trustees at BBRC assigned to work in the kitchen. Appellant Astellero, who was the wardens driver, was also in charge of marketing for the prisoners food. On the day of the incident, Astellero realized that there was no money for the next days marketing so he asked Abriol to accompany him to the house of Navales, but since he was not in, they returned to BBRC and saw Navales an hour later. After they received the money from Navales niece on their way back to BBRC, Dosdos heard gunshots. Abriol ordered Astellero, who was driving, to turn back. Then Abriol claimed he saw a tall, slim man alight from a Jiffy and shoot at a prone figure on the ground. Seconds later, the gunman returned to the Jiffy, which sped off. Abriol said he ordered Astellero to chase that Jiffy but it had too much of a headstart and they lost sight of it. Abriol ordered Astellero to proceed to BBRC. At Colon Street, they heard gunshots behind them and the blaring siren of a police car. They explained that since they were detention prisoners, they had to evade meeting the police. They heard more gun shots. Upon reaching BBRC, the gates were closed, so they drove to the old airport. On their way back to BBRC several police cars blocked them and arrested them. SPO4 Eleazar Abrigana frisked him and took the .38 service revolver from his waist. [18

Abriol also testified that he surrendered his service firearm to the BBRC Administrative Officer when he was served a warrant of arrest for murder in Criminal Case No. CBU-28843. However, the handgun was defective and it was returned to him for repair by Armscor, and upon repair he handed it over to the BBRC armory. The armorer returned it to him since there was no place to keep it. He said that although he was a detention prisoner, he had yet to be discharged from the service. He was assigned guard and escort duties by the warden. [19 Abriol said that on the day of the incident he was, as a BBRC jailguard, authorized to carry his service firearm. [20 He presented a Memorandum Receipt [21 authorizing him to carry the government-issued .38 revolver. [22

On the witness stand, Astellero and Dosdos narrated a similar version of the incident as did Abriol. Both vehemently denied having any knowledge of the two .45 caliber pistols found by PO3 Cue in the Jiffy. [23

The defense also presented Dr. Jesus P. Cerna, medico-legal officer of the Cebu City PNP Command, to testify on the caliber of the firearms which might have caused the gunshot wounds of the victim. Relying on the Necropsy Report prepared by Dr. Diola, Dr. Cerna declared that wound nos. 1 and 2, which each measured 0.6 cm. by 0.6 cm., may have been caused by a .38 caliber firearm. As to wound nos. 3 and 4, which each measured 0.5 cm. by 0.5 cm., it was possible that a .38 handgun was used, or one with a smaller bore. Dr. Cerna opined that a .45 pistol could not have inflicted all the foregoing wounds, as the entry points were too small for a .45 caliber bullet. With respect to the grazing wounds found on the victims body, Dr. Cerna testified that it was impossible to determine the caliber of the firearm used. [24

The trial court found appellants version of the incident neither convincing and credible and, as earlier stated, it believed the prosecutions version. Petitioners were convicted of the offenses charged.

Hence, this appeal, with appellants assigning the following errors:

I

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIMES OF MURDER AND ILLEGAL POSSESSION OF FIREARMS DESPITE THE FLIMSY AND UNRELIABLE EVIDENCE PRESENTED BY THE PROSECUTION.

II

THE LOWER COURT ERRED IN FINDING THE GUILT OF THE ACCUSED-APPELLANTS OF THE CRIME OF MURDER AND ILLEGAL POSSESSION OF FIREARMS BEYOND REASONABLE DOUBT.

At issue is whether the prosecutions evidence, which is mainly circumstantial, suffices to convict appellants for murder and violation of Presidential Decree No. 1866, beyond reasonable doubt.

A. Criminal Case No. CBU-30350

On their conviction for murder, appellants argue that the prosecutions circumstantial evidence against them is weak, ambiguous, and inconclusive. Specifically, appellants contend that they should be acquitted because:

First , eyewitness Romeo Sta. Cruz, Jr., did not personally identify them as the culprits. At no point in his testimony did eyewitness Sta. Cruz, Jr., positively identify any of the appellants or appellant Abriol as the gunman. Sta. Cruz, Jr. only gave a general description of the assailants, despite attempts to make him give a categorical identification. He admitted he found out the name of Abriol from television and news reports and could not identify Abriol as the one whom he saw shot the victim. The transcript of his testimony is revealing.

Q: Then after the Jiffy stopped in front of the fallen victim, what happened next?

A: I saw that there was a man who disembarked from the Jiffy. He was a tall, thin fellow who disembarked from the Jiffy and at the same time, he shot the fallen victim.

Q: How many times did he shoot the victim?

A: I cannot count attorney but I saw him shooting the victim.

Q: In your affidavit, you said that the person who disembarked from the Jiffy, whose name you know later on as PO2 Albert Abriol, PNP, shot the victim in the different parts of his body. If Albert Abriol is now in the courtroom, will you please point to him?

A: I will know him attorney because of the TV shows and newspapers.

COURT: (TO WITNESS)

Q: You are referring to the name of that man who disembarked from the Jiffy and fired several shots at the fallen victim?

A: Yes, I know his name Your Honor on (sic) the news cast.

COURT: (TO WITNESS)

Q: Alright, forget the news. The man you saw when he alighted from the Jiffy and poured (sic) several bullets on the fallen man, look around if he is in the courtroom?

A: I cannot identify Your Honor.

COURT:

Q: You cannot?

A: But [because] what I saw is a man who is tall and thin because it was dark.

x x x

Q: How many persons fired a shot at the fallen man?

A: I only saw that man Your Honor who alighted from the Jiffy.

Q: Did you see his physical features?

A: Only (t)his, I can only tell his height, he was tall and his body build is thin. Tall and thin. (Emphasis supplied) [25

Since the sole eyewitness could not identify the gunman and his companions, the prosecution relied on circumstantial evidence from which the trial court could draw its findings and conclusion of culpability. [26 Circumstantial evidence may be relied upon, as in this case, when to insist on direct testimony would result in setting felons free.

Second , appellants assert that the paraffin tests are judicially recognized as unreliable and inconclusive. A paraffin test could establish the presence or absence of nitrates on the hand. However, it cannot establish that the source of the nitrates was the discharge of firearms. Nitrates are also found in substances other than gunpowder. A person who tests positive may have handled one or more substances with the same positive reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco, and leguminous plants. Hence, the presence of nitrates should only be taken as an indication of a possibility that a person has fired a gun. [27 However, it must be borne in mind that appellants were not convicted on the sole basis of the paraffin test.

Third , appellants claim that the autopsy report of prosecution witness Dr. Ladislao Diola revealed serious ambiguities. [28 Dr. Jesus P. Cerna, using the same autopsy report, said that the gunshot wounds measuring 0.6 x 0.6 centimeters could not have been caused by a .45 caliber pistol because an entrance wound of that size was too small for a .45 caliber bullet. [29 Dr. Cerna claimed that a wound inflicted by a .45 pistol would have an entry point of anywhere from 1.1 to 1.3 centimeters. He declared that it was with more reason that an entrance wound measuring .5 x .5 centimeters could not be caused by a caliber .45 bullet. [30 Since no firearm smaller than a .38 caliber pistol was seized from appellants, they claim the observation of Dr. Cerna only shows that they could not have shot the victim.

We note, however, that during cross-examination, Dr. Diola carefully explained that a firearms caliber is not the only basis for determining the cause of the gunshot wound. He said:

ATTY. REMOTIQUE:

Q: So, normally the size of .5 cm x .5 cm which is the point of entry of gunshot wound No. 3 this may have been caused by a firearm of lesser caliber than caliber .38?

A: Not necessarily. There is a very small difference in the size and this does not preclude that gunshot wound No. 3 may have also been caused by the same firearm which caused gunshot wounds Nos. 1 and 2. There are factors which often affect the size of the wounds at the time of the examination, perhaps a recission (sic) of the skin in the area where gunshot Wound No. 3 was inflicted so that gunshot wound becomes smaller.

Q: Did you not say that normally the point of entry of the gunshot wounds vary with the caliber of the firearm which caused it, so that the point of entry caused by one firearm of a particular caliber may be bigger than the point of entry of a gunshot wound caused by another firearm of lesser caliber?

A: I told you of other factors that often affect the size of the entry of the bullet although the caliber is one basis of the size of the wounds.

x x x

Q: Will you explain further on that because my understanding is that .5 cm wound must perforce be caused by a firearm of lesser caliber than that which caused the .6 cm wound?

A: As I said there are ranges in the size of the wounds. The variance in the size of the wound when it is minimal does not exclude the possibility that a wound with a .5 cm size and .6 cm size could have been caused by the same caliber. (Emphasis supplied).[31

The Office of the Solicitor General points out that Dr. Diolas testimony is supported by Dr. Pedro P. Solis, a medical expert, in his book entitled Legal Medicine. The factors which could make the wound of entrance bigger than the caliber include: (1) shooting in contact or near fire; (2) deformity of the bullet which entered; (3) a bullet which might have entered the skin sidewise; and (4) an acute angular approach of the bullet. However, where the wound of entrance is smaller than the firearms caliber, the same may be attributed to the fragmentation of the bullet before entering the skin or to a contraction of the elastic tissues of the skin (stress supplied). [32 Dr. Diola testified that a .45 caliber pistol could have caused the grazing wounds on the victims head and extremities. [33 Dr. Cerna corroborated Dr. Diolas findings in this regard. [34 Such expert opinions disprove appellants theory that the .45 caliber handguns confiscated from them could not have been used in killing the victim.

Fourth , appellants allege that the testimony of P/Inspector Lemuel Caser, the prosecutions ballistics expert, clearly shows that: (1) He is ignorant about such ballistics instruments such as the micrometer, goniometer, and pressure barrel. [35 (2) He is not conversant with the required references concerning ballistics, particularly books on the subject by foreign authorities. [36 (3) He could not scientifically determine the caliber of a bullet. [37 Since P/Inspector Caser lacked adequate training and expertise in ballistics, they claim that his opinion that the test bullets and cartridges matched the slugs and cartridges recovered from the scene of the crime was not reliable. Appellants also assail Casers failure to take the necessary photographs to support his findings.

An expert witness is one who belongs to the profession or calling to which the subject matter of the inquiry relates and who possesses special knowledge on questions on which he proposes to express an opinion. [38 There is no definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert. It is sufficient that the following factors be present: (1) training and education; (2) particular, first-hand familiarity with the facts of the case; and (3) presentation of authorities or standards upon which his opinion is based. [39 The question of whether a witness is properly qualified to give an expert opinion on ballistics rests with the discretion of the trial court. [40

In giving credence to Casers expert testimony, the trial court explained:

The defense downgraded the capability of Caser in forensics ballistics and identifying firearms. Much stress is given to the absence of photographs of his examination. Nonetheless, the Court is satisfied (with) Casers examination, findings and conclusions with the use of a microscope. Casers conclusion based on his examination deserves credit. He found the impressions on the primer of the fired cartridges that were test-fired to have the same characteristics with those recovered at the scene of the crime. Whenever a triggerman pumps a bullet (into) the body of his victim, he releases a chunk of concrete evidence that binds him inseparably to his act. Every gun barrel deeply imprints on every bullet its characteristic marking peculiar to that gun and that gun alone. These marking might be

microscopic but they are terribly vocal in announcing their origin. And they are as infallible for purposes of identification, as the print left by the human finger.[41

We agree with the trial court that P/Inspector Caser qualifies as a ballistics expert. He is a licensed criminologist, trained at the Ballistics Command and Laboratory Center in Fort Bonifacio, in the PNP Crime Laboratory in Camp Crame, and in the National Bureau of Investigation. He had previously testified as an expert witness in at least twenty-seven (27) murder and homicide cases all over the country. [42 An expert witness need not present comparative microphotographs of test bullets and cartridges to support his findings. [43 Examination under a comparison microscope showing that the test bullet and the evidence bullet both came from the same gun is sufficient. [44 Moreover, the ballistician conclusively found similar characteristic markings in the evidence, test cartridges and slugs.

Fifth , appellants aver that the prosecution failed to show any plausible motive for appellants to kill the victim. The prosecution tried to prove that their co-accused Navales instigated them to kill the victim because Navales had a grudge against him. However, as Navales was acquitted, appellants insist that Navales acquittal should redound to their benefit since no motive was imputed on their part.

Motive is not an essential element of a crime, [45 particularly of murder. [46 It becomes relevant only where there is no positive evidence of an accuseds direct participation in the commission of a crime. [47 Stated otherwise, proof of motive becomes essential to a conviction only where the evidence of an accuseds participation in an offense is circumstantial. [48 A careful perusal of the States evidence reveals that the prosecution had established sufficient motive why appellants killed the victim, independent of any grudge which Navales may have had against the latter. At the time of the incident, appellants Abriol and Dosdos were both BBRC detention prisoners during Navales term as warden. Abriol and Dosdos were treated as highly favored trustees of Navales and were never locked up. Abriol and Dosdos were even allowed to go out of BBRC to do the marketing for the prisons kitchen. Appellant Astellero, a former detention prisoner, was also a recipient of Navales favors. Navales hired Astellero as his personal driver after the latter served his sentence. Navales and the victim, a former BBRC jailguard, were associates in dealing with prohibited drugs, until they had a falling out allegedly after the victim failed to remit to Navales proceeds from the sale of illegal drugs amounting to P31,000. Appellants apparently killed the victim to return the special favors Navales had showered them. Lack of a motive does not necessarily preclude conviction. Persons have been killed or assaulted for no reason at all, and friendship or even relationship is no deterrent to the commission of a crime. [49

Sixth, in the present case, appellants contend that the PNP cannot be presumed to have done their work since it committed errors and blunders in transferring possession and custody of the physical evidence. They allege there was a possibility that the evidence was tainted, planted, or manufactured. Besides, appellants point out that the presumption of regularity cannot prevail over the constitutional presumption of innocence of the accused.

The record shows that the police officers did not issue acknowledgement receipts in some instances. However, minor lapses do not mean that the State had failed to show an unbroken chain of custody of the subject firearms and ammunition, nor that said firearms and ammunition were tampered. The slugs and spent shells recovered from the scene of the crime and the victims corpse were plainly identified in open court by the PNP investigators. The ballistician testified that the bullets and cartridges recovered from the crime scene had been fired from the subject handguns. Under these circumstances, we must respect the presumption of the regularity in the performance of duties.

Seventh, appellants insist that the prosecution failed to show that the red Jiffy used by them and seized by the police officers was the same vehicle used by the gunmen who killed Alejandro Flores. Appellants point out that PO3 Rustela, who was aboard police car No. 201, testified that they lost sight of the red Jiffy while chasing it along Leon Kilat Street. Appellants argue that the Jiffy which was chased by patrol car No. 208 until it was cornered near BBRC by the other pursuing patrol cars was not the same vehicle originally sighted and tailed by patrol car No. 201.

In rejecting this theory, the trial court stated that:

PO3 Rustela who was nearby, immediately ran to the scene of the crime and met the red jiffy with three persons on board, that speedily passed by him proceeding towards Leon Kilat Street. Car 208 readily picked up the trail and pursued the red jiffy from Leon Kilat, then making abrupt turns on downtown streets until other patrol cars joined the chase and captured them in Lahug, near the BBRC. The identity of the red jiffy was never interrupted. Members of the Mobile Patrol Cars identified in court without batting an eyelash, the red jiffy which was the object of the shooting alarm. There was no interruption, no let-up in the chase, right after Alejandro Flores was shot and there was no other red jiffy that the crews of the (pursuing) patrol cars noticed.

The Court rejects their claim of innocence, for their very acts belied the same.

Astellero could have stopped the jeep upon noticing that patrol cars were already running after them with sirens, blinkers and warning shots fired. From Leon Kilat Street to Lahug airport, there were several police stations that they could have sought shelter and police assistance. Guilt has many ways of surfacing. Instead of stopping, Abriol ordered Astellero to accelerate their speed. Their obvious purpose was to elude the patrol cars. Flight is indicative of guilt.[50

But, in this case, is the totality of the circumstantial evidence relied upon by the trial court sufficient to support a conviction?

Circumstantial evidence is that which indirectly proves a fact in issue. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the theory that the accused is guilty of the offense charged, and at the same time inconsistent with the hypothesis that he is innocent and with every other possible, rational hypothesis, except that of guilt. [51 An accused can be convicted on the basis of circumstantial evidence where all the circumstances constitute an unbroken chain leading to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the culprit. [52

In our assessment, the prosecutions evidence constitutes an unbroken chain of events leading to the inevitable conclusion of guilt on the part of appellants. First, the fatal shooting of Alejandro Flores occurred at around 11:50 P.M. of June 5, 1993 in front of the ABS-CBN compound in Cebu City. The gunman, who was tall and thin, alighted from a red Jiffy, pumped several bullets into the prone victim, and got back aboard the Jiffy which then sped towards Leon Kilat Street. Second, eyewitness Romeo Sta. Cruz, Jr.s description of the gunman as tall and thin perfectly matches the physique of appellant Abriol. Third, PO3 Alexander Rustela, who was close to the crime scene, heard the gunshots and ran towards the place where the sound of gunshots emanated. A red Jiffy with three persons aboard whizzed by him and abruptly turned at Leon Kilat Street. After Sta. Cruz, Jr. informed him that the gunmen were aboard a red Jiffy, Rustela boarded patrol car No. 201, radioed an alarm, and commenced a pursuit of the fleeing vehicle. Police car no. 208 received the alarm, and on turning into Leon Kilat

Street, encountered the speeding red Jiffy. They immediately chased the Jiffy but failed to catch it. Police cars Nos. 208 and 205 cornered the vehicle in front of the Don Bosco building near BBRC. PO2 Gerald Cue, on patrol car no. 205 fired a warning shot at the vehicle and directed all those aboard to disembark. Three men got out, with their hands raised. SPO1 Abrigana, on patrol car no. 208 and PO2 Cue approached the trio. Abrigana frisked the man who was seated in the front passenger seat, who turned out to be appellant Abriol, and recovered from his waist a .38 caliber revolver with six empty shells. Cue searched the red Jiffy and found two loaded .45 caliber pistols under the front seat where Abriol had sat. Other police officers immediately went to the crime scene where they found the victim barely alive. PO3 Seville retrieved four .45 caliber slugs and two deformed slugs at the spot where the victim was shot. The autopsy of the victims remains showed that he died of cardio respiratory arrest due to shock and hemorrhage secondary to gunshot wounds. A deformed metal jacket of a .38 caliber slug was recovered from the corpse. Ballistics tests showed that the bullets and cartridges had identical individual characteristics with those of the test bullets and cartridges. Paraffin tests conducted on each of the appellants, one day after the incident, revealed that all were positive for gunpowder residues. The subject firearms were also chemically examined and found positive for gunpowder residue. Before the shooting incident, appellants were seen at Navales house until around 7:30 P.M., when they left aboard Navales red Jiffy with Astellero driving, Abriol in the front passenger seat, and Dosdos in the back seat. [53 Appellants seating arrangements were exactly the same, several hours later, after they were pursued and cornered by police cars near BBRC. Appellants admitted that they dropped by the Navales residence at around 7:00 P.M. and 11:00 P.M.

These unbroken chain of events prove not only appellants identities but also their participation and collective responsibility in the murder of Alejandro Flores. They reveal a unity of purpose and concerted action evidencing their conspiracy to kill him. Against this matrix of facts and circumstances, appellants bare denials cannot stand. Their story of chasing a red Jiffy is merely a disingenuous diversion of no evidentiary value for the defense.

Finally, the information for murder alleged treachery and evident premeditation. We note, though, that the trial court did not state which circumstance qualified the killing into murder.

A review of the record would reveal that there was no evident premeditation. There is evident premeditation when the following are shown: (a) the time when the accused determined to commit the crime; (b) an act or acts manifestly indicating that the accused has clung to his determination; and (c) a lapse of time between the determination to commit the crime and the execution thereof sufficient to allow him to reflect upon the consequences of his act. [54 Evident premeditation indicates deliberate planning and preparation. Nowhere in the record is it shown when and how appellants planned and prepared to kill the victim.

Concerning treachery, however, it was shown that: (1) the means of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) the means of execution was deliberately or consciously adopted. [55 These twin requisites were adequately proved.

Appellants had superiority in numbers and weapons. The victim was without any means to defend himself as no weapon was found or even intimated to be in his possession. The victim was running away from the Jiffy prior to the killing. That he was warned or threatened earlier is of no moment. Even when the victim is warned of danger to his person, if the execution of the attack made it impossible for the victim to defend himself or to retaliate, treachery can still be appreciated. [56 The victim was lying prostrate on the ground when he was deliberately and mercilessly riddled with bullets.

The weapons used, the number of assailants, the swift and planned manner of the attack, and the multiple number of wounds inflicted upon the victim all demonstrate a determined assault with intent to kill the victim. No doubt there was treachery.

B. Criminal Case No. CBU-33664

On their conviction for illegal possession of firearms, appellants contend that the handguns and ammunitions allegedly taken from them by the police officers were illegally seized. They assert that the police had no warrant to effect a search and seizure, such that these illegally seized firearms were inadmissible as evidence, and it was error for the trial court to admit them.

There are eight (8) instances where a warrantless search and seizure is valid. They are: (1) consented searches; [57 (2) as an incident to a lawful arrest; [58 (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; [59 (4) searches of moving vehicles; [60 (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in plain view; [61 (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) stop and frisk operations. [62

In this case, the warrantless search and seizure of the subject handguns and ammunition is valid for two reasons. It was a search incidental to a lawful arrest. It was made after a fatal shooting, and pursuit of a fast-moving vehicle seeking to elude pursuing police officers, and a more than reasonable belief on the part of the police officers that the fleeing suspects aboard said vehicle had just engaged in criminal activity. The urgent need of the police to take immediate action in the light of the foregoing exigencies clearly satisfies the requirements for warrantless arrests under the Rules of Court. [63 Moreover, when caught in flagrante delicto with firearms and ammunition which they were not authorized to carry, appellants were actually violating P.D. No. 1866, another ground for valid arrest under the Rules. [64

Appellants further contend that the trial court erred in convicting appellants Astellero and Dosdos of illegal possession of firearms. They point out that the .38 caliber revolver was recovered from appellant Abriol, who as a policeman was authorized to carry and possess said firearm, as evidenced by his Memorandum Receipt (MR), which had not been recalled, cancelled or revoked until the time of the trial of these cases. Appellants claim that the two .45 caliber pistols could have been left in the vehicle by PNP personnel assigned at BBRC, considering that the red Jiffy was generally used as a service vehicle by BBRC personnel. They also argue that the prosecution failed to prove appellants ownership, control, and possession of the .45 caliber pistols, considering that appellants were six meters away from the Jiffy when said handguns were allegedly found.

To sustain a conviction for violation of P.D. No. 1866, the prosecution must prove two elements of the offense: (1) the existence of the subject firearm; (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess it. [65 These the prosecution did. It presented a .38 caliber revolver with serial number PO8445, a .45 caliber pistol with serial number PGO 13506 Para Ordinance, and a .45 caliber pistol with serial number 52469. The .38 caliber handgun was recovered from appellant Abriol, while the two .45 caliber automatics were found and seized from under the front passenger seat of appellants vehicle. SPO4 Aquilles Famoso of the Cebu City PNP Metropolitan District Commands Firearms and Explosive Unit testified that appellants were not listed as licensed firearm owners in Cebu City. [66 The prosecution also presented a certification from P/Senior Inspector Edwin Roque of the Firearms and Explosives Division of PNP Headquarters at Camp Crame, Quezon City that appellant Abriol is not licensed to hold any firearm; that the .45 caliber

pistols were unlicensed; and that a certification from the PNP Firearms and Explosives Office attesting that a person is not a licensee of any firearm, proves beyond reasonable doubt the second element of illegal possession of firearm. [67

Abriol insists that he had a valid MR authorizing him to carry the .38 revolver. We agree with the observation of the trial court that:

The claim of Abriol that .38 caliber was issued to him, as evidenced by the corresponding receipt (MR), is of no moment. While an MR is an authority of Abriol to possess the government firearm that was issued to him, when he was charged and detained at BBRC for an earlier case of murder, other than the case at bar, he was already then at that moment a detained prisoner and therefore, (un)authorized to carry a firearm. A military man or a member of the PNP who commits a crime, is immediately disarmed upon his arrest and stripped of all the rights and privileges that go with the function of his office, and this includes, in the case of Abriol, his MR. Thus, when he shot Alejandro Flores with his .38 caliber revolver, this firearm was already unauthorized and its use and possession illegal.[68

Even if Abriols MR was valid, said authorization was limited only to the .38 caliber revolver and not the two .45 caliber automatic pistols found under the front passenger seat of the Jiffy. Appellants were still in the unlawful possession of the .45 caliber pistols. Under P.D. No. 1866, possession is not limited to actual possession. [69 In this case, appellants had control over the pistols. They were all liable since conspiracy was established and the act of one is the act of all. [70

Appellants claim that they were six meters away from the Jiffy when it was searched and the two .45 caliber pistols were seized. They suggest that the policemen who searched the vehicle could have planted said firearms. The trial court found that they were in fact only one meter away from the vehicle. Findings of fact of the trial court, when supported by the evidence on record, are binding and conclusive upon appellate courts. [71

All told, on the charge of illegal possession of firearms, no reversible error was committed by the trial court when it found appellants guilty beyond reasonable doubt.

The Office of the Solicitor General recommends that although appellants were charged with and convicted of two separate offenses of murder and violation of P.D. No. 1866, R.A. No. 8294, which amended said decree, should be applied to appellants retroactively, citing People v. Molina, 292 SCRA 742, 779 (1998) interpreting R.A. No. 8294.

We agree. We ruled in Molina that with the passage of R.A. No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or homicide is not a separate crime, but merely a special aggravating circumstance. This was recently reiterated in People v. Castillo, G.R. Nos. 131592-93, February 15, 2000. [72 Appellants are thus guilty only of murder with the special aggravating circumstance of use of unlicensed firearms. The imposition of the penalty of reclusion perpetua cannot however be modified since the murder took place before the effectivity of R.A. No. 7659.

A final word on the damages. In addition to the award of P50,000 as indemnity ex delicto, the trial court awarded P30,000 in actual damages, representing a reasonable amount for the embalming, vigil, wake and burial expenses, and P30,000 as attorneys fees. To be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon

competent proof, and on the best evidence obtainable by the injured party. [73 No such evidence was offered. The award of actual damages must, therefore, be deleted. However, temperate damages may be awarded since the family of the victim has demonstrably spent for the wake, funeral and burial arrangements. The amount of P20,000 should suffice as temperate damages. In addition, we find an award of exemplary damages in order, pursuant to Article 2230 of the Civil Code. [74 The killing was attended by the special aggravating circumstance of use of unlicensed firearms. Moreover, the public good demands that detained prisoners should not abuse their status as trustees. Had the police been unsuccessful in their pursuit of appellants, the latter would have used the BBRC as shelter and as an alibi that they could not have committed the crime since they were then in detention. Thus, we find an award of P10,000 as exemplary damages in order. Accordingly, the award of attorneys fees is sustained. [75

WHEREFORE , the assailed Decision of the Regional Trial Court of Cebu City, Branch 10, in Criminal Cases Nos. CBU-30350 and CBU-33664 is hereby MODIFIED. Appellants Albert Abriol, Macario Astellero, and Januario Dosdos are hereby found GUILTY of murder, qualified by treachery, with the special aggravating circumstance of use of unlicensed firearms and are hereby sentenced to suffer the penalty of reclusion perpetua with the accessory penalties provided for by law. Appellants Abriol, Astellero, and Dosdos are also ordered to pay, jointly and severally, the heirs of Alejandro Flores the sum of P50,000 as death indemnity, P20,000 as temperate damages, P10,000 as exemplary damages, and P30,000 as attorneys fees, as well as the costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur .

SECOND DIVISION

[G.R. No. 135406. July 11, 2000]

DAVID GUTANG Y JUAREZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

DE LEON, JR., J.:

Before us is a petition for review on certiorari assailing the Decision1 dated September 9, 1998 rendered by the former Twelfth Division of the Court of Appeals in CA-G.R. CR No. 19463. The assailed Decision affirmed the judgment2 dated October 13, 1995 of the Regional Trial Court of Pasig, Metro Manila, finding petitioner David J. Gutang guilty beyond reasonable doubt for violation of Sections 8 and 16 of RA 6425, as amended, (for illegal possession and use of prohibited drugs) as charged in

Criminal Cases Nos. 2696-D and 2697-D, respectively.

The facts are as follows:

On March 5, 1994, accused-appellant David Gutang, together with Noel Regala, Alex Jimenez and Oscar de Venecia, Jr., was arrested by elements of the PNP NARCOM, in connection with the enforcement of a search warrant3 in his residence at No. 331 Ortigas Avenue, Greenhills, San Juan, Metro Manila. When the police operatives of the PNP-NARCOM served the search warrant, which was issued by Judge Martin Villarama, Jr. of the Regional Trial Court, Branch 156, Pasig, Metro Manila, they found the petitioner and his three (3) companions inside the comfort room of the masters bedroom, at the second floor of the house.4 During the search, the following materials were found on top of a glass table inside the masters bedroom:

a. shabu paraphernalias, such as tooters;

b. aluminum foil;

c. two (2) burners (one small, one big);

d. fourteen (14) disposable lighters;

e. three (3) weighing scales;

f. plastic sealant used in repacking shabu;

g. several transparent plastic bags of different sizes;

h. about 1.4 grams of suspected marijuana fruiting tops contained in a small white plastic;

i. about 0.7 gram of suspected dried marijuana contained in a small plastic container.5

The PNP-NARCOM team also inspected the cars of accused Regala, Jimenez and de Venecia, Jr. which were parked inside the compound of the residence of petitioner Gutang. They found a Winchester Rayban case (sunglasses) with an undetermined amount of suspected shabu residues and tooters in a black plastic container and aluminum foil inside the car of Regala. The cars of Jimenez and de Venecia, Jr. yielded negative results. The items which were confiscated were then brought to the crime laboratory of the Philippine National Police (PNP) at Camp Crame, Quezon City for laboratory tests. The results of the laboratory examinations showed that the said items found in the masters bedroom of the residence of petitioner Gutang were positive for marijuana and methamphetamine hydrochloride (shabu). The items found inside the car of Regala were also positive for shabu.

The findings are as follows:

PHYSICAL SCIENCES REPORT NO. D-168-94

CASE: Alleged Viol. Of RA 6425

SUSPECTS: DAVID GUTANG Y JUAREZNOEL REGALA Y YORROALEX JIMENEZ Y ESPINOSACAREY DE VENECIA Y LOCSIN

TIME AND DATE RECEIVED: 1430H, 05 MARCH 1994

REQUESTING PARTY/UNIT: C, 2nd SOG NARCOMCamp Crame, Q.C.

SPECIMEN SUBMITTED:

Exh. A One (1) white plastic bag containing the following:

Exh. A-1 One (1) white film case with dried suspected marijuana fruiting tops weighing 1.56 grams.

Exh. A-2 One (1) small black box with dried suspected marijuana fruiting tops weighing 0.70 gram.

Exh. A-3 Two (2) pieces of improvised tooter with white crystalline residue.

Exh. A-4 Several foil and small plastic bag with white crystalline residue.

Exh. B One (1) white plastic bag marked ROEL REGALA containing the following:

Exh. B-1 One (1) Winchester case with white crystalline substance.

Exh. B-2 One (1) black case containing several tooters with white crystalline residue.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of prohibited and/or regulated drug.

FINDINGS:

Qualitative examination conducted on the above-stated specimen gave the following results:

1. Exhs. A-1 and A-2 POSITIVE to the test for Marijuana, a prohibited drug.

2. Exhs. A-3, A-4, B-1 and B-2 POSITIVE to the test for methamphetamine hydrochloride (shabu), a regulated drug.

CONCLUSION

Exhs. A-1 and A-2 contain marijuana, a prohibited drug.

Exhs. A-3, A-4, B-1 and B-2 contain Methamphetamine Hydrochloride (shabu) a regulated drug. xxx

REMARKS:

TIME AND DATE COMPLETED: 1630H, OrMarch 1994(Annex A, pp. 6-8)

On the same day, March 5, 1994, immediately after Gutang, Regala, Jimenez and de Venecia, Jr. were placed under arrest, they were brought to the PNP Crime Laboratory at Camp Crame. According to PNP Forensic Chemist Julita De Villa, their office received from PNP-NARCOM which is also based in Camp Crame a letter-request for drug dependency test on the four (4) men.6 After receiving the said request, Mrs. Esguerra of the PNP Crime Laboratory asked the four (4) men including the petitioner to give a sample of their urine. The petitioner and his co-accused complied and submitted their urine samples to determine the presence of prohibited drugs. After examining the said urine samples, PNP Forensic Chemist De Villa came out with Chemistry Report No. DT-107-947 and Physical Report No. DT-107-948 dated March 9, 1994, showing that the said urine samples all tested positive for the presence of methamphetamine hydrochloride (shabu).

Consequently, the informations in Criminal Cases Nos. 2696-D and 2697-D were filed in court against the petitioner and his companions for violation of Sections 8 and 16 of Republic Act No. 6425, (otherwise known as the Dangerous Drugs Act) as amended by Republic Act No. 7659. Incidentally, the charge against accused Oscar de Venecia, Jr. was dismissed by the trial court in an Order9 dated August 3, 1994 on the ground that he voluntarily submitted himself for treatment, rehabilitation and confinement at the New Beginnings Foundation, Inc., a private rehabilitation center accredited by the Dangerous Drugs Board.

Upon arraignment, petitioner Gutang entered a plea of not guilty. His co-accused, Regala and Jimenez, likewise pleaded not guilty. Thereafter, joint trial of the cases proceeded. However, petitioner Gutang did not present any evidence.

After trial, the lower court rendered its decision, the dispositive portion of which reads:

WHEREFORE, foregoing considered, the Court finds 1) accused DAVID GUTANG and ALEXANDER JIMENEZ in Criminal Case No. 2696-D, GUILTY beyond reasonable doubt for violation of Section 8 of R.A. 6425 as amended (Possession and use of prohibited drug); and are hereby sentenced to suffer a penalty of six (6) months of arresto mayor to two (2) years, four (4) months of prision correccional and to pay the costs; 2) In Criminal Case No. 2697-D (Possession) accused DAVID GUTANG, NOEL REGALA and ALEXANDER JIMENEZ, GUILTY beyond reasonable doubt of violation of Section 16 (ibid) and are hereby sentenced to suffer a penalty of six (6) months of arresto mayor to two (2) years, four (4) months of prision correccional and to pay the costs; 3) accused NOEL REGALA, in Criminal Case No. 2698-D (Possession of regulated drugs) is hereby sentenced to suffer a penalty of six (6) months of arresto mayor to two (2) years, four (4) months of prision correccional and to pay the costs.

The items confiscated are ordered forfeited in favor of the government and to be disposed of in accordance with law.

SO ORDERED.10

The judgment of conviction of the lower court was affirmed by the Court of Appeals.

Hence, this petition wherein the petitioner raises the following assignments of error:

I

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE RECEIPT FOR PROPERTY SEIZED; EXHIBIT I AND EXHIBIT R; THE PHYSICAL SCIENCE REPORT NO. D-168-94. EXHIBIT D; THE CHEMISTRY REPORT NO. DT-107-94, EXHIBIT L; AND THE PHYSICAL SCIENCE REPORT NO. DT-107-94, EXHIBIT M ARE INADMISSIBLE IN EVIDENCE.

II

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PRESUMPTION OF INNOCENCE OF THE ACCUSED HAS NOT BEEN OVERCOME BY PROOF BEYOND REASONABLE DOUBT.

We affirm the conviction of the petitioner.

Petitioner insists that the trial court erred in admitting in evidence Exhibits I and R, which are the Receipts of Property Seized, considering that it was obtained in violation of his constitutional rights. The said Receipts for Property Seized, which described the properties seized from the petitioner by virtue of the search warrant, contain his signature. According to petitioner, inasmuch as the said evidence were obtained without the assistance of a lawyer, said evidence are tantamount to having been derived from an uncounselled extra-judicial confession and, thus, are inadmissible in evidence for being fruits of the poisonous tree.

We agree. It has been held in a long line of cases that the signature of the accused in the Receipt of Property Seized is inadmissible in evidence if it was obtained without the assistance of counsel.11 The signature of the accused on such a receipt is a declaration against his interest and a tacit admission of the crime charged for the reason that, in the case at bar, mere unexplained possession of prohibited drugs is punishable by law. Therefore, the signatures of the petitioner on the two (2) Receipts of Property Seized (Exhibits I and R) are not admissible in evidence, the same being tantamount to an uncounselled extra-judicial confession which is prohibited by the Constitution.

Petitioner further contends that since the Receipts for Property Seized (Exhibits I and R) are inadmissible in evidence, it follows that the Physical Science Reports Nos. D-168-94 and DT-107-94 (Exhibit D and M) and Chemistry Report No. DT-107-94 (Exhibit L) finding the said items seized to be positive for marijuana and shabu, are also inadmissible inasmuch as they are mere conclusions drawn from the said Receipts and hence a part thereof.

We disagree. The fact that the Receipts of Property Seized (Exhibits I and R) are inadmissible in evidence does not render inadmissable the Physical Science Reports (Exhibit D and M) and the Chemistry Report (Exhibit L) inasmuch as the examined materials were legally seized or taken from the petitioners bedroom on the strength of a valid search warrant duly issued by Judge Villarama, Jr. of the Regional Trial Court of Pasig, Metro Manila. Since the said materials were validly seized or taken from the bedroom of the petitioner in his presence, the laboratory tests conducted thereon were legally

and validly done. Hence, the said Reports containing the results of the laboratory examinations, aside from the testimonial and other real evidence of the prosecution, are admissible in evidence and sufficiently proved that the petitioner used and had the said prohibited drugs and paraphernalia in his possession. In other words, even without the Receipts of Property Seized (Exhibits I and R) the alleged guilt of the petitioner for the crimes charged were proven beyond reasonable doubt.

Petitioner also posits the theory that since he had no counsel during the custodial investigation when his urine sample was taken and chemically examined, Exhibits L and M, which are the respective Chemistry and Physical Reports, both dated March 9, 1994, are also inadmissible in evidence since his urine sample was derived in effect from an uncounselled extra-judicial confession. Petitioner claims that the taking of his urine sample allegedly violates Article III, Section 2 of the Constitution, which provides that:

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

We are not persuaded. The right to counsel begins from the time a person is taken into custody and placed under investigation for the commission of a crime, i.e., when the investigating officer starts to ask questions to elicit information and/or confession or admissions from the accused. Such right is guaranteed by the Constitution and cannot be waived except in writing and in the presence of counsel. However, what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material.12 In fact, an accused may validly be compelled to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done, without running afoul of the proscription against testimonial compulsion.13 The situation in the case at bar falls within the exemption under the freedom from testimonial compulsion since what was sought to be examined came from the body of the accused. This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosed facts but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test.14

Assuming arguendo that the urine samples taken from the petitioner are inadmissible in evidence, we agree with the trial court that the record is replete with other pieces of credible evidence including the testimonial evidence of the prosecution which point to the culpability of the petitioner for the crimes charged.

First of all, the petitioner has not satisfactorily explained the presence in his bedroom of the assorted drug paraphernalia15 and prohibited drugs found atop a round table therein at the time of the raid.16 Petitioners feeble excuse that he and his co-accused were not in the masters bedroom but inside the comfort room deserves scant consideration since the comfort room is part of the masters bedroom.17 Prosecution witness Capt.

Franklin Moises Mabanag, head of the said PNP-NARCOM raiding team, testified that when petitioner was arrested, the latter showed manifestations and signs that he was under the influence of drugs, to wit:

By Fiscal Villanueva (To the witness)

Q: Mr. Witness, why was a drug defendant (sic) test requested on the persons of David Gutang, Noel Regala, Alexander Jimenez and Oscar de Venecia?

A: A drug test was made on them because when we held these persons David Gutang, Noel Regala, Alexander Jimenez and Oscar de Venecia, they showed manifestations and signs that they are under the influence of drugs.

Atty. Arias:

That is a conjectural answer. The witness is not authorized to testify on that.

Fiscal Villanueva:

We agreed as to the expertise of this witness at the time when I was qualifying him (interrupted)

By Fiscal Villanueva (To the witness)

Court:

At any rate, that was only his observation it is not necessarily binding to the court, that is his testimony, let it remain.

Atty. Arias:

But the rule is clear.

Court:

That is what he observed.

Fiscal Villanueva:

And what is this manifestation that you observed?

Atty. Arias:

Precisely, that is already proving something beyond what his eyes can see.

Fiscal Villanueva:

That is part of his testimony.

Court:

Let the witness answer.

Witness:

I observed they are profusely sweating and their lips are dry, I let them show their tongue and it was whitish and their faces are pale, reason why we made the necessary request for drug test.18

It is worth noting that the search warrant was served only after months of surveillance work by the PNP-NARCOM operatives led by Chief Inspector Franklin Mabanag in the residence of petitioner. Earlier, a confidential informant had even bought a gram of shabu from petitioner Gutang. Prosecution witness Mabanag also found, during the surveillance, persons who frequented the house of petitioner, and that the confidential informant of the PNP-NARCOM had in fact gained entry into the house. The police officers are presumed to have performed the search in the regular performance of their work. Allegedly improper motive on the part of the PNP-NARCOM team must be shown by the defense, otherwise, they are presumed to be in the regular performance of their official duties.19 But the defense failed to do so.

All told, in the face of the evidence adduced by the prosecution, it is clear that petitioner is guilty beyond reasonable doubt of the crimes charged.

WHEREFORE , the petition is hereby DENIED. The decision of the Court of Appeals affirming the judgment of the Regional Trial Court is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisum

EN BANC

G.R. No. 10028 December 16, 1916

JOSE VALES, Plaintiff-Appellee , vs. SIMEON A. VILLA, FELIPE S. SILVESTRE, and MARIA GUIA GARCIA, Defendants-Appellants.

MORELAND, J.: chanrobles virtual law library

This is an action to set aside certain transfers of real estate from the plaintiff to one of the defendants and to require that defendant to recover by good and sufficient conveyance the title to such properties;

to refund to the plaintiff a certain sum paid by plaintiff for the recovery of certain other real estate; and for an accounting by the defendants of the rents, issues and profits of certain real estate during a certain period; and for P25,000 damages.chanroblesvirtualawlibrary chanrobles virtual law library

Judgment was rendered in favor of the plaintiff and against the defendants as follows:

Requiring the defendant Maria Guia Garcia to elect within fifteenth days from date hereof, whether she will pay the plaintiff the sum of P7,274 with interest on P6,500 thereof at 6 per cent per annum from September 5, 1911, and on P752 thereof at 6 per cent per annum from the 4th day of April, 1913, and retain the property; or deed the property described as follows (description of property) and the property sold to her on the 4th day of April, 1913, to the plaintiff upon plaintiff's paying her the sum of P7,500, with interest thereon at 6 per cent per annum from the 5th day of September, 1911, and of deeding to plaintiff without compensation the parcel of land deeded by plaintiff to her on the 4th day of April, 1913.chanroblesvirtualawlibrary chanrobles virtual law library

And requiring the defendant, Simeon A. Villa, to elect within 15 days from date thereof whether he will pay the plaintiff the sum of P8,910.41 and retain the property sold to him by the plaintiff, and described as follows (description of property) together with interest thereon at 6 per cent per annum from the 17th day of October, 1911, or deed the property to the plaintiff upon the payment by the plaintiff to him of the sum of P8,089.59, with interest thereon at 6 per cent per annum from October 17, 1911. chanroblesvirtualawlibrary chanrobles virtual law library

And, upon the failure of either of said defendants to elect, as stated, the right of election as to performance shall be in the plaintiff, who may immediately enforce his election by execution, compelling the defendants to execution the deeds as indicated, upon the payment of the sum required of him, or to pay the amounts required by them to be paid, in case of retention of the property, and in favor of the plaintiff.chanroblesvirtualawlibrary chanrobles virtual law library

And against the defendant Maria Guia Garcia for the sum of P3,600, together with interest thereon at 6 per cent per annum from the 24th day of October, 1913, and, for the costs of the action.

This appeal was taken from that judgment. chanroblesvirtualawlibrary chanrobles virtual law library

It appears that the defendant Felipa Silvestre is a widow, 70 years of age, and is the aunt of the defendant Maria Guia Garcia, wife of the defendant Simeon A. Villa. chanroblesvirtualawlibrary chanrobles virtual law library

In 1904 plaintiff was the owner of the following properties, to wit:

(a) Two houses of strong materials, known and designated as Nos. 37 to 47 (now 105-113) Calle Nebraska, district of Ermita, together with the lots whereon said buildings are erected, said houses and lots having an assessed valuation of P23,644 Philippine currency; (b) one house of strong materials, known and designated as No. 49 (now 303-311) Calle Mercado, district of Ermita, together with the lot whereon the same is erected; (c) one house of strong materials, known and designated as No. 45 (now 221-225) Calle Mercado, district of Ermita, consisting of 11 doors or posesiones, together with the lots wherein the same is erected; (d) two houses of strong materials situated upon the private street known and designated as Callejon Maria Paz, and numbered 47a, 47b, and 11, 13, 15 and 17, respectively, together with the lots wherein the same are erected.

At that time he was in debt to the defendant Felipa Silvestre in the sum of P20,000. In that year he executed to her a conveyance of the properties above described in consideration of the debt, the conveyance containing a clause giving to the vendor the right to repurchase the premises within one year from the date of the conveyance by a payment to the vendee of the consideration stated in the conveyance. Plaintiff did not repurchase, and in March 22, 1909, having become indebted to Felipa Silvestre in an additional sum of P5,000, he, on that day, conveyed the premises to the defendant Maria Guia Garcia, at the request of Felipa Silvestre, she being an elderly woman and Maria Guia Garcia being considered by her the heir to all her property. The consideration for the transfer was the debt of P20,000, the purchase price named in the conveyance of 1904, and P5,000, the additional debt which had been created during the time intervening between the two conveyances. The deed was absolute on its face and, so far as appears, conveys the property in fee simple; but the plaintiff contends that there was a parol agreement between him and the defendants entered into at the time the conveyance was executed and delivered, giving him the right to repurchase the premises so conveyed at any time on paying the vendee the P25,000 named as the consideration for the transfer. The defendants deny the existence of such a parol agreement and the controversy thus raised is the origin of all the difference between the parties to this action. chanroblesvirtualawlibrary chanrobles virtual law library

Shortly after the conveyance of March 22, 1909, on parcel of the property described in that conveyance was sold to Judge Jocson, and still later a second parcel, the defendant Maria Guia Garcia appearing in both conveyance as the vendor of the properties. Still later another parcel of the property described in said conveyance was sold to one Garchitorena, Maria Guia Garcia being the vendor in that conveyance.chanroblesvirtualawlibrary chanrobles virtual law library

In 1911, the plaintiff conveyed to the defendant Maria Guia Garcia for P7,580 certain property, also the subject of this action, but not a part of the property described in the conveyance of the 22d of March, 1909, located on Calle Salsipuedes; and in 1913 a parcel of land adjoining the Salsipuedes property for P752. In 1911, plaintiff also conveyed to the defendant Maria Guia Garcia a house and lot located on Padre Faura Street for P8,000. On the 4th day of April, 1913, the defendant Maria Guia Garcia conveyed to plaintiff the properties described in the conveyance of March 22, 1909, remaining unsold, for the consideration of P6,800, plaintiff thereby receiving on payment that which he claims he was entitled to receive for nothing under the alleged verbal agreement, he claiming that he had paid long before the full sum of P25,000 which entitled him to the reconveyance without further consideration. chanroblesvirtualawlibrary chanrobles virtual law library

This action was commenced on the 25th of October, 1915. chanroblesvirtualawlibrary chanrobles virtual law library

It is claimed by the plaintiff that, in spite of the conveyance of the 22d of March, 1909, he continued in possession of the properties described therein as virtual owner thereof, and that all he paid for such possession was the interest on the P25,000, the consideration for the conveyance, at the rate of 9 per cent per annum, or P2,250, a year. He also claims that he rented those portions of the properties described in the conveyance which he himself did not personally occupy and that he had the benefits of such rents, collecting them and using them for his own personal purposes. The defendants, on the other hand, deny that the plaintiff, after the conveyance of the 22d of March, 1909, occupied the premises as owner, but assert that he occupied them as tenant of the defendant Maria Guia Garcia and that he paid rent to her continuously while in the occupancy thereof, the amount of the rent being reduced as portions of the property were sold; and that in December, 1911, and this plaintiff admits, defendants canceled plaintiff's lease and thereafter collected the rents themselves from all occupants, including the plaintiff. Defendants also say that, while it is admitted that the plaintiff rented portions of the properties to other tenants, he acted in so doing as a tenant of the defendant Maria Guia Garcia and under a

permission to sublet.chanroblesvirtualawlibrary chanrobles virtual law library

Plaintiff also claims that the consideration received for the conveyance to Judge Jocson was received by him as the real owner of the property and that P10,000 thereof was paid to the defendant Maria Guia Garcia as a part payment of the P25,000 which formed the consideration for the conveyance of the 22d of March, 1909, and was paid in pursuance of the alleged verbal agreement to reconvey the premises on the payment of the P25,000 in full. He makes the same claim with regard to the purchase price of the property sold to Garchitorena, asserting that he received the whole of that purchase price as the owner of the property and that he paid therefrom to the defendant Maria Guia Garcia the sum of P15,000, said sum, together with the sum of P10,000 paid from the Jocson sale, constituting the full amount due to defendant under the verbal agreement to reconvey attached to the conveyance of the 22d of March, 1909; and he asserts that, upon the payment of that sum, he was entitled to receive a reconveyance from the defendant Maria Guia Garcia of the properties described in the conveyance of the 22d of March, 1909, remaining unsold.chanroblesvirtualawlibrary chanrobles virtual law library

It is admitted that, in the sale to Judge Jocson and to Garchitorena, the plaintiff personally conducted the negotiations. Defendants, however, deny that he acted in such negotiations as owner, but allege that he acted as their agent. They also deny that he received the purchase price of said properties and that he paid them P10,000 and P15,000 or any sum whatever. They assert, on the contrary, that the defendant Maria Guia Garcia received the full purchase price in each case, and that the only sum that plaintiff received was that paid him by the defendant for his services as agent in selling the property. chanroblesvirtualawlibrary chanrobles virtual law library

With regard to the Salsipuedes and Padre Faura properties the plaintiff claims that they were obtained from him and that he was induced to execute conveyances therefor in favor of the defendant Maria Guia Garcia under the threat that, if he did not do so, the defendants would not reconvey to him the properties described in the conveyance of the 22d of March 1909; that is, that they would repudiate the verbal agreement which plaintiff alleges was attached to that conveyance. He asserts that the consideration paid by the defendant for these properties was grossly inadequate and that, as stated, he was induced to accept such considerations and to make the conveyances by reason of the threat aforesaid. The defendants deny, as we have seen, that such verbal agreement existed and also specifically deny that such threat or any threat was made or that the conveyances of the property referred to were obtained by virtue thereof. chanroblesvirtualawlibrary chanrobles virtual law library

The history of the transactions between the plaintiff and the defendant as given by counsel for the parties is not essentially different. While there is, of course, a wide difference in the claims of the parties to the action, that difference consists largely in the reasons which underlie the facts thus stated and the forces and motives which moved the plaintiff to the performance of the acts referred to and from the effects of which he asks to be relieved. Counsel for the plaintiff claim that the conveyance subsequent to that of the 22d of March, 1909, which is the origin of all the controversies between the parties, and his appearance as a witness for the defendants in the various proceedings in the Court of Land Registration concerning certain of the parcels of land in litigation and all other acts against his own interests, were induced either by the fraud of the defendants or by the force and undue influence which they were able to and did exercise over him by virtue of the advantages they possessed by reason of the fact that the conveyance of March 22d, 1909 was absolute in form. Counsel further assert that one of the elements of the alleged fraud and undue influence was that there was no consideration for the transfers to defendants or if there was a consideration, it was grossly inadequate. chanroblesvirtualawlibrary chanrobles virtual law library

Plaintiff's position with regard to the various transfers and the other acts of plaintiff is best shown by statements of counsel in their brief in this court. With respect to the conveyance of March 22, 1909, counsel say:

On March 22, 1909, under guise of covering the additional P5,000 and to place the property beyond the reach of an impecunious brother-in-law, the plaintiff was induced to execute a writing, in the form of an absolute deed (Exhibit 1) in favor of the defendant Maria Guia Garcia, niece of Felipa Silvestre, and wife of Dr. Simeon A. Villa. This deed was made upon the express understanding (not contained in the instrument) that the plaintiff was to pay interest at the rate of 9 per cent per annum upon his indebtedness of P25,000 and was to have a reconveyance of his property upon the repayment of said indebtedness. The deed expressly recites that by an escritura dated September 23, 1904, the land with the improvements thereon had been conveyed to the defendant Maria Guia Garcia under pacto de retro for P20,000, that since that time the plaintiff had received form time to time an additional P5,000, all of which had been employed in the construction of improvements on the land. This additional P5,000, none of which was retained by the plaintiff, was the so-called consideration upon which the conveyance under pacto de retro was converted into an apparently absolute conveyance. chanroblesvirtualawlibrary chanrobles virtual law library

After the execution of this deed to Maria Guia Garcia, the plaintiff, Vales, continued in the absolute possession of the properties (test., p. 9) and administered the same for his own use and benefit, free from any control on the part of the defendants. The revenue from the property amounting to the sum of P600 per month was wholly received by the plaintiff, until he sold a part of the property, and until he was later ousted from the remainder as hereinafter stated.

With regard to the transaction with Judge Jocson, counsel say:

In October, 1909, the plaintiff found a purchaser for one of his houses in the person of Judge Jocson, who paid P14,000 for the premises at No. 49 Calle Mercado. Of this sum P2,000 was employed in building a stable and fences, P10,000 was paid by plaintiff on account of his indebtedness and the remainder of P2,000 was retained by plaintiff for his own uses. In thus reducing his debt from P25,000 to P15,000 the plaintiff was required to increase his interest payments from 9 per cent to 10 per cent, and the monthly payments of P187.50 were thereafter continued at the rate of P125.00. chanroblesvirtualawlibrary chanrobles virtual law library

The sale to Judge Jocson was the occasion of the first intimation to plaintiff that he had committed a folly in executing a deed to property worth P78,500 to secure a debt of only P25,000 without expressing therein its real object. All of the negotiations with Judge Jocson, extending over several months, were carried on with the plaintiff exclusively, the price for the sale was fixed by the plaintiff after the latter had abandoned his efforts to secure a higher price, and the money was paid to plaintiff by Judge Jocson in the presence of the defendants, who were present, of course, for the purpose of signing the formal deed. This is shown not only by the testimony of plaintiff but also by that of Judge Jocson, who states that he was informed by Vales that although he was the owner of the property he had allowed the title to stand in the name of the defendant Maria Guia Garcia as security for an obligation. The judge testifies that he explained to Vales that although he, Vales, might have absolute confidence in the good faith of the defendants, there would be trouble in the event of the death of said Guia Garcia, and that in view of said explanation Vales requested the judge to prepare a suitable document which would show the real equity of Vales in the property. The judge identified the surveying sheets of the rough draft of the document so prepared by him (deposition, Exhibit B, p. 77-8). When this document was presented to defendant Villa and his wife, Guia Garcia, upon one pretext or another they failed to execute the same. This attitude of theirs aroused the suspicion of plaintiff and

he forthwith determined to sacrifice a part of his property in order to obtain the money with which to discharge the remaining balance of his indebtedness. He accordingly engaged the service of brokers to find a buyer for the house and lots at Nos. 105-113 Calle Nebraska, included in the deed to Guia Garcia. The result of this activity was the sale to Garchitorena of these properties for the sum of P20,000, although this was far below their real value, as shown by the testimony of Goyena, a competent and disinterested witness, who appraises the said properties at over P36,000. chanroblesvirtualawlibrary chanrobles virtual law library

The broker who made the sale testifies positively that the defendant Felipa Silvestre informed him that the property in question belonged to Vales, the plaintiff; that he received all his instructions regarding the sale from the latter; and that from him he received his commission for his services in effecting the sale. The testimony of this witness also corroborates absolutely that of the plaintiff to the effect that when the P20,000 were received from Garchitorena for the sale of the property in question P5,000 of it was turned over to Vales. He also testifies that at the time Vales requested the defendants, all of whom were there present, to reconvey to him the rest of the mortgaged property and that the defendant Villa, in the presence of the other defendants, said that that would be done after Holy Week (sten. notes, page 39). The details of what transpired on this occasion were also given by the plaintiff in his testimony (sten. notes, page 14). This occurred on the night of April 11, 1911. chanroblesvirtualawlibrary chanrobles virtual law library

The situation, therefore, after April 11, 1911, was that the plaintiff had returned to the defendants the whole amount of his indebtedness to them, but the titles to the remaining properties, which had stood as security for the debt, still stood in the name of the defendant Maria Guia Garcia. The value of these properties, as established by the undisputed testimony of the witness Goyena, was P24,437.

Counsel have this to say with regard to the transaction involving the house on Calle Salsipuedes:

On April 14, 1911, plaintiff requested defendants to reconvey to him the rest of his property, but was informed that this would not be done until he had sold them for P7,500 a house and lot of his on Calle Salsipuedes, the value of which, as fixed by the witness Goyena, was over P15,000. The details of the discussion which this outrageous demand provoked are found on page 17, stenographic notes of plaintiff's testimony. The final upshot was that the defendants told plaintiff that if he would finish the house as they wanted it and sell it to them for P7,500, that they would then reconvey to him the rest of his property, but that if he did not do so, they would keep it, availing themselves of the fact that the record title was in the name of the defendant Maria Guia Garcia. Fearing that he would be deprived of his property, and yielding to the threat of the defendants, the plaintiff completed the house and conveyed it to the defendant Maria Guia Garcia for P7,500. chanroblesvirtualawlibrary chanrobles virtual law library

This house was completed about August 1, 1911, and on September 5, was deeded by plaintiff to defendant Maria Guia Garcia. He then again preferred his request for the restoration of his Ermita properties, but the rapacity of the defendants was not satisfied. The plaintiff had purchased a building lot on Calle Padre Faura, and had planned and commenced a building thereon to cost about P17,000. This property had apparently excited the avarice and cupidity of defendants, and under the guise of punishing him for his ingratitude in telling the true history of his woes to Judge Ostrand of the Land Court and thus delaying the title to the Salsipuedes house, they demanded of plaintiff the Padre Faura house, finished and completed to the taste and requirements of Dr. Villa for the meager sum of P8,000. The mere fact that the plaintiff had meekly been haled before Judge Ostrand by Dr. Villa and frightened into retracting his statements and consenting to the issue of title unto Maria Guia Garcia, after a two days' delay, seemed to make no difference. The temerity of plaintiff in even mentioning his rights was deemed worthy of chastisement, especially such as would redound to the profit and gain of

defendants. And so the Padre Faura property went the way of the house on Calle Salsipuedes and settled into the maw of the defendants. Its actual cost of building (some P14,800) was advanced by Dr. Villa, and so, when finished the poor plaintiff was owing to defendants the sum of P6,800 or the excess of cost over the purchase price of P8,000.chanroblesvirtualawlibrary chanrobles virtual law library

Finally in December, 1911, the defendants having discovered that plaintiff was the owner of a strip of land adjoining the house and lot already wrested from him and having made unsuccessful demands upon him for the transfer of that strip to them, put the screws upon his thumbs a little tighter. In addition to informing him that they would indefinitely retain his Ermita properties, they ousted him form the administration thereof, collected the rentals thereof and even compelled the plaintiff to pay them rental for that part occupied by himself and family. Succumbing to this pressure, and piling Pelion on Ossa, the plaintiff made conveyance of this additional tribute. chanroblesvirtualawlibrary chanrobles virtual law library

With the demand of P6,800 above stated the plaintiff was unable to comply for the some time. Finally, in April 1913, he succeeded in borrowing this sum from one Rafael Alonso, and with this sum (P6,800) as a nominal consideration, he succeeded in securing the refund of the balance of his Ermita possessions (worth about P24,500). Why the defendants did not complete their undertaking, but left the plaintiff with an equity of about P18,000 is surprising. Doubtless the delay in procuring for their demands the ultimate P6,800, or the threatened fulfillment of the adage that even a worm will turn, advised them that they were at the end of their rope.

It is thus clear that the real difference between the parties in their relation of the facts in the main lies in the coloring given them by the disclosure by the plaintiff of what he alleges to have been the motives and forces which drove him to the transactions which he now wishes to have annulled. There appears to be some confusion as to the precise nature of this action. Counsel for appellants say in their brief in this case:

This is an action to annul a series of real estate transactions between plaintiff and defendants on the ground of duress.

This statement is sharply challenged by counsel for appellee in their brief. They say:

The action has been erroneously described in appellant's brief as one to annul a series of real estate transactions on the ground of duress. More correctly this is an action to compel the defendants to account unto the plaintiff for the proceeds of a series of frauds practiced upon said plaintiff.

Later in their brief, however, and constituting the very first sentence of that portion marked "Argument," counsel for plaintiff have this to say respecting the real issue in the action:

With no dispute or denial of the shameful charges laid at the door of Villa and his wife by this plaintiff, counsel for appellant seeks strenuously to avoid the issue of duress.

Counsel then continue:

From this premise he (speaking of counsel for appellant) argues that as there was no legal obligation to reconvey, manifestly their refusal to do so could not have coerced plaintiff's volition. Our law would be indeed a travesty on justice if, upon the facts disclosed by this record, no relief could be afforded to the plaintiff.

Still later counsel say with respect to the sale of the properties in question for P5,000 when the undisputed evidence shows they were worth P78,515:

It is repugnant to common sense to think for one moment that any sane man would be willing to sell property of this value for less than a third of its actual worth.

Moreover, the brief of counsel for plaintiff is divided into four parts, each part headed by a word or phrase in bold face type descriptive of its contents. They are "Argument," "Duress," "Ratification, "Res judicata." There is no division of the brief which is devoted to fraud or deceit and no direct discussion of either element. Under the heading "Argument" there is a discussion of the claim that the conveyance of March 22, 1909, was for security and not an absolute conveyance. This is followed by the part marked "Duress" where counsel say:

The evidence also shows, however, that instead of performing this duty, the defendants, conspiring together, and taking advantage of the fact that the conveyance by way of mortgage was in the form of an absolute deed, played upon the fears of plaintiff and extorted from him the money and property described in the complaint. It is our contention that the consent thus wrung from the plaintiff was vitiated by the duress to which he was subjected by the defendants, and that they are bound to make restitution to him of every dollar which they have extorted from him by their threats and intimidation.

Under the heading "Res judicata" we find this:

But the plaintiff does contend that the defendants must undo their fraud, and must elect to make up the deficiencies, etc.

It would seem from the foregoing, taken in conjunction with the allegations of the complaint, that the theory of the action is duress. We might say, however, inasmuch as fraud and deceit are so prominently mentioned, that we find no fraud in this case. Most if not all of the elements of fraud are absent. In none of the transactions was there a misrepresentation of an existing or past fact; and plaintiff went into each one of them knowing all of the facts as well as the defendants. There was no deception. This is a necessary deduction not only form the fact that there was no misrepresentation but also from the fact that plaintiff knew precisely what he was doing - was fully acquainted with the facts; and, knowing them, again and again accepted the verbal promises of the defendants to reconvey. Under his own statement and according to his own theory the defendants did no more than break their verbal contract with him with respect to all subsequent transactions as they had with respect to the first. That was not fraud, although it was done again and again, unless the mere failure to fulfill the various verbal contracts can be said to constitute fraud or deceit. It is well recognized however, that a mere failure to live up to a contract is not fraudulent or deceitful. The furthest the authorities have gone along this line, and not all have gone that far, is to declare that if, at the time a contract is made, one of the parties has present in his mind the purpose and intent to break it, after getting all he can out of the other party, and that purpose and intent enter into a the contract as the main element or consideration thereof on his part, there is fraud and deceit, the authorities holding that the state of mind of the party is a fact entering into the consideration of the contract without which it would not have been made; and that, by virtue of that state of mind, the other party was deprived of property. That fact however must be alleged and proved and relied upon before it can be utilized by the person asserting its existence. It was not alleged or proved in this case and plaintiff does not rely upon it in his brief in this court. His consent was not obtained by deceit in any of the transactions. There did not exist in any one of the transactions complained of a condition where "by words and insidious machinations on the part of one of the

contracting parties the other is (was) induced to execute a contract which, without them, he would not have made."chanrobles virtual law library

Reduced to the lowest terms this action constitutes an attempt on the part of the plaintiff to extricate himself from a series of foolish transactions, if we may accept his allegations respecting them. As we have said, the sales were all made by the plaintiff with full knowledge of the facts and there appears nothing in the record which warrants a rescission of them from the standpoint of fraud. The ultimate purpose of the action is the recovery of the properties described in the deed of March 22, 1909, remaining unsold. But, as appears from the evidence, the plaintiff has already recovered those properties, having purchased them from the defendants on April l4, 1913, for P6,800. Before this action was begun, therefore, plaintiff had obtained the very thing which he had been seeking to recover all through thus dealings with defendants and to obtain which he claims he had suffered so much. Having secured before this action was begun precisely what defendants had promised him and the very thing he sought, there remains nothing further to be said or done in that connection. Certainly the repurchase of the properties which he so much desired was not procured by fraud or deceit; and it was a complete termination of the relations existing between the parties arising out of the properties which he claimed were sold with a right to repurchase. After having obtained the very thing he desired and having done so in a manner which he deemed best and most suitable under the circumstances, did he not thereby terminate all relations between himself and defendants with respect to, or growing out of those properties, and can he nor repudiate not only the transaction by which he recovered them but also every other transaction which he claims related thereto? It is incomprehensible, from a legal point of view, that plaintiff, having been deprived of property by fraud and deceit, may recover that property through a voluntary agreement between him and those who deceived and defrauded him, and then repudiate not only the transaction in which he was defrauded of that property but also the very transaction by which he recovered it.chanroblesvirtualawlibrary chanrobles virtual law library

Dealing with the case from the standpoint of intimidation, it should be noted of March 22, 1909, was obtained in that form by force or thereat. The validity of that conveyance is admitted; as is also the fact that the verbal agreement to reconvey was omitted from the conveyance knowingly. The claim is simply that there was a verbal agreement to reconvey on the repayment of the consideration named in the instrument and that defendants made use of the fact that the agreement was verbal and, therefore, difficult to prove, as clever by which they forced him to convey to them additional properties before they would comply with the verbal agreement. According to plaintiff's contention, then, each one of the conveyances between him and defendants subsequent to the original conveyance was an extortion, using that word in its popular and not in its legal sense, the defendants, in order to intimidate him and thereby obtain the conveyance, threatening him with a refusal to comply with the verbal agreement to reconvey and the consequent loss of his properties. At each conveyance the defendants agreed, always verbally, as a consideration therefor, to reconvey to him the properties remaining, but each time refused to do so and proceeded, after each such conveyance, to a fresh extortion. It is contended that plaintiff, by not incorporating the verbal agreement to reconvey in the instrument itself, placed himself in a disadvantageous position; and that he executed and delivered the subsequent conveyances for the purpose of extricating himself from the unfortunate situation so produced. The ultimate extortion, the payment of P6,800 to recover the remaining properties, was the last penalty which he paid for his mistake in not incorporating the verbal agreement in the conveyance itself. chanroblesvirtualawlibrary chanrobles virtual law library

All men are presumed to be sane and normal and subject to be moved by substantially the same motives. When of age and sane, they must take care of themselves. In their relation with others in the business of life, wits, sense, intelligence, training, ability and judgment meet and clash and contest,

sometimes with gain and advantage to all, sometimes to a few only, with loss and injury to others. In these contests men must depend upon themselves - upon their own abilities, talents, training, sense, acument, judgment. The fact that one may be worsted by another, of itself, furnishes no cause of complaint. One man cannot complain because another is more able, or better trained, or has better sense of judgment than he has; and when the two meet on a fair field the inferior cannot murmur if the battle goes against him. The law furnishes no protection to the inferior simply because he is inferior, any more than it protects the strong because he is strong. The law furnishes protection to both alike - to one or more or less than to the other. It makes no distinction between the wise and the foolish, the great and the small, the strong and the weak. The foolish may lose all they have to the wise; but that does not mean that the law will give it back to them again. Courts cannot follow one every step of his life and extricate him from bad bargains, protect him from unwise investments, relieve him from one-sided contracts, or annul the effects of foolish acts. Courts cannot constitute themselves guardians of persons who are not legally incompetent. Courts operate not because one person has been defeated or overcome by another, but because he has been defeated or overcome illegally. Men may do foolish things, make ridiculous contracts, use miserable judgment, and lose money by them - indeed, all they have in the world; but not for that alone can the law intervene and restore. There must be, in addition, a violation of law, the commission of what the law knows as an actionable wrong, before the courts are authorized to lay hold of the situation and remedy it. chanroblesvirtualawlibrary chanrobles virtual law library

Furthermore, even if an actionable wrong be committed in such manner as to authorize the courts to intervene, the person injured may renounce his right to take the matter to the courts and may compromise with the wrong-doer. Or, having been placed in a very disadvantageous position by the wrong committed against him, he may be offered by his adversary one or more avenues of escape. He may be required to lose more property to his enemy or go to the courts for redress. In such case the payment of an additional sum as a means of escape is not necessarily a payment voidable for duress. The act was preceeded by an exercise of judgment. This much was plain to him: he had either to let the matter stand as it was with the loss already sustained, or go to the courts to be relieved. His judgment, operating upon this condition, told him to pay the additional sum rather than to suffer the inconvenience and expense of an action in court. A payment made under such conditions is not voidable. It is the voluntary act of a sane and mature man performed upon reflection. Not only this; it is a compromise of the original wrong and a ratification of the relation which the wrongful act was intended to establish between the parties. chanroblesvirtualawlibrary chanrobles virtual law library

The same may be said with greater force of a case where a person's own voluntary act, uninfluenced by another, has put him in a disadvantageous position - a position which another may unjustly make use of to his injury. The failure to reduce a contract to writing, or to have witnesses present when a verbal agreement is made, or to record an instrument, or to exclude from the operation of its terms things verbally agreed to be excluded, etc., may place a person in a disadvantageous position with respect to another; and the demand that he pay to secure his extrication is not illegal, and a payment made pursuant to such demand is not necessarily voidable. He pays for his lack of foresight. While the demand may be reprehensible morally, it is not illegal' and of itself is not ground for relief. chanroblesvirtualawlibrary chanrobles virtual law library

There must, then, be a distinction to be made between a case where a person gives his consent reluctantly and even against his good sense and judgment, and where he, in reality, gives no consent at all, as where he executes a contract or performs an act against his will under a pressure which he cannot resist. It is clear that one acts as voluntarily and independently in the eye of the law when he acts reluctantly and with hesitation as when he acts spontaneously and joyously. Legally speaking he acts as voluntarily and freely when he acts wholly against his better sense and judgment as when he acts in

conformity with them. Between the two acts there is no difference in law. But when his sense, judgment, and his will rebel and he refuses absolutely to act as requested, but is nevertheless overcome by force or intimidation to such an extent that he becomes a mere automation and acts mechanically only, a new element enters, namely, a disappearance of the personality of the actor. He ceases to exist as an independent entity with faculties and judgment, and in his place is substituted another - the one exercising the force or making use of intimidation. While his hand signs, the will which moves it is another's. While a contract is made, it has, in reality and in law, only one party to it; and, there being only one party, the one using the force or the intimidation, it is unenforceable for lack of a second party.chanroblesvirtualawlibrary chanrobles virtual law library

From these considerations it is clear that every case of alleged intimidation must be examined to determine within which class it falls. If it is within the first class it is not duress in law, if it falls in the second, it is.chanroblesvirtualawlibrary chanrobles virtual law library

But into whichever class it falls the party coerced may, as we have seen, waive his right to annul the contract and to recover damages. He may do this expressly or impliedly. He may expressly accept the agreement as it stands, or in a modified from, and live up to it as thus accepted. Or, he may compromise by paying something to be relieved from its effects or to have its terms changed. Or, he may accept benefits under the contract. In any one of which cases, and there are others not now necessary to mention, he renounces and waives his defense of intimidation and thereby eliminates that element as one having any influence on the case thereafter. chanroblesvirtualawlibrary chanrobles virtual law library

Article 1265 of the Civil Code tells us when duress exists: "Consent given by error, under violence, by intimidation, or deceit shall be void." Article 1267 provides that "violence exists when, in order to exact consent, irresistible force is used;" and the "intimidation exists when one of the contracting parties is inspired with a reasonable and well-grounded fear of suffering an imminent and serious injury to his person or property. . . ." Article 1268 declares the effect of violence and intimidation on the contract. It provides:

Violence or intimidation shall annul the obligation, even if it should have been employed by a third person who did not take part in the contract.

There is no question of error or violence in this case; and we have already disposed of that of deceit. Intimidation resulting from the fear of losing his property, if he did not comply with defendants' demands, is the element relied on. chanroblesvirtualawlibrary chanrobles virtual law library

First, then, applying the principles already enunciated: Was there intimidation in this case under the facts as related by plaintiff himself, leaving out of account the conclusions drawn and stated in the brief of counsel? Summing up the whole case under these facts, it is clear that all that defendants did was to refuse to live up to their verbal agreement with the plaintiff unless he gave them an additional consideration therefor. Plaintiff had his choice. He could refuse to pay again for the right which he had paid for once, and go into court for relief, or he could pay the price asked. His judgment operated upon the situation thus presented and he concluded that, from his point of view, his interests would be best subserved by paying the additional consideration. But having paid it, he found himself in precisely the situation he was before. The verbal agreement to reconvey, which he claims he had twice paid for, was still verbal, and he was no better off than before. He took no receipt showing the purpose of the payment; he required no writing to protect himself from the very trap into which he had once fallen; but, instead, with the very persons who had refused to live up to their original agreement because it was

verbal, he not only made another verbal agreement but also paid them, without a scrap of paper to show for it or specify its object, the sum of P10,000 on that agreement. Not only this, but he did the same thing a second time. The defendants having refused to fulfill the second verbal agreement and having refused to give him credit for the P10,000 paid, he entered into a third agreement under which he paid them P15,000. But still the agreement was verbal. Still there was no receipt, no writing, nothing but the naked word that had twice before been repudiated. Again, for the tried time, there was a refusal to fulfill and the plaintiff, to obtain the very thing which had been the subject-matter of these prior verbal contracts, paid a fourth consideration of P6,800. This time he succeeded. On the payment of the fourth consideration he secured in black and white the title to the property which had so eluded him. chanroblesvirtualawlibrary chanrobles virtual law library

If we accept these as facts, and we do for the purposes of the present discussion, we see that there was no intimidation in law. There was a lack of sense and judgment; but there was no imminent and serious injury threatened to his person or property. There was a simply refusal to comply with the terms of a contract unless plaintiff did certain things; but there was no threat of imminent and serious injury to his person or property. If a threat to refuse to live up to a contract is equivalent to a threat of imminent and serious injury to the person or property of the other contracting party, words have lost their meaning and language its significance. It may be admitted that plaintiff was in an unfavorable position. That does not mean, however, that the efforts he made to extricate himself therefrom entailed no consequences; nor does it mean that he was not dealing at arm's length with the defendants. There was no relation of trust of confidence. They owed him nothing but the naked legal; duty to comply with their promise -- to reconvey the premises on the payment of the debt he owed them. He was free to resort to the courts at the first refusal of defendants, as he ultimately did; and his chances for obtaining the relief sought would have been far better than they are now. By his delay and his subsequent dealings with the defendants he has not only given them the opportunity to charge that his conduct casts grave doubts on the truthfulness of his allegations, but he also laid himself to open accusation of having compromised with his enemies, with having ratified and confirmed all that was done, and with having wailed and renounced his right of action based on intimidation, if one he ever had. Every person who makes a contract assumes the risk of a refusal to comply. Breaches of contract are the commonest cause of litigation; and settlements and readjustments between the parties after a breach of contract whereby the person injured by the breach pays an additional consideration to the person breaking it in order to obtain a fulfillment, are also common. We never have understood that such arrangements were voidable for intimidation. A threat to refuse to comply with the terms of a contract without an additional consideration is not, of itself, intimidation. It is an offer to make a new contract, to establish new relations, with a statement from the one making the offer that he will no longer abide by the old contract. Such an act does not put the other party in the power or under the control of the one making the threat. He is still free to act as he pleases. He can still exercise judgment and will; he has still a refuge from the evil threatened' he still remains free to secure the same redress which every other person can obtain who is injured by a breach of contract. There is nothing in this which can produce intimidation. There is nothing which can engender a well-grounded fear of imminent and serious injury to person or property - which destroys volition and chains the will. chanroblesvirtualawlibrary chanrobles virtual law library

But, even though it should be found that the execution of the conveyance of the Salsipuedes and Padre Faura properties and the payment of the consideration of P6,800 for the recovery of the properties described in the original conveyance remaining unsold, together with all the other acts of the plaintiff which militate against his interest, were obtained and procured by means of intimidation, still we believe that the plaintiff would not be entitled to recover on the record. His acts in general not only contradicted the most material portions of his testimony, but he must be held to have ratified the conveyances, payments, and acts referred to and to have renounce the right o interpose the defense

which intimidation originally offered him. chanroblesvirtualawlibrary chanrobles virtual law library

Before entering upon this branch of the case it is necessary to correct certain errors into which counsel for the plaintiff appears to have fallen in their brief. Under the heading "Statement of facts" counsel say:

The facts upon which this action is based, astounding as they are, stand absolutely uncontroverted and undisputed. The recital of woeful abuse which constituted the plaintiff's complaint might stagger the credence were it the mere version of a litigant, disputed or contradicted by his opponents, or by a single witness or document offered in their behalf. Instead, it stands corroborated and undenied in spite of unusual opportunities afforded to the defendants of correcting it in any particular in which it may have been distorted, overdrawn or misrepresented by the plaintiff.

Under the head of "Argument" counsel again say:

With no dispute or denial of the shameful charges laid at the door of Villa and his wife by this plaintiff, counsel for appellant seeks strenuously to avoid the issues of duress.

There are several other statement in the brief of similar character. We find in the record, however, the testimony of Felipa Silvestre, Maria Guia Garcia, and Simeon A. Villa, the three defendants. These witnesses, or some of them, deny the material allegations and testimony of the plaintiff, and some of them testified to facts demonstrating, if true, the unreliability of the testimony of the plaintiff. They deny the existence of the verbal agreement upon which plaintiff bases this case. They declare that the sale of the 22d of March, 1909, was an absolute sale and was intended as such by the parties thereto. They assert that plaintiff occupied the premises after such sale as a tenant, paying them a monthly rental therefor. They testify that the conveyance of the Salsipuedes and Padre Faura properties was voluntary on the part of the plaintiff and for a consideration regarded at the time as adequate in each cae. They deny that they threatened plaintiff in any way; or that they intimidated him; or that they influenced him one way or the other in any of the transactions of which he complains. They deny that he sold the properties to Judge Jocson and to Garchitorena as owner, but allege that he acted as their agent in doing so. They deny that he paid interest and assert that he paid rent, and, to support this denial, evidence the fact, admitted by the plaintiff, that they finally ousted him from the possession of the property and collected the rents themselves. As further corroboration, they point to the fact that the only receipt introduced in evidence by plaintiff to substantiate his claim that he was paying interest and not rent shows upon its face that it was a receipt of rent. They point to the record showing that, again and again, by word or by letter, they refused plaintiff's request to reconvey to him and denied that there was any agreement to reconvey. They deny that plaintiff received any of the purchase price of the properties sold to Judge Jocson and Garchitorena, but declare that the purchase price was paid to them with the exception of certain sums paid to the plaintiff on their behalf. chanroblesvirtualawlibrary chanrobles virtual law library

Not only this, but defendants point to the absolute nature of the conveyance of the 22d of March 1909; to the fact that they obtained Torrent title thereto with the assistance of the plaintiff who testified to the absolute character of their title; to the conveyances of the Salsipuedes and Padre Faura properties for considerations expressed; to the fact that the plaintiff assisted them in obtaining Torrens title to those properties and that he did so after the defendants had repudiated his contention of the existence of a verbal agreement to reconvey; to his failure to act when he was ejected from the premises as a tenant; to his repurchase of the properties described in the original conveyance remaining unsold and his payment of the consideration of P6,800 therefor; to his acquiescence for a period of six months after

such repurchase before the present action was commenced. They call attention to the inherent improbability of plaintiff's story; to his acts which contradict his words; to his acquiescence for a long period of time; to his acts in assisting defendants to procure the registration of their titles not only to the lands described in the original conveyance but also to those which plaintiff claims they obtained from him by threats and intimidation; and in this connection they again invite consideration of the fact that, after all of the alleged wrongful acts of the defendants, the plaintiff repurchased the remaining properties, paying a consideration of P6,800 therefor. chanroblesvirtualawlibrary chanrobles virtual law library

Counsel for defendants on this appeal challenge the truthfulness of plaintiff's testimony when confronted by the denial of the defendants and a history of his own acts; and in doing so our attention is drawn to the admission of counsel for the plaintiff in their brief where they say: "The recital of woeful abuse which constitutes the plaintiff's complaint might stagger the credence were it the mere version of a litigant, disputed or contradicted by his opponent, or by a single witness or document offered in their behalf; "and we necessarily recur to the fact that the defendants did contradict plaintiff not only in their oral testimony but by the documents and documentary evidence introduced by them. Not only do they in their oral declarations contradict the plaintiff's testimony but there is a grave question whether or not the plaintiff is not bound by their testimony. They were his witness, called by him by virtue of section 355 of the Code of Civil Procedure; and while their testimony was not introduced by the plaintiff, it was offered by the defendants and accepted as evidence by the court with the consent and agreement of counsel for the plainful. We do not find it necessary to decide this question at this time, but refer to it simply to call attention to the possibility that section 355 may have its penalties as well as its rewards.chanroblesvirtualawlibrary chanrobles virtual law library

Returning to the question of ratification and renunciation, the Civil Code provides, article 1309, that "the action of nullity is extinguished from the moment the contract may have been validly confirmed;" and article 1311 declares that "the confirmation can be made either expressly or in an implied manner. It shall be understood that there is an implied confirmation when, being aware of the cause of the nullity and such cause having ceased to exist, the person who may have a right to invoke it should execute an act which necessarily implies his wish to renounce such a right;" while article 1313 provides that "confirmation purges the contract of all defects which it may have contained from the moment of its execution."chanrobles virtual law library

The first rejection of plaintiff's claims of the existence of the parol agreement in connection with the conveyance of March 22, 1909, occurred in June or the last part of July of 1909 when the defendants refused to sign an instrument presented to them by the plaintiff putting in written form the alleged verbal agreement. That claim was again rejected in the same year when the Salsipuedes property was conveyed, and this time in writing. In spite of these rejections, however, plaintiff continued his dealings with the defendants, selling them the Salsipuedes and Padre Faura properties, apparently assenting to their right to eject him as tenant from the Ermita properties, and by paying them P6,800 for a conveyance of the properties described in the conveyance of March 22, 1909, remaining unsold. Not only this, but after such rejections, or at least one of them, the plaintiff assisted the defendants in obtaining Torrens title to the very properties which he claimed to own and which he now claims he had been deprived of by intimidation practiced by the defendants. It is impossible, as we view the law, for plaintiff, after having been deprived of property by intimidation, to recover that property through a voluntary agreement between him and those who intimidated him, and then repudiate not only the transactions in which he was deprived of that property, but also the very transaction by which he recovered it. By his repurchase of the remaining properties in April, 1913, he accepted everything as it stood at that time and elected to take from the defendants a conveyance of the remaining properties as a

final termination of all their relations in connection therewith. chanroblesvirtualawlibrary chanrobles virtual law library

Taking the case as a whole, we are therefore of the opinion that there was no intimidation and that, if there was, the plaintiff has placed himself in a position where he was not entitled to urge it as a defense.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment appealed from is reversed and the complaint dismissed, without costs in this instance. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C. J., concurs.Johnson and Trent, JJ., concur in the result.Carson, J., dissents.Torres and Araullo, JJ., took no part.

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